GENEWATCH
 
WANTON MISCONDUCT
By Becky McClain
 

from GeneWatch 26-4
Aug-Oct 2013

This is the story of a whistleblower: me.

I was working as a molecular biologist at a Pfizer laboratory. After I raised concerns about worker safety at the lab, I was told to stop documenting the problems I saw; when I continued to raise concerns, another employee was assigned to work on a dangerous genetically engineered virus on my bench without my knowledge; when I became ill and requested records of what viruses I may have been exposed to in the lab, Pfizer refused; when I took the matter to OSHA, Pfizer fired me. My health deteriorated, but Pfizer repeatedly blocked my attempts to get information about the virus. And when I began to take legal measures, I learned just how extensive and pervasive Pfizer's influence really is.

Important people within a broad array of institutions - from government agencies to academia to the legal system - have conflicts of interest giving them incentive to act in Pfizer's favor. These networks are ingrained within the current power structure, causing unjust legal disadvantages, biased and illegal investigations, and unreasonably long legal battles for any whistleblower who might advocate for public health and safety in the biotech arena.

I am still amazed today that Pfizer's influence was able to delay and obfuscate my rights to free speech regarding worker and public health and safety for ten years. The delay and roadblocks did not come from a lack of evidence in my case, but rather because of conflicts of interest that exist within our power structure which allow a lack of transparency, responsibility and accountability in the biotech arena. So when I went up against Pfizer in a legal battle as a whistleblower for safety in biotech labs, Pfizer's immense web of economic and political relationships were their most powerful advocate against me and against public health and safety.

For example, the Yale University Occupational Health Division, without any substantiation to back up their claims, sent a letter to my doctor stating that the lentivirus I was exposed to at Pfizer "is unable to cause illnesses." When I discovered this, I was outraged. The lentivirus was indeed dangerous; the evidence later released on the lentivirus confirmed that the virus could infect humans and was designed to attack human genes. I later learned that Pfizer was giving Yale a substantial amount of money.

I needed medical help desperately. I believed I finally had discovered where to go for honest and expert medical help. In conjunction with my primary physician, I had coordinated and scheduled a medical appointment at the Neurology Department at Columbia University with a specific physician and researcher who was an expert on genetically engineered lentiviruses, the same virus type that I had been exposed to at Pfizer. I was suffering immensely from the neurological illness brought on directly after the exposure. I had scientific evidence that the agent in fact could infect humans and had caused my illness. This expert knew of the dangers associated with exposures to genetically engineered lentiviruses. He could not discount my exposure and illness without losing credibility to his own work.

After waiting for months and spending close to $900 for an appointment to see this lentivirus expert at Columbia, I was in for a big disappointment. Columbia University did a doctor switch on me. Instead of the expert, another physician showed up. The new doctor entered the room and without any medical inquiry or testing of any kind regarding my documented biological exposure at Pfizer, he called me "malingering" and suggested that I be admitted to a psychiatric ward.

I had been set up.

Although I had never agreed to see the second doctor and had filed a complaint against him for his unprofessional behavior, Pfizer became privy to the sham appointment through Columbia University. Pfizer used the doctor's phony medical opinion as an aid to throw out any legal remedy I had in district court concerning my occupational exposure and illness.

The facts are that Columbia University and their Neurology department have received millions of dollars in business funds from Pfizer for biotech research.

Academic and medical conflicts of interest did not stop there.

I was informed by Connecticut's Department of Public Health that a PhD from Stanford University, acting as an independent expert during a state investigation of my case, concluded that the genetically engineered lentivirus involved in my case was not dangerous and did not require BL2 biocontainment. The statement was false, but the "expert" had incentive to side with Pfizer. At that time he had been on Pfizer's payroll in collaboration to build a biotech company. He never disclosed his conflict of interest surrounding my case to Stanford University or the Connecticut Department of Health. Unfortunately, because of his statements, the Department of Public Health dismissed my case regarding serious biocontainment and safety issues at Pfizer.

Government agencies have their own incentives to protect Pfizer. In my case, egregious conflicts of interest were plainly evident at OSHA, the agency responsible to protect worker's safety rights and whistleblower rights.

