Drug makers, CVS seek eighth extension to respond to opioid suit DOJ wants dismissed

By Heather Isringhausen Gvillo | Mar 1, 2019

Drug makers and retailer CVS filed their eighth motion for an extension of time to answer an opioid suit involving an alleged unlawful marketing scheme. 

On Feb. 25, defendants UCB Inc., RxC Acquisition Company, Omnicare Inc., and CVS Health Corporation jointly move the court, with agreement of CIMZNHCA LLC’s counsel, to extend the time to respond to the complaint until May 10.

“This motion is made in the interest of justice, not to delay the proceedings, and will not result in prejudice,” the motion states.

CIMZNHCA, or NHCA, is a holding company of Venari Partners, doing business as National Health Care Analysis Group. 

The defendants first sought an extension to answer the complaint on March 26, 2018, after they were served with the complaint on March 6. 

Then on April 25, 2018, the defendants filed a motion to transfer venue to the U.S. District Court for the District of New Jersey. NHCA filed an opposition on May 9.

The defendants then moved for extensions while waiting for the court to enter a ruling on the motion to transfer on May 3, June 18, Aug. 27, Oct. 23 and Dec. 14. 

On Dec. 17, U.S. attorney Nathan Stump moved to dismiss the suit, along with 10 other false claim suits filed in eight districts, for allegedly wasting the government’s time. 

The defendants argue that the pending motions warrant an extension. 

“As explained in defendants’ previously filed extension motions, an extension of defendants’ deadline to respond to the complaint would conserve the resources of the court and the parties.

“If defendants were to move to dismiss the complaint by the current deadline of March 11, 2019, the briefing on that dispositive motion would need to be revised if the court were to grant the pending motion to transfer venue, as the parties would need to address the applicable case law in the transferee district.

“Additionally, if the court were to grant the United States’ motion to dismiss, that would render moot any briefing by defendants of their anticipated motions to dismiss,” the motion for an extension of time states.

In the motion to dismiss, Stump wrote that the allegations conflicted with important policy and enforcement prerogatives of federal healthcare 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. 

NHCA filed a response to the motion to dismiss through attorney Richard Burke of Highland Park, who is a former class action lawyer at Tom Lakin’s Wood River firm, and Lance Gould of Beasley Allen Crow Methvin Portis & Miles PC in Montgomery, Ala.

“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 Jan. 22 response states. 

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. The United States allegedly chose not to intervene in the case on Dec. 14, 2017. 

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.

A hearing on the motion to dismiss is scheduled for March 29. 

UCB is represented by W. Jason Rankin of HeplerBroom in Edwardsville. 

RxC is represented by Luke G. Maher of St. Louis. 

CVS is represented by Julie Fix Meyer of St. Louis. 

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