The courtroom is a modern and fairly small space, with room for perhaps 100-120 people in the gallery. At the start of proceedings on January 10, the gallery was quite full. By the next day fewer than half the seats were occupied. Most of those remaining appear to be connected to the legal teams of the two sides. This is a big case, financially speaking, so it isn’t surprising to see full teams of lawyers buzzing about.
I will yet investigate what the cost of this case will turn out to be, and who pays for what. I can tell from the almost unremitting good humor of the lawyers on both sides that “billable hours” are one of stars in the case. The State of Texas is not suing because children or elderly have been needlessly harmed, but to get its money back. Even beyond the court costs and percentage of the settlement that the whistleblower, Allen Jones, stands to receive if the plaintiff side wins, it seems doubtful that much of the proceeds would find its way back into the impoverished mental health care system of the state. Texas ranks last in the country on the percent of its children receiving mental health care when needed as well as the highest uninsured rate in the country (http://articles.boston.com/2011-09-25/news/30201319_1_health-care).
Judging from what has been published about the case in the news, it would appear that most of the journalists covering the trial work for the financial press. There is rumor that if Johnson & Johnson loses this case, another might follow it: a shareholder case. The biggest crime in America is for company executives to engage in actions that might cause the stock price to go down.
Not only is the trial’s main focus the financial damage caused by the mega-marketing of Risperdal, but money is also a key moral agent in every aspect of the case. The integrity of expert witnesses and others taking the stand is pre-authorized as a function of how much they are being paid to testify. When Friday’s expert witness, Arnold I. Fried, took the stand, for instance, the State’s attorney Tommy Jacks wasted no time in bringing out for the jury that this was the first time Fried had ever served as an expert witness. There was an almost audible gasp of approval from the gallery. If you do this kind of work too often, you disqualify yourself as an objective witness. The assumption on both sides of the courtroom aisle is that money corrupts. When John McDonald of the defense questioned Fried, he reversed courtroom sentiment by dogging Fried to estimate how much he had collected as a consultant to the plaintiff (“a couple of hundred thousand bucks”). No one objected that this might be irrelevant to the facts of the case, and the gasp over the amount of his fees was twice as loud as the prior one.
Many in the courtroom would have had this on their minds when Allen Jones was called to the stand on January 12. Under the qui tam provision of the law, Jones stands to earn as much as 15%-25% of the amount the State recovers from Johnson & Jonson if the case concludes in the State’s favor. John Kopchinski, a former drug rep for Pfizer, was awarded $51.5 million out of the total $2.3 billion for his role in exposing his former employer’s violations in its marketing of Bextra.
The odds of any given whistleblower earning that kind of reward are said to be only slightly better than are his/her chances of winning that amount in the lottery. The potential downside is great, because as long as one has declared oneself a turncoat to one’s employer (especially if that employer is the government), the only road to vindication is the long and risky one to prosecution of the crime. The same forces that make corruption a regular feature of commerce and government (and just as commonly commerce + government) everywhere stack the odds against winning big in a case against these entities. In this case, the scale of the crime was great and Allen Jones has a powerful ally in the State of Texas’s Office of the Attorney General.
Jones told his story on the stand on Thursday. The details of his pursuit of TMAP corruption is available in detail here (http://www.psychsearch.net/tmap.pdf) so I won’t summarize the entire deal but will just offer a reflection or two on his biography.
Jones has lived in Pennsylvania his entire life. He trained at college to work with the mentally handicapped. At some point he stopped practicing therapy and became a parole officer, supervising many chemically dependent criminal offenders. Finally he went to work as a fraud investigator for Pennsylvania’s Office of Inspector General (OIG). He described for the court what was entailed in this work. Sometime in 2002 Jones discovered that the state’s chief pharmacist, Steven Fiorello, had opened an unregistered bank account and was depositing into it checks written by drug companies.
Jones traced the checks back to J&J/Janssen and to TMAP, which was adopted for use in Pennsylvania in 2003. The more he learned, the more his boss at OIG discouraged him from pursuing the investigation. At one point Jones’ boss agreed that obsession over the case was “ethically correct” but it was also “politically dead.” The “Big” in Big Pharma could as easily describe the scale of their influence through lobbying and campaign contributions to both parties as it does the scale of their profits. Pharma usually retains the most powerful industry lobby in Washington; one year they spent $125,000 for every hour that congress was in session. If pressure was exerted to get Jones to quit sniffing around, who is to be surprised? In frustration, Jones reported his findings to Melody Petersen at the New York Times (http://www.nytimes.com/2004/02/01/business/making-drugs-shaping-the-rules.html?pagewanted=all&src=pm; see the link to Petersen’s excellent book, Our Daily Meds, here: http://www.ourdailymedsthebook.com/). This was a violation of OIG rules and Jones was fired.
Jones had reported his findings at various levels of the investigator’s bureau before despairing that the alleged crimes would ever be addressed from within. He testified that he saw records indicating that patients were being switched to the new drugs (the SGAs)—a potentially significant claim because it is one of the defense’s arguments that patients were not being upgraded to Risperdal as a result of TMAP, but only new patients or those not being helped by the older drugs were switched. By the time Jones was fired, he was no longer officially on the TMAP case but was spending 20-40 hours per week chasing down information about it. All-in-all his story sounded a lot like any of three dozen cop movies one can think of in which a justice-bound police detective is booted off a case but risks career and happiness because his dedication to justice is stronger than his sense of self-preservation, and he ends up solving the mystery in his spare time.
We may never know in Jones’ story whether it’s TV imitating reality or the reverse. But on the stand on Thursday Jones conveyed a sincere impression. The defense attorney, John McDonald, tried in numerous ways to punch holes in Jones’ testimony, but to my estimate he was unsuccessful. He also wished to establish that Jones was not the source of certain key documents to the State of Texas; if this were so, Jones’ award would certainly be reduced.
At one point McDonald asked Jones when he knew about all the money he might earn if the State wins its case. Jones said without apparent disingenuousness that he learned about it in 2004 when he went to see the lawyer in Texas. By then, he was already inextricably bound in the dangerous attempt to expose the awful alleged crime for which Johnson & Johnson/Janssen are standing trial this week.