at 966. 2d at 1277. 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. Purdue Pharma's attorneys suspected that Radcliffe was behind those threats. at 960. Contract Educ. 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. 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. Id. Radcliffe v. Purdue Pharma L.P., 600 F.3d 319, 321-22 (4th Cir. Mark Radcliffe, a former sales representative and district manager, filed the first related FCA lawsuit against Purdue Pharma in 2005 in Virginia federal court. at 1513-14. Va. 2007) (accepting plea agreements). Rost v. Pfizer, Inc., 507 F.3d 720, 733 (1st Cir. J.A. Certain sealed material has been redacted from the publicly released copy of this opinion. But that is not sufficient to meet the rigorous standard of Rule 9(b). 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. Id. at 817. Disclosures made in other public forums do not implicate the public disclosure bar. 2007). 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. 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. The court stated that the defendant "informed the [NRC] of Hall's concerns," but it does not necessarily follow that in doing so Hall was identified to the NRC. Hall involved an employer who had been accused of fraud on the government by an employee. : 18-C-222 MSH, 18-C-233 MSH, 18-C-234 However, neither case discusses the policy implications of enforcing a release in the context of the FCA. 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. Id. Va. 1989). The amended complaint does not contain allegations that connect the dots for even a single alleged false claim Berger wrote. As noted, Angela Radcliffe is Mark Radcliffe's wife; Steven May was formerly a sales representative for Purdue under Mark Radcliffe's supervision. The opinion makes no mention of what type of web page this is or whether it bears any resemblance to a traditional periodical. Mark Rad v. Purdue Pharma L.P. Filing 920100324. Mark RADCLIFFE, Plaintiffs, v. PURDUE, Court:United States District Court, W.D. Id. As a result, such a rule would reward potential defendants who encourage settlement and would impair the public interest in having relators disclose information to the government. United States ex rel. United States ex rel. Thus, the exception created by Hall provides that a release entered into after the government has full knowledge of the allegations and an opportunity to investigate will be enforced to bar a subsequent qui tam suit. United States ex rel. See id. Decided: January 29, 2016. United States District Court, W.D. He submits that each OxyContin prescription submitted to the government for reimbursement constitutes a false claim under the FCA and the analogous state statutes, because the product distributed had only half the potency that physicians and decision-makers had been led to believe it possessed. The Fourth Circuit does not have any analogous case law interpreting Rumery. Wilson, 528 F.3d at 299. They alleged these statements were made to doctors whose patients obtained prescriptions paid for by the government, creating a claim under the False Claims Act. 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. According to Scheininger, Wells mentioned several times that she wished to ask these witnesses about the dispute over the relative potency of OxyContin and MS Contin, among other topics, explaining that this related to the marketing and cost implications of the relative potencies. The employer in Green argued that because the government had ultimately become aware of the allegations and conducted its own investigation, the release would not have detrimental effects. 2016) Annotate this Case Justia Opinion Summary Relators filed a qui tam action under the False Claims Act (FCA), 31 U.S.C. & Training Trust Fund. Id. 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. Were this the rule, a relator who initially tried to settle would have no incentive to disclose the allegations to the government in lieu of settlement. 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. 582 F. Supp. Purdue cites United States ex rel. Given the vast array and varying credibility of web pages on the Internet, I am not ready to conclude that anything posted online would automatically constitute a public disclosure within the meaning of 3730(e)(4)(A). Purdue initially contended that the Complaint failed to state a claim because Radcliffe's allegations merely showed "a scientific dispute . 49.7 (Patrick D. Wall Ronald Mezack eds. Further limited discovery and briefing was allowed as to that issue. 2d. Because the information contained in the disclosures was insufficient to imply fraud, it did not trigger the jurisdictional bar. Id. 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. Further, because parties engaged in the fraud would be able to settle their claims with potential relators for significantly less than they would once the government became aware of the allegations, the FCA's deterrent effect is also lessened. Purdue objects, but I find no cognizable basis for denying Radcliffe's request. 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. 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. This implies that the government was by that point aware of the substance of allegations, but more importantly that those facets of their investigations were still ongoing, beyond the date of the release. However, this applies to public policy concerns in the interpretation of a contract rather than in a determination of its validity. Together, Purdue argues, these create an implication of fraud sufficient to put the government on notice. . United States ex rel. In holding that these disclosures did not raise the inference that company executives intentionally and fraudulently understated the pension problem or engineered the spin off in an attempt to avoid liability, the court noted that none of the disclosures imputed any bad faith or wrongdoing to the company and instead were "optimistic" about the company's future. 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." 2d at 774. Mot. Va. 2008). 1993) (quotations and citations omitted). C D.) In addition to its inclusion in OxyContin packages, the package insert is available on Purdue's publically-assessable web site. U.S. ex Rel. Longhi involved a release executed eleven days after the relator filed a qui tam complaint. Yannacopolous v. General Dynamics, 315 F. Supp. The Newsletter Bringing the Legal System to Light. Id. 3d ed. A separate order will be entered herewith. During this period or time, the government was conducting its own comprehensive investigation into Purdue's manufacturing, marketing, and distribution of OxyContin. 2007). Ga. Oct. 27, 2005) (citing DeCarlo for the opposite conclusion). Alcohol Found., Inc. v. Kalmanovitz Charitable Found., Inc., 186 F. Supp. at 821. Finally, Purdue submits that Radcliffe should have known of, and did not deny knowledge of, other studies supporting the 2:1 ratio for longer-term use. Thus, I find that these constitute public disclosures in the news media. 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." The package insert is currently posted to a section of Purdue's web page devoted to package inserts. That agency investigated and concluded that it could not substantiate the allegations. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. Radcliffe v. Purdue Pharma, L.P., 562 U.S. 977 (2010), his wife Angela decided to "take up . While the court reasoned that the enforceability of the release should be governed by federal law because it arose under federal law, the court did not address any of the public policy concerns associated with qui tam suits or the FCA. In deciding a jurisdictional challenge, the court must determine the facts based on the evidence submitted. the baton" and file the qui tam action against Purdue now before the court. Apparently Radcliffe later experienced more doubts because in 2004 he sought legal advice and in January 2005 he anonymously contacted Randy Ramseyer, an Assistant United States Attorney for the Western District of Virginia, to gauge the government's interest in a claim against Purdue. While these disclosures all reveal true information regarding the current state of the scientific debate, they do not reveal the "true" state of facts regarding the fraud alleged by the relator, that is, that Purdue used the 2:1 ratio despite knowing that it was inaccurate in order to mislead physicians and other decision-makers regarding the relative cost and potency of OxyContin. Id. 2008). 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. Both were published in scientific periodicals. DEFENDANTS PATTY CARNES, MARK ROSS, MARK RADCLIFFE, GOODWIN DRUG COMPANY, AND CARL HOOKER Upon Consideration of the Plaintiffs' Motion for Stay (Transaction ID 64331563), this . 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