Retraction Watch

Tracking retractions as a window into the scientific process

Chronic fatigue syndrome-XMRV researcher scheduled to head to court today, alleging conspiracy

without comments

Judy Mikovits

Judy Mikovits

Chronic fatigue syndrome researcher Judy Mikovits was scheduled to head is heading to court today, where a California judge will would decide whether or not to dismiss her lawsuit against fourteen people and two Nevada corporations.

(Note: This story has been updated. See below.)

Among the defendants: the Whittemore Peterson Institute  in Reno, Nevada where Mikovits used to work; the institute’s cofounders, Annette and Harvey Whittemore; a colleague with whom she shares a retracted Science paper; and several members of California and Nevada law enforcement.

The complaint does not check the box next to “Money Demanded in Complaint”, but also lists $750,000 in the associated field:

Screen Shot 2015-11-16 at 11.28.23 AM

In 2006, Mikovits began working for the Whittmores at the WPI; her job was to search for a biological cause of chronic fatigue, a vexing, mysterious disease afflicting their daughter. Part of her research focused on a potential link between chronic fatigue syndrome and a virus known as XMRV. But after others — and Mikovits herself — couldn’t replicate results published in Science and the paper was retracted, she was fired from her position in 2011. Mikovits alleges that she was fired for acting as a whistleblower, exposing her co-author’s wrongdoings.

The complaint, which Mikovits filed last year, alleges that the defendants were part of a collusion against her, accusing them of:

false imprisonment, deliberate prevention of due process and defamation, all based on facially-meritless criminal and civil charges, and a facially-defective alleged warrant, which were fabricated to detain, defame, and thwart PLANTIFF as a whistleblower, in a substantial case of Federal research grant fraud.

This isn’t the first time both sides have been legally tangled. After Mikovits was fired from the WPI, she had a research assistant take a Mac laptop and a dozen or so research notebooks for her. The institute sued her, and law enforcement in Washoe County, Nevada issued an out of county warrant for her arrest, since Mikovits had gone to California. Police there took her to Ventura County’s Todd Road Jail in Santa Paula. (The charges were later dropped.)

This summer, we learned of a different suit that she had filed last year against the WPI. In that complaint, filed November 24th 2014, Mikovits revealed that she believed she had been fired for blowing the whistle on her former colleague, Vincent Lombardi. She thought he

had been using federally-funded research materials for use in research for a for-profit entity owned by the Whittemores, VIPDx [Viral Immune Pathology Diagnostics].

That suit was dismissed on technical grounds, after Mikovits failed to serve the defendant within 120 days.

This newly uncovered suit was filed a week before, on November 17th, 2014. In the court hearing today, a judge will decide if it, too, should be dismissed.

In addition to some of the statements in the other complaint — Lombardi’s alleged misuse of grant money, how she was fired unjustly and then locked out of her lab — this newly uncovered suit alleges that several people were involved in her firing.

She claims that in 2011, she learned that a test procedure developed to detect “a hypothesized CFS retrovirus” had been “compromised,” as the cell samples had been contaminated.

Defendant LOMBARDI, a 2007 Ph.D. graduate, was responsible for the procedures leading to the contamination.

That finding, Mikovits alleges, invalidated a commercial diagnostic test that Lombardi had recently begun to market, along with a private company set up by the Whittemores, VIPDx (now known as UNEVX). She was one of many co-authors on a Science paper that suggested current assays don’t consistently detect XMRV from blood samples. (In the now-retracted Science paper, first and last authors Lombardi and Mikovits, respectively, claimed to have found XMRV in nearly 70% of blood samples from CFS patients, versus less than 4% of healthy controls.)

Then, after Mikovits learned Lombardi had allegedly been spending most of his time on VIPDx, even though he was being partially supported by an NIH grant, she announced she planned to terminate him from the NIH project. Instead, weeks later, Mikovits was terminated by Annette Whittemore. In today’s suit, Mikovits alleges Whittemore didn’t act alone:

On information and belief, MRS. WHITTEMORE actively consulted with other WHITTEMORE PRINCIPALS and defendants….

It details the arrest from Mikovits’s perspective:

On November 18, 2011, DETECTIVE [JAIME] McGUIRE appeared at Plaintiff’s residence, misidentified herself as a patient of PLAINTIFF, speaking through the front door with her supervisor CHIEF [ADAM] GARCIA and three unidentified VENTURA  DEPUTIES concealed, and then when PLAINTIFF indicated that she did not recognize her, forced entry into PLAINTIFF’s front door, and handcuffed her, arrested her and detained her.

Mikovits alleges that the police did not follow several steps of the protocol of arresting someone. According court documents she filed, there were no fingerprints taken, no mugshot snapped, no phone calls allowed, and when she asked for a warrant, she

was shown an otherwise-blank yellow piece of paper with her name and residential address and a rubber stamp judge’s approval imprint from the Ventura Superior Court, listing no cause, listing no search scope or items sought, and indicating no arrest authority.

