Chapter 49
Cleveland, July 2020
Eric Kennedy thought he could hold it together as he prepared to take the deposition on July 30 of a key figure in the upcoming trial in Charleston, West Virginia. He would question the longtime president of The Alliance, John Gray, while still coping with his own grief. Eleven months earlier, Kennedy had lost his only son to an accidental fentanyl overdose. The twenty-seven-year-old had snorted cocaine, unaware it had been laced with the deadly synthetic opioid.
The memories of that day kept returning in shards: The emergency call. The doctor asking him if he wanted to see his son’s body at the hospital. Later, the eulogy he gave to six hundred people who had gathered on the verdant grounds of the Cleveland Botanical Garden for the memorial service for Robert Jacque Kennedy, known as Jackson, a painter with a degree from the School of the Art Institute of Chicago.
Kennedy, a bespectacled and bald litigator whose work spanning forty years had earned him a spot in the Ohio Trial Lawyer Hall of Fame, wasn’t angry with Gray, The Alliance, or any of the drug companies it represented. Since the day his son died, he had been too lost in his own sorrow to muster much other emotion. The deposition was scheduled to last about four and a half hours and it was an important moment in the litigation, the first and perhaps the only time that the plaintiffs would be able to question Gray about the conduct of The Alliance and the companies he represented.
Kennedy wasn’t sure if Gray knew about his son. Even if he did, Kennedy knew what Gray would say: Drug distributors shipped prescription pills and had nothing to do with illicit fentanyl, much of it manufactured in China and Mexico and smuggled into the United States.
While Gray would be technically correct, Kennedy also knew that the explosion in heroin and fentanyl overdoses was a direct outgrowth of the opioid epidemic. The DEA’s crackdown on the companies had decimated the black market for pain pills. Opioid users searched for other options, setting off two more cataclysmic waves of death. In 2015, heroin overdoses surpassed the number of deaths from pills. Two years later, the third wave of the epidemic swept through communities across the country. Many victims were unaware that fentanyl had been laced into their heroin, cocaine, or other drugs to make them more potent and more addictive.
Fentanyl is the deadliest drug to ever hit U.S. streets. It is fifty times more powerful than heroin, a hundred times more powerful than morphine, its chemical cousin. It is so powerful that just a few flecks of the white powder, the size of grains of salt, can cause rapid death. The fast-acting opioid kills a person by shutting down the part of the brain that controls respiration, causing breathing to slow and then stop.
In a series of missed opportunities, oversights, and half-measures, federal officials in the Obama administration failed to grasp how quickly fentanyl was creating another, far more deadly wave of the opioid epidemic. Between 2013 and 2017, more than 67,000 people died of synthetic opioid–related overdoses. In 2017, synthetic opioids were to blame for 28,869 of the overall 47,600 opioid overdoses, a 46.4 percent increase over the previous year.
Fentanyl deaths continued to soar under the Trump administration. After the failed nomination of Tom Marino as his drug czar, Trump tapped White House adviser Kellyanne Conway to take charge of combating the opioid epidemic. While Trump said the crisis was a top priority, people in communities across the country continued to die in record numbers from fentanyl and health officials struggled to provide treatment for tens of thousands more. Throughout his tenure, Trump’s drug office failed to devise a cohesive antidrug strategy.
In 2020, as the Covid pandemic gripped the nation, nearly 93,000 people died from drug overdoses—the largest number ever recorded by the CDC. The prime culprit: fentanyl. As one of the leading trial lawyers in Ohio, Kennedy had secured a spot on the plaintiffs’ executive committee for the MDL. He was assigned to investigate CVS, McKesson, and The Alliance, and to work on Paul Farrell’s upcoming trial in Charleston. Paul knew about Kennedy’s son and wanted to give him a larger role in the litigation. He asked Kennedy if he would depose Gray. To prepare, Kennedy read every email and memo Gray had written, along with the minutes of every Alliance board meeting he had ever attended. He knew that Gray had presided over the group, formally called the Healthcare Distribution Alliance, or HDA, since 2004. Gray held a law degree from the University of Virginia and an MBA from Wharton. He had just announced his retirement. The year after the Marino-Blackburn bill became law in 2016, Gray was paid $2.9 million.
With the country in Covid lockdown and the trials put on hold, Kennedy took the deposition remotely. He was in a conference room in his Cleveland law firm; Gray in his house in Great Falls, Virginia. Six defense attorneys for Gray and the drug companies dialed into the videotaped deposition that morning.
Kennedy began by asking Gray about a series of events in 2012, a time when Joe Rannazzisi’s team was on a war footing with the drug industry. That year, the DEA had suspended the registrations of Cardinal, CVS, and Walgreens, and served subpoenas on McKesson for its drug shipment records and other internal documents.
