USA, ex. rel., William St. John LaCorte, M.D. v. Wyeth

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA et al., )

ex rel. WILLIAM LACORTE, )

)

Plaintiffs, )

) CIVIL ACTION NO.

v. ) 06-11724-DPW

)

WYETH PHARMACEUTICALS, INC., )

)

Defendant. )

-------------------------------- )

)

VEZINA & GATTUSO, LLC, )

BOONE & STONE, )

SAKLA LAW FIRM, APLC, )

SHERIF K. SAKLA, M.D., )

)

Intervenor Claimants/ )

Interested Parties. )

FINDINGS OF FACT

AND

CONCLUSIONS OF LAW

REGARDING ALLOCATION OF

EXPENSES, ATTORNEYS’ FEES AND COSTS

AMONG QUONDOM CO-COUNSEL

December 14, 2023

TABLE OF CONTENTS

I. FINDINGS OF FACT............................................ 4

A. The Intervening Parties ................................. 4

B. Background of Underlying Qui Tam Action ................. 5

C. Representation Contracts ............................... 12

D. Terminations of the Trial Attorneys .................... 14

1. Document Sharing Dispute .............................. 15

2. Merck Fee Dispute ..................................... 17

3. Timekeeping ........................................... 18

4. The Ultimate Terminations of V&G and B&S .............. 19

E. Post Termination ....................................... 20

F. The Intervenors’ Involvement in the Wyeth Litigation ... 21

1. The Sakla Parties ..................................... 21

2. V&G ................................................... 26

3. B&S ................................................... 28

II. CONCLUSIONS OF LAW........................................ 29

A. Motions in Limine ...................................... 33

1. Motion in Limine to Exclude Summaries of Activities ... 34

a. Timeliness of Production ............................ 34

b. The Assertion of Privilege .......................... 36

c. Hearsay ............................................. 38

d. Reliability and Confusion ........................... 39

2. Motion in Limine to Exclude Evidence of Post-Termination

Activities ................................................ 40

a. Post-Termination Work ............................... 40

b. Work Performed in the Merck Case .................... 42

c. Debarment of All Fees ............................... 42

B. Motion to Strike ....................................... 44

1. Standing to Challenge the Enforceability of the ....... 44

June 2004 representation contract ......................... 44

2. Admissibility of Expert Opinion ....................... 47

a. Opinions on Georgia and Louisiana Law ............... 47

b. Reliability of Factual Determinations ............... 52

C. Conclusions Regarding Merits Raised at Threshold ....... 53

1. Timeliness of Claims .................................. 53

2. Enforceability of Contingency Fee Agreement ........... 56

3. Joint Venture ......................................... 60

4. Breach of Fiduciary Duty .............................. 62

5. Judicial Estoppel ..................................... 62

6. Termination of V&G and B&S – Cause .................... 64

D. Division of Attorneys’ Fees According to Rule 1.5 ...... 66

Factors ..................................................... 66

1. The time and labor required, the novelty and difficulty

of the questions involved, and the skill requisite to perform

the legal service properly ................................ 71

2. The likelihood, if apparent to the client, that the

acceptance of the particular employment will preclude other

employment by the lawyer .................................. 73

3. The fee customarily charged in the locality for similar

legal services ............................................ 73

4. The amount involved, and the results obtained ......... 74

5. The time limitations imposed by the client or by the

circumstances ............................................. 74

6. The nature and length of the professional relationship

with the client ........................................... 75

7. The experience, reputation, and ability of the lawyer or

lawyers performing the services ........................... 75

8. Whether the fee was fixed or contingent ............... 77

E. Conclusion ............................................. 77

On April 16, 2016, the United States Department of Justice

(“DOJ”) announced that the federal government and intervening

states had reached a settlement agreement with Wyeth

Pharmaceuticals, Inc. (“Wyeth”) in the amount of $784,600,000

dollars to resolve this consolidated Wyeth qui tam action in

which it was alleged that Wyeth underpaid Medicaid by failing to

give the government the same discounts that it provided to

private purchasers of drugs. Litigation continued to determine

attorneys’ fees for intervening attorneys — Vezina & Gattuso,

LLC, the Boone & Stone law firm partnership, and the Sakla Law

Firm, APLC — three law firms that represented one of the two

relators in the Wyeth litigation, Dr. William LaCorte. Dr.

LaCorte terminated Vezina & Gattuso, LLC and Boone & Stone in

2008. Despite earlier steps in that direction by Dr. LaCorte,

the Sakla parties were never terminated. Following a non-jury

trial and based upon review of the entire record of this case

and the evidence I find credible, I make these Findings of Fact

and Conclusions of Law.

I. FINDINGS OF FACT

A. The Intervening Parties

The Sakla Law Firm, APLC is a professional law corporation

located in New Orleans, Louisiana; Sherif K. Sakla, M.D. is an

attorney licensed to practice law in the state of Louisiana and

a principal of the Sakla Law Firm (together the “Sakla

Parties”).

Vezina & Gattuso, LLC (“V&G”) is a limited liability

company engaged in law practice located in Gretna, Louisiana.

J. Marc Vezina, Esq., the managing member of V&G, is an attorney

licensed to practice in the state of Louisiana.

David Wm. Boone operated under his professional

corporation, David Wm. Boone, P.C., and William S. Stone

operated under his professional corporation, William S. Stone,

P.C. The two professional corporations engaged in the practice

of law as the Boone & Stone law firm partnership (“B&S”) during

the period relevant to this matter. B&S had offices in Atlanta,

Georgia and Blakely, Georgia.

B. Background of Underlying Qui Tam Action

The Wyeth case was an outgrowth of a previously filed qui

tam action against another pharmaceutical company, Merck, in the

United States District Court for the Eastern District of

Louisiana. By 2001, Dr. LaCorte had become aware of possible

similar misconduct concerning the sale and marketing of

Protonix, a proton pump inhibitor manufactured by Wyeth.1 Dr.

1 In an effort to focus this Memorandum on the Wyeth litigation

and avoid digressing into discussion of similar sales and

marketing False Claims Act matters in which the intervening

parties were engaged together on behalf of Dr. LaCorte, I will

refer to the remaining attorneys’ fees dispute now before me as

the Wyeth matter.

LaCorte believed that Wyeth’s discounting schemes also violated

federal law. Dr. LaCorte began investigating with Dr. Sakla, a

fellow physician who worked knowledgeably together with him

regarding his concerns. Dr. LaCorte retained the Sakla Parties

to represent him in a qui tam False Claims Act (“FCA”) action

against Wyeth concerning Protonix. Dr. Sakla may properly be

characterized as the originating attorney in the case against

Wyeth. With Dr. LaCorte’s permission, Dr. Sakla, as lead

attorney, associated Mr. Vezina later in 2001 as counsel to

assist with the Wyeth case.

As part of their preparation before the initiation of the

Wyeth qui tam action, Dr. Sakla and Dr. LaCorte worked together

to collect and analyze data. Dr. Sakla met extensively with Dr.

LaCorte after hours and on weekends at the Baptist Memorial

Hospital and the East Jefferson Memorial Hospital to gather

documents and analyze information about Wyeth’s discounting

schemes. The two also met with New Orleans area physicians,

pharmacists, and hospital administrators to develop their

understanding of the impact of these schemes on prescribing

Protonix to hospital patients further. During this time of

development in the Wyeth case, Dr. Sakla was also working as a

doctor in the emergency room.

Meanwhile, in late 2001, Dr. LaCorte and Mr. Vezina had

numerous meetings, by telephone as well as in-person, with

representatives from the DOJ to determine the government’s

interest in the Merck case in addition to what would become the

Wyeth litigation

On March 21, 2002, Dr. LaCorte, as relator, filed his

original complaint in the Wyeth qui tam FCA case in the United

States District Court for the Eastern District of Louisiana.

The original complaint was eight pages long with an additional

seven pages of exhibits. It was drafted by Dr. Sakla and Mr.

Vezina. B&S was not involved in the case at the time of the

filing of the original complaint. Mr. Boone and Mr. Stone were

introduced to Mr. Vezina by Dr. Sakla roughly a year later in

the spring of 2003. In June 2003, the DOJ declined to intervene

in Dr. LaCorte’s case.

Meanwhile, in 2002, Mr. Vezina had developed a somewhat

novel theory of the case that was later incorporated into a

first amended complaint. Dr. Sakla with a certain hyperbole

described this novel theory as Mr. Vezina’s “eureka moment.”

The theory’s concept regarding the bundling of discounts under

the anti-kickback program would be pled in the first amended

complaint. Wyeth’s Protonix Performance Agreement laid out the

actual bundle, with market share percentages and various terms

and conditions for a hospital to receive the discounts that were

a bundle. Wyeth’s Protonix Performance Agreement was ultimately

attached to the first amended complaint.

On October 24, 2003, Dr. LaCorte filed the first amended

complaint in the Eastern District of Louisiana. The first

amended complaint, as drafted by Dr. Sakla and Mr. Vezina, was

ten pages long and included an additional nine pages of

exhibits.

The following month, on November 24, 2003, Lauren Kieff, as

relator, filed a qui tam action in the United States District

Court for the District of Massachusetts arising out of Wyeth’s

marketing for Protonix. Ms. Kieff’s complaint included claims

as relator for many individual states, in addition to the United

States. Dr. LaCorte did not learn of Ms. Kieff’s qui tam case

against Wyeth until April 2004 when the DOJ mailed a letter to

V&G, as well as to counsel for Ms. Kieff, notifying each party

of the existence of their respective complaints as well as the

date of filing of those actions.

In May 2004, the two relators met in Boston with their

legal teams to review each other’s complaints. After reviewing

Ms. Kieff’s complaint, Dr. LaCorte became concerned that his

first amended complaint did not state causes of action under the

individual states’ qui tam statutes. During their meetings,

Gary Azorsky, counsel for Ms. Kieff, expressed his doubts to Dr.

LaCorte’s legal team as to whether the LaCorte first amended

complaint pleaded its allegations with particularity sufficient

to survive a motion to dismiss under Rule 9(b). Consequently,

on January 10, 2006, Dr. LaCorte filed a second amended

complaint in the Eastern District of Louisiana, which added

state law qui tam claims on behalf of several states. The

second amended complaint was seventeen pages long and was

drafted by Dr. Sakla, Mr. Vezina, and B&S.

The DOJ encouraged counsel for Dr. LaCorte and Ms. Kieff to

enter into negotiations to execute a co-relator agreement. On

March 9, 2006, two years after Dr. LaCorte and Ms. Kieff learned

of each other’s qui tam lawsuits against Wyeth, the two relators

entered into a co-relator agreement. B&S, in particular Mr.

Boone, was principally responsible for leading the negotiations

on behalf of Dr. LaCorte’s team to reach a co-relator agreement

with Ms. Kieff. The relator shares were split between Dr.

LaCorte and Ms. Kieff 60/40 on the federal claims and 40/60 on

the state claims respectively.

Reaching the co-relator agreement was a signal milestone in

progress to the governments’ subsequent intervention. As a

result of the co-relator agreement, the activities of the co-

relators were transmuted from matters of potential conflict and

diversion for the federal and state governments into an

arrangement which could provide support for government

intervention. Within months of the execution of the co-relator

agreement, Andy Mao from the DOJ informed the two relators that

the federal government was preparing its intervention authority

memorandum regarding Wyeth, although it did not actually

undertake to intervene for another several years.

On September 18, 2006, in the wake of the co-relator

agreement, Dr. LaCorte’s case against Wyeth was transferred to

the United States District Court for the District of

Massachusetts and consolidated with Ms. Kieff’s case. Between

the original filing of Dr. LaCorte’s case on March 21, 2002, and

its transfer to the United States District Court for the

District of Massachusetts, only eighteen documents had been

filed in Dr. LaCorte’s case on the docket in the Eastern

District of Louisiana. No filings, apart from sealed filings

concerning extensions of time to consider intervention, were

made with this court in Dr. LaCorte’s case against Wyeth between

September 2006 and August 2008. In August 2008, Dr. LaCorte

filed his first supplemental and amended consolidated complaint.

