Third Circuit affirms pharmaceutical whistleblower suit dismissal on public disclosure grounds

by Ben Vernia | February 8th, 2010

In an unpublished decision on February 2, the Third Circuit Court of Appeals upheld a New Jersey District Judge’s dismissal of a declined qui tam suit. In the case, the relator alleged that Organon, Inc., concealed side effects of its neuromuscular agent used in surgery, Raplon, from the FDA when it sought and obtained approval for its sale. The District Court had ruled against the relator on public disclosure grounds, and also on particularity grounds under Rule 9(b).

The Third Circuit only reached the public disclosure question, concluding that the relator’s allegations of fraud in the approval of the drug were similar to allegations made publicly in personal injury lawsuits which had previously been filed against the company. The court rejected the relator’s argument that he was the first to allege fraud or false claims, reasoning that his identification of a specific legal consequence did not change the substantially similar allegations underlying both his and the prior actions. The court briefly found that the relator was not an original source of the FDA approval allegations, because he was not even employed at the company when it sought and obtained FDA’s permission to market the drug.

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