Greene LLP Attorney Presents at AAJ Conference on “How to Win a RICO Case Against Pharmaceutical Giants for Fraudulent Off-Label Promotion”
The successful Kaiser case which resulted in a $147 million jury verdict led the American Association for Justice to invite Greene LLP attorney Thomas M. Greene to present at the AAJ’s Winter Conference during its “Sunrise at Litigation” panel, a staple at AAJ semiannual conventions. Leading members of the plaintiff’s bar are invited twice a year to present developing new legal theories that have been successfully applied by plaintiff’s attorneys. Mr. Greene’s presentation, entitled “How to Win a RICO Case Against Pharmaceutical Giants for Fraudulent Off-Label Promotion,” was featured on February 9. His written paper of the same name was included in the written materials for the convention, and was also republished by the AAJ’s Section on Toxic, Environmental and Pharmaceutical Torts in its Spring newsletter.
In the presentation, Mr. Greene described the myriad difficulties involved in satisfying RICO’s robust legal requirements. Arguing it had suffered millions of dollars in damages by paying for worthless off-label prescriptions, Kaiser Foundation Health Plan established a pattern of racketeering activity by Pfizer and its associates: mail fraud that misrepresented the proven efficacy of Neurontin for a variety of off-label indications. Before the trial phase of litigation, an “enterprise” was established between Pfizer and its medical marketing firm, in addition to a second enterprise formed through Pfizer’s association with its advertizing agency. Kaiser proceeded to trial against Pfizer as the “bellwether case” selected by Judge Saris, who presides over the Neurontin Multi-District Litigation.
In March 2011, Judge Saris entered judgment in the Kaiser case, officially trebling the jury’s verdict of $47 million to $142 million and updating Kaiser’s Unfair Competition Law damages. Said Greene, “only through treble damages provisions like that of RICO or of the False Claims Act can we prevent pharmaceutical companies from engaging in off-label promotion and treating the verdicts or settlements that result as a cost of doing business.”
Much like how the Neurontin False Claims Act case has spurred over $7 billion in subsequent litigation, the Kaiser case may prove to be a template for other cases against pharmaceutical companies for fraudulent off-label marketing of drugs. “Fraudulent off-label promotion endangers public safety,” said Greene. “We have only begun to turn the tide.”