U.S. drug company lawyer taped trying to foil Mexican lawsuit

WASHINGTON -- International business can be an ethical jungle, but it's rare to get details of bare-knuckle tactics on tape.

According to a recording and sworn testimony provided to The Associated Press, a lawyer in Mexico for a leading U.S. drug manufacturer offered to pay an opposing expert in a lawsuit if he would leave the country on a key court date to undermine the case.

The company, Baxter International Inc., promotes itself as a champion of global anticorruption efforts. Baxter said the lawyer was not authorized to make any offers, and it has severed all ties with him.

The recording and its disclosure offer an unusual glimpse of fishy maneuvers in the global marketplace and come as the Justice Department and the Securities and Exchange Commission crack down on misconduct by U.S. companies abroad, part of a multinational effort to clean up commerce.

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.

"Tomorrow I'll buy you a ticket to New York," Jorge Hernandez Marin, a Mexico City lawyer representing Baxter, said on the recording. "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."

The lawyer was talking to accountant Rafael Aspuru Alvarez, an expert witness for Translog, a trucking company embroiled in a $25 million legal dispute with Baxter's subsidiary in Mexico.

Lawyer Hernandez Marin then added: "If it's better for you, and you tell me, ‘You know, yes, I accept your offer' -- it's an example -- ‘You know, but not New York, I want to go to Las Vegas.' Tomorrow, eh?"

The recording was made during a breakfast meeting Feb. 24 in Mexico City. The 71-year-old accountant said he used a Sony personal recorder he carries so he doesn't have to take notes. It was in the top pocket of his jacket.

Hernandez Marin, the lawyer, did not respond to repeated attempts by the AP during more than one week to reach him by phone calls and email. After the AP provided Baxter with the recording, the drugmaker said the lawyer was not authorized to contact the accountant or offer any payment. Baxter said Hernandez Marin was only used occasionally as a backup for its outside counsel and no longer represents the company.

"The offer to engage an expert was not intended seriously and the lawyer had no authority to offer it or act on it," Baxter spokeswoman Laureen Cassidy told the AP. "It does not constitute bribery under Mexican law and was never acted upon."

"However, to avoid any further distraction surrounding the pending litigation between Baxter and Translog, this individual has been removed from any involvement in matters involving Baxter," Cassidy said. "He now has absolutely no role in this matter or representing Baxter in any capacity."

On the recording, Hernandez Marin told the accountant he has an "open letter" and that "I told the company."

Hernandez Marin also reassured the accountant that his reputation would be safe. "I'll protect your credibility," he said. "I'll protect your honesty."

Hernandez Marin has not been accused of any crime. 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. A criminal charge for bribery must involve a public official.

In the ongoing lawsuit 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. 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.

The meeting ended with accountant Aspuru Alvarez saying he would think it over, but he told the AP he did not return follow-up calls from the lawyer.

"I had trouble not showing my indignation," Aspuru Alvarez said by telephone from Mexico. "I had to be very diplomatic."

A U.S. lawyer for Translog, Ross Garber, said: "These are obviously very serious allegations. Perhaps even more troubling is Baxter's seeming indifference and apparent failure to diligently investigate them or take appropriate corrective action."

Translog says it notified Baxter of the allegations in April. A Translog representative provided the recording to the AP.

Baxter shares fell 12 cents to $53.64 in after-hours trading Wednesday.

Lawyer Hernandez Marin is mentioned in connection with another, unrelated solicitation for payment in Mexico described in a 2009 civil case in U.S. federal court. The case involved a $16 million dispute between Bell Helicopter Textron Inc. and Aereos Pegaso, a Mexican air transport company.

In this case, it was Hernandez Marin's client who was allegedly approached for a payment.

Representing Bell, Hernandez Marin met with a court-appointed expert who offered to render a favorable opinion toward Bell in return for money, according to U.S. court papers.

Hernandez Marin reported the expert's demand to his law partner, who notified Bell. The helicopter manufacturer said it wouldn't pay because it doesn't do business that way. Bell also viewed the solicitation as a violation of U.S. law.

On its website, Baxter says its global anticorruption policy 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."

The U.S. Justice Department declined to comment.

In the Mexican legal system, each party hires an outside expert to advise the judge on technical matters in complex cases.

Translog's expert, Aspuru Alvarez, described the recorded conversation under oath during a three-hour interview in which he was questioned by a Translog lawyer. The interview was conducted a day after the alleged offer. It took place in Houston, Translog said, to keep the story from leaking out in Mexico.

In a video of the interview, Aspuru Alvarez said he is afraid that disclosing the recording will lead to retaliation and "damage my person or my finances."

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.

Experts on the law said 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, Aspuru Alvarez said his role is to give the judge impartial technical advice. But he also told the AP that he had not yet informed the judge about the offer.

Aspuru Alvarez said he believes he fulfilled his professional obligations by immediately notifying Translog, and he intends to tell the judge at some point.

"Yes," he said, "I am going to have to personally inform the judge."