DIFIORE v. CSL BEHRING, U.S., LLC et al

Filing 18

MEMORANDUM AND ORDER THAT DEFENDANT CSL BEHRING LLC'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND TO STRIKE PLAINTIFF'S PRAYER FOR PUNITIVE DAMAGES IS DENIED; ETC.. SIGNED BY HONORABLE GERALD A. MCHUGH ON 9/17/14. 9/17/14 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARIE DIFIORE,
Plaintiff,
v.
CSL BEHRING, U.S., LLC and
CSL BEHRING, LLC,
Defendants.

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CIVIL ACTION
No. 13-05027

MEMORANDUM
McHugh, J.

September 17, 2014

This is an employment action brought by a former employee of a pharmaceutical company,
who alleges she was forced out of her job for acting as a whistleblower. The question before me is
whether plaintiff’s claims under Pennsylvania common law are viable.
Defendant CSL Behring is a pharmaceutical company that produces and markets plasma
protein biotherapeutics. Plaintiff Marie Difiore was hired by the Defendant, CSL Behring, in 2008
as an Associate Director of Marketing. She was later promoted to Director of Marketing. Ms.
Difiore’s duties as both Associate Director of Marketing and Director of Marketing involved the
commercialization and launch of three pharmaceutical products: RiaSTAP, Beriplex, and Corifact.
RiaSTAP is used to treat acute bleeding episodes in patients with congenital fibrinogen
deficiency. Beriplex is designed to allow rapid reversal of the effects of vitamin K antagonists,
which is often required in cases of emergency surgery and life-threatening bleeding. Corifact was
approved by the FDA for treatment of a congenital condition known as Factor XIII Deficiency.
Ms. Difiore alleges that CSL Behring had planned to market and encourage “off-label,”
unapproved use of RiaSTAP. Compl. ¶ 20. She cites a marketing presentation for which Senior
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Director of Marketing Janice Cannizzo insisted she use a template that included market share
penetration for off-label procedures. ¶ 22. According to Plaintiff, revenue from off-label procedures
was included by CSL Behring in evaluating return on investment. ¶ 22. Ms. Difiore also alleges that
the revenue from off-label procedures was used in sales/manufacturing reports and forecasts, ¶¶ 23–
25, and that she objected and requested to be absolved from these activities. ¶ 25.
Ms. Difiore alleges that Dr. Ingolf Sieper was promoted to lead Global Commercial
Operations, and, shortly thereafter, CSL Behring began to push RiaSTAP for acquired bleeding—an
unauthorized use of the drug. ¶¶ 26–29. Ms. Difiore claims to have opposed this practice, but was
ignored. ¶ 30. She further claims that the company made clear that she was expected to support the
marketing of RiaSTAP for the unapproved use of acquired bleeding, despite her strong objections.
¶¶ 32–36.
CSL Behring partnered with Rotem, a manufacturer of lab instruments designed to diagnose
coagulation irregularities. According to Plaintiff, when a Rotem instrument revealed a deficiency,
Rotem sales personnel would suggest an off-label use of RiaSTAP to address it. ¶ 38. Ms. Difiore
alleges that CSL Behring made strong collaborative efforts with Rotem, including the sharing of
business plans and training of Rotem sales personnel. ¶¶ 39–42. Ms. Difiore further alleges that her
objections to meetings dealing with off-label use of the drug led to criticism from her superiors and
rescinded invitations from certain meetings. ¶¶ 44–46. She also notes numerous other occasions
where she objected to these practices.
Plaintiff goes on to allege that these inappropriate promotional practices extended to the
drug Beriplex as well. ¶ 54. She contends that senior management made a decision in a meeting to
delay reporting of two adverse events associated with the Beriplex phase III testing. ¶ 59. The
decision was ultimately reversed, but Ms. Difiore claims it is documented in a PowerPoint
presentation. ¶¶ 61–62.
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Ms. Difiore asserts additional unethical and illegal conduct to which she objected. She states
that she reviewed a draft of a research and development presentation to be presented to potential
investors. ¶ 68. The report contained misleading information that prompted Ms. Difiore to raise
complaints for which she was chastised. ¶¶ 69–72. She further alleges that CSL Behring has sought
to mislead investors with regard to the Beriplex reporting. ¶ 73. In 2011, CSL Behring had several
antitrust lawsuits pending that alleged the company had conspired to restrict the output of blood
plasma to artificially control the process of plasma derived protein therapies. ¶ 74. Ms. Difiore had
attended a conference in Brussels as U.S. CSL Plasma Protein Therapeutics Association
representative. ¶ 74. She contends that, while at dinner, she had to excuse herself several times to
avoid an inappropriate conversation in which Albert Farragia, Vice President of Plasma Protein
Therapeutics Association, began to disclose information to George Henckle, Director of
Commercial Development/Critical Care. ¶¶ 75–76. When Ms. Difiore reported the matter to Ms.
Cannizzo, no further action was taken with regard to the matter. ¶ 77.
In December 2011, the company initiated an audit process during which Ms. Difiore alleges
she shared her concerns with the auditors. ¶ 63. She claims that efforts to retaliate against her
increased significantly after this. ¶ 65. Additionally, she states that she began to consistently raise
her concerns in writing at the end of 2011. ¶ 79. As a result, she alleges management constructively
terminated her by berating her, citing her for poor performance, and creating unobtainable
performance objectives. Ms. Difiore claims that the workplace became hostile and abusive, causing
her negative health effects and ultimately forcing her to leave her employment.
Defendant CSL Behring now seeks to dismiss Count II of the complaint, a common law
claim for wrongful termination, and correspondingly strike the Plaintiff’s prayer for punitive
damages. Two issues are presented: (1) whether the state law wrongful termination claim is pre-