“The HDA on behalf of its members was so concerned about the DEA that you personally organized a meeting with a Washington, D.C., law firm, Williams & Connolly. Do you remember organizing that meeting, sir?” Kennedy asked.
“Yep.”
“You organized a meeting, sir, in 2012 with this Washington, D.C., law firm to try to figure out what to do with the DEA and its enforcement of the law against distributors. That’s why that meeting was put together, true?” Kennedy asked.
“It was an attorney-client relationship,” Gray said. “I don’t feel I should answer any of that.”
Kennedy then referenced an email Gray had written to seven members of the executive committee of The Alliance, including the Big Three, after meeting with two top Washington attorneys at Williams & Connolly, Robert B. Barnett and Richard M. Cooper. Barnett was a well-known lawyer in the city who had negotiated multimillion-dollar book deals for Barack Obama, Laura Bush, and Bob Woodward, among many others.
Kennedy read Gray’s email: “Given their experience and knowledge of the political and legal aspects of dealing with DEA, we updated them on the industry’s recent concerns with DEA’s latest efforts to thwart drug diversion and abuse.” Alliance representatives told Barnett and Cooper that they were considering a legislative approach to address the growing tension with the DEA. Kennedy read a memo that Gray had attached to the email: “Mr. Barnett and Mr. Cooper felt that new legislation to specifically address our concerns with DEA was highly unlikely to be successful due to limited momentum in that direction. Moreover, elected officials tend to steer away from controversy during an election year.” Instead of challenging the DEA, the attorneys told The Alliance that it “may be better off averting DEA actions by taking even stronger compliance measures.”
“Here’s what’s important,” Kennedy told Gray. “They felt that [you] may be better off averting DEA actions by taking even stronger compliance measures. Is that what they told you?”
“You know, if I wrote that at the time, it must have been my impression,” Gray said. “I can’t specifically recall.”
“You want to avert DEA actions. They said maybe your distributors should take even stronger compliance measures. That’s what you wrote,” Kennedy said.
“Okay.”
“I mean, sir, it was pretty simple advice, wasn’t it? They were kind of saying to you and the distributors: If you want to stop getting arrested for robbing banks, maybe you ought to just stop robbing banks. Pretty straightforward, simple, commonsense advice from your lawyers, right?” Kennedy said.
“That’s fine. That’s your interpretation,” Gray said.
Also in 2012, the attorney general in West Virginia sued Cardinal, AmerisourceBergen, and other drug companies in state court. That year, The Alliance had hired APCO Worldwide to start work on its public relations strategy and the “Crisis Playbook,” paying the company an initial $250,000. The Alliance also considered hiring the RAND Corporation, a well-known research organization, to examine the opioid epidemic and propose possible solutions. Kennedy asked Gray why The Alliance had considered hiring RAND. Members of RAND, including analyst Daniel Ellsberg, were famously part of a study team that produced the Pentagon Papers. Ellsberg leaked copies of the papers to the New York Times and the Washington Post in 1971.
Gray said he couldn’t recall engaging RAND.
“You don’t recall that they wanted you folks to fund a study that would actually look for solutions and answers to this real crisis, the opioid epidemic?” Kennedy asked.
“No. I remember we talked with them, but I do not remember the specifics of what was going to be the scope and the direction of the study.”
Kennedy then produced a July 11, 2012, email Gray had written to a senior vice president at Cardinal that outlined the scope of the proposed RAND study. Kennedy again read Gray’s words back to him.
“Another important aspect of the project is the organizing of an expert advisory panel, both to provide primary input on a range of questions related to drug abuse and diversion,” Gray wrote. “I am sitting on this until we hear from the attorneys with respect to the West Virginia litigation to determine what role [HDA] can or cannot play in that effort. We will have to decide whether or not the RAND initiative will be too little too late and whether or not it helps or hinders the West Virginia matter. Furthermore, will [HDA’s] resources be better applied to a much larger PR effort concerning both West Virginia and the rest of the states’ attorneys generals to prevent the West Virginia litigation from spreading to other jurisdictions?”
“Is that what you said to the Cardinal folks?” Kennedy asked.
“That’s what it looks like,” Gray said.
“So, sir, you’re questioning whether to fund the study that might find answers, might save lives, you’re questioning that because it might hurt Cardinal’s position in a lawsuit? Is that what you’re suggesting?” Kennedy asked.
“No. No, we’re not saying that at all,” Gray said. “That—that wasn’t the point of this memo.”
The Alliance eventually decided against retaining RAND.
“Why did you not fund it?” Kennedy asked.
