A terminated pharmaceutical company employee may add a whistleblower claim to her lawsuit, which otherwise would have time-barred, because it “relates back” to occurrences detailed in her original complaint, a state appeals court has ruled.
Allegations pleaded in the original complaint of Ada Damla Demir, who had been employed by Sandoz, a division of Novartis, “sufficed to give defendants notice of the transactions or occurrences to be proved in asserting the [whistleblower] claim,” wrote a unanimous Appellate Division, First Department, panel.
Therefore, Demir’s whistleblower claim pursuant to state Labor Law § 740—which requires actions be commenced within one year of a retaliatory action against the whistleblower—was timely under the relation back doctrine, the court said.
The justices’ decision in Demir v. Sandoz, 150954/15, affirmed Manhattan Supreme Court Justice Eileen Rakower’s February 2017 denial of the defendants’ motion to dismiss the claim.
Demir had added the whistleblower claim, alleging an illegal retaliatory discharge, in a second amended complaint filed Oct. 19, 2015, the panel said. But the alleged retaliatory firing of her happened more than a year previous to that, on Feb. 4, 2014. Demir had filed an original complaint on Jan. 31, 2015, less than a year from the termination.
In the original complaint, she alleged that on Feb. 3, 2014, she’d reported to Sandoz’s business practices office that the company was “engaging in improper practices” that were not in compliance with FDA regulations, when it procured chemicals to manufacture its highest-grossing drug, the panel said.
The original complaint also claimed that Demir was terminated the next day, Feb. 4, in retaliation for her reporting the alleged improper practices.
The First Department panel, consisting of Justices Rosalyn Richter, Angela Mazzarelli, Marcy Kahn and Peter Moulton, wrote that this “sufficed to give defendants notice of the transactions or occurrences to be proved in asserting the Section 740 claim.”
Kenneth McCallion of McCallion & Associates in Manhattan, who represented Demir, said he was pleased with the panel’s ruling.
“Although the original complaint did not explicitly have a whistleblower claim, it was our practice, and we think it’s a good practice, to include more than a barebones pleading,” he said. We “include a sufficient factual basis and timeline so that a court can later determine that defendants were put on sufficient notice of all the claims and potential claims,” he added.
Cheryl Korman, a Uniondale-based partner at Rivkin Radler, represented the defendants. She could not be reached.