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UPDATED: Judge’s Decision Johnson & Johnson’s Motion to Dismiss Federally Recognized Whistleblower’s Retaliation Claim Could Set Dangerous Precedent

UPDATED: Judge’s Decision Johnson & Johnson’s Motion to Dismiss Federally Recognized Whistleblower’s Retaliation Claim Could Set Dangerous Precedent

Updated: October and November 2017

Soon after the Judge ordered Johnson & Johnson’s unit to hear the retaliation claim (September 2017) stemming from my successful federal whistleblower case, the website, Killing My Career, unethically and likely illegally came under attack.

I received notice from Go Daddy with a bandwidth/memory usage warning. Fact-based evidence over time has proven that when the site receives these messages a malicious attack on the site is underway. It slows the site down in the short-term. Spam often used as a tool by unethical people who cannot legally remove negative truthful information from the site to try and unethically and illegally manipulate their SEO on Google.

This process is time consuming to stop and not always easy to catch. This also causes damage to the site and to my business.  The damage was already done removing Johnson & Johnson’s name and the most popular stories linked to the site on the right half of the main Google page.  The unethical and likely illegal retaliatory attack was stopped but can still be found trolling the site category by category and page by page to manipulate the SEO. This spam attack originated in Washington DC.

Not unlike the recent development in the Harvey Weinstein case, where it’s been reported that his high-priced attorneys tried to suppress negative truthful information using unethical tactics of lying to victims to gain their trust and use the information against them. It’s no only insulting, demeaning and threatening it’s retaliatory.

Johnson & Johnson’s attorneys, Covington LLP are based in Washington, DC. I met with Covington last year November in their offices to give a deposition.

 

 

Updated: September 20, 2017

Law360

Motion to dismiss update:

Conclusion: For the foregoing reasons, the defendant’s motion to dismiss the complaint is GRANTED with respect to Johnson & Johnson, but DENIED with respect to Acclarent.  Donald L. Cabell U.S.M.J.

For those playing along at home:

“We are pleased with the decision, which confirms that internal reporting of health care fraud that leads to false claims has “always” come within the scope of protected conduct. Defendants tried to argue that a recent appellate decision narrowed the protection for whistleblowers, but Judge Cabell’s careful decision rejected this argument.  The decision also cited a consistent line of “compelling” cases that similarly refused to shrink the scope of protected activity for pharmaceutical and medical device whistleblowers.  Defendants somehow overlooked these cases when they filed their motion to dismiss.

 Yesterday’s decision is important because it comports with Congress’s intent to maintain and even strengthen whistleblower protection. If pharmaceutical and medical device companies are permitted to retaliate against health care fraud whistleblowers and blacklist them from ever working again, fewer whistleblowers will come forward and our health and ability to control health care costs will suffer.
While we would have liked to have seen J&J and Ethicon remain in the case, we think discovery will show that these companies played a role in the retaliation against Ms. Lokosky.”
Ilyas J. Rona-Delaney Kester LLP

 

Does the Federal Courthouse in Boston have a leaking problem?

And it looks like our friends at white collar crime firm Wilson, Sonsini, Goodrich, and Rosati (WSGR), may have been tipped off ahead yesterday’s decision as they were on my site the afternoon before (9-19-2017) saved to their own server.  WSGR, in part, defends former Johnson & Johnson, Ethicon Acclarent’s federally convicted executives William (Bill) Facteau and Patrick (Pat) Fabian where the decision is currently under appeals in Judge Allison D. Burroughs Boston courtroom. Many have asked why the judge hasn’t sentenced Facteau and Fabian pending the appeal and I wish I had an answer for them. Let her know here that’d you’d like her to sentence the convicted pending their appeals.

It is interesting to note the file they saved it under is clients$.  The dollar sign is subtle but, at what they’re rumored to charge per hour, I guess it’s accurate. It also shows they’re specifically looking for information on Patrick W. Fabian on my site.  You’d think with all the “$” WSGR has made off of Facteau and Fabian, their attorneys would be a little smarter than to save my site to their work server.

