Vol 22, 2013 Annals of Health Law 438
PROSECUTIONS OF PHARMACEUTICAL COMPANIES
prescriptions, so some of the prescriptions it covered must have resulted
from the alleged fraud.203 The court rejected this theory because at least
some doctors were not misled by the fraudulent marketing efforts and had
exercised their independent judgment.204 It would be impossible to know
which, if any, of the prescriptions the plaintiff paid for, unless there were
more specific allegations of reliance by physicians whose prescriptions
were reimbursed by the plaintiff.205 Without specific allegations to that
effect, general proof of but-for causation was impossible to establish, and
the court granted the motion to dismiss for failure to sufficiently allege
causation as to any of the claims.206
Similarly, in July 2010, Health Care Service Corporation (“HCSC”),
which operates through Blue Cross Blue Shield of several states, sued
Pfizer over alleged off-label promotion of Geodon, Lyrica, and Zyvox.207
HCSC alleged that, as the payor for millions of health care consumers’
pharmaceutical prescriptions, it paid for an inflated number of prescriptions
and related health care costs as a result of the allegedly deceptive marketing
practices and inflated demand created by off-label marketing.208 It
allegedly became aware of the marketing scheme and its injuries when the
settlement with the U.S. government was announced in September 2009.209
Exhibits A and B to the complaint were none other than the Criminal
Settlement Agreement and the Side Letter Agreement that arose out of the
DOJ investigation.210 HCSC argued that the federal government had
recovered hundreds of millions of dollars for the false claims it was forced
to pay, and now the third party payors were entitled to damages for their
similar losses.211 HCSC based its claims on the Illinois Consumer
Protection Act,212 common law fraud, unjust enrichment, negligence and
negligence per se, conspiracy, and RICO.213 Like the plaintiffs in Bextra,
HCSC attempted to establish causation through foreseeability and quantity
effect theories. The court similarly rejected both theories and held that the
complaint failed to make the necessary showing of causation: it did “not
contain any allegation that any doctors or other health care professional
203. Id. at *7.
206. Id. at *4, 7, 10.
207. Plaintiff’s Complaint, Home Health Care Service Corp. v. Pfizer, Inc. et al., No.
2:10-cv-221 (E.D. Tex. July 2, 2010).
208. Id. at ¶ 2.
209. Id. at ¶ 107.
210. Id. at ¶¶ 14, 67.
211. See generally id.
212. 815 Ill. Comp. Stat. § 510/2, et. seq.