Dopesick Page 9

  “We sent all kinds of information in to the feds but we never got anything back out of them. They told us nothing,” he added, of Brownlee and his assistant prosecutors. “We started calling them the Shadow Company.”

  The federal investigation actually began when the Shadow Company realized Norton was simply following his Purdue rep’s guidelines to a T, Stallard said.

  But none of that counted in the civil cases against Purdue, wherein plaintiffs had to prove that a specific injury was directly tied to company wrongdoing with such specificity that a reasonable jury could assign the wrongdoing a dollar amount. Federal judge James P. Jones dismissed the McCauley case on the grounds that a jury would not have been able to divine whether OxyContin alone had caused the coal miner’s suffering.

  Though other judges across the country simply dismissed the OxyContin lawsuits, Jones took the unusual step of inserting a personal opinion into his ruling: “Does the relief afforded by high-dosage opioids to those with severe, life-altering pain outweigh the risks of harm from addiction?” he wrote. McCauley’s case did not answer that question, he said.

  A God-fearing Baptist, Fayne McCauley had loved country music and the Atlanta Braves. Everyone in the town of Jonesville knew him because he had refereed home basketball games at Lee High School for many years. His family had sent him to rehab seven times, before and after the case. “Every time he’d come back and lie to us and say he’s not taking the pills anymore when we knew he was,” his daughter, Lisa Green, told me. McCauley ended up selling family heirlooms at a flea market. He stole credit cards to buy a four-wheeler that he sold for money to buy drugs. “He would say my mom was trying to kill him when my mom doesn’t have a mean bone in her body,” Green added. “That drug took over his brain.”

  Two years before her father’s death, Green would drive to her parents’ home to rescue her mom, bringing her back to Texas to live with her. Together they waited, cringing every time the phone rang late at night. Around dawn on October 22, 2009, it finally did.

  When McCauley, seventy-five, died four years after his case was tried, police found him in his lime-hauling truck at 4 a.m. in the middle of a pasture—he’d crashed through a fence. Several near-empty bottles of pills, prescribed just two days earlier, were strewn on the seat next to him. A state trooper told McCauley’s daughter and wife that he died of a heart attack, but his daughter believes he was murdered over a bad drug deal.

  His head was blown apart, she said, as if from a gun.

  The boxes of juicy sales-rep call notes and depositions that represented Fayne McCauley’s case files did not molder in Yeary’s law office attic. They were folded into Wood and Brownlee’s trove of ammo for their case against Purdue. By the time Yeary lost the case, Brownlee’s office was in the process of secretly logging millions of records on spreadsheets. The Wood Reports were coming out at a rate of four or five a week, and one employee was assigned to do nothing but catalog documents for the investigation—all of them buttressing Brownlee’s belief that Purdue had knowingly concealed the drug’s addictiveness.

  When a New York Post reporter broke the news in 2005 that a federal grand jury was investigating Purdue, Van Rooyan told Bisch and the other RAPP parents, “They think they’re going to run roughshod over a bunch of hillbilly lawyers.” She recalled how Udell had gloated over the scores of legal wins against people like McCauley, and his pledge that the company would never settle such “absurd lawsuits.”

  But the company and its executives underestimated the U.S. attorney from Roanoke, who brought in prosecutors from neighboring jurisdictions and deputized them as special assistants to pick up the non-Purdue-case slack. To lead the Purdue investigation, he appointed assistant U.S. attorneys Randy Ramseyer and Rick Mountcastle, career government lawyers who were not given to drama and worked three hours west of Brownlee in the district’s satellite office in Abingdon, closer to the coalfields.

  It would never occur to either of them to tote around a podium—or to voluntarily talk to the press. When I interviewed Ramseyer almost a decade later, he deflected questions with a combination of press paranoia and aw-shucks humility: “Sometimes people get intimidated by big companies and high-dollar lawyers. You just have to avoid that.” And: “It’s not rocket science; it’s just hard work.”

