The Eastern District of Pennsylvania recently allowed a fifteen-year old False Claims Act (“FCA”) qui tam action to proceed when it rejected a strict application of the statute of limitations and broadly construed the “relation back” doctrine.

In United States ex rel Gohil v. Aventis, relator Yoash Gohil, a former senior sales specialist at Aventis, alleges that from 1996 through 2004 Aventis and its predecessors trained and directed its employees to misrepresent the safety and effectiveness of the oncological drug Taxotere, to expand the drug to off-label uses. Aventis allegedly incentivized providers to prescribe Taxotere off-label by paying illegal kickbacks in the form of sham grants, speaking fees, travel, entertainment, sports and concert tickets, preceptorship fees, and free samples and reimbursement assistance.

Although Gohil initially filed his qui tam complaint under seal on May 17, 2002, he filed a second amended complaint in February 2007 that provided more detail and for the first time defined the applicable time period of the alleged illegal marketing scheme as 1996 to 2004. Gohil’s third amended complaint was unsealed in late February 2008.

Aventis recently moved to dismiss the third amended complaint on the basis that the FCA claims were time barred by the FCA’s six year statute of limitations. Aventis argued that Gohil’s “new” FCA claims dating between 1996 and 2000 appeared for the first time in Gohil’s second amended complaint which was filed in February 2007 and unsealed in 2008. Aventis also argued that the first amended complaint did not put it on actual notice of the FCA allegations preceding 2000 because Gohil worked for a predecessor of Aventis from 1996 to 1999.

The court denied Aventis’s motion. The court found that Aventis was on actual notice as of the original sealed complaint in May 2002, pointing to the fact that Aventis raised timeliness nearly eight years after it received the unsealed first amended complaint and that it acknowledged in its briefing a 2002 wrongful termination case brought by Gohil. The court explained that the additional facts were not “new,” but, instead, “natural offshoots” of the original allegations. And, although Gohil was not employed by Aventis until 2000, his first amended complaint explicitly called out Aventis and its predecessors for establishing a fraudulent pattern and practice. The court concluded that the amended complaints therefore “related back” to the timely-filed original complaint and were not barred by the statute of limitations.

This decision is noteworthy because of the age of the FCA claims found to be viable. FCA defendants should recognize that a statute of limitations defense may not protect against a later asserted claim if the new claim is a “natural offshoot” of the original allegations.