Chapter 47
Cleveland, October 2019
Across the street from the Carl B. Stokes U.S. Courthouse in Cleveland, the plaintiffs’ lawyers had set up a war room in rented office space. The bleary-eyed, caffeinated crew worked around the clock in preparation for the case brought on behalf of Ohio’s Cuyahoga and Summit counties. The lawyers were a week away from the October 21 trial date.
The vast war room was crammed with copy machines, boxes of documents, whiteboards, hastily erected cubicles, and walls plastered with World War II–era propaganda posters telegraphing the need for secrecy. Lawyers were not beneath trawling for inside information.
“Careless Talk Costs Lives,” read one.
“Keep Mum,” read another.
Someone had stenciled a message on the wall: “If In Doubt, Don’t Ship It Out.”
Joe Rice, the trial lawyer from South Carolina, was trying to negotiate a settlement with the defense. Jayne Conroy and other attorneys pored over thousands of potential trial exhibits. Mark Lanier was preparing his opening statement, while Paul Farrell and Paul Hanly were working every corner of the case.
Hanly was warming to Paul, appreciating his drive and his willingness to adapt and learn as the litigation evolved. “In the MDLs that Joe and I and Jayne have litigated, we ultimately settled for billions of dollars,” Hanly would tell Paul. “You have to be a good litigator, but you have to be a dealmaker.”
Paul’s early arrogance, which Hanly always read as a form of insecurity, had slowly started to abate. Hanly told him there was no upside to boorish behavior, such as sending insulting emails to defense attorneys. He told him that he needed to understand what motivated his opponents, what the companies wanted in the end. Paul began to pepper Hanly and Conroy and Rice with questions about case law, jury selection, and strategies for taking depositions and arguing before judges. He stopped describing opposing counsel as “sleazeballs” and began to treat them with a little more respect. He no longer sulked and made faces when a judge ruled against him.
In the MDL hothouse, Paul and Hanly were becoming unlikely allies.
Along with helping Paul manage the litigation teams, Hanly tried to shield Lanier from the settlement talks and the in-house infighting, including who would get to sit at the counsel table with the Texan in Polster’s courtroom.
Lanier, as he had promised, followed his own preparation formula. He surrounded himself with attorneys and experts from his own firm, including his in-house jury psychologist. In the run-up to the trial, he invited different sets of plaintiffs’ lawyers to his Texas estate to present the results of their investigations of each drug company. Each team was given an hour for a PowerPoint presentation.
Lanier was impressed by the members of the trial team, particularly Paul. He hadn’t previously heard of the lawyer from West Virginia but came to value his acumen and dedication and how he had developed the basis of the case against the distributors. “I love Paul to death,” he told other lawyers.
Lanier and his team next met in Cleveland with potential witnesses to determine which ones would be best on the stand. The lawyers spent time listening to the stories of people who had seen the epidemic unfold on the ground: A medical examiner who had watched the bodies pile up. A man once addicted to opioids who now ran a rehab program. A woman who oversaw a foster care program who explained how difficult it was to find new homes for all the children who had been removed from their addicted parents, or who had lost one or both parents to the epidemic. Some kids, she said, risked years in group homes or institutions.
James Rafalski, the former DEA investigator who worked on some of the agency’s biggest cases, was on deck to testify. Lanier planned to show the jury the deposition he took of Joe Rannazzisi. The lawyers planned to call James Geldhof, the former DEA supervisor in Detroit, to testify in a later trial. Finally, Lanier secluded himself and focused on how he would explain the sprawling case to a jury. He always used props, and this trial would be no different. He planned to hold up a three-thousand-year-old Sumerian poppy jar that he had taken from his own theological library to explain how the ancients had revered opium and respected its powers. He had also acquired a first edition of The Wonderful Wizard of Oz by L. Frank Baum, published in 1900. By bringing a first edition to court, he would make the jury feel the age of the book, and he planned to illustrate the long-known dangers of opium by reading the section where Dorothy falls asleep in the poppy field.
Lanier was ready.
