Erickson v. Biogen, Inc

Opinion

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE DANITA ERICKSON, NO. 2:18-cv-01029-JCC Plaintiff, vs PROPUSED PRETRIAL ORDER BIOGEN, INC. Defendant li JURISDICTION Jurisdiction is vested in this Court pursuant to federal law (42 U.S.C. § 12101 et seq., 42 U.S.C. § 2000e et seq., 31 U.S.C. §§ 3729, 3730(h)) under 28 U.S.C. § 13314, and this Court has supplemental jurisdiction over Plaintiff's related state law claims under 28 U.S.C. § 1367. Il. CLAIMS AND DEFENSES A. The Plaintiff's Claims: 1. Plaintiff asserts that Defendant violated Plaintiff's rights under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), by treating her differently based upon her perceived disability and terminating her employment based upon her disability, causing damages to Plaintiff. 2: Plaintiff asserts that Defendant violated Plaintiff's rights protected by PROPOSED PRETRIAL ORDER -1 of 46 (2:18-cv-01029-JCC) LAW OFFICES Pete eae GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 TACOMA, WASHINGTON 98402

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Washington's Law Against Discrimination (WLAD) RCW Chapter 49.60 et seq., by treating her differently based upon her perceived disability and terminating her employment based upon her disability, causing damages to Plaintiff. 3: Plaintiff asserts that Defendant violated Plaintiff's rights under Title VII, 42 U.S.C. § 2000e, by treating her differently based upon her gender and terminating her employment based upon her gender. 4. Plaintiff asserts that Defendant violated Plaintiff’s rights under the WLAD, RCW Chapter 49.60 et seq., by treating her differently based upon her gender and terminating her employment based upon her gender. 5. Plaintiff asserts that after she engaged in protected activity under the ADA and Defendant retaliated against Plaintiff by taking adverse action against her in violation of the anti-retaliation provisions of the ADA. See 42 U.S.C. § 12203. 6. Plaintiff asserts that after she engaged in protected activity under Title VII Defendant retaliated against Plaintiff by taking adverse action against her in violation of its anti-retaliation provision. See 42 U.S.C. § 2000e-3. ts Plaintiff asserts that after she engaged in protected activity under the WLAD, Defendant retaliated against Plaintiff by taking adverse action against her in violation of the WLAD anti-retaliation provisions. See RCW 49.60.210. 8. Plaintiff asserts that she reasonably believed that an employee of Defendant was attempting to fraudulently obtain payment for an off-label sale of Zinbryta to a Medicare patient in violation of the False Claims Act (31 U.S.C. § 3729), protested this action and was terminated in retaliation. 9. Plaintiff asserts that Defendant wrongfully terminated her employment in violation of public policy under Washington law for protesting and reporting what she PROPOSED PRETRIAL ORDER -2 of 46 2008 cbanaaas) GORDON THOMAS HONEYWELL LLP

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reasonably believed to be fraudulent conduct regarding an off-label sale of Zinbryta to a Medicare patient. B. Defendant Biogen’s Defenses 1. Biogen denies all of Plaintiff's claims. All of Biogen’s decisions relating to Plaintiff were based on legitimate, non-discriminatory and non-retaliatory reasons. 2, Under the ADA and WLAD, Plaintiff was not actually disabled and Biogen did not perceive her to be disabled. 3. Under the ADA, any perceived disability was transitory and minor. A, Under the ADA, WLAD, and Title VII, Plaintiff's migraines and gender played no role in any decision by Biogen. 5. Under the ADA, WLAD, and Title VII, Plaintiff's alleged complaints about discrimination played no role in any decision by Biogen. 6. Under the False Claims Act, Plaintiff lacked a reasonable, good faith belief that Biogen committed fraud against the government or was attempting to obtain a fraudulent payment or commission payment of any kind. 7. Under the False Claims Act, Plaintiff's complaint of off-label promotion of Zinbryta played no role in any decision by Biogen. 8. Under Washington common law and the Washington Consumer Protection Act, RCW 19.86.020, et seq., Plaintiff did not engage in public-policy linked conduct. 9. Even if Plaintiff proves that a protected status or activity played a role ina decision by Biogen, Biogen would have made all the same decisions relating to Plaintiff regardless of any protected status or activity. 10. Biogen made reasonable, good faith efforts to prevent discrimination and retaliation of any kind such that, even if Plaintiff proves a violation of Title VII or the ADA, PROPOSED PRETRIAL ORDER -3 of 46 sede oaeiaaes) GORDON THOMAS HON EYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 _JACOMA, WASHINGTON 9840200

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Plaintiff is not entitled to an award of punitive damages. 11. ‘Plaintiff has failed to mitigate her economic and non-economic damages or otherwise avoid consequences. Ill. ADMITTED FACTS The following facts are admitted by the parties: 1. Defendant Biogen, Inc. (Biogen) is a biotechnology company that sells therapeutics to treat Multiple Sclerosis. 2. Biogen is a company that does business in Western Washington. 3h Biogen maintains a Non-Discrimination and Non-Harassment Policy that prohibits all forms of workplace discrimination, harassment, and retaliation. Plaintiff acknowledged this policy in writing. 4. Biogen maintains a Code of Business Conduct that also prohibits discrimination, harassment, and retaliation against employees. 5. Biogen’s Non-Discrimination and Non-Harassment Policy and Code of Business Conduct provide employees with avenues to raise workplace concerns, including anonymous methods. 6. Biogen currently divides its Field Sales organization into Divisions, each led by a Divisional General Manager. Divisions are divided into Regions, and Regions are divided into Territories. A Regional Director leads each Region, and Territory Business Managers (TBM) are the Field Sales employees primarily responsible for selling Biogen’s therapies. 7. Plaintiff resides in Tacoma, Pierce County, Washington, and worked for Defendant in Western Washington and Alaska.

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8. The events that form the bases for Plaintiff's claims occurred in Washington and Alaska. 9. Danita Erickson is a woman with over 20 years of experience in the medical sales industry. Erickson was hired at Biogen in 2011 as a Senior Area Business Manager, and her position later was retitled to Senior Territory Business Manager (“TBM”). 10. Biogen classifies its TBMs into three categories: Executive TBM, Senior TBM, and TBM. 14. Erickson worked in Biogen’s West Division, in its Northwest Region. She was assigned the Tacoma territory, which included Tacoma, Alaska, the South Sound, and some customers in Seattle. Erickson was partnered in the Tacoma territory with Executive TBM, Jim Lykins. 12. In late 2016 Erickson began reporting to a new manager, Northwest Regional Director Mary Brown, who is female. 13. In 2017 TBM Matt Chapman partnered with Senior TBM Sarah Lenoue to service the Seattle territory, which included the greater Seattle area with a few accounts north of Seattle. 14. In September 2017, Biogen hired Zac Allison, who became the Division General Manager of Biogen’s West Division and Mary Brown’s direct supervisor. 15. TBMs are formally reviewed every six months and receive an “OPR rating,” at the midyear point and at the end of the year. The rating is numerical, 1 for “developing”, 2 for “proficient” and 3 for “excels”. 16. The three peers Plaintiff was compared against in the March 2018 reduction in force (RIF) also received identical ratings of “2/2” or “solid” on their 2016 PROPOSED PRETRIAL ORDER -5 of 46 edsceeaaaa) GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 TACOMA, WASHINGTON 98402

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and 2017 annual performance reviews, apart from Chapman, who only had a 2017 review, in which he also was rated “2/2.” 17. Plaintiff experienced a migraine on September 5, 2017, on a business trip with Brown. 18. Plaintiff was able to reschedule her appointments during the trip. 19. Biogen never put Plaintiff on a performance improvement plan or suspended her for any reason. 20. In March 2018 Danita Erickson’s base salary was $143,549.08. IV. PARTIES’ CONTENTIONS A. The Plaintiff contends as follows: 1. Biogen is a Delaware corporation that does business in Western Washington, throughout the United States, and globally. 2. Biogen employs over 8,000 employees. 3. Biogen’s TBMs are classified based on experience and ability. A Senior TBM is more experienced and knowledgeable than a TBM. Senior TBMs earn more than TBMs and are recognized as being with the company long enough or having enough industry knowledge to be eligible for the designation as a Senior versus regular (non- Senior) TBM. 4. Erickson has suffered from migraine headaches for over ten years. Erickson’s migraines can be severely debilitating. Sometimes one migraine lasts two days and sometimes Erickson has six to eight migraines in a month. 5. Erickson’s migraines are triggered by many things, including stress and external factors. Air travel is not a particular trigger for Erickson’s migraines and her physician has not recommended she avoid air travel. PROPOSED PRETRIAL ORDER -6 of 46 (2:18-cv-01029-JCC) CAWOEHOES eee eee GORDON THOMAS HONEYWELL LLP “TACOMA, WASHINGTON 95402

