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Government By Contingent Fee In Pennsylvania

By James M. Beck and Mark Herrmann

We've posted before - here, here, and here - about the constitutionality issues (among many other problems) that we think are inherent whenever governmental units hire, without legislative approval, private outside contingent fee counsel to sue people (especially our clients) for money damages. Indeed, the issue is pending right now in the Supreme Court of California in County of Santa Clara v. Superior Court, 80 Cal. Rptr.3d 629 (Cal. 2008) (order granting review).

Well, we've now learned that the issue is headed to the Pennsylvania Supreme Court as well, as Janssen Pharmaceuticals, the manufacturer of Risperdal, is challenging the power of the Commonwealth's "General Counsel" (an appointee of the governor, as opposed to the Attorney General - a separately elected office currently held by a different political party) to hire a contingent fee lawyer ostensibly to represent the state in suing over alleged off-label promotion.

Here's a copy of the application for extraordinary relief that Janssen recently filed, seeking intervention by the Pennsylvania Supreme Court. It makes for interesting reading.

We hope the court decides to grant the appeal. It's really hard for a government to act in an unbiased fashion towards all citizens when it's being represented by someone with a financial interest in a particular outcome.

Full post as published by Drug and Device Law on January 29, 2009 (boomark / email).