“Yes,” said Abernathy.
“Would it surprise you to know, Mr. Abernathy,” said Deke, “that I was personally curious as to the locations of those twenty-eight warehouses. So, what do you suppose I did?”
“I have no idea.” By his tone, Jake thought, it was clear he didn’t care either.
“I simply Googled the information. Would you be surprised to hear that it took me less than twenty minutes to get all twenty-eight locations?”
“Am I supposed to be impressed?” asked Abernathy.
“I don’t really care whether you’re impressed or not,” said Deke. “What I do care about is your sitting on that witness stand and uttering total nonsense, like you just did.”
Ailes jumped to his feet, with, as Jake thought, ten fingers blazing. “Objection, Your Honor. Counsel is badgering this witness for no reason.”
“Let’s see where this goes first,” said Judge Sargent, “and then I can decide if any badgering is going on.”
With a nod to Deke, he said, “Continue.”
“Twenty minutes, Mr. Abernathy. These warehouses are not top-secret installations, as you and Mr. Ailes would have us believe. And yet you just now said if the public knew how many drugs were going in and out of these warehouses, that would pose a terrible risk to those working at those facilities. Did you not tell the judge that while you were under oath?”
“Yes, I said that. And it is my belief that the locations and the details about those distribution warehouses should not be publicized. The vast quantity of drugs being moved could attract the wrong attention.”
“But isn’t that like saying we shouldn’t mention there’s gold located in Fort Knox?”
“I don’t think that’s a fair analogy, sir,” he said.
“Well, how is this analogy, Mr. Abernathy? There are hundreds of nuclear missile silos spread throughout the United States, and right on Google Earth there are detailed maps that show the location of every one of those silos.”
“I think we’re talking about apples and oranges,” said Abernathy.
“In that case,” said Deke, “why don’t you please tell me if this is an apple or an orange, Mr. Abernathy?”
At his signal, a large video screen descended from the ceiling. Moments later a map with location coordinates materialized.
“This is one of your warehouses, Mr. Abernathy. If you’d like, I can show you twenty-seven more, each with its exact location.”
“Do whatever you want.”
“I’ll spare you the repetition,” said Deke, “but instead let me show you another graphic.”
On the screen the map was replaced by a list of names. “It took me an hour to get a list of every employee working at the warehouse we just saw on the screen. You still think there’s anything secret about these warehouses?”
“I don’t see any reason to tempt fate,” said Abernathy, now looking considerably less composed.
“Mr. Abernathy, I know that Mr. Ailes questioned you in your role as director of security for MHC, but you didn’t always have that position, did you?”
“Not always.”
“In fact, for fifteen years you were an investigator for the DEA, were you not?”
“I was.”
“During your tenure at the DEA,” said Deke, “you led two investigations that looked into the business practices of MHC, your current employer. The results of each investigation determined that MHC was supplying pill mills with amounts of Oxy that were twenty times higher than the guidelines clearly established by the DEA and all regulatory norms.”
“All that is public record,” said Abernathy.
“That’s correct,” said Deke, “but what isn’t public record, sir, is that you, as head of those investigations, recommended no fines and no sanctions against MHC.”
“I didn’t think they were warranted,” he said.
“You didn’t think they were warranted? If my facts are correct, Mr. Abernathy, and I am quite sure they are, both of those pill mills you investigated were located in the same city in West Virginia. Where the population was ten thousand, yet around seven million pills were shipped into that city per year. Did I get that right, Mr. Abernathy?”
Ailes stood up. “Objection, Your Honor. I don’t see the relevance of this to any ruling on the ARCOS data.”
Jake held his breath, waiting for the judge’s answer. Luckily, he didn’t have to wait long. And what he heard made him happy.
“Then I suggest you listen more carefully, Mr. Ailes,” said the judge. “Objection overruled.”
Judge Sargent nodded at Deke to continue.
