United States Court of Appeals For the First Circuit

No. 19-2037

AMY LESTAGE,

Plaintiff, Appellee,

and

UNITED STATES AND THE STATE OF CALIFORNIA, ex rel., KIMBERLY HERMAN, AMY LESTAGE AND KEVIN ROSEFF,

Plaintiffs,

v.

COLOPLAST CORP.,

Defendant, Appellant,

and

COLOPLAST A/S; CONVATEC, INC.; HOLLISTER, INC.; 180 MEDICAL, INC.; A-MED HEALTH CARE, INC.; BYRAM MEDICAL SUPPLIES, INC.; CCS MEDICAL SUPPLIES, INC.; LIBERTY MEDICAL SUPPLIES, INC.; LIBERATOR MEDICAL SUPPLY, INC.; SHIELD MEDICAL, INC.; UROMED, INC.; RGH ENTERPRISES, INC.; SHIELD CALIFORNIA HEALTHCARE CENTER, INC.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Lynch, Selya, and Lipez, Circuit Judges. Elisabeth S. Theodore, with whom Samuel F. Callahan and Arnold & Porter Kaye Scholer LLP were on brief, for appellant. Rachel M. Wertheimer, with whom Paul W. Shaw, Tawny L. Alvarez, and Verrill Dana, LLP were on brief, for appellee.

December 9, 2020 LYNCH, Circuit Judge. This case under the anti-

retaliation provision of the False Claims Act raises an issue of

first impression in this circuit as to the proper causation

standard.

(h)(1). Amy Lestage filed suit against

her employer Coloplast Corporation ("Coloplast") in 2016 alleging

that Coloplast had retaliated against her in violation of the False

Claims Act after it learned that she had filed a qui tam action

against it and one of its largest customers. Lestage was placed

on indefinite administrative leave four days after that customer

requested that Lestage stop serving its account. When she returned

from leave after the qui tam suit against Coloplast was settled,

Lestage says she was given an inferior slate of account

assignments.

After a five-day trial, the jury concluded that both the

leave and the account assignment were adverse employment actions

taken because of Lestage's involvement in the qui tam suit and

awarded Lestage $762,525 in compensatory damages.

The district court denied Coloplast's subsequent motions

for judgment as a matter of law and a new trial. Fed. R. Civ. P.

50, 59. Coloplast appeals from the denials of these motions,

challenging the sufficiency of the evidence to support the verdict,

whether plaintiff's expert testimony as to damages was properly

admitted, and whether the jury instructions, to which it had

consented, were error.

- 3 - We reject Coloplast's claims of error and affirm. In

doing so, we hold under Supreme Court precedent that the causation

standard for retaliation claims under the False Claims Act is a

"but-for" standard. We join the Third, Fourth, Fifth, and Eleventh

Circuits in doing so. See DiFiore v. CSL Behring, LLC,

(3d Cir. 2018); U.S. ex rel. Cody v. ManTech Int'l, Corp.,

, 176-77 (4th Cir. 2018) (unpublished opinion);

U.S. ex rel. King v. Solvay Pharms., Inc.,

(5th

Cir. 2017); Nesbitt v. Candler Cnty.,

(11th

Cir. 2020).

I. Factual Background

In reviewing the denial of Coloplast's motion for

judgment as a matter of law, we examine all evidence in the light

most favorable to the jury verdict. See ITYX Sols. AG v. Kodak

Alaris, Inc.,

(1st Cir. 2020).

Coloplast is a medical device company that develops

ostomy, continence, wound, and skin care products. Coloplast has

between 12,000 and 16,000 sales accounts. Just forty to fifty of

these, called key accounts, provide over 95% of Coloplast's sales.

Key accounts vary in size, but most have at least $1 million in

sales per year or substantial growth potential.

Key account managers ("KAMs") are responsible for making

sales to and managing Coloplast's relationship with key accounts.

KAMs receive a base salary and a bonus, but the bonus makes up a

- 4 - large percentage of their compensation. The bonus is based on the

growth in sales in the accounts they manage. If a KAM achieves

his or her "target" growth in sales, the KAM receives 100% of a

set commission ($80,000 in the relevant time period). If growth

exceeds the target, the KAM is paid more, and if growth falls short

of the target, the KAM is paid less. Management sets the

individualized growth targets each year.

Lestage began working as a salesperson for Coloplast in

2004. In 2010, she became Coloplast's first key account manager.1

In 2013 and 2014, she was the highest-performing KAM at Coloplast.

