April 2012 Bar Bulletin
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April 2012 Bar Bulletin

Blood Feud: Whistleblower's Story Headed to Big Screen

By Paul E. Simmerly

 

Blood Feud from author Kathleen Sharp has just been released by Dutton Publishing and New Regency Produc­tions has announced that it will be making the book into a major motion picture. Blood Feud tells the story of my client, whistleblower Mark Duxbury of Gig Harbor, and our decade-long efforts to stop the selling of a drug, Procrit, which has allegedly killed more than 100,000 people, and to recover billions of dollars in Medicare fraud damages for the taxpayers of the United States.

The story begins with a False Claims Act (31 USC 3730) lawsuit (a qui tam action) we brought on behalf of the United States against Duxbury's former employer, Ortho Biotech, LP, a subsidiary of Johnson & Johnson. The Act allows private citizens to essentially act as attorneys general by bringing lawsuits to recover fraud damages for U.S. taxpayers. My co-counsel is Jan Schlicht­mann, the legendary Boston attorney who was portrayed by John Travolta in "A Civil Action."

The whistle-blowing plaintiff, called the relator, is rewarded by receiving a share of the recovery. While a reward as high as 30% of the recovery may sound excessive, the whistleblower can pay a heavy price. For his troubles, Duxbury was blackballed within the pharmaceutical industry and could not get a job.

The Act's concept has turned out to be both wildly successful while at the same time failing miserably in other respects. This is the primary way damages for fraud against the United States are recovered. These claims would not even be brought to light, let alone litigated, if government attorneys were in charge and there was no profit incentive for the relator.

On the other hand, fraud against the United States is so pervasive and so many whistleblower lawsuits have been brought that the system is overwhelmed. The U.S. Department of Justice is free to intervene in the lawsuit at any time and can hold up a suit for years during which it must remain under seal. Recent estimates are that more than 1,300 whistleblower cases are under investigation, with most related to pharmaceuticals, hospital chains and healthcare companies.

Procrit is one of three drugs (Epogen and Aranesp are the others) that have been used to treat anemia in both kidney and cancer patients and as a way to increase chemotherapy doses in cancer patients. However, Procrit has been found to promote tumor growth, strokes and heart attacks. Our action alleges that Procrit has killed more than 100,000 people, which would make it, by far, the deadliest prescription drug in history.

Procrit was Johnson & Johnson's most profitable product, accounting for annual sales of more than $4 billion at one point. Medicare paid more for Procrit than any other drug - around $60 billion to date. Procrit is marketed as an anti-anemia drug that helps the body make red-blood cells, allowing patients to avoid blood transfusions. For decades, the drug has been prescribed to people suffering from AIDS, kidney disease, cancer and simple fatigue. Around 20 million people have been injected with it.

By the mid 1990s, however, studies began showing that Procrit could cause heart attacks, tumor growth and even death. In June 2011, the FDA announced that most patients should avoid the drug entirely. A "Black-box" warning has been placed on the drug, but it still remains on the market.


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