IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20259

c/w No. 16-20509

United States of America, State of Illinois, State of California, State of 

Florida, State of Tennessee, State of Texas, State of Massachusetts, State of 

Delaware, State of Nevada, State of Louisiana, State of Hawaii, District of 

Columbia, State of Virginia, State of Georgia, State of Indiana, State of 

Michigan, State of Montana, State of New Hampshire, State of New Jersey, 

State of New Mexico, State of New York, State of Oklahoma, State of Rhode 

Island, State of Wisconsin, ex rel, JOHN KING; TAMMY DRUMMOND, 

 Plaintiffs - Appellants 

v. 

SOLVAY PHARMACEUTICALS, INCORPORATED, 

 Defendant - Appellee 

Appeals from the United States District Court 

for the Southern District of Texas 

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. 

PER CURIAM: 

John King and Tammy Drummond (collectively, “Relators”) appeal the 

district court’s grant of summary judgment to Solvay Pharmaceuticals, Inc., on

their False Claims Act (“FCA”) claims and a subsequent ruling that partly 

granted court costs to Solvay. For the reasons explained below, we AFFIRM. 

United States Court of Appeals

Fifth Circuit

FILED

September 12, 2017

Lyle W. Cayce

Clerk

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I. Background 

Relators are both former Solvay sales and marketing employees. They 

brought this FCA suit against Solvay claiming that Solvay induced false 

Medicaid claims through a nationwide off-label marketing and kickback 

scheme to promote three drugs: Luvox, Aceon, and AndroGel. See 31 U.S.C. 

§ 3729(a)(1)(A)–(B). They allege that this scheme proximately caused 

physicians to prescribe these drugs for off-label uses to Medicaid patients, the 

cost of which was reimbursed by the federal government. Relators also claim 

they were retaliated against for their internal complaints about Solvay’s offlabel marketing. The district court granted summary judgment to Solvay on 

all of Relators’ claims. 

After final judgment, Solvay sought an award of $961,380.51 in taxable 

costs against Relators under 28 U.S.C. § 1920. Relators objected to almost all 

of those costs, claiming that Solvay was entitled to just $5,808.17. The district 

court awarded Solvay $232,809.92. Relators appealed both the final order 

granting summary judgment on all of Relators’ claims and the order granting 

taxable costs to Solvay. 

II. Standard of Review 

“We review an order granting summary judgment de novo, applying the 

same standards as the district court.” Cooley v. Hous. Auth. of City of Slidell, 

747 F.3d 295, 297 (5th Cir. 2014). Summary judgment is appropriate when 

“there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” FED. R. CIV. P. 56(a). A disputed fact is 

material if it has the potential to “affect the outcome of the suit under the 

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“[W]e may affirm the district court’s decision on any grounds supported by the 

record.” Phillips ex rel. Phillips v. Monroe Cty., 311 F.3d 369, 376 (5th Cir. 

2002).

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“The district court has broad discretion in taxing costs, and we will 

reverse only upon a clear showing of abuse of discretion.” Brazos Valley Coal. 

for Life, Inc. v. City of Bryan, 421 F.3d 314, 327 (5th Cir. 2005) (quoting Migis 

v. Pearle Vision, 135 F.3d 1041, 1049 (5th Cir. 1998)).

III. Discussion 

A. FCA Claims 

The FCA imposes civil liability and treble damages on any person who, 

inter alia, “knowingly presents, or causes to be presented, a false or fraudulent 

claim for payment or approval” to the United States government; or “knowingly 

makes, uses, or causes to be made or used a false record or statement material 

to a false or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(A)–(B); see also United 

States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 267 (5th Cir. 2010). 

An FCA claim consists of four elements: “(1) whether there was a false 

statement or fraudulent course of conduct; (2) made or carried out with the 

requisite scienter; (3) that was material; and (4) that caused the government 

to pay out money or to forfeit moneys due (i.e., that involved a claim).” United 

States ex rel. Longhi v. United States, 575 F.3d 458, 467 (5th Cir. 2009) (citation 

omitted).

Relators have developed several theories of FCA liability with varying 

degrees of connectivity between Solvay’s off-label marketing of Luvox, Aceon, 

and AndroGel and the actual filing of false claims. Those theories are that 

(1) Solvay marketed the three relevant drugs for off-label uses causing 

physicians to prescribe them to Medicaid patients for those uses; (2) Solvay 

lobbied members of state pharmaceutical and therapeutic committees (“P&T 

committees”) to list these three drugs on their preferred drug lists; (3) Solvay 

used misleading scientific literature to lobby the publisher of drug 

compendium DRUGDEX Information System (“DrugDex”) to include the offlabel uses of these drugs in the compendium; and (4) Solvay paid doctors

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kickbacks to prescribe these drugs to Medicaid patients in violation of the antikickback statute (“AKS”), 42 U.S.C. § 1320a-7b(b)(2)(A).1 Relators also 

brought an FCA retaliation claim challenging their terminations. 

The district court disposed of all of Relators’ claims through a series of 

partial summary judgment orders. Relators’ AndroGel claims were dismissed 

on summary judgment for lack of jurisdiction under the FCA’s public disclosure 

bar. For the remaining two drugs, Luvox and Aceon, the off-label marketing 

claims failed to survive summary judgment because Relators’ evidence of 

Medicaid claims was inadmissible and, even if it were admissible, did not 

sufficiently demonstrate causation. Both the lobbying theories of liability 

relating to state P&T committees and DrugDex and the retaliation claims also 

failed to survive summary judgment due to insufficient causation evidence. 

Finally, the AKS claims did not survive summary judgment because there was 

insufficient evidence that Solvay intended the kickbacks to induce payments 

from Medicaid. The summary judgment orders in the district court involved 

additional issues, but Relators do not challenge the district court’s judgment 

on those issues so we do not consider them.2 

Because we conclude that Relators failed to produce sufficient evidence 

to survive summary judgment on any of their briefed claims, we affirm the 

district court’s grant of summary judgment to Solvay. 

