Harden Manufacturing Corporation v. Pfizer, Inc. et al
Filing
3551
Judge Patti B. Saris: MEMORANDUM AND ORDER entered DENYING #3362 Motion for New Trial. "ORDER: The Court DENIES defendants' Motion for New Trial and to Re-Open Evidence or, Alternatively, to Alter or Amend Judgment (Docket No. #3362 ). (Anderson, Jennifer)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
IN RE NEURONTIN MARKETING
)
AND SALES PRACTICES LITIGATION )
_______________________________)
)
THIS DOCUMENT RELATES TO:
) CIVIL ACTION NO. 04-cv-10739-PBS
)
KAISER FOUNDATION HEALTH
)
PLAN, INC., et al.
)
)
v.
)
)
PFIZER, INC., et al.
)
)
MEMORANDUM AND ORDER
July 27, 2011
Saris, U.S.D.J.
After a lengthy trial, a jury returned a verdict on RICO
claims for plaintiff Kaiser on March 25, 2010 in the amount of
$47,363,092.
(Jury Verdict, Docket No. 2760.)
Under the
statute, the award on the RICO claims was trebled to
$142,089,276.
On November 3, 2010, this Court issued an opinion
finding that defendants engaged in fraudulent business acts or
practices under California’s Unfair Competition Law and awarded
plaintiffs $95,286,518 in restitution.
In re Neurontin Mktg. &
Sales Practices Litig., 748 F. Supp. 2d 34 (D. Mass. 2010).
Judgment was entered on February 22, 2011 (Docket No. 3326).
Defendants have filed a Motion for New Trial and to Re-Open
Evidence or, Alternatively, to Alter or Amend Judgment pursuant
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to Fed. R. Civ. P. 59 (Docket No. 3362).
The Court DENIES
defendants’ motion for new trial, and writes now only to address
three of the issues raised therein.
I.
A.
DISCUSSION
Motion to Re-Open Evidence and Admit 2011 Cochrane Review
Defendants seek to re-open the evidence in order to submit
an article issued by the Cochrane Collaboration titled
“Gabapentin for chronic neuropathic pain and fibromyalgia in
adults (Review).”
(Docket No. 3362, Ex. A.)
The Court
previously found that “[t]he Cochrane Group is an international
nonprofit organization that provides compilations of the most
reliable scientific evidence available about the use of certain
drugs to treat various indications.”
748 F. Supp. 2d at 43 n.4.
The new Cochrane report on the use of Neurontin to treat
neuropathic pain finds that “Gabapentin provides pain relief of a
high level in about a third of people who take it for painful
neuropathic pain. . . .
More conservative estimates of efficacy
resulted from using better definitions of efficacy outcome at
higher, clinically important, levels, combined with a
considerable increase in the number of studies and participants
available for analysis.”
(Docket No. 3362, Ex. A at 2.)
The authors concluded that results might vary among
different neuropathic pain conditions, and that the amount of
evidence for some conditions is “low, excluding any confidence
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that it works or doesn’t work.”
(Id. at 28.)
Overall, the 2011
Cochrane report included 29 studies, five of which studied
postherpetic neuralgia (which is an on-label indication for
Neurontin), and eight of which studied painful diabetic
(Id. at 7.)
neuropathy.
participants.
The 29 studies involved 3,571
Approximately 75% of those participants were
enrolled in studies of postherpetic neuralgia (“PHN”), painful
diabetic neuropathy (“PDN”), or mixed neuropathic pain.
Id.
Accordingly, the authors wrote that “[t]hough gabapentin was
tested in 12 different neuropathic pain conditions, only for
three was there sufficient information to be confident that it
worked satisfactorily, namely PHN, PDN, and mixed neuropathic
pain, itself principally, though not exclusively, PHN and PDN.”
(Id. at 25.)
Defendants bring their motion pursuant to Fed. R. Civ. P.
59(e).
