School escapes liability for sex abuse by teacher, Walmart launches Constitutional attack on Lina Khan's FTC, Firefighters fired over penises drawn on Black colleague's family pictures lose lawsuit, Lawsuit targets Panera's Sip Club, complains refills have restrictions, Judge stops 3M's plan to handle massive earplug litigation. Likewise, the prior public disclosures reveal that there was contradicting scientific evidence as to the relative potency of OxyContin to MS Contin, but they do not imply fraud. 40 F.3d at 1510. 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. Some studies recommended an equianalgesic ratio of 1:1, particularly for chronic, around-the-clock dosing; they acknowledged studies that recommended a ratio of 2:1 for single or intermittent doses. During this time the government was conducting a criminal investigation of Purdue's marketing of OxyContin, eventually resulting in guilty pleas in this court by a related company and three of Purdue's top executives. Radcliff is a former sales representative and manager at Purdue, who left its employment shortly before he filed the present suit. These employees were indeed asked questions pertaining to the relative potency issue during their grand jury appearances on July 20, 2005. The plea agreements included settlement of certain of the government's civil claims, but not of Radcliffe's qui tam suit. The plaintiff has the burden of showing that the court has subject matter jurisdiction. Several months later, Purdue restructured its sales force and Radcliffe was offered the option of transferring positions, which he declined, or termination with an extended severance package. Radcliffe v. Purdue Pharma L.P., 600 F.3d 319 (4th Cir. Matsushita, 475 U.S. at 587, 106 S.Ct. MARK RADCLIFFE: Defendant - Appellee: PURDUE PHARMA L.P. and PURDUE PHARMA, INCORPORATED: Amicus Curiae: However, this applies to public policy concerns in the interpretation of a contract rather than in a determination of its validity. Michael Scheininger, counsel to several Purdue employees, stated that Department of Justice lawyer Barbara Wells informed him on June 24, 2005, of her intent to ask several of his clients about the dispute over the relative potency of OxyContin and MS Contin, explaining that it related to the marketing and cost implications. Indeed, Mr. Hurt drafted the core allegations not on the basis of information and facts relayed to him by Relators, but rather by using information and documents provided to him by Mark Radcliffe (the plaintiff in the first, unsuccessful case), the motion says. Disclosures made in other public forums do not implicate the public disclosure bar. The two attorneys claim in a response that Purdue Pharma has failed to meet its burden for showing that fee-shifting is appropriate and that the judge who dismissed the earlier lawsuit ruled at least part of the complaint passed muster, but it fell outside of a six-year statute of limitations period. Green, 59 F.3d at 962. After all, they were suing Purdue, not for any injuries that they had personally suffered, but for Purdues fraud against the Government, a response filed Dec. 4 says. Id. In this action brought under the qui tam provisions of the False Claims Act ("FCA"), 31 U.S.C.A. at 963. 2d 1158, 1164-65 (N.D. Ill. 2007). Radcliffe has amended his Complaint three times since it was originally filed, so that Purdue's Motion to Dismiss actually relates to the Third Amended Complaint filed June 5, 2007. Relators, or private individuals who bring suits on behalf of the government, are entitled to a portion of the recovery from a qui tam suit, the amount of which depends on whether the government chooses to intervene after learning the allegations and prosecute the case itself and the overall importance of the relator's participation in the action. at 821. 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. But that is not sufficient to meet the rigorous standard of Rule 9(b). C05-01962 HRL, 2006 WL 2067061 (July 25, 2006) at *7 ("[T]he key question is whether the government knew about [the relator's] allegations of fraud and had an opportunity to investigate them before the release was executed. Virginia Search this Docket Tags Get Alerts View on PACER Last Updated: Dec. 28, 2020, 6:49 a.m. EST Assigned To: James Parker Jones Referred To: Pamela M. Sargent Date Filed: Sept. 27, 2005 Date Terminated: Jan. 25, 2009 Date of Last Known Filing: June 1, 2010 2d at 820 ("If there is a dividing line to be found between Hall and Green, it is the fullness of the government's investigation, not the timing of the release."). Id. United States ex rel. Id. Purdue Pharma, L.P. (1:05-cv-00089) District Court, W.D. 2006). These include the public interest in having relators disclose inside information of alleged fraud to the government, in having relators supplement federal enforcement of the FCA by assisting the government in its investigation and prosecution or prosecuting the claim itself, and in deterring future fraud against the government. Id. Grayson v. Pac. 3d ed. While the prior public disclosures included information that was true, they did not reveal the "true" state of facts regarding the executives' knowledge or intentions. The government began a lengthy investigation after the execution of the release and ultimately chose to intervene. CIV.A. dismissing complaint because it did "not describe even a single instance in which a physician was influenced to prescribe [the drug] based on [the defendant's] misrepresentations, and where a claim was made by the pharmacist to the government". However, that is not the situation before me. In deciding a jurisdictional challenge, the court must determine the facts based on the evidence submitted. 