“For both of us, I think in another life, we’d come back as investigative reporters,” said McGinley, a stalwart at the law school since 1975. “We love reporters and the whole culture of getting truth to the public.”
“It parallels what lawyers do,” Weise said. “We're all seeking the truth.”
“Well,” McGinley chimed in, as spouses comfortably do, “some lawyers are seeking the truth. And some are seeking to cover up the truth. Within the bounds of legal ethics.”
McGinley and Weise see themselves as truth seekers. That's why the Charleston Gazette-Mail called the duo for legal guidance regarding one particular case — a case with 100 billion reasons for concern.
Signed, sealed and obstructed
The phone call specifically came from Eric Eyre, one of those investigative reporters equipped with a keen eye to uncovering misdeeds and mischief, particularly among the powerful.
Throughout the 2010s, Eyre set his sights on lifting the cloak on how and why pain pills had swamped the Mountain State at a presumably unprecedented rate.
West Virginians, especially in the smallest and poorest regions were getting hooked. Many died. And, still, the beat rolled on.
“The nexus was that they're hauling opioids into West Virginia,” McGinley said. “But we don't know how many or where they're coming from.”
A 2012 lawsuit filed by the Office of the West Virginia Attorney General aimed to find out. The original complaint accused pharmaceutical companies of profiting from the opioid epidemic and ignoring suspicious prescription drug orders.
The suit, however, stalled in the court system. Filings and documents were sealed from the public. Pharmaceutical companies, later joined by an unlikely ally in the Drug Enforcement Administration, refused to release records pertaining to their pain pill shipments to West Virginia pharmacies. Even a gritty reporter like Eyre kept getting stonewalled.
If anyone could help him break the walls down, it would be McGinley and Weise.
“My first impressions [of the two]? Jeff Bridges and Emma Stone,” Eyre said. “Pat is laid back, an analyzer, deep-thinker, professorial. Suzanne is a doer, high-energy, get-things done, keeps the trains running on time, converts ideas to actions. Their personalities complement each other.”
The duo’s relationship with news media spans decades. In the 1990s, they helped the then- Charleston Gazette expose shady dealings between the state government and a British company that proposed to build North America’s largest pulp and paper mill in Mason County, W.Va. The company had notoriously used chlorine bleaching and other outdated methods that threatened environments with dioxins and other pollutants, and it planned to employ non-union, out-of-state workers for the mill’s construction.
Staunch opposition led to the project’s demise.
“We have represented newspapers and media in various contexts, especially FOIA (Freedom of Information Act) litigation,” said McGinley, who co-authored “The West Virginia Open Government Guide” with Weise to champion freedom of the press and government transparency. “ The Gazette-Mail wanted to know what was going on with these sealed opioid cases. We knew something wasn’t right.”
A domino falls in Boone County
One of the first true tests for McGinley and Weise came in spring 2016 under the gold dome of the Boone County Courthouse in Madison, W.Va. Drug companies had continued to request the sealing of court records as part of the state lawsuit that began four years earlier, while the Gazette-Mail fought feverishly to disclose that information.
Filling the ornate courtroom in the former coal town of 3,000 were several dozen lawyers representing Big Pharma — many from distinguished white-shoe firms based in major cities including New York City, Philadelphia and Cleveland.
They claimed that the sealed records contained proprietary data for their clients, 10 of the nation’s largest prescription drug distributors, and must be kept under wraps from the public and pharmaceutical competitors.
McGinley, Weise and Tim Conaway, JD ’75, Law, argued that the information, at least five years old, was outdated and did not outweigh the public’s right to know.
Boone County Circuit Judge William Thompson, BS ’92, Civil Engineering; JD ’95, Law, agreed. The court’s order was clear: Unseal the documents.
“The court finds that there exists a longstanding right of public and press access to legal proceedings and documents,” Thompson wrote in his order.
Eyre would now get some real data behind the deaths and despair that’s ravaged the hills and hollows of West Virginia.
McGinley and Weise were stunned by what Eyre would report.
‘They don’t have Band-Aids. They don’t have Pepto-Bismol. All they’ve got are opioids.’
Through the remainder of 2016, Eyre produced a series of stories stemming from the newly-released data that would earn him journalism’s most prestigious award, the Pulitzer Prize.
