Practice Areas & Industries: Duane Morris LLP

 




Pharmaceutical, Medical Device, Pharmacy and Food Return to Practice Areas & Industries

Group Profile Lawyers in this Group Offices Locations for this Group
 

Practice/Industry Group Overview

The pharmaceutical, medical device, pharmacy and food industries have far-reaching scope and are integral to our daily lives. Duane Morris attorneys counsel clients in these industries on virtually all aspects of their business and at all stages of the client's lifecycle, from bringing new products to market and responding to agency enforcement actions to integrating Good Manufacturing Practices, as well as corporate compliance, due diligence and products liability matters.

Our services range from review of promotional materials, price reporting, adverse event reporting, import and export issues, and manufacturing questions. We review self-evaluative audits, design corrective action plans and, when warranted, assist in reporting possible violations to regulatory authorities. As a full-service law firm, we use a multidisciplinary approach to advise clients on compliance with the complex legal issues that involve different legal areas, such as the Foreign Corrupt Practices Act, criminal defense, antitrust laws, products liability matters and intellectual property. Our efforts are focused on managing risk and navigating a complex regulatory environment while achieving our clients' business goals.

We regularly assist clients in dealing with governmental regulatory agencies, including the FDA, Drug Enforcement Administration (DEA), Centers for Medicare and Medicaid Services, Office of Inspector General, Department of Health and Human Services, the U.S. Department of Justice, the FDA Office of Criminal Investigations, and state regulatory authorities. Our experience includes representing clients in regulatory enforcement actions, False Claims Act litigation, internal investigations, fraud and abuse, off-label promotion and alleged violations of the Federal Food, Drug, and Cosmetic Act, the Controlled Substances Act and federal and state anti-kickback statutes. To help prevent costly litigation and enforcement actions, we focus on preventative counseling and help clients develop and implement corporate compliance plans.

Pharmaceutical and Medical Device

From major multinational corporations seeking to expand market share to startups with ideas growing in the laboratory, life sciences companies of all levels of maturity turn to Duane Morris for counsel and representation aimed at improving their organizational health. Our attorneys are experienced in navigating the challenges posed by the development, manufacture, marketing and sales of medical devices, biologics and pharmaceuticals, including a significant focus on generic drugs. We seek to quickly and effectively clear regulatory hurdles while protecting our clients' intellectual property and monetary assets.

A significant portion of our practice centers on counseling clients on compliance with the FDA's statutory and regulatory requirements, drug and device approvals, dietary supplement health claims, regulatory issues in corporate acquisitions, recalls and crisis management. Additionally, we advise clients on critical partnering, licensing and financing transactions, as well as significant operational agreements for manufacturing and supply, distribution, and pre-clinical and clinical research. We also help clients understand the complexities of price reporting to federal agencies and have represented drug clients in litigation involving claims related to price reporting.

Duane Morris lawyers also advise clients on how to bring generic drugs to market under the Hatch-Waxman Amendments to the federal Food, Drug, and Cosmetic Act. We counsel on drug approvals and market entry strategies—including Abbreviated New Drug Applications (ANDAs), 505(b)(2) NDAs, and ANDA suitability petitions—working through answers to questions related to eligibility for the abbreviated and 505(b)(2) application processes, labeling, patent certifications, 180-day exclusivity provisions, and the scope of various non-patent exclusivity provisions.

In the device arena, we help device and diagnostic companies develop and execute the regulatory strategies to bring their products to the market and keep them there, including counseling on device classifications and the appropriate approval route at FDA, whether under the PMA or 510(k) processes. We also have worked on reclassification petitions and other steps to ensure that our clients secure the protection of the statute's commitment to the least burdensome approach to the regulation of safe and effective devices. In so doing, we also incorporate guidance on satisfying the reimbursement requirement of governmental payers such as Medicare/Medicaid and the private insurers.

We also advise clients on the appropriate child-resistant packaging that many drugs must be packaged in pursuant to the Child Safety Protection Act (CSPA), which is enforced by the Consumer Product Safety Commission (CPSC).

Working at the crossroads of science and business, many Duane Morris lawyers call upon their knowledge gained through previous positions as toxicologists, chemists, pharmacists and laboratory researchers, as well as their advanced degrees in biology, biochemistry and molecular and developmental genetics, when assessing clients' specialized legal needs. As many of our attorneys have direct industry experience as executives and in-house counsel for pharmaceutical and biotechnology companies, we understand the issues clients face from the clients' perspective. We are able to provide teams of lawyers who practice in diverse legal disciplines—such as patents and intellectual property, corporate finance and securities law, international trade and taxation, labor and employment law, products liability and other litigation—all of whom have experience handling matters for pharmaceutical and biotechnology clients.

