A Massachusetts judge has thrown out the whistleblower lawsuit brought by two doctors against Johnson & Johnson on the grounds that the doctors were using confidential information as the basis of their claims. With no public way to access the protected information, Chief U.S. Magistrate Judge Page Kelley dismissed the lawsuit in a sealed order, according to Law360.

In May 2012, Drs. Antoni Nargol and David Langton brought a qui tam case against DePuy Orthopaedics Inc., DePuy Inc., and Johnson & Johnson Services, Inc. A qui tam is a lawsuit brought by a private individual or company against another private individual or company on behalf of the federal government. 

The individual or group filing the lawsuit is called the relator, but the federal government is considered the true plaintiff. If the government succeeds in their case, then the relator receives a portion of the settlement or verdict. 

Drs. Langton and Nargol filed a qui tam lawsuit claiming that the metal-on-metal (MoM) hip implants of DePuy and Johnson & Johnson that were sold fell outside the U.S. Food and Drug Administration (FDA) approved manufacturing specifications and therefore led to false medicare and medicaid claims being filed, according to the unsealed order.

The issue that led to the dismissal was that, in addition to this current qui tam lawsuit, the plaintiffs have also served as expert witnesses and consultants for a previous multidistrict litigation (MDL) against DePuy over their Pinnacle and ASR products. In that lawsuit, Johnson & Johnson argues, “relators had access to confidential information subject to protective orders.” 

Johnson & Johnson maintain that there was no way to publicly acquire this information without violating the protective order and therefore the basis for the lawsuit is not lawful.

After initially denying the motion to dismiss the plaintiff’s complaint, Judge Kelley granted a motion to reconsider the dismissal, and after reviewing what Judge Kelley called repeated disregard for the orders of multiple courts regarding the use of confidential information, Judge Kelley wrote, “Repeated attempts by this court and others to hold relators to their obligations have proven futile, making dismissal the most appropriate sanction, particularly when the court cannot trust that the remaining allegations of the second amended complaint are untainted.”

It is unclear at this time whether the plaintiffs will attempt to appeal the decision or refile at a later date.