HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, December 3, 2005

Pfizer Gives Boot to Whistleblower

The NY Times reported yesterday that Pfizer had terminated the employment of its Vice-President for Marketing Peter Rost "after a federal judge in Boston unsealed a lawsuit Mr. Rost filed in June 2003 against Pfizer, asserting that Pharmacia, a drug maker Pfizer bought in April 2003, illegally promoted the sale of human growth hormone for unauthorized uses."

As The Times reports:

Mr. Rost contends that Pharmacia offered doctors illegal inducements to use genotropin, its growth hormone, as an anti-aging drug for adults. The Food and Drug Administration has not approved human growth hormone for that purpose, and drug makers are not supposed to promote their products for purposes that have not received approval.

The fact that the suit was unsealed is actually a positive development for Pfizer, because it indicates that the government has chosen not to participate in the suit alongside Mr. Rost. Whistle-blower lawsuits typically remain secret when the government participates.

For those of you who want to dig a little deeper, the Docket Number is 1:03-CV-11084-JLT (D. Mass.; Judge Joseph Tauro and Magistrate Judge Robert Collings). 

Meanwhile, on Dec. 1 Pfizer filed a motion to dismiss (Motion_to_dismiss.pdf) based largely on the affidavit of one of its attorneys (Posner_affidavit.pdf) to the effect that Rost's False Claims Act qui tam action was based upon facts previously disclosed to the government.

So, here's my question: How can Pfizer fire Rost, after the U.S. declines to intervene in Rost's qui tam action but while Rost's action against Pfizer is still pending, in light of the following language in 31 USC § 3730(h):

(h) Any employee who is discharged . . . by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole. Such relief shall include reinstatement with the same seniority status such employee would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees. An employee may bring an action in the appropriate district court of the United States for the relief provided in this subsection.

Pfizer can argue that it didn't fire Rost because of his prosecution of the qui tam action, but that looks like an uphill battle in light of the sequence of events. [tm]

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