Among her key accounts was Byram Health Care ("Byram"), which is

one of Coloplast's largest accounts. Byram made up approximately

80% of her sales portfolio by volume.

In December 2011, Lestage and others filed a qui tam

action under the False Claims Act against Coloplast and several

Coloplast competitors and clients, including Byram. The qui tam

complaint alleged that Coloplast had paid kickbacks to clients,

including Byram. The complaint was filed under seal as required

by law. See

(b)(2). This meant that neither

Coloplast nor Byram was notified of the suit during this period of

sealing. The US Department of Justice ("DOJ") investigated the

allegations and ultimately decided to pursue them. The complaint

1 When Lestage was promoted in 2010, her job title was "distribution account manager," Coloplast's old term for KAMs.

- 5 - was unsealed on August 21, 2014. Near the end of November 2014,

Lestage noticed that Byram had stopped replying to her emails and

phone calls.

On December 19, 2014, Byram's CEO sent an email to Edmond

Veome, then Coloplast's Senior Vice President of the North America

region, with an attached letter stating that Byram "no longer

wish[ed] to work with Amy Lestage regarding our business together"

and would like to be assigned to a new KAM.

Veome asked Byram why it wished to remove Lestage from

its account. The Byram representative told Veome to contact

Byram's attorneys with any questions. Veome reached out to

Coloplast's in-house counsel as well as Thomas Beimers, the lawyer

representing Coloplast with respect to the DOJ qui tam suit.

Veome, Beimers, Nick Pederson (Coloplast's human resources

director), and Mort Hansen (Lestage's direct supervisor) met

several times in the following days. The content of those

conversations was not disclosed under claims of attorney-client

privilege.

On December 23, 2014, Hansen and Pederson called Lestage

and told her she was being placed on indefinite paid administrative

leave. Pederson sent a follow-up letter later that day which

stated that "as a result of Byram's demand, we are placing you on

an indefinite, paid administrative leave effective as of December

23, 2014, while we investigate this matter further." Coloplast

- 6 - did not ask her to continue managing her other key accounts with

four other customers. Coloplast presented no evidence that anyone

at Coloplast performed any investigation during the period Lestage

was placed on leave.

During the administrative leave, Coloplast continued to

pay Lestage her base salary, as well as 100% of her target

incentive bonus. Coloplast also gave her the standard annual 2.5%

raise and allowed her to keep her company car and gas card.

Coloplast cut her off from use of her Coloplast email account while

she was on leave. Coloplast presented no evidence that it had

promptly notified her other key accounts that she had been placed

on leave.

Lestage was not asked to return until January 2016, after

Coloplast had agreed to settle the qui tam action. Veome testified

at trial that the decision to bring Lestage back to work was

somewhat independent of the resolution of the qui tam action, but

at his deposition he had stated that when the qui tam action was

"moving toward resolution" was "the time to bring her back to work

because there was no longer going to be the pending investigation.

There was an outcome that was being delivered, and so it would be

okay for her to return."

In December 2014, when she was placed on leave, Lestage

was managing five key accounts: ABC Home Medical ("ABC"), Byram,

Home Care Delivered, Claflin, and Buffalo Hospital Supply

- 7 - ("Buffalo"). Upon her return, she was given the Claflin, Home

Care Delivered, and Buffalo accounts along with four new accounts:

Geriatric, AmerisourceBergen, Blackburn's, and Concordance.

Lestage had asked not to be reassigned to the Byram account but

told Coloplast she wanted the ABC account. She was not assigned

the ABC account at any time after her return, even when the person

who handled the account during her leave left that job.

While Lestage was on leave, the ABC account was managed

by Henrik Wurgler, a non-KAM employee. At the time of Lestage's

return, ABC was in the process of selling its business. Hansen

gave as a reason why Lestage did not receive the ABC account that

in July 2015, when ABC was told that Lestage would be returning

from leave, ABC requested that Wurgler remain on the account

because he had been "an outstanding supporter of ABC Medical and

[was] always timely in his response, unlike his predecessor."2

2 The parties dispute who ABC was referring to when it said "his predecessor." Lestage's direct supervisor, Mort Hansen, was managing the account right before Wurgler took over. But ABC's request was directed to Hansen, and the email was a discussion about whether Lestage should be returned to the account, suggesting that the email referred to Lestage. Lestage learned only upon returning to work that Coloplast had not initially told ABC about her leave. During her leave she received several emails from ABC to her work address, but she never saw them because she was cut off from her work email while on leave. Four months after her leave began, an ABC employee sent another email to her work address asking why she was not responding to ABC's emails. She saw this email about a year later when she returned to work.

