Chapter 40
Washington, D.C., July 2018
Covington & Burling is one of the most prestigious law firms in America, with more than thirteen hundred lawyers and staffers across the globe, from D.C. to Brussels to Beijing. Its roster of past and current partners reads like a who’s who in Washington, with former top federal government officials ranging from Dean Acheson, President Truman’s secretary of state, to President Obama’s former attorney general, Eric Holder. Like Holder, many leave Covington to serve in high-level government positions and then return. Covington is also home to some of the best civil litigators in the country.
The firm’s modern office complex occupies more than 450,000 square feet in two twelve-story towers connected by stairs and bridges in the heart of downtown D.C. Natural light pours through the full-length glass windows on every floor and the interior glass walkways. The plaintiffs’ lawyers in the opioid litigation jokingly call Covington “the Death Star,” a Star Wars reference to the Empire’s moon-sized space station that can destroy entire planets.
On July 31, 2018, Paul Farrell arrived at Covington to take the first of what would be hundreds of depositions. He was joined by three top lawyers from the Pensacola firm Levin Papantonio Rafferty.
Paul walked into the conference room where the deposition was to take place. The table went from one end of the room to the other. Lawyers from other firms representing the drug manufacturers, distributors, and pharmacies occupied nearly every seat on both sides. Some stood along the back wall of the room. More lawyers listened in on a conference line.
“Man, this place is fancy,” Paul said to the lawyers. “I wonder if they’ll hire me.” The joke was met with stony silence.
Paul sat down across from Nathan J. Hartle, the vice president of regulatory affairs and compliance for one of the Big Three distributors, McKesson. Representing Hartle was Covington lawyer Emily Johnson Henn, a Georgetown University Law Center graduate who had clerked for Supreme Court justice Sandra Day O’Connor. Henn had been named one of the top female lawyers in California by The Daily Journal, a legal publication. Paul figured that she and the other lawyers on the Covington team had been prepping Hartle for weeks, assuring him not to worry about the lawyer from West Virginia.
As Paul began the deposition at 9:04 that morning, he tuned out the rest of the room. There was only him and the witness.
“Good morning,” he said to Hartle.
In the early questioning, Paul tried to shake Hartle, and the attorney soon saw a wave of anxiety cross the executive’s face. Paul also saw in Hartle’s eyes an openness to answer honestly, something not often encountered when deposing a witness.
For seven hours, Paul walked Hartle through the elements of his case: The Controlled Substances Act of 1970. The “closed” distribution system Congress created to prevent diversion of drugs to the black market. The addictive nature of opium. The Masters ruling, confirming the requirement for distributors like McKesson to detect, report, and stop the shipment of suspicious orders of controlled substances.
Paul showed Hartle the 1910 congressional testimony by Donald McKesson, an early executive of the company. He had told members of Congress that his company was opposed to habit-forming drugs and that if they received orders from suspicious people, they would report them to law enforcement for prosecution.
He asked Hartle to read a section of the 1970 Controlled Substances Act: “The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.”
“Does McKesson acknowledge and agree with those findings?” Paul asked.
“Yes,” Hartle said.
“And McKesson is engaged in the distribution business, agreed?” Paul asked.
“We are,” Hartle replied.
“And that if they do not follow the law as provided by the U.S. Code and the Code of Federal Regulations, it has a substantial and detrimental effect on the health and general welfare of the American people, agreed?”
“Yes,” Hartle said.
Paul continued. “Does McKesson acknowledge that it has a duty to maintain effective control against diversion of opium pills as mandated by Congress?”
“We do,” Hartle said.
Paul asked Hartle to read a statement by the chairman of a House Energy and Commerce subcommittee at the start of a 2001 congressional hearing: “According to the DEA, the number of oxycodone-related deaths has increased 400 percent since 1996, the same time period in which the annual number of prescriptions for OxyContin has risen from approximately 300,000 to almost 6 million.”
How, Paul asked, did these pills get from the maker of OxyContin, Purdue Pharma, to the pharmacies?
Hartle said they were sent by distributors.
“Right,” Paul said. “So, between 1996 and the year 2001, the number of prescriptions went from 300,000 to almost 6 million. So, the OxyContin business was booming, wasn’t it?”
“It increased significantly,” Hartle replied.
“And McKesson was amongst the distributors that were delivering the pills from Purdue Pharma to the pharmacies?” Paul asked.
“We were,” Hartle said.
Paul asked Hartle to read the section of the Controlled Substances Act that said the price for participating in illicit drug trafficking schemes should be “prohibitive,” or excessively high. “It just makes sense, right?” Paul said. “If you’re going to punish somebody and the punishment isn’t very severe, they’re likely to what?”
“To do it again,” Hartle said.
“Why?” Paul asked.
“There’s no penalty or accountability,” Hartle replied.
“Let’s say that a speeding ticket is a dollar. What would happen across America if a speeding ticket was a dollar?” Paul asked.
“It wouldn’t hold the same weight,” Hartle said. “It may not deter people from speeding.”
“What if the speeding ticket was a million dollars?” Paul asked. “What would that do?”
“I’m just guessing, but likely people would not speed,” Hartle said.
“Like, not to be cute, but McKesson was fined $13 million in 2008 and then was fined again in 2017, $150 million,” Paul said. “Do you think that the second fine was intended to be more prohibitive than the first fine?”
“I believe so,” Hartle replied.
Paul produced a copy of McKesson’s operations manual from 2000 that laid out its suspicious monitoring program and how controlled substances should be handled. He asked Hartle to read a paragraph that detailed the DEA’s definition of suspicious orders: “Suspicious orders include orders of unusual size, orders deviating substantially from a normal pattern, and orders of unusual frequency.”
Paul asked him to read another sentence: “Recent cases indicate that DEA will seek large penalties from distributors who fail to comply with this regulation.”
“You got to follow the law?” Paul asked.
“Right,” Hartle said.
“And if McKesson doesn’t follow the law, that makes its conduct unlawful?” Paul asked.
“Yes,” Hartle said.
Paul reminded Hartle that he was not there as an individual, but as a representative of the company—known in legal parlance as a 30(b)(6) witness. Paul thought that Hartle was exhausted after hours of questioning and hundreds of objections by his defense lawyer. He was hoping Hartle might let his guard down. He posed his most important question of the day:
“Do you think McKesson is partly responsible for the societal costs of prescription drug abuse in America?” he asked.
“There’s a lot of people involved,” Hartle said. “It’s a very complicated and multi-faceted issue.”
“I want to talk about McKesson,” Paul said. “This is your opportunity to accept partial responsibility for the societal costs of prescription drug abuse in America: Yes or no?”
“So again, it depends on—it depends,” Hartle said.
“Back to the McKesson Corporation, which is you sitting in a chair today,” Paul said. “Knowing about your past conduct, knowing about the past interactions with the DEA, I’m going to ask you again: Does McKesson Corporation accept partial responsibility for the societal costs of prescription drug abuse in America?”
“We’re part of the closed system, so we’re responsible for preventing diversion,” Hartle said.
“So, the answer is?” Paul asked.
“I think we’re responsible for something,” Hartle said. “I don’t know how you define all societal costs. I still believe it depends on different circumstances.”
“So, I don’t want to put words in your mouth because it’s got to come out of your mouth. So, the answer is yes, or no?”
“I would say, yes, partially,” Hartle said.
Paul walked out of the conference room. He felt like he was a Major League pitcher, stepping off the mound and heading to the dugout after striking out one of the most important batters on the other team. He also felt that he was just as good as, maybe better than, any of the other lawyers in the MDL.