PHILADELPHIA – A Saul Ewing LLP partner believes a ruling
made in a 15-year-old False Claims Act (FCA) whistleblower lawsuit by the U.S.
District Court for the Eastern District of Pennsylvania may not have been entirely
fair to the defendants, given the nature of the case.
In the case, United
States ex. rel. Gohil v. Aventis, former Aventis salesman Yoash Gohil
claimed that the company and its predecessors instructed its employees for an
eight-year period beginning in 1996 to make false claims about the safety and
effectiveness of its Taxotere chemotherapy drug.
The company allegedly offered money and other perks to
salesmen who helped boost the off-label use of the drug.
Gohil’s original whistleblower claim was filed under seal in
2002. However, he filed an amended complaint in 2007 that specified the period during
which the FCA violations allegedly occurred and provided other details. The final
version of the amended complaint was unsealed in 2008.
After the complaint was unsealed and Aventis was made aware
of the specific claims, the company asked the court to dismiss the amended
complaint, arguing that the six-year statute of limitations imposed by the FCA
had passed. In addition, the company said it did not receive proper notice of
the claims for misconduct that occurred before 2000, when the plaintiff worked
for its predecessor.
In its Jan. 10 opinion, the district court ruled that the
statute of limitations did not apply because the plaintiff filed new claims
years after the original complaint was filed. The court deemed those new claims
to be a “natural offshoot” of the original ones.
Saul Ewing partner Alexander “Sandy” R. Bilus said this may
have not been fair because the defendant never had the opportunity to see the
original sealed lawsuit.
“It does seem somewhat unfair to me to change up claims
decades after,” Bilus told the Pennsylvania
Bilus said a False Claims Act proceeding begins when a
private citizen brings a complaint, which is filed under seal. The defendants
do not get to see this complaint. The government, however, does get to review the
claim to decide whether to intervene with the plaintiff and investigate the
“It’s basically outrageous to not have that fair notice,”
Bilus said. “If
the defendant didn’t know about the original complaint, how does this relate to
If he were representing Aventis, Bilus said he would push
that very point on appeal.
However, the court held that “the defendant had fair notice,”
according to Bilus, because the original claims and those filed later were
“It comes down to a fairness issue,” Bilus said.
Bilus said he did get a sense from the opinion that the
court also thought that the plaintiffs were “looking for a second bite of the
According to Bilus, the defendants were trying to get just the
amended complaint thrown out, but the timeliness issues did not work in their
“If it didn’t relate back, it would have been untimely,” he