He ended the conversation and turned to his wife, looking for approval. Eva, however, was preoccupied with the problem of this lawyer.
“The press coverage says this Rutledge is smart,” she said. “And he’s young and has a lot of energy. The word is that he’s a straight arrow.”
“Just our luck.”
Eva nodded. With the right politician in their pay, an official blight designation could usually be obtained. A lawyer like Rutledge couldn’t be bought, and it sure hadn’t taken him long to sniff out Danny’s scam.
“You’re going to need to keep your head low,” said Eva, “and not do anything else that’s stupid. Since this lawyer’s big case ought to keep him more than busy, maybe he’ll lose interest in your redevelopment plans.”
“The way you set up those shell corporations,” said Danny, “they’d confuse even Sherlock Holmes. They’re kind of like those Russian dolls. You know the ones I’m talking about? You pull a doll out of the box, and then you find a doll within a doll, and another doll and another one.”
“Russian nesting dolls,” said Eva.
“Yeah, that’s it,” he said.
Eva nodded, but she knew shell corporations weren’t the impossible puzzles her husband seemed to think they were. A determined investigator would eventually figure out who was standing behind the curtain. She hated loose ends.
I will never again become Mother Goddamn Whistler, she vowed. That’s why she’d made sure everything had been set up to make Danny the fall guy in case their operation went south.
“What are you thinking about?” Danny asked.
Eva could hear the hopeful tone in her husband’s voice. They’d been married for more than a decade, but time hadn’t cooled his ardor. Besides, it was better to keep him happy. That would make it easier to blindside him, if necessary.
Reaching for him, she said, “I was thinking about you.”
19
NO ATHEISTS IN COURTROOMS
Deke’s three-bedroom Huntington, West Virginia, apartment was serving them well as a work space. Jake, Paul, and Deke all had their own desks in the master bedroom; two paralegals and their office equipment took up the other bedrooms. Deke had also set up a residence in a Huntington apartment/hotel.
Half the week Deke spent in West Virginia, and the other half in Florida. Paul also divided his time between his office and Deke’s work space. Since he didn’t have his own office, Jake spent more time there than the other two men, though Deke had noticed how he now had a life other than this case. If Deke was any judge, he was betting Jake’s outside interest was a girl. That would explain his upbeat mood and improved humor. It seemed to Deke that Jake had never gotten over the death of his twin. This woman was apparently just the tonic Jake needed.
On a Monday morning, Judge Perry’s decision arrived in Deke’s email.
“It’s Perry’s decision!” Deke yelled, quickly scanning what was written.
162 As he scrolled through the two pages, he shouted, “Thank God!” Everyone began to high-five each other and crowd around Deke’s desk. Their cheers brought in the two paralegals from the next room; Alison Stanley and Ron Beyer joined in the cheering.
“So,” said Paul, “you’re suddenly religious?”
“I understand that the Lord works in mysterious ways,” Deke said, grinning, “but I’m glad that on this occasion, I don’t have to second-guess my Maker.”
“Amen,” said Paul.
With the three men hovering around the computer monitor, Alison said, “We’ll go make copies of the decision for everyone.”
“Bless you,” Jake said, drawing laughs and keeping with the religious theme.
While Alison and Ron were making copies, Deke continued to scroll through Judge Perry’s decision.
“You sounded surprised by the verdict,” Jake said. “Weren’t you the one who told us we’d win?”
“I believed that the facts, and the truth, were on our side,” said Deke. “But sometimes that isn’t enough. Complex cases are always uphill climbs, and this is what I’d call an Everest kind of case. What I mean by that is you have to fight uphill until you get to a staging area. And then after catching your breath and doing some regrouping, you need to fight your way to the next staging area.”
“So this is just a staging area?” said Jake.
“Afraid so,” said Deke. “And that’s both the good news and the bad news. We’re halfway up the top of the mountain, and the ascent only gets tougher from here.”
