OHSU, School Districts Named in Drug Lawsuit

SSKRP Attorneys in the News

The Oregonian 7/03/02

OHSU, school districts named in drug lawsuit


A federally funded study of school-based drug testing violated the rights of thousands of Oregon high school students, alleges a lawsuit naming Oregon Health & Science University and 14 Oregon school districts.

The class-action lawsuit, filed in U.S. District Court in Oregon on Friday, seeks an injunction to halt the drug-testing study and compensation for "psychological, social and economic harm" suffered by students and parents.

Spearheading the case is a New Jersey law firm that has gained a national reputation for challenging the ethics of human experiments at some of the nation's leading medical institutions, including Seattle's Fred Hutchinson Cancer Center.

In the case against OHSU and the Oregon schools, lawyers said student athletes were coerced to take part in the drug-testing experiment, which the lawyers call a violation of legal and ethical requirements for voluntary participation in human research.

Students who refused to go along with random urine tests were barred from playing sports and, according to the lawsuit, subjected to harassment and intimidation.

"That's hardly voluntary," said lead attorney Alan Milstein of Pennsauken, N.J. "Everybody knows, after Nuremberg, informed consent must be voluntary," he said, referring to the code of research ethics established after German experiments during World War II.

OHSU denies any wrongdoing. A spokesman said the study, known as Saturn, complies with all state and federal regulations. An institutional review board, comprising OHSU researchers and lawyers responsible for protecting the rights and welfare of research volunteers, approved the study before it began, said spokesman Martin Munguia . The panel has repeated the reviews each year of the study, he said.

Dallas School District Superintendent Dave Novotney said most student athletes and their parents have accepted the use of mandatory drug-testing since his district joined the Saturn study.

"There has been only very mild protest at this point," Novotney said. He said Dallas High School was experiencing "significant issues" with drug and alcohol abuse among athletes when asked to join the Saturn study.

"We had identified a problem but didn't have the resources to implement a randomized drug testing program," Novotney said. "This seemed to be an ideal solution for us."

At least two Dallas High School students, Amy Cordy and Beth Wade, strongly objected to the testing program and have become plaintiffs in the lawsuit. In the lawsuit, they say they suffered humiliation, anguish, physical and emotional distress and damaged reputations as a consequence of the drug-testing study. Two Portland lawyers representing the plaintiffs declined to discuss further details of the allegations.

Novotney said he couldn't respond to the allegations until the district received a copy of the lawsuit.

Dr. Linn Goldberg, a professor of medicine at OHSU, designed the Saturn study to show whether a program of random screening could reduce drug use. Goldberg is a prominent researcher on the problem of drug use among athletes. He received a $3.6 million grant from the National Institutes of Health in 2000 to carry out the three-year study at 18 Oregon high schools.

The study ends next year. Preliminary results are due to be published later this year.

Student athletes at seven of the schools face random drug tests with no advance warning. Researchers collect urine samples and test them for anabolic steroids and street drugs including cocaine, marijuana and methamphetamine. Students at six other schools serve as a control group with no drug-testing policy.

Five schools in Lincoln County dropped out amid the controversy that erupted within weeks after the study began. Parents in Lincoln County were the first to challenge the drug testing required by the experiment, prompting the exit of the schools from the study.

Oakridge High School Student Ginelle Weber, who was barred from school sports after refusing to go along with the drug testing being assessed in the study, has appealed a circuit court ruling upholding the school district's use of mandatory drug testing.

In defense of the study, Goldberg, the lead investigator, has argued that drug screening is no more intrusive than required physical examinations for student athletes, and that the goal is the same: promoting health. Students at study schools who test positive receive confidential medical help and are not punished and remain eligible for sports, he pointed out in a newspaper editorial defending the study last year.

"Why is it acceptable for businesses to protect their private interests but unacceptable for schools to protect students from injury . . .?" he wrote. Goldberg was unavailable for comment Tuesday.

Lawsuits attempting to stop school-based drug testing have largely failed since a landmark U.S. Supreme Court ruling on an Oregon case in 1995. The court upheld Vernonia School District's policy of mandatory drug testing for athletes. Tom Christ, a Portland lawyer representing a 12-year-old Vernonia boy, argued that mandatory drug tests subjected students to a degrading, intrusive experience without reasonable cause.

Last week, a Supreme Court decision paved the way for expanded use of school drug tests by upholding their use as a condition for all extracurricular activities.

But the legality of school testing is not at issue in the lawsuit against OHSU, said Milstein, the New Jersey attorney for Sherman Silverstein Kohl Rose and Podolsky.

"It's about whether it's constitutional to compel school kids to participate in a human experiment because the researcher got a $3.5 million grant," he said.

OHSU maintains that schools adopted the use of mandatory drug tests, and that the screening program wasn't imposed on students by the researchers, according to Munguia, the OHSU spokesman.

"The drug testing itself is not a part of the study," he said.

The study grant pays for the drug testing at the 13 schools, and OHSU researchers administer the tests. Munguia said that is necessary to maintain a consistent standard of testing among all of the schools.

Milstein said an advocacy group brought the OHSU study to his attention. His firm came to national prominence representing the family of Jesse Gelsinger, an 18-year-old who died in a gene therapy experiment at the University of Pennsylvania.

The Firm is representing the families of patients who died in a controversial clinical trial at the Fred Hutchinson Cancer Research Center. It has brought similar actions against the University of Oklahoma, Ohio State University and the University of California at Los Angeles.

Although Milstein has gained multimillion dollar settlements in some cases,his legal theories remain untested in a trial.