Authors: Scott Bartz
Johnson & Johnson established close relations with the Chicago police, the FBI, and the FDA. In this way, according to a public relations executive from Burson-Marsteller, the company could play a role in searching for the person who poisoned the Tylenol capsules and could help prevent further tamperings. The rock-solid relationship that Johnson & Johnson had with the FBI started at the top with FBI Director William Webster, and went all the way down to the FBI agents in Chicago. Johnson & Johnson’s employment of retired FBI agents in its Worldwide Security division enhanced this cozy relationship. J&J further strengthened its ties with the FBI Office in Chicago by hiring Intertel Security Systems, a private detective agency in Norwood, Illinois, to “investigate” the Tylenol tamperings. Many of Intertel’s private investigators were former FBI agents.
J&J routinely hired private investigators when it wanted to remove certain Johnson & Johnson products from the marketplace. J&J hired private investigators and former FBI agents in the 1980s through the 2000s to track down, and remove from the marketplace, a variety of diverted J&J products, including diabetes test strips, toothbrushes, and Procrit (an anti-anemia drug). J&J executives did not hire Intertel to help track down the Tylenol killer, but rather to track down and destroy the Tylenol capsules that had been handled at the warehouse where the tamperings occurred.
The boundary between Johnson & Johnson and the government’s Tylenol task force was non-existent. According to Larry Foster, “Jim Burke spent much of the early days in Washington conferring with Arthur Hull Hayes, the FDA commissioner, and his staff, and with FBI Director William Webster and his staff.”
When Mike Wallace, of
60 Minutes
, asked William Webster about J&J’s role in the Tylenol murders investigation, Webster said, “The attitude of top management has been first the interest of the public, then assisting law enforcement, and then their own corporate concerns for the product.”
The FBI had a surprisingly strong presence in the Tylenol murders investigation. Tampering with medicine was only a misdemeanor in 1982, and the murders were not a federal crime; they fell under the jurisdiction of the State of Illinois. Nevertheless, 50 of the 140 investigators on the Tylenol task force were FBI agents.
The Illinois Department of Law Enforcement (IDLE), at the direction of Illinois Attorney General, Tyrone Fahner, was in charge of the Tylenol murders investigation. The Illinois officials who dictated the investigative strategy were all current or former employees of the United States Department of Justice. All had been, currently were, or would become the director of IDLE. They were all Governor “Big” Jim Thompson’s boys.
Thompson had been the U.S. attorney in the Northern District of Illinois from 1970 to 1974. He was the governor of Illinois from 1979 to 1991, and the chairman of the Chicago law firm, Winston & Strawn, from 1991 to 2006. Indeed, Thompson’s experience in handling the Tylenol murders investigation may have been one of the criteria that led to his appointment as a member of the 9/11 Commission.
Governor Thompson had appointed Tyrone Fahner as his attorney general in 1980. Fahner had been an assistant U.S. attorney in the early 1970s under then U.S. Attorney, Jim Thompson. Thompson appointed Fahner as the director of IDLE in 1977, a position he held until 1979.
Thompson appointed Dan Webb as the director of IDLE in 1979. Webb had also been an assistant U.S. attorney under Thompson in the early 1970s. Webb served as the chief of the Special Prosecutions Division at the U.S. Department of Justice from 1970 to 1976. He was the U.S. attorney in the Northern District of Illinois from 1980 to 1985, and he led the Justice Department’s investigation of the Tylenol murders. Webb took over as chairman of Winston & Strawn in 2006 when Jim Thompson retired from that position.
From 1981 to 1984, Jeremy Margolis was an assistant U.S. attorney reporting directly to Dan Webb. In 1984, Governor Thompson appointed Margolis to the newly created position of Illinois inspector general. Thompson then appointed Margolis as the director of IDLE in 1987, a position he held until 1991.
Thomson appointed James Zagel as the director of IDLE in 1980, a position he held until 1987 when he became a judge in the United States District Court for the Northern District of Illinois. Under the direction of
Tyrone Fahner, Zagel led the primary investigative force involved in the Tylenol murders investigation.