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6. Erickson’s migraine condition is an impairment that substantially limits one or more major life activities. te In September 2017, Erickson suffered a debilitating migraine on a sales trip with Brown. Brown seemed understanding at the time, but soon after began questioning Erickson about her migraines. Brown expressed concern about Erickson’s ability to do her job due to her migraines and recommended that Erickson seek other employment. 8. Brown also discussed Erickson’s migraine condition with her colleagues without Erickson’s permission. Brown asked Lykins about his observations of the frequency and severity of Erickson’s migraines. 9. During the time Brown was her manager, Erickson noticed Brown favored male TBMs over female TBMs. Brown disproportionately called on male TBMs during meetings to report results in their territories, assigned male TBMs to committees that gave them exposure in the industry, supported male TBMs with promotions in the company, and assigned male TBMs more advanced tasks like hosting the new Division

_ Manager for a day of sales calls in the field. 10. In February 2017 Brown hired Matt Chapman as a regular (non-Senior) TBM. 11. ‘In contrast, Brown regularly disregarded comments made by female TBMs at meetings, overlooked female TBMs for committee assignments, refused to participate in promotions female TBMs sought in the company, and assigned female TBMs to more administrative tasks, such as finding a dinner location for group meetings. 12. —_Erickson’s coworkers noticed the same issues. Lenoue noticed Brown favored men when deciding opportunities at the regional level. Brown spent more time PROPOSED PRETRIAL ORDER -7 of 46 eodo oes a GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 ______ TACOMA, WASHINGTON 984020

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and energy helping male TBMs apply for promotions within the company, including helping them prepare for interviews. 13. Shane Volkmann also noticed and reported Brown's favorable treatment of men over women during his meeting with Division Manager Zac Allison in November 2017. Volkmann reported that Brown should be treating her female TBMs better — or at least equally — to the male TBMs. Volkmann also informed Allison that Erickson had reported Brown’s favoritism to him. 14. = In 2017, Zinbryta was a drug in the Biogen portfolio that was FDA approved to treat Multiple Sclerosis (MS). It was hard to sell because of its safety profile; patients had to fail on at least two other drugs before they could be prescribed Zinbryta.t The Tacoma Territory had a quarterly Zinbryta quota of one sale. The incentive compensation, or commission payment for Zinbryta was triggered when a prescriber submitted a Biogen “START form”, not when the drug was actually sold or administered to the patient. 15. Critically, the Zinbryta START form is pre-filled with the International Classification of Disease (ICD) codes for MS, and by signing the START form the provider “certifies that the rationale for prescribing ZINBRYTA therapy is for a primary diagnosis of \CD-9:340/ICD-9:340/ICD-10:435."2 The START form references MS throughout and does not encompass or contemplate any other use, such as an off-label use. 16. In September 2017, Lykins became involved in the prescription of Zinbryta for an off-label use with a Medicare patient with aplastic anemia.

1 Zinbryta was pulled from the U.S. market in March 2018 for safety issues. 2 Both are MS Codes, the code changed in October 2015 and the form includes both versions. See https://icd codes/icd9cm/340 (IDC9 used until October 2015, then ICD-10 code used); see also httos://www.cms.gov/Medicare/Coding/ICD10/index.html. PROPOSED PRETRIAL ORDER -8 of 46 ede aasaaas) GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 21.00 TACOMA, WASHINGTON 984020

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17. On September 14, 2017, Lykins texted Erickson: “There is a Zinbryta form showing up on our list. It is from a hematologist from Olympia.” Knowing that hematologists do not treat MS, Erickson took no steps to attempt to involve herself in this off-label use of Zinbryta. 18. In a discussion with Brown and Erickson, Lykins raised the idea of getting involved to get credit for the sale to the hematologist. Erickson responded that she believed that getting involved in marketing and seeking a commission for an off-label use of a drug with a false diagnosis code for a Medicare patient was a violation of federal law as well as a violation of Biogen’s Code of Conduct. 19. Biogen has a Code of Business Conduct that requires TBMs to report potential issues, such as the off-label use or promotion of a drug. TBMs are instructed: “continue to raise your concern until it has been addressed . . . you should consider contacting your manager’s manager, another manager, the Compliance Helpline, or one of the other resources listed in the Code.” 20. On September 15, 2017, a Biogen case manager questioned whether it was appropriate to participate in the prescription since the drug would not be used for MS treatment. Erickson was concerned Lykins and the provider would engage in Medicare fraud because, if submitted, the pre-filled Zinbryta START form would falsely represent that the prescription was for on-label use to treat MS when it was really for off-label use. 21. On September 18, 2019, Lykins invited Erickson to accompany him to call on the hematologist who was prescribing Zinbryta off-label for a Medicare patient with aplastic anemia. 22. Erickson objected directly to Lykins about the potential false claim to Medicare. When Lykins continued with his involvement to secure a fraudulent START form PROPOSED PRETRIAL ORDER -9 of 46 feasconsees) GORDON THOMS HONEVWELLLLP 1201 PACIFIC AVENUE, SUITE 2100 _____TACOMA, WASHINGTON 984020

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for the off-label Zinbryta prescription, Erickson expressed her concerns to Brown. Brown ignored her concerns and took no action to stop Lykins’ participation in the fraudulent START form. 23. In November 2017, Allison visited Seattle to meet Brown’s sales team. Brown selected Lykins to spend significant time with Allison. During that visit, Allison interacted with Erickson on a limited basis during two introductory meetings. In the first meeting, Lykins and Allison sat in chairs in front of the doctor and Erickson sat behind them. This meeting lasted less than an hour and Lykins and Allison did most of the talking. The second meeting was 10 to 15 minutes with a Veterans Affairs (VA) doctor, in which no sales were discussed as the meeting was primarily to introduce Allison. At the end of that day during dinner, Erickson voiced her opposition to Allison directly about Lykins’ attempts to earn a commission on the off-label Zinbryta sale. 24. Just after Allison left Seattle and Erickson’s attempts to protest Lykins’ campaign to get a START form and commission for the off-label sale, Lykins texted Erickson on November 16, 2017: “We are finally going to get a start form for the aplastic anemia patient in Olympia.” 25. Biogen uses the submission of Zinbryta START forms as a trigger to pay a commission on the sale. The START form is not required for an off-label use, and there are other forms that will allow the physician to fill the prescription, such as working directly with a specialty pharmacy, since the drug requires a special monitoring process due to its dangers. 26. ‘The only purpose of submitting a fraudulent START form in the context of an off-label prescription of Zinbryta would be to obtain a commission on the sale.

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27. TBMs are not supposed to receive commission payments for off-label use of Biogen drugs. 28. However, Biogen’s Incentive Compensation department makes no effort to ensure that commissions are not paid for off-label sales of Biogen products. 29. On December 1, 2017, Biogen’s CEO sent an email about obligations to report. On December 4, 2017, Brown sent an email congratulating Erickson’s territory for meeting their Zinbryta goal. The only Zinbryta sale ever discussed or in the pipeline at this time was the off-label sale. Erickson believed Brown’s email confirmed the hematologist in Olympia had submitted the Zinbryta START form, misrepresenting to Medicare that the prescription was for MS instead of aplastic anemia. 30. TBMs cannot participate in promotion of any off-label use of a Biogen product and must “take special care to avoid even the appearance of unduly influencing” : clinical decisions, promoting Biogen products only “for the uses that have been approved” by the FDA. 31. After Lykins, Brown, and Allison disregarded Erickson’s verbal reports, and believing that Brown’s email confirmed Medicare fraud had occurred, Erickson reported the issue to the Biogen ethics hotline on December 6, 2017. Her report notes that, “Danita confronted Mary [Brown] and is currently in fear of retaliation.” 32. Erickson reviewed the Zinbryta patient disposition report that she could view on her computer and it reflected “Therapy Initiated” for the aplastic anemia patient on December 9, 2017. 33. Erickson followed up by speaking to Biogen’s in-house counsel Dan Curto in December 2017, when he investigated Erickson’s reports. Curto also interviewed Lykins and Brown, and spoke to Keri Palacio in Human Resources. PROPOSED PRETRIAL ORDER -11 of 46 aascon teas) SSqnerpien one um 12011 PACIFIC AVENUE, SUITE 2100 TACOMA, WASHINGTON 98402

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34. Notably, after speaking with Curto, Brown was instructed to take action to ensure that her region would not receive a commission on the off-label sale reported by Erickson. 35. In January 2018, about a month after Erickson filed her report and Curto launched his investigation, Erickson spoke to HR manager Keri Palacio about Brown’s repeated commentary regarding her migraines, as well as Brown's preferential treatment of male TBMs and her retaliation concerns. Erickson was the second Biogen employee to report Brown's preferential treatment of men to Biogen, as Volkmann had reported directly to Allison months earlier. 36. Contrary to company policy, Palacio did not investigate the allegations because she and Allison “did not feel that the statement was justified.” Palacio determined after speaking to Biogen in-house counsel Curto that Erickson’s (and Volkmann’s) reports regarding Brown were not reports of discrimination. Palacio took contemporaneous notes of Erickson’s reports, which were not preserved or produced in this lawsuit. Neither Palacio nor Allison documented Volkmann’s report, but they made the decision that Allison would verbally counsel Brown regarding Erickson’s report during her 2017 year-end review in January or February 2018. 37. When the Biogen finally produced its patient file for the aplastic anemia patient following the Order of this Court to do so, it confirmed that forms signed and submitted by the physician used the MS diagnosis code. It also confirms this patient's primary medical insurance was Medicare. Nowhere in the patient file does it explain this is an off-label use of Zinbryta for aplastic anemia. 38. In late January or early February 2018, Brown contacted Todd Billet, who oversaw Biogen’s Incentive Compensation department at the time, to tell him that a PROPOSED PRETRIAL ORDER -12 of 46 edb oaanaces) GORDON THON MAS HON EYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 _____ TACOMA, WASHINGTON 984020

