Duke University in North Carolina

Duke University is at the center of a whistleblower lawsuit concerning potential research misconduct.

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Whistleblower sues Duke, claims doctored data helped win $200 million in grants

On a Friday in March 2013, a researcher working in the lab of a prominent pulmonary scientist at Duke University in Durham, North Carolina, was arrested on charges of embezzlement. The researcher, biologist Erin Potts-Kant, later pled guilty to siphoning more than $25,000 from the Duke University Health System, buying merchandise from Amazon, Walmart, and Target—even faking receipts to legitimize her purchases. A state judge ultimately levied a fine, and sentenced her to probation and community service.

Then Potts-Kant's troubles got worse. Duke officials took a closer look at her work and didn't like what they saw. Fifteen of her papers, mostly dealing with pulmonary biology, have now been retracted, with many notices citing "unreliable" data. Several others have been modified with either partial retractions, expressions of concern, or corrections. And last month, a U.S. district court unsealed a whistleblower lawsuit filed by a former colleague of Potts-Kant. It accuses the researcher, her former supervisor, and the university of including fraudulent data in applications and reports involving more than 60 grants worth some $200 million. If successful, the suit—brought under the federal False Claims Act (FCA)—could force Duke to return to the government up to three times the amount of any ill-gotten funds, and produce a multimillion-dollar payout to the whistleblower.

The Duke case "should scare all [academic] institutions around the country," says attorney Joel Androphy of Berg & Androphy in Houston, Texas, who specializes in false claims litigation. It appears to be one of the largest FCA suits ever to focus on research misconduct in academia, he says, and, if successful, could "open the floodgates" to other whistleblowing cases.

False claims lawsuits, also known as qui tam suits, are a growing part of the U.S. legal landscape. Under an 1863 law, citizen whistleblowers can go to court on behalf of the government to try to recoup federal funds that were fraudulently obtained. Winners can earn big payoffs, getting up to 30% of any award, with the rest going to the government. Whistleblowers filed a record 754 FCA cases in 2013, and last year alone won nearly $600 million. The U.S. government, meanwhile, has recouped more than $3.5 billion annually from FCA cases in recent years.

Relatively few of these cases have targeted research universities (see box, below); many allege fraud in health care or military programs. But that's changing. The FCA "is increasingly being used to target alleged fraud in a diverse array of industries, including research and academia," says attorney Suzanne Jaffe Bloom of Winston & Strawn LLP in New York City. Although recent court rulings suggest public universities may have some protection from qui tam suits because they are government entities, private institutions do not. Eleven private universities, including Duke, are among the top 25 recipients of federal funding for academic science over the past decade.

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The Duke case centers on allegations made by biologist Joseph Thomas, who, according to court documents, joined Duke's cell biology department in 2008. In 2012 Thomas moved to the pulmonary division, where Potts-Kant worked under William Michael Foster investigating how pollutants affect the body's airways. After Potts-Kant was placed on leave in 2013, the pulmonary division conducted an investigation of the data produced by Foster's lab, according to the lawsuit. (Duke has not released the results of the investigation.) Investigators analyzed raw data, recalculated results, and reran experiments, according to the suit. Thomas, who says he participated in the review, claims that other reviewers and pulmonary division staff told him that Potts-Kant doctored nearly every experiment or project in which she participated. Sometimes, the suit alleges, she hadn't exposed mice to the right experimental conditions or run the experiments at all. Other times, Thomas alleges, Potts-Kant had run the experiments but altered the data, tweaking them to match the hypothesis or boost their statistical significance.

Thomas, who no longer works at Duke, alleges that Foster and others at Duke were aware of concerns raised about Potts-Kant's work even before the investigation began. There were obvious red flags, he contends. For example, she spent far less time completing a research task than required by an equally experienced researcher. And at least one outsider had raised questions about her data at a scientific meeting. But the university withheld the scope of what it knew from federal funding agencies as it filed reports on existing grants and applied for new ones, the lawsuit alleges.

Specifically, Thomas alleges that since 2006 Duke received at least 49 grants worth $82.8 million from the National Institutes of Health (NIH), the Environmental Protection Agency, and other agencies "that were directly premised on and/or arose from the research misconduct and fraud of Potts-Kant and/or the Foster lab." And he alleges that the doctored data helped other institutions win 15 additional grants, worth $120.9 million, from NIH. (Those grants involved using the Duke lab for some research tasks.)

Foster did not respond to requests for comment on the case. Thomas—who is represented by his brother John Thomas of Gentry Locke LLP in Roanoke, Virginia—would not comment, and Potts-Kant could not be reached. In a statement, Duke spokesperson Michael Schoenfeld says that officials learned of the "discrepancies" in Potts-Kant's data only after her embezzlement was discovered in 2013. "Even though the full scope of Ms. Potts-Kant's actions were not known at the time, Duke notified several government agencies in June 2013 about the matter and immediately launched a formal scientific misconduct investigation, as required by federal law," he stated. "Since then, Duke has provided extensive information to the government regarding the grants in question, and we will continue to cooperate with their investigation." (The government has not joined the case, but could later.)

An attorney not associated with the case says it may face obstacles. Although the high number of retractions suggests that Thomas can meet the FCA's requirement that "falsity" exists, it may be more difficult to show that the inclusion of fraudulent data was key to winning the grants, another essential aspect of an FCA case, says Torrey Young of Foley & Lardner LLP in Boston. "An important concept," she says, is that "you can have research misconduct without having a false claim."

Alison McCook is an editor at Retraction Watch based in Philadelphia, Pennsylvania. This story was produced under a collaboration between Science and Retraction Watch.