Dallas Business Journal: The Whistleblower: ‘We weren’t trying to make headlines. We were trying to just follow the evidence.’
The whistleblower: “We didn’t try to make the headlines. We tried to just follow the evidence.
This article introduces Government Accountability Project attorney David Silk and was originally published here.
Three years ago, East Texas Attorney Joshua Russ was hours away from filing a groundbreaking multibillion-dollar lawsuit against Walmart in a Texas federal court accusing the retailer and its 5,000 pharmacies of thousands of opioid- Prescriptions that they knew to have illegally ignored would be suspect.
The families of opioid victims have been notified. The Drug Enforcement Administration signed the lawsuit. Russ and colleagues in the U.S. Attorney’s Office for the Eastern District of Texas prepared for a legal war against the world’s largest corporation and its legion of law firms.
Russ was 33 years old at the time and one of the youngest civil directors in DOJ history, and led one of the largest and most important public health claims in American history. It only took one thing to file the historic lawsuit: final clearance from the superiors to the main court in Washington, DC
He waited and waited and waited, but it never came.
A year later, Russ resigned in frustration.
“Corporations cannot poison Americans with impunity. Common sense requires strict and swift action when Americans die, ”wrote Russ in his letter of resignation. “Well, knowing the many deaths it has caused, [Walmart] redefines shame by claiming it is a victim. “
On the same day, he filed a confidential whistleblower complaint with the DOJ’s Inspector General alleging the division’s political leaders interfered, accusing prosecutors of blocking efforts to obtain important evidence and granting Walmart special treatment.
In December, on the last day of Attorney General William Barr, the Justice Department finally filed a 160-page lawsuit accusing Walmart of thousands of Controlled Substance Act violations and claiming billions in damages.
While Russ and East Texas prosecutors haven’t worked on the case for nearly two years, their fingerprints are all over the legal and factual allegations in the lawsuit.
Walmart denies it did anything wrong, arguing that the DOJ’s lawsuit is flawed for a number of reasons and that Russ and other Texas prosecutors were unethical in dealing with the retailer.
“The Justice Department’s investigation into Walmart was riddled with malpractice and ended with the department filing an unjustified lawsuit in which it fabricated legal theories all over the place in an attempt to force a massive payment from the company,” said Walmart spokesman Randy Hargrove in a Statement on the Texas Lawbook.
In an exclusive interview since stepping down as co-chair of the DOJ’s multijurisdictional Prescription Interdiction & Litigation Task Force in 2019, Russ told The Lawbook that he was “handcuffed by political officials” and that he was “unable be, the main investigation “against Walmart. The Supreme Court interfered in the efforts of his team to collect “key evidence for the case”.
“I’d never seen that in an investigation,” said Russ, who was interviewed by investigators on the US House Judiciary Committee last year and is now an attorney in Plano who represents whistleblowers who report fraudulent use of federal funds.
“My whistling really had very, very little to do with the company itself,” Russ said of Walmart. “It was about the behavior of the department … I want the DOJ to run better for the American public. I couldn’t quit without filing this complaint. “
The OIG and the Justice Department declined to comment on Russ’ whistleblower complaint and to respond to The Lawbook’s written questions.
Lawyers, including former DOJ officials, say they aren’t surprised Russ rebelled against his integrity.
“Maybe one in 100 has the same skills as him, but one in 1,000 who really puts his money on his lips,” said former US attorney Matt Orwig in the eastern borough of Texas.
“He’s one of those people you look at and think, ‘Geez, I wish I did the same thing in the same circumstances,’ and wonder if you’d do it the right way,” said Orwig, now a partner at Winston & Straw.
Russ hired David Silk, a lawyer with a whistleblower advocacy group, the Government Accountability Project, to help him with his dealings with the IG and Congress.
“[Josh’s] Case matters because it’s about the opioid crisis and the participants who made it possible, ”Silk said. “It can be said that not only the manufacturers of the products have a certain responsibility, but everyone else who is involved in the distribution of the narcotics throughout the system.”
