UNITED STATES ex rel. ALEX BOOKER and EDMUND HEBRON, Relators, Appellants,
PFIZER, INC., Defendant, Appellee. STATE OF CALIFORNIA; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF INDIANA; STATE OF LOUISIANA; STATE OF MARYLAND; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF MONTANA; STATE OF NEW HAMPSHIRE; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF NORTH CAROLINA; STATE OF OKLAHOMA; STATE OF RHODE ISLAND; STATE OF TENNESSEE; STATE OF TEXAS; STATE OF WISCONSIN; COMMONWEALTH OF MASSACHUSETTS; COMMONWEALTH OF VIRGINIA; DISTRICT OF COLUMBIA, Plaintiffs,
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge]
J. Darken, with whom The Barry A. Cohen Legal Team, Thomas N.
Burnham, and Burnham International Law Office were on brief,
Kirsten V. Mayer, with whom Brien T. O'Connor,
Emily J. Derr, Nicholas S. Bradley, and Ropes & Gray LLP
were on brief, for appellee.
Lynch, Stahl, and Barron, Circuit Judges.
August 31, 2009, the pharmaceutical company Pfizer, Inc.
settled various claims that it had violated the False Claims
Act ("FCA"), 31 U.S.C. §§ 3729 et
seq., with the U.S. Department of Justice
("DOJ"). As part of that settlement, Pfizer entered
into a Corporate Integrity Agreement ("CIA") with
the U.S. Department of Health and Human Services
than a year after that settlement, relators Alex Booker and
Edmund Hebron, two former Pfizer sales representatives,
brought this qui tam action against Pfizer in federal
district court, alleging it was on behalf of the United
States, more than two dozen individual states, and the
District of Columbia, and asserting that despite the
settlement, Pfizer had continued to engage in conduct
prohibited by the FCA and state analogues. None of the
sovereigns elected to intervene.
filed their original complaint on July 13, 2010 and amended
it several times before the district court denied their
motion for leave to file a sixth amended complaint.
Primarily, they alleged that Pfizer had continued to
knowingly induce third parties to file false claims for
payment for Pfizer drugs with government programs like
Medicaid by (1) marketing the drug Geodon for off-label uses,
in violation of sections 331 and 355 of the Food, Drug, and
Cosmetic Act ("FDCA"), 21 U.S.C. §§ 301
et seq.; and (2) paying kickbacks to doctors to
compensate them for prescribing the drugs Geodon and Pristiq,
in violation of the Anti-Kickback Statute ("AKS"),
42 U.S.C. § 1320a-7b(b), (g). Relators also alleged that
Pfizer had violated the "reverse false claims"
provision of the FCA, see 31 U.S.C. §
3729(a)(1)(G), by failing to pay the government money owed it
under Pfizer's CIA with HHS. Finally, relators alleged
that Pfizer had violated the FCA's anti-retaliation
provision, see id. § 3730(h), by terminating
Booker's employment on January 6, 2010, purportedly in
response to his alleged whistleblowing activities.
these claims were resolved against relators, one on a motion
to dismiss and the rest on summary judgment. On March 26,
2014, the district court granted Pfizer's motion to
dismiss the claim under the reverse false claims provision
(the "reverse FCA claim") but allowed relators to
proceed to discovery (with limits) on the other claims.
See U.S. ex rel. Booker v. Pfizer, Inc.
("Booker I"), 9 F.Supp.3d 34, 50, 60-61
(D. Mass. 2014). On May 23, 2016, the district court granted
Pfizer's motion for summary judgment on the remaining
claims. See U.S. ex rel. Booker v. Pfizer, Inc.
("Booker II"), 188 F.Supp.3d 122, 140 (D.
Mass. 2016). Relators appeal the dismissal, the grant of
summary judgment, and certain of the district court's
intervening discovery rulings. We affirm the district
court's merits decisions and find no error in its
management of discovery.
on the district court's two thorough opinions for a basic
recounting of the case. See Booker I, 9 F.Supp.3d
34; Booker II, 188 F.Supp.3d 122. We give only that
background information needed for this appeal.
Appeal from Dismissal of Reverse FCA Claim
wrongly suggests that we have no jurisdiction to review the
district court's March 26, 2014 order dismissing
relators' reverse FCA claim due to defects in
relators' notice of appeal. See Fed. R. App. P.
3(c)(1)(B) (a "notice of appeal must designate the
judgment, order, or part thereof being appealed").
Specifically, we reject the contention that there is no
jurisdiction because relators' notice of appeal did not
explicitly mention the dismissal order. While the notice did
specify certain other orders issued by the district court, it
also specified the court's May 26, 2016 final judgment
disposing of the case, and "it has been uniformly held
that a notice of appeal that designates the final judgment
encompasses not only that judgment, but also all earlier
interlocutory orders that merge in the judgment."
John's Insulation, Inc. v. L. Addison & Assocs.,
Inc., 156 F.3d 101, 105 (1st Cir. 1998); see also
Ocasio-Hernández v. Fortuño-Burset, 777
F.3d 1, 6 n.12 (1st Cir. 2015).
Merits of Dismissal of Reverse FCA Claim
affirm the district court's dismissal of relators'
reverse FCA claim on de novo review, albeit on grounds
different from those relied on by the district
court. See Otero v. Commonwealth of P.R.
Indus. Comm'n, 441 F.3d 18, 20 (1st Cir. 2006). We
take no position on whether the district court's
reasoning was correct.
reverse false claims provision of the FCA imposes liability
on anyone who "knowingly conceals or knowingly and
improperly avoids or decreases an obligation to pay . . .
money . . . to the Government." 31 U.S.C. §
3729(a)(1)(G). The term "obligation" is defined by
the statute as "an established duty, whether or not
fixed, arising from an ...