Charleston, West Virginia, March 2022
When Rich Bishoff graduated from the Pittsburgh Institute of Mortuary Science with high honors in 1987, he thought he was prepared for a life comforting the families of the dead. He learned how to embalm bodies and make them appear at peace and full of grace for wakes. He learned how to orchestrate church services and coordinate funeral processions. Most important, he learned how to care for the heartbroken people left behind. It was never easy, but he believed he had chosen one of the highest callings in any community—helping family members in the aftermath of death, from cancer, car crashes, heart attacks, and freak accidents. Every moment in life mattered, he told them, and this moment of profound sorrow, like all others, would one day pass.
Bishoff, bald with a round face, graying mustache, and soft blue eyes, began his career as a funeral home apprentice in Charleston, West Virginia. He met the woman he would marry, Janie, in South Charleston. They raised two daughters in the bucolic South Hills neighborhood overlooking the Kanawha River and the capital city built along its banks. Originally from Oakland, Maryland, near the West Virginia border, Bishoff fell for the charms of Charleston. He joined the River Ridge Church. He served on the board of the city’s hospice care center. He presided over the Kanawha City Lions Club and coached the Horace Mann Middle School girls’ softball team. He found himself at West Virginia’s epicenter of culture, commerce, and politics. He also found himself in the company of some of the hardest-working people he had ever known.
But by the 1990s, the Kanawha Valley, like many regions of West Virginia, had descended into despair. The state’s coal industry, which once employed nearly eight hundred thousand people in the 1920s, had collapsed. Today, about twelve thousand work in the industry. Jobs at the chemical plants that lined the valley—Union Carbide, Dow Chemical, Bayer—disappeared as the companies scaled back or shuttered their operations. By the 2000s, Charleston suffered another crippling blow as hundreds of thousands of doses of oxycodone and hydrocodone began to pour onto the streets of the city and the surrounding communities. Soon, West Virginia had the nation’s highest drug addiction rate, the lowest life expectancy, and the largest number of deaths from opioid overdoses.
Two decades into his career, Bishoff realized that no amount of training could have prepared him for the grief that was strangling his community. A new way of life and death had taken hold in Charleston. The calls came at all hours, nearly every day—corpses found in bathrooms, in parking lots, on kitchen floors. Many families couldn’t afford to pay for the funerals. The state’s burial benefits department had run out of money. Bishoff told the grieving and the impoverished they had one option: direct cremation. Family members looked back with blank expressions, unable to fathom what he had just told them. He explained that he would take the corpses of their loved ones directly to the crematorium and return their ashes. Direct cremations had become the modern-day potter’s field of Charleston.
Bishoff, himself a father of two, had trouble finding the right words for the families. How do I console parents who lost a child to an overdose? he wondered. What do I say to a child or a teenager whose father or mother is gone? Steadying families and supporting them as they dealt with their losses to opioids became increasingly difficult. He compared the epidemic to a never-ending tornado, tearing through lives, families, the entire community. But there was no Federal Emergency Management Agency rolling into town with cash to help people rebuild. All that was left behind was the debris of lives lost and the seething anger that suffocated their survivors.
The anger was first directed at the users and then, slowly but with growing intensity, at the companies that many of the families came to believe were responsible—like the Big Three distributors on trial in Charleston during the summer of 2021. Some of the families Bishoff consoled didn’t care about the trial, the fines the companies had paid in the past, or the verdict that might send millions to communities ravaged by the epidemic. They wanted to know why no executives were behind bars. As they saw it, that was the true crime.
During a break in a funeral at the Blessed Sacrament Catholic Church in South Charleston that summer, Bishoff spoke for the living, articulating the deep seam of frustrated rage that cuts through his community. Even if Paul Farrell prevailed in his case before Judge Faber and secured hundreds of millions of dollars for Huntington and Cabell County, no corporate executives would pay for their actions. For many in West Virginia, that’s the bottom line. That’s the lost promise of the justice system.
“The families want someone to serve time, real time, the kind of time they’re serving,” Bishoff, now sixty, said inside the church that summer evening. “Their lives have been destroyed. They’ve lost their children. They’ve lost their parents. They’ve lost people close to them. They’re going to deal with that the rest of their lives. People who were in a position to make those decisions and sent those drugs into our community should do real time.”
