Next Stop: Psych Watch

This is getting curiouser and curiouser.

Lauren Stevens, the former Vice President & Associate General Counsel at GlaxoSmithKline doesn't want to take the fall alone. I don't blame her. A conviction of this sort can get some heavy jail time. Now she is pointing fingers at her lawyer colleagues, which raises the issue of a potential RICO problem.

 The Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. § 1961–1968) does not just apply to mobsters who run street crimes, but to any organized enterprise which acts to circumvent the law.

This may be a can of worms that the feds do not want to deal with. After all, almost everyone involved in this controversy at this point are lawyers, including the feds.  Are lawyers somehow exempt from this statute? I don't think so.

Another curious thing about this trial is the indictment. Read it here. 
This document indicts Ms Stevens alone. It identifies GlaxoSmithKline as "K-Corp" and the product (Wellbutrin SR®) as the "W-drug". All that comes to my mind at the moment is the "F-word". This is surely one "F---ed up" way to run a criminal trial.

'Let the jury consider their verdict,' the King said, for about the twentieth time that day.

'No, no!' said the Queen. 'Sentence first - verdict afterwards.'  - Alice in Wonderland (Chapter 12 ) 

The feds are allegedly serious about this. Eric Blumberg is the FDA's top lawyer. He said, """ They need to take this seriously and find out what is going on in the marketing and sales divisions of their companies. In my view, one thing that will get executives' attention is a few cases in which we have convicted two-legged defendants."

But one has to wonder just how serious the feds really are, considering the curious way this curious trial is going?
Vince Boehm

By Ed Silverman // February 9th, 2011 // 11:08 am
Three months ago, former GlaxoSmithKline attorney Lauren Stevens was indicted for allegedly obstructing an FDA probe into off-label marketing of Wellbutrin SR. More recently, she filed an interesting motion indicating she will argue in court that King & Spalding, a major law firm that works for Glaxo, had provided her with advice while she was employed by the drugmaker (see here and here). 

http://www.pharmalot.com/2010/11/pharma-lawyer-indicted-for-obstructing-the-fda/

 The motion raised the delicious spectacle of a courtroom filled with attorneys all pointing fingers at one another (a situation ripe for a sitcom, perhaps). Not surprisingly, the feds indicated they would attempt to prevent Stevens from mounting a defense that lays blame on other lawyers - whether they were Glaxo staffers or outside counsel. As far as the feds are concerned, Stevens is the culprit. And this must make Glaxo counsel - and the King & Spalding partners - feel somewhat relieved.

True to their word, the feds last week filed such a motion to derail her strategy. They argue that allowing Stevens to use this defense would be confusing because the lawyers with whom she conferred back in the day would, effectively, be asked to offer opinions, not actual expert testimony. And who might be confused by such a notion? The jury, according to the feds.

Specifically, the “government anticipates” Stevens may call some of these lawyers to testify about whether they believed Glaxo responses to the FDA probe were “appropriate or fair and not false and misleading, based upon what they knew then” and whether they continue to hold that view. They may also be asked to offer opinions on their “own good faith” in helping to compile the Glaxo responses. In their motion, the feds argue that, “unless the witness expressed the particular opinion at issue to the defendant at the time, however, such opinion testimony is not relevant.”

What else might confuse the jury? The feds write that it remains unclear whether Stevens will claim the Glaxo and King & Spalding lawyers actually represented her when she responded to the FDA, or that they gave her personal advice - or represented both her and the drugmaker. “It is also unclear whether she will contend that she was acting as client or as counsel when she was leading the effort to respond to the FDA, and signing the letters from GSK to the FDA. Nor is it clear what legal advice she purports to have received, let alone how such advice could be reasonable or how she could have reasonably relied on it,” the feds complain.

In any event, the feds argue Stevens did not provide King & Spalding with “all relevant facts” while she prepared the Glaxo responses to the FDA and so “she is, therefore, not entitled to assert the defense of reliance on counsel,” anyway (you can read the motion here).  

To many, this may appear to be inside baseball, but as noted, if the feds lose their argument, Stevens may yet get a chance to blame lawyers at Glaxo and its high-priced law firm for the responses to the FDA. This reminds us that there is a reason some expressions become a cliche, because that might just open a Pandora’s Box. The trial, by the way, has been postponed until April 4.

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