Hidalgo-Semlek v. Hansa Med., Inc.
| Decision Date | 30 October 2020 |
| Docket Number | Civil No. 1:19-cv-00436-JL |
| Citation | 498 F.Supp.3d 236 |
| Parties | Dr. Luchy HIDALGO-SEMLEK v. HANSA MEDICAL, INC. |
| Court | U.S. District Court — District of New Hampshire |
Benjamin T. King, Megan E. Douglass, Douglas Leonard & Garvey PC, Concord, NH, for Luchy Hidalgo-Semlek.
Lawrence Peikes, Pro Hac Vice, Wiggin and Dana LLP, Stamford, CT, Ethan Severance, Aaron Frederick Lang, Foley Hoag LLP, Boston, MA, for Hansa Medical, Inc.
Joseph N. Laplante, United States District Judge This employment case involves an allegedly wrongful termination, and alleged retaliation against an employee of a biopharmaceutical company claiming whistleblower status. Plaintiff Luchy Hidalgo-Semlek sued her former employer, Hansa Medical, Inc., alleging that Hansa wrongfully terminated her for objecting to (or expressing concerns about) using health information obtained from patients via informed consent documents and other contractual agreements in unauthorized ways. She seeks recovery under claims for both common law wrongful discharge (Count 1) and violation of the New Hampshire Whistleblowers’ Protection Act, RSA 275-E, et seq. (Count 2). This court has jurisdiction under 28 U.S.C. § 1332(a) (diversity) because Dr. Hidalgo-Semlek is a citizen of New Hampshire, Hansa is a Delaware corporation with its principal place of business in North Carolina, and the amount in controversy exceeds $75,000.
Hansa has moved for summary judgment on both counts, arguing that (1) Dr. Hidalgo-Semlek's common law claim fails because the circumstances of her termination did not implicate any public policies, (2) her statutory claim fails because she cannot establish that she engaged in any protected activity, and (3) Hansa's termination was for legitimate reasons, and not motivated by bad faith, malice, or retaliatory animus. After reviewing the parties’ submissions and hearing oral argument, the court concludes that Hansa has not carried its burden of showing that it is entitled to judgment as a matter of law on Dr. Hidalgo-Semlek's claims, and so its motion for summary judgment must be denied. The record reveals material factual disputes about whether Dr. Hidalgo-Semlek engaged in protected conduct (for purposes of both claims), whether there was a causal connection between her alleged protected activity and her termination, and whether Hansa's stated reasons for terminating Dr. Hidalgo-Semlek were a pretext and motivated by bad faith, malice or retaliation, all of which go to the heart of Dr. Hidalgo-Semlek's claims.
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" if it could reasonably be resolved in either party's favor at trial by a rational fact-finder, and "material" if it could sway the outcome under applicable law. Estrada v. Rhode Island, 594 F.3d 56, 62 (1st Cir. 2010). In analyzing a summary judgment motion, the court "views all facts and draws all reasonable inferences in the light most favorable to the non-moving party." Id.
Where, as here, the plaintiff bears the ultimate burden of proof, once the movant has made the requisite showing, she can no longer "rely on an absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute." Torres–Martínez v. P.R. Dep't of Corr., 485 F.3d 19, 22 (1st Cir. 2007). That is, the plaintiff " ‘may not rest upon the mere allegations or denials of [the] pleading, but must set forth specific facts showing that there is a genuine issue’ of material fact as to each issue upon which [she] would bear the ultimate burden of proof at trial." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52–53 (1st Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). Even in employment cases, "where elusive concepts such as motive or intent are at issue," summary judgment may be appropriate "if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Brandt v. Fitzpatrick, 957 F.3d 67, 75 (1st Cir. 2020) (quoting Ray v. Ropes & Gray LLP, 799 F.3d 99, 116–17 (1st Cir. 2015) ).
