Archive for the ‘Pleadings and Rule 9(b)’ Category

Rost Successful in His Second Crack at Pfizer

 By: Joel Androphy, Rachel Grier, and Scott Braden

In August 2006, Peter Rost, a former Pfizer marketing executive, was dealt a crushing blow by the U.S. District Court in Boston when it dismissed his ­qui tam action for failing to plead his fraud claims with specific particularity as required by Rule 9(b).  On appeal, the First Circuit agreed that Rost failed to plead specific enough details, but vacated the dismissal and remanded Rost’s claims because the district court never ruled on Rost’s motion to amend his complaint. Last month, Rost’s second trip to the district court proved to be much more successful when it concluded that the amended complaint satisfied the heightened pleading requirement.

Rost’s original complaint detailed the mechanics of an alleged fraudulent scheme that Pfizer implemented to market its drug Genotropin to physicians for off-label anti-aging and body improvement purposes, but it failed to specify any specific claims that were sent to Medicaid.  The amended complaint corrected these deficiencies by alleging over 200 false claims, each of which listed the Medicaid reimbursement codes, the medical diagnosis accompanying the claim, the dates of the diagnosis and the dispensation of the drugs, and the prescription dosage.  

Posted in Pleadings and Rule 9(b)No Comments

Whistleblowers Beware: Pleading with High Level of Specificity Required in 11th Circuit

In a whistleblower case, a Magistrate Judge, following the law from the Eleventh Federal Circuit Court of Appeals, decided that in order for a whistleblower to properly plead a qui tam case, he must plead with particularity the actual submission of false or fraudulent claims to the government. In other words, it was not enough for the whistleblower to allege that there were illegal off-label marketing campaigns causing the submission of hundreds of thousands of false claims for prescriptions. The whistleblower was also required to include specific allegations of an actual false claim that was submitted to the government. The obvious inference was insufficient. The message from the 11th Circuit Court is simple. If you are going to prevail in our circuit, you must be prepared to have as clients or witnesses everyone in the chain of alleged misconduct, especially people in the billing department to prove that the time and effort devoted toward a scheme culminated in an actual billing. The message is clear.  Do not file off-label marketing cases in this federal circuit, or for that matter any other claims that require specific billing information.  The case is USA ex rel. Hopper v. Solvay Pharmaceuticals, a court in the Middle District of Florida (Tampa).

Posted in Healthcare Fraud, Off-Label Marketing, Pleadings and Rule 9(b)No Comments

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