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commission should not be paid on the off-label Zinbryta prescription to the Medicare patient. 39. On February 20, 2018, Brown emailed Billet to remind him about “the ZIN start form for Tacoma that should not count.” Billet responded: “Confirming that this ZIN SF [START form] was flagged and removed from IC [incentive compensation] crediting. 40. TBMs are competitively rated in OPR’s in comparison with other TBMs in their peer group. The guidelines Biogen provides to instruct how to rate TBMs state that “stakeholder feedback” from peers or customers is the “key to a fair review.” 41. In the OPR’s TBMs are rated in two categories with numerical ratings (1=Developing; 2=Proficient; or 3=Excels). The first OPR category rated is based on the TBM'’s objective sales data and performance, and the second OPR category rated is based upon the regional manager’s subjective assessment of four “competencies.”. The competencies rated are: (1) territory and account planning, (2) business knowledge, (3) sales disposition, and (4) customer-focused selling. 42. By late January 2018, Brown and Allison identified Erickson for realignment, in other words - termination - and placed her on a list of “bottom performers” presented publicly at a division meeting. 43. This behind-the-scenes decision was made a month before Biogen directed Brown to evaluate TBMs in her territories for the RIF and before Brown was even aware of the RIF criteria.3 Allison ratified the decision to terminate Erickson as did Palacio.

3 Incidentally, this decision also came before Erickson received her 2017 year-end performance review, in which she was given a solid 2/2 rating as compared with the rest of her peers. Her 2017 end of year review did not indicate any problems with performance, although she had already been selected for termination and was allegedly “developing” in customer focused selling. PROPOSED PRETRIAL ORDER -13 of 46 eascoattees) GORDON Tose HONEYWELL LP 1201 PACIFIC AVENUE, SUITE 2100 _____ TACOMA, WASHINGTON 98402

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44, On January 19, 2018, Brown sent Allison a text describing a concern and desire not to “expose” herself, in reference to their plan to terminate Erickson. 45. Not knowing she had already been identified for termination, Elickeon repeated her concerns about Brown to Palacio in February 2018. 46. A month later, in mid-February 2018,4 Palacio sent the RIF criteria to managers: The first step was to compare territory TBMs’ OPR ratings from performance reviews, the second step was to subjectively rate the TBMs in three sales competencies, and the third step was based on tenure with the company. Biogen did not consider sales performance in the 2018 RIF aside from the OPR rating. A7. Plaintiff provided Defendant with “solid” or better job performance at mid- year and year-end each and every year following her hire. 48. __ Erickson never received a “developing” rating on any OPR category during her entire employment with Biogen. AQ. Plaintiff was given a rating of “2/2” defined by Biogen as “solid” on her 2016 and her 2017 annual OPRs, signifying that she met sales expectations and was proficient in all four sales competencies. 50. On the first evaluation step, Erickson and her peers had all received the same OPR rating of 2/2 and were all tied. 51. In the second step, Brown subjectively ranked Erickson, Lykins, Lenoue, and Chapman. Brown rated Erickson as “developing” for customer focused selling, giving her the lowest overall score of the four TBMs. Brown rated Chapman “proficient” in all

4 In the meantime, after she had identified Erickson for termination in mid-January, Brown performed Erickson’s final 2017 review in early February, in which she rated Erickson as proficient in all the subjective competencies. PROPOSED PRETRIAL ORDER -14 of 46 2000 cBenaaasy GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 _____TACOMA, WASHINGTON 98402

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areas, although she had rated him “developing” during a 2017 ride along and documented this in a “Field Coaching Report” or FCR. 52. Brown did not review any performance reviews, field ride along reports, sales data, or guidelines for rating TBMs in making her subjective ratings in which she decided Erickson was rated lowest. No written documentation supports Brown’s ranking of Erickson below Lenoue and Chapman in the RIF decision. To the contrary, 2017 regional sales ranking data for these four TBMs in 2017 ranked Lykins first, Erickson, second, Lenoue third and Chapman fourth. 53. The third step was tenure. Had Brown not ranked. Erickson subjectively lower, Chapman would have been selected as he had the least tenure. In reality, Brown and Allison had already made the decision to select Erickson for termination a month before Brown received the RIF criteria to justify the decision. 54. Meanwhile, Palacio ratified the decision to terminate Erickson, despite her knowledge of Erickson’s reports of gender discrimination and FCA reporting and knew of Erickson’s fear of retaliation. Palacio knew also of the other gender discrimination concerns raised about Brown and was concerned that the only two TBMs Brown chose for termination from her territories were women, but the only action Palacio took to ensure it was a fair decision was to discuss it with Brown and Allison. 55. In addition, the territory identified for realignment and reduction was Seattle, not Tacoma. This would have resulted in Chapman’s termination. The RIF territory was expanded to include Tacoma, even though a similar process did not occur with the adjoining Portland and Eugene territories under Brown in Oregon.

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56. Following Erickson’s termination, Lenoue remained in Seattle (the territory being reduced) and her partner Chapman, who had been at Biogen only one year, was moved to Tacoma, replacing Erickson as Lykins’ partner. 57. After Erickson was terminated, Brown told the TBMs that the RIF decision “had all been determined by the HR department.” 58. ‘Following her termination, Erickson was subject to a noncompete, precluding her from selling MS therapies for a year. In addition, a non-solicit prevented her from calling on her former physician clients for two years. 59, Erickson has sought work in a variety of pharmaceutical sales positions. She owns a home in Tacoma and has largely focused on Western Washington-based opportunities. To date she has not yet secured reemployment, despite having numerous interviews and call backs. 60. Erickson has suffered depression, anxiety, and loss of enjoyment of life as a result of the retaliation and wrongful termination, which she has addressed by treatment with her primary care physician, Dr. Dennis Galvon. B. The Defendant contends as follows: 1. Biogen is a biotechnology company that researches, develops, markets, and manufactures therapies for people living with serious diseases, including Multiple Sclerosis. □

2. Biogen trains all new managers regarding Biogen’s Non-Discrimination and Non-Harassment Policy and its Code of Business Conduct. 3. Biogen’s Commercial Field Sales organization is responsible for selling Biogen’s therapies.

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4, The Patient Services department works with Field Sales to help patients, healthcare providers and pharmacists by providing information and_ facilitating prescriptions. 5. Biogen divides its Field Sales organization into Divisions, each led by a Divisional General Manager. Divisions are divided into Regions, and Regions are divided into Territories. Biogen periodically reorganizes its Field Sales organization based on business needs and sales strategy. 6. A Regional Director leads each Region, and TBMs are the Field Sales employees primarily responsible for selling Biogen’s therapies. 7. Zinbryta was one of Biogen’s MS therapies in 2017. 8. Mary Brown became the Regional Director for the Northwest Region in January 2016. 9, An Executive TBM is generally more experienced than a Senior TBM, and a Senior TBM is generally more experienced than a TBM. 10. = In March 2016, Biogen hired Senior TBM Gary Huffman, and in April 2016, Biogen hired TBM Kathryn Barth. 11. The Northwest is within the West Division and covers Washington, Oregon, Idaho, and Alaska. 12. Zac Allison became the West Division General Manager in September 2017. 13. In the fall of 2017/winter of 2018, the Northwest Region had a total of 10 TBMs. 14. Four TBMs were based in the Seattle/Tacoma area. They were Plaintiff, Sr. TBM; James Lykins, Executive TBM; Sarah Lenoue, Senior TBM; and Matt Chapman. PROPOSED PRETRIAL ORDER -17 of 46 (2:18-cv-01029-JCC) LAW OFFICES OSes) GORDON THOMAS HONEYWELL LLP “TACOMA, WASHINGTON 98402

