Monday, December 29, 2008

Relator in Organon Raplon Qui Tam Fraud Matter Fires Back

Over the Christmas holidays, lawyers for Dr. Feldstein -- the whistle-blower in the Organon Raplon Qui Tam/False Claims Act suit -- answered Schering's latest motion seeking dismissal, and sanctions -- that background may be read here. Let's look in, but I think Dr. Feldstein is solidly seated "back in the saddle":

. . . .Defendants have apparently latched onto Dr. Feldstein’s statement in his 2003 Certification that he discussed Raplon issues with a “former employee” following his termination as proof that he did not possess information about Raplon until after his separation from Organon. Defendants evidently misread the 2003 Certification, believing the “former employee” to be Sack, the doctor from whom Dr. Feldstein acquired the key e-mail. However, Plona was the “former employee” referenced in the 2003 Certification and Dr. Feldstein was already in possession of the e-mail when his conversations with Plona occurred.

Defendants’ new position that Feldstein had no knowledge of the Raplon fraud during his employment is grossly misleading. Organon’s counsel argued before the Superior Court of New Jersey that the CEPA claim and qui tam action both "stem from allegations that Plaintiff learned of alleged improper and fraudulent activities by Defendants concerning both Arixtra and Raplon during his employment. . . ." Organon’s counsel in the CEPA case made an explicit point of highlighting to the state Court that such was the case because it sought to show that the qui tam and CEPA suits were related to one another. Id. Even the relevant portion of the CEPA complaint filed by Dr. Feldstein confirms he possessed this knowledge prior to his wrongful termination. . . .

I had earlier worried that Lowenstein Sandler -- the lawyers for Schering, in this matter, had put a roadblock in front of Dr. Feldstein's chances to reach a judge, and jury -- in a trial on the merits here. I no longer am concerned about that possibility.

I think Dr. Feldstein's lawyers have made a very-careful, compelling explanation of the Feldstein sworn statements, earlier alleged to be inconsistent. So, I think this one looks to be headed to a full trial on the merits, unless Schering settles it, of course -- and that won't be very good publicity for Schering's vaunted $15 billion Organon purchase.

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