by Ben Vernia | September 22nd, 2009
District Judge Karen Caldwell in the Eastern District of Kentucky denied summary judgment both to a defendant and to the US in a case alleging that the defendant, the pharmacy where he worked and its owners defrauded Medicaid by seeking reimbursement for repackaged drug samples.
The pharmacy worker and the pharmacist/owner had previously pleaded guilty to violating the Prescription Drug Marketing Act, 21 USC § 353, for the sample-selling scheme, and the US moved for summary judgment under the FCA, 31 USC § 3731, arguing that the conviction estopped the men from denying the elements of the FCA violation.
The Court disagreed, ruling that the essential elements of the crime to which they pleaded guilty did not include “fraud or false statements,” which is necessary to trigger the statutory estoppel.
The Court denied the pharmacy worker’s motion for summary judgment, rejecting his argument that he could not be held liable because he was not a provider in the Medicaid program.
AUSAs Anna Gwinn and Cheryl Morgan are handling the case for the US. Edward Airhart of Louisville’s Airhart & Assoc. represents the pharmacy employee; Henry Hughes of Lexington’s Hughes, Lowry, Milner & Hayworth represent the pharmacist.