Whistleblower Sues Zimmer-Biomet for $10 Million over Kickbacks

Former Biomet employee Michael Swiss alleges that Biomet engaged in a kickback campaign and that the company orchestrated  a 13-month retaliation campaign against him when he blew the whistle on the company.

Qmed Staff

A former Biomet sales rep, Michael Swiss, is demanding a jury trial in New York's Ulster County, claiming that the company fired him in 2011 for exposing a kickback scheme involving local dentists and that the company orchestrated a retaliation campaign against him that ultimately cost him his job, his marriage, and forced him of the town where he lived.

Swiss claims that he uncovered a kickback scheme that routinely offered local doctors, dentists, and representatives from hospitals and schools with perks and free services to secure their business. Some of these services, which were mentioned in a separate lawsuit, reportedly included taking physicians to lavish meals, rock concerts or taking them on VIP trips including golfing, deep-sea fishing, massages, and paintball. He states that many of the parties benefiting from this arrangement also obtained reimbursement from publicly funded healthcare programs. Under New York State law, claims involving kickbacks are not eligible for Medicaid payment.

The filing maintains that it "was well recognized within Biomet that there was a  direct  correlation  between  representatives'  spending  on  their  clients  and  a  Territory's sales  figures." It adds: "Biomet urged representatives to use these  [kickback] tactics aggressively.  The 'big-money' rewards for high sellers included higher commissions, cash bonuses, and vacation travel."

Working for the company from 2007 to 2011, Swiss states that he initially received accolades at the company, even named, at one point, Biomet's number two territory manager in North America and its third-highest-producing sales representative in the United States. He maintains that was rewarded for his performance as a sales rep until he recommended to the company's HR department that the company conduct an internal fraud investigation in 2010. At that point, he claims he was placed on probation and that the company never conducted a fraud investigation.

Swiss states that he repeatedly confronted the company about what he terms a kickback scheme.

The filing states the company's retaliation scheme included placing him on "undeserved probation,'" undeservedly scrutinizing his performance, subjecting him to harassment and abuse, denying him a promotion, opposing a workers' comp claim he filed, and ultimately firing him in March 25, 2011.

He is suing bringing the suit under the New York False Claims Act, which prohibits retaliation against whistleblowers acting within the law.

The company denies the allegations.

The filing asks for an award of at least $10 million, which would cover "back pay, front pay, liquidated damages, compensatory and consequential damages, and punitive damages" as well as "attorneys' fees, costs, and expenses."