The Tylenol Mafia (38 page)

“At the core of what the critical experts were alleging is the poor practice that riddles the FBI lab and much forensic science in the United States. Documentation is a case in point,” wrote Kelly and Wearne. “Examiners have proved remarkably loath to write up their bench notes in any adequate scientific manner. No names, no chain of custody history, no testing chronology, no details of supervisory oversight, no confirmatory tests, no signatures - such omissions are quite normal in FBI lab reports.”

In April 1997, the U.S. Justice Department released a report on the findings of an investigation into the FBI lab by the Office of Inspector General. The report, written by General Michael Bromwich, delved into fewer than two dozen cases from just three of the FBI’s 35 specialized units, but that was enough to cast serious doubt on the credibility of all the findings produced at the FBI labs.

The Oklahoma City bombing case was the biggest of those cited by the 500-page report. It strongly criticized explosives experts involved in the bombing investigation, particularly David Williams, who, according to the study, “reached conclusions that incriminated the defendants without a scientific basis.” The report further chastised Williams for his management of the on-site investigation of the 1993 World Trade Center bombing, saying that he “began with a presumption of guilt upon which to build inferences.” Williams “tailored” his testimony to fit the facts determined by the investigation. The report also sharply criticized Roger Martz, the chief of the FBI’s chemistry-toxicology unit, who “improperly deviated from...protocol in his examination of some specimens.”

Martz was again criticized for his handling of the murder case against George
Trepal
, who was sentenced to death in 1991 for adding the poison thallium nitrate to bottles of Coca-Cola, killing one woman. Bromwich concluded that during
Trepal’s
trial, Martz “offered an opinion stronger than his analytical results would support” and “failed to conduct certain tests that were appropriate under the circumstances, failed to document adequately his work, and testified inaccurately on various points.”

“The prevailing culture of the lab - examiners not properly performing or documenting tests, preparing inaccurate reports, testifying about matters beyond their expertise and much more - suggests that thousands of prosecutions may have been tainted,” said Judy Clarke, president of the National Association of Criminal Defense Lawyers.

Throughout the 1980s and 1990s the FBI frequently falsified findings, misrepresented and suppressed evidence, and gave false testimony. The release of phony forensic findings in the 1986 Tylenol tampering case was just business as usual at the FBI.

More than a week before Milt Ahlerich read the FBI’s official statement, implying that the packaging on the bottles of poisoned Tylenol might have been tampered with; the FBI agents working with Carl Vergari had told him the truth: the packaging and bottles had not been tampered with. These findings were confirmed by FBI spokesperson, Jack French, on February 16
^th
, when he released the FBI’s first official statement. Ten days later, Ahlerich credited the FBI lab in Washington D.C. with the new fabricated findings.

No FBI spokesperson ever said that the FBI lab technicians actually found evidence of tampering. Ahlerich simply said, “It was possible to invade these bottles after packaging was complete without detection through conventional means of examination.” He never precisely stated that the packaging or bottles had been tampered with. After reading the FBI’s official statement, Ahlerich refused to take any questions at what the Bureau had billed as a news conference. Ahlerich evidently realized that this ruse would be exposed if he began answering specific questions about a non-existent forensic analysis.

Johnson & Johnson immediately commented on the FBI’s statement. “The company has contended that it was extremely unlikely that the capsules were tainted during the manufacturing process,” said James Murray. “We were puzzled all along as to how someone could have breached the three safety seals on the bottle and carton without being detected.” Even now, Murray merely commented about the FBI’s statement and claimed that Johnson & Johnson was puzzled. He used semantics to dance around the truth, yet suggested a potential, but false, possibility, just as Ahlerich had done.

Despite the innuendo coming from Johnson & Johnson and the FBI, it was still perfectly clear that the packaging and the bottles that contained the cyanide-laced Tylenol capsules had not been breached. The three layers of tamper-resistant packaging on all three bottles of contaminated Tylenol capsules – two containing cyanide-laced capsules, and one containing a tampered capsule with a “trace amount” of cyanide - had not been tampered with.

