Hess v. Sanofi-Synthelabo Inc.
| Decision Date | 20 February 2007 |
| Docket Number | No. 4:05CV02195MLM.,4:05CV02195MLM. |
| Parties | Phillip A. HESS, Plaintiff, v. SANOFI-SYNTHELABO INC., Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
Kathryn S. Render, Chackes and Carlson, St. Louis, MO, for Plaintiff.
John C. Dodds, Megan L. Traversari, Michael L. Banks, Morgan and Lewis, Philadelphia, PA, Bryan D. Lemoine, Polsinelli and Shalton, P.C., St. Louis, MO, for Defendant.
Before the court is the Motion for Summary Judgment filed by Defendant Sanofi-Synthelabo, Inc. ("Defendant"). Doc. 16. Plaintiff Phillip Hess ("Plaintiff') filed a Response. Doc. 20. Defendant filed a Reply. Doc. 21. Also before the court is Plaintiffs Motion to Supplement Memorandum in Opposition to Motion for Summary Judgment. Doc. 25. Defendant filed a Response to Plaintiff's Motion. Doc. 26. Plaintiff filed a Reply. Doc. 27. The parties presented oral argument to the court on January 19, 2006. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(e)(1). Doc. 8.
Defendant is a pharmaceutical company that is involved in the promotion and sale of pharmaceutical products for a wide range of medical conditions. It typically sells products directly to drug wholesalers rather than health care professionals or pharmacies. Defendant's sales representatives do not "book orders" for drugs. Defendant's sales representatives are responsible for meeting with physicians and health care professionals to advise and educate them about Defendant's products. Specifically, sales representatives are responsible for discussing drugs' indications with health care professionals. A drug's indications include Federal Drug Administration ("FDA") uses for the drug, FDA approved regimens for the drug, potential side effects of the drug, and measures to take when a patient experiences a side effect from using Defendant's product.
The FDA restricts the types of materials that pharmaceutical sales representatives may provide to health care professionals. Defendant's sales representatives are only permitted to provide health care professionals with literature that Defendant approves regarding medical studies concerning Defendant's products. Defendant monitors the articles utilized by its sales representatives for promotional purposes to ensure that the articles communicate messages that adhere to the FDA rules and guidelines. Defendant's Copy Review Committee ("CRC") approves articles utilized by sales representatives. If a health care professional asks a sales representative a question regarding an unapproved article, the sales representative is required to refer the health care professional to a Medical Liaison. Also, sales representatives are not permitted to provide health care professionals with articles that have been highlighted regarding medical studies. Further, it is against Defendant's policy for sales representatives to market Defendant's products by disclosing the difference between drug reimbursement rates and drug acquisition costs (the "Spread"). Defendant's Code of Business Conduct states, in relevant part, that Def. Facts, Ex. F at 4.2
In October 2001 Plaintiff joined Defendant as a sales representative with the title Oncology Account Manager in Defendant's Oncology Business Unit. In the fall of 2003, Plaintiff began to report to John Hamm. Mr. Hamm reported directly to Charles Yelverton, Regional Business Director for the Oncology Business. Mr. Yelverton reported to Lloyd Sanders, National Sales Director for the Oncology' Business. During his employment with Defendant Plaintiff was responsible for selling and educating doctors regarding the drugs Eligard, Eloxatin, and Ambien.
Defendant contends, and Plaintiff denies, that in 2003 at a District Meeting Plaintiff advocated aggressively marketing the difference in the Spread for Defendant's products and the Spread for competitors' products; that Mr. Hamm discussed the prohibition regarding the Spread in response to Plaintiff's comments; and that Plaintiff shared with one of his accounts information regarding differences in the Spread for Defendant's products as compared to its competitors. Def: Facts, ¶ 26-27, 29; Pl. Resp. Def. Facts, ¶¶ 8-10 (citing Pl. Dep. at 142-49). Specifically, Plaintiff denies that he advocated selling based on the Spread and that he called one of his accounts in an effort to make a sale based on the Spread. Pl. Reap. Def. Facts, ¶ 10.
