She was a director of marketing for a drug company who had received a performance improvement plan to address issues related to her relationships with co-workers and supervisors. But she had also raised concerns about the company’s purported “off-label” use of drug products, which 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 FDA. She eventually resigned and later alleged that she was constructively discharged in violation of Pennsylvania state law. She also asserted a claim that she had been retaliated against, in violation of the False Claims Act (“FCA”), for her protected whistleblowing activities with regard to the off-label activities. Her constructive discharge claim was tossed out by the court at summary judgment, and the jury ruled against her on the retaliation claim. Prior to retiring to deliberate, the jury was instructed that the standard to be applied when deciding the retaliation issue was the “but-for” causation standard: that is, but for her protected activity in pointing out the off-label activities, she would not have suffered an unlawful employment action. On appeal, the Third Circuit took up the question of the standard to be applied in DiFiore v. CSL Behring, LLC, No. 16-4297, 2018 WL 266123 (3d Cir. Jan. 3, 2018).
The specific language at issue on appeal is found in the FCA’s anti-retaliation provision, which states that an employee is entitled to relief if she was “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated...