Jake nodded, and Paul added, “Don’t let the clouds get in the way.”
“What do you mean?” Jake said.
“The higher you go, the more clouds there are.” Then Paul offered song lyrics with his analogy: ‘So many things I would have done, but clouds got in the way.’ Sage words from the immortal Joni Mitchell, a big talent you’ve probably never heard of.”
Jake grinned. “I know Joni Mitchell. She was a favorite of my grandmother’s.”
Both Paul and Deke grabbed their chests, pretending they’d been mortally wounded.
“Our cub is growing teeth,” said Paul.
“And claws,” added Deke.
Paul leaned close to Jake, peering at something. “Does that explain what appears to be a hickey on the side of his neck?”
“Really?” Deke put on his reading glasses, but Jake had already pulled up his shirt collar.
“It’s a shaving burn,” Jake said, but his flush gave everything away.
Deke turned to Paul, who was shaking his head. “Strange place for a shaving burn,” Paul said.
“And from the timing of its appearance,” said Deke, “it appears our colleague must have been up late—shaving—last night. I hope he doesn’t make a habit of that, especially with the work we need him to put into the case.”
If it was possible, Jake flushed an even deeper shade of red. It made Deke think of when he’d been courting his wife, Teri. From the first she had put a spring in Deke’s step. That had never changed.
“Don’t worry about my—shaving,” said Jake.
Alison and Ron returned with copies of Judge Willard’s decision, and all three lawyers sat down and began to read what he’d written. Occasionally one of them would read aloud a section that they liked.
“I wish I was a fly on the wall listening to the two Dicks discussing this ruling,” said Jake.
“If they’re worth their salt as lawyers,” Deke said, “they’ll dissect the ruling and use it to figure out the strengths and weaknesses of their case and ours. That’s what I’m going to want you to do, Jake.”
“You want me to armchair-quarterback the judge’s ruling?” he asked.
“Pretty much,” said Deke. “We can use what he wrote here as a pretty good indicator of what jurors might think as they hear this case. In reading what Judge Perry said, it’s clear I should have taken more time in showing that the DEA and the DOJ had a responsibility to the public to act earlier than they did in stemming the explosion of opioids. I should have tied that in as a preamble to the death charts, showing they turned a blind eye to the diversion of opioids. The judge seemed to like my analogy of where there was smoke, there had to be fire, but he would have preferred I made a better case for the fire. We need to more thoroughly develop that part of the story.
“The judge also agreed with me that it seems to be much more than a coincidence that four of West Virginia’s highest-ranking DEA administrators left their positions to work at MHC and the two other largest drug distributors. We’ll need to look for more smoking-gun documents on that Gang of Four, but Judge Perry seemed to understand how the distributors dangled big job opportunities in front of those particular agents every time they opened a new investigation. In the next round we need to hammer at all the conflicts of interest between the opioid distributors and the government, and how that allows them to circumvent the law.
“I want you to really focus on memos or directives that suggest the DEA purposely dragged its feet when it came to act
ing on specific investigations. I’d also like a timeline that shows how soon afterward those same agents went to work in the private sector, and at what salaries.”
Jake was busy taking notes. “What about me?” Paul asked. “If you’re amenable,” said Deke, “I’d like you to work out an opioid damages formula with the best forensic accountants available. You can pick sample cities and counties that best tell our story.”
Paul nodded. “Even after all this time, I don’t think there’s been a true accounting of how much the opioid epidemic has economically impacted cities and counties and states.”
“You’re right about that,” said Deke. “For the most part, the government has been trying to pretend the problem away, instead of defining that problem. In our damage model, you’ll need to clearly define all the economic costs to governmental services before the opioid epidemic, and since its start.”
“You mean as taxpayers we shouldn’t be grateful that these distributors made billions in profits,” said Paul, “and left us holding the bag for billions in expenses?”