McGinley and Weise predicted Eyre’s accolade once they saw the articles, riddled with numbers that remain staggering to this day.
From 2007 through 2012, drug companies flooded West Virginia with 780 million hydrocodone and oxycodone pills. That figure equates to 433 pills per person in the state. Those two painkillers also contributed to the deaths of 1,728 West Virginians.
[Read how the opioid epidemic took a bite out of the economy.]
Lortab and Vicodin are among the brand names for hydrocodone while Oxycontin and Percocet are the widely-known brands of oxycodone.
“We didn’t know what we’d see [after Judge Thompson’s ruling],” Weise said. “The number was downright shocking. And those are just two types of pain pills. When we read there were 780 million of these addictive opioids flooding the state we thought, ‘No wonder they wanted to keep this secret.’”
The southern coalfields were hit hardest. In his reporting, Eyre cast light on towns and pharmacies that received a glut of painkillers and the drug companies that benefited financially:
Sav-Rite Pharmacy in Kermit, population less than 400, received 9 million hydrocodone pills in just two years.
Sales orders for hydrocodone at Tug Valley Pharmacy in Williamson rose from 820,000 pills in 2007 to more than 3 million in 2009.
In two days, H.D. Smith Drug Wholesale Co. shipped 39,000 painkillers to two sham pharmacies, located within a few blocks of each other, in Mingo County.
Top Rx distributed more than 300,000 hydrocodone tablets to a pharmacy in War, population 808, in a four-year period.
AmerisourceBergen Corp. sent 61 million hydrocodone pills and 27 million oxycodone tablets to West Virginia.
The more high-profile “pill mill” pharmacies exposed by the suit have since shuttered. Within months of Eyre’s breaking stories, several distributors settled their cases and paid $85 million to the state.
Some pharmacists and drug company executives have been indicted. Yet, if you ask McGinley and Weise, not enough punishment has been doled out to those they deem responsible for fueling a nationwide epidemic.
“It’s not just West Virginia,” McGinley said. “It’s in Kentucky, Pennsylvania and all around the country. People are getting addicted, overdosing and dying. Those communities have the right to know what these drug companies were doing. How is it that literally millions of prescription opioid pills were flowing through these local ‘drive-in’ pharmacies? They don’t have Band-Aids. They don’t have Pepto-Bismol. All they’ve got are opioids. They handed them out from a drive-thru window like McDonalds hamburgers. People were lined up around the block. And nobody knew there was something wrong?”
While the scope of the epidemic in West Virginia became a bit clearer with the unsealing of the data, there was still work to do on the rest of the nation. McGinley and Weise were just rolling up their sleeves.
They fought the law and …
Every controlled substance transaction that takes place in the United States is documented in a federal database known as the Automation of Reports and Consolidated Order System (ARCOS). It enables the DEA to track each pain pill ever made, from the manufacturer to the distributor to the pharmacy to the customer.
In fact, the sealed documents in the West Virginia case contained information provided by that very database.
However, as more and more lawsuits against Big Pharma piled up across the country, ARCOS data on a national level remained under wraps. Other states were left in the dark on how many pills entered their towns and where they wound up.
Each civil case filed was rolled into multidistrict litigation, in which a federal court absorbs the handling of usually hundreds or thousands of civil suits relating to a similar issue.
This resulted in more than 2,000 government plaintiffs, including states, cities and counties, taking on the pharmaceutical giants accused of igniting the flames of the opioid crisis. The Gazette-Mail, under its parent company HD Media, McGinley and Weise stayed on for this ride.
“The West Virginia case was a catalyst,” Weise said. “Up to that point, I don’t think there had been a similar case filed by a state or government entity seeking to hold the drug companies responsible for the opioid epidemic.”
The multidistrict litigation, which landed in a Cleveland federal court, made for strange bedfellows as the DEA sided with the drug companies to withhold ARCOS data from public view. The feds argued that the release of information could compromise DEA investigations.
“This was literally a legal drug cartel where billions of dollars were made selling these addictive drugs without any serious law enforcement actions,” McGinley said, “as opposed to what happens when you’ve got El Chapo or Pablo Escobar who are public enemy No. 1. That’s why it’s important for the public to know how this epidemic evolved and grew and who the players were.”
McGinley and Weise balked at that stance, pointing out that the data requested predated 2014. They argued that a five-year statute of limitations could not lead to the prosecution of anyone identified of criminal activity in those records.