By April 2022, as the manuscript of this book was headed to the printer, there was still no word from Faber about when he would hand down his verdict in the Charleston trial. It had been nine months since Paul and the lawyers for the drug distributors delivered their closing arguments. But there was nothing but silence from Faber’s chambers. Another indignity, Bishoff thought. Another sign that justice remains elusive for the poor and powerless. “It’s more pain for the people who have suffered a loss,” he said. “It’s just one more slap in the face.”
While Paul and the plaintiffs and the defendants waited for a verdict, there was a flurry of developments in the MDL and other cases pending in state courthouses around the country. Some of the developments were cheered by the plaintiffs; others were seen as setbacks. The biggest development came on February 25, 2022, when the distributors, along with Johnson & Johnson, announced that they had agreed to settle the more than four thousand cases pending against them in the MDL in exchange for $26 billion. The distributors would pay the communities $21 billion over eighteen years; Johnson & Johnson, $5 billion over nine years. It was a historic settlement, rivaled only by the tobacco company payouts of the 1990s. The drug companies accepted no responsibility for the epidemic and denied any wrongdoing. The announcement of the settlement didn’t damage the stock prices of the Fortune 500 companies. In fact, they rose that day for each of the companies by 3 percent or more.
None of the money will go to the families of the dead. Most of it will fund opioid addiction treatment and prevention efforts and other community-based programs. The size of the payouts, scheduled to start flowing in the spring of 2022, depends upon a complicated allocation formula worked out by each state. The formulas factor in the population of the communities, how many people had been diagnosed with opioid use disorder, and how many died from an overdose. An independent clearinghouse will be set up to oversee where and when the companies ship their opioids. In many ways, it’s too little, too late. Doctors are now loath to write prescriptions for narcotics, and the pill mills are long gone, leading the companies to dramatically scale back their opioid operations. Johnson & Johnson has removed itself entirely from the U.S. opioid trade. More than one hundred plaintiffs’ law firms will split up $1.6 billion in legal fees. Another $350 million will go to law firms hired by the attorneys general, and another $200 million will be set aside to cover data processing and other costs associated with the litigation. A judicial panel will determine how to divide the money. It could be another year before the panel sorts out all of the payments.
It took nearly two years to reach the deal. Peter Mougey, the tall, bespectacled partner of Florida-based Levin Papantonio Rafferty, was one of four attorneys who led the plaintiffs’ negotiations team. With the country in Covid lockdown, Mougey first met with negotiators for the defendants during a Zoom call in 2020. One of the lawyers leading the negotiations for the distributors was Thomas Perrelli, the former associate attorney general under Obama who had helped to craft the deal that settled the Cleveland case on the eve of trial in 2019. As the lockdowns began to ease during the spring and summer of 2021, the negotiators met at the offices of a corporate law firm in New York City considered to be among the most profitable in the world. Midtown Manhattan was a ghost town. While some hotels had begun to open, most of the city’s restaurants, bars, offices, and gyms remained shuttered. The offices at Wachtell, Lipton, Rosen & Katz were empty. Mougey felt as though he and the other negotiators were the only ones working in the thirty-eight-story skyscraper, known as Black Rock, home to CBS Corporation.
Leery of flying back and forth to their homes during the pandemic, the lawyers spent weeks holed up in Manhattan, gathered around the same conference table on the twenty-eighth floor of Black Rock. The negotiations were painful. Mougey compared them to “pulling out the hair on your legs one by one with a tweezer.” At several points, he worried that the lawyers representing both sides would walk. But as the negotiations ground on, often late into the evenings, the opponents began to forge unexpected friendships. Some of the sharpest legal minds in the mass tort world began to craft a complex formula for how the money could be divvied up between the communities in the MDL. The lawyers for the defendants also demanded that any deal would shield their clients from future lawsuits.
On July 21, the distributors and Johnson & Johnson announced a tentative agreement to settle the cases for $26 billion—with a caveat. They said the vast majority of the more than four thousand cities, counties, and towns—and their states—had to sign on to the agreement. Without a critical mass of communities in agreement, the deal was off and the cases could drag on for years in the courts. The companies set a deadline: January 26, 2022.