- 8 - Hansen also testified that Coloplast "had internal knowledge at

the time [of the merger] at the management level that there's a

high likelihood that [the account ABC merged with] was somehow

financially tied to . . . one of the qui tam action accounts."3

Wurgler left in early 2016 and Timothy Townson was

assigned the ABC account, not Lestage. Hansen testified that

Townson was assigned the account because he was located in

California, where the ABC point-of-contact would be located after

the merger. The only explanation for why her location in New

England was a barrier to her handling this account was testimony

that Coloplast was trying to reduce costs and ease of travel for

KAMs. The account was transferred again to Yvonne Battistini, not

to Lestage, in late 2018 or early 2019.

Lestage also asked to be assigned to the Cardinal account

when its existing KAM was promoted to director of key accounts in

2019. Cardinal is located in the Northeast, near Lestage's other

accounts. She was denied the Cardinal account.

The parties dispute whether the four new accounts

assigned to Lestage were high-performing accounts which would

allow Lestage to meet her growth targets.

3 Hansen testified to several additional reasons that Lestage was not returned to the ABC account. ABC was in negotiations to merge with another business, so Hansen did not think it was a good time to change account managers. There were several ongoing marketing campaigns Hansen did not want to disrupt.

- 9 - Lestage testified that Blackburn's had "some" but not

"substantial" growth potential, that it was not willing to engage

in marketing campaigns with Coloplast and did not have an "outside

sales force" which would allow Lestage to drive business to the

account. It grew at -2.8% in 2017 and 8.4% in 2018.

AmerisourceBergen is a larger account with an outside

sales force, but Lestage testified that due to AmerisourceBergen's

lines of business, which do not overlap substantially with

Coloplast's business, it was difficult for her to drive sales with

that firm. AmerisourceBergen grew at -17.4% in 2017 and 2.5% in

2018.

Geriatric was not a key account when it was assigned to

Lestage. Geriatric is also a long-term care distributor, and

Coloplast does not focus on long-term care. Geriatric's sales

grew 23.9% in 2017.

Concordance was a successful account which grew at 3.8%

in 2017 and 18.1% in 2018.

ABC grew at 76.4% in 2017 and 28.9% in 2018.

Coloplast maintained at trial that the accounts Lestage

was assigned were a reasonable mix of accounts with opportunity to

grow.

- 10 - II. District Court Proceedings

In May 2016, Lestage amended her qui tam complaint to

allege that Coloplast had retaliated against her in violation of

the False Claims Act.

A jury trial was held from April 8 through April 12,

2019. On April 9, the parties read twenty-seven joint factual

stipulations to the jury, including one that stated that "Coloplast

placed Ms. Lestage on a leave in response to Byram's request to

have her removed from its account."

Before trial, Coloplast filed a Daubert motion to

exclude the testimony of plaintiff's damages expert, economist Dr.

Judith Roberts. The court reserved decision on the motion. Before

permitting Dr. Roberts to take the stand, the district court asked

Lestage's counsel several questions about Dr. Roberts'

methodology. The court instructed the jury that Dr. Roberts "ha[d]

to be qualified" and that "[the district court] ha[d] to make a

judgment as to whether she's qualified." The district court then

conducted in front of the jury a preliminary examination as to Dr.

Roberts' qualifications, during which Coloplast's counsel asked

Dr. Roberts several questions about her methodology, before the

court decided her testimony was admissible.

Dr. Roberts estimated the difference between the

compensation Lestage would make but-for Coloplast's alleged

retaliation and the compensation she will actually make. To

- 11 - estimate those losses, Dr. Roberts took the following steps.

First, she took Lestage's compensation in 2013 and 2014, the two

years pre-leave, as a baseline of what Lestage's compensation would

have been but-for the leave and account reassignment. She then

took Lestage's 2017 and 2018 compensation, the two years post-

leave, as a baseline of what Lestage's compensation will be in

future years. She then assumed, based on data taken from

Payscale.com regarding the compensation of similarly situated

salespeople, that Lestage's compensation would grow at a rate of

1.04% per year. She took the difference between the without-leave

and with-leave compensation to estimate the loss in each year for

the next 20.4 years, the number of years she predicts Lestage will

stay in the workforce. To estimate total loss, she discounted

each year's damages to adjust for the likelihood that Lestage would

leave Coloplast before that year.

