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So you want to be a whistleblower? A lawyer explains the process

with 15 comments

We are pleased to present the first in a series of articles by John R. Thomas, Jr., a lawyer at Gentry Locke who represents whistleblowers in a variety of False Claims Act cases. He writes about how whistleblowers can do the right thing and protect themselves in the process.

John R. Thomas

John R. Thomas, Jr.

As readers of Retraction Watch are well aware, scientific misconduct is a problem for a number of reasons. Science builds upon itself; unfounded scientific results lead to wasted research efforts, ineffective medical therapies, and faulty public policy conclusions. Even one fraudulent paper can have profound effects, such as fueling an anti-vaccine movement.

Research misconduct also erodes public trust in science and endangers ongoing public funding of scientific research. Following the recent discovery of fabricated AIDS research at Iowa State University, Senator Grassley addressed the issue before the U.S. Senate:

Universities need to be responsible and accountable with federal research grants.  By taking action when it learned of the fraud, Iowa State University did that in this case.  But that does not give the government an excuse not to do oversight. And if the government is relying on universities to report fraud instead of doing oversight, there are probably other cases of fraud that are never caught.  If you write a taxpayer-funded check, you should be responsible for making sure the money is being well spent.

Senator Grassley is not alone in his concern for wasted taxpayer dollars; there is widespread support for holding universities and other research institutions accountable for wasted research funding.

Because of the complexity of scientific research and the restricted availability of raw data, whistleblowers are critically important in uncovering research misconduct. A potential whistleblower’s first and most important decision before moving forward is: How should I report my concerns?

One obvious way to report research misconduct is to follow internal institutional procedures. Most research institutions have a genuine interest in promoting good science and addressing misconduct. In some instances, however, a potential whistleblower may have legitimate reasons to believe that the institution will not address his/her concerns. This may be for a number of reasons, including institutional apathy, the professional standing of the individuals involved, or a desire to avoid bad publicity. In such cases, a whistleblower may need to consider other ways to report the research misconduct.

The False Claims Act (FCA), popularly known as the Lincoln Law, is one alternative approach for a whistleblower to consider. The FCA allows a private citizen whistleblower, or “relator,” to file a lawsuit – known as a “qui tam” action — on behalf of the Federal government to recover funds that were paid as a result of fraud. The penalties for violators are formidable: the government is entitled to treble damages and civil penalties of $5,500 to $11,000 per false claim. By law, the relator may be entitled to as much as 30% of the government’s recovery.

Pursuing a scientific whistleblower case through the FCA has some advantages. Aside from the financial incentive for whistleblowers, the FCA offers formidable consequences for misconduct. By filing an FCA action, a whistleblower involves the Department of Justice in the case, and thereby ensures that the research institution, the researcher and the grant agencies will not be the sole decision-makers in resolving the allegations. The significant penalties involved in FCA cases also command the attention of institutions and companies throughout the country, serving as a strong warning to others.

Pursuing an FCA case also involves significant challenges. Not all instances of research misconduct are actionable under the FCA; sloppy or bad science may not necessarily cause “false” claims to be made to the government for payment. In other words, to have a viable FCA case, the “false” statements or research misconduct must be “material” to Federal grant funding. Sometimes this connection is difficult to make.

That being said, not all potential FCA cases involve substantive scientific fraud; “falsity” encompasses a far broader range of misrepresentations than one might imagine. For instance, using the same set of experiments to obtain two separate Federal grants may be a violation of the FCA. Misrepresenting the credentials of researchers, departing significantly from an original grant proposal, or misrepresenting “effort” on a particular grant are other ways that researchers may also violate the FCA.

Before making an allegation of research misconduct, a potential whistleblower should consult with qualified counsel for several important reasons.

First, a potential whistleblower should ensure that they are following proper channels when reporting the allegations. If whistleblowers do not do so, they could find themselves sued for defamation. A potential whistleblower should also consider the risk of retaliation. Following the proper procedures in reporting allegations of research misconduct may reduce these risks.

