Yuan v. Johns Hopkins University ( 2016 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 00600
September Term, 2014
DANIEL S. YUAN
v.
JOHNS HOPKINS UNIVERSITY
*Zarnoch,
Friedman,
Thieme, Raymond G., Jr.
(Retired, Specially Assigned),
JJ.
Opinion by Zarnoch, J.
Filed: April 27, 2016
* Zarnoch, Robert A., J., participated in the
conference of this case while an active member
of this Court; he participated in the adoption of
this opinion as a retired, specially assigned
member of this Court.
The key issue in this case is whether appellant Dr. Daniel S. Yuan has clearly
identified a state public policy mandate for his common law wrongful discharge claim for
damages against appellee Johns Hopkins University (JHU or Hopkins). The premise of
Yuan’s claim is that he was discharged for reporting “research misconduct”—reporting
protected from retaliation by 42 U.S.C. § 289b and 42 C.F.R. Part 93. For reasons more
fully set forth below, we conclude that the broad language and complex nature of these
federal provisions, their deference to institutions, such as Hopkins, for the prevention and
detection of research misconduct, and the difficult line they draw between scientific
errors and wrongdoing and between falsity and fraud, make this a poor State public
policy vehicle to carry a wrongful discharge action. Because the Circuit Court for
Baltimore City did not err in rejecting this claim and others advanced by Yuan, we
affirm.
FACTS AND PROCEEDINGS
Yuan’s 149-paragraph amended complaint sets forth a complicated tale of an
employee who refused to be ignored. The following represents an abridgment of Yuan’s
many allegations.
Board-certified in both General Pediatrics and Pediatric Gastroenterology, Yuan
was a researcher at the JHU School of Medicine. After clinical training and a research
stint at the National Institutes of Health (NIH), he joined the Pediatrics Faculty at JHU
School of Medicine. Having worked extensively in the field of yeast research since 1993,
he eventually joined the lab of Dr. Jef Boeke, a Professor in the Department of Molecular
Biology and Genetics, in 2001.
1
Boeke’s lab received most of its funding through the NIH. From February 2002
through June 2011, the NIH gave over $11.8 million to the lab for research on “SLAM,”
“an ambitious yeast genetics research project using a novel methodology.” 1 The NIH
also provided a $34 million grant to fund a separate project related to the SLAM research.
From July 2001, Yuan worked in Boeke’s lab, where his initial responsibility in the
SLAM project was to develop the computational infrastructure to manage the massive
datasets that SLAM would generate.
Yuan expressed to the team his concern that contaminating traces of DNA from
preceding SLAM experiments had led to false positive results. They, however, resisted
Yuan’s suggestions for addressing this problem and began to withhold data files from
him.
Yuan stated that from 2005 through 2011, he “repeatedly reported research
misconduct with the yeast genetics research that was caused by falsification of the
research results.” On November 28, 2005, Yuan wrote to Boeke about problems he
identified in research performed by Xuewen Pan, a post-doctoral fellow in Boeke’s lab.
In an email exchange, Yuan complained about the research, stating that Pan’s “genes are
preselected,” and that continuing with those research projects “will only generate more
useless data.” He also stated that the SLAM team had already established that “most of
the [matches] being identified are bogus.”
1
SLAM stands for Synthetic Lethality Analyzed by Microarray. Among the goals
of the SLAM project were to study the genetic interactions of mutations and to extend
this methodology from yeast to higher organisms.
2
In early 2006, Pan’s research was published in Cell, a biomedical journal, with
Boeke as the senior author. Boeke cited Pan’s research when he applied for grant
renewals through the NIH. Later in 2006, after the NIH renewed funding for the SLAM
project, Boeke issued a new organizational chart “which had the effect of excluding Dr.
Yuan from extensive involvement with the SLAM research.” Yuan states that he
“protested his lack of a definite professional role in the SLAM Project” and “found
himself increasingly marginalized and excluded from the data management.”
From 2006 to 2008, Boeke’s SLAM research was not successful. Boeke asked a
colleague to perform a large retrospective analysis of the production data, which showed
an extraordinarily high “False Discovery Rate.” In the summer of 2008, Boeke decided
not to renew his NIH grant for SLAM, although funding for prior grants would continue
into 2010.
In a 2009 analysis of Pan’s microarray data, Yuan found that Pan could not have
obtained the results he claimed, but that his “conclusion was not that Dr. Pan fabricated
the results; instead, Dr. Pan likely conducted the experiment with preconceptions of the
results he wanted to find – and then managed to find those results.” Yuan reached a
similar conclusion with respect to a paper published by Dr. Yu-yi Lin in Genes &
Development. In January 2009, Yuan notified Boeke and SLAM’s project manager of
these problems with the Pan 2006 and Lin 2008 papers.
In December 2009, Boeke informed Yuan that he would not be renewing his
faculty contract for 2011, unless he secured self-sustaining funding within the next year.
3
Although Boeke claimed this was due to a lack of funding, at the same time, Boeke
established positions for three other individuals who had worked on SLAM full-time.
On January 15, 2010, at a seminar in the Boeke lab, Yuan said that ten months
earlier, he had discovered “bizarre zigzag patterns after plotting data for individual genes
in SLAM’s Production data in chronological order.” He concluded that these changes
“were both non-random and unpredictable” and that the “zigzags were also large enough
to masquerade as the genetic interactions SLAM was looking for.”
On June 29, 2010, in the last week of the NIH funding of SLAM, Yuan wrote to
Boeke that he had analyzed the production team’s last 118 experiments, finding that
about 10 percent had “noise” (bad data) with no apparent cause and only about 10 percent
“looked pretty good.”
