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 Universitys Chief Counsel, Mark Rotenberg. This version was published on November 13, 2012. As weve 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 Generals office and the Universitys 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, lets 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 Markingsons 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 Im 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.

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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 Universitys 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 Markingsons mother, Mary Weiss, left alarming voicemail messages about her sons 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 Kenneys 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 Markingsons 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 Markingsons 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 Markingsons consent to the CAFE study were the principal investigator and the study coordinator. The report questions also whether Markingson was actually eligible for the CAF study. In addition, it faulted the halfway house staff for calling the program director rather than 911 when Markingsons 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