A Maryland federal judge used a technicality to dismiss an indictment against a former top lawyer at GlaxoSmithKline (GSK), in a ruling that reads like an instruction book for crooked pharma execs who want to insulate themselves against prosecution. It's yet another in a lengthy series of "Get Out of Jail Free" cards handed to pharmaceutical executives by the federal judiciary in recent months.
VP/associate general counsel Lauren Stevens had been indicted for making false statements to the FDA. Specifically, she was accused of sending three letters to the FDA stating that the company had no knowledge of doctors illegally promoting the antidepressant Wellbutrin for unapproved "off-label" uses such as weight-loss, when in fact she was sitting on a cache of slides from 28 promotional speakers who had done just that.
Stevens argued that she had withheld the information on the advice of her lawyers, who had given her a list of pros and cons about confessing to the FDA what GSK's doctors had been up to. One of the items on the "cons" list was:
Provides incriminating evidence about potential off-label promotion of [Wellbutrin] that may be used against [GSK] in this or in a future investigation.Stevens moved to dismiss the indictment on the grounds that "advice of counsel" is a defense if she believed in good faith that GSK's lawyers were giving her legitimate legal advice. Judge Roger Titus' ruling hands drug executives planning to break the law a startling easy way to defeat government investigators: "advice of counsel" isn't actually a defense to charges filed, the judge said, rather it prevents indictments from being filed in the first place. The ruling says:
... if Stevens relied in good faith on the advice of counsel, after fully disclosing to counsel all relevant facts, then she would lack the wrongful intent to violate the law and could not be indicted for the crimes charged.The judge called the advice of counsel "an elephant in the room" of the grand jury hearings that led to the charges.
The saga doesn't end here. The judge all but invited prosecutors to appeal or try to get a new indictment, and even asked them if they wanted to keep a previously scheduled April trial date on the calendar. Nonetheless, law firms with pharmaceutical clients appear to have just been granted a full-employment act.