In December 2003 an unusually large order was placed for Eloxatin by the Siteman Cancer Center ("Siteman") and this order was delivered in that month. Plaintiff contends that Defendant wanted to treat the sale as a "2004 event," what Plaintiff describes as re-booking, and that Plaintiff did not "support the change." Plaintiff testified in his deposition as follows about the Siteman order: the first time the re-booking of the Siteman order was discussed with him was in early January 2004, which was two or three weeks after the Siteman order was placed with the wholesaler; Mr. Hamm left Plaintiff a voicemail message that Defendant wanted to consider re-booking the order to 2004; Mr. Hamm said that "Charlie [Yelverton] is behind it and thinks it is the best thing for you to do for your long term interest"; Mr. Hamm said that they would discuss the matter in a couple of weeks; around January 20, 2004, Mr. Hamm told Plaintiff that he wanted Plaintiff to "data smooth" the Siteman order; and Plaintiff's understanding of the meaning of data smoothing was that "the credit and compensation provided to the sales representative would occur at a later date;" that Mr. Hamm did not suggest to Plaintiff that the paperwork between Siteman and the vendor be altered in any way; and that Mr. Hamm asked Plaintiff to retrieve a copy of the paperwork for the Siteman order so that Mr. Hamm could forward it to Defendant's Head of Operations, Bruce Cellura. Pl. Dep. at 117-24. Plaintiff further testified in his deposition that several times in February 2004 he spoke with Mr. Cellura at a national meeting; that during one of these conversations Mr. Cellura said, in reference to the Siteman order, that "we're were working on it." Pl. Dep. at 126. Plaintiff also testified that at a dinner meeting in February 2004 he asked Mr. Cellura what the status of the Siteman order was; that Mr. Cellura responded that they were "not going forward with it," that they were going to keep it "as a 2003 event for all purposes," that to do otherwise was "illegal" and was "cooking the books," and that "it wouldn't be done"; and that after this conversation with Mr. Cellura Plaintiff never discussed the matter "with Mr. Hamm or' anyone else." Pl. Dep. at 134-136. It is undisputed that Defendant did not go through with the proposed change.
Defendant contends that what was proposed and subsequently rejected regarding the Siteman order was that Plaintiff be given recognition for the sale over a period of months rather than in December 2003 for purposes of giving him credit under a discretionary bonus plan. Plaintiff admits that Defendant's sales representatives do not book orders as Defendant typically sells drugs through a drug wholesaler; it is the wholesalers who book the sales. Plaintiff also admits that had Plaintiff been credited with the full amount of the sale in December 2003, it would have increased his quota for 2004 making it difficult for him to qualify for a 2004 bonus.
In January 2004 Plaintiff provided an unapproved highlighted article to a health care professional. Defendant contends, and Plaintiff denies, that Mr. Hamm verbally warned Plaintiff regarding this conduct. Def. Facts, ¶ 19; Pl. Reap. Def. Facts, ¶ 9 ).
Defendant contends that in January 2004 Mr. Sanders, the. National Sales Director for the Oncology Business, learned that Plaintiff provided to a clinic an unapproved article regarding the use of Eloxatin with an anti-depressant and that as a result the clinic prescribed the two drugs together. Defendant contends, and Plaintiff denies, that Plaintiff's use of an unapproved article in this regard violated Defendant's Code of Business Conduct. Plaintiff, however, does not deny that articles utilized by sales representatives must be approved by Defendant's CRC. Def. Facts, ¶¶ 14-16. Plaintiff contends that Mr. Sanders knew Plaintiff was distributing the article at issue and approved its use. Def. Facts, ¶ 22; Pl. Resp. Def. Facts, ¶¶ 3-4 ). Plaintiff further contends that Mr. Hamm trained sales representatives regarding unapproved information and encouraged them to use it. Doc. at 15, ¶ 13.
Defendant contends, and Plaintiff denies, that Mr. Sanders contacted Mr. Yelverton and Rodney Vinegar, in Defendant's Human Resource Department, to express concern regarding Plaintiff's "pro-active distribution of the article"; that Mr. Yelverton discussed with Mr. Hamm whether to terminate Plaintiff for improper use of the article; that Mr. Hamm indicated that he did not want to terminate Plaintiff and requested the opportunity to coach Plaintiff regarding use of the article; that Defendant's management decided not to terminate Plaintiff and to give him a written warning; and that Mr. Hamm discussed the matter with Plaintiff and Plaintiff stated that he understood that what he did was wrong. Def. Facts; ¶¶ 23-24. Plaintiff admits that on February 3,...
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