Rasvinder Dhaliwal v. Salix Pharmaceuticals, Ltd.

CourtDistrict Court, S.D. New York
DecidedOctober 9, 2019
Docket1:15-cv-00706
StatusUnknown

This text of Rasvinder Dhaliwal v. Salix Pharmaceuticals, Ltd. (Rasvinder Dhaliwal v. Salix Pharmaceuticals, Ltd.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rasvinder Dhaliwal v. Salix Pharmaceuticals, Ltd., (S.D.N.Y. 2019).

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------X : RASVINDER DHALIWAL, : : Plaintiff, : 15cv706(DLC) : -v- : OPINION AND ORDER : SALIX PHARMACEUTICALS, LTD., : : Defendant. : : -------------------------------------- X

APPEARANCES

For the plaintiff: Danilo Bandovic Derek Smith Law Group, PLLC One Penn Plaza, Suite 4905 New York, New York 10119

For the defendant: Benjamin J. Razi Steven Winkelman Covington & Burling LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001

DENISE COTE, District Judge: Following remand from the Court of Appeals, the defendant has renewed its motion for summary judgment. For the following reasons, the motion is granted. Background Rasvinder Dhaliwal filed this action on January 30, 2015 as a qui tam action under the False Claims Act, 31 U.S.C. § 3729-33 (“FCA”), and various state false claims laws. On June 9, 2016, the federal Government elected to intervene, and stipulations of settlement and dismissal were filed by Dhaliwal, the defendant

Salix Pharmaceuticals, Ltd. (“Salix”) and the Government. On December 2, a joint notice of dismissal was entered between state governments and Salix. On December 7, 2016, Dhaliwal gave notice of her intent to pursue her individual surviving claims against Salix. Following discovery on those individual claims, Salix moved for summary judgment. On September 14, 2017, this Court granted that motion. The Court found that Dhaliwal had failed to supply evidence that her complaints to her supervisors regarding four categories of concerns constituted protected conduct under the FCA. Dhaliwal v. Salix Pharm., Ltd., No. 15CV706 (DLC), 2017 WL 4083180, at *6 (S.D.N.Y. Sept. 14, 2017). The four categories

of concerns related to promotion of a product known as Solesta; to disparities in discounts offered to group purchasing organizations; to budgeting of continuing medical education programs; and to an April 2012 “Doc-in-a-Box” program. Id. at *1-2.1

1 At such “Doc-in-a-Box” events, attendees were supposed to view a pre-recorded educational presentation concerning Salix products. The presentations were recorded by doctors and played on laptop computers -- hence, a “doc in a box.” The Government’s complaint-in-intervention alleged that at many such events Salix representatives did not play the presentation, or Dhaliwal appealed. On February 12, 2019, the Court of Appeals vacated in part and remanded the action. Dhaliwal v. Salix Pharm., Ltd., 752 F. App’x 99, 102 (2d Cir. 2019) (summary

order). It held that this Court erred in holding that Dhaliwal did not engage in protected activity in connection with one of the four categories: the April 2012 Doc-in-a-Box program. Id. at 101-02. The Second Circuit found that a reasonable jury could infer that she told her supervisor that the Doc-in-a-Box program was improper because it appeared to be a thinly veiled kickback scheme. Id. The Court of Appeals noted that because of the error, this Court did not conduct a detailed causation analysis to determine whether Salix retaliated against Dhaliwal on account of this protected activity. Id. at 102. It instructed this Court to determine whether the plaintiff has adduced evidence, sufficient

to warrant a trial, that “Salix retaliated against her because she voiced concerns about the ‘Doc-in-a-Box’ program.” Id. It observed that there was evidence that the plaintiff suffered both personal and work-related stresses during the latter half of 2012 and that those stresses, not retaliation, were what caused the plaintiff to depart Salix in early 2013. Id.

played it in a location where it could not be seen and heard by attendees. On remand, the parties submitted supplemental briefs on the issues identified by the Court of Appeals. They were permitted to rely on the factual record submitted in connection with the

defendant’s June 16, 2017 motion for summary judgment. They were not permitted additional discovery or to supplement that evidentiary record. The supplemental briefing was fully submitted on July 26, 2019. In opposition to this renewed motion for summary judgment the plaintiff asserts that she engaged in protected activity on one occasion: In April 2012, she called her supervisor John Temperato to report her concern that a Food and Drug Administration (“FDA”) employee attending a Salix program for medical faculty would see the event as improper marketing activity. This is the Doc-in-a-Box complaint that the Court of Appeals has identified as a statement that a jury could find was protected activity.2

In opposition to the renewed summary judgment motion, Dhaliwal has also identified three actions that she asserts Salix took against her in retaliation for the concerns she raised in April about the Doc-in-a-Box program. These three actions were (1) withholding third-quarter objectives linked to

2 Dhaliwal has abandoned any claim that she reitereated her concerns about the Doc-in-a-Box program at a dinner meeting with Salix superiors on March 14, 2013. her compensation until August 14, 2012 and not providing any objectives for the fourth quarter of 2012; (2) offering Dhaliwal a demotion disguised as a promotion on December 20, 2012; and

(3) telling Dhaliwal on March 22, 2013 that it was not a good idea for her to come back to Salix. The following chronology places these issues in context; the facts are undisputed or presented in the light most favorable to Dhaliwal, the non-moving party. Salix hired Dhaliwal in 2005. In 2008, she became a National Accounts Manager (“NAM”). She was promoted to Senior Manager, National Accounts in 2010 and reported to Director of Managed Markets Phillipe Adams and Senior Vice President John Temperato. Dhaliwal had difficulties working with Adams beginning in 2010. As particularly relevant here, Adams provided Dhaliwal with quarterly objectives two to four weeks late beginning in 2011.

Salix used such objectives to measure employee performance. Dhaliwal attended the Doc-in-a-Box program in April 2012. She called Temperato to report her concern that the FDA employee in attendance would see that the event was simply a fun evening for medical faculty. When Dhaliwal said that she would like to convey these concerns to a Salix legal compliance officer, Termperato indicated that he would do so himself. In February 2012, plaintiff had experienced problems with fumes in her apartment, and was given time off to deal with the issue. Around October 29, 2012, Hurricane Sandy hit New York City and Dhaliwal’s apartment lost power, heat, and hot water. Salix’s CEO Carolyn Logan was supportive and offered Dhaliwal

assistance in finding a hotel room. On November 12, Dhaliwal wrote to Salix’s human resources department indicating that she would “like to go on short term disability effective immediately.” She never returned to work. While on leave, Dhaliwal exchanged text messages with Logan, explaining that “[it’s] been really rough. [T]he hurricane was the last thing [I] needed. [J]ust trying everyday to get better.” In a December 2012 telephone call, Temperato informed Dhaliwal that he had created a new position for her “around Key Opinion Leader development.” This offer constitutes the second action that Dhaliwal alleges was adverse. Dhaliwal retained counsel in January 2013. On March 14,

2013, Dhaliwal met with Logan and Salix’s CFO Adam Derbyshire at a dinner arranged by Dhaliwal’s attorney. According to Dhaliwal, Logan assured her that she was a valued employee. On March 22, Dhaliwal again spoke with Logan and Derbyshire, this time by telephone.

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