Morrison v. B. Braun Med. Inc.

• Decision Date: 18 January 2012
• Docket Number: No. 10–1548.,10–1548.
• Citation: 33 IER Cases 97,663 F.3d 251
• Parties: Lynn A. MORRISON, Plaintiff–Appellee, v. B. BRAUN MEDICAL INCORPORATED, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

33 IER Cases 97

663 F.3d 251

Lynn A. MORRISON, Plaintiff–Appellee,

v.B. BRAUN MEDICAL INCORPORATED, Defendant–Appellant.

No. 10–1548.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 6, 2011.Decided and Filed: Dec. 8, 2011.Rehearing and Rehearing En Banc Denied Jan. 18, 2012.

ARGUED: R. Ted Cruz, Morgan, Lewis & Bockius LLP, Houston, Texas, for Appellant.

Deborah L. Gordon, Deborah L. Gordon, PLC, Bloomfield Hills, Michigan, for Appellee. ON BRIEF: Allyson N. Ho, Morgan, Lewis & Bockius LLP, Houston, Texas, for Appellant. Deborah L. Gordon, Carol A. Laughbaum, Deborah L. Gordon, PLC, Bloomfield Hills, Michigan, for Appellee.Before: MARTIN and GRIFFIN, Circuit Judges; ANDERSON, District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

This is a wrongful discharge case. Lynn A. Morrison was terminated from her job as a medical sales representative by her employer, B. Braun Medical Inc. Morrison filed a complaint alleging that B. Braun had wrongfully discharged her in violation of Michigan's public policy because of her refusal to unlawfully promote non-approved uses of medical products and to violate anti-kickback laws. The case was tried to a jury. The district court denied a motion by B. Braun for judgment as a matter of law, and the jury returned a verdict for Morrison. B. Braun filed a renewed motion for judgment as a matter of law, which the district court also denied. B. Braun appeals this decision, arguing that the district court erred by not requiring Morrison to prove to the jury that B. Braun directed her to violate the law and in finding that Morrison had presented sufficient evidence to prove that the cause of her termination was her refusal to violate the law. For the following reasons, we AFFIRM.

I.

Morrison was an at-will employee at B. Braun, a Pennsylvania corporation that manufactures and sells pharmaceutical and medical products. She worked as a medical sales representative at B. Braun from October 1998 until her termination on April 2, 2007. Morrison worked out of her home promoting and selling pain control products to hospitals in Michigan. While employed by B. Braun, Morrison repeatedly told her supervisors that she was unwilling to unlawfully promote medical products “off-label” or to violate anti-kickback laws.

With limited exceptions, federal law prohibits the marketing of “off-label” uses of medical products—the practice of using or prescribing a medical product approved by the Federal Drug Administration for indications or in dosages other than those approved by the Administration. See Planned Parenthood of Cincinnati Region v. Strickland, 531 F.3d 406, 408 (6th Cir.2008). Morrison expressed her discomfort with off-label promotion as early as January 2000, when she sent an e-mail to her manager noting her concerns about the practice. During a training session conducted by B. Braun in November 2000, trainers instructed the sales representatives to promote off-label uses of the drug Pentaspan. Morrison verbally objected to these instructions. According to Morrison's testimony, her regional manager, who was also in attendance, pulled her out of the meeting and admonished her for her comments.

During a 2003 sales meeting attended by Morrison and other sales representatives, a B. Braun lead sales representative described how she circumvented federal anti-kickback laws by channeling gift money through third parties, and she instructed the attendees to do the same. Following this meeting, Morrison declined to sign a compliance training form attesting that she had no knowledge of any noncompliant behavior within the company. Morrison explained to B. Braun's Compliance Department that she was not comfortable signing the form because she knew of the lead sales representative's violations of anti-kickback laws. Morrison then agreed to sign the form with a notation reflecting her conversation about the matter with the Compliance Department.

In early 2006, Morrison alerted her supervisors to a customer request that she believed would constitute a violation of anti-kickback laws if fulfilled by B. Braun. One of Morrison's customers, Oakwood Hospital, let its group purchasing contract with B. Braun lapse at the end of 2005 and failed to sign a new contract until January 18, 2006. During the eighteen-day period in which Oakwood was not under contract, its purchases from B. Braun were priced at a higher level. After signing a new contract on January 18, Oakwood requested that Morrison adjust the prices on the purchases it made earlier that month to reflect the lower pricing it would have received had it signed the 2006 contract on time, a difference of $730. Morrison declined the request, and Oakwood responded by asking for the $730 difference in the form of free goods. Morrison declined Oakwood's second request, concerned that such an arrangement might be an illegal kickback.