Fahner, Webb, and Margolis, the outspoken leaders of the Tylenol murders investigation, had absolute, unconditional loyalty to Big Jim. They were also extremely sympathetic to Johnson & Johnson, a corporation that operated more than a dozen plants in the Chicago area and brought thousands of jobs and hundreds-of-millions of dollars into the Illinois economy. The loyalties of Illinois officials became apparent on the second day of the Tylenol murders investigation, when, instead of inspecting the Tylenol capsules in the Chicago marketplace, authorities turned them over to Johnson & Johnson.
IDLE Commander Edward
Cisowsk
said on Friday, October 1
st
, that a warehouse in Lemont, 26 miles southwest of Chicago, had been cleared to store all of the Tylenol bottles turned over to police or confiscated from stores in the Chicago area. Fahner said a J&J official had informed his office on Thursday that Johnson & Johnson would pay all costs associated with collecting the Tylenol capsules from stores in Illinois and moving them to the temporary lab. J&J’s staff of 30 toxicologists at that lab had already begun testing Extra Strength Tylenol capsules on Friday, October 1
st
. The reason J&J was able to begin testing those capsules so quickly was because J&J had set up the temporary lab in one of its own warehouses – the Johnson & Johnson Midwest Distribution Center in Lemont. Johnson & Johnson had thus taken control of the physical evidence from the Tylenol murders crime scene, and was now in a good position to ensure that it would not be held liable for the poisonings in a court of law.
9
________
Richard Epstein, a law professor at the University of Chicago and the author of several books on consumer law, explained the legal implications for J&J if the tamperings had occurred in the retail stores, versus the distribution channel. “If the tampering is not linked to the manufacture or distribution of Tylenol,” said Epstein, “McNeil could be free from any liability.” If, however, it turned out that a disgruntled employee altered the capsules at the manufacturing plant or somewhere along the way before the bottles were shipped, Epstein said McNeil “would be in a lot more trouble.”
The public accepted very quickly the theory that the Tylenol killer had put cyanide-laced Tylenol capsules into bottles that were already sitting on the shelves of Chicago area retail stores. This tampering at-the-retail-stores theory was the cornerstone of the “approved theory” for the Tylenol murders. The second and third components of this theory were that the cyanide would have eaten through the gelatin-based capsules within just one to a few days, and that the Tylenol killer was an anonymous madman.
The approved theory benefited Johnson & Johnson in a number of ways. If the tamperings were not linked to the manufacturing plants or the distribution channel, then neither J&J nor its distributors could be held liable for the tamperings or the murders. Officials touted the alleged super-corrosiveness of cyanide as “scientific proof” that the tamperings had occurred after the Tylenol was delivered to local retail stores. The FBI quickly developed a psychological profile of the Tylenol killer as a mentally unstable loner who had poisoned the Tylenol capsules at the retail stores. This illusory character drew attention away from the obvious suspects working within Johnson & Johnson’s channel of distribution.
Illinois Attorney General, Tyrone Fahner, laid out the basic premise of this approved theory. He said the Tylenol was not tampered with until it reached the stores, ruling out the possibility that the capsules were filled with cyanide during either manufacturing or distribution. According to Fahner, the cyanide-spiked capsules probably were placed in the stores on Tuesday, September 28
th
, apparently on the front of the shelves to ensure that they would sell quickly. Fahner said the Tylenol killer began with one bottle of cyanide-laced Tylenol capsules, and went from store to store replacing a random number of Tylenol capsules in bottles already in the stores, with poisoned capsules.
When Fahner was asked if there was any possibility that the tampering had occurred at the manufacturing plant; he replied, “It is a mathematical and physical impossibility. It could not have been done in the factory.” He said the potassium cyanide was a corrosive that would soon destroy the capsule’s gelatin shell. Officials cited this super-corrosive characteristic of cyanide as proof that the Tylenol capsules had been filled with cyanide and planted in the retail stores the day before the poisonings. But they had no real evidence to support this hypothesis.
