All Things Whistleblower: A GAP Blog

In the News Today...

This Buffalo News op-ed written by GAP Homeland Security Director Jesselyn Radack criticizes FEMA’s handling of emergency responses to Hurricane Ike, and details how the federal government has taken questionable actions in limiting media coverage of the areas hit hardest by the storm. This includes the FAA’s issuing of an unprecedented "No Fly Zone" that kept all news helicopters from flying within one mile of some devastated areas.

GovExec details how a government agency within the defense department has rescinded a “controversial, and possibly illegal” gag order against a whistleblowing employee who exposed questionable fees from contractors.

From HealthDay, the GAO released a report on Friday which concludes that the FDA is not properly funded or staffed to protect Americans, especially regarding produce safety. The Las Vegas Sun wrote a masthead editorial about it.

-- Dylan Blaylock

Adventures in Drug Transparency

Although the big issue GAP is following today is the potential passage of whistleblower rights in the bailout bill, there are a couple of important drug safety stories from the past couple of days.

First, yesterday, HealthDay News reported that a new study shows that more than half of drug trial data in the United States goes completely unpublished, even years after products have been on the market.

This travesty and assault on transparency is even more heinous, when you consider the fact that the Supreme Court may very well decide later this year to grant drug companies immunity from personal injury lawsuits in the future.

Then today, in much better news, the New York Times reported that two major pharmaceutical companies have announced that, starting next year, they plan to publicly divulge payments made to outside doctors.

Although this seems like very good news on face value, with the track record of drug companies and transparency, it’s probably best to react to this news with cautious optimism.

-- Dylan Blaylock

Whistleblower Rights in Bailout Bill

GAP and other groups sent a letter to key House and Senate Committees yesterday urging for stronger whistleblower protections to be included in the much-covered “bailout bill” that is monopolizing Congress’ time at the moment. From the Washington Post:

"At a minimum, any credible solution must address one of the current crisis' fundamental causes -- corruption and other abuses of power sustained by secrecy," the letter said. "Otherwise, the taxpayers could end up giving $700 billion more to repeat the same disasters. Congress must prove it has learned this lesson. Any genuine solution must be grounded in transparency, with all relevant records publicly available and best practice whistleblower protection for all employees connected with the new law."

The article (citing GAP) details the need for immediate changes to be made to existing law:

One way or another, the coalition hopes the amendments become law soon. They are designed to close looming loopholes that are the result of court decisions.

While the law sought to protect whistle-blowers for "any" lawful disclosures of government wrongdoing, the U.S. Court of Appeals for the Federal Circuit has turned the definition around so much that it's reminiscent of President Bill Clinton saying: "It depends on what the meaning of the word 'is' is."

Now, "any" no longer applies "if the disclosure is made to co-workers, supervisors or others in the chain of command, or those suspected of wrongdoing; if the disclosures are made during the course of doing one's job duties; if the disclosure challenges illegal or similarly improper policies; and if the whistleblower is not the first to make a disclosure," said Tom Devine, legal director of the Government Accountability Project.

The amendments would make "any" mean "any."

Another sore point with the coalition is a 1999 court decision that Devine says makes it almost impossible for whistle-blowers to qualify for protection, regardless of context. While Congress said employees must reasonably believe a disclosure is about misconduct, the court said workers must prove the bad deeds with "irrefragable" evidence.

-- Dylan Blaylock

A Very Important Case

This New York Times article details a woman who lost her hand and part of her arm after taking an anti-nausea drug. A jury found for her in a product liability suit against the drug’s maker, Wyeth, for not adequately warning about possible drug risks. This case, however, is set to be heard in front of the Supreme Court in November, in a case that will determine whether drug companies can be held liable for personal injury, provided that the drug was granted FDA approval. This legal debate, “pre-emption,” may be the most important case of the court’s term.

This issue was detailed earlier this year in reports, when medical device makers were actually shielded from personal injury lawsuits in a separate terrible decision.

Hopefully, more and more articles will emerge covering what easily could be the most important patient rights case for decades to come.

-- Dylan Blaylock

Hold the BPA

Yesterday at a public hearing, the FDA defended the controversial chemical BPA, found in many common plastics, as “safe.” Health watchdogs are understandably very upset, as over 100 studies have linked BPA to negative health ramifications in animals. But there’s more! From the Washington Post:

The FDA maintains that BPA is safe largely on the basis of two studies funded by the chemical industry, a fact that was repeatedly cited at yesterday's forum.

"We're concerned that the FDA is basing its conclusion on two studies while downplaying the results of hundreds of other studies," said Amber Wise of the Union of Concerned Scientists. "This appears to be a case of cherry-picking data with potentially high cost to human health."

A potentially high cost is right. Especially considering the results of a new study by the Journal of the American Medical Association, highlighting the first human-BPA health links. From the Associated Press:

 Using a health survey of nearly 1,500 adults, the study found that those exposed to higher amounts of BPA were more likely to report having heart disease and diabetes. Because of the possible public health implications, the results "deserve scientific follow-up," its authors said.

There’s also evidence from the study correlating BPA and liver abnormalities.

Warning - Watch your BPA intake (plastic usage).

-- Dylan Blaylock

DOJ Ignores Big Oil Wrongdoing

A new article analyzes how the Department of Justice has failed to assist various states in whistleblower cases specifically brought up against large oil corporations, risking millions of dollars in settlement dollars that could go to the American taxpayer.

Big kudos to McClatchy Newspapers for their investigative piece. As readers of this blog know, whistleblower suits filed with the federal government against companies that bilk taxpayers allow for a great percentage of funds to be recovered in settlement. But the oil company is apparently off limits to the DOJ…

McClatchy Newspapers found that the Justice Department has participated in only a handful of the 80 whistleblower cases brought against the oil industry since 1995.

Whistleblower suits are generally less successful without the Justice Department's intervention, and if a whistleblower prevails on his or her own, taxpayers get a smaller share of the damages.

The disclosures come in the wake of scathing reports from internal watchdogs this week over the Interior Department's mismanagement of oil leases and are likely to fan criticism that the Bush administration has ignored allegations that oil companies have cheated taxpayers out of tens of billions of dollars in fees for the rights to drill on federal lands.

Who would figure that this Justice Department would do what it could to protect Big Oil?

-- Dylan Blaylock

OpenTheGovernment's New Report

OpenTheGovernment.org, an important coalition partner of GAP and a great advocate of government transparency, recently released their 2008 Secrecy Report Card. This annual report identifies important trends in public access to government information. It's worth checking out!

-- Dylan Blaylock