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Franck Mauvais-Jarvis, M.D., P.H.D v. Winifred P. S. Wong

March 28, 2013

FRANCK MAUVAIS-JARVIS, M.D., P.H.D.,
PLAINTIFF-APPELLANT,
v.
WINIFRED P. S. WONG, JOSEPH T. WALSH, LAURAN QUALKENBUSH, JON E. LEVINE, MICHELLE L. OESER, NORTHWESTERN
UNIVERSITY, AND JOHN AND JANE DOES , NOS. 1 THROUGH 10,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County, Illinois, County Department, Law Division. No. 11 l 00614 Honorable Michael R. Panter Judge Presiding.

The opinion of the court was delivered by: Justice Fitzgerald Smith

JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justice Pucinski concurred in the judgment and opinion.

OPINION

¶ 1 The plaintiff, Franck Mauvais-Jarvis (hereinafter Mauvais-Jarvis), filed a complaint in the circuit court alleging, inter alia, that the defendants, Winifred P. S. Wong (hereinafter Wong), Joseph T. Walsh (hereinafter Walsh), Lauran Qualkenbush (hereinafter Qualkenbush), Jon E. Levine (hereinafter Levine), Michelle L. Oeser (hereinafter Oeser), and Northwestern University (hereinafter Northwestern or the University), either defamed him or conspired to defame him by formally presenting to the Northwestern internal inquiry committee allegations that MauvaisJarvis submitted inaccurate data for publication in a scientific paper. The defendants filed motions to dismiss the complaint pursuant to sections 2-615 and 2-619 of the Illinois Code of Civil Procedure (Civil Procedure Code) (735 ILCS 5/2-615, 2-619 (West 2008)) and the circuit court granted their motions pursuant to section 2-619 (735 ILCS 5/2-619 (West 2008)).*fn1 The court dismissed the defamation counts, holding that since the defendants acted under a mandatory duty to report and investigate suspected research misconduct, their statements were protected by absolute privilege. The court also dismissed the conspiracy to defame counts, finding: (1) that since the statements at issue were protected by absolute privilege, the plaintiff had failed to allege any actionable conduct (i.e., defamation) underlying the alleged conspiracy and (2) that, in any event, the conspiracy counts were time-barred pursuant to section 13-201 of the Civil Procedure Code (735 ILCS 5/13-201 (West 2008)). The plaintiff now appeals, contending that the circuit court improperly applied absolute privilege to the defendants' statements when no such privilege is recognized under Illinois law in the context of a university research misconduct proceeding. The plaintiff also argues that his civil conspiracy claim is not time-barred because the applicable statute of limitations is found in section 13-205 of the Civil Procedure Code (735 ILCS 5/13-205 (West 2008)), and not section 13-201 of that Code (735 ILCS 5/13-201 (West 2008)) and permits the filing of such claims within five years. For the reasons that follow, we affirm in part, and reverse and remand in part.

¶ 2 I. BACKGROUND

¶ 3 The record reveals the following undisputed facts and procedural history. Defendant Northwestern University is a specially chartered private Illinois corporation. As an institution that receives federal funding for biomedical and behavioral research it is governed by a complex set of federal regulations with respect to investigating research misconduct.

¶ 4 A. The Federal Regulations

¶ 5 Pursuant to the Public Health and Welfare Act (42 U.S.C. § 289b (2008)) the Secretary of the United States Department of Health and Human Services (HHS) has established an agency, the Office of Research Integrity (ORI), within the Public Health Service (PHS),*fn2 responsible for investigating all reports of research misconduct from institutions receiving HHS funding. The Secretary has also promulgated regulations, entitled "Public Health Services Polices on Research Misconduct," requiring institutions that receive such financial assistance to establish proceedings*fn3 to investigate good-faith allegations of research misconduct and to report all such investigations to the ORI. See 42 U.S.C. § 289b (2008); see also 42 C.F.R. § 93 et seq. (2005).

¶ 6 Pursuant to these regulations, "[i]nstitutions and institutional members have an affirmative duty to protect PHS funds from misuse" and the "primary responsibility for responding to and reporting allegations of research misconduct." 42 C.F.R. § 93.100(b) (2005) "Research misconduct" is defined as:

"fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.