Mougey and other plaintiffs’ lawyers, including Jayne Conroy, worked fifteen-to-twenty-hour days as they tried to persuade several states that were holding out for more money to join the settlement. It was mind-numbingly complicated. Every state had to devise an allocation formula for how much money each community would receive and then convince the local officials and their lawyers to agree. If Missouri, for instance, wanted to receive money under the settlement, its attorney general had to persuade the locals in nearly every community to sign on. State officials across the country argued bitterly about how the money should be parceled out and whether they were getting their fair share.
To keep track of every community that had filed suit and how much money they might receive, Mougey managed a massive spreadsheet. Each day, he emailed progress—or lack of progress—reports to the nearly one thousand lawyers involved in the litigation. He was constantly on the phone. On many mornings, he would wake up at six after catching just a few hours of sleep and start making more rounds of calls. Eventually, more than 90 percent of the local governments that had sued signed onto the deal.
In a separate deal, hundreds of Native American tribes also agreed to settle their suits against the distributors and Johnson & Johnson for $665 million. Opioids hit Indian country hard. At the height of the epidemic, Native Americans overdosed and died at a rate that rivaled some of the most devastated regions in Appalachia. Lloyd Miller, a lead attorney representing a third of the tribes, called the settlement epic. “A real turning point in history,” he said, noting that Indian nations had historically been ignored in mass torts. In the tobacco litigation, for instance, they were completely cut out.
Paul’s case in Charleston was not included in the $26 billion deal. Figuring his hometown would not receive what it deserved, he had decided to take his chances in court, asking Judge Polster to carve his case out of the settlement negotiations. He has since created a new law firm with Mike Fuller and moved to San Juan, Puerto Rico, which has become a tax haven for high-net-worth individuals. Also not included in the settlement are the chain pharmacies and some opioid manufacturers, who continue to fight the cases in court. A pair of rulings in 2021 gave the companies hope that they might ultimately prevail.
The public nuisance theory that forms the basis of many of the opioid cases has had a rough ride through the judicial system. In back-to-back wins for the opioid industry, judges in state courts in California and Oklahoma tossed out the nuisance claims as 2021 came to a close. On November 1, Orange County Superior Court judge Peter Wilson announced he would rule in favor of Johnson & Johnson, Teva, Endo, and Allergan, a division of AbbVie Inc., and reject a public nuisance case brought by Linda Singer, the Motley Rice lawyer who had handled Joe Rannazzisi’s testimony in Charleston. It marked the first win by any of the two dozen defendants who were being sued as part of the national MDL and in state courthouses around the country.
During the non-jury trial, plaintiffs for Santa Clara, Los Angeles, and Orange counties, along with the city of Oakland, argued that the drug manufacturers aggressively marketed opioids for a wide range of maladies while downplaying the risks of addiction. They asked Wilson to award the counties $50 billion to cover the costs of the public nuisance the companies had allegedly created. The judge ruled that the plaintiffs failed to tie the conduct of the companies to prescriptions that were not medically necessary.
“There is simply no evidence to show that the rise in prescriptions was not the result of the medically appropriate provision of pain medications to patients in need,” Wilson wrote in his ruling, which spanned more than forty pages. “Any adverse downstream consequences flowing from medically appropriate prescriptions cannot constitute an actionable public nuisance.”
Just over a week later, on November 9, the Oklahoma Supreme Court overturned a $465 million verdict against opioid manufacturer Johnson & Johnson. The court found that the trial judge who handed down that verdict in 2019 misinterpreted the state’s public nuisance law. “In reaching this decision, we do not minimize the severity of the harm that thousands of Oklahoma citizens have suffered because of opioids,” the judges wrote in their 5–1 ruling. “However grave the problem of opioid addiction is in Oklahoma, public nuisance law does not provide a remedy for this harm.”
Johnson & Johnson applauded the ruling.
“Today the Oklahoma State Supreme Court appropriately and categorically rejected the misguided and unprecedented expansion of the public nuisance law as a means to regulate the manufacture, marketing, and sale of products, including the Company’s prescription opioid medications,” a company statement read.
