Wyeth Whistleblower Loses Retaliation Lawsuit

A divided federal appeals court has rejected a claim by a former Wyeth employee that he was wrongly fired for trying to blow the whistle on corporate wrongdoing, according to the Associated Press. A three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that Wyeth fired Mark Livingston for misconduct unrelated to his claims that the drugmaker was trying to conceal training deficiencies from federal regulators.

Livingston was a training manager in Wyeth’s vaccine manufacturing plant in North Carolina between 2000 and 2002, according to a lawsuit filed in federal court in North Carolina in September 2003. He allegedly found Wyeth wasn’t complying with certain training procedures at the plant, which made Prevnar, according to his lawsuit. Livingston charged that his superiors resisted his findings, then retaliated by firing him in December 2002.

In his suit, Livingston claimed Wyeth’s potential misrepresentation of the training program would violate federal securities law, and therefore his conduct was protected under Sarbanes-Oxley. However, the court decided Livingston failed to show Wyeth misrepresented or concealed anything, that the drugmaker didn’t violate the FDA order establishing the training program and there was no evidence of an attempt to mislead shareholders. “In sum, not one link in Livingston’s imaginary chain of horribles was real or was in the process of becoming real,” Judge Paul Niemeyer wrote in the majority opinion.

Livingston is one of two former Wyeth employees who accused the drugmaker of making false claims to the government in connection with alleged manufacturing problems with its Prevnar vaccine. Along with Anthony Sokol, Livingston filed a separate whistleblower lawsuit against Wyeth in November 2006 in federal court in Virginia, according to Wyeth’s annual report. The lawsuit alleged false claims were made to the government from 2000 through 2005 in connection with the production of Prevnar, a vaccine given to children to prevent meningitis and other infections.

The lawsuit had been filed under a federal law that allows whistleblowers to collect a portion of any settlement that may result from government investigations of the allegations. In this case, the Justice Department investigated the complaint and declined to intervene in November 2007. Until then, the lawsuit had been sealed from public view and was unsealed after the government’s decision.