Judge denies Omnicare's 'untimely' motion to disqualify whistleblower in nursing home kickbacks case

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Omnicare has failed to disqualify a whistleblower who alleges the long-term care pharmacy paid kickbacks to nursing homes, ruled a district court judge.

Whistleblower complaints under the False Claims Act are generally filed under seal, to give the government a chance to review the charges and determine whether to join the action. Omnicare filed a motion to disqualify whistleblower plaintiff Donald Gale, saying he violated the seal on this False Claims suit by mentioning the case to his wife and coworkers at Omnicare.

U.S. District Court Judge James S. Gwin declined to disqualify Gale, saying that his comments did not violate the seal because they were not public. Furthermore, his comments about meeting with lawyers and oblique references to “whistles” were not direct or detailed enough to tip off Omnicare as to the nature of the allegations.

Omnicare was able to figure out how Gale's comments related to the whistleblower case only after the complaint was unsealed, the judge determined, saying this was proven by the timing of Omnicare's motion to disqualify.

“Omnicare cannot have it both ways,” Gwin wrote. “It cannot say that it knew that Gale committed disqualifying conduct nearly three years ago, but decided for unstated reasons not to bring this motion until now. More likely, Omnicare did not actually know about this lawsuit in 2010, and made this motion as soon as it could connect the dots.”

The government did not join Gwin's case, which alleges that Omnicare gave nursing homes discounts on drugs in exchange for referrals of Medicare beneficiaries.

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