Kim Gale  |  November 27, 2019

Category: Legal News

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A woman in an office looks worried.A former top Biogen salesperson has been awarded almost $6 million in a False Claims Act lawsuit by a Seattle federal jury who found she was punished for reporting violations of medical sales laws.

Plaintiff Danita E. alleged she was also the victim of sex discrimination, a situation that came to light after she reported a colleague was promoting a drug for off-label use. According to an article from Becker Hospital Review, Danita alleged she was being encouraged to sell Zinbryta for off-label use to a hematologist who would have used the drug to treat a patient suffering from aplastic anemia, a blood disorder. Zinbryta was not FDA-approved to treat any condition other than multiple sclerosis.

Under federal law, doctors are allowed to prescribe medications for off-label use, but pharmaceutical companies are only allowed to promote the use of the drugs as approved by the U.S. Food and Drug Administration. Drug companies have been held accountable for illegally promoting drugs for an off-label use. Some have had to pay more than a billion dollars in fines for violations.

Retaliation Under the False Claims Act

Danita said she knew that Zinbryta contained a black box warning from the FDA, which is placed on medications with only the most serious potential side effects. Just prior to Danita’s firing in March 2018, Zinbryta was taken off the market due to a dozen reports of brain inflammation, three of which reportedly resulted in death.

She allegedly reported the illegal sales effort that was made by a Biogen colleague by calling the company’s “corporate integrity hotline.” Instead of stopping the illegal sale, Biogen allegedly retaliated against Danita, by firing her in March 2018.

Under the anti-retaliation provisions of the False Claims Act, an employee who blows the whistle on illegal activity cannot be discharged, demoted, harassed or in any way discriminated against as a result of the employee reporting the fraudulent activity.

Danite argued her firing was an illegal act of retaliation for reporting the off-label promotion. Prior to being fired but after reporting the colleague’s misbehavior, Danita alleged she received reviews that went from being very positive about her performance to negative reviews that placed her “on a list of bottom performers.”

She also told of a business trip with her supervisor during which Danita suffered from a migraine. Some sales appointments were held later in the week than planned so that she could recover, and she said her supervisor never let her forget that he believed her migraines interfered with her ability to perform her occupation.

In a broader claim for sex-based discrimination, Danita said Biogen has a culture that hinders women from receiving credit for their accomplishments, and appears to keep women from advancing. She provided the example that the opportunity to receive national recognition by serving on a nationwide committee.

Danita’s award breaks down as $390,000 in past economic damages, $2.14 million in future economic damages, and $1.69 million in noneconomic damages. She also was awarded punitive damages in the amount of $1.69 million, but her lawyer said that amount could be cut to $300,000 due to a cap on statutory damages.

The False Claims Act Lawsuit is Case No. 2:18-cv-01029, in the U.S. District Court for the Western District of Washington.

In general, whistleblower and qui tam lawsuits are filed individually by each plaintiff and are not class actions. Whistleblowers can only join this investigation if they are reporting fraud against the government, meaning that the government must be the victim, and that the alleged fraud should be a substantial loss of money.

Do YOU have a legal claim? Fill out the form on this page now for a free, immediate, and confidential case evaluation. The attorneys who work with Top Class Actions will contact you if you qualify to let you know if an individual qui tam lawsuit or whistleblower class action lawsuit is best for you. Hurry — statutes of limitations may apply.

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This article is not legal advice. It is presented
for informational purposes only.

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