Representing Purdue Pharma, MacDonald argued against extra staffing at AG’s office 

Monitor staff
Thursday, March 23, 2017

As 13 lawyers representing pharmaceutical companies walked into Concord Superior Court Judge Diane Nicolosi’s courtroom on Dec. 11, 2015, she noted how outnumbered the four-person team from the state attorney general’s office was.

“Oh, my. There are an awful lot of suits in this courtroom,” Nicolosi remarked. “Maybe I should take a picture.”

New Hampshire attorney Gordon MacDonald was the lead suit that day. Representing Purdue Pharma, the maker of the drug OxyContin, MacDonald argued that the state attorney general’s office should not be able to hire an outside law firm to help them sift through millions of drug company documents as part of an investigation into whether Purdue and other manufacturers deceived consumers about the addictiveness of their opioids.

An outside law firm assisting the state’s small team in their investigation would “taint” it, because the state would be paying them for services rendered, MacDonald argued. That financial reward could potentially corrupt the state’s findings against the drug companies, he said.

“These defendants have First Amendment rights that are potentially at issue,” MacDonald said. “Does it threaten ongoing business activity? Yes. And is there a possibility of criminal liability? Yes.”

Though Nicolosi dismissed MacDonald’s December argument, attorneys for the drug companies filed an appeal, and the same argument is currently being considered in New Hampshire Supreme Court. Meanwhile, Purdue and other multibillion-dollar drug companies have yet to turn over a single slip of paper to the attorney general’s four-person investigative team.

MacDonald is now in line to be the next attorney general. Formally nominated by Gov. Chris Sununu on Wednesday, he must be confirmed by the state’s Executive Council in the coming weeks.

Both Sununu and MacDonald have said if he is confirmed, he will recuse himself from the Purdue investigation or any other potential conflicts of interest.

But there is another potential issue; if the state Supreme Court agrees with MacDonald’s December argument and rules in favor of the drug companies, it could hamstring the very agency MacDonald is now set to lead.

“It could potentially prevent us from hiring outside counsel to assist with investigations,” Deputy Attorney General Ann Rice said.

MacDonald and other attorneys representing drug companies have argued there are ethical issues with the state attorney general’s office hiring outside legal counsel, which could potentially prevent the office from hiring outside counsel to assist with investigations, litigation, or specialty purposes including labor law.

Rice said the attorney general’s office rarely hires outside counsel to assist with cases and investigations. She estimated they have hired counsel on an hourly basis “maybe once or twice a year,” and hired counsel on a contingency basis three or four times within the last decade. Contingency means that outside law firms are only paid if they help the state win a case.

Throughout the process, the attorney general’s office has argued that hiring outside counsel for large cases and investigations is nothing new. They have done so during the state’s MTBE litigation that started in 2003, an oil fund payment case in 2012 and investigation and litigation related to online travel companies that started in 2013.

“Access to outside counsel is necessary to ensure the state can investigate and litigate against large corporate defendants, such as those represented by the 15 or so attorneys in the courtroom today,” Senior Assistant Attorney General Lisa English told Nicolosi in December 2015. “The state’s resources are in stark contrast to the resources available to these large pharmaceutical companies.”

The court case has dragged on for months – the attorney general’s office initially subpoenaed drug companies for documents detailing their marketing practices back in August 2015. Those documents have still have not been received.

The small team at the Attorney General’s Consumer Protection Bureau is working on this investigation in addition to others and continues to field thousands of other complaints and calls from across New Hampshire.

Investigators estimate there could end up being hundreds of millions of pages of drug company documents to sift through.

“The volume of stuff will be enormous,” Assistant Attorney General Jim Boffetti said in July.

MacDonald also is in the unique position of having reviewed the very documents that the pharmaceutical companies are trying to prevent the attorney general’s office from seeing.

“The New Hampshire Attorney General’s Office, in fact, is the only party in the courtroom today that hasn’t seen these documents, the subset of documents,” English said in December 2015. “Respondents’ refusal to provide these documents have prevented our office from interviewing witnesses, doctors, who are subject to or who participated in the companies’ marketing efforts and former employees, most importantly.”

English reminded Nicolosi that the investigation is closely related to New Hampshire’s opioid crisis.

“The office is attempting to conduct an investigation to the most pressing public health and safety challenges facing our state,” she said.

At a press conference on Wednesday, Gov. Sununu said he has no doubt MacDonald would recuse himself from the investigation due to the obvious conflict of interest.

“He’s been very clear and adamant that he’d disclose any potential conflicts with cases or clients as they come forward and he will recuse himself from those, one of which would be Purdue,” Sununu said. “I think Gordon MacDonald will be an exceptional attorney general.”

Attorney General Joseph Foster agreed, saying no new attorney general who is an experienced attorney is entirely conflict free. In situations where the attorney general must recuse himself or herself, the deputy attorney general would take over.

“As attorney general, I had my share of those,” Foster said. “I recused myself and the matter went forward in an effective manner. The office was designed to be able to handle that.”

(Ella Nilsen can be reached at 369-3322, enilsen@cmonitor.com or on Twitter