Lawyers for Michael Duxbury, a onetime regional sales manager for the blockbuster anemia drug Procrit, estimate that his False Claims Act case against the Johnson & Johnson Ortho Biotech Products subsidiary is worth at least $3 billion, and possibly as much as $10 billion. What they can’t understand, say Jan Schlictmann (of A Civil Action fame) and Paul Simmerly of Heman Recor Araki Kaufman Simmerly & Jackson, is why the federal government seems to want no part of Duxbury’s allegations that Ortho Biotech induced medical centers to file false claims for Medicare reimbursement by providing free samples of Procrit.
Last week a three-judge panel of the U.S. Court of Appeals for the First Circuit revived Duxbury’s case, finding in a painstaking 47-page opinion that Boston federal district court judge Rya Zobel erred when she granted Ortho Biotech’s motion to dismiss the case on the grounds that Duxbury didn’t sufficiently plead his allegations. (The appellate panel affirmed Zobel’s dismissal of Duxbury’s false marketing claims and her finding that the claims of another whistle-blower, Dean McClellan, were barred because he wasn’t an “original source” under the False Claims Act.) “We’re ecstatic,” Simmerly told the Litigation Daily. “We’re ready to go to trial.”
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