“Ladies and gentlemen of the jury, it’s a great honor to get to stand in front of you and try this extremely important case,” he said as he practiced his one-and-a-half-hour opening before his team. “It’s an important case to you. It’s an important case to me. It’s an important case to my clients, Cuyahoga and Summit counties. It’s an important case to the judge, to the judicial system. It’s important to our state of Ohio. It’s important to the United States of America. I daresay it has global implications. And so as we stand here, I ask myself this question: Where do we put this into some order or sense for us? See, this is a case about the distribution of opioids, not just in Ohio, but in the entire United States. And it’s about the resulting crisis within our community that’s come about through the way these opioids have been distributed. Your job as jurors is to figure out what went wrong, why we have this crisis, how it’s damaged the communities. And so as you come here, I provide you initially a road map for the trial. My opening statement is pretty simple. It’s just, here’s what you can expect as we travel this journey together through this trial.”
He had drawn his road signs: “DEA.” “Controlled Substances Act.” “The Supply Chain.” “The Drug Company Defendants.” And the final stop: “Cuyahoga and Summit Counties.”
On October 16, the lawyers began selecting a jury. Complicating the proceedings were four state attorneys general—from North Carolina, Tennessee, Texas, and Pennsylvania—a group that Paul dubbed “the four bullies.” They had just tried to persuade Polster to delay the trial, contending that they were close to their own settlement with the drug companies.
While the cities and counties were filing lawsuits, many states had brought their own cases and were trying to take the lead in a national settlement. Their move on the eve of trial highlighted an intense power struggle between the state attorneys general and the cities and counties in their states. The attorneys general, politicians who hold elected office, had been pushing to settle and take home a win to their constituents. Some of the plaintiffs’ lawyers representing the cities and counties wanted to bring the cases before juries and let them decide whether the companies should be held accountable and how much they should pay.
Some of the state attorneys general argued that they had also worked on their own opioid cases for years. They said that the plaintiffs’ attorneys, who were mostly in private firms, were partly motivated by the substantial fees they were likely to receive from a settlement or a jury verdict.
Paul Geller, the plaintiffs’ lawyer from Florida, compared the move by the attorneys general to the 1980 Boston Marathon. That year, runner Rosie Ruiz was declared the winner of the women’s race. Her title was stripped eight days later when it was discovered that she hadn’t run the entire race, but instead had entered a half mile before the finish line. It was the plaintiffs’ lawyers who had done all the hard work on the case.
They didn’t take the depositions, they didn’t review the documents, and then all of a sudden they announced they crossed the finish line and said we have a deal, Geller thought. It’s bullshit.
On Friday, October 18, three days before the trial was set to start, Polster summoned everyone—the attorneys general, the drug company executives, and the lawyers for the twenty-four hundred cities, counties, and Indian tribes now in the MDL—to his eighteenth-floor courtroom to figure out if a last-minute global settlement could be reached. The state attorneys general said they were crafting an $18 billion deal with the companies that would be spread out over eighteen years. They needed the MDL lawyers to agree. The cities, counties, and tribes weren’t interested. They thought it would give the states too much control over the payout and not enough money would reach their communities. The plaintiffs’ lawyers summoned five officials from some of the hardest-hit areas to tell Polster how their communities had been devastated by opioids. The mayor of Huntington, West Virginia, Steve Williams, said his town experienced twenty-six overdoses in one five-hour period. The corporation counsel for Milwaukee County, Margaret Daun, said, “We need the money now. And the local governments like the one I represent need control over the money. We don’t want saving people’s lives to be hijacked by party politics.” A Muscogee (Creek) Nation official rose to speak of the ruination of Indian country. “We are, without a question, the most severely impacted of all communities in the United States,” Muscogee Nation attorney general Kevin Dellinger told Polster. “This devastation comes on top of centuries of displacement, oppression, and neglect, all of which together make addressing the opioid epidemic in our remote communities that much more challenging.”
Paul fumed, telling Polster that the communities he and the other plaintiffs’ attorneys represented were not on board. The judge responded that he wanted a settlement. He asked Paul to meet with the attorneys general, who were huddled in a courtroom two floors below. Paul barged into the room, grabbed a chair, and sat down.