Coloplast presented a competing expert witness, Frances

McCloskey, who challenged Dr. Roberts' assumptions and methodology

and concluded that Lestage had not suffered any economic loss.

After the close of Lestage's evidence, Coloplast moved

for judgment as a matter of law under Rule 50. Fed. R. Civ. P.

50.

On the final day of trial, the district court reviewed

its proposed jury instructions with counsel. As to causation, it

instructed the jury that it could find for Lestage if she proved

- 12 - that her participation in the qui tam suit was a "substantial

motivating cause" of each adverse employment action. Coloplast

did not object to this instruction.

The jury returned its verdict on April 12, 2019. The

jury found that Coloplast had retaliated against Lestage by placing

her on leave and assigning her inferior accounts upon her return

and awarded Lestage $762,525.

After trial, Coloplast filed a motion for a new trial

under Rule 59 on the grounds that the damages were excessive, that

Dr. Roberts' testimony was inadmissible and prejudicial, and that

the verdict was against the clear weight of the evidence. Fed. R.

Civ. P. 59(a). Coloplast also renewed its motion for judgment as

a matter of law under Rule 50(b). Fed. R. Civ. P. 50(b). Coloplast

argued that no reasonable jury could find that Coloplast had placed

Lestage on leave because of the qui tam action, that Lestage had

suffered compensatory damages, that Lestage's account assignments

on her return were materially adverse, or that the account

assignments were retaliatory. The district court denied both

motions.

As to the new trial motion, the district court explained

that Dr. Roberts' testimony was admissible because Dr. Roberts was

qualified and she had used a "straight-forward and rational method

for approximating otherwise opaque sums." Any dispute between the

parties concerned only the assumptions underlying the model, and

- 13 - Coloplast had ample opportunity on cross-examination and during

its own expert's testimony to expose any weaknesses in those

assumptions. And since Dr. Roberts' testimony was admissible,

Coloplast's other arguments failed as well.

As to the motion for judgment as a matter of law, the

court held Lestage had presented sufficient evidence that she was

placed on leave because of the qui tam suit and of damages -- both

emotional and to her working relationships -- incurred while on

leave. She had also presented evidence, which the jury could

reasonably credit, that Hansen had "stymied" her return to the ABC

account and assigned her sub-par accounts.

This appeal followed.

III. Analysis

We first address the claim of error as to the jury

instructions, followed by the motion for judgment as a matter of

law and the claims of error as to Dr. Roberts' testimony.

A. Jury Instructions

For the first time on appeal Coloplast argues that the

"substantial motivating factor" instruction was error and should

have been a "but-for" instruction.

Because Coloplast did not object to this instruction

below, we review this claim for plain error. Teixeira v. Town of

Coventry ex rel. Przybyla,

(1st Cir. 2018)

("Unpreserved claims of instructional error . . . are reviewed

- 14 - only for plain error." (citing United States v. Deppe,

(1st Cir. 2007))). To demonstrate plain error, the party

advancing the claim of error must establish "(1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings."

at 18 (quoting United States v.

Duarte,

(1st Cir. 2001)). "'[P]lain error' is 'an

indisputable error by the judge, given controlling precedent.'"

Clukey v. Town of Camden,

(1st Cir. 2018) (quoting

United States v. Ponzo,

(1st Cir. 2017)). This

circuit has demonstrated "marked reluctance to find plain error in

civil cases." Dimanche v. Mass. Bay Transp. Auth.,

(1st Cir. 2018) (quoting Acevedo-Garcia v. Monroig,

,

570 (1st Cir. 2003)). The plain error hurdle is especially high

where an appellant relies on a claim of instructional error. See

Teixeira,

.

The False Claims Act forbids employers from

discriminating against an employee "because of" his or her

protected conduct.

(h)(1); see also Guilfoile v.

Shields,

(1st Cir. 2019). The parties dispute

the proper meaning of "because of."

