Chapter 41
New Orleans, Louisiana, July 2018
For weeks on end in 2018, Anthony Irpino rarely left his spacious law office on the second floor of a grand Victorian in the Garden District of New Orleans. In front of a floor-to-ceiling brick fireplace on one side of the office stood a statue of Sun Tzu, the author of The Art of War. Irpino downed bottles of Coke and chewed wads of Kodiak dipping tobacco as he studied spreadsheets referencing hundreds of thousands of drug company documents. The empty Coke bottles served as spittoons and littered his desk. An adjoining office with a couch became his bedroom.
The veteran plaintiffs’ trial attorney was impressed by how enormous the opioid litigation had become. The two dozen drug companies being sued had turned over nearly 20 million documents during discovery. Cardinal had produced 1.8 million records alone, burying the plaintiffs’ attorneys in paper. Lawyers for the companies were arguing that they didn’t need to disclose the contents of 250,000 other documents, claiming that the information contained in them was protected by attorney-client privilege or the result of attorney work product. They designated another 10 million documents as “confidential,” arguing that only the lawyers on the case could see them. If the documents became public, the defense argued, they would violate the privacy of the corporations or their employees. Irpino was hired to coordinate the hunt for the hottest documents in the piles deemed off-limits or restricted. It was like trying to find flecks of gold buried in a deep, dark mine shaft.
Of all the positions on the plaintiffs’ two-hundred-member legal team, Irpino’s role was the most arcane and one of the most important. Raised in Skokie, Illinois, outside of Chicago, he had worked as a short order cook before attending the University of Illinois at Urbana-Champaign and then Tulane Law School in New Orleans. He fell for the city and decided to stay.
At forty-seven, Irpino, who looked like he could be related to Robert De Niro, was in charge of what’s known in the civil litigation world as “privilege and confidentiality.” It’s a high-stakes legal game of hide-and-seek, and its outcome can determine the success or failure of a case. Were the 250,000 documents—emails, memos, PowerPoint presentations, internal audits—truly protected by attorney-client privilege or work product, or were the companies using those designations as a ruse to shield them from the plaintiffs? Were the 10 million documents really “confidential,” or did they merely contain embarrassing or damaging information that the public had a right to see?
It was backbreaking work that required many all-nighters and no days off. The work rarely received public recognition. Irpino worked alongside his thirty-six-year-old law partner, Pearl A. Robertson, a tall woman with long blonde hair often pulled back into a ponytail who played basketball in an international league before attending Loyola University College of Law. They might discover one piece of paper that could alter the outcome of a motions hearing or the trajectory of the entire case. Or they might miss a document that could have turned the litigation in their favor. It was difficult to remain focused, triangulating disparate bits of information as they tried to put the puzzle pieces of the privilege documents together. All they had to go on were logs produced by the drug companies that contained the most basic of information: subject lines of emails, names of authors, and dates they were written. Teams of document reviewers and lawyers scanned the metadata and flagged the emails that looked like they might be masking revelatory documents—the ones they would ask the court to compel the companies to turn over.
Irpino and Robertson had teamed up to do the same work on the BP Deepwater Horizon case, which resulted in a $20.8 billion settlement in 2016 for the massive oil spill in the Gulf of Mexico. But the opioids case was proving to be far more complicated, with so many defendants—most of them Fortune 500 companies backed by formidable law firms—and more and more cities, counties, towns, and Indian tribal nations filing cases every month.
“This epidemic is such a scourge,” Irpino would tell himself. “Maybe we can make a difference.”
There were times when his thoughts drifted to his brother, who had died in Irpino’s home of heart failure after years of substance abuse, which Irpino believed included the use of opioids. He also thought about one of his best friends from college who had become addicted to opioids and leapt from the balcony of his high-rise condominium in downtown Chicago.
When Irpino or a colleague found an inflammatory document, he felt a rush of excitement. “This document is great for us,” he’d say. But then his thoughts would quickly turn to his brother and his friend, and the callousness of the companies. Those fuckers, he’d say.
