Retraction Watch

Tracking retractions as a window into the scientific process

“Existence and motive to retaliate:” Judge hands victory to whistleblower scientist

with 21 comments

A Michigan researcher whose accusations of misconduct against his former employers led to years of legal battles has won a judge’s ruling that could earn him one of his jobs back.

Over the past few years, Christian Kreipke has been embroiled in legal battles with the Detroit VA Medical Center and Wayne State University, where he held a dual appointment. In 2010, Kreipke accused Wayne State of misusing federal funds — then was fired in 2012 when the university brought its own case of research misconduct against him. In 2013, the VA followed suit. In 2014, Kreipke lost a whistleblower lawsuit against the university. As a result of the Wayne State investigation, journals have retracted five of his papers, some as recently as last month.

In March, a judge ordered the Department of Veterans Affairs to reinstate Kreipke’s position, among other requests. 

Throughout this process, Kreipke has repeatedly denied committing misconduct, saying that the allegations were an attempt to defang his whistleblower allegations. The administrative judge with the U.S. Merit Systems Protection Board, which hears these types of cases brought by Federal employees, agreed with Kreipke in his lawsuit against the Detroit VA. According to government documents, the judge awarded Kreipke’s request for “corrective action” against the hospital, which includes reinstating his position there, restoring an existing grant and, more generally, reversing the decision to bar him from receiving VA funds for 10 years.

The 52-page decision includes statements from Kreipke blaming other people for the problems with figure duplication that affected his papers, and saying that he corrected them as soon as he was alerted to issues:

It is undisputed that some incorrect data used in “figures” were essentially copied and pasted into a 2009 VA Poster, a 2010 VA Poster, the 2010 and 2011 neurological articles, and in VA Merit Award application(s). The appellant [Kreipke] acknowledged the inaccuracies involved staining, western blots, and Fluoro-Jade. The appellant stated he moved quickly to correct the inaccuracies when he learned of the issues.

According to Kreipke, two of the papers mentioned in the decision were among the five retracted papers.

The VA may also be ordered to pay Kreipke damages in lost wages, money owed under his  grants from the agency, and other expenses.

But, so far, Kreipke noted:

…VA has refused to comply with the Judge’s order for interim relief which includes restoring my reputation and position.

The deputy chief counsel at the Detroit VA told us that the agency has appealed the decision, but would not comment on active litigation.

According to the decision, Kreipke was notified that the U.S. Office of Research Integrity was making findings of research misconduct based in part on the report by Wayne State; the Department of Health and Human Services, which includes the ORI, was also recommending a 10-year disbarment. The recommended decision has been appealed.

This is a big legal win for Kreipke, who has maintained for years that he was fired from Wayne State and the VA in retaliation for blowing the whistle on alleged grant fraud committed by both institutions. Kreipke told us he was pleased with the ruling:

Accusing me of misconduct potentially calls into question my integrity and potentially mitigates my effectiveness in exposing the fraud (i.e., no one would believe someone who makes up data). On top of this, University employees have routinely tried to characterize my whistleblower claim as a reaction to the misconduct claims against me. Thankfully, the Judge recognized that my whistleblowing prompted the spurious charges of misconduct made against me and not the other way around.

As we’ve reported, in the whistleblower lawsuit against WSU, Kreipke claimed that the institution was “involved in a conspiracy,” where it stole almost $170 million from the U.S. government in fraudulent grant proposals. In 2014, a judge dismissed the case against WSU. Kreipke’s attorney, Shereef Akeel, petitioned the decision, which the Supreme Court denied last year.

Paul Thaler, an attorney with more than 25 years of experience representing scientists involved in misconduct proceedings, explained that the judge dismissed the WSU lawsuit largely because there was not enough evidence for the case to move forward to trial based on the allegations in the complaint.

With regards to the most recent ruling, Thaler said:

What is most interesting is that this is a good example for employers to see that even when an underlying whistleblower claim is kicked out by a court, if the employer takes adverse action against an employee for bringing the claim in the first place, the employer can be held responsible for resulting damages suffered by the employee.

