Chapter 43
Washington, D.C., May 2019
Joe Rannazzisi wasn’t feeling well on the morning of May 15, 2019, as he took a seat at the conference table inside Williams & Connolly, the D.C. firm known for representing some of the biggest names in corporate America, many of them leaders in the pharmaceutical field: Pfizer, AstraZeneca, Eli Lilly, and Cardinal Health.
He wasn’t nervous, even though he was staring at a dozen drug company lawyers seated across from him at the firm’s headquarters. Joe was looking forward to telling his story during the deposition set for that morning. But two and a half years out from open-heart surgery, he had never fully recovered. He tired easily. His hands trembled. He suffered from migraines. One moment he felt feverish, the next he was shaking with chills.
Joe had decided to leave his job with the software company and accept the offer from attorney Richard Fields to work on behalf of the Cherokee Nation in its lawsuit against the drug industry. For the first time, Joe was now a paid consultant in a suit that had been folded into the MDL. Drug company defense attorneys were lining up to take a shot at one of the most important witnesses for the plaintiffs, hoping to undermine his credibility and neutralize him as a threat.
This was Joe’s second appearance at Williams & Connolly. Enu Mainigi, the lawyer assigned to represent Cardinal, had subpoenaed Joe to appear for a deposition at her firm a month earlier. Mainigi and other drug company lawyers spent an entire day hammering Joe that April, trying to get him to admit that the DEA was partially to blame for the opioid epidemic and he could have done more to work with the drug industry to stop the carnage. The plaintiffs assigned their most talented trial attorney to rehabilitate Joe on the morning of May 15 during the redirect portion of his deposition, when attorneys on his side were able to ask additional questions.
“Mr. Rannazzisi, thank you for your time today. My name is Mark Lanier. You and I have not met before you sat down here just a few minutes ago. Is that right?”
“That’s correct,” Joe said.
Lanier placed a piece of cardstock on his overhead projector for the room full of lawyers to see. On the card, he had drawn a road that ended at a photograph of Joe in the upper left-hand corner. Along the side of the road were colorful billboards that read “60 Minutes Man Rd.,” “Background,” “60 Minutes,” and “Follow-up.”
Lanier began with Joe’s background. On another card, he jotted down his education, his degrees in pharmacology and law, and the positions he had held at the DEA.
“Spoiler alert,” Lanier said. “Are you still with the DEA?”
“No, I retired,” Joe said.
Lanier was in his full-on just-a-country-boy mode as he walked Joe through his responsibilities at the DEA, how he ran Redrum, the drug-related murder task force in Detroit, and how he knocked over meth labs as the chief of the dangerous chemicals section at the agency. Joe told Lanier he became a DEA special agent in 1988.
“Is that when you get the badge?” Lanier asked.
“Yes, sir.”
“Did you, like, carry a gun and stuff?”
“Yes, sir.”
“Did you ever arrest anyone or do any of that stuff?” Lanier asked.
“Yes, sir,” Joe said with a smile.
Lanier put his road map back on the overhead projector. “I want to move to the next stop on the road. It’s what I call the 60 Minutes stop,” he said, placing the 60 Minutes logo on the card. He asked Joe to explain the Controlled Substances Act and the distributors’ responsibility to monitor suspicious orders. He then repeated something Joe had said during his October 17, 2017, appearance on 60 Minutes.
“Was it an industry, based on your experience and opinion, that was out of control?” he asked Joe.
“Yes, sir.”
“Explain what you mean by that, please.”
“We tried to push them, force them into compliance, but they just wouldn’t comply,” Joe said. “When they decided they didn’t want to comply, they just used influence to create a law or to change a law. So, yeah, I pretty much believed that they were out of control.”
Lanier asked Joe to explain the regulations for drug distributors, that they have a responsibility to stop orders when they are of an unusual size or frequency or substantially deviate from normal ordering patterns.
“Does it have to be all three of those?” Lanier asked.
“No,” Joe said.
“Two of them?”
“It could be just one,” Joe said.
Lanier put another card on the projector and wrote, “Don’t ship suspicious orders w/o full due diligence. Resolve suspicion.”
On another card, he jotted down the full quote from Joe’s 60 Minutes appearance: “This is an industry that is out of control. What they want to do is what they want to do and not worry about what the law is. And if they don’t follow the law in drug supply, people die. That’s just it. People die.”
“What,” Lanier asked, “did you base that opinion on?”
Lanier walked Joe through the letters he had sent to the drug companies. The multimillion-dollar fines the companies paid for noncompliance. The promises the companies made to the DEA that they would do better. The extraordinary volume of pills they shipped after they were fined. The ever-increasing numbers of overdose deaths.
