Judge Marilyn Hall Patel, the first woman appointed to the Northern District bench and its chief from the mid-nineties until 2004, plans to take senior status Oct. 30, according to one judge who received an announcement email she sent to the court earlier this week. But before she goes, she’ll most likely preside over a rare off-label drug prosecution hurtling toward trial.
Lawyers for former Intermune CEO Scott Harkonen argued Wednesday that when Harkonen sent out a press release in 2002 describing an Intermune medication as a life saver — even though the FDA said it really wasn’t — he was actually engaged in a scientific debate. Thus, Harkonen’s speech should be protected by the First Amendment, and he should not have been criminally charged for fraud, Kasowitz Benson partner Marcus Topel said.
Patel has yet to rule, but she sure didn’t appear to be buying the Harkonen line.
More after the jump …
“This is not a debate among scientists in some setting where one proposes a particular drug is efficacious for a particular disease,” the judge said. Rather, it was a communication to the general public intended to boost sales, she said.
Topel tried to contend that Harkonen’s speech should be protected even on a lower commercial First Amendment standard. “That’s a question you are mandated to decide,” he said.
“Isn’t that really a question for the jury, whether the statement was false or misleading?” Patel responded.
“Only if you find it’s not protected,” Topel said.
Justice Department attorney Nicholas Bagley countered that the judge could always direct a verdict of acquittal if she feels, at the end of the trial, that the government did not prove its case. Otherwise, the jury should be allowed to sort it out, he said.
Trial is scheduled for the middle of July. Patel didn’t respond to a request for comment late Wednesday about her plans.
— Dan Levine