On December 14, 2010, Dr. Carol Greider, the director of the Department of
Molecular Biology and Genetics, offered Yuan a part-time support staff position for the
2011 year, at a salary of $24,800, well below his salary as a researcher. Yuan accepted
the position. However, from January 2011 on, Boeke excluded Yuan from activities in
the lab.
On April 29, 2011, Dr. Lin, now at National Taiwan University, conducted a
seminar in Dr. Boeke’s lab. Yuan asked Lin a number of questions to which Lin and
Boeke did not provide adequate responses.
On June 29, 2011, Yuan submitted a manuscript for publication in which he listed
himself as the sole author. Greider issued a written reprimand to Yuan for failing to offer
Boeke shared authorship of the manuscript. On July 8, 2011, Yuan met with Joan
4
Johnson, a Human Resources representative for JHU School of Medicine to discuss his
concerns about Greider’s reprimand. He explained that his employment problems arose
in the context of the lack of results produced in the lab, despite over $12 million in NIH
funding and the “inexplicable vehemence” that Boeke and Greider exhibited towards
him. On December 22, 2011, JHU denied Yuan’s grievance appeal.
Yuan’s employment was scheduled to end on December 31, 2011. Prior to this
date, he requested a property pass from Boeke, so he could move his research collection
of archived cells out of the lab. Boeke refused to grant him the property pass until the
two had “come to an understanding of all the issues” relating to which files and materials
Yuan could remove. On November 29, 2011, JHU, through an attorney, informed Yuan
that he could remove “biological samples and data” without prior permission. Yuan had
in his archives, prior to his departure, about 2,000 samples, occupying less than two cubic
feet of freezer space.
On November 30, 2011, Yuan requested an affidavit or other confirmation that
Boeke would give Yuan free access to Yuan’s archived cells for a period of five years.
Although Boeke initially accepted this modified request, JHU did not provide access.
On December 14, 2011, Boeke notified Yuan that his office had been emptied and
his possessions had been locked. On December 15, 2011, Yuan, after seeking access to
his materials, was escorted from the workplace by JHU Security Officers.
Subsequent to his departure from JHU, Yuan interviewed for other positions at
JHU, but was not hired. Beginning in September 2011, Yuan looked for employment
outside JHU. Soon after, Yuan was invited to interview for a position at ComputerCraft.
5
He was told that his curriculum vitae had been received favorably by other employees
and that he was invited to prepare a brief talk and to stay for a few hours to interview.
On December 18, Yuan asked, through an e-mail, for Dr. Beverly Wendland from JHU to
speak as a reference on his behalf; he never received a response. Yuan stated that upon
“information and belief, after ComputerCraft contacted Dr. Wendland (and possibly
others at JHU),” they “provided a negative reference for him.”
Early in 2012, a “Letter” (equivalent to a research paper) was published in the
journal Nature, listing Lin and Boeke as the authors. After reviewing the paper, Yuan
believed that there were serious conceptual errors in it. Specifically, he concluded that
the data underlying the paper was not reproducible.
On May 14, 2012, Yuan, through counsel, informed Ronald J. Daniels, the
president of JHU, and Edward D. Miller, the president of the School of Medicine, about
“serious scientific problems” in the paper, including
a near-total lack of correspondence between the genetic interactions
identified in this paper and the raw datafiles from which those genetic
interactions were supposedly derived. The assertions made in this paper,
that its new microarray methodology provided data for the “genome-wide”
identification of genetic interaction, appears to be false. Significantly, this
is the same type of problem that has beset the SLAM project for the entire
duration of its production phase.
(Emphasis added).
On May 21, 2012, Patricia L. McClean, JHU senior associate general counsel,
responded, “[t]he School of Medicine is looking into the allegations of research
misconduct made in your letter under its Procedures for Dealing with Issues of Research
6
Misconduct.” No one from JHU sought to interview Yuan or obtain further information
from him.2
On July 24, 2012, Yuan forwarded a “Communication Arising” (i.e., a rebuttal) to
Lin and Boeke’s Nature article. Neither doctor responded to Yuan. On August 8, 2012,
Yuan received an email sent from Lin’s email account stating, “Dr. Yuan, Yu-yi [Lin]
passed away this morning. Now you must be very satisfied with your success.
Congratulations[.]” Lin had died from an apparently self-administered overdose of
sedatives. In previous days, he had attempted to jump off a building and his wife stated
that he was concerned about a “conduct-of-research” case.
On February 11, 2013, Yuan received an email from Boeke asking if he would be
willing to sign a “correction” to the 2006 Cell paper, which stated that “the fraction of
genetic interactions that could be traced back to the paper’s SLAM-based microarray data
was 75 percent, not 90 percent as originally stated.” The next day, Yuan informed Boeke
that he would not sign the proposed corrections, but Boeke submitted them. The paper
was submitted to Cell, which published it as an “Erratum” on May 23, 2013.
On November 6, 2013, the Nature paper was also retracted, without a
“correction.” Boeke admitted that “the Methods section in our Letter is inaccurate, and
that for 38% of the interactions found by the primary screen there was discordance in
sign,” which confirmed Yuan’s findings.
2
The record does not disclose the result of JHU’s inquiry, although our
assumption is that Hopkins rejected Yuan’s contentions.
