United States of America et al v. Acclarent, Inc. et al
Filing
89
Magistrate Judge Donald L. Cabell: ORDER entered granting in part and denying in part 61 Motion to Dismiss for Failure to State a Claim. The motion is granted as to defendants Ethicon and Johnson & Johnson, but denied as to defendant Acclarent. (DLC, law3)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA ex
rel. MELAYNA LOKOSKY,
Plaintiffs,
No. 11-CV-11217-DLC
v.
ACCLARENT, INC., ETHICON, INC.
and JOHNSON & JOHNSON,
Defendants.
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS
(Dkt. No. 61)
CABELL, U.S.M.J.
Melayna Lokosky began working for Acclarent, Incorporated
(Acclarent) in 2007 as a sales representative. One of the products
Acclarent sold was a sinus related device known as the Relieva
Stratus MicroFlow Spacer (the “Spacer”).
The plaintiff alleges
that Acclarent engaged in practices which ultimately induced third
parties to file false claims for payment for the Spacer with
government programs like Medicare and Medicaid, and eventually
terminated her for complaining about it.
Following the previous
dismissal of certain claims, the complaint asserts a claim for
retaliatory termination pursuant to the False Claims Act (“FCA”),
31
U.S.C.
§
3730(h),
and
a
common
law
termination in violation of public policy.
claim
for
wrongful
The defendants move to
dismiss the complaint for failure to state a claim.
61).
The plaintiff opposes the motion.
(Dkt. No.
(Dkt. No. 74).
For the
reasons discussed below, I find that the complaint states valid
claims against Acclarent but not against Ethicon, Inc. (Ethicon)
or Johnson & Johnson.
Accordingly, the motion to dismiss is
granted in part and denied in part.
RELEVANT BACKGROUND 1
I.
According to the complaint, Acclarent, in order to receive
clearance for the Spacer, misrepresented to the FDA its intended
use and its similarity to previously cleared products.
12).
(Compl. ¶
More specifically, the FDA cleared the Spacer as an inert,
non-drug delivering spacer to be placed in a patient’s sinuses for
no more than 14 days as a healing aid, but Acclarent’s intended
use for the device was to deliver the steroid Kenalog-40 in an
unproven and off-label manner for 30 days or longer.
(Id.).
Kenalog-40 was never approved for use in the paranasal sinuses or
for topical delivery through a sinus spacer.
(Compl. ¶ 34).
In
fact, Acclarent knew the Spacer provided no additional benefits
when used with the steroid Kenalog-40, and consequently hid this
data from the FDA.
(Compl. ¶ 13).
Had Acclarent been truthful
with the FDA, the Spacer never would have been approved for the
market.
(Id.).
1
The facts are taken from the plaintiff’s complaint and accepted as true for
purposes of the motion to dismiss. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
572 (2007).
2
But, because Acclarent was not truthful, the FDA approved the
Spacer.
(Compl. ¶ 14).
Once it was cleared, Acclarent never
marketed the Spacer for its intended use.
Instead, Acclarent
instructed doctors to use the Spacer with off-label Kenalog-40 for
more than 14 days.
(Id.).
By concealing the intended combination
of the Spacer and Kenalog-40, and then uniformly marketing that
off-label
combination
to
hospitals
and
physicians,
Acclarent
caused the Spacer to be misbranded, and thus ineligible for federal
reimbursement.
(Compl. ¶ 15).
In 2009, Johnson & Johnson announced that its subsidiary,
Ethicon, was acquiring Acclarent.
(Compl. ¶ 17).
Johnson &
Johnson immediately became concerned about the off-label marketing
of the Spacer and announced two months later that it would cease
all active marketing of the product due to regulatory concerns.
(Id.).
Johnson & Johnson also announced that they would destroy
all promotional material for the Spacer.
(Compl. ¶ 64).
Despite
this announcement, Johnson & Johnson still manufactured, sold, and
distributed the product.
(Compl. ¶ 17).
Furthermore, Acclarent trained its sales representatives to
tell doctors that the Spacer was specifically designed for use
with Kenalog-40.
(Compl. ¶ 39).
Acclarent employees knew that
saline solution would leak out of the Spacer in a matter of hours
or days, rendering pointless the insertion of the Spacer for 14
days.