Richard Goldstein, who represented the scientist in Bois v. HHS, the first case to overturn a funding ban by the ORI, told us:

What’s rare and very interesting about this case (and somewhat heartening from the perspective of a lawyer who represents scientists in positions similar to Dr. Kreipke), is that an independent federal administrative law judge was willing to look closely at the VA’s AIB decision and found it was not very convincing…What will be very interesting will be to see if they try to use this decision to attack (and try to reverse) the VA and [Wayne State] misconduct findings and to get ORI to reverse or modify its proposed misconduct sanction.

Kreipke told us he may take further action against Wayne State.

In the latest decision, after reviewing the evidence, the judge concluded that:

…the agency failed to show the appellant intended to deceive or mislead the agency; and (2) failed to show the appellant intended to defraud the agency for his own private material gain. Parker, 122 M.S.P.R. at ¶ 10 . Thus, the agency’s evidence in support of its findings and recommendations against the appellant, i.e. long standing falsification and “small” likelihood of rehabilitation were not strong or clear and did not meet the Boards definition of falsification as described above.

And that:

The existence and motive to retaliate against the appellant was shown.

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Written by Victoria Stern

April 24th, 2017 at 3:01 pm

Comments
  • rfg April 24, 2017 at 3:26 pm

    This is an extremely important case.

    “In 2010, Kreipke accused Wayne State of misusing federal funds — then was fired in 2012 when the university brought its own case of research misconduct against him. In 2013, the VA followed suit. In 2014, Kreipke lost a whistleblower lawsuit against the university. As a result of the Wayne State investigation, journals have retracted five of his papers, some as recently as last month…According to the decision, Kreipke was notified that the U.S. Office of Research Integrity was making findings of research misconduct based in part on the report by Wayne State; the Department of Health and Human Services, which includes the ORI, was also recommending a 10-year disbarment. The recommended decision has been appealed.”

    Whistleblowers should expect to get blowback. This retaliation often comes in the form of accusations of misconduct, which serves the purpose of disqualifying the whistleblower.

    I thought my own whistleblower experience has been bad, but this is potentially the worst case of retaliation I’ve ever heard about.

    Will look forward to the outcome of all the appeals, which are likely to take years.

  • aceil April 24, 2017 at 3:38 pm

    Excellent news, finally. Can get some rest!

    And some comfort for victimized employees.

  • Lawrence Winkler April 25, 2017 at 2:14 am

    According to reports at the time, his staff were also terminated, including dismissal from their PhD programs. The case is more far reaching than this article suggests.

  • fernandopessoa April 25, 2017 at 4:05 am

    Wayne State has a mixed record. It was happy enough to unmask an anonymous whistleblower.

    http://retractionwatch.com/2015/04/13/lawsuit-involving-pubpeer-unmasks-commenter-as-pseudonymous-whistleblower-clare-francis/

    “But in a supplemental brief filed on Friday, April 9, Sarkar attorney Nicholas Roumel reveals that Wayne State provided the email exchanges quoted in the comment in question, and that they were between the pseudonymous Clare Francis and Julie H. Miller, secretary to Wayne State’s Board of Governors.”

    http://retractionwatch.com/2016/12/07/pubpeer-wins-appeal-court-ruling-unmask-commenters/

    In a new ruling, a trio of judges on the Michigan Court of Appeals reversed a 2015 decision mandating the site reveal the identity of anonymous commenters after a scientist sued them, claiming they cost him a job offer.

    The judges stated that Fazlul Sarkar, the scientist suing the commenters, can continue pursuing a defamation case, but:

    …we hold that Dr. Sarkar is not entitled to unmask the identities of any speakers on pubpeer.com with respect to those claims due to the anonymity protections afforded by the First Amendment.

  • Paul Brookes April 25, 2017 at 8:23 am

    Wayne State was also home to Teresita Briones… http://retractionwatch.com/2015/04/07/wayne-state-neuroscientist-fudged-images-in-five-papers/

    What I find interesting about this case is the lack of detail on any alternative explanation. On the one hand, it does appear the two institutions may have acted punitively in firing Kreipke because of his allegations of financial misdeeds. On the other hand, there’s the small issue of 5 papers being retracted for manipulated data. Somebody must have manipulated the data, and if it wasn’t Kreipke, then who?