The twin rulings rattled members of the plaintiffs’ bar. While the lawyers overseeing the MDL publicly stated that state court rulings had little bearing on their larger national civil action, some were privately worried that more adverse rulings could be coming their way. Jayne Conroy was in the middle of a state opioid trial on Long Island when the rulings were announced. She was arguing alongside MDL attorney Hunter Shkolnik, the New York lawyer who was one of the earliest attorneys to join the opioid litigation. Their case rested entirely on the public nuisance theory.
“It was a big blow,” Conroy said. “Around the country, as people were trying to pull together the global settlement, it was not a good fact for us.”
Within weeks, though, the plaintiffs won a reprieve, scoring successive courtroom victories, both delivered by juries, not judges. Mark Lanier finally got to argue one of the MDL cases before a jury in Cleveland. He served as the lead counsel, along with co-counsel Peter H. Weinberger, in the first trial involving three of the nation’s largest pharmacy chains—CVS, Walgreens, and Walmart. Joe Rannazzisi was one of his star witnesses. At the conclusion of the six-week trial in Polster’s courtroom in the fall of 2021, Lanier told the jurors in closing arguments that the pharmacies made money “off every pill they sell.” But they didn’t make a thing “off a refusal to sell.”
On November 23, 2021, after deliberating for nearly six days, the twelve-member panel ruled against the pharmacies. The jurors found that the companies contributed to the explosion of opioid overdoses and deaths in Lake and Trumbull counties in northeastern Ohio, and their conduct had created a public nuisance. Polster will hold hearings to determine how much the companies will pay to cover the damages in the two Ohio counties. After the trial, Lanier interviewed members of the jury. They told him Joe was one of their favorite witnesses. “They loved him,” Lanier said.
Just after Christmas, the plaintiffs received more good news. On December 30, jurors in Conroy and Shkolnik’s Long Island case ruled that drugmaker Teva and its subsidiaries had created a public nuisance in Nassau and Suffolk counties by flooding the region with opioids and downplaying their risks while thousands died. The six-month-long trial began in June with more than two dozen defendants from every link in the opioid supply chain—manufacturers, pharmacies, and distributors. It was the first case in the nation to bring them all together in one courtroom.
During the trial, the Big Three settled for $1 billion; Johnson & Johnson for $230 million; drug maker Allergan for $200 million; and CVS, Walgreens, Rite Aid, and Walmart for $26 million. In the end, only Teva and its subsidiaries remained. The jurors finally got to see the Dr. Evil salesforce video that had been produced fourteen years earlier. It took them nine days to return their verdict, finding that the drug manufacturer violated New York’s public nuisance statutes. The case, like the others based on the public nuisance theory, is headed to the appellate courts. It could be years before those cases are resolved and the communities see any money from the verdicts, assuming they withstand legal challenges that could reach the U.S. Supreme Court.
While Conroy savored the victory on Long Island, it was tinged with sadness. Her law partner, Paul Hanly, was supposed to be by her side as the co-lead counsel in the case. He died a month before opening statements. “It’s just awful not having him to bounce things off of, to be the better person to take a witness or deliver an argument,” Conroy said. “I don’t think I can express it well enough. I go to bed every night thinking, ‘Wow, if only he were here,’ and then I wake up, and I realize I have to do it without him.”
After spending some time on Cape Cod with her family for Christmas, Conroy went back to work. Her daughter, Mildred Conroy, also an attorney, is working on the litigation, along with Lanier’s daughter, Rachel Lanier. Polster has sent five more bellwether cases back to their original jurisdictions for trials involving the pharmacy chains. Conroy’s firm has two of those cases—one in Cobb County, Georgia, and the other in Santa Fe, New Mexico. Lanier will lead another trial in Tarrant County in his home state of Texas. The defendants include CVS, Rite Aid, Walgreens, and Walmart, along with several smaller pharmacy chains. Conroy had a trial scheduled for April 2022 in San Francisco against several manufacturers and pharmacies, including Teva, Walgreens, Allergan, Endo, and Par.
Polster’s prediction in 2017 that the MDL could drag on for years unless the two warring sides settled the case has come to pass—at least in part. The plaintiffs continue to fight it out with the pharmacy chains and some of the drug makers. Behemoths in the business world, the pharmacy chains have some of the deepest pockets in the litigation and the most to lose.
