Brune v. Takeda Pharm. U.S.A., Inc.

• Decision Date: 25 November 2019
• Docket Number: CAUSE NO. 1:18CV298-LG-RHW
• Court: U.S. District Court — Southern District of Mississippi
• Parties: JANA BRUNE PLAINTIFF v. TAKEDA PHARMACEUTICALS U.S.A., INC.; TAKEDA PHARMACEUTICALS AMERICA, INC.; and JOHN & JANE DOES 1-5 DEFENDANTS

JANA BRUNE PLAINTIFF v. TAKEDA PHARMACEUTICALS U.S.A., INC.;TAKEDA PHARMACEUTICALS AMERICA, INC.; and JOHN & JANE DOES 1-5 DEFENDANTS

CAUSE NO. 1:18CV298-LG-RHW

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION

November 25, 2019

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT

BEFORE THE COURT is the [45] Motion to Dismiss Plaintiff Jana Brune's Second Amended Complaint filed by Defendants Takeda Pharmaceuticals U.S.A., Inc. ("Takeda USA") and Takeda Pharmaceuticals America, Inc. ("Takeda America"). The Motion argues that Brune's Second Amended Complaint should be dismissed because she fails to state a claim for which relief may be granted. Having considered the submissions of the parties, the record, and relevant law, the Court concludes that Defendants' Motion to Dismiss should be granted. Plaintiff's claims will be dismissed with prejudice.

I. BACKGROUND

Jurisdiction in this case exists under 28 U.S.C. § 1332. (See Order Den. Mot. Remand, ECF No. 16.) In a [41] Memorandum Opinion and Order dated July 24, 2019, the Court dismissed without prejudice the claims in Plaintiff's First Amended Complaint for failure to state a claim for which relief may be granted. (See Mem. Op. & Order 23, ECF No. 41.) The Court additionally granted Plaintiff leave to amend her allegations through a subsequent pleading. On August 7, 2019, Plaintiff filed her [42] Second Amended Complaint.

Brune alleges she was employed by Takeda USA and Takeda America as a sales representative in Mississippi from 2002 through April 2016. She says that she was a high-performing sales representative and often earned various performance-based awards and statuses in her performance reviews. However, says Brune, her work experience took a turn-for-the-worse when Rayf Clark - "a former salesman with no managerial experience" - became her district manager. (2d Am. Compl. 5, ECF No. 42.) Clark "constantly berated, verbally abused, cyber-bullied and badgered Plaintiff to the point she could no longer physically and mentally continue to work for Defendants." (Id.) She states that "Clark's actions, emails, and the false statement he spread about Plaintiff to her superiors and fellow employees rose to the level of willful, wanton, egregious, and outrageous conduct . . . ." (Id. at 5-6.)

Brune recounts several specific episodes. On February 9, 2016, Clark called her on the phone and proceeded to yell at and verbally abuse her, which reduced Clark to tears. She says that this caused her "severe emotional distress . . . requiring medical treatment." (Id. at 6.) Clark apologized to Brune on February 22, 2016 for making her cry and admitted that he had acted improperly. On April 1, 2016, Clark sent Brune an email stating,

Per our discussion, if improvement is not observed during our next two-day field ride on April 14 and April 18 you will be placed on a Performance Improvement Plan. Moving forward it is important that you have anincreased level of personal ownership around your professional skills growth and business results.

(Id. at 5-6.) This is despite the fact that, according to Brune, she placed in the top 2% in a national sales contest and finished in the top 15% of the region in sales in 2016. On May 28, 2016, Clark "forced Plaintiff, upon threat of termination, to meet him at Residence Inn [in] Gulfport . . . , where he forced her to sign a '60 Day Plan' of improvement or she would be immediately fired from her job."¹ (Id. at 6-7.)

Plaintiff says that Clark acted "with reckless disregard for the health and well-being of the Plaintiff" and intentionally sought "to harass, intimidate, berate, defame, and slander the Plaintiff's business reputation; and to cause Plaintiff to terminate her employment with Defendants." (Id. at 7.) Plaintiff says that she repeatedly complained about Clark's treatment of Plaintiff to the human resources department and to "Takeda's Cultural Liaison," Max James (who reported Plaintiff's concerns to Quin Hatfield, the regional manager), but nothing was done to change Clark's conduct or otherwise remedy the situation. (Id.) Plaintiff asserts that she was "forced from her employment with Defendants on or about April 15, 2016" (id. at 8), presumably amidst the two-day field ride which would determine whether she was placed on a Performance Improvement Plan.

