Summary: Mylan Pharmaceuticals is fighting what the False Claims Act protects against because of a lack of similar cases instead of proving that they didn’t fire an employee in retaliation.
A case of retaliation against a former employee is being allowed to move forward after the company Mylan Pharmaceuticals’ appeal was turned down by the U.S. Court of Appeals for the Third Circuit. The ex-employee Matthew Cestra claims he was fired for being a whistleblower in a suit against a previous employer.
Cestra is filing under the protection of the anti-retaliation provision of the False Claims Act. He was employed with Mylan for almost three years from September 2011 to May 2014, even rising to vice president of marketing. A whistleblower complaint that he had filed in 2010 against his former employer, Cephalon, was eventually released in 2014 on a pharmaceutical industry website. He was concerned that there may be repercussions with Mylan so he immediately contacted his superiors in February 2014 to tell them that there was no whistleblowing case involving Mylan. He was fired May 8, 2014. Mylan’s reason for firing him was poor performance but he argues that his performance has not changed.
Mylan also argues that his claims don’t fall under the FCA because it is not a case of first impression and has already appealed the district court’s rejection to dismiss the case. In their appeal Mylan stated “There is substantial ground for difference of opinion as to whether plaintiff’s claims are covered by the FCA in light of the fact that this is an issue of first impression within this circuit.” Mylan believes there is a conflict of how the FCA applies in this case but they have not provided example of this conflict.
Cestra is being represented by Samuel J. Cordes. Mylan is represented by Peter S. Wolff of Pietragallo Gordon Alfano Bosick & Raspanti.
Source: http://www.thelegalintelligencer.com/home/id=1202732200296
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