Archive for the ‘Damages’ Category

Who is liable for the oil spill? Geoff Berg answers.

Who is liable for man-made disasters such as the oil spill? Just the primary corporation, like BP, or also the suppliers of their equipment and parts? See what Geoff Berg has to say in this article:

Cameron Provided Blowout Gear for Rig That Sank
“I don’t think it could possibly be much more serious than a severe incident like this,” Geoff Berg, a partner at the Houston law firm Berg & Androphy, said today in a telephone interview. “If there is some evidence of liability, then you can bet that everyone will and should be sued over it.” Read More

Posted in Damages, Government Intervention, Jurisdictional IssuesNo Comments

Announcement of Pfizer’s Off-Label Settlement a Harbinger of Increasing Accountability

Last Wednesday, the Justice Department held a conference to announce Pfizer’s off-label criminal and civil settlement for its fraudulent marketing practices.

Pfizer’s subsidiaries will plead guilty to a felony violation of the Food, Drug and Cosmetic Act for misbranding with the intent to defraud or mislead. It will pay a criminal fine of $1.195 billion and forfeit $105 million, bringing the total criminal settlement to $1.3 billion.

The civil settlement of $1 billion will resolve claims under the False Claims Act that Pfizer illegally promoted four of drugs (most notably the anti-inflammatory drug Bextra), caused false claims to be submitted to government healthcare programs for indications other than those approved by the FDA, and provided kickbacks to doctors to induce them to prescribe these drugs.

Pfizer has also entered into a Corporate Integrity Agreement with the Office of Inspector General of the Department of Health and Human Services that will subject the company’s marketing practices to additional review procedures and safeguards to help avoid and promptly detect similarly offending conduct. For example, Pfizer’s executives will need to complete annual compliance certifications and the company will be required to make detailed disclosures on its website.

The settlement is notable enough for its sheer magnitude: it is the largest in the Department of Justice’s history; it also represents the largest criminal fine imposed ever in the United States for any matter.

But the story behind the story is also interesting. The settlement itself was already announced–and largely completed–by the Bush administration. But whereas the Bush administration was less likely to tout its strikes against big pharmaceutical companies, the Obama administration is happy to take the credit. This certainly signals a bleak future for the drug companies. The administration appears poised to go after these cases with more gusto, especially as it faces criticism for the high cost of Obama’s healthcare proposals.

In January, Eli Lilly and Company settled similar claims over its marketing of Zyprexa for $800 million. The success of that case can be traced directly to courageous stands taken by employee whistleblowers.

The six whistleblowers in the Pfizer case will share some $102 million of the federal portion of the civil recovery. As employee whistleblowers continue to work with the current administration, we can expect to see more of these announcements in the coming months.

Learn more about the Justice Department Conference
Learn more about Pfizer’s Corporate Identity Agreement
Learn more about Eli Lilly and Company’s Zyprexa case

Posted in Damages, Healthcare Fraud, Off-Label Marketing, Qui Tam Litigation, SettlementsNo Comments

Economic Stimulus Bill Includes Whistleblower Protections

By: Joel Androphy, Rachel Grier, and Stephanie Gutheinz

Senator Claire McCaskill’s whistleblower protection amendment to the American Recovery and Reinvestment Act of 2009 includes provisions to ensure that employees are able to disclose waste, fraud, or mismanagement related to stimulus funds.  The protections afforded by the McCaskill Amendment are in addition to the whistleblower protections provided by the False Claims Act.  The McCaskill Amendment applies to state and local governments, private contractors, and other non-Federal employers receiving a contract, grant, or other funds made available by the economic stimulus bill.  The McCaskill Amendment protects employees that disclose information, either to a supervisory authority over the employer or to another employee that has the authority to investigate misconduct, that the employee reasonably believes is evidence of:

  • gross mismanagement of an agency contract or grant related to stimulus funds;
  • gross waste of stimulus funds;
  • a substantial and specific danger to public health or safety related to the implementation or use of stimulus funds;
  • an abuse of authority related to the implementation or use of stimulus funds; or
  • a violation of law, rule, or regulation related to an agency contract or grant relating to stimulus funds. 

Furthermore, disclosures made by employees in the ordinary scope of employment are also specifically protected.  Any employee engaged in protected conduct is protected against retaliation by the employer, including discharge, demotion, or other discrimination.  If an employee suspects that he or she has been retaliated against for engaging in protected conduct, the employee must file a complaint with the appropriate inspector general.  As currently written, the McCaskill Amendment provides no statute of limitations to file this complaint.  In order for an employee to establish a retaliation claim under the McCaskill Amendment, the employee is only required to prove that the protected conduct was a “contributing factor.”  While an employee is required to exhaust all administrative remedies first, the McCaskill Amendment expressly provides that pre-dispute arbitration agreements are not binding for claims brought under the Amendment. If the employee prevails, the employee is entitled to reinstatement, back pay, compensatory damages, attorneys’ fees, and litigation costs. 

Posted in Damages, Retaliation, Statute of LimitationsNo Comments

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