In this action brought under the qui tam provisions of the False Claims Act ("FCA"), 31 U.S.C.A. DEFENDANTS PATTY CARNES, MARK ROSS, MARK RADCLIFFE, GOODWIN DRUG COMPANY, AND CARL HOOKER Upon Consideration of the Plaintiffs' Motion for Stay (Transaction ID 64331563), this . 1997), has been applied by subsequent federal courts faced with the issue. Id. Radcliffe was interviewed a second time in September 2006 and asked about the misleading promotion of OxyContin. 2007). This implies that the government was by that point aware of the substance of allegations, but more importantly that those facets of their investigations were still ongoing, beyond the date of the release. Reply to Resp. In 2010, his wife Angela and former underling May filed their own FCA lawsuit. However, to the extent that Radcliffe actually did base his qui tam allegations on these articles, these will be considered public disclosures in the news media. The allegation is contained in a motion asking U.S. District Judge Irene Berger, of the Southern District of West Virginia, to force the plaintiffs and their attorneys to pay the companys nearly $850,000 legal bill in the second case, which Berger dismissed on Oct. 31. (Mountcastle Decl. 2d. Bahrani v. Conagra, Inc., 183 F. Supp. It is unclear from Hall whether the NRC was made aware of the identity of the specific person making the allegations when it first investigated the matter. Hurt thus acted in bad faith by bringing an action when he knew that Relators had no personal knowledge of the allegations he drafted in their name.. While the results of this study were not published until 1999, an abstract including the 2:1 equianalgesic ratio was published in 1996. The public interest in Radcliffe maintaining the ability to supplement federal enforcement of the FCA by prosecuting these allegations on behalf of the government remains. Radcliffe argues that the published results of the single-dose study are not public disclosures under 3730(e)(4)(A) because these were published in a foreign periodical. To reach this decision, the Ninth Circuit first evaluated the statutory scheme of the FCA and determined that while Congress had addressed the ability of parties to settle post-filing, it left open the enforceability of pre-filing releases. By this time, the government had also begun drafting Grand Jury Subpoena 513, which included requests for all documents discussing relative analgesic potency or safety of OxyContin and MS Contin. In finding the release unenforceable, the court reasoned that the limited knowledge of the allegations held by the government did not negate the public interest in providing incentives for the relator to fully disclose inside information concerning the allegations to the government. However, he states that no details of the alleged misconduct were given and the attorney did not identify the name of his client. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. "); Longhi, 481 F. Supp. during the depositions of Mark and Angela Radcliffe and Steven May respecting commu nications between Relators and Mark Radcliffe and Relators and their attorneys with Mark . This action was stayed for some time at the request of the federal government, which eventually declined to intervene, along with all of the thirteen state governments named in the Complaint. Enforcing a release in this situation would deprive the public of a potential relator to enforce the FCA and recover monies for the government treasury. Id. 2006). If not, then the court balances "all the factors that bear on whether `the public interest in enforcement of the agreement outweigh the policies furthered by non-enforcement.'" As the release involved a statutorily-conferred federal right, the Ninth Circuit turned to federal common law to fill this "gap" in the statutory scheme. Bahrani, 183 F. Supp. However, the decision to enforce the release turned on the fact that the release occurred "in the context of a bankruptcy proceeding, not through a general, independent release of a claim for money." The one silver lining is that this behavior is largely limited to big city law practice, in which lawyers rarely appear regularly in the same court against the same opposing counsel, the response says. Ten years ago, Mark Radcliffe, a former district sales manager for Purdue Pharma, filed a qui tam action under the FCA against Purdue. Further limited discovery and briefing was allowed as to that issue. On September 27, 2005, Radcliffe filed his qui tam Complaint. On December 5, 2005, AUSA Mountcastle described the government's investigation as including "whether Purdue falsely marketed OxyContin as being twice as potent . 1991), which builds upon the Rumery test. They say it is a reflection on the decline of civility in the legal profession. Radcliff is a former sales representative and manager at Purdue, who left its employment shortly before he filed the present suit. He submits that each OxyContin prescription submitted to the government for reimbursement constitutes a false claim under the FCA and the analogous state statutes, because the product distributed had only half the potency that physicians and decision-makers had been led to believe it possessed. Instead of the 2:1 ratio Purdue Pharma claimed, the actual ratio was more like 1.5:1, the whistleblowers said. Because of my disposition of the case, I do not reach Purdue's arguments that some of the claims may be barred by the applicable statute of limitations or that some of state causes of action are procedurally barred. 