Law.com - In Rare Move, AARP Joins Pharma False Claims Act Case as Plaintiff's Co-Counsel

One of the big concerns corporate counsel voiced in the latest Fulbright & Jaworski Litigation Trends report is an increase in litigation initiated by whistleblowers. New provisions in the Dodd-Frank Act, in combination with recently-renewed Justice Department interest in False Claims Act litigation, can only mean more qui tam cases for businesses to worry about.

And now defendants can add another qui tam wrinkle to their list of fears: On Tuesday, the Texas branch of AARP announced that it was entering a Dallas qui tam case as co-counsel for the plaintiff, Kevin Colquitt, a former Guidant sales representative who's now a lawyer at Baron & Budd. AARP lawyers Kelly Bagby and Stacy Canan will join Colquitt's counsel from Baron & Budd and Stein, Mitchell & Muse in prosecuting Colquitt's federal district court case against Abbott Laboratories, Cordis, and Boston Scientific. [Hat tip: Pharmalot.]

Bagby told us AARP has previously appeared as an amicus in FCA cases, but to her knowledge the organization hasn't before joined as co-counsel. "This is a good way for us to get our foot in," she said, adding that she was approached by Colquitt's Stein Mitchell lawyers, whom she's worked with before. Bagby was intrigued: She has a background in fraud investigation, she said, and considered Colquitt's case to raise serious safety concerns for AARP members.

Another of Colquitt's lawyers, Laura Baughman of Baron & Budd, told the Litigation Daily that in her experience, it's very unusual for a large, powerful nonprofit like AARP to take a prominent position in a qui tam case. "We are delighted to be co-counsel with them," she said.

Colquitt alleges in his 218-page third amended complaint (pdf) that the pharmaceutical companies deceived the Food and Drug Administration to obtain FDA approval for biliary stents, which the defendants then allegedly marketed fraudulently as vascular stents. Colquitt filed the suit in 2006, when he was a law student at Georgetown. (He decided to go to law school, he told us, after years of fighting with health insurance companies over coverage for his youngest daughter, who has serious medical issues.) After graduating law school in 2009, he joined Baron & Budd.

The Justice Department notified Dallas federal district court judge Barbara Lynn in December 2009 that it did not intend at that time to intervene in Colquitt's case, but earlier this month, DOJ lawyers filed a notice of interest (pdf), asserting responses to some of the defense arguments for dismissing Colquitt's case. Baughman of Baron & Budd told us Justice lawyers and several state attorneys general are continuing to investigate the case and may still elect to intervene. In their motions to dismiss (available here, here and here (pdf)), Abbott, Cordis and Boston Scientific assert, among other defenses, that the public has known for years that biliary stents are used for vascular purposes, so Colquitt doesn't have standing under the FCA's "original source" provisions; and that private plaintiffs can't assert a fraud on the FDA. Abbott is represented by Covington & Burling; Cordis has Morgan, Lewis & Bockius; and Boston Scientific has Hogan Lovells. We left messages with partners at all three firms seeking comment on the AARP's new role in the case, but we didn't hear back.

This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.

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