Whistleblower Waited Too Long to Amend Suit

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In Wilson v. Bristol-Myers Squibb, the United States First Circuit Court of Appeals recently affirmed a district court opinion that a whistleblower (relator) waited too long to file an amended suit.  In this case, Wilson filed a complaint in the Central District of California under seal and then filed an amended complaint in October 2006, which alleged that Bristol-Myers Squibb violated the federal  Anti–Kickback Statute and engaged in off-label promotion of Monopril, Plavix, and Pravachol, and that these actions caused false claims to be submitted to the government in violation of the False Claims Act.

On September 28, 2007, Wilson entered into a partial settlement agreement with Bristol-Myers Squibb. Under the agreement, Wilson voluntarily dismissed  all False Claims Act claims against Bristol-Myers Squibb except claims relating to off-label promotion and a few other specific claims.  In the settlement, the defendant denied any liability, but agreed to  pay the government over $300,000 plus interest.  In October  of 2008, the government declined to intervene in the remainder of the case.

In April of 2009, Wilson filed a Second Amended Complaint , which expanded upon Wilson’s earlier allegations against Bristol-Myers Squibb that had not settled and also added a second defendant.  The district court dismissed the complaint and the relator appealed.  The district court’s dismissed on “first-to-file” grounds based on two complaints that were filed before Wilson filed his original complaint and contained similar allegations.

The relator attempted to survive by  seeking to file a Third Amended Complaint that would add a second relator and substantially expand the allegations in the complaint. The district court denied the motion and noted that the second amended complaint came almost three years after the original complaint, and the third nearly a year later.  The court found that the relator  had not adequately explained either of the delays.  The First Circuit affirmed and stated undue delay is a permissible ground for denying leave to amend,  and when “a considerable period of time has passed between the filing of the complaint and the motion to amend, courts have placed the burden upon the movant to show some valid reason for his neglect and delay.” 

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