This week, students in Bob Thomas' law school course on health care fraud and abuse were treated to an insider's glimpse into the defense perspective on whistleblower claims and government enforcement actions. The session was the third of four outside speaker presentations, designed to demonstrate the unique challenges of lawyers and other professionals practicing in the health care fraud arena: compliance officers, whistleblower attorneys, defense lawyers, and prosecutors.
Brien O'Connor and Cori Lable of the law firm Ropes & Gray in Boston presented, with colorful war stories from two significant defense victories in criminal cases in the health care fraud arena. The students had prepared for the class by reading about the Lauren Stevens obstruction of justice indictment Stevens Obstruction Indictment.pdf and Judge Titus' opinion on the defense's motion to dismiss the case OPINION re Stevens.pdf. In this much-watched case, an in-house attorney for GlaxoSmithKline was charged with criminal obstruction of justice for the company's alleged incomplete response to a request for documents from the FDA. As O'Connor and Lable explained, the defense team was able to gain an acquittal in the case by relying upon an advice of counsel defense. The defense was able to argue persuasively that Ms. Stevens had relied on advice from outside counsel King & Spaulding, and was not therefore not personally responsible for any criminal behavior in the case. The discussion shed light on how seriously prosecutors view companies' good faith responses to discovery requests, how far the government is willing to go to show its seriousness in demanding completeness, but also how hard it is to win a criminal conviction in the face of a talented defense team.
In a second case study, O'Connor and Lable discussed their recent result in the Stryker Biotech criminal trial, in which the company and its top executives had been indicted for off-label marketing of its bone growth product Stryker Indictment.pdf. The students were treated to a rare look into the strategy of trial lawyers in a bet-the-company case. By exploiting a dubious charging decision on the part of prosecutors (describing orthopedic surgeons as the victims of a criminal fraud scheme), the defense team delivered such a powerful opening statement that the prosecution essentially dropped the case the next day, dropping all felony charges and accepting a misdemeanor charge against the company. The case was unusual in a number of respects: the company's decision to risk debarment by going to trial on felony charges, the defense team's saving up its powerful evidence of what the surgeons would say until opening statements, and the highly unusual result of the government dropping all felony charges before its first witness was called.
Next week, the students will hear from an Assistant U.S. Attorney who will discuss the prosecution of health care fraud cases and qui tam actions. Shannon Kelley, the talented prosecutor and the brains behind the government's successful prosecution of GlaxoSmithKline in the Cidra, Puerto Rico case, will be the last in the speaker series.