United States of America et al v. Coloplast A/S et al

Filing 403

Judge Rya W. Zobel: ORDER entered granting in part and denying in part 365 Motion in Limine; granting 368 Motion in Limine; resolved 373 Motion in Limine; denying as moot 376 Motion in Limine (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 11-12131-RWZ

UNITED STATES OF AMERICA
and THE STATE OF CALIFORNIA,
ex rel. KIMBERLY HERMAN, AMY LESTAGE and KEVIN ROSEFF
v.
COLOPLAST CORP., et al.

ORDER
April 3, 2019

ZOBEL, S.D.J.
Plaintiff Amy Lestage asserts that her employer, defendant Coloplast Corp.,
retaliated against her for acting as a relator in a federal False Claims Act qui tam action
in which Coloplast was a defendant. In anticipation of trial, the parties have filed
several motions in limine. The court rules as follows:
Plaintiff’s Motions
1. Plaintiff Amy Lestage’s Motion In Limine To Exclude Testimony, Evidence, and
Reference to the Relator Share Plaintiff Received from Underlying Qui Tam Action
(Docket # 368) is ALLOWED.
The amount of money plaintiff ultimately received for her role as qui tam relator
from the settlement of the underlying False Claims Act violations is not relevant to
plaintiff’s case of retaliation or theory of damages. The reward extended to successful
qui tam plaintiffs incentivizes whistleblowers and is distinct from the remedial protection

afforded to those whistleblowers—successful or not—whose employers retaliate
against them. Compare 31 U.S.C. § 3730(d) (award to qui tam plaintiff), with 31 U.S.C.
§ (h) (relief from retaliatory actions). Knowledge of the sum plaintiff received as a
reward for pursuing her claim would serve only to prejudice the jury against her claim
for additional (yet separate) compensation in the instant case. See Grenadyor v.
Ukrainian Vill. Pharm., Inc., No. 09 C 7891, 2019 WL 1200780, at *1-3 (N.D. Ill. Mar.
14, 2019).
Defendant Coloplast requests that plaintiff likewise be precluded from
referencing the allegations against defendant in the underlying False Claims Act action.
But because the qui tam case does bear some relevance to plaintiff’s claim that she
engaged in protected conduct, she may testify to the fact that she played a role. The
scope of this evidence will be so limited.
2. Plaintiff Amy Lestage’s Motion In Limine To Exclude Testimony, Evidence, and
Reference to Any Common Law Duty of Loyalty (Docket # 376) is DENIED AS
MOOT in light of defendant’s dismissal of its counterclaims.

Defendant’s Motions
1. Coloplast Corp.’s First Motion In Limine Seeking Exclusion of Evidence and
Argument Relating to Certain Damages (Docket # 365) is ALLOWED IN PART and
DENIED IN PART.
Defendant’s motion to exclude compensatory damages is DENIED. Contrary to
defendant’s argument, because a retaliation claim does not require proof of fraud, the
heightened pleading standard of Fed. R. Civ. P. 9(g) does not apply. Guilfoile v.
Shields, 913 F.3d 178, 188 (1st Cir. 2019).

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Because plaintiff was not terminated, defendant’s motion to exclude “front pay”
damages is ALLOWED. If plaintiff proves defendant did retaliate, she is entitled to
recover, in addition to any emotional distress damages, the difference between the
compensation she would have received but for defendant’s retaliatory actions and the
compensation she, in fact, received from the beginning of any retaliatory conduct until
such conduct and any effect thereof ceases.
Defendant’s motion to exclude any claim or argument for damages based on
defendant’s counterclaims is ALLOWED because defendant has agreed to dismiss
them.
2. Coloplast Corp.’s Second Motion In Limine Excluding Plaintiff’s Expert’s
Testimony (Docket # 370).
Plaintiff reports she no longer plans to present testimony on Dr. Roberts’ “Model
A.” It is still unclear, however, what the expert is expected to tell the jury given the
measure of damages in this case.
3. Coloplast Corp.’s Third Motion In Limine Preventing Plaintiff from Presenting
Evidence That She was Suspended While on Paid Leave (Docket # 373) was
resolved at the pretrial conference.
The parties agreed that defendant may to refer to plaintiff’s absence as a “paid
administrative leave,” but plaintiff may testify that she felt she had been “suspended.”

April 3, 2019

/s/Rya W . Zobel

DATE

RYA W . ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE

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