Chapter 50
Charleston, West Virginia, May 3, 2021
Few places in America were hit harder by the opioid epidemic than Cabell County and the city of Huntington. Over the past decade, there had been seven thousand overdoses and eleven hundred deaths—all in a community of just a hundred thousand. In the tiny towns that lined the Ohio River on the western edge of West Virginia, there were few or no degrees of separation between the living and the dead. Everyone, it seemed, knew someone who had died from prescription opioids. The torrent of pills that poured into the region put unimaginable pressure on paramedics and police officers, foster care workers, nurses and doctors—everyone working on the front lines.
The living and the dead were Paul Farrell’s friends and neighbors, and he was growing impatient. He didn’t want to wait any longer to go to trial. Cabell and his hometown of Huntington were two of his earliest and most important clients. It had been four years since he filed his public nuisance suit on their behalf against the drug companies and he was no closer to seeing the inside of a courtroom than he was in 2018, when Judge Polster held the first MDL hearing in Cleveland. After the distributors and one manufacturer, Teva, settled the first test case in Cleveland on the eve of trial in 2019, paying two Ohio counties $260 million, Paul thought it was his turn to try one of the MDL cases against McKesson, Cardinal, and AmerisourceBergen. He asked Polster to transfer his case back to Judge Faber in Charleston, West Virginia. He then made a risky—and potentially fateful—move. He asked Polster if the case could be tried before Faber, not a jury. In a bench trial, as it’s called, a judge presides over every aspect of the case and hands down the verdict on his own.
Paul thought he could secure a trial before a judge far faster than one before a jury, even though there are clear advantages to bringing an emotionally charged case before residents of a community hit so hard by the epidemic. But unless the companies were staring at a trial date, Paul believed his case would drag on for years. With a date certain, he thought his opponents just might fold, pay up, and walk away from a court fight.
If the companies didn’t settle, Paul still calculated that Faber might be a sympathetic ear. Even though the judge was a lifelong Republican and was seen as a business-friendly, by-the-book jurist, Paul knew that he was above all else a proud Mountaineer. Faber was born in Charleston and attended high school not far from his chambers at the Robert C. Byrd U.S. Courthouse, an imposing seven-story neoclassical building that occupies an entire city block and is named for the longest-serving U.S. senator in American history. A graduate of Yale Law, Faber had served as the U.S. attorney for the Southern District of West Virginia before President George H. W. Bush appointed him to the bench in 1991.
Paul and Faber shared a love for their state—for its people, for fly fishing its streams and rivers, and for cheering on college baseball teams. They also shared a love for history. The judge, seventy-eight, held a doctorate in history from the University of Cambridge, a degree he earned when he was seventy-one.
Like Paul, the judge had seen how prescription pain pills hollowed out Charleston—the state capital, a once-bustling industrial and government hub. Now it looked broken. Abandoned businesses faced empty streets. Gaunt drug users lurked in the city’s parks.
The lawyers for the drug distributors told Polster they weren’t ready for a trial in West Virginia. They needed to draft more discovery demands, take more depositions, file more motions.
Paul was so eager to secure a trial date scheduled in his home state that he made another risky move: He told the defense lawyers that he would be willing to waive punitive damages, which are designed to punish companies for their conduct above the actual damages they had inflicted, if they consented to a nonjury trial before Faber. Paul also consented to a request by Polster to drop his RICO claims. The companies quickly agreed to a bench trial. Paul thought that in the end, punitive damages would be a moot point. The drug distributors would settle—just as they had in Cleveland hours before Mark Lanier was scheduled to deliver his opening statement. If the case did go to trial, Paul planned to ask for $2.5 billion. If the companies wanted to settle, Paul would be willing to take $200 million, maybe less. He kept that card in his back pocket in case he needed to play it.
While most of the plaintiffs’ lawyers sided with Paul’s strategy, not everyone agreed. Jayne Conroy was deeply troubled by the idea of giving Faber so much power in the most important case to reach a courtroom in the MDL. Juries brought fat judgments; judges brought jurisprudence. Not a good idea, she thought.
