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Jackpot justice exposes unwanted sunlight on Caldwell

It appears that sunlight isn’t to Attorney General Buddy Caldwell’s liking. A tersely-worded, if not somewhat misleading, statement from his office was the only comment upon national attention being focused on jackpot justice being sponsored under Caldwell’s auspices.

Caldwell and some contracted lawyers of his department’s got the unwelcome attention when the American Tort Reform Association publicized the actions of a Caldwell lawsuit in its annual report on jurisdictions which had issued unwarranted and outrageous decisions on lawsuits. This dealt with an October decision in St. Landry Parish, where lawyers hired by Caldwell using taxpayer dollars got a jury to fine Johnson and Johnson $257.7 million dollars for sending out letters and making sales calls.

The issue dealt with the anti-psychotic drug Risperdal which the jury, joining federal regulators, decided had been misleadingly marketed. It had nothing to do with any effects from taking the drug. As Caldwell deemed this a violation of the state’s Medical Assistance Programs Integrity Law, he had lawyers ask for the maximum $10,000 per incident, with over 35,000 of them. The jury went with $7,250.

Yes, the state is cash-strapped, but the award is ridiculous if not unethical on a number of levels. Several other states have rushed to try to extract a pound of flesh from the company after the Food and Drug Administration said the marketing claims were inaccurate – although the only punishment the FDA thought this merited was a corrective letter. In Pennsylvania, a related suit was dismissed completely. West Virginia conducted its trial without a jury and although the judge initially found for the state, that only was for $3.95 million and that got overturned. The actual law itself and chosen venue under which recovery was argued appears only tangentially related to the actual case – little wonder the company plans an appeal on the basis of improper jury instruction. Finally, the lawyers hired by the state were contributors to Caldwell’s campaign as well as to that of previous Attorney General Charles Foti who began the suit.

Caldwell’s comment about the adverse publicity was “These lawyers did not and will not receive a penny of the state’s recovery” – technically true, but they are being paid, probably very well, with taxpayer dollars to try to win this judicial lottery. In no way, shape, fashion, or form is the penalty, if one even is deserved, proportionate to any alleged transgression. This kind of decision sends exactly the wrong message to those who would do business in Louisiana, with its arbitrary nature of justice discouraging wealth creators who simply want fair and impartial rules by which to engage in economic development.

If honorable, Caldwell would reveal how much the state is paying his contributors for the case and when the appeal gets heard (in front of judges) to ask for a much fairer penalty if there is a violation under state law. Otherwise, his actions would display a cavalier attitude towards justice in Louisiana, indicating he sees the state’s role more usefully as parting money from interests that have it than in protecting the citizenry.

1 comment:

Landman of the Apocalypse said...

Allow me to elucidate where you would mislead.

The federal law governing states’ Medical Assistance Plans imposes upon participating states the duty to police Medicaid fraud and other wrongdoing. Failure to prosecute fraud or ill practices would have been a dereliction on the AG’s part. You criticize him simply for doing his duty.

Tangentially related? No, the cited statute applies to precisely these facts. Both the FDA and the jury found that J&J made misrepresentations to minimize the potentially fatal risks of diabetes. Such misconduct can (and likely did) lead to overprescribing this powerful, expensive antipsychotic drug, putting patients at risk, and incurring unnecessary taxpayer cost. The public interest in deterring such behavior mandates large fines as a deterrent.

Should it surprise that the FDA did not take stronger action? The FDA’s too-cozy relationship with Big Pharma is the subject of much debate. At least 9 of 12 of our citizens thought Big Pharma got off too easy. We can be comforted that our AG is more serious about his duties than is the FDA.

While it may be true that the AG’s attorneys were also contributors, we have heard little criticism from the Executive Branch regarding awards of state contracts to campaign contributors. Fancy that!