E-Alert Case Updates

Wrongful Termination Claim Limited To Clear Violations of Public Policy

Debra Parks v. Alpharma, Inc., et al.
No. 115 (Md. July 19, 2011)
by Lydia S. Hu, Esq., Associate
Semmes, Bowen & Semmes (www.semmes.com)

After the Circuit Court for Baltimore City dismissed Plaintiff’s wrongful termination action for failure to state a claim upon which relief can be granted, the Court of Appeals granted certiorari sua sponte. The sole issue considered on appeal was whether the Plaintiff identified a clear mandate of public policy that Defendant Alpharma allegedly violated.

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 “wean” 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 wean 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.