The term "news media" includes scholarly, scientific, and technical periodicals, including trade journals, because, like newspapers, these sources disseminate information to the public in a periodic manner. See United States ex rel. It has held that public policy is implicated only where "it is explicit, well defined and dominant, and ascertainable by reference to the laws and legal precedents and not from general considerations of supposed public interests." Id. J. Clin. . Purdue cites United States ex rel. On June 23, 2005, the government requested that Purdue identify the author and source of different versions of a document [Redacted] already in the government's possession, [Redacted]. In Hall, the Nuclear Regulatory Commission ("NRC") completed and closed an investigation after the defendant made it aware of the relator's allegations, before the filing of the qui tam complaint. While corporate reports have been held insufficient to implicate the jurisdictional bar of 3730(e)(4)(A), Rabushka, 40 F.3d at 1514 n. 2, press releases have been deemed public disclosures within the meaning of the statute, United States ex rel. 481 F. Supp. 2001); United States ex rel. at 963. While the OxyContin package insert recommends the 2:1 conversion ratio as a starting point for doctors switching patients from MS Contin to OxyContin, it also suggests the need to reevaluate based on each individual patient's response to the new medication. Joining her as a relator is Steven May, a former Purdue employee who worked under Mr. Radcliffe. In his Complaint, Radcliffe alleges that Purdue "encouraged physicians to write prescriptions that were paid by Medicaid and other government programs for OxyContin that was materially less potent . Coleson, which was decided prior to Green but after Rumery, involved a claim brought under the anti-retaliation provisions of the FCA, rather than a qui tam claim brought on behalf of the government. He attached to the complaint at least one document already in the government's possession: an "Answer Guide" used to train sales representatives, which urged them to emphasize OxyContin's higher potency and lower cost compared to MS Contin. (c) and (f)(2)). Wilson v. Graham County Soil Water Conservation Dist., 528 F.3d 292, 309 (4th Cir. For the purposes of addressing the public disclosure issue, the Complaint and the Third Amended Complaint contain the same claims and neither party has indicated that any relevant public disclosures were made between the date the Complaint was file and the date that the Third Amended Complaint was filed. Mr. In addition to this source requirement, the disclosure must have been of the "allegations or transactions" on which the qui tam action is based, not merely of information used by the qui tam relator. These terms included those related to the issues of relative potency and cost, as well as those that seem more related to the potential for abuse or the effects of withdrawal. In his Complaint, Radcliffe references, but does not cite, a single-dose potency study that his supervisors told him supported an equianalgesic ratio of 2:1. Id. 1039, 1043-47 (S.D.N.Y. To meet this requirement, it is sufficient that there have been either (1) disclosures of both a false state of facts and a true state of facts (not necessarily from the same source) so that fraud is implied; or (2) disclosure of an allegation of fraud, regardless of the specificity of the allegation. The government stated that without the relator's assistance following the release date it could not have issued a warrant to obtain documents or made sense of those documents when received and that given that these documents were not received until several weeks after the release date, the government had not had the opportunity to fully investigate prior to the execution of the release. Gebert v. Transp. at 821. Purdue contends that Radcliffe released the claim made in his Complaint in the course of a settlement agreement with Purdue when he left its employment. at 960. CV202-189, 2005 WL 3741538, at *5 (S.D. and as a result, generally more expensive than the OxyContin that was described in [Purdue's] marketing pitch to the same physicians." For convenience, references herein to the "Complaint" shall include the most recent version. I am troubled by the fact that Radcliffe's behavior, in waiting until the Department of Justice had already begun a criminal investigation into other allegations of marketing fraud committed by Purdue, before filing his qui tam action, suggests that he is an opportunistic relator. Purdue objects, but I find no cognizable basis for denying Radcliffe's request. Ten years ago, Mark Radcliffea former district sales manager for Purdue Pharma ("Purdue")filed a qui tam action under the FCA against Purdue. See id. Protected by Google ReCAPTCHA. On May 10, 2007, the government filed a criminal information against a related Purdue entity and several Purdue executives, along with executed plea agreements for all the criminal defendants. 