Inside the massive lawsuit that seeks to assign blame — and financial penalties — for the opioid epidemic.
Paul Farrell paced the courtroom as lawyers filed into place: plaintiffs on the left, defendants to the right, briefcases down, folders out. Outside the chambers, Lake Erie glistened through the floor-to-ceiling windows lining the marble hallway of the Carl B. Stokes U.S. Courthouse in Cleveland, Ohio. Farrell, who has silver hair and grayish-blue eyes that can maintain eye contact for an uncomfortably long period of time, darted around the room for hushed conversations and banter with his fellow lawyers. Farrell was restless for the proceedings to start. He knew that about 100 Americans would die of drug overdoses just during the hours-long hearing on that late October morning.
Farrell is a lead attorney on the National Prescription Opiate Litigation, a collection of 1,500 cases that have been brought by communities across the country against the pharmaceutical industry for an ongoing epidemic of addiction and drug-related deaths. Farrell and a team of more than 100 plaintiff’s lawyers argue that by flooding U.S. communities with painkillers, drug manufacturers like Purdue Pharma, Teva, and Janssen — and the companies that distribute their pills — violated federal laws by creating what’s called a “public nuisance.” For counties throughout the country wrestling with the death and despair wrought by the epidemic, this lawsuit represents their best chance to force a moral reckoning with those they deem responsible and bring their communities some badly needed financial relief and healing.
The lawsuit hinges on uncovering evidence that drug makers and distributors knew their products caused harm, that they marketed them deceptively, and that they pushed opioids into communities in quantities that far outweighed any genuine medical need. Providing that evidence means acquiring internal documents, interrogating company employees, and scrutinizing records from the Drug Enforcement Agency (DEA) of where and when controlled substances have been sold. In what’s poised to be one of the biggest legal fights of the opioid epidemic, the attorney teams will argue a central question: Who is responsible for the scourge of drug abuse gripping the country?
Farrell works on the case day and night with a relentless missionary zeal, believing it will be the defining lawsuit of his career, equivalent to the multibillion-dollar asbestos and tobacco cases of prior decades. He believes that for his generation of plaintiff lawyers, no case will matter like this one. Farrell stands to make money if he wins this lawsuit — a lot of money — but like few other lawyers, he intimately knows the stakes for the thousands of small towns ravaged by the opioid epidemic. “I have been humbled by this lawsuit,” Farrell says. “There will be no great joy when I slay the dragon.”
The shock may have worn off the numbers that detail the opioid epidemic, but that doesn’t make them any less tragic. In 1999, drug overdoses killed fewer than 17,000 people in the United States. In 2017 alone, that figure exceeded 72,000 — more than the number of U.S. soldiers killed during the Vietnam War, the Korean War, or World War I. Almost half of all Americans are close to someone who is or has been addicted to drugs.
The victims of the opioid epidemic — those who’ve become dependent, their families, and the communities where they live — have largely been left to battle the problem on their own. Small towns triage jail beds to make room for drug arrests. Judges separate children from their addicted parents. For many towns, drug-related crimes now account for the vast majority of police work. The economic costs are enormous. According to figures from the White House, in 2015 the United States spent an estimated $504 billion on health care, criminal justice, and other needs stemming from the epidemic—nearly 3 percent of the country’s total gross domestic product.
Farrell believes his lawsuit can succeed at curbing the epidemic where the federal government has failed. He lives where he was born, in Huntington, West Virginia. About a five-hour drive south from Cleveland, Huntington is in the heart of an Appalachian region that has become synonymous with the opioid epidemic. Farrell knows the trauma personally. Addiction struck several of his high school friends. He has colleagues who are raising their grandchildren because their own children gave up custody after becoming dependent on drugs. Farrell’s children now barely react when they see EMTs once again administering the overdose treatment Narcan to someone overdosing on a Huntington street corner. “It’s not the same place that he calls home,” says Jacqueline Farrell, his wife of 21 years.
“I’m a simple hillbilly lawyer. I’ve been underestimated my entire life.”
Three years ago, Farrell read a story in West Virginia’s Charleston Gazettereporting that from 2007 to 2012, wholesale drug distributors shipped 780 million prescription painkillers into his home state. “The unfettered shipments,” wrote journalist Eric Eyre, who won a Pulitzer Prize for his reporting, “amount to 433 pain pills for every man, woman, and child in West Virginia.”