“Well, because it was not clear whether it was going to be useful,” Gray said. “It was too little too late because their timeline was too long and we thought by the time it would come out, the litigation would have moved on and it would be irrelevant.”
“Sir, this is 2012 when you state this, right?”
“Correct.”
“Too little too late in 2012?” Kennedy asked. “Do you know how many more people died in West Virginia after 2012?”
“This was strictly with respect to the trials,” Gray replied.
Kennedy then showed Gray an email he had written to an executive vice president at McKesson, discussing the RAND proposal. Again, Kennedy read: “Upon reviewing their draft contract, we became concerned about the ironclad language with respect to the publication of the study and our ability to control content,” Gray wrote. “I think the key here is when we can stop the report from being published, assuming it reaches conclusions not favorable to our industry. Our outside counsel is currently evaluating this situation. I would like to have your thoughts about this effort since we have not yet committed to anything.”
If the study was unflattering for the industry, Gray wanted to make sure it never saw daylight.
Kennedy continued to read from Gray’s email: “I see the possible value in a study like this if we can prevent final publication of a study unfavorable to our purposes; however, it also falls in the old adage of never ask a question you do not already know the answer to,” Gray wrote.
“Was that your email to McKesson, sir?” Kennedy asked.
“That’s the email.” Gray said it was the way Washington worked. “We do that with all our studies,” he said. “If we get to the point we don’t find it’s useful or helpful or it misrepresents, then we want to be able to push back on the consultants and say, ‘Look, this is not accurate, not fair, whatever.’ And that’s, again, standard procedure we’ve done with all our—all our studies about any subject.”
Rather than hire RAND, The Alliance paid APCO another $265,000 to complete its work on the “Crisis Playbook” and other public relations projects for the group. The Alliance also retained lobbyists and law firms to work on its behalf on Capitol Hill and in statehouses around the country.
For years, The Alliance and its members had complained that the DEA would not provide the distributors with access to ARCOS. Each distributor only knew how much it had shipped to a particular pharmacy. Without access to ARCOS, the companies said they did not have the full picture of what was happening on the ground in communities they served with opioids. Having only limited information, they argued, they could not be accused of bearing responsibility for the epidemic.
Gray, The Alliance, and its members had lodged this complaint about not having access to ARCOS in multiple forums—in its press materials, on its website, and in testimony before Congress.
Kennedy showed Gray an email that Anita Ducca, the Alliance executive, had written to a lobbyist for the group in 2016. Ducca, by then making $245,000 a year, said she was preparing a list of questions for the then–DEA administrator, Michele Leonhart.
Kennedy read: “I don’t know if you want to add this, given some of the sensitivities about whether or not we truly want ARCOS data shared after all,” Ducca wrote to the Alliance lobbyist, Patrick Kelly. “If we got it, what would we do with it?”
“This is a year before you told Congress how critical this was, true?” Kennedy asked.
“Uh-huh.”
“Let me finish,” Kennedy said. He showed Gray an Alliance fact sheet from 2013. “This is your publication. This says, ‘National Epidemic: Prescription Drug Abuse.’ Do you see that?”
“Uh-huh.”
“And it says, ‘The Centers for Disease Control and Prevention reports that one person dies every nineteen minutes in the United States from prescription drug abuse,’” Kennedy said.
“Uh-huh.”
“This is 2013. Do you see that?”
“Uh-huh.”
“So, for context purposes, when the HDA decided to launch a PR program instead of becoming more compliant with the law, they knew that one American was dying every nineteen minutes from an overdose of a prescription drug, right?” Kennedy asked.
“That’s not correct.”
“Every nineteen minutes. They knew it. Is that correct?” Kennedy said as he began to feel his own anguish for the first time in the deposition.
“That’s not necessarily correct,” Gray said.
Kennedy then asked Gray about an Alliance board meeting that was held at The Greenbrier, a popular destination for Washington’s elite.
“Sir, let me ask you this: In September of 2013, the HDA held meetings at The Greenbrier in West Virginia.”
“Uh-huh.”
“Do you know how many pills the Big Three distributed in West Virginia while you were at that meeting? Did you know it?” Kennedy asked.
“I can’t recall whether I knew or not.”
“I’ve got nothing further,” Kennedy said. “Thank you, Mr. Gray.”
Kennedy stood up from his conference table in Cleveland. The screen went blank. He stared out the window as tears streamed down his face.
“My son is gone,” he said. “What a mess.”
He gathered himself and walked into the hallway of his firm, his legal assistant for forty years, Donna Rozman, at his side. She was like Jackson’s second mother. She hugged Kennedy as he began to cry again.
“Great job,” she said, gathering him in her arms.