 

 

1 “The AKS provides no private right of action; therefore, a private plaintiff may not 

sue a health care provider under the AKS alone.” United States ex rel. Ruscher v. Omnicare, 

Inc., 663 F. App’x 368, 371 n.2 (5th Cir. 2016) (per curiam) (quoting United States ex rel. 

Nunnally v. W. Calcasieu Cameron Hosp., 519 F. App’x 890, 893 n.5 (5th Cir. 2013)). We now 

reiterate these holdings in a precedential, published opinion.

2 Relators’ Fifth Amended Complaint also includes counts under the false claims acts 

of numerous states. However, because the state false claims issues are not raised at all in 

the appellate briefing, we deem them waived. See Williams v. Parker, 843 F.3d 617, 622 n.14 

(5th Cir. 2016) (“Failure to raise an issue on appeal is waiver.”). 

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1. Public Disclosure Bar 

The district court first determined that it lacked jurisdiction to consider 

any of Relators’ AndroGel claims because they were subject to the FCA’s public 

disclosure bar. The applicable version of the FCA’s public disclosure bar, which 

has since changed, provides that “[n]o court shall have jurisdiction over an 

action under this section based upon the public disclosure of allegations or 

transactions . . . from the news media, unless the action is brought by the 

Attorney General or the person bringing the action is an original source of the 

information.” 31 U.S.C. § 3730(e)(4)(A) (2006) (emphasis added).3 The statute 

defines original source as “an individual who [1] has direct and independent 

knowledge of the information on which the allegations are based and [2] has 

voluntarily provided the information to the Government before filing an action 

under this section which is based on the information.” Id. § 3730(e)(4)(B). 

The district court determined that Relators’ AndroGel claims were based 

on publicly disclosed allegations from a magazine article and that Relators’ 

pre-suit disclosure made the day before filing suit could not satisfy the 

voluntary disclosure requirement of the original source exception. 

Specifically, the district court concluded that because Relators’ pre-suit 

disclosure satisfied the mandatory disclosure requirement under § 3730(b)(2), 

it could not simultaneously satisfy the voluntary disclosure requirement under 

§ 3730(e)(4). Relators appeal only the district court’s determination that they 

are not original sources. 

 

3 The section creating the public disclosure bar was amended in 2010, but the Supreme 

Court has held that the amendment is not retroactive. Graham Cty. Soil & Water 

Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 283 n.1 (2010) (noting that 

section 10104(j)(2) of the Patient Protection and Affordable Care Act, Pub. L. 111–148, 124 

Stat. 119, “replace[d] the prior version of 31 U.S.C. § 3730(e)(4) with new language” but 

“makes no mention of retroactivity”); Abbott v. BP Expl. & Prod., Inc., 851 F.3d 384, 387 n.2 

(5th Cir. 2017) (concluding that the 2010 amendment altered the jurisdictional nature of the 

public disclosure bar). Accordingly, all citations to this section refer to the applicable 2006 

version of the public disclosure bar.

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It is well established that the party invoking federal jurisdiction carries 

the burden of establishing that jurisdiction is proper. United States ex rel. 

Jamison v. McKesson Corp., 649 F.3d 322, 327 (5th Cir. 2011). Thus, it was 

Relators’ burden to show that they qualified under the original source 

exception; otherwise, the public disclosure bar “strips” the court of subject 

matter jurisdiction. See United States ex rel. Fried v. W. Indep. Sch. Dist., 527 

F.3d 439, 441–42 (5th Cir. 2008); see also § 3730(e)(4)(A) (stating that “[n]o 

court shall have jurisdiction” if the public disclosure bar applies). However, 

because “[a] challenge under the FCA jurisdictional bar is necessarily 

intertwined with the merits,” we treat it as a motion for summary judgment. 

Jamison, 649 F.3d at 326 (quoting United States ex rel. Reagan v. E. Tex. Med. 

Ctr. Reg’l Healthcare Sys., 384 F.3d 168, 173 (5th Cir. 2004)).

Assuming without deciding that a single pre-suit disclosure can satisfy 

both the pre-suit mandatory and voluntary disclosure requirements, Relators 

still failed to create a genuine issue of material fact as to whether their presuit disclosure to the government disclosed “the information on which the 

allegations are based.” 31 U.S.C. § 3730(e)(4)(B). The Supreme Court has 

interpreted the phrase “information on which the allegations are based” as 

referring to the “information underlying the allegations of the relator’s action.” 

Rockwell Int’l Corp. v. United States, 549 U.S. 457, 470–72 (2007) (abrogating 

United States ex rel. Laird v. Lockheed Martin Eng’g & Sci. Servs. Co., 336 F.3d 

346, 354–55 (5th Cir. 2003) (holding that a relator must have direct and 

independent knowledge of information on which the allegations in the public 

disclosure are based)). The Court further indicated that such information 

includes knowledge of conduct suggesting that false claims were made to the 

government. See id. at 475 (concluding that relator’s knowledge fell short 

because he was not employed by the defendant during the relevant time period 

and thus could not have known about the predicate conduct and subsequent

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false statements to the government). Indeed, without knowledge of conduct

that—when placed in the context of all of the other relevant information—

suggests that false claims were made to the government, Relators could not 

allege an FCA claim.4 See United States ex rel. Spicer v. Westbrook, 751 F.3d 

354, 364–65 (5th Cir. 2014) (stating that “the statute attaches liability, not to 

the underlying fraudulent activity or to the government’s wrongful payment, 

but to the claim for payment” (quoting Longhi, 575 F.3d at 467)); United States 

ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 188 (5th Cir. 2009) (stating that 

proof of a false claim against the government is the “sine qua non” of liability 

under the FCA). Accordingly, the Fourth Circuit has affirmed a finding that a 

relator was not entitled to original source status where, inter alia, his pre-suit 

disclosure never connected information about the alleged fraudulent conduct 

with the filing of a claim for reimbursement from the government. United 

States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 353, 355 (4th Cir. 2009). 

