Both were published in scientific periodicals. 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. 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.'" I agree. 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. Springfield Terminal Ry. Because of my disposition of the case, I do not reach Purdue's arguments that some of the claims may be barred by the applicable statute of limitations or that some of state causes of action are procedurally barred. Purdue Pharma L. P. et al, No. Id. Radcliffe has amended his Complaint three times since it was originally filed, so that Purdue's Motion to Dismiss actually relates to the Third Amended Complaint filed June 5, 2007. Mark Rad v. Purdue Pharma L.P. Filing 920100324 Download PDF . Davies requires that a determination be made as to whether a substantial public interest would be impaired by enforcement of the agreement. 481 F. Supp. United States ex rel. Congress deemed this necessary because of reluctance on the part of insiders to come forward with relevant knowledge of fraud as well as federal enforcement agencies' relative lack of resources to investigate and prosecute allegations of fraud, leaving some potentially significant cases unaddressed. School escapes liability for sex abuse by teacher, Walmart launches Constitutional attack on Lina Khan's FTC, Firefighters fired over penises drawn on Black colleague's family pictures lose lawsuit, Lawsuit targets Panera's Sip Club, complains refills have restrictions, Judge stops 3M's plan to handle massive earplug litigation. The plea agreements included settlement of certain of the government's civil claims, but not of Radcliffe's qui tam suit. If not, then the court balances "all the factors that bear on whether `the public interest in enforcement of the agreement outweigh the policies furthered by non-enforcement.'" Purdue cites United States ex rel. The parties have been provided with the sealed copy. On September 18 2014 Defendants hereinafter Purdue filed.20141009i18 . (Mem. 2006). Id. In his job marketing OxyContin to physicians, the relator Radcliffe became familiar with claims made by Purdue about the medication's relative cost and potency. 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. See id. at 963. Mot. Under 3730(e)(4), an action is properly dismissed for lack of subject matter jurisdiction only if there was a public disclosure on which the relator's allegations were based and that relator is not an original source. To determine whether the circumstances of a case fall within the general rule articulated in Green or the exception in Hall, the critical issue is the completeness of the government's knowledge or the fullness of its investigation. at 962-63 (quoting Davies, 930 F.2d at 1399). While the results of this study were not published until 1999, an abstract including the 2:1 equianalgesic ratio was published in 1996. ex rel. Bahrani, 183 F. Supp. (c) and (f)(2)). Rabushka v. Crane Co., 40 F.3d 1509, 1512-14 (8th Cir. To the extent that Radcliffe derived the allegations in his Complaint from either of these sources, these will be considered public disclosures in the news media. Id. Taken together, these disclosures reveal disagreement in the scientific community, but do not raise an inference of fraud. at 1278. Make your practice more effective and efficient with Casetexts legal research suite. of Pittsburgh, 186 F.3d 376, 385 (3d Cir. 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). United States ex rel. The court found no statutory or policy reasons to prevent enforcement of the release. 2d. 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. CIV.A. 2008). (Third Am. He later retracted that offer after being informed by a lawyer that he could not settle a qui tam suit. Modification of these search terms occurred in December, 2005. 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, A separate order will be entered herewith. Yannacopolous v. General Dynamics, 315 F. Supp. This rule would also make the enforcability of such a release dependant on the government's intervention decision and may discourage some potential relators from initiating qui tam suits in the first place, leaving some allegations undisclosed. at 821. Purdue Pharma L.P., No. Enforcing a release in this situation would deprive the public of a potential relator to enforce the FCA and recover monies for the government treasury. 3d ed. Mark Radcliffe v. Purdue Pharma L.P.; Purdue Pharma, Inc. 1 In a decision issued on March 24, 2010, the United States Court of Appeals for the Fourth Circuit concluded that a general release may bar a subsequent qui tam action if the allegations of fraud had been sufficiently disclosed to the government prior to the filing of the qui tam lawsuit. 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. Va. 1989). Id. Joining her as a relator is Steven May, a former Purdue employee who worked under Mr. Radcliffe. Finally, if the action was based on the public disclosure, was the relator an original source? 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. The parties argue over whether Hall requires that the government know of the substance of the allegations (that is, the alleged wrongdoing itself) or whether the government must know of the actual allegations made by the relator (that is, the fact that the relator has alleged such wrongdoing). 2d 815, 818 (S.D. Pharmacol. Unsealing the Complaint or allowing the suit to proceed would make a portion of the grand jury's pending investigation public. 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 plaintiffs wife and former coworker. of Health Human Servs., Clinical Practice Guideline: Acute Pain Management: Operative or Medical Procedures and Trauma, app. 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). the baton" and file the qui tam action against Purdue now before the court. In this qui tam action, the defendants have moved to dismiss on several grounds, including the jurisdictional bar based on prior public disclosures of the alleged false claims, the execution of a pre-filing general release by the relator, and a failure to plead fraud with particularity under Rule 9(b). 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. He subsequently executed a general release ("the Release") of all claims against Purdue in order to receive an enhanced severance package. United States v. Bank of Farmington, 166 F.3d 853, 861 (7th Cir. Mistick PBT v. Hous. It is undisputed that Radcliffe did not identify the nature of his allegations against Purdue in the course of these conversations with Ramseyer. Id. This case stemmed from a qui tam action under the FCA that Mark Radcliffe ("Radcliffe"), a former district sales manager for Purdue Pharma ("Purdue"), filed against Purdue, alleging that Purdue improperly labeled the drug OxyContin as having a higher pain . After the present qui tam suit was stayed, the government's investigation continued. Specifically, in his sales representative training, he alleges that he was taught that there was a 2:1 equianalgesic ratio between OxyContin and MS Contin, a rival pain medication containing morphine, making OxyContin twice as potent and, as a result, cheaper per dose than MS Contin. (Information 20, United States v. Purdue Frederick Co., No. Enforcement of a release to bar a subsequent qui tam suit implicates several articulated public interests. 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.. Radcliffe encountered skepticism from physicians he spoke with regarding OxyContin's relative cost and potency. Dismiss 35.) Further, Radcliffe was cooperating with the government and was scheduled to be a grand jury witness. Whitten v. Triad Hosps., Inc., No. . Plaintiff - Appellant: UNITED STATES EX REL. United States District Court, W.D. It reasoned that "[t]here is no public disclosure to the American public when information is divulged in a foreign publication, especially if published in a foreign language." Matsushita Elec. 104 F.3d at 231. Decided: January 29, 2016. at 963. 2002); see also Gold v. Morrison-Knudsen Co., 68 F.3d 1475, 1476-77 (2d Cir. 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. The term "news media" includes scholarly, scientific, and technical periodicals, including trade journals, because, like newspapers, these sources disseminate information to the public in a periodic manner. Id. United States ex rel. 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