United States of America et al v. Acclarent, Inc. et al

Filing 150

Magistrate Judge Donald L. Cabell: ORDER entered denying 144 Motion to Amend. (Russo, Noreen)

Case 1:11-cv-11217-DLC Document 150 Filed 06/01/20 Page 1 of 6

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA, ex rel.
MELAYNA LOKOSKY,
Plaintiff-Relator,
No. 1:11-cv-11217-DLC
v.
ACCLARENT, INC.,
Defendant.

ORDER ON PLAINTIFF’S MOTION FOR LEAVE TO FILE
AN AMENDED STATEMENT OF MATERIAL FACTS (Doc. No. 144)
CABELL, U.S.M.J.
In this qui tam action under the False Claims Act, 32 U.S.C.
§§ 3729-33 (FCA), the defendant moved for summary judgment on the
plaintiff’s claims of retaliatory discharge under the FCA and
common law wrongful discharge.

(D. 125).

While the summary

judgment was pending, the plaintiff filed the present motion,
seeking to amend her statement of material facts to include adverse
inferences

drawn

from

Acclarent executives.

the

deposition

answers

of

two

former

For the reasons stated below, the motion is

denied. 1

1 Although the formal Opinion has not yet issued, the court has granted
partial summary judgment to Acclarent on the retaliatory discharge claim.
(D. 148). The court finds it appropriate to address this issue to the extent
the motion bears on the plaintiff’s remaining claim of common law wrongful
discharge.

Case 1:11-cv-11217-DLC Document 150 Filed 06/01/20 Page 2 of 6

Lokosky was a sales representative for Acclarent from 2007
until the beginning of 2011.

She asserts that Acclarent fired her

because she refused to sell a particular medical device off-label. 2
She argues further that her discharge was in retaliation for trying
to

halt

activity

that

would

lead

to

the

filing

of

false

reimbursement claims with the government.
During discovery on the remaining claims, Lokosky served
deposition

and

production

subpoenas

upon

William

Facteau

and

Patrick Fabian, Acclarent’s former Chief Executive Officer and
Director of Sales, respectively. Facteau and Fabian moved to quash
and the court initially granted their motion.
Upon

reconsideration,

however,

the

(D. 111).

court

recognized

that

Facteau or Fabian might possess information that Lokosky could not
obtain from Acclarent. The court therefore vacated its prior order
and allowed Lokosky to submit written questions to Facteau and
Fabian.

Lokosky submitted 78 questions to Facteau, to which he

overwhelmingly invoked his Fifth Amendment privilege against selfincrimination.

Fabian did likewise to the 79 questions submitted

to him.
Against this backdrop, Lokosky seeks to amend her Statement
of Material Facts to include adverse inferences from Facteau and
Fabian’s answers to the following 11 questions:

2

Off-label marketing occurs when a medical device is promoted for a use other
than that for which the Food and Drug Administration granted approval.

2

Case 1:11-cv-11217-DLC Document 150 Filed 06/01/20 Page 3 of 6

1. Did Melayna Lokosky attempt to stop sales of Stratus that
may have resulted in false claims being submitted to the
federal government?
2. Did Melayna Lokosky complain about the continued Stratus
promotion?
3. Did Melayna Lokosky complain about the continued Stratus
promotion in violation of the Catalogue-Only
announcement?
4. Were you aware that Melayna Lokosky attempted to stop
off-label use of Stratus?
5. Were you aware that Melayna Lokosky attempt (sic) to stop
sales of Stratus that may have resulted in false claims
being submitted to the government?
6. Were you aware that Melayna Lokosky complained about
continued Stratus Promotion?
7. At any time in 2010, did you come to the understanding
that Melayna Lokosky had complained about the off-label
promotion of Stratus?
8. Were you aware that Melayna Lokosky raised questions
about the promotion of Stratus at the Western Area
Meeting in August 2010?
9. Were you aware that Melayna Lokosky’s September 2010
ASSET program caused Johnson & Johnson’s healthcare
compliance officer Judy Fernandez to question whether
there was any improper promotion taking place?
10. Based on your understanding, did Acclarent terminate
Melayna Lokosky because she attempted to stop sales of
Stratus that may have resulted in false claims being
submitted to the federal government?
11. Based on your understanding, did Acclarent terminate
Melayna Lokosky because she refused to engage in offlabel promotion to the Stratus device?
When a witness in a civil matter asserts the Fifth
Amendment privilege against self-incrimination in response to
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Case 1:11-cv-11217-DLC Document 150 Filed 06/01/20 Page 4 of 6

questioning, the court may allow an adverse inference to be
drawn from the answer

-- that is, an inference that if the

witness had answered, the answer would have been unfavorable to
the witness.

See Baxter v. Palmagiano, 425 U.S. 306, 318

(1976); Green v. Cosby, 177 F. Supp. 3d 673, 679 (D. Mass.
2016).

Where the witness is also a party to the civil case and

“remains silent in the face of accusation, his silence is
indicative of the reliability of the adverse inference drawn
against him ‘if it would have been natural under the
circumstances to object to the accusation in question.’”

United

States v. $62,552.00 in U.S. Currency, No. 03-cv-10153, 2015 WL
251242, at *6 (D. Mass. Jan. 20, 2015) (quoting Baxter, 425 U.S.
at 319).
However, where, as here, a non-party witness in a civil
matter invokes the Fifth Amendment, courts have recognized that
the non-party may have reasons to stay silent besides selfincrimination –- particularly where the witness may wish to
discredit a party.

Id.

Courts therefore consider whether to

allow adverse inferences on a case-by-case basis, focusing on
four non-exclusive factors:

(1) “‘the nature of the relevant

relationships’”; (2) “‘the degree of control of the party over
the non-party witness’”; (3) the compatibility of the interests
of the party and non-party witness in the outcome of the
litigation’”; and (4) “‘the role of the non-party witness in the
4

Case 1:11-cv-11217-DLC Document 150 Filed 06/01/20 Page 5 of 6

litigation’”.

Id. at *7 (quoting LiButti v. United States, 107

F.3d 110, 123-24 (2d Cir. 1997)).

Ultimately, the court must

evaluate whether the adverse inference is trustworthy under all
the circumstances.

Id.

At the outset, the court notes that Lokosky has not
provided any argument in support of her motion.

Cf. Wechsler v.

Hunt Health Sys., Ltd., No. 94 Civ. 8294, 2003 WL 21998980, at
*3 (S.D.N.Y. Aug. 22, 2003) (district court has discretion to
deny a motion in limine that fails to identify evidence with
particularity or present arguments with specificity).

Further,

while Facteau and Fabian were key employees of Acclarent at the
time of the plaintiff’s employment there, the plaintiff has not
identified any evidence that either of them supervised her,
played a role in her performance reviews, or were involved in
her termination of employment.
Moreover, Facteau and Fabian have not been employed at
Acclarent since 2011 and it does not appear that Acclarent
exerts any control over them.

They are represented by counsel

independent of this case and they also asserted their Fifth
Amendment rights in response to questions from Acclarent.
Further, neither appears to have any interest in the outcome of
the remaining issues in this litigation.
Based on the foregoing, the court does not consider the
adverse inferences to be trustworthy under all circumstances.
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Case 1:11-cv-11217-DLC Document 150 Filed 06/01/20 Page 6 of 6

Consequently, the Motion for Leave to File an Amended Statement
of Material Facts of Record as to Which there Exists a Genuine
Issue to be Tried is DENIED.

SO ORDERED.

DATED:

/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.

June 1, 2020

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