Heart stem cell researchers’ lawsuit against Harvard and BWH dismissed

A case brought by two cardiac stem cell researchers against their institution for allegedly mishandling a misconduct investigation was dismissed by a federal judge in Massachusetts this week. The plaintiffs, Piero Anversa and Annarosa Leri, had sued Harvard Medical School and its affiliate, Brigham and Women's Hospital (BWH) in Boston, claiming that the inquiry into their lab at BWH wrongfully damaged their professional reputations, derailed the sale of their stem cell company, and cost them lucrative job offers.

But as Retraction Watch reports, a federal district court judge ruled that the court lacked jurisdiction in this case because the plaintiffs haven’t yet exhausted the administrative process set up to handle misconduct investigations at federally funded labs. The researchers must wait for the ongoing investigation to conclude and air their grievances with the federal Office of Research Integrity (ORI)—but they aren’t precluded from bringing the case back to court in the future.

The investigation came to light last April, after the journal Circulation retracted a paper from Anversa’s lab, and The Lancet issued an “expression of concern” about another. In December, Anversa and Leri sued Harvard and BWH, along with BWH President Elizabeth Nabel and Gretchen Brodnicki, Harvard’s dean for faculty and research integrity, who launched the initial inquiry and called for the retraction of the two papers.

In their complaint, Anversa and Leri acknowledged that the papers contained fictitious data points and altered figures, but argued that the investigation was flawed. They claimed that the investigatory panel had made factual errors and failed to meet the deadlines laid out in Harvard’s bylaws, that members of the panel had conflicts of interest, and that Nabel and Brodnicki had disclosed confidential information by sharing details of the investigation with editors at Circulation and The Lancet and with other BWH scientists. They laid blame for the misconduct on a senior scientist who has since left their lab, Jan Kajstura, and claimed that Kajstura altered data without their knowledge.

The misconduct investigation is ongoing, but this week’s court decision reveals some of the conclusions from an initial inquiry panel, assembled by Harvard Medical School and BWH in 2013. The panel “found substantial evidence that Kajstura may have committed research misconduct acting alone,” according to the court document, and recommended a full investigation of Anversa and Leri “on the theory that they negligently failed to investigate Kajstura’s misconduct.”

The court didn’t rule on whether any of Anversa and Leri’s complaints are justified. Instead, it cited the process already in place to handle such disputes: ORI investigates reports of research misconduct at federally funded institutions, and if it finds a researcher has committed misconduct, it sends a “charge letter” outlining its finding and suggesting sanctions. A researcher can then contest the ORI findings and request a hearing before an administrative law judge.

Anversa and Leri circumvented that process by filing suit in federal district court before the investigation was finished. Their argument, according to the court document, was that the administrative process would be futile because it wouldn’t offer the relief they’re seeking, which includes undisclosed monetary damages.

Judge Denise Casper didn’t accept that argument, but she also didn’t prevent them from returning to court with their allegations later, says Paul Rothstein, a professor of torts, evidence, and civil litigation at Georgetown University Law Center in Washington, D.C.  “The court is plainly telling these people to raise all their arguments in the administrative proceeding that is still ongoing,” he says. The case was dismissed “without prejudice,” meaning that Anversa and Leri can bring the issue back to court once an administrative hearing rules for or against them.

Because Harvard and BWH are not yet off the hook for their handling of the investigation, some still worry that the case will set a negative precedent for universities. “There are already other reasons why institutions may be reluctant to investigate allegations involving research misconduct (e.g., time, expense, loss of revenue, bad publicity),” wrote Ferric Fang, a microbiologist at the University of Washington, Seattle, in an email to ScienceInsider. “It would be concerning if legal liability were added to this list.” And for now, that legal liability “remains an open question,” wrote Fang, who has published several analyses of retractions, misconduct, and the scientific enterprise.

Anversa, Leri, Brodnicki, and Nabel could not be reached for comment. A spokesperson from BWH declined to comment on the status of the investigation.