Photo from flickr / hugoelectronic

An article in the Washington Post on Wednesday reported that more than 900 whistleblower cases have built up over the past 10 years at the Justice Department. The commercial litigation branch of the department’s civil division blames the backlog on their being understaffed. Many of the cases involve the privatization of government services, government contractors supplying goods and services to the U.S. military, and Medicare and Medicaid payments to pharmaceutical companies.

The article reveals that often whistleblowers must wait 14 months or more to even find out if the department will accept their cases. Then, if it does take on a case, the department will likely take years to investigate and decide if the whistleblower’s claim has merit. Out of 24 cases involving contractors defrauding the U.S. military during wartime, the Department of Justice has awarded settlements to whistleblowers in only five of them. That’s one court settlement per year that the U.S. has been at war. The Department of Justice should be doing more to deter what Rep. Henry Waxman told the BBC is perhaps the “largest war profiteering in history.”

In the Post article, whistleblower lawyers note that the difficulties associated with investigating claims in combat-ravaged zones, and the classified nature of certain military equipment, complicate Department of Justice investigations and set back proceedings indefinitely.

However, one cannot help but wonder if there are political motivations behind the Justice department lawyers taking so long to investigate these cases. True, these whistleblowers are making bold claims pertaining to very politically volatile issues, such as the war in the Middle East. Nevertheless, when whistleblowers decide to risk their jobs to expose their companies’ corrupt business practices, these patriots deserve better than to be forced to sit idly by and wait a decade or more for results.

The Post article relates one whistleblower case in which the plaintiff was awarded a settlement after 12 or so years. The case is likely to be tried in appeals court. However, during the time that the case was being investigated, many witnesses’ memories about the defendants’ corrupt acts faded, and a federal agency threw away its files on the case. When cases take 12 years to be investigated, and plaintiffs’ arguments in court are compromised as a result, both whistleblowers and their counsels are deterred from filing complaints in the first place. The Department of Justice needs to handle whistleblowers’ cases more quickly and efficiently, or dishonest government contractors triumph, and both the federal government and taxpayers lose out.

To read more about the need for stronger whistleblower protection, go to our Project Whistleblowers page.

From Graham Steele and David Arkush @ Watchdog Blog: Far too often, the press covers civil justice issues purely as battles between special interests — business versus “the trial lawyers” — without much discussion on how the policies at issue would affect the public. We weren’t surprised when the Wall Street Journal presented our opposition to pre-dispute binding mandatory arbitration as kowtowing to the trial lawyers. The editorial board of the WSJ is unabashedly conservative and pro-business, and a battle between powerful, well-resourced special interests provides a compelling narrative. We were happy to set them straight. But this story line persists with too many of the civil justice issues that we work on here at Public Citizen — and in too many publications from which we expect better. >> Continue Reading

It looks like we’ll have to wait until October for the National Highway Traffic Safety Administration’s new vehicle roof crush standard, after rumors of a delay have proven true.

Consumer Affairs reports this afternoon that the Department of Transportation informed Congress of the delay with hours to spare before the deadline.

Of course, a delay doesn’t signify a victory for consumer and safety advocates. But Transportation Secretary Mary Peters’ letter to the heads of several Congressional committees suggests the agency is starting to get the message about the problems with its current standard:

“Because of the number of new comments we received and the additional analyses that are required, additional time is now needed to complete the final rule. We will issue a final rule by October, 2008.”

Let’s hope the next three months are productive ones for NHTSA.

Remember earlier this month when Public Citizen and other consumer advocates trekked to the Hill to tell a Senate committee that the National Highway Safety Administration’s proposed roof crush standard is woefully inadequate?

Now, reports have emerged stating NHTSA might not even make its July 1 deadline for submitting the proposal. The Detroit News, Automotive World and Consumer Affairs have reported that the agency plans to ask Congress for an extension in order complete its research and address concerns and questions among automakers and senators.

According to Consumer Affairs, Transportation Secretary Mary Peters received a letter from three Senators asking for a delay.

“We are writing to express our concerns with the National Highway Traffic Safety Administration’s proposed rule on vehicle roof strength,” the letter stated. “We also write to encourage you to extend the current deadline for issuance of the final rule and set a new date for that purpose. …We believe that an extension is necessary to best protect the American public.”

It’s not as if NHTSA has been speeding along on this issue. Congress requested the agency to write a new roof strength standard back in 2005; the current standard is 35 years old.

Given the problems Public Citizen has noted with the current standard and NHTSA’s proposed standard, the fact NHTSA wants to take more time to draft its proposal could be good news for those concerned about the more than 10,500 deaths per year from rollover crashes.

During her testimony in front of the Senate committee, Public Citizen President Joan Claybrook noted that estimates show NHTSA hasn’t made any real attempt to correct the problem of rollover fatalities — NHTSA has estimated its proposed standard would save at most 476 lives per year. (To do the math, that means the proposed standard would only address 5 percent of rollover fatalities.)