All of the firm's patent lawyers and patent agents have science or engineering backgrounds, many with advanced degrees, and most have significant industry experience in their respective disciplines, including:

  • Advanced materials
  • Biochemistry
  • Biotechnology
  • Medical and mechanical devices
  • Pharmaceuticals
  • Abbreviated New Drug Application and related litigation
  • Medicinal chemistry
  • Small molecule chemistry
  • Combinatorial chemistry
  • Formulations
  • Organic chemistry/synthetic pathways

When our attorneys enter a courtroom, they are adept at explaining complex technical issues in a straightforward manner and presenting our client's story to the judge and jurors in the most compelling way possible. We handle patent litigation for large and small corporations as well as individual inventors and startup enterprises. We also are experienced in conducting interference proceedings before the U.S. Patent and Trademark Office.

Our clients include generic and specialty pharmaceutical manufacturers, manufacturers of biologics, and device and diagnostic manufacturers.

Pharmacy

Our lawyers regularly represent the pharmacy industry in a variety of matters, such as reimbursement litigation, third-party payor audits (including state audits), allegations of diversion, pharmacy compounding matters, the complex legal landscape of federal and state anti-kickback statutes and issues before state boards of pharmacy.

We have a deep understanding of the legal framework governing compounding, including the federal Drug Quality Security Act (DQSA), the Compounding Quality Act (CQA), and the myriad of state laws and regulations that govern compounding.  Duane Morris attorneys both counsel clients to comply with the various state and federal laws implicated in compounding and represent clients in disputes with the FDA, DEA, and state boards, in administrative actions and in federal courts.  We have represented this industry in major precedent setting litigation in the United States Supreme Court.  Our compounding clients include a range of pharmacies that compound, from both specialty compounding pharmacies to large retail chains.

Duane Morris attorneys assist clients in dealing with state boards of pharmacy, the Office of Inspector General, state boards of health and human services, the DEA and other regulatory agencies.

We have represented the industry in major litigation involving the calculation of average manufacturer price, the calculation of federal upper limits and other reimbursement litigation.

Our clients include national and numerous state pharmacy associations. We represent major chains as well as the community pharmacist. Because of our broad client base, we understand the business of pharmacy.

Food

Our lawyers assist food and dietary supplement industry clients with the legal, regulatory, competitive and other business challenges they face. Duane Morris advises on regulatory compliance, enforcement risk and corrective action; draft notifications, petitions and other voluntary or mandatory submissions; and complaints against competitors. Our goal is to advance and defend our clients' interests before courts as well as federal and state enforcement officials and in the marketplace.

Compliance and Enforcement

For our pharmaceutical, medical device, food and pharmacy clients, we advise them regarding compliance with myriad statutory and regulatory requirements, guidance documents and informal policies, including those governing:

  • Labeling and advertising claims, including triggered disclaimers
  • FDA inspections, including responding to Form FDA 483 inspectional observations and warning letters
  • Recalls and market withdrawals
  • Corrective actions
  • Import detentions
  • Seizures, injunctions and criminal prosecutions
  • Complaints by or about competitors
  • Mandatory and voluntary submissions

We have represented these clients in enforcement actions initiated by the Department of Justice, FDA and the Federal Trade Commission, and before the National Advertising Division of the Better Business Bureau. We also help clients with issues involving Good Manufacturing Practices, labeling and overseas sourcing.

In addition, we provide training to clients on ensuring compliance in all areas impacting their operations.


 
Group Presentations
  Duane Morris Partner Michael Swit to Speak at the CFPA's Generic Drug Approvals Course, New Brunswick, NJ, May 6, 2014
Duane Morris' Michael Swit to Present on "Navigating the Regulatory Landscape", Hyatt Regency Mission Bay, San Diego, February 21, 2014
Duane Morris Special Counsel Michael Swit to Present an "Update on FDA Development for Biosimilars", Sheraton Philadelphia Downtown Hotel, Philadelphia, February 12, 2014
 
 
Articles Authored by Lawyers at this office:

CMS Updates 5 Star Ratings System for Nursing Homes with New Measures
Ari J. Markenson, April 07, 2015
As of February 20, 2015, the Centers for Medicare & Medicaid Services (CMS) has revised its 5 Star Rating System for nursing homes. The changes to the system involve adding two new nursing home quality measures for antipsychotic use into the Quality Measure Rating, Increasing the number of...

Lawyer in Vietnam Oliver Massmann Pharmaceutical Market
Oliver Massmann, March 30, 2015
Vietnam’s healthcare system is currently in general on the move due to the economic growth and the rapid development.

