“[E]conomic injury was an essential element of each of the plaintiffs’ claims.”
And, “[i]n light of physicians’ exercise of professional judgment, a patient suffers no economic injury merely by being prescribed and paying for a more expensive drug.”
“[I]n the context of prescription drug purchases, the fact that the payer merely paid for more expensive drugs does not suffice. Instead, the purchased drugs must have been either unsafe or ineffective for their prescribed use—i.e., the prescription needs to have been medically unnecessary or inappropriate according to sound medical practice.”
Although [plaintiff] contends that it has had to pay for more prescriptions because of the off-label usage, [it] does not allege that any physician, had he or she known all the true information about [the drugs] would not have prescribed the drugs under the standards of sound medical practice because the drugs actually were unsafe or ineffective in treating their patients’ conditions.
[T]here is nothing in the complaint to suggest that [plaintiff] set its premiums in other than the conventional manner outlined by the court in Ironworkers. By placing [these drugs] on its formulary, [plaintiff] assumed the risk that some of its reimbursements would be for off-label uses — even those uses that may have been a product of the alleged marketing fraud.
In this case, [plaintiff] fails to allege what misrepresentations, if any, were made directly to it and upon which it relied. The complaint also fails to allege sufficiently how these representations caused [plaintiff] harm. This thwarts the court’s ability to evaluate causation. . . . Similarly, [plaintiff] fails to allege that any doctors or other health care professional relied on any . . . misrepresentation promoting an off-label use, as opposed to relying on the professional’s own judgment and expertise, when prescribing the drugs.