Here, Relators failed to present any evidence indicating that their presuit disclosure connected the knowledge of Solvay’s conduct to false claims

made to the government. Relators cite to a declaration of their attorney, Joel 

Androphy, and a PowerPoint presentation to support the details of their presuit disclosure.5 However, the declaration simply refers to discussions 

 

4 Requiring relators to have direct and independent knowledge of information that, 

when viewed in context, suggests the filing of false claims is also consistent with the FCA’s 

dual goals of “preventing parasitic suits by opportunistic late-comers who add nothing to the 

exposure of fraud,” Reagan, 384 F.3d at 174 (quoting Laird, 336 F.3d at 351), and

“encourag[ing] those who are either close observers or otherwise involved in the fraudulent 

activity to come forward,” United States ex rel. Oliver v. Philip Morris USA Inc., 826 F.3d 

466, 480 (D.C. Cir. 2016) (quoting United States ex rel. Barth v. Ridgedale Elec., Inc., 44 F.3d 

699, 703–04 (8th Cir. 1995)); see also United States ex rel. Lam v. Tenet Healthcare Corp., 287 

F. App’x 396, 400 (5th Cir. 2008) (“Congress’s intent was to encourage qui tam suits brought 

by insiders, such as employees who come across information of fraud in the course of their 

employment.” (quoting Laird, 336 F.3d at 355–56)).

5 The parties dispute whether any of this evidence should be considered in making the 

FCA jurisdictional determination. However, we need not decide this issue because we 

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Relators had with the Food and Drug Administration (“FDA”) about the offlabel marketing and kickbacks associated with AndroGel, as well as Relators’ 

terminations. But the declaration does not indicate that Relators connected 

this information with any false claims presented to the government. Moreover, 

the lack of detail about which off-label uses Solvay marketed or how it paid 

kickbacks to physicians is an additional defect that makes the declaration 

insufficient to support the voluntary disclosure necessary for the original 

source exception. See Rockwell, 549 U.S. at 473 (indicating that a relator must 

satisfy his original source status as to each theory of fraud in the complaint as 

amended); Jamison, 649 F.3d at 332 (holding that a relator was not an original 

source of the allegations in his complaint because the information on which the 

allegations were based described the fraud only generally). 

Although the PowerPoint presentation provides additional details about 

the information disclosed to the FDA, the presentation does not suggest that 

any false claims were submitted to the government. It makes no mention of 

any FCA provisions, never suggests that the off-label marketing or the 

remuneration caused prescriptions to be reimbursed by the government, and 

never suggests any false certifications of compliance with the AKS. Instead, 

the information disclosed in the PowerPoint presentation suggests only Food, 

Drug and Cosmetic Act (“FDCA”) and AKS violations, not FCA violations. For 

Relators to satisfy the FCA’s voluntary pre-suit disclosure requirement of 

disclosing information underlying their FCA action, their disclosure must—at 

a minimum—connect direct and independent knowledge of information about 

Solvay’s conduct to false claims submitted to the government, i.e., suggest an 

 

conclude that, even if all of the evidence is considered, Relators still failed to meet their 

summary judgment burden.

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FCA violation.6 Even assuming all of the information in the PowerPoint 

presentation regarding possible FDCA and AKS violations came from Relators’ 

direct and independent knowledge, the presentation still fails to create a 

genuine issue of material fact as to its disclosure of information on which the 

FCA allegations are based because it is completely devoid of any indication 

connecting such information with false claims presented to the government. 

Accordingly, because Relators’ evidence of the information provided to 

the government in their voluntary pre-suit disclosure does not suggest any 

FCA violations, it is insufficient to support a finding that Relators disclosed to 

the government the information underlying their FCA allegations prior to 

filing suit. Consequently, Relators have failed to meet their summary 

judgment burden as to their status as original sources under § 3730(e)(4) of the 

FCA. Because the FCA public disclosure bar applies, the district court 

correctly determined that it lacked jurisdiction to consider Relators’ AndroGel 

claims. 

2. Alleged Off-Label Marketing to Physicians 

The FDCA prohibits a drug from being introduced in interstate 

commerce unless the FDA approves the drug as safe and effective for each of 

the uses suggested on its labeling. 21 U.S.C. § 355(a), (d); see also 21 C.F.R. 

§ 310.303(a) (“[A] new drug may not be approved for marketing unless it has 

been shown to be safe and effective for its intended use(s).”). The Medicaid Act 

empowers states to deny reimbursement for a drug if “the prescribed use is not 

 

6 Cf. United States ex rel. Rigsby v. State Farm Fire & Cas. Co., 794 F.3d 457, 462–63, 

474 (5th Cir. 2015) (holding that direct and independent knowledge of information by claims 

adjusters of fraudulent claims adjusting practices connected to claims for government-backed 

flood insurance in the wake of Hurricane Katrina was sufficient to confer original source 

status), aff’d on other grounds sub nom. State Farm Fire & Cas. Co. v. United States ex rel. 

Rigsby, 137 S. Ct. 436 (2016); Oliver, 826 F.3d at 478 (“[I]n order to have ‘direct’ knowledge 

for purposes of the original source exception, a relator must have some first-hand knowledge 

that would lead him to believe that a fraud had been committed.” (collecting cases)).

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for a medically accepted indication.” 42 U.S.C. § 1396r-8(d)(1)(B)(i).7 A 

“medically accepted indication” is “any use for a covered outpatient drug which 

is approved under the [FDCA] or the use of which is supported by one or more 

citations included or approved for inclusion in any of the compendia described” 

elsewhere in the statute. 42 U.S.C. § 1396r-8(k)(6). That is to say, states may

deny Medicaid reimbursement for drugs prescribed for off-label uses that are 

not otherwise listed in compendia described in the Medicaid statute.

