The plaintiff in a whistleblower lawsuit against Biotronik only gets one bite at the apple, a federal appeals court ruled last week in tossing the False Claims Act suit.
The U.S. Court of Appeals for the Ninth Circuit upheld the dismissal of the second lawsuit brought by Max Bennett, a former Biotronik employee who alleged that the company ran a kickbacks scheme to entice doctors into using its cardiac rhythm management products. Bennett had filed his first suit shortly after another ex-Biotronik worker’s suit made similar allegations.
Biotronik agreed to pony up $4.9 million, but admitted no wrongdoing, to settle that case in November 2014. The allegations, made in a qui tam lawsuit filed by Brian Sant, include charges that the company paid doctors in Nevada and Arizona to either continue to use or to convert to using Biotronik pacemakers, defibrillators and cardiac resynchronization therapy devices.
The alleged inducements included “repeated meals at expensive restaurants” and “inflated payments for membership on a physician advisory board,” prosecutors said at the time.
The disposition of the Sant case led a three-judge panel on the 9th Circuit to a 2-1 ruling Dec. 1 that Bennett’s later lawsuit was precluded by the government-action bar prohibiting whistleblowers from filing qui tam lawsuits “based upon allegations or transactions that are the subject of a civil suit in which the government ‘is already a party.'”
Several claims from Sant’s lawsuit were dismissed without prejudice after the settlement agreement; in his dissent, Judge Eugene Siler Jr. argued that the government-action bar doesn’t prohibit whistleblower suits from original sources based on unresolved claims from before the government leaves or settles a case.