A lawyer in Mexico, who was representing Baxter International Inc., a leading U.S. drug manufacturer, offered to pay an opposing expert in a business lawsuit if the expert would leave the country on a key court date in an effort to undermine the opposition’s case. This bizarre story comes from the report of a recording of a conversation and sworn testimony provided to The Associated Press concerning the incident. The recording and its disclosure are shocking, but apparently this sort of thing is not too unusual in the global marketplace. It has been reported that the Justice Department and the Securities and Exchange Commission are having to crack down on overseas misconduct by U.S. companies. This is a part of a multinational effort to clean up international commerce. This sordid episode involving lawyer misconduct should spur them on.
Based near Chicago, Baxter is a major manufacturer of intravenous drugs and medical devices. Its medications are used to treat people with hemophilia, kidney disease, immune system problems, infectious diseases, serious burns and other conditions. The drugmaker claims the lawyer was not authorized to make any offers, and says it has severed all ties with him. This is what Jorge Hernandez Marin, a Mexico City lawyer representing Baxter, said during the recorded conversation:
Tomorrow I’ll buy you a ticket to New York. You go to New York with your wife. And you say that your son fell. He broke his leg on a bicycle in Manhattan and you had to go. And that’s why you didn’t accept the assignment.
There is much more on the tape, but the above is enough to make us realize it’s corruption to the extreme. The expert, Aspuru Alvarez, was to provide expert testimony to a witness for Translog, a Mexican trucking company. Baxter and Translog are involved in a lawsuit, with $25 million at issue, and the lawyer represented Baxter in the case. On the recording, Hernandez Marin told the expert, an accountant, that he has a “pen letter” and that he “told the company.” The lawyer for Baxter also reassured the accountant that his reputation would be safe and that he would protect his credibility. Under Mexican law, it is illegal to persuade an expert witness to provide false testimony or fail to disclose the truth in a legal proceeding, punishable by jail and fines. But under the law a criminal charge for bribery must involve a public official.
In the underlying lawsuit filed in Mexico, Baxter alleges that Translog, after running into financial problems, refused to pick up and deliver critical supplies to kidney disease patients who get dialysis treatments at home. According to the Complaint, that forced Baxter to find other shippers. Translog counters it had exclusive rights to transport Baxter products in Mexico, contract terms that it says the drug company violated. Translog says it notified Baxter of the allegations against its lawyer in April. A Translog representative provided the recording to the AP. On its website, Baxter says its global anticorruption policy also applies to third parties representing the company, who are prohibited from “providing inappropriate payments or benefits to foreign government officials, health care professionals and other entities.”
In the Mexican legal system, each party hires an outside expert to advise the judge on technical matters in complex cases. Under the U.S. Foreign Corrupt Practices Acts, it is illegal to bribe foreign officials to obtain or retain business, but it’s unclear whether it would apply here. The key question is whether someone like the accountant would be considered a foreign official, a term that U.S. prosecutors have interpreted liberally. As an independent expert, the expert’s role is to give the judge impartial technical advice. This obvious misconduct in a lawsuit, regardless of where it occurs, simply cannot be tolerated.
Source: Associated Press
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