The Tylenol Mafia (56 page)

Shortly before the Tylenol poisonings, in both 1982 and 1986, James Burke worried about potential problems that might be on the horizon for the Tylenol business. At the J&J Executive Committee’s annual three-day strategic planning review held after the Labor Day weekend in September 1982, Burke worried that things were going too well. “We had been marveling at how lucky we were to be in our industry,” recalled Burke, “to have some very profitable brands doing so well, and I had said, offhand, ‘What if something happens to one of them, like Tylenol?’” J&J had hundreds of products, but Burke singled out Tylenol alone as the focus of his concern.

On February 8, 1986, the same day Diane Elsroth died, Burke had a premonition of another “Chicago nightmare”. “I did worry,” Burke recalled. “That Saturday night . . . I had a dream that Chicago had happened all over again.” It was as if Burke already had information prior to Elsroth’s death of another Tylenol tampering incident. He certainly knew that another Tylenol poisoning incident could happen and that J&J couldn’t stop something like this because the problem was already imbedded in its manufacturing and distribution system.

Johnson & Johnson’s foreknowledge of deadly problems with its drugs is a recurring theme at this company. FDA Commissioner, George Larrick, testified in 1964 that mistakes by his agency and the withholding of information by Johnson & Johnson subsidiary, McNeil Labs, kept the harmful drug, Flexin, on the market for five years. Larrick said that in 1959, two years before the FDA suspended sales of Flexin, “The firm then knew of 39 cases of hepatitis in patients taking Flexin, including 11 fatalities, and that 20 of these cases, including 6 deaths, had been directly ascribed to Flexin by the reporting physicians.”

When Johnson & Johnson executives took the prescription painkiller, Zomax, off the market in 1983, they had known for two years that it was killing people. During its 28 months on the market, J&J had received hundreds of reports of severe allergic reactions from Zomax. The FDA concluded that Zomax was probably a factor in 14 deaths.

A study that J&J was conducting on the painkiller, Suprol, while the drug was under review for FDA approval in 1985, showed clear evidence of Suprol’s adverse effect on the kidneys. J&J hid that data from the FDA, which then approved Suprol in December of 1985. Seventeen months later, under pressure from Congress, J&J removed Suprol from the market. By then, 270 people had suffered kidney damage while on the drug. An FDA official said the Suprol application for FDA approval was “plagued from beginning to end with bad data. Some of it was deliberate falsification.”

More recently, Johnson & Johnson knew that Propulsid, a drug for treating heartburn, had been killing people for six years before they pulled it off the market in 2000. Propulsid had generated $2.5 billion in sales by then, but had also been cited as a suspect in 302 deaths. The drug was never approved for children, yet 24 children under the age of six died while on Propulsid. Despite the adverse effects associated with this drug, Johnson & Johnson had never conducted the safety studies urged by federal regulators and its own consultants. Instead, Johnson & Johnson continued to defend the safety of Propulsid, pulling it from the market just before a Congressional hearing was convened that threatened to draw attention to the drug’s long, largely hidden, record of trouble.

If Johnson & Johnson had knowledge of an ongoing Tylenol tampering problem in its distribution channel in the 1980s, it would have been out of character for the company not to cover up that problem. One of the factors that made it so easy for J&J to keep evidence related to the tamperings hidden was that the press never looked beyond J&J’s vague incomplete answers to questions about the packaging and distribution of Tylenol. J&J executives said the Tylenol involved in the 1982 Tylenol murders had been bottled and packaged at the “factory,” but they never actually disclosed the identity of that factory. Larry Foster said J&J believed that the Tylenol tampering “problem rests in Chicago.” But no J&J executive ever actually said that the tamperings had occurred in the Chicago-area retail stores – not until two decades after the fact anyway.

The Tylenol task force never disclosed the distribution path of any of the bottles of cyanide-laced Tylenol capsules. Authorities never even admitted to conducting an investigation of Zahn Drug, the likely distributor of all of the cyanide-laced Extra Strength Tylenol capsules to Chicago area outlets. However, officials from the FBI, FDA, and IDLE made several visit the company’s Melrose Park distribution center and questioned employees about the Tylenol that had been distributed through that warehouse. According to Zahn Drug Vice President, Jim Dempsey, “They were principally interested in the lots of Tylenol Extra Strength capsules that we had; and they were also interested in what customers had purchased them, how many, and when.”