The facts rankled Farrell, whose family has lived in the state for more than 70 years. “I’m from West Virginia, and I don’t take kindly to that kind of stuff,” he says.
Farrell thinks he can lead the way to a solution, even if his background doesn’t quite match the high-powered pharma attorneys he’ll be up against. “I’m a simple hillbilly lawyer,” he says. “I’ve been underestimated my entire life.” He was student body president at Huntington East High School and won multiple debate tournaments. He left the state for four years to attend the University of Notre Dame but returned to obtain his law degree at the West Virginia College of Law and never left. When he was dissatisfied with the options in the 2016 Democratic presidential primary — formerly a registered Democrat, Farrell recently changed his affiliation to independent — he nominated himself to run against Hillary Clinton and Bernie Sanders, paying $2,500 to have his name on the ballot. He earned 21,000 votes in West Virginia and even beat Clinton in one county before bowing out. “He doesn’t lack for an ego,” says his father, who is also named Paul.
Farrell’s father ran a law firm specializing in medical malpractice defense with his brothers for years before he became a circuit judge in Huntington. Farrell joined his father and uncles there soon after graduation, but the warrior in him ultimately drove Farrell toward plaintiff law. “That’s more his personality,” his father says. “Being the aggressor.” After seven years as a plaintiff lawyer in Morgantown, West Virginia, Farrell returned to Huntington to join the firm Greene Ketchum as a partner in 2006. During his career there, Farrell won a $10 million medical malpractice verdict in 2007 and an $18 million verdict against Boston Scientific in 2016 in one of the first lawsuits filed against the makers of transvaginal mesh, a tissue-repairing device tied to serious injuries. These victories gave Farrell the connections and reputation he needed to garner support—from both his own firm and several top attorneys across the country—when his outrage over the opioid epidemic took shape as a legal strategy: Charge the makers and sellers of painkillers with causing a public nuisance.
The National Prescription Opiate Litigation argues that public nuisance is “an unreasonable interference with a right common to the general public.” The strategy has precedence — successful and not. One historic lawsuit that relied on public nuisance laws is the 1990s litigation against tobacco companies, initiated and led by Mike Moore, then the attorney general of Mississippi. The case argued that cigarette manufacturers had created a public nuisance by selling and advertising a product that they knew made people sick. The lawsuit ended in a $246 billion settlement to be paid out to states in yearly increments over 25 years, with the intention that the money would be used mainly for anti-smoking programs. (Reality has fallen short, with many states redirecting tobacco funds for other purposes, including placing the funds into their general treasury for any use.)
Following the success of the tobacco suit, several states sued handgun manufacturers using the same statutes, though results have been mixed. Public nuisance doesn’t exist as a single statute in federal law and is instead invoked as a common law, something based on legal precedent and custom. Partly because of that history, public nuisance has become what one legal treatise called a “grab bag,” supporting a wide range of complaints — tobacco, guns, environmental threats, and now opioids.
Moore, in private practice since 2004, began investigating the pharmaceutical industry in the mid-2000s, but he believes his further efforts were stymied by what was a growing medical consensus at the time, largely created by drug makers, that pain was undertreated. “They did a great job of putting this message out there,” Moore says. “It hit me right in the face everywhere I went.”
Moore initially moved on, discouraged by the power of the pharmaceutical industry, but in 2015, he led Mississippi as the first state to file an opioid lawsuit. Since then, at least 35 states have filed similar complaints; Moore is now representing four of them. His approach is similar to Farrell’s and draws heavily on public nuisance statutes. The major difference is that these cases are filed by state attorneys general and litigated locally. For his part, Farrell opted for federal court, because he wanted the power to subpoena the DEA’s records of drug sales for the entire country.
