United States District Court, E.D. New York
UNITED STATES OF AMERICA, et al, ex rel. DANIEL COYNE, M.D., Plaintiff,
AMGEN, INC., Defendant.
Hoerman Kenneth J. Brennan (pro hac vice) TorHoerman Law LLC
Lori Siler Restaino John M. Restaino The Restaino Law Firm
Attorneys for Plaintiff.
Corngold Friedman Kaplan Seiler & Adelman LLP David S.
Rosenbloom (pro hac vice) McDermott Will & Emery LLP
Attorneys for Defendant.
MEMORANDUM & ORDER
M. AZRACK UNITED STATES DISTRICT JUDGE.
the Court are objections to Magistrate Judge Anne. Y.
Shields' Report and Recommendation dated January 17, 2017
(the “R&R”) by plaintiff Daniel Coyne, M.D.
Judge Shields recommends that the Court grant defendant
Amgen's motion to dismiss plaintiff's claims pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Having conducted a full review of the record and the
applicable law, the Court adopts Judge Shields'
recommendation and finds that the information forming the
basis for plaintiffs' claims had been publicly disclosed
and, further, that plaintiff did not fall into the
“original source” exception under the False
Claims Act (“FCA”). Accordingly, the Court grants
defendant's motion to dismiss.
Shields' has also recommended that, pursuant to 31 U.S.C.
§ 3730(b)(1), the United States be granted two weeks in
which to advise the Court of its position concerning the
final disposition of this case. The Court adopts Judge
Shields' recommendation. The United States is directed to
file a letter advising the Court of its position by no later
than April 4, 2017. The Clerk of Court shall not enter a
final judgement until such time.
Court assumes familiarity with the facts, which are
referenced only as necessary to explain the Court's
STANDARD OF REVIEW
reviewing a magistrate judge's report and recommendation,
a court must “make a de novo determination of
those portions of the report or . . . recommendations to
which objection[s] [are] made.” 28 U.S.C. §
636(b)(1); see also Brown v. Ebert, No. 05-CV-5579,
2006 WL 3851152, at *2 (S.D.N.Y. Dec. 29, 2006). The court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). Those portions of a
report and recommendation to which there is no specific
reasoned objection are reviewed for clear error. See Pall
Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y.
initial matter, Judge Shields found that there was “no
doubt” that the documents forming the basis of
plaintiff's qui tam complaint had been publicly
disclosed and so was subject to the “public
disclosure” bar under the FCA. (R&R at 25.)
Therefore, the primary issue before Judge Shields was whether
plaintiff was the “original source” of that
information. (Id. at 17, 19- 23.) If plaintiff
qualifies as the original source of the information, his
claim is exempt from the “public disclosure” bar
and may proceed.
Shields recognized that there are two articulations of the
“original source” exception that are possibly
applicable to plaintiff's claims: one contained in the
1986 version of the FCA and one contained in the 2010
version. (Id. at 19.) Rather than determining which
version should apply, Judge Shields found that the plaintiff
did not qualify as the “original source” under
either version and, therefore, plaintiff's claims were
barred and should be dismissed. Judge Shields thus did not
reach the question of the retroactivity of the 2010 version.
(Id. at 17-18.)
she found that the “public disclosure” bar
warranted dismissal of plaintiff's claims, Judge Shields
declined to evaluate plaintiff's claim based on a
“concealment” theory. In particular, Judge
Shields noted that plaintiff's claims were barred because
“the information forming the basis of any claim of