As the government investigation progressed, the whistleblowers and their attorneys made a significant difference in particular in the government's case against Glaxo for its off-label marketing of Advair for mild asthma. Gerahty, Burke and Phillips & Cohen devoted substantial effort and time preparing the legal case that helped demonstrate Glaxo improperly marketed Advair as a first-line asthma treatment and for asthma patients previously treated with only a short-acting inhaler.
As a result, Glaxo paid $686 million out of the total settlement to resolve claims involving the off-label marketing of Advair to treat mild asthma – by far the largest amount Glaxo paid to settle any of the civil charges. (See the settlement agreement at www.glaxowhistleblowers.com.)
Kelton and Phillips & Cohen also represented the whistleblower whose qui tam lawsuit against Pfizer alleging the off-label marketing of the prescription painkiller, Bextra, helped the government recover $1.8 billion as part of a record-setting $2.3 billion settlement in 2009.
"The gravity of Glaxo's conduct cannot be overstated," Kelton said. "The company's improper marketing practices extended across a wide range of its prescription drug portfolio. Given what we saw with Glaxo, Pfizer and other pharma companies, it's fair to conclude there has been almost no limit to what pharma companies have done to sell their products."Phillips & Cohen's case was consolidated with the Colorado qui tam lawsuit at the request of the U.S. Attorney's Office in Boston since the Colorado lawsuit alleged certain off-label practices involving some of the same drugs named in the Massachusetts whistleblowers' case. In their qui tam lawsuit, Gerahty and Burke provided detailed allegations about numerous off-label treatments pushed by Glaxo across the country for six of its most popular drugs, along with concrete evidence to support those allegations. Because of the depth and breadth of the information and evidence in Gerahty and Burke's lawsuit, the government launched a massive investigation into Glaxo's marketing practices, with the U.S Attorney's Office in Boston taking the lead in the case. "We filed our qui tam case because we thought what Glaxo was doing was wrong and might be causing injury to patients who were taking certain prescription drugs based on misleading information," said Burke. "The more I thought about it, the more I felt that Glaxo was trying to skirt its responsibilities under the law."