The Wyeth qui tam began to be litigated actively in April

2009, when the federal government finally intervened formally.

The United States filed its notice of intervention on April 23,

2009. On May 18, 2009, the United States filed its complaint

against Wyeth.

Wyeth made its first offer to settle in March 2011, after

extensive discovery, but the qui tam did not settle until April

27, 2016. Wyeth agreed to pay the United States $413,248,820.00

and the participating States $371,351,180.00. The federal

government and the states offered a relator’s share totaling

$98,367,074.19.

The United States paid its relator’s share totaling

$64,000,000.00 to Dr. LaCorte and the participating States paid

their relator’s share totaling $34,367,074.19 to Dr. LaCorte.

The relator’s share for Ms. Kieff and her relator’s counsel

has been fully paid pursuant to the co-relator agreement between

her and Dr. LaCorte. Ms. Kieff’s relator share is not at issue

in the matter now pending before me.

Dr. LaCorte’s relator’s share, plus accrued interest, was

paid to him from the funds in the registry of this court in

accordance with a January 30, 2017 order. The settlement

agreement provided that 38% of Dr. LaCorte’s relator share, plus

accrued interest, constituted contingency attorneys’ fees

potentially to be distributed among the three intervening law

firms. The allocation of this remaining 38% of Dr. LaCorte’s

relator share is the only issue left to be decided in the Wyeth

matter.

On December 5, 2016, the Sakla Parties filed a complaint in

intervention in the consolidated Wyeth qui tam action to assert

a claim for attorneys’ fees as to Dr. LaCorte’s relator’s share

of the Wyeth recovery. On December 21, 2016, intervenors V&G

and B&S separately filed a complaint in intervention in the

consolidated Wyeth qui tam action to continue to assert their

liens and claims for attorneys’ fees as to Dr. LaCorte’s

relator’s share of the recovery.

C. Representation Contracts

Near the outset of this litigation, Dr. LaCorte and the law

firms he engaged set out to memorialize an agreement pertaining

to a fee arrangement. On April 24, 2004, Dr. LaCorte executed a

representation contract with Dr. Sakla and Mr. Vezina. That

contract, however, did not include B&S. Two months later, on

June 24, 2004, Dr. LaCorte executed another representation

contract with the Sakla Parties, V&G, and B&S (collectively the

“Trial Lawyers”).

Dr. LaCorte had independent counsel in negotiating the June

2004 representation contract with the Trial Lawyers. The June

2004 representation contract was intended to govern the Trial

Lawyers’ representation of Dr. LaCorte as Client in the Wyeth

and other False Claims Act Litigation and it expressly

superseded all prior agreements between Dr. LaCorte and the

Trial Lawyers.

The June 2004 representation contract provides that as

compensation for their legal services

[C]lient agrees to pay and hereby irrevocably assigns

unto Trial Lawyers 33-1/3% of all money and things of

any value recovered by Client on the Claims by

compromise, settlement, suit, arbitration, mediation or

otherwise (the “Recovery”) if the United States of

America intervenes as plaintiff and 40% of the Recovery

if the United States of America does not intervene as

plaintiff.

The June 2004 representation contract further states, “This

agreement constitutes the entire agreement between Trial Lawyers

and Client and the terms hereof shall not be modified except in

writing, signed by both Trial Lawyers and Client.” The June

2004 representation contract has never, after its execution,

been modified by a written agreement signed by the parties.

The June 2004 representation contract does not contain any

provision specifying the division of legal fees among the firms.

It also does not contain any provision governing the

apportionment of fees in the event that one or more of the three

firms was terminated prior to the conclusion of the Wyeth

matter. The June 2004 representation contract does not contain

any language by which the termination of one or more firms would

result in the termination of any other firm that represented Dr.

LaCorte pursuant to the June 2004 representation contract.

Section 6 of the June 2004 representation contract concerns

the “Discharge of Trial Lawyers.” It provides that “Client

shall retain the right to discharge Trial Lawyers, with or

without cause. . . .”

Specifically, section 6(a) states:

If, prior to Recovery on the Claims, (1) Client

discharges Trial Lawyers for any reason except Trial

Lawyers’ misconduct or neglect in investigating and

prosecuting the Claims, or (2) Client employs additional

counsel to represent Client in prosecuting the Claims,

Client shall nevertheless remain obligated to Trial

Lawyers for the full Attorney’s Fee provided herein as

damages. . . .

Section 6(b) further specifies:

If, prior to Recovery on the Claims, Trial Lawyers are

discharged for misconduct or neglect in investigating

and prosecuting the Claims, Trial Lawyers shall be

entitled to receive reasonable compensation based upon

the reasonable value of services rendered to Client,

which must be established as provided by law.

D. Terminations of the Trial Attorneys

At times, Dr. LaCorte’s relationship with his attorneys was

acrimonious and heated. For example, on January 19, 2007, a

year before his actual and enduring termination of V&G and B&S,

Dr. LaCorte sent all his counsel a letter stating that all three

firms would be terminated effective January 22, 2007, at 5:00

p.m., if certain issues related to Dr. LaCorte’s qui tam cases

could not be resolved.

In response, Dr. Sakla, in an email, wrote, “I will, as I

have always done, . . . as your attorney since 2000, endeavor to

protect you from your demons.” Dr. Sakla continued, “I have and

I must take the position that this [termination] letter does not

truly represent the spirit of good faith, and it merely

represents a heavy-handed negotiating tactic that you have been

known to utilize in the past.” He added, “Ultimately, you

expressed your all around satisfaction with the current legal

team.”

Dr. LaCorte, through separate counsel, emailed Dr. Sakla on

January 22, 2007, stating that “[t]he letter from [Dr. LaCorte]

dated January 19th [wa]s hereby withdrawn.”

Similarly, nearly a year later on December 12, 2007, Dr.

LaCorte purportedly terminated B&S. Dr. LaCorte rescinded that

inchoate termination of B&S shortly thereafter on December 17,

2007.

Mr. Vezina acknowledged that there were many times where

there was friction between Dr. LaCorte and his lawyers and that

Dr. Sakla used his personal relationship with Dr. LaCorte to

“smooth the waters.” I find he did so as lead attorney among

the Trial Lawyers.

1. Document Sharing Dispute

Just before Dr. LaCorte’s ultimate termination of V&G and

B&S in 2008 as legal counsel, a dispute arose over documents Mr.

Vezina obtained that were related to the lawsuit. This document

disclosure was accompanied by circumstances evidencing the

preference of both state and federal government attorneys to

work with Mr. Vezina rather than Dr. Sakla.

On December 26, 2007, Mr. Vezina executed a document-

sharing agreement with Dan Miller, counsel for the State of

Delaware, which allowed Mr. Vezina and V&G to review Wyeth

documents produced to Delaware pursuant to a Civil Investigation

Demand. However, Mr. Vezina did not allow Dr. LaCorte’s other

attorneys access to the documents, nor did Mr. Vezina obtain

consent from Dr. LaCorte before executing the Delaware document-

sharing agreement. On January 9, 2008, Dr. Sakla sought to gain

access to the Delaware documents from Mr. Vezina. Mr. Vezina

refused, telling Dr. Sakla that “I do not have an agreement for

your firm, nor for Boone and Stone.” Mr. Vezina then provided

Dr. Sakla with Mr. Miller’s telephone number. Mr. Miller

informed Dr. Sakla that Mr. Vezina was granted access to the

Delaware documents because he knew and trusted Mr. Vezina and

that, as a result, Dr. LaCorte was “gaining a huge benefit from

this arrangement.”

Dr. Sakla responded to Mr. Miller’s email on January 17,

2008, stating, in pertinent part:

For your information, the Wyeth case, in its entirety,

was developed by Dr. LaCorte, with assistance from my

office. Every single document and analysis of this case

was done first by Dr. LaCorte and me, and was then sent

to Mr. Vezina to disseminate it to the Department of

Justice and the office of the U.S. Attorneys, since he

had better e-mail skills than I.

He further wrote, “Please be advised that you may no longer

unilaterally work with Mr. Vezina, as Dr. LaCorte instructed him

to cease and desist from any further participation in the Wyeth

case, as of now, without my full participation as originating

and lead counsel.”

That same day, Sanjay Bhambhani from the DOJ emailed Dr.

Sakla, stating, “I don’t think you or your client can dictate

who the government can and cannot work with as part of its

investigation.” Dr. LaCorte then responded to Mr. Bhambhani and

indicated that he had concerns about Mr. Vezina representing his

interests and told Mr. Bhambhani that Mr. Vezina “is therefore

not representing me at this time on Merck or on Wyeth.”

2. Merck Fee Dispute

When Dr. LaCorte’s separate Merck qui tam litigation

settled, his legal team found themselves at odds over the

percentage of Dr. LaCorte’s relator share they were to receive

for their work. A settlement agreement between the United

States, Dr. LaCorte, and Merck was executed on February 6, 2008.

Following the termination of V&G and B&S and settlement of the

Merck matter, there was litigation in the United States District

Court for the Eastern District of Louisiana concerning the

attorneys’ fees in that matter.

At the time of the Merck settlement there was an open

dispute between Dr. LaCorte and his attorneys over whether they

should get 40% or a third of Dr. LaCorte’s relator portion of

the settlement.

In early 2007, Dr. LaCorte demanded each lawyer’s file that

was relevant to the issue of attorneys’ fees. Mr. Vezina gave

Dr. LaCorte his legal files, including court pleadings and

things of that nature, but did not provide him with

documentation of the time he had put into the case.

On January 18, 2008, Mr. Stone threatened to sue Dr.

LaCorte, writing in an email to the other lawyers:

Unfortunately, it is beginning to appear that there will

be an unavoidable fight with Dr. LaCorte over attorney’s

fees due in the Merck case per our contract with him.

His position is forcing us [to] prepare to take the

necessary actions to protect our interests, and that may

include filing liens, moving for deposit if the entire

relator’s share into court for resolution, and

potentially a civil action for damages.

In the same email, B&S demanded that Dr. Sakla communicate his

position so that

we will know which side of this dispute you are on and

where you fit into any proceedings that may be necessary.

You are either in agreement with me, David [Boone], and

Marc [Vezina] that the attorneys are due a 40% fee on

all amounts recovered, or against us on that issue.

Which is it? We need to know, since we can only presume

from recent events that you are against us unless you

confirm in writing that you are in agreement with us.

3. Timekeeping

Dr. LaCorte’s requests to review his attorneys’ billing

records reflected a more general point of contention and

dissatisfaction between Dr. LaCorte and his attorneys.

Dr. LaCorte more than once had requested Mr. Vezina keep

billing and expense records, and in December 2008, when Dr.

LaCorte came to Mr. Vezina’s office and asked for such records,

Mr. Vezina refused to provide them, contending that the records

were proprietary to his firm. Dr. LaCorte frequently sent B&S

letters requesting attorney timekeeping or attorney billing

records.

Despite these numerous requests, V&G never produced any

billing or timekeeping records. Mr. Vezina acknowledged that he

considers it best practice for attorneys who handle FCA cases to

maintain contemporaneous time records but did not do so for

substantial portions of the time he was engaged by Dr. LaCorte.

In his termination letter to Mr. Vezina, Dr. LaCorte identified

as one of his reasons a “failure to render timely and/or

complete accounting for costs, expenses, and fees.”

B&S did not keep any time records for the relevant time

period.

Dr. Sakla himself also did not keep contemporaneous time

records from 2002 until 2009, even after V&G and B&S were

terminated on that basis in early 2008.

4. The Ultimate Terminations of V&G and B&S

On January 23, 2008, Dr. LaCorte faxed a termination letter

to V&G. In the termination for cause letter to V&G, Dr. LaCorte

stated:

I must inform you that the causes underlying this

termination for cause include, but are not limited to,

failure to follow instructions, failure to provide

accurate and timely advice, disclosure of confidential

information without authority, repeated communications

designed or calculated to pressure me into courses of

action I considered to be against my interest, refusal

to let me review my own file materials, failure to plead

matters as directed to assert all claims available to

me, failure to render timely and/or complete accounting

for costs, expenses, and fees, and a general breakdown

of communications between us in our respective roles as

client and counsel.

