Today’s case is, we think (and certainly hope), unlike any other case we have discussed in 2018. To begin with, Duntsch v. State, 2018 Tex. App. LEXIS 10131, 2018 WL 6445369 (Texas Ct. App. 5th Dist. Dec. 10, 2018), is an appeal from a criminal conviction. Since we have droned on incessantly about how
We’ve complained before about the federal government’s monetization of First Amendment violations in the context of truthful promotion of off-label uses:
[T]he government has ruthlessly monetized its questionable ban on truthful off-label promotion for quite a few years now. Indeed, the government has used this ban as the basis for a creeping administrative takeover of
Like many of you, on Friday mornings we turn to the “Legal Lions and Lambs” section of Law360. It is not only voyeurism. We are constantly working on things in media res (the middle of things), building slowly and gradually to a climax that hardly ever arrives. Ninety percent of cases settle, and that is…
Come visit us in our office whilst we are poring over a brief and, with minimal provocation, we will put aside the task at hand and start gabbing about our days as a prosecutor. Come sit next to us while we are pouring a brown adult beverage and we will get to that point even…
We have been following issues related to the interplay of off-label use, manufacturer statements about off-label use, the First Amendment, and FDA enforcement for a long time. (Like here, here, and here, among many posts.) The court battles that have garnered so much attention recently can be traced back to at least the 1990s, with the famed decision in Washington Legal Foundation v. Henney, 56 F. Supp. 2d 81, 85 (D.D.C. 1999), vacated as moot by 202 F.3d 331 (D.C. Cir. 2000). There can be lots of talk about what FDA’s policy is on what a manufacturer can and cannot say about unapproved uses for its drug or device. Discussions about changing 21 C.F.R. § 201.128 (drugs) & 801.4 (devices) have dragged on for a while, even with the Amarin settlement and with other FDA statements suggesting that the regs do not reflect current policy. FDA policy, of course, involves more than just a few sentences in a regulation or guidance document. Particularly for a prohibition that has long been the crux of FDA enforcement—like warning letters and prosecutions—and has spawned or played a major role in subsidiary FCA, RICO, and product liability litigation, a decision to stop prohibiting truthful, non-misleading statements about unapproved uses for drugs and devices is not exactly the end of the story. For one thing, criminal prosecutions that are based at least in part on manufacturer statements about unapproved uses are always on-going and U.S. cannot just hit the reset button in those cases.
We do not often post about decisions from, let alone briefs filed in, criminal cases brought pursuant to the FDCA. That FDA enforcement sometimes results in prosecutions is something that comes up in our cases and posts, often in the context of preemption and primary jurisdiction—the FDA does not just have the authority to root out misbranded and adulterated medical products and fraud in connection with approval or post-approval reporting, but companies and individuals get prosecuted, so you should be comfortable respecting FDA’s authority, Your Honor. It also comes up sometimes when there has been a prosecution that resulted in an indictment, plea, conviction, or sentencing memorandum that the plaintiffs want to use as evidence of something—or for issue preclusion—in a separate case. When it comes to prosecutions based at least in part on manufacturers or their representative making statements about unapproved uses, we have an opportunity to see what FDA’s policy on off-label promotion really is these days and how it might affect behavior. While we generally think manufacturers and their representatives try to follow applicable guidance documents, they definitely want to avoid being convicted.
Today, we take a look at two criminal prosecutions involving off-label promotion allegations, each of which has now been tried to a jury verdict. In the first, the court denied all of the defendants’ motions in limine before the case proceeded to a defense verdict at trial. See U.S. v. Vascular Solutions, Inc., No. SA-14-CR-926-RCL, 2016 U.S. Dist. LEXIS 133717 (W.D. Tex. Jan. 27, 2016). That opinion showed up in our searches recently, well after the acquittal of the device manufacturer and its CEO produced its own fall out, including a letter from Senator Grassley—hardly a known industry champion—to DOJ about prosecutorial misconduct. The Vascular Solutions defendants were charged with misbranding (and conspiracy to misbrand) of its Vari-Lase device. This device was cleared—the opinion says “approved”—for treatment of varicose veins, specifically, per the indictment’s allegations, superficial veins and not deeper perforator veins. The U.S. contended that the company failed to seek an expanded indication and failed to provide revised labeling to account for the use of the device to treat perforator veins. Id. at *3. Defendants filed various motions in limine based on the First Amendment and the definition of “intended use” in § 801.4. We will discuss only two of them, particularly the government’s position. The government announced that it would not “use promotional speech to doctors to prove the intended use of the devices for perforator vein ablation” to avoid the “possibility that the misbranding offenses criminalize promotional speech.” Id. at **6-7. It planned, however, to use such promotional speech as an overt act in furtherance of a conspiracy. The court agreed with the government that a lawful act, including constitutionally protected truthful commercial speech, could be used as an overt act. Id. at **7-8.
Tell us that that the feds prosecuted a doctor for using a medical device off-label, and the hairs on the back of our neck start to rise and do the samba. After all, off-label use can be good medicine, even the best. Then tell us that the same doctor also faced the music for using an “adulterated” device and our knees grow weak. The word “adulterated” gets thrown around an awful lot in the FDA regulations. You (and most jurors) might think of the old Upton Sinclair investigative journalism reports about fingers turning up in tubs of margarine, but “adulterated” can also refer to technical issues, such as labels that do not say quite enough. The recent case of U.S. v. Kaplan, 2016 WL 4709870 (9th Cir. Sept. 9, 2016), is arresting because it makes us wonder whether good facts (Bad facts? Weird facts?) might make bad law.
The defendant in the Kaplan case was a medical doctor accused of conspiring to violate 18 USC section 331(k) – using an adulterated medical device held for sale. Like the semi-adequate federal prosecutor we used to be, let’s start with the factual headline: this doctor reused single use prostate biopsy needles. Think for a moment about how prostate biopsy needles are used, then think about the impact of expert testimony to the effect that cleaning single use needles would not do the trick, and that the needles became discolored after use. Yuck. Then think about the effect of evidence that the doctor started reusing the single use needles for purely economic reasons, that he did not pass any savings along to the patients, and that other people in his medical practice told him to stop reusing the needles.