“That’s exactly what we need to point out,” said Deke, “although maybe we should be a tad less cynical. Anyway, I was glad Judge Perry saved his most scathing remarks for the twenty-five-million-dollar settlement entered into by the cabal—his word, not mine—of state attorneys general.”
Deke picked up Judge Willard’s ruling and began reading. “‘There is no question that this settlement was woefully inappropriate when first entered into; the passage of time reveals just how inadequate the settlement was, and how it did not meaningfully redress any wrongs. The end result wasn’t so much a settlement as it was a Band-Aid applied to a gaping wound. The seven state AGs said that after settling, they would henceforth put the distributors’ feet to the fire; that never occurred. Moreover, if I have correctly reviewed all the information submitted to this court, it does not appear that even one of those attorneys general did so much as take a basic fact-finding deposition before agreeing to a settlement. Also troubling to this court is the apparent intermingling of state and corporate interests. In such collaborations, the appearance of collusion is inevitable, not to mention the potential for abuse and conflicts.”
Smiling, Deke stopped reading and said, “Ouch! I don’t think I could have said it better myself.”
“Maybe next time Jazz Hands won’t be so flagrant about advising the state attorneys general while in court,” said Jake.
“If you half closed your eyes,” Paul said, “you might have thought he was Jeff Dunham, and Dick Monger was his puppet, Walter.”
The three of them laughed, enjoying their victory, temporary though they knew it might be. For a few minutes they decompressed, chatting about anything other than the case. It was Deke who finally signaled that recess was over.
“I’m sure everyone knows it only gets more difficult from here on in,” he said.
Paul and Jake nodded. All the smiles began to fade at the thought of the work that awaited them. Deke took a deep breath and turned his gaze to Jake.
“It’s time to look beyond our short-term strategy,” said Deke, “and consider the long game that we’ll have to play. You started us on this road, Jake. You had the courage to challenge MHC, and now we’re going up against the Big Three.”
The lawyers were now referring to McQueen Health Corporation, Silicon Medical, and Sparrow Healthcare as the Big Three. There was a reason for that. The three Fortune 25 companies distributed more than 90 percent of pharmaceuticals around the country. They were the ones who had made huge profits from distributing opioids.
“I’m thrilled about the progress we’ve made,” said Deke, “and I’d love to be able to proclaim, ‘Damn the torpedoes, full speed ahead,’ but the reality is that the Big Three does two hundred billion dollars in business every year. As far as they’re concerned, litigation is merely the price of doing business. Trench warfare plays right into their hands. They can spend hundreds of millions of dollars fighting all the opioid claims, and then hundreds of millions of dollars or more on appeals. The opioid industry has more money than most nations do, and they’re not afraid to spend it. If we try to battle them county by county, or state by state, we can’t win even if the verdict goes our way.”
This wasn’t what Jake wanted to hear. “Why?” he asked.
Deke sighed. The young man was an idealist, and he wished he didn’t have to rain on his parade. “They’ll appeal,” said Deke. “They’ll buy influence, and find ways to hinder our litigation at every turn. Even if the top ten claimants’ law firms in all of America combined forces, there is no way we could defeat the Big Three and their virtually unlimited resources. I’m not saying that we wouldn’t have successes along the way, but those small-scale Pyrrhic victories would accomplish next to nothing.”
“Pyrrhic victories?” Jake asked.
Deke nodded. “The Pyrrhic War was fought thousands of years ago between King Pyrrhus of Epirus and the Romans. Pyrrhus won two decisive battles, but his victories were costly. The enemy had the numbers to rebound from their defeats, but he did not. He said, ‘If we are victorious in one more battle with the Romans, we shall be utterly ruined.’ That, my friend, is a Pyrrhic victory.”
“If you want a shorthand version,” said Paul, “last year I took a defendant to court and was awarded a single dollar in damages. Now that was a Pyrrhic victory.”