On February 7, 2008, Dr. LaCorte terminated B&S through an

email. The termination email to B&S alleged that Mr. Stone was

“represented in a conflict against [Dr. LaCorte] by the lead

attorney in the Vioxx cases” as “[i]t appear[ed] that

information concerning federal false claims suit ha[d] been

provided to attorneys who [are] actively litigating multiple

active civil suits against Merck.” Dr. LaCorte stated that Mr.

Stone had “given [him] no choice but to terminate [B&S] for

cause.”

After February 7, 2008, Dr. LaCorte did not enter into a

new representation contract with the Sakla Parties. Rather, the

Sakla Parties continued to provide legal services to Dr. LaCorte

pursuant to the June 2004 representation contract. Dr. LaCorte

did not rehire V&G and B&S after their terminations on January

23, 2008 and February 7, 2008, respectively.

E. Post Termination

As of February 2008, no substantive rulings had been made

in the Wyeth litigation, Wyeth had not filed any substantive

pleadings or motions, and Wyeth had not made any admission of

liability. Wyeth was still attempting to convince the federal

government that the case lacked merit and that the government

should not invest any resources in it. In fact, as noted, the

government did not actually intervene until April 2009.

As of February 2008, Wyeth had not yet offered any money in

settlement, Dr. LaCorte had not made any recovery in the matter,

and no discovery had been undertaken in the Wyeth litigation.

The Wyeth litigation did not settle until February 2016,

eight years after discharged counsel were terminated.

Nonetheless, following his 2008 termination, Mr. Vezina

continued to communicate with counsel for the DOJ and individual

states.

F. The Intervenors’ Involvement in the Wyeth Litigation

1. The Sakla Parties

The Sakla Parties remained as counsel for Dr. LaCorte

throughout the Wyeth case. They were the long-term durable work

horse for Dr. LaCorte in the litigation. The Sakla Parties

report having expended over 10,000 hours pursuing the case.2

In August 2008, the Sakla Parties drafted the first

supplemental and amended consolidated complaint (“operative

complaint”), which was 183 pages long and included 481 pages of

exhibits. Not all the claims the Sakla Parties asserted in the

operative complaint were part of covered conduct in the ultimate

Wyeth settlement agreement. In an email, the DOJ stated that

2 The parties have provided concededly rough estimates of the

number of hours they claim for their work on the Wyeth matter.

The estimates by the Sakla Parties appear to be the most

carefully detailed, but they remain estimates given the Sakla

Parties’ record keeping practices. See also infra notes 3 and

4.

the first amended complaint filed in October 2003 — in contrast

to the operative complaint — did not put the government on

notice as to a bundling claim.

After the governments intervened in April 2009 and

subsequently filed amended complaints in September 2009, Wyeth

filed a consolidated motion to dismiss the governments’

complaints. The Sakla Parties, on behalf of Dr. LaCorte, filed

a consolidated memorandum joining in the governments’

oppositions to Wyeth’s consolidated motion to dismiss. Wyeth

never challenged the sufficiency of the pleading in the

“operative complaint” prepared by the Sakla Parties.

Additionally, the Sakla Parties drafted and propounded

discovery requests to Wyeth and responded to discovery requests

on behalf of Dr. LaCorte. In 2008, the Sakla Parties had

obtained a copy of the white paper that Wyeth had submitted to

the government in an effort to avoid government intervention.

As part of the Sakla Parties’ discovery preparation they

analyzed the defenses asserted by Wyeth in the white paper.

From September 2010 to January 2011, the Sakla Parties tailored

discovery propounded to Wyeth specifically seeking information

to defeat those defenses.

The Sakla Parties also attended motion hearings and status

conferences and conferred with government counsel after meetings

for hearings and status conferences. Dr. Sakla attended 27

depositions but only asked questions at eight of those

depositions. There were over 40 depositions in the case.

Nearly half (87) of the deposition pages involving Dr. Sakla

came from the deposition of a single witness, an individual who

was not significant enough to warrant inclusion on either the

United States’s or Wyeth’s trial witness list.

The Sakla Parties reviewed millions of pages of documents

received in response to discovery requests and catalogued those

documents by topic. Those efforts led to the Sakla Parties’

identifying critical documents for use in the Wyeth case.

The Sakla Parties’ efforts also included putting in place

an extensive electronic document management system, which

allowed rapid and accurate access to the millions of documents

via a searchable database. Mr. Azorsky, counsel for the co-

relator, in testimony I find credible, testified that he “will

never understand how Dr. Sakla’s system was set up or how it

could do what it could do. But he was able to review and

retrieve documents . . . very quickly when we were all looking

for specific documents.”

Among the documents uncovered by the Sakla Parties in

discovery was a “smoking gun” internal Wyeth email draft. The

draft email was for transmission from Wyeth counsel Frank

Rapoport to Veterans’ Administration counsel Mel Noel. It

specifically referenced that “Wyeth’s plan was to use the launch

of the kit as a way to increase oral sales by establishing a

bundling arrangement with this kit.” This key document was

discovered and circulated by Dr. Sakla in January of 2011. The

government relied on the Rapoport email discovered by Dr. Sakla

to demonstrate that Wyeth was intentionally bundling to increase

oral Protonix sales. The Rapoport email was central evidence in

support of the government’s opposition to Wyeth’s motion for

summary judgment and statement on uncontested facts, and was

emphasized as evidence of Wyeth’s scienter.

The Sakla Parties also analyzed and prepared challenges to

Wyeth’s privilege log. This detailed and careful review of the

privilege log by the Sakla Parties revealed inconsistencies

which were used in the government’s motion practice and

pleadings.

The Sakla Parties similarly prepared a memorandum analyzing

Wyeth’s invocation of the “advice-of-counsel” privilege over

various documents in its production. Dr. Sakla provided the

United States an analysis, in spreadsheet format, breaking down

the 6,220 instances where Wyeth invoked the privilege in

documents containing the key terms: “PPA, Bundling, Best Price,

Medicaid Drug Rebate, and Nominal Price.” This analysis, which

was 472 pages in total, was utilized by the United States in

preparing the United States’ response concerning Wyeth’s

proposed waiver of attorney client privilege.

The Sakla Parties drafted substantive briefs filed on

behalf of Dr. LaCorte, including a 41-page opposition to Wyeth’s

motion for summary judgment regarding the relators’ claims that

was supported by 36 exhibits totaling 940 pages. On September

25, 2015, the Sakla Parties drafted and filed on Dr. LaCorte’s

behalf a 16-page supplemental memorandum in opposition to

Wyeth’s motion for summary judgment on relators’ claims.

Dr. Sakla also conducted medical research and consulted

with and obtained the affidavit of a gastro-intestinal expert

for use against Wyeth’s motion for summary judgment as to the

pharmaceutical compendia argument. Dr. Sakla argued the motion

for summary judgment on relators’ claims when it came before the

court for a hearing on October 21, 2015.

In preparation for trial on the merits, the Sakla Parties

had extensive discussions with the government concerning the

witnesses to be called at trial, the questioning of those

witnesses, and the necessary and optimal information to be

gained from both friendly and hostile witnesses. Dr. Sakla, for

example, was heavily involved in preparing arguments for a

nationwide subpoena. The Sakla Parties had discussions with the

government and counsel for the co-relator concerning the form

and content of the proposed jury interrogatories. The Sakla

Parties completed extensive preparation for trial in late 2015

and early 2016.

2. V&G

Before termination, V&G relied upon professional

relationships Mr. Vezina established with federal and state

government attorneys as counsel for Dr. LaCorte. V&G’s work on

behalf of Dr. LaCorte in the Wyeth matter totaled approximately

700-750 hours on the case.3

Mr. Vezina assisted and provided information to

representatives from the DOJ and conducted basic research on

National Drug Code numbers for the various formulations and

iterations of Protonix and gathered basic utilization data from

the Medicaid program. Mr. Vezina reached out to representatives

from the U.S. Attorney’s Office in Boston and in the Eastern

District of Pennsylvania regarding possible interest in Merck or

Wyeth litigation.

Mr. Vezina researched Protonix’s market share throughout

the country as well as marketing efforts by Wyeth to promote

Protonix. In doing so, he located the full Protonix Performance

Agreement (“PPA”). The PPA disclosed the contractual terms that

Wyeth was extracting from member hospitals that enrolled in the

program. The PPA included significant evidence regarding the

3 The V&G rough estimates are difficult to unbundle from their

reports of activity which do not break out the compensable Wyeth

matter work clearly from other non-compensable work. See also

supra note 2 and infra note 4.

ability of hospitals to exert influence over the prescribing

preferences of Protonix at the hospitals.

Mr. Vezina’s research had allowed him to formulate a theory

to use Wyeth’s bundling of Protonix Oral and IV formulations as

a pricing theory that could trigger a responsibility of the

manufacturer to “unbundle” the transactions and recompute rebate

obligations. As noted above, Dr. Sakla referred to this idea as

Mr. Vezina’s “eureka” moment and this theory was incorporated

into the first amended complaint.

After its termination, V&G continued to provide assistance

and support to state team members in the Wyeth matter by

assisting in modifying the template from the Merck complaint in

intervention. Mr. Vezina provided both written and verbal

support and assistance to the various team members who intended

to join the DOJ in its Wyeth complaint. Mr. Vezina also

provided assistance and support to DOJ attorneys, both verbally

and in writing, with documentation regarding the Wyeth case

prior to its transfer from New Orleans to Boston.

In November 2009, Mr. Vezina began preparing and forwarding

memos with pleadings from the Merck action and other matters to

assist the intervened states in preparing a response to Wyeth’s

motion to dismiss. During this time, Mr. Vezina also provided a

list of questions to the DOJ attorneys in an effort to assist

them in their preparation to oppose Wyeth’s motion to dismiss at

oral argument. His assistance consisted of regular conference

calls, emails to and from the state team as well as the DOJ, and

later question and answer sessions in a moot court fashion with

government attorneys.

Mr. Vezina also provided assistance to the state team in

drafting initial discovery requests to be sent to Wyeth. He

helped Mr. Bhambhani from the DOJ identify various expert

witnesses who were able to assist regarding antitrust

perspectives. Mr. Vezina also conducted legal research

regarding the possible assertion of attorney-client privilege by

Wyeth’s Chief Counsel, John Alivernini.

3. B&S

Engaging and working with B&S, given their extensive trial

experience in complex litigation matters — including False

Claims Act litigation — throughout the country in which multiple

firms were involved, was a major selling point for Dr. Sakla.

That experience would provide notice to others interested in the

Wyeth litigation that Dr. LaCorte’s legal team had demonstrated

ability to manage a large nationwide case and that they could

try such a case successfully if trial were to ensue. B&S put in

roughly 400-450 hours of work on the Wyeth litigation.4

4 The B&S rough estimate is least specific of all. It is

essentially conclusory without an effort to provide specific

support. See also supra notes 2 and 3.

There were various tasks that Dr. LaCorte assigned to B&S,

one of which was negotiation of the co-relator agreement with

Ms. Kieff. B&S also contributed to drafting and editing

pleadings filed in Dr. LaCorte’s qui tam cases, including the

Wyeth case.

Mr. Vezina caucused with and sought the insight of Mr.

Boone and Mr. Stone before making strategy decisions that

impacted any of Dr. LaCorte’s qui tam cases. Much of Mr.

Vezina’s reported work time came before and after meetings with

federal or state government attorneys or other parties concerned

with the Wyeth litigation and was spent consulting and updating

B&S as to his interactions with government attorneys.

On March 2, 2006, Mr. Boone wrote an email to Dr. LaCorte’s

team confirming that a co-relator agreement had been reached

with Ms. Kieff and congratulating Dr. LaCorte and the team. Dr.

Sakla sent an email congratulating Mr. Boone and Mr. Vezina on

their accomplishments in facilitating the agreement.

II. CONCLUSIONS OF LAW

Having previously determined that Louisiana law will apply

to the Sakla Parties and V&G and that Georgia law will apply to

B&S in this matter, I will call out in this section where the

law of the two states diverge. But in the absence of

established divergence, I will employ the law of any implicated

state which has developed guidance regarding an issue.

