Pharmacist Axed After Call to FDA

Pharmacy Times, Volume 0, 0

Issue of the Case:

A federal court for the District ofColumbia was asked to determinewhether a pharmacist was wrongfullyterminated after he threatened toinform the FDA of the pharmacy'simproper drug storage, even though itwas later discovered that he was practicingwithout a valid license.

Facts of the Case:

Pharmacist John Doe was employed bythe defendant pharmacy for 13 years.While the pharmacy was undergoingextensive renovations, Doe becameincreasingly concerned that prescriptionmedications were being stored in violationof FDA standards, possibly causingadulteration. Doe raised his concerns ona number of occasions with the storemanager, regional manager, and area vicepresident.

During one discussion, the pharmacisttold the area vice president that ifthe temperature problem was notresolved he might bring it to the attentionof a neighbor, who was a rankingofficial at the FDA. This remark causeda change in the demeanor of the vicepresident, who subsequently walkedout of the meeting.

On the same day that Doe made thiswhistle-blowing threat, the companydecided to conduct a drug-reclamationproject, whereby the pharmacy's drugstocks were returned to their respectivemanufacturers as defective.Although Doe normally would haveperformed this task, he was not toldabout it. Again on the same day, in aseparate incident, the pharmacy chaininitiated an investigation into a claimthat drugs were missing from thepharmacy. The district manager produceda written theft form only afterDoe made the whistle-blowing threat.

Meanwhile, Doe was warned that heneeded to renew his expiring pharmacist'slicense. He continued to practicefor 5 months, knowing that he wasunlicensed. The defendant fired himshortly after learning of the violation.Doe also lost a part-time job in anotherstate, where he had practiced foryears without a valid license. He wassubsequently fired from 3 additionaljobs, lost his home, and separatedfrom his family. Doe sued the pharmacychain for wrongful termination.

The Court's Ruling:

The jury returned a verdict in theplaintiff's favor for $1.1 million foremotional distress and $212,426 forlost earnings. The defendant pharmacymoved for a new trial or a reductionin the amount of damages for emotionaldistress. The court held thatthere was sufficient evidence, althoughjust barely, for a reasonablejury to have found in the plaintiff'sfavor, so it denied the motion for anew trial. Because the court viewedthe damages for emotional distress asexcessive, however, Doe was asked toaccept $200,000 or face a new trial.

The Court's Reasoning:

Jury verdicts must remain unchangedunless the evidence andinferences are such that no reasonablejuror could reach the verdict renderedin the case. Only then will the courtsstep in and overturn a jury decision.

The argument was made on behalfof the defendant pharmacy that thepharmacist failed to prove that he wasfired solely because of the whistle-blowingthreat. It was contended that,for the pharmacist to be successful inthis case, he had to prove that his lackof a license had nothing to do with histermination.

The pharmacy had a written policyto terminate any pharmacist who wasfound practicing without a validlicense, and this, it was argued, wasthe reason he was fired.

The court stated that the pharmacy'sreasoning had great force, but thisargument had already been made tothe jurors, who apparently believedotherwise. A court is not to determinewhether a jury's assessment of witnesscredibility is correct. In this case, therewas conflicting testimony from thepharmacy's management team, whichsuggested that the jury had questionsabout its credibility.

Furthermore, the court noted that thejury was free to consider the irregularitiesin the pharmacy managementteam's behavior following receiving theperceived threat. Not only was the pharmacistexcluded from the drug reclamationprocess, but also the managementchose to conceal it from him. Moreover,the pharmacy initiated a "missingdrugs" investigation in the absence ofaudit records reflecting a shortage.

While not willing to overturn thejury verdict, the court did question theamount of damages awarded for emotionaldistress. The jury apparentlybelieved that the pharmacist suffered ahigh degree of distress. The plaintiff testifiedthat he was frightened anduncomfortable when he became theprime suspect in the drug investigation.

The court found that this testimonywas insufficient by itself to justify thedamages awarded. No experts testifiedon the pharmacist's behalf. He did notclaim that he suffered any physical orpsychological problems. The courtordered 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.