3rd Circuit backs whistleblower in allowing retaliation suit against drug company to proceed
Mylan Pharmaceuticals won’t be allowed to dodge a retaliation suit filed by an ex-employee who claimed he was fired for being a whistleblower–at his previous job before he joined Mylan.
The Philadelphia-based 3rd U.S. Circuit Court of Appeals issued a short order affirming a lower court decision to allow Matthew Cestra’s retaliation lawsuit to proceed, the Legal Intelligencer (sub. req.) reported Thursday.
Cestra alleged that he had been identified by a pharmaceutical industry website in 2014 as a whistleblower who had filed a lawsuit in 2010 against his previous employer, Cephalon. Worried for his job at Mylan, Cestra claimed he had emailed his superiors in February 2014 and assured them that he wasn’t involved in any whistleblowing at Mylan, only to be terminated three months later for “performance issues.” Cestra then brought suit claiming Mylan had violated the anti-retaliation provision of the False Claims Act.
Mylan had argued in its court papers that the FCA did not apply to Cestra’s complaint because it only protected a whistleblower from retaliation by the company he or she was actually blowing the whistle on. “Few courts from other jurisdictions have analyzed similar issues, and no controlling precedent exists to determine the court’s resolution of this novel question of law,” Mylan said in its petition for appeal. The 3rd Circuit disagreed, but did not provide an explanation of its order.
“Generally in these cases there has to be substantial grounds for difference of opinion,” said Samuel Cordes, the attorney for Cestra, to the Legal Intelligencer. “Every other case out there supported the district court’s opinion.”
Mylan attorney Peter Wolff of Pietragallo Gordon Alfano Bosick & Raspanti did not return a call from the Legal Intelligencer seeking comment.
