Chapter 39
Cleveland, February 2018
On February 26 at three in the afternoon, Paul Farrell made his first appearance before Judge Polster as the co–lead counsel in the most complex civil action in the history of American jurisprudence. As he looked around the courtroom, he knew it was a moment to savor. It also was time to launch a carefully orchestrated surprise attack on his courtroom adversaries.
Lawyers for the drug companies and the Justice Department had come to the federal courthouse in Cleveland that day to urge Polster to keep the ARCOS pill-tracking database secret. The lawyers for the companies and the Justice Department had argued in motions that disclosing it could reveal trade secrets and compromise criminal investigations. Perhaps worst of all, it could put the nation at risk if the precise locations of drug distribution centers were divulged, making them easy targets for opioid-seeking gangs.
It’s all bullshit, Paul thought.
But he needed to prove it in court. ARCOS was the key to his case. He knew the data would provide a detailed road map to the epidemic. He also knew that ARCOS would enable his team to train its firepower on the companies responsible for manufacturing and distributing the largest volumes of pills. If he won, the plaintiffs might be able to convince the companies to settle, forgoing a costly and time-consuming trial—one of Polster’s main objectives. Paul had a figure in mind: $20 billion.
As he sat in Polster’s eighteenth-floor courtroom that afternoon, Paul waited for the right moment. James R. Bennett II, a Justice Department lawyer based in Cleveland, began his career as a local prosecutor in Ohio after graduating from Case Western Reserve University Law School and Marshall University in Paul’s hometown. He stepped to the podium and told Polster that the plaintiffs should request the ARCOS data from the drug manufacturers and distributors, not the government. “They are the better source of information,” Bennett said.
Paul was tired of hearing that argument. Yet again, the federal government was siding with the drug industry and trying to keep critical information away from the public. Paul had been trying to gain access to ARCOS for nearly a year, ever since he unsuccessfully doorstepped DEA supervisor Karl Colder in Washington the previous February. The Justice Department continued to dig in. As the hearing proceeded, Polster began to lose his patience with Bennett.
“The important thing is to track whose pills went where specifically,” Polster told him. “There are certain areas of the country where there are hundreds and thousands of pills per person, per year, for every man, woman, and child. Everyone knows that was wrong, it shouldn’t have happened.
“The question is, whose pills?”
Bennett lamented the toll the epidemic had taken on the country. The Justice Department, he said, had made combating illegal diversion of pills to the black market a top priority.
“However, the Department of Justice and the DEA must also protect its ongoing and its future investigations, and it must also protect the privacy and the commercial interests of innocent businesses,” Bennett argued. “In addition to the law enforcement interests, there are also trade secret interests for the individual manufacturers and distributors.”
“There are no trade secrets here,” Polster snapped back. “This is a controlled substance, they’re pills. We’re not going to ask [for] the formulation of any pills. That shouldn’t be in the data. Where the pills went is not a trade secret.”
Bennett refused to relent. “It also would allow individuals to look and see the marketing and the strategic plans the businesses have by showing how they have had growth in certain areas,” he said.
“They obviously know which pharmacies they’re selling to and which they aren’t,” Polster countered, “and I think they probably have a darned good idea which of their competitors are supplying the pharmacies.”
Bennett tried a different tack. The ARCOS data, he said, contained the addresses of the drug distribution warehouses. Disclosing those locations could be dangerous and lead to even more pills hitting the black market if the facilities were burglarized or robbed.
“Your Honor, knowing the city, county, and state of where those warehouses are in many situations would allow identification of that warehouse,” Bennett said. “It might be very easy for criminals to figure out where these warehouses are located.”
Paul had already studied the motions the Justice Department had filed, laying out this argument. He was ready to pounce.
“I don’t mean to interrupt, but I think I have something critical to say on this very matter,” he said, standing in the courtroom.
“All right,” Polster said.
“The address for these warehouses is publicly available.”
“It is?” Polster asked.
“Yes, sir. May I approach?”
