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Sunday, August 18, 2019

Attorneys' 'falsehoods' cause dismissal of Namenda case; Milberg appealing

By Sara McCleary | Jul 7, 2017

BOSTON (Legal Newsline) – Attorneys are appealing a decision by a Massachusetts federal judge to dismiss a False Claims Act lawsuit because of deceptive practices by them.

Judge F. Dennis Saylor IV dismissed the case on April 28, ruling attorneys at Milberg LLP who represented a whistleblower participated in “an elaborate series of falsehoods, misrepresentation, and deceptive conduct." A month later, after the defendant moved for its attorneys fees to be paid by the plaintiff, those attorneys filed their notice of appeal to the U.S. Court of Appeals for the First Circuit.

Milberg, according to the judge, retained a physician to conduct a survey of colleagues regarding their use of Namenda. The results would be used by the firm for its lawsuit.

“I have no knowledge whether any disciplinary actions are being undertaken against the attorneys, but I strongly believe they should be,” Professor Nancy J. Moore, a professor of legal ethics at Boston University, told Legal Newsline.

“Judge Saylor’s findings of fact clearly indicate serious violations of the Massachusetts Rules of Professional Conduct. I would hope that both the federal court and the State Board of Bar Overseers would be proceeding with disciplinary proceedings.”

Whistleblower Timothy Leysock brought a False Claims Act lawsuit in 2012 against Forest Laboratories and Forest Pharmaceuticals over its alleged actions concerning its product Namenda, a Food and Drug Administration-approved drug used to treat moderate to severe Alzheimer’s disease. 

Leysock alleged the company promoted the drug’s off-label use to treat mild cases of Alzheimer’s, and as a result, Medicare was falsely billed.

According to Saylor’s opinion, Leysock’s complaint “detailed the practices of eight physicians who, allegedly, regularly prescribe Namenda for mild Alzheimer’s disease in reliance on the off-label promotion by representatives of Forest. Those eight physicians were identified by name and address. The complaint also identified eight patients, one for each physician; although it did not identify the patients by name, it included detailed patient information, such as age, height, weight, dates of visits, diagnosis, treatment plan and prescriptions.”

In February 2016, Forest moved to require Leysock to disclose the documents related to the detailed allegations. 

As described in Saylor’s opinion, it came out that “Milberg attorneys engaged in an elaborate scheme of deceptive conduct in order to obtain information from physicians about their prescribing practices, and in some instances about their patients. 

"In essence, Milberg retained a physician and medical researcher, Dr. Mark Godec, to conduct a survey of physicians concerning their prescription of Namenda to Medicare patients. In order to obtain the cooperation of the physicians, Dr. Godec represented that he was conducting a medical research study," Saylor wrote.

"Dr. Godec, at Milberg’s direction, conducted two internet-based surveys as well as follow-up telephone interviews. Among other things, the physicians were induced to provide patient medical charts and other confidential medical information to Dr. Godec.”

Though Saylor concedes that attorneys may misrepresent themselves to others under certain circumstances, such as undercover investigations, the Milberg attorneys’ actions in this case do not fall under such exceptions. As such, “the court has little difficulty concluding that the conduct of the attorneys in this case violated Rules 4.1(a) and 8.4(c) of the Massachusetts Rules of Professional Conduct.”

It was not immediately clear whether or what disciplinary actions would be taken against the Milberg attorneys. 

Saylor determined that because this case was not a disciplinary proceeding against the attorneys, sanctions against them were not appropriate for him to undertake. Instead, he focused on the case against Forest, determining that the case only survived the defendant’s previous motion to dismiss because of the unethically obtained information.

After removing that evidence, what remains “is clearly insufficient for the complaint to survive under Rule 9(b).” He therefore granted Forest’s previous motion to dismiss.

While such deceptive practices are frequently seen on television dramas, they are not common in the real world, Professor Moore said. 

“In my experience, the extent of the deception and false statements in this case (as well as the violations of privacy of the patients) is unusual,” Moore said. 

“I cannot say whether the attorneys involved in these rare cases are always disciplined, but I would certainly expect that a judge’s finding and publication of these findings would result in disciplinary proceedings.”

Though the attorneys’ actions had major implications for the Leysock case, they are unlikely to affect other cases the firm has worked on. 

“If prior proceedings have been concluded, it will be difficult to have them reopened in the absence of clear evidence that fraud has occurred,” Moore said. 

“And without being able to get formal discovery, I do not see how anyone could obtain evidence of such fraud. In the absence of being able to set aside a fraudulently-obtained judgment or settlement, there is no incentive to question the firm’s conduct, as disciplinary sanctions would not provide any monetary reward to the complaining party.”

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U.S. District Court for the District of Massachusetts