  But Ramseyer and Mountcastle had watched their caseloads shift dramatically since OxyContin’s introduction. And they were well aware that the few federal prosecutors who’d earlier tried to bring Purdue to account for rising Oxy-related crime had fallen short, with only a handful of exceptions. Jay McCloskey, the U.S. attorney in Maine, had challenged the company’s promotional techniques early on, with some success. He had pushed the company to drop the doctor junkets and the 160-milligram version of its pill, only to leave his post in 2001 to work as a consultant for—wait for it—Purdue Pharma.

  But the Abingdon prosecutors were content doing government work. Ramseyer and Mountcastle had sent a host of pill-mill doctors to jail over the years—one of whom had been doling out prescriptions from the back seat of his car. Since OxyContin’s introduction, the tiny Abingdon office had successfully prosecuted ten doctors, pharmacists, and dentists for overprescribing the drugs, including to nine-year-old kids. By the time their investigation was over, nine state and federal agencies would spend five years helping the stone-faced prosecutors build the case. Unlike the civil lawsuits that preceded them, Brownlee’s team had to prove only that the company had “misbranded” the drug, a broad and somewhat technical charge that makes it a crime to mislabel a drug or fraudulently promote it, or market it for an unapproved use. The federal prosecutors didn’t have to prove the misbranding was actually responsible for the overdoses and the addiction and misuse, just that Purdue Pharma had criminally misbranded the drug, according to Hammack, the Roanoke Times courts reporter. “So it was a very murky legal line, but Randy and Rick figured it out. But there was definitely this feeling by Purdue that this was a little bit of a backwoods, small-town outfit. I think they underestimated them to some degree,” Hammack said.

  The four-year run-up to what would eventually result in the company’s plea agreement involved Purdue Pharma struggling to understand that the backwoods lawyers had in fact sussed out a crime inside their mound of documents. The company put a full-court press on Brownlee, first with multiple phone calls from Rudy Giuliani, who attempted to unnerve the much younger man during settlement negotiations on Purdue’s behalf.

  Brownlee had read Giuliani’s book, Leadership, to get ready for his first meeting with him. “I wanted to be prepared,” he said. “Look, my view of the case was, it didn’t matter where we were or how small we were. To me, it demonstrated that a couple of good, smart prosecutors, working out of a strip mall in Abingdon, Virginia, if they work hard and they’re tenacious, they can win one of the biggest cases in Virginia,” he told me.

  An assistant prosecutor in the case recalled that Giuliani put on a folksy front but was not intimately involved in the negotiation’s details, possibly because he was pursuing what would prove to be a failed bid for the Republican presidential nomination. “His role was that his star power alone was supposed to intimidate us,” said an assistant federal prosecutor involved in the negotiations who was not authorized to speak publicly about the case. “People say ‘the government and all its resources,’ but when you’re in the middle of a case like this, you don’t feel that sense because they always have way more people working on the case than you have.”

  In the fall of 2006, Purdue’s lawyers began to sense that this case against them was different; that a full-court press meant nothing when the opposing counsel was the United States of America. Was it really possible the small-town lawyers had compiled enough evidence to indict both the company and its top executives on a host of felony charges, not just for misbranding the drug but also for mail fraud, wire fraud, and money laundering? It seemed so, according to a memo written by the federal prosecutors to Brownlee at the time.


  “But it got watered down, as it went through the Department of Justice headquarters, and the folks working for Purdue, including Giuliani, lobbied hard for the executives not to be indicted on felony charges,” said an observer connected to the case. The fines would get batted around, too, with Purdue initially offering to pay $10 million compared with the government’s initial proposal of $1 billion.

  The winnowing down of a settlement is a common part of plea agreements. Prosecutors typically threaten more serious charges while defense lawyers counter that they’ll go to trial to prove their client’s innocence. Meanwhile, Giuliani’s lobbying efforts arrived with the timing and authority of a flagrant foul. In 2005, Purdue lawyers called then–deputy attorney general James Comey to question Brownlee’s investigatory tactics, and Comey called Brownlee with concerns. The young attorney responded by personally driving to Washington to lay out his strategies.