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15. Mr. Chapman has many years of experience in the biopharmaceutical industry. 16. Plaintiff and Lenoue are friends who have known each other for many years. 17. One of the ways in which Brown assessed her TBMs was to observe them in the field. Brown created Field Coaching Reports (FCR) containing notes of her observations. The lone “developing” comment that Brown noted for Chapman did not relate to the RIF or to the competency Customer-Focused Selling. That lone “developing” comment that Brown made in an FCR regarding Chapman was made only a few weeks after Chapman started working in the field at Biogen and only about ten weeks after he started the job. 18, Biogen works with a consulting firm, ZS Associates, to evaluate its business needs of the company’s regions and territories in order to determine ways to best meet business objectives. In 2017, Biogen consulted with ZS Associates for this purpose. 19. ZS Associates made recommendations to Biogen for how best to achieve its goals for the Northwest Region, and that included a realignment, which in turn meant reducing the Seattle-Tacoma area TBMs from four to three. 20. The process involved first evaluating the four TBMs’ annual performance rating scores, or OPR, for 2016 and 2017. If no TBM was lower than others, the next step. was for Brown to compare the four TBMs in three Functional and Behavior Competencies selected at the corporate level: (1) Territory and Account Planning; (2) Customer-Focused Selling; and (3) Sales Disposition. 21. The competency analysis is completely separate from the annual performance review and OPR evaluation, which rating is based each employee’s PROPOSED PRETRIAL ORDER -18 of 46 (2:18-cv-01029-JCC) LAWOFFICES (4848 0341-4441) GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 ____TACOMA, WASHINGTON 98402 >

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performance over the prior twelve months and whether the employee achieved their specific performance goals. The competency assessment process during the RIF required a forward-looking analysis of the TBMs’ competencies to assess which employees would be retained. 22. Biogen does not have a written policy regarding RIFs, nor a specific process. Thus, the company did not deviate from any policy or process in using the Functional and Behavioral Competences as part of the selection for the RIF. No policy or practice required Brown to seek “stakeholder feedback” in the RIF evaluation. 23. Brown did not choose the competencies, structure or framework for the RIF, nor was she involved in the decision to conduct a RIF. 24. With respect to the Competencies, Brown rated Lenoue and Lykins identically, and she rated Chapman slightly above Plaintiff. This resulted in Plaintiff receiving the lowest score of four, which in turn resulted in her being selected for lay off. 25. In Brown's judgment, Plaintiff was less competent than her peers in the area of Customer-Focused selling. Allison shared this view based on his interactions with the four Seattle-Tacoma area TBMs. 26. Brown was the primary decision maker as to which TBM should be laid off, but Allison supported her decision to select Plaintiff. 27. Plaintiff was not identified for selection in the RIF by late January 2018 by Brown and Allison. Zac Allison’s January 2018 talent assessment in which he identified Plaintiff as a bottom performer was unconnected to the RIF, and Brown was not aware of Allison's assessment of Plaintiff as a bottom performer at any time before Plaintiff’s layoff. Brown only learned of Allison’s assessment during the course of this litigation.

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28. Brown's text message to Allison regarding not wanting to “expose” herself did not relate to Brown’s decision to select Plaintiff for RIF. The context of that text message shows Brown striving for fairness and consistency regarding compensation for her TBMs in view of their similar rating and not wanting to appear unfair. 29. Plaintiff subjectively believes that Biogen should have chosen Chapman instead of her for layoff. Chapman’s and Plaintiff's 2017 OPRs show that overall, Chapman’s sales numbers for 2017 were as good or better than Plaintiff's for that year, which was Chapman's first year with the company. Chapman has received positive ratings on his performance evaluations throughout his employment with Biogen. 30. Palacio did not “ratify” the decision to select Plaintiff for reduction in force. That decision was made by Brown and approved by Allison. 31. The only medical condition Plaintiff claims constitutes a disability is migraines. 32. Plaintiff's migraine condition does not constitute an actual disability for her. 33. Biogen never perceived Plaintiff to be disabled. Her condition is transitory and minor. 34. Plaintiff's migraines did not affect her work in any material way. 33. Plaintiff was sincerely grateful for Brown’s help, and Plaintiff expressed that gratitude in texts messages to Brown the next morning. 34. At a company event where strobe lights were bothering Plaintiff, Brown suggested that Plaintiff could sit away from the lights. Plaintiff rejected Brown's suggestion.

PROPOSED PRETRIAL ORDER -20 of 46 (2:18-cv-01029-JCC) tavnéerees ERE aes) GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 ______TACOMA, WASHINGTON 984020

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35, Plaintiff did not experience a migraine or miss work because of a migraine between September 5, 2017, and March 20, 2018, when she was informed of her lay off. 36. Throughout her employment, Plaintiff made no accommodation requests to . Biogen or to Brown soesnieally relating to migraines, never asked to be relieved of any duties, and rarely called in sick. 37. Biogen never demoted Plaintiff, transferred Plaintiff against her will, or gave her unreasonable work assignments. Biogen never decreased Plaintiff's compensation or altered her job duties. 38. Brown showed exceptional empathy and compassion for Plaintiff during the September 5, 2017 migraine incident that Plaintiff experienced. Brown herself has experience with migraines, and had nothing but empathy for Plaintiff’s situation. 39. Brown had a single conversation with one of Plaintiff's co-workers, Jim Lykins, about Plaintiff having a migraine. Lykins, not Brown, initiated that conversation by asking about Plaintiff out of concern for her well-being. Brown immediately informed Lykins that it was not an appropriate topic of conversation, and the two never discussed the matter again. 35. ‘Plaintiff's good friend and co-worker Lenoue overheard part of the conversation between Lykins and Brown, but she did not hear anything that Brown said, and it was the only time Lenoue is aware of Brown being involved in a discussion in which Plaintiff's migraines were mentioned. 36. Brown did not question Plaintiff about her migraines. 37. Brown never displayed any form of animosity, anger, dissatisfaction, or frustration with Plaintiff regarding Plaintiff's migraine condition. Brown never made any negative or disparaging comments about Plaintiff's migraine condition. PROPOSED PRETRIAL ORDER -21 of 46 ereazer-aaa] GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 _____ TACOMA, WASHINGTON 98402 |

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38. Brown never asked Lykins or any other employee of Biogen about Plaintiff's migraines. 39. Brown believed that Plaintiff's migraines had no impact on her ability to perform her job, and Brown never believed or stated otherwise. 40. The only materially adverse action Plaintiff experienced was her lay off. 41. Plaintiff's migraine(s) played no role in Brown’s decision to select Plaintiff for layoff. 42. Plaintiff told others that air travel was a trigger for her migraines. 43. Plaintiff did not complain to Biogen about disability discrimination. 44. Any alleged complaints about Brown discussing her migraine condition played no role in Biogen’s decision to lay off Plaintiff. 45. The field sales team in the Northwest Region was predominantly male when Brown became the Regional Director in 2016. 46. Brown treated men and women equally in every respect. 47. Brown did not favor men over women. To the contrary, Brown treated all of her team members equally. Brown supported women a great deal in her region, including helping them apply for and obtain promotional opportunities. Brown encouraged and involved her female team members, including participating in promotions female TBMs sought. 48. Volkmann did not tell Allison that Brown favored men. Nor did Volkmann tell Allison that Plaintiff came to Volkmann to complain about alleged male favoritism. 49. Brown held Plaintiff to the same performance standards she held her male subordinates to.

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50. Biogen compensated Plaintiff comparably to her peers, regardless of gender. Plaintiff was more highly compensated than Chapman. 51. When Brown was comparing the four Seattle-Tacoma area TBMs for purposes of the layoff, she rated both a man (Lykins) and a woman (Lenoue) equally with the highest rating among the four. 52. Biogen did not replace Plaintiff. 53. Plaintiff's subjective belief that Brown favored men played no role in Brown's decision to select Plaintiff for layoff. 54, Brown did not know Plaintiff had expressed an opinion that Brown favored men. 55. ~~ Volkmann did not tell Allison that Brown favored men. He told Allison that Brown could support her female colleagues better. 56. Allison informed Brown that there was a perception that she favored men, but Allison did not inform Brown that it was Plaintiff or any other specific employee who had that perception. 57. When Brown was deciding which TBM to select for layoff, she did not know that Plaintiff had ever held or expressed the opinion that Brown favored men. 58. Off-label prescribing and use are distinct from “off-label promotion” or “off- label marketing,” which refers to a company promoting a drug for an unapproved use. 59. Biogen paid only one sales commission for a Zinbryta prescription in the Northwest Region in the fourth quarter of 2017. That was for an on-label prescription written by a neurologist in Alaska, Dr. Wayne Downs. 60. No Biogen employee ever promoted or marketed Zinbryta for an off-label use in any way. PROPOSED PRETRIAL ORDER -23 of 46 edeoael aaa) GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 _____TACOMA, WASHINGTON 98402

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61. In September 2017 Biogen received a Zinbryta enrollment form for a non- MS patient from a hematologist in Olympia. Before writing the prescription, the doctor never contacted Lykins, Erickson, or any other Biogen TBM to discuss the prescription or met with any sales representatives from Plaintiff's region. 62. This was a prescription for an off-label use because the Food and Drug Administration (FDA) approved Zinbryta for the treatment of MS. 63. The patient in question had already received permission from the patient’s insurance company, an agent of Medicare, to receive Zinbryta for treatment of anemia. 64, Plaintiff knew that the anemia patient had already been approved for Zinbryta. 65. Biogen’s Patient Services asked Lykins to provide the prescribing doctor a Zinbryta Start Form to facilitate the doctor’s obtaining the medication for the patient. 66. Mr. Lykins provided the form to the doctor's office. He never spoke to or interacted directly with the doctor and never promoted the prescription to anyone in the doctor’s office. 67. Biogen did not submit a false claim to the government or otherwise commit fraud relating to this Zinbryta prescription, and no objectively reasonable person in Plaintiff's position could have believed otherwise. 68. Plaintiff's complaint on or about December 6, 2017, was based on her purely subjective, but objectively unsupportable beliefs. 69. Until this lawsuit, Brown and Allison did not know that Plaintiff had submitted a complaint about alleged off-label promotion of Zinbryta.

