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Hengjun Chao, M.D v. the Mount Sinai Hospital

December 17, 2010

HENGJUN CHAO, M.D., PLAINTIFF,
v.
THE MOUNT SINAI HOSPITAL, THE MOUNT SINAI MEDICAL CENTER, THE MOUNT SINAI SCHOOL OF MEDICINE, DENNIS S. CHARNEY, M.D., REGINALD MILLER, DVM, ELLEN F. COHN, PH.D., A/K/A/ ELLEN BLOCK COHN, : MAREK MLODZIC, PH.D., HANS SNOECK, PH.D., TERRY KRULWICH, PH.D., HELEN VLASSARA, M.D., JAMES GODBOLD, PH.D., LILIANA OSSOWSKI, MSC, PH.D., DEFENDANTS.



The opinion of the court was delivered by: Hon.Harold Baer, Jr., District Judge

OPINION &ORDER

Plaintiff Dr. Hengjun Chao asserts claims for defamation and other torts arising from a series of statements made during the course of an investigation and disciplinary proceeding related to allegations of research misconduct. Dr. Chao also brings contract-related claims in connection with the termination of his employment contract as well as claims for race-based discrimination under federal, state and local law. Defendants move to dismiss the claims for defamation and other torts, but have not challenged the remaining claims. Although both parties have been unable to follow the page limits permitted and their briefs far exceed the length allowed, I have considered the entirety of their submissions. For the reasons that follow the motion to dismiss is GRANTED in part and DENIED in part.

FACTUAL AND PROCEDURAL BACKGROUND

The genesis of the dispute and allegations of research misconduct In 2007 Dr. Chao worked for Defendant Mount Sinai School of Medicine ("MSSM") as an Assistant Professor and medical researcher. Compl. ¶ 9. Defendant Dr. Ellen Cohn was a postdoctoral student working in Dr. Chao's laboratory. Compl. ¶ 24. This dispute writ large originated with a series of research misconduct allegations that Dr. Chao and Dr. Cohn made against one another in 2007. Dr. Cohn claimed that in July, 2007, Dr. Chao asked her to misrepresent research results by omitting certain data collected from experimental mice, switching other data, and using insufficient sample sizes and analysis. Essig Aff. Ex. E, at 2, 7. Dr. Chao claimed that Dr. Cohn had chosen to misrepresent data of her own and he had tried to stop her. Compl. ¶¶ 24, 26; Essig Aff. Ex. D, at 1, Ex. E, at 7-9. On the advice of a faculty advisor, Cohn consulted Dr. Gwen Randolph, who was collaborating with both parties on the disputed project. Dr. Randolph met with Dr. Chao and Dr. Cohn on July 26, 2007, but was ultimately unable to resolve their dispute over the appropriateness of switching and omitting certain data. Essig Aff. Ex. D., at 2., Ex. E, at 8. As a result, Dr. Cohn transferred out of Dr. Chao's laboratory on August 17, 2007, and began working instead with Defendant Dr. Liliana Ossowski.

On September 21, 2007, Cohn discovered that Dr. Chao was about to submit a manuscript to the journal Nature Medicine that included the allegedly misrepresented data that had given rise to her dispute with the Plaintiff. Dr. Cohn was concerned not just about the propriety of using the data, but also about the fact that she was named as the second author despite having done most of the underlying research and having been largely excluded from the writing and review process. Essig Aff. Ex. D, at 2. On September 25, 2007, Dr. Cohn met with Division Chief Atweh to voice these concerns. Atweh agreed to request that Dr. Chao not submit the manuscript, and arranged a meeting with Dr. Chao and Dr. Cohn for September 27, 2007.

On September 26, 2007, before that meeting could take place, Chao filed a complaint with MSSM's Research Integrity Officer, Defendant Reginald Miller ("RIO Miller"), alleging that Dr. Cohn had fabricated research data in an experiment conducted in January. Compl ¶ 27; Essig Aff.Ex. D, at 2. RIO Miller cautioned Chao that he was concerned the allegations were made for retaliatory reasons. Chao maintained that his complaint was well founded and he wished to press ahead. After commencing an informal preliminary review, RIO Miller determined that Dr. Chao's allegations could not be supported, and Dr. Chao withdrew his complaint. Compl ¶¶ 28-29; Essig Aff. Supp. Mot. Dismiss Ex. E, at 2. Cohn learned of this the next day and, on September 28, learned that Chao had submitted the manuscript without meeting with her.

On October 3, 2007, Cohn filed her own complaint with RIO Miller against Chao. Compl. ¶¶ 30-31. On November 20, 2007, Chao renewed his allegations of research misconduct against Cohn. Regulations governing research misconduct at MSSM When MSSM receives a complaint of research misconduct, it must investigate the allegations in conformity with two coextensive procedures. One is mandated by federal regulations applicable to institutions receiving federal Public Health Service ("PHS") funding, and falls within the jurisdiction of the Office of Research Integrity ("ORI"), an independent entity within the U.S. Department of Health and Human Services. The other is mandated by MSSM's Faculty Handbook, which incorporates in large part the relevant federal regulations, and falls within the jurisdiction of MSSM's multi-tiered disciplinary review system described below. See MSSM Faculty Handbook, Ch. VI, Essig Aff. Ex. B; 42 C.F.R. § 93.300-319 (detailing "Responsibilities of Institutions").