I now turn to the merits of the Wyeth matter. As a gateway

to my analysis, I begin discussion by providing a fuller

explanation regarding my summary disposition on September 28,

2018 of several motions impacting the record on which my

findings and conclusions are based. In doing so, I adhere to

the direction of the United States Supreme Court, that as a

general proposition in fees litigation, it is important to be

guided by the cautionary admonition that “the determination of

fees ‘should not result in a second major litigation.’” Fox v.

Vice, 563 U.S. 826, 838 (2011) (quoting Hensley v. Eckerhart,

461 U.S. 424, 437 (1983)). To that end,

[t]he fee applicant (whether a plaintiff or a defendant)

must of course, submit appropriate documentation to meet

‘the burden of establishing entitlement to an award.’

Ibid. But trial courts need not, and indeed should not,

become green-eyeshade accountants. The essential goal

in shifting fees (to either party) is to do rough

justice, not to achieve auditing perfection. So trial

courts may take into account their overall sense of a

suit, and may use estimates in calculating and

allocating an attorney’s time.

Id.

It bears emphasizing that the Wyeth attorneys’ fees

matter, as a non-jury proceeding, comes before me within a

separate justification for relying upon my general sense of

the Wyeth litigation and a record which, as a result of the

parties record keeping practices, necessarily requires

estimates.

In this regard, the intervening Trial Lawyers are

simultaneously the beneficiaries and victims of the

business plan pursued, which required reporting rough

estimates of their claimed hours with varying degrees of

specificity. See generally supra notes 2, 3 and 4. The

parties are able to make their claims without the prospect

of affording the court a meaningful basis for evaluation

while also subject to the need of the court to conduct its

evaluation by relying on rough justice based upon an

overall sense of the litigation.

The First Circuit gave fair warning 35 years ago of

the dangers for fee-seeking counsel using this approach:

“We now . . . serve notice that henceforth, in cases

involving fee applications for services rendered after the

date of this opinion, the absence of detailed

contemporaneous time records, except in extraordinary

circumstances, will call for a substantial reduction in any

award or, in egregious cases, disallowance.” Grendel’s

Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984). I

will apply such a reduction in this matter. See

Nkihtaqmikon v. Bureau of Indian Affairs, 723 F. Supp. 2d

272, 294 (D. Me. 2010).

In order to put my approach specifically to

evidentiary decision-making under these circumstances in

perspective, I offer some extended explanation to provide

assurance that in applying a practical approach to

contested evidentiary rulings, I have not, of course,

disregarded the principles which govern the balancing of

factors evidentiary rulings require. This is especially

true with respect to important and complex challenges to

expert testimony under FED. R. EVID. 702, which was the

subject of amendments that went into effect on the first

day of this month. I have briefly delayed finalizing these

Conclusions of Law pending full effectiveness of the

amendments. Those amendments are described in the Rules

Advisory Committee notes as provided clarification and

emphasis that the proponent of such testimony must

demonstrate that it is more likely than not the testimony

meets the requisite admissibility standard requiring that

“the expert’s opinion reflects a reliable application of

the principles and methods to the facts of the case.” FED.

R. EVID. 702(d) (as amended Dec. 1, 2023) (clarifying

language of amendment in italics) WESTLAW FEDERAL RULES OF

EVIDENCE RULE 702, U.S.C.A., at 1 (Rule as amended) and at 6

(Advisory Committee Notes to 2023 Amendments).5 This

5 Given the very recent adoption of the amendments to FED. R.

EVID. 702 and the somewhat confusing cross references to drafting

history necessary to provide context, I cite to the

amendment is designed generally to emphasize that judicial

gatekeeping is essential because jurors may not be able to

evaluate the threshold necessary to support reliably the

expert’s basis and methodology. Id. at 7. Although this

is not a jury proceeding, I have applied this approach to

assure that my own consideration has begun with an effort

to ensure that any expert opinion has “stay[ed] within the

bounds of what can be concluded from a reliable application

of the expert’s basis and methodology.” Id. I have

followed this approach with the same care in evaluating

under settled principles of FED. R. EVID. 1006 the receipt of

summaries as chalks or demonstrative aids placed in dispute

by the Sakla Parties’ motions in limine.

A. Motions in Limine

The Sakla Parties filed two motions in limine before trial.

In the first, they asked me to exclude from trial Exhibits A and

B attached to Mr. Vezina’s declaration, which are “summaries of

activities” of V&G and, as related to V&G, by B&S in the

investigation, filing, and prosecution of the Wyeth case. In

the second motion, they asked me to exclude “all references to

post-termination work and/or work in the Merck matter by [V&G

“currentness” report in Westlaw which presents the relevant

material in a single sequentially paginated form.

and B&S] because such references are irrelevant to the claims

brought” by the two firms in the Wyeth matter before me.

1. Motion in Limine to Exclude Summaries of Activities

The Sakla Parties argue that the summaries should be

excluded because (1) V&G “never produced the summaries of

activities in response to discovery specifically directed at

this type of document”; (2) V&G “refused to respond to questions

about the summaries of activities, and claimed that the

summaries were privileged because they were generated under the

guidance and direction of counsel”; (3) the summaries of

activities are inadmissible hearsay; and (4) they are

“unreliable and confusing, because they are not based on

available contemporaneous records, do not list the time spent,

and incorporate work on other matters, especially Merck, for

which [V&G and B&S] have been fully compensated.”

a. Timeliness of Production

In response to the Sakla Parties’ discovery request to

“produce any and all exhibits that you intend to offer in

evidence at any hearing or trial on the payment of, entitlement

to, or division or attorney’s fees,” V&G asserted that they

would “not disclose work product protected information.” When

requested to “produce copies of all timesheets, billing records

or logs, or any other document concerning the time you spent

performing work in this Matter,” V&G responded, “[V&G] has no

documents responsive to this request not already produced in

repeated file productions. . . .” The response further stated

that V&G “did not keep contemporaneous time and billing

records.” Nonetheless, V&G stated that “[a] summary of

activities performed pursuant to the local rules regarding

statutory [sic] can be produced by [V&G] if ordered to do so by

the Court, and will be supplemented at a later date if

necessary.”

In Graves v. Babin, 147 So.3d 197, 201 n.4 (La. Ct. App.

2014), the appellate court noted that the attorney attempted “to

introduce documentation reflecting work performed in this

matter. However, the trial court did not allow the introduction

of the time management log because it was not produced in

discovery, and, at a hearing on a motion to compel discovery,

the court was told that no such documentation existed.” The

appellate court found no abuse of the trial court’s discretion

in refusing to allow the introduction of the documentation into

evidence.

Here, in contrast to Graves, Mr. Vezina indicated that a

summary of activities could be produced if necessary.

Furthermore, Federal Rule of Evidence “1006 provides that only

the underlying documents, not the summaries themselves, must be

produced to the opposing party.” Colón–Fontánez v. Mun. of San

Juan, 660 F.3d 17, 30 (1st Cir. 2011); see also Mitchell v.

Univ. of La. Sys., 154 F. Supp. 3d 364, 380 n.8 (M.D. La. 2015)

(quoting Mack v. Benjamin, No. 13-552, 2015 WL 7313869, at *2

(M.D. La. Nov. 20, 2015). A Rule 1006 summary need not have

been produced during discovery. V&G and B&S produced over

20,000 pages of discovery related to their contributions on the

Wyeth matter. Therefore, V&G and B&S had no obligation to

provide the summaries to the Sakla Law Firm and consequently the

objection as to timeliness of production was effectively

overruled.

b. The Assertion of Privilege

During Mr. Vezina’s deposition on November 15, 2016, he was

asked questions concerning the anticipated summary of

activities. Mr. Vezina confirmed that a summary of his

activities and time spent on the Wyeth matter was “underway.”

He indicated that the process included “a review of the file, a

review of the email logs, a review of the pleadings[,] . . . a

review of the documented history of this case, and from that,

the characterizations of the activities that were performed

since the beginning of this case back in 2002 until the day of

our termination . . . .”

When the Sakla Parties’ counsel asked Mr. Vezina, “Are you

aware that there are currently outstanding discovery requests

asking for specifically this exact type of information?”, Mr.

Vezina responded, “I don’t know that I would use the term

exactly, but I do know that . . . a discovery request was made,

and an appropriate objection was entered, and I do believe in

that response I did say that to the extent it was reasonable to

do, if it would be done, and the discovery responses would be

seasonably supplemented.” The Sakla Parties argued that the

summaries of activities prepared were never produced prior to

being filed on December 6, 2017 as attachments to Mr. Vezina’s

declaration, nor were they listed as a potential exhibit during

the parties’ exhibit exchange on November 28, 2017.

V&G and B&S, however, assert that the summaries were not

being offered into evidence as an exhibit. V&G and B&S claim

that the summaries “are offered to aid the court in assessing

the offered evidence in the same manner that Dr. Sakla has

attempted to summarize his activities.”

The nub of the Sakla Parties’ contention here, however, is

that Mr. Vezina unfairly asserted his attorney-client privilege.

In answering certain questions, Mr. Vezina’s attorney cautioned

that his response was limited due to the attorney-client

privilege. The Sakla Parties complain that Mr. Vezina used the

attorney-client privilege as a shield to avoid producing the

document pre-trial, but that he then sought to waive that

privilege and “use his ‘summary of activities’ as a sword” for

trial purposes. Although at first glance such a tactic may seem

unfair, that is not so here. The Sakla Parties were permitted

to submit billing summaries that had not been contemporaneously

kept until 2008. I can discern no prejudice in allowing Mr.

Vezina to do the same, so I have permitted V&G and B&S to submit

their recreated summaries and have considered these summaries in

my determination of the appropriate division of fees.

c. Hearsay

The Sakla Parties further argue that “[t]he summaries

prepared by Mr. Vezina are an attempt to submit an additional

100 pages of unsworn hearsay in lieu of a sworn declaration.”

They maintain that “writing something down and attaching it to a

declaration does not make a document admissible evidence.” As

for any business records exception to hearsay, the Sakla Parties

claim that “Mr. Vezina’s declaration is devoid of any

authentication statements whereby his summaries could be

considered business records of [V&G].”

Rule 1006, in relevant part, provides: “The proponent may

use a summary . . . to prove the content of voluminous writings

. . . that cannot be conveniently examined in court. The

proponent must make the originals or duplicates available for

examination or copying, or both, by other parties at a

reasonable time and place . . . .” Those are the conditions the

Federal Rules of Evidence establish for the admissibility of

such a summary. V&G and B&S assert that the summaries are not

being offered into evidence as a substantive exhibit. I have

treated the summaries as “chalks” and accordingly, I find the

Sakla Parties’ hearsay argument to be without merit.

d. Reliability and Confusion

Lastly, the Sakla Parties argue that the summaries of

activities are unreliable and confusing because “they are not

based on contemporaneous records, [they] do not list the actual

hours spent, and they incorporate time spent on other matters,

especially Merck, for which [V&G] and [B&S] were fully

compensated.”

In his deposition, Mr. Vezina was asked, “Do you feel that

referring to the timekeeping records which were taken

contemporaneously from 2002 to 2008, would assist you in

recreating your summary of activities of the things that you did

in the case?” He responded, “No.”

I will reserve addressing the issue that the summaries

incorporated time spent on other matters, especially Merck, for

section II.A.2 below. The summaries, specifically Exhibit A,

are intended to aid the court with a review of the voluminous

documents produced to the Sakla Law Firm in this litigation.

Although the question is not without difficulties, I discern no

actionable unfair prejudice — especially in a non-jury matter —

to proceeding by using such a routine process.

Accordingly, I denied the Sakla Parties’ motion in limine

with respect to Exhibit A. As for Exhibit B, I reserve my

discussion regarding treatment of the Sakla Parties’ second

motion in limine to be addressed in section II.A.2. below.

2. Motion in Limine to Exclude Evidence of Post-

Termination Activities

The Sakla Parties argue that evidence of work performed

after termination, for parties other than Dr. LaCorte or on

other cases, is immaterial to the instant fee dispute and should

be excluded from evidence.

a. Post-Termination Work

The Sakla Parties contend that the work allegedly done

after termination should be excluded from this matter because it

is irrelevant to the determination of what quantum meruit fee,

if any, is due to V&G and B&S in the Wyeth matter.

