Neurontin Litigation Subject of AAJ Article

Thomas M. GreeneThe burgeoning Neurontin litigation in the District of Massachusetts and the First Circuit Court of Appeals was the recent subject of an article by the American Association for Justice, the world’s largest trial bar.  Greene LLP attorney Thomas M. Greene filed a qui tam False Claims Act case in 1996 involving Neurontin, a seminal case that proved for the first time that off-label promotion of drugs can cause false claims to be submitted to government health care programs.  Soon after that case was resolved in 2004 for $430 million in civil fines and criminal penalties, a number of private health care insurers filed suit against Pfizer.  When the cases were consolidated in Massachusetts by the Judicial Panel on Multi-District Litigation, Greene was appointed to the Plaintiffs Steering Committee and elected its Chair.

As the AAJ article notes, the third party payors had “ample proof that Pfizer fraudulently marketed Neurontin for off-label uses, but the issue was whether they could prove causation.”  When Judge Saris of the District Court for the District of Massachusetts selected Kaiser Foundation Health Plan for a bellwether trial, Greene and other members of the Steering Committee represented them, winning a $47.36 million jury verdict that was trebled pursuant to the RICO statute to $142.09 million.  The hard-fought trial spanned five weeks in 2010, and Greene won “Most Compelling Argument” for a reprise of his closing argument later that year.

The subject of the AAJ article were the recent decisions by the First Circuit on Pfizer’s appeal of the Kaiser verdict and third party payors’ appeals in two related cases.  Greene, joined by Greene LLP attorneys Michael Tabb and Ryan P. Morrison, argued that aggregate evidence could be used as evidence of causation.  They asserted that a class of third party payors should be certified.

The First Circuit agreed with Greene LLP’s arguments, reversing summary judgment against the proposed class plaintiffs and vacating the denial of class certification.  The First Circuit also affirmed the trial victory against Pfizer on behalf of Kaiser Foundation Health Plan.  As the AAJ article notes, the First Circuit decisions bode well for the third party payors bringing suit:

Finding that Saris’s decisions on summary judgment are similar to her reasoning for denying certification, the court vacated that denial. Boston attorney Thomas Greene, who first brought the qui tam case and chairs the MDL steering committee, said counsel believes the trial court will rely on the First Circuit’s holdings to certify the class.

“By ruling that aggregate evidence can be used as evidence of causation, the First Circuit took out a step that the trial court relied upon in reaching its superiority conclusion. Therefore, right now it’s as if the trial court’s certification analysis is incomplete,” said Greene. “We believe that since aggregate evidence can be used as evidence of causation in this case, we won’t need to go doctor by doctor, and therefore, a class trial will be just as manageable as the Kaiser trial was in 2010.”

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