“Rule 59(e) motions are granted only where the movant
shows a manifest error of law or newly discovered evidence.”
Kansky v. Coca-Cola Bottling Co. of New Eng., 492 F.3d 54, 60
(1st Cir. 2007) (citing Marie v. Allied Home Mortgage Corp., 402
F.3d 1, 7 n.2 (1st Cir. 2005)).
“An order for a new trial on the
ground of newly discovered evidence requires proof of the
following elements: (1) The evidence has been discovered since
the trial; (2) The evidence could not by due diligence have been
discovered earlier by the movant; (3) The evidence is not merely
cumulative or impeaching; and (4) The evidence is of such nature
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that it would probably change the result if a new trial is
granted.”
Raymond v. Raymond Corp., 938 F.2d 1518, 1527 (1st
Cir. 1991).
“‘[N]ewly discovered evidence’ normally refers to
‘evidence of facts in existence at the time of trial of which the
aggrieved party was excusably ignorant.’” Rivera v. M/T
Fossarina, 840 F.2d 152, 156 (1st Cir. 1988) (quoting Brown v.
Pa. R.R. Co., 282 F.2d 522, 526-27 (3d Cir. 1960)).
Examples of
“newly discovered evidence” under Rule 59 that have been accepted
by courts include: (1) newly located witnesses with personal
knowledge germane to the case, see Compass Tech., Inc. v. Tseng
Labs., Inc., 71 F.3d 1125, 1130-31 (3d Cir. 1995); (2) evidence
belatedly disclosed by opposing party such that the movant did
not have time to recognize it as useful evidence, see Alpern v.
UtiliCorp United, Inc., 84 F.3d 1525, 1536-37 (8th Cir. 1996);
and (3) evidence that a key witness committed perjury, see Krock
v. Electric Motor & Repair Co., 339 F.2d 73, 75 (1st Cir. 1964);
In re Vioxx Prods., 489 F. Supp. 2d 587, 591-92 (E.D. La. 2007).
After trial, the Court concluded that “Kaiser has proven
that Pfizer fraudulently marketed Neurontin by showcasing
positive information about Neurontin’s efficacy in the published
literature, while suppressing negative evidence from Pfizersponsored clinical trials about Neurontin’s efficacy for bipolar
disorder, neuropathic pain, migraine, or doses greater than 1800
mg/day.”
748 F. Supp. 2d at 38-39.
The Court also found that
“Kaiser has proven that there is little or no scientifically
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accepted evidence that Neurontin is effective for the treatment
of bipolar disorder, neuropathic pain, nociceptive pain,
migraine, or doses greater than 1800 mg/day.”
Id. at 39.
The new Cochrane report is related only to the Court’s
findings about the use of Neurontin to treat neuropathic pain.
The findings regarding the other three indications (bipolar
disorder, migraine, and high doses) are unrelated to this
discussion.
As the Court acknowledged in its findings, the conclusion
that Neurontin was not effective in the treatment of neuropathic
pain was “a closer call” when compared to the three other
indications, for which there was no scientific evidence of
efficacy.
Id. at 78.
Two credible defense experts testified
that they believed Neurontin was, for some patients, an effective
treatment for neuropathic pain.
Id. at 77-78.
In addition,
“some trials studying the use of Neurontin to treat diabetic
peripheral neuropathy found that, using some secondary outcomes .
. . Neurontin outperformed placebo.”
Id.
However, after
weighing all of the evidence, including 12 double-blind
randomized controlled trials and testimony from three experts,
the Court concluded that, “using the generally accepted standard
of scientific efficacy followed by the FDA and the scientific
community . . . there is insufficient reliable evidence of the
efficacy of Neurontin with respect to the broad indication of
neuropathic pain.”
Id. at 79.
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At trial, defendants introduced the 2005 Cochrane report on
the use of Neurontin for neuropathic pain into evidence, which
found that “there is adequate evidence to support that there’s
efficacy of gabapentin for the treatment of neuropathic pain.”
