Parks v. Alpharma Inc.

• Decision Date: 19 July 2011
• Docket Number: Sept. Term,No. 115,2010.,115
• Citation: 161 Lab.Cas. P 61167,25 A.3d 200,421 Md. 59,32 IER Cases 1042
• Parties: Debra PARKSv.ALPHARMA, INC., et. al.
• Court: Maryland Court of Appeals

421 Md. 59

25 A.3d 200

161 Lab.Cas. P 61,167

32 IER Cases 1042

Debra PARKS

v.ALPHARMA, INC., et. al.

No. 115

Sept. Term

2010.

Court of Appeals of Maryland.

July 19, 2011.

Angus R. Everton (Robert C. Morgan, Carlo, Downs & Everton P.A., Hunt Valley, MD), on brief, for Appellant.Thomas S. Williamson, Jr. (Kevin B. Collins and Lindsay B. Burke of Covington & Burling LLP, Washington, D.C.), on brief, for Appellees.Jessica Weber, Francis D. Murnaghan, Appellate Advocacy Fellow, Public Justice Center, for Amici Curiae brief of the Public Justice Center, Maryland Employment Lawyers Association, and Metropolitan Washington Employment Lawyers Association.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.BATTAGLIA, J.

Debra Parks, the Appellant, filed a one-count complaint in the Circuit Court for Baltimore City alleging that she had been “ wrongful [ly] terminat[ed] ... in violation of public policy” from her job at Alpharma, Inc., the Appellee, a pharmaceutical company incorporated in Delaware, which had been headquartered in Bridgewater, New Jersey until being acquired in November of 2008 by King Pharmaceuticals, Inc., and is now headquartered in Bristol, Tennessee.¹ In her complaint, Ms. Parks alleged that she worked out of Alpharma's office in Baltimore, marketing prescription drugs throughout the State of Maryland, from 2001 until July of 2006, at which time she claimed to have been terminated “in retaliation for her complaints about Alpharma's illegal marketing activities.” Judge Alfred Nance of the Baltimore City Circuit Court dismissed the complaint.²

Ms. Parks noted an appeal from the circuit court's order of dismissal and raised the following issues in her briefs in the Court of Special Appeals:

1. Was it error for the trial court to grant the Motion to Dismiss this wrongful discharge action on the grounds that the Plaintiff Debra Parks failed to report Alpharma's misconduct “outside the company”?

2. Is Ms. Parks' wrongful discharge action barred because of the existence of a putative “whistleblower” remedy under the Federal False Claims Act?

In its responsive brief, Alpharma raised several grounds upon which it urged an affirmance of the trial court's dismissal of Ms. Parks's complaint against Alpharma:

I. The circuit court did not err in dismissing appellant's complaint for wrongful discharge in violation of public policy because she did not state a claim upon which relief could be granted.

A. Parks failed to identify the clear public policy mandate necessary to allege a cause of action for wrongful discharge [because:]

(1) Termination for “investigating” wrongdoing by an employer is insufficient

to support a wrongful discharge claim[,]

(2) Parks has failed to identify Maryland public policy violations appropriately remedied by a wrongful termination claim[,]

(3) Parks inappropriately attempts to rest her claim on the general or universal public policy of protecting the public interest.

B. Parks has failed to allege a sufficient causal nexus between protected conduct and Alpharma's decision to terminate her.

C. Parks has an adequate remedy that she is currently pursuing based on the same facts and circumstances.³

II. The circuit court did not err in dismissing the complaint as to King, as Appellant has made no allegations against King.

While the appeal was pending in the intermediate appellate court, we granted certiorari, Parks v. Alpharma, Inc., 417 Md. 384, 10 A.3d 199 (2010), on our own initiative, to consider whether the circuit court's grant of Alpharma's motion to dismiss was legally correct. We shall affirm the ruling of the Circuit Court dismissing Ms. Parks's complaint for failure to state a claim upon which relief can be granted, on the basis that Ms. Parks failed to identify any clear mandate of public policy allegedly violated by Alpharma and allegedly reported by her that would constitute some of the required elements of a wrongful discharge claim.⁴ We, as a result, need not and will not reach any of the other issues raised.

In her complaint, Ms. Parks alleged that, while employed with Alpharma, she was involved in marketing a prescription drug known as Kadian, which Ms. Parks represented was a “Schedule II(CII) narcotic that is a slow-release form of morphine ... approved for use in treatment of patients with chronic pain.” Ms. Parks claimed that Alpharma falsely represented to physicians that Kadian could be taken in conjunction with other pain medications:

12. Chronic pain patients are usually on some other medication before they are prescribed Kadian, and thus the protocol for switching patients from another pain medicine to Kadian is a significant aspect of the process of prescribing Kadian.

