Early today the US Supreme Court requested that the Solicitor General file a brief in the case of ORTHO BIOTECH PRODUCTS, L.P. V. UNITED STATES, EX REL. DUXBURY.

A copy of the order is available here.

This case, as outlined in todays Wall Street Journal law column, and also discussed on The SCOTUS Blog, is about the desire by Johnson & Johnson to get clarity on some technical questions related to the False Claims Act, or Qui Tam law, and hopefully spike one of the largest whistleblower cases in US history if it proceeds ahead to trial.

(Full disclosure, two of the principals of The Legal Broadcast Network, Attorney Jan Schlichtmann and Mark Wahlstrom are involved in this case as lead counsel and consultant to the litigation group.)

This case, which has been previously covered by The Wall Street Journal, and was thought to be dead thanks to a lower court ruling, was brought back to life by the US Court of Appeal in August and is now being aggressively argued on both sides as the relators in the case continue to press for trial so the full extent of the alleged scheme of rebates, kickbacks and illegal payments can be exposed, accounted for and the taxpayers reimbursed for the billions in alleged over charges.

On today's Speaking of Justice, lead attorney Jan Schlichtmann joins Scott Drake to discuss today's ruling by the Supreme Court, the implications on the case and the next steps for the whistleblowers as they continue to press the US government to join this case. Estimates of the over charges are between $3 billion and $10 billion and you would think with healthcare and government control of expenses being a hot political item, that the Obama Justice Department will be carefully watched as to how they approach this potentially huge case.

(NYT) While law schools added about 3,000 seats for first-year students from 1993 to 2008, both the percentage and the number of black and Mexican-American law students declined in that period, according to a study by a Columbia Law School professor.

What makes the declines particularly troubling, said the professor, Conrad Johnson, is that in that same period, both groups improved their college grade-point averages and their scores on the Law School Admission Test, or L.S.A.T.

“Even though their scores and grades are improving, and are very close to those of white applicants, African-Americans and Mexican-Americans are increasingly being shut out of law schools,” said Mr. Johnson, who oversees the Lawyering in the Digital Age Clinic at Columbia, which collaborated with the Society of American Law Teachers to examine minority enrollment rates at American law schools.

Scott Drake interviews AbovetheLaw.com...Editor in Chief...Elie Mystal. Mystal says The U.S. News and World Report Law School Rankings may play a significant role here.

Columbia study website

Scott interviews Columbia University law professor Conrad Johnson

(source: New York Times)

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Of all the problems facing the United States right now, none are more important than health care.

President Obama says rising costs are driving huge federal budget deficits that imperil our future, and that there is enough waste and fraud in the system to pay for health care reform if it was eliminated. Jan Schlichtmann

At the center of both issues is Medicare, the government insurance program that provides health care to 46 million elderly and disabled Americans. But it also provides a rich and steady income stream for criminals who are constantly finding new ways to steal a sizable chunk of the half trillion dollars that are paid out each year in Medicare benefits.

In fact, Medicare fraud - estimated now to total about $60 billion a year - has become one of, if not the most profitable, crimes in America.

This story may raise your blood pressure, along with some troubling questions about our government's ability to manage a medical bureaucracy.

(Source: CBS News)

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Todays coverage includes Roman Polanski, the Supreme Court's ruling on corporate political campaign financing and John Edwards confirms he's the father. Scott Drake hosts...Legal Headline News

Scott Drake interviews Columbia Law Professor Conrad Johnson (Video)

(NYT) While law schools added about 3,000 seats for first-year students from 1993 to 2008, both the percentage and the number of black and Mexican-American law students declined in that period, according to a study by a Columbia Law School professor.

What makes the declines particularly troubling, said the professor, Conrad Johnson, is that in that same period, both groups improved their college grade-point averages and their scores on the Law School Admission Test, or L.S.A.T.

“Even though their scores and grades are improving, and are very close to those of white applicants, African-Americans and Mexican-Americans are increasingly being shut out of law schools,” said Mr. Johnson, who oversees the Lawyering in the Digital Age Clinic at Columbia, which collaborated with the Society of American Law Teachers to examine minority enrollment rates at American law schools.

However, Hispanics other than Mexicans and Puerto Ricans made slight gains in law school enrollment.

The number of black and Mexican-American students applying to law school has been relatively constant, or growing slightly, for two decades. But from 2003 to 2008, 61 percent of black applicants and 46 percent of Mexican-American applicants were denied acceptance at all of the law schools to which they applied, compared with 34 percent of white applicants.

“What’s happening, as the American population becomes more diverse, is that the lawyer corps and judges are remaining predominantly white,” said John Nussbaumer, associate dean of Thomas M. Cooley Law School’s campus in Auburn Hills, Mich., which enrolls an unusually high percentage of African-American students.

