US dismisses drug salesmen’s case

Halt in midtrial is second in a week

Halting a trial that was barely underway, federal prosecutors dropped felony conspiracy and fraud charges against two salesmen for a pharmaceutical company, apparently agreeing with defense lawyers that no intentional crime occurred.

Earlier in the same case, prosecutors dropped similar charges against another salesman and against the company, Stryker Biotech of Hopkinton, after jurors had heard only an hour of testimony.

It was the second case this week in which prosecutors agreed to drop charges after testimony began in US District Court in Boston, which legal analysts called extraordinary occurrences at the federal court level.

In that second case, federal prosecutors dropped charges against a Chicago man in an Internet pharmacy scam after a judge found “gross incompetence’’ in the handling of evidence.


In the Stryker Biotech case, the company and several salesmen had been accused of defrauding surgeons by promoting devices to stimulate bone growth and their use in medical procedures in a way that was not approved by the Food and Drug Administration.

The salesmen faced years in prison on felony charges of conspiracy to commit fraud, wire fraud, and aiding and abetting.

The company faced tens of millions of dollars in fines and, more damaging, being excluded from federal health care programs, known within the industry as a “corporate death sentence.’’

But prosecutors ultimately dropped all charges against the salesmen and agreed to a deal with Stryker Biotech in which the company, once facing 13 felony charges, pleaded guilty to a more minor misdemeanor crime of misbranding its product.

The company agreed to pay a $15 million fine.

Brandy Donini-Melanson, a spokeswoman for the US attorney’s office, said in a statement yesterday that prosecutors agreed to drop the charges “in the best interests of justice.’’

A fourth salesman, Stryker Biotech manager Mark Philip, was separated from the main case earlier, based on technical legal issues and is set to go to trial next month.


Defense lawyers for the other three salesmen welcomed prosecutors’ decision to drop the charges.

“These were fraud charges that never should have been brought,’’ said Robert L. Ullmann of Boston, who represented salesmen William Heppner.

Frank A. Libby Jr., who represented salesman Jeffrey Whitaker, said his client can resume his normal life.

“To the government’s credit, they came to this conclusion,’’ he said, “and they dismissed this with the right term, in the interests of justice.’’

A lawyer for David Ard, the third accused salesman, was not available for comment.

Defense lawyers and legal observers said they could not offer a single reason why the government ultimately decided to drop the case, only that it was clear that the government could not prove that an intentional fraud occurred.

Milton J. Valencia can be reached at Follow him on Twitter @miltonvalencia.