3?

Mitchell Schley, Esq. LawOffices of Mitchell Schley, LLC Two Tower Center Boulevard, 8th Fl.
East Brunswick, NJ 08816 Tel: (732)325-0318 Attorneys for Plaintiff
? A

!2

VALERIE GRECO

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION

Plaintiff,
-against-

MIDDLESEX COUNTY

DOCKET NO: L~^-^*\l

CIVIL ACTION

BIO-REFERENCE LABORATORIES, INC.

COMPLAINT AND JURY DEMAND
Defendant.

Plaintiff Valerie Greco, by her attorneys, the Law Offices of Mitchell Schley, LLC, as

and for her Complaint against Defendant Bio-Reference Laboratories, Inc., says as follows:
FACTS COMMON TO ALL COUNTS

1.

Valerie Greco ("Plaintiff or "Greco") is an individual who resides in Toms

River, New Jersey.

2.

Defendant Bio-Reference Laboratories, Inc. ("Bio-Reference"), is an independent

clinical laboratory operating at locations in New Jersey and elsewhere. It has a corporate
headquarters and principle place ofbusiness located at 491-B Edward H. Ross Drive, Elmwood
Park, New Jersey 07407.

3.

Bio-Reference is one of the largest clinical laboratories in the country. For its

2012 fiscal year, Bio-Reference had gross revenue of some $661 million. It's Chairman,
President and CEO is Dr. Marc Grodman.

4.

Bio-Reference gets most of its some 3.5 million orders per year from doctors'

offices. Itcollects specimens from over 50 patient centers.

5.

Venue properly lies with this Court pursuant to R, 4:3-2(b) as Bio-Reference does

business throughout Middlesex County, including locations at 293 Main Street, Metuchen, New
Jersey 08840 and 1000 Route 9North, Woodbridge, New Jersey 07095.

6.

Greco was an employee ofBio-Reference and Bio-Reference was her employer

from on or about December 26, 2008 to on or about April 29, 2011.

7.

Valerie Greco, who is 56-years-old, has a Medical Office Specialist Certificate

and a Specialized Technical Assistant Certificate. She is also certified as an Electronic Health

Records Specialist, Billing and Coding Specialist, Medical Administrative Assistant, and
Phlebotomist.

8.
Phlebotomist.

On or about December 26, 2008, Greco was hired by Bio-Reference as a

9.

In or about December 2010, Bio-Reference acquired an account, Fair Haven

Internal Medicine, located at 569 River Road, Fair Haven, New Jersey 07704. Fair Haven

Internal Medicine employs four doctors. The principal physician of the practice is Dr. Jan
Glowacki.

10.

Fair Haven Internal Medicine ("Fair Haven") is part of another larger entity,

Integrated Medicine Alliance, P.A. ("IMA"). IMA refers to itself as a medical "group without
walls," comprised of eight primary care practices, two walk-in ambulatory care centers, and a

diagnostics center that provides multiple tests including ultrasound, bone density testing and
cardiology testing facilities.

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11.

On or about December 28, 2010, Bio-Reference assigned Greco as an In-Office

Phlebotomist (known as an IOP) at Fair Haven. She was to draw blood from patients ofthe Fair
Haven practice for submission to Bio-Reference for laboratory testing.

12.

Within the first week of Greco's assignment, Greco telephoned Colleen Sykes, a

Bio-Reference sales representative, and James Mitra, Phlebotomy Supervisor, to tell them that
she was not performing blood draws (venipunctures) on patients at the office because Fair

Haven's own assistants were doing that and she was just processing the paperwork on a
computer that Bio-Reference provided to the Fair Haven practice. Greco told Sykes that this
arrangement was not proper and not what she expected, and Greco asked to be relocated.

13.

In early January 2011, Greco observed that Fair Haven and Bio-Reference were

engaging in the following billing practices that she considered to be illegal:

a) The medical practice impermissibly billed Medicare patients, who visited the

office solely for blood draws, as an "office visit." It also charged a separate venipuncture

fee of$15. Bio-Reference charged a venipuncture fee as well, even though itperformed
no actual venipucture (commonly called "phantom billing" or "double billing").
b) The medical practice impermissibly billed non-Medicare patients, who visited the

office solely for blood draws, as an "office visit." It also charged a $15 venipuncture fee
and required a co-payment. Bio-Reference charged a venipuncture fee as well, even
though it performed no actual venipuncture.

14.

Greco reported these unlawful practices to Mitra and Sykes by telephone. Sykes

told her to keep her mouth shut and keep billing for the venipuncture charge on behalf of BioReference. Sykes also told Greco that what the medical practice did was its business, not hers.

Concerned about her reputation and the impact of her association with these illegal billing
practices of Bio-Reference and Fair Haven, Greco repeatedly told Mitra and Sykes about her
-3-

concerns, but Bio-Reference did not address any of the issues and did not reassign her out of the
Fair Haven office.