Before noon on Thursday, September 30
th
, Johnson & Johnson already had its legal team in place at its corporate headquarters in New Brunswick, at the McNeil Consumer Products Company in Fort Washington, and at the crime scene just outside Chicago.
Johnson & Johnson’s legal maneuvering came to the forefront when Chicago Mayor, Jane Byrne, ordered Chicago police and health officials to remove all Tylenol products from all 2,000 stores throughout the city by 6 p.m. Sunday, October 3
rd
. That order did not sit well with the J&J executives who had already put a great deal of effort into promoting the message that the tamperings affected only Extra Strength Tylenol capsules.
Just one day earlier, Johnson & Johnson had agreed to cover all costs associated with collecting and moving Tylenol capsules from Chicago area stores to J&J’s distribution center in Lemont. However, upon learning that Mayor Byrne was banning the sale of all Tylenol products - including Regular Strength Tylenol capsules – Johnson & Johnson immediately attached a few strings to that offer.
Attorney Paul Noland, one of Johnson & Johnson’s hired hands in Chicago, responded on Sunday to Mayor Byrne’s order, by amending the company’s previous offer of help. Noland now said that Johnson & Johnson would not pay to collect or inspect any Regular Strength Tylenol capsules. Furthermore, Noland said that all Extra-Strength Tylenol capsules collected in the Chicago area were to be delivered only to J&J’s distribution center in Lemont and inspected only by J&J employees. The FBI and Illinois officials agreed to these conditions, and thus allowed J&J to suppress information and evidence that might have been used to hold the company accountable and liable for damages.
At the time of the Tylenol murders, Johnson & Johnson was already in the midst of a successful campaign to hide information about the sometimes deadly side effects associated with Zomax, a McNeil painkiller that J&J would reluctantly withdraw from the U.S. market in March of 1983. A review of the Zomax case reveals a pattern of suppressing information that was remarkably similar to the tactics Johnson & Johnson used to conceal details about the distribution of Tylenol and about the Tylenol killer’s true modus operandi.
During the 28 months that Zomax was on the market in the United States, J&J received hundreds of reports of life-threatening allergic reactions from the drug. The FDA concluded that Zomax was probably a factor in fourteen deaths.
In February 1982, immediately following a report in the
Journal of the American Medical Association
of a case of anaphylactic shock in a Zomax user, a directive to play down this report went out to McNeil’s sales force. “This information is being sent to you, so you will be fully prepared to respond to a physician or pharmacist who initiates discussion on the article. You should not bring up the subject,” the memo said.
J&J used protective orders and confidentiality agreements to prevent disclosure of information that the company had given plaintiffs during the numerous lawsuits filed by Zomax victims. A
Washington Post
article published several years after the recall noted that the documents that were still being kept secret stated that there were “indications during pre-marketing that Zomax might cause a severe allergic reaction...which can lead to seizures and respiratory failure.” The notice about this danger was not included in the labeling until nine months after the drug went on the market. One internal memorandum to the company’s President criticized the company for not acting sooner.
The wife of one person who died from an allergic reaction to Zomax said she’d settled her case without knowing about a meeting in which McNeil’s own medical doctors had “declared their lack of confidence in Zomax’s safety.” According to McNeil Pharmaceutical Associate Medical Director, Dr. James A. Dale, who attended the February 5, 1983 meeting, three of McNeil’s four highest-ranking medical doctors had told McNeil Pharmaceutical President
Jack O’Brien
that they were so concerned about the safety of Zomax that they themselves would not prescribe it. Even so, McNeil executives still refused to recall the drug, deciding instead just to strengthen the warning on the labeling. While the new warning was being prepared, McNeil learned of three more cases of fatal anaphylactic shock in Zomax users. James Burke himself made the decision to keep the drug on the market anyway.
Robert
Gussin
, McNeil’s Vice President for Scientific Affairs, dismissed the concerns about Zomax that were expressed by Dr. John Harter, the FDA official in charge of regulating Zomax. In a January 25, 1982 memo to a McNeil colleague,
Gussin
described Harter as someone who “seems to have a different cause célèbre every week, and we would go out of our minds if we seriously followed up every one.”