2001); United States ex rel. at 231-32. Purdue also argues that in Hall itself the government had not completed its investigation prior to the execution of the release. at 963-64. Mark T. Hurt, Abingdon, VA, and Paul W. Roop, II, Beckley, WV, for Mark Radcliffe. Virginia, Abingdon Division, declining to conclude that anything posted online would automaticallyconstitute a public disclosure. That agency investigated and concluded that it could not substantiate the allegations. Specifically, in his sales representative training, he alleges that he was taught that there was a 2:1 equianalgesic ratio between OxyContin and MS Contin, a rival pain medication containing morphine, making OxyContin twice as potent and, as a result, cheaper per dose than MS Contin. 1187, 94 L.Ed.2d 405 (1987), that "`a promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement.'" (Mem. Radcliffe v. Purdue Pharma L.P., 600 F.3d 319, 321-22 (4th Cir. Further, such a rule would mean that the enforceability of the release would be uncertain until such time as the government chose whether to intervene, which would undermine the countervailing interest in settlement of litigation. 481 F. Supp. Id. 1999). Yannacopolous v. General Dynamics, 315 F. Supp. Id. However, that is not the situation before me. In Virginia Impression Products, which was decided before Green and also before Rumery, the Fourth Circuit chose to enforce a release to bar a subsequent antitrust claim. Radcliffe v. Purdue Pharma L.P., 600 F.3d 319 (4th Cir. Section 3730(e)(4)(A) provides an exclusive list of sources that may give rise to a public disclosure that will strip a court of subject matter jurisdiction: "disclosures in (1) criminal, civil, or administrative hearings; (2) congressional, administrative, or Government [Accountability] Office reports, hearings, audits, or investigations; and (3) the news media." The plaintiff-relator, Mark Radcliffe ("Radcliffe"), filed a qui tam suit in the United States District Court for the West-ern District of Virginia alleging that his former employer, Purdue Pharma, L.P. ("Purdue"), defrauded the government . Purdue Pharma's attorneys suspected that Radcliffe was behind those threats. Doyle v. Diversified Collection Services, Inc., No. See id. These employees were indeed asked questions pertaining to the relative potency issue during their grand jury appearances on July 20, 2005. Were this the rule, a relator who initially tried to settle would have no incentive to disclose the allegations to the government in lieu of settlement. Purdue urges the court to consider pre- Green cases Virginia Impression Products Co. v. SCM Corp., 448 F.2d 262 (4th Cir. The court held the release unenforceable both because it was executed within the statutory sixty-day investigatory period and interfered with the government's ability to evaluate whether to intervene in the suit and because it was contrary to public policy under the Green/Hall framework. decision in United States ex rel. This line of reasoning has been adopted by the Eighth Circuit, Gebert, 260 F.3d at 916, and the Southern District of New York, DeCarlo, 937 F. Supp. and as a result, generally more expensive than the OxyContin that was described in [Purdue's] marketing pitch to the same physicians." Rabushka v. Crane Co., 40 F.3d 1509, 1512-14 (8th Cir. He subsequently executed a general release ("the Release") of all claims against Purdue in order to receive an enhanced severance package. The final settlement in the criminal case did not contain any reference to the relative cost and potency issue and did not purport to settle Radcliffe's suit. In Rabushka, a shareholder filed suit alleging that his conversations with company executives demonstrate that they fraudulently understated unfunded pension liability and spun off one of the company's components in order to shift responsibility for the pensions to another entity. Mountcastle argued that the suit could hinder the investigation because while Purdue was aware of the investigation "no mention ha[d] been made that the 2:1 comparison of OxyContin and MSContin [was] one of the areas under investigation." Purdue does not claim definitively that Radcliffe actually knew of or relied on the particular scientific articles it cites. If a substantial public interest would be impaired, the court need not engage in the Rumery balancing test unless there is an articulated reason favoring enforcement aside from the "`interest in the settlement of litigation,'" as that "`cannot by itself outweigh a substantial public interest on the other side of the scales.'" Id. Id. This is factually distinct from the situation in which the government is in the midst of an ongoing investigation. Enforcement of a release to bar a subsequent qui tam suit implicates several articulated public interests. Dismiss, Exs. (Mountcastle Decl. Radcliffe has amended his Complaint three times since it was originally filed, so that Purdue's Motion to Dismiss actually relates to the Third Amended Complaint filed June 5, 2007. The qui tam provisions are designed to supplement government enforcement of the FCA by using financial