Pfizer Prevails in Court

NEW YORK A Massachusetts U.S. District Court judge has dismissed ex-Pfizer marketing vice president Peter Rost’s whistle-blowing case against his former employers, Pharmacia and Pfizer.

Rost had alleged that Pharmacia illegally sold Genotropin, a human-growth-hormone brand, to anti-aging “specialists” who falsely promised wealthy clients the fountain of youth.

Pfizer acquired Pharmacia in April 2003, despite Rost’s warnings about the “off-label” (i.e., legally unapproved) sales, he claimed.

In the Aug. 31 ruling, Judge Joseph Tauro wrote that for Rost’s suit to succeed, he needed to produce evidence that Pharmacia and Pfizer had orchestrated the submission of bills to the government for reimbursement for “off-label” Genotropin treatments.

For instance, it would be legal to bill Medicaid for a Genotropin prescription for a child suffering from stunted growth (an “on-label” use), but it would be illegal if someone using the drug to jump-start his or her libido or get smoother skin billed Medicare.

Tauro wrote that Rost had no evidence, such as an actual false bill, of such a scheme. Therefore, Tauro ruled, the case must be dismissed in its entirety.

Pfizer on Thursday hailed the decision. “Rost’s complaint fails to identify one actual false claim for reimbursement,” said Paul Fitzhenry, a Pfizer representative. “The court’s decision brings to a close the suit he filed and its allegations.”

The ruling is the second serious loss in the case for Rost.

Last November, the Boston U.S. Attorney’s Office announced that after a yearlong investigation it would not get involved in Rost’s case. A separate criminal investigation by Boston federal prosecutors was under way as late as spring 2006, but the progress of that secret proceeding is unknown.

Rost noted that the suit had been dismissed only because he had failed to meet one technical test-evidence of a specific bill. On three other issues, the judge had agreed with Rost. (Those issues were: that Rost, not Pfizer, was the first to disclose the off-label sales; that Rost’s claims were based upon his own knowledge of Genotropin sales and not Pfizer’s disclosures to the government; and that Rost, not Pfizer, was the original source of the disclosures.)

As such, Rost said on Thursday he intends to amend his complaint to address the evidence deficiency and will appeal. “Pfizer has a database with all these claims, which they have refused to give to us. We can ask them to produce it,” he said.