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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details how a government agency within the defense department has rescinded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
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than half of drug trial data in the United States goes completely unpublished,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
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:
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.
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.
Hopefully,
more and more articles will emerge covering what easily could be the most
important patient rights case for decades to come.
-- Dylan Blaylock
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
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…
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.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
There’s
some great coverage of whistleblower issues and developments in the news today.
First,
Senators Charles Grassley (R-Iowa) and Patrick Leahy (D-Vt.) have
sent a letter to the Department of Labor accusing it of “violating the ‘spirit
and goals’” of the Sarbanes-Oxley whistleblower protection provisions by
repeatedly dismissing retaliation cases brought by employees of subsidiaries
(as opposed to publicly-traded companies). The senators are urging the DOL to
stop using the “overly restrictive interpretation” of the law.
The
senators are absolutely correct to do this. GAP’s Tom Devine explained (from
the Wall Street Journal):
Tom Devine, legal director
of the Government Accountability Project, a nonprofit group that promotes
whistleblower rights, called the department's stance "dysfunctional,"
saying: "This one is a no-brainer. There is nothing in the law that allows
for that type of loophole."
Next,
GAP
is releasing a report today which details the current (and dangerous)
landscape of corporate whistleblower laws and recommends strategies for corporate
whistleblowers to best protect themselves from future retaliation.
This
report is excerpted from a comprehensive corporate whistleblower survival
guide, Committing the Truth, scheduled for publication next year. In
more coverage for SOX (from the Financial Times):
The 2002 Sarbanes-Oxley
Act, which contained new pro-whistleblower provisions when it was passed in the
wake of the Enron and WorldCom scandals, "has helped few whistleblowers
actually achieve justice", according to the Government Accountability
Project, an advocacy group that provides legal advice to whistleblowers.
"Access to jury trials
has proved elusive, and other institutions . . . have engaged in systematic,
hostile activism against the congressional mandate," it says in a report
today.
A
good media day for whistleblowers, indeed.
-- Dylan Blaylock
Eleven Hanford “pipefitters,” who have been in
legal proceedings against a federal contractor for being fired after refusing
to test known unsafe equipment at the Hanford Nuclear Reservation, have had
their multi-million dollar victory from 2005 upheld by the Washington State
Supreme Court. This ruling effectively ends an 11-year legal struggle for
justice. From
the Tri-City Herald:
In
2005, a Benton County jury found that the pipefitters had been wrongfully
dismissed from their jobs at the Hanford nuclear reservation. The pipefitters
said they were targeted as whistleblowers.
Hanford
contractor Fluor Federal Services appealed the decision on several grounds,
including what it believed were procedural errors in the case and a state
Supreme Court ruling made since the jury verdict.
Eight
state Supreme Court justices agreed in the appeal decision that the jury award
was proper and that any errors in evidence presented at trial, including
testimony of other witnesses who claimed they were retaliated against by Fluor,
were harmless.
The
ninth justice considering the case, Richard Sanders, said the decision should
have gone further. In an opinion that dissented in part, he said the
pipefitters also should have been awarded out-of-pocket costs, such as attorney
travel costs, which amounted to 3 percent of the total award.
"The
decision is an important vindication for the right of workers to raise
important safety and health concerns at a federal nuclear site," attorney
Tom Carpenter said in a statement. He helped pipefitters through the Government
Accountability Project in the early years of the dispute.
"It
vindicates their interests and the interest of the public, and will resonate
throughout the Hanford site for decades to come," Carpenter said.
This is a wonderful and just decision. Click here to
read the entire case background.
-- Dylan Blaylock
The
Department of Labor has been dismissing retaliation suits raised by
whistleblowers because they are employees of subsidiaries of publicly traded
companies, rather than the companies directly. The numbers associated with
whistleblower success, while not surprising, are indicative of the Bush
administration’s overall view toward whistleblowers. From
the Wall Street Journal:
The government has ruled in
favor of whistleblowers 17 times out of 1,273 complaints filed since 2002,
according to department records. Another 841 cases have been dismissed. Many of
the dismissals were made on the grounds that employees worked for a corporate
subsidiary, says Richard Moberly, a University of Nebraska law professor.
He studies issues involving
workers who face retaliation from employers for reporting wrongdoing, and based
his findings on department data. The rest of the cases are either pending,
withdrawn or were settled.
Sen. Patrick Leahy, a
Vermont Democrat who helped craft the whistleblower provision -- part of the
Sarbanes-Oxley corporate governance act -- says the law was meant to cover
workers in corporate subsidiaries. "Otherwise, a company that wants to do
something shady, could just do it in their subsidiary," he said.
Leahy’s
right. If you don’t close corporate loopholes, wrongdoing and corrupt practices
will always run to where they have cover.
-
Dylan Blaylock