What makes the National Prescription Opiate Litigation unique, Farrell explains, is that the group of cases also takes on the companies that distribute painkillers, not just the companies that make them. McKesson, Cardinal, and AmerisourceBergen are considered the “big three” drug distributors. These companies have not yet been held legally accountable for any contribution they made to the epidemic. (Purdue Pharma, creator of OxyContin, was fined $634 million in 2006 by the Department of Justice for deceptive marketing practices around the opioid — though the case did little to stem the epidemic or the growth of Purdue’s business.) Farrell wants to change that. By widening the net of blame, the case could bring in more money for abatement and set a precedent should the defendants simply continue their practices even after a penalizing verdict, as manufacturers have done in the past.
In early 2017, Farrell presented his idea to sue both painkiller makers and distributors to the Huntington town board. “What if I told you I know where the warehouse is that’s shipping all the opium pills to our hometown?” he recalls saying. “Let’s shut down the source.”
The board agreed, and Farrell filed a suit in federal court for Cabell County, which includes Huntington, against the three major distributors, along with Rite Aid, CVS, Walmart, and other drug sellers. He listed multiple complaints, chief among them that these companies had created a public nuisance. He then began contacting county prosecutors in West Virginia, southern Ohio, and eastern Kentucky — the areas hardest hit by the epidemic. County after county filed suit, and by the end of 2017, more than 1,000 counties, towns, and Native American reservations had filed suits, about 600 of them led by Farrell.
A judicial panel consolidated the cases, at first by region and then into a single suit, known as a multidistrict litigation (MDL). The panel appointed Daniel Polster, a U.S. district judge for the Northern District of Ohio, as the sole justice presiding over the case. (Juries would ultimately decide each trial.) At the end of 2018, the plaintiff attorneys, which now numbered more than 150, met at the Hilton Hotel in downtown Cleveland and nominated Farrell as the co-lead counsel, along with Paul Hanly, a veteran of Mike Moore’s earlier painkiller lawsuits, and Joe Rice, who co-founded one of the country’s most powerful plaintiff litigation firms. “He’s playing in the big leagues with some big-time litigation with big rewards and big risks,” Farrell’s father says.
The defendants are bringing in their own legal heavy hitters. Endo Pharmaceuticals hired Carole Rendon, who served as U.S. attorney for the Northern District of Ohio from 2016 to 2017. During that tenure, she told the Department of Justice that Ohio “must continue to curb the rate at which doctors are prescribing opioids and address the underlying incentives that have led to that practice.” She now works as a defense attorney with the Cleveland-based firm BakerHostetler. The defense counsel also includes Enu Mainigi, who successfully defended Bank of America against the Department of Justice, and Mark Cheffo, one of the country’s top product liability lawyers. (Rendon declined to speak about the case with OneZero. Mainigi and Cheffo did not respond to a request for comment by publication time.)
The first trial of the National Prescription Opiate Litigation is scheduled for September 2019 and includes three of the now 1,500 cases — Cleveland, Akron, and Cuyahoga and Summit counties. This trial will function as a bellwether, hinting at how future juries are likely to rule. If the plaintiffs and defendants don’t settle, that bellwether trial will be followed by a procession of others, each one addressing a handful of the hundreds of plaintiffs included in the consolidated case. Trying each of the cases included in the consolidation would take years.
As the bellwether — and because of the stakes — the trial set for this fall has required months of hearings, conference calls, and round-the-clock emails involving the two sides, Judge Polster, and three special masters he has appointed to help oversee various aspects of the case. “If you go out of pocket for like five hours, there’s like a hundred emails that you missed,” says Mark Pifko, a lawyer for the plaintiffs. Rulings regarding what information each side must provide and when incur hours of detailed arguments from both sides. At an October 23 hearing in Cleveland, the legal teams for the plaintiffs and the defendants spent hours working through what documents and evidence both sides of the lawsuit will be able to access. For example, a lawyer for the drug distributor McKesson said that because Cuyahoga County doesn’t pay for the overdose drug Narcan, the cost shouldn’t be included with the damages. The legal quibbles on that day’s 17-item agenda took eight hours.
Later that night, a few plaintiff attorneys decompressed over martinis and bourbons in a private room at a nearby steakhouse and shared the confidence they had in their case. One lawyer said he had emails from Walgreens employees describing their fear of leaving work at night because drug users whose prescriptions they’d refused to fill lurked in the parking lot. Another said he had information showing that hotel maids were targeted by the pharmaceutical industry because working on their feet all day left them in pain.
