United States ex rel. Modglin v. DJO Global Inc., Case No. CV 12–07152 MMM (JCGx).

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
• Writing for the Court: MARGARET M. MORROW, District Judge.
• Citation: 114 F.Supp.3d 993
• Parties: UNITED STATES of America, ex rel. Doris MODGLIN and Russ Milko, Plaintiffs, v. DJO GLOBAL INC., DJO LLC, DJO Finance LLC, Orthofix, Inc., Biomet, Inc. and EBI, LP, Defendants.
• Docket Number: Case No. CV 12–07152 MMM (JCGx).
• Decision Date: 08 May 2015

114 F.Supp.3d 993

UNITED STATES of America, ex rel. Doris MODGLIN and Russ Milko, Plaintiffs,
v.
DJO GLOBAL INC., DJO LLC, DJO Finance LLC, Orthofix, Inc., Biomet, Inc. and EBI, LP, Defendants.

Case No. CV 12–07152 MMM (JCGx).

United States District Court, C.D. California.

Signed May 8, 2015.

114 F.Supp.3d 996

David M. Harris, AUSA–Office of the US Attorney, Los Angeles, CA, Gerald C. Robinson, Gerald Robinson Law Firm PLLC, David B. Ketroser, MD, David B. Ketroser MD, JD, Minneapolis, MN, Linda R. MacLean, Phillip E. Benson, Warren–Benson Law Group, Newport Beach, CA, Donald R. Warren, Warren Benson Law Group, La Jolla, CA, Steven U. Ross, CAAG–Office of the Attorney General, San Diego, CA, for Plaintiffs.

Andrew C. Bernasconi, Reed Smith LLP, Jessica Lynn Ellsworth, Michele W. Sartori, Hogan and Hartson LLP, Washington, DC, Francisca M. Mok, Reed Smith LLP, Dean Hansell, Hogan Lovells LLP, Los Angeles, CA, Thomas H. Suddath, Reed Smith LLP, Philadelphia, PA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS THE CORRECTED THIRD AMENDED COMPLAINT

MARGARET M. MORROW, District Judge.

Qui tam relators Doris Modglin and Russ Milko filed this action against defendants DJO Global Inc. ("DJO Global"), DJO, LLC ("DJO"), DJO Finance LLC ("DJO Finance"), Orthofix, Inc. ("Orthofix"), Biomet, Inc. ("Biomet"), and EBI, LP ("EBI") under seal and in camera on August 20, 2012. Relators invoked the court's federal question jurisdiction under 28 U.S.C. § 1331, and alleged a single claim for violation of the False Claims Act ("FCA"), 31 U.S.C. § 3729(a)(1)(A), (B).¹ On December 26, 2012, they filed a first amended complaint, realleging the federal FCA claim and alleging state FCA claims under the equivalent statutes of twenty-nine states: California, Colorado, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, Virginia, and Wisconsin.² On May 17, 2013, the United States declined to intervene in the case.³ On July 19, 2013, each of the twenty-nine states declined to intervene.⁴ The court unsealed the amended complaint that day.⁵

On October 3, 2013, pursuant to a request by relators, the court dismissed Orthofix.⁶ On November 8, 2013, relators filed a second amended complaint, restating their federal and state FCA claims and adding EBI, LLC (with EBI, LP, "EBI") as a defendant.⁷ On January 22, 2014, the parties stipulated to dismiss DJO Global and DJO Finance as defendants;⁸ the court entered an order on the stipulation on January 28, 2014.⁹ On February 20,

114 F.Supp.3d 997

2014, the court granted defendants' motion to stay discovery¹⁰ until it decided their pending motion to dismiss the second amended complaint.¹¹ On May 5, 2014, the court held a hearing on the motion to dismiss the second amended complaint. Following that hearing, the court took the motion under submission and directed the parties to file supplemental briefs addressing four questions.¹² After the parties did so on July 7, 2014,¹³ the court issued an order dismissing the second amended complaint on September 2, 2014.¹⁴ The court dismissed the federal Medicare FCA claim based on submission of false claims and false certifications with prejudice except to the extent it was premised on the theory that defendants made implied false certifications by unlawfully promoting their devices for off-label uses.¹⁵ The court dismissed the federal FCA claim without prejudice to the extent based on allegedly false claims submitted to Medicaid, the Federal Employees Health Benefit Program, the Federal Workers Compensation Programs, the Civilian Health and Medical Program of the Department of Veterans Affairs ("CHAMPVA"), and/or Tricare.¹⁶ Finally, the court declined to exercise supplemental jurisdiction over relators' state law claims.¹⁷