I’d also think that the both Judge Donald L. Cabell and Judge Allison D. Burroughs might want to speak to the person attached IP at 96.86.92.173 WSGR it see if there’s an unethical and illegal leak in their courtrooms.

#ForcedAccountability

On an interesting side note, I was previously #TwitterBlocked from WSGR, who it appears no longer has a Twitter account.

It will be interesting to see how quickly my stalkers from a non-related industry post this on Medtechy with disparaging remarks.  Since people related to the case have all known about it for 24 hours and didn’t post anything, it’s easy to prove who has been harassing my family and myself online.

Unhinged, Unrelated to Industry, Internet Stalker #CaseStudy---->

Updated: 9/21/2017 3:08 pm

Look for highly explosive, abusive and in my case sexist comments to appear quickly after the stalker became aware of new information. He’d like others to think that he’s part of the Acclarent “team” but it becomes very clear that this person is of lower intelligence and is plagued with constant insecurities, feelings of inadequacy and inferiority.

Again, the people associated with the actual retaliation case, have very expensive and talented, albeit slimy white collar crime attorneys. I’ve seen them in action for six weeks at the criminal trial of Facteau and Fabian.  They wouldn’t use such obvious tactics as below; and, they’ve known I was the whistleblower since 2012-2013, unlike my internet stalker.

We also know they likely knew of the judge’s decision a day (September 19) before it became official (September 20) and the internet harassment didn’t start until (September 21), when someone unrelated to the case became aware of the information.

In fact, I’m guessing those defending the convicted criminals involved in my FCA and subsequent Retaliation Claim (H-Claim)  were told not to post anonymously or engage on social media.  Facteau and Fabian are facing federal prison, whoever is stalking me is clearly unrelated to the case but has a serious case of #FraudEnvy and falsely sees himself as an equal or akin to the frauds in my case.  He somehow feels that I’ve previously wronged him, likely for calling out his own unethical and or illegal behavior and cowardly attaches himself to the current situation to quell his inability to successfully prevail in any other way.  It’s pathetic and he’s pathetic.  I’ve given a psychological profile before but it’s worth repeating:

Category: Abusive

Subcategory: white, male, between the ages of 30-50, substance abuse problem, problems with the law, sexist & racist, lower intelligence, inferiority complex .

[caption id="attachment_51674" align="alignnone" width="1024"] This is how unethical people doing illegal things respond to #ForcedAccountability. Profiling would again indicate it’s an abusive, white, overweight, sexist male, with substance abuse problems. Too bad ladies I bet he’s not single but I bet his wife wishes she was.[/caption]

As predicted by The Sociopathic Business Model™ someone who, has poor behavioral control, and is unrelated to this case, could not help but to respond to my favorable news today. A charmer for sure.  Fortunately, Medtechy is well aware of the situation and removed the post immediately but, not before I had the opportunity to take a screen shot. I anticipated who would post and exactly when and was 100% correct that they could not resist in posting something negative, derogatory, and sexist. This was a skill that was successfully taught to me over the last six years.

Look for inconsistencies in the stalkers information as it relates to information you and others in your industry know to be true to give signs to their identity.

Updated September 22, 2017 : Anyone working in the industry or who worked with me specifically at Acclarent would know we didn’t work in “teams,” again proving this person is from outside the industry as is pointed out below.  Which is an absolute trigger, being corrected and made to feel foolish by what he falsely perceives as peers, creates the next predictable post.