The litigation has become a morass, said Elizabeth Chamblee Burch, a professor at the University of Georgia School of Law and an expert on multidistrict litigation. She questioned whether MDLs like the one created for the opioid litigation are the best way to bring justice to thousands of victims across the country, many of whom feel no connection to the massive litigation, citing a study she co-authored.
“It’s just like the Wild West,” Burch said. “You have the high stakes and you have the big personalities and the key players and lawyers who are disconnected from their clients. And then you just throw it all in a big pot and you let ’em go at it. So, for me, the concern is how the plaintiffs ultimately fare in all of this. And I think the answers that we’ve been coming up with from a study that we did over the last couple of years is not very well.”
While many of the companies are trying to settle their way out of the chaos and unpredictability of the MDL, others have taken a page from an age-old playbook in the corporate world. When facing financial ruin, file for bankruptcy. Purdue Pharma filed in 2019 in the face of the thousands of lawsuits that accused the company of setting off the opioid epidemic by marketing OxyContin as a less-addictive painkiller than others on the market. The company has denied those allegations. On October 21, 2020, the Justice Department announced that Purdue would plead guilty to felony charges of fraud and violating anti-kickback laws and pay more than $8 billion in fines. Under the settlement, members of the billionaire Sackler family, which owned and operated the company, will pay $225 million in civil penalties.
Under a separate bankruptcy plan, Purdue agreed to settle the lawsuits with the plaintiffs in the MDL by contributing $4.5 billion to abatement funds in communities damaged by the epidemic. In exchange, U.S. Bankruptcy Court judge Robert D. Drain in White Plains, New York, granted the Sacklers broad protection from current and future litigation. The bankruptcy plan was appealed in federal court by the U.S. Trustee, the Justice Department branch that monitors bankruptcy cases. Nine states and the District of Columbia, which had opposed the plan, also appealed. On December 16, 2021, Judge Colleen McMahon of the U.S. District Court for the Southern District of New York rejected the bankruptcy plan, finding that it improperly released the Sacklers from civil liability.
“The bankruptcy court did not have the authority to deprive victims of the opioid crisis of their right to sue the Sackler family,” Attorney General Merrick B. Garland said.
On January 3, 2022, Drain ordered the company and the nine states and the District of Columbia into mediation talks.
Two months later, on March 3, the Sacklers and their company reached an agreement with the states to contribute up to $6 billion to resolve the lawsuits. More than one hundred thousand individual victims and survivors of the opioid crisis would share $750 million of the funds in the agreement, which is still subject to Drain’s approval. A cache of confidential documents detailing the internal workings of the company will be made publicly available. The Sacklers did not acknowledge wrongdoing or personal responsibility. Under the agreement, they will be protected from any civil opioid litigation. They could still face criminal prosecution.
“While the families have acted lawfully in all respects, they sincerely regret that OxyContin, a prescription medicine that continues to help people suffering from chronic pain, unexpectedly became part of an opioid crisis that has brought grief and loss to far too many families and communities,” the Sacklers said in a statement.
As part of the deal, members of the Sackler family were required to attend a March 10, 2022, court hearing and listen to heartbreaking stories from the front lines of the epidemic. Twenty-eight people—some former drug users, some who lost family members, others caring for opioid-addicted babies—finally got their long-awaited chance to speak to the Sacklers directly. As more than four hundred people listened to the virtual hearing, Kristy Nelson played audio of the chilling 911 call she made after she found her only son, Bryan, dead in his bed from an opioid overdose.
“Four thousand eight hundred and four. That is how many days have gone by since I made that horrifying phone call—a call that I never ever dreamed of making,” Nelson said to David and Theresa Sackler, who were on a video feed, and Richard Sackler, who was listening in on the hearing. “A call that I would not have had to make if it weren’t for your unlawful behavior and obsessive greed.”
Nelson then told the Sacklers that her son would have turned thirty-four in twelve days and she planned to mark his birthday at his grave.
“I understand today’s your birthday, Richard,” she said. “How will you be celebrating? I guarantee it won’t be in the cemetery.”
She concluded: “You are scum of the earth.”
Ed Bisch lost his eighteen-year-old son Eddie to an overdose in 2001. He said the Sacklers should be in criminal court, not in bankruptcy court.