(Id.).
This same problem applied to other drugs of similar
3
viscosity,
including
corticosteroids.
antibiotics
(Id.).
and
most
forms
of
The exception was Kenalog-40, whose
viscosity was intended to maximize the time the drug remained in
the injection area.
(Id.).
Use of the Spacer with Kenalog-40 is
the only use that Acclarent has ever investigated in living human
beings, and is the only use described in articles published in
medical journals.
(Compl. ¶ 40-41).
The Acclarent sales force
sold the device to physicians by insisting that it be used with
Kenalog-40.
The
plaintiff
learned
from
other
sales
representatives that physicians did not use the device with saline
and that this was representative of the way physicians used the
device around the country.
The
plaintiff
joined
(Compl. ¶ 56).
Acclarent
in
June
2007
experienced medical device sales representative.
and
was
an
(Compl. ¶ 65).
She was one of the first sales representatives trained to sell the
Spacer, and was one of the top sellers of the Spacer before the
defendants stopped promoting the product in March 2010.
When
the
defendants
stopped
promoting
the
Spacer,
(Id.).
sales
representatives were told that their sales quotas would be adjusted
to account for the lack of these sales, but in reality this did
not occur and sales representatives were unable to meet their sales
goals.
(Compl. ¶ 66).
As a result, sales managers began to put
pressure on sales representatives to promote the Spacer as they
had done before.
(Compl. ¶ 67).
4
After the defendants announced that they would no longer
promote the Spacer, the plaintiff was uncomfortable with its offlabel promotion and was relieved to no longer have to sell it.
(Compl.
¶
68).
But,
in
July
2010,
one
of
the
plaintiff’s
supervisors told her that the company needed to return to selling
the Spacer.
(Compl. ¶ 69).
The plaintiff informed her supervisor
that she did not think it was right to sell the product off-label
and that she did not want to do it.
her to sell it anyway.
(Id.).
The supervisor told
(Id.).
In August 2010 the plaintiff conspicuously posed questions at
a conference in the presence of in-house regulatory personnel about
how to handle inquiries from physicians about the Spacer.
¶ 70).
to
(Compl.
Due to the plaintiff’s questions, the regulators decided
stay
at
the
conference
an
additional
day,
which
in
turn
prevented the sales group from realizing its plan to use the time
to discuss in private their plans to renew promotion of the Spacer.
(Id.).
Acclarent subsequently put the plaintiff on an unrealistic
performance
plan
within
30
days
of
the
terminated her on or about January 4, 2011.
II.
sales
meeting,
and
(Compl. ¶ 71).
LEGAL STANDARD
Under Rule 12(b)(6) courts must apply the notice pleading
requirements
of
Rule
8(a)(2).
Educadores
Puertorriquenos
Accion v. Hernandez, 367 F.3d 61, 66-67 (1st Cir. 2004).
en
Under
Rule 8(a)(2), a complaint need only include a short and plain
5
statement of the claim showing that the pleader is entitled to
relief and giving the defendant fair notice of the grounds for the
plaintiff’s claim.
Conley v. Gibson, 355 U.S. 41, 47 (1957).
Therefore, “a Court confronted with a Rule 12(b)(6) motion ‘may
dismiss a complaint only if it is clear that no relief could be
granted under any set of facts that could be proved consistent
with the allegations.’”
Educadores Puertorriquenos en Accion, 367
F.3d at 66 (citing Hishon v. King & Spalding, 467 U.S. 69, 73
(1984)).
To show that one is entitled to relief, the plaintiff must
provide “enough facts to state a claim to relief that is plausible
on its face.”
(2007).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
“The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully,” and is met when “the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550
U.S. at 556).
A court must “accept as true all well-pleaded facts
set forth in the complaint and draw all reasonable inferences
therefrom in the pleader’s favor.”
F.3d
39,
46
(1st
Cir.
2011)
Haley v. City of Boston, 657
(quoting
Artuso
v.
Pharmaceuticals, Inc., 637 F.3d 1, 5 (1st Cir. 2011)).
Vertex
However,
the Court is “not bound to accept as true a legal conclusion
6
couched as a factual allegation.”
