Wednesday, September 22, 2010

Judge: Despite Defense Jury Verdict Drug Company Must Pay


Judge: Pharma Company Overcharged State by $27.6 Million

The Legal Intelligencer
September 22, 2010 
A Commonwealth Court judge has ordered pharmaceutical company Bristol-Myers Squibb Co. to stop inflating the wholesale price of its drugs purchased by the state's pharmaceutical drug programs for the poor and for the elderly.
Commonwealth Court Judge Robert E. Simpson said in a Sept. 10 order in Commonwealth of Pennsylvania v. Bristol-Myers Squibb Co. that Bristol-Myers, headquartered in New York City, violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law with unfair or deceptive practices. The judge said Bristol-Myers owes $27.6 million to the state of Pennsylvania for the price of drugs charged in violation of fair trade practices.
But the judge said in his order that he was not awarding damages or attorney fees. The judge said he did not have sufficient information to calculate civil penalties because the plaintiff's expert did not limit his information to how many times the average wholesale price changed for Bristol-Myers Squibb's drugs from 1991 until 2004 and the expert may have included drugs not subject to the litigation.
Simpson's order followed a defense jury verdict in the case. The jury did not find common-law negligent misrepresentation or fraudulent misrepresentation by Bristol-Myers Squibb, Simpson wrote, but he said that the standard under the unfair trade practices law is different. A plaintiff's lack of reliance on the representation and a plaintiff's knowledge that a representation is inaccurate are not "complete defenses in an enforcement action brought in the public interest," Simpson said.

Wednesday, September 15, 2010

Meeting with Pharmaceutical Company Corporate Counsel Next Week

The doctor is the real customer for prescription medications. The doctor can also get legal standing  by buying a share of company stock. Such ownership would allow the doctor to intervene when a company is about to make a mistake detrimental to the interest of the doctor and of the patients.

I hope the attorney will allow recording of the meeting so it may be posted here.

Here are some areas of concern.

1) Most of the enforcement actions of the DOJ on behalf of the FDA have been of mala prohibita, with no evidence of any harm to patients.  Off label promotion most often benefits patients. If it can be shown to have helped some patients. Therefore they are pretextual (false) uses of the law to raise revenue for the government. These prosecutions should get enjoined as a matter of policy to protect research, the interests of patients, and the independence of street clinicians to help patients.

2) Why not attack the prosecutor, the FDA officials, the whistleblowers, and the judges? They are mortal enemies to clinical care and deserve no human consideration. Personal destruction should be a standard price paid by all enemies of clinical care. It can start with total e-discovery of their personal and government computers. As a start, the government is the biggest subscriber and downloader of child porn. The prosecutor will say, these images are part of his job. Sure. That is what all perps say. Let him explain them to the FBI. Every utterance should be parsed for a violation of a professional rule of conduct and reported to the appropriate investigatory authority. Let these enemies of clinical care undergo perpetual state of being the target of an investigation. Such a tactic in the past resulted in the end of a long line of lawsuits, the exit of the lawyer from that field, and the experts never testifying again.

3) Off label use and promotion is the biggest source of undiscovered medical advance at no additional cost. If a company is accused of such, it should ask the judge, to dismiss the case as a matter of policy. Such prosecutions deter the massive lode of medical advances yet to be mined.

4) Black box, class warning labels not applicable to a member should be resisted to avoid the deterrence of the non-specialist.

5) The campaign against industry sponsorship of continuing education, sandwiches, pens, etc. is not driven by misguided, crazed left wing ideologues. It is driven by evil insurance companies. They want to end the prescribing of brand name medications to dark skinned people on Medicaid, to enhance the profitability of their government contracts. Senator Grassley, on a witch hunt against drug companies is a paid stooge of Blue Cross/Blue Shield. When people write to persuade me to switch to obsolete medications. I offer to come over, and to give these medication to their pets. They refuse. So, why would I should feel pressure to switch to a generic when these are not acceptable for use in animals?

6) I may buy a share of stock in every pharmaceutical company. That would give me standing to file an intervention claim every time a phony settlement is agreed upon. These settlement hurt the shareholder and the public interest. They should be blocked on policy grounds and any prosecution enjoined.

7) I propose the establishment of a public interest interest law firm funded by $million each year from each pharmaceutical company. It would sue the enemies of clinical care, and hound them, including the bureaucracy. It would campaign to hobble and eliminate the FDA, as an obstacle to medical progress.