Supreme Court Shuns Pfizer Appeal in Neurontin Cases

, The Litigation Daily

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The U.S. Supreme Court declined on Monday to take up Pfizer Inc.'s challenge to a $142 million jury verdict and continued litigation stemming from the company's off-label marketing of the epilepsy drug Neurontin.

Pfizer's lawyers at Quinn Emanuel Urquhart & Sullivan filed a petition for certiorari back in August, arguing that a lower court improperly let plaintiffs take a shortcut to establish that Pfizer's Warner-Lambert unit violated the Racketeer Influenced and Corrupt Organizations Act by promoting Neurontin for off-label uses. Specifically, the Quinn lawyers complained that the plaintiffs didn't show that prescribing doctors relied upon any particular misrepresentations, and instead proved causation and damages by pointing to aggregate statistical evidence that Pfizer's off-label promotional spending increased prescriptions.

A Boston federal jury awarded Kaiser Foundation Health Plan, Inc. $47 million in damages in 2010 after a five week trial before U.S. District Judge Patti Saris. That award was subject to trebling under the RICO statute. Pfizer's cert petition challenged not only the jury verdict, but also another pair of April rulings from the U.S. Court of Appeals for the First Circuit in related cases in the Neurontin multidistrict litigation. In the other two cases, the First Circuit flipped Pfizer's earlier summary judgment and class certification wins before Judge Saris.

Quinn Emanuel's Kathleen Sullivan wrote in the company's cert petition that "the decisions below now invite an unlimited escalation in RICO and related cases against pharmaceutical companies for off-label promotion using the shortcut of aggregate proof."

Sullivan, the subject of a cover story in this month's edition of The American Lawyer, referred us to Pfizer spokesman Christopher Loder. In an emailed statement, Loder said the company has strong defenses in the remaining Neurontin cases. "Plaintiffs face significant hurdles before they even reach trial," Loder said.

An extensive line-up of appellate counsel handled briefing at the Supreme Court for the plaintiffs. Kellogg, Huber, Hansen, Todd, Evans & Figel's David Frederick and Grant & Eisenhofer's Linda Nussbaum represented Kaiser in opposing Pfizer's petition. A Kaiser spokesperson said the cert denial confirms "that Neurontin was fraudulently marketed to Kaiser Permanente physicians in violation of the law."

Richard Cohen of Uriel Rabinovitz Lowey Dannenberg Cohen & Hart represented Aetna Inc. in its opposition papers. Cohen did not immediately respond to our call.

A group of third party payers known as the Harden respondents was represented on the briefs by counsel from Greene LLP; Barrett Law Group; the Becnel Law Firm; Lieff Cabraser Heimann & Bernstein; the Dugan Law Firm; and Hagens Berman Sobol Shapiro.

Thomas Greene of Greene LLP, who helped try the Kaiser case before Judge Saris as a bellwether trial, said he's looking forwarding to proceeding with the rest of the underlying MDL. "Now that the case is back in front of the judge, I fully expect that she will certify our class of third party payers and we will go to trial," Greene said.

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