Whistleblower Law Blog

Feature Article Interviewing The Employment Law Group® Principal Attorney Dave Scher Receives Wide Coverage in Military Publications

January 30, 2012

On January 11, 2011 the Air Forces Times featured The Employment Law Group® law firm principal attorney Dave Scher in a story regarding recent whistle-blowing by U.S. Department of Veterans Affairs (VA) physicians.

The story has since been featured in other Gannet Government Media publications including the Army Times, Navy Times, Marine Corps Times, and Military Times.  In addition, the article was mentioned on the Government Accountability Project’s (GAP) Daily Whistleblower News blog.

The Air Force Times and the other Gannet publications are weekly newspapers that serve active, reserve, and retired members of the U.S. military and their families by providing news and analysis that is relevant to members of the military community.  The newspapers are among the most widely purchased publications on U.S. military bases and other military installations and, together, have an average weekly circulation of over 240,000.

The article highlighted a current case that arose following allegations that a whistleblower was fired from a VA facility in Northport, New York after complaining about unsafe patient practices and hazardous working conditions. The Employment Law Group® law firm attorney Dave Scher noted that the U.S. Office of Special Counsel substantiated the allegations and that “the special counsel herself went out of her way to praise [the whistleblower’s] courage in a press release.”

The article also profiled other cases in which The Employment Law Group® law firm has advocated for whistleblowers’ rights by assisting VA doctors who claim that “they were fired or harassed for speaking out about problems affecting patient care”.  In these cases, said Scher, the “former healthcare professionals attempted to point out the dangers patients were facing at VA medical facilities.”

“How such rampant disregard for regulations and respect for patients took place is a travesty.  The whistleblowers are stepping forward to protect these patients’ rights as well as their own.”

The original article, entitled “Whistle-blowers Sue VA, Claim Reprisal”, appeared in the January 16, 2012 print edition of the Air Force Times.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice  representing employees who have been victims of retaliation.

OSHA Orders AirTran Airways to Reinstate and Pay $1 Million in Damages to Whistleblower Pilot

January 25, 2012

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) last week ordered AirTran Airways, a subsidiary of Dallas- based Southwest Airlines Co., to reinstate a former pilot who was fired in 2007 after he filed numerous reports of mechanical malfunctions. OSHA found that AirTran violated the whistleblower provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21^st Century (AIR21), which prohibits retaliation against airline employees who blow the whistle on safety concerns.

On August 23, 2007, AirTran removed the pilot from flight status until the airline could hold an internal hearing regarding the sudden spike in the number of mechanical malfunction reports (PIREPS) that he filed. A week after the hearing, the airline fired the pilot for failing to provide a satisfactory explanation for the number of PIREPS he had filed.

In addition to reinstating the former pilot, AirTran must pay the pilot more than $1 million in back wages plus interest and compensatory damages.

Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, stated:

Retaliating against a pilot for reporting mechanical malfunctions is not consistent with a company that values the safety of its workers and customers… Whistleblower laws are designed to protect workers’ rights to speak out when they have safety concerns, and the Labor Department will vigilantly protect and defend those fundamental rights.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice  representing employees who have been victims of retaliation.

Johnson & Johnson Subsidiary to Pay $158 Million to Settle Allegations it Misrepresented Drug Safety and Paid Physicians Kickbacks to Prescribe Risperdal

January 22, 2012

On January 19, 2012 Janssen Pharmaceuticals Inc., a subsidiary of Johnson & Johnson, announced that it had agreed to pay $158 million to settle a Medicaid fraud lawsuit in Texas which alleged that the company improperly marketed its antipsychotic drug Risperdal causing the state to overpay for the drug.

The lawsuit alleges that the company committed fraud by making false or misleading statements about the cost, effectiveness, and safety of the drug and exerted improper influence over physicians and state officials to recommend the drug, including allegations of providing kickbacks. Additionally, the lawsuit claimed that the company told physicians that the drug was safe to prescribe to children even though the Food and Drug Administration (FDA) had not approved such use.

Janssen announced that it agreed to pay the $158 million settlement in order to resolve all claims against it in Texas. The company noted, however, that it does not admit any liability or wrongdoing by entering into the settlement agreement. The settlement will put an end to the trial that began on January 10, 2012.

Some analysts have contended that the $158 million settlement is a victory for Johnson & Johnson because the company has made billions from the sales of Risperdal and the settlement will allow the company to avoid repaying the $579 million that the Texas Medicaid program spent on the drug in addition to the $500 million in penalties initially sought by Texas Attorney General Greg Abbot.

The suit was originally filed in 2004 when whistleblower Allen Jones, a former employee of the Office of Inspector General of Pennsylvania, claimed that he had uncovered the drug manufacturer’s alleged violations while he investigated claims in Pennsylvania. Texas joined the lawsuit two years later in 2006.

Mr. Jones will receive a portion of the settlement amount for his role as a whistleblower. The details of the settlement, including the amount of the award to be received by the whistleblower, have not yet been released.

The Employment Law Group© law firm focuses in the areas of employment law and whistleblower protection law, has helped many clients file suit against employers that fraudulently billed the U.S. government, and has established favorable precedents under the retaliation provision of the False Claims Act.