But whether NHTSA will decide to ask for an extension, and whether the agency will use that extension to take into account roof strength and other safety measures into its proposed standard, remains to be seen.

In the meantime, check out Public Citizen’s petition in support of auto safety, which already has more than 1,500 supporters.

Maybe, the founding fathers actually knew what they were doing when they set up a system of checks and balances that ensure that no one branch of our government can become too powerful. We see examples all the time where the President and Congress clash over issues or where the U.S. Supreme Court weighs in on a law that Congress passed or some power that the President claims is his executive right. Now, comes an example where Congress has the potential to turn back a recent Supreme Court decision that took away the rights of patients to sue the makers of defective medical devices.

A bill introduced in the U.S. House of Representatives by Reps. Henry Waxman (D-Calif.) and Frank Pallone (D-N.J.) would overrule the high court’s decision in Riegel v. Medtronic. In that case, the court found that Medtronic could not be held liable for one of its balloon catheters that burst during an operation because the catheter had been approved by the Food and Drug Administration.

The federal law that gave the FDA the authority to regulate medical devices in effect preempted the state laws that would have allowed Charles Riegel, the plaintiff in that case, to sue Medtronic, the court ruled.

Public Citizen says it is critical for Congress to pass this legislation, dubbed the Medical Device Safety Act of 2008 (H.R. 6381). A similar bill is expected to be filed shortly in the Senate.

Here’s what Allison Zieve, the Public Citizen attorney who argued on behalf of the Riegels, had to say:

The possibility of being held liable for injuries their products cause creates an invaluable incentive for manufacturers to make their products as safe as they can, to revise labels as soon as they become aware that they are inadequate and to remove unsafe products from the market.

But as Sam Loewenberg in Politico points out in his article “Lawmakers try to remove tort shield,” the medical device industry is going to throw everything it has at killing this bill. But even some people in the medical device industry, concede that the threat of lawsuits can indeed help produce safer devices.

In hearings last month before the House Oversight and Government Reform Committee, a device maker testified that the prospect of legal liability is, indeed, an important motivator.

Christine Ruther, the president of C&R Engineering, a medical device firm in Mission Viejo, Calif., told the committee that when her company is designing a product, “the words that draw our attention are not ‘What would the FDA think?’ but ‘Ladies and gentlemen of the jury.’”

Cross posted from CL&P Blog

By Paul Alan Levy

In a recent series of demands, a purveyor of “nutraceuticals” called mynutritionstore.com threatened to sue Julia Forte over consumer criticisms appearing on her web site 800notes.com, a forum for identification and discussion of telemarketers based on their phone numbers. (The specific dispute is summarized here) Mynutritionstore’s expressed concern was that the comments about it show up in Google searches.

When Forte replied by citing her protection under the Communications Decency Act, 47 U.S.C. § 230, which generally immunizes hosts of discussion sites against suit based on what consumers say on their sites, mynutritionstore’s lawyer, Thomas Georgianna, of the law firm of Horwitz & Cron, had what he no doubt thought was an ingenious response – if he couldn’t sue on the merits, he could sue the anonymous commenters, join the web host as a “necessary party,” seek a preliminary injunction, and thus force the web host to spend money on lawyers, driving up its costs. He apparently hoped that the threat of such expenses would drive Forte to comply with his demands.

If the British recognize that the drug propoxyphene is too dangerous to prescribe to patients, what’s keeping Americans from realizing the same thing?

The U.K. began a phased withdrawal of Darvocet, which contains propoxyphene, from the British market in 2005, after the U.K. Committee on Safety of Medicines recommended that they do so. In its report, the CSM stated that it could not “identify any patient group in whom the risk-benefit [ratio] may be positive.” The withdrawal was completed at the end of 2007.

It’s not that Americans haven’t tried to tell the government to pull propoxyphene off drug store shelves. In 2006, Public Citizen petitioned the U.S. Food and Drug Administration to withdraw all drugs containing propoxyphene, including Darvon and Darvocet, from the market because of the drug’s hazardous side effects. However, the FDA still has not granted or denied the petition. So now Public Citizen is filing a complaint in the D.C. District Court in the District of Columbia asking it to compel the FDA to make a decision.

Propoxyphene is an extremely dangerous painkiller. It is physically and psychologically addictive, is no more effective than safer alternatives and has been associated with more than 2,000 accidental deaths in America since 1981. Despite these risks, however, the drug was one of the 25 most prescribed generic drugs last year, with 22 million prescriptions filled in pharmacies in 2007.

Reports on propoxyphene dosage suggest addiction can occur at less than the maximum recommended daily dose and unequivocally confirm addiction at just twice the recommended daily dose. In addition, propoxyphene has been deemed inappropriate for the elderly because of its adverse effects on the central nervous system – such as sedation and confusion – that have been found to increase the likelihood of falls and fall-related fractures. However, studies have shown that propoxyphene use is widespread in emergency rooms, institutionalized populations and retirement communities.