“[A]n attorney’s representation must ‘advance [the]

client’s case’ and have some ‘productive value to [the] client’

in order for the attorney to recover any part of the applicable

contingency fee.” Luther v. John W. Stone Oil Distrib., L.L.C.,

607 F. App’x 367, 371 (5th Cir. 2015) (per curiam) (citing City

of Alexandria v. Brown, 740 F.3d 339, 351-52 (5th Cir. 2014)).

“This is a ‘threshold issue.’” Id. (quoting City of Alexandria,

740 F.3d at 352). In Luther, the intervening party who provided

legal services to its client was unable to overcome the

threshold issue because he “present[ed] no evidence that his

pre-discharge work actually contributed to the outcome of [his

client’s] suit.” Id. at 372 (emphasis in original). “[E]ven

where . . . the discharged attorney is entitled to seek recovery

of his fees from former co-counsel under a theory of quantum

meruit, the measurement of fees still must be tied to the

services that were rendered by the discharged attorney to and

for the benefit of the client.” Tolson v. Sistrunk, 772 S.E.2d

416, 423-24 (Ga. Ct. App. 2015).

V&G and B&S have admitted that Dr. LaCorte terminated them

and that after their termination they were no longer authorized

to represent him. Although it is true that they cannot now seek

to be paid for work after their termination as such when they

clearly knew that they no longer had the authority to represent

Dr. LaCorte, I find merit to their argument that they had a

statutory right to intervene in the case and protect not only

their attorneys’ lien, but also their interest in the successful

outcome in the matter. To the degree the evidence presented

indicates that post-discharge work actually contributed to the

outcome of his client’s suit, I find these summaries to be

instructive. Accordingly, I denied the Sakla Parties’ motion in

limine to exclude evidence of V&G’s post-termination work in

particular, to facilitate careful consideration of what

percentage of the contingency fee is appropriate to assign under

a quantum meruit theory.

b. Work Performed in the Merck Case

The Sakla Parties further maintain that Mr. Vezina’s

declaration, as well as Exhibit A to his declaration, are

“peppered with references to work performed in the Merck

matter.” It is undisputed that V&G and B&S were fully

compensated at the end of the Merck matter, where they received

their contingency fee from Dr. LaCorte. The Sakla Parties argue

the work performed in the Merck matter by V&G and B&S is

irrelevant to the resolution of what they are presently owed in

the Wyeth matter. However, any statements made about the

representation contract in the Merck action may remain relevant

insofar as they relate to the June 2004 representation contract

because the 2004 representation contract addressed a number of

Dr. LaCorte’s qui tam actions in addition to the Wyeth matter

now before me. Accordingly, I treated as admissible statements

regarding the Merck matter, to the extent that those statements

bear on construction of the June 2004 representation contract;

otherwise, the work performed in the Merck matter is irrelevant

to the resolution of the dispute at bar and I have treated such

irrelevant statements as inadmissible.

c. Debarment of All Fees

The Sakla Parties make their broadest objection by arguing

that any post-termination support and professional services

rendered by V&G and B&S created a real and ongoing conflict of

interest with their prior client, Dr. LaCorte, in the very same

litigation in which they had previously represented him.

Under Rule 1.7 of the Louisiana Rules of Professional

Conduct, loyalty is recognized as an essential element of the

lawyer’s relationship to a client. Scheffler v. Adams & Reese,

LLP, 950 So.2d 641, 651-52 (La. 2007); see also Zloop, Inc. v.

Phelps Dunbar LLP, No. 6:18-cv-00031, 2019 WL 1978357 at *8

(W.D. La. Mar. 27, 2019) (Hanna, M.J.), report & recommendation

adopted by 2019 WL 1941058 (W.D. La. Apr. 19, 2019) (Juneau,

J.). The rule “generally prohibits a lawyer from representing a

client if the representation of that client may be materially

limited by the lawyer’s responsibilities to another client or to

a third person, or by the lawyer’s own interests.” Scheffler,

950 So.2d at 651-52. The “duty of loyalty continues even after

the termination of the attorney-client relationship.” Id. at

652.

That said, the Sakla Parties’ ongoing conflict of interest

argument is ultimately unpersuasive. Although arguably not

identical, the interests of the United States, the various

States, and Dr. LaCorte, were at least very similar in that they

were all striving for a positive outcome in their favor in the

Wyeth qui tam action. Consequently, I find V&G and B&S did not

breach their duty to their client. Accordingly, I have denied

this portion of the Sakla Parties’ motion in limine.

B. Motion to Strike

Intervenors V&G and B&S filed a motion to strike evidence

offered by the Sakla Parties in the form of affidavits and

deposition designations. They specifically asked this court to

strike the portions of the paragraphs within the affidavits of

Douglas Chandler and Basile J. Uddo and the Sakla Parties’

designated pages from the deposition of Dan Ciolino, and all

designations within pages 68-69 of Mr. Ciolino’s deposition.

V&G and B&S argue that the Sakla Parties lack standing to

challenge the terms of the June 2004 representation contract and

that the expert witness affidavits contain inadmissible expert

opinions on the law of Louisiana and of Georgia and present

unreliable factual determinations.

1. Standing to Challenge the Enforceability of the

June 2004 representation contract

It is undisputed that the June 2004 representation contract

remains the operative contingency fee agreement relevant to Dr.

LaCorte’s representation in the Wyeth matter. It has never been

modified by a written agreement signed by the parties after its

execution. Both Mr. Chandler and Mr. Uddo opine that terms in

the June 2004 representation contract are unenforceable or void

against public policy. The crux of V&G and B&S’s contention is

that the Sakla Parties lack standing to address the

enforceability of the June 2004 representation contract.

Moreover, they argue that “it is inappropriate for the Sakla

Parties to attempt to invalidate the terms of the June 2004

representation contract, especially the conditions for payment

of attorneys’ fees, after they, along with V&G and B&S, drafted

and negotiated those very agreement terms with Dr. LaCorte.”

Standing requires three elements to be met. See Lujan v.

Def. of Wildlife, 504 U.S. 555, 560 (1992). “First, the

plaintiff must have suffered an ‘injury in fact’—an invasion of

a legally protected interest which is (a) concrete and

particularized, . . . and (b) ‘actual or imminent, not

“conjectural” or “hypothetical[.]’” Id. (internal citation and

additional quotation marks omitted). “Second, there must be a

causal connection between the injury and the conduct complained

of—the injury has to be ‘fairly . . . trace[able] to the

challenged action of the defendant, and not . . . th[e] result

[of] the independent action of some third party not before the

court.” Id. (alterations in original) (internal citation

omitted). “Third, it must be ‘likely,’ as opposed to merely

‘speculative,’ that the injury will be ‘redressed by a favorable

decision.’” Id. at 561 (internal citation omitted).

The argument that the Sakla Parties were a party to the

June 2004 representation contract and, therefore, do not have

standing to challenge its enforceability is counterintuitive.

Rather, as a party to the June 2004 representation contract, the

Sakla Parties are in the best position to have standing.

Depending on how much of the attorneys’ fees are owed to V&G and

B&S in this potentially zero-sum dispute, the Sakla Parties are

bound to suffer an injury in fact. Any money awarded to V&G and

B&S is money that is not awarded to the Sakla Parties.

Additionally, there is a causal connection between the injury

and the determination of the June 2004 representation contract’s

enforceability. Finally, the Sakla Parties’ injury could be

redressed by a favorable decision deeming the relevant terms

unenforceable. Accordingly, the Sakla Parties have standing to

address the enforceability of the June 2004 representation

contract.

V&G and B&S not only contend that the Sakla Parties do not

have standing to challenge the June 2004 representation

contract, but also contend that it is inappropriate for the

Sakla Parties to do so. In support of their argument, they cite

to case law from several states, at least one of which appears

no longer to be good law in a case like this one. See [Dkt. No.

696 at 4-5] (citing, inter alia, Thomas v. B.J. Titan Servs.

Co., 675 So.2d 747 (La. Ct. App. 1996), distinguished by Adams

v. Med-Force, 682 So.2d 323 (La. Ct. App.1996). In particular,

V&G and B&S cite to Foley & Lardner, L.L.P. v. Adlar Invs.,

Inc., 491 F. Supp. 2d 595, 606 (M.D. La. 2007), for the

proposition that “[n]ullifying the . . . agreement would reward

the very party who made multiple misrepresentations and

overreached.” That is not what is at issue here. V&G and B&S

are not contending that the Sakla Parties made

misrepresentations or overreached, rather, they are arguing that

the Sakla Parties should be barred from introducing evidence on

the ground that it would be “inappropriate” to challenge the

provisions of the June 2004 representation contract.

V&G and B&S’s arguments based on “standing” and

“inappropriateness” provide no grounds to exclude the relevant

portions of Mr. Uddo and Mr. Chandler’s affidavits. Their

arguments have nothing to do with the admissibility of evidence.

Consequently, their motion to strike these particular portions

of the affidavits is denied.

2. Admissibility of Expert Opinion

V&G and B&S further argue that the affidavits submitted by

the Sakla Parties’ expert witnesses contain inadmissible expert

opinion testimony under Rule 702 of the Federal Rules of

Evidence. They claim that the experts are “attempting to

instruct the court on the law of Louisiana and/or Georgia” and

are “includ[ing] inadmissible factual determinations which are

intended for the trier of fact.”

a. Opinions on Georgia and Louisiana Law

V&G and B&S maintain that Mr. Chandler opines on the laws

of Georgia and Mr. Uddo offers opinions on the laws of

Louisiana. In addition, V&G and B&S assert that designated

pages of Mr. Ciolino’s deposition also contain testimony

regarding his opinions on case law in Louisiana. They contest

the contents of these paragraphs as statements of “fact,” and

argue that the contents of the paragraphs are “ill-disguised

attempts to assert legal opinions which are inadmissible under

Fed. R. Evid. 702.”

Rule 702 provides that a witness may be qualified as an

expert if his or her “scientific, technical, or other

specialized knowledge will help the trier of fact to understand

the evidence or to determine a fact in issue.” “Expert

testimony that consists of legal conclusions cannot properly

assist the trier of fact in either respect . . . .” Burkhart v.

Washington Metro. Area Transit Auth., 112 F.3d 1207, 1212

(D.D.C. 1997); see also Fireman’s Fund Ins. Co. v. Holder Const.

Grp., LLC, 868 S.E.2d 485, 491 (Ga. Ct. App. 2022) (An “expert

witness may not testify as to his opinion regarding ultimate

legal conclusions, but may testify to an ultimate issue of

fact.” (internal citation and punctuation omitted)).

Nonetheless, “the line between an inadmissible legal

conclusion and admissible assistance to the trier of fact in

understanding the evidence or in determining a fact in issue is

not always bright.” Burkhart, 112 F.3d at 1212. “[A]n expert

may offer his opinion as to facts that, if found, would support

a conclusion that the legal standard at issue was satisfied, but

he may not testify as to whether the legal standard has been

satisfied.” Id. at 1212-13. Accordingly, “[o]pinions regarding

the state of the law, interpretation of statutes or regulations,

or the ultimate application of the facts to the law fall far

outside the purview of expert testimony.” U.S. ex rel. Dyer v.

Raytheon Co., No. 08-cv-10341-DPW, 2013 WL 5348571, at *13 (D.

Mass. Sept. 23, 2013). “It is well established that the law is

the exclusive domain of the judge and is not a proper subject

for expert testimony.” Id. (citing Nieves-Villanueva v. Soto-

Rivera, 133 F.3d 92, 99-100 (1st Cir. 1997)); see also Marx &

Co., Inc. v. Diners’ Club Inc., 550 F.2d 505, 509-10 (2d Cir.

1977) (“It is not for witnesses to instruct the jury as to

applicable principles of law, but for the judge.”). For that

reason, expert testimony cannot “usurp the role of [the] judge.”

U.S. ex rel. Dyer, 2013 WL 5348571, at *13.