In 2004, this circuit said in passing, and not in a

holding, that an employee making a retaliation claim under the

- 15 - False Claims Act must "show that 'the retaliation was motivated,

at least in part, by the employee's engaging in protected

activity.'" U.S. ex rel. Karvelas v. Melrose-Wakefield Hosp.,

(1st Cir. 2004), abrogated on other grounds by

Allison Engine Co. v. U.S. ex rel. Sanders,

(2008)

(quoting S. Rep. No. 99-345, at 35, reprinted in 1986 U.S.C.C.A.N.

5266, 5300).

Five years later, the Supreme Court decided Gross v. FBL

Financial Services, Inc.,

(2009), and four years

after that, University of Texas Southwestern Medical Center v.

Nassar,

(2013). In Gross, the Court held

that in order to make out a claim under the Age Discrimination in

Employment Act, which forbids employers from discriminating

against individuals "because of such individual's age," a

plaintiff must show that age was the but-for cause of the

employer's adverse employment action.

; see also

(a). In Nassar, the Court relied on Gross to hold

that plaintiffs bringing claims under the anti-retaliation

provision of Title VII -- which forbids employers from

discriminating against an individual "because" he has challenged

the employer's practices -- must prove that retaliation "was the

but-for cause of the challenged employment action."

.

- 16 - Since Nassar and Gross, several circuits have applied

the but-for standard in retaliation claims under the False Claims

Act, reasoning that the statutory language is "materially

identical" to that in Nassar and Gross. See Nesbitt,

(collecting cases).4 We agree that given the nearly

identical statutory language, retaliation claims under the False

Claims act must be evaluated under the but-for causation standard.

The instructions were error but they were not plain error

because this circuit had never decided the question pre- or post-

Nassar. Further, even after Nassar, several circuits continued to

use a motivating factor test. See, e.g., Singletary v. Howard

Univ.,

(D.C. Cir. 2019). We add that it is

difficult to fault the district court when Coloplast's trial

counsel failed to call this issue to the court's attention either

at the charge conference or immediately following the court's

rendition of its jury instructions, even though these events

transpired some six years after Nassar was decided. Under the

circumstances, the error hardly can be said to be indisputable.

4 Some circuits have continued to use a "motivating factor" standard, but we agree with the Eleventh Circuit's reasoning in Nesbitt that such a test is at odds with the Supreme Court's decisions in Nassar and Gross. See Nesbitt,

.

- 17 - B. Rule 50 Motion for Judgment as a Matter of Law

We review de novo the denial of a post-trial motion for

judgment as a matter of law. Analysis Grp., Inc. v. Cent. Fl.

Invs., Inc.,

(1st Cir. 2010). "Our review is

weighted toward preservation of the jury verdict because a verdict

should be set aside only if the jury failed to reach the only

result permitted by the evidence."

(quoting Quiles-Quiles v.

Henderson,

(1st Cir. 2006)) (internal quotation marks

omitted) (alterations in original omitted). We review the evidence

in the light most favorable to the non-moving party. Cham v.

Station Operators, Inc.,

(1st Cir. 2012).

We assess False Claims Act retaliation claims under the

McDonnell-Douglas burden-shifting framework. Harrington v.

Aggregate Indus. Ne. Region, Inc.,

(1st Cir.

2012); see also McDonnell-Douglas Corp. v. Green,

(1973). Under this framework, to establish a prima facie

case of retaliation, Lestage must show (i) that she engaged in

protected conduct under the False Claims Act, (ii) that Coloplast

knew she engaged in such conduct, and (iii) that Coloplast

retaliated against her because of this conduct. Id. at 31; see

also

(h)(1).

Once the plaintiff makes out a prima facie case, the

burden shifts to the employer to articulate a non-retaliatory

reason for the adverse employment action. Harrington, 668 F.3d at

- 18 - 31. This is merely a burden of production. Mesnick v. Gen. Elec.

Co.,

(1st Cir. 1991). If the employer produces

evidence of a legitimate motive, the burden remains with the

plaintiff to show "that the proffered reason is a pretext

calculated to mask retaliation."

(citing Mesnick,

(1st Cir. 1991)). Courts then will look "to the record as a

whole to determine whether there is sufficient evidence of 'pretext

and retaliatory animus'" to sustain the jury verdict.

(quoting

Mesnick,

); see also id. at 33 ("'[W]eaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffer[]' can give rise to an

inference of pretext." (quoting Morgan v. Hilti, Inc.,

(10th Cir. 1997)) (alterations in original)).

