Shook, Hardy & Bacon Associate Timothy Moore discusses False Claims Act expansion in “Discovering Originality: Why the Third Circuit’s Expansion of False Claims Act Liability Makes Other Litigation a Lot More Dangerous for Pharmaceutical and Medical Device Companies.” Moore’s article appeared in the April 15, 2016, edition of DRI’s Rx for the Defense, the newsletter of DRI’s Drug and Medical Device Committee.
Noting that pharmaceutical and medical device companies are often “in the crosshairs of fraud litigation brought under the federal False Claims Act,” Moore explains that in United States ex rel. Moore & Company, P.A. v. Majestic Blue Fisheries, LLC, “the Fourth Circuit concluded that a law firm could pursue a False Claims Act case based on facts it discovers while conducting discovery in unrelated litigation.”
Regarding the importance to pharmaceutical and medical device companies, Moore shares this:
With the possibility of filing a False Claims Act case based upon discovery stemming from a product liability case, pharmaceutical and medical device companies can expect plaintiffs’ lawyers to be more aggressive about including and pursuing discovery on those allegations. Furthermore, plaintiffs’ lawyers are likely to include and seek discovery regarding allegations of other practices that have led to False Claims Act enforcement actions, such as sham consultancies or other disguised kickbacks.
Moore closes the article with several recommendations for reducing the risk of FCA claims against pharmaceutical and medical device companies, including this: “Retain counsel knowledgeable about the False Claims Act to assist with analyzing the case, developing your defense strategy, and responding to discovery.”