7
On December 13, 2013, Yuan filed a complaint for damages against JHU in the
Circuit Court for Baltimore City, alleging wrongful termination in violation of public
policy. Yuan based his wrongful discharge action on 42 C.F.R. § 93.100 et seq., which
establishes a federal administrative mechanism to police intentional, knowing, or reckless
“research misconduct” that represents “a significant departure from accepted practices of
the relevant research community.” Id. at § 93.104.3 He also asserted claims for
conversion, and tortious interference with prospective economic advantage. On March
14, 2014, JHU filed a motion to dismiss or, in the alternative, motion for summary
judgment and request for a hearing. On May 12, 2014, the court held a hearing and then,
dismissed Yuan’s claim. Judge Lawrence Fletcher-Hill concluded:
Dr. Yuan has failed to allege with sufficient specificity either that he
objected to research misconduct or that even if he had that those particular
objections in the context of this case would amount to a violation of a
clearly established public policy. There are two issues with the complaint.
There certainly are ample allegations that Dr. Yuan raised and continued to
raise issues within his lab with Dr. Boeke and with others about the
conclusion being reached by the research, [and] the manner in which the
research was conducted. But the allegations very carefully skirt the line of
fraud, falsification of data or manipulation of data.
And it is a good illustration of why this tort needs to be drawn narrowly
[so] that it does not amount to the opportunity for courts to litigate debates,
intellectual debates within the scientific community about methodology or
research methods or conclusions. Based on the allegations, even giving
them full credit, until after Dr. Yuan was fired, his objections amounted to
those types of intellectual debates and challenges within the lab.
3
This regulation is authorized by a 1993 federal statute. See 42 U.S.C. § 289b;
and p.15, infra.
8
Relying on the Court of Appeals’s decision in Parks v. Alpharma, Inc., 421 Md. 59(2011), Judge Fletcher-Hill stated:
[W]hile there’s no question that academic integrity and research integrity is
an important value, I conclude that it does not rise to the level that the
Court of Appeals would recognize as the clear public policy necessary to
support [a] cause of action for the tort of wrongful discharge in Maryland.[4]
The circuit court rejected Yuan’s conversion claim:
[A]lthough it may be that there is a policy at Johns Hopkins University to
on a case-by-case basis allow research material or research data to be
released for the individual or non-Hopkins use by researchers who have
developed it at Hopkins, the basic policy, which is clearly stated and has
not been challenged here, is that Hopkins asserts its ownership of all
research material and all research data that has been developed within labs
of the University.
Judge Fletcher-Hill added: “Hopkins could not have converted what it in fact had
ownership of.”
Finally, turning to the tortious interference count, the court said:
[T]he plaintiff has agreed that that count is limited to the fourth job, the one
in private industry, that Dr. Yuan alleges he did not get. However, he has
not alleged any specific facts to establish who at Hopkins said what to
whom or how that effected his chances to get that job; and therefore, the
allegations are insufficient to sustain that cause of action.
From the judgment of the circuit court, Yuan filed a timely notice of appeal.
4
The trial court granted the motion to dismiss Yuan’s wrongful discharge claim
on two grounds: (1) that he failed to identify a public policy exception to the at-will
employment doctrine; and (2) that even if he had identified a public policy exception, he
failed to sufficiently plead it. Because of our resolution of the first, we need not reach the
second.
9
QUESTIONS PRESENTED
Yuan presents the following questions:
1. Did the Circuit Court err in dismissing Dr. Yuan’s wrongful termination in
violation of public policy claim by deciding facts and inferences against the
plaintiff, but in favor of defendant, in concluding that his reports of
research misconduct did not rise to the level of reporting falsification or
fabrication, contrary to the well-pled allegations of his complaint?
2. Did the Circuit Court err in dismissing Dr. Yuan’s wrongful termination in
violation of public policy claim by refusing to recognize the federal statute
and regulations prohibiting research misconduct as sources of public
policy?
3. Did the Circuit Court err in dismissing Dr. Yuan’s conversion claim where
JHU’s policy governing research materials expressly recognized that
research materials belong to the researcher, not the university, given that
the only other Maryland court to decide this issue recently ruled to the
contrary?
4. Did the Circuit Court err in dismissing Dr. Yuan’s tortious interference
claim, where the court improperly assumed all reasonable inferences
against Dr. Yuan rather than draw reasonable inferences from the well-pled
allegations of his complaint, i.e., that his former supervisor and other JHU
administrators had the opportunity and motivation to interfere with his
prospective employment opportunities?
JHU poses the questions as:
1. Did the court err in dismissing Yuan’s wrongful termination claim by
concluding that his complaint failed to establish that he had reported
falsification or fabrication, and that his complaint failed to establish that his
termination violated public policy?
2. Did the court err in dismissing Yuan’s conversion claim given that
Hopkins’ policy recognized that researchers owned their research
materials?
3. Did the court err in dismissing Yuan’s tortious interference with contract
claim, when the court refused to accept Yuan’s allegations that Hopkins
10
had the opportunity and motivation to interfere with his prospective
employment opportunities?
DISCUSSION
STANDARD OF REVIEW
On appeal from a dismissal for failure to state a claim, we must assume the
truth of, and view in a light most favorable to the non-moving party, all
well-pleaded facts and allegations contained in the complaint, as well as all
inferences that may reasonably be drawn from them, and order dismissal
only if the allegations and permissible inferences, if true, would not afford
relief to the plaintiff, i.e., the allegations do not state a cause of action for
which relief may be granted. We must confine our review of the universe
of “facts” pertinent to the court’s analysis of the motion to the four corners
of the complaint and its incorporated supporting exhibits, if any. The well-
pleaded facts setting forth the cause of action must be pleaded with
sufficient specificity; bald assertions and conclusory statements by the
pleader will not suffice. Our goal, in reviewing the trial court’s grant of
dismissal, is to determine whether the court was legally correct.
Parks, 421 Md. at 72 (Internal quotations marks and citations omitted).