Public Citizen is asking the court to find that the FDA’s delay in ruling on the 2006 petition is unlawful and to order the FDA to issue a decision on the petition. With substitutes for the drug that are equally effective and far less hazardous, the FDA has no reason not to immediately start phasing out propoxyphene from American drug stores.

Go to the Public Citizen Web site to learn more about this case. Also, Public Citizen’s WorstPills.org provides information about Darvon, Darvocet and other dangerous drugs.

The Associated Press unleashed a firestorm in the blogosphere last week when it claimed that Drudge Retort, a left-wing alternative to the conservative blog Drudge Report, had committed copyright infringement by linking to and briefly quoting several AP articles. Bloggers everywhere were surprised to learn that the AP expects bloggers to pay for the privilege of brief quotations from its articles. Want to quote 5 words from an AP article? The AP wants you to pay $12.50. Want to post and comment on a 60-word statement by a presidential candidate from an AP story? That’ll be $25.

Even worse, the AP requires anyone paying this licensing fee to agree to detailed terms of use, which, among other things, prohibit use of quotations from AP articles that are derogatory to the AP or the journalist who wrote the article. In other words, you’re allowed to quote an AP article to say you liked it, but not to say it was terrible. And if the AP isn’t happy with how you’re using the quotation, it reserves the right to terminate the license at any time.

Copyright law, however, is designed to encourage creativity and free expression, not to impose a stranglehold on public discussion of the news. Sure, the AP has a copyright in its articles and can prohibit blogs from reposting those articles. But the AP has no right to impose a tax on brief quotations from AP news stories for the purpose of referencing, discussing, or criticizing those stories and their authors. The right to quote a reasonable amount from a news story for purposes of commentary or criticism is guaranteed by the right of fair use in the Copyright Act, and by the First Amendment.

Under pressure of a threatened boycott by outraged bloggers, the AP appeared to back off its position on Saturday, saying it would “rethink” its policy toward bloggers and set guidelines for how much bloggers could quote without infringing the company’s copyright. But the AP again appears to be assuming that it has the right to decide how much of its stories bloggers can use. The right of fair use, when it applies, applies even without the permission of the copyright owner.

The AP’s articles belong to the AP. The public discussion of those articles, and the news included in them, belongs to the public.

In a victory for the free speech rights of bloggers, Kentucky has settled a lawsuit with political blogger Mark Nickolas, whose critical comments about then-Governor Ernie Fletcher resulted in the state “blacklisting” all blogs on state-owned computers. Under the settlement, Kentucky officials agreed to no longer single out blogs for special treatment.

Public Citizen filed suit against Fletcher on Nickolas’s behalf, arguing that arbitrarily discriminating between blogs and mainstream media sites violated the First Amendment. Public Citizen also presented evidence that the filtering policy was implemented because the governor’s office was unhappy with Nickolas’s blog, which was widely read by state employees. The ban went into effect the same day Nickolas was quoted in The New York Times criticizing Fletcher.

Kentucky reserved the right to regulate its computer systems to prevent employees from accessing inappropriate sites, but agreed not to discriminate against websites just because they are blogs.

Public Citizen’s filings in the case are available here.

The Supreme Court yesterday issued an important decision involving patents that, although technical in nature, may end up becoming an important victory for consumers. In recent years, companies have increasingly attempted to use their patents on products to limit what people can do with those products after buying them. For example, companies attach “not for resale” labels on products, a practice that allows them to keep prices high by limiting competition from low-priced used goods. The same practice is used by copyright owners to limit the resale of software and music. In Vernor v. Autodesk, Public Citizen recently won an important victory against a software company that attempted to impose just such a limitation on the resale of software. In another case, the Electronic Frontier Foundation is challenging the recording industry’s attempt to prohibit resale of promotional CDs by labeling them “promotional use only.”

The Supreme Court’s decision yesterday in Quanta v. LG Electronics should give some reassurance to consumers who purchase products that come with limited terms of use. The case involved the doctrine of “patent exhaustion,” a legal rule providing that patent owners, once they have sold a patented product, have no further right to control what the purchaser does with it. LG had licensed its patented computer chip technology to Intel. The license agreement granted Intel the right to use the chips in its own products, but also provided that anyone who subsequently purchased the chips from Intel did not have the same right. When, in spite of the agreement, Intel sold the chips to Quanta, LG sued, arguing that Quanta had no license to use the patented technology.

The Supreme Court disagreed, holding that once LG had sold the chips to Intel, it had exhausted its rights in the chips and could no longer control what Intel did with them. Although the Court’s decision did not rule out the possibility that different sorts of license agreements might be upheld in other cases, the outcome is a step in the right direction. The decision reinforces the principle that patent owners cannot use their rights to interfere with competition and limit what people can do with the things they own.