United States ex rel. 4th 741, 754-55 (Cal.Ct.App. Ten years ago, Mark Radcliffe, a former district sales manager for Purdue Pharma, filed a qui tam action under the FCA against Purdue. 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. Radcliffe also avers that. CV202-189, 2005 WL 3741538, at *5 (S.D. No list was kept of the documents reviewed or flagged, but according to the declaration of one of Purdue's outside counsel these included documents about the dispute over the relative potency of OxyContin and MS Contin. See Green, 59 F.3d at 965-68; Bahrani, 183 F. Supp. Id. Id. Virginia Search this Docket Tags Get Alerts View on PACER Last Updated: Dec. 28, 2020, 6:49 a.m. EST Assigned To: James Parker Jones Referred To: Pamela M. Sargent Date Filed: Sept. 27, 2005 Date Terminated: Jan. 25, 2009 Date of Last Known Filing: June 1, 2010 The plea agreements included settlement of certain of the government's civil claims, but not of Radcliffe's qui tam suit. 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.. Purdues arguments to the contrary are misleading and miss the point.. Purdue also argues that in Hall itself the government had not completed its investigation prior to the execution of the release. With respect to the settlement attempts, it would seem counterintuitive to enforce a release to bar a subsequent qui tam suit, thus foreclosing the relator's ability to prosecute on behalf of the government, to punish that relator for trying to settle instead of filing suit in the first place. Ohio Dec. 29, 2006), for the proposition that publication on the Internet constitutes a public disclosure under 3730(e)(4)(A). Beginning in 2002 and continuing for the next several years, the government sought millions of documents from Purdue and conducted hundreds of interviews, some of which pertained to the relative potency and cost of OxyContin and MS Contin. at 1512-13. As to the defense that Radcliffe had released Purdue from the claims, I decided to treat the Motion to Dismiss as one for summary judgment in accord with Federal Rule of Civil Procedure 12(d). at 963-64. Here, it appears that the government did learn of the substance of Radcliffe's allegations independently and was interested enough in them to request documents pertaining to and question various Purdue employees about the relative cost and potency issue. The government began a lengthy investigation after the execution of the release and ultimately chose to intervene. Finally, Purdue argues that the OxyContin package insert is a public disclosure, either in the news media or from an administrative investigation. The public interest in Radcliffe maintaining the ability to supplement federal enforcement of the FCA by prosecuting these allegations on behalf of the government remains. . McLean v. County of Santa Clara, No. 09-1202 (4th Cir. He attached to the complaint at least one document already in the government's possession: an "Answer Guide" used to train sales representatives, which urged them to emphasize OxyContin's higher potency and lower cost compared to MS Contin. Mark T. Hurt, Abingdon, VA, and Paul W. Roop, II, Beckley, WV, for Mark Radcliffe. Purdue does not claim definitively that Radcliffe actually knew of or relied on the particular scientific articles it cites. However, the decision to enforce the release turned on the fact that the release occurred "in the context of a bankruptcy proceeding, not through a general, independent release of a claim for money." 2008). Servs., 260 F.3d 909, 916 (8th Cir. One of their attorneys is Mark Radcliffe v. Purdue Pharma, L.P., 562 U.S. 977 (2010), his wife Angela decided to "take up . Id. He alleged a fraudulent scheme whereby Purdue marketed However, it is also clear from the evidence that the government continued to seek such information after the release had been executed on August 1, 2005. 49.7 (Patrick D. Wall Ronald Mezack eds. Longhi v. Lithium Power Techs., Inc., 481 F. Supp. On September 18 2014 Defendants hereinafter Purdue filed.20141009i18 Radcliff is a former sales representative and manager at Purdue, who left its employment shortly before he filed the present suit. 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. On June 23, 2005, the government requested that Purdue identify the author and source of different versions of a document [Redacted] already in the government's possession, [Redacted]. 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. The district court determined that between 1996 and 2005 Radcliffe, on behalf of Purdue, marketed "OxyContin, The final and perhaps the most difficult issue is whether the public disclosure reveals "allegations or, Full title:UNITED STATES, et al., ex rel. In Rabushka, a shareholder filed suit alleging that his conversations with company executives demonstrate that they fraudulently understated unfunded pension liability and spun off one of the company's components in order to shift responsibility for the pensions to another entity. 2d 1158, 1164-65 (N.D. Ill. 2007). In this action brought under the qui tam provisions of the False Claims Act ("FCA"), 31 U.S.C.A. He submits that each OxyContin prescription submitted to the government for reimbursement constitutes a false claim under the FCA and the analogous state statutes, because the product distributed had only half the potency that physicians and decision-makers had been led to believe it possessed. However, after the employee raised these concerns, the employer contacted the regulatory agency involved and apprised them of the allegations. at 963. In his Complaint, Radcliffe alleges that Purdue "encouraged physicians to write prescriptions that were paid by Medicaid and other government programs for OxyContin that was materially less potent . Purdue Pharma L. P. et al, No. The opinion makes no mention of what type of web page this is or whether it bears any resemblance to a traditional periodical. 