“There was one matter that wasn’t on the public record, Mr. Abernathy,” said Deke. “And I could find no mention of it in the media either. At the conclusion of your second investigation of MHC, you left the DEA, isn’t that true?”
“Yes,” he said.
“And you took a job at MHC,” said Deke, “that paid fifty percent more than what you were getting with the DEA. Isn’t that also true?”
Ailes was on his feet again. His agonized expression was mirrored by those on his team. “Objection,” he said.
Judge Sargent had already heard enough. “Please sit, Mr. Ailes. And please answer the question, Mr. Abernathy.”
Abernathy sighed. “That sounds right,” he said.
“No more questions, Your Honor,” said Deke.
“Thank you, Mr. Abernathy. You are excused,” said the judge. “Mr. Ailes, you may call your next witness.”
Suzanne “Suzie” Stone was an attractive fortysomething blonde who was wearing an expensive if revealing outfit. Her skirt ran a little high, displaying her tanned and shapely legs, and her blouse ran a little low, showcasing her ample cleavage. Suzie had bleached teeth and bleached hair. She didn’t appear to believe in stinting, either on her makeup or her jewelry.
Deke would have been surprised if Suzie hadn’t been a cheerleader during high school and a sorority girl in college. She was quick to smile, and unconsciously seemed to flirt with every male she came into contact with. Based on her sales figures, it was apparent that during her office calls, doctors—at least the male doctors—were quick to pull out their order pads.
When Suzie was shown to the witness stand, she patted the bailiff’s arm and flashed a smile. Both Deke and Paul had anticipated a witness like Suzie. Her goal would be to explain why the plaintiffs did not need the ARCOS data because the same information was arguably available within the individual records of every pharmacy or medical clinic the distributors did business with. Ailes would emphasize that what Deke and his team wanted was “overkill” and “unnecessary.” Smiling Suzie would agree with his assessment, putting in her two cents under the guise of her work experience.
“Ms. Stone,” said Ailes, “please tell this courtroom what your role is with MHC.”
Smiling broadly, she said, “My role is two parts. I manage a sales team, and I supervise quality control through face-to-face visits with pharmacies and doctor clinics in West Virginia.”
“In other words,” said Ailes, “you are hands-on in understanding how your customers make their purchases, and how proper and correct records of those purchases are kept by every one of the businesses you service in West Virginia.”
Suzie readily agreed, just as she readily agreed to every one of Ailes’s inquiries over the next fifteen minutes. Jake watched as Ailes did his best to build his case. The attorney took great pains to try and establish that every purchase of every opioid sold by distributors such as MHC was easily traceable by reviewing the records that the DEA required every purchaser to keep. Ailes, using Suzie’s words, stressed that between the distributors and the businesses, they could account for the number and type of every pill dispersed.
When Ailes finished with Suzie, he looked much more confident. That might have given Jake some discomfort, if not for the smile he saw on Deke’s face. Now it was their side’s turn.
“Ms. Stone,” he said, “can you please tell the cou
rt how many years you’ve worked for MHC?”
“For almost twenty years,” she said.
“A long time,” said Deke.
“I was very young when I started,” she said, batting her eyes.
“You’re very good at your job, aren’t you?” he said.
“How sweet of you to say that.”
“I think I’m being more accurate than sweet,” Deke said. “The average MHC sales rep makes one hundred and sixty thousand dollars a year, which is about thirty-five thousand dollars more than the national average for sales reps. However, in all your years with MHC, you have far exceeded that average. How do you explain that?”
Doing her best to act innocent, Suzie said, “I love my job!”
“Based on your paycheck, it’s a mutual admiration society. Where you seem to have done particularly well, Ms. Stone, is on your annual bonus. Can you tell me what that bonus is based upon?”
“We’re rewarded for sales,” she said.
“There were five years in a row where you received bonuses of one hundred thousand dollars, which is the maximum amount that MHC pays out. In fact, during that time period, you were the number-one field rep for all of MHC.”