15.

At the end of January 2011, Greco confronted Dr. Glowacki about the billing

practices. Greco told him that it was illegal to charge for venipuncture fees when an in-office
phlebotomist was also charging a venipuncture fee for the lab. She also told him that he was

committing Medicare fraud. Dr. Glowacki remained silent during this conversation, did not deny
anything, and angrily walked away. 16. On March 17, 2011, Greco, by telephone, asked Mitra if he had found a different

account for her to work with. Mitra advised Greco that Dr. Glowacki did not want Greco
working in his office anymore.

17.

In or about March 2011, a Bio-Reference sales representative, Flo Flinn, told

Greco that the reason Dr. Glowacki did not want Greco working there anymore was because of
her billing allegations.

18.

On or about April 15, 2011, Mitra telephoned Greco and told her not to return to

FairHaven because Dr. Glowacki no longer wanted her on the account.

19.

Greco remained at home for two weeks during which she continued to be paid by

Bio-Reference. During this period, Greco asked Bio-Reference about when she would be given
another assignment. She did not get an answer.

20.

On April 29, 2011, Joseph Hart, Director of Phlebotomy, and Mitra conducted a

conference call with Greco. They told Greco that Bio-Reference would not be giving her another
work assignment. They told her that she could file for unemployment benefits and that for
unemployment purposes her effective termination date would beApril 22, 2011.
21. In early May 2011, Greco received a call from John Wilkenson, a Bio-Reference

supervisor, advising her of two available part-time phlebotomy positions at Bio-Reference in

-4-

Long Branch, NJ and Forked River, NJ. He said that he thought these accounts would be a

perfect fit for her. Wilkenson asked her if she would be willing to work at both locations, each
on a part-time basis, and Greco said she would.

22.

The next day, however, Wilkenson called Greco and retracted his offer because

according to him, the territory in which these accounts were located were supervised by Sykes, who had informed Wilkenson that she did not want Greco working on any ofher accounts. 23. Acouple ofdays later, Greco called Flo Flinn and asked why Sykes, who happens

to be Flinn's daughter, would not let Greco work on Sykes' accounts. Flinn said that it was not
Sykes who was blocking Greco, but rather it was Mitra. Flinn then told Greco that Mitra told her

that Bio-Reference did not want her to work for it anymore because ofher allegations regarding
the billing practices of Bio-Reference and Fair Haven.

24.

Medicare is a federal health insurance program administered by the Centers for

Medicare and Medicaid Services ("CMS") which is a component of the Department of Health and Human Services ("DHHS"). CMS is also responsible for administering the Clinical

Laboratory Improvement Act ("CLIA"). CMS determines how much Medicare pays a provider

for each service. Reimbursement for a patient visit requires Evaluation and Management (E/M)
documentation. Current Procedure Terminology (CPT) codes must be used to bill for E/M
services in an office setting or outpatient facility.

25.

Medicare billing is based on an honor system and is thus susceptible to fraud in

which service providers, such as a clinical laboratory or physicians, collect money for health care
reimbursement illegitimately. An example ofsuch fraud is phantom billing inwhich Medicare is

billed for a service not provided by the provider. Another example is double billing in which a
provider or providers bill twice for the same service. It is these fraudulent acts that Greco
reported to Bio-Reference and to Fair Haven.
-5-

26.

It is a violation of federal law including, 18 U.S.C. 1001, for a service provider

to make a false statement in a claim seeking reimbursement from Medicare and a violation of

federal and New Jersey law for a service provider to make a false statement in a claim seeking
reimbursement from a private health insurer.
27. The arrangement between Bio-Reference and Fair Haven in which Bio-Reference

provided Fair Haven with a phlebotomist who did not conduct venipunctures on behalf of the laboratory, and where Fair Haven billed for such venipuctures, suggests the possible application

here of the Healthcare Fraud Anti-Kickback Statute, 42 U.S.C. 1320a-7b (the "AKS").
28. The CMS Medicare Claims Processing Manual, Chapter 16-Laboratory Services,

Section 60.1-Specimen Collection Fee, states, "A specimen collection fee is allowed in

circumstances such as drawing a blood sample through venipuncture ... This fee will not be paid
to anyone who has not extracted the specimen."
COUNT ONE

WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY

29.

Plaintiff hereby repeats and realleges all of the allegations set forth above as if set

forth at length herein.

30.

Under New Jersey common law as set forth by the New Jersey Supreme Court in

Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980) and it's progeny, an employer may not retaliate against an employee because the employee discloses to her employer an activity, policy
or practice that the employee reasonably believes 1) is in violation of a law, or a rule or

regulation promulgated pursuant to law, including any violation involving deception of or

misrepresentation to any patient, customer, insurance company or governmental entity; or 2) is fraudulent or criminal, including any activity, policy or practice of, deception or

misrepresentation which the employee believes may defraud any patient, customer, insurance
company or government entity.

