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From Health Law Daily, December 14, 2015

Relators cannot establish that drug company intended to induce prescriptions

By Mary Damitio, J.D.

Relators who brought a qui tam action against Solvay Pharmaceuticals, Inc. (SPI) alleging that it violated the Anti-Kickback Statute (AKS) (42 U.S.C. § 1320a-7b(b)(1)(A)) and the False Claims Act (FCA) (31 U.S.C. § 3729 et seq.) by paying kickbacks to physicians to induce them to prescribe three SPI drugs could not establish that the company intended that its payments would result in prescriptions for the drugs at issue. As a result, a district court granted SPI’s motion for partial summary judgment as to all of the realtors’ FCA claims that were based on AKS violations (U.S. ex rel. King v. Solvay S.A., December 10, 2015, Miller, G.).

Lawsuit. Relators brought a qui tam action against SPI (now AbbVie Products, Inc.) alleging that the company violated the FCA and the Texas and federal AKS by paying kickbacks in the form of gifts, trips, and honoraria to physicians to induce them to prescribe three SPI drugs: AndroGel®, Aceon®, and Luvox® (drugs). The relators alleged that the prohibited kickbacks caused physicians to write prescriptions for the drugs, which led pharmacists to submit fraudulent claims to Medicare and Medicaid. SPI moved for partial summary judgment as to the claims that were based on AKS violations.

Intent. The relators did not present any evidence to establish that SPI intended that its payments to physicians were made to induce them to write prescriptions for the drugs and that those resulted in fraudulent claims. Most of the physicians received payments for SPI programs, speaker programs, presentations, and a regional dinner event. Some of the physicians identified by the relators did not even participate in two of the programs and the relators failed to provide evidence that the physicians who did participate in one of the events wrote prescriptions that resulted in claims being submitted to the government. While a jury could infer that the speaker program payments caused the physicians to prescribe the drugs, there was no evidence that a reasonable juror could conclude that the company intended that the payments to the physicians would result in prescriptions for the drugs at issue in the case.

The case is No. 4:06-cv-02662.

Attorneys: Joel M. Androphy (Berg Androphy) for John King. Bruce Davidson Oakley (Hogan Lovells US LLP) and Eric K. Gerard (Abraham Watkins Nichols Sorrels Agosto Friend) for Solvay Pharmaceuticals Inc. Bruce Davidson Oakley (Hogan Lovells US LLP) for Solvay North Amercia LLC and Abbott Products, Inc.

Companies: Solvay SA; Solvay Pharmaceuticals Inc.; Solvay Pharmaceuticals Inc.; Solvay North Amercia LLC; Solvay Pharmaceuticals SARL; Abbott Products, Inc.; AbbVie Products, Inc.

MainStory: TopStory CaseDecisions AntikickbackNews FCANews MedicaidNews PartDNews PrescriptionDrugNews TexasNews

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