Fish & Richardson Attorneys Tom Melsheimer, Tommy Jacks Help Whistleblower, State of Texas Earn Historic Settlement in Lawsuit Over Risperdal Medication
PRNewswire
by Robert Tharp
01/19/2012
AUSTIN, Texas, Jan. 19, 2012 /PRNewswire/ — Lawyers for Texas Attorney General Greg Abbott and a Pennsylvania whistleblower have reached a $158 million settlement with a division of New Brunswick, N.J.-based Johnson & Johnson (NYSE: JNJ) in a state district court lawsuit accusing the pharmaceutical manufacturer of using false marketing tactics to help influence Texas officials to spend millions of dollars on a schizophrenia drug. The settlement in The State of Texas, ex rel Allen Jones v. Janssen, L.P., et al., No. D-1-GV-04-001288, was announced Jan. 19, 2012, in Judge John Dietz’ 250th District Court in Austin, Texas, following just more than one week of testimony. The settlement represents the largest Medicaid fraud recovery in Texas history.Attorney General Abbott and Pennsylvania whistleblower Allen Jones sued Johnson & Johnson’s Janssen division in 2004 based on claims that Janssen engaged in a systematic and wide-ranging scheme to convince Texas Medicaid officials to give preferential treatment to the company’s Risperdal medication. Mr. Jones uncovered the arrangement during his work as an investigator in the Pennsylvania Office of Inspector General.
Mr. Jones was represented by Dallas attorney Tom Melsheimer and Austin attorney Tommy Jacks, both of Fish & Richardson. The state was represented by lawyers from the Texas Attorney General’s Office. "We are proud to have aided the courageous efforts of Allen Jones, a man who helped shine a light on the dark and corrupt practices that impacted taxpayers across Texas," says Mr. Melsheimer, lead counsel for Mr. Jones. "He uncovered a terrible effort to push a mind-altering drug on children at the most vulnerable time in their lives."
The settlement came during the middle of testimony from Dr. Joseph Glenmullen, a psychiatrist and Harvard Medical School instructor who testified that representatives from Janssen hid three studies where Risperdal patients developed diabetes even though the company denied that the medication caused the disease. The lawsuit claimed Risperdal was no better and no safer, despite being substantially more expensive, than alternative medications that treat the same illness. Janssen worked to build revenue by actively and purposefully marketing the powerful antipsychotic drug for use in children, even though the medication was approved only for the very narrow purpose of treating adult schizophrenia, the lawsuit stated.
To someone like me, the courtroom was a delight. It was the plaintiff’s presentation, and Tom Melsheimer and Tommy Jacks were my kind of lawyers – just carefully laying out the facts without any melodrama. The Janssen lawyers were antagonistic and standing on their heads to put words in people’s mouths – spin [as they say, "that’s why they get paid the big bucks"]. They were pasting running objections on a lot of things, frequent conclaves on points of law, the kind of thing that doesn’t happen in tv courtrooms [because no one would watch]. But for the purpose of this discussion, you could see that they were constantly thinking about an appeal. They wanted to win, and they had a strategy. Sell Risperdal as the great white hope, just like they sold it to us back in the late 1990s. I was sitting behind Janssen’s media guy and saw the slides and video coming in the defense [including a video of the worst case of TD I’ve ever seen].
But if they lost, they were on a trajectory to appeal the case until hell freezes over. The suit says that Janssen defrauded the State of Texas. Well, the TMAP guidelines were based on the TriUniversity Guidelines. TMAP was put together by Texas University doctors. Janssen contributed but they didn’t do it. Janssen paid for Shon to galavant around the country selling TMAP, but Shon was a loose cannon. Janssen jumped on the chance to have such a nut case to use, but it was apparent that a lot of this stuff was Shon’s idea [he should be in a Texas Prison heavily medicated with his own poison]. And a lot of the plaintiff’s case was that Janssen was "bad," but this suit wasn’t about that [unfortunately], it was about defrauding Texas. The place where they had Janssen was the detailing off-label to kids [a 1% market…], but that testimony was covered with objections on technicalities about introducing the Vendor Drug Applications [VDAs] [which I couldn’t understand].
