A former GlaxoSmithKline Plc lawyer, charged with obstructing a regulatory probe of the company, said U.S. prosecutors misled the grand jury that indicted her on the key element of her defense.
The lawyer, Lauren Stevens, argued that prosecutors improperly told grand jurors that a defense of relying on advice of counsel “was not relevant” to their decision whether to indict, according to a filing by her attorneys. Stevens asked U.S. District Judge Roger Titus to dismiss the case at a hearing today in Greenbelt, Maryland.
Stevens, indicted in November on charges she obstructed a probe into whether London-based Glaxo marketed the antideprssant Wellbutrin for unapproved uses, has based her defense on the claim she took advice from the Atlanta law firm of King & Spalding in responding to a 2002 Food and Drug Administration inquiry, her attorney Reid Weingarten said.
“We have been troubled by the zeal and overzealousness of the effort to remove from this case the advice of counsel defense,” Weingarten said today in court. “From the time the FDA sent the letter of inquiry to GSK, GSK retained the services of King & Spalding and they worked hand in hand with King & Spalding to respond.”
Grand Juror’s Question
Weingarten said the deceit occurred in the government’s response to a question from a grand juror who asked whether it was relevant that Stevens may have been getting direction on how to respond to the FDA from someone else.
The government “was not required to present the advice of counsel defense to the grand jury,” Patrick Jasperse, a trial attorney in the Justice Department’s Office of Consumer Litigation, said in court. He added that the government “could have been more articulate and complete” when answering the grand juror’s question.
“What happened in this case is not misconduct,” Jasperse said. “It was not the sort of grand jury abuse that warrants dismissal of the indictment.”
Jasperse said if the judge decides to dismiss the indictment, the government should be allowed to seek another against Stevens.
Titus did not rule on the request. He did ask the prosecutors whether they would be able to secure a new indictment against Stevens by April if he rules against them.
Stevens is scheduled to go to trial on April 5. Weingarten said she will ask for a bench trial.
Les Zuke, a spokesman for King & Spalding, didn’t respond to messages left on his office and mobile phones. Mary Anne Rhyne, a spokeswoman for Glaxo, declined to comment.
Stevens is charged with one count of obstructing an official proceeding, one count of falsifying and concealing documents and four counts of making false statements.
The first two charges carry maximum prison terms of 20 years, and the others carry terms of five years.
Prosecutors contend that Stevens, who lives in Durham, North Carolina, “engaged in a yearlong effort” to deceive the FDA about the company’s off-label marketing campaign for Wellbutrin.
Under U.S. law, drug companies aren’t allowed to promote a drug for any use not approved by the FDA.
In response to regulators’ request for information about Wellbutrin’s marketing in October 2002, Stevens allegedly sent a series of letters “that falsely denied the company had promoted the drug for off-label uses, even though she knew” the drugmaker had sponsored such marketing programs, prosecutors said in court filings.
The case is U.S. v. Stevens, 10-cr-694, U.S. District Court, District of Maryland (Greenbelt).