“Yes,” the judge said.
“Cardinal Health in its manufacturer reference manual actually has a table that identifies each of its distribution facilities as well as the address,” Paul said.
“May I also have a copy?” Bennett asked.
“I also brought the administrative memorandum and agreement that the DEA [and] DOJ had with McKesson, and in it, it identifies—I lost count—maybe fifteen or twenty of the warehouses that were subject to the McKesson fine, and in it this public document identifies the exact street address for each of the warehouses,” Paul said. “In addition to that, if you get on all three of the companies’ websites, they have job application sections where they post the warehouse that has job opportunities by city and state. Many of their public statements, for instance, AmerisourceBergen recently announced in June of 2007, they put out a press release talking about the opening of a new distribution center in Orlando, Florida.”
Polster turned to Bennett. “It looks like, Mr. Bennett, a lot of these companies don’t seem to care about disclosing the exact street address of their warehouse,” the judge said.
“Which I think, Your Honor, is more reason why we need to not disclose the actual transactions, because now that the information of where these warehouses [are] located, knowing when they’re receiving shipments and how much, and which are getting big shipments—”
Polster cut him off. “No, we are not going to do that. The companies are so lax they’re letting everyone know, it’s too bad for them,” the judge said. “I’m not so worried about the warehouses anymore, because sadly it looks like the companies themselves haven’t bothered to keep them confidential.”
Paul felt like he was in a scene from one of his favorite courtroom TV shows, Perry Mason.
Bennett was flailing. “With the Privacy Act concerns, with the trade secret concerns, with the law enforcement concerns, the burden on the agency, with the ability to use this information—” Bennett started to say before Polster cut him off again.
“I’m not trying to burden the agency,” the judge said. “Just turn it over.”
Lawyers representing the drug distributors scrambled to their feet in the courtroom as they took turns trying to convince the judge to keep ARCOS secret. Steven M. Pyser, an attorney for Williams & Connolly representing Cardinal Health, said he worried that the data could disclose the locations of pharmacies in areas where there were large volumes of opioid prescriptions being filled. That might encourage other pharmacies to move into those areas and compete for the business.
“Quite frankly, there shouldn’t be a lot of competition for distributing opioids,” Polster said.
“Your Honor, in no way was I implying the pharmacies are trying to distribute extra opioids,” Pyser said.
“That is what it sounds like,” the judge said.
“But it is a standard for how busy a pharmacy is in general,” Pyser offered.
“Yeah, but if it’s real busy for opioids, that could be a signal that there’s something wrong. All right?” Polster said. “That’s my point, and that’s the plaintiffs’ point. And if a distributor knows that, then maybe the distributor should have done something.”
Alvin L. Emch, a Charleston, West Virginia, lawyer representing AmerisourceBergen at the hearing, warned that disclosing the database would give the plaintiffs an unfair advantage. It would reveal pill distribution patterns by other companies, allowing the plaintiffs to add even more defendants to their case. He also noted that the drug distribution companies had never seen each other’s data. Why should the plaintiffs gain access? “Plaintiffs want this information so that they can take that data and use it against us, data we never had,” Emch said.
Polster brushed the argument aside, noting that ARCOS was based on sales information provided by the companies themselves. “Obviously, if they get it, you get it, and the point is you know where every one of your pills went because you supplied the data for your company,” the judge said. “I’m saying your client supplied the data for its company. So, you know something they don’t know, which is you know where all of your pills went.”
“We do,” Emch conceded.
Polster had heard enough. He ordered the DEA to turn over the ARCOS data spanning nine years, from January 1, 2006, through December 31, 2014. As a former prosecutor, he understood the importance of keeping ongoing criminal investigations confidential. The judge withheld the last three years of pill distribution numbers, which he said should protect those investigations. He also said the data would be provided to both sides under a protective order, sealing it from the public. It was an incentive for the drug companies to settle.
“Nothing is going to be revealed to the media unless there is a trial,” Polster said.