Based on these allegations, she asserts claims for Defamation, Intentional Infliction of Emotional Distress, and Negligent Infliction of Emotional Distress. As to defamation, she says that Defendants published false and defamatory statementsby means of Field Coaching Logs completed by Clark and sent to Hatfield and others at Defendants' corporate offices. She specifically identifies the following statements made in the March 4, 2015 log entry:

[I]t is critical that you execute your plan with your HCP's in order to drive business to ultimately hit your WIG/goals. We've had several discussions regarding this component of sales execution. This was your Way Forward on October 22 and it was noted on your FCL in Nov 19. You continue to struggle with this, and on Wednesday your pre-call planning and execution did not meet expectations. While this did improve on Thursday, I'm concerned about the inconsistency that continues to be observed in this area. . . . [Y]ou had difficulty determining your HCP's belief in your product including how and when they would use it in their practices.

(Id. at 9 & Ex. 6, ECF No. 42-6.) She says these statements are false and were made by Clark for the purpose of defaming Plaintiff.

She also points to Clark's statements regarding her work performance in the February 8, 2016 log entry:

Your last Way Forward was to make it part of your pre-call plan to execute an additional call with the staff member that complete Pas for their gout patients in your offices. I asked you to ensure your HCPs and staff members clearly understand the PA process for Gout patients and how they can get access to Uloric. During our time in the field you planned to cover this with Dr. H's nurse, but you did not execute it in your call. I did not observe you planning or executing a Uloric focus call with staff members that complete patient PA's in any other calls during our time in the field.

. . .

[Y]ou were not able to identify your HCP's belief of your product, belief of competitive products, and how they treat the disorders your products are indicated for your HCP's on most calls. By not knowing this information it was difficult and, in some cases, you were not able todetermine an appropriate Learn and Share objective for your call.

. . .

I believe you cannot articulate your customer's belief and that you feel uncomfortable pre-call planning due to you not consistently planning and executing calls that generate dialogue and call continuity.

(Id. at 10-11 & Ex. 7, ECF No. 42-7.) She similarly says that these statements were false and made for the purpose of defaming her.

Plaintiff recounts statements made in the February 23, 2016 log too:

Despite my coaching to not use written pre-call plan[s] you continued to use them before every call during our two days in the field. That said, I was unable to gauge any progress towards conducting an effective pre-call plan and setting a defined call objective in the absence of a written out plan.

(Id. at 11 & Ex. 8, ECF No. 42-8.) And in the March 15, 2016 log, Clark states,

There was a lack of a clearly defined call objective/outcome, and this was evident during the execution of the call by the overall level of impact that was lacking on the majority of your calls. We've discussed this before . . . . You haven't consistently demonstrated the ability to strategically prepare for a call that ultimately ends in movement along the continuum for the customer. . . . Without a focused plan, it is hard to partner with the HCP in a meaningful way.

. . .

During our time in the field you were not able to consistently identify your HCP's belief of your product, competitive products, and how they treat the disorders your products are indicated for the HCP's in most of your calls. This led to calls in many cases that did not produce meaningful dialogue and seemed to lack customer impact. For example with Dr. K your pre-call plan for Colcrys did not include an objective or what you wanted to Earn/close your HCP to do. Without a call objective you did not plan what you wanted to Share or Learn from Dr. K. Your pre-call plan was simply: "Dr. K writes Colcrys. He knowsthere is a generic because he writes AG." This led to a call where you did not gain a commitment even after you found out that Dr. K started "low" with Colcrys and starts patients on one tablet three times per week. You did not suggest the proper dosing or our key message of having the patient have Colcrys on-hand for flares that may occur during the night. Without a planned call objective there was not a plan to Share a message or what you wanted to Learn, which led to a call with minimal impact.

(Id. at 11-12 & Ex. 9, ECF No. 42-9.) Plaintiff asserts that these statements falsely claim she failed to apply enough pressure on a health care provider to prescribe Takeda's products and otherwise falsely describe the manner in which she conducted her job duties.

Finally, Plaintiff identifies statements made in the April 1, 2016 email from Clark:

I'd like to recap the meeting we had . . . regarding . . . the struggles you have had with planning and executing sales calls that delivers impacts to drive results, and the expectations moving forward. The specifics we covered were all tied to your behaviors that have the potential to impact HCP beliefs and behaviors (prescribing habits). In my time with you in the field I have not seen consistent thoughtful and effective pre-call planning for calls with your HCPs that are designed to create dialogue and earn additional business for your products.

Per our discussion[,] if improvement is not observed on our

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