James Kerrigan v. Otsuka America Pharmaceutical
706 F. App'x 769
| 3rd Cir. | 2017Background
- Kerrigan was Senior Director of Global Marketing at Otsuka America (OAPI), responsible for Samsca branding and ensuring promotional materials underwent mandatory Promotional Review Committee (PRC) review.
- In Feb 2011, an article about Samsca was posted without PRC review or proper disclosures; legal instructed removal and Kerrigan recommended contacting the FDA; OAPI later self-reported to the FDA.
- In June 2011, Kerrigan reported a second Samsca compliance problem; OAPI self-reported and sent corrective communications to over 20,000 people; Kerrigan was not disciplined for these incidents.
- In 2012, OAPI gave Kerrigan a “Needs Improvement” review, denied a raise, and reduced his bonus due to concerns about multiple compliance investigations tied to his team and his leadership.
- In May 2012, an investigation disclosed Kerrigan had helped his wife’s consulting firm secure a contract with an affiliate, violating OAPI’s code of conduct; OAPI terminated Kerrigan immediately.
- Kerrigan sued under New Jersey’s CEPA claiming the negative review, reduced compensation, and termination were retaliation for his reports; the District Court granted summary judgment for OAPI, and Kerrigan appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kerrigan established causation for CEPA retaliation | Kerrigan argued his reports of Samsca violations prompted adverse actions (review, pay cut, firing) | OAPI/Altmeyer argued adverse actions resulted from legitimate performance and ethics concerns, not retaliation | Affirmed for defendants — no evidence of causation |
| Whether temporal proximity supports an inference of retaliation | Kerrigan relied on timing between reports (2011) and adverse actions (2012) | Defendants argued the gaps (6–12 months) are not "unusually suggestive" and insufficient alone | Temporal gap insufficient; timing does not establish causation |
| Whether direct or circumstantial evidence shows retaliatory animus | Kerrigan pointed to alleged increased criticism by Altmeyer after reports | Altmeyer provided an unrebutted declaration that criticism stemmed from leadership/conduct concerns | Court found no admissible evidence rebutting defendant’s explanation; no factual nexus shown |
| Whether a reasonable jury could find retaliatory discrimination was a determinative factor | Kerrigan argued adverse actions were likely motivated by retaliation | Defendants asserted legitimate, nonretaliatory reasons (compliance costs, leadership failures, ethics violation) | No — reasonable jury could not find retaliation was more likely than not a determinative factor |
Key Cases Cited
- Carvalho-Grevious v. Del. State Univ., 851 F.3d 249 (3d Cir. 2017) (standard of review for summary judgment)
- Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3d Cir. 2000) (temporal proximity and causation analysis)
- LeBoon v. Lancaster Jewish Cmty. Cntr. Ass’n, 503 F.3d 217 (3d Cir. 2007) (temporal proximity insufficient to infer causation)
- Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294 (3d Cir. 2012) (short temporal proximity can be sufficient)
- Battaglia v. United Parcel Serv., Inc., 214 N.J. 518 (N.J. 2013) (circumstantial evidence framework for retaliation claims)
- Lippman v. Ethicon, Inc., 222 N.J. 362 (N.J. 2015) (CEPA retaliation requires causation)