Guttman Buschner LLP

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On the Rule of Law: The Times They are a-Changing and So Should Trial Advocacy Training

As a lawyer, I grew up in dusty warehouses, the repositories for massive document reviews. I tore through boxes, often disappointed to find reams of computer runs, no doubt the product of a twentieth-century printer that pecked out letters one at a time. I drafted my first complaint on an IBM Selectric II typewriter, hitting the whiteout key repeatedly with my index finger, often erasing entire sentences at a time. I walked that complaint to the federal courthouse in Pittsburgh, Pennsylvania, wrote out a check from my personal account, and received the file stamped copy. Back in the days of the “notice pleading,” my eleven-page masterpiece was a triumph.

For young lawyers, this may seem like the practice of a different age. For veteran attorneys, it was yesteryear. In my lifetime, technological changes have rewritten the rules of litigation and trials.

The days of the dusty warehouses are gone. Documents arriving on zip drives are uploaded to a platform enabling a lawyer to lay in bed at night and access millions of pages of potential evidence on a two-pound iPad or small iPhone.

With iPhones, virtually every person, from every corner of the earth, can be videoed, photographed, or audio-recorded at a moment’s notice. Spontaneous comment, once pried loose through deposition testimony, is now recorded for posterity on Twitter feeds, Facebook newsfeeds, LinkedIn profiles, Instagram accounts, and emails. What should never have been can now be undone using a website called Wayback Machine that reveals original drafts of online information.

Read the entire article here.

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U.S. District Court Judge denied a Motion to Dismiss a case against the Massachusetts General Hospital

U.S. District Court Judge Allison Burroughs today denied a Motion to Dismiss a case against the Massachusetts General Hospital for booking concurrent surgeries without patient knowledge or consent. The False Claims Act case, brought by GB attorneys, alleges that patients were kept under anesthesia for extended periods of time while surgeons operated on multiple patients simultaneously. Judge Burroughs’s denial of the defendants’ Motion to Dismiss will allow the case to move forward into discovery.

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25 Congressmembers Oppose Effort to Vacate Joseph Arpaio’s Guilty Verdict

A group of 25 members of the United States House of Representatives filed a friend-of-the-court (amicus) brief to oppose Joseph Arpaio’s effort to vacate the guilty verdict in his criminal prosecution for contempt of court. President Trump issued a pardon of Arpaio for the criminal conviction.

The brief was prepared and filed by Brad Miller and Spencer Scharff. Miller, the principal author of the brief, was a Member of the U.S. House of Representatives from 2003 until 2013 and is now Of Counsel to the law firm of Guttman, Buschner & Brooks. Scharff is a civil rights lawyer in Phoenix.

A federal court ordered Arpaio, the former sheriff of Maricopa County, Arizona, not to detain anyone on suspicion only of undocumented immigration status, a suspicion based entirely upon racial profiling of Latinos. Arpaio told Fox News that he would “never give in to control by the federal government,” and openly disobeyed the court order.

The brief argues that the presidential pardon “is an encroachment by the Executive on the independence of the Judiciary.” The power of the courts to punish contempt, the brief argues, “is essential to the independence of the judiciary,” just as Congress’s power to punish for contempt of Congress is essential to the independence of the legislative branch.

The matter is now before the Ninth Circuit Court of Appeals. The trial court held that the pardon spared Arpaio from punishment for criminal contempt, but did not vacate the guilty verdict or other orders in the prosecution.

The House Members on the brief include Jerrold Nadler, the Chair of the House Judiciary Committee; Steve Cohen, the Chair of the Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Civil Liberties; Henry C. “Hank” Johnson, the Chair of the Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet; and David N. Cicilline, Chair of the Judiciary Committee’s Subcommittee on Antitrust, Commercial and Administrative Law.

Other Members on the brief are Theodore E. Deutch, Eric Swalwell, Ted Lieu, Pramila Jayapal, Sylvia Garcia, Joe Neguse, Madeleine Dean, Veronica Escobar, Jim Costa, Adriano Espaillat, Dwight Evans, Reuben Gallego, Raul M. Grijalva, Barbara Lee, Grace F. Napolitano, Eleanor Holmes Norton, Frank Pallone, Jr., Jackie Speir, Juan Vargas, and Nydia M. Velazquez.

“We have probably not heard the last of the potential for corrupt abuse of presidential pardons,” Miller said. “The old court decisions said the idea that the president might promise pardons to subordinates who violate the law at his direction was too unlikely to consider.”

“It doesn’t seem at all unlikely now,” Miller said. “There are allegations that President Trump ‘dangled’ pardons to witnesses in the Mueller Investigation to encourage the witnesses not to cooperate in the investigation.”

The House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing March 27, 2019 on “Examining the Constitutional Role of the Pardon Power.”