“Who are you?” Texas attorney general Ken Paxton asked.
“I’m Paul Farrell. I’m co-lead of the national litigation and I happen to be from West Virginia.” Paul accused Paxton and the other attorneys general of undermining the MDL and shortchanging West Virginia. Because the attorney general for West Virginia had already settled with Cardinal and AmerisourceBergen for $36 million in 2017 and recently struck a deal with McKesson for another $37 million, Paxton told Paul his state was not going to be included in the $18 billion proposal.
“Well, son,” Paxton said, “it sounds like you need to go and talk to your attorney general.”
Paul was furious. Neither Huntington nor any of the other towns, cities, and counties had received any of the settlement money. And just because his state’s attorney general settled with the distributors didn’t mean Paul’s clients had given up their rights to sue the companies.
Paul wanted to punch the Texan. Instead, he turned and walked away.
By the end of Friday, settlement talks had collapsed. A jury would be seated Monday. On Saturday, tensions ran high in the war room. At 3:30 a.m. Sunday, they boiled over. Conroy and the others had run into a computer glitch that caused all the exhibit stamps on the plaintiffs’ documents to obscure the text. They couldn’t figure out how to fix the problem, and several people in the room started yelling—and then they started to cry.
“It was a terrible night,” Conroy said. “We have literally been up for days and we’re dealing with trial strategy. We’re dealing with examinations that we’re trying to prepare. But the thing that is absolutely killing us is this ridiculous exhibit issue. And we have to get this right. And I have a lot of people crying.”
On Sunday afternoon at about 3 p.m., Conroy and her team met with lawyers for the defendants in the courthouse for the final decision by one of Polster’s special masters, David Cohen, about which exhibits would be allowed in. Conroy and her team resolved the computer glitch. There were several documents on Conroy’s list of two hundred exhibits for the first week that she desperately wanted to get in, including several critical to Lanier’s opening. One was a video of five drug distribution company executives holding their right hands in the air as they were sworn in to testify before a House Energy and Commerce oversight panel on May 8, 2018. When the Republican chairman of the panel, Gregg Harper of Mississippi, asked whether any of them accepted responsibility for the epidemic, four of them said, “No”: John Hammergren of McKesson; George S. Barrett of Cardinal Health; J. Christopher Smith, former president and CEO of H.D. Smith Wholesale Drug; and Steven H. Collis, chairman of AmerisourceBergen. Only one said, “Yes”: Joseph Mastandrea, the chairman of Miami-Luken, a midsized distributor based in Ohio. While Barrett said his company bore no responsibility for the epidemic, he did issue a partial mea culpa about the shipments to the CVS stores in Sanford, Florida. “With the benefit of hindsight, I wish we had moved faster and asked a different set of questions,” Barrett said.
It was a powerful, cinematic moment and Conroy wanted jurors to see it. But Cohen sided with defense objections, ruling that the C-SPAN video of the testimony was hearsay and couldn’t be admitted because the plaintiffs hadn’t properly authenticated it with an official congressional transcript. It was a blow for the plaintiffs. Lanier would not be able to use an important piece of evidence for his opening statement and Conroy was upset that she had let the trial team down.
The other exhibit was the damning Austin Powers spoof that had been created by Cephalon in 2007. The company had since been acquired by Teva, a defendant in the lawsuit. Cohen ruled that the jury could watch that video. Conroy saw that as a crucial win. Lanier could now use Dr. Evil in his opening.
That night, Paul took his wife, Jacqueline, to dinner at Butcher and the Brewer in downtown Cleveland, where a wood-fired ribeye could be had for $45. Paul was ebullient. He was sure the trial would begin the next morning because Lanier’s mother, who attended every one of his opening statements, had just flown into Cleveland. But that evening, inside a glass-walled office in the war room, Rice and Hanly were still trying to reach a settlement with two defense lawyers negotiating on behalf of the Big Three: Jeffrey M. Wintner and Thomas J. Perrelli, a former associate attorney general during the Obama administration. For hours, the two sides traded proposals and counterproposals during a series of phone calls. There was no discussion of the relevant strengths and weaknesses of their cases. These negotiations for just two counties, Cuyahoga and Summit, were about dollars: how much should the defendants pay versus how much they were willing to pay. It was just the beginning of negotiations to settle thousands of other cases waiting in line for their turn in court. Each one had to be negotiated separately, unless the two sides could reach a global settlement.
