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Within months of joining Illinois-based TAP Pharmaceutical Products Inc. as vice president of sales in January 1995, Douglas Durand became “concerned” over the company’s sales practices, said his attorney Elizabeth K. Ainslie. “He called me about his growing uneasiness and asked if he might be liable” for criminal or civil charges. “TAP salesmen were providing doctors with samples of the prostate cancer drug Lupron and encouraging them to bill Medicare as if they had paid for the drug,” Ainslie charged. Since Lupron sells for $400 to $500 per month, this could provide substantial profits for doctors. TAP sales personnel were also “marketing the spread,” Ainslie added, “telling doctors that Medicare would reimburse them at $500 a month and TAP would only charge $350 a month. It was essentially a kickback to the doctors.” On Ainslie’s advice, Durand left TAP and, in May 1996, he sued the company under the qui tam provisions of the federal False Claims Act. During the ensuing investigation, the government turned up more concrete evidence and Durand helped develop the case against TAP. In 1998, urologist Joseph Gerstein filed a second false claims suit against TAP, alleging that it was giving unrestricted educational grants to urologists who were either in danger of going over to the lower-cost competition or who were big purchasers of Lupron. Gerstein himself had been offered a grant to stay with Lupron. He contacted the government and arranged for the salesman to make the offer on videotape. Soon after the U.S. Justice Department intervened, TAP pled guilty to violations of the federal prescription drug marketing act and announced that it would pay $875 million. Relators Durand and Gerstein will receive $77 million and $17 million, respectively, as their share of the settlement. The relators’ attorneys were Elizabeth K. Ainslie of Schnader Harrison Segal & Lewis in Philadelphia, and Mary Louise Cohen of Phillips & Cohen in Washington, D.C. The government attorney was Susan Winkler, Assistant U.S. Attorney. The Boston defense attorneys were Joseph F. Savage Jr. of Testa, Hurwitz & Thibeault in Boston and Daniel E. Reidy of Jones, Day, Reavis & Pogue in Chicago.

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