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'But-For' Causation Required for FCA Retaliation Cases

By William Vogeler, Esq. | Last updated on

After climbing up the corporate ladder, Marie DiFiore had a great fall.

She was newly promoted to director of marketing at a drug company, but started to have problems with co-workers and certain "off-label" products. When the company put her on probation, she quit.

DiFiore sued for wrongful discharge and retaliation under the False Claims Act, but a trial court ruled against her. On appeal in DiFiore v. CSL Behring, the U.S. Third Circuit Court of Appeals said the judge got it right.

But-For Causation

DiFiore complained that the employer had marketed drugs for off-label uses. "Off-label" use is the unapproved use of an approved drug, or the use of a drug for purposes other than those that have been approved by the FDA.

At trial, DiFiore said, the judge erred in jury instructions. To win her case, the judge said, the plaintiff had to prove that she wouldn't have lost her job "but-for" her complaints about the off-label drugs.

The jury considered incidents surrounding two warning letters, a performance review and probation terms. The probation conditions, which centered on relations and communications with co-workers, were key.

Under the plan, DiFiore was given 45 days to improve. But one week later, she resigned.

Alternative Solutions

In her lawsuit, DiFiore said she should have been able to show her whistleblowing was a "motivating factor" -- not the only reason -- in the employer's actions.

However, the Third Circuit said the more exacting "but-for" standard applies in an FCA case. DiFiore's job ended because she quit, the court noted.

"She may have been subjected to difficult or unpleasant working conditions, but these conditions fall well short of unbearable," the appeals court said. "Importantly, DiFiore did not sufficiently explore alternative solutions or means of improving her situation."

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