Legal questions, such as whether a law creates a clear public policy mandate for
the purpose of a wrongful discharge action, are reviewed de novo. McCrimmon v. State,
225 Md. App. 301, 306 (2015) (citing Maryland-Nat'l Capital Park & Planning Comm'n
v. Anderson, 395 Md. 172, 181 (2006)).
I. Wrongful Termination
In limited circumstances, an at-will employee can challenge his or her termination
when the basis for the employer’s action would contravene “some clear mandate of
public policy, and there [is] a nexus between the employee’s conduct and the employer’s
decision to fire the employee.” Wholey v. Sears Roebuck, 370 Md. 38, 50-51 (2002)
(Citations omitted).
11
A. The Scope and Limitations of Wrongful Discharge Actions
There are many public policies implicated in the employer-employee relationship,
but few of them can form the basis for a wrongful discharge tort. As the Court of
Appeals observed in Adler v. American Standard Corp.:
The truth is that the theory of public policy embodies a doctrine of vague
and variable quality, and, unless deducible in the given circumstances from
constitutional or statutory provisions, should be accepted as the basis of a
judicial determination, if at all, only with the utmost circumspection. The
public policy of one generation may not, under changed conditions, be the
public policy of another.
291 Md. 31, 46 (1981) (Emphasis added) (quoting Patton v. United States, 281 U.S. 276(1930)). As a general matter, courts can rely on “legislative enactments, prior judicial
decisions[, and] administrative regulations” as the chief sources of public policy. Id. at
45.
In some cases, an employee who is fired in retaliation for reporting the violation of
a state or federal law may have an actionable wrongful discharge claim. Yet that alone is
insufficient. In Parks, supra, the Court of Appeals adopted the reasoning of Szaller v.
American Nat’l Red Cross, 293 F.3d 148 (4th Cir. 2002), explaining that violation of the
Food and Drug Administration’s regulations alone was insufficient to establish the
“public policy” prong of the wrongful termination tort. The Maryland Court observed:
[If a court] were to announce that [the FDA’s regulations] were all sources
of Maryland public policy, an employee could immunize himself against
adverse employment action simply by reporting an alleged violation of any
regulation. And the narrow wrongful discharge exception, carefully carved
out by the Maryland courts, would then supplant the general at will
employment rule.
Parks, 421 Md. at 86-87 (Emphasis added) (quoting Szaller, 293 F.3d at 152).
12
The Court of Appeals has articulated two “limitations on a court’s ability to
articulate a new public policy mandate” to establish wrongful termination. Id. at 79.
First, a court must look to the “accepted purpose behind recognizing the tort in the first
place: to provide a remedy for an otherwise unremedied violation of policy.” Id.
(Quotation omitted). Second, the policy at issue “should be reasonably discernible from
prescribed constitutional or statutory mandates.” Id. (Quotation omitted).
In Makovi v. Sherwin-Williams Co., 316 Md. 603 (1989), the Court of Appeals
observed that “the generally accepted reason for recognizing the tort” of wrongful
discharge is “vindicating an otherwise civilly unremedied public policy violation.” Id. at
626. Where a statute already provides its own remedy, “allowing full tort damages to be
claimed in the name of vindicating the statutory public policy goals upsets the balance
between right and remedy struck by the Legislature in establishing the very policy relied
upon.” Id. Hopkins has not urged this Court to apply this limitation here. JHU has not
argued that 42 U.S.C. § 289b or 42 C.F.R. Part 93, provide an exclusive remedy for
Yuan’s complaints. In addition, Yuan’s counsel has correctly conceded that federal law
does not implicitly authorize a damage action against JHU.
Even in the case of an unremedied violation of public policy, however, a second
limitation applies: the subject policy must “be reasonably discernible from prescribed
constitutional or statutory mandates.” Wholey, 370 Md. at 53 (Citations omitted). The
circuit court relied on the Parks case, as do we, as controlling this determination. There,
the Court held that overly broad federal regulations could not form the basis for a
wrongful discharge claim, because specificity is important when relying on a statute or
13
regulation. Although accepting as a general matter that federal law and regulation could
form the basis for the tort in Maryland, the Court found that Federal Trade Commission
(FTC) and Federal Drug Administration (FDA) regulations lacked “the specificity of
public policy that we have required to support a wrongful discharge claim.” 421 Md. at
83.5 The Court noted the “extensiveness” of 15 U.S.C. § 45(a)(2), which vested in the
FTC the exclusive power to determine the unfairness of a business practice based on a
consideration of its value versus its harm to consumers. This determination, vested
exclusively with the FTC, was indiscernible for a Maryland court and thus “undermine[d]
its utility as a basis for a wrongful discharge claim, because a specific public policy
mandate is not discernible.” Id. at 84-85. The Court reached a similar finding with
regard to the FDA regulations. See id. at 86 (“The regulation at issue provides the FDA's
standard for what details must be included on a prescription drug label if there is
‘reasonable evidence’ that a particular drug has a ‘clinically significant hazard.’ What is
not clear from the regulation is the specific public policy mandate that Alpharma
allegedly violated to support the instant wrongful discharge claim”).
5
Parks argued that her subsequent termination contravened public policy, relying
on federal regulations regarding the marketing of pharmaceuticals. Id. at 70 (citing 21
C.F.R. § 201.57(c)(6)(i) (a prescription drug label must “be revised to include a warning
about a clinically significant hazard as soon as there is reasonable evidence of a causal
association with a drug; a causal relationship need not have been definitely
established”)); see 15 U.S.C. § 45(a)(1) (Federal Trade Commission regulations imposing
a duty on manufacturers to refrain from engaging in “unfair or deceptive acts or
practices”). Parks also cited Maryland’s Consumer Protection Act, Maryland Code
(1975, Repl. Vol. 2013) Commercial Law Article (CL), §§ 13-301 - 13-303 (prohibiting
unfair or deceptive trade practices). Parks also said that there was no civil remedy for
violation of these statutes under federal or state law. Id. The Court of Appeals held that
none of the provisions could form the basis of a wrongful discharge action in Maryland.