“I worked very hard,” she said.
“I’m sure you did,” said Deke. “But I suppose it didn’t hurt that during those five years in question, more opioids were distributed than at any other time in history.”
“I wouldn’t know about that,” she said.
Ailes got to his feet. “Objection, Your Honor. This line of questioning is far beyond the scope of my questioning.”
“Judge,” said Deke, “this line of questioning is intended to show exactly why we need the ARCOS data.”
“You may continue, Mr. Deketomis, but I expect you to tie up the relevance. Your objection is overruled, Mr. Ailes.”
“Ms. Stone,” said Deke, “I’m sure you are aware of what is commonly referred to as the Oxy-Express.”
“I’ve heard of it,” she admitted.
“The area you worked around West Virginia was pretty much ground zero for the Express.”
Suzie shrugged. “I’ll have to take your word for that.”
“Is it your position, Ms. Stone, that you were unaware of the opioid epidemic going on all around the area you lived and worked?”
“As you pointed out,” she said, her smile now removed from her face, “I was successful at my job. That didn’t leave me time for much else.”
“For most of your years at MHC—in fact, for the last dozen years—you’ve lived at the same address in Huntington, West Virginia, isn’t that true?”
“Yes,” she said.
“Are you aware, Ms. Stone, of the many pill mills located within three miles from where you live?”
She looked over to Ailes; he didn’t meet her gaze.
“I’ll rephrase the question for you, Ms. Stone,” said Deke, “but I will remind you that you are under oath. In the past five years, are you aware that at least three pill mills, located fewer than three miles from where you live, were shut down?”
Suzie nodded, and Deke said, “Is that a yes, Ms. Stone?”
“Yes,” she said.
“I would like to show you a short video and get your reaction to it.”
At Deke’s signal, the lights were dimmed, and a video began to play. There was a line of people going halfway down the block awaiting admittance to a pharmacy. Some of the individuals were wearing bathrobes and pajamas. The image suddenly changed when DEA agents swarmed the clinic.
“Do you recognize this video, Ms. Stone?”
“Yes,” she said.
“I imagine you would, as that DEA raid took place two years ago not far from where you live. The pharmacy that was raided was one of those exemplary businesses that was supposed to be keeping great records. Would it surprise you to know that they weren’t, Ms. Stone?”
Ailes was standing and objecting.
“Enough,” said Judge Sargent, shutting Ailes up. Then he turned to Deke. “And enough from you as well, Mr. Deketomis. I get it. We all get it. This witness would have had to be blind to not know what was going on in her hometown, even without the attendant publicity. If it was supposed to be a secret, then it was one virtually everyone in Huntington was in on. And I’m sure, Mr. Deketomis, that you can produce many more videos and pictures that drive home your point even further. However, the narrow question I need to answer in this hearing involves only the ARCOS data.”
“As I am sure I don’t need to tell Your Honor,” said Deke, “from what we surmise, the pharmacy records don’t align with the ARCOS data, and that is yet another good reason for their being released. That being said, I have no more questions for Ms. Stone.”
“I’m glad to hear that,” said Judge Sargent. “Are you ready with your witnesses?”
“We are, Your Honor,” said Deke.
vvv Yin and yang, thought Jake, watching the proceeding carefully. Paul’s style was very different from Deke’s, but just as effective. Deke was more in your face; Paul was ever affable. But in his time questioning Carol, he was able to make the points their team wanted.
First, Paul and Carol offered up an overview of the Oxy-Express. They explained what it was and how it operated. Their history lesson revealed that there was no system in place in Florida that tracked prescriptions, and because of that, doctors in Florida had prescribed what was believed to be ten times more oxycodone pills than every other state in the country combined.
Even Judge Sargent looked surprised by that figure.
Carol also explained what “doctor shopping” was, and how every day there were troops of people going from pill mill to pill mill until they found a doctor who’d prescribe them the opioids they wanted without asking too many questions.