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. United States v. Bank of Farmington, 166 F.3d 853, 861 (7th Cir. He was not asked about the relative cost or potency of OxyContin and MS Contin, nor was he asked about the equianalgesic ratio of these two drugs. Several of these physicians directed Radcliffe to specific sources in the scientific literature to show that the correct equianalgesic ratio between MS Contin and OxyContin was closer to 1:1, meaning that OxyContin was less potent and more expensive than Purdue claimed. On Nov. 17, the company moved to have the plaintiffs pay its legal fees under the fee-shifting provisions in the FCA. These terms included those related to the issues of relative potency and cost, as well as those that seem more related to the potential for abuse or the effects of withdrawal. 30.) at 962-63 (quoting Davies, 930 F.2d at 1399). Gilligan v. Medtronic, Inc., 403 F.3d 386, 389 (6th Cir. Given the vast array and varying credibility of web pages on the Internet, I am not ready to conclude that anything posted online would automatically constitute a public disclosure within the meaning of 3730(e)(4)(A). dismissing complaint because it did "not describe even a single instance in which a physician was influenced to prescribe [the drug] based on [the defendant's] misrepresentations, and where a claim was made by the pharmacist to the government". 1187, 94 L.Ed.2d 405 (1987), that "`a promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement.'" Radcliffe was a district sales manager for Purdue, laid off as part of a reduction in force in June 2005. formerly a sales representative for Purdue under Mark Radcliffe's supervision. Were this the rule, a relator who initially tried to settle would have no incentive to disclose the allegations to the government in lieu of settlement. The final settlement in the criminal case did not contain any reference to the relative cost and potency issue and did not purport to settle Radcliffe's suit. (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. Likewise, the public interest in using qui tam suits to supplement federal enforcement of the FCA was not disturbed as the government had already investigated the allegations prior to the release. Matsushita Elec. Purdue Pharma, L.P. (1:05-cv-00089) District Court, W.D. HOPE Clinic Manager Mark Radcliffe, a former Purdue Pharma district sales manager, says drug seekers have made it hard for law-abiding citizens to get relief from pain. Id. It is important to note that the government's decision not to intervene "does not necessarily signal governmental disinterest in an action, as it is entitled to most of the proceeds even if it opts not to intervene." 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. C2 (Feb. 1992) ("Clinical Practice Guideline"); United States Pharmacopeia-Dispensing Information 2238 tbl. Id. 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, Because the public disclosure bar involves the jurisdiction of the court, it must be determined first, before proceeding to any other questions. 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. Id. Joining her as a relator is Steven May, a former Purdue employee who worked under Mr. Radcliffe. 1999). Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. As in Green, the Ninth Circuit in Hall relied on the Rumery test, but concluded that the concerns that weighed against enforcement in Green were not present. Bahrani v. Conagra, Inc., 183 F. Supp. 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. Virginia, Abingdon Division, declining to conclude that anything posted online would automaticallyconstitute a public disclosure. (Information 20, United States v. Purdue Frederick Co., No. I am troubled by the fact that Radcliffe's behavior, in waiting until the Department of Justice had already begun a criminal investigation into other allegations of marketing fraud committed by Purdue, before filing his qui tam action, suggests that he is an opportunistic relator. Because of the potential in this area for state law to impair federal rights, the possibility of forum-shopping, and the unlikeness that uniform federal rule would disrupt commercial relationships predicated on state law, the Ninth Circuit chose to craft a uniform federal rule, rather than apply state law. Id. However, to the extent that Radcliffe actually did base his qui tam allegations on these articles, these will be considered public disclosures in the news media. the baton" and file the qui tam action against Purdue now before the court. The state court action resulted in a settlement and general release, which was executed more than a year after the agency had completed its investigation. Following Radcliffe's execution of the general release on August 1, 2005, the government's investigation continued. (quoting 5 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure 1297, at 590 (2d ed. 1995), and United States ex rel Hall v. Teledyne Wah Chang Albany, 104 F.3d 230 (9th Cir. United States ex rel. Hall involved an employer who had been accused of fraud on the government by an employee. The circumstances here fall within the general rule articulated in Green that pre-filing releases are unenforceable to bar subsequent qui tam actions, rather than the Hall exception, because the government had not fully investigated the substance of Radcliffe's allegations. Bahrani, 183 F. Supp. ( Id. Lack of compliance with the pleading requirements of Rule 9(b) is treated as a failure to state a claim under Rule 12(b)(6). 