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Drug saleswoman's firing upheld, despite her claims of illegal conduct by employer

Lynn Morrison was fired from her job as a drug sales-person.  She claimed it was because she refused to illegally market drugs for off-label purposes.  When the FDA approves a drug, it is for certain "approved", and theoretically "proven," treatments.   A doctor can still prescribe the drug for "off-label," i.e. unproven and unapproved treatments, but the drug manufacturer cannot market the drug for these uses.  Her employer claimed that Morrison's termination was based solely on her poor performance.

The Court concluded that while she did complain about pressure to illegally market drugs for off-label use, Morrison's firing would be upheld because Michigan law requires direct proof of illegal motive and she could not prove that her complaints of illegal conduct "caused" her firing.  The Court acknowledged that Morrison was a nine year employee who had been promoted more than once and who "took quite seriously the legal and ethical requirements" of her job.  As a "senior critical care specialist" she first raised concerns about illegal marketing in a 2000 intra-company e-mail.  While Morrison was not disciplined for her refusal to participate in the 2000  off-label marketing scheme, other employees who did secure off-label sales were formally "congratulated" by the company.  In 2004 she refused to sign a Statement of Compliance form that would have attested that she was not aware of  any illegal off-label activity, and at the company's request, she made a complete report of her reasoning.  She continued to receive positive reviews from her immediate supervisor, until she refused to participate in a customer's demand for illegal kickbacks in 2006.

After yet another documented instance of Morrison appropriately objecting to off-label marketing efforts, she was placed on probation in 2006, and given what she immediately claimed were unattainable sales goals for three particular products.  The employer claimed that her probationary status was based not on her ethical complaints, but rather on her difficult interactions with customers.  In the next calendar year, she exceeded sales goals on most of her products, but failed on the three products she had described as unreasonable.  She had no further customer complaints, but was criticized again for an "abrasive" intra-company memorandum, and fired.  The Court upheld the firing because the Michigan law requires more proof of illegal retaliation than mere proximity in time.  Since Morrison could not produce a "smoking gun" where the employer admitted its illegal motivation, the trial court felt compelled to dismiss her claim.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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