A federal judge in Massachusetts yesterday shot down a second lawsuit brought against Abbott (NYSE:ABT) by a former medical liaison over her claim that the company fired her after she blew the whistle on off-label and pre-approval stent promotion.
Ebonia Elliott-Lewis, formerly a regional science manager for Abbott Vascular based in Boston, first sued the company in August 2014. Elliott-Lewis alleged that Abbott Vascular fired her after she reported that it was promoting off-label uses for its Xience stent and was marketing its bioresorbable scaffold in the U.S. without FDA approval.
After the government declined to intervene in December 2014, a judge in the U.S. District Court for Massachusetts dismissed the False Claims Act and Anti-Kickbacks Statute claims, leaving only the wrongful termination claims. Elliott-Lewis, who has been representing herself since her lawyer quit the case last August, filed another lawsuit March 1 in the Massachusetts district court, alleging the same wrongful termination claims and adding a new claim for intentional and negligent infliction of emotional distress involving a data breach that included her personal information.
Yesterday Judge Patti Saris dismissed the March 1 suit, finding the wrongful termination charges duplicative of the original lawsuit and that the third claim over the data breach failed to state a claim.
“As Elliott-Lewis readily admits in her complaint, the claims in this second lawsuit arise out of the same common nucleus of operative facts as her first lawsuit,” Saris wrote. “Because the new claims relating to the first two incidents arise out of the same facts as the wrongful termination claims in her first lawsuit and involve identical parties, they would be precluded by a final judgment in the first lawsuit.
“Given that the first lawsuit has been pending for over four years, judicial economy necessitates dismissal of these new claims,” she wrote.
As for the new data breach claim, Saris wrote, “Elliott-Lewis’s factual allegations fail to support a plausible claim for either intentional or negligent infliction of emotional distress” for either the breach itself or Abbott’s notification of it.
“Sending this notice was in no way ‘beyond all possible bounds of decency,’ nor is there any plausible claim that the data breach was caused by negligence. She suggests it was an intentional act of intimidation and retaliation but alleges no facts that make this allegation plausible. Indeed, Abbott was required to send the notice by law,” she wrote. “Elliott-Lewis’s claim for invasion of privacy fares no better. Such a claim requires that the invasion ‘be both unreasonable and substantial or serious.’ Invasion of privacy is an intentional tort under Massachusetts law. Elliott-Lewis has alleged no facts that plausibly suggest that Abbott released her personal data intentionally or that anyone unauthorized had access to it.”
Saris, who is also overseeing the first case, set a hearing date of August 13 for any further motions, which would become a final pretrial conference if no motions are filed.
