FDA Whistleblowers Sue Agency, Claim Retaliation Over Unsafe Medical Device Revelations

//FDA Whistleblowers Sue Agency, Claim Retaliation Over Unsafe Medical Device Revelations

FDA Whistleblowers Sue Agency, Claim Retaliation Over Unsafe Medical Device Revelations

January 30, 2012 ~ What’s going on inside the FDA?

Six of the “FDA Nine” whistleblowers are suing the agency for illegally spying on their private email claiming they were retaliated against after they warned lawmakers that unsafe medical devices were being approved for market.  You may recall as President Obama was taking office on January 7, 2009, nine scientists alerted him to the internal problems, accusing the agency of acting illegally by approving flawed and defective medical devices for sale even when others within the FDA objected because of safety issues. One medical device  cited as problematic was the computer-aided breast mammograms, “the FDA approved the devices anyway in a flawed process that ignored the science. This had led to significant harm to large numbers of women and significant unnecessary costs to the public.”

After that the staffers said the FDA spied on their private emails, harassed them and in some cases fired the whistleblowers. Internally the group was known as the “FDA Nine”.

The federal lawsuit filed in the District of Columbia charges the agency with 12 counts and names FDA chief Margaret Hamburg, M.D., Jeffrey Shuren, M.D., William Maisel, M.D., and HHS chief Kathleen Sebelius accusing them of retaliation, among other things:

Defendants have taken and converted private emails without due process or just compensation in violation of the 5th Amendment of the United States Constitution. Defendants have initiated searches and seizures in violation of the 1st and 4th Amendments. Defendants have conducted searches and seizures of a scope that violates the 1st and 4th Amendments. Defendants have violated the 1st Amendment by chilling free speech with searches and seizures. Defendants have violated the 1st Amendment by chilling Plaintiffs’ and the public’s right to associate with whistleblowers. Defendants have violated plaintiffs’ right to representation. Defendants have chilled plaintiffs’ protected 1st Amendment right to free speech.”

Mass Device reports there is a question whether or not the government can surveil any private email activity if it is carried out on government-issued computers.

The complaint says that the plaintiffs, “had a reasonable expectation of privacy in their private, password protected, non-Governmental, encrypted email communications when these communications were sent from or received on computers or networks that the FDA had explicitly stated could be utilized for personal communications.”

The complaint points out that private email accounts were also used for personal banking, attorney-client privileged communications and other sensitive personal issues.

Computer screen shot of FDA whistleblower email


Whistleblowers Warned the President

As President Obama took office, the whistleblowers said that several staff scientists and managers should be held accountable for wrongdoing for allowing unsafe devices on the market.

They also wrote to Rep. John Dingell in October 2008. MDND has a copy of that letter (here) which says:

There is extensive documentary evidence that managers at CDRH have corrupted and interfered with the scientific review of medical devices…… Managers at CDRH with no scientific or medical ex~_ devices, or any clinical experience in the practice of medicine.__, have ignored serious safety and effectiveness concerns of FDA experts and have ignored scientific regulatory requirements. To avoid accountability, these managers at CDRH have ordered, intimidated and coerced FDA experts to modify their scientific reviews, conclusions and recommendations in violation of the law. Furthermore, these managers have also ordered, intimidated and coerced FDA experts to make safety and effectiveness determinations that are not in accordance with scientific regulatory requirements, to use unsound evaluation methods, and accept clinical and technical data that is not scientifically valid nor obtained in accordance with legal requirements, such as obtaining proper informed consent from human subjects.”

And more

At the same time, there is a need for new legislation that modernizes the regulatory structure of the 510(k) program so that complex medical devices are not allowed onto the market without a comprehensive (or in some cases, any) clinical evaluation of their safety and effectiveness. This is especially true for _ devices due to their markedly increased use in clinical practice and because” devices employ highly complex hardware and software, undergo rapid technological changes and touch the lives of so many patients on a daily basis. The current framework for medical device adverse event reporting does not work for many _ devices as the adverse effects of devices are rarely detected immediately, are not transparent on an individual patient basis, and can only be prevented by a rigorous pre-market evaluation process.

Staffers of Sen. Charles Grassley (R-Iowa) reportedly warned the FDA against retaliating, but the Washington Post reports the FDA asked the HHS to investigate the whistleblowers for the disclosure of confidential manufacturer information. The Inspector General’s office failed to get involved.

Kohn, Kohn and Colapinto represent the whistleblowers on behalf of the National Whistleblowers Center, (here) which has the complete set of documents including the complaint (here) filed by the law firm:

Here is Washington Post on their set of documents including the original letter to President Obama.


By | 2012-01-30T23:38:33+00:00 January 30th, 2012|Featured|5 Comments

About the Author:

I’m National News Editor, Jane Akre and I began Mesh Medical Device News Desk aka Mesh News Desk (MND) in the summer of 2011 just after the Food and Drug Administration issued an explicit warning to the public that complications associated with surgical mesh used for prolapse repair (POP) and incontinence (SUI) are NOT rare! That was the starting point for the litigation you see today and thousands of lawsuits have been filed by women whose lives have been altered, some permanently, by the use of this petroleum-based product.


  1. Amy G January 31, 2012 at 7:06 pm - Reply

    What is going on inside the FDA is exactly what we feared, possibly even worse.

  2. Handyman January 31, 2012 at 10:34 pm - Reply


    a) There is clearly things that doesn’t make sense. Such as why is Mesh still being inserted near women’s organs when its known to find its way out the vagina?

    b) Why is there nothing found on the reply and or response from President Obama acknowledging the letter from the “FDA NINE” as they are now labeled?

    c) Why is there not an emergency hold put on the mesh until they get the facts? 300,000 last year alone not to mention the unknown totals from the last 10 years?

    d) I still hear stories from women whose doctors are telling them it couldn’t be the mesh has no one notified EVERY single doctor who has is or might perform this “Simple Minimally Invasive Procedure”?

    e)Where do all of these thousands of women turn for help after they have lost their jobs, insurance, homes, spouses?

    f) Is there a set number of humans that have to die before a product is deemed unsafe and recalled?

    g) When does affiliations between the FDA and device makers cross the line of conflict of interest?

    h) Is any outside Government Agency looking into any of the allegations?

  3. Tita February 21, 2012 at 1:24 pm - Reply

    Why u keep saying “whistleblowers”? it is so important the wording here. They are scientists concerned with the health and safety of women. why don’t u say unethical, immoral fda??

    • Jane Akre February 22, 2012 at 12:09 pm - Reply

      Hi Tita-

      No offense intended by using the word ‘whistleblower’, I know, I was one at one time. You are right, they are scientists concerned with the health and safety of the public- I hope it is clear that they felt a moral imperative to put their careers at risk by telling the truth. Why else would someone speak out? Stay well- J. Akre

    • Amy G February 23, 2012 at 1:56 pm - Reply

      “Whistleblower” is not derogatory unless you are viewing it through the corporate lens.

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