The following facts, set forth in the light most favorable to Dr. Hidalgo-Semlek, are undisputed or accepted, except where noted. Hansa is the United States subsidiary of Hansa Biopharma, AB, a Swedish biopharmaceutical company that is developing an enzyme treatment known as Imlifidase for adult kidney transplant patients. Sometime around June or July 2017, Hansa hired Dr. Hidalgo-Semlek, along with Dr. Joshua Lee, as consultants to serve in the role of Senior Medical Science Liaison (MSL). After approximately a year, Hansa converted Dr. Hidalgo-Semlek and Dr. Lee to employees. Hansa's MSLs were generally responsible for the medical aspects of the development and trial support of Imlifidase and working with experts in the field of organ transplantation. As part of her role as an MSL, Dr. Hidalgo-Semlek was also responsible for ensuring that Hansa's work was compliant with pertinent laws or regulations.
Dr. Lee and Dr. Hidalgo-Semlek were colleagues for the entire time that Dr. Hidalgo-Semlek was either a consultant or employee of Hansa. Dr. Lee found Dr. Hidalgo-Semlek to be trustworthy, a person of integrity, and a great MSL who performed the job well. Initially, Dr. Hidalgo-Semlek had no direct supervisor in the United States. She first reported to Hansa's Chief Medical Officer Sam Angus, and when Angus left the company, she next reported to Dr. Christian Kjellman, Hansa's Chief Scientific Officer, from approximately May of 2018 to mid-September 2018. Dr. Kjellman was not located in the United States, so he exercised somewhat limited supervision over Dr. Hidalgo-Semlek and Dr. Lee as U.S.-based employees. Nevertheless, Dr. Kjellman's overall impression of Dr. Hidalgo-Semlek during the time she was reporting to him was that she did a good job. During this time, Dr. Kjellman did not have to correct Dr. Hidalgo-Semlek's job performance and did not have any issues with her expense reports, which he was responsible for approving.
Doc. no. 28-5, at 51. It further explained that any personal data or information that survey respondents provided would "be destroyed by October 30, 2018." Dr. Hidalgo-Semlek and Dr. Lee were listed on the informed consent document as Hansa's contact persons.
The screening survey questionnaire included 59 questions, and asked for the respondent's name, email address, detailed medical history, treatment history, and other medical information, prescription drug history, and what type of insurance the respondents had, among other information. Ultimately, patients from the AKF and AAKP's membership responded to the screening survey questionnaire. Only Dr. Hidalgo-Semlek and Dr. Lee were supposed to have access to the raw data from the patient responses to the screening survey. Dr. Hidalgo-Semlek and Dr. Lee reviewed these responses to identify candidates for the patient focus group and out of those selected, eleven agreed to participate. The eleven focus group patients signed an additional informed consent document for the focus group itself, which explained that "[t]he purpose of the focus group is to gather information, so Hansa can better understand treatment experiences of people with End Stage Renal Disorder." With the assistance of a consulting firm, rareLife Solutions, Hansa conducted the focus group on June 9, 2018. Dr. Hidalgo-Semlek, Dr. Lee, and Eric Litjens, then a patient advocacy consultant for Hansa, ran the focus group for Hansa. As required by the informed consent document accompanying the screening survey questionnaire, Hansa destroyed the survey response information on October 30, 2018.
Shortly after the focus group, Dr. Hidalgo-Semlek internally circulated a brief overview of the event. She and Dr. Lee also prepared a short event summary document and contributed to a more-detailed Executive Summary of the focus group prepared by rareLife. Laura Wuerth of rareLife circulated a draft of the rareLife Executive Summary to Hansa representatives on June 28, 2018.1 Litjens later forwarded the draft Executive Summary to Laura Higginson of Big Arrow Group, a Hansa marketing consultant specializing in strategic planning, branding, and communications for healthcare markets. Dr. Hidalgo-Semlek promptly contacted Higginson and asked her to delete the draft report, explaining that it contained personal information from the patients and was not meant to be distributed externally. Higginson confirmed that she deleted the rareLife Executive...
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...a “wide range of societal goals including safety” and thereby implicate public policy. See Hidalgo-Semlek v. Hansa Med., Inc., 498 F.Supp.3d 236, 249 (D.N.H. 2020). Spraying Systems does not dispute that such a policy could exist. Given the “multifaceted balancing process” for determining “......