“This case is either gonna be magic or tragic,” Farrell says. “One way or the other, there will be a reckoning.”
The lawsuit has swallowed Farrell whole. “It has taken him away from his family for the past year and a half,” Jacqueline Farrell says. Their children ask why he’s not around. Though he stays out of the details, Farrell’s father has witnessed the workload: finding experts, taking depositions, responding to pleadings, “flying to Cleveland on a day’s notice because the judge wants to see him.” Jacqueline has a straightforward explanation to give their children about Farrell’s frequent absences. “It’s necessary because it’s an evil,” she says. “It’s a sacrifice that is not just for this community, but for our nation.”
Of course, all the effort is also an investment. Each of the hundreds of contracts that Farrell’s firm has for the litigation includes a contingency fee of about 25 percent, which the court must approve, in exchange for the legal work and any expenses. “Obviously, if we’re successful, then I stand to gain financially,” Farrell says.
The southern Ohio town of McArthur is a world away from the Cleveland courtroom four hours north. Yet its future may depend on the arguments and rulings taking place there, because like other small Appalachian towns, McArthur has been hollowed out by opioids.
Main Street in McArthur was desolate on a sunny Wednesday in late October. A “Welcome to McArthur” sign planted outside the local cemetery felt like dark humor. Ryan Cain, a police lieutenant in the town, says the Hotel McArthur, a dingy apartment-style building with sheets for curtains that sits across the street from the local courthouse, is a known haunt for people to use drugs. “We used to go outside all the time,” Cain says. Now children don’t play in the park, because parents are worried about finding needles.
Cain, who grew up in the neighboring town of Ray, says that about 20 people he went to school with have died from a drug overdose. A friend he grew up playing sports with fatally overdosed on a fentanyl patch, a form of pain reliever. He recounts the story of another classmate who died. Her children, ages four and six, had just returned home from a day with their father. “They went to go get into bed and be excited to come back to Mom,” Cain says. “She was dead in the bed from an overdose.”
Nearly every call Cain responds to is related to drugs. The drug users who haven’t died, Cain says, “are now out stealing almost daily.” Elderly men sell their pills in exchange for sex with girls in their twenties or younger. He can’t remember the last time the jail had free beds. When nearby Fairfield County opened a new 200-bed jail, it took just 30 days for it to fill.
Across the street from the sheriff’s office, in a basement office with no windows, Vinton County prosecutor Trecia Kimes-Brown is also battling the fallout from the opioid epidemic. Since 2013, Kimes-Brown has handled mounting arrests connected to painkillers: drug possession, drug sales, murders, homicides, theft, driving under the influence. She regularly fields calls in the middle of the night from police officers wondering where they can bring someone who’s just been arrested. She knows the jails are full, so she mentally scrolls through all the current inmates to decide who is the safest person to release in order to free up a bed. She can’t always make room. On a recent Saturday, police arrested a local woman who tested positive for methamphetamine. But not a single jail across 23 counties — a range spanning the width of Ohio — had space for her.
One night in January 2017 still haunts Kimes-Brown. On a Friday, she released a man who had detoxed from drugs and alcohol after two weeks behind bars in order to make room for another offender. She instructed him to report for rehab after the weekend. That night, he tried to kill himself by overdosing. On Saturday, he tried again. On Sunday, he succeeded. “Had I kept him locked up for three more days, he would probably be alive,” Kimes-Brown says. “It has to change. It has to change.”
“I find that blame falls at the feet of the people who knew better.”
Vinton County, which has a population of 13,000, is currently spending $600,000 per year housing people in jail and an estimated $500,000 per year on foster care for children who have been abused or neglected because of the epidemic. That’s about a quarter of the county’s annual $4.2 million general revenue budget. Ohio recently changed its sentencing laws so that people who commit Class 4 and 5 felonies — thefts under $1,000; buying, selling, or using drugs — cannot be sent to prison, which the law used to permit. Yet the state has not provided the county with any additional funds to house those arrests locally, so offenders are released back into the community, often with no place to go, because the county has no homeless shelter. Sometimes they are given a GPS monitor, which the county usually has to pay for, because most offenders are indigent. Without jail or rehab beds available, minor felons simply go “wherever,” Kimes-Brown says. The county courthouse has become a revolving door, the same offenders entering and leaving week after week.
