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False Claims Act and Whistleblower Retaliation – Legal Analysis of United States v. Novartis

In our previous blog post, we began the discussion of the recent Whistleblower Protection case of United States v. Novartis, where the employee (“Relator”) became concerned that his employer was engaged in a possible illegal kickback scheme with another company, Express Scripts, Inc. (ESI).

The concern, based on the relator’s observations, was that Novartis agreed to discount the price of a certain drug, so that ESI would be sure to keep the drug on its list of medications reimbursed by both Medicare Part D and commercial insurance companies.  In short, there was an appearance that Novartis was giving ESI a discount so that it could continue to have its drug reimbursed by both, which would inure to the disadvantage of Medicare.

The relator expressed his concerns to his supervisor at Novartis.  His supervisor, however, disagreed with relator’s concerns.  Not long thereafter, the relator was terminated from his job.  Up to that point, the relator had received only glowing performance reviews at his job.

The relator then filed a qui tam lawsuit in federal court against Novartis and ESI.  Both defendants filed a motion to dismiss the relator’s lawsuit.  The court granted defendants’ motion, but the relator was able to amend his lawsuit, focusing his lawsuit on the claim that he was fired from Novartis in retaliation for voicing his concerns about the Novartis-ESI deal.  Defendants filed another motion to dismiss.

Given that the case is only at the motion to dismiss stage, the court is required to view the facts alleged by the relator as true for purposes of the motion.  The main issue at play in the deciding the motion is whether the relator’s meeting with his supervisor is sufficient to trigger protection from retaliation under the False Claims Act.

The District Court’s Analysis

 The first thing the court had to do was determine whether the two elements of retaliation existed in the relator’s lawsuit.  In short, the court had to determine (1) whether the relator engaged in protected conduct, and (2) whether the relator suffered discrimination because of that protected conduct.

Engaging in Protected Conduct

With regard to this element, the court must look at whether the relator’s internal report of False Claims Act (FCA) violations was “protected conduct.”  The court, thus, looked at the meeting between the relator and his supervisor, in which the relator:

  • Conveyed his concerns to his supervisor about how the recent increase in disparity between prices charged for Gilenya on the commercial formulary versus the price charged on the Part D formulary would reveal it as a “swap;”
  • Explained how the “swap” would expose him and Novartis to government prosecution; and
  • Stated he did not want to go to jail.

The court found that the totality of these statements constituted an “employee’s internal report of FCA violations,” and therefore, was protected conduct.

Discrimination Due to Protected Conduct

The next question was whether Novartis retaliated against the relator for expressing those concerns.  The court noted that just prior to the relator’s discussion with his supervisor, the relator had received outstanding performance reviews.  It also observed that the time between the relator’s termination and his discussion with his supervisor was reasonably short.  Putting these two facts together, the court found it could reasonably be concluded that the relator was fired for expressing his concerns to his supervisor.

The Court’s Decision

Accordingly, the court held that the relator’s lawsuit could go forward.  The facts alleged in the relator’s complaint were sufficient to set forth a claim for retaliation under the FCA.  Therefore, it denied the defendants’ motion to dismiss.  What that means is that the relator will now be allowed to gather more information through the discovery process in the lawsuit, and ultimately bring his case before a jury.

Conclusion

There is a solid foundation to the court’s decision.  An employee with an outstanding track record of performance expressed his concern to his employer that the employer’s conduct was a kickback. A short time later, the employee was fired.  Those fact do appear to demonstrate possible retaliation.

Notably, to pursue an action for retaliation under the FCA, it is neither necessary to actually file a qui tam claim nor is it required to express concerns publicly – internally relaying concerns can be sufficient to proceed with a claim for retaliation under the FCA.

If you have any further questions about this or any other inquiries about retaliatory discharge or Whistleblower Protection – in connection with Healthcare Fraud, please contact the Whistleblower Firm – Nolan Auerbach & White, LLP. We have the resources and dedication to protect healthcare fraud whistleblowers.   Contact us online or by calling 800-372-8304 today.

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