As explained above, the protected conduct must have been

the but-for cause of the adverse employment action. We apply the

but-for standard to evaluate Coloplast's Rule 50 motion despite

its failure to object to the district court's "substantial

motivating factor" instruction below. See Boyle v. United Techs.

Corp.,

(1988); City of St. Louis v.

Praprotnik,

(1988) (plurality opinion) ("[T]he

failure to object to an instruction does not render the instruction

the 'law of the case' for purposes of appellate review of the

denial of a directed verdict or judgment notwithstanding the

verdict" (quoting City of Springfield, Mass. v. Kibbe, 480 U.S.

- 19 - 257, 264 (1987) (O'Connor, J., dissenting))); see also Fisher v.

City of San Jose,

(9th Cir. 2009) (holding

that in evaluating Rule 50 motions, appellate courts must "apply

the law as it should be, rather than the law as it was read to the

jury, even if the party did not object to the jury instructions."

(quoting Pincay v. Andrews,

, 1109 n.4 (9th Cir. 2001)

(internal quotation marks omitted))).

Coloplast argues evidentiary insufficiency as to the

jury's conclusions (a) that Coloplast put Lestage on leave and

assigned her particular accounts "because of" her protected

conduct and (b) that the assignment of accounts following Lestage's

return to Coloplast was an adverse employment action.

As to the first contention, we clear away Coloplast's

meritless argument that the stipulation "Coloplast placed Ms.

Lestage on a leave in response to Byram's request to have her

removed from its accounts" forecloses Lestage from proving

causation. The stipulation had to do with temporality and

established only that Byram's letter set off the chain of events

resulting in Lestage's leave. It was hardly a concession that

there was no retaliation.5

5 Stipulations are interpreted according to general contract law principles. Gomez v. Rivera Rodriguez,

(1st Cir. 2003). Contracts are interpreted to "effectuate the intent of the parties." VFC Partners 26, LLC v. Cadlerocks Centennial Drive, LLC,

(1st Cir. 2013). It strains credulity that Lestage would have stipulated that Byram's letter

- 20 - Moving on, there was more than sufficient evidence that

Lestage would not have been placed on leave but-for her protected

action. A jury could conclude that Coloplast knew Byram's request

was in retaliation for her qui tam suit and that the two companies'

lawyers discussed it. Coloplast could have simply removed Lestage

from the Byram account but chose not to do so. Instead it put her

on leave, removing her from the premises and eliminating her

physical and online presence, not even telling one of her accounts

that she was gone.

Coloplast offered two justifications for putting Lestage

on leave instead of just taking her off the Byram account.

Coloplast says it put Lestage on leave because Byram's letter might

have signaled "broader" issues with Lestage's performance. That

explanation is undercut by at least two facts. First, Coloplast

showed no evidence that it actually did any investigation into

Lestage's work performance. Second, it did not bring Lestage back

to work until after the qui tam suit was resolved.

A jury could also reject Coloplast's justification that

she would not be able to meet her bonus targets if taken off the

Byram account. Given the individualized and oft-changing nature

of KAM bonus calculations, the fact that Coloplast was willing to

simply pay Lestage an 100% bonus while she was on leave, and the

alone would have caused Coloplast to place Lestage on leave. Such a stipulation would have hamstrung her case before it even began.

- 21 - fact that accounts were moved between KAMs with some regularity,

Coloplast could easily have found a satisfactory way to recalculate

Lestage's bonus even if she were taken off the Byram account.

A reasonable jury could decide that Coloplast's reasons

were pretextual, and thus conclude that the leave was retaliatory.

See Harrington,

.

Coloplast's second argument that the account assignments

on Lestage's return were not adverse employment actions

misunderstands the law. Employment action is materially adverse

when it would "dissuade[] a reasonable worker" from engaging in

protected activity. See Rodríguez-Vives v. Puerto Rico

Firefighters Corps of Puerto Rico,

(1st Cir.

2014) (quoting Burlington N. & Santa Fe Ry. Co. v. White,

(2006)). Examples of adverse employment actions include "a

decrease in wage or salary . . . significantly diminished material

responsibilities, or other indices that might be unique to a

particular situation." Morales-Vallellanes v. Potter,

(1st Cir. 2010) (quoting Lapka v. Chertoff,

(7th Cir. 2008) (discussing Title VII retaliation)). Our

earlier discussion of the facts concerning the markedly lesser

accounts she was given on return and the actions Coloplast

deliberately failed to take disposes of this argument.

