In an opinion handed down today in United States ex rel. Haight v. Catholic Healthcare West, No. 03-16937 (9th Cir. Apr. 19, 2006), the Ninth Circuit permitted an animal rights activist’s qui tam suit to go forward under the False Claims Act against a cancer researcher, principally on the theory that the researcher misrepresented the efficacy of his research.
Now, I’m not an expert on the False Claims Act’s source-of-information provisions or their interaction with the Freedom of Information Act – the legal issue presented to the Ninth Circuit – and I don’t know whether this particular research project was or wasn’t a meritorious use of public health funds. So, I’m not going to pass judgment on today’s decison itself. But I do know that allowing animal rights zealots an opening to use private litigation to harrass medical researchers is a horrifying development. You will note, if you review the allegations on pages 6-7 of the slip opinion, that there are no allegations of the kind of things the False Claims Act is intended to protect against, i.e., personal enrichment, bill padding, and/or cost overruns by government contractors. Instead, there are a series of charges mainly relating to the medical merits of the research – a subject that will often be difficult for a judge without medical expertise to resolve on a motion to dismiss (where you assume the truth of the plaintiff’s allegations) or even on summary judgment (where the defendant only wins if it can show that there are no material factual disputes). Result: protracted and expensive litigation whenever anti-animal-research fanatics can gin up a factual dispute and hire an expert to bicker over anything said in a research application, with the attendant chilling effect on life-saving research. Indeed, from the docket numbers on the caption it appears that this particular case has already dragged on for five years just on the dispute over the legal merits.
The government officials charged with approving medical research can and should be the sole judges of the scientific merits of such research. Allowing opponents of such research to attack projects that have already been approved through the vehicle of the False Claims Act is a threat to public health.
2 thoughts on “Target: Medical Research”
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A good opinion could come down, eventually, making pecisely the Crank’s points. If that happens, the entire exercise was useful. Whether such an opinion can, or will, come from the 9th is another question altogether. Letting the case go forward is not necessarily an awful thing, though.
Animal Rights activists (a great name for people who love to either burn down property or make people feel ashamed for being people) basically don’t need a cure for whatever disease they will protest.
While I can agree with their philosophy on testing eye makeup on dogs being wrong (that is not research, but torture for beauty, which to me is stupid), I have no issue with scientists testing chimps for AIDS vaccines. Remember that years ago, NASA dissected rats in orbit, to see if Zero G had any effect on their internal organs. They got protests on how we were dissing rats. I think that when you are disagreeing with a group that is putting forth the rights of rats, you have to figure their elevators don’t go quite to the top.