Vinton isn’t an unusually poor county. A median household income of around $41,000 per year and a 5.8 percent unemployment rate place it in better economic shape than many other rural areas hit by the epidemic. But the county has no hospital, no detox facility, no inpatient rehabilitation center, and no mental health facility. Most rehab centers in the area require no drug use for 72 hours prior to entry, a difficult requirement for substance abusers to meet when there’s no place to incarcerate people and keep them away from drugs after an arrest.
To be a prosecutor is to be in the business of assigning blame. For her own part, Kimes-Brown believes we are each personally responsible for our actions. But when it comes to the opioid epidemic, she says, “it’s hard to blame that 15-year-old girl using meth.” Or the 21-year-old who got hooked on painkillers after his doctor over-prescribed them. Or the young adult who was shot up with heroin by his father when he was barely a teenager. “I find that blame falls at the feet of the people who knew better,” she says.
To Kimes-Brown, those responsible include the pharmaceutical manufacturers and distributors, the DEA, and the federal government as a whole. “I think there’s responsibility to go around,” she says. (The DEA declined to comment.) But she singles out the pharmaceutical and distribution companies that have profited from the addictive properties of the medicines they sell. “They created this storm for us that we’re living with,” she says. “They’re not remedying it.”
Kimes-Brown met Farrell in the spring of 2017, soon after the city of Huntington filed its case. Farrell’s Appalachian roots and his mission to take on the makers and sellers of opioids persuaded Kimes-Brown to propose that her county also file a lawsuit with him. “It’s really nice to see someone carry that crusade for Appalachia,” she says. A West Virginian by birth, Kimes-Brown grew up in a town of 500 people near Huntington and felt a kinship with Farrell. And she knew there was no way Vinton County could confront the pharma players on its own.
As with the other plaintiffs, the county agreed to give Farrell and his firm a contingency fee of about 25 percent of any monetary award in exchange for handling the suit. Assigning blame matters, as it would for any prosecutor, but so does the money for a small community drowning in opioids. “The purpose of the lawsuit is the abatement of the nuisance,” Kimes-Brown says. “With the lawsuit funds, my county will be able to determine how we fix the problem.”
The success of the National Prescription Opiate Litigation hinges on whether a judge and jury will agree that the companies’ business practices qualify as a public nuisance. In the lawsuit’s 343-page complaint, the plaintiffs argue that drug distributors violated the rights of public citizens when they dumped pills into communities “without following the controls that should be in place,” says Hunter Shkolnik, a New York plaintiffs’ attorney allied with Farrell.
The Controlled Substances Act of 1970 requires companies to track every single Schedule II narcotic, a category that includes OxyContin, Percocet, and other prescription variations of opium. If demand spikes, distributors “have a duty to perform due diligence and investigate before they ship it,” argues Peter Weinberger, a Cleveland-based attorney on the litigation team. Failing to do so, the plaintiffs argue, created the public nuisance we now know as the drug epidemic.
But the lawyers need to provide proof. In public nuisance cases against gun manufacturers, defendants have argued, often successfully, that they didn’t cause the ultimate harm because they didn’t pull the trigger. Albert Lin, a professor at the UC Davis School of Law, says the drug companies and distributors could argue that the parties responsible for the epidemic are the people taking the drugs themselves — a defense that could resonate with juries. “The people who are most directly affected here don’t have what we call clean hands,” says Richard Ausness, a professor at the University of Kentucky College of Law.
Farrell and his team believe they have more than enough evidence to show that drugmakers and distributors created a public nuisance through their actions. The introduction of OxyContin in 1996 was followed by an aggressive marketing campaign that encouraged physicians to broaden the conditions for which they prescribed opioids. Purdue, for example, helped doctors overcome a longtime fear of hooking patients on opioids through office visits, free meals, and funding pain foundations and physicians to deliver the message that untreated chronic pain constituted an epidemic and that the addictive properties of opioids were a “myth.”
“We told all the physicians they had to treat pain, but we didn’t give them any tools.”
