Probe Finds NIH Official Violated Government Regulations

By Rick Weiss
Washington Post Staff Writer
Wednesday, June 27, 2007

A high-powered institute director at the National Institutes of Health disregarded conflict-of-interest guidelines by making decisions affecting the university where he was a faculty member, broke government spending rules, and raised concerns with his growing involvement as an expert witness in legal cases, according to sources within NIH and Congress and hundreds of pages of confidential documents.

David Schwartz, a physician and researcher recruited from Duke University to great fanfare in 2005 as chief of the National Institute of Environmental Health Sciences, was found to have spent modest amounts of institute money for personal purposes but was cleared of other allegations of wrongdoing in a recent internal NIH ethics review obtained by The Washington Post.

In a telephone interview yesterday, Schwartz said he made mistakes, which he blamed on "misunderstandings" about institute rules and "poor communication," for which he said he takes "full responsibility."

Schwartz denied any deception on his part, however, and said he has taken corrective actions to prevent future problems.

But several members of Congress have demanded more details, saying they have evidence that the NIH report is incomplete. And scores of e-mails reviewed by The Post confirm that ethics officials in NIH and in the Health and Human Services secretary's office have grown increasingly frustrated with Schwartz's repeated insensitivity to conflict-of-interest rules.

In one exchange, when officials learned that Schwartz had not fully divested all his biotechnology and drug company stocks as required, Schwartz wrote to the NIH ethics office that the divestiture "seems totally unreasonable. . . . I'm simply not willing to limit my investments in this way."

The ethics officer, who later complained that she had "lost patience . . . a long time ago" with Schwartz, responded, "It may appear to be unreasonable, but it is the law."

He subsequently sold the stocks.

Also raising alarms were Schwartz's growing commitments to give expert testimony in multimillion-dollar asbestos injury cases -- of concern because he might be perceived as profiting personally from his status as head of the nation's premier environmental toxicology program.

Schwartz brought more than a dozen Duke researchers to his federal lab, despite a requirement that he recuse himself from matters involving Duke. He also overspent his lab budget by millions of dollars. Those actions led agency officials to take the extremely unusual step of banning Schwartz from his own lab for nearly three months, putting it into receivership and sending the researchers back to Duke in what one official called a "de-Duking" process.

Raynard S. Kington, NIH's deputy administrator and top ethics officer, attributed the problems to a "misunderstanding" when Schwartz was hired as to the limits he would have in his new job.

The lab was recently placed under the budgetary control of another NIH institute to prevent further problems, Kington said.

And in March, Schwartz -- who had retained his faculty status at Duke, a few miles from the institute's headquarters in Research Triangle Park, N.C. -- separated himself from the university.

"There is now a clear, bright line" between Schwartz's outside activities, lab responsibilities and responsibilities as NIEHS director, Kington said.

Schwartz said he earned about $150,000 from asbestos-related expert testimony and clinical exams from mid-2005 through fiscal 2006. But Schwartz emphasized that he had contracted with the law firm before coming to NIH.

Government ethics officials, however, were clearly concerned that lawyers could exploit the clout that came with Schwartz's new position at NIH.

"More than any other type of outside activity (writing, speaking, even consulting), the expert witness can lead to trading on the reputation of the NIH . . . it's almost inevitable," an ethics adviser wrote in an e-mail regarding Schwartz.

Kington e-mailed Schwartz that lawyers in HHS Secretary Michael Leavitt's office "had major concerns about your doing these activities." He continued, "I pushed back, and they eventually deferred to my call."

The internal NIH review found that Schwartz wrongly used almost $2,000 in government funds to frame his high school diploma and various photographs for his office, and for expenses relating to a limousine service. The report did acknowledge that his staff gave him bad advice on those matters.

Schwartz said he reimbursed the government, has stopped giving expert testimony and is committed to strengthening the institute.

"I really have the best interests of people who are being exposed and who are at risk of environmental diseases," he said, mentioning several landmark public health projects the institute is sponsoring, including one involving asthma in residents of New Orleans.

But congressional distrust remains strong. Last Thursday, Sen. Chuck E. Grassley (R-Iowa), ranking minority member of the Finance Committee, which has been investigating Schwartz for months, sent an eight-page letter to NIH Director Elias A. Zerhouni with a host of new questions to be answered by July 10.

"The National Institutes of Health conducts important research for the public good, and individuals who hold high-level positions there ought to understand that they hold the public trust and demonstrate respect for it with their actions," Grassley said.

In the House, Oversight and Government Reform Committee Chairman Henry A. Waxman (D-Calif.) and Rep. Dennis J. Kucinich (D-Ohio) have asked Schwartz for documents, citing "multiple sources [who] have contacted the Committee to raise additional questions about your conduct as Director of NIEHS."

Schwartz, an expert in environmentally related lung diseases, was hired in 2005 just three months after Zerhouni imposed strict new conflict-of-interest rules in the aftermath of a scandal involving agency scientists who failed to disclose lucrative consulting deals with pharmaceutical companies.

In interviews this week, various current and former NIEHS employees called Schwartz "brilliant" and an "excellent scientist" but also "patriarchal," and "footloose and fancy-free with the rules."

Since his arrival, three top institute officials have left, and many employees have expressed dismay at Schwartz's leadership.

"Morale is just horrible," one said speaking on the condition of anonymity for fear of retribution.

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