A drug company worker accusing his employer of encouraging excessive dosage in heartburn medication prescriptions faces a last-ditch fight at the U.S. Supreme Court—whose decision could dramatically affect the chances of future whistleblower claims.
At the heart of the long-shot petition by Takeda Pharamceuticals sales rep Noah Nathan is the question of how much evidence whistleblowers must have on hand when they file lawsuits claiming the federal government has been defrauded. That question has been the subject of disagreements between federal appeals courts in rulings on other cases.
If Nathan convinces the Supreme Court to hear his appeal—and if it ultimately rules in his favor—he and other whistleblowers could have an easier time pursuing their claims than they currently do. That could in turn boost their potential to recover monetary damages for the government and themselves, lawyers said.
This week, Nathan's attorneys are set to answer a recent recommendation by the solicitor general—who argues on the federal government's behalf before the high court—that the Supreme Court not hear Nathan's appeal of a lower-court dismissal of the suit related to Takeda's medication Dexilant.
The solicitor general argued Nathan's case is not the right case to use to settle the lower courts' difference of opinion.
Nathan's action is "a very significant issue for defendants," said Douglas Hallward-Driemeier, a lawyer who heads the Supreme Court practice for Ropes & Gray, and who previously served as an assistant to the solicitor general.
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Hallward-Driemeier, who is not involved in Nathan's case, said he expects that if the suit prevails "you would see a lot more claims that aren't valid" being allowed to be pursued in federal court. That in turn would give plaintiffs the opportunity to conduct discovery to uncover additional evidence before trial, he said.
Hallward-Driemeier said that because discovery proceedings are "an extremely costly proposition for defendants," it could lead to more claims being settled before going to trial regardless of the merits of a case. He said there should be "a relatively high bar" that whistleblowers meet before being allowed to pursue a complaint.
But Nathan's appeals lawyers Jeffrey Lamken and Michael Patillo argue they have assembled enough evidence to meet the standard for whistleblower cases.
"Takeda's marketing practices caused physicians to unwittingly prescribe Dexilant at double the dose indicated for heartburn, potentially endangering the health of many American patients," said Bonnie Nathan. She is Noah's wife and a lawyer who has been involved in the litigation since it began in 2009.
According to Bonnie Nathan, the Supreme Court must make it clear that there was enough evidence, or it could seriously hamper the legitimate claims of others.
"This case is about ensuring that the courts do not make it more difficult for drug companies to be held accountable when they engage in such deceptive marketing schemes," she said.