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“Texas’s Southern District Dismisses Pharmacist’s False Claims Act Suit Against Walgreens”

American Society for Pharmacy Law By: Nicholas H. Meza, Kaitlyn L. Fydenkevez

On July 28th, 2021, the Southern District of Texas dismissed a False Claims Act suit against Walgreens, citing the pharmacist-relator's lack of specificity in her claims against the company.

Pharmacist Bridgette Jacobs, who had worked for Walgreens since 2002, filed the qui tam suit (31 U.S.C. § 3729(a)) under the seal in December 2019, claiming that Walgreens pharmacists in Texas had submitted claims to Medicare and Texas Medicaid that were incorrectly prescribed, or for incorrect doses or incorrect medications. Jones claimed that Walgreens never corrected or reported these orders.

At the core of Jacobs's allegation were ten instances where Walgreens filled prescriptions and billed the state or Federal program, which she claimed violated the FCA as well as the Texas Medicaid Fraud Prevention Act. District Court Judge David Hittner disagreed with Jacobs's portrayal of the pharmacy's actions, stating in his order that five of the ten instances Jacobs' cited as fraudulent behavior were simply a pharmacist's mistake. In addition to these five instances, Judge Hittner cited to an additional three instances where a pharmacist dispensed medication after receiving a valid prescription, but without verifying that prescription with the prescribing practitioner. Judge Hittner referred to Jacobs' examples as only "bare examples of instances in which Walgreens made 'mistakes' or 'errors'", and that what she had brought before the court were "conclusory allegations that unnamed representatives of unspecified Walgreens locations failed to report the errors to Medicare or Medicaid." These claims did not rise to the level of FCA or Texas Medicaid Fraud Prevention Act violations.

Jacobs' had more than one chance, during the pendency of this case, to provide robust evidence of Walgreens' alleged abuse of Federal and state programs, but failed to do so. In May 2020, Walgreens moved to dismiss the case, citing Federal Rules of Civil Procedure 9(b) and the requirement that any person bringing a fraud  claim "state with particularity the circumstances constituting fraud or mistake." Judge Hittner denied Walgreens' motion, and gave Jacobs an opportunity to amend her complaint and add specificity to her complaint and add specificity to her initial claims of fruad. That compliant, filed in January 2021, contained the same allegations and no further details or specificity regarding potential fraud by Walgreens.

In response to Jacobs's amended complaint, Walgreens filed another motion to dismiss, which led to the July 28 dismissal of Jacobs's case. In her response to Walgreens' January 2021 motion to dismiss, Jacobs stated that she would be willing to further amend her complaint to add the names of Walgreens employees who were involved in fraudulent activities. Judge Hittner held that Jacobs did not deserve yet another opportunity to add specificity to her complaint, and the case was dismissed.

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