2548, 91 L.Ed.2d 265 (1986). Further limited discovery and briefing was allowed as to that issue. 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. However, he states that no details of the alleged misconduct were given and the attorney did not identify the name of his client. The allegation is contained in a motion asking U.S. District Judge Irene Berger, of the Southern District of West Virginia, to force the plaintiffs and their attorneys to pay the companys nearly $850,000 legal bill in the second case, which Berger dismissed on Oct. 31. Ten years ago, Mark Radcliffe, a former district sales manager for Purdue Pharma, filed a qui tam action under the FCA against Purdue. Id. Mot. For convenience, references herein to the "Complaint" shall include the most recent version. 1994). 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. The amended complaint does not contain allegations that connect the dots for even a single alleged false claim Berger wrote. (Defs.' In weighing the policy concerns under Rumery, the court emphasized that the government had barely begun its investigation when the release was executed. Specifically, he alleged that Purdue fraudulently marketed OxyContin using the 2:1 equianalgesic ratio, thus claiming that its relative cost was less than that of MS Contin. DeCarlo v. Kiewit/AFC Enters., Inc., 937 F. Supp. Pharmacol. Wilson, 528 F.3d at 300-01 (alternations and internal quotations omitted); see Eberhardt v. Integrated Design Constr., Inc., 167 F.3d 861, 870 (4th Cir. Purdue Pharma, L.P. (1:05-cv-00089) District Court, W.D. Ohio Dec. 29, 2006), for the proposition that publication on the Internet constitutes a public disclosure under 3730(e)(4)(A). 2002); see also Gold v. Morrison-Knudsen Co., 68 F.3d 1475, 1476-77 (2d Cir. As noted, Angela Radcliffe is Mark Radcliffe's wife; Steven May was formerly a sales representative for Purdue under Mark Radcliffe's supervision. For the reasons stated, the Motion to Dismiss will be denied in part and granted in part, with leave to amend. Joining her as a relator is Steven May, a former Purdue employee who worked under Mr. Radcliffe. Enforcement of a release to bar a subsequent qui tam suit implicates several articulated public interests. Id. 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. According to Assistant United States Attorney Rick A. Mountcastle, "one area of investigation concern[ed] whether Purdue falsely marketed OxyContin as being twice as potent as morphine and, accordingly, less expensive than MSContin." 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. While the issue of whether a general release is enforceable to bar a subsequent qui tam action has not been addressed by the Fourth Circuit, the framework established by the Ninth Circuit in United States ex rel Green v. Northrop Corp., 59 F.3d 953 (9th Cir. They allege Purdue Pharma misrepresented the potency of OxyContin when marketing it to doctors. Radcliffe was interviewed a second time in September 2006 and asked about the misleading promotion of OxyContin. Mr. Kennedy v. Aventis Pharms., Inc., 512 F. Supp. Purdue initially contended that the Complaint failed to state a claim because Radcliffe's allegations merely showed "a scientific dispute . See Fed.R.Civ.P. A separate order will be entered herewith. 49.7 (Patrick D. Wall Ronald Mezack eds. Green, 59 F.3d at 959. Instead of the 2:1 ratio Purdue Pharma claimed, the actual ratio was more like 1.5:1, the whistleblowers said. Bell Tel. This furthers the public interests in encouraging a potential relator to disclose his allegations to the government as quickly as possible, before the government has an opportunity to discover the alleged wrongdoing through other means. Accordingly, I do not address Purdue's second argument that the package insert is a public disclosure from an administrative investigation. and as a result, generally more expensive than the OxyContin that was described in [Purdue's] marketing pitch to the same physicians." During this period . 1999). at 965-66. I think it is sufficient under Hall that the government know of the substance of the allegations. 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, the public policy concerns raised by Purdue do not alter the relative balance of public interests under the Rumery test. Angela said her knowledge of the alleged fraud came from conversations with her husband, while May alleged some of his knowledge came from conversations with Mark and some came from observations during his own employment. After the present qui tam suit was stayed, the government's investigation continued. 1994); United States ex rel. Purdue objects, but I find no cognizable basis for denying Radcliffe's request. CV202-189, 2005 WL 3741538, at *5 (S.D. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 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. One of their attorneys is Mark BECKLEY, W.Va. (Legal Newsline) In demanding two whistleblowers in what it feels was a frivolous lawsuit pay its legal fees, the maker of the painkiller OxyContin says a Virginia attorney supplied the information that the two were blowing the whistle on. Accordingly, I find that under these circumstances, enforcement of the release would undermine important public interests associated with the FCA, as well as the countervailing interest in settling litigation. United States ex rel. (Mountcastle Decl. 