AG Says Supreme Court Decision Creates Risk Of Malpractice For ‘Every Case In Arkansas’

The Arkansas Supreme Court’s denial of a petition for rehearing in a case brought by Attorney General Dustin McDaniel could threaten all pending and future litigation in the state, McDaniel said Thursday.

Earlier this month, the state’s high court tossed a $1.2 billion judgment against Johnson & Johnson in a Medicaid fraud case involving the drug Risperdal. The Supreme Court ruling overturned a lower court determination.

The 4-3 decision declared that the state misapplied a Medicaid fraud law because the Arkansas Code Revision Commission “substantively altered” changes to a law that was codified 21 years ago.

With the court’s ruling, McDaniel suggested that lawyers must now research original acts and legislative intent versus reading what is in the published legal code.

“The rationale used by the court was completely new and foreign to the case,” McDaniel said in a lengthier interview to air Sunday morning on KATV Channel 7′s Talk Business & Politics. “They now create in every case in Arkansas the potential risk of malpractice for lawyers because they say you can no longer trust what’s printed in the law books.”

McDaniel said the code revision system does not need to change.

“The system is perfectly formulated. The Code Revision Commission is authorized by law, they’re reviewed by the General Assembly. They have linguistics experts and a team of lawyers. Everything they did was perfectly appropriate,” he said.

With the petition for rehearing denied by the Arkansas Supreme Court – also by a 4-3 decision – McDaniel said there are no more legal avenues to pursue on a Medicaid fraud false claims charge. He said he does plan to pursue a new lawsuit regarding a deceptive trade practices claim tied to the Risperdal case.

But he warned that the high court’s interpretation undermines more than 170 years of legal precedent.

“The Arkansas Supreme Court has the reputation of being a results-oriented court. They get whatever result they want when they craft the law to match what they want done,” McDaniel said. “In this case, they came up with something that no one even argued. It undercuts the credibility of our court and it completely takes away from the Attorney General the ability to ever go after a drug manufacturer no matter what they did or how guilty they are. In this case, the drug manufacturer pleaded guilty to a federal felony and paid $2.2 billion in fines and I’m told we’re never allowed to prosecute them or anyone else.”

McDaniel will appear on this week’s Talk Business & Politics, which airs Sunday at 9am on KATV Ch. 7.