The False Claims Act offers some protections for whistleblowers. Because an FCA case remains under seal while the government investigates the claim, the whistleblower has a measure of anonymity for some period of time. The False Claims Act also contains anti-retaliation provisions that protect whistleblowers.

Consulting with counsel will also help whistleblowers to ensure that they protect themselves from criminal prosecution if they have been involved in the research misconduct, whether knowingly or unknowingly.

While pursuing an FCA case is always challenging, it may sometimes be the right thing to do to protect integrity in science. Ultimately, a whistleblower has a range of options in dealing with research misconduct. If the whistleblower chooses to pursue the case through the FCA, however, the whistleblower can be sure of two things: accountability and consequences.

I’ll address more ways in which whistleblowers can protect themselves, as well as the details of identifying and bringing about a qui tam case, in future posts.

John R. Thomas, Jr., leads the Qui Tam Relator Practice at Gentry Locke in Virginia. John is the Chair of the Federal Bar Association Qui Tam Section and represents whistleblowers in a variety of False Claims Act cases. He can be reached at jthomas@gentrylocke.com.

 

Written by Alison McCook

March 18th, 2015 at 9:30 am

Posted in law

Comments
  • Ken Pimple March 18, 2015 at 9:52 am

    Thank you for the enlightening piece. A question for future posts: How can you find a lawyer who is well suited for an FCA action?

    • John Thomas March 18, 2015 at 10:37 am

      Ken, I would be happy to help you find someone – feel free to contact me at my email address provided.

  • Daniel March 18, 2015 at 12:08 pm

    Given the topic of the series, a shout-out to a paper by Gunsalus regarding whistle-blowing in Academia: Gunsalus, C.K. (1998). “How to blow the whistle and still have a career afterwards.” Science and Engineering Ethics, 4(1), 51-64. (online: http://poynter.indiana.edu/files/8713/4858/3595/see-ckg1.pdf ) I found it really interesting and helpful.

  • A simple question March 18, 2015 at 1:15 pm

    This is useful information, but appears to be highly restricted on two fronts: a) to the USA; b) to individuals who are reporting about research that is funded by the US Government.

    What protections do normal scientists have when reporting faults in scientific papers more broadly? In some ways, all the anonymous comments that are “leaked” publicly about problems and errors in the literature, for example, at PubPeer, represent acts of whistle-blowing, in my interpretation. Any ideas on our protection as “Joe the plumber” scientists who simply want to see the literature corrected, but who are not constrained by any “institutional” channels, especially in transnational cases?

    • Miguel Roig March 19, 2015 at 7:40 am

      ‘A simple question’ raises a most important concern that extends beyond the problem of whistle-blowing. I apologize if what follows is interpreted as just another platitude, but the fact is that in too many parts of the world individuals who engage in misconduct get away with their transgressions in large part because there is a weak or non existent institutional and/or national structure with which to deal with such cases and, of course, little to no protection for whistle-blowers. Given the increasing internationalization of science, there is a dire need for the development of a more encompassing (not just federal-funded) and effective (‘with sharper teeth’) framework for ensuring the integrity of science across borders. I’m sure you all recognize the complexity of such a proposal, but I think that recent developments (e.g., rise of predatory journals) make the current situation in the sciences somewhat analogous to what the world is facing with climate change: No action now may end up having very serious repercussions (e.g., continuing decline in the public’s trust in science) for us all in the not-too-distant future.

      Perhaps this matter will be taken up at the upcoming World Conference for Research Integrity, http://www.wcri2015.org/.

  • Paul Brookes March 18, 2015 at 3:46 pm

    Helene Hill probably has the best resource on why qui tam is not such a good idea (http://www.helenezhill.com/). The TL/DR summary is that it costs a lot of money, and the burden of proof is incredibly high. The accused can almost always argue their way out of it.

