PHILADELPHIA, July 17, 2024 -- Berger Montague PC is pleased to announce that on July 3, 2024, the Court entered an order in United States ex rel. Silver v. Omnicare, Inc., PharMerica Corp, et al., No. 11-01326 that finalized the resolution of this case, resulting in a $100 million settlement agreement between Relator Marc Silver and defendant PharMerica Corporation. The case was filed 13 years ago by Berger Montague in the District Court of New Jersey. The government declined the case after investigating, but Relator Marc Silver and his counsel at Berger Montague were determined to fight on for justice, which is their right under the Federal False Claims Act. A full decade of intense litigation ensued, including reversing an early dismissal of the case through a successful appeal to the Third Circuit Court of Appeals and the denial of certiorari by the Supreme Court. PharMerica challenged the case at every turn, filing numerous potentially dispositive or crippling motions, all of which were eventually defeated. Finally, on the eve of trial, settlement was reached. Berger Montague achieved this tremendous settlement, which will return more than $70 million to the federal and state governments and a substantial reward for the Relator.
Relator claimed that PharMerica, which owns a chain of a long-term care institutional pharmacies across the country, had improperly received hundreds of millions of dollars from government payors through violations of the Anti-Kickback Statute and False Claims Act from 2005 through 2014. Relator specifically alleged that PharMerica won or renewed pharmacy services contracts with certain Skilled Nursing Facilities ("SNFs") by offering them below cost drug pricing for their Medicare Part A patients, for which the SNFs were financially responsible, in order to obtain the right to service the SNFs' much larger and profitable Medicare Part D and Medicaid patients, who were insured by government health care programs. While PharMerica experienced losses from the SNFs' Medicare A business, it made profits on the SNFs' Part D and Medicaid business, and on the contracts overall.
This practice, which is known as "swapping" and is similar to "loss leader" pricing seen in many other industries, is strictly prohibited in the healthcare setting where such pricing can influence health care decisions and outcomes by distorting markets, changing utilization patterns, and decreasing the quality of services that the federal and state governments pay for through programs like Medicare and Medicaid.
Relator Marc Silver is a Certified Public Accountant and former owner of a SNF, Silver Care Center of Cherry Hill, New Jersey, and a pharmacy. The Berger team who represented Silver consisted of Sherrie Savett, chair of the firm's Qui Tam/ Whistleblower/False Claims Act practice, and Shareholders Michael Fantini and William Ellerbe. The Berger Montague team worked with Lisa Rodriguez of Dilworth Paxson, LLP, who ably served as local counsel. In the latter stages of the case when trial was approaching, the skilled team of trial lawyers from Reese Marketos, LLP, including Josh Russ, Andrew Wirmani, Pete Marketos, Adam Sanderson, and Brett Rosenthal, joined the Berger firm to try the case.
According to Sherrie R. Savett: "We have stood by our client Marc Silver for years and have fought PharMerica, one of the most powerful long-term care pharmacies in the country defended by one of the largest law firms in the world, to achieve this remarkable settlement. We have devoted years of work, and tremendous expenses, to develop this case and prepare it for trial. The size of the settlement speaks to the tremendous work we did, and the risk that PharMerica faced at trial if we had presented the evidence we had amassed showing that PharMerica had reaped huge profits for years by using illegal kickbacks to win contracts with SNFs."
Berger Montague shareholder Michael Fantini, commented, "This case was extremely hard fought. PharMerica opposed us at every step until the very end, when we settled the case mere weeks before trial. But we had a great team and achieved a fantastic result for our client and the government payers who had been damaged by PharMerica's actions."
William Ellerbe, another shareholder at Berger Montague, added "A hallmark of this case was its complexity. The devil was truly in the details of the pricing arrangements that PharMerica offered to certain SNFs across the nation. Berger Montague is one of the few law firms in the country capable of taking on and developing cases of this complexity against defendants like PharMerica who have the resources to throw the kitchen sink at us in litigation, and we are thrilled to have won this very significant settlement for our client and the taxpayers."
If you are a whistleblower seeking representation concerning a potential qui tam / whistleblower / False Claims Act case, please contact Berger Montague.
About Berger Montague
Berger Montague is a national law firm focusing on complex civil litigation in federal and state courts throughout the United States. For over half a century, Berger Montague has played lead roles in consequential, precedent-setting cases and has recovered over $60 billion for its clients and the classes they have represented. Berger Montague is headquartered in Philadelphia and has offices in Chicago, Minneapolis, San Diego, San Francisco, Toronto, Wilmington, Del., and Washington, D.C.
This is the second significant victory in an FCA case within the last year achieved by the team of Berger Montague and Reese Marketos. On June 13, 2024, after a trial of almost 6 weeks in the long-running FCA action against Janssen for off-label marketing, U.S. ex rel. Penelow v. Janssen Products, LP, Civ. A. No. 12-07758, a jury found Janssen liable for $150 million in single damages, one of the largest FCA verdicts in history.
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