2:04 CV 053, 2006 WL 3834407, at *3 (S.D. However, he states that no details of the alleged misconduct were given and the attorney did not identify the name of his client. It is undisputed that Radcliffe did not disclose the nature of his qui tam allegations to the government prior to the filing of his Complaint. Likewise, the public interest in using qui tam suits to supplement federal enforcement of the FCA was not disturbed as the government had already investigated the allegations prior to the release. The court held the release unenforceable both because it was executed within the statutory sixty-day investigatory period and interfered with the government's ability to evaluate whether to intervene in the suit and because it was contrary to public policy under the Green/Hall framework. at 963. United States of America, et al. Pharmacol. However, after the employee raised these concerns, the employer contacted the regulatory agency involved and apprised them of the allegations. Make your practice more effective and efficient with Casetexts legal research suite. The district court determined that between 1996 and 2005 Radcliffe, on behalf of Purdue, marketed "OxyContin, The final and perhaps the most difficult issue is whether the public disclosure reveals "allegations or, Full title:UNITED STATES, et al., ex rel. Regardless, the 1996 abstract was published in Clinical Pharmacology Therapeutics, a scientific journal headquartered in Alexandria, Virginia. United States ex rel. . the baton" and file the qui tam action against Purdue now before the court. Relators claims had no objectively reasonable chance of success, the company argues. On Nov. 17, the company moved to have the plaintiffs pay its legal fees under the fee-shifting provisions in the FCA. Also on July 28, the government issued a subpoena for Michael Cullen, [Redacted]; he was later asked during his grand jury testimony about the relative potency issue. Mark RADCLIFFE, Plaintiffs, v. PURDUE, Court:United States District Court, W.D. However, it is also clear from the evidence that the government continued to seek such information after the release had been executed on August 1, 2005. Va. 2014) case opinion from the Southern District of West Virginia US Federal District Court . Purdue Pharma L. P. et al, No. Finally, Purdue argues that the OxyContin package insert is a public disclosure, either in the news media or from an administrative investigation. . Purdue objects, but I find no cognizable basis for denying Radcliffe's request. 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. at 961 (applying the three-part test in United States v. Kimbell Foods, Inc., 440 U.S. 715 (1979)). of Pittsburgh, 186 F.3d 376, 385 (3d Cir. See United States v. Purdue Frederick Co., 495 F. Supp. United States ex rel. Radcliffe v. Purdue Pharma L.P., 582 F. Supp. 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. Purdue's response was ambiguous, first stating that Radcliffe did not have legitimate claim, but if he thought he did he should make it, then expressing an interest in investing in Radcliffe's company. 2d 939, 949 (N.D. Ill. 2004), which held that newspaper articles published in Greek in the Greek press did not constitute disclosures to the American public. During the course of the agency's investigation, the employee was terminated and initiated a state court action, which did not include a qui tam claim. at 962-63 (quoting Davies, 930 F.2d at 1399). Because the information contained in the disclosures was insufficient to imply fraud, it did not trigger the jurisdictional bar. See DeCarlo, 937 F. Supp. at 1278. Id. 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." This case stemmed from a qui tam action under the FCA that Mark Radcliffe ("Radcliffe"), a former district sales manager for Purdue Pharma ("Purdue"), filed against Purdue, alleging that Purdue improperly labeled the drug OxyContin as having a higher pain . 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). Va. 1989). 1999). Decided: January 29, 2016. Indus. 1039, 1043-47 (S.D.N.Y. Green, 59 F.3d at 959. This action was stayed for some time at the request of the federal government, which eventually declined to intervene, along with all of the thirteen state governments named in the Complaint. Further, Radcliffe was cooperating with the government and was scheduled to be a grand jury witness. The Fourth Circuit follows a three-step approach in determining whether the public disclosure bar applies. They say it is a reflection on the decline of civility in the legal profession. