Articles

Sometime ago, a law student asked me whether law school adequately prepares students for the practice of law.

It seems that students study law and lawyers study fact patterns with an eye toward applying the law. The difference can be traced to the origin of the task: the law professor assigns a case to read presumably with a focus on teaching a rule of law, while the client presents a set of facts to which a lawyer must apply a rule of law.

Stick around long enough and the facts turn into repetitive patterns and the practice of law becomes a study in human nature, mistakes, challenges and ethical dilemmas. At some point the youngster carrying the casebook becomes a meld of psychologist and sociologist, a witness to the flaws, successes and conduct of government, private institutions, and people. Here are some observations:

In large corporations and those that run them, greed in its varying forms is a constant. It manifests itself in efforts to push the boundaries of the law, a calculation of the risk of being caught and, if caught, a colourable argument as to why the conduct fits within some loophole in the law. The argument need not necessarily be a logical extension of legal doctrine; it need only pose a hurdle for prosecutors, a bargaining chip if you will. Of course, ‘loophole’ is really a term used by non-lawyers to describe the law’s inability to clearly address fundamentally reprehensible conduct.

As for clients and witnesses, they seem to relish the comfort of being part of institutions. Our dog has the same level of comfort when she runs in to her dog house, where she’s protected on three sides. Yet, unlike the dog house, an institution can provide a false sense of comfort, as was the case with Enron, Tyco, and WorldCom. Employees who now face being laid-off at Turing Pharmaceutical are learning this lesson the hard way.

Institutions – as in large corporations – can also be manipulative. Think of the pharmaceutical sales representative who is unwittingly tasked with marketing drugs for unapproved purposes or the doctor who is flattered when paid to speak on behalf of a drug company, perhaps without being aware that the company is monitoring his or her prescription writing patterns and conducting return on investment analysis. Why question wrongdoing when a corporation has an internal compliance program? Surely anything bad would have been detected and abated? Not quite. Compliance programs exist in part to convince those within the institution that impropriety is not possible. The need to be accepted by the institution can also be a tide pushing against the questioning of impropriety, even when that impropriety is harmful to the employee. Think of the worker victimised by sexual harassment who continues to laud the employer. Think also of the employer tasking the marketing department to record a victimised employee’s promotion of the company as an evidentiary hedge against a potential claim.

Practice long enough and one learns that there is, as they say, always an elephant in the room. In Friedrichs v. California Teachers Association, the United States Supreme Court will soon determine whether the First Amendment is violated when employees are compelled to pay ‘agency fees’ to a public employee labour union. Yet, is this case really about the First Amendment, or curtailing the power of unions? Are cases compelling arbitration really about judicial efficiency, or protecting powerful business from public exposure for acts that impinge on safety and health? Think about it carefully and what may come into focus is the use of procedural rulings to impact substantive rights.

All of this is to say that the application and interpretation of law has context. Facts do matter and – to some degree – the application of law without regard to context is an exercise in futility. Of course, a legal education is the starting point to reach this conclusion. It just takes time.

Reuben Guttman is a trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.

As debate in the US continues over mandatory arbitration clauses that have led to private adjudications, a new film focuses attention on the use of private forums and sealed proceedings to resolve matters of potential public importance.

Spotlight, starring Michael Keaton, focuses on the team of investigative journalists from The Boston Globe who exposed sexual abuse by Roman Catholic priests. The movie takes its name from The Globe’s ‘Spotlight Team’ of investigative reporters.

As stories about investigative journalism go, Spotlight is not All the President’s Men. It is not so much about a team of reporters finding the facts on their own as it is a story about reporters struggling to pry the facts – and story – loose from attorneys who have settled their cases in private forums or who are litigating with key documents sealed by confidentiality orders.  In Spotlight, it is the lawyers who have put the facts and story together; but it is a story that they must keep to themselves.

In a line that explains the rationale for transparency of the judicial and legislative process, Justice Brandeis notes that sunshine is the best disinfectant. Court proceedings that seemingly involve only private interests may very well have public import. For example, cases alleging sexual harassment and employment discrimination, even when brought by a single plaintiff, may involve conduct that is pervasive and thus relevant to others who might muster the courage to step forward and vindicate their own rights. Matters litigated in the sunshine may cause private entities and government oversight bodies to take action to protect against prospective injury. But for the work of the Spotlight Team, the pervasive nature of egregious conduct would not have seen the light of day.

Public litigation in the United States has brought to the surface facts that make cars safer, workplaces more tolerable for protected classes and the air we breathe less dangerous to human health. It does not even take a court ruling or jury verdict to make the point – information that comes to light during the litigation process may fuel legislative oversight and/or regulation. This is not merely a collateral benefit; it is the way the system is supposed to work. And – as Spotlight reminds us – there is a real benefit to a transparent system of justice.

