Plaintiff was employed by Defendant Alpharma to market
Kadian, a prescription pain reliever. After several years of marketing the
product, Plaintiff developed concerns that the Defendant failed to warn of
hazards of consuming Kadian with alcohol. She also developed concerned that
marketing representatives were informing doctors to prescribe Kadian (for off
label use) as a drug to “ween” patients off of other prescription pain killers
by having patients ingest both simultaneously.
Plaintiff allegedly communicated concerns to
supervisors about improper labeling practices, failure to warn regarding
dangers of mixing alcohol with Kadian, and falsely informing physicians that
Kadian could be used to ween patients off of other pain drugs. She allegedly
aired these concerns to her supervising sales manager, the Vice President of
Alpharma, and the Director of Medical Affairs of Alpharma. Shortly after she
communicated her concerns regarding Alpharma’s practices, Plaintiff was
terminated in July 2006.
Plaintiff filed a Complaint in the Circuit Court for
Baltimore City bringing her one and only count sounding in wrongful
discharge. She argued that Alpharma breached duties established by state and
federal statutes. The trial court dismissed the action for failure to state
a claim upon which relief could be granted. To state a claim for wrongful
termination, a Plaintiff must allege that the employer’s actions violated
clearly defined mandates of public policy. Defendant Alpharma argued that
Plaintiff failed to identify a clear mandate of public policy that Alpharma
violated and therefore failed to state a claim upon which relief could be
granted.
The wrongful termination action has roots dating back
to the Great Depression and the New Deal. Employees and employers engaged in
at-will employment, like the instant case, are free to terminate employment
at any time for any reason or no reason at all. In the wake of troubled
economic times, Congress implemented limitations on employers’ abilities to
terminate employees. One of the limitations allowed employees to sue when
terminated because the employee refused to act unlawfully manner or
attempted to perform a statutorily prescribed duty.
When determining the public policy, the Court is not
limited to legislative enactments or prior judicial decisions. Instead, the
Court is free to recognize otherwise undeclared public policy. The Court
however narrowly recognizes undeclared public policy with only the utmost
circumspection because “[t]he public policy of one generation may not, under
changed conditions, be the public policy of another.” Parks, No. 115, *14
(citing Adler v. Amer. Standard Corp., 291 Md. 31, 45-46 (1981)).
The Court has found employers have violated public
policy in numerous occasions. For instance, public policy was violated when
an employer terminated the employee when she reported incidents of child
abuse pursuant to her statutory duty. Bleich v. Florence Crittenton Serv.,
98 Md. App. 123 (1993). Again, an employer violated public policy when
terminating an employee for refusal to engage in sexual activity with
another employee. In that case, the public policy was the state’s interest
in prohibiting prostitution. See Insignia Residential Corp. v. Ashton, 359
Md. 560 (2000).
The Court of Appeals has also recognized wrongful
discharge claims when the employee reports an employer for deficiently
performing a specific legal duty. It is this legal theory upon which
Plaintiff rests her wrongful discharge claim. Specifically, Plaintiff
alleges that Defendant Alpharma’s failures violate the Maryland Consumer
Protection Act, the Federal Trade Commission Act, and the Food and Drug
Administration.
The statutory and administrative regimes cited by
Plaintiff generally prohibit “unfair and deceptive trade practices” and
prescribe certain labeling standards. The Court of Appeals found the
statutory regimes to be so broad and all encompassing, however, that a
particular public policy could not be clearly discerned and articulated. The
wrongful discharge claim failed because Plaintiff could not state clearly
what public policy the employer’s actions violated.
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