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Former Merck & Co. saleswoman claims she was fired in retaliation

Trial began Monday afternoon in the case of a former Merck & Co. saleswoman who claims she was fired two years ago in retaliation for reporting her supervisor’s violations of the pharmaceutical giant’s corporate policies.

Jennifer Scott had complained to Merck’s ethics office in July 2007 concerning William Liberato’s insistence that she allow a co-worker to use her credit card to cover dinners with doctors and about Liberato’s support of unauthorized sales pitches. Scott had worked at the Fortune 100 company for 16 years and won several awards before she was sacked.

“We’re here because a jury needs to tell Merck that you can’t do that to honest employees,” Andrew D. Freeman, Scott’s attorney, told the nine-person jury during his half-hour opening statement in Baltimore’s U.S. District Court.

Merck’s attorney, Raymond C. Baldwin, denied any “grand conspiracy,” claiming Liberato was not aware of Scott’s formal complaints about him when he recommended she be fired in October 2007.

“Jennifer Scott lost her job because of her performance and nothing else,” he assured the jury of six women and three men during an opening statement that lasted only eight minutes.

Scott, a 47-year-old Ellicott City resident, joined the New Jersey-based drug company in 1992. Her father worked there for more than 30 years before retiring in the late 1990s.

In testimony that continued after press time Monday, Scott said she marketed Merck’s drugs to treat ailments ranging from hypertension to urinary tract infections to doctors and other health care providers in Baltimore and Washington, D.C. She received “very positive” performance reviews and “numerous sales awards,” she testified.

Liberato became her district manager in May 2005, around the same time a new salesman, Lionell Randall, came to work with Scott. Initially, Scott allowed Randall to use her credit card to cover business meals but became uncomfortable with the practice in fall 2005 and asked Liberato to cure the situation.

“From there on, things head downhill,” Freeman, a lawyer at Brown Goldstein Levy LLP in Baltimore, told the jury. He claimed Liberato began “papering her file” with negative notes, even though her performance was in the upper echelons of the sales force.

Baldwin, on the other hand, told the jury the credit-card reimbursement practice ceased in early 2006 and that it was Scott’s lack of improvement in the areas of leadership and communication over the next two years that was the real issue. Liberato praised Scott when appropriate, Baldwin said, but “he also wanted more from her.”

“What was her reaction?” Baldwin asked. “How dare you?

“That was her attitude toward Mr. Liberato throughout this process,” said Baldwin, a partner at Seyfarth Shaw LLP in Washington, D.C.

Liberato drafted Scott’s performance improvement plan on July 1, 2007, Baldwin said, and Scott lodged her ethics complaint less than two weeks later.

In August, Scott reported Liberato for promoting sales pitches that likened Merck drugs to Life Savers candy and used puns to advocate Merck’s cholesterol drug, Vytorin, over Pfizer’s Lipitor, Freeman said.

According to the parties’ pretrial memorandum, the company’s Office of Ethics determined that Liberato had mishandled the credit card controversy and that he had improperly encouraged sales reps to use unapproved promotional messages. But the office did not find Liberato had issued Scott’s PIP in retaliation for her complaints about him.

Liberato changed jobs within Merck in November 2007. Freeman argued it resulted from the problems with Scott, and Baldwin made no mention of it in his opening statement. (Before the jury arrived, Baldwin argued unsuccessfully to U.S. District Judge Benson E. Legg that the jury should not hear about Liberato’s transfer because there is no proof it had anything to do with Scott.)

In January 2008, Liberato was “given the satisfaction by Merck by allowing him” to fire Scott, Freeman said.

Scott, an MBA who had been making $120,000 in her Merck position, has not been able to find a job in the past two years, Freeman said, despite sending out hundreds of applications. According to the pretrial statement, Scott’s expert has estimated her damages through 2012 to be almost $1 million.

Freeman did not mention a monetary amount to the jurors Monday, simply asking them to “send a message that honesty is the best policy.”

The trial resumes Tuesday and is expected to last all week.