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January 01, 2012

Whistleblower and Wrongful Death Claims

Neil V. Getnick

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To:       File

From:  Neil V. Getnick

Re:      Whistleblower and Wrongful Death Claims

Tracy Vitello is hurt. She’s angry. And she wants justice.

Tracy has lost her spouse, Diana Gray, who just died in a car crash. She blames Diana’s employer, GyneTech, believing that the company retaliated against Diana for doing her job—and may even have engaged in foul play to silence Diana permanently. Tracy also blames Toyota, the manufacturer of Diana’s car, suspecting that faulty brakes caused or contributed to the crash. On top of that, Diana’s former husband, Jared Bentz, is now suing to void Tracy’s same-sex marriage and gain custody of his and Diana’s children, who have been raised by Diana and Tracy.

To Tracy, these all may seem to be inseparable strands of a single outrageous fate. To us as lawyers, though, her situation presents a series of discrete and disparate issues, potentially related but requiring a careful assessment of their individual and combined litigation risks. At the same time, Tracy needs more from her lawyer than a clinical and detached legal analysis of her situation. She deserves an empathetic approach that will help her feel better about her circumstances and that will give her a greater sense of control over her future and an agreed-upon plan for achieving the best practical outcomes.


So, to begin, let’s get to the heart of Tracy’s situation. Although we serve as whistleblower counsel for Tracy, her first priority is a family-law matter—defending the sanctity and legitimacy of her marriage to Diana. In the end, that will prove to be the key to everything. And from a practical point of view, Tracy has no choice: Her spouse’s former husband has attacked her marriage head-on and is attempting to take away the children Diana and Tracy have been raising. Tracy needs to defend that action and in the process obtain a court ruling that upholds the validity of her same-sex marriage. Upholding her marriage will establish any inheritance rights Tracy may have, particularly if Diana died intestate. And a favorable ruling will lay the foundation for Tracy’s right to pursue any whistleblower or wrongful death suits on Diana’s behalf.

Who is going to represent Tracy in the ex-husband’s action? Not us. We don’t pretend to be experts in family law. Tracy’s life hangs in the balance, and this is not the time for us to develop a new skill set in the unsettled area of same-sex marriage and custody issues. We must point out to Tracy the need for, and offer to assist her in finding, expert counsel in that area. Assuming we continue to represent Tracy in some other capacity, it’s also important that we work well with that counsel. A cooperative relationship should be established from the start.

On top of her recent loss of Diana, having to defend the ex-husband’s action might prove depressing and debilitating for Tracy. The ex-husband, Bentz, probably will claim that he wished to maintain contact with his children after he and Diana divorced but that Diana, with Tracy’s help, improperly blocked such contact and turned the children against him. Ultimately, this is likely to prove unconvincing: If Bentz truly wanted to maintain a relationship with his children but was prevented from doing so, he should have sought to enforce his parental rights in court, something he never did. Nevertheless, the anticipated personal attacks on Diana and Tracy, and the likely attempt to discover the most personal details of their lives together, may prove daunting to Tracy. We need to help her appreciate that by vigorously opposing Bentz, she will be working not only to preserve her family but also to shore up and advance her other legal goals. We also need to warn her not to have any direct contact with Bentz; if he tries to communicate with her, she must tell him that all communications should be directed through counsel and say nothing more.

In particular, Bentz may approach Tracy to propose a settlement in which he withdraws his challenge to Tracy’s and Diana’s marriage in exchange for some limited visitation rights (and perhaps a share of any money Tracy obtains from GyneTech or Toyota). Bentz’s leverage, however, is unclear. On the one hand, even if Bentz withdraws his challenge, GyneTech and Toyota have a manifest interest in contesting Tracy’s spousal capacity in any suit she brings against them. On the other hand, GyneTech and Toyota may hesitate to contest the validity of a same-sex union because that position is likely to alienate a significant number of their employees, customers, and shareholders.

On balance, we should be skeptical about the possibility and value of settling with Bentz, but we also should be willing to listen to any proposal his lawyers might make. Still, we need to deliver to Tracy a dose of reality. Achieving her litigation goals would be difficult even under the best of circumstances, and Tracy’s circumstances are hardly the best.

