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If beagles could laugh, they’d get the last guffaw in a case involving a doctor who tried to give the small hounds cancer and an animal rights group attempting to stop him by taking on the role of government whistle-blower. In a heartening decision for plaintiff lawyers who often bring lucrative qui tam suits, the Ninth Circuit U.S. Court of Appeals said Wednesday that information obtained from the government through public means may form the basis of a False Claims Act complaint. The decision widens the definition of a whistle-blower � or relator � according to lawyers who handle such cases, and makes it easier for non-governmental employees to sue government contractors for fraud. “It’s wonderful. The court today preserved a powerful tool for relators,” said Jeremy Friedman, the Oakland solo representing would-be whistle-blower Patricia Haight, a psychologist who was working for the advocacy group In Defense of Animals. Lawyers for researcher Michael Berens and his employer, Catholic Healthcare West, wouldn’t comment on the case. But Thomas Carlucci, a partner at Foley & Lardner who defends qui tams, had his own take on the ruling’s effect. “I think this opinion now is going to create a cottage industry for parasitic relators,” he said, pointing out that parasite is a term of art in qui tams, and also that the Ninth Circuit opinion takes the opposite stance of a previous Third Circuit precedent. “You can now bring your own private attorney general investigation of stuff that’s already in government files,” he added. “You can beat the agency to their own punch.” Qui tam suits allow for lucrative recoveries for the government � which sometimes takes over the prosecution of such cases � and for plaintiff lawyers. A successful suit can result in treble damages for the government, and plaintiffs get up to 30 percent of the recovery. In the Berens case, Haight’s review of documents obtained via the Freedom of Information Act � papers already in the government’s possession � led to suspicions that Berens’ beagle research was yielding questionable results. After following up on her suspicions, Haight said she discovered Berens obtained his $700,000 research grant from the National Institutes of Health under fraudulent pretenses. Berens claimed in his grant application that he was routinely successful in getting beagle puppies to grow human brain tumors under their skin. But Haight said this was untrue, and she � along with her advocacy group � sued Berens and Catholic Healthcare West. She argued that while Berens was quite successful in killing the beagles, few actually contracted the cancer he was studying. “He was so quick to waste animal lives and federal funding that his work could be stopped based on both animal rights and the False Claims Act, and that’s a beautiful thing,” said Friedman. Alas, a trial judge dismissed the case, ruling Haight could not file a qui tam action because she merely compiled documents already in the government’s possession. Writing for the unanimous three-judge panel, Senior Judge Betty Fletcher reversed that ruling. While the False Claims Act prohibits whistle-blowers from using government reports or investigations � audits, for example � as the basis for their claims, information compiled through an FOIA request is not necessarily such a “report.” “Holding that an FOIA response is necessarily a ‘report’ or ‘investigation’ would deter individuals who suspect fraud from investigating it,” Fletcher wrote in USA v. Catholic Healthcare, C.D.O.S. 3221. “If information obtained pursuant to FOIA requests could never form the basis of a qui tam action, prospective relators would have to invest substantially more energy into uncovering the suspected fraud through other means,” she continued. “Moreover, the government is not harmed by permitting claims based on information obtained pursuant to FOIA request from going forward; it still has an opportunity to intervene and take over the suit.” That line of reasoning rankled defense lawyer Carlucci. “The disagreement I have with the premise of the Ninth Circuit’s decision is that the government isn’t harmed,” he said, since public agencies could bring such cases themselves without having to pay private plaintiff lawyers. But plaintiff attorney Friedman said it clears the way for enterprising individuals who may be able to find wrongdoing overlooked by the government. Haight “did her investigation,” he said. “It doesn’t mean she’s a parasite.”

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