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# 5th Circuit Backs Solvay False Claims Case Dismissal
- URL: https://www.fdaweb.com/5th-circuit-backs-solvay-false-claims-case-dismissal/
- Published: 2017-09-21T12:00:00.000Z
- Updated: 2026-09-14T22:52:04.000Z
- Author: David McFarland
- Tags: Drugs, FDA Policy/General, #legacy-id-D5139676

The 5th Circuit Court of Appeals has upheld a Texas federal court grant of summary judgment to Solvay Pharmaceuticals in a False Claims Act (FCA) case brought by two whistleblowers alleging that the company induced false Medicaid claims through off-label marketing and kickbacks to promote Luvox, Aceon, and AndroGel. The whistleblowers, former Solvay sales and marketing employees, offered several theories of FCA liability with varying degrees of connectivity between Solvay’s off-label marketing of the three drugs and the actual filing of false claims, the appeals court [decision](http://www.ca5.uscourts.gov/opinions/pub/16/16-20509-CV0.pdf?ref=fdaweb.com) says.

The theories were that **(1)** Solvay marketed the three drugs for off-label uses, causing doctors to prescribe them to Medicaid patients for those uses; **(2)** Solvay lobbied members of state pharmaceutical and therapeutic committees to list the three drugs on their preferred drug lists; **(3)** Solvay used misleading scientific literature to lobby the publisher of the Drugdex Information System drug compendium to include the off-label uses; and **(4)** Solvay paid doctors kickbacks to prescribe the drugs to Medicaid patients.

The appeals court says the district court disposed of all the whistleblowers’ claims through a series of partial summary judgment orders. AndroGel claims were dismissed for lack of jurisdiction under the False Claims Acts’ public disclosure bar. The off-label marketing claims for Luvox and Aceon failed to survive because the whistleblowers’ evidence of Medicaid claims was inadmissible and, even if it were admissible, did not sufficiently demonstrate causation. The lobbying and drug compendium claims fell due to insufficient causation evidence. And the court held that there was insufficient evidence that Solvay kickbacks were intended to induce Medicaid payments.

“Because we conclude that relators (whistleblowers) failed to provide sufficient evidence to survive summary judgment on any of their briefed claims,” the 5th Circuit said, “we affirm the district court’s grant of summary judgment to Solvay.”

The whistleblowers also challenged the lower court’s award of $232,809.92 in taxable costs against them to Solvay. But the appeals court found that the district court has broad discretion in taxing costs and did not demonstrate any abuse of that discretion.