Morrison discussed her concerns about Oakwood's requests with her supervisors, Kathy Brunette–Sawyers and Greg Sturdivant. Morrison testified that Brunette and Sturdivant told her to “make the customer happy” and suggested she move forward with a “credit and rebill.” Morrison told her supervisors she was unwilling to grant a “credit and rebill” because she believed it would violate anti-kickback laws. Morrison requested advice from Cathy Codrea in the Compliance Department regarding the legality of a “credit and rebill.” Codrea discussed the matter with Brunette and Sturdivant. Following her conversation with Codrea, Brunette called Morrison on April 4. Brunette screamed at Morrison, accused her of insubordination for taking the matter to Codrea, and, Morrison testified, told her that her “job was in jeopardy.” On April 6, Codrea informed Morrison that B. Braun would not give Oakwood a pricing adjustment.

On May 23, Morrison attended a sales training session for the pain product Accufuser. B. Braun hosted the session at which a trainer instructed B. Braun's sales representatives, managers, and Brian Maser, the Vice President of Morrison's sales region, to market off-label uses of Accufuser. During the training, Morrison objected verbally to the trainer's instructions to promote off-label uses. The trainer responded that off-label promotion was not a problem. Neither Maser nor the managers in attendance responded to the trainer's assertion that off-label promotion of Accufuser was acceptable. Morrison testified that Maser glared at her angrily. Morrison reported this episode to Brunette, who agreed that the instructions to promote off-label were improper. In early August, Morrison spoke with Codrea about her concerns regarding off-label promotion of Accufuser. Codrea responded on August 10 by sending a company-wide e-mail warning that off-label promotion is against the law and against company policy.

After the Accufuser training, Morrison received two customer complaints. On May 25, a hospital customer complained to Brunette about Morrison's tone in an e-mail communication. Brunette reviewed Morrison's communication and found nothing objectionable. B. Braun took no action against Morrison. A second hospital customer complained to Maser about Morrison in July. Morrison had declined the customer's request to run a fourth trial of a medical product because she believed the customer was a poor sales prospect and had already received more than a typical number of trials. According to Maser, the customer said she was angry about the manner in which Morrison informed her of B. Braun's decision to deny the hospital a fourth trial.

Morrison testified that Maser phoned her on July 13 and spoke with her about the two customer complaints against her and informed Morrison that she had declining sales numbers. Maser also spoke with Brunette about these matters. On August 1, Morrison received a letter from Maser warning her that continued customer complaints could lead to discipline “up to and including termination.” On August 4, Maser placed Morrison on a ninety-day Performance Improvement Plan. The Plan required Morrison to not receive any more customer complaints, to complete interpersonal training, and to meet certain sales quotas for three products by December 1. Morrison objected to the Plan's sales goals because she believed they were “unreasonable” and not achievable.

Morrison complied with the Plan's training requirements. Morrison also received no new customer complaints. Morrison did not meet the Plan's sales quotas for two of the three products, although she exceeded her annual total sales quota. On December 11, Brunette informed Morrison that she had failed to meet the goals in her Plan.

B. Braun transferred Morrison to a new sales zone, effective January 1, 2007, where she reported to a new vice president, Tony Zimmermann, and a new regional manager, Jay Anthony. On December 11, 2006, the day they first met with Morrison, Zimmermann and Anthony informed Morrison they were placing her on a new Performance Improvement Plan that would start on January 1 because she had not reached the goals in her previous Plan. Morrison believed the sales goals in the new Plan were unattainable and even more unreasonable than those in the first Plan. During the first week of January, Zimmermann and Anthony, following the advice of Human Resources, offered Morrison a severance package to quit. Morrison did not accept the offer.

On April 2, 2007, B. Braun fired Morrison. Although she had exceeded the sales goal for pain control medication in the second Plan, she had not met the goals for the other two products. Morrison testified that B. Braun representatives told her she was terminated because she did not meet the goals in the new Plan.

B. Braun ranked Morrison as its third-best sales representative out of thirty-five in 2004, and tenth-best out of thirty-three in 2005. In the first six months of 2006, B. Braun ranked Morrison thirty-first out of thirty-three. In 2003, Morrison did not meet her sales quota for...