First Circuit Reverses Summary Judgment, Vacates Denial of Class Certification in Neurontin Appeal Pursued by Greene LLP

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The First Circuit opinions are merely the latest chapter in a seventeen-year story for Thomas M. Greene and Neurontin.

Whistleblower Law Firm

Greene LLP

The First Circuit opinions are merely the latest chapter in a seventeen-year story for Thomas M. Greene and Neurontin.

On April 3, 2013, the First Circuit Court of Appeals (Boston, Massachusetts) issued a favorable decision (First Circuit case number 11-1806, opinion here) in a pharmaceutical marketing case handled by a team of attorneys including Greene LLP. According to court documents, on behalf of three health insurance organizations and a proposed class, Greene LLP and others argued that Pfizer engaged in a fraudulent marketing scheme that pushed the epilepsy drug Neurontin for bipolar disorder, a condition for which Neurontin has not been approved. Greene LLP attorneys argued that Pfizer’s off-label marketing constituted a pattern of mail and wire fraud that was actionable under the Racketeering Influenced and Corrupt Organizations Act (RICO).

Greene LLP attorney Thomas M. Greene handled the oral argument on behalf of the three proposed class representatives, Harden Manufacturing Corporation, ASEA/AFSCME Local 52 Health Benefits Trust, and Louisiana Health Service Indemnity Company, doing business as Blue Cross Blue Shield of Louisiana. In 2010, the District Court entered summary judgment against the proposed class representatives, also declining in 2011 to certify a class of similarly situated health insurance plans’ claims against Pfizer for its marketing of Neurontin. With its April 3 decision, the three-judge panel consisting of Chief Judge Sandra L. Lynch, Associate Supreme Court Justice David H. Souter and Judge Kermit V. Lipez reversed the District Court’s grant of summary judgment as to the health plans’ RICO claims. It also vacated the grant of summary judgment as to the health plans’ state law claims, and vacated the denial of class certification, remanding the case for further proceedings in the District Court consistent with the First Circuit’s 25-page opinion.

“We are very pleased with this result, and this is a rewarding opinion for all of us who participated in this appeal,” said Thomas M. Greene. “The briefing process took the better part of a year, and represents an enormous and strong effort by everyone involved.” Greene was joined by Greene LLP attorneys Michael Tabb and Ryan P. Morrison on brief for the appellants. Many others contributed to the briefing process, including Dr. Palko S. Goldman, Thomas M. Sobol and Kristen Johnson Parker of Hagens Berman Sobol Shapiro LLP, Elizabeth J. Cabraser and Daniel Seltz of Lieff Cabraser Heimann & Bernstein LLP, and Don Barrett of Barrett Law Group PA.

In a related decision on April 3, the First Circuit also affirmed the jury and judge verdicts for Kaiser Foundation Health Plan against Pfizer, also for off-label promotion of Neurontin (First Circuit case numbers 11-1904 and 11-2096, opinion here). Greene LLP was part of the trial team for the Kaiser trial, which resulted in a $142 million jury verdict under RICO and a bench judgment of just under $103 million on related state law claims. In his closing argument at the Kaiser trial, Greene noted that Pfizer’s profits from Neurontin, which were originally expected to total $500 million over the lifetime of its patent, instead grew to $1 billion per year through off-label promotion. The District Court’s findings in the Kaiser case also paved the way for the First Circuit’s favorable class decision.

The First Circuit opinions are merely the latest chapter in a seventeen-year story for Thomas M. Greene and Neurontin. In 1996, Greene filed a first of its kind False Claims Act case against Pfizer predecessor Parke-Davis for off-label promotion of Neurontin, which was eventually settled in 2004 for $430 million in civil fines and criminal penalties.

Greene LLP is a complex civil litigation firm that specializes in pharmaceutical and health care litigation on behalf of plaintiffs. Located in the heart of Boston, the six-attorney firm leverages decades of experience in False Claims Act and other complex civil litigation matters.

The Harden appeal is First Circuit case number 11-1806, and the First Circuit’s opinion is available here. The Harden First Circuit judgment is available here.

The Kaiser opinion also released today concerns First Circuit case numbers 11-1904 and 11-2096, and is available here. The corresponding First Circuit judgment is available here.

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