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70. ‘Plaintiff relies on the same facts to support her statutory claims as she relies on to support her common law wrongful discharge claim. That claim is entirely duplicative of Plaintiff's statutory claims. TA; Plaintiff did not engage in public-policy linked conduct under the Washington Consumer Protection Act because her complaint was purely private in nature. 72. Even if Plaintiff's conduct in complaining about off-label Zinbryta promotion were deemed public-policy linked conduct, it played no role in any decision Biogen made. 73. Plaintiff never heard Brown make any sort of a derogatory remark about Plaintiff. 74. Plaintiff accuses only Brown of sex discrimination. 75. Plaintiff never heard Brown make a derogatory remark about people with migraines or other medical conditions or about women. 76. Brown gave the two male and two female TBMs in the Seattle-Tacoma area the same OPR scores for 2017. 7/f. Physicians have discretion and are legally authorized to prescribe approved therapies for uses that the Food and Drug Administration has not authorized in the label. Off-label therapies prescribed by physicians may be lawfully used by patients. 78. Brown, Allison, and Palacio did not decide to initiate the Field Sales reorganization that ultimately resulted in Plaintiff's lay off. 79. In March 2018 Matt Chapman’s base salary was $ 123,807.60. 80. Plaintiff's non-compete expired in March 2019. Plaintiff entered into the non-compete agreement voluntarily. She received more than $36,000 in cash and stock in exchange. The non-compete limited Plaintiff from working in a role involving the sale of

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MS products for 1 year. The customer non-solicitation agreement prevented her only from soliciting customers she herself had called on at Biogen. 81. ‘Plaintiff has not satisfied her duty to mitigate damages. 82, Plaintiff's gender, alleged disability, or prior complaint about the Zinbryta prescription played no role whatsoever in Brown’s decision to select Plaintiff for □

termination. Regardless of Plaintiff's alleged protected category or activity, Biogen would have made all of the same decisions relating to Plaintiff's employment that it made regardless of the protected category or activity. V. ISSUES OF LAW PLAINTIFF: ‘Ls Did the conduct, acts, and omissions of Defendant constitute disability discrimination in violation of the ADA where Defendant treating Plaintiff less favorably than her peers based upon its regarding her as being disabled, and in that Plaintiff's perceived disability was a motivating factor in her termination? 2) Did the conduct, acts, and omissions of Defendant constitute disability discrimination in violation of the WLAD where Plaintiff's perceived disability was a substantial factor in Defendant treating plaintiff less favorably than her peers, and in that Plaintiff's perceived disability was a substantial factor in her termination? 3. Did the conduct, acts, and omissions of Defendant constitute sex discrimination in violation of Title VII by treating plaintiff less favorably than her peers because of her sex and wrongfully terminating plaintiff because of her gender? 4. Did the conduct, acts, and omissions of Defendant constitute sex discrimination in violation of the WLAD where Defendant treated plaintiff less favorably

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than her peers based upon her sex, and in that Plaintiff's sex was a substantial factor in her termination? 5. Were the conduct, acts, and omissions of Defendant of a nature that they would dissuade a reasonable person in Plaintiff's position from engaging in protected activity and constitute retaliation in violation of the ADA? 6. Were the conduct, acts, and omissions of Defendant of a nature that they would dissuade a reasonable person in Plaintiff's position from engaging in protected activity and constitute retaliation in violation of Title VII? ts Were the conduct, acts, and omissions of Defendant of a nature that they would dissuade a reasonable person in Plaintiff's position from engaging in protected activity and constitute retaliation in violation of the WLAD? 8. Did the conduct, acts, and omissions of Defendant constitute retaliation in violation of the FCA by taking adverse action against plaintiff motivated by her FCA reporting? 9, Was Plaintiff's whistleblowing activity regarding potential fraudulent conduct a motivating factor in terminating Plaintiff's employment in violation of public policy of the state of Washington? DEFENDANT: 1. Perceived Disability: Under the ADA and WLAD, can Plaintiff prove by a preponderance of the evidence that Biogen perceived her to be disabled? 2. ADA Disability-Based Disparate Treatment: Under the ADA, can Plaintiff prove by a preponderance of the evidence that, but for a perceived disability, Plaintiff would still be employed by Biogen?

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WLAD Disability-Based Disparate Treatment: Under the WLAD, can Plaintiff prove by a preponderance of the evidence that a perceived disability was a substantial motivating factor in her lay off? 4. Gender-Based Disparate Treatment: Under Title VII and the WLAD, can Plaintiff prove that by a preponderance of the evidence that her gender was a substantial motivating factor in her lay off? 5. ADA Retaliation: Under the ADA, can Plaintiff prove by a preponderance of the evidence that, but for alleged opposition to disability discrimination, she would still be employed by Biogen? 6. Title Vil Retaliation: Under Title VIl, can Plaintiff prove by a preponderance of the evidence that, but for alleged opposition to gender discrimination, she would still be employed by Biogen. f. WLAD Retaliation: Under the WLAD, can Plaintiff prove by a preponderance of the evidence that alleged opposition to disability or sex discrimination was a substantial motivating factor in her layoff? 8. False Claims Act: Under the False Claims Act, can Plaintiff prove by a preponderance of the evidence that she had an objectively reasonable good faith belief that Biogen defrauded the federal government? 9. False Claims Act: Under the False Claims Act, can Plaintiff prove by a preponderance of the evidence that, but for her complaint of off-label promotion of Zinbryta, she would still be employed by Biogen? 10. Wrongful Discharge: Can Plaintiff prove by a preponderance of the evidence that she engaged in public-policy-linked conduct and that such conduct was a significant motivating factor in Biogen’s layoff decision? PROPOSED PRETRIAL ORDER -28 of 46 eaboebaees) GORDON THOMAS HONEYWELL LLP

11. Wrongful Discharge: Even if Plaintiff proves that public policy linked conduct was a significant motivating factor in the decision to lay her off, did Biogen have an overriding justification for its decision? 12. Bifurcation: Should the Court bifurcate the trial into liability and damages phases given that the evidence relating to liability and damages is distinct and bifurcation will be more efficient and prevent unfair prejudice? 13. Mitigation: Did Plaintiff satisfy her obligation to use reasonable efforts to mitigate economic and non-economic damages? 14. Title Vil and ADA Same Decision Defense: Under Title VIl and the ADA, did Defendant prove by a preponderance of the evidence that it would have made the same decisions affecting Plaintiff even in the absence of her ADA and Title VIl protected status or activity? 15. WLAD Same Decision Defense: Under the WLAD, did Defendant prove by clear and convincing evidence that it would have made the same decisions affecting Plaintiff even in the absence of her ADA and Title VII protected status or activity? 16. Punitive Damages: Is there evidence of malice or reckless indifference by Biogen sufficient to permit the jury to consider punitive damages under the Title VII or for disparate treatment under ADA? 17. Compensatory and Punitive Damages for ADA Retaliation: Is plaintiff barred from seeking compensatory and punitive damages for retaliation under the ADA given that 42 U.S.C. § 1981a and controlling Ninth Circuit law do not allow for those damages under the ADA for retaliation?

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Vi. EXPERT WITNESSES A. On behalf of Plaintiff: | WILL TESTIFY OR NAME & ADDRESS | MAY TESTIFY AREA OF TESTIMONY Christina Tapia, Ph.D. Will testify The past and future economic NW Economics damages suffered by Plaintiff. 1416 NW 46" Street Suite 105 ~ PMB 337 Seattle, WA 98107 B. On behalf of Defendant: | WILL TESTIFY OR oe ie es NAME & ADDRESS | MAY TESTIFY AREA OF TESTIMONY | William B. Skilling Address: May testify Reasonableness of plaintiff's 3814 E Lee St, mitigation efforts, available Seattle, WA 98112 comparable job openings Phone: (206) 227-9675 Peter Nickerson Will testify Economic damages Plaintiff alleges. Address: 520 Pike St # 1200, Seattle, WA 98101 Phone: (206) 332-0270 Vil. OTHER WITNESSES The names and addresses of witnesses, other than experts, to be used by each party at the time of trial and the general nature of the testimony of each are: A. On behalf of Plaintiff: oe = Re WILL TESTIFY OR | NAME & ADDRESS : MAY TESTIFY AREA OF TESTIMONY Danita Erickson Will testify Plaintiff will testify as to her c/o Gordon Thomas Honeywell LLP disability, abilities, actions, 1201 Pacific Ave., Suite 2100 Defendant’s wrongful conduct Tacoma, WA 98402 including acts of discrimination, fraud, retaliation, and damages.

