Retraction Watch

Tracking retractions as a window into the scientific process

Court dismisses lawsuit by XMRV-chronic fatigue syndrome researcher

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mikovitsA California court has dismissed virologist Judy Mikovits’s lawsuit against fourteen people and two Nevada corporations, in part because she failed to submit necessary documents on time.

Mikovits is the author on a now-retracted Science paper suggesting a link between a virus known as XMRV and chronic fatigue syndrome, which has no known cause. She alleged that she was fired from the Whittemore-Peterson Institute for blowing the whistle on her former colleague’s activities, and that the defendants then colluded to imprison and defame her.

The court dismissed her case last Wednesday. According to the court minutes,

perhaps because of the convoluted nature of the alleged conspiracy, Plaintiff has failed to articulate a short and plain statement of her claim, establish jurisdiction over out-of-state defendants, or comply with the Court’s orders despite several opportunities to do so.

Further, Mikovits submitted her opposition to the defendants’ motion to dismiss too late:

In her untimely opposition, Plaintiff essentially concedes that there is no present basis for personal jurisdiction over the remaining defendants and requests that the Court forestall the present motions to allow discovery…

The court documents make for a good read — for instance, in one of the defendants’ documents, they argue:

Mikovits has failed to heed this Court’s warnings about how to go about prosecuting this case. Her complaints and her opposition papers continue to read like novels, replete with unsubstantiated factual and legal theories.

As baseball’s spring training approaches, we are again reminded that “three strikes and you’re out.” Mikovits has tried three times to plead around obvious problems like the statute of limitations and personal jurisdiction. And this time she has added insult to injury by failing to timely oppose the pending motions. Enough is enough.

This case has a long backstory. Mikovits filed the original complaint in 2014. The lawsuit was scheduled for November, then taken off the calendar. According to the minutes, the court advised Mikovits to revise the complaint to comply with a rule that says complaints must be factual, plausible, and concise; however, according to the court, the second complaint that Mikovits submitted was a “largely a recycled version” of the first.

Defendants, including the Whittemore-Peterson Institute, filed a motion to dismiss the second complaint on January 5th, which states six reasons to dismiss, including:

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; second, the Plaintiff 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.

Mikovits had 21 days to file an opposition to the motion. On February 8th, the defendants filed a notice of non-receipt, stating:

Plaintiff’s failure to oppose any of these motions is an admission that the motions are meritorious.

The next day, Mikovits filed an opposition to the motion to dismiss, saying that she needed the court to allow a discovery period so she could gather evidence to support her claims:

This entire battery of defensive motions presents an almost insurmountable obstacle to the plaintiff without the ability to put some evidence into the record through organized discovery. The Plaintiff has asked the Court in prior filings to allow discovery to avail herself of the facts needed to sustain her burden of moving forward…

The defendants then filed a reply to Mikovits’s opposition to their motion to dismiss, calling on the “three strikes and you’re out” baseball metaphor.

This is Mikovits’s second case to be dismissed, also because of tardiness — in the first, she failed to serve the defendant within 120 days.

After Mikovits was fired from her post at Whittemore Peterson Institute in Nevada, she was arrested in California and charged with a felony violation of California Penal Code section 1551.1, “Fugitive From Justice.”

We’ve reached out to Mikovits’s lawyers, and will update this post with anything else we learn.

Update, February 16th, 6:10 PM:

Mikovits’s lawyer sent us the following statement:

The fact that this particular Judge had a difficult time comprehending one of the most complex fact patterns I have encountered in my 33 years in practice should not be misconstrued as any claim that Dr. Mikovits had no claims. The misdeeds that she has endured and the incredibly efficient cover-up that has placed her career and her scientific contributions on hold will not endure the rest of time.
It is our intent to move for reconsideration and barring that, to appeal the ruling of the Court.  Dr. Mikovits has been wronged and is entitled to court-sanctioned discovery to allow her an opportunity to prove her case. She is making very large claims against very powerful people and it is not in the interest of science, medicine or democracy to foreclose her opportunity to gather the evidence she needs to prove her case. This is but one chapter in the story which is continuing.

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Written by Shannon Palus

February 16th, 2016 at 2:00 pm