Because off-label prescriptions may be ineligible for Medicaid 

reimbursement, submitting such claims for Medicaid reimbursement may 

result in FCA liability. See United States ex rel. Booker v. Pfizer, Inc., 847 F.3d 

52, 58 & n.7 (1st Cir. 2017). Accordingly, when, as here, an off-label marketing 

scheme is alleged to have violated the FCA, plaintiffs’ summary judgment 

burden is to come forward with evidence sufficient to create a genuine issue of 

material fact that the off-label marketing scheme caused physicians to make 

off-label prescriptions that were submitted for Medicaid reimbursement. 

Complicating matters is the fact that the FDA does not restrict 

physicians from prescribing an otherwise FDA-approved drug for an off-label 

use. See 21 U.S.C. § 396 (“Nothing in this chapter shall be construed to limit 

or interfere with the authority of a health care practitioner to prescribe or 

administer any legally marketed device to a patient for any condition or disease 

within a legitimate health care practitioner-patient relationship.”). One 

commentator has observed that “[o]ff-label prescription of drugs is common, 

 

7 The First Circuit has noted that “whether state Medicaid programs actually have 

the discretion to reimburse for off-label uses of a drug under the Medicaid statute ‘is up for 

debate.’” United States ex rel. Booker v. Pfizer, Inc., 847 F.3d 52, 58 n.7 (1st Cir. 2017) 

(quoting United States ex rel. Banigan v. Organon USA Inc., 883 F. Supp.2d 277, 294 (D. 

Mass. 2012)). If state Medicaid programs do have the discretion to choose between granting 

or denying reimbursements for off-label prescriptions, Relators claims would fail because 

they have not presented evidence showing that any states in this case have chosen to deny

reimbursements for off-label prescriptions. However, we need not decide this issue because 

we conclude that Relators’ claims easily fail on other grounds. 

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with as many as forty percent of all prescriptions issued involving off-label 

use.” Stephanie Greene, False Claims Act Liability for Off-Label Promotion of 

Pharmaceutical Products, 110 PENN ST. L. REV. 41, 46 (2005). Indeed, “in 

many cases, off-label drug prescription may represent the standard of care in 

the industry.” Id. 

Relators’ remaining off-label marketing claims relate to the drugs Luvox 

and Aceon. Luvox received FDA approval in 1994 for use in treating obsessive 

compulsive disorder (“OCD”). Relators contend that Solvay marketed Luvox 

for a broader “spectrum” of disorders that they labeled the “OC Spectrum,” a 

marketing approach the FDA rejected. Aceon was approved to treat 

hypertension in 1993. Relators assert that Solvay attempted to expand sales 

of Aceon by claiming that it would also improve arterial health, was 

particularly good for the kidneys of diabetic hypertensives, and reduced the 

risk of secondary strokes. 

The main issue on appeal is the sufficiency of Realtors’ evidence that this 

alleged off-label marketing caused the filing of false Medicaid reimbursement 

claims. Relators first argue that the district court ignored circumstantial 

evidence purportedly showing a nationwide off-label marketing scheme, 

execution of that scheme, and an impact on prescriptions to Medicaid patients. 

The expert report claiming to show that off-label marketing actually impacted 

Medicaid prescriptions, however, shows no such thing. The report concludes 

that, because economic studies show that pharmaceutical marketing is 

generally linked to increased pharmaceutical sales and Solvay uses marketing 

as a means of increasing sales, Solvay’s off-label marketing scheme must have 

caused increased off-label prescriptions reimbursed through Medicaid. But 

this conclusion is speculative and therefore insufficient to preclude summary 

judgment. Simmons v. Willcox, 911 F.2d 1077, 1082 (5th Cir. 1990) 

(“[S]peculative allegations . . . are insufficient to create a genuine issue of 

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material fact precluding summary judgment.”). At best, Relators’ 

circumstantial evidence suggests only the potential for a causal link between 

Solvay’s alleged off-label marketing and off-label prescriptions but says 

nothing about whether the marketing scheme actually caused off-label 

prescriptions to Medicaid patients. Without evidence indicating that off-label 

marketing actually caused off-label prescriptions to Medicaid patients 

resulting in false claims to the government, Relators’ off-label marketing 

theory of FCA liability cannot survive summary judgment. Cf. Grubbs, 565 

F.3d at 192 (holding that allegations of a fraudulent billing scheme were 

sufficient at the motion to dismiss stage to show that doctors’ fraudulent 

records caused the hospital’s billing system to present fraudulent claims where 

presenting such claims was the regular course of billing for the hospital); see 

also Booker, 847 F.3d at 58 (holding that circumstantial evidence could be used 

at the summary-judgment stage to prove causation, but “not that such proof 

could be used to demonstrate the existence of false claims.”). 

The only evidence Relators present that attempts to show the actual 

effect of the off-label marketing scheme alleged in this case is a set of call notes 

recorded by Solvay sales representatives about their telephone 

communications with physicians regarding Luvox and Aceon. Relators 

identify eight examples of causation, in which they connect a call note to an 

off-label prescription made to a specific Medicaid patient.8 Even assuming all 

of the call notes are admissible, they still do not create a genuine issue of 

material fact as to causation. Most of the call notes do not even discuss the 

specific off-label use for which the relevant prescription was written. The few 

 

8 Relators have included only these eight examples in their appellate briefs and merely 

stated that they offered others below. Any argument with respect to the other examples is 

waived due to inadequate briefing. See United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 

2001). 

