Fired for Balking At Off-Label Sales

by Attorney Lydia Cotz
March 21, 2011

A former Amgen sales rep is suing the biotech for $10 million before an arbitrator, claiming she was fired in retaliation for not complying with an aggressive and unethical marketing strategy for its Enbrel rheumatoid arthritis med, The Record reports. Elena Ferrante, 49, alleges Amgen sales managers encouraged reps to promote off-label and encouraged docs to prescribe Enbrel to patients who may not have needed the drug, according to Ferrante’s lawyer, Lydia Cotz.

 

When Ferrante refused to cooperate, Cotz says her client was fired, ostensibly for other reasons including not attending client dinners and bringing a dog to a client’s office. Ferrante was a top seller who made about $400,000 a year in sales at the time she was fired, according to Cotz. Ferrante was fired from Amgen in August 2005, after nearly eight years. She’s also claiming age bias and a violation of disability rights, claiming the biotech never filed a Workers Compensation claim on her behalf after she injured her back lifting boxes on the job. Here is the complaint.

The trouble started in 2002 after Amgen acquired Immunex Corp., according to documents filed with JAMS, a private arbirtration service. The documents claim Amgen sales managers promoted manipulated data to docs that ignored studies showing a worsening of congestive heart failure among patients who were prescribed Enbrel; that sales managers promoted scrips for mild cases of psoriasis by reinterpreting them as more severe; and that reps were asked to look inside patient files for insurance data they asked doctors to use to write to insurers to pay for Enbrel.

“The company does not comment on pending litigation or personnel matters,” Amgen spokesman Dave Polk tells the paper. “Our sales creed emphasizes that Amgen sales representatives follow compliance guidelines with absolute consistency.” But in papers filed in the arbitration hearing, Amgen denied each of the main points in the suit and also asked that Ferrante pay all costs and fees involved with the suit. Her suit “fails…to state a claim or claims upon which relief may be granted,” Amgen argues, adding that because Ferrante was an “at will” employee, with no contract, she could be terminated.

UPDATE: Cotz tells us that next week she will begin issuing subpoenas to doctors in hopes of learning more about their interactions with Enbrel reps and prescribing decisions.

Because of binding arbitration, Ferrante’s case must go before JAMS, instead of the courts, says Cotz.