Whistle Blower's Legal Victory Seen As Supporting Industry Scientists Who Criticize Their Employers

Whistle-Blower's Legal Victory Seen As Supporting Industry Scientists Who Criticize Their Employers Author: FRANKLIN HOKE, pp.1 Date: August 22,1994 Mobil Oil toxicologist who was fired after he voiced concerns about safety standards is awarded $3.5 million An industry toxicologist's legal victory over his former employer may reflect an inclination on the part of the courts to extend greater protections to whistle-blowers who raise scientific issues in the workplace, according to scientists and other observers. Also, they say, the unusually large size of the whistle-blower's award in the case--$3.5 million--should serve as a warning to companies against punishing dissent among their scientists. At the same time, they caution, the direct legal ramifications of the win will probably not reach beyond the borders of the state in which the case was tried, New Jersey, although many national high-technology companies have facilities there. In late 1989, Myron A. Mehlman, who had been chief toxicologist for Mobil Oil Corp., headquartered in Fairfax, Va., found himself the subject of an internal investigation for misuse of company resources. The investigation was launched 18 hours after he told officials of a wholly owned Japanese subsidiary that they were marketing gasoline containing dangerously high levels of benzene and should stop, according to evidence presented in the case. Mehlman, who worked at Mobil's laboratories in Hopewell, N.J., was subsequently fired and filed suit in the Superior Court of New Jersey, claiming Mobil had retaliated against him for his in-house scientific assertions. Mobil charged, however, that Mehlman had used company postage and photocopying to support a private scientific publishing venture and denied any connection between the investigation and Mehlman's statements in Japan. In a July 14 ruling in Newark, presiding judge Douglas J. Hague found that Mehlman could not seek protection under the state's Conscientious Employee Protection Act (CEPA), upon which he had based his suit, because the benzene levels of gasoline in Japan had no impact on New Jersey residents. At the same time, the judge said that Mehlman, in producing five large packets of receipts for stamps, had "overwhelmingly refuted the [company's] attempt to orchestrate a smear campaign" against him and found that he had been wrongfully fired, despite the fact that he had not sued under any other employment law. Hague referred to an "almost Pavlovian response to an employee who attacks the company" and said Mobil had "lost its bearing" in its "reprehensible" actions against Mehlman. He then vacated a jury's award of $3.5 million in compensatory damages based on the whistle-blower law, but let stand their award of $3.5 million in punitive damages because of the firing. "While multimillion-dollar damage awards [such as Mehlman's] are rare, they reflect a trend in whistle-blower protection, and they're becoming increasingly part of the legal landscape for corporations who used to have the power to fire whistle-blowers with impunity," says Thomas Devine, legal director of the Government Accountability Project in Washington, D.C. The independent group provides legal and other support to government and industry whistle-blowers. "But it's difficult for any other scientist outside of New Jersey to have any confidence that Dr. Mehlman's victory will be helpful," he adds, partly because whistle-blower laws vary dramatically from state to state. "They're almost like snowflakes: No two are alike." Each side plans to appeal the aspects of the case that it lost. Mehlman's lawyer, Neil M. Mullin of the firm Smith Mullin in West Orange, N.J., will argue that CEPA does cover overseas events and that New Jersey public policy law should discourage unethical actions by its corporations outside the state. Mobil's lawyer, William J. Brennan III of the Smith, Stratton, Wise, Heher, and Brennan firm in Princeton, N.J., has said that the punitive damages should not stand if CEPA does not apply in the case. John Lord, a Mobil spokesman, declines to discuss the case in detail, except to say that benzene levels in the Japanese gasoline were within applicable legal standards at the time and that the company does plan to appeal. Lord also reiterates the company's assertion that Mehlman's statements in Japan had nothing to do with his firing. Despite the judge's ruling that CEPA was not applicable, the case is being viewed, by scientists and others, as a case of retaliation by an employer against an employee raising legitimate public-interest concerns. "It's a whistle-blower case," says Lee Starr, a retired vice president for technology development with Hoechst Celanese Corp., Somerville, N.J., a subsidiary of Hoechst AG, Frankfurt, Germany. "If the guy is a scientist and his figures are correct, he should be able to say what he said. I don't feel he should have been stifled." Starr also expresses surprise at Mobil's reaction to Mehlman's comments concerning the dangers of high benzene levels in the company's gasoline. "In this day and age, if one of your own people raises a question about a potential hazard, you just don't discount it," Starr says. "You go and investigate it." At least one high-profile industrial whistle-blower says Mobil's response to Mehlman--indirectly punishing him for troublesome scientific views by investigating him for misappropriation of corporate resources--fits a pattern for such cases. "Most of the time, these companies get into trouble because they're so blatant in these investigations that it's obvious what is actually taking place," says Roger Boisjoly, who heads his own "forensic engineering" consulting firm, Boisjoly Engineering Ltd. in Mesa, Ariz. "They want to kill a messenger bringing the bad news, and that's the bottom line in the whole thing." In January 1986, as an engineer with Morton Thiokol Inc. in Willard, Utah (the company has since separated into two entities), Boisjoly voiced technical concerns that he felt should delay a launch of the space shuttle Challenger, which was scheduled for the following day. The shuttle subsequently exploded with the loss of the entire crew. Although Boisjoly's analysis of the dangers was later proved accurate, his relationship with his employers degenerated, according to published reports. Mehlman, who is now a visiting scientist at the Public Health Service's Agency for Toxic Substances and Disease Registry in Atlanta, told the managers of the Japanese Mobil subsidiary that the gasoline they were selling, which he understood to have a benzene content of about 5 percent, was dangerous to public health. Excessive benzene exposure has been shown to cause leukemia in humans. He recommended that they stop selling it until that level could be reduced--a process that might entail expensive modifications to the refinery. Robert Drew, health and environmental science director for the American Petroleum Institute, a trade group in Washington, D.C., says that while it is generally accepted that benzene can cause leukemia in humans, the exposure level necessary to induce the disease has not been quantified. Scientists like Mehlman have called for erring on the side of caution because of this, but Drew suggests that this view may be excessively conservative. According to the Environmental Protection Agency's Office of Mobile Sources in Ann Arbor, Mich., most gasoline sold in the United States currently contains about 1.5 percent benzene. Under provisions of the Clean Air Act of 1990 due to go into effect in 1995, however, that level will be lowered to below 1 percent in high-ozone areas, such as cities.

Whistle Blower's Legal Victory Seen As Supporting Industry Scientists Who Criticize Their Employers

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