PharMerica seeks Supreme Court review in False Claims case

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Long-term care pharmacy services provider PharMerica is asking the U.S. Supreme Court to review its previous ruling on the “first-to-file” provision of the False Claims Act, claiming it paves the way for copycat lawsuits.

The pharmacy giant's petition for review, filed last Friday, objects to the Supreme Court's May 2015 ruling in Kellogg Brown & Root Svcs., Inc. v. United States ex rel. Carter. In that case the court held that the FCA's first-to-file provision, which bars whistleblowers from filing copycat suits against the same defendants, only applies when a prior FCA action is pending in court.

The Supreme Court's ruling led the U.S. Court of Appeals to revive a whistleblower case against PharMerica in December. The revived case was brought by former PharMerica pharmacist Robert Gadbois, and alleges the company submitted false Medicare and Medicaid claims for drugs it distributed to long-term care pharmacies.

A Supreme Court review is necessary, PharMerica attorneys argued in the petition, to resolve a “frequently recurring issue with far-reaching practical consequences,” and prevent further “neutering of the first-to-file bar.” The company also argued that with review, the Supreme Court's ruling will allow copycats to file “me too” lawsuits against defendants with already pending litigation, and wait until the first suit is resolved in order to avoid the first-to-file bar.