|October 15, 2019|
A hometown lawyer is suing the nation's largest drug companies over the opioid crisis
|HUNTINGTON, W.Va. --- Paul Farrell, Jr. was looking through the West Virginia Code a few years ago when he came across a statute saying a county has the legal right to abate a "public nuisance." Typically, that would mean things like trash heaps in someone's front yard.|
But Farrell decided it might also describe prescription opioids.
Farrell is a small-city lawyer in a place often described as the epicenter of the opioid crisis. His hometown has been flooded by pills --- "a tsunami," he says. A thousand people have died of drug overdoses here in less than two decades.
So Farrell, 47, made a federal case out of the catastrophe. He's now one of three lead attorneys in the national prescription opioid litigation, the biggest and most complicated civil case in U.S. history.
The first courtroom showdown is set to begin next week in federal court in Cleveland. Farrell won't argue the case before the jury. Instead, he's one of the backstage masterminds of the litigation, which now includes more than 2,600 communities. The plaintiffs argue that the nation's biggest drug companies --- manufacturers, distributors and retailers --- recklessly peddled opioid painkillers and fueled a wave of addiction.
The public nuisance strategy he helped craft has the advantage of requiring abatement --- meaning the drug companies could be required to pour billions of dollars into communities across the nation that have been devastated by the epidemic.
"They broke it. So they need to fix it," Farrell said of the drug companies. "I want them to stop killing people. I want mothers to stop giving birth to babies addicted to opium. I want my friends and my friends' children to stop overdosing. I want to stop going to funerals."
Farrell is built like a wrestler, and his head has a severe boot-camp buzz cut, which, combined with his blunt speech, adds extra punch to comments like "I am on the war front" and "I'm going to crucify the chain store dispensers."
Farrell represents hundreds of municipalities, having aggressively signed up clients, including Cabell County, of which Huntington is the county seat. He and the other plaintiffs' attorneys are working on a contingency fee basis, meaning they don't get paid anything if they lose in court.
That's been financially hard, Farrell said, and he's not sure exactly how he and his fellow litigators would ultimately be paid -- because there's never been a case quite like this. But in discussing the case, he tends to talk about his hometown. For him, this big lawsuit is personal.
"What you see is the shell of the former glory and beauty of the town I grew up with," Farrell said.
A city's resilience
Huntington is intimately acquainted with tragedy. The mayor, Steve Williams, keeps a framed photograph on the wall of his office, directly behind his desk so that anyone speaking to him will see it. It's the 1970 Marshall University football team.
On Nov. 14 of that year, a chartered DC-9 airplane carrying the team home from an away game crashed into a hillside nearly a mile short of the Huntington airport runway. The pilots had misjudged their altitude, possibly due to instrumentation malfunction. All 75 people aboard --- including players, coaches and many prominent citizens who were boosters of the local team --- perished.
That remains the deadliest aviation accident in U.S. sports history. It also remains very much on the minds of the citizens of Huntington. In interviews, public officials often cite the crash when speaking about the city's resilience. They say they had to learn to hold up one another in hard times.
Opioid pills became popular in the late 1990s, after the medical community embraced pain as the "fifth vital sign" and Purdue Pharma introduced its powerful, slow-release painkiller OxyContin, which the company marketed as less likely to be addictive or abused. People became addicted, and pills became street drugs. When the authorities cracked down, heroin came to town. Then came illicit fentanyl, which was cheaper, more powerful and even deadlier than heroin.
Fatal overdoses jumped dramatically starting early in this decade. At the peak year of the epidemic, in 2017, Cabell County --- population 96,000 --- experienced 203 fatal drug overdoses.
Local leaders are sensitive to Huntington's image. They point to progress in the past two years: Deaths are down, overdoses are down. A "harm reduction program" based out of the health department distributes clean needles for intravenous drug users, along with naloxone to combat overdoses. The community has opened a walk-in clinic for people actively using drugs and seeking help. A new program offers residential treatment for women with children or who are pregnant.
"We are no longer the epicenter of the epidemic. We are the city of solutions," says Lyn O'Connell, who helps run a new division of addiction sciences at the Marshall University School of Medicine.
Farrell and his allies in the big lawsuit envision the drug companies funneling money to places like Huntington over many decades to deal with addiction and recovery.
The Huntington police chief, Hank Dial, noted that violent crime has dropped 26 percent in the past year, and drug use is down. But there's a grim reason for that: So many drug users are dead now.
"I'm not hanging up a Mission Accomplished banner yet because we're still at war here," Dial said.
'I choose to fight back'
Paul Farrell Sr. is a county circuit court judge here. He says of his son, "He's playing in the big leagues now." Asked to describe his namesake, the judge says, "Aggressive. Smart. Focused. And the last two years of his life, this" --- the opioids litigation --- "has been all-consuming."