    The key sticking point is proof of intent. From my understanding (largely as related to me by Lainie), to prove something under the false claims act, one has to prove that it was the INTENT of the perpetrator to defraud the government of funds, in committing the act. The problem with most allegations about scientific data manipulation, is that it’s hard enough just proving the manipulation even took place, let alone who did it (the rogue post-doc’ defense). To then prove that their intent was to do it for the purposes of gaining money from the government (rather than for other purposes such as forwarding their career or getting a cool paper), is a very high legal bar to cross.

    Thus, qui tam might sound like a cool idea, but good luck to anyone wishing to follow in Helene’s footsteps and pee away several $k of their own money over the next couple of decades. There’s a reason the legal summary sites are not littered with successful qui tam cases (I cannot name a single one in the life sciences arena).

    • John Thomas March 19, 2015 at 6:01 pm

      Paul, those a great points that I will address in my next article. The “intent” element that needs to be proven in FCA cases is that the person or institution “knowingly” presented a false claim. Knowledge is defined under the case law as either actual knowledge, willful blindness (deliberate ignorance) or recklessness to the truth.

      As to the issue of legal fees: the FCA awards attorneys’ fees and costs to a prevailing relator, and most relator counsel handle cases on a form of contingency basis. You are right, though, that this is something that a potential whistleblower should carefully consider.

    • MannyHM April 6, 2016 at 3:06 pm

      I think a good lawyer would only accept a case of qui tam if it’s truly a good one because of the time and resources involved. If there’s no money to be had, it’s not qui tam. Inform the news media and the Office of Inspector General. I should mention about a good case of a whistle-blower exposed cancer doctor Dr. Farid Fata in Michigan. Science exposes and help convict the criminal; scientists should also expose the crime committed in its name and in its midst.

  • Frank March 18, 2015 at 7:29 pm

    Indeed. To put it in terms of questions for Mr. Thomas:

    1. How often are qui tam lawsuits of this sort successful?

    2. Do you take on such lawsuits on a contingency basis, or do clients have to pay regardless of outcome?

    • John Thomas March 19, 2015 at 6:04 pm

      Frank, I will address this in following articles, but to give a brief answer to your question: there have only been a handful of successful FCA cases involving scientific grants. There have been, however, more cases involving grants generally, and the law is substantially similar for grant cases. As to your question on contingency fees – most relator counsel work on a contingency fee basis. This is certainly an important topic for a whistleblower and his potential attorney to discuss.

      • Frank March 19, 2015 at 6:45 pm

        Thank you for your answer. How many unsuccessful suits have there been (for scientific grants, and grants more generally)? That is, roughly what fraction have been successful?

  • Narad March 19, 2015 at 6:44 am

    Leaving aside the question of possible FCA counterclaims versus the qualified privilege “arising from the ORI regulatory regime,” one obvious issue seems to be that any qui tam (or, to call a spade a spade, bounty hunter) action would likely need to name the grantee, i.e., one’s own institution. Are there any examples of going after the PI other than United States ex rel. DeNino v. Poehlman?

  • John Thomas March 19, 2015 at 6:08 pm

    Narad, that is an excellent point that I will address in my next article. Depending upon the judicial circuit involved, an institution may or may not be bound by the actions of its employees and agents – therefore, most FCA cases are brought against the institution or company involved.

  • Richard Smith March 20, 2015 at 2:20 pm

    Can you offer similar advice for other countries? That would be very useful. Don’t let yourselves become too US-centric. Science is global.

  • Hunt March 28, 2015 at 1:52 am

    Where can we find a qualified counsel for advice on such matters? Is there a link to finding out more about the restrictions / eligibility for a whistleblower to file a “qui tam” action? For example, should the research have been conducted in the US or have been funded by a US based organization (NIH)? Similar to Richard Smith’s comment it would be very useful to learn about options that apply in other countries.

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