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 3730(e)(4)(A); see United States ex rel. Despite the labeling of the 2001 page, I find that this is not analogous to a traditional news outlet or periodical or even a trade journal because it involves information disseminated by one company about its own products, rather than a news organization or industry group disseminating information of general or specialized interest. 1995); State ex rel. While the results of this study were not published until 1999, an abstract including the 2:1 equianalgesic ratio was published in 1996. . : 18-C-222 MSH, 18-C-233 MSH, 18-C-234 Summary judgment is appropriate only if there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. 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. at 232. 2d 569, 576 (W.D. 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. United States v. Bank of Farmington, 166 F.3d 853, 861 (7th Cir. The case previously reached the U.S. Court of Appeals for the Fourth Circuit, which refused to dismiss the case based on a lack of specific allegations because the whistleblowers still had the opportunity to amend their complaint. 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. Id. 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." See Green, 59 F.3d at 965-68; Bahrani, 183 F. Supp. Radcliff is a former sales representative and manager at Purdue, who left its employment shortly before he filed the present suit. On June 24, 2005, a conversation took place between Department of Justice attorney Barbara Wells and attorney Michael Scheininger, who represented several Purdue employees, about topics that would be discussed when those employees testified before the grand jury investigating Purdue. Specifically, they argue that, as here, where the government learned of the allegations independently and had already begun its investigation into the substance of the allegations prior to the date of the release, where the relator delayed in filing the qui tam complaint and attempted to settle with the defendants prior to doing so, and where the government ultimately chose not to intervene, enforcement of the release is appropriate. Wilson, 528 F.3d at 299. While these public disclosures do demonstrate some disagreement or debate over the appropriate equianalgesic ratio, I am not convinced that they sufficiently raise the specter of fraud. Purdue argues that, under Rumery, the circumstances present here do not implicate the public interests articulated in Green, do not outweigh the general interest in settling litigation, and, thus, support enforcement of the release to bar this qui tam suit. See id. The Agreement and General Release that Radcliffe signed contained the following language: Radcliffe then filed his qui tam Complaint on September 27, 2005. (quoting 5 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure 1297, at 590 (2d ed. In September and December of 2005, the Department of Justice contacted Purdue with electronic search terms, some of which pertained to the relative cost and potency issue. at 1512. Radcliffe also avers that. On August 2, 2005, a subpoena was issued commanding Radcliffe to appear before the grand jury. Thus, I find that these constitute public disclosures in the news media. Springfield Terminal Ry. It is unclear from Hall whether the NRC was made aware of the identity of the specific person making the allegations when it first investigated the matter. ex rel. Redactions are denoted in brackets. 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. It is important to note that the government's decision not to intervene "does not necessarily signal governmental disinterest in an action, as it is entitled to most of the proceeds even if it opts not to intervene." If a substantial public interest would be impaired, the court need not engage in the Rumery balancing test unless there is an articulated reason favoring enforcement aside from the "`interest in the settlement of litigation,'" as that "`cannot by itself outweigh a substantial public interest on the other side of the scales.'" Lack of compliance with the pleading requirements of Rule 9(b) is treated as a failure to state a claim under Rule 12(b)(6). The Newsletter Bringing the Legal System to Light. However, neither case discusses the policy implications of enforcing a release in the context of the FCA. (Reply Supp. at 233. But see United States ex rel. . (Mountcastle Decl. Longhi v. Lithium Power Techs., Inc., 481 F. Supp. Bahrani v. Conagra, Inc., 183 F. Supp. United States ex Noah Nathan v. Takeda Pharmaceuticals North America, Inc. (Information 20, United States v. Purdue Frederick Co., No. The general release executed by Radcliffe does not bar this action. . Radcliffe requests that if the Complaint is found insufficient on this ground, that he be granted leave to file an amended complaint. Auth. 763 (E.D. Ramseyer recalls receiving a telephone call from a West Virginia attorney regarding a possible qui tam suit against Purdue at some point prior to September 27, 2005. 