United States ex rel. Booker v. Pfizer, Inc.
188 F. Supp. 3d 122
D. Mass.2016Background
- Relators Booker and Hebron (former Pfizer sales reps) filed a qui tam FCA suit alleging post-2009 unlawful promotion of Geodon (off-label promotion, misrepresentations, and kickbacks via a speaker program); the government declined to intervene.
- The operative pleading is the Fifth Amended Complaint; the court previously dismissed many theories but allowed certain Geodon off-label and kickback claims and Booker's retaliation claim to proceed to discovery.
- Parties filed cross-motions for summary judgment; relators failed to comply fully with Local Rule 56.1, so many of Pfizer’s facts were treated as uncontested.
- Relators sought summary judgment only on Pfizer’s knowing off-label promotion; Pfizer sought full summary judgment and moved to strike certain declarations (Booker, Furmanek) and obtain fees for discovery violations.
- The key factual disputes concerned: (1) whether off-label prescriptions reimbursed by Medicaid constituted false claims traceable to Pfizer’s promotion; (2) whether Pfizer’s speaker series was a sham kickback scheme; and (3) whether Booker’s termination was retaliatory under 31 U.S.C. § 3730(h).
- The court granted Pfizer’s summary judgment: relators failed to show specific false claims or admissible evidence of false claims from off-label promotion; insufficient admissible evidence that the speaker program was a sham; and Booker’s claimed protected activity did not support a retaliation claim. The court struck portions of the declarations and awarded Pfizer $5,000 in fees for a discovery-order violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Off-label promotion → FCA liability (false claims) | Relators: aggregate prescribing patterns and declarations show off-label prescriptions were submitted to Medicaid because of Pfizer’s promotion | Pfizer: relators lack evidence of any specific false claim; many states reimburse the contested off-label uses; relators’ affidavits are inadmissible conclusory statements | Held: Summary judgment for Pfizer — relators failed to identify admissible, specific false claims and many states covered the off-label uses, defeating FCA liability |
| Admissibility of Booker & Furmanek declarations | Relators: declarations attest to observed submissions and prescribing increases | Pfizer: declarations lack foundation, are hearsay, and do not meet Fed. R. Civ. P. 56(c)(4) | Held: Court struck those portions of the declarations that purported to show existence of false claims or relied on hearsay |
| Anti‑kickback (sham speaker program) | Relators: speaker selection, small-group format, ROI tracking, and witness testimony show the series was a sham to pay prescribers | Pfizer: written contracts, FMV analyses, compliance trainings, and lack of documentary proof that speakers (not attendees) were paid to prescribe; tracking showed attendee prescriptions, not speaker scripts | Held: Summary judgment for Pfizer — record lacks admissible evidence that the program was a sham or outside personal‑services safe harbor |
| Retaliation under FCA § 3730(h) | Booker: multiple complaints and statements to Compliance and managers about improper promotion led to termination | Pfizer: termination was driven by longstanding performance plans and preexisting decision to fire Booker; some reported acts were anonymous or not connected to false‑claim allegations | Held: Summary judgment for Pfizer — Booker did not establish protected conduct causally linked to his firing; earlier performance-based termination decisions predated some reports |
Key Cases Cited
- U.S. ex rel. Karvelas v. Melrose‑Wakefield Hosp., 360 F.3d 220 (1st Cir.) (false‑claim element and protected conduct scope under FCA)
- U.S. ex rel. Duxbury v. Ortho Biotech Prods., L.P., 579 F.3d 13 (1st Cir.) (specificity required to infer submission of false claims)
- U.S. ex rel. Rost v. Pfizer, Inc., 507 F.3d 720 (1st Cir.) (requirements for proving false claims where defendant did not submit claims directly)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden‑shifting principle)
- Santiago v. Canon U.S.A., Inc., 138 F.3d 1 (1st Cir.) (affidavits must provide more than conclusory allegations at summary judgment)
- Perez v. Volvo Car Corp., 247 F.3d 303 (1st Cir.) (inadmissible, vague affidavits cannot defeat summary judgment)
- Kenney v. Floyd, 700 F.3d 604 (1st Cir.) (hearsay cannot be considered on summary judgment)