Johnson & Johnson, within hours of learning about the poisonings, had apparently already traced the cyanide-laced Extra Strength Tylenol capsules to Zahn Drug. On the morning of September 30, 1982, McNeil executives made two extremely urgent phone calls to Kesling Drug. “People started calling yesterday [Thursday], and we took it [Extra Strength Tylenol capsules] all off the shelf, recalled
Estel
Kesling. “McNeil already has called us twice on this,” she said. “They made us go out and personally check all the lot numbers while they waited on the telephone. They called us twice, then said they would have a representative in here today [Friday].”

When McNeil executives made those urgent calls to Kesling Drug, only two bottles of cyanide-laced Tylenol had been recovered. Both had been purchased at Jewel-Osco stores. Kesling Drug received its Tylenol from Zahn Drug. Johnson & Johnson evidently knew from day one of the investigation that Zahn Drug had distributed the bottles of cyanide-laced Extra Strength Tylenol capsules to the Jewel-Osco stores.

The expiration dating of the Tylenol involved in the 1982 tamperings was an obvious clue that the packaging and distribution of that Tylenol was not what J&J and the FDA claimed it was. The Tylenol that was bottled at the McNeil manufacturing plants typically had a shelf life of three years, but the Tylenol involved in the 1982 poisonings had a shelf life of five years. It had been shipped through J&J’s Montgomeryville facility, evidently in fiber drums of bulk Tylenol, to a repackager’s warehouse in Illinois where the tamperings actually occurred. That repackaging facility likely had contracted with Johnson & Johnson, and possibly the Department of Defense, to bottle and package Extra Strength Tylenol capsules.

In 1986, Tylenol capsules were once again filled with cyanide, causing the death of Diane Elsroth on February 8, 1986. Elsroth’s death was being investigated as premeditated murder until a second bottle of cyanide-laced Tylenol capsules was discovered a few days later. The FDA and the FBI confirmed that the three layers of tamper-resistant packaging on both bottles of cyanide-laced Tylenol had not been tampered with. The Tylenol in these bottles had been shipped in fiber drums of bulk Tylenol powder through J&J’s Montgomeryville facility to a third party repackager where the tamperings actually occurred.

Following the 1986 tampering incident, government officials and J&J executives lied about the shelf life of the cyanide-laced Tylenol, and made false statements regarding the distribution and packaging of Tylenol. Eight days after stating that neither the tamper-resistant packaging nor the bottles containing the cyanide-laced Tylenol capsules had been tampered with, the FBI released an “official statement,” falsely implying that the packaging might have been tampered with after all. The FBI put an end to Carl Vergari’s investigation of the Tylenol manufacturing and distribution network just as he was closing in on the repackaging facility where the Tylenol killer had dropped cyanide-laced Tylenol capsules into the bottling production lines.

The FBI’s active participation in the reactivated 1982 Tylenol murders case may be primarily about keeping hidden its conspicuous role in covering up the 1986 Tylenol killer’s modus operandi. A clue to the real reason for the FBI’s involvement in this reactivated investigation came from Ted Kaczynski, aka the Unabomber. Court documents that Kaczynski filed in May 2011 revealed that the FBI had added him to its list of suspects in the reactivated Tylenol murders case. Kaczynski had been arrested in 1996 as the perpetrator of a mail bombing spree that spanned from 1978 to 1995, killing three people and injuring 23 others. He pled guilty on January 22, 1998 to thirteen bombings.

In a Motion for Retention of Evidence filed on May 9, 2011, Kaczynski wrote: “the Chicago office of the FBI wanted a sample of my DNA to compare with some partial DNA profiles connected with a 1982 event in which someone put cyanide in Tylenol.” Kaczynski had filed this motion in a failed attempt to stop a government auction of his belongings, stating that it would be advantageous to him, and the government as well, to retain this evidence “at least until the matter in Chicago is cleared up.” On May 19, 2011, the news media got wind of Kaczynski’s court filing and had a field day reporting that the Unabomber was now a suspect in the Tylenol murders.