(a) Fabrication is making up data or results and recording or reporting them.

(b) Falsification is manipulating research materials, equipment, or processes, or changing or omitting data or results such that the research is not accurately represented in the research record.

(c) Plagiarism is the appropriation of another person's ideas, processes, results, or words without giving appropriate credit.

(d) Research misconduct does not include honest error or differences of opinion."

42 C.F.R. § 93.103 (2005).

¶ 7 The regulations recognize that research misconduct proceedings are most often initiated by a complainant, i.e., a person who brings forward allegations that a researcher has committed research misconduct. The regulations therefore require that the complainant make allegations in "good faith." See 42 C.F.R. § 93.203 (2005) ("Complainant means a person who in good faith makes an allegation of research misconduct." (Emphasis added.)). "Good faith" is defined as: 42 C.F.R. § 93.223 (2005).

"having a belief in the truth of one's allegation or testimony that a reasonable person in the complainant's or witness's position could have based on the information known to the complainant or witness at the time. An allegation or cooperation with a research misconduct proceedings is not in good faith if made with knowing or reckless disregard for information that would negate the allegation or testimony." 42 C.F.R. § 93.210 (2005).

¶ 8 The regulations mandate that any institution receiving federal funding for research establish a two-tiered procedure for investigating allegations of research misconduct: (1) an inquiry and (2) an investigation. 42 C.F.R. §§ 93.212, 93.307-93.309, 93.215, 93.310-93.313 (2005).

¶ 9 The "inquiry," or the "preliminary information-gathering and preliminary fact-finding" stage (42 C.F.R. § 93.212 (2005)), is intended as "an initial review of the evidence" to determine whether an allegation warrants a further investigation, and therefore "does not require a full review of all the evidence related to the allegation." 42 C.F.R. §§ 93.307(c), (d) (2005). The person accused of research misconduct must be placed on notice of an inquiry. See 42 C.F.R. § 93.307(b) (2005) ("At the time of or before beginning an inquiry, an institution must make a good faith effort to notify in writing the presumed respondent, if any."). The institution must also timely complete the inquiry "within 60 calendar days of its initiation unless circumstances clearly warrant a longer period." 42 C.F.R. § 93.307(g) (2005). Once the inquiry is completed, the institution must prepare a written report of the inquiry committee's decision. 42 C.F.R. § 93.307(e) (2005). If the inquiry board determines that the allegations warrant an investigation, the institution must send the written report to the ORI. 42 C.F.R. § 93.309(a) (2005). If, however, the inquiry committee determines that it is not necessary to proceed with an investigation, it must merely retain its written report and all relevant evidence collected therein on file within the institution for the next seven years. 42 C.F.R. § 93.309(c) (2005).

¶ 10 The second, "investigation" stage of the proceedings is defined as:

"the formal development of a factual record and the examination of that record leading to a decision not to make a finding of research misconduct or to make a recommendation for a finding of research misconduct which may include a recommendation for other appropriate actions, including administrative actions." 42 C.F.R. § 93.215 (2005). During the investigation, the institution must interview witnesses and diligently pursue all leads.

42 C.F.R. §§ 93.310(g), (h) (2005). The investigation must be commenced "within 30 days after determining that an investigation is warranted" (42 C.F.R. § 93.310(a) (2005)), and the accused must be notified in writing of all allegations against him before the investigation begins. See 42 C.F.R. § 93.310(c) (2005) (The institution must "[n]otify the respondent in writing of the allegations within a reasonable amount of time after determining that an investigation is warranted, but before the investigation begins."). The final findings of the investigation committee must be memorialized in a written report (42 C.F.R. § 93.313 (2005)) and must be given to the accused for comment (42 C.F.R. § 93.312 (2005)). The final report must also be sent to the ORI. 42 C.F.R. § 93.315 (2005). The investigation itself must be completed "within 120 days of beginning it, including conducting the investigation, preparing the report of findings, providing the draft report for comment *** and sending the final report to ORI." 42 C.F.R. § 93.311(a) (2005). If the institution is unable to complete the investigation within 120 days, it must request, in writing, an extension of time from the ORI. 42 C.F.R. § 93.311(b) (2005).

