Solis v. Millenium Pharmaceuticals, Inc., No. 15-16953 (9th Cir. 2018)
Annotate this CaseSolis alleged that his former employers violated the federal False Claims Act (FCA) by promoting dangerous off-label uses of a cardiovascular drug, Integrilin, and by paying physicians kickbacks to prescribe Integrilin and an antibiotic drug, Avelox. The district court found that Solis’s FCA claims were foreclosed by the public disclosure bar, which deprives federal courts of subject matter jurisdiction over FCA suits when the alleged fraud has already been publicly disclosed unless the relator is deemed an original source. The Ninth Circuit affirmed in part, holding that Solis’s Integrilin claims were substantially similar to those in prior public disclosures, and were close enough in kind and degree to have put the government on notice to investigate the alleged fraud before Solis filed his complaint. The court vacated the dismissal of Solis’s Integrilin claims and remanded for a determination of whether Solis qualified for the “original source” exception, 31 U.S.C. 3730(e)(4). Concerning Solis’s Avelox claims, the court held that the district court clearly erred in finding that the Avelox claims were publicly disclosed based on court complaints that never mentioned Avelox but affirmed the dismissal of Solis’s Avelox claims on the alternative ground of failure to plead with particularity as required by Fed.R.Civ.P. 9(b).
Court Description: False Claims Act. The panel affirmed in part, and vacated and remanded in part, the district court’s Fed. R. Civ. P. 12(b)(1) dismissal of a False Claims Act (“FCA”) action brought against three pharmaceutical companies. Frank Solis alleged that his former employers violated state law and the federal FCA by promoting dangerous off- label uses of a cardiovascular drug, Integrilin, and by paying physicians kickbacks to prescribe Integrilin and an antibiotic drug, Avelox. The district court found that Solis’s FCA claims were foreclosed by the public disclosure bar, which deprives federal courts of subject matter jurisdiction over FCA suits when the alleged fraud has already been publicly disclosed, unless the relator is deemed an original source, and declined to exercise supplemental jurisdiction over the state law claims. The panel held that Solis’s Integrilin claims were substantially similar to those in prior public disclosures, and were close enough in kind and degree to have put the government on notice to investigate the alleged fraud before Solis filed his complaint. The panel vacated the dismissal of Solis’s Integrilin claims and remanded for the district court to determine whether Solis qualified for the “original source” exception under United States ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121, 1123, 1129–30 (9th Cir. 2015) 4 UNITED STATES EX REL. SOLIS V. MILLENNIUM PHARM. (en banc). The panel did not reach the sufficiency of Solis’s Integrilin claims. Concerning Solis’s Avelox claims, the panel held that the district court clearly erred in finding that the Avelox claims were publicly disclosed based on court complaints that never mentioned Avelox. The panel affirmed dismissal of Solis’s Avelox claims on the alternative ground that they failed to satisfy Fed. R. Civ. P. 9(b). The panel remanded with instructions to the district court to determine whether to grant Solis leave to amend his Avelox claims.
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