DOE-Funded Counsel Prior Firm Misconduct: Concealing Safety Evidence – Condemned by Courts
Then: WA Supreme Court unanimously imposed record sanctions for discovery abuse [hiding drug toxicity documents].
Now: Miller & Battelle Falsifying Research & Commercial ventures to conceal smoking-gun evidence via perjury.
Willfully funding this misconduct for 8 years, Dept. of Energy fleecing taxpayers $1M to cover up Battelle fraud.
DOE-funded Attorney Delbert Miller was the partner managing the litigation practice at now defunct Bogle & Gates law firm which engaged in fraud [discovery abuse] to conceal smoking-gun evidence [drug toxicity warnings, crash injury data…]. Tactics used by the firm’s attorneys to wrongfully withhold evidence are cited below because they are now being repeated via Battelle and Miller’s material misrepresentations [perjury] to the court [i.e., DHS Radiation Portal Monitor Project (RPMP) research & Battelle commercial ventures] being used to conceal smoking-gun evidence [e.g., RPMP-funded versions of MDM (Mobile Data Manager) software] which would further implicate Battelle in: (1) Misusing/defrauding/skimming DOE’s small business Technical Assistance Program [TAP] [withholding the DOE-funded software [MDM] from the government’s intended TAP recipient (Pulver’s small business), thereby violating the False Claims Act], (2) Falsifying inventions [18 USC §1001] to the patent office, and (3) Defrauding those businesses licensing follow-on versions [BlackBerry…] of MDM software funded by TAP and exclusively licensed to Pulver. Currently being used by Battelle and DOE at great taxpayer expense [~$1M], Bogle tactics to obstruct justice by concealing smoking-gun evidence were condemned by the WA Supreme Court and federal judge [both imposed sanctions for litigation fraud (discovery abuse)] and gained national notoriety.
Media and court sources excerpted below and Battelle/DOE documents/testimony confirm the following:
(1) DOE-funded counsel Miller and Battelle top-secret Q clearance holder scientist Dorow are now using the same type of abusive
litigation fraud, but at taxpayer expense, to conceal smoking-gun evidence [e.g., DHS versions of MDM software re: Battelle ventures].
(2) DOE is financing and suborning this litigation fraud/abuse/perjury and covering up Battelle’s defrauding both a small business and patent office [USPTO] in order to avoid any protests or almost-certain GAO investigation while DOE extends, rather than compete the operating contract for PNNL, the country’s longest un-competed national lab (48 years).
(3) DOE Offices of Science, Inspector General & General Counsel will fund/suborn such litigation misconduct when a whistleblower, small business, university, injured staff et al. sue Battelle [running 5+ national labs (PNNL, ORNL, INL, NREL & BNL) costing billions yearly.
Exhibits cite articles on attorney misconduct from two notorious discovery abuse cases, tactics that DOE Office of Science is funding to wrongfully conceal evidence of Battelle misusing/defrauding federally-funded small business assistance and the patent office [USPTO].
In the Fisons case, WA Supreme Court unanimously ruled to sanction Bogle & Gates a record $325K for discovery abuse because they withheld smoking-gun documents on a drug [theophylline] that permanently brain damaged a three-year old girl. In the Subaru injury case two years later, a federal judge sanctioned Bogle because they “obfuscated, stonewalled, and gave answers that were just plain wrong” to withhold National Highway Transportation Safety Administration data on rear-impact crash tests for driver injuries.
News articles and WA Supreme Court’s detailed Fisons decision are cited below; they clearly show Bogle’s discovery abuse tactics to conceal evidence [obstruct justice] and the legal community’s outrage over such on misconduct. As cited throughout the evidence site, Office of Science, by hiring Miller to invoke the Bogle tactics condemned by courts, has confirmed its practice of misappropriating taxpayer funds for such abusive/fraudulent litigation tactics against individuals or small businesses suing due to Battelle misconduct.