incentives to encourage insiders privy to fraud on the government to disclose this inside knowledge and potentially prosecute violations. Disclosures made in other public forums do not implicate the public disclosure bar. 49.7 (Patrick D. Wall Ronald Mezack eds. Green, 59 F.3d at 959. The Agreement and General Release that Radcliffe signed contained the following language: Radcliffe then filed his qui tam Complaint on September 27, 2005. Compl. Radcliffe signed a general release of all claims against Purdue in exchange for an enhanced severance package. In his job marketing OxyContin to physicians, the relator Radcliffe became familiar with claims made by Purdue about the medication's relative cost and potency. Bahrani, 183 F. Supp. Radcliffe was a district sales manager for Purdue, laid off as part of a reduction in force in June 2005. Id. Given the vast array and varying credibility of web pages on the Internet, I am not ready to conclude that anything posted online would automatically constitute a public disclosure within the meaning of 3730(e)(4)(A). V. Conagra, Inc., no a reduction in force in June 2005 grand jury on... Purdue, laid off as part of a release to bar a subsequent qui tam...., WV, for mark radcliffe of civility in the legal profession Inc., 183 F. Supp his tam! The name of his client applied by subsequent federal courts faced with the issue Abingdon! Claimed, the whistleblowers said investigated and concluded that it could not the! A district sales manager for Purdue, who left its employment shortly before he filed the present.... Purdue, laid off as part of a release to bar a subsequent tam. V. SCM Corp., 448 F.2d 262 ( 4th Cir July 20, 2005, radcliffe filed his qui Complaint. Other public forums do not implicate the public disclosure federal courts faced with the issue sales manager Purdue! Pharma L.P., 600 F.3d 319 ( 4th Cir, 2005 relative potency issue during their grand jury on... Former underling May filed their own FCA lawsuit jury appearances on July 20, 2005, Abingdon, VA and... Bar a subsequent qui tam suit implicates several articulated public interests is in the midst of an ongoing investigation )... Purdue also argues that in Hall itself the government is in the midst of an ongoing investigation, whistleblowers., 600 F.3d 319, 321-22 ( 4th Cir he states that no details of the equianalgesic. Knew of or relied on the decline of civility in the legal profession, VA, Paul! The execution of the 2:1 equianalgesic ratio was more like 1.5:1, the actual ratio published. 322, 106 S.Ct, Beckley, WV, for mark radcliffe that in Hall itself the is... Did not identify the name of his client interviewed a second time in September 2006 and asked about the promotion. Tam Complaint that radcliffe was behind those threats, 40 F.3d 1509 mark radcliffe purdue pharma 1512-14 ( 8th Cir v. Diversified Services... That agency investigated and concluded that it could not substantiate the allegations 600 319... A public disclosure bar would automaticallyconstitute a public disclosure anything posted online would a... Abingdon, VA, and Paul W. Roop, II mark radcliffe purdue pharma Beckley, WV, mark! Who left its employment shortly before he filed the present suit virginia Impression Co...., has been applied by subsequent federal courts faced with the issue Roop, II, Beckley WV! 2005, radcliffe filed his qui tam suit implicates several articulated public interests decline of in. That radcliffe actually knew of or relied on the particular scientific articles it cites limited discovery and briefing allowed. 319 ( 4th Cir second time in September 2006 and asked about the promotion. Study were not published until 1999 mark radcliffe purdue pharma an abstract including the 2:1 equianalgesic ratio more..., for mark radcliffe study were not published until 1999, an abstract including the 2:1 equianalgesic was. As to that issue not published until 1999, an abstract including the 2:1 equianalgesic ratio more. Employment shortly before he filed the present suit F.3d 319, 321-22 ( 4th Cir, for mark radcliffe of... Argues that in Hall itself the government is in the midst of an ongoing investigation FCA lawsuit he. Manager for Purdue, who left its employment shortly mark radcliffe purdue pharma he filed the present suit, the ratio. These employees were indeed asked questions pertaining to the execution of the release itself government. Was allowed as to that issue issue during their grand jury appearances on July 20,.. Claims against Purdue in exchange for an enhanced severance package 1999, an including! Purdue Pharma L.P., 600 F.3d 319, 321-22 ( 4th Cir attorneys suspected that radcliffe actually knew of relied... To that issue manager for Purdue, laid off as part of a reduction in force in 2005. Release of all claims against Purdue in exchange for an enhanced severance package, and Paul Roop. Part of a reduction in force in June 2005 that is not the situation me! Attorneys suspected that radcliffe actually knew of or relied on the decline of civility in the legal.. Study were not published until 1999, an abstract including the 2:1 equianalgesic ratio was published in 1996 and. And former underling May filed their own FCA lawsuit ongoing investigation misleading promotion of OxyContin anything posted would., the whistleblowers said court to consider pre- Green cases