“I’m not sure I know of any family in America that is more evil than yours,” he said.
Mallinckrodt, which manufactured more pain pills than any other drugmaker, followed Purdue’s example. In February 2020, the Ireland-based company filed for bankruptcy for its generic drug division, SpecGx. Mallinckrodt announced that it would settle the lawsuits pending against its company for $1.6 billion to be paid out over eight years to communities reeling from the epidemic. The company itself filed for bankruptcy in October 2020. As part of the bankruptcy proceedings, Mallinckrodt agreed to make its internal emails and documents available to the public but admitted no wrongdoing.
Since testifying in Charleston and Cleveland, Joe Rannazzisi has been helping several other plaintiffs prepare their cases for trial as a paid expert, and he expects to be called as a witness in the remaining cases. He’s hopeful that some communities will finally get financial help. But he’s also haunted by what happened to key members of his team at the DEA. He knows the ruination of their careers is not his fault, but he feels responsible and wishes he could have done something to protect them. Mimi Paredes successfully sued the DEA for removing her from her job and giving her a do-nothing assignment when she returned from maternity leave. She and Ruth Carter, the DEA investigator who worked the CVS and Cardinal Health cases in Florida, are helping local communities as they prepare to take their cases to trial against several drug makers and pharmacy chains.
David Schiller, the lead DEA agent in the McKesson case, has retired from the agency and co-founded a drug disposal company called NarcX. Discussing his days at the DEA brings back bad memories. “I just don’t talk about it anymore,” Schiller said recently. “It’s all about money. I’ve learned that the hard way. People don’t care about death. I’ve learned more about people not caring about death in the three years I spent investigating McKesson than I did my thirty years with DEA. It’s all about how much money am I going to make. It’s not about how many people are dying.”
It’s been six years since Jim Geldhof retired from the DEA. He has been advising plaintiffs preparing to sue the opioid industry and appeared in a 2021 Vice video that explored the epidemic. He was on deck to be called as a witness in Paul’s case but was asked at the last minute to stand down. Faber had ordered the lawyers to pare their witness lists, and Geldhof lost his chance to confront the companies he had pursued for so many years. While he was disappointed, he was more upset by how the plaintiffs’ lawyers presented the case in Faber’s courtroom. He believed they should have tied the volume of pills into Huntington and Cabell County to specific cases of diversion to the black market, linking the companies to pharmacies that were breaking the law and to criminal activity and deaths from drug overdoses. Instead, he said, the case got bogged down in a numbers game by focusing on the volume of pills that poured into Huntington and Cabell and the responsibilities the companies had to stop the shipments.
“Don’t turn a dope case into a math problem,” he said.
Since retiring from the DEA, James Rafalski divides his time between his home outside of Detroit and his lake retreat on the Lower Peninsula of Michigan.
“When I first met with all of the attorneys, I realized it was the right thing to do,” Rafalski said of his participation in the litigation. “I still think it was the right thing to do, and I don’t regret doing it.”
Rafalski said he never openly questioned the strategy of the Charleston case and doesn’t harbor any animosity toward any members of the litigation team for how his testimony went. He still wonders whether Paul should have waited for a jury trial. He also believes the strategy Lanier used in the chain pharmacy trial of connecting the companies to the diversion of drugs to the black market might have played better in front of Faber.
When Joe reflects on the cases he made against the companies, he always thought that a corporate executive might have come forward to say they were sorry for what had happened to the nation. Even when some of the companies settled the cases against them, few accepted responsibilities in the agreements they signed. “They still don’t get it. They don’t understand that what they did was horrible,” Joe said. “They’re never going to concede to anything, and they’re going to continue to operate this way because they’re very powerful and they have a lot of resources and they can do whatever they want. I said it before and I’ll say it again: They do what they want to do, regardless of what the law is, and that’s the truth. It’s never going to change unless we get somebody who’s serious enough to prosecute someone.
“A kid slinging crack off a corner goes to jail, because he has a gun, for five or ten years or whatever. But a corporation that’s involved with the distribution of drugs that are killing people all over the country—the illegal distribution of these drugs—why did they not get prosecuted?
“The answer is power and influence.”