In accordance with the MSSM Faculty Handbook, allegations of misconduct are reported to the Research Integrity Officer ("RIO"). See MSSM Faculty Handbook, Essig Aff. Ex. C, at 7. The RIO meets with the Research Integrity Committee ("RIC") to determine whether the allegations fit within the definition of research misconduct and/or trigger obligations under federal regulations, and assess whether the allegations are "sufficiently credible and specific" to merit further action. If further action is appropriate, the RIC may convene a standing Inquiry Panel ("the Panel"), which consists of at least three members and conducts an initial fact-finding inquiry into the alleged misconduct to determine whether a full investigation should be carried out. The accused faculty member may object to the composition of the Panel based on conflicts of interest. Within 60 days, the Panel must issue a report to the Deciding Officer, in this case the Dean, elaborating its findings and recommending whether to proceed to the "investigation stage." The accused faculty member receives a draft of the report and is entitled to respond and any response will be included in the final report to the Dean. Based on the final report, the Dean decides whether a formal investigation is called for, and must notify ORI within 30 days of his decision.

At the formal investigation stage, the RIC appoints a fact-finding committee (the "Investigation Committee"). The Investigation Committee is composed of research scientists and conducts "a thorough investigation." Its review must "encompass all significant issues identified during the course of the investigation," and "review all relevant documents and interview each person who has been reasonably identified as having relevant information." Id. It then issues a report to the Dean outlining its conclusions regarding research misconduct using a preponderance of the evidence standard. Id. at 10. C.f. 42 C.F.R. § 93.219. Once again, the accused must receive a draft and has access to evidence in order to respond. Any response will be considered in a final report to the Dean. Within 120 days the Dean must review the report and take any related action including disciplinary action. Id. at 10-11.

Any faculty member subject to disciplinary action is entitled to appeal to the Faculty Disciplinary Tribunal upon request to the chair of the faculty. See MSSM Faculty Handbook, Ch. VI, Essig Aff. Supp. Mot. Dismiss Ex. C.*fn1 The Tribunal must hold a hearing within 20 days of a request and "examine all charges and allegations, hear testimony, question witnesses, inspect records and reports, call witnesses, and request the production of records and reports" and allow the faculty member to present relevant witnesses and evidence on his behalf. Testimony must be under oath, the hearing must be recorded stenographically, and both the Dean and Investigation Committee, whose determinations are being appealed, as well as the accused faculty member may be represented by counsel. Id. at 2. The Tribunal makes its findings based on "a preponderance of the evidence" standard, and if appropriate may recommend disciplinary action, including termination. Id. The Dean relays this report to the accused.

The Faculty Disciplinary Tribunal's findings may be appealed to the Board of Trustees. The Chair of the Board convenes an Appeals Board withat least three members from the Board of Trustees. The Appeals Board reviews the record below for: (a) fairness, and (b) a reasonable basis for the findings of the Tribunal and the actions of the Dean. This decision is final within MSSM. Id. at 2-3.

Apart from the MSSM process, ORI may respond separately and directly to any allegation of research misconduct. See 42 C.F.R. § 93.400-523; 42 U.S.C. § 216, 241, 289b. It may review an institution's findings and process, or conduct a separate investigation, make a separate finding of misconduct, and recommend separate disciplinary actions. § 93.400. In making its independent assesment of the allegations, ORI must considers whether they meet the definition of misconduct, whether they implicate PHS funding, and whether they are sufficiently specific. § 93.402.

The inquiry and investigation into research misconduct

a. The initial inquiry into allegations of research misconduct After receiving the cross-complaints of research misconduct from Dr. Cohn and Dr. Chao,RIO Miller met with the RIC and determined that both complaints were sufficiently credible and specific to carry forward. He then convened an Inquiry Panel to review both complaints separately. Compl. ¶¶ 31, 39-40; Def.'s Mem. Supp. Mot. Dismiss 9; Pl.'s Mem. Opp'n Def.'s Mot. Dismiss 5; Essig Aff. Ex. E, at 2.

On December 6, 2007, the Inquiry Panel reviewed the complaint against Dr. Chao and prepared a report which it distributed first to Chao, and then to Defendant Dean Charney and ORI, recommending the commencement of an investigation. Compl. ¶¶ 40-43; Def.'s Mem. Supp. Mot.