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WILL TESTIFY OR

Katherine Scheibner (Duddy) Will testify Knowledge of Plaintiff's 22804 East Settler Dr. damages. Liberty Lake, WA 99019-8503 (509) 496-2975 Kds34961@gmail.com Andrea Donovan Will testify Knowledge of Plaintiff’s 30625 43” Ave. SW damages. Federal Way, WA 98023-2132 (253) 230-6506 Andrea.donovan@iqilaw.com Danielle Molzan Will testify Knowledge of Plaintiff's 6717 77* Ave. Ct. NW damages. Gig Harbor, WA 98335 (253) 348-4345 daniellemolzan@gmail.com Mary Brown Will testify? Knowledge of events giving rise c/o Jackson Lewis, PC to this case and Rule 30(b)(6) 520 Pike Street, Suite 2300 topics. Seattle, WA 98101

Zachary Allison Will testify® Knowledge of events giving rise c/o Jackson Lewis, PC to this case and Rule 30(b)(6) 520 Pike Street, Suite 2300 topics. Seattle, WA 98101

Keri Palacio Will testify” Knowledge of events giving rise c/o Jackson Lewis, PC to this case and Rule 30(b)(6) 520 Pike Street, Suite 2300 topics. Seattle, WA 98101

5 Plaintiff has agreed to present this witness live based on Biogen’s representation that she will be made available when needed by Plaintiff. Should Biogen reneg, deposition designations were submitted and will be used instead. Plaintiff has agreed to present this witness live based on Biogen’s representation that he will be made available when needed by Plaintiff. Should Biogen reneg, deposition designations were submitted and will be used instead. PROPOSED PRETRIAL ORDER -31 of 46 (2:18-cv-01029-JCC) eueOreees Fated asia) GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 ____TACOMA, WASHINGTON 984020

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WILL TESTIFY OR | NAME & ADDRESS MAY TESTIFY AREA OF TESTIMONY Ryan MacLean Will likely testify | Knowledge of events giving rise c/o Jackson Lewis, PC via deposition* _| to this case and Rule 30(b)(6) 520 Pike Street, Suite 2300 topics. Seattle, WA 98101

Sarah Lenoue Will testify Knowledge of events giving rise c/o Jackson Lewis, PC to this case and Rule 30(b)(6) 520 Pike Street, Suite 2300 topics. Seattle, WA 98101

Shane Volkmann Will testify Knowledge of events giving rise c/o Jackson Lewis, PC to this case. 520 Pike Street, Suite 2300 Seattle, WA 98101

Kate Murphy Will testify via Knowledge of events giving rise c/o Jackson Lewis, PC deposition* to this case and Rule 30(b)(6) 520 Pike Street, Suite 2300 topics. Seattle, WA 98101

Michael Parran Will testify via Knowledge of events giving rise c/o Jackson Lewis, PC deposition* to this case and Rule 30(b)(6) 520 Pike Street, Suite 2300 topics. Seattle, WA 98101

Susan Hajek Will testify Knowledge of events giving rise 2139 N. 524 Street ~ to this case. Seattle, WA 98103 (206) 930-2321 susanhajek@hotmail.com

? Plaintiff has agreed to present this witness live based on Biogen's representation that she will be made available when needed by Plaintiff. Should Biogen reneg, deposition designations were submitted and will be used instead. PROPOSED PRETRIAL ORDER -32 of 46 (2:18-cv-01029-JCC) LAW OFFICES eee a) GORDON THOMAS HONEYWELL LLP 1204 PACIFIC AVENUE, SUITE 2100 TACOMA, WASHINGTON 98402

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WILL TESTIFY OR | NAME & ADDRESS MAY TESTIFY | AREA OF TESTIMONY Dr. Dennis Galvon Will testify Knowledge of his treatment of 4423 Point Fosdick Dr. NW #212 Plaintiff and Plaintiff's medical Gig Harbor, WA 98335 and emotional condition, (253) 851-8545 abilities, disabilities, and related issues; particularly with respect to emotional trauma as a result of the discrimination. *Defendant objects to Plaintiff presenting testimony by deposition for any witness who is available to testify in person. Each of the witnesses Plaintiff has stated “will likely testify via deposition” is available to testify in person. Ms. Brown, Mr. Allison, and Ms. Palacio will testify in person for the defense. Defendant objects to Mr. MacLean or Mr. Parran testifying at all, and may object to Ms. Murphy testifying depending on the Court’s rulings on summary judgment and motions in limine. Defendant further objects to MacLean, Parran, or Murphy testifying by deposition since Plaintiff did not designate any deposition testimony of these witnesses in compliance with LCR 16 or 32(e). Plaintiff responds that none of these witnesses are “available” under Rule 32 to Plaintiff and it has no obligation to accept Defendant's desire to have them live. With respect to MacLean, Murphy and Parran. They were timely identified as testifying via deposition and no designations were provided since the Plaintiff planned to present their entire (and short) depositions thus no “portions” were designated. B. On behalf of Defendants: ‘WILL TESTIFY OR NAME AND ADDRESS POSSIBLE ONLY AREA OF Mary Brown Will testify Defendant's field sales operations in c/o Jackson Lewis, PC the Northwest Region, 520 Pike Street, Suite 2300 communications with Biogen Seattle, WA 98101 employees, the 2018 reduction in force, reasons for Plaintiff’s lay off

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WILL TESTIFY OR Zachary Allison Will testify Defendant’s field sales operations in c/o Jackson Lewis, PC the Northwest Region, 520 Pike Street, Suite 2300 communications with Biogen Seattle, WA 98101 employees, the 2018 reduction in force, reasons for Plaintiff's lay off Keri Palacio Will testify Biogen’s policies and practices c/o Jackson Lewis, PC relating to equal employment, non- 520 Pike Street, Suite 2300 discrimination, non-retaliation, Seattle, WA 98101 employee training, her communications with Biogen employees, including Plaintiff Sarah Lenoue May testify Her experience working at Biogen c/o Jackson Lewis, PC including her experience and 520 Pike Street, Suite 2300 communications with Plaintiff, Mary Seattle, WA 98101 Brown, Zac Allison. Matthew Chapman Will testify His experience working at Biogen c/o Jackson Lewis, PC including his experience and 520 Pike Street, Suite 2300 communications with Plaintiff, Mary Seattle, WA 98101 Brown, Zac Allison relevant to Plaintiff's claims and Defendant’s defenses James Lykins May testify The off-label Zinbryta issue, his c/o Jackson Lewis, PC communications with Plaintiff, 520 Pike Street, Suite 2300 Brown, and other Biogen employees Seattle, WA 98101 relevant to Plaintiff's claims and Defendant’s defenses Katie Barth May testify by Her experience working at Biogen, 3324 Northeast Klickitat Street, | deposition her termination, her job search, and Portland, Oregon, 97212 her subsequent employment Amo Cummings Nasedkin Will testify Her experience working with Mary Address: 3366 Chevy Chase St., Brown, observations about Ms. Eugene, OR 97401 Brown’s treatment of female employees. Kate Murphy May testify The lack of a commission bonus c/o Jackson Lewis, PC payment for the off-label Zinbryta 520 Pike Street, Suite 2300 prescription Plaintiff complained Seattle, WA 98101 about Dr. Nicole Grous May testify Issues relating to Zinbryta Start Form 420 McPhee Rd SW, Olympia, about which Plaintiff complained WA 98502 including communications with Defendant PROPOSED PRETRIAL ORDER -34 of 46 (2:18-cv-01029-JCC) LAWOERGES Lena Te GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 ______TACOMA, WASHINGTON 98402

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Vill. EXHIBITS A. Admissibility Stipulated 41. Plaintiff's Exhibits

1, | May 23, 2018 BGNO00139-140 2 Yes US Corp Neuro Fld Force Northwest (Mary Brown) Organization Chart TBM Success Profile BGNOQ0O1465-1518 4. | 2017 Biogen Performance BGNO01254-1268 415 Yes Management Process Ratings CONFIDENTIAL Overview April 2017 BGNOO0787-791 5 Yes Non-Discrimination and Non- Harassment Policy April 23, 2018 BGNO01063-1071 Yes Biogen Global Investigations Protocol 40. | Starting your Patients on ZINBRYTA | DE 001209-1211: Yes (daclizumab): Instructions for DE 001213-1217 Healthcare Professionals =

492, | Understanding your Zinbryta START | BG N_ESI_000230 1 Yes Form Goals 13, | Sept. 15, 2017 - Oct. 9, 2017 BGN_ESI_000739- 2 Yes Email chain between Hooper and TAL Lykins RE: REMS ID CONFIDENTIAL 14, | Sept. 14, 2017 BGN_ESI000522-526 5 Yes Email between Hooper and Lykins RE: DISPO 45, | Sept. 5, 2017 DE_001218-1220 3 Yes Screenshot of Dispo (CCS) Patient Disposition 17. | Sept. 18, 2017 BGN_ESI_000724 t Yes Email between Lykins and Brown RE: of note (Zinbryta START) 18. | Nov. 16, 2017 BGNOO1704 □□ Yes Text messages between Erickson, . Lykins and Brown

