Chapter 44
Akron, Ohio, Summer 2018
The call came out of nowhere.
“Good afternoon, Karen Lefton speaking.” Lefton was at her desk in her small third-floor law office in Akron when she saw the Washington Post come up on her caller ID. Must be someone from the newspaper’s circulation department to say that her digital subscription had lapsed, she thought. Lefton was a solo practitioner. If the phone rang, she answered it.
“This is Jim McLaughlin, the deputy general counsel of the Washington Post,” said the man on the line. It was June 21, 2018, and McLaughlin got to the point: Would Lefton be willing to represent the Post in its effort to obtain a secret DEA database called ARCOS that was part of the opioid litigation unfolding in U.S. district court in Cleveland?
Lefton quickly Googled McLaughlin to see if he really worked at the Post. She wanted to make sure the call wasn’t someone’s idea of a joke. She had never heard of ARCOS. And lawyers like her didn’t get hired by the Post.
McLaughlin explained how ARCOS worked and that Judge Polster had ordered the DEA to turn the database over to the plaintiffs as part of the pretrial discovery process following protracted negotiations. But the judge had placed the database under a protective order, preventing it from being released to the public. Polster had also put hundreds of thousands of company documents under seal.
Post investigative reporters wanted access to the secret data, McLaughlin explained, and he believed they were entitled to it because Polster had already provided the information to the lawyers representing hundreds of towns, cities, and counties suing the industry.
The Post and the Charleston Gazette-Mail of West Virginia had decided to sue for the database and the company documents. Polster had just granted the Post the right to intervene in the case, and McLaughlin was facing a looming deadline to file a legal brief.
Lefton was thrilled with the idea of representing the Post, but she was certain that every media lawyer in America—and even those with no media experience—would want to work with McLaughlin. Why was he calling her?
Lefton was not McLaughlin’s first choice. The Post had tried to hire an outside law firm in Washington. Williams & Connolly, often retained by the Post, was representing Cardinal and declined to take the case. The other major D.C. law firms he called also were already representing other defendants. McLaughlin told Lefton he had tried firms in Cleveland and Cincinnati, but they too had conflicts. Several of the lawyers in the Ohio firms passed along the name of Lefton. They said she was the obvious choice to handle a media case in the state.
Lefton, sixty-one, with shoulder-length blonde hair and a penchant for wearing colorful suits, never planned on being a lawyer. Her passion was journalism. She started her career in 1980 at the Akron Beacon Journal, covering courts and local governments. After nine months, she decided to attend law school part-time at the University of Akron. She thought a law degree would help her become a better reporter. After she passed the bar, she rose through the ranks of the newsroom, where she held several editing positions, including city editor. She eventually became the Journal’s general counsel.
The Journal, like so many other newspapers, hit hard times and began to cut staff. Lefton decided to leave in 2008. She joined a local law firm, and then set up her own practice. It was a lean operation near a shopping mall in an Akron suburb. She didn’t have a secretary. She drove a 2009 Toyota Camry. She was leading the simple life of a local lawyer. She served as outside general counsel to Ohio companies and nonprofits that didn’t have an attorney on staff. At times, she also represented the Beacon Journal. The offer from the Post opened a door to her first passion. She didn’t hesitate.
Lefton had dreamed about a case like this. It’s so significant, she thought. There was another motivating factor for her: She had two good friends whose children had died from opioid overdoses.
Lefton was excited and anxious. She knew that none of her other cases could have the national impact of a lawsuit filed by the Post. She also felt the weight of an immense responsibility. As a general business lawyer, she had represented local companies, resolving conflicts between vendors and suppliers and handling disputes between employers and their workers. Her other media cases dealt with local public records requests and access to public meetings. She had never represented a national media organization or taken part in litigation that involved the deaths of so many people. She was now representing the Post in a case with novel and challenging legal issues. She was about to go up against the DEA, the Department of Justice, and some of the most prominent and well-known law firms in the country.
On July 9, 2018, Lefton filed a brief on behalf of the Post asking the court to disclose the ARCOS database and the documents. “The public interest in the opioid epidemic far outweighs any interest in secrecy sought to be protected by the Department of Justice and the Drug Enforcement Administration and the pharmaceutical manufacturers and distributors,” she wrote in her brief.