Id. at 678 (quoting Twombly,
550 U.S. at 555).
III. ANALYSIS
A. Claims Against Ethicon and Johnson & Johnson
The defendants argue that Ethicon and Johnson & Johnson should
be dismissed from the lawsuit because the complaint focuses on
Acclarent’s conduct and by contrast does not allege that either
Ethicon or Johnson & Johnson engaged in any conduct related to the
plaintiff’s termination.
The plaintiff demurs and argues that a
recent amendment to the FCA has broadened the scope of who can be
held liable under § 3730(h) by removing the term “employer.”
As originally enacted, the FCA's anti-retaliation provision
provided
that
suspended,
“[a]ny
threatened,
employee
who
harassed,
is
or
discharged,
in
any
other
demoted,
manner
discriminated against in the terms and conditions of his employment
by his or her employer because of [a protected activity] shall be
entitled to all relief necessary to make the employee whole.” 31
U.S.C. § 3730(h); False Claim Amendments Act, Pub.L. 99–562, 100
Stat. 3153 (1986) (emphasis added).
amended
to
expand
protection
from
In 2009, section 3730(h) was
“employees”
to
“employees,
contractors and agents,” and to eliminate the word “employer.”
Pub.L. No. 111-21, §4(d), 123 Stat. 1617, 1624-25 (2009).
amended, the statute now reads:
Any employee, contractor, or agent shall be entitled to
all relief necessary to make that employee, contractor,
7
As
or agent whole, if that employee, contractor, or agent
is discharged, demoted, suspended, threatened, harassed,
or in any other manner discriminated against in the terms
and conditions of employment because of lawful acts done
by the employee, contractor, agent or associated others
in furtherance of an action under this section or other
efforts to stop 1 or more violations of this subchapter.
31 U.S.C. § 3730(h).
As a threshold matter, the plaintiff does not contend that
the 2009 amendment to the FCA’s anti-retaliation provision acts to
automatically impose liability on the corporate parent of an
employer.
Rather, and as the court understands it, she argues
that the removal of the word “employer” means that section 3730(h)
is no longer limited to just employers, and that corporate parents
like Ethicon and Johnson & Johnson therefore cannot be dismissed
simply because they were not the plaintiff’s actual employer.
Accepting
this
proposition
as
true,
it
is
still
“a
general
principle of corporate law deeply ‘ingrained in our economic and
legal systems’ that a parent corporation … is not liable for the
acts of its subsidiaries.”
61
(1998).
There
are
See U. S. v. Bestfoods, 524 U.S. 51,
of
course
some
circumstances
where
a parent company may be liable for the actions of a subsidiary but
these circumstances arise “only when compelling reasons justify
disregarding corporate structure and piercing the corporate veil.”
Clinical Dynamics Corp. v. Dynatech Nevada, Inc., Civ. A. No. 93–
10048–Z, 1994 WL 175026, at *1 (D. Mass. April 13, 1994).
“Where
a party seeks to hold a parent company liable for the actions of
8
a subsidiary, that party carries the burden of overcoming the
presumption
of
separateness
by
clear
evidence.”
Carballo-
Rodriguez v. Clark Equipment Co., 147 F. Supp. 2d 63, 65 (D.P.R.
2001) (citing Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d
902, 905 (1st Cir. 1980)).
Here, the plaintiff has not alleged any facts that would
justify disregarding the corporate structure and holding Ethicon
or Johnson & Johnson liable for Acclarent’s actions.
See In re
Pharmaceutical Industry Average Wholesale Price Litigation, 538 F.
Supp. 2d 367, 391 (D. Mass. 2008) (parent company dismissed from
action where plaintiff “implie[d] that [it] might be liable under
a “piercing the corporate veil” theory, [but] he has not pled facts
to support such a theory”).
As far as can be gleaned from the
complaint, the theory for holding Ethicon and Johnson & Johnson
liable is that they acquired Acclarent and generally took over its
daily operations.
(Compl. ¶ 63).
By contrast, the complaint does
not allege that either entity took any actions in relation to the
plaintiff.
Rather, the complaint avers that Ethicon, a division
of Johnson & Johnson, acquired Acclarent, and that Johnson &
Johnson subsequently took over the day to day responsibilities for
selling Acclarent products, including the Spacer.