31.

Retaliatory action is also not permitted under New Jersey common law where the

employee objects to or refuses to participate in activity that he or she reasonably believes 1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation
involving deception of or misrepresentation to any patient, customer, insurance company or governmental entity; 2) is fraudulent or criminal, including any activity, policy or practice of

deception or misrepresentation which the employee believes may defraud any patient, customer or government entity; or 3) is incompatible with a clear mandate of public policy. Plaintiff
engaged in these protected activities as described above.

32.

Plaintiff reasonably believed that the conduct of Bio-Reference and its customer,

Fair Haven, involved unlawful billing practices and other misconduct which violated federal and

state law, and regulations as well as ethical rules governing independent clinical laboratories and
medical practices. Plaintiff reported this misconduct to Bio-Reference and to Fair Haven. 33. In retaliation for Plaintiffs protected conduct as set forth above, Plaintiff was

wrongfully discharged by Bio-Reference and not given further work assignments. 34. Because Plaintiff was terminated and was denied work assignments in retaliation

for her actions described above, Bio-Reference's conduct toward Plaintiff was unlawful and

violated public policy.

35.

As a proximate result of Bio-References' retaliatory actions against Plaintiff, she

has, among other things, suffered economic damages, emotional distress and reputational
damages, and has otherwise been harmed.
36. The actions of Bio-Reference were intentional, willful, wanton, and in reckless

disregard of the harm such actions would cause Plaintiff, patients, consumers, insurance
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companies, government entities and the public, and therefore an award of punitive damages
against Bio-Reference is warranted.

WHEREFORE, Plaintiff demands judgment against Bio-Reference and seeks the

following relief: (i) compensation for lost wages, benefits and other remuneration; (ii) front pay;
(iii) additional compensatory damages; (iv) punitive damages; (v) payment by Defendant of

Plaintiffs reasonable costs and attorney's fees, (vi) pre-judgment and post-judgment interest; and

(vii) such other relief as the Court may deem just and proper.

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DESIGNATION OF TRIAL COUNSEL

Mitchell Schley, Esq. is hereby designated as trial counsel pursuant to R. 4:5-l(c).

R. 4:5-1 CERTIFICATION

Pursuant to R, 4:5-1, the undersigned certifies that, to the best of his knowledge, the

within matters in controversy are not the subject of any other action pending in any other court or of a pending arbitration proceeding nor is any action or arbitration proceeding contemplated nor
are other parties required to be joined in this action.
JURY DEMAND

Plaintiff Valerie Greco demands trial by jury on all claims and issues so triable.
LAW OFFICES OF MITCHELL SCHLEY, LLC

Law Offices of Mitchell Schley

Two Tower Center Boulevard

East Brunswick, NJ 08816 Tel: (732)325-0318 Fax: (732)325-0317 Attorneysfor Plaintiff

Dated: March 29, 2013

-9-

Appendix XII-B1

Civil Case Information Statement (CIS)

Use for initial Law Division

Payment type; Ock Dog Qca

Chg/ck no.
Amount:

^'/? nP? - :>

'-\

Civil Part pleadings (not motions) under Rule 4:5-1

^ I

Pleading will be rejected for filing, under Rule 1:5-6(c), if information above the black bar is not completed
or attorney's signature is not affixed
ATTORNEY/PROSE NAME
TELEPHONE NUMBER

Overpayment:
Batch number:

COUNTY OF VENUE

Mitchell Schley
FIRM NAME (ifapplicable)

(732)325-0318

Middlesex

Law Offices of Mitchell Schley, LLC

OFFICE ADDRESS

DOCKETNUMBER (when available)

DOCUMENTTYPE

Two Tower Center Boulevard, 8th Fl.

East Brunswick, NJ 08816 NAME OFPARTY (e.g.,John Doe, Plaintiff) Valerie Greco, Plaintiff

Complaint
JURY DEMAND
CAPTION

YES

NO

Valerie Greco v. Bio-Reference Laboratories, Inc

CASE TYPE NUMBER (See reverse sidefor listing)

616
RELATED CASES PENDING?

IS THIS A PROFESSIONAL MALPRACTICE CASE?

YES

NO

IFYOU HAVE CHECKED "YES," SEE N.J.S.A. 2A:53 A-27 AND APPLICABLE CASE LAW
REGARDING YOUROBLIGATION TO FILE ANAFFIDAVIT OF MERIT.
IF YES, LIST DOCKET NUMBERS
No

D Yes

DO YOU ANTICIPATE ADDING ANY PARTIES

(arising outof same transaction or occurrence)?

