First Circuit affirms dismissal of pharma whistleblower case on first-to-file grounds

by Ben Vernia | May 1st, 2014

On April 30, the Court of Appeals for the First Circuit, in U.S. ex rel. Wilson v. Bristol-Myers Squibb, Inc., affirmed the dismissal of a whistleblower’s case against the pharma giant on the grounds that the relator’s allegations had been the subject of a prior qui tam case, and was therefore barred by the False Claims Act’s first-to-file rule, 31 U.S.C. 3730(b)(5).

The government had investigated and settled other allegations, but the settlement specifically reserved the relator’s right to pursue certain off-label promotion and kickback charges against Bristol-Myers Squibb for three drugs. The district court dismissed his allegations concerning one of the drugs on the grounds that his complaint lacked particularity, and the relator did not appeal this ruling. (One previously filed qui tam had alleged that BMS paid kickbacks – like the relator’s complaint – but the relator had withdrawn those allegations.)

As to the two remaining drugs, a separate, previous qui tam relator had alleged BMS’s nationwide off-label promotion using means similar to those described in case of the relator/appellant.

After noting that the test in the First Circuit is whether the first-filed case states the “essential facts” or the “same elements of fraud” of the later-filed action, the Court stated that the bar applied “even if that claim incorporates somewhat different details.” (quoting U.S. ex rel. Duxbury v. Ortho Biotech Prods., 579 F.3d 13 (1st Cir. 2009).

In the case before the Court, it wrote, the cases overlapped in four areas: the same defendants; the same drugs; the assertion of a nationwide scheme; and the allegations of specific mechanisms of promotion. The cases differed only with respect to the specific off-label uses the company was alleged to have promoted, the Court concluded, holding:

While the results of the essential facts test must vary with the facts of each case, those differences are not enough to reasonably conclude the earlier Richardson Complaint was not a related claim to the government based on the facts. Whether the first complaint results in their being an actual government investigation and whether any such investigation extends to offlabel uses to treat different diseases is not the point.

The relator’s contrary proposed reading of the provision, the Court concluded, would transform its “essential facts” test into one of “identical facts.”

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