Dec 172012
 

Note: Microbiologist Becky McClain, infected by a genetically engineered virus in a Pfizer lab, became the first whistleblower in the nation to try to shed light on the threats of biotechnology to workers and the public. Now, the U.S. Second Circuit Court of Appeals in New York, has validated her claims that Pfizer “acted willfully, maliciously, or with reckless indifference” concerning allegations that her free-speech rights had been violated and she had faced retaliation for raising safety concerns.

By Lee Howard, Cross-posted from The Day

Pfizer Inc. whistleblower Becky McClain’s legal battle to draw public attention to worker-safety issues came to an end Friday as an appeals court refused to overturn a $2.3 million verdict in favor of the former Groton-based scientist.

Pfizer said it is “evaluating its options” on whether to appeal the verdict to the U.S. Supreme Court. But McClain’s attorneys said no constitutional claim was associated with the case.

“Justice prevailed,” said attorney Bruce E. Newman, who represented McClain along with attorney Stephen J. Fitzgerald.

“We disagree with the court’s conclusion but respect its decision,” Pfizer said in a statement.

McClain, according to a three-judge panel of the U.S. Second Circuit Court of Appeals in New York, proved her claims that Pfizer “acted willfully, maliciously, or with reckless indifference” concerning allegations that her free-speech rights had been violated and she had faced retaliation for raising safety concerns.

One of McClain’s main concerns — that Pfizer had exposed her to an unsafe laboratory in Groton, leading to an illness from a novel virus that left her dangerously ill — never got a hearing in the courts. And McClain said she is unsure whether her message about needing to shore up regulations regarding the nation’s largely unregulated biotech labs is getting through, but she is glad to have the financial security to pursue better medical care.

“We’re happy,” McClain said in a phone interview. “But whistleblowers need swifter, quicker protections. Ten years is a long time to make it through something like this.”

McClain became ill in 2004, was fired by Pfizer in 2005 and filed her lawsuit the following year. In March 2010, an eight-person jury at U.S. District Court in Hartford decided that Pfizer should pay McClain $1.37 million, an amount that was increased by Judge Warren W. Eginton when he added in attorneys’ fees and punitive damages.

The New York-based court panel, which included retired U.S. Supreme Court Justice Sandra Day O’Connor, heard Pfizer’s appeal in October. McClain’s attorneys plan to file an additional claim against Pfizer to cover interest charges on the initial court award.

Pfizer claimed that the former Deep River resident, now living in Albuquerque, N.M., was fired after abandoning her job.

“Pfizer holds the health and safety of its colleagues and contractors among its highest priorities thereby reaffirming the earlier federal court decision that Ms. McClain’s allegations of work safety issues were completely without merit,” Pfizer said in its statement.

Pfizer referred to a judge’s decision to disallow a legal claim related to McClain’s concerns about being exposed to a dangerous virus. The judge who made the decision later disqualified herself from pursuing the case because of a conflict of interest.

McClain, a longtime molecular biologist at Pfizer’s Groton laboratories, claimed that Pfizer refused to hand over records showing the type of virus to which she was exposed. Pfizer said McClain was never exposed to a hazard, and therefore there were no records to hand over.

McClain filed a complaint with the U.S. Occupational Safety and Health Administration, which investigated the claim but could not substantiate the safety problems. McClain said OSHA didn’t have the staff expertise to determine hazards on a molecular level. McClain was subsequently fired after taking a leave from work to fight her illness, which caused periodic paralysis, she said.

McClain said she still doesn’t understand why Pfizer didn’t address her safety concerns instead of trying to sweep them under the rug. She said her actions could have saved Pfizer money in the long run, in addition to protecting the public health and safety.

“Why would you retaliate against someone like that?” she said.

McClain, who has become a spokesman for worker safety groups nationwide, said she feels businesses such as Pfizer are becoming too influential in the academic community. The result, she said, is that academics are feeling constrained in speaking out about matters that might put lucrative partnerships with industry at risk.

Newman, McClain’s attorney, added that the case highlighted the work that still needs to be done nationwide to ensure that workers and the public are protected from biological hazards at laboratories.

“That is still an area that needs to be addressed by OSHA,” he said.