In August, lawyers for some of the defendants filed motions to dismiss the case. The reasons include technical grounds, as noted in a motion to dismiss filed by the lawyer for the Whittemores, the WPI, UNEVX, and Lombardi. It argues

that the statute of limitations has long since run with regard to each and every factual allegation underlying the causes of action, save one unrelated allegation regarding a bankruptcy proceeding.

That motion also notes that Mikovits

fails to allege a conspiracy sufficient to subject the Whittemore Defendants, none of whom are State actors, to liability under 42 U.S.C. §1983.

The motion to dismiss filed by former Nevada DA Richard Gammick’s lawyer alleges that Mikovits doesn’t have sufficient facts to back up her statements. The motion

moves this Court to dismiss the First Amended Complaint (92)1 based upon its failure to state a claim upon which relief can be granted.

A lawyer for a few members of law enforcement also filed a motion to dismiss, and provided documents to show that there had been a procedure followed for Mikovits’s arrest, including  a criminal complaint filed prior to Mikovits’s arrest, as well as an affidavit in support of both that complaint and a warrant.

In October, Mikovits’s lawyers — who were not listed on the original complaint — filed a memorandum in opposition to the motions to dismiss. That document outlines her case again, alleging “violations of the plaintiff’s civil rights, defamation, emotional harm, fraud and conspiracy.”
The document paints a vivid picture of the Whittmores, the wealthy couple behind WPI:

Harvey Whittemore was an attorney and a lobbyist for the gaming industry, as well as the tobacco and alcohol industries in Nevada. These clients gave him the reputation of “one of the most powerful men in Nevada.” Mr. Whittemore was known as an aggressive and highly respected, yet feared member of the legal community in Reno.

Whittemore is currently serving time for making illegal campaign contributions to Senator Harry Reid. The memorandum from Mikovits’s lawyers alleges that she was “one of [his] unwitting conduits” in an effort to raise money for a senator:

According to various sources including the Justice Department, Mr. Whittemore allegedly caused an employee to transmit $138,000 in contributions to Senator Harry Reid’s campaign committee, the vast majority of which were conduit contributions that Whittemore had personally funded through various employees and family members as his conduit, in order to satisfy his pledge. Dr. Mikovits was one of the unwitting conduits for Mr. Whittemore’s scheme, which he assured her, as a member of the Bar of the State of Nevada, was totally legal.

Back to Mikovits’s arrest: The memorandum alleges that there was no mug shot, because a judge declined to provide a copy to a reporter at Science magazine, Jon Cohen, who had been writing about the case.

At the time the judge in Ventura County ordered her release on bail, he also denied the opportunity to a reporter by the name of Jon Cohen from Science Magazine, to attain a mug shot or photograph of Dr. Mikovits. Cohen argued that a message needed to be sent to scientists so this doesn’t happen again and urged the judge to allow him access to the mug shot so he could publish it in Science. The fact that a judge would deny access to a mug shot was a signal that there was some irregularity in the procedure. This request was denied if for no other reason than the fact that there was no mug shot because Dr. Mikovits was never properly charged and never properly processed before being held in a jail cell for five days by Sheriff Geoff Dean.

The introduction concludes:

To conclude this portion of the tragic recount, Dr. Mikovits has very recently been forced to liquidate all of her property and to turn over the proceeds to the WPI, by order of the US Bankruptcy Court, in March of 2014. She is unable to participate in federally funded studies as a scientist, and her harm is continuing to this day, and will continue until she has a chance to clear her name.

The lawyer for defendant Richard Gammick filed a response to the memorandum:

The remaining allegations against Gammick are that his actions were in furtherance a conspiracy. It is alleged that he “controlled” activities of law enforcement officers. Gammick allegedly “caused” Plaintiff to be arrested without a warrant.

Earlier this month, the lawyer for defendant Sheriff Geoff Dean filed a declaration from a potential witness refuting several claims Mikovits made about her arrest. The witness, a lawyer, states that he sent Mikovits’s counsel

  • “a certified copy of Plaintiff’s booking photograph,”
  • “a certified copy of the Ventura County Fingerprint Card reflecting the fingerprints taken of Plaintiff at the time of her booking,”
  • and “a CD with certified copies of the audio recordings of Plaintiff’s jail communications.”

We called Mikovits, who told us:

I can give you my lawyers’ numbers and you can talk to them.

We reached out to her lawyers, and to those of the defendants. We will continue to follow this case.

Mikovits recently co-authored a book about her story with Kent Heckenlively, who has repeatedly questioned the safety of vaccines.

Update 11/17/15 1:58 p.m. eastern: We spoke a lawyer for Mikovits today, Robert J. Liskey, who told us the case was taken “off the calendar.” He didn’t have any additional information:

That’s all I have, thank you.

Like Retraction Watch? Consider making a tax-deductible contribution to support our growth. You can also follow us on Twitter, like us on Facebook, add us to your RSS reader, and sign up on our homepage for an email every time there’s a new post. Click here to review our Comments Policy.

Written by Shannon Palus

November 16th, 2015 at 11:45 am

  • Post a comment

    Threaded commenting powered by interconnect/it code.