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that do merely show physicians explaining their practices and how they 

prescribe the drug, which provides no insight into whether Solvay marketed 

the off-label uses to them, let alone caused them to make off-label 

prescriptions. Relators also point to academic articles discussed in some of the 

calls, but there is no indication that those articles came to the physicians’ 

attention because of Solvay. At bottom, the probative value of Relators’ 

causation evidence is primarily based on conjecture and speculation and is 

therefore insufficient to create a genuine issue of material fact for trial. See

Little v. Liquid Air Corp., 37 F.3d 1069, 1079 (5th Cir. 1994) (en banc) (per 

curiam).9 

3. Lobbying Activities 

i. State P&T Committees 

Several state Medicaid programs use P&T committees to decide whether 

to place certain drugs on state preferred drug lists, thereby authorizing 

prescriptions to Medicaid patients without pre-approval. These committees 

are made up of practicing physicians, pharmacists, and others with recognized 

expertise in prescribing, dispensing, and monitoring outpatient drugs, as well 

as in drug use review and medical quality assurance. Relators allege that 

Solvay violated the FCA by unduly influencing P&T committees to place 

Solvay’s drugs on these preferred drug lists. 

 

9 The parties suggested at oral argument that Medicaid pays for claims without asking 

whether the drugs were prescribed for off-label uses or asking for what purpose the drugs 

were prescribed. If this is true, given that it is not uncommon for physicians to make offlabel prescriptions, we think it unlikely that prescribing off-label is material to Medicaid’s 

payment decisions under the FCA. See Universal Health Servs., Inc. v. United States ex rel. 

Escobar, 136 S. Ct. 1989, 2003–04 (2016) (“[I]f the Government regularly pays a particular 

type of claim in full despite actual knowledge that certain requirements were violated, and 

has signaled no change in position, that is strong evidence that the requirements are not 

material.”). Nevertheless, because Relators have failed to survive summary judgment on the 

issue of causation, we need not reach the issue of materiality in this case. 

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Assuming all of the relevant evidence is admissible for the three state 

committees Relators challenge (Alabama, Kentucky, and California), Relators 

have still failed to create a genuine issue of material fact as to causation. 

Relators’ evidence shows Solvay’s campaign to get its drugs added to these 

three state preferred drug lists and that those states ultimately added those 

drugs to their preferred drug lists. However, Relators lack evidence indicating 

that Solvay’s campaign caused these results. The supposed “smoking gun” 

email not considered by the district court does not help Relators meet their 

burden. The most generous reading of that email shows that the Alabama P&T 

committee added Aceon to its preferred drug list because it determined that 

the data on Aceon’s secondary prevention of strokes supported such a decision. 

But there is no evidence indicating that the Alabama P&T committee—made 

up of medical experts—was unduly influenced by Solvay’s alleged lobbying 

campaign in making this determination. 

Moreover, even assuming that the P&T committees were influenced by 

Solvay’s campaign, Relators have not connected this theory of liability to the 

filing of any false claims. First, Relators failed to show that particular conduct 

they contend was “lobbying” of the P&T committees was improper under the 

particular states’ rules and regulations governing the same. Second, even 

assuming it was improper, Relators failed to discuss how placement on the 

preferred drug lists caused false claims to be presented to Medicaid for 

reimbursement. The closest explanation provided is that “drugs requiring 

prior authorization are less likely to be prescribed.” But Relators do not point 

to any record evidence indicating that false claims were actually filed because

Solvay’s drugs were placed on preferred drug lists. Again, Relators need more 

than speculation to meet their burden as to causation. Perhaps the state P&T 

committees were unduly influenced, but that does not absolve Relators from 

their burden of producing evidence indicating that this influence caused actual 

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false claims (as opposed to claims for approved uses) to be submitted for 

Medicaid reimbursement. See Spicer, 751 F.3d at 364–65 (“[T]he statute 

attaches liability, not to the underlying fraudulent activity or to the 

government’s wrongful payment, but to the claim for payment[.]” (quoting 

Longhi, 575 F.3d at 467)). Relators’ evidence is insufficient to create a genuine 

issue of material fact on this matter. 

ii. DrugDex 

Relators argue that Solvay became subject to FCA liability by misleading 

one of the three leading drug compendia, DrugDex. Medicaid reimbursement 

is not just limited to FDA approved uses, but also includes medically accepted 

indications listed on Medicaid compendia, including DrugDex. See 42 U.S.C. 

§ 1396r-8(d)(1)(B)(i), (g)(1)(B)(i)(III), (k)(6). Relators’ theory of FCA liability is 

that Solvay “manufactured medical literature” and engaged in “deception and 

collusion” in an effort to have DrugDex list the off-label uses of Solvay’s drugs 

so they “might be deemed eligible for reimbursement under the various 

government health programs, especially Medicaid and Medicare.” 

Relators first argue that Solvay suppressed negative studies about the 

efficacy of Luvox for off-label uses that Solvay had a duty to disclose. Relators

also contend that Solvay paid for “smaller and lower quality studies” that 

would support off-label uses for Luvox, creating an “echo chamber” in which 

the majority of literature supporting off-label uses for Luvox was sponsored by 

Solvay. DrugDex ultimately rated over two-dozen conditions as medically 

accepted uses for Luvox, including off-label uses. 

Relators again fail to create a genuine issue of material fact as to 

causation. The best evidence Relators point to shows that Solvay’s Medical 

Affairs department would generally communicate with medical compendia 

publishers about Luvox entries and review DrugDex draft documents to verify 

their accuracy as to the name of the drug, trademarks, and similar items. But 

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Relators point to no evidence indicating that Solvay’s failure to publish studies 

showing negative results while also paying for lower quality studies to support 

Luvox’s off-label uses misled DrugDex’s publisher and caused it to list Luvox 

on its compendium. There is no record evidence that Solvay communicated 

with DrugDex’s publisher about these studies; in fact, the only evidence cited 

indicates that there was no communication about the studies. As Solvay 

suggests, DrugDex’s publisher was able to review the studies and decide 

whether it was appropriate to rely on them. Because Relators failed to produce 

any evidence suggesting that Solvay’s studies misled DrugDex’s publisher and 

caused Luvox to be listed on DrugDex for off-label uses, which in turn resulted 

in false claims to the government, their DrugDex claim cannot survive 

summary judgment. 

