Lowey Dannenberg Wins Landmark RICO Decision For Aetna Against Pfizer
On April 3, 2013, in In re Neurontin Mktg. & Sales Practices Litigation, 712 F.3d 51 (1st Cir. 2013) the United States Court of Appeals for the First Circuit reversed the dismissal of Aetna's RICO and state law claims for damages attributed to Pfizer's off-label marketing of the prescription drug Neurontin. This decision is a landmark for health insurers, bucking a trend of adverse decisions for third party payers in prescription drug off-label marketing cases. The First Circuit found that Aetna was an identified target and foreseeable victim of Pfizer's off-label marketing of Neurontin for non-FDA approved uses. The Court concluded that doctor-by-doctor prescription-by-prescription evidence was not necessary for a jury to find Pfizer's off-labeling marketing was a proximate cause of Aetna's increased expenditures for Neurontin and resulting damages. Aetna's aggregate statistical evidence and its expert’s interpretation of that evidence were held sufficient to deal summary judgment. The Court's conclusion that "Aetna’s economic injury was a foreseeable and natural consequence" of Pfizer's scheme represents a common-sense application of the law to the economic realities of prescription drug market. Lowey Dannenberg's litigation team is Richard W. Cohen, Peter D. St. Phillip, Gerald Lawrence and Uriel Rabinovitz.