She submitted an affidavit from Jeff Leen, the investigations editor of the Post. He had run the unit since 1999 and edited or helped to supervise eight Pulitzer Prize–winning investigations. He also edited the Post’s opioid investigation. “Because of the sprawling breadth and complexity of the opioid problem,” Leen wrote in his affidavit, “the Post’s newsroom made a strategic decision to dedicate enormous resources to it.” He described the Post’s reporting on the opioid epidemic as “accountability journalism—that is journalism that seeks to hold powerful companies and high-ranking government officials accountable for their action (or in some cases, inaction) on matters of great public importance.”
The ARCOS database would enable the public to see for the first time which U.S. communities had been hit the hardest by the epidemic, Leen wrote. They could also see whether there were obvious red flags that should have alerted drug companies to suspicious orders and which manufacturers, distributors, and pharmacies knew or should have known that their pills were being diverted to the black market.
As an example of the data’s usefulness, Leen pointed to the stories the Charleston Gazette-Mail published that were based on the ARCOS data it had obtained. The disclosure of the data, Leen said, did not result in “genuine commercial or proprietary harm.” Instead, he said that “disclosure was an enormous public service.”
The DEA and the defendants fought back. The DEA, represented by Justice Department lawyers, took the lead. As they had before, the government lawyers argued that the release of the data would compromise ongoing investigations and that the information was proprietary. Seventeen days later, Polster denied the requests by the Post and the Gazette-Mail, declining to lift his protective order. He sided with the Justice Department lawyers, ruling that the data was confidential business information and could compromise DEA investigations.
Lefton was disappointed, but not surprised. “Unfortunately, his mind appears to have been closed back in February,” when he had put the database under a protective order, she wrote to McLaughlin in an email. “There is no indication that he even considered, much less weighed, the immense public interest.” Polster, she thought, was using the threat of its release as a sledgehammer to induce settlement.
Lefton and lawyers for the Gazette-Mail appealed Polster’s ruling to the Sixth U.S. Circuit Court of Appeals in Cincinnati. Lefton traveled to Cincinnati for oral arguments before the appellate panel on May 2, 2019. She arrived before anyone else. She always wanted to be the first one inside to get a feel for the courtroom. In the silent space, she thought, This is not for me. This is not for the Post. This is for all my friends and so many other people who have lost their kids.
Suddenly the courtroom exploded with chatter as a parade of lawyers streamed through the doors. As they took their seats, Lefton nervously looked over at the large group of Justice Department attorneys sitting with out-of-town lawyers representing the drug industry on the other side of the room. Lefton’s sister came to the courtroom and sat behind her for support.
Lefton stepped to the lectern. “I’m here today representing the Washington Post,” she began, looking up at the three-judge panel. Her voice was shaky at times, but she remained clear during the hourlong argument.
“There is a database of information that is underlying this whole case,” Lefton said. “And it is being withheld, we believe improperly… We have received none of it. It is not accessible to us or to the public as it should be.”
After the argument, Lefton thought of all the points and pithy quotes she had rehearsed and had forgotten to use. But it was over. She had done her best and needed to wait for the court’s decision. She went to her sister’s house, put on her golf clothes, played a round, and tried not to think about her court appearance. She knew that it could be months before the panel issued its ruling.
Seven weeks later, on June 20, 2019, Lefton was at a luncheon for about three hundred people given by the nonprofit Akron Roundtable, a community forum that brought in speakers from around the world. Lefton had been asked to sit at the head table because she served on the board. As one of the speeches began, she glanced down at her phone. The Sixth Circuit had reached a decision.
Her heart pounded. Her hands shook. She had to read it.
The appellate panel, by a vote of two to one, sided with the Post and HD Media, the owners of the Gazette-Mail. In a forceful thirty-four-page decision, the panel ruled that the defendants had failed to show how releasing the data would cause them harm. The panel reversed Polster, saying that his decision was “bizarre” and he had acted “irrationally.” The judges ordered him to lift the protective order sealing the data and the documents.
By now, the MDL had become a leviathan, growing more and more tentacles that were threatening to strangle the litigation. What began with just two hundred cases had grown tenfold. There were now about five hundred lawyers on each side, though no one was quite sure exactly how many. They had filed hundreds of motions, traded millions of documents during discovery, and Polster seemed to be losing control of the sprawling litigation. It had been eighteen months since he urged the two sides to settle all of the cases and they were no closer to a global deal than on the day he had first gathered them in his courtroom. Now he had been overruled by the appeals court and forced to relinquish one of the few weapons he had to compel a settlement: the threat of releasing the ARCOS data and the internal corporate emails and documents.