Guttman, Buschner & Brooks PLLC is a boutique complex litigation law firm with a diverse group of attorneys, including a former Congressman, a former Federal District Court Judge, a former Commissioner of the OSHA Review Commission, a law professor who is a national expert on complex litigation and trial practice, a former attorney with the FDA and the EPA who also holds a medical license and continues to practice, and former federal law clerks and prosecutors. The firm’s attorneys, litigating under state and Federal False Claims Acts have represented clients in cases returning  more than $6 Billion to  the government.  Recent recoveries include a $280 million recovery in a non-intervened case against Celgene Corporation (U.S. ex rel. Brown v. Celgene) and a settlement against Humana Inc (US ex Rel Graves v Humana, et al.); both achieved on the brink of trial. In addition to the recent Celgene and Humana litigations, attorneys at the firm represented the lead whistleblower in U.S. ex rel. McCoyd v. Abbott Labs, which involved the recovery of $1.6 billion for the government; one of several whistleblowers bringing FCA cases against GlaxoSmithKline in 2012, which resulted in the recovery of $1.04 billion (U.S. ex rel. Graydon v. GSK);  one of the whistleblowers bringing FCA cases against Pfizer which resulted in the recovery of $2.3 billion (U.S. ex rel. DeMott v. Pfizer); the lead whistleblowers in U.S. ex rel. Sandler and Paris v. Pfizer, which resulted in recovery of $257.4 million; the lead whistleblower in U.S. ex rel. Szymoniak v. Bank of America, which resulted in the recovery of $95 million; three of the whistleblowers in FCA cases against a large hospital chain (U.S. ex rel. Doghramji v. CHS), which resulted in the recovery of $98 million; the lead whistleblower in U.S. ex rel.  Kurnik v. Amgen, which resulted in the aggregate recovery of $30 million from Amgen, Inc., Omnicare, and PharMerica Corp.; and the whistleblower in U.S. ex rel. Abrahamsen v. Hudson Valley, which resulted in a recovery of $5.5 million to the federal government and state government.

Among other prominent cases, the firm is currently a class counsel in class action lawsuit against the South Carolina Department of Corrections seeking to secure the treatment of inmates who have Hepatitis C.

More information on GBB can be found at www.gbblegal.com. The firm also maintains the following informational site for whistleblowers, the media, and academics: www.whistleblowerlaws.com.

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An Interactive Approach to Understanding Ethics Issues in Qui Tam Cases

“The panelists that we have set up are some really fascinating people who have a lot of experience. I think [they’ll] bring a broad knowledge base to the panel, and hopefully we will be able to interact: That’s what we’re planning for our panel, is to have an interactive discussion about ethics,” remarks Traci L. Buschner, a Founding Partner at Guttman, Buschner and Brooks PLLC, who will be moderating the panel on ethics issues in qui tam matters at this year’s annual Qui Tam Conference.

The Federal Bar Association’s Qui Tam Conference on February 28 and March 1, 2019 is sure to provide practitioners with a wealth of valuable information in the ever-changing area of False Claims Act-related litigation. Register here for the Qui Tam Conference being held in Washington, D.C. at the FHI 360 Conference Center.

The structure of the FCA, which deputizes private citizens to represent the public interest, creates many ethical and legal issues. As a consequence, all lawyers that participate in FCA cases – whether they represent the government, relators or white-collar criminal defendants – have unique ethics and professional responsibility factors to consider when investigating, pursuing, defending, and settling these cases.

Our distinguished panelists will provide practical insights with regard to successfully litigating FCA cases. Moderator Traci L. Buschner will be joined by Kathleen Clark (Professor, Washington University School of Law), Precious M. Gittens (Partner, Hooper Lundy & Bookman PC), and David Wiseman (Senior Trial Counsel, Commercial Litigation, U.S. Department of Justice) to discuss ethical issues that may arise in qui tam cases.

Practice makes perfect: Attendees of the Qui Tam Conference will have a unique opportunity to study and learn about ethics issues as panelists present a fact pattern that involves problems for the relator, for the defense, and for the government.

What ethical concerns or legal consequences exist when a relator gathers documents and other evidence from an employer? What is the relationship between whistleblower laws and attorney-client privilege? Does the duty of confidentiality trump whistleblower rights? What is the tension between an attorney’s ethical duty of confidentiality and the government’s interest in encouraging whistleblowers to disclose unlawful conduct? How does an attorney pursue and defend FCA cases effectively while avoiding ethical dilemmas? Attendees may receive helpful tips and strategies on these and other ethics items.

Join the Federal Bar Association’s Qui Tam Section as it provides fresh analysis on the rapidly changing landscape of FCA enforcement. This two-day conference will feature experienced FCA litigators from a variety of perspectives who will dive into advanced topics and discuss the latest developments and cases pertaining to the FCA. Take this opportunity to interact with leading practitioners in the field while earning CLE credit and enjoying multiple networking events. We invite you to sign up for the Qui Tam Conference today at www.fedbar.org/quitam19.

Click here to hear from R. Scott Oswald (chair of the Qui Tam Section of the FBA) and moderator Traci L. Buschner on what to expect from this ethics panel.

Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, patent, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.