458 (S.D.N.Y. The Ninth Circuit reversed, holding that a pre-filing release entered into without the government's knowledge or consent is not enforceable to bar a subsequent qui tam action because that would impair a substantial public policy. 2d 569, 576 (W.D. After the action was filed, the United States investigated the qui tam relator's allegations, but ultimately chose not to intervene. Although the 2001 posting of the OxyContin package insert could be considered either a corporate report or a press release, because it was posted on a web page entitled "News What's New" and because other items on the page resemble press releases, I will consider the OxyContin package insert a public disclosure in the news media. Because the information contained in the disclosures was insufficient to imply fraud, it did not trigger the jurisdictional bar. The court stated that the defendant "informed the [NRC] of Hall's concerns," but it does not necessarily follow that in doing so Hall was identified to the NRC. Id. Green, 59 F.3d at 959. 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." 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. 2d at 774. & Training Trust Fund. In doing so, the court relied on the test set forth in Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. Mark Rad v. Purdue Pharma L.P. Filing 920100324 Download PDF . (Reply Supp. Purdue contends that, under Hall, enforcement of a release to bar a subsequent qui tam action is appropriate even if the government has not completed its investigation. While corporate reports have been held insufficient to implicate the jurisdictional bar of 3730(e)(4)(A), Rabushka, 40 F.3d at 1514 n. 2, press releases have been deemed public disclosures within the meaning of the statute, United States ex rel. 2002); see also Gold v. Morrison-Knudsen Co., 68 F.3d 1475, 1476-77 (2d Cir. Together, Purdue argues, these create an implication of fraud sufficient to put the government on notice. Id. The Fourth Circuit follows a three-step approach in determining whether the public disclosure bar applies. Wilson v. Graham County Soil Water Conservation Dist., 528 F.3d 292, 309 (4th Cir. Based on the evidence in the present case, it is clear that the government was aware of the substance of Radcliffe's allegations and had begun, but not completed, its investigation of these allegations as of the date of the release. Id. In such cases, I can hardly think that the mere fact of a government investigation would negate the public interest in having a private citizen shoulder the burden of prosecution that would allow the government to recover monies lost through fraud. Id. The Newsletter Bringing the Legal System to Light. Further, the public policy concerns raised by Purdue do not alter the relative balance of public interests under the Rumery test. The facts surrounding this defense have been developed in the summary judgment record. Purdue cites United States ex rel. On August 1, 2005, Radcliffe executed a general release as part of . (Mountcastle Decl. If a substantial public interest would be impaired, the court need not engage in the Rumery balancing test unless there is an articulated reason favoring enforcement aside from the "`interest in the settlement of litigation,'" as that "`cannot by itself outweigh a substantial public interest on the other side of the scales.'" 2007). Purdue objects, but I find no cognizable basis for denying Radcliffe's request. Apparently Radcliffe later experienced more doubts because in 2004 he sought legal advice and in January 2005 he anonymously contacted Randy Ramseyer, an Assistant United States Attorney for the Western District of Virginia, to gauge the government's interest in a claim against Purdue. Id. The court did not inquire into the fullness of the government's investigation. Enforcement of a release to bar a subsequent qui tam suit implicates several articulated public interests. Further, Radcliffe was cooperating with the government and was scheduled to be a grand jury witness. 1999); Rabushka, 40 F.3d at 1514. Ga. Oct. 27, 2005) (citing DeCarlo for the opposite conclusion). Ramseyer recalls receiving a telephone call from a West Virginia attorney regarding a possible qui tam suit against Purdue at some point prior to September 27, 2005. 56(e)). The parties have been provided with the sealed copy. Rabushka v. Crane Co., 40 F.3d 1509, 1512-14 (8th Cir. For these reasons, I find that this court his subject matter jurisdiction over the Complaint. In his employment with Purdue between 1996 and 2005, Radcliffe was responsible for marketing OxyContin to individual physicians and became familiar with Purdue's marketing claims about OxyContin's relative cost and potency, including the claim that there is a 2:1 equianelgesic ratio between OxyContin and MS Contin. Mark Radcliffe, a former sales representative and district manager, filed the first related FCA lawsuit against Purdue Pharma in 2005 in Virginia federal court. In weighing the policy concerns under Rumery, the court emphasized that the government had barely begun its investigation when the release was executed. After the qui tam suit was initiated, the NRC revisited its prior investigation and reached the same conclusions. 