Unlike Paul, Conroy believed there was no need to hurry. Any hiatus would provide the plaintiffs with more time to find damaging documents and sharpen their lines of attack. A delay would also give them more time to prepare their witnesses for what was sure to be an onslaught of attacks during cross-examinations conducted by some of the finest civil defense lawyers in the nation. Adding to Conroy’s anxiety was that no one really knew whom this judge held responsible for the epidemic. Maybe he thought it was the fault of drug users or corrupt doctors, or both. Maybe he thought the distributors were simply filling legitimate pain pill orders.
More than anything, she believed the trial team would be far better off with jurors deciding the case—men and women from a community that had been crushed by prescription opioids. Many of its residents wanted a reckoning. Conroy also believed it was easier to read jurors—and change tack accordingly—during a lengthy trial. Are they engaged or bored? Are they taking notes or nodding off? Which witnesses are resonating with the jurors? Which ones are failing to connect? With each read of the jury, the lawyers could readjust their strategy and hone their arguments. In Conroy’s experience, judges were far more difficult to decipher. The emotional appeal of the case might mean nothing to Faber. The judge, she worried, could wind up being a foe, not an ally.
Paul remained undeterred. It was his case, his call. As the trial approached, he thought about how history might judge him if he lost—the fool who waived a jury trial in favor of putting his case in the hands of a pro-business judge. The guy who lost the case for his hometown. A Shakespearean tragedy, he thought. But Paul also believed he needed to trust his instincts. They had taken him this far. If he couldn’t convince a judge from West Virginia with an advanced degree in history of the significance of what had happened to the state and the role of the drug distributors, then he wouldn’t be able to convince anyone. If he won, he would establish a record of what took place in the Ohio River valley during the worst drug epidemic in U.S. history. The success of his public nuisance theory, he imagined, would be studied by litigators and law students for generations to come.
The case was scheduled to start on August 31, 2020. But with the Covid-19 pandemic raging that March, Faber pushed the trial to October 19 and then again to January 4, 2021. The defense sought yet another postponement until the fall, but the judge ruled that the trial could proceed that spring by putting social-distancing measures in place and closing the fifth-floor courtroom to the public and the news media. They could watch on a live feed piped into a courtroom on the floor above.
On May 2, 2021, the eve of trial, Paul sat in his hotel room at the Embassy Suites in Charleston, putting the final touches on his opening statement. The plaintiffs’ lawyers had rented out most of the rooms on the third floor of a downtown hotel a short walk from the courthouse; the defense team for Cardinal took up the entire seventh floor. Signs posted in the elevators read, “The 7th floor is closed to public access.” The defense lawyers for the two other companies camped out at the Charleston Marriott Town Center and the Courtyard by Marriott, both of which were also within walking distance of the courthouse. Paul’s room, 315, was littered with sheaves of paper and boxes of documents. Cases of orange Gatorade Zero and diet Mountain Dew lined one of its walls. The lawyers working with him sat around in sweats or shorts and ball caps, assembling the last documents Paul needed for his opening statement.
By now, Paul had lost all hope of securing a settlement. Amid the Covid shutdown and the trial delays, the ground had shifted. Months of secret negotiation sessions between the drug companies and the MDL plaintiffs had produced a proposed $26 billion global settlement with the three thousand towns, cities, and counties suing the industry. Under the deal, those plaintiffs would receive payouts from the drug companies over eighteen years. The dollar amount seemed like a lot, but when it was divided up under a complex formula, places like Huntington would receive next to nothing. Paul carved his case out of the proposed settlement.
It’s terrible for West Virginia, Paul thought. He wanted to do more for his clients and the people of his hometown. They had been hit harder than anyone else in the nation. With the proposal pending, he knew the distributors would never settle with Huntington and Cabell for hundreds of millions, while the other cities, towns, and counties around the country would receive a fraction of that amount. If the companies settled with Paul, why would the other municipalities agree to sign on to a deal that would pay them so much less?
Paul believed he had one option: take his chances at trial before Faber. We’re going to have a reckoning in West Virginia, county by county by county, he thought.