Id. at 78.
However, the Court found that the 2005 Cochrane
report was not persuasive because defendants suppressed data from
trials studying the use of Neurontin to treat neuropathic pain
that had negative results.
Id.
Specifically, the authors of the
2005 Cochrane report did not have access to the unpublished
Reckless and POPP trials, and they did not have access to the raw
data for the Backonja, Gorson and Serpell trials.
Id.
The
Court’s conclusion was supported by the testimony of plaintiffs’
expert, Dr. Kay Dickersin, who also published her findings based
on discovery materials in this case in an article in November
2009 in the New England Journal of Medicine.
Dr. Dickerson found
that each of twenty-one clinical trials sponsored by the
defendants exhibited some sort of bias or deviation from the
truth.
See Kay Dickerson, et al., “Outcome Reporting in
Industry-Sponsored Trials of Gabapentin for Off-Label Use,” 361
New Eng. J. Med. 1963 (2009).
Significantly, the new 2011
Cochrane report was made possible by the release of previously
suppressed trials and data that were disclosed during the Kaiser
trial and discovery process.
The Court concludes that a new trial is not warranted for
two reasons.
First, the Cochrane report is not newly discovered
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evidence that defendants could not have replicated before trial,
but rather is a scholarly article that provides a meta-analysis
of scientific studies, most of which were available during
trial.1
Pfizer could have performed a similar meta-analysis
prior to the trial.
Indeed, plaintiffs’ expert, Dr. Thomas
Perry, did perform a similar meta-analysis, albeit one that
reached an opposite conclusion.
Moreover, Dr. Robert Gibbons, a
highly qualified biostatician who testified as defendants’ expert
in this trial, has previously provided the Court with similar
meta-analysis testimony in the related products liability
litigation that refutes the FDA’s conclusion that gabapentin was
associated with increased rates of suicide and suicidal ideation.
See In re Neurontin Mktg., Sales Practices & Prods. Liab. Litig.,
2011 WL 1048971 (D. Mass. Mar. 18, 2011).
Pfizer argues, though, that the Cochrane Group’s opinion
should be considered new evidence because it is a uniquely
independent and respected publication which would have more
persuasive force than a litigation-inspired expert report.
argument displays a certain amount of chutzpah.
1
This
The previous
One of the underlying studies was not in existence at the
time of trial. See Wallace MS, et al., “Gabapentin extendedrelease tablets for the treatment of patients with postherpetic
neuralgia: a randomized, double-blind, placebo-controlled,
multicentre study,” 30 Clinical Drug Investigation 765 (2010).
This study, however, is not relevant because, as the Court
explained in its Findings of Fact and Conclusions of Law,
Neurontin has been approved by the FDA for the treatment of
postherpetic neuralgia and plaintiffs do not contest that it is
effective for that indication. See, e.g., 748 F. Supp. 2d at 78.
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Cochrane report was unpersuasive to the Court precisely because
defendants suppressed negative data while emphasizing positive
data in the published literature.
Pfizer itself did not provide
the Cochrane Group with all available studies prior to the trial
because it fraudulently suppressed these studies.
Therefore, the
Cochrane Group was unable to produce an opinion based on all of
the neuropathic pain DBRCTs until after the trial, when the
Cochrane Group obtained access to all available data and clinical
trials on the use of Neurontin to treat neuropathic pain.
The
bottom line is that if it were not for Pfizer’s fraudulent
suppression of studies, the Cochrane Group likely would have
published a reliable meta-analysis prior the trial, which may
have tipped the balance in favor of Pfizer on the issue of
neuropathic pain.
Alternatively, the Court is not convinced that the Cochrane
article qualifies under the law as newly discovered evidence with
respect to the efficacy of the drug.
The parties have not
identified any case law in support of the premise that a new
scholarly article, which essentially represents an expert
opinion, constitutes newly discovered evidence.
