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U.S. Ex Rel. Schumann, et al. v. Astrazeneca Plc

March 29, 2012

U.S. EX REL. SCHUMANN, ET AL.
v.
ASTRAZENECA PLC, ET AL.



The opinion of the court was delivered by: Ditter, J.

MEMORANDUM

This case involves a whistleblower's claim that two pharmaceutical companies entered into fraudulent agreements so that their brand-name drugs would be dispensed rather than equivalent generic drugs and so that they could evade their best price reporting obligations. Plaintiff-Relator, Karl Schumann, moved for reconsideration of my September 30, 2010 Order granting the BMS Defendants'*fn1 motion to dismiss. For the reasons that follow, I will deny Schumann's motion.

I. STANDARD

To succeed on a motion for reconsideration, the moving party must demonstrate (1) an intervening change in the controlling law; (2) the availability of new evidence which was not available when the court issued its order; or (3) the need to correct a manifest injustice stemming from a clear error of law or fact. Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). "Disagreement with the district court's ruling is not proper grounds for a motion to reconsider. In light of the strong interest in finality of judgments, district courts grant motions for reconsideration sparingly." United States v. Citx Corp., No. 11-7, 2011 U.S. Dist. LEXIS 55435, *3 (E.D. Pa. May 24, 2011).

II. DISCUSSION

The relator seeks reconsideration of my determination that he failed to sufficiently plead he was an original source.*fn2 He asks that I consider his lengthy declaration and argues that I erred by applying the wrong standard, by viewing the defendants' attack as factual rather than facial, and by failing to credit the relator's unchallenged allegations as true. Lastly, he asks that he be permitted leave to amend his already four-times-amended complaint to incorporate the facts set forth in his declaration.

A. Consideration of The Relator's Declaration

The relator attached a twelve-page declaration to his motion for reconsideration setting forth information related to his work as Medco's Vice President for Pharmaceutical Contracting. The declaration covers events from December 1999 through early 2003.

On a motion for reconsideration, the court may only consider "new evidence." The Third Circuit explained this requirement, holding "'new evidence,' for reconsideration purposes, does not refer to evidence that a party obtains or submits to the court after an adverse ruling. Rather, new evidence in this context means evidence that a party could not earlier submit to the court because that evidence was not previously available." Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., 602 F.3d 237, 251-52 (3d Cir. 2010). In Howard, the Third Circuit affirmed the district court's refusal to consider the "new evidence" because the plaintiffs had simply attempted "to submit the very evidence the District Court had found they had failed to present in their summary judgment motion." Id.

The information presented in the relator's declaration regarding his direct and independent knowledge pre-dates his initial complaint and was therefore available to him when he drafted and filed his fourth amended complaint. For the same reason, the facts set forth have not been newly discovered since the relator filed his opposition to the BMS defendants' motion to dismiss. The declaration therefore does not present "new evidence" and I may not consider it in deciding the pending motion for reconsideration.

B. Original Source Standard

The relator argues here, as he did in his briefs opposing the motion to dismiss and at oral argument, that he should be required to have independent knowledge of just one element of the fraud to qualify as an original source. He asserts that I erroneously required that he know of all the elements of a cause of action. Notably, however, he does not cite to where in my opinion I improperly required him to have such knowledge. That is because he cannot.

I did not require that the relator possess "all relevant information." Instead, I found that he failed to show "the necessary direct and independent knowledge of fraud." 2010 U.S. Dist. LEXIS 109519at *22-23. For example, I explained that the relator did "not allege direct and independent knowledge of facts to establish [False Claims Act] violations; rather, he merely alleges facts suggesting he had direct knowledge that ...


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