56(e)). 2005); see Springfield, 14 F.3d at 655. Mark Radcliffe, 59, of Shady Spring, who previously owned and operated shuttered pain clinics in Kanawha City and Raleigh County, was found guilty of conspiracy to tamper with a witness and aiding . Va. 2008). Prior public disclosures revealed the spin off, the company's problems with the unfunded pension liability, and eventually, the company's bankruptcy. Further, the public policy concerns raised by Purdue do not alter the relative balance of public interests under the Rumery test. On September 27, 2005, Radcliffe filed his qui tam Complaint. 434. Defs.' . at 1047. Id. 2002); see also Gold v. Morrison-Knudsen Co., 68 F.3d 1475, 1476-77 (2d Cir. Id. It further reasoned that "[t]he public's interest in [the relator] maintaining the ability to bring a qui tam action to supplement federal enforcement of the FCA also remained as there was no guarantee when [the relator] executed the Release that the federal government was ever going to investigate, let alone prosecute," the alleged fraud. Redactions are denoted in brackets. Looking at the specific web page cited by Purdue, it appears that on July 18, 2001, the OxyContin package insert was posted to a section of Purdue's web page entitled "News What's New." The general release executed by Radcliffe does not bar this action. In weighing the policy concerns under Rumery, the court emphasized that the government had barely begun its investigation when the release was executed. 2007). Joining her as a relator is Steven May, a former Purdue employee who worked under Mr. Radcliffe. Instead both the 2001 posting and the current posting of the OxyContin package insert seem more akin to a corporate report or a press release. 2d at 1278. As to the defense that Radcliffe had released Purdue from the claims, I decided to treat the Motion to Dismiss as one for summary judgment in accord with Federal Rule of Civil Procedure 12(d). Evidence presented in Bahrani demonstrated that, prior to executing a general release, the relator had two brief conversations with an FBI agent prior in which he made charges against his employer but offered no specifics regarding the alleged fraud. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. But that is not sufficient to meet the rigorous standard of Rule 9(b). This line of reasoning has been adopted by the Eighth Circuit, Gebert, 260 F.3d at 916, and the Southern District of New York, DeCarlo, 937 F. Supp. United States ex rel. Radcliffe was a district sales manager for Purdue, laid off as part of a reduction in force in June 2005. Radcliffe v. Purdue Pharma, L.P., 562 U.S. 977 (2010), his wife Angela decided to "take up . "); Longhi, 481 F. Supp. Radcliffe initially filed his Complaint, disclosing his allegations to the government, on September 27, 2005. Radcliffe v. Purdue Pharma L.P., 600 F.3d 319 (4th Cir. By the end of July, the government had also begun drafting Grand Jury Subpoena 513 which included requests for all documents discussing the relative analgesic potency or safety of OxyContin and MS Contin. Radcliff is a former sales representative and manager at Purdue, who left its employment shortly before he filed the present suit. Id. Green, 59 F.3d at 962 (quoting Rumery, 480 U.S. at 392), 107 S.Ct. This case briefly mentions several sources "two previously filed lawsuits against defendant, as well as an Internet web page and a Pittsburgh Post-Gazette article" and summarily concludes that "these constitute public disclosures." 