United States District Court, D. Massachusetts
THE UNITED STATES OF AMERICA, and THE STATE OF CALIFORNIA, ex rel. KIMBERLY HERMAN, AMY LESTAGE and KEVIN ROSEFF
COLOPLAST CORP., et al.
RYA W. ZOBEL SENIOR UNITED STATES DISTRICT JUDGE
five-day trial, a jury returned a verdict for plaintiff Amy
Lestage, finding that defendant Coloplast Corp. retaliated
against her for reporting company conduct that allegedly
violated the False Claims Act (“FCA”). It awarded
damages in the amount of $762, 525 as compensation for (1)
Coloplast's decision to place Lestage on paid
administrative leave, and (2) the manner in which Coloplast
reassigned accounts to Lestage when she returned to work.
Coloplast has renewed its motion for judgment as a matter of
law (Docket # 459) and moves alternatively for a new trial
(Docket # 462). Both motions are denied.
develops, manufactures, and markets medical devices and
services related to medical conditions and surgeries like
incontinence and ostomy. It sells its products to
distributors and dealers, and to this end employs Key Account
Managers (“KAMs”) to maximize sales to, and
manage the relationship with, its most profitable customers.
It compensates each KAM with a base salary as well as
commission based on the growth of their account portfolio.
Plaintiff began working for Coloplast as a sales and services
representative in 2004 and was promoted to KAM in 2011.
December 2011, Lestage and two former Coloplast employees
filed a False Claims Act qui tam lawsuit against
Coloplast and several other entities including Byram
Healthcare, one of its largest distributors. The qui
tam action alleged that Coloplast, Byram, and others had
engaged in an illegal kickback scheme to inflate their
Medicare and Medicaid reimbursement amounts and thereby
defraud the federal government. As required in qui
tam cases, the complaint was initially filed under seal.
An unsealed amended complaint filed on November 20, 2014, for
the first time publicly identified Lestage as a relator.
time, in November 2014, plaintiff's accounts at Coloplast
included Byram, ABC Home Medical, Home Care Delivered,
Buffalo Hospital Supply, Inc., and Claflin Medical Equipment
Co. On December 19, 2014, Perry Bernocchi, the CEO of Byram,
notified Coloplast that it no longer wanted to work with
Lestage and asked for a different KAM to be assigned. Around
this time, Coloplast also learned of Lestage's role in
the qui tam case. On December 23, 2014, it placed
plaintiff on an indefinite, fully-paid, administrative leave.
In December 2015, Coloplast and the federal government
settled the qui tam action. On January 15, 2016,
Coloplast asked plaintiff to return to work. Having delivered
her third child less than two months earlier, plaintiff
elected to take twelve weeks of leave under the Family and
Medical Leave Act (“FMLA”) before returning to
work on April 12, 2016. At that point she was assigned three
of her old accounts-Claflin, Home Care Delivered and
Buffalo-plus four new ones-Geriatric, AmeriSource Bergen,
Blackburns, and Concordance. Neither Byram nor ABC were
returned to her.
1, 2015, Lestage filed the instant FCA retaliation claim
against Coloplast. She alleges the company took adverse
action against her because of her role as a qui tam
relator by (1) placing her on paid administrative leave for
388 days, and (2) assigning her a portfolio of low-growth
accounts upon her return. In February 2018, this court denied
Coloplast's motion for summary judgment and in April 2019
the dispute was tried to a jury. Before resting its case
Coloplast moved for judgment as a matter of law, on which the
court reserved. The jury returned a special verdict in favor
of plaintiff and awarded $762, 525 in compensatory damages.
Coloplast subsequently renewed its motion for judgment as a
matter of law, and, in the alternative, filed a motion for
standard for granting a Rule 50 motion is stringent.
‘Courts may only grant a judgment contravening a
jury's determination when the evidence points so strongly
and overwhelmingly in favor of the moving party that no
reasonable jury could have returned a verdict adverse to that
party.'” Malone v. Lockheed Martin Corp.,
610 F.3d 16, 20 (1st Cir. 2010) (quoting Rivera Castillo
v. Autokirey, Inc., 379 F.3d 4, 9 (1st Cir. 2004)). In
making its determination, the court may not weigh the
evidence, determine the credibility of the witnesses
presented, or attempt to resolve conflicting testimony.
MacQuarrie v. Howard Johnson Co., 877 F.2d 126, 128
(1st Cir. 1989).
Federal Rule of Civil Procedure 59(a), a court may order a
new trial “only if the verdict is against the law,
against the weight of the credible evidence, or tantamount to
a miscarriage of justice.” Crowe v. Marchand,
506 F.3d 13, 19 (1st Cir. 2007) (quoting
Casillas-Díaz v. Palau, 463 F.3d 77, 81 (1st
reaching its verdict, the jury made five specific findings
that mirror the elements of an FCA retaliation claim: (1)
plaintiff engaged in protected conduct under the FCA (by
filing a qui tam action); (2) Coloplast knew of
plaintiff's protected conduct on or before December 23,
2014 (the date the alleged retaliation began); (3) Coloplast
retaliated against plaintiff because of her protected conduct
by both (a) placing her on indefinite administrative leave,
and (b) the choice of accounts assigned to her upon her
return in 2016; (4) defendant's conduct caused plaintiff
to suffer damages as a result of one or both (a) the
administrative leave, and (b) the assignment of accounts; and
(5) plaintiff should be awarded compensatory damages in the
amount of $762, 525.
Judgment as a Matter of Law
Coloplast challenges the sufficiency of the evidence adduced
at trial. Yet the evidence sufficiently supports ...