Shortly after the federal government announced a record $3 billion health care fraud deal with pharmaceutical giant GlaxoSmithKline PLC, two whistleblowers involved in the case sued their former lawyers for alleged malpractice.
The whistleblowers, Gregory Thorpe and Blair Hamrick, accused Colorado-based firm Cross & Bennett of botching their claims against GlaxoSmithKline — costing the whistleblowers a greater cut of the award for disclosing wrongdoing.
The dispute, filed in Boston federal district court in 2012, took a recent detour to Washington for the second time this year. Thorpe and Hamrick want whistleblower boutique Phillips & Cohen to share information on its work in the GlaxoSmithKline litigation. Phillips & Cohen is fighting — again — to stay out of the fray. A judge earlier limited the information the two whistleblowers could squeeze from the firm.
Phillips & Cohen represented other whistleblowers who brought fraud claims against the United Kingdom-based pharmaceutical company. Lawyers for Hamrick and Thorpe want a Phillips & Cohen attorney, Erika Kelton, to testify about her interactions with attorneys at Cross & Bennett. Kelton’s lawyer on Nov. 26 asked a Washington federal district judge to throw out the subpoena.
Phillips & Cohen attorneys Stephen Hasegawa and Peter Chatfield said in court filings that Kelton’s recollections of how Thorpe and Hamrick’s ex-lawyers handled the GlaxoSmithKline litigation are exempt from discovery. The Phillips & Cohen lawyers argue the information Thorpe and Hamrick want is protected attorney work-product.
“Lawyers’ opinions and analyses are, by definition, paradigmatic opinion work product,” Chatfield and Hasegawa wrote in court papers. “But an attorney’s recollections formulated in the course of representing that attorney’s client also qualify as opinion work product.” The attorneys declined to comment.
An attorney for Thorpe and Hamrick, Richard Limburg of Obermayer Reb­mann Maxwell & Hippel, said his clients planned to respond to Kelton’s motion to quash on Dec. 20. Limburg declined to discuss the subpoena dispute.
Thorpe and Hamrick were former GlaxoSmithKline employees. Represent­ed by Cross & Bennett until the two whistleblowers fired the firm in 2009, they were the first to file a False Claims Act case accusing the pharmaceutical company of illegal off-label marketing of certain drugs.
The U.S. Department of Justice in July 2012 called the GlaxoSmithKline settlement “unprecedented in both size and scope.” The deal resolved civil allegations under the False Claims Act — including claims filed by Thorpe, Hamrick and the other whistleblowers — and the ­company agreed to plead guilty to charges that included two counts of misbranding the drugs Paxil and Wellbutrin.
Under the False Claims Act, whistleblowers can receive a percentage of money recovered. Thorpe and Hamrick split the whistleblower award with Phillips & Cohen’s clients, receiving about $75 million, according to court filings.
They accused Cross & Bennett of giving bad legal advice and failing to include certain claims in their complaint against GlaxoSmithKline, opening the door to other whistleblowers — Phillips & Cohen’s clients — who shared in the award.
In the malpractice suit, Thorpe and Hamrick argue that they shouldn’t have to pay Cross & Bennett legal fees, and that the firm owes them damages for the portion of the whistleblower award they shared. Cross & Bennett defended its handling of the case and said, in court papers, that Thorpe and Hamrick had a history of trying to bully the firm to reduce its fees. The firm maintains Thorpe and Hamrick owe 40 percent of the $75 million award, per their fee arrangement. Cross & Bennett’s lawyer, Thomas Greene of Greene LLP, declined to comment.
The subpoena spat isn’t the first time Phillips & Cohen has been pulled into the dispute. In March, lawyers for Thorpe and Hamrick tried to subpoena documents from the firm.
Phillips & Cohen fought the ­subpoena, arguing the information was protected work product and irrelevant to Thorpe and Hamrick’s lawsuit. The firm later agreed to turn over some information, but U.S. Magistrate Judge Deborah Robinson granted the firm’s motion to quash the rest of the document request.
Robinson agreed with Phillips & Cohen that the subpoena was “a naked attempt” by Thorpe and Hamrick to collect information they could ­potentially use to bring claims against Phillips & Cohen. Robinson is assigned to handle the latest subpoena fight.
Contact Zoe Tillman at email@example.com.