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136.

Ortho

McNeil

also

made

marketing

agents

available

to

Omnicare

pharmacists

who needed subsequent technical assistance to switch patients from other antibiotics to

Levaquin.

137.

Ortho

McNeil

also

worked

with

Omnicare

to

illegally

solicit

PALs

from

physicians authorizing blanket switches to Levaquin. Oltho McNeil's actions in furtherance of

this conspiracy included:

Making jct/se statements to Omnicare

the

switching.

Ortho

McNeil

made

through

materials

prepared

uniquely

Font line pharmacy personnel as to the reason jor false representations to Omnicare pharmacy stall for Omnicare staff, through "kickoff' and other

meetings available

designed to maximize the wholesale switching, and through making for technical consultations. These false representations included:

themselves

  • o

    That the switch to Levaquin was financially advantageous to the government and

private insmers, when this was almost never the case.

Requiring Omnicare to develop computerized electronic capability to accurately track levels ofparticipation in the illegal PAL solicitation program by site and by prescribing clinician.

Rewarding Omnicare for the proportion of patients switched to Levaquin vIa illegal switching payments based in part on the success ofthe switching scheme.

138.

Ortho

McNeil

knew,

intended,

or

reasonably

should

have

known and

foreseen

that the Market Share Agreement would induce Omnicare to engage in unauthorized medication

substitution, replacing the independent medical judgment of a patient's physician with that of

    • o

      That Levaquin was clinically the most appropriate antibiotic, when frequently this, too, was not the case.

  • Makingfalse statements to physicians as to the reasons for the switching. Oltho McNeil made its marketing personnel available at Omnicare-serviced nmsing homes to work with Omnicare consultant pharmacists to convince physicians to sign PALs authorizing wholesale switches.

Failing to disclose kickbacks and other jinancial interests to physicians in helping

Omnicare solicit PALs. providing kickbacks to "preferred" medications.

Ortho McNeil did not disclose Omnicare for switching certain

to physicians that it was types of medications to

37

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