By Gina Passarella
Of the Legal Staff
A federal judge in Florida granted AstraZeneca Pharmaceuticals’ motion to dismiss claims by the Pennsylvania Employees Benefit Trust Fund that the drug company fraudulently marketed its antipsychotic drug Seroquel.
The trust fund claimed unjust enrichment and a breach of express warranty, arguing AstraZeneca improperly marketed the drug for unapproved uses and improperly told doctors it was better and safer than similar alternatives, according to the opinion. PEBTF said the alleged false marketing cost the fund millions in reimbursements for the use of Seroquel issued to its Pennsylvania employees for medically unnecessary uses, the judge said.
U.S. District Judge Anne C. Conway of the Middle District of Florida ruled that PEBTF, as a fund that provides health insurance and prescription drug coverage for Pennsylvania employees, did not expressly receive the marketing pitches on Seroquel and was too remote from the alleged harm to have a viable claim.
The ruling is a win for Morgan Lewis attorneys J. Gordon Cooney Jr. and Brian Shaffer, who served as lead outside counsel for AstraZeneca. Robert L. Ciotti of Carlton Fields served as local counsel.
PEBTF was represented by Houston firm Bailey Perrin & Bailey, Florida attorney Larry M. Roth and Philadelphia-based Cohen Placitella & Roth, according to the docket.
In making her decision, Conway relied on a 2008 opinion by the same court in a case with a similar fact pattern, Ironworkers Local Union No. 68 v. AstraZeneca Pharmaceuticals. In Ironworkers, several health and welfare benefit funds sought economic damages for alleged overpayments for Seroquel prescribed to their members. They too cited the alleged unlawful promotion of the drug for unapproved uses along with the misrepresentation of its safety and efficacy, Conway said. While that case dealt with RICO claims, Conway said the underlying reasoning applied to PEBTF’s claims.
“This court dismissed the [Ironworkers] complaint for plaintiffs’ failure to establish that their economic injuries were proximately caused by defendants’ alleged unlawful conduct, citing serious concerns about the difficulties inherent in determining, on a transaction-by-transaction basis, whether, and to what extent, defendants’ unlawful conduct caused each Seroquel prescription to be written by plaintiffs’ members’ physicians,” Conway said in PEBTF.
The Ironworkers court said there were several factors that could play into why a doctor would prescribe a certain drug, with the drug company’s marketing being just one. Conway said PEBTF presents no fewer difficulties in determining the cause of the alleged harm.
The case was transferred to Florida from the Eastern District of Pennsylvania in February. Conway entered her order July 18.