What happened. "Moore" worked for B. Braun, primarily selling pain-killing prescription drugs. Hired in October 1998, she was fired in April 2007. She was very much aware that federal law prohibits both kickback payments from drug makers to customers and promoting off-label uses—those for indications or in dosages not approved by the Federal Drug Administration—for drugs.
Moore's concerns about these practices went back to early 2000, when she sent a memo to her manager about off-label promotion. In November of that year, trainers instructed drug reps on how to promote off-label uses for one of Braun's pain killers. Again, Moore objected, but her regional manager angrily pulled her out of the session and scolded her. At a training session in 2003, a salesperson instructed reps how to funnel kickback payments to customers through a third party. At that point, she approached Braun's Compliance Department, where she continued to take her concerns.
In 2006, a hospital customer pressured her to give it what she felt was a kickback payment, and she refused. But her supervisors were increasingly unhappy about her complaints. So, they began downgrading her for failing to meet her sales quotas. Then they transferred her to a new sales territory where she found the quotas unattainable. And, she was fired.
She sued, claiming wrongful discharge in violation of public policy: Common law bars employees from being fired for refusing to break the law. A jury heard her case in federal district court and awarded her $880,000. Braun appealed the verdict to the 6th Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee.
What the court said. Judges saw that in 2004 and 2005, Moore had not met all her sales quotas but had been ranked as 3rd-best and then 10th-best out of 35 drug reps. Suddenly in 2006, she was ranked near the bottom. They believed she had been wrongly discharged and affirmed the jury's verdict. Morrison v. B. Braun Medical, U.S. Court of Appeals for the 6th Circuit, No. 10-1548 (2011).
Point to remember: High evaluations before a complaint and low ones after it can be a dead giveaway in court. Here, they seem to have convinced judges that Moore's case was a righteous one.
Wednesday, February 08, 2012
Drug Rep Fired for "Poor Performance", Awarded $880,000