14
B. Federal Research Misconduct
We now examine in detail the statute and regulations that Yuan asserts are the
source of a specific public policy mandate.6 In 1993, Congress amended 42 U.S.C. §
289b to create the federal Office of Research Integrity (ORI); it required entities that
apply for or receive public health service (PHS) funds to establish an administrative
process to review reports of research misconduct in connection with sponsored
biomedical and behavioral research, and directed ORI to monitor administrative
processes and investigations. Section 289b(e) requires the promulgation of regulations to
deter “research misconduct” and to protect whistleblowers from retaliation if they have
“made an allegation that the entity, its officials or agents, [have] engaged in or failed to
adequately respond to an allegation of research misconduct.” Regulations were also
required to establish remedies for retaliation, which may include termination of funding,
recovery of funding, “or other actions as appropriate.” § 289b(e).
The regulations adopted by the Secretary of Health and Human Services declare
that “[r]esearch misconduct involving PHS support is contrary to the interests of the PHS
and the Federal government and to the health and safety of the public, to the integrity of
research, and to the conservation of public funds.” 42 C.F.R. § 93.100(a).7
6
See also Chris B. Pascal, The Office of Research Integrity: Experience and
Authorities, 35 Hofstra L. Rev. 795 (2006).
7
When research misconduct is at issue, “[i]nstitutions and institutional members
have an affirmative duty to protect PHS funds from misuse by ensuring the integrity of
all PHS supported work, and primary responsibility for responding to and reporting
allegations of research misconduct, as provided in this part.” 42 C.F.R. § 93.100(b).
15
Most importantly for this case, these regulations define “research misconduct” as
“fabrication, falsification, or plagiarism in proposing, performing, or reviewing research,
or in reporting research results.” 42 C.F.R. § 93.103.
(a) Fabrication is making up data or results and recording or reporting
them.
(b) Falsification is manipulating research materials, equipment, or
processes, or changing or omitting data or results such that the research is
not accurately represented in the research record.
(c) Plagiarism is the appropriation of another person's ideas, processes,
results, or words without giving appropriate credit.
(d) Research misconduct does not include honest error or differences of
opinion.
Id. However, before a finding of research misconduct can be made, federal regulations
require that
(a) There be a significant departure from accepted practices of the relevant
research community; and
(b) The misconduct be committed intentionally, knowingly, or recklessly;
and
(c) The allegation be proven by a preponderance of the evidence.[8]
42 C.F.R. § 93.104.
One legal commentator has noted the limited scope of the definition:
The narrow definition that was finally adopted was the product of a
prolonged battle over . . . broader proposals, in which scientists and their
professional organizations fought hard to keep open-ended definitions out.
8
In U.S. ex rel. Milam v. Regents of Univ. of California, 912 F. Supp. 868, 880 (D.
Md. 1995), the U.S. District Court noted that the “level of intent required for ORI to
proceed with an administrative action is intentional falsification, a higher level of intent
than that required under the False Claims Act.”
16
The final policy reflects the scientists’ success: it prohibits only the most
blatant forms of misconduct and plagiarism, which the scientific
community has a strong, self-motivated interest in preventing. The effect is
that merely careless or sloppy researchers are very rarely guilty of
misconduct in a formal sense, notwithstanding the damage they may cause
to the scientific record and the limited resources they may squander.
Meanwhile, research institutions are left to set their own policies for, and
conduct their own investigations of, the wide-ranging category of
“questionable research practices” and all cases of negligent misconduct.
This deference to self-enforcement, embedded in the federal definition of
research misconduct, is a defining trait of the oversight scheme for
federally funded research generally . . .
Patrick O’Leary, Policing Research Misconduct, 25 Alb. L.J. Sci. & Tech. 39, 49-50
(2015) (Footnotes omitted). The author also observed: “As for defining research
misconduct as a significant departure from accepted practices of the relevant research
community, this presents both difficult line drawing problems and . . . the possibility of
holding similarly situated individuals to disparate standards.” Id. at 79.
Even ORI has noted the difficulties in the regulation’s definition of research
misconduct. In a January 31, 2013 letter to Yuan, ORI Director David Wright said:
We have noted over the 20 plus years of evaluating allegations that
complainants often confuse the reporting of false information with research
misconduct. This does not take into account factors such as honest error,
poor choice of techniques, and other factors that can lead to inadvertent
publication of erroneous information.[9]
Although ORI appears to have the authority to conduct its own assessment of
research misconduct, O’Leary, supra, 25 Alb. L.J. Sci. & Tech. at 59, this is a rare
9
Yuan included this letter in the record.
17
occurrence.10 Id. Rather, research institutions bear the primary responsibility for
preventing and detecting research misconduct. Id. at 51.11
10
In its January 31, 2013 letter to Yuan, ORI stated:
ORI lacks the authority to directly investigate allegations of research
misconduct, so in fact we had not been investigating your allegations at any
time. ORI’s primary responsibility is to conduct oversight review of
inquiries and investigations carried out by institutions once their process
has been completed.
11
The federal administrative regulations for research misconduct set forth a
variety of remedies, none of which include damages. These include:
(1) Clarification, correction, or retraction of the research record.
(2) Letters of reprimand.
(3) Imposition of special certification or assurance requirements to ensure
compliance with applicable regulations or terms of PHS grants, contracts,
or cooperative agreements.