U.S. Government Files Amicus Brief Urging First Circuit to Revive False Claims Act Lawsuit against Pfizer

January 22, 2012

Last week, the U.S. government filed an amicus brief urging the U.S. Court of Appeals for the First Circuit to reopen a False Claims Act (FCA) lawsuit against Pfizer Inc. that alleged the drug manufacturer paid kickbacks to physicians who prescribed its drug Genotropin.

The case, U.S. ex rel. Peter Rost v. Pfizer Inc., began in 2003 when relator Peter Rost, a former Pfizer vice president, alleged that the company and its affiliate Pharmacia Corp. engaged in practices involving kickbacks that led to pharmacies submitting false Medicaid claims for Pfizer’s drug Genotropin and that Pfizer induced pharmacies to prescribe the drug for off-label uses. The suit was unsealed in 2005 after the U.S. government opted not to intervene in the case.

In 2010, Judge Patti Saris of the U.S. District Court for the District of Massachusetts ruled that the alleged kickbacks did not constitute a cause of action under the FCA. The ruling, which was based on a theory of implied certification, held that the Medicaid claims that innocent third-party pharmacies submitted were not considered fraudulent within the meaning of the FCA even if Pfizer had violated the Anti-Kickback Statute. The judge also found the companies had not engaged in any illegal off-label marketing of Genotropin.

The government noted that it filed the amicus brief because of its interest in ensuring that the FCA would be used in qui tam lawsuits involving kickback claims. According to the brief:

“an entity that knowingly causes the submission of kickback-tainted claims to Medicare or Medicaid cannot avoid liability under the FCA simply because such claims are submitted by ‘innocent’ third parties…who have no knowledge of the underlying kickbacks.”

In urging the First Circuit to revive the case, the amicus brief also indicates that the First Circuit recently reopened similar qui tam cases against Amgen Inc. and Blackstone Medical Inc. that alleged kickbacks.

Mr. Rost’s attorney recently told reporters that he thinks that the government believes that it is “important to try to prevent the pharmaceutical industry from using these kickbacks to try to taint the judgment of doctors.”

The Employment Law Group© law firm focuses in the areas of employment law and whistleblower protection law, has helped many clients file suit against employers that fraudulently billed the U.S. government, and has established favorable precedents under the retaliation provision of the False Claims Act.

Ohio Police Sergeant Files Whistleblower Suit Claiming Retaliation after He Disclosed Police Chief’s Misconduct

January 20, 2012

Elmwood Place, Ohio Police Sergeant Gary Darty filed a lawsuit two weeks ago in the U.S. District Court for the Southern District of Ohio against Chief William Peskin, who Darty claims retaliated against him after he disclosed to local officials that Peskin had engaged in police misconduct.

Darty wrote a letter to the Elmwood Place Village Council and mayor in July 2011 citing instances in which the Chief of Police committed “unlawful and immoral acts” in the workplace. According to Darty, Peskin destroyed evidence, allowed uncertified officers to use radar guns and chemical spray, poked a handcuffed man until the man’s nose bled, and mistreated officers by firing plastic bullets at them.

Darty claims that Peskin became aware of the allegations in September and suspended Darty for three days for allegedly “lying about how a shift was covered.” According to Darty’s complaint, Peskin continued to retaliate by scheduling Darty to work unfavorable and additional shifts, including on Christmas and weekends. When Darty told Peskin that he could not work a third shift because of his childcare obligations, Peskin responded, “Maybe it’s time to a find a new job.”

The lawsuit also alleges that Elmwood Place Mayor Stephanie Morgan was negligent in investigating the incidents of police misconduct that Darty described in his July 2011 letter.  Under Ohio law, it is mandatory that government officials act upon claims of this nature.

The Employment Law Group® law firm represents employees nationally who have blown the whistle on hostile work conditions and have been the victims of retaliation.

OSHA Proposes $70,000 in Fines against Massachusetts Metals Recycling Company for Maintaining Hazardous Work Conditions

January 20, 2012

On January 11, 20101, The Occupational Safety and Health Administration (OSHA) cited Prolerized New England Co. LLC, a recycling company in Everett, Massachusetts, for ten serious workplace safety violations and proposed that the company pay $70,000 in fines. OSHA investigated Prolerized’s Schnitzer Northeast facility in Everett, Massachusetts after an incident in September 2011 in which two workers were seriously injured when a large rotating drum used to sort scrap material for recycling activated while the workers were performing maintenance on the drum.

OSHA’s inspection found that the company neglected to properly train employees on safety procedures and proper equipment use. In addition, the company allegedly exposed employees to the danger of falling into the rotating drum through an unguarded chute opening.

“The unexpected startup of machinery during maintenance can injure or kill workers in seconds,” said Jeffrey Erskine, OSHA’s area director for Essex and Middlesex counties. “Preventing this hazard requires a combination of effective hazard control procedures, training and diligence to ensure that the proper safeguards are in place, in use and understood by workers.”

The Employment Law Group® law firm represents employees nationally who have been exposed to hazardous work conditions.

