Guest post: When whistleblowers need lawyers

In my prior career as an investigative science journalist and now as a whistleblower lawyer, I’ve seen institutions react to allegations of scientific fraud in two ways.

The first could be called "Investigate and Disclose." This strategy was exemplified by Bell Laboratories’ 2002 investigation of allegations that Jan Hendrik Schön, a member of the technical staff, mishandled data. The allegations were published in The New York Times in May. In September, Bell Labs released a thorough report on its inquiry revealing fabrications in multiple Nature and Science papers, which were promptly retracted. The report made possible a 2009 book I wrote about the scandal, because once a proper investigation began (and it took a while to get going), the company clarified within months that Schön had faked his data.

The second, more common response is "Delay and Deny" or "Delay and Downplay," which is a more common – but insidious – strategy. A Delay and Deny response is not helpful to anyone outside a tiny inner circle of administrators, irrespective of the merit of the allegations.

Strategies in Delay and Deny/Downplay include taking years to conduct investigations and issuing platitudes about what was not found (no criminal intent, no pattern, no effect on scientific conclusions), as opposed to disclosing the facts that the investigation has uncovered, along with any conclusions that independent experts have drawn. The lack of detail from institutions compares unfavorably with the hard work from many whistleblowers to document their concerns.

Yet the legal system can shake out information or data that is otherwise being hidden. As a journalist, I once sued under the Freedom of Information Act and shed light on what had gone wrong in a fraud case even without obtaining the record I originally sought.

In a legal context, Delay and Deny/Downplay can also become a costly institutional strategy. In 2019, Duke University paid $112.5 million to settle a False Claims Act ("FCA") lawsuit brought by a whistleblower who knew of multiple instances of data fabrication affecting federal grants. (John Thomas, the lead lawyer in that case, has written a three-part series about the FCA here.)

The Duke case contrasts with a government investigation I participated in during law school in 2016. The investigation began after Brigham and Women's Hospital, a Harvard teaching hospital, disclosed internal concerns about the work of Piero Anversa, a stem cell pioneer. The amount of the eventual settlement was $10 million – a favorable outcome when compared with Duke's $112.5 million, for what I would estimate was fraud of a similar scale.

Going public with allegations of misconduct can sometimes produce an appropriate community reckoning, as I found as a reporter. But after working for many years as an investigative journalist, I was propelled towards getting my law degree by research institutions that were so shameless about Delay and Deny/Downplay that they either did not care about negative media coverage or reacted to it by doubling down.

Recently, I created a new kind of whistleblower law firm, Eugenie Reich Law LLC. My new firm has two objectives that are especially relevant to whistleblowers of scientific fraud.

First, the firm will provide legal services, advice, and education to whistleblowers of research misconduct that will be independent of any research institution or journal, and that will not involve charging fees (unless the case results in a financial recovery, as discussed below).

While many scientists think too many lawyers are involved in research misconduct investigations already, the majority are paid by journals, research institutions, or scientists accused of fraud (who are sometimes but not always defended by institutions).

The imbalance in access to legal services between these organizations and the whistleblowers has resulted in many whistleblowers of scientific fraud being intimidated by libel threats, cease-and-desist demands, and confidentiality strictures. Indeed, even critics of bad science – put aside whistleblowers of fraud – sometimes feel afraid to call out mishandled data. Ironically, the greater the evidence for fraud, the harder it is to point out errors.

I intend the existence of my firm to go some way to change the imbalance. With the caveat that everything in this guest post is intended as general comments and not legal advice for any specific reader, I observe common mistakes by whistleblowers such as providing inadequate documentation (even when they possess more), or lack of clarity about what is being alleged and what steps are needed to investigate further. I also see situations in which it has been hard to nip retaliation in the bud, because it was not clear at the start that the critique being offered was, or might become, a fraud allegation. That said, I would still put the majority of the blame for the struggles of whistleblowers on aggressive tactics from institutional attorneys or administrators that warrant strategic rather than idealistic thinking in response.

A second objective of my firm will be to seek legal accountability for research organizations that cover-up allegations of misconduct.

Recoveries in egregious cases that I will bring using the FCA will be a lever for accountability and a source of revenue to sustain my firm, as whistleblowers can qualify for a percentage of the funding agency's recovery and their lawyer can get paid.

I expect that around half of the FCA cases I bring will involve frauds in fields that have more money in them than academia, areas such as technology, healthcare, and the pharmaceutical industry. At my former firm, for example, I served as a core member of a team that achieved a record settlement of $900 million in a whistleblower lawsuit alleging kickbacks by a pharmaceutical company.

As the Duke case shows, grant frauds can also be large. And I hope to encourage more scientists to consider the FCA to target small grant frauds in the interests of institutional transparency, even if the dollar amounts are modest.

I understand that some academic scientists feel that whistleblowers should not make any money from their allegations, but I am not afraid that recovering money discredit their motives, for the following reasons:

First, the timelines of events in good cases usually make clear that the whistleblower started asking questions long before they knew of any financial incentive to litigate the answers. Second, I detect a social shift in academia, with increasing recognition that many scientists are underpaid, and that too much of the funding and rewards are associated with hyping results rather than troubleshooting them.

It takes time to document a concern, fully investigate a situation, and explain the problems with other people's data. If those who do so end up getting paid for that work by means of a law firm taking up their cause, that's more likely than ever before to be seen as a good thing.

Also, nothing requires the whistleblowers who receive major windfalls to keep the money. A successful whistleblower can put their share of a government recovery back into research, or into a nonprofit dedicated to research transparency or other values that they care about.

In the end, the share that goes to reward a whistleblower is less significant than the much larger amount deducted from institutional budgets. That's a metric even the most cynical administrators or board of trustees understand.

Eugenie Reich attended law school after a fifteen year career as an investigative science journalist. She now has her own whistleblower law firm in Boston, Eugenie Reich Law LLC.

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