A former researcher at Johns Hopkins who voiced concerns about a now-retracted paper in Nature has lost another bid for whistleblower protection.
Daniel Yuan, a longtime statistician for former Hopkins yeast geneticist Jef Boeke, was dismissed in 2011, after he’d spent years raising concerns about research coming out of the lab. Yuan’s criticisms, which continued after he stopped working for Boeke, peaked in 2012 after Boeke and former labmate Yu-li Lin published a paper in Nature. Later that year, Lin was found dead in his lab, a suspected suicide. In 2013, the paper was retracted, citing an inability to reproduce the main conclusions.
Since 2013, Yuan has pursued a wrongful termination lawsuit, claiming that federal regulations surrounding scientific misconduct afforded him protection from retaliation.
In late March, Maryland’s highest court ruled against Yuan, saying that those misconduct regulations are “too vague” to offer cover to employees claiming whistleblower protection. According to lawyers we consulted, the decision could make it harder for would-be whistleblowers to fight retaliation, while also giving institutions more leeway to handle these issues on their own.
Maryland is an “at will” employment state, meaning that unless a contract includes specific language, an employer can fire any employee at any time and for any reason. Most states recognize “at-will” employment, but, like Maryland, they’ve carved out certain “public policy exceptions” to such rules.
The law firm Ropes & Gray explained in a blog post that the court decided blowing the whistle on scientific misconduct doesn’t count as one of those exceptions — an outcome it called “significant:”
Maryland courts recognize a “public policy” exception to the at-will employment rule when the reason for termination contravenes a clear mandate of public policy (e.g., being terminated for refusing to engage in unlawful conduct).
The latest opinion, written by Judge Clayton Greene, noted that prior cases had “set forth limitations on a court’s ability to articulate a new public policy mandate” to establish wrongful termination. In the end, the court declined to create a new exception for reporting scientific misconduct:
We hold that we do not recognize the federal regulations prohibiting research misconduct as a clear public policy to support a tort claim for wrongful termination of employment…because the public policy he is alleging is not clearly discernible, as we cannot determine if a research misconduct violation occurred, we do not recognize the policy to establish his claim for wrongful termination.
The opinion also noted that simply reporting a violation of a state or federal law “is alone insufficient to establish a valid wrongful discharge claim based on public policy.”
The judges didn’t seem convinced that scientific misconduct had occurred. And even if it had, they said, they’d be at a loss as to what to do about it. The Ropes & Gray post noted:
The court concluded that the research misconduct regulations lack clarity as to what constitutes a violation, leaving the court “at a loss to determine what the contours of a wrongful termination claim based on reporting research misconduct would be.”
The opinion added that courts should defer to universities on the matter of misconduct, despite the potential for conflict of interest:
The scientific institution, not this Court, is in the best position and has the expertise to determine whether the research results of its employees amounted to impermissible research misconduct or permissible error or differences of opinion.
Yuan told us:
That’s a real invitation to abuse. The courts seem to argue that the details of deciding what is research misconduct are too challenging for the courts to take on.
I’ve always thought that’s a misplaced concern for two reasons. One, there’s lots of kinds of misconduct that are technical, like financial misconduct, which courts deal with all the time.Two, the issue is not whether the science is true or not, but whether there’s a protected process under which people can make reports in good faith without fearing for their livelihood.
A Johns Hopkins spokesperson declined to comment on the specifics of the case:
We are grateful for the thoughtfulness and care with which Maryland’s highest court considered this issue.
John Thomas, an attorney who represents whistleblowers at the Roanoke, Virginia firm Gentry Locke, said that states with an at-will employment doctrine — like Virginia and Maryland — need to set high bars for public policy exceptions:
If you set the exception bar too low, then anyone will say they were fired for that reason.
Yuan simply couldn’t clear the bar, which may serve as a “wake-up call” that anti-retaliation provisions are not strong enough for some who would report scientific misconduct, Thomas told us:
As somebody who represents whistleblowers, it’s troubling that the highest court in the state could look at the regulations and walk away thinking they’re too vague.
Yuan’s saga, which started in the late 2000s, garnered significant media attention due to Lin’s 2012 suicide. Trained as a pediatrician, Yuan joined Boeke’s lab in 2001 after deciding to abandon the clinic for the lab. At the time, the lab was developing new technology to explore the yeast genome. Dubbed SLAM, it was touted as a new way to find interactions between genes in yeast. Cancer researchers have been particularly interested in these so-called “gene-gene” interactions, where the mutations might not be scientifically notable on their own, but are when taken together. One type of interaction is known as synthetic lethality, where normally harmless mutations become lethal when teamed up.
Yuan told us he initially found the work exciting, but after several years he became concerned with the data being generated by this new technology. In many cases, the data just didn’t make sense: interactions between the same two genes would show up as lethal to the cell in one data set, but nonlethal to the cell in another. He told us:
The project never got started in the way it was supposed to. It was supposed to generate 5,0000 synthetic lethality data sets. There were maybe 700 after three years and none of it was interpretable. It never yielded anything actionable.
Despite Yuan’s warnings, Boeke and Lin were planning to extend the method to human genes.
According to a 2013 Washington Post story:
At one point, when he was still at the Boeke lab at Hopkins, Lin asked Yuan to help analyze the data that would become the basis for the Nature paper, Yuan says. Yuan said he declined to get involved because he thought the methodology still had deep flaws.
Interactions between Lin and Yuan at the lab were few, Yuan said, and at any rate, Yuan had other things to worry about. He was slowly being forced out. He was demoted in 2011 from research associate to an entry-level position.
Yuan also got into trouble after he submitted a paper without asking Boeke if he wanted co-authorship.
These were just a few of the specifics that the judges deemed insufficient, when taken together, to rule in favor of Yuan, according to Thomas. “It was so muddled [Yuan] wasn’t able to draw a really clear connection” between being fired and reporting misconduct, he said.
The court noted that Yuan hadn’t followed the letter of Johns Hopkins’s misconduct reporting rules — which require notifying the department head, not the lab head, as Yuan had done. It also determined his contract had “simply expired.”
Yuan disagrees. He told Retraction Watch that he thought his freeze-out and subsequent demotion constituted a “constructed discharge,” where an employer creates an unendurable situation for an employee — in effect, firing them. (We asked Hopkins whether Yuan had been an an at-will employee prior to being demoted, but a spokesperson said, “We do not discuss HR matters publicly.”)
Ropes & Gray attorney Mark Barnes told us:
I think this case makes it somewhat more difficult for persons making accusations of research misconduct to use those allegations to bolster any associated claims of workplace retaliation or discrimination. But most importantly, the court ruling suggests that courts will be very reluctant to intervene in institutional research misconduct proceedings.
Given the setback in Maryland’s highest court, Yuan’s only remaining option is to try and get the U.S. Supreme Court to hear his case, but he said he’s “not going there:”
Formally, this is over.
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, sign up on our homepage for an email every time there’s a new post, or subscribe to our daily digest. Click here to review our Comments Policy. For a sneak peek at what we’re working on, click here.