Dopesick Page 8

  Among RAPP’s first courtroom targets was the 2003 civil lawsuit against Purdue brought by former Florida Purdue sales rep Karen White. She’d been fired in 2002 for allegedly having paperwork irregularities, poor communication skills, and declining sales, the company said. But White claimed in her legal filing that she was actually fired for refusing to sell to doctors who were illegally overprescribing OxyContin to their patients.

  In the winter of 2003, the company bragged in a press release about all the civil suits it had won against people blaming their addictions on OxyContin under a headline that read like a football blowout: “65–0.” “These dismissals strengthen our resolve to defend these cases vigorously and to the hilt,” said general counsel Howard Udell. “We have not settled one of these cases—not one. Personal injury lawyers who bring them in the hopes of a quick payday will continue to be disappointed.”

  But the firm’s legal bills were mounting—to the tune of $3 million a month—and Purdue still had 285 lawsuits pending against it, including another whistle-blower suit, filed by Marek Zakrzewski, an assistant research director who described raising safety concerns with seventeen different higher-ups about the “serious negative implications” of the drug, according to his complaint. His bosses banned him from undertaking additional research into the problems and even from informing the company’s regulatory department about his concerns, his suit claimed. Fired in May 2003 after complaining to the FDA, Zakrzewski eventually dropped his lawsuit, citing illness, the following year. He’d had a heart attack from the stress of working at Purdue Pharma and was fired while on medical leave, according to his filing. A Purdue spokesman countered that the researcher dropped the suit after the firm refused to settle the case, calling the allegations “baseless.”

  To help burnish its image in the face of so many legal, financial, and public-relations problems, Purdue hired former New York mayor and Republican insider Rudy Giuliani and his consulting firm, Giuliani Partners. Just a few months after his lauded response to the 9/11 terrorist attacks, Giuliani’s job was to convince “public officials they could trust Purdue because they could trust him,” as Barry Meier and another writer at the New York Times put it.

  The DEA was already investigating lax security standards at the company’s manufacturing plants following the 2001 arrest of two Purdue employees accused of trying to steal thousands of pills. Giuliani brokered a behind-the-scenes negotiation of the fine paid by the Purdue affiliate that ran its New Jersey pill factory, including the condition that the firm pay a $2 million civil penalty—without admitting any wrongdoing. The DEA’s diversion control manager, tasked with making sure drugs are lawfully used and not diverted into illicit trafficking, was left fuming; she had argued for a $10 million fine. She was sure Giuliani and company executives had gone over her head to her boss in an attempt to gain “access and insights into how to manage things politically.” At a luncheon, Giuliani had helped raise $20,000 for a new DEA Museum historical exhibit.

  Facing a growing number of lawsuits and investigations, Purdue Pharma heaped praise on its American hero and new political star: “We believe that government officials are more comfortable knowing that Giuliani is advising Purdue Pharma,” Udell gushed in a promotional brochure. “It is clear to us, and we hope it is clear to the government, that Giuliani would not take an assignment with a company that he felt was acting in an improper way.”

  After all, not only was Giuliani old pals with the DEA director, but he also had just been named Time magazine’s Person of the Year 2001.

  The terrorist attacks had elevated Giuliani’s stature, but in a boon moment for his future employer, they also temporarily diverted media attention from OxyContin. A sales executive said as much to Purdue employees on September 12, via voicemail, giving them the day off. The message the sales manager left, according to a former Purdue staffer: At least the tragedy for the nation would take OxyContin off the front pages of the nation’s newspapers.

  The RAPP parents believed White’s wrongful-termination case would prove that Purdue’s marketing practices had crossed a legal line. “We had such high hopes that she would be one of our saviors,” Van Rooyan said.

  Ed Bisch drove twelve hours from Philadelphia in 2005 so he could sit in a Tampa federal courtroom beside Lee Nuss at Karen White’s civil trial, the first case against Purdue to progress beyond summary judgment. White was asking the jury to award her $138,000 in lost wages plus $690,000 for emotional pain. Depressed and anxious since her dismissal, she had never before been fired from a job.