13. [ ] The patient is not supposed to take both Kadian and the old drug at the same time.

* * *

16. When switched to Kadian, [ ] patients frequently complained to their physician the Kadian was not working, because they felt no immediate buzz effect. Physicians reported that patients were not mollified when told that Kadian would work in 24 hours. Accordingly, patients resisted the switch to Kadian, and sales were slow.

17. To counteract this problem, Alpharma decided to falsely tell physicians that it was appropriate to jointly prescribe both Kadian and the patient's prior pain drug, while “weaning” the patient off the old drug.

* * *

19. Alpharma's promotion of this means of “switching” patients to Kadian was not just off-label, but actually quite dangerous. Alpharma knew that combined use of Kadian and another opioid could lead to serious adverse events, including death.

Ms. Parks also alleged that Alpharma deliberately failed to inform the Food and Drug Administration that Kadian was potentially fatal if taken with alcohol because of an effect known as “dose-dumping”: ⁵

22. A common problem with time-released narcotics, such as Kadian, is “dose-dumping” (releasing too much of the painkilling component, too soon) when patients drink alcohol.

23. Kadian's FDA label, like the label for other opioids, requires physicians to warn patients not to consume alcohol when taking the drug. However, alcohol consumption is a common problem for chronic pain patients, and physicians know these patients often consume alcohol despite warnings that drinking will affect how their pain medication works. A drug's potential for “dose-dumping” is thus an important factor physicians consider when prescribing pain medication for patients at risk of alcohol abuse.

* * *

27. The FDA required Alpharma to conduct clinical tests to determine whether Kadian was susceptible to “dose dumping.” Within weeks of beginning its clinical testing, the results indicated that Kadian was, in fact, susceptible to “dose dumping” at certain strengths. Rather than reporting those results, Alpharma stopped the study.

28. Several months later, Alpharma voluntarily agreed to put a “black box” warning ⁶ on its Kadian label, but never told the FDA about the “dose dumping” problem the study's early results has indicated.

29. During the period when Alpharma was supposedly conducting its clinical study, Alpharma directed its sales representatives to promote Kadian by highlighting the fact that Kadian was the only time-released opium-based pain reliever of its type that had no “black box” warning, even though Alpharma had no evidence to support the notion that Kadian was not susceptible to “dose dumping.”In her complaint, Ms. Parks further alleged that she reported her concerns to named individuals at Alpharma:

33. Parks, in an e-mail to Alpharma sales manager Michael Slesinksi, and on other occasions, conveyed her concern that she felt uncomfortable with this conversion method and was worried about the sales representatives confusion over the method.

* * *

46. Parks, on August 24, 2005, at a company conference in Atlanta, spoke to Dr. Ron Warner, then Vice President of Alpharma. Parks informed Dr. Warner of Angie Miliman's patient and told him that she hoped if Alpharma became aware of Kadian “dose-dumping,” Alpharma would disclose that information as soon as possible, because her physicians relied on her to tell them the truth. Parks told Dr. Warner that she would feel complicit in any delay because of an effort to gain a market advantage.

47. On November 18, 2005, Parks spoke to Dr. Joseph Stauffer, Director of Medical Affairs for Alpharma, and Dr. George Wagner about the alcohol studies with Kadian....

48. In December, 2005, Parks spoke at length with sales manager Michael Slesinski about the Kadian alcohol studies. Parks conveyed that she was worried about Kadian patients and told him about Angie Miliman's patient that had died....

49. In January, 2006, Parks called Eric Vandal, Director of Marketing for Alpharma. Parks told Eric Vandal that George Bhailey, the Oromorph sales representative for Xanodyne, was telling physicians that Kadian did “dose-dump” when consumed with alcohol.

* * *

51. [ ] Parks spoke to Craig Lafay, Senior Sales Manager for Alpharma, and told him that she hoped Alpharma was taking the alcohol study seriously, as the physicians she called on wrote high amounts of Kadian....

52. Parks and her manager, Peter Hill, spoke about the “dose-dumping” issue on every field ride together....

53. In April of 2006, Parks had dinner with James Meade, Regional Managed Markets Representative for Alpharma.... Parks conveyed to James Meade that she was horrified that Alpharma was manipulating the results of the Kadian alcohol study, instead of disclosing the results to the FDA, and was worried that someone would die.

Ms. Parks further claimed that, after she had raised her concerns with various people at Alpharma, that Alpharma “retaliated against her” by terminating her employment in July of 2006.

Ms. Parks, in attempting to establish one of the bases for a wrongful discharge claim, asserted that Alpharma had breached various duties established by state and federal statutes, the...