¶ 11 After an institution completes its two-tiered investigatory procedure, the ORI may become involved by, inter alia, reviewing the institution's findings, making its own finding of research misconduct and proposing administrative actions to the HHS. 42 C.F.R. § 93.400 (2005). When the ORI does choose to get involved and makes its own finding of research misconduct, it must propose and obtain HHS approval for "administrative actions," and must notify the respondent of these actions in a formal charge letter. 42 C.F.R. §§ 93.404-93.405 (2005). The HHS may then impose "HHS administrative actions" including, inter alia: (1) clarification, correction or retraction of the research record; (2) letters of reprimand; (3) suspension or termination of a PHS grant; (4) restriction on specific activities or expenditures under an active PHS grant; (5) adverse personnel action if the respondent is a federal employee; and (6) suspension or debarment from future grant funding for the individual respondent. See 42 C.F.R. §§ 93.400(c)(2), 93.404, 93.407 (2005).

¶ 12 A respondent has an opportunity to contest the ORI research misconduct findings and the HHS administrative actions by requesting an "administrative hearing" before an administrative law judge (ALJ) affiliated with the HHS within 30 days of receiving an ORI charge letter. 42 C.F.R. §§ 93.500-93.501 (2005). The parties to the hearing are only the respondent and the ORI, and not the institution where the research misconduct proceedings were initiated. 42 C.F.R. § 93.505 (2005). During such an administrative hearing, the parties are permitted to, inter alia: (1) be represented by counsel; (2) conduct discovery; (3) present relevant evidence and cross-examine witnesses; (4) agree to a stipulation of facts; (5) file motions in writing; and (6) make oral arguments. 42 C.F.R. § 93.505 (2005). After the hearing, the ALJ issues a ruling in writing setting forth his proposed findings of fact and any conclusions of law.

42 C.F.R. § 93.523(a) (2005). The ALJ's decision constitutes a recommended decision to the Assistant Secretary for Health, who reviews the ALJ's recommendations and makes a final decision. 42 C.F.R. § 93.523(b) (2005). The Assistant Secretary of Health's decision is the final HHS action, unless debarment or suspension is an administrative action recommended in the decision. 42 C.F.R. § 93.523(b) (2005). If a decision results in a recommendation for debarment or suspension, the Assistant Secretary of Health must serve a copy of that decision upon the HHS debarring official. 42 C.F.R. § 93.523(c) (2005). The debarring official then makes the final HHS decision on a debarment or suspension. 42 C.F.R. § 93.523(c) (2005).

¶ 13 Because the consequences of a research misconduct proceeding can be dire, the regulations impose conditions of strict confidentiality on allegations of research misconduct. As section 93.108 of the regulations states:

"Disclosure of the identity of respondents and complainants in research misconduct proceedings is limited, to the extent possible, to those who need to know, consistent with a thorough, competent, objective and fair research misconduct proceeding, and as allowed by law." 42 C.F.R. § 93.108(a) (2005).

Disclosure of records or other evidence from which research subjects might be identified is also limited to "those who have a need to know to carry out a research misconduct proceeding." 42 C.F.R. § 93.108(b) (2005).

¶ 14 B. Northwestern's Internal Research Misconduct Policy and Procedures

¶ 15 Pursuant to the aforementioned federal regulations, Northwestern has set up its own policy and procedures for reviewing allegations of research misconduct as well as its own office of research integrity (hereinafter Northwestern's ORI). Northwestern's ORI is intended as an "independent and objective" agent responsible for facilitating the inquiry and the investigation processes. This office is headed by the vice president of research (VPR) who appoints the associate vice president for research integrity (AVPRI) to oversee the activities of both the inquiry and investigation committees.

¶ 16 Northwestern's policy and procedures closely mirror the federal regulations in many aspects, including: (1) defining "research misconduct;" (2) requiring "good faith" and "confidentiality" from all parties involved, including the complainant and the respondent; (3) creating a two-tiered investigation process, including an inquiry and an investigation; and (4) defining the scope and time frame of the inquiry and investigation proceedings.

