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An Open Letter to the Justice Department

Pfizer May Have Violated Federal Laws When They Fired Me

by Dr. PETER ROST, MD

Susan Winkler, Esq.
Assistant United States Attorney
Deputy Health Care Fraud Chief
United States Attorney’s Office
District of Massachusetts, Boston, MA

Dear Ms. Winkler:

As you know Pfizer terminated my employment on December 1, 2005. I was informed of my termination by journalists; not by Pfizer. Since I am a witness in a federal criminal investigation my termination may violate U.S. criminal law, which is the reason I’m contacting you.

Pfizer also filed a motion to dismiss my qui tam complaint on December 1, 2005, and distributed this motion by e-mail to the press through their PR department one day before the motion was provided to my lawyers using overnight delivery. Additionally, Pfizer filed their motion before I had the opportunity to serve my qui tam complaint on Pfizer, as directed by the court. My understanding is that a motion to dismiss is pointless until a complaint or an amended complaint has been formally served, since there is nothing to dismiss until that has taken place. In short, Pfizer has created a PR circus in their attempt to publicly humiliate me using the disguise of protected legal communication.

Pfizer has in this process also attempted to embarrass the United States Attorney’s Office by retaliating against a federal grand jury witness in an ongoing criminal investigation conducted by your office, related to payments to Express Scripts and off-label distribution of Genotropin. I note that after I had appeared twice before a grand jury, on October 19, 2005 you wrote, "We may need to talk to you again, and I’d like to do so in a formal setting, like the grand jury."

Pfizer’s action also shows blatant disrespect for U.S. Congress; several Congressmen on September 30, 2004 sent an open letter to Pfizer’s CEO and Board of Directors, which stated, "We are writing to express our serious concerns at the intimidation being directed at Pfizer Vice President Peter Rost."[1]

Pfizer’s termination of my employment may violate the False Claims Act whistleblower protection, 31 U.S.C. § 3730(h),[2] and criminal law, 18 U.S.C. §1513(e).

Title 18 U.S.C. §1513(e) provides that "Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both."

I informed Pfizer’s CEO Dr. Hank McKinnell and Pfizer’s general counsel, Jeff Kindler of this statute in an e-mail correspondence dated September 9 and 12, 2004 (attachment A), in which I also informed them that I have "not only provided truthful information to the New York State Attorney General’s office, but also testified in person before law enforcement agents employed by the FBI and the FDA’s Enforcement Division, related to the possible commission of federal offenses."

Pfizer wrote in their termination letter (attachment B), "We maintained your employment over the past two years to avoid any complications that might have arisen from a severance or other employment-related action, particularly in light of the fact that the government was reviewing claims that you had raised."

This explanation is disingenuous at best, since my qui tam action was filed under seal and more importantly, Pfizer had no problem terminating my employment as soon as I notified them in writing of my concerns. In fact, Pfizer threatened to fire me already on February 2, 2003 in direct response to an e-mail in which I outlined Pharmacia’s legal liabilities. This took place almost four months before anyone contacted the government and almost three months before other Pharmacia employees were notified of their termination. Pfizer allegedly also has a history of firing whistleblowers; the Wall Street Journal has described how Dr. Juan Walterspiel was fired when he raised ethical issues.[3] Expressing an opinion that certain conduct is illegal is protected by the NJ Conscientious Employee Protection Act. An employer who retaliates against an employee who engages in protected conduct as described by this paragraph violates this statute. See N.J.S.A. §34:19-3.

Pfizer’s ruthless actions and systematic termination of whistleblowers send chilling signals to honest employees within Pfizer. Their current media campaign serves the same purpose. Pfizer has been quoted in the New York Times saying "he was essentially blowing the whistle on his own conduct," and that my actions in filing a qui tam complaint "were clearly opportunistic."

This is contradicted by a letter from Pfizer’s general counsel (attachment C) in which Mr. Kindler admits that I’m the one who made Pfizer aware of the Genotropin legal issues. He also writes "I recognize, that with your assistance, Pharmacia examined these issues in 2002," and he validates my concerns that Pharmacia had not taken appropriate action by saying Pfizer will contact the government and make "additional changes." This letter took almost two weeks to arrive in my office; the fact that the letter may have been backdated has been subject to detailed questioning during my grand jury testimony and confirmed by separate documents. Consequently, Pfizer’s statement that I knew of their report to the government before I filed my qui tam complaint has been proven false.

Perhaps Pfizer’s elaborate attempt to discredit an employee who tried to clean up illegal conduct that started years before his own employment should not be surprising, considering that in a 2001 Pfizer employee survey 49 percent didn’t agree with the statement, "Management is willing to give up short-term gain to do the right thing." Or that 30 percent of Pfizer’s employees; about 15,000 persons at the time, didn’t agree with the statement, "Senior management demonstrates honest, ethical behavior." In fact, Pfizer has the unusual dishonor of having been forced to sign not just one but two corporate integrity agreements[4] with the HHS Office of the Inspector General and paid close to half a billion dollars in criminal and civil fines.[5] According to the Department of Justice, Pfizer’s $240 million criminal fine for Neurontin was "the second largest criminal fine ever imposed in a health care fraud prosecution." Unfortunately, just like the Justice Department declined intervention in the Neurontin case, which generated $430 million in criminal and civil fines, the Justice Department also declined intervention in the Genotropin case.

In conclusion, Pfizer’s termination of me is intended to harm not only me, but also the United States Attorney’s Office, mock U.S. Congress, and challenge the entire judicial process; creating a warning for future whistleblowers. Witness intimidation and retaliation is something we normally associate with organized crime and not with major corporations.

Pfizer apparently expects that the United States Attorney’s Office in Massachusetts is unable or unwilling to defend its witnesses. I don’t share Pfizer’s perceptible contempt for your office, and I expect that you will act on this information. I am hereby respectfully asking you to intervene and investigate this matter.

Best regards,
Peter Rost, M.D.
Ex-Vice President, Pfizer

This letter does not constitute a complete or exhaustive statement of any of my rights, claims, contentions or legal theories, nor should it be deemed to constitute a waiver or relinquishment of any of my legal rights and remedies. The details contained in this letter are allegations. Pfizer is presumed to be innocent unless and until proven guilty beyond a reasonable doubt in a court of law.

[1] http://www.house.gov/apps/list/press/il05_emanuel/rost_pfizer_letter.pdf

[2] Under Section 3730(h) of the False Claims Act, any employee who is
discharged, demoted, harassed, or otherwise discriminated against because oflawful acts by the employee in furtherance of an action under the Act is
entitled to all relief necessary to make the employee whole. Such relief may
include reinstatement, double back pay, and compensation for any special
damages including litigation costs and reasonable attorneys’ fees.

[3] http://www.patientrecruitment.com/pdf/

[4] http://www.oig.hhs.gov/fraud/cia/agreements/pfizer_5_11_2004.pdf

[5] http://www.usdoj.gov/opa/pr/2002/October/02_civ_622.htm
http://www.usdoj.gov/opa/pr/2004/May/04_civ_322.htm