Eleventh Circuit affirms dismissal, denial of leave to amend in vaccine qui tam suit

by Ben Vernia | June 16th, 2011

On June 9, in an unpublished decision in U.S. ex rel. Lowry v. Walgreen Co., the Eleventh Circuit Court of Appeals affirmed the Middle District of Florida’s decisions to dismiss a whistleblower’s case and to deny leave to file a third amended complaint. The Court wrote in conclusion:

The district court did not err in dismissing Lowry’s action and denying him leave to file a third amended complaint. . . . First, Lowry’s second amended complaint failed to state a claim because it cited a regulation governing Medicaid reimbursements while alleging that Walgreen filed fraudulent Medicare claims. Second, an amendment would have been futile because Lowry’s proposed third amended complaint also failed to state a claim under the False Claims Act. . . . The plain language of both 42 U.S.C. § 1395u(o) and 42 C.F.R. § 414.904 merely sets an upper reimbursement limit of 95% of the vaccine’s average wholesale price, and nothing in either section references a provider’s advertised price or “usual and customary charge.”

(Case citations omitted).

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