The next morning at 9:30, Paul stepped confidently to the lectern in Faber’s courtroom to deliver his opening statement. He wore a dark gray suit and a baby blue tie, along with a tie pin and colorful socks Paul Hanly had given him for his opening. Certain of his own bona fides as a student of history, he hoped to appeal to Faber’s avocation—in language no lawyer would ever use before a jury. “Despite its complexity, the law of parsimony or Occam’s philosophical razor suggests the simplest explanation is usually the right one,” Paul began. “Judge, we intend to prove the simple truth that the distributor defendants sold a mountain of opium pills into our community, fueling the modern opioid epidemic.
“I’ve told my clients you are a student of history, so perhaps this analogy is apt,” he continued. “Patrick Henry and John Marshall were contemporaries. They were both lawyers. One was known for his power of persuasion, evoking fiery emotion; the other, methodical and convincing. We believe our aim in these proceedings is to follow the path of the latter, to be methodical and convincing. I believe that we will show you facts upon which you will record in the permanent record as the historian. We will present direct evidence from primary sources, as well as firsthand accounts of what happened here, and seek the truth in this forum.”
Faber remained as stone-faced as ever as he stared down from the bench, wisps of white hair combed over his balding head.
The trial team had positioned a large white posterboard on an easel in the courtroom. It was a color-coded fever chart, its lines chronicling the ever-increasing numbers of pain pills the Big Three distributors shipped into Huntington and Cabell between 2006 and 2014—eighty-one million doses, Paul told the judge. The chart looked like a mountain, rising dramatically as more and more pills poured into the towns and hollers of West Virginia. At each elevation, he tacked small black flags his team had fashioned out of cardstock onto the poster they nicknamed “Pill Mountain.” Each flag, Paul told the judge, signified a moment in time that should have put the drug companies on notice about the damage the drugs were doing to the community.
He explained that his public nuisance case against McKesson, Cardinal, and AmerisourceBergen rested on four pillars: the volume of pills; the warnings the companies received about their conduct; the addictive nature of opium; and the epidemic itself.
“Through transparency, we can get visibility into the volume and into the conduct. Through transparency, once we establish conduct and consequences, we’re going to ask you for accountability,” he said.
Paul invoked the floods that had periodically devastated West Virginia’s communities since the founding of the state in 1863. “We’ve experienced a new flood. And it’s a flood of opium pills into our community,” he said. “The data that we intend to present to you will establish a mountain of opium pills sold by the Big Three into Cabell, which resulted in the four horsemen of the epidemic. We will present to you evidence that, in the past ten years, there have been seven thousand overdoses in Huntington-Cabell and one thousand one hundred opioid-related deaths.”
Paul told Faber that despite the rising number of overdoses and the drumbeat of warnings from the DEA and the courts, the companies did little to change their behavior. Instead, he said, they enlisted The Alliance and lobbyists and members of Congress to undermine the DEA by changing the law. The industry’s response, he said, was akin to the “Empire striking back.”
While the companies shipped increasing amounts of pills, some of their executives made fun of the opioid epidemic and the people of Appalachia, Paul told Faber, citing the “Pillbillies” parody. He thought it was a chilling example of how a corporate culture had grown numb to its responsibilities to protect the public.
“With great power comes great responsibility,” Paul concluded, “and they blew it.”
Paul’s co-counsel in the trial, Anne McGinness Kearse, a seasoned litigator for South Carolina-based Motley Rice, with a broad smile and curly red hair, stepped to the lectern. It fell on her to sell Faber on what was called the “Gateway Theory”—the proposition that opioids, once they became more difficult to acquire, inexorably led addicts to heroin and fentanyl. She argued that the costs to local governments from the vast majority of overdoses and deaths, whether from opioids or other drugs, were the responsibility of the distributors. She asked for $2.5 billion to fund an “abatement plan” that would cover the damages to the communities and help them set up treatment programs.
