Kaiser Verdict Second Largest in Massachusetts in 2010
In its January 24, 2011 edition, Massachusetts Lawyers Weekly recognized a $142 million verdict against Pfizer on behalf of Kaiser Foundation Health Plan as the second highest in the state for 2010. The March verdict in the United States District Court for the District of Massachusetts dwarfed the largest verdict of 2009, which was $15.7 million. As described here, the verdict followed a five week trial in which Greene LLP attorney Tom Greene and several others detailed evidence that Neurontin, an anti-epileptic drug, was illegally promoted for off-label conditions such as bipolar disorder and migraines.
In 1996, Greene LLP attorneys filed a False Claims Act case on behalf of David Franklin against Parke-Davis, a pharmaceutical company later acquired by Pfizer. That case, which recovered $430 million in civil damages and fines for the United States and state governments, represented the first time that the False Claims Act was used against a pharmaceutical company for illegal off-label promotion. In that case, Greene LLP attorneys developed evidence that Parke-Davis and Pfizer’s illegal promotion caused doctors to prescribe Neurontin for unapproved uses, which were ineligible for Medicare and Medicaid reimbursement. Since the 2004 settlement, pharmaceutical companies have paid approximately $6 billion to settle claims of off-label promotion.
Just as the Neurontin False Claims Act case was the first of its kind, the March verdict recognized by Lawyers Weekly represents the first time that the Racketeer Influenced and Corrupt Organizations Act was successfully used against a pharmaceutical company for off-label promotion. The intricate publication and promotion campaign of Pfizer and its predecessors involved over a dozen clinical studies, with negative results buried and other results overstated. From the Lawyers Weekly article (subscription required):
For Greene, the greatest hurdle may have been illustrating to the jury the nature of the testing in question, particularly when some doctors were still prescribing Neurontin for pain and bipolar disorder. “It was a battle between marketing-based medicine and evidence-based medicine,” said Greene, who won Lawyers Weekly’s 2010 Battle of the Lawyers competition for his re-enactment of the trial’s closing argument.
The Kaiser verdict may prove to be a blueprint followed in other off-label promotion cases brought by health care providers misled into paying for prescriptions of ineffective drugs. From the Lawyers Weekly article:
“This was a really significant finding for pharma companies,” Greene said. “It puts them on notice that the suppression and misrepresentation of critical data is not only scientific fraud, but also legal fraud. Prior to this, that connection wasn’t entirely clear.”
Both judge and jury found that the conduct of Pfizer and its successors defrauded Kaiser of tens of millions of dollars. In November, the District Court awarded $95,286,518 in damages to Kaiser under California’s Unfair Competition Law.