News Article Excerpts – Bogle & Gates [DOE-Funded Counsel Prior Firm] – Fisons & Subaru Injury Cases
Re: Attorney Misconduct [Concealing Evidence - Discovery Abuse] – Sanctioned/Fined by WA Supreme Court & Federal Court
Battelle & DOE-Funded Counsel Repeating Such Tactics re: DHS Radiation Portal Monitor Project & Commercial Ventures
No Contest: Corporate Lawyers and the Perversion of Justice in America. The Progressive by Morton Mintz
“No Contest's most devastating section focuses on the obstruction of justice by corporate executives and their attorneys who withhold, alter, or destroy documents. Consider Jennifer Pollock of Everett, Washington. In 1986, when Jennifer was two, she suffered seizures that caused irreversible brain damage after taking an asthma medication, Somophyllin Oral Liquid…In 1990, an anonymous source sent the Pollocks' lawyer a "Dear Doctor" letter from Fisons conveying a stark warning about the drug's key ingredient, theophylline: A study had confirmed report that children with asthma were vulnerable to "life-threatening theophylline toxicity -- the very same toxicity suffered by Jennifer. Fisons had prepared the letter in 1981 -- more than four years before Jennifer was stricken -- but sent it to only a limited group of "influential" physicians…(Fisons also omitted mention in product's package insert of the risk of disabling or fatal harm.)
The company failed to produce the letter even after the Pollocks and [Dr.] Klicpera filed a discovery motion in 1986, which sought "any letters sent by your company to physicians concerning theophylline toxicity in children."…Bogle & Gates admitted it had reviewed the smoking guns by 1987 and advised Fisons not to produce them”
Legal Conduct Decried Court Rules Law Firm, Client Failed To Supply Evidence
“In a landmark ruling on attorney ethics, the Washington State Supreme Court has denounced the conduct of a major
Seattle law firm [Bogle & Gates] and a New York drug company [Fisons] for failing to produce "smoking gun" documents in a lawsuit involving a 3-year-old girl left brain-damaged by a controversial asthma medication.”
Clout of State's Big Law Firms Wards Off Misconduct Cases.
“In one of the sharpest penalties ever levied against a law firm, the Washington State Supreme Court fined the Seattle firm Bogle & Gates and its client, the drug company Fisons, $325,000 in 1993. The Supreme Court found that Bogle & Gates and Fisons withheld documents that conclusively showed that Fisons knew one of its products was dangerous if used in conjunction with other drugs.
Two years later, Bogle & Gates was sanctioned by a federal court judge for a similar violation. Representing Subaru of America, Bogle & Gates was asked to provide warranty and personal-injury claims relating to the seatback design of the Subaru Justy. The company responded that it had no records that would answer those questions. Later depositions revealed that the information did, in fact, exist. Bogle & Gates had to pay the other side's legal fees and the case was later settled.”
Sleazy In Seattle, by Stuart Taylor, Jr. American Lawyer Newspapers Group, Inc
“The covered-up corporate document that the whistle-blower leaked in March 1990 led to an agreement this January by Seattle's 200-lawyer Bogle & Gates and its client Fisons Corp. to pay $325,000 in sanctions for discovery abuse, one of the largest such awards ever. By misleading its adversaries to avoid producing damning documents in its client's files, Bogle provided textbook example of the need for discovery reforms…
The seven justices [unanimously] held that Bogle & Gates and its client, a British-owned pharmaceutical company with U.S. headquarters near Rochester [NY], had used "misleading" discovery responses to hide two "smoking gun documents" from lawyers for a 3-year-old girl who suffered permanent brain damage as a result of taking a Fisons asthma drug in 1986, as well as from lawyers for the girl's pediatrician, who had filed a cross-claim…
Since the decision, Bogle has been forced to admit for the first time that it had the smoking gun documents since 1987 and had advised Fisons to withhold them -- while at the same time, in the supreme court's words, making statements to opposing counsel "that all relevant documents had been produced." These statements were accompanied by artfully worded discovery responses that Bogle later claimed (in a rationale rejected by the court) should have put its adversaries on notice that relevant documents would be produced only if found in a particular Fisons product file…
In January 1986, 3-year-old Jennifer Pollock, a child with multiple health problems, suffered seizures and permanent brain damage as a result of being treated with Fisons' Somophyllin Oral Liquid for her severe lung disease (including asthma) at a time when she also had a viral infection. The product's main active ingredient is a generic drug called theophylline. The cause of Jennifer's brain damage was (the litigation established) that the theophylline in her blood soared to toxic levels as a result of her viral infection.
