Duke University in Durham, North Carolina, is on the verge of settling a case brought by a former employee who claims the university included faked data in applications and reports for federal grants worth nearly $200 million.
According to court documents filed last week in the Middle District of North Carolina in Greensboro, former Duke biologist Joseph Thomas, who sued the university in 2015 under a federal law that allows whistleblowers to receive as much as 30% of any payout, is waiting for the U.S. Department of Justice to approve the settlement. Thomas brought his case under the federal False Claims Act (FCA), which could force Duke to return to the government up to three times the amount of any ill-gotten funds.
The terms of the settlement are not yet known, but are expected to be disclosed at a hearing scheduled for 7 December.
Universities have been watching the case with interest. FCA claims against universities have been relatively rare, and a hefty settlement could prompt other academic whistleblowers to file similar cases, although private universities might be more vulnerable than public institutions. Regardless of the final settlement, the Duke case sends “the strong message to private institutions … go back and look at your grants because otherwise, you’re susceptible to a very large and ugly lawsuit that’s going to damage your programs,” says attorney Joel Androphy of Berg & Androphy in Houston, Texas, who specializes in FCA cases.
In his suit, Thomas alleged that Duke biologist Erin Potts-Kant—who has now had 17 papers retracted, including many that reported on work done with her supervisor, pulmonology research William Michael Foster—included fraudulent data in 60 grant applications and reports. Potts-Kant had earlier pleaded guilty to embezzling more than $25,000 from Duke; that case prompted university officials to scrutinize her lab.
Duke declined to comment on the proposed settlement. Attorneys for the plaintiff, who include John Thomas, formerly of Gentry Locke LLP in Roanoke, Virginia, and now of Healy Hafemann Magee, tells Science and Retraction Watch, “We are pleased that the parties have reached a settlement,” but declined further comment. (Joseph Thomas is John Thomas’s brother.)
Androphy says such cases typically settle for 1.5 to two times the amount that plaintiffs prove was fraudulently obtained. Last year, Partners HealthCare and the Brigham and Women’s Hospital in Boston settled an FCA case involving faked data for $10 million.
Androphy said the length of this case—3.5 years—is shorter than what he usually sees. And he said he would not be surprised if, in its final settlement, the government requires Duke to agree to an enhanced compliance program for grants. A hint of such a program surfaced in March, when the National Institutes of Health (NIH) told Duke—in an unusual move—that its grant recipients would have to obtain prior approval for any changes to new or existing grants. The new oversight, according to a letter from NIH to Duke, is “a result of its concerns about Duke’s management of several research misconduct cases and grant management issues that date back to 2010, some of which have been widely reported like the Anil Potti case.”
Last year, the Thomas case survived Duke’s motion to dismiss. In the course of the case, Potts-Kant admitted to faking data, and Duke acknowledged that it knew she had. Available court records, however, suggest Duke maintained that it did not discover the faked data until after the university submitted the grants in question.
In September, Duke suffered a setback in the case after a judge’s ruling led to the release of numerous entries from a diary kept by Joseph Thomas that describe conversations among lab members. Joseph Thomas alleged they show that various researchers had knowledge of wrongdoing.
This story was produced under a collaboration between Science and Retraction Watch.