Category: Legal Threats

Failed whistleblower suit is a reminder that public universities are hard to sue

The University of Louisville’s Kornhauser Library via Wikimedia

Suing the government is difficult. And because public universities often function as an arm of state governments, that makes them hard to sue, too, a fact reiterated in a whistleblower case decided earlier this year.

In January, Judge David Hale of the Western District of Kentucky dismissed a lawsuit filed by former employees of the University of Louisville alleging that the institution fraudulently secured millions in federal grants due to a biosafety program that had fallen out of compliance with federal regulations. The biosafety officers also alleged that they were wrongly terminated for pointing out the compliance issues to Louisville, the National Institutes of Health, and even the Federal Bureau of Investigation. But the judge’s order came before those issues would even be considered.

According to the suit, filed in 2015, plaintiffs Karen Brinkley and Carol Whetstone alleged that the university, seven principal investigators, and an administrator had worked to wrongly obtain as much as $165 million from the National Institutes of Health. Around 2008, according to the plaintiffs, the defendants began allowing persistent biosafety issues — improper training and biological material disposal methods, protocols with expired institutional biosafety committee approvals, performance of research tasks in labs with insufficient biosafety ratings — to taint their applications for multiple federal grants (the complaint didn’t specify how many). Brinkley and Whetstone filed suit under the False Claims Act (FCA), which allows individuals to recover money on behalf of the U.S. government; allegedly, the grants were improperly obtained because the defendants had certified that they were in compliance with NIH’s biosafety requirements, even though they knew that they were not. Continue reading Failed whistleblower suit is a reminder that public universities are hard to sue

“An evolving and inconsistent tale:” Biochemist barred from federal grants for five years

In 2013, Frank Sauer blamed “visual distortion” for problems with the images in his papers and grant applications. That explanation gave way to the production in 2016 of a mysterious and ominous letter from an unnamed researcher claiming that they’d sabotaged Sauer’s work in a plot of revenge. Soon after, Sauer was claiming that a mysterious cabal was plotting to undermine the output of German researchers.

Whatever Sauer was selling, Leslie Rogall, an administrative law judge for the U.S. Department of Health and Human Services’ Departmental Appeals Board, wasn’t buying.

Rogall has concluded that the Office of Research Integrity acted properly in 2016 when it found Sauer — a former faculty member in biochemistry at the University of California, Riverside — guilty of misconduct. His offense: doctoring images in three published papers and seven grant applications to the National Institutes of Health.

In a May 22 decision first posted today, she writes (italics hers):

Continue reading “An evolving and inconsistent tale:” Biochemist barred from federal grants for five years

NY court: Cornell faces being held in contempt after denying physics professor tenure (twice)

Mukund Vengalattore

Cornell University and a high-powered dean at the school face being held in contempt of court in a case stemming from their decision to deny tenure to a physics professor.

Assistant professor Mukund Vengalattore told Retraction Watch he believes the school and the dean are violating a judge’s order instructing them to completely redo his tenure review process. Neither the university nor the dean has done any of the things the judge asked them to do, and even suspended his paycheck for the first two weeks of June, he said.

In 2014 Gretchen Ritter, Dean of the College of Arts and Sciences, denied Vengalattore tenure, citing a weak publication record, an inability to accept advice from colleagues, and a poor group dynamic fostered in his lab [Exhibit C in this court document]. But on appeal, a faculty panel found that the review process had been affected by sexual misconduct allegations from a former graduate student.  Vengalattore told Retraction Watch the allegations were “completely false.”

However, last year, Ritter again denied Vengalattore tenure, a decision backed by Cornell’s provost, Michael Kotlikoff. As first reported by Inside Higher Ed in May, Vengalattore then took Cornell and Ritter to court. Judge Richard Rich ruled on that case in November, finding that the alleged misconduct “tainted” the process and that the school had deviated from its established procedures in a “necessary” but “secretive” way, denying Vengalattore due process:

Continue reading NY court: Cornell faces being held in contempt after denying physics professor tenure (twice)

Following outcry, American Psychological Association “refocuses” takedown notice program

After a deluge of protests from researchers who received notices from the American Psychological Association (APA) to remove papers from their websites, the publisher announced it will shift its focus to commercial sites.

Earlier this week, researchers took to Twitter to lament the takedown notices they had received from the APA; one posted the letter in place of his paper. The letters were part of a pilot program by the APA to remove “unauthorized online postings of APA journal articles.”

