Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States ex rel. Booker v. Pfizer, Inc.

United States Court of Appeals, First Circuit

January 30, 2017

UNITED STATES ex rel. ALEX BOOKER and EDMUND HEBRON, Relators, Appellants,
v.
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,

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge]

          Kevin J. Darken, with whom The Barry A. Cohen Legal Team, Thomas N. Burnham, and Burnham International Law Office were on brief, for appellants.

          Kirsten V. Mayer, with whom Brien T. O'Connor, Emily J. Derr, Nicholas S. Bradley, and Ropes & Gray LLP were on brief, for appellee.

          Before Lynch, Stahl, and Barron, Circuit Judges.

          LYNCH, Circuit Judge.

         On 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 ("HHS").

         Less 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.

         Relators 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).[1] 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.

         All of 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.

         We rely 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.

         I. ANALYSIS

         A. Appeal from Dismissal of Reverse FCA Claim

         1. Appellate Jurisdiction

         Pfizer 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).

         2. Merits of Dismissal of Reverse FCA Claim

         We 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.[2] 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.

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.