  “Brownlee, you are fine. Go back to Virginia and do your case,” Comey told him.

  But Purdue’s boldest move came later, in October 2006, the night before the plea agreement was set to expire—after which the company would face charges—when a senior Justice Department officer phoned Brownlee at home (at a Purdue lawyer’s request), urging him to extend the deadline to give Purdue more time. Brownlee was through being pressured. The lobbying and negotiations had gone on long enough. The clock had all but run out.

  Rather than risk more serious charges or a jury trial in western Virginia, where the drug’s problems were by now legend, the company accepted the plea agreement later that night. But Purdue wasn’t quite finished negotiating. Eight days after it accepted the deal, Brownlee was stunned to see his name on a firing list, along with four other U.S. attorneys. Though he wasn’t ultimately fired, the incident provided fresh criticism of then–attorney general Alberto Gonzales, accused of trying to sway the work of U.S. attorneys’ offices.

  And it only underscored the long reach of Purdue: Udell’s defense lawyer Mary Jo White, a former Manhattan U.S. attorney, had been the one to press for more time in a call to a Department of Justice official. (Brownlee would break down how Purdue’s attempted influence peddling worked—or didn’t—in a later Senate hearing about the case.)

  Brownlee weathered the heat. By the time the negotiations were complete, a Purdue-owned holding company, Purdue Frederick, would plead guilty to a single misbranding felony and the company’s executives to misdemeanor charges of misbranding the drug. In a bit of legal-language parsing, the executives would not stipulate that they’d had direct knowledge of the misbranding, only that “the court may accept these facts in support of their guilty pleas.” In other words, their only crime was that they headed up a firm wherein other people committed crimes.

  Compared with the charges Ramseyer and Mountcastle had originally threatened, the final agreement was a mixed bag. Prosecutors initially wanted to impose the $1 billion corporate fine as well as multiple felony charges against both the company and the executives. “But we got what we could get,” said a prosecutor involved in the case.

  Purdue, for its part, had initially proposed paying $10 million and incurring no felony charges—“an insult,” according to a government source involved in the negotiations. “It was clear they thought we’d take a very small sum of money and go away—because it would be a lot of money for a district of our size,” the source said. “I will tell you, what we ended up with was far closer to where we started than where they started.

  “Their lawyers were shocked,” the negotiator added. “They did not expect the firmness with which we approached this.…Had they not agreed, we were fully prepared to take them to trial.” The Sacklers, anyway, were convinced. Midway through the negotiations, following a Washington meeting of both sides, word filtered down from the Sackler family: “We can’t buy our way out of this one. Make this case go away,” the government negotiator recalled. If that meant throwing three executives under the bus, well, then, the men had been loyal employees for many years. But the Sacklers had to do what the Sacklers had to do.

  The Sacklers understood that a federal jury convened in southwest Virginia, a region that had now seen as many as two hundred OxyContin-related deaths, could have awarded far harsher penalties. “We weren’t just trying to get a little bit of money from them. The goal was to stop the criminal behavior, punish it, and to strip them of their profits,” the negotiator said.

  On a clear day in May 2007, in the atrium of a downtown Roanoke office building, Brownlee unveiled the news of the settlement: The company and its top executives would plead guilty to their role in a marketing blitz that hyped OxyContin’s strengths while downplaying its propensity for addiction and abuse. To resolve the federal criminal and civil misbranding charges, Purdue would pay $600 million in fines and admit that for six years it had fraudulently marketed OxyContin as being less prone to abuse and having fewer narcotic side effects than instant-release versions of the drug—a felony misbranding charge. Top executives Paul Goldenheim, Michael Friedman, and Udell would pony up $34.5 million (or, rather, the firm would, on their behalf) and plead guilty to misdemeanor versions of the crime. The fines against Purdue and its executives accounted for about 90 percent of the company’s profits from the time the drug went on the market, in 1996, until 2001, when Purdue dropped the insert language about the timed-lapse mechanism’s ability to “reduce the abuse liability of a drug,” Brownlee explained. It was the eleventh-largest fine paid by a pharmaceutical firm in the Justice Department’s history.