¶ 17 Northwestern's policy advises all of its employees that they "should report observed, suspected or apparent research misconduct in research to [their] department chair or dean, and through such consultation determine whether the matter should be pursued." (Emphasis added.) The policy also permits employees to report suspected research misconduct directly to the VPR or the AVPRI, or the provost of the University.

¶ 18 Northwestern's policy deviates from the federal regulations in other respects. For one, it permits the University provost to consult "in confidence" with the VPR, the AVPRI, and the director of Northwestern's ORI, as well as the deans and other relevant university personnel, in the initial and preliminary assessment of all allegations of research misconduct. According to the policy, the purpose of this initial assessment is to determine the appropriate roles and responsibilities of the university, its personnel and the oversight agencies with respect to evaluating the allegations, as well as to identify individuals, information and data relevant to the allegations. During this consultation, the director of Northwestern's ORI determines whether the allegation meets the definition of "research misconduct" and warrants further action, i.e., an inquiry followed by an investigation. According to Northwestern's policy, after an investigation committee makes it findings, the provost is authorized to determine and invoke appropriate sanctions or disciplinary actions within the university.

¶ 19 C. The Parties

¶ 20 Plaintiff, Mauvais-Jarvis, is an associate professor of medicine at Northwestern University's Feinberg School of Medicine and the Research Director of Northwestern's Comprehensive Center on Obesity. He is a leading expert in endocrinology and diabetes research, having authored over 50 scientific articles and book chapters in this field. MauvaisJarvis is a member of the prestigious American Society for Clinical Investigation, and the recipient of numerous awards including, inter alia, the Pioneer Award from the Institute for Women's Health Research at Northwestern and the Innovative Research Grant from the American Heart Association. His current research centers on the effect of the female hormone, estrogen, in the protection from diabetes mellitus and obesity in humans. Mauvais-Jarvis champions the discovery of estrogen receptors' activation in protecting insulin-producing pancreatic a-cells in type 1 and type 2 diabetes.

¶ 21 As part of his research at Northwestern, Mauvais-Jarvis oversees a laboratory where he conducts research funded, in substantial part, by the NIH, a division of the HHS.

¶ 22 Defendant, Wong, worked in Mauvais-Jarvis' laboratory as a postdoctoral fellow between 2006 and May 2010. Defendant Oeser worked in Mauvais-Jarvis' laboratory as a research technician between 2006 and June 2008, when she left to pursue a doctorate in biology at the University of Washington. Defendant Levine is a professor emeritus at Northwestern. At the time of the events underlying this cause of action, he was a full-time professor of neurobiology and physiology at Northwestern. In 2010, he became the director of the Wisconsin National Primate Research Center at the University of Wisconsin in Madison. Defendant Walsh is Northwestern's VPR and defendant Qualkenbush is the director of Northwestern's ORI.

¶ 23 D. The Undisputed Facts

¶ 24 Much of the factual background of this case is in dispute. We will therefore begin by setting forth the facts that the parties agree upon. The parties agree that in 2008, Mauvais-Jarvis and his laboratory personnel were involved in a research project involving the possibility of estrogen amplifying a-cell insulin synthesis via extranuclear signaling of the estrogen receptor a. This project was funded by an NIH grant. As a result of this research, in June 2008, MauvaisJarvis, Wong and Oeser submitted a manuscript for possible publication in the Journal of Biological Chemistry. Because of her doctoral degree and seniority, Wong was assigned as the "first author" on the draft manuscript. As a lab technician, Oeser was responsible for collecting and then mapping certain data that was included in two figures within the manuscript, figures 6C and 6H. Those two figures, however, contained fabricated data. The parties disagree as to who is responsible for the fabrication of the data, with Oeser alleging that it is Mauvais-Jarvis and Mauvais-Jarvis contending that it is Oeser.