Why is that so? Assuming that Bentz pursues his action against Tracy, several considerations heighten her potential risks. First and foremost, Bentz may be able to obtain a declaration that Tracy’s and Diana’s marriage is invalid; only a minority of states recognize same-sex marriages. Second, even if the marriage is recognized, Bentz still may win the custody battle by virtue of his status as the children’s biological father. Third, even if the court in Bentz’s action recognizes Tracy’s marriage to Diana, courts in other jurisdictions may not, and Tracy may have to bring her suits against GyneTech or Toyota, asserting whistleblower or wrongful death claims, in one or more of those hostile jurisdictions. Fourth, there is the question whether Diana’s whistleblower claims survive her death and can be pursued by her executor or administrator. A whole body of law addresses the survivability of whistleblower suits under the Federal False Claims Act after the whistleblower dies. On balance, the courts appear to favor survivability, but the issue remains unsettled.

Assuming that whistleblower or other claims survive Diana’s death, Tracy first needs to be appointed as Diana’s executor or administrator so that Tracy can control the litigation. Thus, as a first step, we need to connect Tracy with the right counsel for securing that appointment—preferably the same attorney who will defend the action brought by Diana’s former husband. That makes sense both from a legal standpoint, given the overlapping issues, and from a management standpoint, improving overall coordination and minimizing fees.

With these matters addressed, we next can turn our attention to the two potential legal actions that Tracy is considering: one against GyneTech, Diana’s former employer, for intimidation, wrongful death, and whistleblower claims; the other against Toyota, the manufacturer of Diana’s car, for product liability and wrongful death.

The contemplated action against GyneTech has several weaknesses. First, Diana received a negative performance review after she blew the whistle internally at her company about a cover-up of adverse results in a cancer drug trial, but that negative review had not really injured her at the time of her death. More specifically, the negative review had not yet resulted in any adverse action with respect to either Diana’s salary or her position. Diana may have feared losing her job after the review, but she did not live long enough to be fired, demoted, or otherwise disadvantaged. And even if Diana was correct in thinking that the negative review had already “cost her a promotion,” what are the provable damages? From the standpoint of monetary compensation, she did not live long enough to suffer substantial financial detriment. Furthermore, where is the evidence of intimidation, let alone wrongful death?

Before filing suit—in fact, before deciding which suit or suits to file—we must consider all sources of information, including our own investigation. Important leads already have surfaced. First, a front-page article in the Wall Street Journal, based on an unidentified source, detailed the problems with GyneTech’s drug trial and the suspicious circumstances surrounding Diana’s death. Second, a lawsuit between GyneTech and a former top executive has generated potentially relevant charges and counter-charges. Third, the Department of Justice, prompted by the FDA, has begun a criminal investigation of GyneTech concerning possible witness intimidation, medical fraud, securities fraud, spoliation, and the circumstances surrounding the failure of Diana’s brakes.

The first and most immediate source of information is our client, Tracy. At the outset, we need to learn what she knows, how she knows it, what she suspects, whether she has any supporting documents, and whether she has any leads to potential witnesses or other sources of information. We also should find out what she makes of the Wall Street Journal article and whether she can shed any light on the identity of the undisclosed source. If Tracy herself is the source, she initially may be reluctant to share that information with us. We must convince her that it is crucial to be candid with us on all subjects, and this matter is no exception.

If Tracy turns out to be the source, that will limit the significance of the article as potential corroboration of what Tracy has to say. It also may limit the significance we attribute to the government’s criminal probe, at least to the extent that the probe is an outgrowth of the article. On the other hand, whatever the Journal’s reporter independently discovered as supporting facts is potentially relevant. Likewise, the government’s criminal probe may unearth new and corroborative evidence that will prove helpful.

If Tracy was not the source, then we need to do everything possible to identify and recruit whoever was. The Journal reporter will not reveal the source, but the reporter may be willing to serve as a liaison and to ask the source whether he or she will speak to us as counsel for Diana’s surviving spouse. We need to explore that possibility.