There are a lot of Farrells here in Huntington. There's a Farrell Building downtown. Back in the 1990s and early 2000s the building was the headquarters of Farrell, Farrell & Farrell, a law firm run by Paul Sr., who had not yet been appointed to the bench, and his brothers Mike and Joe. Paul Jr., a graduate of Notre Dame and West Virginia University School of Law, decided to strike out on his own rather than be part of the family firm, because, he says, "A whole bunch of Farrells had to die before I could be in charge."
Paul Jr. is not without ambition. He even ran for president of the United States --- sort of. In 2016, he paid $2,500 to have his name on the ballot for the Democratic primary in West Virginia. He said he couldn't support either Hillary Clinton or Bernie Sanders because of their position on coal.
"You cannot shut down our coal mines, brag about it on the campaign trail and then expect me to vote for you," Farrell wrote in an op-ed explaining his quixotic candidacy. "Win or lose, I choose to fight back." He got a respectable number of votes in coal country and boasts that he came close to the number that would have given him three delegates to the national convention.
Now he's taken on something even more challenging than a presidential race. Among the uncertainties in recent weeks has been who, exactly, will wind up in court if and when the trial begins. Judge Polster has urged the parties to reach a settlement. Purdue Pharma has reached a tentative settlement with the federal court plaintiffs as well as a group of state attorneys general. Johnson & Johnson recently settled with the two Ohio counties that are part of the first bellwether case. The pharmacy companies were excluded from this trial track. Left standing are major drug distributors, including McKesson, Cardinal Health and AmeriSource Bergen.
A second bellwether trial is planned, with Huntington and Cabell County as the plaintiffs. That's Farrell's trial, in a sense, because it'll be on his home turf --- in the federal courthouse, a short walk from the Farrell Building and from the county courthouse where Judge Farrell has his chambers.
Farrell vows to make that second trial more down-to-earth than the first one. The first one will feature a lot of academic experts, he said. But when the trial comes to Huntington, he wants to call to the stand a string of doctors, nurses, police officers, paramedics, firefighters and other first responders.
It might never happen, though. The companies could settle.
There have been other attempts to derail the Cleveland trial. The attorney general of Ohio, Dave Yost, petitioned a federal appeals court to halt the trial, arguing that the states, not the municipalities, should have jurisdiction over the lawsuits and any subsequent distribution of money.
Yost's last-minute effort infuriated Farrell, who along with other attorneys has spent a couple of years amassing evidence and preparing for trial.
"They can't call me off," he said. "This entire thing is no longer about the responsibility of the defendants, or even about the amount of money they're going to pay. The fight right now is who gets to control the money."
On Thursday the appeals court ruled against Yost, and the Cleveland trial is a go.
The trial is near
Judge Farrell --- who still makes pancakes for his three sons every Sunday morning, said that 90 percent of the criminal cases he sees are related to drugs.
"Do you want your drugs, or the kids?" he recalls asking mothers who are in his courtroom. And sometimes, he said, the answer is "I want the drugs."
The fire chief, Jan Rader, who gained renown in the documentary "Heroin(e)," was also in the judge's office, along with Paul Jr. She described the compassion fatigue that has taken a toll on her first responders. They've all gotten good at using naloxone to revive people who have overdosed. But they become jaded when they see the same people overdosing repeatedly.
"A firefighter is a hero. They're trained to make a situation better. They have the tools to put out a fire. They have the tools and the knowledge to cut somebody out of a car," Rader said. "They do not have the tools and knowledge to save somebody long-term who is suffering from substance use disorder."
Paul Jr. told the story of a young woman who as a girl played sports with his kids. She'd been on and off the drugs. Her grandfather called Farrell and said she was acting erratically again. Farrell called her and asked if she was using and she admitted it. "When you're chasing the dragon as high as you go, the fall is just as great," he warned her.
The judge signed an order to have her committed, and she went to residential rehab, and the day she got out, a Sunday, she had dinner with her whole family.
"The next morning Grandpa found her dead in the bathroom with a needle in her arm," Paul Jr. said.
On a recent night, he took a walk downtown. To Farrell's eyes many of the people on the streets had signs of addiction. It's nothing he could submit into evidence in a court of law, but it's obvious from the way people wander aimlessly, or squat on the sidewalk, or pace anxiously.
"This isn't right. Something's wrong here," Farrell said.
As he stood on a streetcorner, along came a skeletal man in ragged clothes. The lawyer decided to engage him.
"Where you from? What brings you to town?" he asked.
The thin man said he was from Detroit, here to see some friends. His voice was not much more than a croak. "Gonna get my band back together," the man said --- and that same man would still be wandering downtown aimlessly the next day, alone, no band in sight.
When Farrell went back to his darkened office, long after his law firm colleagues had gone home, he made a vow: "I'm going to fix what you just saw."