San Antonio Express-News (Sunday)
Bexar’s lawyer for opioid suit under fire anew
Months before embattled lawyer Martin Phipps came under public scrutiny over allegations that he harassed his former wife and created a hostile work environment at his firm, his actions as lead attorney in Bexar County’s opioid litigation angered county officials and led to the resignation of a law partner, T.J. Mayes, from both the firm and University Health’s board of managers.
The dispute was sparked in August when Phipps submitted a summary of an expert opinion without any input from the expert, Dr. Bryan Alsip.
Phipps designated Alsip, chief medical officer at University Health, as one of the county’s expert witnesses in the lawsuit, which accuses more than two dozen opioid manufacturers of deceptive marketing, fraud and false representations. The lawsuit alleges those actions fueled the opioid crisis in the San Antonio area, which the county says resulted in steep costs for drug treatment and other damages.
The county filed the lawsuit in Harris County in 2018. Mayes was then County Judge Nelson Wolff ’s chief of staff.
Phipps later hired Mayes as a partner at his firm to work on the opioid litigation. While working at the firm, Mayes also served on the board of University Health, the county’s public hospital system, as an appointee of Wolff — a position that would thrust Mayes into a conflict over the Alsip testimony and spur his resignations.
In August, Phipps submitted to opposing counsel a summary of Alsip’s expected testimony in the case.
In part, the 13-page report said Alsip would testify that opioid manufacturers aggressively promoted
the drugs while downplaying the risk of addiction and overstating their benefits, changing the way doctors treat chronic pain.
This was news to Alsip.
The doctor was “not pleased with the ‘expert report' which was prepared and submitted without any input from him and which purports to (but does not) contain his expert opinions,” Alsip's lawyer, Laura Cavaretta, said in an email to Phipps and other attorneys in September.
In an interview, Robert Vargas, a San Antonio political consultant who worked on the opioid litigation at the Phipps firm in a nonlegal capacity, said the firm submitted the report without Alsip's knowledge.
“One of my tasks during that period was to contact some of our experts that we were going to be working with,” said Vargas, who resigned from the firm last month. “I can say that when expert testimony was being crafted, that Dr. Alsip's testimony was submitted without his knowledge. Dr. Alsip didn't know that we were putting him in there.”
Alsip later was dropped as a designated expert in Bexar County's case, and the report prepared under his name was withdrawn.
Alsip declined to comment. Phipps did not return a call seeking comment, nor did Cavaretta.
On Friday evening, the firm issued a statement that said in part: “We categorically deny that anything improper occurred. … We remain committed to providing the absolute best service and support for our clients in an ethical and moral manner.”
Phipps, 51, was arrested last week on a charge of harassing Brenda Vega, 24, his then-wife and former legal assistant to whom he was briefly married.
The arrest followed the resignations in January of several employees of the law firm, including Mayes and Vargas, who claimed in a joint letter that Phipps subjected them to a hostile work environment.
The intersecting controversies have created uncertainty about Phipps' future role in the potentially lucrative Bexar County lawsuit, in which the county is seeking damages of more than $1 billion.
The county's lawyers would collect a percentage of the sum recovered, a standard fee arrangement in civil litigation.
Under contract with the county, the Phipps firm stands to earn 50 percent of any legal fees. But last month, after Mayes resigned and began lobbing allegations of impropriety at Phipps, Wolff handed control of the lawsuit to Mikal Watts, co-lead counsel in the case. The Watts firm is entitled under the contract to 17 percent of legal fees.
In a letter obtained by the San Antonio Express-News, Wolff authorized Watts to “take any action” he deemed necessary to preserve the county's legal rights.
The change is in effect until the county judge “can obtain further information regarding the ability of Phipps Mayes PLLC to continue as co-lead counsel or until the Bexar County Commissioners Court has an opportunity to consider this matter at its next scheduled meeting,” Wolff wrote.
Commissioners plan to meet in executive session this month to discuss the lawsuit.
In an interview, Wolff called the dispute over Alsip's expert testimony “troubling.”
“It bothered me some when that happened,” Wolff said. “I don't know exactly what (Mayes) did or what his involvement was, but the fact that the law firm screwed it up wasn't good.”
David Caudill, a law professor who teaches evidence and ethics at Villanova University in Pennsylvania, said he had never before heard of a law firm submitting an expert opinion without first receiving input from the expert. Attorneys sometimes are known to write an expert's opinion, then show it to the expert for editing and validation before submitting it — a scenario that Caudill called “unseemly” but not necessarily unethical.
“If I shortcut that obligation and I submit an expert report that the expert has never seen, then I see that the expert has not given the testimony, but rather the lawyer has pretended the expert has given that testimony,” Caudill said. “Now we seem to have an ethical problem.”
Regret
When Bexar County hired the Phipps firm in 2017, Mayes was working in Wolff's office as his chief of staff and as a coordinator for the county's opioid task force. In 2018, Wolff named Mayes as chair of a subsequent opioid task force.
Mayes joined the Phipps firm in January 2019, recruited in part by state Rep. Diego Bernal, who was working as an independent contractor for the firm. Bernal said he cut ties with the firm last month at the same time as Mayes.
Mayes said he came up with a plan later that year to link Bexar County's opioid lawsuit with one by University Health, also represented by the Phipps firm.
“The whole concept — and I know this because I came up with the strategy — was to use the UHS case as leverage when negotiating on behalf of Bexar County,” Mayes said in an interview. “They're separate cases, but for purposes of settlement talks they were connected.”
In May 2020, Wolff appointed Mayes to University Health's board.
“I didn't think that that would be a conflict,” Wolff said. “I didn't know it was going to lead to what it did.”