(4) Suspension or termination of a PHS grant, contract, or cooperative
agreement.
(5) Restriction on specific activities or expenditures under an active PHS
grant, contract, or cooperative agreement.
(6) Special review of all requests for PHS funding.
(7) Imposition of supervision requirements on a PHS grant, contract, or
cooperative agreement.
(8) Certification of attribution or authenticity in all requests for support and
reports to the PHS.
(9) No participation in any advisory capacity to the PHS.
(10) Adverse personnel action if the respondent is a Federal employee, in
compliance with relevant Federal personnel policies and laws.
(11) Suspension or debarment under 45 CFR Part 76, 48 CFR Subparts 9.4
and 309.4, or both.
42 C.F.R. § 93.407(a).
However, the institutions themselves must provide assurances that they will make
“[a]ll reasonable and practical efforts to protect or restore the position and reputation of
any complainant, witness, or committee member and to counter potential or actual
(Continued . . . )
18
Both courts and commenters express doubt about the ability of the judicial system
to determine research misconduct. In U.S. ex rel. Milam v. Regents of Univ. of
California, a research misconduct case brought under the False Claims Act, 31 U.S.C. §
3729, the federal district court said:
Proof of one's mistakes or inabilities is not evidence that one is a
cheat.... Without more, the common failings of engineers and other
scientists are not culpable under the Act.... The phrase “known to be false”
... does not mean “scientifically untrue”; it means “a lie.” The Act is
concerned with ferreting out “wrongdoing,” not scientific errors.... What is
false as a matter of science is not, by that very fact, wrong as a matter of
morals. The Act would not put either Ptolemy or Copernicus on trial.
912 F. Supp. 868, 886 (D. Md. 1995) (Citation omitted). The district court added that “it
would be an unconscionable intrusion of law into academia” to force a jury to decide
whether a researcher should have informed NIH of varying results. Id. at 889. Similarly,
O’Leary observes:
A basic problem with resolving research misconduct allegations through
the courts, whether through civil litigation or criminal prosecutions, is that
determinations of misconduct in this area frequently require a sophisticated
understanding of scientific methods and principles that courts and juries
rarely possess and are often badly positioned to obtain, even with assistance
from expert witnesses.
25 Alb. L.J. Sci. & Tech. at 71.
C. Analysis
In our view, a mere recital of the very real limitations of 42 U.S.C. § 289b and 42
C.F.R. Part 93 makes it abundantly clear that, as a matter of law, these provisions do not
(. . . continued)
retaliation against these complainants, witnesses, and committee members[.]” 42 C.F.R.
§ 93.304(l).
19
set forth the clear public policy mandate needed to support a wrongful discharge action.12
The regulations police intentional, knowing, or reckless fabrication or falsification of
federally funded research projects. Such language is not far afield from that found not
actionable in Park (unfair or deceptive trade practices, false or misleading statements,
deception, fraud, false pretenses) and Adler (corporate fraud). The generality and
extensiveness of such provisions undermine their utility as a basis for wrongful
discharge. Parks, 421 Md. at 84-85. There is no bright line between falsity and
misconduct and between scientific errors and wrongdoing. As noted above, one
commentator has also pointed out the difficulties in a judicial determination that the
misconduct must be a significant departure from accepted practices of the relevant
research community. O’Leary, supra, 25 Alb. L.J. Sci. & Tech. at 79. The federal
provisions represent “a long tradition of government deference to the norms and integrity
of the academy,” id. at 90, and a “deferential attitude favoring scientific self-regulation of
research,” id. at 72. A broader remedy, such as damages, for research misconduct would
invite judicial intrusion into the norms of the academy. Milam, supra, 912 F. Supp. at
889.
This may be one reason why Congress did not expressly create a damage remedy
for research misconduct. Nor could one be implied under existing Supreme Court case
law. See Alexander v. Sandoval, 532 U.S. 275, 291 (2001); Suter v. Artist M., 503 U.S.
12Thus, we need not reach the issues of whether Yuan’s reports were made to the
appropriate officials, whether those statements reported falsification or fabrication, or
whether any material facts are in dispute.
20
347, 363-64 (1992). Title 42 U.S.C. § 289b is the kind of statute where Congress
carefully balanced competing values and interests, as well as duties and liabilities.13 See
Universities Research Ass'n, Inc. v. Coutu, 450 U.S. 754, 782 (1981); Texas Indus., Inc.
v. Radcliff Materials, Inc., 451 U.S. 630, 647 (1981) (citing Diamond v. Chakrabarty,
447 U.S. 303, 317 (1980)). To imply a private right of action to sue by a whistleblower
“would destroy this careful balance.” Universities Research Ass'n, 450 U.S. at 782.
Because we conclude that under state law, the federal provisions on research misconduct
do not set forth a clear public policy mandate, we need not decide whether 42 U.S.C. §
289b would preempt a Maryland common law damage remedy for alleged violations of
the federal statute. See Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804,
816 (1986); Schweikert v. Bank of America, N.A., 521 F.3d 285, 288-89 (4th Cir. 2008).
Finally, Yuan directs us to the federal False Statements Act, 18 U.S.C. § 1001(a),
which provides in relevant part:
Except as otherwise provided in this section, whoever, in any matter within
the jurisdiction of the executive, legislative, or judicial branch of the
Government of the United States, knowingly and willfully--
(1) falsifies, conceals, or covers up by any trick, scheme, or device a
material fact;
(2) makes any materially false, fictitious, or fraudulent statement or
representation; or
(3) makes or uses any false writing or document knowing the same to
contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years . . . .
