Ethicon, JNJ escape Acclarent whistleblower’s retaliation suit

Allegations from a former Acclarent sales rep claiming she was fired for submitting a false claims report were kept alive this week by a Massachusetts magistrate judge, but the same allegations against Acclarent parent companies Johnson & Johnson (NYSE:JNJ) and Ethicon were thrown out, according to a Law360 report.

The former sales rep Melanie Lokosky claimed that Acclarent falsely reported functionality of a spacer device, claiming it was designed to deliver salt water to win regulatory approval. However, after winning approval, the rep claims the company marketed the device to deliver a steroid and had never intended it as a delivery device for salt water, according to the report.

Judge Donald Cabell said Lokosky’s allegations that Acclarent retaliated against her for questioning the sales of the Relieva Stratus MicroFlow Spacer for off label use were sufficient, but determined that J&J and Ethicon, which bought Acclarent in 2009, were not involved and not liable, according to Law360.

Acclarent sought to dismiss the suit in April, claiming that the off-label promotion complaint was not connected to the false claims complaint, but Lokosky had reportedly voiced her concerns about the off-label use in front of in-house regulatory personnel at a 2010 conference.

The court determined Lokosky had provided adequate evidence for a link between her questioning the off-label use and her later termination, Law360 reports.

Earlier this month,  J&J’s Ethicon was hit with a $57.1 million verdict in a pelvic mesh case out of Pennsylvania, according to a report from The Inquirer.

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