Article23 Jul 2019 12:56
Law360, London (July 23, 2019, 3:35 AM BST) -- Indivior has urged a federal judge to toss an indictment accusing it of misrepresenting the risk of abuse posed to children by its opioid-dependence treatment Suboxone Film, claiming federal prosecutors included inadmissible references to a doctor's health care fraud convictions and possibly even intentionally misled the grand jury.
In its motion to dismiss Friday, Indivior Inc. said that the U.S. Department of Justice seemed to have presented the grand jury inadmissible evidence about a doctor's health care fraud convictions, and effectively instructed the jury to apply them as a reason for charging the company with an alleged nationwide scheme to falsely promote Suboxodone Film as a more child-proof and less addictive version of the opioid addiction drug's tablet form.
Further, the references to the convictions were misleading since they had to do with insurance billing issues and had nothing to do with Indivior or the supposed nationwide scheme outlined in the indictment, the U.K.-based company argued.
"For each of these reasons, the indictment must be dismissed, and if there has been 'willful prosecutorial misconduct,' that dismissal must be with prejudice," Indivior said. "The record in this case strongly suggests that the prosecutors acted willfully in this instance."
The grand jury had returned the indictment in April, hitting Indivior with 28 felony counts involving mail, wire and health care fraud. Overall, the indictment said that Indivior falsely portrayed the dissolving-film version of its opioid-dependence drug Suboxone as less prone to abuse or inadvertent use by children than the tablet version.
But, according to Indivior, the indictment must be dismissed because it has three prejudicial errors relating to the doctor, referred to in the indictment as "Doctor D," who was allegedly enlisted by the company as part of the scheme. First, it committed a mistake "of constitutional dimension" by improperly using the conviction of an alleged co-conspirator, the company said.
Second, the DOJ essentially gave the grand jury flawed instructions, leading it to infer probable cause as to Indivior based on the doctor's convictions, the company asserted. And third, the federal government's "explicit and implicit misrepresentation" that the doctor's convictions related to Indivior warranted the indictment's dismissal, according to the company.
Indivior also argued that the grand jury proceedings had to be carefully reviewed for willful misconduct to determine whether the dismissal should be with prejudice. The company asked that all of the proceedings related to the doctor, referred to in the indictment as "Doctor D," be disclosed to it, as well as the prosecutors' summation of evidence, presentation of the indictment and instructions for the grand jury, among other things.
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