While there is
some case law that is relevant, the facts of those cases are so
different that they provide little guidance.
See Chilson v.
Metro. Transit Auth., 796 F.2d 69, 72 (5th Cir. 1986) (holding,
in an employment retaliation case where the plaintiff had
criticized wasteful spending, that a post-trial internal audit
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confirming plaintiff’s allegations of wasted public funds was
newly discovered evidence under the rule); Rosebud Sioux Tribe v.
A & P Steel, 733 F.2d 509, 515-17 (8th Cir. 1984) (holding that a
post-trial admission of perjury by a witness was “newly
discovered evidence” under the rule since the perjury existed at
the time of the trial although it was revealed only after trial);
Kettenbach v. Demoulas, 901 F. Supp. 486 (D. Mass. 1995) (holding
that a conversation recorded post-judgment constituted newly
discovered evidence because the events that the recording
purported to describe took place before the trial, and in fact
were the basis for the action).
Knowledge about drug efficacy and safety is an iterative
process.
See, e.g., Daubert v. Merrell Down Pharms., Inc., 509
U.S. 579, (1993) (“[A]rguably, there are no certainties in
science.”); Bone Shirt v. Hazeltine, 461 F.3d 1011, 1026 (8th
Cir. 2006) (“Science evolves, and scientific methods that were
once considered unassailable truths have been discarded over
time.”); Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1316
(11th Cir. 2000) (noting that “new scientific evidence is
continually emerging” and discussing the frequent conflicts
between changing science and a court’s interest in finality).
The most eloquent discussion of post-trial emergence of new
scientific evidence comes from the District of Columbia Court of
Appeals.
Although science is a constantly evolving process, the
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law depends upon a high level of certainty once an
outcome has been determined. A trial can be no more
than a resolution of an immediate dispute on the basis
of present knowledge; its outcome must turn upon the
teachings of science as understood at the time of trial
as best can be discerned through the presentations of
the parties. Where scientific facts are at issue, it is
not unexpected, given the nature of the process, that
the passage of time will bring forth further scientific
data and inquiry relating to the ultimate scientific
fact at issue. To reopen the trial's determination of
scientific truth, however, runs squarely into the
fundamental principle of certainty.
Merrell Dow Pharms., Inc. v. Oxendine, 649 A.2d 825, 831 (D.C.
1994).
Accordingly, the 2011 Cochrane report is not “newly
discovered evidence” under the case law analyzing Rule 59(e).
Finally, Pfizer must show that “[t]he evidence is of such
nature that it would probably change the result if a new trial is
granted.”
Raymond, 938 F.2d at 1527.
To calculate damages for
neuropathic pain, the Court used the difference between the cost
of Neurontin and the cost of cheaper and more optimal drugs that
would likely have been prescribed by PMG physicians.
748 F. Supp. 2d at 69.
Neurontin,
Accordingly, even if the Court had
considered the new Cochrane report, I would likely still have
concluded that Kaiser suffered damages because there were cheaper
and more optimal drugs that physicians could have prescribed to
Kaiser members had Kaiser and the doctors been aware of Pfizer’s
suppression of negative information.
Moreover, Pfizer
fraudulently marketed Neurontin for the treatment of neuropathic
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pain as a broad indication.2
The authors of the Cochrane report
made clear that they were only confident about their results with
respect to PHN and PDN, and could not say whether Neurontin
worked satisfactorily for other neuropathic pain conditions.
supra.
See
Therefore, even if the 2011 Cochrane report did tip the
balance in favor of Pfizer on the issue of efficacy, it would
only do so with respect to PHN and PDN.
The Court concludes that the opinion offered in the Cochrane
report is a “new” expert opinion about known pre-existing facts
as opposed to “newly discovered” evidence.
Accordingly, the
Court declines to re-open the evidence in light of defendants’
motion under Rule 59.
