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dispute
BY JOHN O'BRIEN
PHILADELPHIA (Legal Newsline) Plaintiffs firm Bailey
Perrin Bailey of Houston won't be disqualified from a
lawsuit it brought on behalf of Pennsylvania Gov. Ed
Rendell, a state judge recently decided.
Attorneys for Janssen Pharmaceutica argued that the firm,
a major campaign contributor of Rendell's, should not be
steering the suit. Janssen is accused of offlabel marketing
for its antipsychotic drug Risperdal.
Judge Howland Abramson of the Philadelphia County
Court of Common Pleas denied Janssen's motion to
disqualify on Dec. 8. The order gave no explanation.
Bailey Perrin Bailey has made the same claim of
marketing violations against Janssen, a subsidiary of
Johnson & Johnson, in at least six other states, including
Arkansas and Louisiana. State Medicaid programs, it is
alleged, are harmed by Janssen's offlabel marketing and
failure to disclose side effects.
When Rendell decided to file his own suit, it was Bailey
Perrin Bailey and a Pennsylvania firm acting as cocounsel
submitting the complaint instead of Republican state
Attorney General Tom Corbett. Rendell, a Democrat, hired
BPB on a contingentfee basis that Janssen is challenging
in the Philadelphia Court of Common Pleas.
"No attorney from the (Governor's Office of General
Counsel) ... has entered an appearance in this action,"
says Janssen's June 9 Motion to Disqualify Counsel,
signed by Ed Posner of Drinker Biddle & Reath. "The
Complaint was not verified by any Commonwealth officer
or employee.
"The verification attached to the Complaint attesting that
the signatory is 'in a better position than any individual
officer or employee of the agencies of the Commonwealth
Plaintiff to present this verification' was signed by (a
BPB attorney)."
Janssen's attorneys said those who filed the suit must not
have a financial or personal interest in the outcome. BPB's
obvious financial interest (15 percent of any monetary
recovery) will affect the actions of a public office, they
claimed.
The Due Process Clause requires Rendell to be guided by
the sense of public responsibility for the attainment of
justice, Janssen says.
"The risk that Bailey Perrin's financial stake in the outcome
will affect government decisionmaking in connection with
this action is real and serious," the motion says.
"Indeed, the role of the Governor's General Counsel in the
retention of Bailey Perrin, the timing and amounts of Mr.
Bailey's campaign contributions the terms of the
contingent fee agreement, and the involvement of Bailey
Perrin in other Risperdalrelated litigation that might be
affected by this lawsuit combined to give rise to a manifest
appearance of impropriety the impression that the
government's prosecutorial decisions have already been
infected by impermissible considerations."
In its answer, BPB says Janssen has it all wrong. Final
decisionmaking and ultimate control stays with Rendell's
office.
"The contract relegates the Commonwealth's outside
counsel, Bailey Perrin Bailey, to 'advis(ing), counsel(ing)
and recommend(ing) actions to the OGC' and to 'carry(ing)
out to the best of its ability (the OGC's) directions.'
"Further, Bailey Perrin Bailey is 'responsible directly to the
General Counsel ... on all matters of strategy and tactics,'
and must consult and cooperate with the OGC regarding
the same."
BPB says it has assumed the risks of litigation and will
have to stand behind any decisions made by Rendell's
general counsel. Relinquishing control was a must.
"(N)othing in the contract restricts the OGC from
negotiating any amount of monetary settlement with
Janssen, or even abandoning the litigation altogether, a
result which would result in no financial harm to the
Commonwealth and no compensation to Bailey Perrin
Bailey," the answer said.
Janssen's attorneys also attempted to make an issue of
the campaign contributions given by BPB to Rendell.
"The contingent fee contract whereby the (Governor's
Office of General Counsel) retained Bailey Perrin was not
the subject of any competitive bidding or legislative
authorization," Janssen claimed in its motion.
"Rather, the contract appears to be the product of private
negotiations between the (OGC) and (BPB) over a period
of several months in 2006.
"In the precise time period during which the contract was
negotiated and executed ... F. Kenneth Bailey ... made
repeated and significant contributions, totaling more than
$100,000 to Gov. Rendell's reelection campaign and to
the Democratic Governors Association."
Between Feb. 23 and Oct. 30, 2006, Bailey gave $75,000
directly to Rendell's campaign, more than $16,000 in
airplane travel and $25,000 to the Democratic Governors
Association, which contributed more than $1.2 million to
Rendell's $27 million total. He easily defeated former
Pittsburgh Steelers great Lynn Swann.
Bailey also gave $50,000 to Mississippi Attorney General
Jim Hood, who hired BPB to pursue a claim against Eli
Lilly & Co.
In Louisiana, another state BPB is representing in
litigation, Bailey gave $20,000 to the state's Democratic
Party last year. In Arkansas, which hired BPB for a suit
against Janssen, he gave $70,000 to the Democratic Party
in 2006.
Bailey's response: So what?
"Janssen's gratuitous identification of campaign
contributions are no more relevant to the resolution of this
matter than political contributions (Janssen counsel)
Drinker Biddle & Reath's Political Action Committee made
to various candidates presumably aligned with Drinker's
and/or its clients' interests, which totaled nearly $120,000
during the 200406 election cycles," BPB's answer says.
Drinker Biddle even contributed $10,000 to Rendell in
2006, as well as a little more than $10,000 to state
Attorney General Tom Corbett. Corbett was not running for
reelection that year. The firm and one of its attorneys have
given Corbett $8,000 for his 2008 campaign.
From Legal Newsline: Reach John O'Brien by email at
john@legalnewsline.com.