By Bill Wichert

Law360 (April 23, 2020, 7:14 PM EDT) -- Two former Sanofi-Aventis saleswomen took aim at the pharmaceutical giant for trying to escape their New Jersey whistleblower suit during the COVID-19 pandemic by largely relying on the word of two company employees after having blocked their testimony.

In seeking to reopen discovery in the state action from Robyn P. Winter and Wendy Schwartz, their lawyer on Wednesday cited the challenges facing attorneys amid the crisis as he accused Sanofi-Aventis of having engaged in "improper gamesmanship" to prevent the depositions of Hannah Duffy and Kelly Byrne during the discovery phase of the case.

With attorneys working remotely due to the outbreak, the company moved for summary judgment this month by primarily relying on declarations from Duffy and Byrne, according to a Wednesday certification from the ex-workers' attorney, Eric H. Lubin of Lomurro Munson Comer Brown & Schottland LLC.

"The fact that defendant engaged in this conduct during the current crisis, when law firms have shuttered and attorneys are working from home, is simply unfortunate," Lubin said in the certification.

The company's "violation of our discovery rules and gamesmanship necessitated this motion and plaintiffs' need to engage in 11th-hour discovery during a pandemic," Lubin added.

Winter and Schwartz have claimed they were fired in 2017 in retaliation for reporting alleged misconduct by a male co-worker, including that he was reporting and being paid for hours he didn't work, court documents state. Their suit asserts violations of New Jersey's Conscientious Employee Protection Act and Law Against Discrimination, among other claims.

About two months after the discovery period ended, Sanofi-Aventis moved for summary judgment on April 9, relying in part on declarations from Duffy and Byrne. Duffy is a human resources business partner and Byrne is the head of employee relations, according to their declarations.

The declarations assert that Winter, Schwartz and other sales professionals — including the man they allegedly reported on — were terminated in 2017 for "call falsification," meaning recording as a "sales call" an interaction that does not meet the company's definition.

In his certification Wednesday, Lubin said the plaintiffs had sought Duffy's deposition since at least February 2019. In an Oct. 21 email to Lubin, Sanofi-Aventis attorney Mark A. Saloman of FordHarrison LLP said Duffy is "out on an indefinite medical leave because she requires back surgery," according to a copy of the email attached to the certification.

During breaks in other depositions that occurred after that email, Saloman "repeatedly confirmed that Ms. Duffy still could not be deposed because of her medical condition," Lubin said in the certification.

After Lubin again inquired about Duffy's availability for a deposition, Saloman said in a Feb. 13 email, "She remains on a medical leave, Eric," according to a copy of the email attached to the certification. That email was the last word Lubin received from Saloman regarding Duffy's status, Lubin said in the certification.

Given the length and scope of Duffy's certification, and the fact that the summary judgment motion heavily relies on it, "it is apparent that she has been working with Mr. Saloman for some time," according to Lubin.

"Ms. Duffy's convenient availability just when defendant needs her certification for summary judgment is transparent; she could have been deposed months ago," Lubin said.

Sanofi-Aventis "should not be permitted to use Ms. Duffy's medical condition as a shield to prevent her deposition while [simultaneously] enjoying access to her information in order to deny plaintiffs discovery and so that her statements would go unrebutted on a motion for summary judgment," Lubin added.

As for Byrne, Lubin claimed she was "never identified as a witness or person with knowledge in the multiple interrogatory questions" from the plaintiffs. Her name also was "never discussed" during other depositions in the case, Lubin said.

Lubin said he diligently searched the thousands of documents provided by Sanofi-Aventis in the matter and Byrne's name "does not appear in any of the operative documents that were discussed at the depositions or are actually relevant to this case."

"If Ms. Byrnes's name does appear in a document, it is a needle in a haystack of thousands of documents that were produced in wholesale by defendant," said Lubin, later adding: "It simply appears that Ms. Byrne is the typical 'surprise witness' our discovery rules were enacted to prevent."

Lubin requested that discovery be reopened for 60 days in order for Duffy and Byrne to be deposed, and, if needed, for the plaintiffs to "serve discovery requests based on any new facts learned from their testimony." As a sanction against Sanofi-Aventis, Lubin also is seeking an award of attorneys fees and costs with respect to the instant motion and those pending depositions.

"Defendant should not be rewarded by having its key witnesses go unchallenged at summary judgment and trial as a result of flouting their discovery obligations. To do so would unduly prejudice plaintiff and condone defendant's conduct," Lubin said.

Saloman told Law360 on Thursday, "Sanofi respectfully disagrees with plaintiffs' factual assertions and legal argument, which will be detailed in our opposition to the motion."

Lubin said on Thursday, "The allegations, arguments and exhibits in my motion speak for themselves."

Winter and Schwartz are represented by Eric H. Lubin of Lomurro Munson Comer Brown & Schottland LLC.

Sanofi-Aventis is represented by Mark A. Saloman and Joanna S. Rich of FordHarrison LLP.

The case is Robyn P. Winter et al. v. Sanofi Aventis U.S. LLC, case number L-4013-17, in the Superior Court of New Jersey, County of Essex.

--Editing by Haylee Pearl.

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