After a federal judge threw out the government’s first indictment of former GlaxoSmithKline PLC in-house lawyer Lauren Stevens because of improper jury instructions, Reid Weingarten refused to take a breather. When the government obtained a second indictment less than one month later, he pushed for a quick trial. Her court date would happen in a matter of weeks, not months.
The gambit paid off. After the government rested its case, U.S. District Judge Roger Titus entered a rare directed verdict acquitting Stevens of six criminal charges involving her alleged obstruction of a U.S. Food and Drug Administration investigation of Glaxo’s off-label marketing of the anti-depression drug Wellbutrin. The government claimed that Stevens helped try to hide evidence that doctors paid by Glaxo promoted the drug’s use for unauthorized conditions, including obesity.
Weingarten, a partner in Washington-based Steptoe & Johnson LLP’s white-collar criminal defense group, said his bid for a speedy trial came as a surprise both to the court and the prosecution, but the defense team was ready to go.
“That’s atypical of how defense attorneys usually behave,” Weingarten said. Usually, “it’s mañana.” But this was one of those rare occasions when the defense needed to be aggressive.
“In the right situation, it can be very effective,” he said of the tactic. “It was effective here.”
The government claimed that Stevens obstructed the FDA’s inquiry into Glaxo’s promotion of Wellbutrin and made false statements, including denials of the company’s off-label drug promotions in a series of letters to the FDA. It also claimed that, although Stevens gathered information for the probe about some paid promotional speakers, she did not turn over slides the speakers used.
The defense was unorthodox in other ways. Weingarten pressed for a bench trial. The government refused, but Titus had the final say. He believed that Titus — “not a softy” but a sophisticated jurist — would understand that Stevens’ actions weren’t illegal. “We were confident that he’d get it,” Weingarten said.
“To me, it was a signal of our confidence in our defense,” he said. “Defense attorneys almost never do that.”
When the time came to argue for the directed verdict under Rule 29 of the Federal Rules of Criminal Procedure, Weingarten and Titus discussed how rarely they are granted.
“The graveyards are full of the tombstones of unsuccessful motions under Rule 29,” Titus said, according to the transcript.
“They are — many of them authored by me,” Weingarten answered.
Later that day, Titus called off his plan to review proposed jury instructions so that he could mull over the directed verdict motion. “[I] was thinking that it would be better for me to hear you out and spend the rest of the afternoon thinking about this motion and to be able to do it — I want to do a correct decision that’s fair to both sides and I don’t want to rush into making a decision, and I need to think about this,” Titus said.
At that moment, “we knew we had a chance,” Weingarten said. Although he’s sometimes won dismissal of individual counts under Rule 29, “I’ve never had a clean sweep like this case,” he said.
Weingarten made a powerful, thoughtful and emotional presentation to the judge about the uniqueness of the case during the motion hearing, said Colleen Conry, a Washington government-enforcement partner at the Boston-based Ropes & Gray who had tried in vain to avoid an indictment. Conry and Ropes Boston partner Brien O’Connor tapped Weingarten to handle the trial and backed him up during the proceedings.
“The rules are there for a reason, and Reid was very effective in conveying that this case was different. The judge really took that to heart,” Conry said.
If Weingarten was confident in Stevens’ innocence, he was far less comfortable with the sometimes arcane rules governing off-label promotion of prescription drugs. “There were challenges understanding this world,” he said. “I was not familiar with it.”
Ropes & Gray helped him get up to speed on pharmaceutical laws, Conry said. “It’s so nuanced — he sounded so shocked” by the fact that doctors can and often do prescribe drugs for uses not approved by the FDA, but the drug maker can’t promote those other uses, he said. “We do a lot of that work, but he hadn’t. He’s a quick study, obviously.”
Translating Stevens’ actions to the jury was another challenge, particularly since juries are often biased against pharmaceutical companies and lawyers because they “make a ton of money,” Weingarten said. “How do you present to a lay jury what lawyers actually do?”
Responding to the FDA investigation had been a massive undertaking for Glaxo lawyers and their outside counsel at Atlanta’s King & Spalding, he said. “There was incomplete and erroneous information presented [during the investigation] — that’s true,” Weingarten said. “The government was right. We had to explain what happened.”
He started by debunking the theory that Glaxo ever actually misled regulators. “Their first witness, the guy from FDA, it was clear from my cross he had never looked at materials they actually sent,” Weingarten said.
Weingarten is known for tough cross-examinations of cooperating witnesses, but the Stevens trial demanded a different style — so many of them “loved our client and wanted to help her, but needed to cooperate with the government,” Conry said.
“I’ve never seen a case where every other witness provided character witness for the defendant,” Weingarten said. Under cross-examination, they testified that they were “horrified that she had been charged. What kind of feeling is that in a courtroom for the government?”
“This was a very different case and drew out a very different skill set that Reid has and I didn’t know he had,” Conry said. “How do you get what you want out of these witnesses in a careful, thoughtful way? He really walked that line perfectly.”
Sheri Qualters can be contacted at email@example.com.