B.
Admission of Plaintiffs’ RICO Enterprise Exhibits
Pfizer also makes a Rule 59 motion for a new trial on the
basis of the Court’s admission of certain documents, which
2
Indeed, when Pfizer sought approval from the FDA in 2001
of Neurontin for the broad indication of neuropathic pain, the
FDA stated:
The general neuropathic pain indication cannot be
granted for Neurontin based on the clinical trials in
painful diabetic peripheral neuropathy (DPN) and
post-herpetic neuralgia (PHN). These two conditions are
distinct, pathophysiological states and, therefore,
will be treated as two indications. In order for a
general neuropathic indication to be granted, the
sponsor must provide evidence that the underlying
disease process is similar for DPN, PHN, and the pain
of other neuropathic disorders and/or that the drug is
effective for the neuropathic pain of all (or at least
most) etiologies.
748 F. Supp. 2d at 46 (citing TX 200 at 4).
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defendants claim was in error under Federal Rule of Evidence 403.
These 111 exhibits were relevant to plaintiffs’ allegations of
RICO enterprises between Pfizer and two medical marketing firms.
Defendants objected strenuously to the admission of these
exhibits during trial.
(See, e.g., Docket Nos. 2604, 2631.)
In
response to Pfizer’s objections, the Court required plaintiffs to
explain how each document related to the RICO claims and why the
document should be admitted.
(Docket No. 2660.)
After reviewing
Kaiser’s submission, the Court allowed the admission of
documents, and also allowed Pfizer to introduce its own binder of
documents, pursuant to Federal Rule of Evidence 106.
Pfizer also had an opportunity to make individual objections
to any of the 111 exhibits that Kaiser sought to introduce.
The
Court noted that it expected Pfizer to make such objections:
I’m assuming there might be parts that you’d move to
strike or sanitize . . . . I’m going to allow [the
documents] in short of your moving to strike certain
sections of them. . . . [I]n other words, if there’s a
three-page email chain and they’ve only quoted from
part of it, if you wanted to, I suppose I could strike
the rest of it. But short of sanitizing them, I’m
going to allow them in, subject to somebody in your
team telling me something wasn’t reference, because
they put quotes from each one of them in the footnotes
. . . which seemed pertinent.
(Trial Tr. vol. 16 at 9, Mar. 15, 2010.)
Pfizer did not make any
such individual objections or request any sanitization.
It is important to note that each of the documents admitted
was authenticated and was a business record as defined by the
rules of evidence.
(Id. at 8.)
Moreover, the exhibits were
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relevant to an essential element of plaintiffs’ case: the
existence of a RICO enterprise.
Pfizer’s objection was premised
on Rule 403, which states that “[a]lthough relevant, evidence may
be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.”
Pfizer’s argument is that the documents would cause jury
confusion because they were not introduced in connection with a
witness’s testimony.
As the Court noted during trial, plaintiffs provided context
for these exhibits.
Video depositions played during trial
discussed Pfizer’s relationships with the medical marketing
firms, and the exhibits admitted document those relationships.
(See id.)
In addition, the Court took steps to avoid jury
confusion as a result of the admission of these exhibits.
Pursuant to Federal Rule of Evidence 1006, the parties were each
allowed to provide the jury with a list of the documents they had
admitted into evidence.
In addition, both sides were permitted
to identify important passages of each exhibit by using a colored
sticky-note.
The jury was instructed that the plaintiffs used
green notes while the defendants used blue notes.
11.)
(Id. at 10-
Plaintiffs also addressed the documents by showing them
during their closing argument.
Courts that have excluded evidence on the basis of the risk
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of jury confusion have often done so when the voluminous evidence
offered was at best marginally related to the elements of the
plaintiffs’ claims.
See, e.g., City of Long Beach v. Standard
Oil Co. of Calif., 46 F.3d 929, 938 (9th Cir. 1995).