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19, | Nov. 13, 2017 BGN_ESI_000547- 3 Yes Emails between Allison and Brown 549 RE: Sea/Tac trip itinerary and CONFIDENTIAL information 21, | Dec. 1, 2017 DE_000184 1 Yes Email from CEO Michel Vounatsos RE: Biogen’s Commitment to Non- Discrimination and Non-Harassment 22, | Dec. 4, 2017 DE_000185-186 2 Yes Email from Brown to NW Team RE: QTD Attainment 25. eet a. i a BGN001726-1735 10 Yes ax from Dr. Nicole Grous to Biogen : NFI Subject: Zinbryta PA Approval, Exp. GONRGENTAL 12/31/18 26, | Jan. 19, 2018 BGN_ESI_04245 1 Yes Email from Erickson to Palacio RE: Confidential 29, | Danita Erickson 2017 Mid-Year DE_001949-1953 5 Yes Review 30. | Danita Erickson 2017 Year-End DE 1942-1948 7 Yes Performance Management Review ~ 31, | Oct. 16, 2017 - Jan, 30, 2018 BGNO001746-1754 Yes Text messages between Allison and Brown 33, | Reduction in Force Selection BGNOO0143 Yes Template: Seattle Area - (Tab: HR Assessment of excel GEREN spreadsheet)

36. | June 17, 2017 BGN002734-2737 Yes Biogen Divisional GM Org Changes - “Draft” 44, | Feb. 27, 2018 BGN_ESI_004233- 2 Yes Palacio email to Erickson 4234 RE: Year End Reviews 45, | Feb. 28, 2018 BGN_ESI_001893 1 Yes Palacio email to Lewis RE: Confidential: TA Help 47. | Redacted FCR Details - BGNOO00200 16 Yes Brown Excel Spreadsheet (FRE 4006 Summary) CONFIDENTIAL

PROPOSED PRETRIAL ORDER -36 of 46 (2:18-cv-01029-JCC) LAW OFFICES See] GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 _____TACOMA, WASHINGTON 98402

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#0F | ELECTR. 48. re. 20, oo BGNO001568-1570 3 Yes illet email to Brown RE: Q 4 Scorecard for Tacoma/NW GBNEIRE Niel July 24, 2019 Dkt. 73 14 Yes Declaration of Todd Billet with Exs. 50, | July 13, 2018 BGNO01042-1053 Yes Erickson Pay Statement 53. | Nov. 3, 2015 BGNOO0085-89 5 Yes Retention Award, Non-compete and Non-Solicitation Agreement 55. | April 3, 2018 DE_000277 f Yes Biogen - Erickson statement of earnings -— Zinbryta Bonus payout Danita Erickson Resume DE_000808-809 5g. | Feb. 15, 2018 BGNOO0848; ii Yes Territory Proposals BGNOOO850: (Select Pages) , BGNOO00901-907; BGNOO0910; BGNOOO0914 CONFIDENTIAL 2. Defendant’s Exhibits eee, er #0OF | ELECTR. EXH DESCRIPTION BATES ee Be PAGES PRESENT. A-1 Guidance on Appropriate Palacio Dep Ex 53 14 Yes Commercial/Medical Interactions 7/2016 A-2 Lykins email to Felicia Kelley & BGN_ESI_ 000748- 2 Yes Plaintiff regarding Zinbryta BGN_ESI_ 000749 Patient in Olympia CONFIDENTIAL 11/17/17 A-12 | Lykins 2017 Year End Review BGNOQ00328- 4 Yes BGNOO0331 CONFIDENTIAL A-13 | Chapman 2017 Year End BGNOO1099- Yes Performance Review BGNOO1104 CONFIDENTIAL

PROPOSED PRETRIAL ORDER -37 of 46 (2:18-cv-01029-JCC) CAWORRIERS [484603414444] GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 ____TACOMA, WASHINGTON 98402,

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A-14 | Lenoue 2017 Year End Review BGNOO01165- a. Yes BGNOO01173 CONFIDENTIAL A-15 | Biogen’s Code of Business BGNOQO00792- 56 Yes Conduct [FULL] BGNOO0847 A-16_ | Plaintiff's Code of Business BGNOO0084 4 Yes Conduct Acknowledgement 9/4/11 A-20 Plaintiff's Resume DE_000767- 2 Yes 2018 DE_000768 A-21 | Plaintiff's LinkedIn Profile as of NO Bates No. Yes May 2019 A-23 | Compensation Summary for BGNOOO007 i. Yes Plaintiff A-25 Email from Palacio to Plaintiff BGN_ESI_ 004246 1 Yes 1/19/18 A-26 | Calendar Note for call between BGN_ESI_ 004271 4 Yes Palacio and Plaintiff 1/22/18 A-27 | Calendar Note for call between BGN_ESI_ 004433 ‘L. Yes Palacio and Plaintiff 2/9/18 B. Authenticity Stipulated, Admissibility Disputed 4 Plaintiff's Exhibits #0F | ELECTR. | a [acorn [owns [is [|e 5, | March 2018 BGN_ESI_002063- | 14 Yes | FRE 106 Performance 2067: pages Mise eeici BGN_ESI_002074- | of 43 Management Guidelines 2083 7 and Documentation Skills (14 pages from Doc.) 7. | Accountability Model BGNO01454-1464 | 11 Yes | FRE 401-02 Biogen’s Approach to Corrective Actions Sept. 5, 2017 - Sept. 22, | BGN001529 1 Yes | FRE 106 2017 Text messages between Erickson and Brown PROPOSED PRETRIAL ORDER -38 of 46 (2:18-cv-01029-JCC) LaveseRiges [Renee ea GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 _____TACOMA, WASHINGTON 98402

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16, | Aug. 30, 2017 - Oct. 27, | BGNOO1700 1 Yes | FRE 106 2017 Text messages between Erickson, Lykins and Brown 20. | ZA Survey Raw Data - BGNO01580 21 Yes | FRE 106, 404- 2017 Q4 Pulse, 2018 403 Comments, Responses and Questions (PDF of Spreadsheet) 24, | July 2017 to March BGNOO2440 1 Yes | FRE 401-403 2018 FIDENTI Biogen MS Historical SFs CROGEERVEINL (Spreadsheet - Filtered ZINBRYTA data only - FRE 1006 Summary) 97. | Jan. 1, 2018 BGN_ESI_OO917; [5 Yes FRE 401-403 Allison email to Ide RE: BGN_ESI_000919; West Division Business BGN-ESI_000921; Plan and specific pages | BGN_ESI_1023- from Business Plan 1024 CONFIDENTIAL 28, | Jan. 23, 2018 BGN_ESI_001169- | 2 Yes | FRE 401-403 Email from Lenoue to 1170 Erickson ER: Print-Marketing list SOME of materials for STEM 32, | May 31, 2018 BGNO00155 1 Yes | FRE 401-403, cone Teal bist CONFIDENTIAL page 106 (one page from Doc.) of 55 35. Beacon tn roree NW BGNO02415 4 Yes | FRE 401-403 election Template: Region - (Tab: HR CONFIDENTIAL Assessment of excel spreadsheet) 37. | West Division TBM BGNO02699 1 Yes | FRE 401-403, Calibration Excel 106 Spreadsheet - (Tab: CANGIDENSAE West - TBMs - FRE 1006 Summary)

PROPOSED PRETRIAL ORDER -39 of 46 (2:18-cv-01029-JCC) LAW OFFICES ponent) GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 ____TACOMA, WASHINGTON 98402

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# OF ELECTR. EXH | DESCRIPTION BATES NUMBER OBJECTION 38. oan Division eM BGNO02699 a Yes | FRE 401-403, alibration Exce 106 Spreadsheet - (Tab: CONDE NSTEAL WHAT Rating Definitions of Spreadsheet) 39. a Division TBM BGNO02699 1 Yes | FRE 401-403, alibration Excel 106 Spreadsheet - (Tab: SaPEEETS HOW Rating Definitions of Spreadsheet) 40, | January 2018 BGN_ESI_003932- | 2 Yes FRE 401-403, Biogen Coaching Style 3933 pages 106 Matrix Tool (pp. 7-8 of CONFIDENTIAL of 8 Doc.) 41. | Role Differentiators BGN_ESI_003572- | 2 Yes | FRE 401-403, (pp. 10-11 of Doc) 3573 pages 106 CONFIDENTIAL of 13 42. | Promotions: Role BGN_ESI_003636- | 2 Yes | FRE 401-403, Differentiators 3637 pages 106 Doe.) CONFIDENTIAL ‘| of 14 43, | Feb. 5, 2018 BGN_ESI_001055- Yes | FRE 401-403, Emails between Brown 1060 106 and Erickson RE: VA/DOD abnormalities GUNES ESTAL 46. | March 4, 2018 BGN_ESI_001945 Yes | FRE 401-403 Palacio email to Bowen 51, | Feb. 27, 2019 - April 3, | pDE_000158-161 | 4 Yes | FRE 106 2018 Text Messages between Brown and Erickson RE: RIF 54, | July 30, 2018 - Aug.1, | BGNoOO1654 1 Yes | FRE 401-403 2018 Text messages between Lykins and Brown 56. Mee 8, pore BGNO02774-2778 | 5 Yes | FRE 401-403 egowik email RE: Lega Hold Issued: Danita Mental aN Erickson Legal Hold 59, | January 3, 2018 DE_000223; 2 Yes | FRE 106, 502, Erickson email to Curto | DE 000227 801-802 RE Add'l Docs PROPOSED PRETRIAL ORDER -40 of 46 (2:18-cv-01.029-JCC) woemonerses (4848-:0341-4444] GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 _____TACOMA, WASHINGTON 98402 |

