BECKLEY – 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.
On Nov. 17, Purdue Pharma alleged attorney Mark Hurt of Abingdon, Va., used information from a previous, unsuccessful whistleblower lawsuit against Purdue Pharma to file another through the plaintiff’s wife and former coworker.
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 company’s nearly $850,000 legal bill in the second case, which Berger dismissed on Oct. 31.
The motion says the whistleblowers’ attorney, Hurt, knew the two would “take up the baton” after the first FCA suit was dismissed and that the two did not have personal knowledge of the allegations of fraud they would make against Purdue, claiming they even contradicted the claims made in the complaint during their testimony.
“Indeed, Mr. Hurt drafted the core allegations not on the basis of information and facts relayed to him by Relators, but rather by using information and documents provided to him by Mark Radcliffe (the plaintiff in the first, unsuccessful case),” the motion says.
“Mr. Hurt thus acted in bad faith by bringing an action when he knew that Relators had no personal knowledge of the allegations he drafted in their name.”
Hurt’s co-counsel in the case is Beckley attorney Paul Roop. They allege Purdue Pharma misrepresented the potency of OxyContin when marketing it to doctors.
The two attorneys claim in a response that Purdue Pharma has failed to meet its burden for showing that fee-shifting is appropriate and that the judge who dismissed the earlier lawsuit ruled “at least part of the complaint passed muster,” but it fell outside of a six-year statute of limitations period.
In responding to Purdue Pharma’s allegations, the attorneys say the whistleblowers have always been upfront that their knowledge of the alleged scheme was second-hand.
“After all, they were suing Purdue, not for any injuries that they had personally suffered, but for Purdue’s fraud against the Government,” a response filed Dec. 4 says.
“Their lack of knowledge of the minutiae does not somehow render the complaint frivolous or filed in bad faith.
“(T)here is no question that counsel’s 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. Purdue’s arguments to the contrary are misleading and miss the point.”
In the conclusion of the response, the attorneys say Purdue’s allegations of bad faith and its personal attack on them are a lamentable tactic used to get an advantage in litigation. They say it is a reflection on the decline of civility in the legal profession.
“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.
Purdue Pharma is represented by John Hoblitzell III and Rebecca Betts of Kay Casto & Chaney in Charleston and Christopher Babbitt, Howard Shapiro and Charles Speth of Wilmer Cutler Pickering Hale & Dorr in Washington, D.C.
On Oct. 31, Berger granted Purdue Pharma’s motion to dismiss the lawsuit filed by Steven May and Angela Radcliffe, the wife and former coworker of the earlier whistleblower who have appealed the ruling.
“The amended complaint does not contain allegations that connect the dots for even a single alleged false claim…” Berger wrote.
Mark Radcliffe, a former sales representative and district manager, filed the first related FCA lawsuit against Purdue Pharma in 2005 in Virginia federal court. It was dismissed for failure to plead fraud with sufficient particularity.
In 2010, his wife Angela and former underling May filed their own FCA lawsuit. 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.
The two are represented by the same two attorneys who represented Mark – Hurt and Roop.
The allegations claimed Purdue Pharma marketed OxyContin with a false claim that a patient could use half as much OxyContin as MS Contin to treat the same pain.
Instead of the 2:1 ratio Purdue Pharma claimed, the actual ratio was more like 1.5:1, the whistleblowers said.
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.
The case previously reached the U.S. Court of Appeals for the Fourth Circuit, which refused to dismiss the case based on a lack of specific allegations because the whistleblowers still had the opportunity to amend their complaint.
They amended their complaint, and again Purdue Pharma asked Berger to dismiss it.
In addition to ruling the whistleblowers failed to sufficiently plead their allegations, Berger also found that their suit was barred by a rule that says whistleblowers can’t bring suit over information that has already been made public.
In this case, that information was the first FCA suit filed by Mark Radcliffe.
“A doctor relying on the 2:1 ratio would initially prescribe half as much OxyContin as MS Contin, which, according to the relators, did cost less,” Berger wrote.
“If the patient did not receive the expected pain relief, the doctor might either prescribe something else or increase the dosage. It is implausible to believe that doctors consistently used the 2:1 ratio as a starting point, prescribed significantly greater amounts as they titrated the dosage to the patients, and continued to believe OxyContin to be cost-effective based on the 2:1 ratio.
“Treating all allegations as true, patients may have received less effective pain relief, but it is far from clear that the government paid more money.”
On Nov. 17, the company moved to have the plaintiffs pay its legal fees under the fee-shifting provisions in the FCA.
That provision says the court may award reasonable attorneys fees and expenses if the court finds the lawsuit was clearly frivolous or vexatious or brought primarily for purposes of harassment.
“Relators’ claims had no objectively reasonable chance of success,” the company argues.
Purdue Pharma is seeking $849,660.55 from the whistleblowers and their attorneys.
From Legal Newsline: Reach editor John O’Brien at email@example.com.