Hounded, Cowed, & Badgered

Suit on failed beagle research lives!

The Ninth Circuit has allowed a suit by animal advocates against a researcher alleging fraud against the U.S. government to go forward. The case is United States v. Catholic Healthcare West, No. 03-16937 (9th Cir. Apr. 19, 2006)(pdf). Defendant Dr. Michael Berens injected cancerous cells in fetal puppies over ten years, in the hopes of the animals developing cancer, in the hopes that such cells could be transplanted into the puppy's brain, in the hopes that such research could extrapolate to brain cancer in humans. Only three dogs developed cancer, but Berens claimed higher rates of success in a grant application to the NIH.

The opinion resolves a somewhat technical question as to how much work a plaintiff needs to do to proceed under the federal qui tam statute, which encourages people to uncover fraud against the government by giving people a "bounty." See Getnick & Getnick's Qui Tam Basics. The opinion lays out the extensive research and investigation done by In Defense of Animals and regional director Dr. Patricia Haight, which forms the basis for the complaint:

In addition to filing a FOIA request, Haight requested documents, including animal care records and minutes from IACUC [university oversight committee] meetings, from Arizona State University; she toured the two facilities where dogs associated with Berens’ research were housed; she contacted and interviewed at least nine people who had knowledge about the Berens’ project; she also corresponded with a scientist overseas who was listed as a consultant to Berens’ research. Moreover, she combed the documents that she received through her FOIA inquiry and from ASU in an attempt to learn about Berens’ research. Ultimately, she uncovered what Relators allege to be serious misrepresentations about the project that resulted in an award of over $700,000 in federal funds. Relators did not behave opportunistically. To the contrary, Haight performed precisely the sort of investigative work that the qui tam provisions of the FCA encourage in order to promote detection of fraud against the government.

(At 4399.) Although we are new to both the law of animal research and whistleblower statutes, and thus feel uniquely unqualified to comment on the court's analysis, the opinion has got us thinking about using qui tam as a legal strategy against animal users. One big advantage of such an approach would be obtaining standing to sue, something particularly difficult to do when animals are being used behind closed doors. The Supreme Court has held that citizens have a sufficient stake in qui tam actions to meet Article III of the Constitution, because they act as assignees of the United States. Vt. Agency of Natural Res. v. United States ex. rel. Stevens, 529 US 765 (2000). There is also the possibility, though remote given the political climate, that the government will intervene, shouldering the cost of the litigation. There are also limitations inherent in the qui tam approach, specifically that it only applies to fraud against the government, not any statutory violation. Still, the approach could provide a fertile way of limiting abusive animal researchers.

[There are some observations on qui tam actions and animal law, similar to the ones above, in the 2002 Legislative Review (pdf) in the Animal Law journal. (pg. 354.)]

AWA debate in the Scientist

The Scientist has responses to a recent piece by University of Wisconsin's Göran Hellekant, which criticizes the Animal Welfare Act and its implementation in the research context, the Institutional Animal Care and Use Committee (IACUC). These committees review proposals for compliance with the AWA and have a reputation within the animal rights community as being rubber stamps. Au contraire, says Hellekant: the AWA imposes onerous requirements on researchers, thus discouraging research, while IACUCs are too obsessed with procedure to allow scientists to do their jobs. Hellekant proposes to "level the field" with animals in factory farms, by which he presumably means "level down."

The arguments in Hellekant's piece and the reader responses in the most recent Scientist are (duh) scientific: "leveling down" won't work because of the risk of disease spreading if lab animals were housed like factory farm animals are, aseptic surgery is neccessary for rats because unclean surgery risks the introduction of an "uncontrolled variable," etc. The greater moral questions regarding the use of animals are understandably absent, although there is one observation that an experiment would be animal cruelty if it didn't take place in a lab.