As a University Health board member and a partner at the firm, Mayes said he tried to avoid any involvement in Alsip's expert testimony in Bexar County's case in order to steer clear of any conflict of interest.
He said he recognized a potential ethical conflict in making decisions on behalf of the hospital system as a board member while simultaneously handling a hospital executive's testimony as a lawyer.
“I made the decision above and beyond what was required to recuse myself from anything related to Alsip's expert designation,” Mayes said.
Nonetheless, Mayes became entangled in the dispute with University Health over the expert report, according to interviews and emails obtained by the Express News, as well as Mayes' own affidavit in a complaint he said he made against Phipps to the State Bar of Texas in January.
Hannah Santino, who worked as Mayes' executive assistant at the Phipps firm from the summer of 2019 until February 2020, recalled setting up meetings between Alsip and Mayes.
“I recall him being a priority person for T.J. to meet with, and he was a name that was on my list of to-dos, of appointments,” Santino told the Express-News.
Last July, while Mayes was on University Health's board, he called Alsip “to inform him that attorneys from (the firm) were interested in discussing his testimony in the Bexar County case,” according to Mayes' bar complaint against Phipps.
“I informed him that the purpose of my call was to give him a ‘heads up' and that ‘I (would) do everything I could to stay out of it,'” Mayes wrote. “I regret this call and apologize to Dr. Alsip for it.”
Pointing fingers
In the complaint, Mayes wrote that Phipps filed a document designating Alsip as an expert late at night after failing to meet a courtimposed deadline.
Expert testimony is a crucial element in a case such as the county's opioid lawsuit. Expert reports can help establish the defendants' culpability and document the severity of the harm for which the plaintiff — in this case Bexar County— seeks monetary damages.
Although Mayes was “intimately involved” with designations filed on behalf of 21 other experts in the Bexar County lawsuit, he said in the state bar complaint affidavit that he had “no involvement” with Alsip's designation as an expert.
Cavaretta said otherwise in an email to Phipps and other attorneys.
In September, Cavaretta requested documents that the Phipps firm used in support of Alsip's expert opinion. She complained that Alsip had “never been provided with, or seen any of the documents which he purportedly ‘considered or used' in support of his ‘opinions.'”
Cavaretta wrote that in response to her request for the documents, Phipps told her that Mayes was “handling this issue.” According to Cavaretta's email, Mayes himself emailed her that “we have all the exhibits in our possession and I am now handling this matter.”
In an interview, Mayes acknowledged sending Cavaretta the exhibits. He said he did not read them. Mayes said Phipps “ordered” him to contact Alsip and send Cavaretta the exhibits.
“Phipps ordered me to do those two things,” Mayes said. “I didn't want to do them, but I didn't think they violated ethical rules or any laws. I did both of which out of a sense of loyalty to Dr. Alsip.”
Mayes said he apologized to Alsip about the bungled expert report at a board meeting.
“I said, ‘I had nothing to do with it, but I'm sorry they did that to you,'” Mayes recalled.
As a result of the controversy, Wolff asked Mayes to resign from University Health's board. Mayes did so in November.
“It was disturbing to the staff that that was done,” Wolff said. “I don't know the details of how it was done, but I did ask Mayes to resign from the board, which he did. I just thought that was not good.”
The dispute over Alsip's expert report also led Mayes to break with Phipps, he said.
“It was that matter that made me decide to resign the firm and put together documents to alert the state bar and other authorities to Martin Phipps' conduct,” Mayes said.
YANGON, Myanmar — Mass street demonstrations in Myanmar entered their second week Saturday, with neither protesters nor the military government they seek to unseat showing any signs of backing down from confrontations.
Protesters in Yangon, the country’s biggest city, again congregated at Hledan intersection, a key crossroads from which groups fanned out to other points, including the embassies of the United States and China. They marched despite an order banning gatherings of five or more people.
The U.S., especially after President Joe Biden announced sanctions against the military regime, is regarded as an ally in the protesters’ struggle against the Feb. 1 coup. China is detested as an ally of the ruling generals, whose support is crucial to them keeping their grip on power.
Demonstrations also resumed in Myanmar’s secondbiggest city, Mandalay, with lawyers making up one large contingent.
The military ousted the country’s leader, Aung San Suu Kyi, and her government and prevented recently elected lawmakers from opening a new session of Parliament. Suu Kyi and other senior members of her government and party remain in detention. The junta, led by Senior Gen. Min Aung Hlaing, said it was forced to act because Suu Kyi’s government failed to properly investigate allegations of fraud in last year’s election, which her National League for Democracy party won in a landslide. The election commission said there is no evidence to support the military’s claims.
Saturday’s protests coincided with the birthday of Gen. Aung San, the country’s independence leader and father of Suu Kyi. His name and image have appeared on signs carried by some demonstrators.
Authorities have stepped up the arrests of politicians and activists, and in areas outside Yangon have become more aggressive in trying to break up protests.
According to the independent Assistance Association for Political Prisoners, at least 326 people have been detained since the coup, of which 303 remain in custody.
There have been many reports over the past three nights of raids during a curfew in which security personnel have tried to seize people from their homes.
In several cases, neighbors and others people have rushed to the scene in such numbers that security forces have abandoned their attempts to haul in their targets. Videos of such raids have been widely posted on social media.
The prisoners’ association also said that riot police fired rubber bullets, injuring five students, and took away another nine in a protest Friday in the southern city of Mawlamyine.
“Family members are left with no knowledge of the charges, location or condition of their loved ones,” it said in a statement. “These are not isolated incidents and nighttime raids are targeting dissenting voices. It is happening across the country.”