Reuben Guttman is a prominent trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.

 

by Reuben A. Guttman and Caroline M. Poplin, M.D., J.D.

Guttman practices law with Guttman, Buschner & Brooks PLLC and was counsel for whistleblowers in cases involving Abbott, Pfizer, GSK, CHS and Pharmerica, among others. Poplin, M.D., J.D., is Medical Director and Of Counsel for Guttman, Buschner & Brooks PLLC and also was involved in cases against Abbott, Pfizer, GSK, CHS and Pharmerica.

In recent months, Planned Parenthood, a health care provider for low-income women, has been under the focused scrutiny of a Congressional oversight committee. Among its many healthcare services, many of which involve preventive care, Planned Parenthood also provides abortions. The organization has been accused in political circles of selling fetal tissue. Though this may be a crime, there have been no criminal indictments let alone convictions and the evidence seems flimsy, if not fabricated, with congressional oversight itself pretextual.

Of course, if Capitol Hill politicians are sincerely interested in looking into how federal dollars are being spent for preventive medicine, care for the nation’s children, and care for the infirmed and the elderly, there are real targets to focus on; targets where billions of dollars have been spent for medical care which, in some cases, has neglected the fundamental tenet that has passed from practitioner to practitioner through the ages: “first, do no harm.”
For starters, look no farther than the pharmaceutical industry where some of the world’s largest drug companies – which feed on funds from Medicare, Medicaid, and the Veterans Administration – have pled guilty to conduct that has admittedly placed lives at risk. Abbott, GlaxoSmithKline, Pfizer, and Johnson & Johnson are just a few of the names that make the list.

In 2012, Abbott Labs pled guilty to violating the Food Drug and Cosmetics Act when it off-label marketed its drug Depakote to the elderly and children for purposes outside of the drug’s FDA-approved indication. In 2013, Janssen Pharmaceuticals – a subsidiary of Johnson & Johnson which makes baby powder and other products – pled guilty to misbranding its billion dollar anti-psychotic drug, Risperdal. Through ongoing litigation and investigation, information about how that drug was marketed is still trickling out to the public and undoubtedly not completely known.

Where would Congress start an investigation? Look no further than big pharma’s representations to Wall Street analysts touting sales goals well exceeding the reasonable revenue streams from the FDA’s approved indication for the product. Juxtapose those goals with company documents challenging company sales reps to meet their “mark,” drill down on the documents showing company-sponsored Hawaiian getaways for employees who exceed sales expectations, and maybe find a few company-sponsored contests which challenge sales teams to spin marketing messages, and the story begins to come into focus. Congressional investigators might also look at big pharma strategies to plant marketing messages in “scientific publications.”

For the legislator whose campaign coffers are so dependent on big pharma dollars to make inquiry a political non-starter, there are the pharmacies that serve the nursing homes. These Long Term Care (LTC) pharmacies are responsible for prudently dispensing prescriptions and providing honest information about pharmaceutical products to the doctors who write them. Notwithstanding their obligation as medical providers, some of the LTC pharmacies – including Omnicare and Pharmerica – have paid millions to settle claims that rebates paid to them by big pharma were no more than bribes to promote a product.

Congressional oversight might start with a look at public filings with the Securities & Exchange Commission which hint at impropriety. Pharmerica’s August 2015 Form 10-K Report filed with the Securities & Exchange Commission discloses that “we currently receive rebates from certain manufacturers and distributors of pharmaceutical products for achieving targets of market share or purchase volumes. Rebates are designed to prefer, protect, or maintain a manufacturer’s products that are dispensed by the pharmacy under its formulary.” It’s actually too bad that most patients don’t think to read SEC filings, and undoubtedly most Wall Street analysts never realize that one day they too may be patients.

Last year, Community Health Systems, which operates more than 100 local hospitals, settled government charges that it schemed to admit patients from the emergency room whose admission was not necessary according to prudent medical practice.

Big pharma, corporate hospital chains, and several publicly traded LTC pharmacies have collectively paid billions to settle these cases. Some of these include repeat offenders. Pfizer and Phamerica, for example, merited new corporate integrity agreements—the corporate equivalent of a return to rehab.
In many cases, the price of wrongful conduct has been measured in the dollars that are spent on unnecessary products and services by federal and state health care plans and sometimes by private payors.

Unfortunately, where drug company promotional activity places a promotional spin on the science of medicine it is difficult, if not impossible, to unscramble and put back together the market for honest medical information. And how does one pinpoint with precision the injury – both short-term and perhaps even latent – attributable to drugs that are administered without medical necessity or prudent instructions for their use? It is indeed a problem. Not to belabor the point: These are also issues about life or the right to life worthy of Congressional oversight.