Dismiss 8. On February 25, 2008, the Inquiry Panel decided that certain allegations against Cohn were likewise sufficiently substantial to commence an investigation. The Panel distributed the second report to Cohn, and then to Dean Charney and ORI. On March 18, 2008, after reviewing the Panel's reports, Dean Charney informed ORI that he had determined that MSSM would proceed with an investigation into both allegations. Essig Aff. Ex. E, at 3.

b. The formal investigation Based on ORI's recommendation for ensuring fairness, MSSM's formal investigation addressed both complaints as part of the same proceeding. Dean Charney appointed an Investigation Committee comprised of defendant faculty members Dr. Mlodzik, Dr. Snoeck, Dr. Krulwich, Dr. Vlassara, and Dr. Godbold. These members came from various divisions of MSSM. Compl. ¶ 39; Essig Aff. Ex. E, at 1. The Committee met first on April 14, 2008, and held 13 formal sessions between April 28, 2008, and March 13, 2009. At these sessions the Committee interviewed Dr. Cohn, Dr. Chao, Meagan Kelly (a lab technician who had worked with Dr. Chao), Dr. Randolph (who had collaborated with both complainants), Defendant Dr. Ossowski (who ran the lab that Dr. Cohn went to work in after her dispute with Dr. Chao), Dr. Christopher Walsh (Dr. Chao's mentor), Dr. Carl Nathan, and Dr. Atweh (the complainants' Division Chief). Compl. ¶¶ 41, 62; Essig Aff. Ex. E, at 4.

In early 2009, the Committee provided a draft report to Chao finding that he had committed research misconduct. Dr. Chao responded with comments and objections on February 11, 2009. On April 7, 2009, the Committee issued its final report to Dean Charney and to ORI, concluding that Chao had engaged in misconduct and failed to follow the "standards of good laboratory practice" (the "Report" or "Final Report"). Compl. ¶¶ 51, 55-57; Essig Aff. Ex. E. The Report included an addendum in which the Investigaiton Committee provided responses to Chao's comments and objections. Essig Aff. Ex. E. Addendum, at 2.

On May 7, 2009, Dean Charney terminated Chao's appointment to the faculty, based on the Committee's Final Report. Compl. ¶ 63; Essig Aff. Ex. F. Dr. Chao sought review of his termination before the Faculty Disciplinary Tribunal. On June 10, 2009, as part of his ongoing efforts to clear his name, Dr. Chao obtained a letter from Dr. Alan R. Price, a private consultant and former ORI official, in which Dr. Price argued that the Final Report was "inadequate, seriously flawed and grossly unfair in dealing with Dr. Chao." Moskowitz Aff. Ex. C.

The ORI review

The ORI's Division of Investigative Oversight ("DIO") reviewed the Final Report issued in both Chao's and Cohn's cases. In the fall of 2009, it informed RIO Miller that it was declining to recommend that ORI pursue findings of research misconduct in either case. Compl. ¶ 53; Moskowitz Aff. Ex. D; Essig Aff Ex. G; Pl.'s Mem. Opp'n Def.'s Mot. Dismiss 12-13. In announcing its decisions on each case, DIO used form language affirming the institution's authority to conduct its own investigation and make its own findings, according to its own particular standards. In pertinant part, it concluded the following:

Based on the evidence provided by MSSM and during DIO's oversight review, ORI is declining to pursue findings of research misconduct in this case.

In choosing not to pursue findings of research misconduct, ORI recognizes the authority of MSSM to independently set its own standards and make determinations of when staff have failed to meet the norms of behavior expected at the institution. ORI's administrative determination in this case does not diminish the authority of MSSM to draw its own conclusions about the scientific or professional misconduct [at issue].

Moskowitz Aff. Opp'n Mot. Dismiss Ex. D; Essig Aff. Supp. Mot. Dismiss Ex. G. The MSSM appeals process On November 19, 2009, the Faculty Disciplinary Tribunal affirmed Dr. Chao's termination. MSSM's Faculty Disciplinary Tribunal, convened by the Faculty Council and not the Dean, met for three sessions in 2009. It reviewed the claims, records and reports, and heard the testimony and cross-examination of several witnesses, including members of the Investigation Committee. Dr. Chao and Dean Charney were each represented by counsel. Compl. ¶ 65; Essig Aff. Ex. H. In affirming Dr. Chao's termination, the Tribunal found that the Investigation Committee's conclusions were substantiated by a preponderance of the evidence. Compl. ¶ 70; Essig Aff. Ex. H.

On December 16, 2009, Chao appealed the decision of the Faculty Disciplinary Tribunal to MSSM's Board of Trustees, which is independent of both the faculty and the Dean. Moskowitz Aff. Ex. B. The Chairman of the Board of Trustees appointed an Appeals Board consisting of three members of the Board of Trustees. Chao and Dean Charney were once again represented by counsel for these proceedings. On January 26, the parties made written submissions and on February 9, 2010, they made responses. On March 9, 2010, the Board heard oral arguments from both parties. On March 16, 2010, the Board rendered its decision to sustain Dr. ...


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