A fraudulent survey of doctors sponsored by attorneys for a qui tam relator doomed a False Claims Act (FCA) complaint against a pharmaceutical company. In a forceful opinion, United States District Judge Dennis Saylor IV, District of Massachusetts, found violation of ethical rules, excised more than 100 paragraphs of the complaint as a sanction, and dismissed the truncated complaint for failure to meet the particularity standards required for an FCA complaint under Fed. R. Civ. P. 9(b).

When the government declined to intervene in an FCA suit alleging off label marketing, attorneys for the relator filed a second amended complaint based in large part on the results of a purported research study about prescribing practices for the drug. The survey, conducted via internet and telephone, by a doctor hired by the attorneys, was disclosed during discovery. The survey falsely represented that the resulting data would be used only for research purposes and would be kept confidential. Instead, the attorneys included data in the complaint such as names and addresses of 36 doctors as well as some information about their practices and some of their patients. Even though the survey was conducted by a doctor, the court held the attorneys responsible because “the investigation was conducted under the direction of attorneys.” Although the study appeared to be for medical research, the court found the actual purpose was to obtain and use otherwise confidential information in litigation. “There is no dispute” that the investigative scheme devised by the attorneys and their hired doctor “involved an elaborate series of falsehoods, misrepresentations, and deceptive conduct.” Further, the court found the misconduct material because at least two doctors submitted declarations that they would not have not participated had they known the truth.

The court rejected the attorneys’ argument that an investigative exception applied by distinguishing the kind of deception permitted when testers are used in discrimination litigation. The kind of information obtained by a tester from a prospective landlord, employer, or purchaser would be available to any member of the public whereas information in this matter was obtained by intruding into the physician-patient relationship. Further, testers are used against suspected wrongdoers whereas the doctors were not under suspicion. Although there is “no bright line” for the investigative exception, the fraudulent survey went too far.

The court found sanctions were appropriate under Massachusetts Rules of Professional Conduct 4.1 (a) and 8.4(c). In addition, the court pointed out that the FCA is designed not only to root out fraud but also to “discourage opportunistic plaintiffs.” As a remedy for the misconduct the court decided to strike fraudulently obtained information from the complaint, analogizing to the practice in criminal matters when fraudulent information is stricken the application for a search warrant. After removing more than 100 paragraphs, the court found the complaint should be dismissed because it failed to meet the particularity requirements required in order to proceed with an FCA complaint.