That’s right. The US Attorney in Seattle has appealed a ruling made two months ago by a federal judge, who determined that former Cell Therapeutics sales rep Jim Marchese was entitled to $1.6 million, or 15 percent of a $10.5 million fine that was paid by his former employer for off-label promotion of a cancer drug. The notice of appeal to the US District Court of Appeals for the Ninth Circuit was filed earlier this month in federal court in Seattle.

For those who don’t recall, the federal government relied on Marchese to make its case but, in an usual twist, turned around and accused him of masterminding the complex off-label scheme, and argued he didn’t deserve a dime, rather than the customary 15 percent to 25 percent that a whistleblower would typically receive. The US Attorney in Seattle also claimed Marchese destroyed or failed to turn over evidence when he first came forward. Marchese denied it all and US District Court Judge Marsha Pechman decided that Marchese was entitled to a share of the proceeds, because he played a significant role in the government’s case and didn’t engineer the fraud. She wrote…

“Marchese repeatedly consulted with the government on the details of the government’s case and led the government to discover the bulk of the fraudulently reimbursed Medicare claims…Marchese also aided the government’s mediation with CTI, providing the government with strategies to overcome CTI’s defensive arguments…The Court balances Mr. Marchese’s contributions to the government’s case against his participation in (one) fraud. The Court concludes that Mr. Marchese’s initial interpretation of the statute governing Medicare reimbursement was honest, albeit flawed…

“Marchese has failed to convince the Court that he acted swiftly and efficiently in bringing the case against CTI after he discovered CTI’s illegal promotion of off-label indications…. (However), the Court does not find that Mr. Marchese was the planner and initiator of a scheme to deceive physicians. Because Mr. Marchese did not plan or initiate the scheme, his share of the CTI settlement cannot be reduced below fifteen percent.”

This is the complete 14-page ruling issued in December.