Embattled researcher Judy Mikovits lost an important round in court yesterday in a civil suit that her former employer filed against her over alleged "misappropriation" of laboratory notebooks and computer data.
Mikovits, who rose to fame in 2009 for a disputed study that linked a mouse retrovirus to chronic fatigue syndrome (CFS), appears to have frustrated a Nevada judge, who asserted that she had "flouted" his order to return the disputed property to the complainant, the Whittemore Peterson Institute for Neuro-Immune Disease (WPI) in Reno. Mikovits, who is also facing related criminal charges for possessing stolen property, returned some of the notebooks and a laptop after being briefly jailed. But WPI filed an affidavit from a computer expert that said all the files had been recently deleted on the laptop. WPI attorney Ann Hall further asserts that Mikovits returned only 18 of the notebooks, withholding half a dozen more that include experiments done between 2006 and 2009. Mikovits's attorneys did not respond to interview requests.
After a flurry of motions were filed by each party, Judge Brent Adams in the Second Judicial District Court in Washoe County ruled in favor of WPI, which fired Mikovits in September for insubordination. In essence, the judge's "default judgment" rejected Mikovits's replies to the complaint and upheld all of WPI's claims, which include breach of contract and misappropriation of trade secrets. "It is so surprising," Hall says of the judge "striking" Mikovits's reply, noting that that the judge emphasized that he had never taken this action in his 22 years on the bench. Typically, judges offer a point-by-point ruling on the merit of a defendant's answers to a compliant. Mikovits attended the hearing but did not testify.
In court documents, Mikovits pled the Fifth Amendment, the right not to testify against yourself. Hall charges that the Fifth Amendment defense "was overly broad and kind of an abuse of the process."
Hall says it's unclear whether WPI will ever retrieve the property it seeks, and the civil case will now focus on damages. WPI has yet to tell the court the value of the property at issue, and no future court date has been set for the damages hearing.
Update, 22 December: Scott Freeman, Mikovits's attorney in her criminal case, says the ruling is "wonderful" when it comes to his defense against the charges levied against his client. "WPI wins not because they have a judge or jury decide the merits in their favor," says Freeman. "They win by default, literally. From a criminal defense analysis, there's never been adjudication on the merits." According to Freeman, the judge's frustration mostly had to do with Mikovits' civil attorney failing to meet specific deadlines.
Freeman predicts that attempts by WPI to retrieve substantial damages will not succeed. "Judy is not the Whittemores," he said, referring to Annette and Harvey Whittemore, who used some of their personal wealth to help start WPI. "She has no money. And you can't take water from a stone."
He says he's trying to have her criminal case dismissed. But even if he is not successful, Freeman says, "I'm very optimistic about her defense." If that trial goes forward, he expects it will take place near the beginning of spring.