A whistleblower suing his former employer, Novartis Pharmaceuticals, over an alleged kickback scheme has asked a New York federal court to order the drug maker to turn over documents he claims were improperly altered and withheld during the discovery process.
Former Novartis employee David Kester filed his lawsuit under the whistleblower provisions of the False Claims Act in 2011, asserting that Novartis had engaged in kickback schemes to push its drugs with CVS Caremark and other pharmacy companies. Mr. Kester’s lawsuit contends that the illegal kickback scheme was designed to boost sales of iron reduction drug Exjade and organ transplant drug Myfortic.
In return for pushing those drugs, CVS received kickbacks from Novartis in the form of patient referrals and disguised cash rewards, Mr. Kester’s complaint alleges.
According to Law360, Mr. Kester told the court that Novartis had redacted some documents and remained non-responsive on others. He also asked the court to review Novartis’ privilege log recording all the documents withheld from discovery, calling it “woefully deficient” because it excludes numerous documents. He said “Novartis bears the burden of proving that every element is met.”
“Novartis cannot satisfy that burden,” Mr. Kester’s memo asserted.
Mr. Kester’s memo says that Novartis redacted documents pertaining to the depositions of more than a dozen employees scheduled to take place in mid-March.
Novartis claims that the documents Mr. Kester accuses it of being nonresponsive about involve drugs that aren’t part of the dispute – a claim that Mr. Kester challenges.
The U.S. government joined Mr. Kester’s False Claims Act suit in April 2013. The federal government chose not to intervene in another whistleblower complaint Mr. Kester filed against CVS over alleged kickbacks involving leukemia drugs Gleevec and Tasigna and cystic fibrosis drug TOBI, also made by Novartis.
Potential whistleblowers often wonder what will happen if the government won’t take their case. The False Claims Act allows whistleblower cases to proceed without government intervention. Any whistleblower whose lawsuit leads to a recovery for the U.S. government receives an award of between 15 and 30 percent of the total amount recovered, whether or not the U.S. government is actively involved in the litigation.