I have been careful to use the challenged legal expert

opinions consistently with the clarification reinforced by the

December 1, 2023 amendments to FED. R. EVID. 702 that were

intended to assist me as “the trier of fact to understand the

evidence” and there “determine a fact in issue.” WESTLAW RULE 402

at 7. Perhaps it is needless to say, except by way of emphasis,

that I have jealously guarded the role of the judge in sifting

admissible evidence from usurpation by wider ranging expert

opinions proffered by the parties.

Here, it is clear that all three experts discuss the laws

of Georgia and Louisiana in respective affidavits and

depositions. Mr. Chandler is an attorney in Georgia retained by

the Sakla Parties

to express opinions, based on [his] law practice

experience, education, training, and Georgia law, about

whether the Georgia law firm [B&S] and the Louisiana law

firm [V&G] are entitled to any type of fee under the

contingency fee contract between relator, [Dr. LaCorte],

B&S, and V&G for the representation B&S and V&G allegedly

provided to [Dr.] LaCorte, when the representation of

both B&S and V&G was terminated by [Dr.] LaCorte

approximately 8 years before the occurrence of any

contingency triggering a contingency fee, and the only

work performed by B&S and V&G on behalf of [Dr.] LaCorte

occurred prior to [Dr.] LaCorte terminating B&S and V&G

approximately 8 years before the occurrence of any

contingency triggering a contingency fee.

Mr. Uddo was retained by the Sakla Parties “to provide

expert opinions and consultation with respect to matters

related to the Louisiana Rules of Professional Conduct, the

standard of care for Louisiana attorneys, and other ethics-

related matters regarding fee disputes among attorneys

generally and in this matter specifically.” Mr. Ciolino

was retained by V&G and B&S as an expert regarding legal

ethics.

I find that, to the extent that the witnesses are

opining on the state of the law, those specific portions of

their affidavits and depositions should be disregarded. I

decline to facilitate what is in essence extended backdoor

briefing. The witnesses go beyond their scope as experts

when they testify about the satisfaction of the legal

standards they set out. For example, the enforceability of

the representation contract on public policy grounds is a

question of law for the court, not one concerning which the

experts should be opining directly. See Inst. Labor

Advisors, LLC v. Allied Res., Inc., No. 4:12-cv-00044-JHM,

2014 WL 4211196, at *17 (W.D. Ky. Aug. 25, 2014).

Furthermore, I found the Sakla Parties’ arguments

about counsel’s objections being premature and

inappropriate under the court’s “Order Regulating Non-Jury

Civil Trial” unconvincing. V&G and B&S’s objections

concern the potential admissibility of the affidavits and

depositions. The court’s order clearly indicates that

“[s]tatements that would be objectionable as conclusions,

or objectionable because of lack of essential foundation

evidence, should be avoided.” I do, however, discern a

need for parity in addressing the Sakla Parties’ arguments

that V&G and B&S have also submitted their own expert

testimony purporting to establish the state of the law.

Those pertinent portions should also be disregarded.

b. Reliability of Factual Determinations

V&G and B&S also argue that the Sakla Parties’ experts’

testimony contains factual determinations that “lack

credibility.” In particular, they take issue with Mr. Uddo’s

statements that Dr. LaCorte’s termination of V&G and B&S was for

cause and with Mr. Chandler’s statements that V&G and B&S do not

have any claim for a contingency fee against Dr. LaCorte. The

gravamen of V&G and B&S’s argument is that “Mr. Chandler and Mr.

Uddo both have recognized that this case involves facts that

require the court’s determinations.”

Although it is true that the court is the ultimate

factfinder during a bench trial, this does not mean that expert

witnesses are prohibited from offering opinions, which can be

understood as an implicit reference to hypotheticals, that bear

on factual determinations. Rather, that is a proper use of

expert witness testimony. See FED. R. EVID. 702 (“the expert’s

scientific, technical, or other specialized knowledge will help

the trier of fact . . . to determine a fact in issue”); see also

Fireman’s Fund Ins. Co., 868 S.E.2d at 490 (citing OCGA § 24-7-

704(a)). Just as V&G and B&S’s experts can claim that they were

not discharged for cause, the Sakla Parties’ experts can claim

that V&G and B&S were. It is up to me as the trier of fact to

make credibility determinations and weigh the battling experts’

testimony. Accordingly, V&G and B&S’s motion to strike these

particular portions of the affidavits was effectively denied.

Having provided further explanation for my threshold

“pretrial” approach to consideration of contested evidence, I

now address threshold legal arguments made at trial.

C. Conclusions Regarding Merits Raised at Threshold

1. Timeliness of Claims

The Sakla Parties assert the evidence establishes that both

V&G and B&S are time-barred from seeking attorney’s fees under

Louisiana and Georgia law. Under Louisiana law, the statute of

limitations is known as a “liberative prescription,” and an

“action for the recovery of compensation for services rendered”

is subject to a liberative prescription of three years. La.

Civ. Code Ann. art. 3494. The liberative prescription period

begins to “run from the day payment is exigible.” La. Civ. Code

Ann. art. 3495. “Exigible” is defined as a liquidated and

demandable debt or a mature claim. See Doan v. Tech. Eng’g

Consultants, Inc., 942 So.2d 1145,

1146 (La. Ct. App. 2006)

(citing Black’s Law Dictionary).

The issue before the court in Gamm, Greenberg & Kaplan v.

Butts, 508 So.2d 633, 635 (La. Ct. App. 1987), was the date upon

which the three-year period of liberative prescription began to

run on a suit to collect compensation for legal services. The

court held “that prescription on the plaintiff’s claim to

collect compensation for legal services began to run, at the

latest, on the date that the plaintiff relinquished the

[client’s] file to their new counsel.” Id. at 636. The court

noted that when a contingency fee agreement is in play between

an attorney and a client, “depending on the terms of that

agreement, prescription for recovery of compensation for

services rendered usually begins to run on the date that the

judgment or settlement is reached and at that point the attorney

is entitled to recover the percentage specified in the contract

as his fee.” Id. Notwithstanding such a fee structure, “a

client may discharge his attorney at any time as a matter of

right.” Id. When such a discharge occurs, “the attorney is

entitled to recover only for services actually rendered to the

client.” Id. Furthermore, “[e]ven if the terms of the

contingency fee contract did not provide a determinative date

for the running of prescription, the jurisprudence indicates

that prescription began to run on the date the [attorney]

forwarded the [client’s] file to new counsel.” Id.

That said, the following year, in a certified question from

the United States Court of Appeals for the Fifth Circuit, the

Louisiana Supreme Court held that in “a suit by an attorney

against another attorney to recover, pursuant to such an

agreement, a portion of the fee collected by the latter party

from the client is not one for the recovery of attorney’s fees,

but rather is one for breach of the agreement to share in the

fund resulting from the payment of the fee.” Duer & Taylor v.

Blanchard, Walker, O’Quin & Roberts, 354 So.2d 192, 195 (La.

1978). As a result, “[t]he applicable prescription is not three

years . . . but that of ten years as provided by La. Civ. Code

art. 3544.” Id.

I find and conclude that payment was not due to V&G until

the time of settlement in February 2016 because that was when

payment was “exigible,” i.e., when it became a liquidated and

demandable debt or a mature claim. I have found and concluded

as explained in Duer & Taylor, a case such as this one that

presents a breach of contract claim which has a prescriptive

period of ten years, that the prescriptive period would not run

until well after V&G presented its claim for fees.

Consequently, I find and conclude V&G’s claims were timely under

Louisiana law.

Under Georgia law, there is a four-year statute of

limitations period for “[a]ll actions upon open account, or for

the breach of any contract not under the hand of the party

sought to be charged, or upon any implied promise or undertaking

shall be brought within four years after the right of action

accrues.” Ga. Code Ann. § 9-3-25 (West). However, when “the

facts show that the parties intended, either expressly or

impliedly, that demand for repayment would not be made until

some future time, then the statute of limitation does not

commence to run until the date of demand for repayment.” Woods

v. Jones, 699 S.E.2d 567, 570 (Ga. Ct. App. 2010),

reconsideration denied (Ga. Ct. App. Jul. 26, 2010), cert.

denied (Ga. Jan. 24, 2011) (internal punctuation and citations

omitted).

Although there is no express agreement here, B&S, like V&G,

did not have a claim to assert until the settlement was reached.

And because the June 2004 representation contract was still in

effect at the time of settlement due to the Sakla Parties’

continued representation of Dr. LaCorte, I find that the B&S

claims are timely as well because instinct in the June 2004

representation contract was the understanding that demand would

not be made until the Wyeth settlement had ripened.

2. Enforceability of Contingency Fee Agreement

Under the Louisiana Rules of Professional Conduct an

attorney cannot “make an agreement for, charge, or collect an

unreasonable fee or an unreasonable amount of expenses.” La. R.

of Prof’l Conduct 1.5(a). As a result, “under Louisiana law, a

lawyer cannot use contractual liability to circumvent the

requirement that a lawyer can only charge a reasonable fee for

services rendered.” City of Alexandria, 740 F.3d at 351.

Moreover, “the client’s absolute right to discharge his

attorney is stripped of effect if the client’s exercise of that

right is conditioned upon his payment of the full amount

specified in the contract.” Saucier v. Hayes Dairy Prod., Inc.,

373 So.2d 102, 116 (La. 1978), on reh'g (June 25, 1979).

“[A]n attorney clearly may contract with a client to

provide legal services for a fee contingent and

calculated upon the amount recovered or preserved, so

long as the contract does not restrict the client’s right

with or without cause to discharge the attorney, or grant

as a fee to the attorney without requirement of

commensurate services an immutable proprietary

percentage of the client’s claim, or result in an

attorney collecting a ‘clearly excessive’ fee which has

not been ‘earned’ as defined by the rules.” Id. at 117

(quoting dissent on original hearing).

The court in Saucier concluded “that only one contingency fee

should be paid by the client, the amount of the fee to be

determined according to the highest ethical contingency

percentage to which the client contractually agreed in any of

the contingency fee contracts which he executed.” Id. at 118;

see also Luther, 607 F. App’x at 370 (“Under Louisiana law, when

two attorneys provide legal services to the same client on a

contingency-fee basis and one attorney is discharged before the

case is resolved, the client is obligated to pay only one

contingency fee that the court allocates between the

attorneys.”). The court further noted that “that fee should in

turn be allocated between or among the various attorneys

involved in handling the claim in question, such fee

apportionment to be on the basis of factors which are set forth

in the Code of Professional Responsibility.” Saucier, 373 So.2d

at 118; see also Luther, 607 F. App’x at 370 (“[T]he

apportionment of the fee between the attorneys is based on the

factors listed in Rule 1.5 of the Louisiana Rules of

Professional Conduct, which together are directed at assessing

the reasonableness of a fee.”). The Saucier factors include,

among other things, “‘the time and labor required, the novelty

and difficulty of the questions involved, and the skill

requisite to perform the legal service properly’; ‘the amount

involved and the results obtained’; and ‘the nature and length

of the professional relationship with the client.’” Luther, 607

F. App’x at 370 (quoting La. R. Prof’l Conduct 1.5); accord

Saucier, 373 So.2d at 116.

If an “attorney was discharged without cause, then the

application of the Saucier factors marks the end of the

analysis.” Luther, 607 F. App’x at 370. However, if the

“attorney was discharged for cause, then the court must next

‘consider the nature and gravity of the cause which contributed

to the dismissal and reduce by a percentage amount the portion

discharged counsel would receive after the Saucier allocation.’”

Id. at 370-71 (quoting O'Rourke v. Cairns, 683 So.2d 697, 704

(La. 1996).

Under Georgia law, if a party is terminated before the

contingency occurs, the discharged attorney is only entitled a

quantum meruit fee. Eichholz Law Firm, P.C. v. Tate Law Grp.,

LLC, 714 S.E.2d 413, 415-17 (Ga. Ct. App. 2011) (Phipps, J.).

