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United States ex rel. Coyne v. Amgen, Inc.

United States District Court, E.D. New York

March 21, 2017

UNITED STATES OF AMERICA, et al, ex rel. DANIEL COYNE, M.D., Plaintiff,
v.
AMGEN, INC., Defendant.

          Tor A. Hoerman Kenneth J. Brennan (pro hac vice) TorHoerman Law LLC Lori Siler Restaino John M. Restaino The Restaino Law Firm Attorneys for Plaintiff.

          Eric Corngold Friedman Kaplan Seiler & Adelman LLP David S. Rosenbloom (pro hac vice) McDermott Will & Emery LLP Attorneys for Defendant.

          MEMORANDUM & ORDER

          JOAN M. AZRACK UNITED STATES DISTRICT JUDGE.

         Before 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.

         Judge 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.

         I. BACKGROUND

         The Court assumes familiarity with the facts, which are referenced only as necessary to explain the Court's decision.

         II. STANDARD OF REVIEW

         In 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. 2008).

         III. DISCUSSION

         As an 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.

         Judge 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.)

         Because 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 ...


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