“What’s the alternative?” asked Jake. “I’d rather have a Pyrrhic victory than wave a white flag.”
“No one is talking about waving a white flag,” said Deke. “I’m thrilled about the progress we’ve made. We had a critical win. But now that we’ve come to a new juncture, Paul and I are of the same mind that we have to look at the big picture.”
Paul was nodding, showing his support for Deke’s words.
“Obviously the next step,” said Deke, “is to get possession of the ARCOS data.”
ARCOS stood for the Automation of Reports and Consolidated Orders System, which the DEA used to keep track of drugs being distributed throughout the country. Manufacturers and distributors were required to report their controlled-substance transactions to the attorney general. That information was then passed on to the DEA, which was supposed to monitor the flow of the controlled substances from their point of being manufactured to wherever they ended up being commercially distributed. The information provided by ARCOS was supposed to be used by federal and state governmental agencies to identify if, and where, controlled substances were being diverted. Over the years, the reports should have raised plenty of red flags, but hadn’t. The diversion of drugs had continued for years with virtually no repercussions. The drug distributors had not only been aware of the drug diversions, but had done everything they could to see to their continuance.
“It’s not just a bunch of statistics,” said Jake. “It’s our road map to the epidemic.”
“That’s right,” said Deke. “We’ll have more than a smoking gun. By connecting all the dots, we can show who knew what, and when they knew it. And even more important, the ARCOS data will paint the picture of how the Big Three pinpointed areas in the U.S. as specific targets. They selected these areas because of economic despair. The data will show how areas with high job loss and increased poverty were an unbeatable combination to sell more narcotics.”
“That kind of targeting is what killed Blake and so many others,” Jake said. “The opioid trail is one of blood money.”
“That’s something we’re going to show,” said Deke. “But to have a national impact on the opioid epidemic, we need to think beyond the courtrooms of West Virginia and Ohio. You ever hear the phrase ‘Think globally, act locally’? In our cases, we’ve acted locally. Now we have to look beyond the county and state courtrooms.”
“I’m not following,” said Jake.
“I don’t want to put the horse in front of the cart,” said Deke, “but at the same time we’re fighting to get the ARCOS data, we need to be positioning ourselves for an MDL.”
“An MDL will put the opioid epidemic on the national stage,” said Deke. “Our trench warfare in Ohio and West Virginia will only take us so far. Our goal will be to prevail in getting the ARCOS data, and then file a pleading requesting that a single judge be appointed to oversee all of the national opioid litigation—not just the cases we filed, but other cases filed in jurisdictions through the country.”
“One judge, one jurisdiction, and one massive trial,” said Jake.
“Ours isn’t the only opioid case working its way through federal court,” said Paul. “There are scores of other cases, most of them sharing common issues.”
“Instead of one hundred circuses,” said Deke, “with an MDL everything would be placed under one big top. Without such a setup in place, litigation would continue to be piecemeal, incredibly time consuming, and prohibitively expensive.”
Deke was glad to see that the young lawyer was nodding. “I always had this fantasy of championing Blake’s cause in the courtroom, but I’m beginning to understand that if your strategy succeeds, it would be that much bigger of a victory. Not a Pyrrhic victory,” Jake added.
“That’s how we see it,” said Deke.
“It would streamline the process and save time, wouldn’t it?” asked Jake.
“It should,” said Deke.
“Then I’m all for it,” said Jake. “I can’t take any more of these delays, especially knowing more than four thousand opioid users die every month. For me, that’s so difficult to accept.”
Jake didn’t have to invoke Blake’s name. Both Deke and Paul could hear it in his voice.
“I couldn’t agree with you more,” said Deke. “And because of that, I propose we change our game plan. I want to go on a fast-break offense and push for our next hearing in no more than two months’ time.”
“Two months,” said Paul. “I think we all better invest in some track shoes.”
“Won’t the Big Three fight the expedited hearing?” asked Jake.
Law and Addiction Page 16