The same year OxyContin hit the market, the American Pain Society — an advocacy organization funded by pharmaceutical companies — began a campaign to expand medical care for pain based on the idea that it is the body’s “fifth vital sign,” along with traditional markers like body temperature and blood pressure. In 2001, the Joint Commission — a federal agency that sets medical practice standards — introduced an updated approach to patient care stating that doctors should always address pain; not doing so, the commission found, meant doctors weren’t doing their job appropriately. Soon, patients were rating doctors on how well they addressed their pain, a score that insurance companies used to help determine whether to include a physician on their plan.
“We told all the physicians they had to treat pain, but we didn’t give them any tools,” says Janet Woodcock, who directs the Center for Drug Evaluation and Research at the U.S. Food and Drug Administration. That could have included cognitive behavioral therapy, acetaminophen, and, Woodcock says, “a stiff upper lip,” counseling patients to tolerate the pain and tough it out a bit. But what they had were opioids — lots and lots of opioids.
Health care providers wrote 259 million prescriptions for painkillers in 2012, enough for every American adult to have a bottle of pills. The industry continued to feed that demand. Many physicians were clueless about the addictive nature of the drugs they were now prescribing. Others began over-prescribing them, often through “pill mill” clinics designed solely to make money from dishing out unnecessary prescriptions, many of them to people who had already become dependent.
When the DEA finally began taking action against the pill mills, cutting the supply of prescription painkillers, people who’d become addicted to opioids needed a new fix. Heroin — a cheaper opiate that’s available on the streets — was waiting. The number of heroin users in the United States rose steadily over the past decade; in 2016, nearly 1 million Americans admitted to using the drug, up from about 370,000 in 2007. In 2006, about 90,000 Americans used heroin for the first time; by 2016, that number had reached 170,000. Fentanyl, a lab-made opioid both cheaper and more powerful than heroin, eventually entered the illegal drug market, often disguised as a prescription drug or mixed with heroin to stretch profits.
Distributors, however, insist they have been following proper protocols all along, reporting and halting suspicious orders. “We refuse service to customers we deem as a diversion risk,” said Gabe Weissman, who leads communications at AmerisourceBergen, in a statement provided to OneZero. Weissman also says the company provides daily reports on opioid orders to the DEA. A representative from McKesson pointed to pages on the company’s website about its anti-abuse initiatives but said the company would not discuss ongoing litigation. Cardinal Health did not respond to a request for comment.
In a statement to OneZero, John Parker, who handles communications for the Healthcare Distribution Alliance, a trade organization that represents wholesale distributors, including the big three, vehemently opposed the allegations. “The idea that distributors are responsible for the number of opioid prescriptions written defies common sense,” he said. “Those bringing lawsuits would be better served addressing the root causes, rather than trying to redirect blame through litigation.”
Still, notes Lin of UC Davis, public nuisance statutes also consider negligence and wrongful conduct. Even if the companies did not explicitly know they were causing an addiction epidemic, Lin says, the law also considers what defendants “should have known.” The sheer volume of prescriptions — which the plaintiffs will argue far exceeded what should have been reasonable medical use — could prove that point, though drugmakers have denied the allegations as well. “The allegations made against our company are baseless and unsubstantiated,” reads an unattributable statement provided to OneZeroby Janssen Pharmaceuticals.
Juries may decide otherwise as the inner workings of the companies in question are brought to light. Correspondence made public through a complaint filed by Massachusetts in January indicates that the Sackler family, who own Purdue, knew the company’s products were addictive. “We have to hammer home on the abusers in every way possible. They are the culprits and the problem. They are the reckless criminals,” Richard Sackler, Purdue’s CEO from 1999 to 2003 and, later, co-chairman of its board until 2018, wrote in a confidential email. (Sackler’s 2015 deposition taken for a lawsuit filed by Kentucky, settled in December 2015, is also now public.) Farrell says that “we have conducted the same depth of discovery against all of the defendants.” If other drug companies left a similar trail of disturbing exchanges, then the case could be made that not only should they have known better, but also that they did know better.
Other points in the Massachusetts filing include repeated instruction by the board, which includes several members of the Sackler family, to increase the number of sales reps marketing opioids to physicians, despite existing reports from Purdue staff relaying concerns about abuse and the diversion of pills from pharmacies to the street. Purdue declined to comment but pointed to its motion to dismiss the suit, saying Massachusetts “set forth a misleading narrative in an attempt to litigate this case in the court of public opinion.” The motion points out that most people who die from overdoses in the state have heroin or fentanyl, “not Purdue opioids,” in their bloodstream.
