False Claims Act Retaliation Claim Does Not Preempt Massachusetts Wrongful Discharge Claim
Although federal whistleblower laws can provide protection against retaliation, most don’t authorize punitive damages, which is why some whistleblowers supplement statutory claims with tort actions for wrongful discharge. Some states disallow that approach when the relevant public policy has already been addressed by a state or federal law, but a recent Massachusetts district court decision shows a path to pursue both a FCA retaliation claim and a common law wrongful discharge claim.
In Elliott-Lewis v. Abbott Laboratories, Inc., Ebonia Elliot-Lewis alleged that she had been terminated for her internal complaints about pre-approval promotion of a medical device, as both retaliation and wrongful discharge. Abbott moved to dismiss the latter claim, but she argued that the whistleblowing claim and wrongful discharge claim were issues of different public policies: public safety rather than public welfare. The court accepted this argument and allowed both claims to go forward.