Russ came from a family of trial lawyers in Texas. His grandfather, Bryan F. Russ, was a famous East Texas attorney who gained national attention for his 1962 grand jury investigation into the death of a U.S. Department of Agriculture official found dead in an investigation into legendary fraudster Billie Sol Estes. He served as the Robertson County attorney for 24 years.
His father, Bryan F. “Rusty” Russ Jr., was recently elected district judge in Robertson County. And his brother Trey Russ represents the third generation who practice in Franklin at Palmos, Russ, McCullough & Russ – the company that was founded by his grandfather.
“If he sees something is wrong, he’ll speak out against it,” said Rusty Russ.
There was no question that Josh would follow family tradition. His best day as a lawyer was when he was sworn in as a federal prosecutor in 2015.
Russ’ first exposure to the devastating, widespread effects of opioids came in 2016 as part of the team tracking a doctor in Dallas who was selling pain reliever scripts without ever seeing the patients.
The turning point in his training was the prosecution of two Texas doctors, Howard Diamond and Randall Wade, who were charged with overdose-related deaths related to their questionable prescriptions of opioids.
Diamond frequently prescribed the “Holy Trinity,” a dangerous drug combination of benzodiazepine, an opioid, and a muscle relaxant. In 2016 alone, he prescribed 1.46 million dosage units of hydrocodone, 97% of which were for 10 mg tablets, the highest strength available.
Her convictions helped put the Eastern District on the map for prosecuting opioid cases and “made you feel like the opioid crisis was here in our backyards,” Russ said.
However, the investigation also found that an excessive amount of her prescriptions had been filled out by pharmacists at Walmart. A DEA agent who testified at Diamond’s 2017 custody hearing revealed a raid on at least one Walmart pharmacy in East Texas.
In 2018, the DOJ promoted Russ to head of the civil division in the Eastern District of Texas, following Russ’s extensive work with law enforcement in his district to develop a guideline for parallel trials – criminal and civil – against defendants.
Heather Rattan, the chief East Texas attorney who started the criminal investigation against Walmart, reached out to Russ to work in parallel.
“People started to see what we were [the civil division] did, and that’s why people like Heather called me and started realizing the value of the civil department and seeing what we could do, “Russ said.
According to a March 2020 investigative report by ProPublica, Rattan informed Walmart officials in the spring of 2018 that she was ready to indict Walmart for violations of the Controlled Substances Act.
Walmart attorneys asked to meet with law enforcement to make their point. Walmart, seeking universal agreement, wrote to Russ asking Russ to attend the meeting, according to the ProPublica report.
According to Russ and the ProPublica article, there was delay after delay from DOJ leadership in Washington, including a six-month cooling-off period ordered by Trump officials – while Walmart’s attorney wrote to DOJ officials in Washington discussing the investigation complained.
At the same time, Russ said his superiors in Washington had blocked his efforts to gather vital evidence from Walmart, which he believed was based on special treatment.
Arguments that Main Justice was waiting for the right time to file a lawsuit inconsistent with what was being said and happening at the time, Russ said.
“There were delays for all sorts of reasons that were constantly changing,” he said. “I said, ‘If we go ahead with the investigation, we’ll get the most important information.’ I tried to do what Main Justice wanted, but I was unable to carry out the main investigation. But in the meantime people died. “
DOJ officials apparently believed Russ leaked hundreds of internal Walmart emails and investigative documents to ProPublica – a claim Russ told The Lawbook was false.
Russ said he was initially skeptical about taking action against Walmart.
“If you’d told me where we ended up at the beginning of the trial, I probably wouldn’t have believed you,” he said. “Even when we started following it, I was still very skeptical, like, ‘This has to be an isolated incident. It must be a mistake or something. ‘ We were a very skeptical unit.
“We didn’t try to make the headlines,” said Russ. “We tried to just follow the evidence.”
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