95 F. Supp. 3d 1208
E.D. Cal.2015Background
- Relator Frank Solis, a former sales rep for Millennium, Schering‑Plough, and Merck, sued under the False Claims Act (FCA) alleging off‑label promotion and kickbacks caused false Medicare/Medicaid/TRICARE claims for Integrilin and Avelox; the government declined to intervene.
- Earlier, the court dismissed Solis’s “combination use” Integrilin claims under the FCA public‑disclosure bar and allowed a Second Amended Complaint (SAC) omitting those allegations.
- Millennium co‑promoted Integrilin from 2002–2005 before transferring U.S. marketing rights to Schering‑Plough; Solis worked for Millennium during 2003–2005.
- The SAC alleges Millennium paid grants, honoraria, speaker fees, meals, advisory boards and preceptorships to induce off‑label Integrilin prescribing, violating the Anti‑Kickback Statute and the FCA.
- Millennium moved to dismiss under Rule 12(b)(1) asserting Solis’s remaining claims are barred by the FCA public‑disclosure provision because five federal lawsuits filed in 2007 publicly disclosed substantially the same kickback/off‑label allegations.
- The court granted Millennium’s jurisdictional motion, finding the 2007 complaints publicly disclosed the essential allegations and Solis failed to prove he was an “original source”; state law claims against Millennium were dismissed for lack of federal predicate and the court declined supplemental jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the public‑disclosure bar strips jurisdiction over Solis’s FCA claims against Millennium | Solis: prior complaints named multiple "Subject Drugs" and did not specifically disclose Integrilin‑specific schemes; Solis claims some Integrilin allegations (free samples) were novel | Millennium: five 2007 federal complaints publicly disclosed substantially similar kickback and off‑label promotion allegations that included Integrilin as a Subject Drug | Court: The 2007 complaints constituted public disclosures; their allegations were substantially similar and sufficient to trigger the bar |
| Whether Solis qualifies as an “original source” to overcome the public‑disclosure bar | Solis: asserts he had direct knowledge and provided information to the government before filing | Millennium: Solis did not have any role in or connection to the prior public disclosures and was not a source for those filings | Court: Solis failed to show he was an original source (no hand in prior disclosures); jurisdiction lacking |
| Whether federal claims dismissal requires dismissal of related state FCA claims against Millennium | Solis: state claims correspond to federal allegations and thus should proceed | Millennium: state claims hinge on the same federally barred theory; no federal predicate remains | Court: Dismissed state claims against Millennium and declined supplemental jurisdiction |
| Whether leave to amend should be granted after jurisdictional dismissal | Solis: (implicitly) sought to proceed; previously granted leave to amend once | Millennium: argues bar is jurisdictional and cannot be cured by amendment | Court: Dismissal is with prejudice as to jurisdictional defect; no further leave to amend allowed |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (jurisdictional burden on party asserting federal jurisdiction)
- Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (court’s independent obligation to determine subject‑matter jurisdiction)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (subject‑matter jurisdiction cannot be forfeited or waived)
- Rockwell Int’l Corp. v. United States, 549 U.S. 457 (public‑disclosure bar and relator standing under FCA)
- Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401 (public‑disclosure bar should be construed broadly)
- United States ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195 (9th Cir.) (public‑disclosure: need only be substantially similar)
- A‑1 Ambulance Serv., Inc. v. California, 202 F.3d 1238 (9th Cir.) (two‑part test for public disclosure and original source analysis)
- Wang ex rel. U.S. v. FMC Corp., 975 F.2d 1412 (9th Cir.) (additional requirement that relator have had a hand in the public disclosure)