Last Thursday in the Southern District of California, Abbott Laboratories, Inc., Abbott Cardiovascular Systems Inc., and Abbott Vascular Inc. (collectively, Abbott) filed a memorandum of points and authorities in support of a previous motion they had filed to dismiss a complaint. The complaint had been filed by Everest Principals (on behalf of the U.S. government and a number of states) and alleged that Abbott had engaged in a scheme of kickbacks so that they could boost usage of their heart procedure device, MitraClip.
Everest Principals is a single-member LLC and a former employee of the defendant, meaning they have personal knowledge of the misconduct they are alleging against Abbott. Their complaint cites violations of both the False Claims Act and Anti-Kickback Statute.
The defendant’s MitraClip device aims to repair leaks that may occur in a patient’s mitral valve. The complaint alleged that while Abbott would attempt to demonstrate the efficacy of MitraClip through studies, they would purportedly frequently only use the positive results to persuade physicians to endorse the product. These results, coupled with incentives, would result in doctors and hospitals referring the device. The incentives would include free marketing, meals, parties, cash payments, and more.
Abbott argues in their most recent filing that the plaintiff has failed to properly plead with particularity how the false claims they allege were submitted to each state they cite, as the Court instructed they do the last time their claims were dismissed without prejudice.
Abbott asserts that all the plaintiff has done in their amended complaint is “inserted the labels “nationwide,” “national,” and “in all states” a few more times, made some new general allegations about Abbott’s marketing and training, and added eight isolated allegations about what appear to be eight different doctors in four different states,” which they claim does not satisfy the pleading burden.
The nationwide label, Abbott contends, does not adequately allege state-by-state liability, just as the new allegations contained in the amended complaint fail to suggest wrongdoing. Further, the newest filing by Abbott states that “in addition to failing to allege facts plausibly alleging any kickbacks in any of the States, [plaintiff] does not even try to link these new allegations about the eight routine events to any particular MitraClip procedures for which the eight different doctors in question received state reimbursement.”
Abbott concludes by reasserting that the plaintiff must plead their False Claims Act claims with particularity, which they did not do, making their allegations fail under rule 9(b). They are seeking dismissal with prejudice.
The defendant in the litigation is represented by Jones Day.
