Procrit whistleblower case revived by First District appeals court decision

In a stunning turn of events on what could be one of the largest Qui Tam cases in US history, the First Circuit Federal Appeals Court released it's opinion today reinstating a part of the whistleblower claim against Ortho Biotech, the Johnson & Johnson subsidiary, regarding the alleged kick back scheme for it's drug Procrit.

You may read the entire opinion by clicking the link here, The case number is 08-1409 and the name is United States, ex rel. Mark Eugene Duxbury and Dean McClellan, Plaintiffs vs Ortho Bio Products.

This case was spearheaded by Attorney Jan Schlichtmann on behalf of the relators Duxbury and MacClellan and when the trial court dismissed the claim, the appeal was filed and argued in mid 2008 and today's decision affirmed part of the decision but cleared the way for the Duxbury claim on kick backs and rebating tied to the off label marketing and use of Procrit in oncology clinics and hospitals.

We will be having Attorney Jan Schlichtmann on Speaking of Justice today to discuss the courts ruling, his thoughts on the elements that were affirmed as well as the next steps in this long dormant but now front page Whistle Blower case regarding Procrit and the marketing of it's off label use. As long time readers of this page will recall this was also featured in a Wall Street Journal profile on the case at about the time of the original trial in 2007 and while many had given the case up for dead, the Appeals Court has done a comprehensive analysis of what the bar is to filing a Whistle Blower claim and brought in a real stunner on what could be a massive potential claim against Ortho Biotech.

Of interest to structured settlement and claims professionals is the fact that this case is also potentially one of the largest non-qualifed structured settlement cases in US history due to the early and comprehensive use of a 468B trust to handle any and all claims attached to this Qui Tam case and subsequent litigation. This will be an intriguing case to follow so don't miss this broadcast!

Posted on August 13, 2009 .