The FBI found no evidence that the Tylenol boxes, sealed shut with permanent adhesive, had been opened and then re-glued. The boxes showed no tears, cuts, or other signs of tampering. The only glue on the boxes was the glue used at the repackaging facility. The FBI found no evidence that the plastic shrink-wrap had been removed and then reheated, re-shrunk, and re-applied. They found no indication that the aluminum-foil seals laminated to the lips of the bottles had been removed and then re-laminated. The only adhesive on the lips of the bottles was the adhesive that the repackager had applied. They found no evidence that the killer had torn or cut the aluminum-foil seals. They found no scrapes or nicks on the lips or necks of the bottles to indicate a sharp knife or razor blade had been used to remove the aluminum-foil seals. X-rays that were taken of the bottles showed no signs that the bottles had been invaded. The bottles contained no cuts, no holes, and no needle marks. The bottles had not been invaded, and the packaging was not tampered with. The cyanide-laced Tylenol capsules were put into the bottles at a repackaging facility before the Tylenol was packaged and before the bottles of poisoned Tylenol were delivered to the retail stores.

On February 18, 1986, one day after the mock inspection of McNeil’s Tylenol manufacturing plant in Fort Washington, Carl Vergari had announced that the case of the poisoned Extra-Strength Tylenol capsules was “still wide open.” The tour of the Fort Washington plant “suggested additional broad areas of inquiries,” he had said. Two days later, James Burke met with President Ronald Reagan in Washington D.C. Six days after that meeting, an official from FBI headquarters in Washington D.C. issued a statement to convey the false message that the packaging on the bottles of poisoned Tylenol capsules had been breached, but he did not say how. Accordingly, there would be no investigation of Johnson & Johnson or the McNeil Consumer Products Company. The FBI had effectively shut down Vergari’s investigation of the Tylenol manufacturing and distribution network. In matters related to the 1986 Tylenol murder investigation, Vergari was never heard from again. Carl Vergari died on October 15, 2006 in West Palm Beach, Florida at the age of 84.

35

________

Sixteen years after the murder of Diane Elsroth, J&J Public Relations Vice President, Larry Foster, claimed that the mystery had been solved for how the killer had gotten cyanide-filled capsules into the Tylenol bottles in 1986 without leaving any detectable signs of tampering. Foster made this revelation during a 2002 interview at his alma mater, Pennsylvania State University. A student at the University had asked Foster this question: “On September 11, 2001, when you heard the news that they were grounding all the airlines all around the country, did your mind roll back to September 30, 1982?”

In a response that seemed unrelated to the question, Foster said in part, “You remember in 1986, there was another murder in Westchester County, New York; one woman died having ingested cyanide in an extra strength capsule. The problem there was the authorities in Westchester County could not figure out how the murderer invaded the extra strength [Tylenol bottle], the safety seal package, and they looked it over, and looked it over, and looked it over, and finally sent it to the FBI lab in Washington, and the FBI figured out how it was done. I won’t give you details, but I will tell you they managed to cut through the bottom of the plastic container
bottle,
remove the capsules, put the cyanide capsule in, and they managed to get the piece back in the bottle and get it on the shelf so it was undetectable. In other words, you didn’t have to go through any of the safety seals at the top of the bottle.”

Foster’s story is false and completely unbelievable. It conflicts with the known facts and even with what Johnson & Johnson and FBI officials have said over the years. These college students were of course too young to have any first-hand memory of the Tylenol murders investigation. Most people today don’t remember the events from back then. They especially don’t remember the specific details of the investigation. That makes it easy for Foster to offer such an “explanation” to young and middle-age adults today. However, Foster’s “explanation” explains nothing.

Foster said that “you didn’t have to go through any of the safety seals at the top of the bottle.” But there is no question that you did have to go through the box that contained the bottle. The Tylenol box was sealed with permanent adhesive to ensure that the only way it could be opened was by tearing it. To get to the bottle one would have to go through the box first. The boxes that contained the bottles of cyanide-filled capsules had not been tampered with, so obviously the poisoned capsules were put into the Tylenol bottles before the box was sealed shut at the repackaging facility.