4. Anti-Kickback Statute 

The AKS prohibits offering money or other things of value to entice 

another party to provide a good or service that would be paid for by a federal 

health care program. 42 U.S.C. § 1320a-7b(b)(2)(A). Relators allege that 

Solvay paid illegal kickbacks to physicians through various marketing 

programs.10 They further allege that Solvay “knew these kickbacks would 

induce physicians to write prescriptions for off-label uses or prescriptions 

tainted by the kickbacks, which would in turn cause pharmacists to submit 

claims for fraudulent Medicaid and Medicare Part D reimbursement.” 

Medicaid claims induced by kickbacks are false if “the provider certified 

compliance with the kickback statute in submitting a claim.” United States ex 

rel. Colquitt v. Abbott Labs., 858 F.3d 365, 371 (5th Cir. 2017). 

Relators’ evidence shows (1) physicians participating in Solvay programs 

in which they were compensated for consultations or presentations and

 

10 Relators only appeal the AKS-based claims with respect to Texas Medicaid patients. 

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(2) subsequent prescriptions by those physicians of Solvay’s drugs to Medicaid 

patients.11 Nowhere, however, do Relators cite to evidence creating a genuine 

issue of material fact that such compensation, or any incidental benefits,

caused those physicians to prescribe to Medicaid patients. There was nothing 

illegal about paying physicians for their participation in these types of 

programs and there is no evidence that participation was conditioned upon 

prescribing Solvay’s drugs to Medicaid patients. Although it is not an 

unreasonable inference that Solvay intended these programs to boost 

prescriptions, it would be speculation to infer that compensation for 

professional services legally rendered actually caused the physicians to 

prescribe Solvay’s drugs to Medicaid patients.12 Accordingly, summary 

judgment was appropriate on Relators’ AKS theory of liability. 

5. Retaliation 

Both Relators bring FCA retaliation claims against Solvay alleging they 

were terminated for filing internal complaints about Solvay’s alleged off-label 

marketing scheme. The elements of an FCA retaliation claim are: (1) the 

employee “engaged in protected activity,” (2) the “employer, or the entity with 

 

11 As an initial matter, Solvay contends that Relators now rely on new evidence of 

intent that they did not rely on in the district court, and thus we should not consider any 

such evidence on appeal. We need not resolve this dispute, however, because, even if we 

consider all of the evidence, Relators have not presented sufficient evidence to survive 

summary judgment on their AKS theory of liability. 

12 Relators also failed to create a genuine issue of material fact as to the AKS’s scienter 

requirement. Proving a violation of the AKS requires evidence that “the defendant willfully 

committed an act that violated the [AKS].” United States v. St. Junius, 739 F.3d 193, 210 

(5th Cir. 2013). Because AKS liability is limited to prescriptions that were reimbursed by 

the government, not private parties, 42 U.S.C. § 1320a-7b(b)(2)(A), satisfying the scienter 

requirement of “willfully” requires evidence indicating that Solvay intended Medicaid to pay 

for these prescriptions, see, e.g., Ruscher, 663 F. App’x at 374. Relators, however, do not cite 

to evidence creating a genuine issue of material fact that Solvay intended for those physicians 

to prescribe to Medicaid patients. As with causation, it would be speculation to infer that 

Solvay specifically intended such prescriptions to be reimbursed by Medicaid. See, e.g., id. at 

373 n.4 (“Relator’s arguments amount to mere speculation and are therefore insufficient to 

create a genuine issue of material fact as to Omnicare’s intent.”).

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which he has contracted or serves as an agent, knew about the protected 

activity,” and (3) “retaliat[ion] . . . because of his protected activity.” United 

States ex rel. Bias v. Tangipahoa Par. Sch. Bd., 816 F.3d 315, 323 (5th Cir. 

2016). 

We “apply the McDonnell Douglas framework to the False Claims Act’s 

anti-retaliation provision.” Diaz v. Kaplan Higher Educ., L.L.C., 820 F.3d 172, 

175 n.3 (5th Cir. 2016); see McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973). Once an employee establishes a prima facie case, “the burden shifts to 

the employer to state a legitimate, non-retaliatory reason for its decision. After 

the employer states its reason, the burden shifts back to the employee to 

demonstrate that the employer’s reason is actually a pretext for retaliation.” 

Diaz, 820 F.3d at 176 (quoting LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 

383, 388–89 (5th Cir. 2007)). Here, Solvay stated that Relators were 

terminated for creating unapproved marketing materials, and Relators admit 

to violating Solvay’s marketing policies.13 The district court held that Relators 

failed to produce enough evidence of causation to create a genuine issue of 

material fact that Solvay’s reasons for terminating them were pretextual.14 

We agree with the district court that neither King nor Drummond has

provided sufficient evidence of pretext to survive summary judgment. The 

FCA prohibits adverse employment action taken “because of” protected activity 

relating to an FCA suit. 31 U.S.C. § 3730(h)(1). Therefore, to survive summary 

 

13 Ironically, given the allegations of improper marketing Relators make against 

Solvay, Solvay provided supporting evidence to the district court indicating that King was 

terminated for violating company policy by making unapproved alterations to promotional 

materials that jeopardized Solvay’s relationship with another company, and that Drummond 

was terminated for violating company policy by working on an unapproved letter campaign 

and then attempting to solicit doctors to mail those letters out to patients. 

