Chapter 51
Charleston, West Virginia, May 13, 2021
Paul Farrell had thought Judge Faber would be an ally. He’d even persuaded some of the members of his trial team, but his colleagues were no longer sure. Faber began to scoff at key pieces of Paul’s evidence and courtroom strategy.
On May 13, the ninth day of the trial, Paul called Chris Zimmerman to the stand. Ten years earlier, the vice president of regulatory affairs for AmerisourceBergen had shared the “Pillbillies” parody email with his colleagues at the company. Even though Zimmerman was a drug company executive, Paul hoped to turn him into a witness to help the plaintiffs. Zimmerman had other ideas.
“The first thing I’d like to identify—I hope I get this right—it’s to the tune of The Beverly Hillbillies, but it says ‘A poor mountaineer.’ Do you see that?” Paul asked.
“I see that,” Zimmerman said.
“Sir, do you acknowledge that here in West Virginia that we sometimes recognize ourself or refer to ourselves as Mountaineers?”
“Yes.”
“Do you know what the mascot for West Virginia University is?”
“Mountaineers.”
“And it’s making a reference to keeping his habit fed. But what, what I’m particularly interested in is this last sentence. Will you read that aloud, please?”
“‘About pills that is, Hillbilly Heroin’? That one?” Zimmerman asked.
“Yes. Then it says ‘OC.’ Do you know what OC means?”
“Yeah. The term early on OxyContin, what is also referred—I have seen in several articles as hillbilly heroin, yes.”
“So, you’ll recognize or acknowledge that at least in 2011, hillbilly heroin and pills, prescription pills, have some reference point to each other?” Paul asked.
“Could you repeat the question, please?”
“Do you know what hillbilly heroin is?”
“I’ve heard OxyContin referred to as hillbilly heroin, yes.”
“So, in common parlance, you understand that there is a connection between the reference in this parody you circulated between hillbilly heroin and prescription opiates?”
“Right, to the government affairs folks I did. That’s correct.”
Paul had planned to introduce several other incendiary emails that AmerisourceBergen executives passed around during the height of the epidemic. In one, a company investigator forwarded an email titled “Oxycontin for kids” to one of his colleagues. It contained a parody of a Kellogg’s Honey Smacks cereal box. Instead, the cereal was called “Smack”—slang for heroin—and the box pictured a cartoon character holding a hypodermic needle in one hand, a spoonful of pills in the other.
He also wanted to introduce the email exchange between Steve Mays, the regulatory affairs director, and Cathy Marcum, the corporate security director, about the Kentucky lawmakers’ efforts to tighten pain pill regulations.
“One of the hillbilly’s [sic] must have learned how to read,” Marcum wrote back, adding a smiley face emoji.
“So, your conduct and your behavior, would you agree with me, has an influence on the corporate culture?” Paul asked.
Zimmerman was ready. “I’m sure you’re going to probably show me some more emails. But I can tell you the culture at [AmerisourceBergen] is of the highest caliber. And if you pick some emails out of hundreds of thousands of emails and millions of pages of documents and some of them, you know, are educational, but some of them, unfortunately, I would have rather they didn’t circulate some of the information…
“These people email back and forth quite a bit. And, you know, I wish they wouldn’t send those type of emails. Unfortunately, they did and, you know, I can apologize for that behavior. But it was sent in a joking manner and not as a description of the environment they’re under. But, I mean, I’ll sit here and you can show me more emails and I’ll respond to them.
“But, you know, I think some of the frustration our team… is that we’ve been working tirelessly—I’ve been doing it for thirty-one years for the whole reason to keep the supply chain safe and secure. And whether you, whether you—I take it personally when you attack my credibility that way… And, you know, I do apologize to the court for some of the language and some of the things that are contained in them.”
Robert Nicholas, the lawyer for AmerisourceBergen, saw his opening. Tall, with salt-and-pepper hair, Nicholas objected to the continued introduction of the emails, arguing that they were not relevant to the public nuisance case, and introducing the same types of emails was redundant—or, in legal terms, cumulative—and grounds to keep them out of the trial.
“I’m going to sustain the objection,” Faber ruled.
“Can I ask for the basis of your sustaining the objection, Judge, for the record?” Paul asked.
“It’s cumulative. You’re showing what you obviously claim to be a cavalier attitude on the part of this defendant towards the drug problem and—isn’t that why you’re offering it?”
“Yes, Your Honor.”
“And this is cumulative to the other documents and I’m not—well, I don’t want to comment on the evidence, but I’m not sure how much this proves, you know. People break the stress of their jobs by humor, and this might be tasteless, but I suppose it is relevant to the company’s attitude,” Faber said.
“That’s my point, judge.”
“This is cumulative and I’m going to sustain the objection,” Faber ruled.
“Judge, for the record, we’re trying to prove that it is more than just stress relief,” Paul said. “We’re trying to establish that it is a pattern of conduct by those people charged with protecting our community. And they’re circulating emails disparaging hillbillies.”
“Well, I’ve ruled on this document, Mr. Farrell, and I probably said too much about it.”
The ruling on the emails was followed by another setback, keeping out testimony about The Alliance on the grounds that its lobbying activity was protected by the First Amendment. Another plank of Paul’s case was gone. The way the trial was playing out, Jayne Conroy thought she might have been right all along. A bench trial was beginning to look like a bad bet.
Following Zimmerman’s testimony, the Mountain State Spotlight, a West Virginia news organization, published a story about the inflammatory emails with the headline: “As opioid epidemic raged, drug company executives made fun of West Virginians.” Other media outlets quickly did their own pieces.
