Massachusetts federal judge threw out a False Claims Act suit against Johnson & Johnson entities over allegedly defective hip replacement devices, saying two whistleblower physicians used confidential information in their complaint.
Despite court admonitions, Drs. Antoni Nargol and David Langton included confidential information they shared with their expert, QA Consulting Inc., in their second amended complaint alleging J&J units indirectly submitted false claims to the government for faulty hip replacement devices, according to the order initially filed under seal on Nov. 10 by Chief U.S. Magistrate Judge Page Kelley.
Judge Kelley granted a motion for reconsideration filed by J&J unit DePuy Orthopaedics Inc. and related defendants regarding their denied motion to strike QA-related allegations from the suit and, consequently, sink the complaint entirely.
The information in question was disclosed to QA prior to a January 2015 order from now-deceased U.S. District Judge David A. Katz in related multidistrict litigation that barred them from using confidential information going forward. The doctors had received such information as MDL experts.
DuPuy alleged the doctors’ second amended FCA complaint included confidential information that violated court protective orders and that the doctors were unable to point to a public source of information.
Judge Kelley agreed with DuPuy this time, finding that it was Nargol and Langton’s burden to demonstrate that the information contained in their second amended complaint was public in order to beat DuPuy’s motion to strike and dismiss.