On April 11, Judge Polster created a litigation track for the opioid cases. While both sides had made some progress toward a settlement, the judge noted in an order that the plaintiffs and the defendants both believed that setting trial dates might force them to the bargaining table. With the first so-called bellwether trial set to start in Cleveland in October 2019, lawyers for the two sides began to prepare for a monumental courtroom battle. The outcome of that first trial would have enormous consequences. It would help predict how other cases that were waiting for their turn in court might fare before juries. With a trial date pending, Paul Farrell added more lawyers to the hunt for hot documents. He set up what he called “SEAL Team Six,” a reference to the Navy’s most elite special operations unit.
One of those hot documents surfaced in July 2018. It was discovered by Evan M. Janush, a forty-five-year-old lawyer assigned to the case who had been collaborating with Irpino. Based in New York, Janush was intensely focused and spoke in rapid-fire sentences. He came across emails that had been turned over by Cardinal Health. One of the emails noted that Cardinal had hired an outside auditor in 2007 while the DEA was investigating the company for supplying the internet pharmacies with hydrocodone. But there was no audit attached to the email. At first, Cardinal denied an audit existed. Then lawyers for Cardinal told Janush that they had found the audit in a filing cabinet but claimed it was protected by attorney-client privilege because it had been conducted by a consultant and furnished to a law firm retained by the company. It was one of fifty thousand attorney-client privilege claims asserted by Cardinal. After the plaintiffs complained, a special master assigned to help Polster manage the case, David R. Cohen, ordered Cardinal to produce the January 23, 2008, audit. There was a reason why the company didn’t want the plaintiffs to see it. The consultant, Ronald Buzzeo, a retired DEA official, found that Cardinal was filling large and potentially suspicious orders of narcotics and neglecting to report them to the DEA. Later that year, Cardinal paid the $34 million fine to settle the case brought by the DEA and paid another $44 million fine in 2016 for the same allegations. For ten years, Cardinal was able to keep the existence of the internal audit secret.
Janush scored another coup toward the end of that summer. The plaintiffs had loaded the twenty million documents into a search engine platform called Relativity. He began to search under the word “crisis,” looking for any emails or documents relating to the opioid crisis. Instead, he found something unexpected.
“If what I have is original—holy shit—that’s all I will say for now,” Janush wrote to Paul on August 6.
“Dude, you can’t leave me hanging,” Paul wrote back.
Janush had discovered The Alliance’s “Crisis Playbook” produced by APCO Worldwide in 2013 in the face of intensifying DEA investigations into the drug industry. He also found the minutes to an Alliance executive committee meeting during which the Big Three distributors approved filing a friend-of-the-court brief in the Masters Pharmaceutical case. One of the lawyers at the meeting said the DEA no longer wanted to regulate the drug industry but was instead “actually preventing the distribution of controlled substances to licensed dispensers.”
“I have a man crush. Evan Janush has discovered two documents which are simply amazing,” Paul wrote to the plaintiffs’ leadership team the next day. “Pure gold.”
Across the country in a Seattle law firm that was part of the litigation, attorneys were searching through documents that had been produced by Mallinckrodt, the generic drug maker. On October 15, 2018, the lawyers were searching through documents Mallinckrodt had turned over to the DEA when one of them found an email chain involving Victor Borelli, the national sales manager for the company. It was the “Doritos” exchange between Borelli and one of his distributor customers that had been written a decade earlier.
The document review team showed the email to Derek W. Loeser, one of the lead lawyers for the Seattle firm of Keller Rohrback. “I can’t believe these people said this,” Loeser exclaimed. “This is a billion-dollar document.”
Paul believed he was on a hot streak. He was more certain than ever that the case—his case—was winnable. But he was about to be bigfooted by a famous trial lawyer, and he never saw him coming. In fact, he didn’t even know his name.