  “They were counting on us to run out of steam,” Bisch recalled. “They were all lawyered up and Rudy Giuliani’d up.” He counted ten lawyers on Purdue’s side, not including staff, quarterbacked by the formidable Atlanta-based firm of King and Spalding, whose clients ranged from cigarette makers to Coca-Cola. White’s lone attorney estimated Purdue spent $500,000 defending the case, an amount a Purdue spokesman declined to confirm.

  White was tall and trim, a thirty-six-year-old brunet based in Lakeland, Florida. She’d been a champion of the drug’s painkilling properties early on, having witnessed her mother’s painful, premature death from cancer.

  White argued that she was wrongly fired for refusing to participate in aggressive marketing of OxyContin that, in her opinion, several times crossed the line into breaking the law. White’s attorney named two specific doctors she was urged to call on who were widely known for overprescribing. Both eventually lost their medical licenses for shoddy prescribing, including one who’d handed out prescription drugs in exchange for sex.

  At the time, prescription drug abuse had become so rampant in White’s Florida sales territory that one opioid-addicted Orange County veterinarian had recently been caught using the names of several pet owners’ dogs—including Brutus, Cha Cha, and Lady—to forge more than a thousand OxyContin prescriptions.

  White had a single lawyer and no staff, not unless you counted Bisch, Lee Nuss, and Nuss’s late son, Randy, who was tucked inside her mini urn. Nuss also brought her rosary beads, loaning an extra set to White to hold during the proceedings.

  A few days into the trial, Nuss realized she’d accidentally left the beads behind in her car. Excusing herself to retrieve them, she handed White her son’s urn to hold during her absence at the plaintiff’s table.

  “Really?” White said, tearing up, as Nuss recalled it. “You would let me do that?”

  When Nuss returned with the beads, she was surprised to see White coming out of the courtroom so soon. A recess had already been called. “Where’s Ed?” she asked.

  He had to leave the building, White told her, adding, “Lee, please, don’t get upset.”

  “Why?” Nuss wanted to know.

  “You’re not gonna believe this, but Ed had to take your son out of the courthouse.”

  Purdue’s lawyers had heard about the urn and asked the judge to have it removed from the building.

  Bisch and White expected the grieving mom to blow up, but Nuss surprised them by laughing instead. She told her friends, “My son is not here in body, but he is definitely here in spirit.

  “He might have left the building, but he will be back!”

  Bisch was due back at work in Philly before the jury’s decision came in—but he was not surprised when Nuss called with the verdict. “Ed, there’s just too much money involved,” she told him. “We really thought we were doing something, only to find out, nobody is gonna do anything.”

  The jury ruled in favor of Purdue, whose lawyer called the case a “personal disagreement with promoting the drug in an entirely legal way.” While White believed calling on sleazy pill prescribers was illegal, her lawyer had not proved the illegality of the company’s sales strategies.

  “The court basically said, ‘Don’t tell us what you believe. Tell us what you know,’” explained University of Kentucky legal scholar Richard Ausness, who has written about the difficulty of winning civil cases against Purdue, citing among other reasons the c
ompany’s hefty defense chest. At the request of a Purdue lawyer, the government’s highly critical 2003 Government Accountability Office study of Purdue’s marketing practices was ruled inadmissible in court.

  During the first decade of the drug’s existence, the legal system could not prove the makers of OxyContin had broken the law.

  Back in western Virginia, a young U.S. attorney with political aspirations was secretly working on his own attempt to defeat Purdue in court as early as 2003. John L. Brownlee was brash, a little bit of a cowboy, and as a former paratrooper and Army Reserve JAG Corps captain, the thirty-six-year-old was not afraid of high-stakes drama.

  Or the press. He was married to a local news anchor, Lee Ann Necessary, whom he’d met on the job a decade earlier. With a ruddy complexion and a mop of reddish-brown hair, he had a boyish appearance that belied his hard-charging demeanor. If Law & Order sold action figures, they would look like John Brownlee, down to the crisp creases in his trousers and his American-flag lapel pin.