(Id.). The
complaint avers further that, although Johnson & Johnson and
Ethicon
management
oversaw
Acclarent
operations,
they
kept
Acclarent as a separate division, and the Acclarent sales force
9
continued to report to the same Acclarent managers as before.
(Id.).
Finally, the complaint alleges that two months after
Acclarent was acquired, the defendants announced that Acclarent
would no longer promote the Spacer.
(Compl. ¶ 64).
Even reading
these allegations in a light most favorable to the plaintiff, and
drawing all reasonable inferences in her favor, I find that the
complaint still fails to allege any knowledge or action on the
part of Ethicon or Johnson & Johnson regarding the plaintiff’s
engaging in protected conduct or her termination.
Indeed, the
complaint explicitly states that “Acclarent” fired the plaintiff.
(Compl. ¶ 2).
To be sure, and as the plaintiff notes, one court in this
district has denied a motion to dismiss a parent company from an
FCA
retaliation
claim.
See
U.S.
ex
rel.
Gobble
v.
Forest
Laboratories, Inc., 729 F. Supp. 2d 446 (D. Mass. 2010).
Gobble
is distinguishable from the present case, however.
Among other
things, the complaint in that case alleged that the parent company
was on notice of and knew about the plaintiff’s protected conduct,
that
the
parent
company
was
responsible
for
relevant
ethics
guidelines, and that two of its employees were involved in the
plaintiff’s firing.
Id. at 451.
As noted, the complaint here
does not allege that Ethicon or Johnson & Johnson had notice or
knew of the plaintiff’s protected conduct, or played any role in
her termination.
As such, the plaintiff has presented no reason
10
to depart from the longstanding precedent that parent companies
are not liable for the actions of their subsidiaries merely because
they are parent companies.
See United States ex rel. Bierman v.
Orthofix Int’l, N.V., 2011 U.S. Dist. LEXIS 47725, at *5 (D. Mass.
2011).
Accordingly, the motion to dismiss will be granted with
respect to Ethicon and Johnson & Johnson.
B. The Complaint States a Valid FCA Retaliation Claim
Against Acclarent
To establish a prima facie claim for retaliatory termination
under the FCA, a plaintiff must show that (1) she engaged in
conduct protected under the FCA, (2) the employer knew that she
was engaged in such conduct, and (3) the employer discharged or
discriminated against her because of her protected conduct.
U.S.
ex rel. Hagerty v. Cyberonics, Inc., 95 F. Supp. 3d 240, 272 (D.
Mass. 2015) (citing Maturi v. McLaughlin Research Corp., 413 F.3d
166, 172 (1st Cir. 2005)).
FCA protected conduct is limited to
those activities which could reasonably lead to a viable FCA
action.
Hagerty, 95 F. Supp. 3d at 272.
These activities include
“investigations, inquiries, testimonies or other activities that
concern the employer’s knowing submission of false or fraudulent
claims for payment to the government.”
Id. (citing U.S. ex rel.
Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 237 (1st Cir.
2004)).
11
1. Protected Conduct
The seminal case in this circuit on protected conduct under
the FCA is U.S. ex rel. Karvelas v. Melrose-Wakefield Hosp., 360
F.3d 220 (1st Cir. 2004).
In Karvelas, the First Circuit analyzed
the legislative history of the FCA and determined that protected
activity should be interpreted broadly as conduct that reasonably
could lead to a viable FCA action.
Id. at 236.
While a plaintiff
need not know that his actions could lead to a qui tam suit under
the FCA, or even that the FCA existed, protected conduct is
nonetheless limited to activities which reasonably could lead to
FCA action.
Id. at 237.
The plaintiff in Karvelas reported the destruction of reports
of medical errors which suggested regulatory failures.
The Court
noted that “correcting regulatory problems may be a laudable goal,
[but] it is not actionable under the FCA in the absence of actual
fraudulent conduct.” Id. (internal quotations omitted). However,
the plaintiff in Karvelas also alleged that he investigated and
reported problems with improper billing when he complained about
completing
patient
evaluations
discharged or had died.