More than anything, their case depended on a central idea: The opioid epidemic was not a separate phenomenon from the explosion of heroin and fentanyl addiction. It was the fuse that ignited the explosives. Even if the plaintiffs convinced Faber that the companies had caused a public nuisance, they could walk away with little in damages if the plaintiffs failed to also persuade the judge of their Gateway Theory.
“A fire was lit by the oversupply of prescription opioids and pills coming into their community and fueled by the illicit drugs, including heroin and fentanyl,” Kearse said. “The prescription opioid misuse and use of heroin and illicitly manufactured fentanyl were intertwined and deeply troubling.”
Paul felt confident. The table had been set.
Across from him was an all-star team of lawyers the drug companies had assembled for the trial. They included Enu Mainigi, the Williams & Connolly lawyer representing Cardinal; Robert A. Nicholas, a veteran trial attorney for Reed Smith retained by AmerisourceBergen; and Paul W. Schmidt, one of the top litigators at Covington hired to represent McKesson. They had each notched numerous victories for clients in the financial services and pharmaceutical industries. With his shaved head and intense stare, Schmidt looked like Bruce Willis from Live Free or Die Hard dressed in a finely tailored suit. The National Law Journal had named him one of the country’s top corporate lawyers, earning him the moniker “the Swiss Army Knife of Litigation.”
All three defense lawyers made many of the same points during their opening statements. Drug distributors do not manufacture opioids. They do not write prescriptions. They do not dispense drugs. They are logistics companies, nothing more. They also noted that the DEA determines the quantity of narcotics that can be manufactured each year. If the DEA was so concerned, they asked, why didn’t the agency cut the production quotas for oxycodone and hydrocodone?
“Why is McKesson in this case?” Schmidt asked the judge. “It’s not in this case because it prescribes opioids. It doesn’t. It’s not in this case because it’s a named marketing defendant in the complaint governing this case. It’s not. It’s not in this case because it approves or sets quotas for opioids. That’s the DEA and the FDA. It doesn’t dispense opioids. That’s pharmacies. And it doesn’t approve the doctors and the pharmacists who handle opioids. That’s regulators. This is the distribution chain.
“Their lawsuit depends on ignoring almost every part of this chain.”
Schmidt, Mainigi, and Nicholas repeated another central theme of their defense: Purdue Pharma and other drug manufacturers changed the narrative in America about the treatment of pain, making the large volumes of pills possible. Treating pain became a priority in the medical community. Doctors were judged on whether they were appropriately addressing the pain needs of their patients, and pain had become recognized as the fifth vital sign by leading medical institutions, the defense attorneys reminded the judge. “Public health organizations and medical groups picked up that view,” Schmidt said. “State medical boards around the country picked up on that idea, including here in West Virginia.”
Schmidt then produced a copy of a booklet published by the West Virginia Board of Medicine in 2005. In it, the board said, the use of opioids to treat pain was “essential.” Three years later, the board published another booklet for physicians. Schmidt read a passage for Faber:
“There is no debate among public health experts about the under-treatment of pain, which has been recognized as a public health crisis for decades. The cost of under-treated pain in dollars is astronomical, but the cost in human suffering is immeasurable. Turning away from patients in pain simply is not an option.”
The booklet was published around the time that Joe Rannazzisi and the DEA started to crack down on the drug companies. The volume of pills coming into Huntington and Cabell wasn’t because of the distributors, Schmidt said. “It was because of what doctors were being told by their own board of medicine and how distributors were responding to the decisions that doctors were making in the form of prescriptions.”
Schmidt then trained his sights on Joe. He noted that Joe and the DEA had long recognized the importance of drug companies like McKesson.
“This is congressional testimony from Mr. Rannazzisi,” Schmidt told the judge. He quoted what Joe said about companies such as McKesson: “It is vital that an adequate and uninterrupted supply of pharmaceutical controlled substances be available for effective patient care.”
Each of the three defense attorneys invoked Joe’s name during their opening, telling the judge that he was a renegade DEA agent who chose to fight the industry rather than try to solve the opioid epidemic. It seemed as though the defense attorneys couldn’t wait for the day when Joe would take the witness stand.
Neither could Joe. He had been waiting for nearly six years.