Yes No

NAME OF DEFENDANT'S PRIMARY INSURANCE COMPANY (if known)

None

Unknown

THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE

CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION
DO PARTIES HAVE A CURRENT, PAST OR
RECURRENT RELATIONSHIP?

IF YES, IS THAT RELATIONSHIP:

Yes

No

employer/employee Familial

Friend/Neighbor fj business

Other (explain)

DOES THE STATUTE GOVERNING THIS CASE PROVIDE FOR PAYMENT OF FEES BY THE LOSING PARTY?
ACCELERATED DISPOSITION

Yes

No

^ J,Hi!fLERT E COURT TO ANY SPECIAL CASE CHARACTERISTICS THAT MAY WARRANT INDIVIDUAL MANAGEMENT OR

DC DOYOU ORYOUR CLIENT NEED ANY DISABILITY ACCOMMODATIONS?

Yes No

If yes, please identify the requested accommodation

If yes, for what language?

Will an interpreter be needed?

Yes

No

Icertify that confidential personal identifiers have been redacted from documents now submitted tothe court, and will be redacted from all documents submitted in the jjuture in accordance with Rule 1:38-7(b).

Effective 05-07-2012, CN 10517-English

page 1 of 2

Side 2

CIVIL CASE INFORMATION STATEMENT

(CIS)
Use for initial pleadings (notmotions) under Rule 4:5-1

CASE TYPES (Choose one and enter number of case type in appropriate space on the reverse side.)
Track I
151

150 days' discovery

NAME CHANGE FORFEITURE
TENANCY

175
302 399

502 505 506 510 511 512 801

802

ROnKArrn^MV/L0^.6''^"/6"3"^' CntraCt' BOOK ACCOUNT (debt collection matters only) Condemnatin. Complex Commercial or Construction)
OTHER INSURANCE CLAIM (including declaratory judgment actions)
PIP COVERAGE

UM or UIM CLAIM (coverage issues only)

ACTION ON NEGOTIABLE INSTRUMENT
LEMON LAW

SUMMARY ACTION

999

OTHER (briefly describe nature ofaction)

OPEN PUBLIC RECORDS ACT (summary action)

Track II - 300 days' discovery

305 CONSTRUCTION

509 EMPLOYMENT (other than CEPA orLAD)

599 CONTRACT/COMMERCIAL TRANSACTION

%%} A,UT NEGLIGENCE - PERSONAL INJURY (non-verbal threshold)

603Y AUTO NEGLIGENCE - PERSONAL INJURY (verbal threshold)
PERSONAL INJURY 605

610 AUTO NEGLIGENCE - PROPERTY DAMAGE 621 UM or UIM CLAIM (includes bodily injury)
699 Track III
005 301 602
604

TORT-OTHER

- 450 days' discovery

CIVIL RIGHTS CONDEMNATION

606 607

ASSAULT AND BATTERY MEDICAL MALPRACTICE PRODUCT LIABILITY

PROFESSIONAL MALPRACTICE
TOXIC TORT DEFAMATION

608 609
616

617 618

lKSSf?SlSS./rSSF,EN710US EMPLOYEE PROTECTION ACT <CEPA) CASES

LAW AGAINST DISCRIMINATION (LAD) CASES

Track IV
156
303

- Active Case Management by Individual Judge / 450 days' discovery

MT. LAUREL

ENVIRONMENTAL/ENVIRONMENTAL COVERAGE LITIGATION

508 513 514 620 701

COMPLEX COMMERCIAL COMPLEX CONSTRUCTION INSURANCE FRAUD

FALSE CLAIMS ACT

ACTIONS IN LIEU OF PREROGATIVE WRITS

291
292

Centrally Managed Litigation (Track IV)

285 STRYKER TRIDENT HIP IMPLANTS 288 PRUDENTIAL TORT LITIGATION
289 REGLAN

PELVIC MESH/GYNECARE
PELVIC MESH/BARD

290 POMPTON LAKES ENVIRONMENTAL LITIGATION

293
623

DEPUYASR HIP IMPLANT LITIGATION

PROPECIA

295 ALLODERM REGENERATIVE TISSUE MATRIX

Mass Tort (Track IV)

266 HORMONE REPLACEMENT THERAPY (HRT)

271 274

ACCUTANE/ISOTRETINOIN

281 BRISTOL-MYERS SQUIBB ENVIRONMENTAL

282 284 286 FOSAMAX NUVARING LEVAQUIN

RISPERDAL/SEROQUEL/ZYPREXA
ZOMETA/AREDIA
GADOLINIUM

278 279

287
601

YAZ/YASMIN/OCELLA
ASBESTOS

Kh" ^^S^S^SSS^than ,hat provided above-p,ease indicate the reasonSide 1

Please check off each applicable category Putative Class Action
Effective 05-07-2012, CN 10517-English
page 2 of 2

Title 59