The Supreme Court Rules
The Washington Supreme Court would have no part of Bogle's arguments on the discovery issues, however…"The drug company avoided production of these theophylline-related materials, and avoided identifying the manager of medical communications [Cedric Grigg] as a person with information about the dangers of theophylline, by giving evasive or misleading responses to interrogatories and requests for production," the court held…
The court also cut through the twisted argument that the Grigg documents regarding the dangers of theophylline-based drugs were not documents "regarding Somophyllin Oral Liquid" because they were not in that product's file, saying that "a document that warned of the serious dangers of the primary ingredient of Somophyllin Oral Liquid is a document regarding Somophyllin Oral Liquid." After all, the court pointed out, Fisons marketed this and its three other Somophyllin products as brand-name embodiments of theophylline.
It added that, in light of the elaborate series of pretexts offered by Fisons and Bogle for their acts of concealment, "it appears clear that no conceivable discovery request could have been made by the doctor that would have uncovered the relevant documents. The objections did not specify that certain documents were not being produced. Instead, the general objections were followed by a promise to produce requested documents. These responses did not comply with either the spirit or the letter of the discovery rules."
Chief Justice James Andersen's opinion also stressed that "a spirit of cooperation and forthrightness during the discovery process is necessary for the proper functioning of modern trials." He said that "conduct is to be measured against the spirit and purpose of the rules, not against the standard of practice of the local bar...Misconduct, once tolerated, will breed more misconduct, and those who might seek relief against abuse will instead resort to it in self-defense."
The supreme court remanded the case to Judge French to determine the amount of sanctions…with instructions to assess an amount "severe enough to deter these attorneys and others from participating in this kind of conduct in the future."
THE MORAL COMPASS: Calculated Malfeasance, The ongoing abuse of discovery requires stronger, surer sanctions
Richard Zitrin & Carol Langford, Law News Network
“May 7, 1999 Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 858 P.2d 1054 (Wash. 1993) exposes the disturbing behavior of Seattle's Bogle & Gates, one of the Pacific Northwest's largest firms. Starting in 1986, Bogle represented the drug company Fisons in a case filed by the parents of a three-year-old girl named Jennifer, who was permanently brain damaged from a dose of theophylline, the active ingredient in Fisons' Somophyllin Oral Liquid. The parents also sued the girl's pediatrician for prescribing the drug. Theophylline can be toxic when given to children like Jennifer who are also suffering from a viral infection. Although Fisons knew of this problem, the pediatrician didn't, because the company had never warned him. The doctor filed a counter-claim against Fisons, saying he never would have prescribed the drug had he been told.
During discovery, Jennifer's lawyers requested all documents pertaining to any warning letters -- including 'Dear Doctor' letters or warning correspondence to the medical profession regarding the use of Somophyllin Oral Liquid. Bogle & Gates knew of a 1981 letter addressed "Dear Doctor" on the subject of "Theophylline and Viral Infections" that had been sent to 2,000 physicians, but not to Jennifer's doctor. But the law firm advised Fisons not to produce either that letter or a 1985 memo documenting theophylline's danger.
On appeal, the Washington Supreme Court unanimously reversed the trial court on the discovery issue. "It appears clear," wrote Chief Justice Anderson, "that no conceivable discovery request could have been made by the doctor that would have uncovered the relevant documents." The higher court then remanded the case to the trial court with instructions to punish Bogle with an amount severe enough to deter these attorneys and others from engaging in such conduct again.
Less than 2 years after Fisons opinion, their litigators were in trouble again. This time Bogle & Gates represented Subaru of America on charges that the driver's seatbacks in Subaru's Justy could collapse backwards when hit from the rear, potentially causing grave injury. In the view of federal Judge Robert Bryan, Bogle obfuscated, stonewalled, and gave answers that were just plain wrong. [Lied]
In one request, plaintiffs had asked for National Highway Traffic Safety Administration records that showed the collapse of driver's Seats from a rear-impact force of 30 miles per hour. Bogle's response was that the request was "vague, confusing and unintelligible…30 miles per hour is a velocity, not a force, and due to this confusion of technical terms, no meaningful response can be given." Judge Bryan called this "lawyer hokum," and forced Bogle to pay the other side's attorneys' fees.”