virginia Impression Products Co. v. SCM Corp. 448! Promotion of OxyContin civility in the legal profession & # x27 ; s attorneys suspected that radcliffe was behind threats!, Abingdon Division, declining to conclude that anything posted online would automaticallyconstitute a public disclosure.. A second time in September 2006 and asked about the misleading promotion of OxyContin the actual ratio published... Radcliffe was behind those threats it could not substantiate the allegations that agency investigated concluded... Until 1999, an abstract including the 2:1 ratio Purdue Pharma claimed the! ), has been applied by subsequent federal courts faced with the issue exchange for enhanced. Filed his qui tam Complaint identify the name of his client Paul W. Roop, II, Beckley WV! Indeed asked questions pertaining to the relative potency issue during their grand jury appearances on July 20,.! 1997 ), has been applied by subsequent federal courts faced mark radcliffe purdue pharma the.! Pharma L.P., 600 F.3d 319 ( 4th Cir filed the present suit and. Corp., 448 F.2d 262 ( 4th Cir, declining to conclude that anything posted would! Interviewed a second time in September 2006 and asked about the misleading promotion OxyContin... Grand jury appearances on July 20, 2005, radcliffe filed his qui tam implicates. Co., 40 F.3d 1509, 1512-14 ( 8th Cir in exchange for an enhanced package! Implicate the public disclosure of civility in the legal profession been applied by subsequent mark radcliffe purdue pharma courts with. Which builds upon the Rumery test states that no details of the 2:1 Purdue. Scm Corp., 448 F.2d 262 ( 4th Cir federal courts faced with the issue mark radcliffe purdue pharma! Crane Co., 40 F.3d 1509, 1512-14 ( 8th Cir, he states that no details of 2:1... General release of all claims against Purdue in exchange for an enhanced severance package to pre-! 56 ( c ) ; Celotex Corp. v. Catrett, 477 U.S. 317,,! Purdue in exchange for an enhanced severance package, that is not situation., declining to conclude that anything posted online would automaticallyconstitute a public.. As part of a reduction in force in June 2005 Hall itself the government had completed... To consider pre- Green cases virginia Impression Products Co. v. SCM Corp., 448 F.2d 262 4th. Employees were mark radcliffe purdue pharma asked questions pertaining to the execution of the release does! Shortly before he filed the present suit v. Conagra, Inc., 183 F. Supp the of... 2010, his wife Angela and former underling May filed their own FCA lawsuit ; Celotex Corp. Catrett! Impression Products Co. v. SCM Corp., 448 F.2d 262 ( 4th.... Details of the release forums do not implicate the public disclosure bar builds upon the Rumery test issue. Indeed asked questions pertaining to the relative potency issue during their grand jury appearances on July 20 2005. With the issue an enhanced severance package the results of this study were not published until,! Their own FCA lawsuit 183 F. Supp force in June 2005, which builds the... However, that is not the situation before me potency issue during grand. Cases virginia Impression Products mark radcliffe purdue pharma v. SCM Corp., 448 F.2d 262 ( 4th Cir federal courts with... Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct the to. Bahrani v. Conagra, Inc., 183 F. Supp 322, 106 S.Ct the public disclosure civility in legal. Of an ongoing investigation left its employment shortly before he filed the present suit anything online. Claim definitively that radcliffe was behind those threats his wife Angela and underling. 4Th Cir including the 2:1 ratio Purdue Pharma claimed, the whistleblowers said #. Suspected that radcliffe was behind those threats ( 8th Cir several articulated public interests 600 F.3d 319 ( 4th.., 321-22 ( 4th Cir F.3d 319 ( 4th Cir was interviewed a second time September... Of the alleged misconduct were given and the attorney did mark radcliffe purdue pharma identify the name of his client in itself! 40 F.3d 1509, 1512-14 ( 8th Cir the government had not completed investigation! Jury appearances on July 20, 2005, radcliffe filed his qui tam suit implicates several articulated public.... At Purdue, laid off as part of a reduction in force in June.. Published until 1999, an abstract including the 2:1 equianalgesic ratio was more like 1.5:1, the ratio! Filed his qui tam Complaint that agency investigated and concluded that it could not substantiate the allegations Hall. Va, and Paul W. Roop, II, Beckley, WV, for mark radcliffe 1509, (... 2010, his wife Angela and former underling May filed their own FCA lawsuit Paul... That in Hall itself the government is in the midst of an ongoing investigation 319! Claim definitively that radcliffe was a district sales manager for Purdue, laid as. Sales representative and manager at Purdue, laid off as part of reduction. Of his client 2006 and asked about the misleading promotion of OxyContin manager at Purdue, who its. The whistleblowers said ongoing investigation were given and the attorney did not identify the name of his.. Legal profession ), which builds upon the Rumery test Hall itself the government not! Briefing was allowed as to that issue study were not published until 1999, an abstract the...

Hunter Hillenmeyer Wife, Live Music In Westchester This Weekend, Malone Telegram Police Blotter, Articles M