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. The package insert recommends a starting conversion rate between OxyContin and MS Contin of 2:1, which can be reassessed based on a patient's reaction to the dosage. 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. 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." The plaintiff has the burden of showing that the court has subject matter jurisdiction. Protected by Google ReCAPTCHA. United States v. Bank of Farmington, 166 F.3d 853, 861 (7th Cir. Id. and, accordingly, less expensive than MSContin" and the accuracy of "the 2:1 comparison of OxyContin to MSContin." Months later, the former employee filed a qui tam complaint in federal court. 2d at 1278. . He was also told that Purdue's decision to rely on the 2:1 ratio, despite published articles indicating that the 1:1 ratio was more appropriate for OxyContin's approved use, was based on safety concerns, that is, it was better for doctors to start with a lower dose and adjust upward if necessary. (c) and (f)(2)). See United States ex rel. 2:04 CV 053, 2006 WL 3834407, at *3 (S.D. However, the government ultimately took its investigation in a different direction, focusing on the misbranding of OxyContin as "less addictive, less subject to abuse and diversion, and less likely to cause tolerance and withdrawal than other pain medications." After carefully considering the arguments of the parties, I hold that the Complaint does not adequately state a claim for fraud under Rule 9(b). While the results of this study were not published until 1999, an abstract including the 2:1 equianalgesic ratio was published in 1996. United States of America, et al. Defs.' 2d 1158, 1164-65 (N.D. Ill. 2007). at 1277-78. J.A. Following Radcliffe's execution of the general release on August 1, 2005, the government's investigation continued. Id. CIV.A. Grayson v. Pac. In these somewhat rambling and incoherent emails, he warned Purdue that he was considering a qui tam suit, detailed his allegations, and offered to settle in exchange for an investment by Purdue in a project he was contemplating. Purdue cites United States ex rel. (f)(2).) (T)here is no question that counsels pre-filing knowledge and investigations are imputed to his clients on the issue of whether there is a good-faith, non-frivolous basis for the allegations in a complaint. 2010). 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, 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. The "John Femaledeer" emails indicate that Radcliffe did try to settle his claims with Purdue, but later retracted this offer after being told by an attorney that qui tam claims could not be settled without the government's consent. at 1047. Decided: January 29, 2016. The Fourth Circuit agreed that the district court did not have jurisdiction over the claims and affirmed. Because of my disposition of the case, I do not reach Purdue's arguments that some of the claims may be barred by the applicable statute of limitations or that some of state causes of action are procedurally barred. The stay was lifted in late 2006, and the government chose not to intervene on May 8, 2007. Id. Id. Radcliffe v. Purdue Pharma L.P., 582 F. Supp. Radcliff is a former sales representative and manager at Purdue, who left its employment shortly before he filed the present suit. 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. See Agency for Health Care Policy Research, Public Health Serv., U.S. Dept. For instance, this web page could be affiliated with a news publication and, as such, would be updated regularly and would disseminate information to the public in a periodic manner. Nathan v. Takeda Pharmaceuticals N.A. All reasonable inferences are "viewed in the light most favorable to the party opposing the motion." Springfield Terminal Ry. 4th 741, 754-55 (Cal.Ct.App. at 1512-13. 1994) ("Textbook of Pain"). Purdue then filed the present Motion to Dismiss, seeking a dismissal on the grounds that Radcliffe's claims are based on publicly disclosed information rather than information he discovered; that Radcliffe has released Purdue from the claims; and that the Complaint fails to adequately allege fraud as required by Federal Rule of Civil Procedure 9(b). Id. at 963-64. All of the issues are now ripe for decision and will be discussed sertiam. 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. (Information 20, United States v. Purdue Frederick Co., supra.) 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. BECKLEY, W.Va. - A Raleigh County man was sentenced today to five years in federal prison and ordered to pay a $25,000 fine for a witness tampering crime, announced United States Attorney Carol Casto. Relator is Steven May, a former Purdue employee who worked under Mr. Radcliffe for denying Radcliffe 's execution the! ( 2 ) ) U.S. Dept 1475, 1476-77 ( 2d Cir v. Aventis Pharms., Inc., 937 Supp... Concerns raised by Purdue do not address Purdue 's second argument that the package insert is a disclosure... Misleading promotion of OxyContin when marketing it to doctors, 2006 WL 3834407, at * 5 S.D. V. Kiewit/AFC Enters., Inc., 937 F. Supp ) ) decision and will be in!, 861 ( 7th Cir 475 U.S. 574, 587, 106 S.Ct, 2006 WL 3834407, at 5! Enforcement of a release to bar a subsequent qui tam Complaint in federal court results of this study not. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106.. 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