Chapter 48
Huntington, West Virginia, May 2020
At first, Paul Farrell thought someone had pranked him. As he read through case files at his home in Huntington on May 6, 2020, an email popped up on his laptop. It was from Mark Pifko, the attorney from Baron & Budd in Los Angeles, writing to say that a young lawyer at his firm had just found a parody of the theme song from the 1960s sitcom The Beverly Hillbillies. Executives at AmerisourceBergen had jokingly emailed it to each other in the spring of 2011 at the height of the epidemic.
“See attached document,” Pifko wrote. “Callous disregard for the problem they were feeding.”
Paul began to read the parody.
“Come and listen to a story about a man named Jed / A poor mountaineer, barely kept his habit fed…”
Paul saw that the vice president in charge of regulatory affairs for AmerisourceBergen, Chris Zimmerman, had emailed the parody to Julie Eddy, a government affairs director for the company.
Paul wrote back to Pifko. “Bullshit,” he said. “This can’t be real.”
Pifko assured him that it was. Another lawyer at his firm, Alex Sherman, discovered the email while searching through millions of drug company documents. He had decided to enter the search term “pill w/2 mills.” The “Pillbillies” email popped up. The phrase “pill mills” was in the last stanza.
There’s something else, Pifko told Paul. Sherman had discovered another incendiary email.
“Not done yet here,” Pifko wrote to Paul two hours later. AmerisourceBergen, he said, “knows how to make some southern friends. See attached.”
In 2012, the Kentucky General Assembly had been considering a series of regulatory changes to crack down on pill mills and overprescribing. They included a prescription drug monitoring program to prevent drug users and dealers from filling multiple opioid prescriptions at different pharmacies.
On September 13, 2012, Steve Mays, senior director of regulatory affairs at AmerisourceBergen, forwarded an email listing the legislative initiatives to Cathy Marcum, a regional director for regulatory affairs at the company. “FYI, Looks like KY has been busy,” Mays wrote.
Marcum responded, “One of the hillbilly’s [sic] must have learned how to read.” She closed her email with a smiley face emoji.
AmerisourceBergen and the other defendants were supposed to have produced emails and documents to the plaintiffs before the October trial date in Cleveland. But the “Pillbillies” email was in a large cache of tens of thousands of documents that AmerisourceBergen didn’t turn over to the MDL plaintiffs until months later. Sherman stumbled upon the email while combing through the newly produced documents.
The day after learning about the emails, Paul sent a letter to the lawyers for AmerisourceBergen. “Dear AmerisourceBergen,” it began. “We will be addressing your late disclosure and lack of candor in a separate letter.” He closed by writing, “In April of 2011, the month the [‘Pillbillies’] email was circulated to your senior staff, you sold 291,400 pills of hydrocodone and oxycodone into Cabell County, West Virginia.”
Paul fired off a series of emails to his colleagues. Why wasn’t the “Pillbillies” email turned over to the MDL plaintiffs before the October 21, 2019, Cleveland trial date? AmerisourceBergen’s lawyers said the document was initially withheld because it was covered by attorney-client privilege and didn’t need to be turned over. They then said it was “erroneously not produced.” Anthony Irpino and Pearl Robertson began to document a pattern of other emails that the company should have turned over before the trial date.
The plaintiffs’ lawyers asked Judge Polster to sanction AmerisourceBergen for violating discovery rules. The “Pillbillies” email, along with the others they found, could have strengthened their bargaining position on the eve of the Cleveland trial. Polster sanctioned AmerisourceBergen, ordering it to produce all documents that it had wrongly withheld. He also said the plaintiffs could force several top AmerisourceBergen officials to sit again for hours-long depositions.
Polster had continued to push for a global settlement. After the Cleveland settlement in October 2019, the judge decided to set up a new slate of bellwether cases to be sent back, or remanded, to federal courts across the country. “Resolution of substantial portions of the Opiate MDL will be speeded up and aided by strategic remand of certain cases at this time,” the judge wrote in his November 2019 order.
He sent one case to San Francisco, another to Chicago, and a Cherokee Nation case to Oklahoma. Early in 2020, he selected two of Paul’s West Virginia distributor cases—one filed by Cabell County and the other by the city of Huntington—to be sent back to federal court in Charleston, West Virginia, where they would be tried before senior district judge David A. Faber.
Polster also scheduled another trial in Cleveland that he would preside over, pitting two other Ohio counties, Lake and Trumbull, against the national pharmacy chains, including CVS, Walmart, Rite Aid, and Walgreens. The trial was originally scheduled for the fall of 2020 but was pushed to the fall of 2021 because of the Covid pandemic that shut down all the opioid trials. Nothing in the “Pillbillies” email surprised Paul. He had heard the same tired jokes about West Virginians in college.
At Notre Dame, his classmates called him “Cooter,” a reference to a backwoods character from the hit TV show The Dukes of Hazzard. They teased him incessantly about his roots. Paul brushed off the bad jokes, and these emails were equally unfunny. When he saw the names of the corporate executives on the “Pillbillies” email, he realized that some of them worked for the division responsible for ensuring that pain pills were not being diverted to the black market. And they’re mocking the suffering of the people in Appalachia, Paul thought. These are the people that have been entrusted by AmerisourceBergen to protect my community and they’re making fun of us.
To Paul, the “Pillbillies” email was providence. Surfacing in the middle of the pandemic, he saw it as a sign. There would be a reckoning, he believed, as soon as he could get his case into a West Virginia courtroom.