Chapter 54
Charleston, West Virginia, July 27, 2021
For many members of the plaintiffs’ trial team, the summer-long stay at the Embassy Suites felt like a stint in prison. They couldn’t wait for their long, tortuous sentences to end. It had been thirteen weeks since the trial began on May 3, and they were tired of seeing the same faces in the hotel atrium, eating the same food at the Tidewater Grill and Soho’s, walking by the same street people as they trudged past the Charleston Town Center, the Outback Steakhouse, and the sketchy city bus stop on their way to the federal courthouse. There were few respites from the twenty-hour workdays. On some mornings and evenings, the attorneys sought refuge on the Sunrise Carriage Trail, strolling beneath its canopy of trees, past the site where two Civil War Union spies were executed and up the gently sloping switchbacks to the grounds of the old governor’s mansion overlooking the Kanawha River and the once-grand capital city.
After nearly three months in the courtroom and the testimony of forty witnesses, Paul Farrell knew that the outcome of his case was far from certain. Judge Faber had handed down several unfavorable rulings and made some worrisome remarks from the bench. None was more troubling than when he told the plaintiffs’ attorneys that he thought their evidence on the Gateway Theory was “kind of thin.”
On the morning of Tuesday, July 27, the importance of the plaintiffs’ closing arguments—split between Paul and Anne Kearse, the trial lawyer from Motley Rice, couldn’t have loomed larger. A successful close, tying together the months of often tedious testimony into a convincing narrative, might favorably tip the case. A poorly constructed argument that failed to confront the formidable defenses raised by the company’s lawyers could be ruinous.
More than the outcome of this case was on the line. If the plaintiffs couldn’t win in West Virginia, could they win anywhere?
At precisely nine that morning, Paul stepped to the lectern.
“Eighty-one million pills distributed to a community of a hundred thousand people or less isn’t a substantial factor in the opioid epidemic. It will cause an opioid epidemic. I want to start with that premise,” Paul told the judge. “There is no one who will stand up and has testified in this court that the number eighty-one million is wrong.”
Paul, idiosyncratic again in his approach, told Faber that he had drawn up a mock jury verdict form to help guide his closing argument and frame the case. The first question he posed: Is there an opioid epidemic in Huntington and Cabell County? He reminded Faber of the number of people who had died during the past decade in a community of one hundred thousand people.
“One thousand, one hundred, and fifty-one lost souls to the opioid epidemic,” he said.
Paul next asked: Did the epidemic have an impact on the health and safety of the community? He recounted several pieces of testimony: Joe Rannazzisi asserting that the industry created an imminent danger by failing to maintain effective controls over its drugs. Nate Hartle, McKesson’s vice president for regulatory affairs and compliance, conceding that his company was “partially” responsible for prescription drug abuse. Chris Zimmerman, who held the same position at AmerisourceBergen, agreeing that the opioid epidemic had a devastating impact.
“The heroin and opioid epidemic is one of the great public health problems of our time. Period,” Paul said. “That’s a fact.”
He turned to another question: Did the diversion of prescription drugs give rise to the epidemic? He pointed out that Joe had repeatedly warned the distributors that the diversion of their drugs from the closed supply chain had dangerous and potentially lethal consequences. He said Hartle conceded that the likelihood that drugs would be siphoned off to the black market increased as distributors shipped more and more pills around the nation.
“We have put on sufficient evidence for this court to find that nobody can dispute that diversion is a substantial factor in the opioid epidemic in Huntington–Cabell County, in West Virginia, and in the United States,” Paul said.
With each question, Paul settled into a rhythm, confident that his closing was coming together. He asked the judge: Do drug distributors have a duty to maintain effective controls over their opioids? And did the lax distribution lead inevitably to a subsequent heroin epidemic when opioids became more difficult to acquire for users?
“What do you think is going to happen anywhere in America if you dump eighty-one million pills of pharmaceutical-grade heroin into a community of one hundred thousand?” Paul asked, his voice rising in the courtroom. “How can anybody say that heroin is too remote of a consequence after dumping eighty-one million pills of the same molecule into a community?”
Paul acknowledged that he and his team had spent part of the trial taking Faber down a “rabbit hole” into the confounding world of suspicious-order monitoring systems. “This is a point that we probably tested your patience with, but it was necessary for a very important reason. The systems the defendants were using were nationwide,” Paul said. “What that means is that there was a corporate headquarters policy. There was a single system and it applied to every distribution center in America.”
The drug distributors set thresholds or limits for how much oxycodone and hydrocodone their pharmacy store clients could order, he said. But if those clients ordered more drugs, exceeding the thresholds, the companies simply raised the limits and shipped more doses. “It’s undisputed in the record: Once the system was flagged, they were under an obligation to freeze the account,” Paul said.
By not taking that step, he said, and by continuing to ship, the result was entirely predictable—more people would become addicted, and their communities would ultimately be devastated by overdoses and destroyed families.
