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

Filing 750

Judge Douglas P. Woodlock: FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING ALLOCATION OF EXPENSES, ATTORNEYS' FEES AND COSTS AMONG QUONDOM CO-COUNSEL...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. (Beatty, Barbara)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA et al.,
ex rel. WILLIAM LACORTE,
Plaintiffs,
v.
WYETH PHARMACEUTICALS, INC.,
Defendant.
-------------------------------VEZINA & GATTUSO, LLC,
BOONE & STONE,
SAKLA LAW FIRM, APLC,
SHERIF K. SAKLA, M.D.,
Intervenor Claimants/
Interested Parties.

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CIVIL ACTION NO.
06-11724-DPW

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

C.

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

B.

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

D.

1.

Terminations of the Trial Attorneys .................... 14
Document Sharing Dispute .............................. 15

2.

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

3.
4.

E.
F.

1.

Timekeeping ........................................... 18
The Ultimate Terminations of V&G and B&S .............. 19

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

The Intervenors’ Involvement in the Wyeth Litigation ... 21
The Sakla Parties ..................................... 21

2.

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

3.

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

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

1.

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

a.
b.
c.
d.

Motion in Limine to Exclude Summaries of Activities ... 34
Timeliness of Production ............................ 34
The Assertion of Privilege .......................... 36
Hearsay ............................................. 38
Reliability and Confusion ........................... 39

2.
Motion in Limine to Exclude Evidence of Post-Termination
Activities ................................................ 40
a.

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

c.

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

b.
B.

1.

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

Motion to Strike ....................................... 44
Standing to Challenge the Enforceability of the ....... 44

June 2004 representation contract ......................... 44
2.

a.

Admissibility of Expert Opinion ....................... 47
Opinions on Georgia and Louisiana Law ............... 47
2

C.

b.

1.

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

Conclusions Regarding Merits Raised at Threshold ....... 53
Timeliness of Claims .................................. 53

2.

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

4.

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

3.
5.
6.

D.

Joint Venture ......................................... 60
Judicial Estoppel ..................................... 62
Termination of V&G and B&S – Cause .................... 64

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.

E.

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

Conclusion ............................................. 77

3

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

4

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.

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.
1

5

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

Wyeth.

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
6

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.
Vezina.

It was drafted by Dr. Sakla and Mr.

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.
7

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).
8

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 corelators 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
9

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.
10

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
11

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.
contract, however, did not include B&S.

That

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
12

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
13

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.”
14

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 documentsharing 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
15

attorneys access to the documents, nor did Mr. Vezina obtain
consent from Dr. LaCorte before executing the Delaware documentsharing 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
16

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.
17

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.
18

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.
19

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.

20

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

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.
2

21

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.
22

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
23

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.
24

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.
25

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

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.
3

26

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
27

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

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.
4

28

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.
29

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.
30

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).
will apply such a reduction in this matter.

See

I

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
31

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

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
5

32

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.
33

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
34

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.
35

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
36

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
37

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.
38

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
39

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 PostTermination 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.’”
740 F.3d at 352).

Id. (quoting City of Alexandria,

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
40

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.

41

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
42

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.”
950 So.2d at 651-52.

Scheffler,

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.
43

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.
44

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

See Lujan v.

“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[.]’”
additional quotation marks omitted).

Id. (internal citation and
“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
45

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
46

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
47

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
48

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.”
at 7.

WESTLAW RULE 402

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

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

49

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 ethicsrelated 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
50

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.

51

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.
expert witness testimony.

Rather, that is a proper use of
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 § 24-7704(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’

52

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.
Civ. Code Ann. art. 3494.

The liberative prescription period

begins to “run from the day payment is exigible.”
Ann. art. 3495.

La.

La. Civ. Code

“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.
court held “that prescription on the plaintiff’s claim to
53

The

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,
54

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
55

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.”
of Prof’l Conduct 1.5(a).

La. R.

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
56

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.”
57

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.,
58

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.”
omitted).

Id. at 415 (punctuation and citation

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.”
Alexandria, 740 F.3d at 352.

City of

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
59

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
60

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.”
520 (La. Ct. App. 2004).

Dukes v. Matheny, 878 So.2d 517,

“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
61

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.
62

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.
629 F.3d 1, 8 (1st Cir. 2010).

Perry v. Blum,

“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,

63

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
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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 forcause 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
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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 pretextual and that the discharge was without cause.
My analysis now turns to the application of the Saucier
factors.
D.

Luther, 607 F. App’x. at 370.

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.).
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“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.
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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.
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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.
milestone is filing the complaint.

The first

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.
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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.
initially was declined by the government.

Dr. LaCorte’s case
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
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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
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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 pre72

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
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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.
74

Dr. Sakla bore the greatest day to day burden of Dr. LaCorte’s
demands.
6.

But V&G and B&S also felt the lash of his demands.
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
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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.

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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.
be compensated.

Their contributions to the case should

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
77

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.

78

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

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