Judge to Abbott CEO: Fork Over Your Emails

CEO Miles White scrapped hard to get to the top of his company, Abbott Laboratories, and earned a reputation as a tough negotiator. But when he fought the law: Well, the law won.

A federal judge in Virginia ordered White to turn over his emails to prosecutors trying to determine whether Abbott promoted the anti-seizure drug Depakote for unapproved uses, a serious violation of law.

Depakote once had more than $1 billion in revenue but those sales started declining in 2008 due to generic competition. Last year, the drug's sales dropped 74 percent to $331 million.

Thanks to White's scrappy ways, fighting government subpoenas, we have more details on what the government is actually looking at.

"The United States is investigating Abbott for a number of potential federal violations arising out of Abbott’s impermissible off-label marketing of Depakote as a treatment for agitation and aggression in the elderly, and health care fraud arising out of that allegedly improper use," Judge Samuel G. Wilson wrote in his order for the company to turn over emails last month.

Prosecutors and the suburban Chicago company have been back and forth on how many emails Abbott needs to provide. The prosecutors actually reduced their demands significantly, and Wilson said Abbott only needs to provide them for White and two others, former pharmaceuticals head William Dempsey and ex-president and chief operating officer Jeffrey Leiden, from 2002 to 2008.

Abbott says it will be prohibitively expensive (about $10,000) to comply. Wilson rules that the amount isn't going to sink a company with around $30 billion in sales.

In addressing one of Abbott's other concerns about relevance of subpoenas, Judge Wilson notes that prosecutors are actually looking at the way the company marketed other drugs as well. Pharmaceutical makers are banned from encouraging doctors to prescribe medicines for unapproved or so-called off-label uses. Doctors are free to prescribe medicines for other uses but the drug manufacturers are not supposed to encourage it.

"The government has indicated that it has evidence that the off-label marketing of other FDA approved drugs may have followed a similar pattern to the off-label marketing of Depakote," Wilson writes. "If this is so, the off-label marketing of these other drugs may raise the same related health care fraud issues that the marketing of Depakote raises."

This isn't the type of case that the government takes lightly. One only needs to look at the billions in record payouts both Pfizer Inc. and Eli Lilly & Co. made in government settlements last year.