In a class action lawsuit seeking billions of dollars in damages, the plaintiffs alleged that the defendant had engaged in fraudulent off-label marketing of a prescription drug.
In a class action lawsuit seeking billions of dollars in damages, the plaintiffs alleged that the defendant had engaged in fraudulent off-label marketing of a prescription drug. Defense counsel retained Dr. Michael Keeley, a senior vice president of Cornerstone Research, to evaluate opinions offered by the plaintiffs’ economic experts on causation, injury, and damages. The court denied the plaintiffs’ motion for class certification.
The plaintiffs’ experts claimed damages based in part on an econometric model that sought to relate a particular promotion practice to off-label prescriptions. The plaintiffs’ causation expert assumed that virtually all of the promotion practice at issue was off-label and claimed that the model showed that this promotion practice caused virtually all prescriptions that were written for certain off-label indications. Dr. Keeley explained that the promotion practice at issue was not the only or even the primary factor causing patients to take the prescription drug for off-label indications and that there was no basis for the assumption that virtually all of this promotion practice was off-label. Dr. Keeley noted that the promotion practice at issue could not be the only factor causing prescriptions to be written because many physicians had not been subject to this promotion practice. Dr. Keeley showed that the plaintiffs’ econometric model was flawed and that it produced results that had no scientific validity. The court found the plaintiffs’ analysis insufficient to certify any of the indication-specific consumer subclasses.