14 The district court also determined that only King survived summary judgment on 

the issue of protected activity. However, because we decide Relators’ FCA retaliation claim 

on causation grounds, we do not reach the issue of protected activity. 

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judgment, Relators must point to evidence creating a genuine issue of material 

fact that their complaints were the but-for cause of their terminations. See

Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 176 (2009) (holding that the 

language “because of” requires a “‘but-for’ cause of the employer’s adverse 

decision” under ADEA retaliation claims); see also Univ. of Tex. Sw. Med. Ctr. 

v. Nassar, 133 S. Ct. 2517, 2528 (2013) (“Given the lack of any meaningful 

textual difference between the text in this statute and the one in Gross, the 

proper conclusion here, as in Gross, is that Title VII retaliation claims require 

proof that the desire to retaliate was the but-for cause of the challenged 

employment action.”). Relators argue in their opening brief that their evidence 

allegedly showing temporal proximity between protected activities and their 

terminations, Relators’ positive performance reviews, Solvay’s 

disproportionate disciplinary response that departed from its procedures, and 

the disparate treatment of other employees is sufficient to survive summary

judgment on causation. 

As a threshold matter, Relators discussed only temporal proximity and 

job performance in the district court, and made a brief, unsupported reference 

to disproportionate discipline. Relators have not shown any extraordinary 

circumstances for omitting the additional arguments asserted on appeal. 

Therefore, Relators’ causation arguments based on Solvay’s alleged departure 

from disciplinary procedures and the disparate treatment of other employees 

are waived. See Diaz, 820 F.3d at 176–77 (declining to consider evidence of 

pretext for an FCA retaliation claim because relator failed to raise the 

argument in the district court and presented no extraordinary circumstances); 

see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992) 

(“Because the [nonmovant] failed to refer to [the evidence] in district court in 

their summary judgment response, the [evidence was] not properly before that 

court in deciding whether to grant the motion; therefore, [it] will not be 

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considered here.”).15 Similarly, a bare assertion to the district court that their 

termination was “disproportionate in light of the circumstances” without any 

record citation or discussion for support does not sufficiently raise that 

argument in the district court. See Diaz, 820 F.3d at 176–77; Skotak, 953 F.2d 

at 915.16 

Relators are left with the temporal proximity of their terminations to 

their complaints and their positive performance reviews as evidence of 

causation. “[T]emporal proximity alone is insufficient to prove but for 

causation.” Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 

2007). But “the combination of suspicious timing with other significant 

evidence of pretext, can be sufficient to survive summary judgment.” 

Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999).17 

This standard can be met when “the plaintiff had highly positive performance 

reviews up until the complaint was leveled against the company, and then 

suffered a sharp decline in treatment immediately after the protected conduct 

occurred.” Khalfani v. Balfour Beatty Communities, L.L.C., 595 F. App’x 363, 

 

15 The district court rejected Relators’ additional assertion that “both worked under 

consistently underenforced company policies.” Because Relators only mention this argument 

in their reply brief, it is abandoned. See Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 892 n.3

(5th Cir. 2012) (“[T]his Court will not consider a claim raised for the first time in a reply 

brief.”). 

16 Even if we consider Relators’ evidence related to disproportionate disciplinary 

action, it fails to create a genuine issue of material fact as to whether their termination was 

a disproportionate response to Relators’ infractions. The evidence Relators cite shows that 

termination was an appropriate disciplinary action for violating company policies. It is 

undisputed that Relators violated company policies. Moreover, Relators point to no evidence 

indicating that their infractions merited lesser punishment. Relators’ bare assertions that 

these infractions were minor and therefore undeserving of termination do not suffice at the 

summary judgment stage. 

17 Although Strong and Shackelford are retaliation claims under Title VII, they inform 

our causation analysis here because such claims involve the same “but-for” causation 

requirement at issue in FCA retaliation claims. See Nassar, 133 S. Ct. at 2527–28.

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366 (5th Cir. 2014) (per curiam).18 In Shackelford, for example, the plaintiff 

survived summary judgment because, in addition to showing “tight temporal 

proximity” of being terminated within days of engaging in several protected 

activities, there was also evidence of unfounded performance concerns by the 

employer, warnings not to get involved in the protected activity, and disparate 

treatment in job reviews. Shackelford, 190 F.3d at 408–09. 

Here, Relators’ evidence of both being terminated at least three-and-ahalf months after making their complaints and positive performance reviews 

prior to their terminations does not create a fact issue as to pretext. Relators 

admit that they violated Solvay’s marketing policies and that employees may 

be terminated for marketing policy violations. Furthermore, they do not point 

to any causation evidence that is similar to the evidence described in 

Shackelford. See id. Relators point to no evidence that Solvay raised dubious 

performance problems as a reason for their terminations, mistreated them

immediately after their protected activities, or knew of their policy violations 

prior to Relators’ positive performance reviews.19 Simply put, Relators have 

failed to show that a reasonable jury could conclude that their complaints were 

the but-for cause of their terminations. 

B. Taxable Costs 

A district court may award certain taxable costs to a prevailing party. 

See 28 U.S.C. § 1920; FED. R. CIV. P. 54(d)(1). “Taxable costs are limited to 

relatively minor, incidental expenses” amounting to “a fraction of the 

nontaxable expenses borne by litigants for attorneys, experts, consultants, and 

 

18 Although Khalfani is not “controlling precedent,” it “may be [cited as] persuasive 

authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).

19 Moreover, as previously discussed, Relators waived any arguments of 

disproportionate discipline, disparate treatment, and departure from company procedures 

because they failed to make these arguments and identify supporting evidence before the 

district court. 

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investigators.” Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2006 

(2012). Taxable costs may include, among other things, “[f]ees for printed or 

electronically recorded transcripts necessarily obtained for use in the case” and 

“[f]ees for exemplification and the costs of making copies of any materials 

where the copies are necessarily obtained for use in the case.” § 1920(2), (4). 

