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1st Circ. Gives Whistleblower Redo In Covidien FCA Suit

Posted: October 1, 2015
By: Jody Godoy
Source: Law360
Practice Areas: Whistleblowers, Qui Tam & False Claims Act

Law360, New York (September 30, 2015, 8:53 PM ET) -- The First Circuit told a Massachusetts federal court to rethink blocking a whistleblower from amending his suit alleging a Covidien Ltd. unit got Medicare to illegally fund off-label uses for its blood-blockage device on Wednesday.

The three-judge panel said the lower court had applied the wrong legal standard when it ruled that former ev3 Inc. salesman Jeffrey D'Agostino couldn't amend his complaint a fourth time. Because U.S. District Judge Richard G. Stearns hadn't set a deadline for amending the pleadings, he shouldn't have applied the more rigorous standard that governs motions to amend after such a cutoff.

"The relator could not be expected to divine from the district court's silence that future amendments were either off limits or would be subjected to a more stringent standard of review," the appellate panel said.

Read more at Law360

Law360, New York (September 30, 2015, 8:53 PM ET) -- The First Circuit told a Massachusetts federal court to rethink blocking a whistleblower from amending his suit alleging a Covidien Ltd. unit got Medicare to illegally fund off-label uses for its blood-blockage device on Wednesday.

The three-judge panel said the lower court had applied the wrong legal standard when it ruled that former ev3 Inc. salesman Jeffrey D'Agostino couldn't amend his complaint a fourth time. Because U.S. District Judge Richard G. Stearns hadn't set a deadline for amending the pleadings, he shouldn't have applied the more rigorous standard that governs motions to amend after such a cutoff.

"The relator could not be expected to divine from the district court's silence that future amendments were either off limits or would be subjected to a more stringent standard of review," the appellate panel said