Rex Chapman, a former University of Kentucky basketball phenom and NBA player who was once addicted to opioids, tweeted out the story to his 1.1 million followers. “We addicts are no more than common trash to these drug companies and politicians,” Chapman wrote. “They don’t give a shit at all about opioid addicts. And THEY hooked us.”
He followed that tweet with another. “This is Chris Zimmerman. Senior Vice President—AmerisourceBergen…” Chapman attached four photographs of Zimmerman, one with his wife. The comments on Chapman’s feed became increasingly hostile and threatening.
“Sick bastards,” one wrote.
“Monsters.”
“Time for him to go.”
On Monday, May 17, Paul spotted Nicholas standing near the lectern in the courtroom before court convened.
“There’s a matter I want to address with the court,” Nicholas told him.
“What is it?” Paul asked.
Nicholas glared back. “Death threats have been made against Mr. Zimmerman and his family, and you are adding fuel to the fire,” Nicholas said.
“I have no fucking idea what you’re talking about,” Paul said.
Nicholas asked Faber to cut the live feed to the overflow courtroom on the sixth floor where the journalists and other lawyers were watching the trial. He also asked Faber to seal the official transcript of the courtroom proceedings. Faber agreed.
Nicholas told the judge that Zimmerman and his family had been the subject of death threats and that the stories about his testimony had been posted on the website and the Twitter and Facebook feeds of Paul’s law firm. Paul said he had no idea. One of his assistants who handled social media for the firm had posted the article from the Mountain State Spotlight, but not Chapman’s tweets. Faber summoned the lawyers to his chambers for an off-the-record meeting.
“Your Honor, it is with great regret and hesitancy I have to bring to your attention the fact that the email that was entered into evidence was the subject of strong social media, and death threats have been made on my client and his family and his wife and they fear for their safety,” Nicholas said. “Our people are concerned for their physical safety, and Mr. Farrell has a website that is publishing this stuff and that we just think it’s unacceptable.”
Paul explained that his law firm posted the article, not the tweets.
“Is this something I should get the U.S. Marshals to investigate?” Faber asked.
“Judge, if they’re in fear for their physical safety, then yes, you should get the U.S. Marshals to investigate,” Paul said. “With all due respect, the emotions that you are seeing on social media, which I haven’t seen, the emotions that you’re seeing, are because there are a number of families who have lost children to this epidemic. So, while I don’t wish violence on anybody, how could you expect to show up in West Virginia with the volume of pills and the devastation that occurred, and the people that are in charge of our safety write that email? How could you not expect there to be a visceral response?”
“Mr. Farrell, it’s one thing to have a response, it’s another to have death threats,” the judge said. “How many more emails like this do you have?”
“I’ve got several.”
“Why do you need them?”
“I’m trying to demonstrate how callous they were in the exercise of their duty.”
The judge told Paul he had already ruled. He wasn’t going to permit the introduction of any more emails circulated by AmerisourceBergen executives. He ordered the lawyers back into the courtroom. Paul’s plan to portray Zimmerman as a heartless corporate executive had backfired.
Eleven days later, on the morning of May 24, at nine o’clock sharp, Faber took his seat on the bench.
“Are we ready to go, Mr. Farrell?” he asked.
“Yes, if I may have a moment, Judge,” Paul said as he stood at the lectern.
Two days earlier, Paul Hanly died at his home in Miami Beach, surrounded by his family and Jayne Conroy. He had been diagnosed with anaplastic thyroid cancer five months earlier, a rare and aggressive form of cancer. The tumor in his throat slowly suffocated him. He was seventy.
“We mark the passing of Mr. Paul Hanly Jr.,” Paul said. “Mr. Hanly was one of the founding fathers of this litigation and served as its co-lead. He was our colleague, our friend, and my mentor. He was loved and will be missed.”
“Thank you, Mr. Farrell,” Faber said. “Your comments will be included in the records of the court.”
Several defense lawyers in the courtroom walked over to Paul and his team to express their condolences. They also called and emailed Conroy with stories about how Hanly had treated them with respect and how much they admired his commanding and calm demeanor.
In Cleveland, Judge Polster told a reporter that Hanly was “an excellent lawyer, a consummate professional” in what had probably been “the most complicated constellation of litigation that’s come to the federal court in my tenure.
“He fought hard. He fought fairly. And that’s what you want from a lawyer, from an advocate,” Polster said.
The plaintiffs’ trial team was devastated—no one more so than Conroy. She had bought a second home in Miami down the street from Hanly shortly before he was diagnosed. The day of his death, she sent an email to the team. “Paul was a trail blazer in the legal industry,” she wrote. “He was a brilliant, gifted trial lawyer with a near photographic memory. His prowess in the courtroom was rivaled only by the boldness of his wardrobe. As one of the first lawyers to file a lawsuit nearly 20 years ago against opioid manufacturers for their roles in the opioid epidemic, it is this fight that will stand as his life’s work and legacy.”
A few months earlier, Paul Farrell and his wife, Jacqueline, had traveled to Miami to see Hanly. Paul brought a six-pack of Beck’s, Hanly’s favorite beer. Even though he had trouble speaking, Hanly dressed for the occasion—a white Cuban guayabera shirt, a floral ascot wrapped around his neck. They talked and laughed.
After thirty minutes, Hanly asked if he could break off the conversation. He was growing fatigued.
“You have taught me so much,” Paul told him. “I’ve tried to follow through with what you’ve taught me.”
“You still have a ways to go,” Hanly deadpanned.
The two hugged each other and said goodbye.
“I love you,” Paul said.