The Court
weighed the risk of jury confusion against the probative value of
the evidence several times during the trial, and ruled under Rule
403 that the evidence was admissible.
The Court finds that the
admission of these exhibits was not a “manifest error of law”
requiring a new trial under Fed. R. Civ. P. 59.
The documents at
issue here are central to plaintiffs’ case, and the precautions
taken by the Court to prevent jury confusion were sufficient.
C.
Jury Instruction Regarding Kaiser’s Premiums
During trial, the jury heard the following deposition
testimony from Albert Carver, the Vice President of Pharmacy
Strategy and Operations for Kaiser Foundation Health Plan:
Q:
If the cost of a prescription drug increases,
would the premium then increase for the next
period?
A:
Yes, that’s correct.
(Carver Dep. Tr., 55-56 (played Mar. 22, 2010).)
There was no
other evidence regarding premiums for Kaiser members.
In Pfizer’s closing argument, they argued “[T]o the extent
that Kaiser paid more for sugar pills or paid for more Neurontin
than it should have, that got passed on to the insureds,
presumably years ago.”
(Trial Tr. vol. 20, 128, Mar. 23, 2010.)
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Plaintiffs objected, and the Court instructed the jury:
“[T]here’s nothing in the record about whether or not the payment
of premiums or increases might have compensated for that, so that
would at this point be speculative.”
(Id. at 218.)
Defendants now argue that the Court’s instruction to the
jury constituted error.
As background, the defendants did not
request a jury instruction regarding the effect of premium
payments on an injury or damages analysis (see Docket No. 2492),
nor did they raise this as a legal issue in their trial brief
(Docket No. 2502).
Likewise, defendants did not argue in any of
their five motions for judgment as a matter of law that Kaiser
could not prove its injury due to increased premium payments for
its members.
(See Docket Nos. 2668, 2670, 2672, 2674, 2676.)
In Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392
U.S. 481 (1968), the Supreme Court disallowed a defense by
antitrust defendants who claimed that plaintiff was not entitled
to damages for costs passed on to its customers.
Id. at 488-94.
There were several important policy concerns buttressing the
Hanover Shoe conclusion.
First, the Court noted that “[n]ormally
the impact of a single change in the relevant conditions cannot
be measured after the fact,” and that “[e]qually difficult to
determine . . . is what effect a change in a company’s price will
have on its total sales.”
Id. at 492-93.
The Court also
foresaw significant trial management difficulties if every
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treble-damage action required complex “pass-on” proof.
493.
Id. at
Finally, the Court expressed its concern that the “pass-on”
theory would require those who are indirectly damaged to bring
suit themselves.
These ultimate consumers, in today’s case the buyers of
single pairs of shoes, would have only a tiny stake in
a lawsuit and little interest in attempting a class
action. In consequence, those who violate the
antitrust laws by price fixing or monopolizing would
retain the fruits of their illegality because no one
was available who would bring suit against them.
Id. at 494.
The Seventh Circuit has held that the Hanover Shoe “approach
prevails throughout the law,” including in the context of a RICO
claim.
Carter v. Berger, 777 F.2d 1173, 1175 (7th Cir. 1985).
The Second Circuit has also recognized the extension to RICO
claims of the principle that the directly injured party is the
proper party to seek redress from a wrongdoer.
Rand v. Anaconda-
Ericsson, Inc., 794 F.2d 843, 849 (2d Cir. 1986).
The Eastern
District of New York has provided a useful analysis of the
“passing on” defense in the context of a RICO claim brought by an
insurance company.
See Blue Cross & Blue Shield of New Jersey,
Inc. v. Philip Morris, Inc., 138 F. Supp. 2d 357 (E.D.N.Y. 2001).
In Philip Morris, the defendants argued that the plaintiffs had
not suffered an injury because increased costs are passed on to
subscribers through premiums.
The court, however, held that
under Hanover Shoe and its progeny, the “pass on” defense was
unavailable to defendants.
