The whistleblower who in April lost a $219 million suit against Abbott Laboratories over allegedly improperly marketed bile duct stents won’t get a new trial, a Texas federal judge ruled on Wednesday, finding that nothing in the proceeding led to an unfair trial.
U.S. District Judge Barbara M.G. Lynn said in a one-page order that the April 7 jury verdict that cleared the medical device maker “was not against the great weight of the evidence.”
Former Abbott salesman and relator Kevin Colquitt argued earlier this month that the court improperly excluded evidence showing that health regulators didn’t tacitly approve off-label use of the stents, causing the jury to incorrectly find that Abbott didn’t violate the False Claims Act by misleading the Centers for Medicaid and Medicare Services.
“[No] allegedly erroneous pretrial rulings, evidentiary rulings, improper jury arguments or erroneous jury instruction included or omitted from the court’s charge, to the extent preserved, [resulted] in an unfair trial,” the judge said. “The interests of justice do not require a new trial.”
Colquitt initially sued Johnson & Johnson’s Cordis Corp. and Boston Scientific Corp., along with Abbott, claiming that the medical device makers pushed off-label uses of the stents. In 2013, Judge Lynn cut J&J and Boston Scientific from the case, but denied several attempts by Abbott to avoid a trial.
The U.S. chose not to intervene in Colquitt’s lawsuit.
During the trial, Colquitt’s lawyers told jurors that Abbott had deliberately marketed stents that the U.S. Food and Drug Administration had cleared only for implantation in bile ducts to the much larger market for vascular stents, which are implanted in arteries. Colquitt claimed that the company’s off-label marketing caused doctors to submit more than 35,000 false claims for reimbursement, costing Medicaid and Medicare more than $219 million from 2004 to 2006.
Abbott argued that Colquitt, who later went to law school and now works for Standly Hamilton LLP — the firm handling his case — was only looking for a big payday from the device maker, which in 2006 bought the vascular device division of Guidant orp. for $4.1 billion.
Christopher S. Hamilton, a lawyer for Colquitt, told Law360 on Wednesday that because new trial motions are rarely granted in federal court, the ruling was not a surprise. However, Colquitt's legal team is planning to appeal.
"While we appreciate the court's hard work in this case, we respectfully disagree with today's ruling and we are continuing to prepare this matter for appeal," Hamilton said. "Once all the evidence has been considered by the appellate court, we believe there will be a new trial on all of our claims where a jury will be able to receive the full and true picture of how our health care system was illegally manipulated by the defendants in pursuit of profits while putting the public in harm's way."
A representative for Abbott could not immediately be reached for comment on Wednesday.
Colquitt is represented by Hamilton and Meagan Martin of Standly Hamilton, Andrew M. Beato and David U. Fierst of Stein Mitchell Cipollone Beato & Missner LLP, Kelly R. Bagby of AARP Foundation Litigation, and Robert L. Langdon and Adam Graves of Langdon & Emison LLC.
Abbott is represented by Jim Hurst, Andrew Kassof, Elizabeth Hess and James Hileman of Kirkland & Ellis LLP, and George Bramblett and Jeremy Kernodle of Haynes and Boone LLP.
The case is U.S. ex rel. Colquitt v. Abbott Laboratories et al., case number 3:06-cv-01769, in the U.S. District Court for the Northern District of Texas.
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