Win some, lose some. Last month, the health care giant succeeded in getting a whistleblower suit filed by two former sales reps tossed. Yesterday, however, Johnson & Johnson couldn’t pull it off again. A federal judge denied its motion to dismiss a suit brought by a former contract sales rep for J&J’s Ortho-McNeil unit. Significantly, the former rep, Ed West, was able to clear a huge hurdle known as rule 9b, a controversial provision of the False Claims Act, which requires a whistleblower to provide specific information about false claims that were submitted to the government for payment.

This is the same rule that prompted a federal judge last month to toss a whistleblower suit filed by two former Ortho-Biotech sales reps - Mark Duxbury and Dean McClellan. The same reasoning was used to bounce a lawsuit brought against Pfizer by whistleblower Peter Rost, but an appeals court reinstated his suit last fall, and Rost more recently filed papers with evidence he hopes will pass muster.

In his suit, West charged that Ortho-McNeil schemed to offer kickbacks and rebates to hospitals to purchase more of its Levaquin antibiotic than a rival med, and encouraged hospitals to divide and re-use single use premix bags of Levaquin in order to create a secret discount and increase hospital profits and Levaquin sales. His suit also accused J&J of paying kickbacks to docs in the form of speaker fees and grants for prescribing more of the antibiotic. J&J denied all the charges and maintained West’s suit should be dismissed because he didn’t offer enough particular evidence - rule 9b - and he actually came across the allegations elsewhere and wasn’t an original source of information.

However, as PharmaFraud notes, US District Court Judge Patti Saris in Boston wrote in her ruling yesterday that West’s “allegations pass muster…The discount, cash bribe, premix bag, and improper fees, grants, and gifts allegations are each sufficiently particular. For example, (West) identifies a particular time (March 2002) when a particular Ortho-McNeil sales representative (Cheryl Janicek) allegedly discounted the price of Levaquin for a specific hospital (Holy Cross Hospital) on the condition that the hospital ‘no longer stock Cipro for MD’s requesting the drug.’ ” (Cipro is a Bayer antibiotic, by the way).

She then wrote that West’s “other allegations include sufficient descriptions of the alleged schemes, including names of particular doctors and hospitals, to satisfy the particularity requirement. Moreover, the circumstances of the alleged bribes (i.e., serial cash payments) and other alleged kickbacks are sufficiently clandestine that it is probable that the payments were not disclosed in reported prices and/or that they led to the submission of false certifications of compliance with the Anti-Kickback statute.”

Saris did dismiss his claims filed under the False Claims Acts of Nevada and Hawaii, and certain claims based on rebates and improper speaker fees, grants, and gifts, under the False Claims Acts of California and the District of Columbia, because those jurisdictions already filed suit. And she dismissed claims against J&J as the parent corporation, but not Ortho-Biotech itself.

Hat tip to PharmaFraud