That program has now taken a bit of a turn. In a release yesterday, the APA says that:

Continue reading Following outcry, American Psychological Association “refocuses” takedown notice program

Career derailed, ex-prof to sue Montana State for wrongful termination

Ryan Jones. Credit: Kelly Gorham/MSU

A former assistant professor at Montana State University who was fired last year is planning to sue the school for defamation, wrongful termination, and violation of due process.

Ryan Jones, a microbiologist, was forced to leave his tenure-track position — which was technically a one-year contract, so could be terminated before he had the opportunity to apply for tenure. The case highlights the insecurity of non-tenured academic jobs, an issue the planned suit is tackling head on. In addition to monetary damages, the lawsuit seeks to void all one-year contracts at Montana State, which can be terminated for any reason — a system that exists elsewhere in academia.

Jones told Retraction Watch that he believes he was forced out based on what he alleges are cooked-up charges of research misconduct — specifically, he brought back insect samples from the Amazon but didn’t fill out a permit:

Continue reading Career derailed, ex-prof to sue Montana State for wrongful termination

Researchers protest publisher’s orders to remove papers from their websites

Researchers are protesting orders from the American Psychological Association to remove links to papers from their websites.

Multiple researchers took to Twitter recently to lament the takedown notices they’ve received from the APA; one posted the letter in place of the link to his paper. According to the APA, the letters are part of a pilot program to “monitor and seek removal of unauthorized online postings of APA journal articles.”

The notices cite misuse of the Digital Millennium Copyright Act (DMCA), which enables internet users to protect their own content. But it can be heavily abused by people who file false copyright infringement claims to remove content they don’t like from the internet. (We have even been the target of such attempts.)

According to the letter posted by Nathaniel Daw at Princeton University, the APA says:

Continue reading Researchers protest publisher’s orders to remove papers from their websites

Journal retracts Ohio State CrossFit study at center of lawsuits

The fallout continues for a study conducted at a local CrossFit gym by researchers at The Ohio State University. First it was corrected, now it’s been retracted, and it continues to be the basis of litigation against both the authors and the publisher.

Editors at the Journal of Strength and Conditioning Research have decided to pull the 2013 study after learning that the research protocol had not been approved by Ohio State’s institutional review board (IRB).

Over the past few years, the study has spawned several lawsuits, including a defamation suit brought by gym owner Mitch Potterf against Ohio State that landed him a six-figure settlement, as well as an ongoing suit by Potterf against the National Strength and Conditioning Association (NSCA, which publishes the journal). The CrossFit brand has also sued the NSCA. [See update at end of post for more on that case.]

An NSCA statement issued May 30 describes what happened: Continue reading Journal retracts Ohio State CrossFit study at center of lawsuits

Would-be Johns Hopkins whistleblower loses appeal in case involving Nature retraction

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.

Continue reading Would-be Johns Hopkins whistleblower loses appeal in case involving Nature retraction

Ex-PhD candidate sues advisor, school: Colorado prof “poisoned the well” after research dispute

A former University of Colorado Boulder graduate student is suing his ex-advisor for defamation after being shooed out midway through his doctoral program.

Robert Roscow says he had to leave CU Boulder’s department of Ecology and Evolutionary Biology (EBIO) in the fall of 2016 with only a master’s degree after fish evolution researcher David Stock dropped him as a student. Their relationship deteriorated following a dispute about whether another student should perform experiments Roscow considered to be essential to his dissertation.

Once dropped, Roscow was offered the chance to find another advisor, but never did. In his complaint, filed April 25 in Boulder County District Court, Roscow claims he has evidence that Stock “poisoned the well” by badmouthing him in email and in person to other professors, ultimately preventing Roscow from completing his degree.

As first reported by BusinessDen, Roscow is also suing CU Boulder for a breach of contract and for failing to “provide [him] with the reasonable opportunity to pursue his PhD,” among other allegations. 

CU Boulder declined to elaborate on the case. Chief Spokesperson Ryan Huff told us:

Continue reading Ex-PhD candidate sues advisor, school: Colorado prof “poisoned the well” after research dispute

Could bogus scientific results be considered false advertising?

Could a scientific paper ever be considered an advertisement?

That was the question posed to a Tokyo court, in a criminal case where prosecutors argued — at the behest of Japan’s ministry of health — that a peer-reviewed paper containing faked data should be considered “fraudulent or exaggerated advertising” under that country’s laws.

In that case, however, the argument didn’t work. In March, the court decided that a fraudulent paper was not false advertising, allowing a pharmaceutical researcher at a Novartis subsidiary to escape jail time. The decision also cleared Novartis of charges and helped the company avoid a ¥4 million ($35,373 USD) fine.

According to an article in The Japan Times, the presiding judge Yasuo Tsujikawa said:

Continue reading Could bogus scientific results be considered false advertising?