Johnson & Johnson’s Motion to Dismiss Federally Recognized Whistleblower’s Retaliation Claim Could Set Dangerous Precedent
April 11 2017
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.
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.