The plaintiff in a whistleblower lawsuit filed against Boston Scientific (NYSE:BSX) wants a federal appeals court to keep the case alive, arguing that the "first-to-file" rule doesn’t apply because an earlier complaint lacked specificity
Heidi Heineman-Guta in November 2009 sued Guidant and its corporate parent, which paid $26 billion for Guidant in 2006, alleging that BSX cooked up a scheme to promote off-label uses for its cardiac rhythm management devices and ran a kickbacks scheme to bribe surgeons to use the devices, according to court documents.
The federal government declined to join the qui tam suit, unsealing it, and Heineman-Guta amended her complaint in January of this year in the U.S. District Court for Massachusetts, adding charges of False Claims Act violations of the Anti-Kickback Statute and conspiracy.
Boston Scientific countered with a bid to have the case dismissed under the FCA’s so-called "first-to-file" rule, which blocks subsequent qui tam suits that allege substantially identical charges. In July the district court agreed, dismissing the case and prompting Heineman-Guta to appeal to the U.S. Court of Appeals for the 1st Circuit.
BSX argued that a previous case, filed by Elaine (then George) Bennett, brought nearly identical charges against it. That case was voluntarily dismissed in October 2011, shortly after the feds declined to join.
But Heineman-Guta argued that the "essential facts" test cited by Boston Scientific doesn’t apply.
"In fact, no court has used the ‘essential facts’ test as a basis to evaluate whether the government has received sufficient notice from a complaint such that any subsequent complaints ought to be barred," according to court documents. "The district court’s use of the ‘essential facts’ test in this context – to determine whether the government got sufficient notice of the allegations so that barring subsequent complaints is justified – therefore constitutes error."
