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
In a nonprecedential summary order, a panel of the Second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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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
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