Friday, January 15, 2010

United States Intervenes in Whistleblower Action Against J&J Filed by Former Omnicare Employee David Kammerer

The United States has intervened in a False Claims Act qui tam action filed by whistleblower David Kammerer against Johnson & Johnson. Shelley R. Slade, counsel for Mr. Kammerer, comments on the lawsuit, which alleges that J&J paid kickbacks to get long term care pharmacy Omnicare to push doctors to prescribe J&J’s anti-psychotic drug Risperdal for elderly patients in nursing homes.

Washington, DC (PRWEB) January 15, 2010 -- Vogel, Slade & Goldstein, LLP, announced that the United States filed a complaint today intervening in a False Claims Act qui tam action against Johnson & Johnson (“J&J”) that was filed in 2005 by David Kammerer, a client of Vogel, Slade & Goldstein, LLP. The action, captioned United States ex rel. Kammerer, et al. v. Abbott, et al., No. 05-11518 RGS (D. Mass.), is pending in federal district court in Massachusetts. Mr. Kammerer, a former financial analyst at long term care pharmacy Omnicare, alleged in his 2005 action that J&J paid kickbacks to Omnicare in the form of deep rebates, purported “Review Program” educational grants and other payments, to induce Omnicare to favor J&J’s anti-psychotic drug, Risperdal, over other anti-psychotic drugs, and to increase sales of Risperdal overall. He also alleged that J&J concealed these inducements from Medicaid to avoid having to report a “best price” that would have triggered a legal obligation to refund monies to Medicaid.

Mr. Kammerer’s attorney, Shelley R. Slade of Vogel, Slade & Goldstein, LLP, noted that “the allegations in this case are particularly serious given the fragile state of our financial safety net and the aging of our population. J&J’s alleged misconduct not only resulted in Medicaid paying for prescriptions it otherwise would not have paid for, it also was part of a marketing campaign aimed at getting patients with nothing more than age-related, dementia placed on a dangerous anti-psychotic medication as a form of chemical restraint. We should be concerned about these allegations not only as taxpayers but as friends and family of loved ones in nursing homes.”

Among other things, the United States’ complaint alleges that J&J sought to conceal kickbacks, and simultaneously to avoid an obligation to disclose its “best price” to the joint federal-state Medicaid program, by paying funds to Omnicare pursuant to a sham “Data Purchase Agreement.” The United States alleges that J&J continued to pay Omnicare under this Data Purchase Agreement notwithstanding the fact that Omnicare did not provide the requested data. The Government further alleges that J&J used deep rebates, “Review Program” educational grants and other sorts of financial inducements, to induce Omnicare to move its products. J&J paid the funds, according to the Government’s complaint, to induce Omnicare to increase sales of J&J drugs. At the same time that it filed its complaint in Mr. Kammerer’s action, the Government also intervened in an action complaint filed by former Omnicare pharmacist, Bernie Lisitza. Mr. Lisitza first sued J&J for the Risperdal scheme in an amended complaint filed in 2006. See United States ex rel. Listiza, et al. v. Pfizer et al., Civil Action No. 07-10288 RGS (D. Mass.).

While at Omnicare, Mr. David Kammerer worked within corporate headquarters and reported to Omnicare Senior Vice President, Tim Bien. Mr Kammerer resigned from Omnicare in 2002 to start his own consulting business. He currently audits long term care pharmacies’ invoices to nursing homes and their residents, identifying overcharges and other inappropriate billing practices.

After reaching a $98 million settlement with Omnicare in November 2009 based on various kickback schemes, including the Risperdal scheme, the Government awarded relator shares to three whistleblowers: Mr. Kammerer, Ms. Deb Maguire, another former Omnicare employee, and Mr. Adam Resnick. The Government at the same time reached a $14 million settlement with Ivax, and paid a relator share from that settlement to Mr. Kammerer. These awards, which were made pursuant to the so-called “qui tam” provisions of the federal False Claims Act, 31 U.S.C. § 3730 (b)-(d), were intended to compensate these three individuals for their roles in reporting the fraud.
         
Ms. Slade is an attorney with Vogel, Slade & Goldstein, LLP, a Washington, D.C. firm with a nationwide practice representing qui tam plaintiffs under the federal, False Claims Act. A former Senior Counsel for Health Care Fraud at the Department of Justice in Washington, D.C., she now serves on the Board of Directors of Taxpayers Against Fraud and has testified before the House Judiciary on the importance of the federal False Claims Act and its qui tam provisions.

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