Advaite to challenge county’s lawsuit

An attorney representing the East Whiteland biotechnology firm sued by Chester County last week to recover more than $11 million in taxpayer funds spent on test kits that would identify the presence or absence of COVID-19 antibodies has fired back, blaming the county for the failed business deal.

And, attorney Michael Scott said in an email Sunday the firm still wants the $7 million it claims it is owed for the 1 million kits.

Scott, a contract attorney and pharmaceutical litigator with his own firm, said that he and former Dilworth Paxson chairman Ajay Raju of Philadelphia, representing the firm, Advaite, and its founder and chairman, Karthik Musunuri, in the lawsuit had

not seen the county’s complaint, which was filed late Friday. Thus, he could not address the specific claims the county made in its litigation.

“However, we are quite certain that Advaite has fully honored its Contract with the county for (the) RapCov COVID-19 antibody tests and does not owe the county any money,” Scott said. “The county once again has its facts wrong.”

In March 2020, as the coronavirus pandemic was beginning to sweep across the region, state and nation, and COVID-19 cases began to appear in the county, government officials reached out to Advaite after learning of its product that it said could determine whether the person had one of two antibodies in their blood that would confirm the presence or absence of the virus.

As the county claims, following a preliminary purchase of RapCov tests to verify the product’s effectiveness and representations from Advaite that it could supply up to 1 million tests within two months, the county made the large-scale, 1 million test kit order, “for the benefit of Chester and Delaware County citizens.”

(The county had in March taken on the role of monitoring the health of Delaware County residents since that county has no Health Department of its own.)

But as of late-May, the firm had not delivered anywhere near the promised 1 million kits, the county claims — only about 13,000. When it informed Musunuri that it would not make the next scheduled payment of $4 million, because of the failure to provide it with the test kits in accordance with the supply schedule the two sides had agreed to, Musunuri, a Uwchlan resident, “admitted the county decision to stop payments was, ‘very much understandable,’” the county states in its lawsuit, filed by attorneys with the Philadelphia firm of Anapol Weiss.

But Scott charged that, indeed, the county “has breached its contractual ob

ligations, failed to pay more than $7 million it owes to Advaite, and irresponsibly continues to let FDA-authorized COVID-19 tests languish on warehouse shelves, while the pandemic continues to mushroom.

“The county’s complaint appears to be simply the latest effort by the county and its officials to hide their own egregious malfeasance and misfeasance in mishandling COVID-19 testing for its citizens,” Scott said in his statement.

“We will, of course, be filing a formal response to the county’s complaint and we will be asserting counterclaims for breach of contract, tortious interference, defamation, commercial disparagement and such other grounds as the facts may warrant,” he wrote in an email.

What Scott did not address was the issue that the county stopped delivering the finger-prick blood tests because of a high number of positive tests, which some medical experts said made them inaccurate. When the discrepancy was pointed out to county Health Department officials, the test kit screening effort was scrapped.

“Advaite represented to Chester County its RapCov test was able to reveal whether a person had a recent or past COVID-19 virus infection, based on the presence or absence of IgG and IgM antibodies,” the county contended in a press statement about the lawsuit. “On July 7, 2020, with more than half of the agreed upon sum paid, Chester County canceled the remainder of the agreement and requested a refund of money paid for tests never supplied.”

Advaite has refused to provide any refund and has demanded from the county the final payments in accordance with the contract. The firm also wants the county to pick up hundreds of thousands of test kits it has stored in its warehouses, and which the firm says are soon to expire.

The suit has been assigned to Common Pleas Judge William P. Mahon.