“This is the foreseeable life cycle when you open Pandora’s box and you let out the opium. It has consequences,” Paul said. “What their arguments are, are remoteness, that it’s not foreseeable that dumping eighty-one million pills into a community of less than one hundred thousand is going to have adverse consequences. We don’t believe that this is credible. The second thing that they do is they’re going to say, ‘Okay, if we are responsible for the entire opioid epidemic, so are a bunch of other people.’ And they blame the manufacturers, and bad doctors, and good doctors, and pharmacies, and the State of West Virginia, or the Board of Pharmacy, the Board of Medicine, PEIA [the West Virginia Public Employees Insurance Agency], the FDA for approving the daggone stuff, and the DEA.”
Paul asked Faber to hold the distributors accountable for their specific role in the epidemic and award enough money to help Huntington and Cabell County abate the damage—2.5 billion over fifteen years.
It was Kearse’s turn. She opened by hammering home the urgency of the case. They weren’t just talking about something that had happened in the past—the city of Huntington and Cabell County were still in the midst of an opioid epidemic.
Kearse reminded the judge of testimony by several city and county officials, including police and fire chiefs, first responders, and the mayor of Huntington, Steve Williams. They said they watched in horror as the people they served, already addicted to prescription pills, started to shoot and snort heroin. Their go-to drug, whether it was oxycodone or hydrocodone, had become too scarce and too expensive to acquire on the street.
“Many people who have developed opioid addictions due to abuse of prescription medication turn to heroin,” Kearse told the judge. “This is from the folks on the ground seeing this. It’s not expert testimony, but what they’re seeing in their community. Many people who have developed opioid addictions due to abuse of prescription medication turn to heroin due to the lower price, thirty to eighty dollars for a prescription pill compared to twenty to twenty-five for a dosage unit of heroin.”
It was unclear if Faber still thought the argument “thin.” He sat expressionless as Kearse concluded.
Each defense attorney was given two hours for their closings. Robert Nicholas, the attorney for AmerisourceBergen, went first and began with a simple argument that those who followed would echo: Licensed physicians dealt with pain in Huntington and Cabell by prescribing opioids, and 99 percent of them did so in good faith, using their professional judgment and the medical standards of the day. Licensed pharmacies dispensed the opioids that the doctors prescribed. The distributors did not second-guess those judgments by stopping shipments and withholding medicine.
“They weren’t qualified to do that,” Nicholas told the judge. “It wasn’t their place to do that.”
He noted that the plaintiffs took six weeks to present their case, but they never produced evidence of unreasonable conduct by the distributors.
“They shipped medicine to licensed pharmacies pursuant to lawful prescriptions of an FDA-approved medication written by licensed doctors and the distribution numbers and the prescription numbers lined up almost exactly 1:1 because prescribing drove distribution,” he argued. “Remember, distributors don’t see individual prescriptions. They don’t see patient information. They don’t communicate with doctors. They’re shipping orders in bulk.”
If the companies cut off the supply, a random group of patients with opioid prescriptions written by DEA-registered doctors—patients in hospice care or battling debilitating pain—would be unable to get their medicine, Nicholas said.
AmerisourceBergen, like the other distributors, followed the suspicious order monitoring requirement. Nicholas said his client reported suspicious orders of pills to the DEA. But the definition of what constituted a suspicious order had never been defined by the agency, and the requirement to withhold such orders was never enshrined in federal regulations, he said.
Nicholas then attacked the testimony of former DEA investigator James Rafalski. “This expert looked at you and everyone with a straight face and he testified that these distributors should have blocked 90 percent of the opioid medications to Cabell and Huntington during all of the years in issue,” Nicholas said. “That was outrageous, and it was preposterous. It was outrageous because it would have had the absurd and heartless effect of depriving almost everyone in the county and in the city from medicine to treat their pain as prescribed by doctors. It was preposterous because it assumed that almost all of the doctors in the county and in the city didn’t know what they were doing or had bad intentions. Mr. Rafalski should be afforded no credibility.”
Nicholas then went after Joe Rannazzisi. He noted that Joe had made the same argument that the distributors were making—if the DEA cut the volume of opioids drug manufacturers were permitted to produce, legitimate pain patients would suffer. The same was true for the distributors, he said. If they blocked shipments, real pain patients would be unable to obtain their medicine.
“This may be the most frustrating testimony in the entire case,” Nicholas told the judge. “Because this is a perfect statement of our position as well, and it’s what we’ve been saying all along. If we arbitrarily limit the supply, people who need their medication will not receive it. They will be without it. We have to be very careful when blocking shipments because we have no way of knowing or controlling who would have access to the limited supply and who would be left empty-handed.”
It was “an erroneous oversimplification” for the plaintiffs to claim that the way to lower the volume of pills was to simply block opioid shipments. “To borrow the words of Mr. Rannazzisi, ‘It doesn’t work that way,’” Nicholas said.
On the afternoon of Wednesday, July 28, Paul returned to the podium to deliver the final words of the trial. He had made another unilateral and risky move, scuttling a thirty-two-slide rebuttal laying out the key elements of the case and scheduled to last an hour, and replacing it with eight slides and a story he wanted to share with Faber that would last just twenty-six minutes. But before he began, Paul had some scores to settle.