[caption id="attachment_51687" align="alignnone" width="1024"] This is classic stalker, pretending he didn’t make the previous posts, embarrassed he was called out for his obvious blunder, and that he’s “another” person on the anonymous board. Trying to justify the incorrect use of “team” while now changing the topic to people not liking me, is a classic tactic from The Sociopathic Business Model ™. It’s what people do when they don’t want to be held accountable for previous action or statements. They deflect. It’s very common in the unregulated marketing coaching industry.  It’s irrelevant but of course people didn’t like me. There’s a name for people who don’t like when people expose negative truthful information, they’re called criminals.[/caption]

[caption id="attachment_51680" align="alignnone" width="1024"] Updated: September 23, 2017 Again, anyone who ever worked with me at Acclarent would know this is a false statement.[/caption]

April 11, 2017

(Boston-Federal Court)

Johnson & Johnson’s (JNJ) motion to dismiss a retaliation claim stemming from from a False Claims Act case was heard in a Boston Federal court yesterday under Judge Donald L. Cabell.  The same FCA complaint against Johnson & Johnson’s subsidiary Acclarent where the United States Department of Justice disgorged $18 million from the companies for  Medicare fraud, the FDA demanded the removal of device, the Stratus Microflow Spacer & any associated clearances, and two executives were convicted on 10 counts of selling and distributing a drug delivery device without FDA approval.

Reps were asked to destroy all marketing materials as it related to Stratus Microflow Spacer in a company-wide conference call in March 2010. Months after Johnson & Johnson purchased the company and knowingly & willingly were complicit with continuing to commit healthcare fraud.

So, an intelligent reader could certainly ascertain that the whistleblower, in this case–the sole person, who brought this matter to the attention of both Johnson & Johnson and DOJ/FDA would be retaliated against by the company for exposing the negative truth JNJ would rather have remained hidden.  In full disclosure, I am that whistleblower and the plaintiff in the above mentioned retaliation claim that Johnson & Johnson is so desperately trying to dismiss.  Outside of the obvious of having skin in this game, killing my career (hey isn’t that the name of this website) by coming forward isn’t about money it’s about holding the company accountable and the only ways pathologically corrupt companies like Johnson & Johnson respond is through public pressure (tied to image=profits), legal intervention tied to fines and for good measure getting an executive or two tossed in jail.  Part of the legal intervention is repayment for what’s been taken. JNJ, has been made a deal with DOJ and in turn FDA, but they did not cut a deal with me. Meaning they must be held accountable for taking my livelihood or the courts run the risk of discouraging whistleblower from coming forward.

In a quote a I gave to Law 360 yesterday, I echo that same grave concern for all whistleblowers.  When a case is so cut and dry as this one: Acclarent, in a 2004 patent, created what was to become the Stratus Microflow Spacer, as a drug delivery system. The company only got FDA clearance for saline but knowingly and willingly taught and instructed each rep to sell 100% off-label, never selling a single device on-label (medical devices are cleared not approved as Judge Cabell misstated in court yesterday).

This means that any concern any rep brought up to the company regarding the Stratus Microflow Spacer was a protected act under the False Claims Act since every single person in the company knew that any insurance claims being made were in fact false.  That was taught to us prior to the launch of the device. The goal for any medical device is to get CMS (Medicare & Medicaid) to cover the device so eventually private insurance will follow suit.  It was unethical, from the reps point of view, to sell the device on-label, when we knew it didn’t work for the way FDA cleared the device.  Acclarent co-founders Josh Makower and John Chang forced every rep to commit fraud when they made the decision to use innovation as a manipulation to evade FDA law and ultimately put their own greed ahead of their employee’s & in-turn consumer’s needs.

It is inconsistent for a company to knowingly and willingly commit fraud from the onset and then the same company (and now parent) to say that the person responsible for exposing the fraud, who raised concerns internally, was not retaliated against when they wrongfully terminated them.

Johnson & Johnson/Acclarent made a point when they wrongfully terminated me right before a National Sales Meeting in January 2011, they sent a message to all other employees to not come forward or the same would happen to them.  Judge Cabell’s decision could send the very same message to all whistleblowers if he grants Johnson & Johnson’s motion to dismiss.

 

1 Comment
  • M
    Reply

    Please continue to write about what this company has done to the public and how they treat their employees. If they were smart they would settle. It would be obvious to any jury what they did to you and I believe would also be very sympathetic towards you and not the group who has convicted criminals. Are they saying your firing was just a coincidence?

    If this judge allows J&J to get away with this it will show employers they can retaliate against whistleblowers without being held accountable.

    April 15, 2017 at 5:08 pm

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