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James Kerrigan v. Otsuka America Pharmaceutical

March 25, 2013

JAMES KERRIGAN
v.
OTSUKA AMERICA PHARMACEUTICAL, INC., ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This case arises from the plaintiff's termination from employment at Otsuka America Pharmaceutical, Inc. ("OAPI"). The plaintiff, James Kerrigan, brings a claim under the New Jersey Conscientious Employee Protection Act ("CEPA") and a common law claim for defamation.

Defendants OAPI and Mark Altmeyer now move to dismiss the plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court will grant the motion.

I. Procedural History

On July 11, 2012, the plaintiff filed a six count complaint against the defendants OAPI and Mark Altmeyer in the Bucks County Court of Common Pleas. The defendants removed the case based on diversity jurisdiction and then moved to dismiss the complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6).

On October 31, 2012, the Court dismissed with prejudice the plaintiff's New Jersey Law Against Discrimination claim, intentional infliction of emotional distress claim, negligent infliction of emotional distress claim, and misrepresentation claim. The Court dismissed without prejudice the plaintiff's CEPA and defamation claims.

The plaintiff then filed the amended complaint re-pleading the CEPA and defamation counts and revising the allegations. In response, defendants brought the instant motion to dismiss the amended complaint.

II. Facts as Stated in the Amended Complaint Kerrigan was hired on January 12, 2006 at Otsuka

Pharmaceutical Development and Commercialization, Inc., as a Senior Director, Global Marketing. He was assigned responsibility for the marketing of the drug Samsca in the United States, reporting through OAPI. Am. Compl. ¶10.

From 2009 until his termination, Kerrigan was the "brand lead" for Samsca, a pharmaceutical drug used to treat hyponatremia. Am. Compl. ¶12.

In 2010, as part of the promotional effort, OAPI contracted with Premier Healthcare Resource, Inc., to develop and send newsletters to certain health care providers who encounter hyponatremia. Am. Compl. ¶21. Premier issued one or more newsletters that did not present a "fair and balanced" approach. Am. Compl. ¶23. The error by Premier was discovered and the material was withdrawn from web sites. Am. Compl. ¶24.

In 2011, an article about Samsca published by a web site known as Today's Hospitalist was discovered. The article had used information from an OAPI sponsored panel, and proper disclosures and fair balance were missing. Am. Compl. ¶25.

Kerrigan reported the Today's Hospitalist publication to his superior in the company. Am. Compl. ¶26. The infraction was reported to the FDA, and there was no reprimand. Am. Compl. ¶28.

After the Today's Hospitalist incident, Kerrigan was concerned that the Premier newsletters from 2010 had not been reported to the FDA so he "re-reported" the violation to his supervisor in the company.*fn1 The Premier newsletter issue was then reported to the FDA, which requested that Otsuka America write a letter noting the error and lack of compliance to the affected health care providers. Am. Compl. ¶29.

OAPI provides in its Comprehensive Compliance Program: "Procedures for Reporting Violations. The Company's Code of Conduct requires employees to report any known or suspected violations of law, regulations, company policies or procedures to their supervisor or to the Chief Compliance Officer." Am. Compl. ¶65.

Two members of Kerrigan's team, who were involved with the Premier and Today's Hospitalist compliance risks resigned from OAPI at the direction of Mark Altmeyer, the ...


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