Mr. Nussbaumer, who has been looking at the same minority-representation numbers, independently of the Columbia clinic, has become increasingly concerned about the large percentage of minority applicants shut out of law schools.

“A big part of it is that many schools base their admissions criteria not on whether students have a reasonable chance of success, but how those L.S.A.T. numbers are going to affect their rankings in the U.S. News & World Report,” Mr. Nussbaumer said. “Deans get fired if the rankings drop, so they set their L.S.A.T. requirements very high.

“We’re living proof that it doesn’t have to be that way, that those students with the slightly lower L.S.A.T. scores can graduate, pass the bar and be terrific lawyers.”

Margaret Martin Barry, co-president of the Society of American Law Teachers, said that while she understood the importance of rankings, law schools must address the issue of diversity. “If you’re so concerned with rankings, you’re going to lose a whole generation,” she said.

The Columbia study found that among the 46,500 law school matriculants in the fall of 2008, there were 3,392 African-Americans, or 7.3 percent, and 673 Mexican-Americans, or 1.4 percent. Among the 43,520 matriculants in 1993, there were 3,432 African-Americans, or 7.9 percent, and 710 Mexican-Americans, or 1.6 percent. The study, whose findings are detailed at the Web site A Disturbing Trend in Law School Diversity, relied on the admission council’s minority categories, which track Mexican-Americans separately from Puerto Ricans and Hispanic/Latino students.

“We focused on the two groups, African-Americans and Mexican-Americans, who did not make progress in law school representation during the period,” Mr. Johnson said. “The Hispanic/Latino group did increase, from 3.1 percent of the matriculants in 1993, to 5.1 percent in 2008.”

Mr. Johnson said he did not have a good explanation for the disparity, particularly since the 2008 LSAT scores among Mexican-Americans were, on average, one point higher than those of the Hispanics, and one point lower in 1993.

Over all, Mr. Johnson said, it is puzzling that minority enrollment in law schools has fallen, even since the United States Supreme Court ruled in 2003, in Grutter v. Bollinger, that race can be taken into account in law school admissions because the diversity of the student body is a compelling state interest.

“Someone told me that things had actually gotten worse since the Grutter decision, and that’s what got us started looking at this,” Mr. Johnson said. “Many people are not aware of the numbers, even among those interested in diversity issues. For many African-American and Mexican-American students, law school is an elusive goal.”

(Philadelphia Inquirer) The lawyers who won $103 million in two jury verdicts announced Monday against Pfizer Inc. relied as much on their storytelling ability as their knowledge of the law.

Most plaintiffs' lawyers are men, but two prominent lawyers in these cases are women: Zoe Littlepage of Houston and Esther Berezofsky, whose firm is in Philadelphia.

On Monday, a jury in Philadelphia Common Pleas Court awarded $28 million in punitive damages to Donna Kendall of Decatur, Ill., after finding that Pfizer's Prempro hormone-replacement therapy caused her breast cancer.

In a separate decision the same day, a judge in that same court unsealed a verdict reached earlier this year that awarded $75 million in punitive damages to another Illinois resident, Connie Barton, over her Prempro-linked breast cancer.

Pfizer said the verdicts were not supported by the evidence and vowed to continue fighting.

Tobis MilroodFor Tobias Millrood, Kendall's lawyer, the high-stakes litigation began seven years ago with the release of a study suggesting that a popular hormone-replacement therapy might raise the risk of breast cancer.

Millrood, then only 32, filed his first lawsuit the next day alleging that the drug had caused breast cancer.

Since then, he has come to represent 1,000 plaintiffs in the litigation, which includes about 10,000 total cases against Wyeth and Upjohn, alleging that their drugs had put his clients' lives at risk. Both companies were acquired by Pfizer.

The lawyers in these cases belong to a small legal fraternity who earn their livings suing pharmaceutical companies. Because they typically charge their clients nothing, they take on huge financial risk. They finance the costs of depositions, expert testimony, and investigations that can run into millions of dollars.

But the payoff can be huge. Lawyers' fees in such litigation range between 30 percent and 40 percent of the total award.

"These are very, very high-risk cases and there are not a lot of firms that have the resources or the will" to take them on, said Millrood, a partner in the firm of Pogust Braslow & Millrood L.L.C. of Conshohocken.

Since graduating from the University of Tulsa College of Law, he has tried some 20 cases to verdict and settled several others shortly before or during trial.

For most jurors, pharmaceutical litigation is a complex terra incognita, where scientific certainty is often unattainable and drawing an irrefutable causal link between the taking of a medication and the onset of disease nearly impossible.

In the Prempro case, Millrood maintained to the jury that the hormones in the drug stimulated tissue growth that eventually morphed into cancer, and he pointed to statistical studies showing an elevated occurrence of cancer among women who took the drugs.

He and the other trial team members also sought to undermine the credibility of Pfizer witnesses.