Solvay sought taxable costs on both of these grounds, which the district 

court granted in part. Relators argue on appeal that Solvay failed to show that 

its costs were “necessarily obtained for use in the case.” Relators also contend 

that the district court erred in overruling some of its specific objections to costs 

related to deposition transcripts, photocopying, and e-discovery. 

1. Materials Necessarily Obtained for Use in the Case 

Relators claim that a document is only “necessarily obtained for use in 

the case” if it “was actually used at trial or as a summary judgment exhibit.” 

But we have interpreted “necessarily obtained for use in the case” to include 

documents “reasonably expected to be used for trial or trial preparation” at the 

time it was obtained. United States ex rel. Long v. GSDMIdea City, L.L.C., 807 

F.3d 125, 130 (5th Cir. 2015). “Whether a deposition or copy was necessarily 

obtained for use in the case is a factual determination within the district court’s 

discretion, and ‘we accord the district court great latitude in this 

determination.’” Id. (quoting Fogleman v. ARAMCO (Arabian Am. Oil Co.), 

920 F.2d 278, 285–86 (5th Cir. 1991)); see also United States v. Kolesar, 313 

F.2d 835, 840 (5th Cir. 1963).

To be sure, a party seeking to recover costs must explain why those costs 

were necessary. See Fogleman, 920 F.2d at 286 (“While we certainly do not 

expect a prevailing party to identify every xerox copy made for use in the course 

of legal proceedings, we do require some demonstration that reproduction costs 

necessarily result from that litigation.”). Here, Solvay submitted a declaration 

listing costs incurred during the case and explaining why the court should 

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allow it to recover those costs. The district court found that Solvay had shown 

the necessity of some of its claimed costs and allowed Solvay to recover only 

those costs. 

Relators also claim that “[t]he vehicle for recovering the costs of 

complying with discovery obligations is a protective order under Rule 26(e),” 

and “section 1920 [and] Rule 54 . . . are not intended to govern the taxing of 

discovery costs.” However, we have repeatedly said that “the authority of the 

trial court to assess ‘necessary and reasonable’ costs incurred during discovery 

‘can hardly be doubted.’” Rundus v. City of Dallas, 634 F.3d 309, 316 (5th Cir. 

2011) (quoting Harrington v. Texaco, Inc., 339 F.2d 814, 822 (5th Cir. 1964)). 

Discovery costs are recoverable under Rule 54 “if the party making the copies 

has a reasonable belief that the documents will be used ‘during trial or for trial 

preparation.’” Id. (quoting Fogleman, 920 F.2d at 285). 

After reviewing Solvay’s declaration in support of its bill of costs, the 

district court exercised its considerable discretion and determined that Solvay 

adequately explained the necessity of its costs. Relators have failed to show 

that the district court abused its discretion in making this determination. 

2. Additional Objections to Solvay’s Costs 

Relators objected to most of the costs billed for deposition transcripts, 

photocopying, and e-discovery. Relators now appeal the district court’s 

decisions overruling some of these objections. 

As to the costs for deposition transcripts, Relators contend that the 

district court should not have taxed any costs against them given the absence 

of itemized invoices. We disagree. Solvay’s counsel explained why these 

deposition transcripts were necessary to Solvay’s defense, and the district 

court found Solvay’s justifications convincing and acted accordingly. In doing 

so, the district court did not abuse its discretion. 

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As to the photocopying costs, Relators claim that the district court should 

not have awarded any photocopying costs because Solvay failed to provide 

sufficient supporting documentation. The district court acknowledged that 

Solvay’s invoices were not detailed but explained that, given nearly three 

million pages of copies Solvay produced for its defense in this case, it would 

have been impossible for Solvay to explain each page’s usefulness. The district 

court also noted that Solvay had attested that the photocopying expenses were 

necessarily incurred, had reduced its request to only fifty percent of the costs 

actually incurred, and was not seeking costs for copies made by its employees. 

In light of these circumstances, the district court found that the costs were both 

necessary and reasonable. 

We have previously affirmed awards for non-itemized photocopying 

expenses. See, e.g., Long, 807 F.3d at 131; United Teacher Assocs. Ins. Co. v 

Union Labor Life Ins. Co., 414 F.3d 558, 574–75 (5th Cir. 2005). District courts 

have great latitude in making these determinations, and the district court here 

did not abuse its discretion in exercising that latitude in determining

reasonable photocopying costs in light of the circumstances of this complex 

case. See Rundus, 634 F.3d at 316. 

As to the e-discovery costs, the district court disallowed the bulk of 

Solvay’s request but did allow Solvay to recover for costs relating to (1) TIFF 

image conversion, (2) scanning, (3) formatting electronic documents, and 

(4) PDF conversion—per § 1920(4), which allows recovery for “exemplification” 

and “making copies” of case materials. The district court explained that it 

interprets § 1920(4) “narrowly” in this context but understands the statute to 

allow a prevailing party to recover the costs of complying with an opposing 

party’s request to reformat electronic documents or scan hard copies of 

documents. 

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Relators contend that Solvay did not provide sufficient information to 

justify the necessity of these costs. To the contrary, Solvay explained their 

necessity in its declaration of costs. The district court carefully considered 

Relators’ objections and did not abuse its discretion by overruling those

objections. 

Finally, Relators make a one sentence argument that “processing fees 

paid to third-party providers to digitize large quantities of print materials or 

to compile and convert electronic records”—that is, electronic formatting and 

TIFF image conversion costs—are not costs related to “making copies” within 

the meaning of § 1920(4). However, under similar circumstances, we have

previously held that a district court does not abuse its discretion in allowing

reimbursement of such costs. See Long, 807 F.3d at 131–32. 

IV. Conclusion 

For the foregoing reasons, the district court’s grant of both summary 

judgment and taxable costs to Solvay is AFFIRMED. 

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