2nd Circuit Sends N.J. Whistle-Blower Claims Back For Reconsideration

NEW YORK - A Second Circuit U.S. Court of Appeals panel on Nov. 17 affirmed summary judgment on federal False Claims Act (FCA) termination claims by former Pfizer executive Peter Rost but reversed judgment as to his claims under New Jersey's whistle-blower protection laws (Peter Rost v. Pfizer, Inc., et al., No. 09-4490, 2nd Cir.).

In 2009, Dr. Peter Rost, a former marketing vice president for Pfizer Inc. and predecessor Pharmacia Inc., sued the two companies and executives Marie Caroline Sainpy, Karen Katen, Jeffery Kindler and Henry McDonald in the U.S. District Court for the Southern District of New York, alleging that he was fired in violation of the FCA, the New Jersey Conscientious Employee Protection Act (CEPA) and New Jersey's public policy against wrongful employee termination.

Rost claims that his position was terminated because he voiced his concerns about Pharmacia's off-label marketing of the human growth hormone drug Genotropin.  Separately, Rost filed a FCA suit in the District of Massachusetts, which remains pending (United States of America, ex rel. Peter Rost v. Pfizer, Inc., et al., No. 03-11084, D. Mass.).

Judge George B. Daniels last year granted summary judgment in the New York case on all claims against Pfizer, Pharmacia and Sainpy. 

In a nonprecedential summary order, a panel of the Second Circuit affirmed summary judgment on Rost's claim under the FCA, saying Rost "presents no evidence that he took any action relevant under the FCA until he filed his qui tam action in June 2003."  The panel agreed with the District Court that Rost "failed to establish a prima facie case that the adverse employment actions taken against him were causally connected to his qui tam action."

However, the panel agreed with Rost that the District Court "misunderstood the scope of the CEPA" by examining if Rost made disclosures to "a supervisory or public body."  Citing language in the state statute, the panel said, "In fact, CEPA protects employees who disclose information 'to a supervisor or to a public body.'"

"Because Appellant alleges that he made disclosures to Sainpy and other supervisors within Pfizer, New Jersey law may recognize that Appellant engaged in protected activity beginning in Fall 2002 or Spring 2003," the panel said.

The panel expressed no views on whether summary judgment is appropriate on Rost's New Jersey state law claims but reversed summary judgment on those claims "to allow the district court to revisit whether Rost has raised a genuine issue of material fact on those claims."

In addition, because the parties agreed at argument that the only basis for federal jurisdiction is federal question jurisdiction, the panel said the District Court can consider whether it wants to exercise supplemental jurisdiction or remand the case to state court.

[Editor's Note:  Full coverage will be in the Dec. 2 issue.  In the meantime, the summary order is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844.  Document #28-101202-001Z.  For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]

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For more information, call editor Tom Moylan at 215-988-7739, or e-mail him at tom.moylan@lexisnexis.com.

Dodd-Frank whistleblowers are discussed in greater detail in 2 A.A. Sommer Jr.,  Federal Securities Exchange Act of 1934 Sec. 9.12 (Matthew Bender Rev. Ed.), "Specialized Treatment of Illicit Insider Trading," which can be accessed online by subscribers of lexis.com.  This treatise is also available in the LexisNexis online store.