Perrelli told Hanly and Rice, “I can’t get any more than this.”
“Well, that’s not gonna be enough,” Hanly and Rice responded.
“You’ve got significant liability issues. And what do you think the markets are going to do when all these documents come out?”
By 8 p.m., the defendants began offering more money. Rice poured himself a Canadian Club whiskey on the rocks. Before midnight, he gave Perrelli a final number: $215 million for the two Ohio counties. Teva had agreed to settle in exchange for $20 million in cash over three years and a donation of another $25 million worth of Suboxone, a drug used to treat opioid addiction.
Rice gave the defense lawyers an ultimatum. “This is getting ridiculous,” he told them. “This is what I’ll do. I will stay by this phone for twenty minutes. If I don’t hear from you, I’m turning it off and going to bed. Mark will open at nine.”
Rice thought that might tip the negotiations. He sensed their desire to settle. He also knew they feared Lanier.
Fifteen minutes later, Perrelli called back. Paul had returned from dinner and was in the war room. Rice motioned for him to come into the office. He put the call on speaker so Paul and Hanly could hear.
“Okay, we have a deal,” Perrelli said.
Hanly called Lanier in his hotel room. He thought he might be up. The Texan was too wired for sleep.
Like all of his nights before trial, Lanier was feeling like a Viking, ready for battle. I want to pillage and plunder a village, he was thinking before the call.
While Lanier wasn’t surprised—he felt cheated—victory by default.
“Okay, I’ll pack up my stuff and go,” Lanier told Hanly.
Paul returned to his hotel room. Hanly and Rice finished their drinks and turned off the lights in the war room. “Another great Joe Rice victory,” Hanly said to his colleague as they walked back to their rooms at two that morning.
Five hours later, a line of lawyers and reporters began to form outside Polster’s courtroom, hoping for a chance to see the trial’s opening statements. At 9:01, Polster entered the packed chamber. The room fell silent as he announced what had just been leaked to the news media: The parties had reached a settlement. The Big Three had agreed to pay $215 million to the two counties. Teva had also agreed to settle. In the months before the trial date, drug manufacturers, including Johnson & Johnson and Mallinckrodt, had also settled, pushing the final amount to more than $300 million.
Paul was thrilled by the amount of money the two counties would receive, even though he hadn’t played the central role in the litigation he had once anticipated. A no-brainer settlement, he thought. He knew he would get the chance to try his own case against the distributors in a West Virginia courtroom. All he needed now was a trial date.
Outside the courthouse, reporters and television cameramen surrounded the plaintiffs’ lawyers.
“What was the sticking point last night?” one reporter asked.
“Money,” Rice said. “They wanted to pay less and I wanted them to pay more.”
“Is there an admission of wrongdoing?” another asked.
“No, but common sense tells me that they paid over $323 million to these two counties. One might say that’s a pretty good admission,” Rice said.
Cuyahoga County executive Armond D. Budish, standing next to Summit County executive Ilene Shapiro, told the reporters that the infusion of cash would bring immediate and much-needed funds to the people of their counties. But, Budish added, “The settlement does not bring things to an end.”
No one knew that better than Hanly, Conroy, Rice, and Paul. They would allow themselves celebratory drinks at a bar with the team later that night, but the next day they would be back at it. They had only reached a deal for two of their clients; there were nearly twenty-four hundred others waiting for big payouts.
A crowd of reporters surrounded Lanier. He described some of the props he had planned to use during his opening statement. He excitedly gave them a taste. He told them about the Sumerian opium jar dating back to 1000 BC that he had brought to Cleveland. Poppies would be rubbed against it, he said, “to extract the liquid to get high.”
He then held up his first edition of Oz. He read from the passage in the poppy field.
“‘If we leave her here she will die,’ said the Lion. ‘The smell of the flowers is killing us all.’”