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Perry v. Insys Therapeutics, Inc.

United States District Court, D. New Hampshire

May 14, 2019

Colleen Perry
Insys Therapeutics, Inc.

          Michael P. Rainboth, Esq.

          Michael D. Ramsdell, Esq.

          Adam P. Schwartz, Esq.

          David J. Walz, Esq.


          Joseph A. DiClerico, Jr. United States District Judge.

         Colleen Perry brings claims against Insys Therapeutics, Inc. that arise from Insys's actions to induce Physician Assistant Christopher Clough to prescribe Subsys, an opioid manufactured by Insys, to Perry. Insys moves to dismiss Perry's claims on the grounds that they are barred by the statute of limitations and that she fails to adequately allege fraud and a civil conspiracy.[1] Perry objects.

         Standard of Review

         A motion under Federal Rule of Civil Procedure 12(b)(6) seeks to dismiss on the ground that the plaintiff fails “to state a claim on which relief can be granted.” A motion to dismiss may be based on a defense that the claims are barred by the statute of limitations. Abdallah v. Bain Capital LLC, 752 F.3d 114, 119 (1st Cir. 2014). To decide the motion, the court accepts as true all of the properly pleaded facts and draws reasonable inferences in favor of the nonmoving party. Lemelson v. Bloomberg L.P., 903 F.3d 19, 23 (1st Cir. 2018).


         Colleen Perry had pain in both knees caused by a prior injury. Beginning in 2013, she was treated at the PainCare Clinic in Somersworth, New Hampshire. Physician Assistant Christopher Clough treated her at PainCare with numerous opioid medication injections.

         A. Perry's Treatment with Subsys

         In June of 2013, Clough told Perry that he had a new miracle drug for her treatment. When Perry protested that she was doing well on her current medication, Clough told her that the new drug, Subsys, was much better and persuaded her to switch. Clough prescribed Subsys, at the dosage of 400 mcg, and had the drug sent to Perry by FedEx from a company called Lindencare in New York. Clough continued to prescribe other opioid medications for Perry to use along with Subsys.

         Clough increased Perry's Subsys dose in July of 2013 to 800 mcg. In September of 2013, he increased the dose to 1200 mcg every four hours. Clough continued to increase the dose, without any medical justification, until Perry was taking 1600 mcg every four hours in February of 2014.

         As a result, Perry became dependent on Subsys. Several times, she lost consciousness and had to be revived by her husband who thought she had stopped breathing. On other occasions she was in a “zombie like state” and even comatose. She fell asleep at work, at dinner, and while having conversations. Perry told Clough she could not tolerate such high doses of Subsys and that the drug was causing her to pass out. She asked him to reduce the dose. Despite her concerns, Clough continued to prescribe Subsys at 1600 mcg every four hours until November of 2014.

         In November of 2014, Clough cut the dose of Subsys in half, which caused Perry to have withdrawal symptoms. Perry called Clough's office to report the symptoms. Clough told Perry that he was leaving the practice to work for his mother and to go back to school. In reality, Clough was under investigation by the New Hampshire Board of Medicine. His license was suspended in 2015 and revoked in 2016. A new physician at Pain Care attempted to wean Perry off of Subsys beginning in December of 2014. She suffered extreme symptoms of withdrawal.

         B. Subsys and Insys Therapeutics

         Subsys, which is manufactured by Insys Therapeutics, is a sublingual fentanyl spray. Perry alleges that Subsys is classified as a schedule II substance, which is more powerful than morphine or heroin. The FDA approved Subsys in January of 2012 for treatment of breakthrough cancer pain in adults who had become tolerant of other opioid medications. The approved dose was no more than 100 mcg. Because of its potency and the risk of misuse, addiction, and overdose, the FDA imposed rigorous controls on prescribing and dispensing Subsys.

         The New Hampshire Attorney General's office began an investigation into Clough's dealings with Insys. The office learned that 84% of the Subsys prescriptions in New Hampshire were written by Clough in 2013 and 2014. Clough was one of the highest prescribers of Subsys in the country and was the highest prescriber in New Hampshire.

         The Attorney General's office also learned that Insys paid Clough $44, 000 to promote Subsys at speaking events, which were shams. The events actually were social gatherings at high end restaurants for Clough's family and friends, which were paid for by Insys sales representatives. The sales representatives forged the guest lists to inflate the No. of attendees. Clough also spoke at Insys programs during 2013 and 2014, called the “Speakers Bureau, ” to promote Subsys. Clough was paid for participating in those events.

         Insys sales representatives were paid bonuses based on the amount of Subsys they sold. Insys completed forms for prescribers to induce prescribers and insurance companies to prescribe and pay for Subsys. Insys had its sales representatives remove Perry's records from Clough's office in order to deceive Perry's insurer into paying for Subsys even though Perry had not been diagnosed with cancer.

         When Clough was notified in August of 2014 that the New Hampshire Board of Medicine was investigating his prescription practices, he informed Insys that he would no longer participate in their speaker program. Federal authorities arrested Clough in March of 2017 for receiving financial kickbacks in exchange for prescribing Subsys. He was ...

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