138 F. Supp. 2d at 361-65.
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In support of their argument, defendants rely on Ironworkers
Local Union 68 v. AstraZeneca Pharms., LP, 634 F.3d 1352, (11th
Cir. 2011), issued after the Kaiser trial, in which the district
court had previously dismissed a RICO class action involving offlabel Seroquel prescriptions.
See Ironworkers Local Union No. 68
v. AstraZeneca Pharms. LP, 585 F. Supp. 2d 1339 (M.D. Fla. 2008).
On appeal, the Eleventh Circuit affirmed3, stating:
The insurers, under the terms of their insurance
policies, consciously exposed themselves to pay for all
prescriptions of Seroquel, including those that were
medically unnecessary or inappropriate—even if such
prescriptions were birthed by fraud. In light of such
broad exposure, conventionally a rational insurer would
have charged its enrollees higher premiums than it
would have if its policies offered more limited
prescription drug coverage. These higher premiums, in
turn, would compensate the insurer for its increased
number of prescription payments, including payments for
prescriptions that were medically unnecessary or
inappropriate. Moreover, to the extent the insurer's
payments for medically unnecessary or inappropriate
prescriptions exceeded the premiums charged, only
actuarial errors would be to blame. Here, the insurers
plead no facts to suggest that they somehow established
premiums in a manner distinct from this conventional
understanding; consequently, the district court had to
dismiss their claims because they failed to allege
plausibly that AstraZeneca's false representations
caused them to suffer economic injury.
634 F.3d at 1360. The court also noted that plaintiffs had
asserted no cognizable fraud-by-omission claim against
AstraZeneca.
Id. at 1368 n.33.
The Eleventh Circuit’s
discussion of the “pass on” theory in Ironworkers did not cite to
3
The Eleventh Circuit’s opinion was issued on March 11,
2011, several months after this Court issued its Findings of Fact
and Conclusions of law.
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Hanover Shoe, or to any other authority for its conclusion that
the insurance company had not sufficiently pled any injury.
The instant case is distinguishable from the Ironworkers
case, as this Court did find that Kaiser had a viable fraud-byomission claim.
The theory was presented to the jury at trial,
and the jury found for Kaiser on the RICO claims involving mail
and wire fraud.
At the summary judgment stage, this Court wrote:
The Coordinated Plaintiffs [including Kaiser] have
presented evidence that Defendants communicated half
truths that are actionable under the RICO statute.
This evidence includes instances of Defendants
suppressing negative information while submitting for
publication in monographs positive information about
off-label indications. For example, in 1998,
Defendants responded to a request for information from
Kaiser regarding Neurontin's use for pain management by
summarizing positive published reports on that
indication, while failing to report negative studies
known to Defendants at that time, such as the 1996
Gorson trial. In addition, Kaiser's Drug Information
Service contacted Pfizer multiple times requesting
information about off-label uses of Neurontin, and
Pfizer's responses were materially misleading. In 2000,
Pfizer forwarded to DIS several cases in response to a
physician inquiry about the role of Neurontin for the
treatment of migraine, but failed to disclose the
negative findings of its European studies on migraine
and Neurontin.
In re Neurontin Mktg. & Sales Practices Litig., 677 F. Supp. 2d
479, 492 (D. Mass. 2010).
Accordingly, this Court will take a pass on defendants’ Hail
Mary pass-on theory regarding increased premiums because there
was a viable fraud-by-omission claim, this theory was poorly
developed legally and factually by defendants, and the Eleventh
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Circuit in Ironworkers did not consider the important policies
underpinning Hanover Shoe.
II.
ORDER
The Court DENIES defendants’ Motion for New Trial and to ReOpen Evidence or, Alternatively, to Alter or Amend Judgment
(Docket No. 3362).
/s/ PATTI B. SARIS
PATTI B. SARIS
United States District Judge
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