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Case 1:07-cv-12153-RWZ Document 100 Filed 02/28/11 Page 1 of 3
James Banigan and Richard Templin, et al.
Relators bring this lawsuit under the federal False Claims Act (“FCA”), 31 U.S.C.
§ 3730, and several state false claims acts against a number of pharmaceutical
companies alleging that they participated in a scheme to offer unlawful enticements to
third parties to prescribe a drug, Remeron SolTab, to patients, some of whom were
insured under Medicaid. The United States and individual states, including Texas,
investigated the matter but ultimately decided not to intervene. Texas, as part of the
investigation, subpoenaed documents from some defendants. These documents were
shared with relators, but a protective order prevented their use after Texas’
investigation concluded, subject to certain exceptions. One such exception is consent,
and defendant Organon USA Inc. consented to relators’ use of the Organon produced
documents. (Relators’ Opp’n 3-5, Docket # 95.)
Relators say they will use information from these documents to bolster the
factual allegations in a third amended complaint. Defendants Pharmerica Long Term
Case 1:07-cv-12153-RWZ Document 100 Filed 02/28/11 Page 2 of 3
Care, LLC and Omnicare, Inc. (“Movants”) object. They argue relators should be
prospectively barred from using information from the subpoenaed documents to amend
After reviewing the briefing and considering counsels’ arguments at the motion
hearing, I am persuaded that this issue is not ripe for review. Relators have yet to file
their third amended complaint. The record does not disclose the contents of the
subpoenaed documents or indicate what information therein relators intend to use. At
the moment, any concern about improper use of these documents is entirely
To the extent that Movants assert there is an absolute bar on a relator ever
using any government-subpoenaed document to reinforce an FCA complaint, they cite
no case so holding. To the contrary, other courts have either held or expressly
presumed that, in at least some instances, a relator may reinforce the complaint with
information obtained from government documents. U.S. ex rel. Rafizadeh v. Cont’l
Common, Inc., 553 F.3d 869, 873 n.6 (5th Cir. 2008) (citing U.S. ex rel. Russell v. Epic
Healthcare Mgmt. Grp., 193 F.3d 304, 308 (5th Cir. 1999)); U.S. ex rel. Clausen v. Lab.
Corp. of Am., 290 F.3d 1301, 1314 n.25 (11th Cir. 2002); U.S. ex rel. Underwood v.
Genentech, 720 F. Supp.2d 671, 680 (E.D. Pa. 2010) (finding “no authority . . . barring
amendments based on discovery the relator obtained from the Government” and
allowing relator to file an amended complaint utilizing documents obtained from the
Movants cite U.S. ex rel Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220 (1st
Case 1:07-cv-12153-RWZ Document 100 Filed 02/28/11 Page 3 of 3
Cir. 2004), in which the First Circuit held that Fed. R. Civ. P. 9 was the applicable
pleading standard for an FCA claim. Amendment was not at issue. It is discussed, in
dicta, only in the dissimilar context of amendment based on discovery not shared with
the government, to illustrate hypothetical problems that might arise if an FCA pleading
were governed by a relaxed Fed. R. Civ. P. 9. Karvelas, 360 F.3d at 228-231. I
decline to announce what would therefore be a new rule in this district on the basis of
speculation about what relators may include in a third amended complaint.
Defendants’ motion to preclude (Docket # 92) is DENIED.
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