$1.6 Million Fraud Award Overturned

University officials are applauding a federal appeals court decision throwing out charges by a former graduate student that her school defrauded the federal government by wrongly taking credit for her work in grant applications. On 22 January, the appeals court firmly rejected charges brought by the plaintiff, nutritionist Pamela Berge, easing universities' fears that they might face a wave of similar lawsuits.

The suit stemmed from Berge's work in 1987 as a visiting researcher studying cytomegalovirus (CMV) at the University of Alabama, Birmingham (UAB). Three years later, Berge accused a UAB grad student of plagiarizing her work. The university conducted two investigations but found no misconduct, and the Department of Health and Human Services apparently declined to take up the case. So in 1993, Berge sued under the False Claims Act--which allows "qui tam" lawsuits by citizens who allege fraud in government contracts--claiming that UAB and four of its researchers had made false claims in grant proposals to the National Institutes of Health (NIH), which funded the CMV work. In 1995, a federal court in Baltimore ordered UAB to pay $1.65 million and the researchers $10,000, 30% of which went to Berge.

The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, however, was not persuaded by Berge's claims. It found that the alleged false statements "were not material to [NIH's] funding decisions, and ... indeed, are not even false." And the court found that Berge, at the time a doctoral student at Cornell University, had overestimated her contributions: "The hubris of any graduate student to think that such grants depend on the results of her work is beyond belief. That is not the way Big Science works." One of Berge's attorneys, Alexander T. Bok of Boston, says she will appeal.

University groups--several of which filed amicus curiae briefs in the case--hope the court's scathing language will discourage other qui tam suits. The decision, says UAB's attorney, Barbara Mishkin of Washington, D.C., sends the message that this type of dispute among co-authors "is not a federal case."