Claims brought under the False Claims Act (FCA) are rarely discussed in this column. The U.S. Court of Appeals for the Third Circuit’s recent decision in DiFiore v. CSL Behring, 879 F.3d 71 (3d Cir. 2018) is instructive, not just for FCA claims, but for a lengthy discussion of the causation standards under Title VII, the Age Discrimination Employment Act and Family and Medical Leave Act. The case also addresses the standard for successfully stating a claim of constructive discharge.

Whistleblowing About Off-Label Drug Marketing

Marie DiFiore was associate director, and subsequently director of marketing for CSL Behring (CSL) from 2008 until her resignation in 2012. CSL is a drug manufacturer. DiFiore was promoted to the director position in August 2011. Throughout her employment, but most particularly in late 2011, DiFiore was concerned that CSL was engaged in off-label marketing of its drugs. “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 Food and Drug Administration.” DiFiore brought these concerns to her supervisors which, she claimed, caused the retaliation resulting in her ultimate resignation.