HARRISBURG, Pa. (Legal Newsline) - Houston-based plaintiffs firm Bailey Perrin Bailey had its chance to impress Pennsylvania Attorney General Tom Corbett but could not and never tried again.
Still, Corbett gave Gov. Ed Rendell his blessing to hire the firm to file suit against Janssen Pharmaceutica, accused of harming the state's Medicaid program by promoting its antipsychotic drug Risperdal for off-label uses. Corbett had his chance to hire BPB, a heavy campaign contributor of Rendell's, to lead his own lawsuit but did not.
At Rendell's request, Corbett allowed BPB to present its case against Janssen on March 22, 2005.
"The Attorney General was not impressed with the evidence presented by Bailey at the time and asked them to come back with more evidence," said Kevin Harley, Corbett's press secretary.
"Bailey never did and a little over a year later, (Rendell) asked for delegation by the Attorney General so they could proceed on their own."
Harley said the Republican had no problem with Rendell filing a lawsuit against the company. Corbett has filed to form an exploratory committee for a possible run at governor in 2010, and may have that power himself one day.
Harley said that Corbett could not have stood in the way of Rendell's suit.
"Legally, we would not have prevented the administration from going on its own," he said.
BPB gave Rendell $75,000 in direct contributions and another $16,000 in airplane travel for his 2006 campaign, as well as $25,000 to the Democratic Governors Association. Attorneys for Janssen have challenged the contingent fee agreement between Rendell and the firm. Their appeal is currently before the Pennsylvania Supreme Court.
Attorneys for Janssen are not making the argument for BPB's disqualification based on the contributions given to Rendell, but have mentioned them in several briefs.
"Mr. (Kenneth) Bailey's contributions of more than $100,000 to the Governor and the Association just as the Governor's General Counsel negotiated and executed its no-bid contingent fee contract with Bailey Perrin are relevant because they give rise to a distinct notice of impropriety, thereby making it unlikely that litigation decision-making by Bailey Perrin will be perceived as fair and impartial and solely in the public interest," one reply brief says.
"The contributions are further relevant because they are indicative of the sort of abuse of executive power that the doctrine of separation of powers was meant to check."
BPB had written, "Janssen's gratuitous identification of campaign contributions are no more relevant to the resolution of this matter than political contributions (Janssen counsel) Drinker Biddle & Reath's Political Action Committee made to various candidates presumably aligned with Drinker's and/or its clients' interests, which totaled nearly $120,000 during the 2004-06 election cycles."
Harley said Corbett's office has hired outside counsel for certain cases, but the decisions on which firms are picked are made by individuals with no knowledge of Corbett's contributors.
"Those decisions are not made in our office by anyone who would even know if the firm contributed any money," he said.
Bailey also gave $50,000 to Mississippi Attorney General Jim Hood, who hired BPB to pursue a claim against Eli Lilly & Co.
In Louisiana, another state BPB is representing in litigation, Bailey gave $20,000 to the state's Democratic Party last year. In Arkansas, which hired BPB for a suit against Janssen, he gave $70,000 to the Democratic Party in 2006.
Attorneys for Janssen argue that counsel representing a government office should be motivated by justice, not money, and that BPB is controlling the decision-making instead of someone from the Office of General Counsel.
A multi-state effort to investigate the possibility of consumer protection claims against Janssen is ongoing, and Corbett's office is a part of it, Harley said.
"There wasn't the slightest bit of pay-to-play here," Rendell told the Philadelphia Inquirer. "I never put a dime of state money in jeopardy for Ken Bailey."
Legal Newsline first reported the story in July, but the case has drawn recent attention from major newspapers in Pennsylvania and the Wall Street Journal.
From Legal Newsline: Reach John O'Brien by e-mail at firstname.lastname@example.org.