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Where a defendant has moved to dismiss a former employee's qui tam action brought pursuant to the False Claims Act, the complaint must be dismissed as claims concerning fraudulent promotion but not with respect to kickback-related claims.
"(Defendant) Medtronic sells a variety of products for the treatment and management of diabetes. ...
"Among the products Medtronic sells are insulin pumps allowing the continuous delivery of insulin. ...
"(Relator Adam) Witkin alleges that, in the course of his employment, he learned about fraudulent behavior by Medtronic that resulted in false claims to government health care programs, including Medicare, Medicaid, CHAMPUS/TRICARE, and CHAMPVA. ...
"Many of Witkin's allegations involve Medtronic's efforts to expand insulin pump use among Type 2 diabetes patients. ...
"More specifically, Witkin alleges that Medtronic paid kickbacks and other illegal remuneration to physicians to induce them to prescribe Medtronic insulin pumps to their patients. ... He also alleges that Medtronic helped Type 2 patients falsify their qualifications for insulin pump therapy, resulting in claims to government payors for reimbursement of ineligible and unnecessary pumps. ...
"According to Witkin, Medtronic also fraudulently promoted its insulin pumps for uses not approved by the U.S. Food and Drug Administration ('off-label' uses). ...
"Witkin further alleges that Medtronic...