District Judge Staci Yandle set a motion hearing for next month to address a U.S. attorney’s motion to dismiss an opioid suit against drug maker UCB and retailer CVS that he claims wasted the government’s time.
U.S. attorney Nathan Stump moved to dismiss the suit on Dec.17, along with 10 other false claim suits filed in eight districts.
Stump wrote that the allegations conflicted with important policy and enforcement prerogatives of federal health care programs.
The claims “would undermine common industry practices the federal government has determined are, in this particular case, appropriate and beneficial to federal health care programs and their beneficiaries,” Stump wrote.
Stump alleges that attorneys in the fraud section of the civil division of the Department of Justice spent 1,500 hours investigating claims implicating more than 73 million prescriptions written by hundreds of thousands of physicians for millions of beneficiaries. The hours spent investigating the claims didn’t include the time of other government attorneys, law enforcement agents, investigators and auditors.
CIMZNHCA, or NHCA, filed a response on Jan. 22, urging the court to prevent the Department of Justice from overreaching.
“Far from absolute, the power of the Executive Branch is subject to the system of checks and balances spelled out in the Constitution. Relator respectfully requests that the court scrutinize the government’s representations to ensure that the government’s motion does not reflect an overreach by the Executive Branch – or the biases, whims, or inertia of government officials or government lawyers. Relator respectfully requests a hearing with respect to the government’s motion,” the response states.
NHCA is a holding company of Venari Partners, doing business as National Health Care Analysis Group.
NHCA argues that in its motion to dismiss, the government “oversimplified and mischaracterized the Relator’s allegations” when it asserted that the support service activities amounted to “nothing more than ‘assisting physicians with the completion of insurance documents such as benefit verifications and prior authorization forms.’”
Allowing the government the right to dismiss the suit “directly contradicts the plain language of the False Claims Act,” NHCA argues.
NHCA further argues that the False Claims Act does not give the government an absolute and unreviewable right to dismiss meritorious lawsuits brought in the name of the United States.
NHCA filed the suit under seal in the U.S. District Court for the Southern District of Illinois on June 20, 2017 through attorney Richard Burke of Highland Park, who is a former class action lawyer at Tom Lakin's Wood River firm.
Burke sought to recover treble damages from alleged unlawful marketing schemes, plus civil penalties and restitution to the U.S. and 27 states.
Burke wrote that UCB provided free services to providers to induce them to recommend Cimzia – a drug that works to prevent inflammation that may result from an overactive immune system.
He argued pharmacies continued to submit claims to Medicare and Medicaid that were tainted by kickbacks, and providers didn’t necessarily prescribe Cimzia because they believed it would help their patients.