The conflicts of interest at OSHA began with Pfizer's attorneys, Jackson and Lewis, a top union-busting and anti-worker law firm. One of Jackson and Lewis' own attorneys worked at OSHA, and was subsequently appointed Assistant Secretary of Labor. This put him in the position to deny my OSHA appeals outright, even after Senator Dodd called to his attention several OSHA procedural errors and injustices done in my case.

In fact, my entire OSHA investigation was a sham. My OSHA investigator stole my attorney client privileged documents which, subsequently, landed in the hands of Pfizer without our knowledge. She lied on her investigational report, refused to conduct a safety inspection at Pfizer and told me that she was immune to any repercussion from her actions on my case.

Even worse, OSHA ruled that trade secrets superseded my rights to my exposure records to obtain healthcare for my occupational exposure. This ruling established a worrisome legal precedent. It poses egregious human rights issues, inhibiting access to proper healthcare for all biotech workers and injured workers who become ill through an exposure to a biological agent. It is a way to hide serious injuries of public concern within the biotech field.

In the end, OSHA had documented evidence that Pfizer management had refused us remedy to serious biocontainment problems at Pfizer and that employees had fallen ill from exposures at Pfizer. Despite these facts, my investigator still threw out my OSHA claim and refused to do a safety inspection at Pfizer. Instead, she wrote that I had a character flaw and was out to get money.

Pfizer made sure I ran into roadblocks at every turn - even when I applied for workers' compensation. Workers' Compensation is a state-independently run medical care system to which injured workers are mandated to proceed to obtain medical care for an occupational injury or illness. Through this system injured workers are supposed to receive swift and efficient medical care for their injury without the need for litigation. In exchange for these benefits, American workers lose most of their rights to file a lawsuit against an employer because of their injury at work.

Yet in my first workers' compensation hearing, four Pfizer attorneys showed up. My attorney turned to me in shock and said that he had never experienced anything like this before. The workers' compensation administrative judge was visibly uncomfortable when he entered the room to find four Pfizer attorneys. He ruled that day that worker's compensation had no jurisdiction to order Pfizer to provide my exposure records to inform my health care. As a result, I did not receive any workers' compensation whatsoever for the illness I contracted on the job at Pfizer - nor did I have access to the records that would have identified which virus caused my illness.

Since workers' compensation administrative judges are political appointees, they can lose their jobs if unpopular decisions are made against companies. This creates an obvious conflict of interest ... especially when four Pfizer attorneys show up to send a strong message.

After years of struggling, it was only in the federal court system that I received any real justice. But even in the federal district court, conflicts of interest were evident. In this case it was with the leading judge, Vanessa Bryant.

In 2006, I took Pfizer to court. Two weeks before the trial began Judge Bryant suddenly threw out the willful and wanton misconduct claim against Pfizer. My attorneys and I were shocked since this claim was the most serious legal and economic threat to Pfizer involving my exposure and illness. Even though this claim has high standards of proof, I had adequate evidence to have the jury hear the evidence on the claim.

The judge's antics did not stop there. When Dr. Michael Siciliano, a 30 year career Professor of Genetics, was finally called to take the stand as my expert witness, Judge Bryant refused to allow him to testify based on a frivolous technicality. Pfizer was allowed "expert" witnesses, but I was not allowed any.

Even more outlandish, Judge Bryant refused my attorney's attempt to admit documented and scientific evidence that linked my serious illness to a genetically engineered lentivirus exposure at Pfizer. She would not allow the jury to hear our evidence concerning the dangers involved with infectious genetically engineered lentiviruses created at Pfizer. Nor would she allow evidence of Pfizer's misuse of these technologies or Pfizer's blatant continued retaliation against me after I fell ill from the exposure to the lentivirus. She would not allow the jury to see the evidence that Pfizer denied my exposure records for health care under a pretense of a trade secret claim. In the end, the jury was never informed that I had incurred a dangerous exposure to a genetically engineered virus at Pfizer and had become seriously ill.

The trial appeared to be one-sided with Judge Bryant making strategic moves in favor of Pfizer. It was quite obvious not only to me, but also to several other people who came up to me and displayed their shock and dismay while watching the trial.

Despite the judicial bias, my story and the little evidence allowed in front of the jury made a convincing case for my free speech and whistleblower claims. Several times during the trial the jurors' faces were notably aghast at Pfizer's malicious behavior against me. Those moments gave me confidence that I might have some sort of justice in the end.

