Scientist whistleblower failed to prove knowledge and materiality of fraud, retaliation

by Ben Vernia | October 25th, 2010

New Jersey District Judge Dennis Cavanaugh issued an order on October 18, dismissing the whistleblower’s suitU.S. ex rel. Hill v. Univ. of Med. & Dentistry of New Jersey. In the case, one scientist accused two others and the university which employed all three, of submitting false data in an NIH grant application. The court found that her complaint was lacking on different elements against each of the defendant scientists, and so the university had no vicarious liability.

One of the defendant scientists was the primary researcher, and the whistleblower accused him of fabricating his data. The other was the researcher’s supervisor, whom the whistleblower had argued should have known that the data was fraudulent. Judge Cavanaugh focused on different elements of the case against each man.

For the supervisor, he concluded that proof of scienter was lacking. First, he noted that the plaintiff’s lead assertion – that eyewitnesses had observed the falsification – was, in fact, merely her word against the researcher’s, and that this was insufficient to put him on notice. Second, her allegation that the data was incapable of replication did not give rise to an inference of fraud. Third, the court noted that other evidence she offered for proof of scienter either did not exist at the time of the alleged submissions, or arose during the course of three separate reviews of her allegations. Although the university had submitted applications for further funding, Judge Cavanaugh found that intervening reviews of the allegations in fact disproved the supervisor’s knowledge of false statements.

As for the researcher, the court focused on materiality, noting that the institution’s definition of research misconduct excluded differences in interpretation of data, or judgments about data and experimental design. Moreover, the court credited the findings of a review panel, which had not only unanimously recommended no further proceedings, it had expressed concern with the actions of the plaintiff and a fellow scientist who had been hired, in part, to attempt to replicate the researcher’s work (but was unable to do so).

Finally, the court dismissed the whistleblower’s retaliation claim, noting that she continued to be employed at the university at the same position and salary, and that although she had been locked out of one laboratory, the university had a plausible explanation: that this was necessary to prevent her and the defendant scientists from accessing the facility during the review of her allegations.

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