“The last part of your statement here: ‘If they don’t follow the law in drug supply, people die. That’s just it. People die.’ Explain what you meant.”
“When you have diversion and these drugs are going out into the community and they’re getting into the wrong hands, the drugs are being used without supervision, the drugs are being abused; it causes overdoses. It causes death,” Joe said. “We were losing people left and right. That’s what I meant by people died.”
Lanier then turned to the cases the DEA had made against Cardinal Health, McKesson, and AmerisourceBergen. He pulled out the settlement McKesson had signed in 2017 with the DEA and highlighted a passage that said the company had engaged in the same behavior in 2008 and signed a similar settlement with the agency.
“This is not, as we would say in Lubbock, not their first rodeo,” Lanier said.
Joe started to laugh before he caught himself.
Lanier then flashed the road map back on the screen and ticked through the defenses the drug industry had used in the litigation. He took out a green Paper Mate pen and wrote down the names of each of the drug company defendants in the case.
“I want to ask you about some explanations and excuses that have been used by the defendants in this case and give you a chance to explain them. Okay?”
Excuse number 1: The drug companies didn’t have access to ARCOS, the DEA did, Lanier said. The agency could have stopped suspicious orders of painkillers.
Joe said the companies reported their own sales data to the DEA and had all the information they needed to halt suspicious-looking drug orders. The drug companies saw the sales transactions in real time; ARCOS had a four- to six-month lag time.
Next excuse, Lanier said: The amount of raw material to make opioids increased during Joe’s tenure. Joe said the DEA’s production quota was based on requests from the manufacturers and the scientific community and corresponded to the number of prescriptions that were being written. Joe said Congress set the standards.
Next excuse: “Pain is undertreated in America.”
“I’m not a medical doctor,” Joe said.
Lanier then noted that the distributors, the manufacturers, and the pharmacy chains had said that they were confused about their responsibilities under the law.
“They just didn’t know what they were supposed to do,” Lanier said. “Would that be acceptable in your mind?”
“No,” Joe said.
“Is it the DEA’s job to give legal advice to the companies?”
“No.”
“Have the companies been able to hire people from the DEA and actually bring them inside their companies?” Lanier asked.
Joe said the industry had hired numerous DEA officials, including many from the division that regulated the prescription drug industry. “All of the companies have many avenues to try to get their questions answered,” he said.
The final tack: The DEA was partly responsible.
“Who is this gentleman named Mr. Rosenberg?” Lanier asked, referring to the former acting DEA administrator Chuck Rosenberg. “Mr. Rosenberg supposedly said the DEA was part of the problem. Do you believe the DEA was part of the problem?”
“I do not believe the DEA was part of the problem,” Joe said. “The DEA was trying to stop diversion.”
Lanier presented Joe with a hypothetical. “Do you drive a car?” he asked.
“Yes, sir.”
“You are aware of speed limits?”
“Yes, sir.”
“You are aware that sometimes there are school zones, where the speed limit is reduced?” Lanier asked. “If someone speeds through the school zone, a police officer might be there with a radar gun, might catch them, might write them a ticket. That’s something you could foresee happening, fair?”
“Yes, sir.”
“If a person speeds through a school zone and the police officer doesn’t happen to be there that day with a radar gun and doesn’t catch that person, does that mean that person is innocent?”
Joe smiled and shook his head. “No,” he said.
“Can the person blame the cop because the person sped through the school zone and the cop wasn’t there?”
“No.”
“If the companies aren’t diverting or allowing diversion of their product, then the DEA’s job gets a whole lot easier, doesn’t it?”
“Absolutely,” Joe said.
Paul Farrell had been on the fence about Lanier when Paul Hanly, Jayne Conroy, and Joe Rice lobbied to make him the lead trial lawyer. But whatever doubts he harbored about Lanier disappeared by the end of the day. Through the simplest of brushstrokes, one on top of another, Lanier had created a devastating portrait of companies wholly indifferent to their responsibilities.
Paul was starting to realize that he might not be the best lawyer in the room, that there were more skilled mass tort litigators. He had once thought that it was time for the old legal lions to leave the veld, but he was beginning to understand how much he had to learn from the experience of lawyers like Lanier, Hanly, and Conroy. After the deposition, several plaintiffs’ attorneys headed over to Joe Rice’s D.C. office. Paul walked into a conference room, a look of incredulity on his face. He stared at Hanly, who had come into town to be with the team.
“Oh my God, I’m a total believer,” Paul told Hanly. “I have never seen anything like that.”