Judge Doesn’t Toss Whistleblower Suit for 1st Amendment
A Pennsylvania federal judge has ruled that Sanofi Aventis can’t cite the 1st Amendment as grounds for dismissing a whistleblower’s suit charging that it used fraudulent and misleading speech to promote its chemotherapy drug Taxotore. An online blog post by attorneys for Peitragallo Gordon says that the company also sought to have the suit dismissed because some of its claims were barred by the statute of limitations.
The court held that the company had been given fair notice of the claims when the whistleblower filed his first and second amended complaints. In terms of the 1st Amendment, the company said that free speech protections extend to commercial speech and that parts of the whistleblower’s claims were based on truthful, non-misleading speech. The judge said that the complaint asserted that the company’s off-label promotion of Taxotore as useful for more than its approved second-line treatment indication was false and misleading, and the dispute over whether the speech was truthful or false was best determined by a jury.