Elliott-Lewis et al v. Abbott Laboratories, Inc.

Filing 88

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER DENYING Defendant's 76 Motion to Dismiss Count IV of the First Amended Complaint. (DaSilva, Carolina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
EBONIA ELLIOTT-LEWIS, et al.,
Plaintiff/Relator,
v.
ABBOTT LABORATORIES, INC.,
Defendant.

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Civil Action No. 14-cv-13155-IT

MEMORANDUM AND ORDER
March 1, 2018
TALWANI, D.J.
Pending before this court is Defendant Abbott Laboratories, Inc.’s Motion to Dismiss
Count IV of the First Amended Complaint [#76]. Defendant seeks to dismiss Count IV of the
First Amended Complaint [#79], which alleges wrongful discharge in violation of public policy.
For the reasons set forth below, Defendant’s Motion to Dismiss Count IV of the First Amended
Complaint [#76] is DENIED.
Massachusetts recognizes “an exception to the general rule that an employer may
terminate an at-will employee at any time with or without cause, . . . if the termination violates a
clearly established public policy.” King v. Driscoll, 638 N.E.2d 488, 492 (Mass. 1994). For
example, an employer cannot fire at-will employees “for asserting a legally guaranteed right
(e.g., filing worker’s compensation claim), for doing what the law requires (e.g., serving on a
jury), or for refusing to do that which the law forbids (e.g., committing perjury).” Smith-Pfeffer
v. Superintendent of Walter E. Fernald State Sch., 533 N.E.2d 1368, 1371 (Mass. 1989).
Although the exception is construed “narrowly,” see King¸ 638 N.E.2d at 492, Massachusetts
courts have been willing to extend the public policy exception to employees who “report, resist,

or refuse to participate in activity that presents a threat to public health or safety,” Surprise v.
Innovation Grp., Inc. / First Notice Sys., Inc., 925 F. Supp. 2d 134, 148 (D. Mass. 2013). The
purpose behind this public policy exception “is that, unless a remedy is recognized, there is no
other way to vindicate such public policy.” Melley v. Gillette Corp., 475 N.E.2d 1227, 1228
(Mass. App. Ct. 1985), aff’d, 491 N.E.2d 252 (Mass. 1986).
Defendant contends that Plaintiff’s wrongful termination claim under state law must fail
in light of her 31 U.S.C. § 3730(h) claim, alleging that she was retaliated for bringing a qui tam
claim. “[W]here the relevant public policy” on which the public policy exception claim is based
“has already been vindicated by a state or federal statute,” the public policy exception claim is
foreclosed. Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 45 (1st Cir. 1999) (citing Melley, 491
N.E.2d 252). The public policy underlying the qui tam retaliation provisions relate to reporting
on false or fraudulent claims for payment from the United States. See S. Rep. No. 99-345, at 34
(1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5299 (stating that addition of whistleblower
protections was intended “to halt companies . . . from using the threat of economic retaliation to
silence ‘whistleblowers,’ as well as assure those who may be considering exposing fraud that
they are legally protected from retaliatory acts.”). If Plaintiff’s state law claim was based on the
alleged reporting of a false claim for payment, it would be foreclosed. But Plaintiff argues that
her state law claim relates to retaliation for her reports concerning public welfare, as protected by
regulations prohibiting medical device off-label and pre-approval promotion, 21 C.F.R. §§ 801,
812. “Where [plaintiff]’s claims are grounded in regulations directly bearing on public safety,
[Massachusetts courts] will give weight to the statement of public policy that such regulations
represent.” Falcon v. Leger, 816 N.E.2d 1010, 1019, (Mass. App. Ct. 2004) (employee allowed
to make wrongful termination claim after alleged termination for refusal to follow supervisor’s

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instructions to interfere with public-safety-related product inspection process); see also Hobson
v. McLean Hosp. Corp., 522 N.E.2d 975, 977-78 (Mass. 1988) (hospital employee tasked with
enforcing state fire safety laws in the context of patients’ cooking activities, who was allegedly
fired for demanding her colleagues adhere to said laws, sufficiently stated claim for wrongful
termination); Mercado v. Manny’s T.V. & Appliance, Inc., 928 N.E.3d 979, 984-85 (Mass. App.
Ct. 2010) (employee tasked with performing unlicensed installations of home appliances in
violation of municipal regulations could make wrongful termination claim after refusing to
participate in his assignments). As a result, taking Plaintiff’s allegations as true, Plaintiff has
sufficiently distinguished between the public policy vindicated by the False Claims Act, and a
public policy for the promotion of public health and safety.
Nor do the cases Defendant cite persuade this court otherwise. Unlike the claims Plaintiff
makes here, the alleged harm complained of in those cases related to fraudulent billing of the
federal government, and not dangers to public health and safety. See Fauci v. Genentech, No. 06cv-10061-RGS, 2007 WL 3020191, at *4 (D. Mass. Oct. 12, 2007) (employee allegedly
discharged for challenging employer’s fraudulent Medicare billing and sales practices precluded
from making wrongful termination claim alongside False Claims Act retaliation claim); Dineen
v. Dorchester House Multi-Serv. Ctr., Inc., No. 13-cv-12200-LTS, 2014 WL 458188, at *4 (D.
Mass. Feb. 3, 2014) (employee allegedly dismissed for refusing to conform to employer’s
fraudulent Medicare billing policies precluded from making wrongful termination claim
alongside False Claims Act retaliation claim).
For the foregoing reasons, Defendant’s Motion to Dismiss Count IV of the First
Amended Complaint [#76] is DENIED.
IT IS SO ORDERED.

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Date: March 1, 2018

/s/ Indira Talwani
United States District Judge

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