FBI spokesperson Ross Rice confirmed that the FBI had asked Kaczynski for a DNA sample. “As part of our re-examination of the evidence developed in connection with the 1982 Tylenol poisonings,” said Ross, “we have attempted to secure DNA samples from numerous individuals, including Ted Kaczynski.

The feds cannot charge Kaczynski for the 1982 Tylenol murders, because those murders were not federal crimes. The 1986 Tylenol tamperings and murder, however,
were
federal crimes. In response to the 1982 Tylenol tamperings, Congress passed the Federal Anti-Tampering Act on October 13, 1983, making it a federal crime to tamper with consumer products. Under the Federal-Anti-Tampering Act:

Whoever, with reckless disregard for the risk that another person will be placed in danger of death or bodily injury and under circumstances manifesting extreme indifference to such risk, tampers with any consumer product that affects interstate or foreign commerce, or the labeling of, or container for, any such product, or attempts to do so, shall -

(1)
in
the case of an attempt, be fined under this title or imprisoned not more than ten years, or both;

(2)
if
death of an individual results, be fined under this title or imprisoned for any term of years or for life, or both;

(3) if serious bodily injury to any individual results, be fined under this title or imprisoned not more than twenty years, or both; and

(4)
in
any other case, be fined under this title or imprisoned not more than ten years, or both.

The FBI appears to be carrying out a stealthy investigation into the 1986 Tylenol murder; hoping to wrap up that murder and the 1982 Tylenol murders in one neat package. But first, it needs a patsy for the 1986 Tylenol murder who can also conveniently take the fall for the 1982 Tylenol murders. Ted Kaczynski would fit that role quite nicely.

The FBI’s search for someone who could take the fall for both the 1982 and 1986 Tylenol tampering incidents was evident back in January 2010 when the Certificate of Materiality was served on James and LeAnn Lewis, requiring them both to submit DNA samples. The FBI cannot frame James for the 1986 Tylenol murder because he was in prison at that time – hence, the FBI’s injudicious interest in LeAnn. The fact that the FBI collected fingerprints and DNA samples from both LeAnn and James in January 2010 suggests that authorities had hoped to close out the 1982 and 1986 Tylenol murders in one fell swoop.

It now appears that the FBI has moved on to Ted Kaczynski as the Tylenol murders patsy because officials from the FBI and the State’s Attorney’s Office in DuPage County were unable to frame James and LeAnn Lewis as the Bonnie and Clyde of the 1982 and 1986 Tylenol murders. Even Kaczynski’s former attorney, Robert
Blazier
, offered up Kaczynski as a scapegoat for the Tylenol murders. “If you had to pick somebody that might be responsible for those particular offenses,” said
Blazier
, “he [Kaczynski] is the logical person. He certainly has the technical know-how to come up with that kind of method for doing away with people.”

Michael Sneed, a veteran journalist for the
Chicago Sun-Times
, contacted Tyrone Fahner on May 20, 2011 to get his perspective on the FBI’s interest in Kaczynski. Fahner told Sneed, “I suppose the case can now be labeled a random act of terrorism. It was a terrible tragedy, and it would be good for all the families of the victims if this were solved. It would be wonderful to put this thing to bed.”

Back in October 1982, while Fahner was leading the Tylenol murders investigation, officials had tried to “put this thing to bed” by framing Ed Reiner as the mastermind of a fabricated Tylenol murder conspiracy. Fahner now seems quite agreeable to the idea of promoting Ted Kaczynski as the Tylenol killer. Fahner told Sneed, “I’m surprised none of us thought of this [making Kaczynski a suspect] before, but I have no knowledge whatsoever of what’s happening now. They [the FBI] haven’t contacted me, but most of the FBI agents who worked the case are retired by now.”

As recently as February 4, 2009, Fahner had publicly proclaimed that Lewis had always been his prime suspect in the Tylenol murders case. But during his May 20, 2011 interview with Sneed, Fahner acted as if he barely had any recollection of Lewis. “It’s been at least a dozen years since I’ve heard any updates on the case, said Fahner, “except for the screwball who was tried for extorting money in the Tylenol case,” said Fahner. After 28 years of promoting Lewis as his prime suspect in the Tylenol case, Fahner has apparently passed on the “Tylenol man” torch to Ted Kaczynski.