873 F.3d 574 (7th Cir. 2017), 17-1483, Sidney Hillman Health Center of Rochester v. Abbott Laboratories

Docket Nº:17-1483
Citation:873 F.3d 574
Opinion Judge:EASTERBROOK, Circuit Judge.
Party Name:SIDNEY HILLMAN HEALTH CENTER OF ROCHESTER and TEAMSTERS HEALTH SERVICES AND INSURANCE PLAN LOCAL 404, Plaintiffs-Appellants, v. ABBOTT LABORATORIES and ABBVIE INC., Defendants-Appellees
Attorney:For SIDNEY HILLMAN HEALTH CENTER OF ROCHESTER, TEAMSTERS HEALTH SERVICES AND INSURANCE PLAN LOCAL 404, on behalf of themselves and all others similarly situated, Plaintiffs - Appellants: Adam J. Levitt, Attorney, GRANT & EISENHOFER P.A., Chicago, IL; James J. Sabella, Attorney, GRANT & EISENHOFER...
Judge Panel:Before EASTERBROOK, KANNE, and WILLIAMS, Circuit Judges.
Case Date:October 12, 2017
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
SUMMARY

The FDA approved Depakote for treating seizures, migraine headaches, and conditions associated with bipolar disorder. Physicians may prescribe it for other "off-label" uses, but a drug’s manufacturer can promote it only as suitable for uses the FDA has found safe and effective. Abbott, which makes Depakote, encouraged intermediaries to promote Depakote’s off-label uses for ADHD, schizophrenia,... (see full summary)

 
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Page 574

873 F.3d 574 (7th Cir. 2017)

SIDNEY HILLMAN HEALTH CENTER OF ROCHESTER and TEAMSTERS HEALTH SERVICES AND INSURANCE PLAN LOCAL 404, Plaintiffs-Appellants,

v.

ABBOTT LABORATORIES and ABBVIE INC., Defendants-Appellees

No. 17-1483

United States Court of Appeals, Seventh Circuit

October 12, 2017

Argued September 12, 2017

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 5865 -- Sara L. Ellis, Judge.

Sidney Hillman Health Ctr. v. Abbott Labs., 192 F.Supp.3d 963, (N.D. Ill., June 29, 2016)

For SIDNEY HILLMAN HEALTH CENTER OF ROCHESTER, TEAMSTERS HEALTH SERVICES AND INSURANCE PLAN LOCAL 404, on behalf of themselves and all others similarly situated, Plaintiffs - Appellants: Adam J. Levitt, Attorney, GRANT & EISENHOFER P.A., Chicago, IL; James J. Sabella, Attorney, GRANT & EISENHOFER P.A., New York, NY.

For ABBOTT LABORATORIES, INCORPORATED, ABBVIE, INCORPORATED, Defendants - Appellees: William F. Cavanaugh, Jr., Attorney, Jonah Knobler, Attorney, PATTERSON, BELKNAP, WEBB & TYLER LLP, New York, NY.

For WASHINGTON LEGAL FOUNDATION, Amicus Curiae: Richard Abbott Samp, Attorney, WASHINGTON LEGAL FOUNDATION, Washington, DC.

For CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, NATIONAL ASSOCIATION OF MANUFACTURERS, PHARMACEUTICAL RESEARCH AND MANUFACTURERS OF AMERICA, Amicus Curiaes: Robert Neil Weiner, Attorney, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, DC.

Before EASTERBROOK, KANNE, and WILLIAMS, Circuit Judges.

OPINION

EASTERBROOK, Circuit Judge.

The Food and Drug Administration has approved the use of Depakote (divalproex sodium) to treat seizures, migraine headaches, and some conditions associated with bipolar disorder. Physicians are free to prescribe it to treat other conditions, called off-label uses, but a drug's manufacturer can promote it only as suitable for uses the FDA has found to be safe and effective. Abbott Laboratories, which makes Depakote, encouraged intermediaries to encourage Depakote's off-label uses while hiding its own involvement. This promotion, for conditions including schizophrenia, dementia, and attention deficit hyperactivity disorder (ADHD), was detected, and prosecution followed. In 2012 Abbott pleaded guilty to unlawful promotion and paid $1.6 billion to resolve the criminal case and settle qui tam actions that had been filed against it under the False Claims Act, 31 U.S.C. § § 3729-33. The next year saw the transfer of Depakote sales in the United States to AbbVie, a fraternal corporation, but for simplicity we ignore AbbVie.

Two welfare-benefit plans that paid for some of Depakote's off-label uses filed this suit in 2013 seeking treble damages under the civil-liability provision in the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1964. They asked the district court to certify a class comprising all third-party payors of drug expenses. (The parties call them TPPs; we prefer Payors.) The district court dismissed the suit as untimely. 64 F.Supp.3d 1146 (N.D.Ill. 2014). Civil RICO actions must be commenced within four years after injury was or should have been known. Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987); Rotella v. Wood, 528 U.S. 549, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000). The judge observed that off-label promotion began in 1998 and the first qui tam suit was filed in 2007. But the qui tam suits began under seal, which lasted until 2011, and alleged that Abbott had concealed its role in the...

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