    In this article on RW (http://retractionwatch.com/2017/03/02/researcher-lost-whistleblower-lawsuit-logs-4-retractions/) Kreipke’s lawyer claims the first retraction was “retaliatory move from Wayne State because of [the] lawsuit”.

    I find that hard to believe… how exactly does an institution enforce a retraction, without factual evidence of misconduct? As we know from these pages, journals tend to err on the side of NOT retracting, so I find it unlikely that a journal would simply do the bidding of Wayne State upon demand without being presented with good evidence.

    Regarding the 4 other retractions, the lawyer states… “Dr. [Kreipke] has categorically denied [that] he ever created [those] images as that was not even his responsibility, and he was not even the sole author of the articles that are being retracted”. Again then, who DID create the questioned images? Let’s hear an alternative explanation for how these images came into existence and who was responsible? It’s not that difficult.

    • Anonymous April 25, 2017 at 12:41 pm

      Once again Paul, spot on.

      I also find that too many details are lacking, and it is hard to know what’s really happening.

    • LadyProf April 25, 2017 at 3:21 pm

      That was my reaction as well. Journals and ORI don’t retract or issue sanctions without hard evidence. One wonders if Kreipke spilled the beans on Wayne State’s financial shenanigans only after he was coming under investigation rather than the other way around.

    • anon April 25, 2017 at 6:29 pm

      Kreipke was the first author of at least two of the papers, so I have trouble accepting his claim that he has no responsibility.

    • herr doktor bimler April 26, 2017 at 3:56 am

      There is one other co-author common to all five retracted papers.

  • rfg April 26, 2017 at 12:56 pm

    A ten-year disbarment is about an 8 on a scale of 10 (9 being disbarred for life and 10 being a jail term). So heavy smoke and I agree that the system would have had to fail Dr Kreipke badly to get to this point.

    • DJT April 26, 2017 at 3:04 pm

      I would like to understand the point you are making but I cannot. Can you clarify what you mean by your comment? Thank you.

  • rfg April 26, 2017 at 9:29 pm

    I was following up my original post where I stated that this case could be an extreme example of retaliation. The judge’s ruling suggests that it might be.

    I’m also agreeing with Prof Brookes. Both the university and ORI process not to mention the journals’ that potentially will result in for all intents and purposes the end of Dr Kreiple’s scientific career would have to be deeply flawed.

    Very complicated and the appeals to sort out the myriad possibilities will be interesting to follow but unlikely to be quick.

  • Kathy April 27, 2017 at 1:54 am

    This isn’t necessarily an either-or situation. In any university which is focused on ends rather than means, some researchers could choose to enact cultural norms by misusing funds, while others could choose to manipulate data. See http://retractionwatch.com/2017/04/20/ethical-ambiguity-scientific-misconduct-isnt-black-white/#more-49497

    In my experience, in organizations where questionable practices are accepted as normal, a classic prisoners’ dilemma (or mutually assured destruction) scenario is created in which the status quo is maintained. I.e., Jill “doesn’t see” John’s dodgy practices because she knows John is aware of her dodgy practices.

    Also, as a general observation:

    Even if the whistleblower has skeletons in his/her closet, these do not necessarily detract from the veracity of facts of the whistleblowing report.

    A whistleblower with skeletons can also experience reprisals for whistleblowing as much as any other whistleblower. Skeletons simply enable less creative reprisals.

  • Marie April 27, 2017 at 6:54 am

    1. Why are Wayne University, ORI and the Detroit VA medical centre tied together in this story? This is perplexing.
    2. Is this court decision available online?
    3. Do those of you who know about these things think anybody ever claims whistle blowing after the fact as a defense? I mean, if there’s evidence of misconduct on Dr. Kripke’s part, does that not diminish the retaliation issue? I just looked at pubpeer and there are 5 retractions and another comment on 2 more papers for Dr. Kripke’s research group.
    4. Lawrence Winkler: is the information about Dr. Kripke’s PhD students on Retractionwatch? I’d like to read about that.