On September 22, 2014, relators filed a third amended complaint; subsequently, on September 29, 2014, they filed a corrected third amended complaint.¹⁸ On October 7, 2014, the court entered an order setting a briefing schedule and hearing date for defendants' motions to dismiss the corrected third amended complaint.¹⁹ That motion was filed jointly by defendants on October 22, 2014.²⁰ Relators oppose the motion.²¹

I. FACTUAL BACKGROUND

Relators assert that defendants—manufacturers and distributors of durable medical equipment ("DME")—fraudulently caused the government to disburse money by filing claims with Medicare and other federal healthcare plans²² for reimbursement related to their provision of non-invasive, bone-growth stimulators ("stimulators") that they knew had been prescribed by physicians for an off-label purpose,

114 F.Supp.3d 998

i.e., one not specifically approved by the Food and Drug Administration ("the FDA"). Defendants allegedly failed to reveal to Medicare and other federal healthcare plans that the stimulators were going to be used for off-label purposes. As the court explained in its order dismissing the second amended complaint, before one can understand the allegations in the complaint, it is necessary to provide an overview of the statutory and regulatory scheme that governs both FDA approval of medical devices and the coverage of such devices by Medicare and other federal programs. The court begins by describing FDA approval of medical devices.

A. Background Regarding FDA Approval of Medical Devices

One of the "core objectives" of the Food, Drug, and Cosmetic Act ("the FDCA"), 21 U.S.C. § 301 et seq., is to ensure that "there is reasonable assurance of the safety and effectiveness of devices intended for human use." Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133–34, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (citing 21 U.S.C. § 393(b)(2) ). To that end, the FDCA classifies medical devices in three categories: Classes I, II, and III. 21 U.S.C. § 360c(a). Class III devices include those that present a potentially unreasonable risk of illness or injury. Id., § 360c(a)(1)(C). Because of the risk associated with such devices, the FDA has determined that the manufacturers of such devices must submit premarket approval ("PMA") applications to the FDA and obtain premarket clearance before offering the devices for sale.²³ 42 C.F.R. § 405.201(b). Class III devices that do not have PMA approval cannot be marketed and are considered "adulterated." 21 U.S.C. § 351(f)(1)(B) ("A ... device shall be deemed to be adulterated ... if it is a class III device ... which ... is required to have in effect an approved application for premarket approval ... and ... which has an application which has been suspended or is otherwise not in effect"); 42 C.F.R. § 405.201(b).

The FDA gives a device PMA approval if it determines that the PMA application contains sufficient valid scientific evidence to assure that the device is safe and effective for its intended use. 21 C.F.R. § 814.2(a). It is "a ‘rigorous' process in which the manufacturer submits extensive study reports, design specifications and descriptions, samples of the device, and proposed labeling to the FDA, and the FDA conducts a comprehensive review and evaluation of all the submitted documents and materials[.]" Kashani–Matts v. Medtronic, Inc., No. SACV 13–01161–CJC (RNBx), 2013 WL 6147032, *1 (C.D.Cal. Nov. 22, 2013).

114 F.Supp.3d 999

If a medical device is used for a purpose other than that for which it has obtained PMA approval, the usage is "off-label." Carson v. Depuy Spine, Inc., 365 Fed.Appx. 812, 815 (9th Cir.2010) (Unpub.Disp.) ("Drugs and medical devices are approved or cleared by the FDA for marketing with labels describing the uses and the patient conditions which have been reviewed in the approval or clearance process. Any use by a physician which differs from the use described in the label or from the patient conditions described in the label is called ‘off-label’ "). The FDCA explicitly protects physicians' ability to prescribe devices for off-label use. 21 U.S.C. § 396 ("Nothing in this chapter shall be construed to limit or interfere with the authority of a health care practitioner to prescribe or administer any legally marketed device to a patient for any condition or disease within a legitimate health care practitioner-patient relationship"); see also Houston v. Medtronic, Inc., No. 2:13–cv–01679–SVW (SHx), 2014 WL 1364455, *1 n. 1 (C.D.Cal. April 2, 2014) ("Physicians are permitted to use Class III devices in off-label manners"). Indeed, off-label use of medical devices is "generally accepted" within the medical community, and § 396 of the FDCA "expressly disclaims any intent to directly regulate the practice of medicine." Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341, 351 & n. 5, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001) (citing Beck & Azari, FDA, Off–Label Use, and Informed Consent: Debunking Myths and Misconceptions, 53 FOOD & DRUG L.J. 71, 72 (1998) ("Off-label use is widespread in the medical community and often is essential to giving patients optimal medical care, both of which medical ethics, FDA, and most courts recognize")); see also Kashani–Mat...