Our whistleblower lawyers filed a qui tam complaint several years ago that lead to a $108 million settlement by Avanir Pharmaceuticals. The Department of Justice announced today that this settlement resolves whistleblower claims brought by our clients and others under the False Claims Act.
The whistleblower complaint was focused on two major claims. Our first claim alleged that Avanir had engaged in the false marketing, promotion, and billing of Nuedexta, a drug used to treat a rare neurological condition known as PBA (pseudobulbar affect) and Avanir’s most profitable drug. Despite the fact that Nuedexta is only approved by the government to treat PBA, Avanir marketed and promoted Nuedexta to long term care facilities and other healthcare providers for all kinds of off-label and unapproved uses, such as controlling disruptive patients or treating common conditions like depression.
For years, Avanir spent millions of dollars misleading and influencing healthcare providers to increase their prescriptions of Nuedexta, which were billed to Medicare, Medicaid, and other state and federal health programs. Even though PBA is a rare condition, Avanir’s propaganda campaign resulted in millions of patients being inaccurately diagnosed with PBA and millions of Nuedexta prescriptions being issued for off-label uses. In fact, Avanir specifically targeted elderly dementia patients at long term care facilities, and one doctor who was a paid speaker for Avanir had “entire units” of patients taking Nuedexta at his long term care facility. Meanwhile, Avanir made millions of dollars.
Our complaint also alleged that Avanir paid illegal “kickbacks” (basically bribes) to doctors and other healthcare providers to falsely diagnose patients with PBA and prescribe Nuedexta for off-label uses. These prescriptions were billed to federal and state healthcare programs over several years to the tune of almost a hundred million dollars. To get doctors to prescribe Nuedexta, Avanir offered them money, travel, and speaking fees. For example, Avanir paid one doctor to give 55 speeches over the course of a year, though attendance records for these speeches indicate that they were just a sham to conceal Avanir’s kickbacks to the doctor.
Fortunately, our clients discovered this pervasive fraud and blew the whistle. As employees of Avanir, our clients were directed by their supervisors and other higher-ups to promote Nuedexta across the country and pitch Nuedexta for off-label uses to nursing homes, assisted living facilities, and psychiatric treatment center, and long term care facilities. When our clients became aware of the fraud, they decided to hire our whistleblower attorneys to file a whistleblower lawsuit against Avanir under the False Claims Act.
Under the False Claims Act, an individual can file a lawsuit on behalf of the federal government if the individual has personal knowledge that another person or organization is committing fraud against the government by making or filing false claims. False claims can include, among other things, fraudulent invoices to Medicare for services that were never rendered, falsely billing the government for contract work that was never completed, or falsifications on tax forms.
An individual with knowledge of false claims can file a whistleblower lawsuit under seal, meaning it is kept secret, while the government investigates the claims made in the lawsuit. If the government takes over the case and recovers its losses, the individual is usually given a whistleblower award that is a share of the amount recovered. If the government does not join the case, the individual can continue litigating it and will be entitled to a higher award if he or she can recover the government’s losses.
Our whistleblower attorneys have been able to help many other whistleblowers uncover fraud against the federal government and obtain awards for their assistance to the government. If you believe you have knowledge of another person or company committing healthcare fraud against the government, especially in the form of paying or receiving illegal kickbacks or falsely marketing drugs for off-label uses, you should consider pursuing a whistleblower lawsuit.