  • Paul Brookes April 27, 2017 at 10:48 am

    Another oddity… virtually the entire issue of Neurol. Res. Volume 29, issue 4 (2007) is comprised of papers from Kreipke and PI Jose Rafols. 9 papers out of 11 total… http://www.tandfonline.com/toc/yner20/29/4?nav=tocList Rafols appears to be the guest editor of this issue, as evidenced by his introductory editorial.

    A quick look reveals that Figure 4 in Morgan et al. Neurol. Res., 2007, Vol 29, p375, appears to use some of the same images as Figure 2 from Kreipke et al. (Neurol. Res., 2007, Vol 29, p388. Notably these papers are not on the list of 4 retractions from Neurol. Res. listed here… http://retractionwatch.com/2017/03/02/researcher-lost-whistleblower-lawsuit-logs-4-retractions/

    Rafols appears to have another “special issue” of this journal in March 2011, and that’s where 2 of the 4 retractions appear. Again, Rafols and/or Kreipke are authors on 8 of the 16 papers in this issue. Nice work if you can get it!

    • Dana Rerio May 10, 2017 at 5:46 am

      I looked at the journal issue referenced by Dr. Brookes and fairly obvious problems occur in most of the articles published in that issue of Neurological Research. It begs the question as to how, these problems could pass a legitimate peer review process. Anyone else here think that’s a stretch?

  • Anonymous April 27, 2017 at 11:07 am

    Ditto the question above. Could RW please provide the links that substantiate the connection to ORI in this case? So far, alI have been able to find here relate to VA decisions. RW reports that there is an ongoing appeal of an ORI finding. If there were such an appeal, wouldn’t that be expected to now be public? (Otherwise, in a most general sense, a beautiful mechanism might exists to potentially forestall timely correction of the literature – almost indefinately.) Please cite to link to ORI.

    • Ivan Oransky April 27, 2017 at 11:13 am

      It’s a footnote in the judge’s order:

      “On February 10, 2016, the appellant was notified by the ORI in the U.S. Department of Health and Human Services (HHS) that it was making findings of research misconduct based upon the evidence and findings of an investigation report by WSU and “additional information obtained by ORI during its oversight review of the WSU investigation report.” AF, Tab 89. HHS also recommended disbarment for 10 years. The recommended decision was appealed.”

  • UteCarl April 28, 2017 at 6:49 am

    I don’t understand this case. Either it’s too complicated or there is much more to the story that isn’t made public.But, from RW and Dr. Brookes, he’s had 5 papers retracted, including a 2006 paper and several later ones and there’s a dodgy 2007 journal issue. He accused Wayne state of misusing federal funds in 2010, at least 4 years after the 2006 paper was published. It appears he went to court several times about Wayne State’s misuse of funds and appears to have lost each time. A previous RW story indicated he filed his case against Wayne State after he was terminated from his position. Only two things are clear to me—something is missing in this story and it’s likely not quite as represented.

  • UteCarl April 28, 2017 at 6:51 am

    Another thing just came to mind–if all of this involved Wayne State, why is this story about the VA hospital doing retaliation? Why not Wayne? I guess that’s what I’m having trouble with.

  • Dalton Trumpo October 16, 2017 at 10:43 am

    This case is interesting. That’s an understatement. So I just went back and re-read this story as I was looking to see if there were any updates. The following (quoted from the article) caught my eye:

    “A Michigan researcher whose accusations of misconduct against his former employers led to years of legal battles has won a judge’s ruling that could earn him one of his jobs back.”

    The way that’s written suggests that Kripke accused both Wayne State University and the VA hospital of misconduct. I haven’t read anywhere that he accused that VA hospital of anything. That’s one of the reasons this case was hard to evaluate–I couldn’t understand why he sued the VA.

    Am I mistaken? Did he accuse the VA of misconduct (in addition to Wayne State)?

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