Likewise, we should reach out to the government and try to establish a cooperative working relationship. To the extent we can assist the government’s investigation, so much the better. Within appropriate bounds, the government may prove to be a valuable source of information; indeed, even the questions it poses to Tracy or her counsel may be informative. Ultimately, the government may file its own civil or criminal claims, paralleling Tracy’s case and providing highly beneficial support.

Finally, we should track GyneTech’s litigation matters to see whether anything useful emerges, and we should follow up appropriately through informal investigation or formal discovery. In particular, if GyneTech’s board of directors forms a special committee of independent directors to investigate the issues now facing the company, we may want to explore, through the committee’s outside counsel, whether and how that investigation might prove of value to Tracy. That approach may resonate with the company insofar as it wishes to consider settlement opportunities with Tracy.

It is important to recognize that we are not compelled to commence litigation immediately—thereby exposing our client to discovery demands and perhaps forcing our own hand prematurely. In addition, we want to avoid hampering the government’s investigation, unnecessarily causing potential witnesses to surface earlier than necessary, and exposing witnesses to multiple examinations and interviews.

The same is true for the potential case against Toyota. To begin, we need to recognize an inherent tension between a suit against Toyota and any wrongful death claims against GyneTech. What caused the brake failure? Was it tampering by GyneTech or faulty manufacturing by Toyota? While it is conceivable that both are in part to blame, we must recognize that in attempting to broaden the potentially responsible parties, we run the risk of contradicting ourselves and undermining each of the respective cases.

Again, timing will prove crucial here. If it is not essential to advance a lawsuit immediately (that is, as long as no statute of limitations problem looms), waiting may be best. In the meantime, we should consider undertaking a vigorous fact investigation, while remaining careful not to interfere with the government’s initiatives. First, we will want to ensure that the automobile is inspected and analyzed by an accident causation expert. Second, we should find out whether Toyota has faced similar suits involving brake failures. Third, we should stay apprised of law enforcement’s investigation of the accident. While not essential, it probably makes the most sense to bring in expert product-liability counsel to guide us from the start and, if warranted, eventually file suit.

For purposes of either whistleblower or wrongful death claims, we also should make every effort to preserve potentially relevant evidence. In addition to ensuring that the custodian of the car wreck preserves it for forensic inspection, we should be sure to maintain custody or control of Diana’s home files (including correspondence, diaries, email archives, phone records, and other personal documents). Likewise, we should take steps to ensure that the appropriate authorities secure her office files (including the supposedly purged hard drive, from which data-recovery experts still may be able to obtain useful information). To accomplish this before filing suit and obtaining formal discovery, we may have to work with law-enforcement officials or seek interim court orders. We also should consider interviewing potential witnesses before filing any litigation. (Local rules will determine the extent to which counsel may communicate with potential witnesses informally.) From a practical perspective, we likely will adapt our approach in light of the government’s investigation.

Of course, we will need to design and implement fee and expense arrangements—for both counsel and investigators—that Tracy can afford. The family-law and estate matters will likely (though not necessarily) involve non-contingent fee arrangements. By contrast, suits involving the whistleblower or wrongful death claims are candidates for contingent fee arrangements, which may be the best alternative for Tracy and the only one she can afford. Nevertheless, such claims may warrant some additional, non-contingent fee or expense components in view of the litigation risks involved.

In the final analysis, we want to be sure that any claims asserted on Tracy’s behalf are well founded in law and in fact, and that Tracy fully understands the need for satisfying that requirement. We also want Tracy to feel confident that our advice seeks to advance her best interests in light of a diligent investigation of the facts and a practical assessment of both the risks and the benefits of litigation.

If our efforts are effective, then by the time our initial consultations are concluded, Tracy will have developed a higher degree of comfort and a greater sense of control over her life. She will know what she has to do first and foremost: fight back to protect her marriage, thereby preserving the family she had with Diana, establishing her marital rights to Diana’s estate, and laying the groundwork for possible whistleblower and wrongful death suits on Diana’s behalf. At the same time, we can begin the necessary factual investigation to support such suits without thrusting Tracy immediately and prematurely into full-blown litigation. We want to support Tracy as her advocate and as her adviser, ensuring that she will embark on a plan that will serve all her needs—legal, financial, and emotional.


Neil V. Getnick

The author is with Getnick & Getnick LLP, New York City.