Specifically, the court stated that “allow[ing] a discharged

attorney to collect an equal share of a contingent fee as if the

attorney were still involved in the case would render the

discharge meaningless.” Id. at 415 (punctuation and citation

omitted). The court emphasized that “[t]he existence of [an

express fee-splitting] agreement between the lawyers does not

affect the underlying policy against allowing a discharged

lawyer to collect contingent attorney fees.” Id. at 416.

Significantly, “the Saucier framework and quantum meruit

analysis apply essentially the same factors to determine the

contributions a lawyer made to a particular case.” City of

Alexandria, 740 F.3d at 352; see also O'Rourke, 683 So.2d at 702

(“[T]he Saucier factors are, to a degree, the same factors used

in making a quantum meruit award . . . .”). “Under both Saucier

analysis and quantum meruit analysis, a court [applying

Louisiana law] is supposed to use the factors articulated by

Louisiana Rule of Professional Conduct 1.5(a) to determine the

contribution that a lawyer made to his client’s case.” City of

Alexandria, 740 F.3d at 352. Similarly, an attorney seeking to

collect quantum meruit damages under Georgia law “must show the

reasonable number of hours the attorney worked on the matter,

his hourly rate, or any other evidence sufficient to prove the

‘reasonable value of the attorney’s services’”—i.e., factors

like those laid out in Rule 1.5(a) of Louisiana’s Rules of

Professional Conduct. Eichholz Law Firm, P.C. v. Tate Law Grp.,

LLC, 783 S.E.2d 466, 468 (Ga. Ct. App. 2016) (quoting Overman v.

All Cities Transfer Co., 336 S.E. 2d 341, 343 (Ga. Ct. App.

1985)).

I credit that the June 2004 representation contract was the

result of negotiations between sophisticated parties — including

Dr. LaCorte who was represented by his personal attorney —

agreeing to a contract that was the product of arms-length

negotiations. Of course, enforcing the June 2004 representation

contract at issue here would as a practical matter amount to an

immaterial discharge of V&G and B&S by Dr. LaCorte. Under both

Louisiana and Georgia law, V&G and B&S are entitled to payment

in quantum meruit, and this must be determined by using the

factors in Rule 1.5 of the Louisiana Rules of Professional

Conduct. I will provide application of those factors in this

case later in my analysis.

3. Joint Venture

Under Louisiana law, “[w]here an attorney retained in a

case employs or procures the employment of another attorney to

assist him, as regards the division of the fee, the agreement

constitutes a joint adventure or special partnership.” Duer &

Taylor, 354 So.2d at 194-95; see also Scurto v. Siegrist, 598

So.2d 507, 509 (La. Ct. App. 1992) (“In the situation where a

retained attorney associates, employs or procures the employment

of another attorney to assist him in handling a case involving a

contingency fee, the agreement regarding division of the fee is

a joint venture which gives the parties to the contract the

right to participate in the fund resulting from the payment of

the fee by the client.”). This is exactly what happened in the

case before the court — the Sakla Parties retained the

assistance of V&G and then B&S in Dr. LaCorte’s qui tam actions.

The joint venture theory is generally used to apportion an

attorney fee equally between the attorneys when the attorneys

fail to contract between themselves how the fee should be

divided. See McCann v. Todd, 14 So.2d 469, 471 (La. 1943).

Notwithstanding such authority, “courts have declined to apply

the joint venture theory to support an equal division of the fee

when the attorneys have not been jointly involved in the

representation of the client.” Dukes v. Matheny, 878 So.2d 517,

520 (La. Ct. App. 2004). “Rather, the apportionment of the fee

in those types of cases has been based on quantum meruit.” Id.

Moreover, to allow such a joint venture claim to go forward

would be in effect, to disregard the requirement that attorneys’

fees be reasonable. It would also deem Dr. LaCorte’s

discriminating discharge determination pointless. In Matter of

P & E Boat Rentals, Inc., 928 F.2d 662, 665 (5th Cir. 1991), the

court noted that “[n]o contract between counsel which is in

conflict with controlling ethical standards should be recognized

and enforced by the court.” Accordingly, I find that the

presence of a joint venture cannot defeat the public policy

concerns that attorneys’ fees be reasonable. Thus, I do not

accept V&G and B&S’s argument that the three law firms’ work in

the Wyeth qui tam litigation was a joint venture that requires

the equal split of the attorney contingency fee.

4. Breach of Fiduciary Duty

The Sakla Parties assert that there cannot be any claim of

fiduciary duty among co-counsel, because “[i]t is fundamental to

the attorney-client relationship that an attorney have an

undivided loyalty to his or her client,” and thus no cause of

action will exist between co-counsel based on the theory that

co-counsel have a fiduciary duty to one another to protect each

other’s interest in a fee. In Scheffler, the court noted that

an attorney’s duty of loyalty to his or her client “should not

be diluted by a fiduciary duty owed to some other person, such

as co-counsel, to protect that person’s interest in a

prospective fee.” 950 So.2d at 652. V&G and B&S did not

contest this argument and I accept the Sakla Parties’ position.

5. Judicial Estoppel

V&G and B&S argue that the Sakla Parties are “estopped as a

matter of law from taking the opposite position in this [Wyeth]

litigation” from their position in the Merck case.

Specifically, V&G and B&S maintain that the Sakla Parties, in

their statement of uncontested material fact in the Merck

matter, admitted that

In said June 2004 Representation Contract, Dr. LaCorte

specified that all prior fee agreements were superseded,

and Dr. LaCorte made an irrevocable assignment to the

three law firms for each of them to divide the total

attorney’s contingency fee as follows: 1/3 to The Sakla

Law Firm APLC, 1/3 to Boone & Stone and 1/3 to Vezina &

Gattuso.

V&G and B&S assert that these affirmative representations

concerning the June 2004 representation contract are

binding upon the Sakla Parties in this action.

Judicial estoppel is an equitable doctrine. Perry v. Blum,

629 F.3d 1, 8 (1st Cir. 2010). “It operates to prevent a

litigant from taking a litigation position that is inconsistent

with a litigation position successfully asserted by him in an

earlier phase of the same case or in an earlier court

proceeding.” Id. Generally, the presence of three things is

required before the doctrine can be brought into play — (1) “a

party’s earlier and later positions must be clearly

inconsistent”; (2) “the party must have succeeded in persuading

a court to accept the earlier position”; and (3) “the party

seeking to assert the inconsistent position must stand to derive

an unfair advantage if the new position is accepted by the

court.” Id. at 8-9; (citing New Hampshire v. State of Maine,

532 U.S. 742, 750-51 (2001) and Alt. Sys. Concepts, Inc. v.

Synopsys, Inc., 374 F.3d 23, 33 (1st Cir. 2004)).

Unlike the Wyeth matter, the Merck case was settled before

Dr. LaCorte’s termination of V&G and B&S, and each of the three

law firms had rendered all the legal services necessary to reach

a settlement award. The Sakla Parties are not contesting what

was written in the June 2004 representation contract. There is

nothing inconsistent about their interpretation of the

agreement. Rather, the different posture of the Merck case from

this case fully justifies a different interpretive approach.

6. Termination of V&G and B&S – Cause

Having concluded that the three law firms are entitled to

payment in quantum meruit, I apply Rule 1.5 of the Louisiana

Rules of Professional Conduct for such a determination.

However, before doing so, I offer a determination whether V&G

and B&S’s termination was with or without cause.

A client has the absolute right to discharge his attorney.

The distinctions between a “for cause” and a “without cause”

termination only become meaningful to consider when determining

the amount of fees owed. If an attorney’s termination was

without cause, then the court may end its analysis with the

Saucier factors. Luther, 607 F. App’x at 370. Only if the

attorney was terminated for cause does the court then go on to

analyze the “nature and gravity of the cause which contributed

to the dismissal” and reduce the Saucier allocation accordingly.

Id. at 370-71 (quoting O'Rourke, 683 So.2d at 704).

There have been some sharp practices disclosed in the

evidence, engaged in by all parties concerned in this matter,

including Dr. LaCorte with his capricious termination practices.

Despite some self-serving dimensions to conduct by the Trial

Lawyers, such as those disclosed in the Delaware document

exchange disagreement and the fee dispute in Merck, I cannot

find that the circumstances here descended to the level of for

cause termination as to V&G and B&S.

Contemporaneous timekeeping was an issue throughout the

trial. Surprisingly, all parties failed to keep such records.

In any event, Dr. LaCorte was able to recover statutory

attorneys’ fees from Wyeth based on records produced later.

Although it is the better practice to keep time records, I do

not find that the lack of such records categorically justifies

for cause termination of the discharged parties, especially

considering that the Sakla Parties also failed to maintain time

records.

It is true that Dr. LaCorte’s termination letter for V&G

included a non-exhaustive list of the reasons for V&G’s for-

cause termination. The record, however, does not establish that

what Dr. LaCorte wrote about actually happened. For example,

his termination email to B&S raised the issue of a conflict of

interest as a reason to support a for-cause termination. I

note, however, that the Vioxx cases that Dr. LaCorte mentions

are personal injury cases and the attorney handling them was

also on the plaintiff’s side. Accordingly, I find Dr. LaCorte’s

attempt to discharge V&G and B&S for cause in this regard pre-

textual and that the discharge was without cause.

My analysis now turns to the application of the Saucier

factors. Luther, 607 F. App’x. at 370.

D. Division of Attorneys’ Fees According to Rule 1.5

Factors

Under Rule 1.5(a) of the Louisiana Rules of Professional

Conduct, the factors to be considered in determining the

reasonableness of a fee include the following:

(1) the time and labor required, the novelty and

difficulty of the questions involved, and the skill

requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that

the acceptance of the particular employment will

preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for

similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by

the circumstances;

(6) the nature and length of the professional

relationship with the client;

(7) the experience, reputation, and ability of the

lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

“The phrase, quantum meruit, means as much as he deserved.”

Smith v. Westside Transit Lines, Inc., 313 So.2d 371, 378 (La.

Ct. App. 1975), rev. denied 318 So.2d 43 (1975) (mem.). “This

in turn encompasses far more than simply the hours spent by the

attorney on his client’s case.” Id. “It involves the ultimate

results obtained as well as the particular benefit to the case

derived for each unit of time devoted to the case.” Id.; see

also Eichholz, 783 S.E.2d at 468 (“[A] plaintiff asserting a

claim for quantum meruit must provide evidence of (1) his

performance as agent of services valuable to the defendants; (2)

either at the request of the defendants or knowingly accepted by

the defendants; (3) the defendants’ receipt of which without

compensating claimant would be unjust; and (4) claimant’s

expectation of compensation at the time of the rendition of the

services.” (punctuation and internal citation omitted)).

As detailed extensively in the findings of fact section

above, all three firms contributed to success for Dr. LaCorte in

the Wyeth matter, a matter concerning some specialized and novel

issues of law. To locate the contributions of the respective

firms in this context, it will be useful for purposes of

allocation to the several Trial Lawyers inter se to restore the

significant milestones in the travel of a qui tam action.

V&G and B&S were terminated eight years before the

settlement of the Wyeth matter and at the time they were

terminated, the United States had not yet formally intervened in

the matter. Nevertheless, I find that by 2006 the federal

government was prepared to intervene. Mr. Mao from the DOJ had

by then informed both relators’ counsel that he was working on

an intervention memo.

Qui tam cases typically are complex and difficult, and

often require extensive resources that a single law firm is

unable to devote to one case. Expenses of litigating a qui tam

case can also be extremely high. For those reasons, a “teaming”

approach is often essential in bringing a qui tam case, in which

more than one law firm represents the relator. The presence of

multiple law firms on the relator’s “team” of attorneys not only

makes it possible to present the case most effectively, but also

helps convince the DOJ that the case is meritorious enough that

the DOJ should devote its own resources to the case. This

follows from the likely DOJ conclusion that a number of law

firms would not have taken on the investment of time and expense

evidenced by the Trial Lawyers here to bring the case to the

DOJ, unless they had independently concluded the case was worth

pursuing.

One of the most important goals in representing a relator

in a qui tam case is to get the government to intervene in the

case. In this respect, the work performed here to get the

government to intervene, particularly after an initial

declination when the original complaint was filed, was a

significant and important development to the overall success of

the case.