13
The same is true of the regulations promulgated by the Department of Health
and Human Services.
21
He argues that this statute represents an alternative basis for the public policy mandate
necessary for a wrongful discharge claim.14
Hopkins responds that the applicability of this statute was not raised in the circuit
court. Yuan counters with a reference to Weidman v. Exxon Mobil Corp., 776 F.3d 214(4th Cir. 2015) cert. denied, 135 S. Ct. 2868 (2015), which he says holds “that it was
reversible error to dismiss a complaint that did not cite a specific statute, since the
complaint identified and pled illegal activities, contrary to public policy.” Our reading of
Weidman is a little different. There, the plaintiff in a diversity action relied on a Virginia
statute cited in his responsive pleadings in the district court, and the Fourth Circuit said
this was sufficient notice. Id. at 222. Here, Yuan had provided no notice in the circuit
court of this federal law, which has a different intent requirement than the research
misconduct provision he did cite. Moreover, he has not generally pled a violation of any
related federal statutes.
In any event, even if this law had been raised below as a source of Maryland
public policy, the federal statue contains language similar to that found deficient in
Parks.15 See 421 Md. 82-84.
14
Most courts have concluded that there is no implied right of action for damages
under this federal criminal statute. See, e.g., Williams v. McCausland, 791 F. Supp. 992(S.D.N.Y. 1992).
15
Yuan has not alleged a retaliation claim under the federal False Claims Act, 31
U.S.C. § 3730(h), which could be brought in state courts. See Driscoll v. Superior Court,
223 Cal. App. 4th 630 (2014).
22
For all of these reasons, the circuit court did not err in dismissing Yuan’s wrongful
discharge claim.
II. Conversion
Yuan claims that JHU converted his research materials and data, yet he fails to
establish the requisite ownership of the materials in question.
Conversion is an intentional tort, consisting of two elements, a physical act
combined with a certain state of mind. The physical act can be summarized
as any distinct act of ownership or dominion exerted by one person over the
personal property of another in denial of his right or inconsistent with it.
This act of ownership for conversion can occur either by initially acquiring
the property or by retaining it longer than the rightful possessor permits. . . .
[T]he gist of a conversion is not the acquisition of the property by the
wrongdoer, but the wrongful deprivation of a person of property to the
possession of which he is entitled.
Darcars Motors of Silver Spring, Inc. v. Borzym, 379 Md. 249, 261-62 (2004) (Internal
quotation marks and citations omitted).
To establish the intent element,
a defendant liable of conversion must have an intent to exercise a dominion
or control over the goods which is in fact inconsistent with the plaintiff’s
rights. The defendant may have the requisite intent even though he or she
acted in good faith and lacked any consciousness of wrongdoing, as long as
there was an intent to exert control over the property.
Id. at 262-63 (Internal quotation marks and citations omitted).
The creator of a micro-organism, including a cell line, ordinarily possesses a
property right in that creation. “[A] living cell line is a property interest capable of
protection” and as such, there is “no reason why a cell line should not be considered a
chattel capable of being converted.” United States v. Arora, 860 F. Supp. 1091, 1099 (D.
23
Md. 1994), aff’d 56 F.3d 62 (4th Cir. 1995) (per curiam), (citing Chakrabarty, 447 U.S.
at 310 (“[T]he patentee has produced a new bacterium with markedly different
characteristics from any found in nature and one having the potential for significant
utility. His discovery is not nature’s handiwork, but his own; accordingly it is patentable
subject matter[.]”). Furthermore, a researcher has a property right in work he or she has
copyrighted. See, e.g., U.S. ex rel. Berge v. Bd. of Trustees of the Univ. of Alabama, 104
F.3d 1453, 1463 (4th Cir.), cert. denied, 522 U.S. 916 (1997). Yuan cites Trustees of
Univ. of D.C. v. Vossoughi, 963 A.2d 1162 (D.C. 2009), in which a former researcher
prevailed on conversion grounds for destruction of his research and teaching materials.
There, the plaintiff’s initial employer, Catholic University, “disclaimed the equipment
and intellectual property Dr. Vossoughi brought with him to UDC [the University of the
District of Columbia] in 1989, and . . . Dr. Vossoughi thereafter was the rightful and sole
owner of that property.” Id. at 1166-67. The court did not, however, discuss any
property rights granted or reserved during his employment at UDC or any of UDC’s
policies involving retention of property.
Yuan did not assert that he holds a patent, copyright, or other specific intellectual
property interest in his research materials. Nor did he claim that Maryland law provides a
separate basis for a establishing a property right, and we do not find one. Instead, the
core of Yuan’s argument requires a determination of his property rights in his research
data and materials under JHU policy. Yuan does not challenge the validity of JHU’s
“Policy on Access and Retention of Research Data and Materials” but rather argues that
JHU violated this policy. The circuit court disagreed.
24
JHU’s policy provides:
3. OWNERSHIP OF RESEARCH DATA: The University owns all
Research Data generated by research projects conducted at or under the
auspices of the Johns Hopkins University regardless of funding source,
unless specific terms of sponsorship, other agreements or University policy
supersede these rights.
This policy does not attempt to determine relative rights of researchers and
issues surrounding collaborative efforts such as authorship.
...
5. RIGHTS TO ACCESS: . . . The University will have access to the
Research Data as necessary for technology transfer, compliance and other
purposes. The University also has the option to take custody of the
Research Data as determined by the appropriate University official. Such
option will not be invoked without cause and subsequent notification of the
Primary Responsible Investigator. . . .