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. J. Clin. Id. The court did not inquire into the fullness of the government's investigation. Subsequent cases have not addressed this type of argument. Davies requires that a determination be made as to whether a substantial public interest would be impaired by enforcement of the agreement. A separate order will be entered herewith. Taken together, these disclosures reveal disagreement in the scientific community, but do not raise an inference of fraud. The government's investigation continued and on December 5, 2005, AUSA Mountcastle moved to stay Radcliffe's qui tam suit pending the government's ongoing investigation. Further, such a rule would mean that the enforceability of the release would be uncertain until such time as the government chose whether to intervene, which would undermine the countervailing interest in settlement of litigation. Gilligan v. Medtronic, Inc., 403 F.3d 386, 389 (6th Cir. 2002); see also Gold v. Morrison-Knudsen Co., 68 F.3d 1475, 1476-77 (2d Cir. at 1043-46. For the reasons stated, the Motion to Dismiss will be denied in part and granted in part, with leave to amend. Ten years ago, Mark Radcliffea former district sales manager for Purdue Pharma ("Purdue")filed a qui tam action under the FCA against Purdue. at 817. Virginia, Abingdon Division. It has been noted that "[c]ourts have applied Rumery to a broad spectrum of pre- and post-filing releases of qui tam claims entered into without the United States' knowledge or consent." Radcliff is a former sales representative and manager at Purdue, who left its employment shortly before he filed the present suit. (Information 20, United States v. Purdue Frederick Co., supra.) 2d at 1277. at 969. at 966. 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. 2010), the district court dismissed . 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]. Radcliffe v. Purdue Pharma, L.P., 562 U.S. 977 (2010), his wife Angela decided to "take up . Mot. Purdue Pharma L.P., et al., Civil Action Nos. However, to the extent that Radcliffe actually did base his qui tam allegations on these articles, these will be considered public disclosures in the news media. the plaintiff-relator, mark radcliffe ("radcliffe"), filed a qui tam suit in the united states district court for the western district of virginia alleging that his former employer, purdue pharma, l.p. ("purdue"), defrauded the government by marketing its pain-relief drug, oxycontin, as a cheaper alternative to the drug it replaced, ms contin, 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. Purdue cites Gebert, 260 F.3d 909, in which the government did not investigate until after the filing of the qui tam complaint and the court ultimately chose to enforce the release. He also refers to, but does not cite, a single-dose study supporting the 2:1 ratio that he was told about by his supervisors at Purdue. Months later, the former employee filed a qui tam complaint in federal court. Contract Educ. 2d at 774. 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. As noted, Angela Radcliffe is Mark Radcliffe's wife; Steven May was formerly a sales representative for Purdue under Mark Radcliffe's supervision. Of course, it is plausible that a physician would be so induced by false representations concerning OxyContin's relative potency to write a prescription, ultimately paid for by the government. 2016) Annotate this Case Justia Opinion Summary Relators filed a qui tam action under the False Claims Act (FCA), 31 U.S.C. Mark Radcliffe, 60, of Shady Spring, was convicted in October 2016 of conspiracy to tamper with a witness following a three-day jury trial. The two are represented by the same two attorneys who represented Mark Hurt and Roop. Defs.' Id. Id. formerly a sales representative for Purdue under Mark Radcliffe's supervision. Congress deemed this necessary because of reluctance on the part of insiders to come forward with relevant knowledge of fraud as well as federal enforcement agencies' relative lack of resources to investigate and prosecute allegations of fraud, leaving some potentially significant cases unaddressed. Gilligan, 403 F.3d at 389; see also Springfield, 14 F.3d at 655; United States ex rel. Under 3730(e)(4), an action is properly dismissed for lack of subject matter jurisdiction only if there was a public disclosure on which the relator's allegations were based and that relator is not an original source. L E Corp. v. Days Inns of Am., Inc., 992 F.2d 55, 58 (4th Cir. Id. It was dismissed for failure. Green v. Serv. Mark Radcliffe, 59, of Shady Spring, was convicted following a three-day jury trial. They allege Purdue Pharma misrepresented the potency of OxyContin when marketing it to doctors. Later, in Hall, the Ninth Circuit carved out an exception to the general rule against enforcing pre-filing releases to bar subsequent qui tam suits: where the government has full knowledge of the allegations and an opportunity to investigate these prior to the release, the release will be enforceable and will bar a later qui tam suit. 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