OIG - Medicare Hospices Have Financial Incentives to Provide Care in Assisted Living Facilities
Ari J. Markenson, March 30, 2015
On January 14, 2015, the U.S. DHHS Inspector General’s Office (the “OIG”) released a report (OEI-02-14-00070) entitled “Medicare Hospices Have Financial Incentives to Provide Care in Assisted Living Facilities.”

CMS Advises That Payment Codes on Home Health Claims Will Be Matched Against OASIS
Ari J. Markenson, March 25, 2015
CMS recently issued Transmittal SE1504 entitled “Payment Codes on Home Health Claims Will Be Matched Against Patient Assessments”.

Civil RICO Actions on the Rise to Combat Healthcare Insurance Fraud
James J. Ferrelli, March 25, 2015
Over the past several years, insurance carriers have aggressively pursued civil suits against doctors and other medical providers in an effort to fight healthcare insurance fraud. Besides theories of liability based upon common law claims such as fraud and unjust enrichment, insurers have more...

Consultants’ Communications Privileged from Discovery
Philip H. Lebowitz, March 25, 2015
In healthcare, companies often hire consultants to review billing and coding, privacy and security and a host of other technical issues that regular staff does not have the time or expertise to pursue. A recent discovery ruling in federal court in the Eastern District of Pennsylvania holds that...

HHS Moves to Limit In-Office Ancillary Services Exception
Matthew C. Jones, March 19, 2015
The Department of Health and Human Services (“HHS”) is once again targeting the In-Office Ancillary Services Exception (“IOASE”) to the federal Stark Law, in an attempt to produce cost savings in the U.S. healthcare system. The IOASE provides a limited exception to the Stark...

Health System Integration and Antitrust Laws on Collision Course
Philip H. Lebowitz, March 18, 2015
Health systems attempting to fulfill the mandate of integrating hospitals and physicians may find themselves accused of going too far. Although the Affordable Care Act, shared savings, gainsharing and other alternative payment methodologies have made integration of physicians, hospitals and other...

New Jersey State Bar Committee to Review RPC 1.2(d) and Issues Pertaining to Medical Marijuana
James J. Ferrelli, March 18, 2015
The New Jersey State Bar Association (“NJSBA”) has established an ad hoc committee to review the ethical issues raised under New Jersey Rule of Professional Conduct 1.2(d) (which prohibits a lawyer from counseling or assisting a client in conduct that the lawyer knows is illegal or...

Virtual Credit Card Payments
Patricia S. Hofstra, March 18, 2015
On January 30, 2015, several healthcare organizations sent a group letter to CMS protesting the use of virtual credit cards by health plans to pay providers. In a virtual credit card payment (a nonstandard type of electronic funds transfer EFT), a health plan or its payment vendor issues single-use...

ACOs are More Important Than Ever for LTC Facilities
Amy E. McCracken, March 13, 2015
On January 26, 2015, the United States Department of Health & Human Services (HHS) announced its timeline for shifting Medicare reimbursements from volume-based criteria to value-based criteria. HHS has adopted a framework that categorizes health care payments according to how providers receive...

Antipsychotic Drug Use Can Lower Nursing Home's Five-Star Rating
Amy E. McCracken, March 13, 2015
The Centers for Medicare & Medicaid Services (CMS) is continuing its efforts to reduce the national prevalence of antipsychotic drug use in long-stay nursing home residents. Its initial goal of a 15.1% reduction in antipsychotic drug use was met, so CMS now seeks to reduce antipsychotic drugs...

Fees and Costs Awarded to False Claims Act Defendant
Seth A. Goldberg, March 13, 2015
A recent decision in the U.S. District Court for the Southern District of New York provides fair warning to qui tam relators who assert erroneous claims under the False Claims Act ("FCA") that they could be hit with legal fees and expenses pursuant to 31 U.S.C. § 3730, which permits...

Health Care Workers May Think Twice Before Becoming a Relator
Amy E. McCracken, March 13, 2015
The Federal False Claims Act (and many similar state false claims acts) allow an individual-called a "relator"-to file a lawsuit on behalf of the United States Government. If successful, the relator stands to collect a portion of the amount collected. Since the False Claims Act provides...

Mayo Lawsuit Against Former Exec Raises Numerous Health Care and Business Litigation Issues
Elinor H. Murarova, March 13, 2015
A recent settlement between Mayo Collaborative Services d/b/a Mayo Medical Laboratories ("MML") and Mayo Clinic (together with MML, "Mayo") and a former Mayo executive, Dr. Franklin Cockerill, reveals the potential legal issues that may arise when health care executives seek new...

