Wilson v. Bristol Myers Squibb, Inc. et al

Filing 135

Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA
ex rel., MICHAEL WILSON,
Plaintiff,
v.
BRISTOL-MYERS SQUIBB,
INC., et al.,
Defendants

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C.A. No. 06-12195-MLW

ORDER
WOLF, D.J.

February 6, 2013

With regard to the February 7, 2013 hearing, the court at
present intends to hear argument, and possibly decide the issues
raised, in defendants' pending motions to dismiss in the following
sequence:
1. Whether the court has jurisdiction over the claims asserted
by relator Michael Wilson in the Second Amended Complaint for
Damages Under the Federal False Claims Act and Various State False
Claims Acts and Demand for Jury Trial (the "SAC") because of the
False Claim Act's (the "FCA's") first-to-file bar to jurisdiction.
See 31 U.S.C. §3730(b)(5). It is the court's tentative view that,
under the first-to-file test, Wilson may not qualify as the first
relator

to

file

claims

against

the

defendants

in

this

case

regarding the drugs Pravachol and Plavix. See United States ex rel.
Duxbury v. Ortho Biotech Prod., L.P., 579 F.3d 13, 32-33 (1st Cir.
2009).
2. Whether any claim of fraud with regard to any drug as to
which the court has jurisdiction in light of the FCA's first-to-

file bar is pled in a manner that satisfies, in particular, the
requirements of Federal Rule of Civil Procedure 9(b). The parties
should be prepared to address which, if any, of the allegations
that defendants claim relator impermissibly asserts in the SAC –
because of the dismissal with prejudice, release, and/or the FCA's
public disclosure rule, see 31 U.S.C. §3730(e)(4) – are material to
the Rule 9(b) analysis and also plan to address the merits of the
contention that each such allegation is barred.1
In addition, the parties should be prepared to discuss how the
permissible allegations in the SAC compare and contrast with the
allegations in analogous cases, including but not limited to,
Duxbury, 579 F.3d at 29-32 (concluding that relator's allegations
"pass muster for purposes of Rule 9(b)"); United States ex rel.
Rost

v.

Pfizer,

Inc.,

507

F.3d

720,

732-33

(1st

Cir.

2007)

(concluding that the allegations were insufficient under Rule
9(b)), overruled on other grounds by Allison Engine Co., Inc. v.
United States ex rel. Sanders, 553 U.S. 662 (2008); United States
ex rel. Banigan v. Organon USA Inc., No. 07-12153-RWZ, 2012 WL
1997874, at *12-16 (D. Mass. June 1, 2012) (finding some of
relators' allegations insufficient and others sufficient under Rule
9(b)); United States ex rel. Nowak v. Medtronic, Inc., 806 F. Supp.
2d 310, 353-57 (D. Mass. 2011) (holding that relator failed to

1

The parties shall confer concerning these issues
particularly prior to the February 7, 2013 hearing.
2

allege

fraud

with

particularity);

United

States

ex

rel.

Westmoreland v. Amgen, Inc., 738 F. Supp. 2d 267, 276-78 (D. Mass.
2010) (concluding that pleadings were sufficient under Rule 9(b)).
3.

Whether relator's employment claims are pled in a manner

that satisfies the requirements of Rules 8(a)(2) and 12(b)(6).
4. Whether relator should be granted leave to amend the SAC,
if any permissible claim is not now properly pled in the SAC.

/s/ Mark L. Wolf
UNITED STATES DISTRICT COURT

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