A former Biomet sales representative is currently seeking $10 million dollars against his former employer after he alleges he was wrongfully terminated.

Michael Swiss, currently a resident of Pennsylvania, states he was a high performing sales representative with the company until he approached a supervisor about alleged kickback payments being offered to practitioners.

Swiss alleges after he approached the aforementioned supervisor in 2010, he was placed on a performance improvement plan and received harassment and wrongful treatment from the company before ultimately loosing his job in March 2011.

Biomet officials have reportedly declined to comment on the case but have denied the charges. The company recently faced a lawsuit for alleged kickbacks in 2014, ending in a $6 million settlement.

The Lawsuit

Sanford Heisler Kimpel, LLP, filed the suit against Biomet, Inc., and Biomet 3i, Inc., in New York Supreme Court, Ulster County, on behalf of Swiss.

The complaint asserts that after Swiss reported his concerns about the two companies’ illegal kickback practices to Biomet officials in January, 2010, the company’s management launched a 13-month-long campaign of harassment and retaliation against him, culminating in his termination in March 2011.

This harassment, retaliation and eventual termination violated Swiss’ rights under the anti-retaliation provision of the New York False Claims Act, which prohibits employers from discharging, demoting, suspending, threatening, harassing or otherwise discriminating against an employee for lawful acts carried out under the state’s false claims statutes.

“Mr. Swiss had personal knowledge of alleged illegal kickback schemes Biomet used from at least 2007 until 2011,” Sanford said. “During this period, he was aware that Biomet allegedly provided money, goods, and services to induce customers — including oral surgeons, dentists, laboratories, hospitals, and educational institutions in Ulster County — to order and use Biomet’s products. Many these customers subsequently sought reimbursement for these products from the publicly-funded Medicaid program, in violation of state and federal laws.”

In the four years since his termination, Swiss claims he has experienced significant financial and personal hardship, including severe mental and emotional distress and disruption to his family. His loss of employment forced him to liquidate his savings, sell his family’s long-time NY residence and move to Kunkletown, Pa. Since about March, 2014, he has worked as an hourly retail employee at Lowe’s Home Improvement, Leighton, Pa.

The lawsuit claims Swiss was “ultimately subjected to numerous other retaliatory acts and harassment by Biomet after he reported his kickback observations to company officials, including Biomet’s placing him on “Performance Improvement Plans,” one of which followed a serious injury incurred while taking a Biomet client mountain biking, denying his worker’s compensation claim for this injury and denying him an expanded sales territory, which he had earned with an exceptional sales record.”

“His wrongful termination followed hostile treatment, during which Biomet’s management sought to force him either to drop his complaints and requests for an investigation of its Medicaid compliance issues, or to quit his job,” states the suit. “When Mr. Swiss continued to press for an investigation and threatened to sue the company, he was fired.”

The complaint requests two times the amount of his back pay incurred as a result of the defendants’ conduct, plus interest; reinstatement to his former position and compensation level; compensation for special damages he has sustained as a result of the companies’ conduct, including compensatory damages for emotional distress; litigation costs and reasonable attorneys’ fees; and other relief the court deems just and proper.

Both companies, Biomet, Inc., and Biomet 3i, Inc., allegedly provided kickbacks to medical providers that caused or induced them to make false statements when seeking Medicaid reimbursement to which they were not entitled. The absence of kickbacks is a precondition for Medicaid payments under the New York Medicaid program.

A jury trial is requested.

Source: Sanford Heisler Kimpel LLP