United States Ex Rel. Duxbury v. Ortho Biotech Products, L.P.
719 F.3d 31
1st Cir.2013Background
- This is the second appeal in a decade-long FCA qui tam case by relator Mark Duxbury against OBP over Procrit marketing.
- Duxbury died in 2009; his surviving spouse substituted as relator, and Count I alleged kickbacks to providers from 1992–present, later narrowed by court orders.
- Duxbury I upheld dismissal of some counts and allowed remand for 1992–1998 kickback claims to proceed with Rule 9(b) particularity; other claims remained dismissed for lack of jurisdiction.
- On remand, district court limited Count I discovery to November 1997–July 1998 and to five Washington accounts due to original-source and jurisdiction limitations.
- After discovery, Duxbury conceded no admissible evidence supported the remaining Count I claims; OBP moved for summary judgment, which the district court granted in 2012.
- Duxbury appeals the discovery limitations and the district court’s reliance on the stipulation to grant summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether discovery limitations were proper. | Duxbury argues broader discovery was required by Duxbury I and Rule 9(b). | OBP contends limits were within district court discretion and consistent with Duxbury I and Rost. | Yes; limits were proper and within district court discretion. |
| Whether subject-matter jurisdiction and scope of Count I were properly confined. | Duxbury claims district court misread public-disclosure/original-source rules to restrict Count I. | OBP asserts district court correctly limited Count I under original-source and scope rules; discovery limits align with Duxbury I. | Assuming jurisdiction, discovery limits were consistent with Duxbury I and proper. |
| Did the stipulation and discovery results support summary judgment? | Duxbury contends there was still a genuine issue for trial if more evidence existed. | OBP argues no admissible evidence existed to support remaining Count I claims and summary judgment was proper. | Yes; summary judgment affirmed based on lack of evidence. |
Key Cases Cited
- Rost v. Pfizer, Inc., 507 F.3d 720 (1st Cir. 2007) (Rule 9(b) particularity and scope of fraud allegations)
- Rockwell Int'l Corp. v. United States, 549 U.S. 457 (Supreme Court 2007) (public disclosure bar and original-source framework)
- Duxbury v. Ortho Biotech Prods., L.P. (Duxbury I), 579 F.3d 13 (1st Cir. 2009) (remand to limit Count I to 1992–1998 and Rule 9(b) analysis)
- Gagne v. City of Worcester, 565 F.3d 40 (1st Cir. 2009) (flexible Rule 9(b) standard in FCA context)
- Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493 (6th Cir. 2007) (paragraph-by-paragraph analysis for Rule 9(b) sufficiency)
- Atkins v. McInteer, 470 F.3d 1350 (11th Cir. 2006) (limits on discovery and pleading fraud specifics)
- Ashcroft v. Iqbal, 129 S. Ct. 1937 (Supreme Court 2009) (pleading standard and plausibility in civil cases)
- Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179 (1st Cir. 1989) (district court latitude in discovery management)
- Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) (discovery scope informed by reasonable limits)