Federal Contracting News

DOJ Can’t Wave Wand to Excuse Big Pharma, Whistleblower Says

Jan. 24, 2019, 4:15 PM

The Justice Department’s attempt to end a whistleblower group’s false claims suit against Bayer Corp. and other pharmaceutical companies is improper and unprecedented, the group told a Texas federal court.

DOJ doesn’t have an unreviewable right to dismiss False Claims Act complaints, including this one, which accuses defendants of kickback schemes that defrauded Medicare and Medicaid, Health Choice Group told the U.S. District Court for the Eastern District of Texas.

The court already decided in June that the claims have merit. Having the court rubber-stamp the dismissal request would be inconsistent with the Constitution’s checks and balances system, Health Choice said.

DOJ doesn’t have the unilateral power to exculpate the defendants where the court said the case had merit, Health Choice said.

The government has apparently never in the 150 years of the FCA sought to dismiss a false claims complaint found by a court to be meritorious, Health Choice added.

DOJ says it decided after an investigation that the case lacked merit and would waste government resources, but DOJ “offers nothing to support” that assertion, Health Choice said.

The department moved to dismiss the case Dec. 17, invoking the provision permitting cases to end if a whistleblower receives notice and an opportunity for a hearing.

It also moved to dismiss ten other cases raising similar claims. Affilates of NHCA Group, like Health Choice, are pursuing these cases against the pharmaceutical companies.

Other affiliated whistleblower groups have filed similar responses.

The case is United States ex rel. Health Choice Grp. v. Bayer Corp., E.D. Tex., No. 17-cv-126, response 1/22/19.

To contact the reporter on this story: Daniel Seiden in Washington at dseiden@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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