Finally, a jury could readily conclude that the account

assignments were in retaliation for her filing the qui tam action.

- 22 - Coloplast tried to justify its actions through Hansen's testimony.

He testified that reassigning her to a different slate of accounts

was not feasible based on existing client relationships and

geography, but there was contrary evidence.

Coloplast's handling of the ABC account was particularly

telling. A jury could conclude Coloplast had led ABC to complain

that she had been tardy by not immediately informing ABC she was

on leave and had no access to her email accounts to respond to

ABC's inquiry. Indeed, such a remarkable failure to do so would

be strong evidence of pretext.

Beyond that, Coloplast never attempted to return the ABC

account to Lestage, despite its being reassigned several times

after Wurgler's departure. And when the Cardinal account became

available in Lestage's region, it was given to another KAM, despite

Coloplast's asserted preference for assigning KAMs to accounts

located near their homes.

There are many reasons Congress decided to protect

persons who file qui tam actions from retaliation for doing so.

Such protections encourage individuals to expose fraud. S. Rep.

No. 110-507, at 26 (2008). The False Claims Act exists to protect

the federal government from fraud. Id. at 6-7. The jury here

supportably found on sufficient evidence against Coloplast on the

retaliation claim.

- 23 - C. Claims Concerning Dr. Roberts' Expert Testimony

Coloplast also requests a new trial on the grounds that

the jury based its verdict on Dr. Roberts' allegedly unreliable

testimony. Coloplast argues that the district court did not

properly perform its gatekeeping role under Daubert v. Merrell Dow

Pharmaceuticals,

(2003). Coloplast also argues that

Dr. Roberts' testimony should not have been admitted because it

rested on flawed methodology and unrealistic assumptions.6

We review de novo the question of whether the district

court performed its gatekeeping function. Smith v. Jenkins,

(1st Cir. 2013). Unless the district court entirely

abdicated its gatekeeper role, we review the district court's

decision to admit expert testimony for abuse of discretion.

Packgen v. Berry Plastics Corp.,

(1st Cir. 2017).

The law on the district court's gatekeeper function

under Rule 702 and Daubert is familiar and we have no need to

recite it.

. Coloplast's argument is without

6 Coloplast argues that the years before Lestage's leave were unusually good years for Lestage and the years following her return were unusually bad years for her. Thus, assuming that her without-retaliation income would be similar to her best years while her with-retaliation income would be similar to her worst years resulted in Dr. Roberts overstating Lestage's damages. Coloplast next argues that Dr. Roberts' analysis should have used Coloplast- specific data to estimate Lestage's income and future income growth. Finally, Coloplast takes issue with Dr. Roberts projecting Lestage's loss forward over roughly twenty years.

- 24 - merit. The district court did not fail to perform a gatekeeping

function. How it chose to do so was within its discretion. See

Lawes v. CSA Architects and Eng'rs LLP,

(1st Cir.

2020).

Dr. Roberts' model was reasonable and her assumptions

were duly challenged on cross-examination and in McCloskey's

testimony.7 Coloplast's quarrel is with the jury's assessment of

the evidence and is devoid of any merit. The district court

properly denied a new trial on this ground.

7 Dr. Roberts also offered explanations for each of her assumptions. See Cummings v. Standard Reg. Co.,

(1st Cir. 2001) (rejecting defendant's challenges that plaintiff's expert used generic rather than company-specific data and based lost wages on "unusually high earning[] year" because during cross- examination, expert "offered sufficient explanations" for his choice of data). As to why she used data only from 2013 and 2014 as Lestage's baseline without-retaliation compensation rather than including Lestage's lower-earning years in 2011 and 2012, Dr. Roberts explained that Lestage's income was growing at about 12% per year from 2011-2014, and thus that the data from 2011 and 2012 would unfairly understate her current earning capacity. As to why Dr. Roberts assumed that Lestage's post-leave compensation would not revert to her previous performance, Dr. Roberts explained that Lestage's compensation was dependent on the way her target growth rates were set by Coloplast. Because Coloplast ultimately had control over Lestage's compensation, Dr. Roberts said she had no basis to assume that Lestage's income would go back to her pre-leave highs. As to the duration of the twenty-year projection, Dr. Roberts explained that she adjusted the measure of damages each year based on the probability that Lestage would still be at Coloplast.

- 25 - IV. Conclusion

The judgment of the district court is affirmed. Costs

are awarded to Lestage.

- 26 -