No Second Chance for Pfizer in $237 M Fraud

     (CN) – Pfizer lost its bid for another chance to prove that it did not suppress the truth about the negative effects of a drug it falsely claimed would help patients with neurological pain, which ended up costing Kaiser and its customers millions.
     In 2010, a Massachusetts federal jury awarded the Kaiser Foundation Health Plan more than $237 million in damages and restitution after U.S. District Judge Patti Saris found that Pfizer engaged in racketeering and fraud when it hid negative effects while marketing the neuropathic drug Neurontin.
     The trial court concluded that “Kaiser has proven that Pfizer fraudulently marketed Neurontin by showcasing positive information about Neurontin’s efficacy, while suppressing negative evidence from Pfizer-sponsored clinical trials.”
     It also said that “Kaiser has proven that there is little or no scientifically accepted evidence that Neurontin is effective for the treatment of bipolar disorder, neuropathic pain, nociceptive pain, migraine, or doses greater than 1800 mg/day.”
     Earlier this year, Pfizer moved for a new trial on various grounds, all of which Judge Saris rejected.
     Saris began with Pfizer’s claim that newly-discovered evidence entitles it to a new trial. The pharmaceutical giant pointed to a recent report issued by the Cochrane Group, an international non-profit, which states that “Gabapentin provides pain relief of a high level in about a third of people who take it for neuropathic pain.” Neurontin is a brand name for Gabapentin.
     Saris said the recent report does not bring forth any new information.
     “The Cochrane report is not newly discovered evidence that defendants could not have replicated before trial, but rather is a scholarly article that provides a meta-analysis of scientific studies, most of which were available during trial,” Saris wrote.
     The judge rejected Pfizer’s claim that the article is new evidence simply because it is uniquely independent and respected.
     “This argument displays a certain amount of chutzpah,” Saris wrote, noting that a 2005 Cochrane Report was unpersuasive to the trial court given that “Pfizer itself did not provide the Cochrane Group with all available studies prior to the trial because it fraudulently suppressed these studies.”
     Moreover, Saris found that Pfizer could not have succeeded even if the Court had considered the 2011 report.
     “I would likely still have concluded that Kaiser suffered damages because there were cheaper and more optimal drugs that physicians could have prescribed to Kaiser members had Kaiser and the doctors been aware of Pfizer’s suppression of negative information. Pfizer fraudulently marketed Neurontin for the treatment of neuropathic pain as a broad indication.”
     Pfizer also objected to the trial court’s admission of over a hundred exhibits related to the alleged racketeering scam between Pfizer and two medical marketing firms, saying that the exhibits were unfairly prejudicial.
     The judge disagreed.
     “Plaintiffs provided context for these exhibits” and “the Court took steps to avoid jury confusion” Saris wrote.
     Finally, Pfizer challenged the court’s admission of a Kaiser executive’s claim that an increase in a prescription drug’s cost would increase insurance premiums. Pfizer claimed that such losses were passed on to Kaiser’s insured customers years ago, such that considering them now would be speculative.
     Federal case law, however, disfavors “pass-on” arguments, according to the judgment.
     Past precedent does not “require those who are indirectly damaged to bring suit themselves,” Saris said. Otherwise, according to a 1968 case, “those who violate the antitrust laws by price fixing or monopolizing would retain the fruits of their illegality because no one was available who would bring suit against them.””This Court will take a pass on defendants’ Hail Mary pass-on theory regarding increased premiums because there was a viable fraud-by-omission claim,” Saris wrote.

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