The National Prescription Opiate Litigation also accuses the defendants of racketeering, which is prosecuted under the 1970 Racketeer Influenced and Corrupt Organizations Act, or RICO law. Contrary to common belief, RICO law is not only about prosecuting the mafia. Rather, racketeering is a broadly defined crime that includes copyright fraud, mail fraud, wire fraud, and even removing serial numbers from certain kinds of goods. To prove a RICO violation, plaintiffs must show a pattern of activity and some form of enterprise used to perpetrate the crime.
RICO violations don’t always involve violence, and they don’t need to be prosecuted in criminal court. The lawsuit asserts that the distributors and manufacturers engaged in racketeering — otherwise known as fraud — that caused injury and cost money. For example, the companies allegedly created or funded advocacy groups that lobbied medical authorities to call for an expanded use of painkillers. Because the case is in civil court, the plaintiffs needn’t prove their point beyond a reasonable doubt. They only need to provide enough evidence to slightly tip the scales in their favor.
Still, even if the defendants did violate the law by, say, failing to report alarming amounts of drug sales to the DEA, that doesn’t mean cities and towns deserve a financial reward. “They’re not the group that the law is intended to protect,” Ausness says.
All the legal theorizing could be irrelevant if the parties agree to settle. Judge Polster called for such an ending when the hundreds of complaints were first consolidated. Moore is hoping for the same outcome, with a settlement offer that encompasses both the state-level cases and the MDL. “A settlement,” Moore says, “is so much better than getting into a fight and seeing who wins.” (The first state trial of Moore’s lawsuit is scheduled to begin in May in Oklahoma.)
None of the plaintiffs or defendants have publicly discussed any estimated dollar amount, though Moore believes it “won’t come near” the $246 billion settlement with the tobacco companies. Whatever the amount might be, both Moore and Farrell are adamant that any settlement must include complete disclosure of the documents they’ve acquired. “I don’t think any resolution of this case is possible,” Farrell says, “without a full accounting and transparency [about] what gave rise to this epidemic.”
On a concrete wall in Trecia Kimes-Brown’s office, a large whiteboard contains a to-do list of three columns: what’s been done, what’s next, and what’s beyond that. Every item is related to the opioid epidemic, and each list was created by a group of 10 citizens of Vinton County who meet with Kimes-Brown regularly. “I meditate just about every day on it,” she says. The needs include ramping up GPS monitoring of offenders who can’t be jailed, creating a drug task force, educating children on drug abuse, starting a local detox program, building a new jail. All of these cost money.
But state and federal support for the county has been shrinking, and like many other areas in Appalachia, the region has largely been left to make do on its own. Kimes-Brown lists the few things the county can do now: pay for a mental health counselor with a new grant, pass a children’s services levy to cover some foster care costs, use money seized from a drug dealer to buy a new car that high school seniors who test clean can win. With a ruling perhaps years away, she says, “We don’t have the luxury to wait.” But her whiteboard to-do list contains only incremental solutions. Anything bigger isn’t worth writing down, because it can’t be achieved without the money that could come through Farrell’s suit — either through a settlement or through victory.
Ausness believes the defendants are guilty of dumping their addictive pills into unsuspecting counties, “at least on many occasions.” But even if the plaintiffs can win or manage a large settlement from the drugmakers and distributors, he isn’t sure a legal penalty will do anything to dissuade the practice. The hundreds of millions or more in fines are “the cost of doing business for them,” and hardly a deterrent, Ausness says. “They seem to keep going back and doing it again.”
And while money will help hard-hit communities like Vinton County, the full extent of the damage can’t be undone by a check, no matter how large. Whatever award comes will only “help expedite the healing process,” Farrell says. He believes a full cure will take decades and has nothing to do with cash. “Eventually, this lost generation of addicts will die out,” he says. Then the children born into the epidemic have to survive without becoming its victims.
“By the time we get to a third generation, hopefully we’ll be talking about this in the history books,” Farrell says. “That’s the inevitable end to this.”