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empted as a matter of law, and (2) whether plaintiff has adequately pled her wrongful termination
claim.

I.

Preemption of Wrongful Termination Claim
Plaintiff raises a federal claim under the anti-retaliation provision of the False Claims Act

(FCA), 31 U.S.C. § 3730(h), which provides for a variety of remedies, including damages. 31
U.S.C. § 3730(h)(2). Plaintiff also asserts a claim for wrongful discharge under Pennsylvania
common law. In Pennsylvania, common law claims for wrongful discharge are only available where
“there is no statutory remedy for the alleged retaliatory discharge.” United States ex rel. Budike v.
PECO Energy, 897 F. Supp. 2d 300, 326 (E.D. Pa. 2012); McAlee v. Independence Blue Cross, 798
F. Supp. 2d 601, 604 (E.D. Pa. 2011) (finding that remedies available under the Uniformed Services
Employment and Reemployment Rights Act (USERRA) preempt a Pennsylvania wrongful
discharge claim); DeMuro v. Philadelphia Housing Authority, CIV. A. 98-3137, 1998 WL 962103
(E.D. Pa. Dec. 22, 1998) (finding a Pennsylvania wrongful discharge claim preempted by the
Pennsylvania Whistleblower statute for the same reason).
Where the facts underlying the wrongful discharge claim are identical to the facts underlying
the FCA retaliation claim, the wrongful discharge claim will typically be preempted. See Budike,
897 F. Supp. 2d at 327. In contrast, if the underlying facts are “completely independent and
unrelated” to the allegations that fall within the statutory remedy, no pre-emption exists. See, e.g.,
Katzenmoyer v. City of Reading, Pa., 158 F. Supp. 2d 491, 504–05 (E.D. Pa. 2001).
CSL argues here that there is no distinction between the facts alleged in support of Ms.
Difiore’s federal statutory claim and those supporting her claim under Pennsylvania common law.
Defendant relies heavily upon language within Count II of the Complaint dealing with wrongful
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termination. Compl. ¶¶ 111–15. While ¶ 113 mentions the off-label promotions that fall within the
FCA and ¶ 114 mentions false claims also within the FCA, ¶ 112 mentions only unethical and
illegal activity in violation of Pennsylvania public policy. Additionally, the Plaintiff makes
numerous factual allegations regarding activities that may not fall under the FCA, and are
independent from the off-label promotion alleged. See Pl. Sur-Reply Br. 2. Based on these
pleadings, it does not appear as though the FCA statutory claim should be held to preclude the
common law wrongful discharge claim, at least at this point. CSL Behring can revisit this issue
through summary judgment should discovery not establish the existence of distinct claims.

II.

