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Brennan v. Cephalon

May 8, 2007

DAVID BRENNAN, PLAINTIFF,
v.
CEPHALON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

This matter comes before the Court upon defendant Cephalon Inc.'s ("Cephalon") motion for summary judgment to dismiss plaintiff's complaint for wrongful termination. Because we find that plaintiff was an at-will employee and his termination did not violate any clear mandate of public policy, we grant defendant's motion.

I. PROCEDURAL BACKGROUND

Plaintiff filed his complaint in the Superior Court of New Jersey, Law Division, Camden County on June 3, 2004. He subsequently filed an amended complaint that was removed to this Court upon notice of removal by the defendants on July 8, 2004. On July 15, 2004, defendants filed a motion to dismiss the amended complaint. Following oral argument before Judge Freda L. Wolfson,*fn1 the Court ruled that Pennsylvania law applied and issued an Order on March 2, 2005, granting defendants' motion in part and denying it in part with leave for plaintiff to file a second amended complaint.*fn2 By Order dated March 24, 2005, the Court also dismissed plaintiff's Civil Rights Act claims against all defendants and dismissed plaintiff's claims against defendant Baldino without prejudice.

Plaintiff filed a second amended complaint on April 7, 2005, and defendants filed a motion to dismiss the second amended complaint shortly thereafter. Before Judge Wolfson ruled on the motion to dismiss the second amended complaint, plaintiff filed a motion for leave to file a third amended complaint. Judge Wolfson decided both motions by Order and Opinion entered on October 25, 2005. Brennan v. Cephalon, Inc., No. 04-341, 2005 WL 2807195 (D.N.J. Oct. 25, 2005). In that Opinion, the Court held that plaintiff stated a claim against Cephalon for wrongful termination under Pennsylvania's "commit a crime" exception to at-will employment sufficient to withstand a 12(b)(6) motion. Id. at 12. The Court dismissed plaintiff's claims for wrongful discharge against Cephalon employees, Frank Baldino, Richard Kaplan, Tim Sheehan and Armando Cortez because plaintiff did not allege that any of them acted in their individual capacities as opposed to their corporate capacities. Id. at 13. In addition, the Court dismissed plaintiff's ERISA claims without prejudice. Id. at 16. Finally, the Court denied plaintiff's motion for leave to amend his complaint to add a claim for wrongful discharge based on exercising his rights to free speech under the United States and Pennsylvania constitutions since plaintiff did not allege that he was fired based on forced political speech. Id. at 17.

Following Judge Wolfson's Order, all defendants with the exception of Cephalon have been dismissed, and all claims against Cephalon have been dismissed except for plaintiff's claim of wrongful termination. Defendant Cephalon has filed a motion for summary judgment on that remaining claim.

II. FACTUAL BACKGROUND

We adopt the facts as presented in the Court's October 25, 2005, Opinion and either reiterate or supplement the following facts. Brennan was hired by Cephalon, a biotechnology and drug company, in March 2002 as a compliance auditor. Cephalon had received approval from the FDA to market a drug called Actiq. Actiq was described as a narcotic painkiller designed to provide relief from pain to cancer patients. Part of the FDA approval for Actiq included a requirement that Cephalon provide quarterly reports for the first year of marketing. Thereafter, Cephalon and the FDA would determine the requirement for further reporting. Brennan, at the request of Cephalon, conducted an audit of Actiq's Risk Management Program ("RMP") and concluded that Cephalon was not in compliance with the FDA approval. He turned in his report to his supervisor, Tim Sheehan, in October 2003. In November 2003, Brennan, Sheehan, Armando Cortes, the new Director of Quality Assurance, and Richard Kaplan, Vice President of Quality, conducted an audit of Orsymonde, a facility owned by Cephalon in France, in which they concluded that the facility was generally in compliance.*fn3

After the conclusion of the Orsymonde audit, Brennan noted that it had been six weeks since he submitted his Actiq RMP report but had not received any response. Brennan mentioned this to a co-worker, Lisa Carle, and stated to her that he thought he should report his findings on the Actiq RMP to the FDA. Brennan did not have any conversations with his superiors about turning over his findings directly to the FDA. Within the next day or so after speaking with Ms. Carle, Cortes met with Brennan, Sheehan and Kaplan about the Actiq RMP report. At that meeting, Brennan was told to set up a meeting with the other participants in the Actiq RMP audit to assure that correct information was provided. Brennan set up the meeting for December 1, 2003. During the meeting, a co-worker, Tracie Parker, who had no authority over Brennan, told Brennan that the Actiq RMP report should not state that Cephlon was noncompliant and to remove her name. Ms. Parker then left the meeting and returned with Kaplan. Kaplan did not ask Brennan to change the report. Brennan did not alter his conclusions and the report was distributed internally. Carol Marchione, Director of Quality Assurance was to respond to the report by December 31, 2003, but it was agreed by Brennan and others that the response date should be moved to January 31, 2004. Brennan did not receive a response to the report by the deadline, and on February 9, 10, 11 and 12, 2004, he approached Sheehan and asked him if he could distribute the Actiq RMP report. Sheehan told him no, that he had to wait for approval from Cortes. Brennan did not contact Cortes.

About the same time period that the response to the Actiq RMP report was pending, a consultant named Debra Bennett had been hired by Cephalon to do a mock FDA inspection in January 2004 of the Orsymonde facility in anticipation of an official FDA inspection.*fn4 In her report dated February 6, 2004, Ms. Bennett identified several areas where the Orsymonde facility was in violation and needed corrective action. It also stated that the last audit conducted in November 2003 was inadequate. Brennan testified that prior to his termination he had heard about "... a report that says they're [Cephalon] totally out of compliance in Orsymonde."*fn5 Brennan Dep. at 114-15. Brennan stated that he had asked Sheehan during the week of February 9-12, 2004 to see Bennett's report but his request was denied. He did not request to see the report from anyone else.

On February 12, 2004, Brennan and Sheehan were terminated. Brennan's letter of termination stated that he was terminated because of his performance regarding the audit at the Orsymonde facility in November 2003. During his deposition, Brennan testified that he thought he was fired because "[he] believe[d] that Cephalon was committing some illegal activities, and [] wanted them to stop doing it, or report them appropriately to the FDA." Brennan Dep. at 31. A week or so after his termination, Brennan sent a letter to the FDA regarding Cephalon's noncompliance.

III. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of ...


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