Abiomed (NSDQ:ABMD) yesterday asked a federal judge to force whistleblower Max Bennett to cough up his employment records with another company, countering his retaliatory termination claim by alleging that it fired him for lying about the circumstances of his departure from his last job.
Documents unsealed in March 2018 revealed that Max Bennett accused the Danvers, Mass.-based heart pump maker of firing him in retaliation for accusing it of a kickbacks scheme involving the wining and dining of physicians at fancy restaurants to encourage them to use its Impella pump, according to court documents. Abiomed agreed that month to pay $3.1 million to settle the whistleblower case with the U.S. Justice Dept.; Bennett was due $542,000 from the settlement, the Justice Dept. said at the time.
Now Abiomed alleges that Bennett lied about being fired from Biotronik and wants the court to force him to produce his employment records to prove it. Bennett declined to produce the documents during discovery, arguing that they are barred under a nondisclosure agreement and are irrelevant to boot, according to the documents.
“Abiomed’s primary defense to plaintiff’s claims is that plaintiff was terminated because of his dishonesty during the interview process about the circumstances of his separation from Biotronik, not because of any alleged complaints he made,” the company argued. “Abiomed also believes that any complaints that Plaintiff made after he was confronted regarding his apparent false representations regarding the circumstances of his separation from Biotronik were not made in good faith.” [emphasis theirs]
During the interview process ahead of his October 2012 hiring, Bennett told Abiomed that he left Biotronik after the cardiac rhythm management company changed its sales model.
“In 2010, I left Biotronik due to changes in the business model. Biotronik chose to pursue an independent model vs. a direct model, which in turn minimized the functional need for management positions. I signed a non-disclosure and took a severance option at that time. Given my entrepreneurial personality and strong network in the industry, I decided to try my own consulting,” Bennett wrote in an email filed with Abiomed’s motion to compel.
The requested documents are critical to its case, the company argued, “because they will show that plaintiff was, in fact, terminated from Biotronik, in direct contradiction to statements he made to Abiomed during the interview process that his separation from Biotronik was voluntary.
“Abiomed understands that plaintiff is concerned that production of the requested documents would breach a confidentiality provision set forth in an agreement he entered with Biotronik. However, counsel also understands that the Biotronik agreement provides that it will not be a violation of the confidentiality provision if production is made pursuant to a court order. Given this, any such concern will be resolved by an order of this court,” Abiomed argued in the Jan. 9 motion.
Earlier this week the company won another lawsuit brought by a former employee, who alleged unfair termination and the denial of an options deal tied to Japanese approval for Impella.
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