Once the United States has intervened in a qui tam case,

the statute provides that it assumes primary responsibility for

litigation and resolution. The relator remains a party, also by

operation of statute, but as a collaborator with and supplier of

resources and assistance to the United States, which controls

the course of litigation.

Significantly, statistics made available through the DOJ

confirm the importance of government intervention into the

success of qui tam cases. When the federal government

intervenes in a qui tam action, the case is successful 90% of

the time, as opposed to a success rate of 25-30% without

government intervention.

More specifically, there is generally a conventional set of

steps involved in a successful qui tam action. The first

milestone is filing the complaint. After filing the complaint,

the next milestone in a case with co-relators is working out a

co-relator arrangement. Once a co-relator arrangement is

finalized, the subsequent milestone is to persuade the

government to intervene. Here, within a month of the

announcement of the co-relator arrangement between Dr. LaCorte

and Ms. Kieff, the government informed the parties that it was

preparing a memorandum for intervention. Thus, the co-relator

arrangement provided the foundation for the next stage of the

litigation.

After intervention, the DOJ takes the lead. The DOJ tells

relators’ counsel what they want by way of support. Additional

milestones include motion to dismiss practice, discovery, motion

for summary judgment practice, and trial preparation.

Thus, as a general proposition, a successful qui tam case

can be bifurcated in two parts: pre-government intervention and

post-government intervention. Before government intervention,

the relators have things to do in order to sell their case.

After government intervention, the relators are taking orders,

more or less, from the government. Accordingly, quantum meruit

compensation should be allocated with these two basic phases to

a successful False Claims Act case in which the government has

effectively intervened in mind.

Ms. Kieff’s case was never declined. Dr. LaCorte’s case

initially was declined by the government. I also observe that

when Dr. LaCorte’s complaint is measured next to Ms. Kieff’s

complaint, they are not fighting in the same weight class.

Nevertheless, I find Dr. LaCorte’s team, including V&G and B&S,

was eventually able to capture the government’s attention and

sufficiently present the merits of the case so that the

government intervened largely because of their efforts.

In sum, I find that V&G and B&S rendered meaningful legal

services to Dr. LaCorte in the Wyeth matter that turned a case

in which the government had declined intervention into one that

culminated in the government intervening and then succeeding in

settling with Wyeth. I turn now to a more granular evaluation

of the Rule 1.5(a) factors.

1. The time and labor required, the novelty and

difficulty of the questions involved, and the skill

requisite to perform the legal service properly

At the outset, Dr. Sakla’s expertise was, generally

speaking, in the practical inner workings of hospitals and

pharmacies. Through the ensuing years, he doggedly developed

additional skills useful to the success of the Qui Tam. In the

discovery phase, Dr. Sakla electronically stored Wyeth’s six

million pages of documents in a searchable litigation database.

The Sakla Parties also spent several years working

collaboratively with counsel for Ms. Kieff, as evidenced in the

extensive meetings, telephone conferences and email exchanges

that occurred over the years between the two teams. Dr. Sakla

submitted billing summaries in which he claimed with

questionable precision that his firm spent some 7,876.9 attorney

hours (including 818.5 travel hours billed at 50% rate) and

3,085 paralegal hours on the case. A reasonable estimate is

more than 10,000 hours.

Mr. Vezina testified that he spent 700-750 hours in the

Wyeth case and offers a jumbled mass of restated daily

activities, to support that figure. V&G investigated claims,

drafted pleadings including the original complaint, the first

amended complaint, and the second amended complaint, developed

the key legal theory of bundling/best price that was the subject

of the government’s intervention and the subject of the covered

conduct under the Wyeth settlement agreement, served as the

point person for Dr. LaCorte in interactions with the federal

government lawyers and states’ attorneys, and participated in

the negotiations with Ms. Kieff.

Similarly, though less extensively, B&S provided input on

the complaints. Most importantly, B&S took the lead on the

negotiations of the co-relator agreement, and provided the

experienced perspective of trial counsel to the strategies,

theories of liability, and development of potential damages.

B&S provides the conclusory assertion that it put in between

400-450 hours on the case.

The assistance and support provided to the government by

V&G after its discharge by Dr. LaCorte is noteworthy. V&G

assisted and supported the government lawyers in preparing their

respective oppositions to Wyeth’s motions to dismiss and motions

for summary judgment, provided research and briefs on legal

issues, and provided assistance on potential damages theories

and models. I find that this assistance and support was of

significant value in the eventual outcome of the matter.

In conclusion, the record establishes that both V&G and B&S

were significantly involved in at least two of the pre-

government intervention milestones—negotiating the co-relator

agreement with Ms. Kieff’s counsel and the government’s ultimate

intervention. Specifically, V&G’s constant interactions with

the government attorneys and B&S’s lead role in negotiations

with Ms. Kieff’s counsel secured the success at these

milestones. I do not, however, diminish the Sakla Parties’

assistance post-government intervention, which included the

creation and maintenance of the electronic litigation database.

2. The likelihood, if apparent to the client, that the

acceptance of the particular employment will preclude

other employment by the lawyer

The majority of the Sakla parties’ resources were dedicated

to the prosecution of Dr. LaCorte’s claims. Dr. Sakla also,

however, continued working as an emergency room physician during

the period in which Dr. LaCorte’s legal team was drafting the

first complaint. Mr. Vezina was involved in the case for six

years, and B&S was involved for nearly five years before

termination. For V&G and B&S, I find the Wyeth litigation was

not all-consuming during these years, nor after the government

intervened.

3. The fee customarily charged in the locality for

similar legal services

Dr. Sakla’s billing summary claims a $850 per hour rate for

himself, $775 per hour for another Sakla firm attorney who

worked on the Wyeth matter, and $175 per hour for paralegal

work. Mr. Vezina claimed a billing rate from 2002 to 2008 of

$275 to $400 an hour. The rate at which B&S billed during this

time period cannot be drawn from the record but, as experienced

litigators, the B&S attorneys likely could have demanded a

higher hourly rate than the V&G and Sakla Party attorneys.

All three law firms, however, were working solely on a

contingency fee basis, so their hourly billing rate at the time

of the Wyeth litigation is relevant only to the extent it aids

in an understanding of what would be reasonable to receive in

fees, i.e. the value of their services to Dr. LaCorte.

Eichholz, 783 S.E.2d at 468.

4. The amount involved, and the results obtained

From initial complaint to final settlement, the Wyeth qui

tam litigation lasted fourteen years. Wyeth ultimately agreed

to pay a settlement to the federal government and intervening

states in the amount of $784,600,000, of which Dr. LaCorte

received $98,367,074.19 as his relator’s share.

5. The time limitations imposed by the client or by the

circumstances

From the testimony and submissions of all three law firms,

it is clear that Dr. LaCorte was a demanding client who required

close and constant collaboration with his counsel. Dr. LaCorte

expected his attorneys to be responsive at any time and often

sent emails and demanded phone calls at all hours of the day.

Dr. Sakla bore the greatest day to day burden of Dr. LaCorte’s

demands. But V&G and B&S also felt the lash of his demands.

6. The nature and length of the professional relationship

with the client

Since the late 1990s, Dr. Sakla had counseled Dr. LaCorte

with regard to a wide spectrum of legal issues, including

medical malpractice, physician’s employment agreements, hospital

staff issues, and medical business disputes. Dr. LaCorte

previously hired Dr. Sakla in 1999 after discovering a separate

unlawful bundling scheme perpetrated by Merck. Dr. Sakla was

not merely the originating attorney for the relator’s

litigation; he properly can be characterized as lead attorney

for the relator’s team.

V&G and B&S had a much shorter professional relationship

with Dr. LaCorte. Mr. Vezina began meeting with Mr. LaCorte in

late 2001 and worked for him as his attorney in several qui tam

cases until his termination in January 2008. B&S came onto the

Dr. LaCorte’s legal team in 2003 and worked for him until

February 2008.

7. The experience, reputation, and ability of the lawyer

or lawyers performing the services

Dr. Sakla has been a board-certified physician for over 30

years and has been a licensed attorney since 1997. He

represented Dr. LaCorte in the other qui tam actions in which

Dr. LaCorte was the relator. Dr. Sakla asserts that his

education and work as a physician and medical director in an

emergency room as well as his “expertise in the intricate inner

workings of hospitals and pharmacies. . . hospital billing;

[and] federal rules and regulations regarding inpatient and

outpatient billing” were significant factors that led Dr.

LaCorte to retain him. However, although Dr. Sakla at the

outset had an abundance of experience in the medical field, he

still was a relatively inexperienced lawyer when he began

working for Dr. LaCorte. He was representing Dr. LaCorte in the

other qui tam cases but his work with Dr. LaCorte was the first

qui tam litigation he had ever been part of and “didn’t even

know what the word qui tam meant” when he was approached by Dr.

LaCorte to work on the qui tam matters.

Mr. Vezina was three years out of law school at the time

Dr. Sakla asked him to get involved in Dr. LaCorte’s case. Both

Dr. Sakla and Mr. Vezina were relatively inexperienced FCA

lawyers. Neither of them had ever done a FCA case before.

The B&S attorneys, on the other hand, were brought on

because of their extensive trial experience and experience with

complex civil cases in federal court. By the time B&S began

working on the Wyeth matter, Mr. Boone and Mr. Stone had been

practicing law for decades and had received multi-million-dollar

verdicts and settlements.

8. Whether the fee was fixed or contingent

It is undisputed that the fee to be split among the three

law firms was contingent upon a successful verdict or settlement

in the Wyeth matter. The law firms were not representing Dr.

LaCorte for a fixed fee. The allocation at issue, however,

concerns a fixed amount of fee money available for

distributions.

E. Conclusion

Although V&S and B&G were terminated by Dr. LaCorte mid-way

though the litigation, the firms performed significant work on

behalf of Dr. LaCorte. Their contributions to the case should

be compensated. After considering the parties’ arguments

regarding how to apportion the attorneys’ fees for the legal

work the firms performed, I find and conclude that a reasonable

award is: 55% for the Sakla Parties, 30% for V&G, and 15% for

B&S. This division of the 38% contingency attorneys’ fees takes

into account the eight factors listed under Rule 1.5 and applies

the firms’ contributions to the case.

With respect to Dr. Sakla and the Sakla Parties, I find and

conclude their work for Dr. LaCorte in the Wyeth litigation from

start to finish was indispensable in the sense that without Dr.

Sakla’s involvement, Dr. LaCorte would not have been able to

mount a False Claims Action against Wyeth. This

indispensability requires calibration with the other Trial

Lawyers by recognition that Dr. Sakla was a relatively junior

attorney when he first began working on the case and, through

his work horse role, developed over the years increasingly

invaluable experience.

I allocate 55% of the funds remaining in the registry of

the court for distribution in the Wyeth matter to the Sakla

Parties.

V&G was not indispensable in the sense the Sakla Parties

were. Their relationship with Dr. LaCorte was through Dr.

Sakla, who could have substituted other attorneys with

government lobbying and interfacing practices. I find that in

several aspects their involvement in the litigation was

nevertheless singularly important. Mr. Vezina’s development of

the bundling theory that was eventually incorporated into the

complaint — what has been described as his “eureka moment” — was

an inflection point in the case that is deserving of recognition

through an enhanced distribution. I also find it appropriate to

recognize the diffused work reported by Mr. Vezina and his firm

performed in assisting the DOJ, after the government intervened

in the case, despite the fact that he was no longer formally

representing Dr. LaCorte.

I allocate 30% of the funds remaining in the registry of

the court for distribution in the Wyeth matter to V&G.

For the five years B&S was involved in this case, the firm

provided expertise and experience that the other firms,

comprised of relatively junior lawyers, needed in order to move

the case forward. While not indispensable because alternate

firms could be found to preform that function, B&S is credited,

by Dr. Sakla and others, with providing necessary work at

crucial points in the litigation, particularly in developing the

complaints and negotiating the co-relator agreement.

I allocate 15% of the funds remaining in the registry of

the court for distribution in the Wyeth matter to B&S.

/s/ Douglas P. Woodlock

DOUGLAS P. WOODLOCK

United States District Judge