The Packaging Corporation of America was one of many packagers that changed to the heat-sealed method used on the Tylenol boxes to seal them shut. Warren Hazelton, a spokesperson for the company said, “Boxes with sealed flaps make it impossible to reseal the package once it’s been opened.
 
Hanging flaps are one signal to consumers to avoid buying the package.”

Even J&J executives agreed with the FBI and FDA officials who said there were no signs that the plastic bottles had been penetrated. A J&J spokesperson said scientists found no holes, cuts, or needle marks on the bottles. In addition, Vergari had said that after extensive tests of the bottles, the FBI agents examining them found “no evidence of tampering” with the containers or their packaging.

An article that ran in
The Washington Post
on February 14, 1986 stated, “Another possibility, also requiring expensive heat-sealing equipment, would require cutting into the plastic bottle itself and somehow melting the cutout back into place after tampering with the capsules.” The FBI had quickly ruled out this possibility back in February 1986. Foster’s revelation, sixteen years after the fact, was no revelation at all. It was just another fabricated public relations story.

Court documents make it abundantly clear that nobody from J&J or the FBI thought the killer “cut through the bottom of the plastic bottle.”
In 1988,
United States District Judge, Gerard L. Goettel, ruled on
the liability lawsuit filed on behalf of Diane Elsroth against J&J and A&P.
Judge Goettel’s decision included a review of the hypothesis presented by J&J and the FBI as to how the packaging was supposedly breached. That review makes it clear that the bottles had not been cut open by the killer.

Nothing in the documents turned over to Judge Goettel indicate that the bottles might have been cut open - because the bottles had not been cut open. In fact, when Foster told the PSU students “you didn’t have to go through any of the safety seals at the top of the bottle,” he had actually confirmed what J&J and the FBI had known all along – that the packaging on the bottles of poisoned Tylenol had not been tampered with.

*****

On November 15, 1988, Judge Gerhard Goettel dismissed Elsroth’s liability lawsuit against Johnson & Johnson, McNeil Consumer Products, and the Great Atlantic and Pacific Tea Company (A&P). “The companies could not be held responsible for the action of “an unknown third party” or for “a wrong that they did not truly commit,” wrote Judge Goettel. The Elsroth family never even got their day in court.

In ruling to dismiss the case, Judge Goettel wrote: “The murder remains unsolved, and it has not been determined conclusively how the product was tampered with. The most likely scenario appears to be as follows: An unknown third party purchased or stole the Extra-Strength Tylenol ...breached the packaging, and substituted cyanide for some of the medicine contained in several of the gelatin capsules… That individual replaced the now contaminated capsules in the container and somehow was able to reseal the container and box in such a way that the tampering was not readily detectable.”

Goettel came to this conclusion with no rational explanation of just how someone did all that. In fact, a little common sense would have led Goettel to conclude that this scenario was absurd and could not have been true at all.

Judge Goettel said the case left “difficult questions regarding the extent to which society is prepared to hold manufacturers and retailers liable for product tampering by unknown third parties.” The injustice of Goettel’s ruling is that the “unknown third party” who poisoned the Tylenol was not unknown. The tampering occurred at the warehouse of a repackager that had contracted with Johnson & Johnson to repackage the Tylenol. Diane Elsroth’s family would have “known” the identity of that third party repackager if the FBI had not put a stop to Carl Vergari’s investigation.

Diane’s father, John Elsroth, filed the product liability lawsuit against J&J and A&P. He may not have known it, but he had many things going against him when his lawsuit went before Judge Goettel. For starters, Johnson & Johnson had brought in its longtime go-to outside council, Patterson, Belknap, Webb & Tyler (PBWT) to handle the case. In addition, Elsroth was on Johnson & Johnson’s home turf - the Federal District Court in the Southern District of New York. This court was, and remains, one of PBWT’s favorite recruiting grounds. Many PBWT lawyers began their careers as law clerks for judges in the District Court in the Southern District of New York.