Pharmacist Axed After Call to FDA

Larry M. Simonsmeier, JD, RPh
Published Online: Wednesday, December 1, 2004
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Issue of the Case:

A federal court for the District of Columbia was asked to determine whether a pharmacist was wrongfully terminated after he threatened to inform the FDA of the pharmacy's improper drug storage, even though it was later discovered that he was practicing without a valid license.

Facts of the Case:

Pharmacist John Doe was employed by the defendant pharmacy for 13 years. While the pharmacy was undergoing extensive renovations, Doe became increasingly concerned that prescription medications were being stored in violation of FDA standards, possibly causing adulteration. Doe raised his concerns on a number of occasions with the store manager, regional manager, and area vice president.

During one discussion, the pharmacist told the area vice president that if the temperature problem was not resolved he might bring it to the attention of a neighbor, who was a ranking official at the FDA. This remark caused a change in the demeanor of the vice president, who subsequently walked out of the meeting.

On the same day that Doe made this whistle-blowing threat, the company decided to conduct a drug-reclamation project, whereby the pharmacy's drug stocks were returned to their respective manufacturers as defective. Although Doe normally would have performed this task, he was not told about it. Again on the same day, in a separate incident, the pharmacy chain initiated an investigation into a claim that drugs were missing from the pharmacy. The district manager produced a written theft form only after Doe made the whistle-blowing threat.

Meanwhile, Doe was warned that he needed to renew his expiring pharmacist's license. He continued to practice for 5 months, knowing that he was unlicensed. The defendant fired him shortly after learning of the violation. Doe also lost a part-time job in another state, where he had practiced for years without a valid license. He was subsequently fired from 3 additional jobs, lost his home, and separated from his family. Doe sued the pharmacy chain for wrongful termination.

The Court's Ruling:

The jury returned a verdict in the plaintiff's favor for $1.1 million for emotional distress and $212,426 for lost earnings. The defendant pharmacy moved for a new trial or a reduction in the amount of damages for emotional distress. The court held that there was sufficient evidence, although just barely, for a reasonable jury to have found in the plaintiff's favor, so it denied the motion for a new trial. Because the court viewed the damages for emotional distress as excessive, however, Doe was asked to accept $200,000 or face a new trial.

The Court's Reasoning:

Jury verdicts must remain unchanged unless the evidence and inferences are such that no reasonable juror could reach the verdict rendered in the case. Only then will the courts step in and overturn a jury decision.

The argument was made on behalf of the defendant pharmacy that the pharmacist failed to prove that he was fired solely because of the whistle-blowing threat. It was contended that, for the pharmacist to be successful in this case, he had to prove that his lack of a license had nothing to do with his termination.

The pharmacy had a written policy to terminate any pharmacist who was found practicing without a valid license, and this, it was argued, was the reason he was fired.

The court stated that the pharmacy's reasoning had great force, but this argument had already been made to the jurors, who apparently believed otherwise. A court is not to determine whether a jury's assessment of witness credibility is correct. In this case, there was conflicting testimony from the pharmacy's management team, which suggested that the jury had questions about its credibility.

Furthermore, the court noted that the jury was free to consider the irregularities in the pharmacy management team's behavior following receiving the perceived threat. Not only was the pharmacist excluded from the drug reclamation process, but also the management chose to conceal it from him. Moreover, the pharmacy initiated a "missing drugs" investigation in the absence of audit records reflecting a shortage.

While not willing to overturn the jury verdict, the court did question the amount of damages awarded for emotional distress. The jury apparently believed that the pharmacist suffered a high degree of distress. The plaintiff testified that he was frightened and uncomfortable when he became the prime suspect in the drug investigation.

The court found that this testimony was insufficient by itself to justify the damages awarded. No experts testified on the pharmacist's behalf. He did not claim that he suffered any physical or psychological problems. The court ordered the plaintiff to accept $200,000 or face a new trial.

Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.



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