United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
PATTI B. SARIS CHIEF UNITED STATES DISTRICT JUDGE.
Ebonia Elliott-Lewis brings this civil action pro se against
her former employer, Defendant Abbott Laboratories, Inc.
(“Abbott”). She claims Abbott terminated her in
retaliation for raising internal concerns about the
company's off-label marketing and pre-approval promotion
of its products. She alleges retaliation under the False
Claims Act (“FCA”) and wrongful termination in
violation of public policy. Both parties have moved for
summary judgment on the two claims.
hearing, the Court ALLOWS
Abbott's motion for summary judgment (Docket No. 159) and
DENIES Plaintiff's motion for
summary judgment (Docket No. 164).
following facts are undisputed except where otherwise stated.
Hiring and Expense Reporting Investigation
joined Abbott Vascular, a division of Abbott, in 2010 as a
medical science manager (“MSM”) assigned to the
northeastern United States. As an MSM, Plaintiff engaged with
healthcare professionals and customers, provided them with
medical and scientific data and information, and facilitated
opportunities for clinical research. The MSM position did not
involve sales responsibilities. Abbott instructed its MSMs
that they could proactively engage healthcare professionals
and customers in discussions about on-label clinic data
updates and safety and efficacy information. With certain
restrictions, MSMs could also respond to bona fide
unsolicited requests from healthcare professionals and
customers for off-label information.
was supervised directly by Colleen Baird, the national
manager for medical science/medical affairs, and indirectly
by Dr. Krishna Sudhir, a divisional vice president, and Dr.
Charles Simonton, the chief medical officer. Plaintiff
received positive feedback, as well as cash bonuses, for
multiple projects she undertook during her employment at
summer of 2012, Abbott's Office of Ethics and Compliance
(“OEC”) investigated Plaintiff for suspicious
expense reporting. Plaintiff admitted to rounding her
expenses to even numbers, which she believed was consistent
with the direction she received from Abbott. During the
investigation, she told the OEC that she believed someone
reported her to retaliate for a transition in leadership
within her department. The OEC found that Plaintiff had
violated Abbott's Code of Business Conduct and issued a
written warning. The warning noted that Plaintiff's
“professionalism was not maintained throughout the
investigational process” and that she “took on an
argumentative tone, in both the interview and follow up
e-mails, bordering on disrespectful.” Dkt. No. 161-2 at
Plaintiff's Internal Complaints
2012 and 2013, Plaintiff raised concerns about what she
perceived to be three legal and ethical violations by her
colleagues. First, in late October 2012, Plaintiff spoke with
Dr. Sudhir about the relationship between Dr. Simonton and an
outside physician. Plaintiff told Dr. Sudhir that Dr.
Simonton was being very “aggressive” and
“pushy” and that the physician was uncomfortable
with their interactions. Elliott-Lewis Dep. 19:10-20:7.
Plaintiff believed Dr. Simonton “seemed to be offering
things in exchange for trying to get [the physician] to
change his research conclusions[.]” Id. at
131:4- 24. In the email exchange that prompted
Plaintiff's concern, Dr. Simonton critiques the
physician's research findings and then suggests the
physician may want to collaborate further with Abbott's
clinical team to analyze data held by Abbott.
in 2013, Plaintiff expressed concerns to Baird about a
presentation Baird was developing regarding a new product
called Absorb, a coronary stent. Because Absorb was not
FDA-approved at the time, Plaintiff was concerned the
presentation would have a promotional tone and include
statements about the product's safety and efficacy.
Plaintiff explained that company policy did not permit
pre-approval promotion. It is unclear from the record whether
anyone at Abbott ever delivered this presentation.
Plaintiff spoke to Regina Deible, a new MSM hire who had
previously worked at Johns Hopkins University, about a
presentation she made about Absorb at a continuing medical
education (“CME”) conference in Las Vegas in
October 2013. Plaintiff expressed concern that Deible's
presentation suggested she was still affiliated with Johns
Hopkins with no financial relationships to disclose and that
the presentation included pre-approval promotional content.
Plaintiff believed Deible's presentation also violated
Abbott's policies because Abbott was sponsoring the
conference and MSMs were not supposed to give presentations
or distribute printed materials at CME events sponsored by
2013 Performance Review
December 2013, Plaintiff's supervisors discussed laying
her off as part of a reduction in force. They acknowledged
she was “coming up to speed and has real talents for
the team that are different than the others” but also
observed that she “struggle[s] in clinical/cath lab
settings” and wondered if she was “the right
fit.” Dkt. No. 161, Ex. 8 at 2. On January 11, 2014,
Dr. Sudhir determined that Plaintiff should only get 75% of
her achievable performance bonus for 2013, the only employee
in the group to get less than 100%.
solicited feedback from Plaintiff's other supervisors in
January 2014 in connection with her 2013 performance review.
