Allen Jones, the whistleblower in an ongoing landmark trial against the pharmaceutical giant Johnson & Johnson, was very much on my mind this past weekend. I was participating in a workshop to develop curriculum to teach college students about the importance of standing up for their ethical values and if necessary, blowing the whistle on wrongdoing in their place of employment. The workshop in Washington, D.C. was sponsored by the Government Accountability Project (GAP), a nonprofit organization that represents whistle-blowers of all stripes from Daniel Ellsberg, who leaked the Pentagon Papers, to Allen Jones, who blew the whistle on the illegal payments Johnson & Johnson was making to state employees to promote the off-label use of its anti-psychotic drug, Risperdal, in children.
Jones first noticed these illegal payments when he was investigator for the state of Pennsylvania’s Office of Inspector General. He discovered that the state’s top pharmacist, the guy in charge of deciding what drugs should be included in its Medicaid formulary, was receiving hidden payments from J&J, the maker of Risperdal. Jones was fired when he brought those illegal payments to light, but he persevered, and with the help of GAP, won a lawsuit against the state of Pennsylvania and eventually saw the state pharmacist who was on the take fired from his job.
As 1boringoldman and others have detailed, Jones went on to sue J&J in the state of Texas, where public officials were also being paid to fly all over the country and promote the off-label use of Risperdal in children — see my blog on that case here. J&J has settled a number of other state lawsuits for the illegal and deceptive marketing of Risperdal — as I’ve blogged about here, a South Carolina judge fined the company $327 million last year, calling J&J’s actions “detestable” — but this is the first time the company has gone on trial for its illegal actions in hiding the serious side effects of Risperdal in children — weight gain, diabetes, even causing breast lactation in teenage boys — and illegally marketing the drug off-label.
And it’s all because of Allen Jones. As I sat around the conference table this weekend and heard one horror story after another about folks who spoke truth to power and ended up losing their jobs and being permanently blacklisted from employment in their chosen field, it made me wonder why it’s so difficult to be a whistle-blower in our society. (In the case of former Department of Justice lawyer Jesselyn Radack, whose book A Canary in the Coal Mine I just finished reading, the Bush administration was so bent on retaliating against her for blowing the whistle on the administration’s failure to give an American citizen arrested in Afghanistan his due rights to legal counsel that they not only prevented her from getting another legal job in the private sector but they also put her name on the No Fly list, making her subject to humiliating body searches every time she tried to board a plane). Yet like Radack, most whistle-blowers are people who are simply trying to do the right thing and stand up to injustice, corruption or abuses in the corporate or public sector.
So why it is so difficult to raise ethical concerns today? It’s true that derogatory words like snitch, rat and tattle-tale have always been a part of our culture, and there’s no question that corporations put a premium on loyalty and conformity. But despite Congressional efforts to protect whistle-blowers (with the Whistleblower Protection Act), it seems to be more difficult than ever to speak up. Even though more workers are witnessing violations of company rules, retaliation against employees has risen to a new high, the 2011 National Business Ethics Survey found. More than a fifth of employees who reported a violation at work said they experienced some kind of retaliation, according to the Huffington Post. Most of those employees, of course, never went any further and leaked the information to the media, as Radack and Ellsberg did, subjecting both of them to enormous retaliatory pressures, such as concocted criminal charges.
Even the mainstream media seems to have tacitly accepted the idea that whistle-blowers are villains, belonging in the same category as evil plaintiff’s lawyers. Exhibit A: in yesterday’s page-one New York Times story about the Obama administration’s plans to require drug makers to disclose fees to doctors under the landmark Physician Payment Sunshine Act, which I’ve blogged about here, the reporter quotes an official with the medical technology association, a trade group for medical device companies, as saying that the required payment data “could be used by federal law enforcement agencies, plaintiffs’ lawyers and whistleblowers.”