And I did. The jury in April 2010 determined that Pfizer had engaged in willful and wanton misconduct against me for my free speech regarding safety matters of public concern. They awarded me $1.37 million plus punitive damages. Yet I wonder what would have been awarded if I would have been allowed to show all the evidence against Pfizer, including my exposure and illness.

Nevertheless, the jury outcome gave me some hope in our system. I had been through 7 years of false investigations, character assassinations and suffered a horrible illness because of Pfizer. It was only in front of a jury when any real justice came. It is proof that the power of the people is amazing.

Judge Bryant finally disclosed her conflict of interest and recused herself from my case after I won at trial. Her husband, an investment professional, had direct monetary and employment relationships with Pfizer's attorneys, Jackson and Lewis. But before Judge Bryant recused herself, she had delayed my case for an entire year. It was after this delay that Pfizer appealed the case to the US Court of Appeals for the 2nd Circuit where justice was delayed for almost another three years.

Nevertheless, the federal appellate level is where Pfizer finally hit a brick wall. Pfizer's "influence" to delay justice ended in December 2012, when the Appeals Court ruled in my favor. In fact, the Appeals Court justices called Pfizer malicious and agreed with the jury that my safety complaints were of public concern. They agreed that Pfizer had retaliated against me with willful and wanton intent. Pfizer was out of appeal options and out of time. The court eventually forced Pfizer to pay me. It came this year, 10 years after Pfizer began a long and hostile attack against me. Pfizer attacked my health and my livelihood ... all because of my public health and safety advocacy for a safer work environment.

Yet despite my success at the appellate court level, my trials are not over. Pfizer's influences reached past the Appeals Court to hit home directly.

Let me explain.

Two months before the jury trial started in my case, my husband, a top level drug and pharmacy investigator at the FDA, came home one day to tell me that he was told by FDA management to either "settle with Pfizer or there is no future for you here." Settlement with Pfizer meant being "gagged" to discuss what happened at Pfizer; that is, giving up my free speech rights regarding worker safety and public health and safety. We could not believe that my husband's employer, a government agency, was interfering with our rights to go to trial through threats of termination. We were already under financial constraints since I had lost my career, as well as my health. So their threat was taken seriously. Nevertheless, we proceeded to trial.

Soon after I won my jury trial in April 2010, the FDA acted on their threat. My husband experienced an onslaught of unwarranted discipline and retaliation through the FDA. The extreme unjustifiable discipline continued for two years while we awaited the appeals decision. The pressure to settle was still upon us. My husband was even prevented from performing his normal duties of drug and pharmacy inspections at a vital time when companies needed critical oversight to protect the public. Instead FDA management wasted government resources and sent my husband to faraway sites for weeks, to scan, shred and file documents of no significance.

What is more alarming is that even after my husband left the FDA and was working for a different agency, the FDA continued to go after him by fabricating false AWOL charges and placing reprimands in my husband's file. My appeals case was not settled as yet, and the FDA's attack continued to place mounting economic pressure on us. These unwarranted disciplinary actions still negatively impact my husband's career today.

 

Despite showing a gross and malicious disregard for free speech and worker safety, corporations like Pfizer have an overbearing scope of influence in our society. And because of this fact, it is likely to be a fierce fight ahead to build the worker and public health and safety protections that are critically needed within the biotech industry.

Yet, the most important thing that I learned in my ten years of battle against Pfizer is to be courageous and never give up, no matter the consequences. Let us, therefore, help one another to garner more courage, support and insight in protecting worker safety, whistleblower rights, and threats to free speech. Let us continue the fight against these huge webs of conflicts of interest that operate against the public's trust, making them accountable. As biological technologies advance at a rapid pace, we need to work together to take a stand. We need to do what is right to protect workers' rights and public health and safety.

Pfizer has infiltrated many government agencies and other power structures to stop any and all whistleblowers. The only hope we have is to get our government to grant us the power to fight back. This battle needs more public support and I hope my story can arouse people to join us in this struggle.    

 

Becky McClain, PhD, was a molecular biologist for 23 years, including her time at the Pfizer laboratory in Groton, Connecticut. She is currently a member of the Board of Directors for the Alliance for Humane Biotechnology.


 
 
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