Ferretti v. Pfizer Inc.
2012 U.S. Dist. LEXIS 27214
N.D. Cal.2012Background
- Plaintiff Delina Ferretti was Director — Oncology at Pfizer from April 2008 to September 16, 2010.
- She led data review and clinical operations for PanHER/PF-0299804, overseeing data quality and training.
- In November 2008 she identified data problems in PanHER Phase I studies, noting numerous instances of prohibited medications and unreported adverse events.
- She reported the issues to her supervisor and urged redo of Phase I before Phase III testing.
- Pfizer allegedly did not write a Phase I CSR or update the Investigator’s Brochure to reflect concerns.
- Plaintiff was transferred to a new supervisor in 2009, experienced a hostile environment, and was terminated on September 16, 2010; she filed suit on September 9, 2011 asserting claims including Labor Code 1102.5(c) retaliation, public policy wrongful termination, IIED, and contract theories; the case was reassigned and motions filed by Pfizer followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ferretti’s 1102.5(c) retaliation claim is precluded by failure to exhaust under §98.7 | Ferretti engaged in protected disclosures and refused to participate in illegal activity. | Exhaustion under §98.7 before suing is required and not satisfied. | Claim dismissed for lack of exhaustion; dismissal without prejudice. |
| Whether wrongful termination in violation of public policy based on §1102.5(c) survives | Termination violated public policy by protected disclosures and refusal to participate. | Protected activity not established or scope of duties undermines protected activity; needs exhaustion. | Denied as to §1102.5(c) basis; public policy claim survives to the extent grounded in §1102.5(c). |
| Whether wrongful termination in violation of public policy based on §6310(b) survives | Violation of safety/reporting laws constitutes public policy basis. | Plaintiff did not allege reports of unsafe conditions; §6310(b) not implicated. | Granted; §6310(b) basis dismissed without prejudice. |
| Whether IIED claim is viable | Plaintiff suffered emotional distress due to termination and hostile environment. | Plaintiff failed to plead severe distress and outrageous conduct. | Dismissed for failure to plead severe emotional distress; dismissal without prejudice. |
| Whether attorneys’ fees under §1021.5 are strikeable | Fees sought under CCP §1021.5 are recoverable if public-interest/important-right. | Fees precluded as a matter of law. | Denied; Rule 12(f) strike denied per Whittlestone. |
Key Cases Cited
- Campbell v. Regents of Univ. of California, 35 Cal.4th 311 (Cal. 2005) (exhaustion of administrative remedies under related statutes recognized by Campbell)
- Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1988) (pleadings must state plausible claims, not mere legal conclusions)
- Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (public employees; not directly controlling private-sector retaliation claims)
- Iqbal v. Ashcroft, 556 U.S. 662 (S. Ct. 2009) (plausibility standard for pleading facially plausible claims)
- Twombly v. Bell Atl. Corp., 550 U.S. 544 (S. Ct. 2007) (requirement of plausibility, not just possibility)
- Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (exacting pleading standard in 12(b)(6) context)
- Freund v. Nycomed Amersham, 347 F.3d 752 (9th Cir. 2003) (public policy and wrongful termination backdrop)
- Stevenson v. Superior Court, 16 Cal.4th 880 (Cal. 1997) (public policy retaliation framework)
- Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (Cal. 1980) (established wrongful termination in violation of public policy)
- Campbell v. Regents of Univ. of Cal. ( Campbell), 35 Cal.4th 311 (Cal. 2005) (administrative exhaustion requirement clarified)