GE Healthcare Pays U.S. Government $30 Million to Settle False Claims Act Suit

January 12, 2012

On December 29, 2011, the U.S. Department of Justice (DOJ) announced that GE Healthcare Inc. agreed to pay thirty million dollars to settle a False Claims Act lawsuit  in the U.S. District Court for the Eastern District of Michigan against Amersham Health Inc., a holding company of  GE Healthcare. The DOJ alleged that from 2000 to 2003, Amersham submitted false claims to Medicare for Myoview, a radiopharmaceutical that allows doctors to observe blood flow in images of patients’ hearts.

According to the DOJ, Amersham also unnecessarily  increased the amount of Myoview in a dose to increase the drug’s sales. GE Healthcare denies any wrongdoing, stating that it acquired Amersham in 2004, after the alleged False Claims Act violations took place.  “It’s important for drug manufacturers to provide accurate pricing information to Medicare so that taxpayers aren’t overcharged for medicines purchased with their dollars,” said Tony West, assistant attorney general for the Justice Department’s Civil Division, in a statement about the settlement.

James Wagel, a salesman for Cardiolite, a competitor to Myoview,  brought his concerns to the DOJ in 2006 and was awarded $5.1 million from the total settlement.  Wagel claimed that many of his clients purchased Myvoview over Cardiolite because they were able to get more use out of the product.  When doctors used Myoview in testing, however, results showed false problems with patients’ hearts and led to unnecessary and expensive testing.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice  representing employees who have been victims of retaliation.

U.S. Department of Justice Sues AseraCare Hospice for Fraudulently Billing Medicare

January 12, 2012

The U.S. Department of Justice last week announced that it filed a complaint in a whistleblower lawsuit against AseraCare Hospice, a for-profit organization with 65 hospice providers in 19 states. The complaint alleges that AseraCare violated the False Claims Act when it knowingly enrolled in hospice care individuals who were not terminally ill with a prognosis of six months or less left to live.  AseraCare fraudulently collected millions of dollars in Medicare payments by enrolling patients who were ineligible for hospice care.

If the Justice Department succeeds in proving that AseraCare knowingly submitted false claims, the federal government could recover from AseraCare three times the amount of the false claims submitted, and $5,500 to $11,000 in penalties for each claim. This lawsuit joins another whistleblower lawsuit originally filed in 2009 in the U.S. District Court for the Northern District of Alabama by former employees, Dawn Richardson and Marsha Brown.   If the Justice Department prevails, Richardson and Brown would be entitled to receive a portion of the money recovered.

OSHA Fines Labolt Farmers Grain Company for Exposing Workers to Hazardous Conditions

January 11, 2012

The Occupational Safety and Health Administration (OSHA) recently issued 13 citations to LaBolt Farmers Grain Company, Inc. for exposing workers to unsafe conditions.  OSHA fined Labolt $95,920 for the cited violations.  LaBolt, based in South Dakota, allegedly failed to neutralize an auger, which severely injured a worker’s leg during a moving bin sweep. As a result of this incident, OSHA investigated and cited Labolt.  OSHA issued four citations for “willful” violations; six for “repeat” violations; and three for “serious” violations.  OSHA issued the “willful” citations because LaBolt allegedly failed to complete confined space and grain bin entry permits; failed to design and execute a confined space program; and failed to provide a competent individual to observe work and ensure that dangerous equipment was neutralized. The citations for repeat violations alleged lack of control over grain dust accumulations; lack of effective guard floor openings, pulleys and vertical belts; lack of a written housekeeping program; and failure to use only approved electrical equipment. Finally, OSHA cited Labolt for “serious” violations because LaBolt allegedly did not perform atmospheric tests and did not provide effective training for employees working in confined spaces and grain bins.

“Despite awareness of the hazardous nature of grain bin entries and of the means and methods to prevent such hazards, the employer failed to develop and enforce recognized safe work practices,” said Tom Deutscher, OSHA’s area director in Bismarck.

DOL Judge Rules in Favor of Aircraft Maintenance Whistleblower

January 10, 2012

In Harding v. So. Cal Precision Aircraft, U.S. Department of Labor Administrative Law Judge (ALJ) Russell D. Pulver held that 31-year military veteran Michael Harding had engaged in protected whistleblower activity when he reported his employer’s unsafe working conditions to the Federal Aviation Administration (FAA).  ALJ Pulver further held that Harding’s employer violated Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), when it terminated Harding for engaging in protected whistleblowing activity.

In December 2006, Harding began work as an inspector at So. Cal. Precision Aircraft, Inc. (later purchased by Norton Aircraft Maintenance Services, Inc.).   He was quickly promoted to lead inspector and later to senior auditor inspector.  Harding made daily complaints to management regarding significant safety issues at work, such as:

[His manager] entered the office upset and cursing, telling [Harding] that he had six attorneys who were going to “kick [his] ass.”  When [Harding] attempted to leave, [his manager] spit in his face and blocked his way.  [Harding] called for security but when the officer arrived [his manager] told the officer that [Harding] had attacked him and was to leave immediately.

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