  Brownlee became so fond of calling press conferences that he traveled with a portable podium with fold-out legs. His prosecuting philosophy: If you’re not losing sometimes, you’re not going after the hard cases. By the time Karen White’s case was dismissed, in 2003, Brownlee was still smarting over his own trial loss, via an acquittal, hung jury, and dismissal, in a multiple wrongful-death suit against Roanoke pain specialist Dr. Cecil Knox, whose office had been raided by federal agents, storm trooper–style. Knox and several of his office workers had been handcuffed and carted away—one of the women was carrying her groceries out of a store—even though defense attorneys had already arranged with federal authorities for their clients to turn themselves in. The showboating earned Brownlee a reputation as aggressive and, at times, overreaching.

  On the heels of the Knox case and another high-profile case that generated equally fierce public criticism and ended similarly—with two hung juries—Brownlee needed a big legal win.

  With plans to seek elected office—Brownlee would run for Virginia attorney general in 2008—he may have viewed prosecuting Purdue Pharma as “a vehicle for being in the national news,” recalled Laurence Hammack, a longtime Roanoke Times reporter (and my former colleague) who chronicled OxyContin’s spread.

  “Yes, he had self-serving motivations. But on the other hand, [OxyContin abuse] was happening everywhere in the country, and no one else took them on.”

  Brownlee did, almost immediately after being appointed U.S. attorney, though he didn’t go public with the investigation until 2005. He had read Meier’s Pain Killer and knew about Purdue’s attempt to bully the journalist after its publication.

  Purdue lawyer Howard Udell complained to Meier’s New York Times editors, claiming that Meier had a conflict of interest in the story. His book, Purdue argued, gave him a financial stake in the newspaper’s continued coverage of OxyContin. Udell wanted Meier taken off the beat.

  “Their agenda was to shut me down, and to suppress as much news coverage of the company as possible,” Meier recalled. “And he [the paper’s public editor, Daniel Okrent] bit on it, not realizing that what they weren’t telling him was that they were already under criminal investigation,” which Meier suspected. (With two minor exceptions, Meier would not write about Purdue Pharma for the newspaper again for four years.)

  Meier may have been temporarily silenced from writing about the company, but nothing prevented John Brownlee from poring over the footnotes of his book. Brownlee also relied on an eager fraud investigator in his office, Gregg Wood, to communicate with Van Zee and the RAPP parents. Since the epidemic’s earliest days—long before Google Alerts—Wood had been sending out regular compilations of OxyContin-related news articles and overdose statistics via email to law enforcement agents, prosecutors, and other interested parties. Recipients who spotted any OxyContin news in their localities should “let me know,” Wood urged at the top of every update, which Van Zee nicknamed the Wood Reports.

  “Never assume I already know!” Wood enthused.

  “Gregg Wood was very high energy,” Van Zee recalled. “He would get up in the middle of the night checking for stories.”

  As health fraud investigator for the U.S. attorney’s office in Roanoke, Wood was tasked with picking through the weeds of the civil cases against Purdue, most filed by small-town lawyers who were trying in vain to challenge the company for overpromoting the drug while ignoring its risks for addiction. Their clients ranged from miners and masonry workers who became addicted following work-related injuries to a factory worker so desperate to stop taking OxyContin that he’d flushed his pills down the toilet, telling his lawyer that trying to explain dopesickness to a nonaddict was “like describing an elephant to a blind man.” The lawyers, the parents, Van Zee, and Sister Beth—all were happy to pass along every piece of dirt they’d collected on Purdue, from sales-rep call notes and depositions to Van Zee’s Christmas gift from Sue Ella—the NDA.

  “The Purdue lawyers were totally underestimating the work done by Wood,” recalled Abingdon lawyer Emmitt Yeary, who lost his own civil case against the company. Arnold Fayne McCauley, seventy-one when his suit was filed in 2004, had spent decades stooped over and crawling through thirty-six-inch-high Lee County coal seams. In coal-mining parlance, he worked “low coal,” the most strenuous of the coal-extracting jobs. “Now that’s working hard, working in low coal,” Van Zee said, pointing to a picture in one of his exam rooms of a miner crawling on his knees, in the dark, under a sagging mass of mountain. “Compared to that, all I do is move around a mouse.”

