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Summary Judgment

Feds: Too Much Power, Too Little Adult Supervision, and No Accountability

May 01, 2017 | by William Perry Pendley

The story made front page, above-the-fold news in Minneapolis’s Star Tribune but nowhere else, both its beginnings—with a multiple count indictment by the United States government of a small medical supply company, its Chief Executive Officer, and other employees, and plans by a federal agency, its bureaucrats, and scores of government lawyers to kill the company and jail its employees—and its ending with a resounding NOT GUILTY as to all counts by the jury at the conclusion of the government’s case.  The federal government did not plan it that way; after all, it blared the indictment from the rooftops with associated chest pounding by federal employees, but at the end, as if nothing happened, the government, its officials, and its lawyers slunk away without a word.    

Fortunately, Howard Root (rhymes with foot) has supplied the words the government refused to provide in the aftermath of its five year war waged against him, CEO of the company he started in 1997, Vascular Solutions, Inc., and his Minnesota-based company.  In Cardiac Arrest:  Five Heart-Stopping Years as a CEO on the Feds’ Hit List (2016), Mr. Root entertains, enlightens, and enrages as he takes the reader from the troubling telephone call he received from one of his lawyers as he enjoyed an ice cream cone at the Minneapolis airport through the heartfelt hugs and hearty handshakes of jurors—to whom he dedicated his book—who saved his company and set him free from possible imprisonment.  “Shocks the conscience,” is uttered easily and often, especially by us lawyers, but no other phrase fits Mr. Root’s tale.

It should be a wake-up alarm, a call to arms, or a spark—like the tax that ignited the Boston tea party—that lights off a revolutionary rebellion; that is, if anyone is paying attention and not saying—as have too many of Mr. Root’s presumptive allies in the business world—he brought it on himself, or he must have done something, or the federal government never does this.  There is a rarity in this frightening story:  the willingness of someone facing the death of his company, dismissal of his 500 employees, and decades in prison to fight back, to refuse any and all deals—as insulting as they were—and to do everything, including paying $25 million in legal fees, to win total exoneration.  As one of his top drawer lawyers in Washington, D.C. said, “Nobody really takes these cases to trial for the defense.”  Everyone pleads guilty.

There is one guilty verdict:  for the federal government, which has too much power, no adult supervision of its officials, bureaucrats, and lawyers, and absolutely no accountability for their misdeeds.  Those transgressions were multiple and varied; no one was guiltless.  Not the whistleblower who teamed with the feds; not the Federal Drug Administration’s (FDA’s) special agent—the case involved alleged marketing of devices off-label, that is, for uses not approved by the FDA; not the lawyers who litigated the case; not their bosses in Washington, D.C. who passed on putting a stop to their mischief but instead bragged on how they were bringing down people like Mr. Root; and not the judge who declined twice to enter judgment for the defendants but bravely announced later the FDA’s own testimony doomed its case.

We know a grand jury will “indict a ham sandwich,” but we learn of prosecutors’ shocking, intimidating, and illegal efforts to get that indictment.  We learn that a top official, Sally Yates—fired by President Trump—declared war on Mr. Root and his colleagues, but audaciously refused to answer questions posed by Congress.  We learn too, but not finally, that the FDA’s agent was not interested in “the truth,” which was for the defense to find; he sought “facts” to support a conviction.  We now know the truth, but can we handle it, do we care, and are we willing to do anything about it?

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