Validity of Wrongful Termination Claim as a Matter of Law
Traditionally in Pennsylvania, “there is no common law cause of action against an employer

for termination of an at-will employment relationship.” Weaver v. Harpster, 601 Pa. 488, 500, 975
A.2d 555, 562 (2009). There is an exception to this rule when “discharges of at-will employees
would threaten clear mandates of public policy.” Id. at 501, 975 A.2d at 563. Public policy in
Pennsylvania is determined “by examining the precedent within Pennsylvania, looking to [the
Pennsylvania] Constitution, court decisions and statutes promulgated by [the Pennsylvania]
legislature.” McLaughlin v. Gastrointestinal Specialists, Inc., 561 Pa. 307, 316, 750 A.2d 283, 288
(2000). To prevail, a plaintiff must show more than a possible violation of a federal statute. Id. at
317, 750 A.2d at 289. Rather, a plaintiff must show that a policy of the Commonwealth of
Pennsylvania is “implicated, undermined, or violated” by the employee’s termination. Id., 750 A.2d
at 289.
There appear to be three limited circumstances in which public policy will trump
employment at-will. “[A]n employer (1) cannot require an employee to commit a crime [and fire the
employee for refusing to do so], (2) cannot prevent an employee from complying with a statutorily
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imposed duty, and (3) cannot discharge an employee when specifically prohibited from doing so by
statute.” Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 111 (3d Cir. 2003) (quoting Hennessy v.
Santiago, 708 A.2d 1269, 1273 (Pa. Super. 1998)); Mikhail v. Pennsylvania Organization for
Women in Early Recovery, 63 A.3d 313, 317 (Pa. Super. 2013); Moyer v. Kaplan Higher Educ.
Corp., 413 F. Supp. 2d 522, 528 (E.D. Pa. 2006); Diberardinis-Mason v. Super Fresh, 94 F. Supp.
2d 626, 629 (E.D. Pa. 2000). As recognized by the Third Circuit in Fraser, the critical case is Shick
v. Shirey, 552 Pa. 590, 559–600, 716 A.2d 1231, 1235 (1998), where the Supreme Court held that
“‘public policy’ is not limited to ‘that which has been legislatively enacted.’” Fraser, 352 F.3d at
111–12. Or, as the rule was formulated by the Pennsylvania Superior Court, “[o]utside of those
categories of [the Pennsylvania] legislature's expression of public policy, a court may find a public
policy ‘is so obviously for or against public health, safety, morals, or welfare that there is a virtual
unanimity of opinion in regard to it.’” Mikhail, 63 A.3d at 317 (quoting Weaver, 601 Pa. at 502,
975 A.2d at 563).
I am persuaded that Ms. Difiore has alleged more than violation of the False Claims Act.
The Pennsylvania Superior Court has held that a violation of public policy can occur when an
employer requires an employee to commit a crime. See Hennessy, 708 A.2d at 1273; Mikhail, 63
A.3d at 317. Plaintiff has pleaded that her termination resulted from her “refusal to engage in
unethical and illegal activity,” Compl. ¶¶ 111–12, and some of the conduct alleged could qualify as
a violation of 18 Pa. Cons. Stat. § 4107, even though Plaintiff did not specifically cite that statute in
her complaint.
CSL also argues that internal reports to an employer are insufficient to state a claim for
wrongful discharge, absent evidence that such a report would undermine the workings of a
Pennsylvania agency, or some statutory mechanism. That argument is inapplicable under the
circumstances of this case. Plaintiff is not alleging that she was fired because of internal reports or
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complaints she made, but rather for “her refusal to engage in unethical and illegal activity.” Compl.
¶¶ 111–12. McLaughlin, the case upon which CSL relies, does not stand for the proposition that a
plaintiff must always file a complaint with a Commonwealth agency in order to maintain a valid
claim for wrongful discharge. Rather, McLaughlin reiterates the point made in Shick: that a firing
in retaliation for a complaint made to a Commonwealth agency would constitute a violation of
Pennsylvania public policy. 561 Pa. at 316–17, 750 A.2d at 288–89. It does not make such an
administrative complaint mandatory where a plaintiff can point to a Pennsylvania “statute,
constitutional premise, or decision” that is undermined by her termination. Id. at 316, 750 A.2d at
288.

III.

Availability of Punitive Damages
Viewed against the allegations in the complaint, dismissal of punitive damages claims at this

juncture is premature. Punitive damages have been awarded in wrongful discharge claims in
Pennsylvania. See, e.g., Rue v. K-Mart Corp., 691 A.2d 498 (Pa. Super. 1997); McGonagle v.
Union Fidelity Corp., 556 A.2d 878 (Pa. Super. 1989). Plaintiff has the right to develop her case
through discovery before the court rules on the propriety of a punitive damages claim.

/s/ Gerald Austin McHugh
United States District Court Judge

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