6. DESTRUCTION OR REMOVAL: . . . With respect to removal of
the Research Data, the university recognizes the importance of Research
Data to the future research and career of its faculty. Therefore, should
removal of Research Data be approved, for example, because of the transfer
of the investigator to another institution, the following requirements apply:
I. Researchers may receive approval to remove original Research
Data. The University may retain copies.
II. Research Data generated during the Researcher’s employment at the
University will be maintained in accordance with Johns Hopkins
policy[.]
III. Research Data that are integral to the ongoing research of another
Johns Hopkins employee or student will continue to be made
available for that purpose.
(Emphasis added) (available at http://web.jhu.edu/administration/provost/programs_
services/research/Data_Management_Policy.pdf) (last accessed April 14, 2016)
(http://perma.cc/476F-Y6G5).
25
Yuan claims that JHU officially initially said that he could take his research
materials with him, before it prevented his access to those items. Noting the researcher’s
important interest in that property when transferring to another institution, JHU policy
specifies that researchers “may” receive permission to remove that property. Yet where
that information is “integral” to ongoing research, JHU may retain it.
It is unclear why JHU retained Yuan’s research materials and data. But the policy
does not provide an absolute right of a discharged researcher to have access or ownership
of those items. In fact, JHU has ownership, “unless specific terms of sponsorship, other
agreements, or University policy supersede” JHU’s rights.
Yuan’s complaint does not explain which of these materials was created prior to
his employment at JHU beginning in 1993. It appears that the research data and materials
were all created during his tenure at JHU; as such, their ownership is determined by JHU
policy, which specifically provides that they may remain with JHU.16
III. Tortious Interference with Prospective Business Relations
Turning to Yuan’s final claim, we note that the elements of the tort are: “(1)
intentional and wilful acts; (2) calculated to cause damage to the plaintiffs in their lawful
business; (3) done with the unlawful purpose to cause such damage and loss, without
16
Yuan also asks us to consider a jury verdict in the Circuit Court for Baltimore
City, Kumar v. Johns Hopkins Univ., 2014 WL 7007677 (Md. Cir. Ct.), where, according
to Yuan, a jury found that JHU had converted another employee’s “personal website.”
This unreported nisi prius opinion is not binding on this court. Md. Rule 1-104; A. & H.
Transp., Inc. v. Save Way Stations, Inc., 214 Md. 325, 338 (1957). In any event, based on
Yuan’s description of this website, it appears that the case involved property not created
under the auspices of JHU and thus, the JHU policy in play here would not apply.
26
right or justifiable cause on the part of the defendants (which constitutes malice); and (4)
actual damage and loss resulting.” Kaser v. Fin. Prot. Mktg., Inc., 376 Md. 621, 628-29
(2003) (Internal quotation marks and citation omitted).
“In applying these elements of the tort, we have held that ‘[t]ortious or deliberate
intent to harm a plaintiff’s business relationship is not alone sufficient to support an
intentional interference claim.’ There must also be proof that the defendant’s interference
was accomplished through improper means.’” Volcjak v. Washington Cnty. Hosp. Ass’n,
124 Md. App. 481, 512 (1999).
Here, the court held:
With respect to count three, tortious interference, the plaintiff has agreed
that that is limited to the fourth job, the one in private industry
[ComputerCraft], that Dr. Yuan alleges he did not get. However, he has not
alleged any specific facts to establish who at Hopkins said what to whom or
how that [a]ffected his chances to get that job; and therefore, the allegations
are insufficient to sustain that cause of action.
JHU further explains that Yuan has failed to plead “malice” with particularity.
Yuan did not specifically plead that JHU interfered with his hiring at ComputerCraft
Corporation. Nor did his complaint specify whether these communications contained any
information other than the fact that Yuan worked at JHU and had been discharged. He
argues that the “only reasonable inference that can be drawn at this stage of pleadings . . .
is that Dr. Boeke, Dr. Wendland, or others at JHU provided a negative reference to
ComputerCraft, and did so with the requisite malice, in an attempt to interfere with Dr.
Yuan’s prospective employment opportunities.”
27
This is not the “only reasonable inference.” Employers are often called to provide
references for former employees. Though malice is not a necessary element of the tort,
JHU points out that under Md. Code (1974, Repl. Vol. 2013) Courts & Judicial
Proceedings Article (CJP) § 5-423, former employers are not liable for disclosing
information about a former employee to a prospective employer. In so doing, CJP § 5-
423 protects employers from liability and creates a presumption that they acted in good
faith:
(a) An employer acting in good faith may not be held liable for disclosing
any information about the job performance or the reason for termination of
employment of an employee or former employee of the employer:
(1) To a prospective employer of the employee or former employee
at the request of the prospective employer, the employee, or former
employee; or
...
(b) An employer who discloses information under subsection (a) of this
section shall be presumed to be acting in good faith unless it is shown by
clear and convincing evidence that the employer:
(1) Acted with actual malice toward the employee or former
employee; or
(2) Intentionally or recklessly disclosed false information about the
employee or former employee.
Yuan has not alleged that JHU communicated false information to ComputerCraft
or acted with actual malice when called to provide a reference; all that he pled was that
he believed Wendland was contacted and provided a “negative reference”; from this
Yuan concluded that JHU provided “false references about him” and “took these actions
without right or justifiable cause.” Yet Yuan did not disclose who at JHU made the
28
possibly defamatory, malicious, or false statements to ComputerCraft, or what the
contents of such statements was. Given the statutory presumption that JHU’s reference
was done in good faith, we find no error in the court’s determination that JHU is not
liable for this tort.
For all of these reasons, we affirm the judgment of the circuit court.
JUDGMENT OF THE CIRCUIT
COURT FOR BALTIMORE CITY
AFFIRMED; COSTS TO BE PAID
BY APPELLANT.
29