“Over the past several hours, it’s been difficult to sit by and listen to some of my colleagues. On behalf of the City of Huntington and the Cabell County Commission, we take great offense at some of the misrepresentations,” Paul told the judge. “This isn’t a high school debate where we’re trying to keep a scorecard of points. But there are a couple of individual points that I do want to bring to this court’s attention.”
He said the defense lawyers never mentioned the ruling in the Masters case and the responsibilities it laid out for the drug distributors of the nation. They never mentioned their duty to maintain effective controls over narcotics and the evidence that supply does drive demand when it comes to drugs.
“We’re talking about opium. To pretend that the supply of opium doesn’t create addiction and demand totally ignores the entire premise of why we’ve regulated this drug,” he said. “It is a metastasized cancer in our body politic and will continue to grow. Opium has been around since the Byzantine era. It has toppled governments because it, by its very nature, is addictive. You can’t get opioid addicts without a supply of opium.”
Paul then defended Rafalski. “I want to take a brief minute and make a comment about James Rafalski because he’s a good man and I think his credibility has been disparaged by the defendants,” Paul told the judge. “What Mr. Rafalski’s testimony is and what his common sense is, that if you get an order for 180,000 pills, somebody should probably stop and check and make sure that this isn’t a mistake because it seems like it’s a clerical mistake.”
Paul turned his attention back to the judge and said he had been thinking about what he wanted to say to Faber at the close of the trial. He asked his trial team to pull up the first slide in his abbreviated rebuttal. It was a photograph of a fly fisherman, casting his line across a river.
“So, I like to fish, and I understand that you may have, too,” Paul said. He told Faber that he and his wife used to travel to a little town named Barnum, West Virginia, near the Maryland border. It’s on the south fork of the Potomac River, near the Jennings Randolph dam.
“I know it well, Mr. Farrell,” Faber said.
Paul told the judge that he used to monitor the subtle changes in the water levels there, coming to understand that small changes can portend big things.
“That, to me, is what I hear when I hear the defendants talk about their monitoring and the subtle changes in the practice of medicine,” he said. “But this isn’t what happened in Huntington–Cabell County, West Virginia. What happened was something different.”
Another photograph then appeared on the screen in the courtroom—the opening of the floodgates of the Summersville Dam on the 105-mile-long Gauley River in West Virginia. Three gigantic plumes of water blasted out of the dam, dwarfing the spectators watching from the banks of the river and above the dam.
Faber sighed, burying his head in his hands.
“So, here—here’s kind of the metaphor that I want to draw about what the defendants are saying,” Paul soldiered on. “The defendants are the dam and they’re standing up on top of the bridge there. They’re standing up above the water and they’re looking down. And the volume of water that comes out is under their control. Now, this isn’t an issue of the safety valve failed. This volume of water here at the—at the bottom, at the bottom of Summersville Lake here, somebody turned it on. It’s not an accident. They had to turn it open.”
Not only are the companies supposed to monitor the subtle changes in the drug distribution world, Paul told the judge, they’re also required to prevent blowouts.
“And that’s what we had in this case, was we had a blowout. We had eighty-one million pills that came flooding into our community, and it wasn’t by accident, Judge. Somebody delivered those pills here and it was the distributors. Their argument that they were all prescriptions written by doctors is insufficient to immunize them or [provide] a safe harbor for their regulatory responsibilities. If they don’t want to be responsible for controlling the volume of prescription opioids, they should get out of the business. The reason they don’t want to get out of the business is they don’t want to lose the bigger accounts. This is a component of their job, to watch for, to monitor—design, monitor, and to block orders that are suspicious. And if the number of pills that came into Huntington–Cabell County, West Virginia, isn’t suspicious, I don’t know what is.”
Paul told the judge he wanted to close with the biblical tale of the ten lepers, a tale he often told to anyone who would listen—lawyers, journalists, government officials.
“Leprosy didn’t define them as lepers, it’s what they were suffering from. And this distinction makes a lot of difference in the mission that we have because we have human souls that are suffering from addiction,” Paul said. “So, you see, I have not lost faith that we can cleanse our community, Judge, but faith alone may be insufficient. What we need to do is a lot of work. And after four years, my work is now done, and I truly believe in my heart that I have done all that I can, and now we entrust this work to your capable hands.
“It’s either going to be magic or tragic.”
As the lawyers and members of the news media made their way out of the courthouse, a group of defense lawyers headed to a nearby parking garage. Once inside, they began celebrating, high-fiving each other. On the steps of the courthouse, Paul stood by himself. His trial team had scattered. He was surrounded by a small group of reporters, most of them from local news outlets. He told them he had done the best he could for his community. He appeared chastened, no longer confident he had defeated his opponents and won the case.
Paul slowly walked away from the courthouse, past the Charleston Town Center, and into the Embassy Suites for one final stay in the city. He knew Faber’s decision could be months away.
Paul recalled the last words he said to Faber in his closing: “It’s either going to be magic or tragic.”