¶ 25 After leaving Mauvais-Jarvis' laboratory for graduate school, Oeser contacted defendant Levine to discuss the fabricated data. Oeser knew Levine because she had worked in his in laboratory as a researcher, while completing her undergraduate degree at Northwestern. Levine advised Oeser that the manuscript should be withdrawn. As a result, on June 23, 2008, Oeser informed Mauvais-Jarvis of the inaccuracy of the submitted data and asked that her name be removed from the manuscript. Mauvais-Jarvis directed Wong to run the actual experiments and collect the data. When the paper came back from the reviewers of the Journal of Biological Chemistry, the corrected figures and data were inserted in the paper and on July 8, 2008, with approval from Andrea Dunaif, Mauvais-Jarvis' division chief and direct supervisor, the manuscript was resubmitted for publication.

¶ 26 Soon thereafter, on July 22, 2008, upon recommendation from Larry Jameson, dean of Northwestern's Feinberg School of Medicine (and also co-author of the manuscript), MauvaisJarvis withdrew the paper from review by the Journal of Biological Chemistry until the matter could be resolved within the university. Since then, significant changes have been made to the paper and in June 2010, it was published in another prestigious journal, the Proceedings of the National Academy of Sciences.

¶ 27 On July 30, 2008, Northwestern's ORI sent Mauvais-Jarvis a letter, notifying him that Oeser and Levine had accused him of research misconduct. Specifically, Mauvais-Jarvis was charged with "falsifying" figures 6C and 6H in the draft manuscript submitted to the Journal of Biological Chemistry in early June of that year. Soon thereafter, Northwestern officials convened an inquiry committee of faculty members to assess the allegations of research misconduct. The committee reviewed the allegations and interviewed various witnesses, including Wong. On May 5, 2009, the committee issued its final report unanimously concluding that the charges by Oeser and Levine were not credible and did not merit a full investigation.

¶ 28 Soon thereafter, it became apparent that other data, in figure 4F, of the manuscript submitted to the Journal of Biological Chemistry was inaccurate. The parties disagree as to who is responsible for this incorrect data, with Wong arguing that it is Mauvais-Jarvis and MauvaisJarvis pointing the finger at Wong. As a result, on December 17, 2010, as Northwestern's director of ORI, Qualkenbush issued a new charge letter against Mauvais-Jarvis, alleging that Mauvais-Jarvis had: (1) falsified figure 4F; (2) falsified figures 6C and 6H; and (3) instructed Wong to lie to the inquiry committee in February 2009 and tell them that Oeser was responsible for the falsified images in figures 6C and 6H. The charge letter also stated that in an attempt to coerce Wong into saying what he wanted her to say, Mauvais-Jarvis told her that "the lives of the five people in [his] lab depended on what she told the Committee." Qualkenbush sent copies of this letter to two administrative officials at the Feinberg School of Medicine (the dean for research and the chair of the department of medicine). A Second inquiry committee was then convened. On June 2, 2011, that committee concluded that sufficient evidence was presented to warrant a full investigation into all of the charges against Mauvais-Jarvis. Walsh, Northwestern's VPR, then sent a letter to Mauvais-Jarvis listing all those allegations. Qualkenbush forwarded copies of this letter to the interim dean and the vice dean of the Feinberg School of Medicine.

On June 13, 2011, Mauvais-Jarvis filed this lawsuit.

¶ 29 E. The Complaint

¶ 30 In his five-count complaint, Mauvais-Jarvis alleges: (1) defamation per se against Wong, Walsh, Qaulkenbush and Northwestern (counts I and III); (2) defamation per quod against Wong, Walsh, Qualkenbush and Northwestern (count II and IV); and (3) civil conspiracy against Oeser, Wong and Levine (count V).

¶ 31 1. Defamation Claim Against Wong

¶ 32 With respect to Wong, Mauvais-Jarvis first alleges that statements she made in an email exchange with Qualkenbush on July 22, 2010, were defamatory per se and per quod. In that email exchange, Qualkenbush initially wrote to Wong:

"Hello Winnie [Wong],

Thank you for taking the time to talk this afternoon. I'm sending the revised language for the allegations for your review and approval.

DRAFT allegation language:

You instructed Winifred Wong to lie on your behalf in preparation for her interview with the Inquiry Committee in February 2009. Specifically, you instructed Ms. Wong to inform the Committee that Michelle Oeser was responsible for the falsified images in the manuscript. In addition, in an attempt to coerce her into saying what you wanted, you told Ms. ...


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