By the time Dallas-based firm Reese Marketos was hired in 2022 onto a False Claims Act case brought by two former Janssen Products sales representatives over the company’s off-label promotion of HIV drugs, the whistleblower case had spanned a decade and the evidence was mounting.
The trial team of five lawyers hunkered down in their war room at Reese Marketos and scoured through hundreds of thousands of documents, name partner Pete Marketos said Friday in an interview with The Texas Lawbook, detailing the trial preparation that resulted in a $150M federal jury verdict Thursday.
The New Jersey jury determined Janssen Products violated the federal FCA and 27 state statutes, and jurors found that Janssen submitted 159,574 false federal claims to Medicare and Medicaid. Each false claim has a statutory penalty of at least $5,500 per claim, which adds up to $877,657,000, and federal law allows the judgment to be trebled. The damages award against Janssen could be more than $1 billion, Marketos said, one of the largest known False Claims Act verdicts, Marketos said.
Marketos’ clients, Jessica Penelow and Christine Brancaccio, the whistleblowers in the case, stand to receive as much as 30 percent of the total the government collects. Represented by Philadelphia firm Berger & Montague, Penelow and Brancaccio filed the qui tam lawsuit in December 2012. In 2016, the U.S. Department of Justice declined to take over the case.
U.S. District Judge Zahid Quraishi denied Janssen’s motion for summary judgment in December 2021.
Berger & Montague reached out to Reese Marketos’ Josh Russ, a former assistant U.S. Attorney and chief of the Eastern District of Texas civil division who, in 2019, left the Department of Justice while turning into a whistleblower himself. Marketos said Berger & Montague had read The Lawbook’s report about Russ’ whistleblower complaint to the DOJ’s Office of Inspector General, alleging political appointees interfered with his investigation and potential civil and criminal prosecution of Walmart for having a role in the country’s opioid epidemic.
Berger & Montague had done solid prep work, Marketos said. In February, the trial team began earnestly preparing for trial. In the war room were Marketos, Russ, partners Adam Sanderson and Andrew Wirmani, and Whitney Wendel, a young lawyer who obtained her law degree in 2021 and worked as a law clerk to U.S. District Judge Stephen R. Bough in the Western District of Missouri before joining Reese Marketos in September. She did the work of 10 people, Marketos said.
The team cracked open hundreds of thousands of documents and reviewed dozens of depositions, Marketos said, while simultaneously preparing for witness questioning.
“We were just relentless,” Marketos said.
On the other side, Janssen was represented by Troutman Pepper and Skadden, Arps, Slate, Meagher & Flom and they seemed to have a fleet of associates helping on the case, Marketos said.
Janssen’s trial team was led by Skadden’s Allison Brown, who has successfully defended Janssen’s parent company, Johnson & Johnson, against claims its baby powder contained cancer-causing asbestos. In 2021, Brown secured a victory for J&J in a multi plaintiff trial in Missouri. That trial was over whether J&J’s cosmetic talc products caused three women’s ovarian cancer.
Janssen declined to make its lawyers available for interviews. The company plans to appeal the verdict, according to a statement, and it believes its marketing and promotion were consistent with the FDA-approved labels.
The Reese Marketos team had to demonstrate Janssen created a nationwide scheme that took place over nine years. Their theory was twofold: 1) that Janssen had promoted HIV medications Prezista and Intelence outside of the narrow segment of HIV patients the FDA had granted approval for, and 2) that they paid doctors to give promotional speeches about the drugs. The jury rejected the second argument and found Janssen did not violate state and federal anti-kickback laws.
Janssen “admitted nothing and challenged everything” during the five-and-a-half-week trial, Marketos said.
Five former sales representatives, in addition to the whistleblowers, testified in the trial, Marketos said. The plaintiffs also called the former company president and former national sales director “to demonstrate that it was a top-down scheme and not merely one-off ideas of a few sales representatives.”
In what Marketos called a highlight of the trial, a statistician testifying for the plaintiffs compared a group of more than 5,000 doctors influenced by Janssen to about 20,000 who prescribed HIV medication nationwide and found the rate of off-label prescribing of Prezista and Intelence was more than double the rate of the other group of doctors, Marketos said. The statistician, Israel Shaked, was on the stand a full day and returned for about 15 minutes to rebut the other side’s expert, Marketos said.
Marketos’ hunch is that jurors rejected the kickback theory because they found the off-label promotion more insidious than the payments to the doctors. He declined to share details of a post-trial conversation he had with a juror.
Still, the plaintiffs are thrilled with the result, Marketos said, and he heaped praise on his team.
“I think it’s the most fearsome trial boutique in the country,” Marketos said. “The talent that we’ve been able to assemble in trial is remarkable.”
The case is 3:12-cv-07758 U.S.A. ex rel v. Johnson & Johnson et al.