Medical Mutual of Ohio v. AbbVie Inc. ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 6, 2019
Decided November 12, 2019
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19-1500 Appeal from the United
States District Court for the
MEDICAL MUTUAL OF OHIO, Northern District of Illinois,
Plaintiff-Appellant,
Eastern Division.
v.
No. 14 C 8857
ABBVIE INC., et al., Matthew F. Kennelly, Judge.
Defendants-Appellees.
Order
Medical Mutual of Ohio contends in this suit under the civil-liability section of the
Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §1964, that sev-
eral pharmaceutical companies promoted testosterone creams for uses other than those
approved by the Food and Drug Administration. Physicians are free to prescribe drugs
for off-label uses, but manufacturers are forbidden to promote those uses. 21 U.S.C.
§§ 321(p), 355(a), 396. Manufacturers also are forbidden to make false and misleading
statements about their products. Medical Mutual asserts that the defendants made false
or misleading statements to promote off-label uses, causing it to pay more for these
drugs than it would have done had the defendants lived up to their legal obligations.
No. 19-1500 Page 2
The district court granted the defendants’ motion for summary judgment. 2019 U.S.
Dist. LEXIS 24063 (N.D. Ill. Feb. 14, 2019).
Although the district court administered Medical Mutual’s suit as part of multidis-
trict litigation under the caption In re Testosterone Replacement Therapy Products Liability
Litigation, MDL 2545, it was not consolidated with any of the other suits. Thus the final
disposition of Medical Mutual’s claims is immediately appealable. See Gelboim v. Bank of
America Corp., 135 S. Ct. 897 (2015); Hall v. Hall, 138 S. Ct. 1118 (2018).
The district court addressed at length the possibility that Medical Mutual was ad-
versely affected by improper statements made directly to it or its pharmacy benefits
manager. It ruled that no reasonable jury could conclude that Medical Mutual or the
pharmacy benefits manager relied on any of these statements. 2019 U.S. Dist. LEXIS
24063 at *416–52. We agree with the district court’s assessment, which need not be re-
peated here.
The possibility that Medical Mutual was derivatively affected by statements made to
physicians or patients does not support liability under RICO, given the analysis of cau-
sation in Sidney Hillman Health Center v. Abbott Laboratories, 873 F.3d 574 (7th Cir. 2017).
AFFIRMED