It is difficult for a proponent of animal rights to agree with the defense of the status quo in the reader responses. For instance, Hellekant is taken to task for his criticism of IACUCs inclusion of non-researchers, namely veterarians and community members. (His claim that there is the "potential" that reseachers could be outnumbered by those without white jackets seems to be an untested hypothesis.) One PhD writes "If researchers cannot suitably justify their work to a committee whose interests are, in general, aligned with their own, how could they ever convince the general public?" A valid point, but one that goes only so far. Is one spot on a committee which meets in secret and has no veto power over the ultimate goals of experiments (see here) a sufficient check on the use of animals in science? Admittedly, public universities and recipients of federal funds are answerable generally to the political process, but with few exceptions, that process has not helped animals in the past, and is not designed to do so.

PCRM denied access to spinal cord injury records

Yesterday, the Ohio Supreme Court refused to require Ohio State University to turn over records regarding spinal cord experiments to PCRM, which had requested them. The cite is State ex rel. Physicians Comm. for Responsible Med. v. Ohio State Univ. Bd. of Trs., 108 Ohio St.3d 288, 2006-Ohio-903 (pdf). Scroll down past the organization's failure to adhere to state practice rules and you'll find that the crucial issue is whether the records were "publicly released, published, or patented." OSU admitted that it had shared the records with other scientists, but that it had been used by few people (sixteen in a regularly held training session) and all had signed nondisclosure agreements. As a result, the court concluded, it was not "publicly released."

One of the cases the court cites is State ex rel. Rea v. Ohio Dep't of Educ., 81 Ohio St.3d 527, 1998-Ohio-334 (pdf), where a student sought portions of a standardized test she had taken. In that case, the court struck a more strident tone regarding public access. Replace the language regarding human testing with language regarding animal testing and you get a real nice argument for PCRM:

The instruments that evaluate students and determine their capabilities should not be enshrouded in a cloak of secrecy, isolated from the scrutiny and oversight of the general public . . . ODE and OSU argue that access has always been granted, albeit subject to a nondisclosure form. However, beyond a few narrowly limited exceptions, the Public Records Act is unconditional. Once records are deemed public, and not subject to an applicable exception, a public office cannot subvert or avoid its duty to disclose such records through restrictive agreements. Although . . . the public could view the previously administered tests, the nondisclosure agreement effectively negated any chance that legitimate concerns could be raised through public exposure and debate.

Id. at 9-10. Indeed. For more on the course, see PCRM's Campaign to end "Cruelty 101".

Ibrahim article on animal experimentation

Darian M. Ibrahim has recently posted a draft of a strong article on how the "Three Rs" of animal experimentation--reduce the number of animals used, refine experiments to reduce pain, and replace animal experiments with alternatives not involving animals--have failed animals. Ibrahim traces the Three Rs from scientific treatise through their adoption in federal law and funding guidelines and concludes that they have failed to stop "unnecessary suffering."

The "unnecessary" in that last sentence deserves a set of scare quotes, because humans are willing to believe that a whole lot of exploitation of animals is "necessary." Ibrahim argues that the Three Rs fail even on their own terms, both theoretically and practically. One of the strongest points is that the Three Rs do not accommodate straight-up challenges to the purpose of animal experiments. From a legal perspective, Ibrahim notes this deference to animal users happens because of feckless "oversight" committees in medicine and regulatory abdication on consumer product testing.

The article strikes a interesting balance between ideals of abolition and specific policy suggestions which, were there the political will, could limit the number of painful animal experiments. Besides greater scrutiny of the purposes for animal experiments, Ibrahim also points out a loophole in the AWA provisions regarding pain which is frequently used by researchers. Given the money involved and the culture of scientists, however, reform along those lines seems unlikely. (Presumably, even under a system which weighed an animal's interests, painless experiments would be given carte blanche, even though animals used in the experiments would often (always?) be killed afterwards.)

Professor Ibrahim welcomes comments on the draft. His e-mail is Darian dot Ibrahim at law dot arizona dot edu. The article will appear in the 2006 University of Chicago Legal Forum, which will feature articles on "Life and Law: Definitions and Decisionmaking."