  When he wasn’t working low coal, Fayne McCauley spent nights and weekends hauling and spreading lime from his truck for area farmers. Asked to describe the defining characteristic of her father, Lisa Nina McCauley Green said simply: “All I remember about him growing up is, he worked.” As the Virginia writer John C. Tucker described it in May God Have Mercy: “For a miner who avoids being crippled, burned or buried alive, the usual question is which will give out first—his lungs, his back, or his knees.”

  In McCauley’s case, it happened to be his shoulder, from a late-1990s injury caused by the snapping of an underground cable that slammed into his shoulder and back. Building his product-liability case against Purdue, Yeary collected some twenty boxes of documents arguing that Purdue overpromoted the prescription painkiller while ignoring its risks—rendering people like McCauley addicts while reaping billions in sales.

  Yeary had gotten the idea for the lawsuit in 2000 after hearing Van Zee give a community college lecture on OxyContin. Yeary hadn’t been particularly interested in the topic but went along to satisfy a schoolteacher he was dating at the time. As Van Zee went through his slides—ranging from overdose deaths to spikes in Oxy-related crime committed by addicted users, all of it meticulously sourced and footnoted—Yeary leaned over to a lawyer friend sitting on his other side and said, “Damn, they’re putting the wrong people in jail!”

  He remembered thinking Van Zee was not the “kind of guy you raised hell with in college.” It occurred then to him that the country doctor was the perfect conduit for helping him identify plaintiffs to sue Purdue. In fact it was Van Zee who eventually connected Yeary to McCauley, a patient Van Zee was by then treating for OxyContin addiction.

  But like most of the civil plaintiffs suing Purdue, Fayne McCauley was an imperfect client, because he admitted under oath that he had taken multiple drugs, gradually supplementing his original OxyContin prescriptions with OxyContin he’d bought on the streets. When his original doctor, Richard C. Norton, tried to wean him from the drug, cutting him back from 40 to 20 milligrams, it had made McCauley extremely nervous, crippling him with diarrhea, sweats, and a skin-crawling feeling he called gooseflesh. McCauley bought the black-market OxyContin, he told an opposing lawyer from Purdue in a series of depositions, for the same reason a century’s worth of heroin addicts had kept returning to their dealers for more dope: to stave off dopesickness.

  It didn’t matter
that the septuagenarian hadn’t been stealing from his granddaughter before OxyContin came along, or cashing out his relatives’ life-insurance policies, or borrowing guns for protection from his new pill-peddling associates. It didn’t matter that he’d been treated with lower-strength opioids after losing two fingers to a 1980 coal-mining accident but did not develop a $300-a-day drug habit until 1999, shortly after his first bottle of OxyContin.

  Nor did it matter that people like Van Zee had urged Dr. Norton not to fall for the Purdue reps’ spiel about “the great epidemic of untreated severe pain.” Van Zee had seen Norton’s clinic in nearby Duffield, with its parking lot full of out-of-state cars, and confronted him about it at a hospital meeting. (“I said, ‘You know, Rich, people are injecting this.’ And he was astounded,” Van Zee recalled.)

  In 2000, Norton was sentenced to five years in federal prison, not for overprescribing OxyContin but for his role in an unrelated hospital corruption scheme. According to sales-rep notes subpoenaed in the McCauley case, federal prosecutors were also investigating Norton for operating a pill mill but opted to front-burner the wider and more urgent corruption case.

  Stallard, the Big Stone Gap drug detective, remembered an informant unpacking the life of a Norton patient: “He told us, ‘Dr. Norton wrote prescriptions for Lortab, forty-milligram OxyContins, and eighty-milligram Oxys all in the same visit.’” When Stallard subpoenaed the physician’s records, he saw Norton had prescribed thousands of OxyContin pills in just thirty days.

  Stallard turned the information over to Brownlee’s assistant prosecutors, who said physician cases were difficult to prove, since there was always another paid physician expert willing to testify that such prescription dosages were necessary. Nonetheless, the prosecutors brought in DEA agents to help target the most egregious prescribers, and local detectives started feeding them information, Stallard said.