Through all of this, you could see Judge Dietz doing his damnedest to keep the Jury from hearing things that might be grounds for appeal, but it was a hard task. That Janssen sinned was never in question. That Texas Medicaid was defrauded was never in question from where I sat. That Steven Shon is a criminal mind was never in doubt. That Janssen did it was true but hard to nail down. Joseph Glennmullen must’ve been a dynamite witness. I hated missing him. But the reason I think he must’ve been dynamite is that my new friends at the trial said he was, and that Janssen folded and settled after his testimony. And if I understand what settling means, that was in the hands of the State of Texas Attorney General. All that other stuff – Attorney’s fees, Allen Jones whistle-blower payoff is up to the Judge.
Janssen admitted culpability and cannot appeal. That’s important. I, like everyone else, would have been glad for them to close down Janssen for good, but that wasn’t what this particular case was about. Like everyone, I felt disappointed that this settlement wasn’t huge – a deal breaker. And what I now want is for the Attorney General of the State of Texas or the US Attorney to charge Steven Shon, the Executives at Janssen, and the Academics involved in TMAP with the obvious egregious crimes they committed. That’s what I want. But I have a conflict of interest about the settlement that I’m sure colors my reaction big time. I want Allen Jones to be free from his ten year state of suspended animation, and this decision gives him that – finally and for good. And I want his personal contribution to the cause of medical ethics to stand for what it was – a exemplary piece of what’s right in the world. He wasn’t in it for the settlement. He didn’t even know he would gain personally from being a whistle-blower until he was in Texas and the lawyers he engaged told him. That came out in the court testimony on Thursday. For him, this was the victory: Janssen admitted guilt, and there’s no TMAP, or CMAP, or PENNMAP because of what he did. I’ll have more to say about that when the dust settles. But for the moment, he deserves to be free. This is a picture he appended to a recent email. This decision opens the gate for him…
http://www.washingtonpost.com/business/apnewsbreak-source-says-johnson-and-johnson-settles-with-texas-in-suit-that-sought-1-billion/2012/01/19/gIQAc1YmAQ_story.html?tid=sm_btn_tw
Quotes from report “Janssen Pharmaceuticals Inc., one of the J&J subsidiaries that had been sued, said in a statement it will pay the money to fully resolve all claims in Texas. The company said it is not admitting any liability or fault with the settlement.”
“The settlement also is far less than the $327 million Johnson & Johnson recently was ordered to pay in South Carolina and the $258 million it was ordered to pay in Louisiana in Risperdal lawsuits.”
“For Johnson & Johnson, it’s a mighty easy result,†said Eric Gordon, a clinical professor at the University of Michigan’s Ross School of Business. “The legal team at Johnson & Johnson are doing high fives.â€
How no admission of guilt or jury verdict can be seen as a victory with such a low ball settlement is frankly beyond my comprehension. This is another unjust cold slap in the face & stinging insult to every victim of these criminal corporations.
How anyone can say this wasn’t the Attorney General of Texas job in this trial is completely mind-boggling. He is elected to serve the people interest and seek justice. That is not conspiracy theory; just good old common sense fact..
Stan,
I don’t doubt any of that. I said I have a conflict of interest and I’m sure not defending J&J. When I first heard the number, I was crestfallen too. I was also worried that this thing would drag on through a million appeals and never close. I guess my point is simply that I’m glad Allen doesn’t have to ride that rail anymore. I hope some of the outrage about the settlement forces the State of Texas to file criminal charges, at least against Shon, but hopefully against Janssen too.
