Merck Whistle-Blower Has a Case, Judge Finds

PHILADELPHIA (CN) - Merck must face claims that it fired a woman who figured out that its contractor disguised a money grab as a diabetes study, a federal judge ruled Wednesday.

Joni Westawski sued Merck & Co. last year over her termination in 2012 after 11 years of employment.

The former market-research analyst says the trouble started with her assignment in 2009 to a diabetes-treatment study focused on low-income Latinos.

Westawski said the research-study subjects were drawn from the employee lists at H-E-B, a grocery chain in Texas and Mexico. Merck selected the market research group DrTango Inc. to perform the study, led by that contractor's executive vice president Dirk Schroeder.

The complaint alleged a string of rejoinders every time Westawski protested about the study's methods, beginning with her concern that the study examined too few subjects and that DrTango did not follow Merck's internal policies.

Westawski says her supervisor, Bob Giametti, told her to create an addendum to the DrTango contract that would allow Schroeder to earn $25,000 for speaking engagements.

Soon it allegedly became clear to Westawski that the DrTango project was concocted solely to enrich the parties involved, rather than for pure market research.

"She realized that the DrTango project was not a pure market research study, but rather a mechanism through which H-E-B could help its employees achieve diabetes care compliance, thereby reducing workers' sick days; through which Blue Cross Blue Shield of Texas would see its costs go down; through which Merck would sell more pharmaceutical products; and through which Mr. Schroeder would be personally paid $25,000 per 'speaking engagement' by involving himself in these meetings," U.S. District Judge Wendy Beetlestone said, summarizing the allegations.

An internal investigation Merck launched in 2010 while Westawski had maternity leave allegedly found no wrongdoing, and Westawski says Giammetti in turn scolded her for "making his life difficult."

Westawski says the company informed her that her position was being eliminated, but that a new organizational chart proves otherwise.

Judge Beetlestone nixed most of Westawski's suit Wednesday but refused to dismiss a claim under the Sarbanes-Oxley Act, which bars the termination of corporate whistle-blowers.

Merck failed to sway the court that the claim is doomed for its failure to allege that Westawski's "new supervisor at the time of her discharge, or others in her new department had any knowledge of her protected activity," according to the ruling.

Beetlestone emphasized that the complaint is "littered with mentions of individuals to whom the plaintiff brought her concerns about the impropriety of the DrTango research study and of the content of those conversations."

"The plaintiff has not, however, brought suit against these individuals," the ruling states. "She has sued only Merck. And as Merck is the only named defendant in this case, Merck is the only 'person' plaintiff must allege 'knew or suspected that [she] engaged in the protected activity' for the purposes of defeating this motion. Considering the number of Merck employees who were made aware of the plaintiff's concerns by the plaintiff herself, it simply cannot be said at this stage in the proceedings that Merck the corporation, the only defendant, was unaware of the plaintiff's protected activity, and the court will not hold otherwise."

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