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  2 Responses to “Appeals court backs scientist in Pfizer retaliation case”

  1. Too many biotech employees illnesses and injuries are ignored in the biotech industry arena, not only in the medical sector but the agriculture sector as well. The reason?  IF the injuries and illnesses, arising out of workplace exposure’s to known and unknown viruses, bacteria and fungi were reported (as is mandated by law) there would be federal and state investigations into the lack of health and safety in the workplace, which in turn would hinder biotech companies from getting their “products” registered with the FDA and the EPA.  It’s sad to say, but getting “products” on the market far outweigh the health and safety of the employee/s.  

    As for OSHA? OSHA is not up to speed when it comes to new technologies such as biotechnology, nanotechnology etc. I have discovered that more times than not that when OSHA is contacted regarding a health and safety complaint; OSHA either ignores the complaint, puts it on the back burner or they contact the company by phone or in a letter; thus allowing the unsafe employer to 1) hide and/or cover-up the health and safety violation; 2) reply to OSHA that the complaint was filed by a “disgruntled employee or ex-employee”. What ever happened to on-the-spot surprise inspections when OSHA has received a health and safety violation complaint? These seem to be non-existent.

    As for OSHA’s “inspectors” not being medical doctors? I can only speak for OSHA in California.  Dr Larry Rose who was with Cal/OSHA for 28 years and the “last” Cal/OSHA Public Health Medical Officer in the state of California was asked the question in a 2008 interview, “Now why would you need a Doctor at Cal/OSHA?”. Dr. Rose’s reply was, “Well it’s critical… the Compliance Officers, or Industrial Hygienists, and they’re not trained at all in medicine. They don’t know how to read a medical record, they know nothing about infectious diseases.

    The biotech industry needs to be held accountable for the harm they have been and still are causing. Their “trade secrets”, “proprietary information agreements” as well as the contract/s “won’t say anything bad about the company” that the biotech employee has to sign should be unlawful.

    Every employee who works in ANY industry in the United States should have the guarantee they have a safe and healthy workplace environment. They should also have the right to know what made them ill or injured them with no exceptions. American workers should not be “thrown under the bus” because of concealment, fraud, corruption and/or collusion.

    I hope Mrs. Mc Clain’s case against Pfizer will bring attention to the biotech employee’s plight.

  2. I applaud Mrs. Mc Clain for her tenacity in not buckling under the pressure from the biotech giant Pfizer.

    Too many biotech employees illnesses and injuries are ignored in the biotech industry arena, not only in the medical sector but the agriculture sector as well. The reason? IF the injuries and illnesses, arising out of workplace exposure’s to known and unknown viruses, bacteria and fungi were reported (as is mandated by law) there would be federal and state investigations into the lack of health and safety in the workplace, which in turn would hinder biotech companies from getting their “products” registered with the FDA and the EPA. It’s sad to say, but getting “products” on the market far outweigh the health and safety of the employee/s.

    As for OSHA? OSHA is not up to speed when it comes to new technologies such as biotechnology, nanotechnology etc. I have discovered that more times than not that when OSHA is contacted regarding a health and safety complaint; OSHA either ignores the complaint, puts it on the back burner or they contact the company by phone or in a letter; thus allowing the unsafe employer to 1) hide and/or cover-up the health and safety violation; 2) reply to OSHA that the complaint was filed by a “disgruntled employee or ex-employee”. What ever happened to on-the-spot surprise inspections when OSHA has received a health and safety violation complaint? These seem to be non-existent.

    As for OSHA’s “inspectors” not being medical doctors? I can only speak for OSHA in California. Dr Larry Rose who was with Cal/OSHA for 28 years and the “last” Cal/OSHA Public Health Medical Officer in the state of California was asked the question in a 2008 interview, “Now why would you need a Doctor at Cal/OSHA?”. Dr. Rose’s reply was, “Well it’s critical… the Compliance Officers, or Industrial Hygienists, and they’re not trained at all in medicine. They don’t know how to read a medical record, they know nothing about infectious diseases.

    The biotech industry needs to be held accountable for the harm they have been and still are causing. Their “trade secrets”, “proprietary information agreements” as well as the contract/s “won’t say anything bad about the company” that the biotech employee has to sign should be unlawful.

    Every employee who works in ANY industry in the United States should have the guarantee they have a safe and healthy workplace environment. They should also have the right to know what made them ill or injured them with no exceptions. American workers should not be “thrown under the bus” because of concealment, fraud, corruption and/or collusion.

    I hope Mrs. Mc Clain’s case against Pfizer will bring attention to the biotech employee’s plight.

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