Writing for the majority, U.S. circuit judge Eric L. Clay said that “the reporting on the ARCOS data that [HD Media] received from the West Virginia attorney general resulted in no demonstrated commercial harm to defendants and no demonstrated interference with law enforcement interests, but this reporting did result in a Pulitzer Prize, a congressional committee report and a broader public understanding of the scope, context and causes of the opioid epidemic.”
Tears streamed down Lefton’s face as she sat at the roundtable. Those around her started to stare. She worried that they wondered whether something was wrong. She forwarded the decision to the Post.
“Total victory!!! Please see attached,” Lefton wrote at 1:05 p.m. Polster unsealed the data from 2006 through 2012. It was three months before the start of the first trial for Summit and Cuyahoga counties. On July 16, the Post published the first of a series of stories based on the material—five hundred million transactions, tracing the path of every pain pill in America, from manufacturers to distributors to pharmacies. The database was so large, Steven Rich, the Post’s database editor for investigations, convinced senior editors to purchase a new high-speed computer. Leen’s investigative team and reporters across the newsroom combed through the data, along with hundreds of drug company documents, emails, and internal corporate reports that Polster unsealed.
“America’s largest drug companies saturated the country with 76 billion oxycodone and hydrocodone pain pills from 2006 through 2012 as the nation’s deadliest drug epidemic spun out of control, according to previously undisclosed company data released as part of the largest civil action in U.S. history,” read the lead paragraph of the first story by Scott Higham, Sari Horwitz, and Steven Rich.
When two more years of data were released by Polster in January, that number climbed to 100 billion pills.
The database revealed that just six companies distributed 75 percent of the pills from 2006 through 2012: McKesson Corporation, Walgreens, Cardinal Health, AmerisourceBergen, CVS, and Walmart—companies that Joe Rannazzisi and his investigators had tried so hard to stop. Three companies manufactured 88 percent of the opioids: SpecGx, a subsidiary of Mallinckrodt; Actavis, a subsidiary of Teva Pharmaceuticals; and Par Pharmaceutical, a subsidiary of Endo Pharmaceuticals. Purdue Pharma ranked fourth on the list of manufacturers, with about 3 percent of the market.
The reporters also found that death rates from opioids had soared in the towns, cities, and counties that were saturated with the billions of pain pills. The highest per capita death rates during those seven years were in an opioid belt stretching from West Virginia through southern Virginia to Kentucky.
Joe Manchin, the Democratic senator from West Virginia, was infuriated by the numbers. “What they did legally to my state is criminal,” he told the Post. “The companies, the distributors, were unconscionable. This was not a health plan. This was a targeted business plan. I cannot believe that we have not gone after them with criminal charges.”
The documents Polster unsealed included some of the most incendiary emails sent between executives in the drug companies: Victor Borelli’s “Doritos” email; Kristine Atwell’s message to her bosses at Walgreens asking how pharmacies could possibly be ordering so many bottles of pain pills; and the “Crisis Playbook” that The Alliance had commissioned to repair its image and blame the DEA for not doing enough to stop the epidemic.
The Post lifted its paywall, making the documents and the data available to readers, researchers, and other media organizations. Anyone could search down to the county level to see how many pills were distributed, which companies manufactured and distributed the pills, and which pharmacies dispensed how many pills. More than a hundred news organizations across the country used the data to publish their own stories.
At 5 a.m. on the day the first Post story was published, Lefton read it on her iPad while she lay in bed. Her husband was still sleeping. She woke him up. The contents of ARCOS were as new to her as to every other reader that morning. She was shocked as she read about the billions of pills the companies had poured into communities.
Lefton’s name was included in that story and subsequent stories in other papers that highlighted the underdog lawyer who had forced the federal government to release its secret database. It was a moment to savor—the perfect marriage of her two careers.
The most powerful people in pharmaceutical America didn’t want it released, she thought that morning. A lot of the most powerful people in the Department of Justice didn’t want it released. Aside from that, it was a walk in the park.