Medicare
even
though
Id.
they
for
patients
who
had
been
These evaluations were billed to
were
not
reimbursable,
and
thus
implicated the possibility of fraud, which in turn rendered his
complaints about the practice protected conduct under the FCA.
Id. at 238.
12
Karvelas was decided prior to Congress’s amendment of the FCA
but the First Circuit noted in a recent decision that the 2009
amendment merely clarified that “protected conduct” under the FCA
has always encompassed measures such as internal complaints or
objections to an employer.
U.S. ex rel. Booker v. Pfizer, Inc.,
847 F.3d 52, 60 n.8 (1st Cir. 2017) (“[c]ourts have understood the
amendment
as
having
clarified
that
the
provision
[regarding
protected conduct] covers not only steps in the litigation process,
such as investigating or testifying, but also measures, such as
internal reporting or objecting to employer directives, which
might not be taken in direct furtherance of an actual lawsuit;”
“Karevlas construed the pre-amendment provision as covering such
activities.”)
Thus, Booker makes clear that Karvelas already interpreted
the
FCA
to
include
internal
reporting
as
protected
conduct.
Therefore, to the extent the plaintiff asserts that the amendment
would allow the plaintiff’s action based on internal reporting to
go
forward
disagrees.
where
it
was
not
previously
permitted,
the court
Rather, Karvelas and the amendments (and Booker) show
that such internal reporting has always come within the scope of
protected conduct, and is indeed sufficient to form part of an FCA
retaliation claim so long as that internal reporting is tied to
false claims for reimbursement.
13
Here,
the
plaintiff
argues
that
because
Acclarent
only
promoted and sold the Spacer for an off-label use, any sale of the
Spacer would have necessarily resulted in the submission of a false
claim.
Consequently, when the plaintiff complained internally
about off-label promotion and sales, she necessarily complained
about
potentially
fraudulent
claims
to
accordingly engaged in protected conduct.
the
government,
and
The plaintiff relies on
several cases from this district to support her argument.
See
U.S. ex rel. Witkin v. Medtronic, Inc., 189 F. Supp. 3d 259, 280
(D.
Mass.
2016)
(“complaints
…
involv[ing]
concerns
about
kickbacks and other fraudulent conduct directed at physicians to
encourage off-label use” is protected conduct); Hagerty, 95 F.
Supp. 3d at 252 (motion to dismiss denied where “[plaintiff] became
concerned that he would not be able to meet his sales quotas
without resorting to fraudulent practices [and h]e raised his
concerns
and
the
fraudulent
practices
of
other
Cyberonics
employees with his regional manager”); U.S. ex rel. Nowak v.
Medtronic, Inc., 806 F. Supp. 2d 310, 324 (D. Mass. 2011) (motion
to dismiss denied where “[plaintiff] expressed concern and asked
how the Endovascular Group could be asked to sell peripheral
products off-label given the legal restrictions and potential
personal liability for sales representatives”); Gobble, 729 F.
Supp. 2d at 450 (motion to dismiss denied where “[plaintiff’s]
complaint does not explicitly tie his retaliation claim to fraud
14
on the government but the complaint does generally describe how
his inquiries support an FCA claim”); U.S. ex rel. Bierman v.
Orthofix Intern., N.V., 748 F. Supp. 2d 117, 121 (D. Mass. 2010)
(motion to dismiss denied where “[plaintiff] alleges that he asked
questions of his supervisors regarding the legality of the various
schemes allegedly perpetrated by the defendants”).
The court finds this precedent compelling.
The law does not
require a plaintiff to connect all of the dots between alleged
off-label promotions and fraud on the government.
Supp. 2d at 450.
Gobble, 729 F.
When the plaintiff refused to sell a product she
believed was misbranded and illegally promoted off-label, and
attempted
to
expose
and
stop
the
illegal
sales
tactics
by
complaining to a supervisor and by conspicuously posing questions
suggesting illegal off-label marketing in the presence of in-house
regulatory personnel, she was engaged in protected activity “that
reasonably could lead to FCA action.”
272.
Hagerty, 95 F. Supp. 3d at
The court is persuaded that the complaint sufficiently
alleges that the plaintiff was engaged in protected conduct.