Plaintiff received positive feedback for certain projects she
undertook during the previous year. However, Dr. Simonton
questioned her “relationship-building capabilities,
” which he believed to be a “core skill”
for the job. Dr. Sudhir noted “the strong perception
[at headquarters] that she may not be the right person for
this role, from points of view of both personality as well as
educational background and interests” and that she
might be “a better fit for a career in device
development rather than medical affairs.” Dkt. No.
161-2 at 17. In her summary, Baird wrote that the
“feedback received has been mixed, and growth areas
were identified.” Id. at 21. While she praised
Plaintiff's work ethic and knowledge, she noted that
Plaintiff was sometimes “confrontational, insular and
inflexible” and might “work better as an
individual contributor, rather than truly as a team
planned to discuss the performance review with Plaintiff
during a prescheduled trip together on February 12, 2014.
However, because Baird was still finishing the review, the
two did not have their formal evaluation meeting that day.
Baird did express to Plaintiff some of her concerns about her
performance. Plaintiff told Baird that she believed she
received negative feedback because Dr. Simonton wanted
Deible, the new hire from Johns Hopkins, to have her job due
to her better social relationships with physicians. Although
she did not say this to Baird, Plaintiff believed that her
supervisors wanted someone who could more easily speak with
doctors about off-label marketing and pre-approval promotion.
Plaintiff told Baird that, if social relationships were so
important for the job, she should not have been hired in the
first place and asked to be laid off to allow her to escape
her noncompetition agreement and find another job. According
to Baird, Plaintiff “became combative and
confrontational, ” “told [Baird] she did not
think she was a good fit” for the job, and “asked
to be laid off.” Dkt. No. 161-1 at 3-4.
Compliance Report and Investigation
after Baird and Plaintiff's meeting, on February 13,
2014, Plaintiff filed a compliance report with the OEC,
saying she had been “harassed” by Dr. Simonton,
Dr. Sudhir, and Baird starting with the expense reporting
investigation in June 2012. She stated in her report that she
thought her managers were assigning projects within her
territory to Deible and excluding her from trainings.
Plaintiff believed her supervisors were trying to push her
out because she refused to participate in unlawful marketing,
namely pre-approval promotion of Absorb and off-label
promotion of Xience, another coronary stent, but could not
recall whether she mentioned this in her report. Her report
also included her concerns about the relationship between Dr.
Simonton and the outside physician and included an email
exchange between the two as supporting evidence.
opened an investigation and assigned James Curcio, an
employee relations manager within the human resources
department (“HR”), to communicate with Plaintiff
about her harassment claim. Curcio and Plaintiff met for the
first time on February 24. Curcio and Plaintiff exchanged
numerous communications over the next few weeks about
Plaintiff's allegations that her supervisors were
harassing and trying to replace her. After Baird sent
Plaintiff her final performance evaluation on February 27,
for example, Plaintiff told Curcio that she thought the
evaluation's “tone ha[d] been altered to be
especially negative in response to [her]
retaliation/harassment complaint.” Elliott-Lewis Dep.
93:4-18. Curcio arranged a call with Plaintiff, Baird, and
Dr. Sudhir to discuss her performance evaluation and
expectations going forward. After the call, Plaintiff
expressed frustration with the way Baird and Dr. Sudhir were
managing her workload and the duties within her territory.
March 2, Plaintiff emailed Curcio about what she called
“key events surrounding Abbott Vascular's evolving
tolerance for noncompliance in the form of medical device
off-label promotion (reference Code of Federal Regulations
under 21CFR812.7) and pre-approval promotion (reference Code
of Federal Regulations under
21CFR801.4).” Dkt. No. 161-3 at 46. Plaintiff explained
that Dr. Simonton encouraged her and other MSMs to
“proactively discuss off-label topics” with
physicians to increase revenue for the division. Id.
at 47. She also expressed concern that no one had reached out
to her about these allegations. Id.
March 4, Curcio told Plaintiff that Abbott had assigned Peter
Schutzel to investigate her allegations of regulatory
violations. Over the next few weeks, Plaintiff emailed Curcio
and Schutzel about these allegations, including that she
believed Deible's presentation at the CME conference
violated company policy.
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