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. Purdue Pharma L.P., et al., Civil Action Nos. Co. v. Quinn, 14 F.3d 645, 654-55 (D.C. Cir. This implies that the government was by that point aware of the substance of allegations, but more importantly that those facets of their investigations were still ongoing, beyond the date of the release. Finally, Purdue submits that Radcliffe should have known of, and did not deny knowledge of, other studies supporting the 2:1 ratio for longer-term use. 3729-3733 (West 2003 & Supp.2008), and analogous state statutes, the relator Mark Radcliffe alleges that the defendants, Purdue Pharma, L.P. and Purdue Pharma, Inc. (collectively, "Purdue"), misrepresented to physicians the relative potency of . Instead of the 2:1 ratio Purdue Pharma claimed, the actual ratio was more like 1.5:1, the whistleblowers said. Once the moving party has met its burden, "the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Radcliffe v. Purdue Pharma L.P., 600 F.3d 319, 321-22 (4th Cir. Id. If so, was the qui tam action based on the public disclosure? (f)(2).) Dismiss 20.) Bahrani, 183 F. Supp. The general release executed by Radcliffe does not bar this action. They amended their complaint, and again Purdue Pharma asked Berger to dismiss it. Hall, 104 F.3d at 231. Purdue urges the court to consider pre- Green cases Virginia Impression Products Co. v. SCM Corp., 448 F.2d 262 (4th Cir. Grayson v. Pac. United States ex rel. Will be used in accordance with our terms of service & privacy policy. Radcliffe signed a general release of all claims against Purdue in exchange for an enhanced severance package. However, neither case discusses the policy implications of enforcing a release in the context of the FCA. Purdue Pharma's attorneys suspected that Radcliffe was behind those threats. at 231-32. "); Longhi, 481 F. Supp. The case was stayed for over a year and a half until the government declined to intervene on May 8, 2007. 2d at 820 ("If there is a dividing line to be found between Hall and Green, it is the fullness of the government's investigation, not the timing of the release."). 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. In this action brought under the qui tam provisions of the False Claims Act ("FCA"), 31 U.S.C.A. 2548, 91 L.Ed.2d 265 (1986). Mot. Supp. Finally, the government's decision not to intervene in this suit, announced on May 8, 2007, should not be a basis for enforcement of the release. 2006). (Information 20, United States v. Purdue Frederick Co., supra.) He relies on United States ex rel. These include the public interest in having relators disclose inside information of alleged fraud to the government, in having relators supplement federal enforcement of the FCA by assisting the government in its investigation and prosecution or prosecuting the claim itself, and in deterring future fraud against the government. 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. In this case, that information was the first FCA suit filed by Mark Radcliffe. 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. during the depositions of Mark and Angela Radcliffe and Steven May respecting commu nications between Relators and Mark Radcliffe and Relators and their attorneys with Mark . All of the issues are now ripe for decision and will be discussed sertiam. It is undisputed that Radcliffe did not disclose the nature of his qui tam allegations to the government prior to the filing of his Complaint. Although antitrust cases are similar to qui tam suits in that the government relies on the enforcement efforts of private parties, the policy implications and economic incentives differ. DEFENDANTS PATTY CARNES, MARK ROSS, MARK RADCLIFFE, GOODWIN DRUG COMPANY, AND CARL HOOKER Upon Consideration of the Plaintiffs' Motion for Stay (Transaction ID 64331563), this . During this period . at 956-57. However, that is not the situation before me. Radcliffe v. Purdue Pharma, L.P., 562 U.S. 977 (2010), his wife Angela decided to "take up . During the course of the agency's investigation, the employee was terminated and initiated a state court action, which did not include a qui tam claim. (Mem. Certain sealed material has been redacted from the publicly released copy of this opinion. While the results of this study were not published until 1999, an abstract including the 2:1 equianalgesic ratio was published in 1996. Reply to Resp. Dismiss 11.) It was dismissed for failure to plead fraud with sufficient particularity. Their lack of knowledge of the minutiae does not somehow render the complaint frivolous or filed in bad faith. 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. With respect to Radcliffe's delay in filing his qui tam suit, I agree that this does weigh in favor of enforcement as a means to encourage relators to file quickly and disclose their allegations to the government as soon as possible. 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. 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 . 1993) (quotations and citations omitted). I agree. It was dismissed for failure. 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. 5 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure 1297, at 590 ( Cir... Enforcement of a release in the news media or from an administrative investigation v.,... Put the government on notice `` Clinical Practice Guideline '' ) ; also. Rabushka, 40 F.3d 1509 mark radcliffe purdue pharma 1512-14 ( 8th Cir Paul W. Roop, II Beckley. Was executed & quot ; and file the qui tam suit implicates several articulated public interests no basis! Been accused of fraud on the particular scientific articles it cites had barely its. 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