“And what happened to all those pills?” asked Paul. “These were addicts who just had a ball?”
“Some of them were. But the rest was a massive pill diversion,” said Carol. “Not surprisingly, many criminal enterprises took advantage of the ease of purchasing pills, and they bought massive quantities to resell on the black market. It’s believed that billions of pills made their way up the I-75 corridor that way. The diversion of opioids became a huge profit center, not only for the cartels reselling them but for the drug companies fulfilling this demand, which went far beyond what they could have sold in legitimate prescriptions.”
Paul opted to limit his questioning, keeping it focused on the ARCOS data and why it was necessary. When he announced that he had no more questions for Carol, Ailes stepped up to the witness stand and began what should have been his cross-examination. It didn’t take long for him to digress from a classic cross-examination and begin rambling on about the dangers of making it difficult for doctors to manage their patients’ pain. Jake could see Judge Sargent becoming ever more impatient.
“Am I going to hear an actual question, Mr. Ailes,” he asked, “or just more closing commentary?”
Ailes turned to Judge Sargent, pretending to look surprised and hurt. “Judge, it seems to me you let Mr. Vogel and Ms. Morris give this court a history lesson.”
“The background they offered regarding the Oxy-Express was well within the court parameters,” said the judge. “I will remind you that you are supposed to be conducting an actual cross-examination. You have moved beyond that in talking about doctor-patient care that has no relevance to this court, as far as I can determine. Do you wish to use your limited amount of time for the cross-examination of this witness, or for some other purpose?”
“I will continue with my cross-examination, Your Honor,” Ailes promised.
A second later, he broke that promise. “Are you aware, Ms. Morris, that the prescribing of oxycodone is trending downward, and has so for several years. There have even been a number of recent studies that show that statistically—”
“Objection, Your Honor!” shouted Paul, his normally affable face red and angry. “What is it about the term ‘cross-examination’ tha
t Mr. Ailes doesn’t seem to understand?”
“Let me try this again,” said Judge Sargent, his voice slightly frayed. “The objection is sustained, Mr. Ailes, for the same reason that has been explained to you three times now by this court. Later in this hearing you can voice your arguments, but for now, please continue with your cross-examination.”
“No, I don’t think I will, Your Honor.” Ailes was unsparing in his disdain. “I believe I’ll just choose to wait for an appellate court to hear my arguments. Thank goodness in America there are courts of appeal to oversee the conduct of lower courts.”
Most federal district judges would have had Ailes removed from the courtroom in chains. Judge Sargent merely smiled at the lawyer’s temper tantrum. Judging by Ailes’s red face, the judge’s composure— and especially his smile—was more galling to him than a scolding or rebuke.
“As you wish, Mr. Ailes,” he said. “Now please take your seat and we will continue.”
Paul Vogel’s mouth was open. Jake would bet that in his many years of practicing law, he had never seen a lawyer show such disrespect for a federal trial judge.
Paul and Deke exchanged glances. It was clear that the two men were thinking the same thing Jake was. Their side could only benefit from Ailes’s lack of composure and professionalism. All three of them did their best to hide their smiles.
34
SMARTER THAN THE AVERAGE DOG
Deke and Paul both concluded it would be better not to call their second witness after Nathan Ailes’s courtroom meltdown. They’d planned to call Gordon Ferris, a county controller from Ohio. Ferris could discuss all the costs, many hidden, that had fallen upon counties in the wake of the opioid epidemic. Because Judge Sargent had limited the parameters of the hearing, they opted to not overstep the boundaries he had set. It was their thinking that they had already either made their case, or not made it. The judge seemed pleased by their decision that less was more.
Judge Sargent scanned the courtroom, making eye contact and smiling at the fewer than a dozen people in attendance. He looked at his watch and announced, “It’s four thirty, but then I suspect most of you are well aware of the time.”
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