Yet, U.S. District Judge Dan Polster agreed with the defendants.
“The judge was very dismissive,” Weise said. “He adopted the DEA and drug companies’ argument.”
“And then we’re depressed,” said McGinley, jokingly. “Now we’re cranking it up and working 16 hours a day trying to figure out how to articulate the media’s position.”
Perhaps the arrival of a journalistic juggernaut was needed to shift the momentum. The Washington Post joined the fray and teamed up with HD Media to appeal Polster’s decision to the U.S. Court of Appeals, 6th Circuit, in Cincinnati.
“They brought a gravitas that we wished we had,” McGinley said.
“The Washington Post and their attorney, Karen Lefton, got the court’s attention,” Weise added.
In May 2019, McGinley and Weise found themselves in a familiar situation from three years prior in Boone County. Only now, the stakes were much higher with nationwide repercussions. The only other court the case could advance to would be the U.S. Supreme Court.
“I was nervous, as you can imagine,” McGinley said. “Those judges are at the top of their game.”
Lefton, the Post’s attorney, went first, allowing McGinley time to assess the scene and further prepare his argument.
Their game plan included referencing the West Virginia case and how ARCOS data for the state had been disclosed without any objection from the DEA. The plaintiffs also hammered on how the information requested was no longer relevant or timely from either a business or law enforcement standpoint.
And most of all, the public and the press had the right to know.
McGinley delivered the Gazette-Mail’s oral argument.
“It was a relief walking out of there,” he said. “We shook hands with the opposing counsel and walked out of the courthouse. But then you have to wait.”
The best disinfectant
Over a month passed since McGinley’s argument before the federal court in Cincinnati. McGinley and Weise were taking their first break in a while from teaching and writing to travel to Ireland with their grandchildren.
Awaiting a flight from Detroit Metropolitan Airport, McGinley read a text message from the Post’s legal counsel that popped up on his phone: “We won.”
“I was talking to Courtney [Hessler] at the Huntington Herald- Dispatch while we’re on the plane and the flight attendant is yelling at me to get off my phone and, you know, normally, I would never do that. She stood there, glowering at me, until I hung up.”
A three-judge panel ruled, by a 2-1 vote, that Judge Polster unseal the requested ARCOS data. In the ruling, the judges characterized Polster’s decision as “bizarre” and found that he abused his discretion.
As the victorious couple met family in Ireland, a wave of news stories showered the mainstream back in the States.
The Washington Post reported that, collectively, 76 billion oxycodone and hydrocodone pills were distributed throughout the U.S. from 2006 through 2012, contributing to nearly 100,000 deaths.
In January, Polster finally accepted the Gazette-Mail and Washington Post’s arguments that the 2013-2014 ARCOS data should also be made public — revealing that 100 billion prescription opioid pills fueled the epidemic from 2006-2014.
West Virginia had the highest opioid death rate in the country and the highest annual concentration of addictive pills per person per year at 66.5.
“This was literally a legal drug cartel where billions of dollars were made selling these addictive drugs without any serious law enforcement actions,” McGinley said, “as opposed to what happens when you’ve got El Chapo or Pablo Escobar who are public enemy No. 1. That’s why it’s important for the public to know how this epidemic evolved and grew and who the players were.”
As director of the Child and Family Advocacy Law Clinic at the College of Law, Weise can put faces to the numbers.
“We’re often involved in child custody cases where we’ve seen a parent or both parents saddled with opioid addiction,” she said. “In many instances, the grandparents are now taking care of children.”
Even a client who worked with Weise and her students died last spring, she said.
The couple hopes the lessons of the battle to uncover the truth resonate at the College of Law.
“I hope it instills in our students an appreciation of how our justice system works,” McGinley said. “It doesn’t always work perfectly. But it’s really awesome to be part of a truth-finding endeavor.”
And they did it all pro-bono.
“They didn’t charge us a nickel,” Eyre said. “They did it out of service to the public, and out of their steadfast belief in the power of local journalism.
“They went toe-to-toe with lawyers from some of the most prestigious, white-shoe law firms in the nation, firms with enormous resources, paid by giant corporations. It was an epic legal battle, and Pat and Suzanne won. It was a coal-country fight that ultimately helped the country understand the origins of the opioid epidemic.”