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February 2015

Dear Legislator,
Ever since the suicide of Dan Markingson in May 2004, the administration of the University of
Minnesota has maintained a posture of concern and leadership in launching investigations of the
circumstances surrounding the tragedy. The standard response to those who have called for an
independent investigation is contained in the statement given by the University’s Chief Counsel,
Mark Rotenberg. This version was published on November 13, 2012.
As we’ve stated previously, the Markingson case has been exhaustively (emphasis mine) reviewed by federal,
state and academic bodies since 2004. The Board of Medical Practice, the Minnesota Attorney General’s office and
the University’s Institutional Review Board have all reviewed the case. None found fault with the
University. None found fault with any of our faculty.
That statement is quite clear and leaves little reason for confusion. Certainly five reviews that
have been “exhaustively” conducted ought to satisfy the skeptical.
Frankly, it would satisfy this writer if it were true. With that in mind, let’s review each claim
keeping in mind the word “exhaustively”.
The University of Minnesota Institutional Review Board
Richard Bianco, the University of Minnesota official responsible for overseeing research subject
protection, has testified in a deposition that the IRB did not investigate Markingson’s
death. Consider the following passages from his deposition.
Q: Has the IRB done any investigation into the death of Dan Markingson?
A: Not a formal investigation, no.
Q: Has the university done any investigation into the death of Dan Markingson?
A: No.
And later:
Q: To the best of your knowledge, did anyone at the IRB, at the University of Minnesota, or anyone under your
office investigate this case, actually look at the records and see the court documents that I’m describing, and if so,
could you give me the name of that person?
A: Not to my knowledge.
Q: Nobody did that.
A: No.
In spite of this statement taken under oath in 2006, the administration continued to propagate the
myth of the exhaustive review by the IRB.
The Hennepin County District Court
It is false to claim that the Hennepin County District Court reviewed the case and found no fault
with University faculty members. In the lawsuit brought by Mary Weiss in Hennepin County
District Court, a judge ruled in a partial summary judgment that the University IRB was
“statutorily immune from liability.” This is not an exoneration. As Matt Lamkin, a Minnesota
law graduate and member of the faculty at the University of Tulsa Law School has noted, to
suggest that the University of Minnesota was exonerated in this lawsuit is like a diplomat who got
drunk and ran over a child claiming he was "exonerated" by diplomatic immunity.

The Minnesota Attorney General
The Office of the Attorney General has sent a letter to Mary Weiss and Mike Howard confirming
that it "has not made any independent investigation or determination regarding the care rendered
to your son."
The Minnesota Board of Medical Practice
Robert Leach, the Executive Director of the Minnesota Board of Medical Practice, has written
that "the Board has no jurisdiction over any institution, clinic, facility, hospital, university or
medical school." As a consequence, it could not have possibly have concluded, as President Kaler
has claimed, that the Board found that the University "in no way contributed to the unfortunate
death of Mr. Markingson."
The FDA
The FDA did review the case and its report is public. Critics have taken exception with the
narrowness of scope in that it failed to examine the concerns of conflicts of interest and enrollee
mistreatment. Nevertheless, the FDA did investigate and did submit its findings.
On February 5, 2015, the University in response to the February report that was submitted to the
legislature by Dr. Carl Elliott, Dr. Leigh Turner, Mike Howard and me added two more
organizations; the Minnesota Board of Social Work and the Office of the Ombudsman for Mental
Health and Mental Retardation. The message by the University’s administration states that those
agencies also “thoroughly investigated” the Markingson case and “none of those investigation
found evidence of misconduct by the University of Minnesota.”
The Minnesota Board of Social Work
The strangest of the University's new claims of exoneration is the Minnesota Board of Social
Work's corrective action for Jean Kenney, the social worker who served as study coordinator for
the CAFE study in which Dan Markingson died. The Board's findings against Kenney were
damning. Kenney had no medical training, yet she had administered prescription drugs to
research subjects and made formal judgments of their side effects. Her recordkeeping was “devoid
of any clearly articulated, consistent set of treatment goals.” She omitted crucial information
relevant to suicide prevention. When Markingson’s mother, Mary Weiss, left “alarming voicemail
messages” about her son’s condition, Kenney failed to respond appropriately. She made serious
mistakes about medication dosage and a medical diagnosis, and these mistakes remained in the
chart until well after Markingson killed himself, after which Kenney went back and changed
them. In addition, Kenney often falsified the initials of a physician when signing records.
Curiously, the University paid Kenney’s legal bills thereby indicating a more than a passing
interest in this case. It also voids any claim by the administration that it was not aware of these
findings.
The Office of the Ombudsman for Mental Health and Mental Retardation
The Office of the Ombudsman for Mental Health and Mental Retardation investigated Dan
Markingson’s death, but it did not exonerate the University. On the contrary, its report was quite
critical. The report pointed out the ways in which Dan Markingson’s ability to consent to the

 

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CAFE study was compromised by virtue of his civil commitment order. It noted that the
witnesses to Markingson’s consent to the CAFE study were the principal investigator and the
study coordinator. The report questions also whether Markingson was actually eligible for the
CAFÉ study. In addition, it faulted the halfway house staff for calling the program director rather
than 911 when Markingson’s body was discovered after his suicide.
Over the years, the administration and the Board of Regents of the University has maintained
that the Markingson case has been “thoroughly” and “exhaustively” investigated by a total of
seven agencies and never was fault found. Ever since the Markingson death in 2004, the
administration and Board of Regents used this claim of numerous exhaustive and extensive
investigations as a hammer against those in dissent. Unfortunately, this weapon worked and it
worked well. Time and again, news stories covering the tragedies and problems with drug testing
at the University contained a paragraph citing these numerous and thorough investigations and a
finding of no fault. What was missing was an examination of the truthfulness of that claim.
The simple fact is that no one wants to believe any administration of higher education would
engage in any conduct that it not representative of the highest standards of truthfulness. As a
society, we view politicians with a certain suspicion and skepticism, but tend to have the opposite
view when it comes to religious leaders, judges and educators.
But, the reality is that any management system can perform below expectations and to some very
low levels regardless of institutional affiliation. That is why the oversight function is vital. In this
case, the Board of Regents was subservient to the wishes of management and hence refused to
hold a public hearing or even listen to the voices of dissent.
But that is why it is imperative that the Legislature start holding hearings now. Contrary to
former Board Chairman Board Chairman, Richard Beeson, six suicides, the conviction and
imprisonment of a professor, the banning by the FDA of certain researchers, allegations of abuse
of enrollees, a host of conflicts of interest, and a barrage of negative publicity do and should rise to
the level of your concern.
I very much appreciate your service.

Respectfully submitted,
Arne H. Carlson
Governor of Minnesota, Retired

 
 

 

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