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Dec. 11, 2017 DE_000204-205 | 2 Yes | FRE 801-802 Brown email re - QTD Attainment DE_000204-205 61, | Dec. 11, 2017 DE_000201 1 Yes | FRE 801-802 Lykins text re Zin start form DE_000201 62, | Dec. 18, 2017 DE_000211-212 | 2 Yes | FRE 801-802 Brown email re NW QTD Attainment DE_000211-212 63. | Feb. 13, 2018 BGN_ESI_001485- Yes | FRE 801-802 Palacio Dep. Exh. 52 1492 65, | Biogen 2016-2018 F2-F3 2 Yes | FRE 401-403 Financial Statements FRCP 26(a)(1), from Annual Report FRCP 37 Biogen 2018 Annual 218 Yes | FRE 401-403 Report to Shareholders FRCP 26(a)(1) FRCP 37 2. Defendant’s Exhibits Sal #OF | ELECTR. A-3 Text messages BGNO001683- 25 Yes FRE 401-403, between Plaintiff and | BGNO01707 801, 802 Lykins 1/14/16 - 2/22/18 [FULL] A-4 Text messages BGNO01536- 32 Yes FRE 401-403, between Plaintiff and | BGNOO1567 801, 802 Lykins 8/8/17-4/2/18 A-5 Text messages DE_000070- 61 Yes FRE 401-403, between Plaintiff and | DE_000130 801, 802 Lykins 10/9/17 - 3/23/18 A-6 Text messages BGN001524- 42 Yes FRE 401-403, between Plaintiff and | BGNO01535 801, 802 Brown [FULL] 4/21/17 - 5/8/18 PROPOSED PRETRIAL ORDER -41 of 46 (2:18-cv-01029-JCC) CRWOFFGES Eeteeeras GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 TACOMA, WASHINGTON 98402

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A-7 Text messages DE_000150- 12 Yes FRE 401-403, between Plaintiff and | DE_000161 801, 802 Brown [FULL] 10/9/17 - 4/3/18 A-8 Text messages BGNO01647 □ Yes FRE 401-403, between Brown, 801, 802 Chapman, Lenoue 9/6/18 A-10 Email from Dell DE_000268- 2 Yes FRE 401-403, Faulkingham re DE_000269 801, 802 Evolution of our Customer Facing Model 3/20/18 A-11 Faulkingham email re | BGN_ESI_4161 2 Yes FRE 401-403, reorganization 801, 802 3/23/18 A-17 Plaintiff email to DE_001349- 2 Yes FRE 401-403, Brown withdrawing DE_001350 801, 802 application for IRAM position 12/7/16 A-18 Palacio email to BGNO001591- 10 Yes FRE 401-403, Cashman re BGNOO1600 801, 802 scheduling of STEM Healthcare interviews 12/20/17 A-19 Faulkingham email re | BGN_ESI_O03859- 2 Yes FRE 401-403, STEM Healthcare BGN_ESI_O003860 801, 802 interviews 1/10/18 A-22 Kathryn J. Barth BGNOO0611- 2 Yes FRE 401-403, resume BGNOOO612 801, 802 A-24 Compensation BGNOO1077 1 Yes FRE 401-403, Summary for CONFIDENTIAL 801, 802 Chapman A-28 Plaintiff’s medical GALVON- 94 Yes FRE 401-403, records from Dr. DEOOO001- 801, 802 Galvon GALVON- 5/28/13 - 7/31/19 | DEQOO0094 CONFIDENTIAL PROPOSED PRETRIAL ORDER -42 of 46 (2:18-cv-01029-JCC) LAW OFE [pPRseletoneneny GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 TACOMA, WASHINGTON 98402

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# OF ELECTR. Plaintiff's 2017 W2 | DE_000045 FRE 106, 401- 403 A-30 Separation DE_001890-97 Yes FRE 106, 401- Agreement offered to 403, 408 Plaintiff dated March 2018 (without Ex. A) A-31 Brown FCRs for NW BGN 200 12 Yes FRE 401-403 TBMs from 2017-18 A-32 September 18, 2017 | BGN_ESI_000724 1 Yes FRE 403, FRCP Emails between 26(a)(1), FRCP Lykins, Hajek, 37 Plaintiff, Brown re Zinbryta start form [partially unredacted] C. Authenticity and Admissibility Disputed 1. Plaintiffs’ Exhibits fo □ #OF | ELECTR. |

23. | Dec. 6, 2017 DE_000188-192 5 Yes FRE 403, 801, EthicsPoint - Biogen 802, 901 Report Submission 64 ‘| Dec. 6, 2017 1 Yes | FRE 106, 801, EthicsPoint - Biogen 802, 901, FRCP Report Submission 26(a)(1), FRCP 37 2. Defendant's Exhibits nen | #OF | ELECTR. | Text messages BGN001643- 2 Yes | FRE 401-403, between Lenoue, BGNOO1644 801, 802, 901 Chapman, Lykins, Maureen, and Plaintiff

IX. ACTION BY THE COURT a) This case is scheduled for trial before a jury on October 28, 2019 at 9:30 a.m. b) Trial briefs shall be submitted to the Court on or before October 24, 2019. PROPOSED PRETRIAL ORDER -43 of 46 (2:18-cv-01029-JCC) LAWORFICES [Roster Riaranbatesroe) GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 TACOMA, WASHINGTON 98402

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c) Jury instructions requested by either party shall be submitted to the Court on or before October 24, 2019. Suggested questions of either party to be asked of the jury by the Court on voir dire shall be submitted to the court on or before October 24, 2019. This Order has been approved by the parties as evidenced by the signatures of their counsel. This Order shall control the subsequent course of the action unless modified by a subsequent order. This Order shall not be amended except by order of the Court pursuant to agreement of the parties or to prevent manifest injustice. Dated th is 4pth day of October, 2019. N | _ ( Ca Ma ens, he Honorable John C. Coughenour

Presented By: GORDON THOMAS HONEYWELL LLP

By _/s/ Stephanie Bloomfield Stephanie Bloomfield, WSBA No, 24251 sbloomfield@gth-law.com James W. Beck, WSBA No. 34208 jbeck@gth-law.com Janelle Chase-Fazio, WSBA No. 51254 jchasefazio@gth-law.com Attorneys for Plaintiff

PROPOSED PRETRIAL ORDER -44 of 46 (2:18-cv-01029-JCC) LAW OFFICES (4848-:0341-4441) GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 _____TACOMA, WASHINGTON 984020

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JACKSON LEWIS P.C.

By:_/s/ Michael Griffin Michael Griffin, WSBA #29103 Paul V. Kelly, pro hac vice Sarah W. Walch, pro hac vice michael.griffin@jacksonlewis.com paul. kelly@jacksonlewis.com sarah.walsh@jacksonlewis.com Attorneys for Defendant

PROPOSED PRETRIAL ORDER -45 of 46 (2:18-cv-01029-JCC) [4848-0341-4441] LAW OFFICES GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 TACOMA, WASHINGTON 98402 |

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CERTIFICATE OF SERVICE

| hereby certify that on October 18, 2019, | electronically filed the foregoing with the Clerk of the Court using CM/ECF which will send notification of such filing to the following: Mike Griffin, WSBA No. 29103 Jackson Lewis PC Paul V. Kelly, pro hac vice Sarah W. Walch, pro hac vice 520 Pike Street, Ste. 2300 Seattle, WA 98101 (206) 626-6416 direct Michael. □□□□□□□□□□□□□□□□□□□□□□□□ Heather.Adams@ijacksonlewis.com Sarah.walsh@jacksonlewis.com Paul.kelly@jacksonlewis.com Ross.merritt@jacksonlewis.com Counsel! for Defendant

/sf Tracie Zumach Tracie Zumach, Paralegal TZumach@gth-law.com Gordon Thomas Honeywell LLP

PROPOSED PRETRIAL ORDER -46 of 46 (2:18-cv-01029-JCC) LAW OFFICES Bese GORDON THOMAS HONEYWELL LLP 1201 PACIFIC AVENUE, SUITE 2100 TACOMA, WASHINGTON 98402