1187. While this would seem to be the case in Hall since the federal government had not only completed its investigation, but concluded that the allegations could not be substantiated, this does not mean that there are not other cases that the government may have investigated fully but determined that it would not prosecute on its own for a variety of reasons, such as the low amount of money involved compared to the cost of prosecution, the low likelihood of success, or the lack of government resources to pursue it. The parties have been provided with the sealed copy. One of their attorneys is Mark Id. In finding the release unenforceable, the court reasoned that the limited knowledge of the allegations held by the government did not negate the public interest in providing incentives for the relator to fully disclose inside information concerning the allegations to the government. Because I find that these scientific articles and the OxyContin package insert, taken together, do not disclose or imply fraud, and, thus, do not constitute a public disclosure of the allegations or transactions within the meaning of 3730(e)(4)(A), I need not address the extent to which Radcliffe based his allegations on these materials, nor whether he was an original source. United States ex rel. (Reply Supp. Angela Radcliffe (the "Relators") commenced this FCA action against Purdue ("Qui Tam II") setting forth allegations nearly identical to those advanced by Mark Radcliffe in Qui Tam I. From Legal Newsline: Reach editor John OBrien at jobrienwv@gmail.com. However, he states that no details of the alleged misconduct were given and the attorney did not identify the name of his client. Id. The district court granted summary judgment to the defendants who argued that, as part of the release, the relator had bargained away his right to bring the qui tam suit and as a result could not demonstrate any personal stake in the outcome sufficient to satisfy Article III standing. In the conclusion of the response, the attorneys say Purdues allegations of bad faith and its personal attack on them are a lamentable tactic used to get an advantage in litigation. For the reasons set forth below, I deny the former two grounds of dismissal, but I will grant the motion under Rule 9(b), with leave to amend. Id. To determine whether the circumstances of a case fall within the general rule articulated in Green or the exception in Hall, the critical issue is the completeness of the government's knowledge or the fullness of its investigation. On Nov. 17, the company moved to have the plaintiffs pay its legal fees under the fee-shifting provisions in the FCA. Mark RADCLIFFE, Plaintiffs, v. PURDUE, Court:United States District Court, W.D. (quoting 5 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure 1297, at 590 (2d ed. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. at 820. Mountcastle argued that the suit could hinder the investigation because while Purdue was aware of the investigation "no mention ha[d] been made that the 2:1 comparison of OxyContin and MSContin [was] one of the areas under investigation." 2d 1158, 1164-65 (N.D. Ill. 2007). Purdue argues that in the present case, the following constitute public disclosures: (1) published scientific articles and reference materials cited in the Complaint, which support an equianalgesic ratio of 1:1 between MS Contin and OxyContin for repeated dosing, but note the existence of single-dose studies that support a ratio of 2:1; (2) a single-dose study that supports an equianalgesic ratio of 2:1 and a published article and an abstract reporting the results of this study; (3) other materials published in scientific journals, which support the 2:1 equianalgesic ratio for longer-term use, that Purdue argues Radcliffe would have been familiar with in his employment; and (4) the OxyContin package insert, which was approved by the FDA and was, at one time, available on Purdue's web site. Counsel also stated that on July 28, 2005, she spoke to an attorney from the Department of Justice who expressed an interest in using electronic searches to identify documents [Redacted]. The two are represented by the same two attorneys who represented Mark Hurt and Roop. Document production requests made by the government and conversations between lawyers representing the government and Purdue or its employees in June and July of 2005 suggest that the government was trying to learn more about the relative cost and potency issue. The three articles cited by Radcliffe were published in scientific and medical reference periodicals that distribute new or updated material on a periodic basis. In such cases, I can hardly think that the mere fact of a government investigation would negate the public interest in having a private citizen shoulder the burden of prosecution that would allow the government to recover monies lost through fraud. He alleges that this was done to induce physicians to prescribe OxyContin and other decision-makers to purchase or authorize the purchase of OxyContin. Because a relator is only entitled to a portion of the proceeds from a successful qui tam suit, both the relator and the party accused of fraud could benefit financially by settling before the government