  Best of all for people like Bisch, Van Rooyan, and Nuss: An Abingdon sentencing hearing was planned for mid-July that would bring the Connecticut executives face-to-face with grieving parents, who were invited to discuss—on record, in court—the damage OxyContin had wrought. The executives would not serve any jail time, per the plea agreement, though it was ultimately up to the judge, at their court appearance, to sign off on the deal and outline the exact terms of their probation and community service.

  Brownlee enjoyed presenting his evidence at the press conference, unfolding his podium against a staggering backdrop of documents amassed by Gregg Wood, the stoic prosecutors Randy Ramseyer and Rick Mountcastle, and scores of others recruited to the team—all of whom stood to his right. To his left sat an assortment of evidence culled from the two thousand cardboard containers they’d filled with documents, depositions, and data. The boxes were lined up in columns four to five feet high.

  For added visual effect, Brownlee displayed falsified charts created by Purdue that had claimed “smooth and sustained blood levels” and “fewer peaks and valleys” for patients on OxyContin. The ginned-up graphs were meant to buttress the drugmaker’s claim that OxyContin had less potential for abuse. An adjacent easel featured actual clinical data that the prosecutors had culled from Purdue’s own studies. The real data looked like a map of steep mountains, the faked data like a single gentle slope.

  The fluctuations measured, in hours and milligrams, the difference between truth and lies. These charts represented two of forty-six assertions in a “statement of facts” drawn up by Brownlee’s team and agreed to by Purdue, underscoring that the company had knowingly falsified several claims about the drug. Among them were numerous instances of Purdue quashing data critical of the drug, such as early reports of patients complaining of withdrawal symptoms (“I would not write it up at this point,” one supervisor advised an employee, saying it might “add to the negative press”). Another fact highlighted the claim sales reps made to some doctors that oxycodone was harder to extract from OxyContin for IV use than other pain medications—when Purdue’s own study showed that a drug abuser could recover 68 percent of the drug from a single pill. Likewise, the company conceded that some reps falsely claimed OxyContin caused less euphoria and was less likely to be diverted than Percocet and other immediate-release opioids and could therefore be used to “weed out” addicts and drug seekers.

  It had all come from the Shadow Company’s “Warehouse,” as th
e prosecutors called it. The hillbilly lawyers had filled so many boxes with evidence that Brownlee had to rent extra space in an Abingdon strip mall to hold them all.

  The Pennington Pharmacy, Pennington Gap, Virginia

  Chapter Four

  “The Corporation Feels No Pain”

  Abingdon is the legal and artistic hub of far southwest Virginia, a quaint town full of restored colonial-era brick buildings. By the time Purdue executives turned up there to be sentenced in 2007, it was better known for upscale boutiques, arts, and crafts than for its twentieth-century role as a way station for coal trains hauling the prosperity out of places like St. Charles, some eighty miles west. That summer, the novelist Barbara Kingsolver was about to launch a trendy farm-to-table restaurant, the Harvest Table, in nearby Meadowview, an outgrowth of her memoir, Animal, Vegetable, Miracle: A Year of Food Life, then on the bestseller list.

  Abingdon had nurtured the early acting talents of Ernest Borgnine and Gregory Peck in its storied Barter Theatre, named for Depression-era theatergoers’ practice of trading a live chicken for the privilege of watching a play. Just a few months before the Purdue sentencing, in the spring of 2007, the Barter stage featured a homegrown comedy about the widow of a moonshiner who, fallen on destitute times, goes into the business of selling OxyContin, supplying her enterprise with stolen pills and those from her own prescribed stash.

  When Sister Beth Davies saw the play, she alternately cried at the ruined lives, marveled at the Appalachian resourcefulness, and laughed at the snappy dialogue. “If you don’t laugh sometimes, you’ll go crazy,” she said.