Contingency - Philly Judge allows it in govt case against BigPharma

The use of contingency in cases filed by government entities probably will eventually wind up in the U.S. Supreme Court - and sooner than later with the emboldened state attorneys general and plaintiff bar. 

The latest ruling on that controversial issue has been by a Philadelphia County Court of Common Pleas.  That state judge Howland Abramson gave his okay to the participation of private law firm Bailey Perrin Bailey of Houston in the lawsuit filed by Pennsylvania Governor Ed Rendell against Janssen Pharmaceuticals.  The firm is accused of off-labeling marketing of drug Risperdal. 

As John O'Brien reports in LEGAL NEWSLINE, the defendant objects to the use of contingency based on the argument of violation of due process.  O'Brien states, "The Due Process Clause requires Rendell to be guided by the sense of public responsibility for the attainment of justice, Janssen says. 'The risk that Bailey Perrin's financial stake in the outcome will affect government decision-making in connection with this action is real and serious.'"  A number of legal experts view the due-process argument as the strongest against contingency in cases filed by government entities.

In the landmark Rhode Island lead paint public nuisance case, the Rhode Island Supreme Court ruled that it could be used.  Here is that opinion Download Statev.LeadIndustriesAssoc.,Inc.   The justification primarily is to give access to the courts.

In California, contingency was allowed in the Santa Clara County lead paint public nuisance case.  An appeals court overturned the lower court's ruling on that.  The defendants, including ARCO and Sherwin-Williams, requested that the CA Supreme Court review the appeals court decision.  That request was granted.  Currently briefs from both sides are still being submitted to the CA SC.  Here is the appeals court ruling - and it's interesting to pay special attention to the concurring opinion Download H031540.