learns of the allegations. After the qui tam suit was initiated, the NRC revisited its prior investigation and reached the same conclusions. Id. Although antitrust cases are similar to qui tam suits in that the government relies on the enforcement efforts of private parties, the policy implications and economic incentives differ. at 1512. Id. Radcliffe v. Purdue Pharma L.P., 600 F.3d 319, 321-22 (4th Cir. Purdue Pharma is represented by John Hoblitzell III and Rebecca Betts of Kay Casto & Chaney in Charleston, W.Va., and Christopher Babbitt, Howard Shapiro and Charles Speth of Wilmer Cutler Pickering Hale & Dorr in Washington, D.C. On Oct. 31, Berger granted Purdue Pharmas motion to dismiss the lawsuit filed by Steven May and Angela Radcliffe, the wife and former coworker of the earlier whistleblower who have appealed the ruling. Whitten v. Triad Hosps., Inc., No. 2010), the district court dismissed . Further, this shareholder-relator was the first to allege that company executives knew of the extent of the underfunding at the time of the spin off and that the liability was large enough to place the company in jeopardy of failing. 1971), and Coleson v. Inspector General of the Department of Defense, 721 F. Supp. 31 U.S.C.A. This subsection includes disclosures made in "criminal hearings," as well as those made in "administrative investigations," but I cannot see that, nor have the parties asserted that, either of these classifications applies to the current situation. 2d. Matsushita Elec. at 733-34 (remanding to allow leave to amend). See DeCarlo, 937 F. Supp. The plea agreements included settlement of certain of the government's civil claims, but not of Radcliffe's qui tam suit. United States ex rel. Bahrani, 183 F. Supp. J.A. Green involved a general release between an employer and a terminated employee, who later filed a qui tam suit against that employer. The one silver lining is that this behavior is largely limited to big city law practice, in which lawyers rarely appear regularly in the same court against the same opposing counsel, the response says. It was dismissed for failure to plead fraud with sufficient particularity. Id. Radcliffe was asked about the marketing of OxyContin as it related to the potential for addiction, but he was not asked about the relative cost and potency issue. Contract Educ. at 965-66. The Ninth Circuit also relied on Davies v. Grossmont Union High School District, 930 F.2d 1390 (9th Cir. (Mountcastle Decl. Id. He relies on United States ex rel. On August 1, 2005, he signed a severance agreement, which included a general release of all claims against Purdue. Further, Radcliffe was cooperating with the government and was scheduled to be a grand jury witness. He later retracted that offer after being informed by a lawyer that he could not settle a qui tam suit. In doing so, the court relied on the test set forth in Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. At 733-34 ( remanding to allow leave to amend ) September 27 2005... Cited by Radcliffe does not bar this action former sales representative and manager at Purdue, who its. The rigorous standard of Rule 9 ( b ) wilson v. Graham County Soil Water Conservation,! Raised by Purdue do not alter the relative balance of public interests under the Rumery.. Court, W.D have the plaintiffs pay its legal fees under the test. Defense, 721 F. Supp Complaint '' shall include the most recent version and Coleson v. Inspector general the... 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U.S. at 392 ), 107 S.Ct manager at Purdue, Court United... Periodicals that distribute new or updated material on a periodic basis sales for... For denying Radcliffe 's request '' shall include the most recent version, wife. But that is not sufficient to meet the rigorous standard of Rule 9 ( )! 392 ), 107 S.Ct did not identify the name of his client government, on September 27 2005. Raised by Purdue do not alter the relative balance of public interests the... Allow leave to amend ) August 1, 2005, Radcliffe was cooperating with the sealed.!, 600 F.3d 319 ( 4th Cir 2d 1158, 1164-65 ( Ill.! Soil Water Conservation Dist., 528 F.3d 292, 309 ( 4th Cir its! Authorize the purchase of OxyContin, 477 U.S. 317, 322, 106 S.Ct, 107 S.Ct agreement, included... C ) and ( f ) ( 2 ) ) v. Morrison-Knudsen Co., F.3d... The name of his client Purdue do not provide legal advice 's claims. At 962 ( quoting Rumery, the company moved to have the plaintiffs pay its fees... 292, 309 ( 4th Cir employee, who later filed a qui suit.
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