Mickey…I have a fairly good understanding of Allen’s plight; & I have stated on more than one occasion that he was a brave soul that stood on principle to do the right thing…I will say again that I applaud his efforts…
with that said; I personally do not believe the endless appeals argument holds much water…As we saw in SC, appeals don’t always work just one way….with a jury guilty verdict J&J would have been very motivated to resolve this sooner than later for much more substantial settlement the KEY element that is missing here is huge…NO VERDICT…NO Admission of Wrong doing….
We “the People” Lost…I honestly believe this is what you having been writing about & why you went to witness this trial….maybe I’m mistaken…but wasn’t this was about beginning a real process of palatable resolution, accountability, restitution, and actual productive change going forward…In my humble opinion, this settlement doesn’t do any of that……
Once Again, I would like to thank you from the bottom of my heart for your stead fastness, for openly sharing this journey, & for gifting your expert knowledge to us the reader.
Point taken. And you’re right about why I went. Maybe letting this trial go to the Jury Room would’ve been the right thing to do. But for me, I’m still in the game. Actually, Allen said something at supper the other night that relates to that. He dealt with a lot of Addicts as a probation officer. He said it really helped him during the years of this case. He talked about addiction as a “beast” that kept raising its ugly head. He called it a good day when he got a good swing at “the beast” whether it stopped the problem or not. He just kept swinging. He found that experience sustaining throughout this process.
I’m not interested in Janssen getting out cheap putting a damper on either Allen’s efforts or my own. I’m not trying to buffer the outrage – something I share. I’m just not willing to give J&J a point in the game here. I heard the testimony and hope those documents are released so we can all feel even more outrage – and do something about it…
What a day! Thank you so very much, Mickey, for chronicling the events and bringing the players to life for us. It greatly helped to understand the scenario.
Uncounted thanks to Mr. Jones. I have a mixed reaction to what he has shared here. But one thing I am glad of is that he connected with you, Mickey. That he was finally believed. And that he actually got a day in court. I hope that those things will sustain him as he tries to rebuild his definition of a successful life. But I also have a word of caution: like the photo of the dog racing out of the gate and running free – it is important to not run wild, but to choose a direction and run toward it, all the while looking out for hazards. Otherwise, you’ll be a dead dog at the side of a road.
For those who complained about his “being happy”, please understand that it was Mr Jones alone and against multiple organizations, institutions and mountainous amounts of money, power and control aligned against him, who acted on the public’s behalf. The only reason you even know about the TMAP and Risperdal horror is the obstinance (grin) of Mr. Jones. His career was ended, He was financially ruined, and speculating to the norm, if there is such a thing, his family relationships were put under prolonged awful strain. There likely isn’t a single facet of his former life that is still intact as it was. If that’s not the case, I hope he will correct me and speak to what he was able to salvage and perhaps nourish during this time.
He is extraordinarily unusual in that he even got to court. Less than 1% of these types of cases get any public hearing in any form, whatsoever. In my case, I couldn’t get anyone to take notice or care – and real people were hurt – some even died. The people responsible were all promoted and protected, while I was harassed, my reputation ruined, my credibility undermined, I was terminated and blacklisted, never to find work again, these many years later. The world goes on, even as we’re excised from it. I’ll just send you back to Alford’s Whistleblowers text because my story falls within the narratives he relates so well there.
In settlements, there are often restrictions on what may be admitted and discussed after the fact. My guess is that even now, Mr. Jones has external restrictions placed to some extent on what he may speak to.
For those of us who have been directly affected by the behavior of the Texas psychiatrists and the J&J executives, marketers, sales reps and the drug, I agree that there is no resolution in this settlement.
But there is opportunity. You now know a bit more about how court cases work. You know who the players are. You know who the likely victims are. You know which organizations, political machinations and people are those who are suspect and those who control legislation, policy and research funding.
So use that, organize, raise funds, get directly involved in the political and policy processes at whatever level you desire, and don’t make another whistleblower walk the long road – most often to nowhere – alone.
Brilliant idea, Mickey. Let’s get Shon taking that medication he pushed on children. And Nemeroff. And Biederman. And Brown. And Schatzburg. Now THAT would be justice.