Ron Rosenkranz, of Finkelstein & Partners, of Newburgh, N.Y., who served as cocounsel along with Millrood for Donna Kendall, said jurors expressed great skepticism about the Wyeth and Upjohn witnesses in a meeting after the punitive-damages verdict.

Rosenkranz, 63, described the trial as physically punishing - he had a kidney replaced four years ago and earlier had triple-bypass surgery - yet he said the results were gratifying.

For Littlepage, the courtroom is a theater, the jury is her audience, and props are part of the act.Zoe Littlepeage

In some of the hormone-replacement cases, for example, she filled a fishbowl with pieces of paper that included details about Wyeth studies on the drugs. She then asked a Wyeth witness to pick a piece of paper randomly from the fishbowl and read what was on it.

Littlepage asked questions about each study picked, driving home the point that no matter what the witness selected, no study adequately investigated links between the drugs and breast cancer.

"She's a master of translating very complex concepts into visuals that are readily comprehensible and that juries react to," said Berezofsky, who also was a lawyer for Barton and is the liaison for lawyers in Prempro cases being tried in New Jersey.

(Pfizer continues to say it did the necessary research and disclosed risks to patients.)

Littlepage's tactics occasionally have annoyed defense lawyers, prompting one to say during a trial: "I can't compete with Zoe and her toys."

Courtroom litigation can be rough, but Littlepage enjoys it.

"My style is theatrical and dramatic but not emotional," she said. "I just have a lot of fun trying lawsuits."

Esther BerezofskyBerezofsky, who lives in Cherry Hill, says perseverance is in her genes. Her mother was a resistance fighter during the Holocaust. One of Esther Berezofsky's first jobs was promoting community mental-health projects in Detroit.

"I come from a family who resisted against and fought oppression, so in my life now, I work or represent people who need some kind of advocacy," she said.

Her firm, Williams Cuker Berezofsky, is based in Center City and employs 14 lawyers.

A graduate of Wayne State University and Rutgers Law School, she also has successfully represented families in Toms River, N.J., who claimed that Ciba Specialty Chemicals Corp., Union Carbide Corp., and United Water Resources Inc. caused their children's cancer. The companies did not admit fault in those cases.

Scott Drake talks with Barton's attorney Zoe Littlepage

Jan Schlichmann discusses the claims and the similarities to his Procrit case.

The Indiana Attorney General’s Office joined in a lawsuit along with 13 other states against Amgen Inc., alleging the pharmaceutical manufacturer illegally promoted its anemia-treatment drug Aranesp by offering physicians kickbacks and other illegal inducements to prescribe it.

The multi-state investigation and lawsuit was initiated by a company whistleblower, a former sales and marketing professional in California, who came forward about alleged illegal marketing practices.

Under the federal False Claims Act, a whistleblower who exposes Medicaid fraud is able to share in any resulting monetary damages, through what is known as “qui tam” (pronounced “key tam”) litigation. In this qui tam case, a private individual filed suit in 2006 on behalf of the government to recover public funds wrongly paid due to health care fraud. The case remained under seal while the states and the federal government investigated.

“Today, we are intervening and joining the case as plaintiffs,” Indiana Attorney General Greg Zoeller said. “Our office wants to encourage whistleblowers to come forward so that pharmaceutical-marketing fraud is exposed and public dollars wrongly paid out are recouped.”

Scott Rothstein

Great, just what we needed as a profession, more traffic and news with our trade name dragged into what looks to be a growing fraud in which the term Structured Settlements was used to lull investors into thinking this scam had the legitimacy and security offered by structured settlements.

You can read the entire FBI press release by clicking here.

What is also distressing is that what looked to be a $100 million scam and limited to a few cases is now being announced by the FBI as potentially exceeding $1 billion in losses and involving a network of individuals who were working with Scott Rothstein.

The Legal Broadcast Network will be following this story closely over the next few week but as a special guest we had Civil Action Attorney Jan Schlichtmann join us today to discuss from the perspective of a trial lawyer the distressing trend of lawyers being implicated in not just frauds, but in the betrayal of their clients and associates all in the name of greed. Watch today's extended interview with Jan Schlichtmann on Voices of the Law and tune in next week as we continue to bring in more commentators and news on this scam, as well as shine light on the "cash now" industry that seems to have been the model for how this program was designed.

Watch Attorney Jan Schlichtmann discuss the Scott Rothstein fraud and the issues confronting trial lawyers nationally regarding the proliferation of "cash now schemes" that are being offered to lawyers, plaintiffs and investors with little or no regulation or oversight.

Jan SchlichtmannSchlichtmann said a worker for Ashland Inc., based in Covington, Ky., also participated in filling up the 2,000-gallon mixing tank that overheated inside the CAI/Arnel factory, causing an explosion that nearly flattened the Danversport neighborhood.