New CMS Payment Policy Will Negatively impact Healthcare Investors
C. Mitchell Goldman, March 13, 2015
I have been concerned about the difficulty of projecting revenue and determining valuations for new and existing healthcare companies based on risk based reimbursement models. My fears have not been allayed. Rather, they have been confirmed.

Real Estate Tax Exemption Issue Muddied Again
Philip H. Lebowitz, March 13, 2015
On December 23, 2014, the Commonwealth Court of Pennsylvania logged another frustrating mile down the confused and confusing road of property tax exemption for purely public charities. In Fayette Resources, Inc. v. Fayette County Board of Assessment Appeals, the Court overturned a lower court...

Top Three Problems with Text Messaging in Health Care Settings
Amy E. McCracken, March 13, 2015
1. Since most text messaging is not a secure form of communication, it raises HIPAA concerns if any protected health information is included in the text message. There is the possibility of a data breach in the transmission of the text message, as well as in the event of a lost or stolen phone.

FDA Issues Guidance on Registration, Fees and Reporting Requirements for Drug Compounding Outsourcing Facilities
, February 26, 2015
On November 21, 2014, the U.S. Food and Drug Administration (FDA) announced the release of three new guidance documents related to drug compounding outsourcing facilities. These documents include:

7th Circuit Clarifies FCA Fraud Standard
Philip H. Lebowitz, January 23, 2015
In an opinion openly skeptical of a relator’s knowledge, the 7th Circuit Court of Appeals recently affirmed the dismissal of False Claims Act claims against a Chicago pharmacy brought by a former employee of the pharmacy. The principal claims in the case, nadyor v. Ukrainian Village Pharmacy,...

CMS Bringing Star Ratings to Home Health
Ari J. Markenson, January 23, 2015
The Centers for Medicare and Medicaid Services (“CMS”) issued a fact sheet on December 11th, 2014, discussing its intention to issue star ratings for Medicare certified home health agencies. The star ratings would be live in 2015.

Clinical Trial Sponsors Can Be Liable For Inadequate Consent Forms
Philip H. Lebowitz, January 23, 2015
Physicians acting as investigators for a clinical trial testing a new therapy are required to present to each patient or study subject a consent form, indicating that the patient understands the risks, benefits and alternatives of participating in the trial and voluntarily elects to do so. Federal...

The IMPACT ACT of 2014 - New Enforcement and Oversight for Hospice Providers
Ari J. Markenson, January 23, 2015
The IMPACT Act of 2014 (“IMPACT”) was signed into law on October 6, 2014. It includes two significant enforcement and oversight changes for Medicare hospice providers among other post-acute care policy changes.

OIG 2015 Work Plan - Hospice
Ari J. Markenson, January 22, 2015
Recently, the Department of Health and Human Services Office of the Inspector General (the OIG) released its work plan for 2015. The work plan provides stakeholders with a road map to the OIG’s activities in the coming year as they relate to its enforcement priorities and issues it will...

OIG 2015 Work Plan - Home Health
Ari J. Markenson, January 02, 2015
Recently, the Department of Health and Human Services Office of the Inspector General (the OIG) released its work plan for 2015. The work plan provides stakeholders with a road map to the OIG’s activities in the coming year as they relate to its enforcement priorities and issues it will...

Responding to Subpoena for Medical Records May Create Liability for Healthcare Providers Under State Law Negligence Claims
Seth A. Goldberg,Philip H. Lebowitz, December 10, 2014
Healthcare providers receiving a subpoena for patient medical records may want to think twice before complying with the subpoena and producing the records. A recent Connecticut case, Byrne v. Avery Center for Obstetrics and Gynecology, P.C. ("Byrne"), arose when the defendant gynecology...

CMS Extends Period of Exemption for Hospices Affected by Nursing Shortage
Ari J. Markenson, November 17, 2014
On October 3, 2014, CMS issued S&C: 12-43-Hospice entitled “Impact of Nursing Shortage on Hospice Care”.

FDA's Final Guidance on Determination of Five-Year NCE Exclusivity for Certain Fixed-Combination Drug Products Under Federal FDCA
Carolyn A. Alenci,Frederick R. Ball, November 17, 2014
The U.S. Food and Drug Administration (FDA) recently published its final Guidance for Industry detailing circumstances under which a fixed-combination drug product (FCD) may be entitled to five-year new chemical entity (NCE) exclusivity.

OIG 2015 Work Plan - Skilled Nursing Facilities
Ari J. Markenson, November 17, 2014
Recently, the Department of Health and Human Services Office of the Inspector General (the OIG) released its work plan for 2015. The work plan provides stakeholders with a road map to the OIG’s activities in the coming year as they relate to its enforcement priorities and issues it will...