2. Employer Knowledge of Protected Conduct
“To meet the knowledge element of an FCA retaliation claim
... the employer must be on notice that the employee is engaged in
conduct that reasonably could lead to a False Claims Act case.”
Hagerty, 95 F. Supp. 3d at 272 (quoting Karvelas, 360 F.3d at 238)
(internal alteration marks original).
15
The court finds that the
plaintiff’s complaints and inquiries to her superiors about offlabel marketing were sufficient to put Acclarent on notice and to
establish its knowledge.
See Forest Laboratories, Inc., 729 F.
Supp. 2d at 451 (plaintiff “adequately pled that the defendants
were on notice of and knew about his protected conduct [where]
[h]is complaint contains several allegations of complaints and
inquiries
to
his
supervisors
about
kickbacks and off-label promotions…”).
the
allegedly
unlawful
The complaint alleges that
the plaintiff informed one of her supervisors that she did not
think
it
was
right
to
sell
the
Spacer
off-label,
and
later
purposely asked questions in the presence of in-house regulatory
personnel about how to handle inquiries about the Spacer in dealing
with
customers.
Moreover,
the
complaint
alleges
that
sales
managers were reportedly furious with her for having raised such
questions, suggesting they knew the effect of her questions would
be to raise concerns regarding Acclarent’s marketing and selling
of the Spacer, and wanted to avoid that result.
3. Discharge or Discrimination based on
Protected Conduct
Acclarent argues that the plaintiff cannot show a causal link
between her protected conduct and her termination because she has
not alleged that she was terminated for her protected conduct, but
rather was terminated because of “friction” between her and her
supervisor.
Acclarent argues that even if this friction were not
16
enough
to
justify
the
plaintiff’s
termination,
the
temporal
connection between her refusal to promote the Spacer and her
subsequent
termination
is
too
attenuated
to
show
a
causal
connection between the two.
The court does not find this argument persuasive.
While the
plaintiff’s complaint does mention friction between her and her
supervisor, it makes the mention in passing only, on the way to
alleging that the plaintiff was terminated for her protected
conduct (i.e., for refusing to promote and sell the Spacer offlabel based on her concerns). (Compl. ¶ 71) (“[T]here was a history
of friction between the Relator and her boss which was well known
to sales management, [but] senior management had protected her
. . . until the Relator refused to engage in off-label promotion
of the Microwflow Spacer[.]”).
The plaintiff alleges that she was
placed on an unrealistic performance plan within 30 days of the
August
2010
sales
meeting
at
which
she
conspicuously
posed
questions about the Spacer, and then terminated by January 4, 2011.
At this juncture, the court is just not prepared to declare as a
matter of law that the time period between the sales meeting and
the plaintiff’s termination is too attenuated to be causally
related,
especially
where
the
plaintiff
was
placed
on
an
unrealistic performance plan in the interim, allegedly, as is
implied, to set the stage for her termination, and the parties
17
regardless dispute the length of time that elapsed between the
protected conduct and the plaintiff’s termination. 2
In short, the complaint states a valid FCA retaliation claim
against Acclarent.
C. There is Presently no Basis to Dismiss the Wrongful
Termination Claim
The
defendants
argue
that
Arizona
law
applies
to
the
plaintiff’s claim of wrongful termination, and that, if so, her
wrongful termination claim fails because under Arizona law a
plaintiff must plead an Arizona statute upon which her claim for
wrongful termination is based, and the plaintiff does not do so.
The plaintiff does not respond directly to this argument.
Rather,
she argues that the court does not have enough information at this
stage
to
determine
definitively
whether
Arizona
law
applies.
Moreover, the plaintiff suggested at the hearing that California
law rather than Arizona law may apply to her wrongful termination
claim
because
California.
Acclarent’s
principal
place
of
business
is
in
As neither party has briefed or addressed the issue
further, the court simply does not have enough information at this
juncture to squarely resolve the issue.
It is therefore not
appropriate to dismiss this claim at this time.
Discovery and
time will yield the answer.
2
The parties dispute whether the time between the protected conduct and the
plaintiff’s termination was four or six months.
18
IV.
CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss
the complaint is GRANTED with respect to Ethicon and Johnson &
Johnson, but DENIED with respect to Acclarent.
SO ORDERED.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED:
September 20, 2017
19
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