Anderson, Christopher. "Michigan Gets and Expensive Lesson," Science 262 (1 October 1993),

 

Anderson, Christopher. "Michigan Gets and Expensive Lesson," Science 262 (1 October 1993),
p. 23.

Universities struggling to investigate allegations of misconduct by their faculty members have a
new incentive to do it right. Earlier this month, a judge upheld a jury verdict of $1,246,000 to a
former University of Michigan psychology researcher who claimed the university botched an
investigation into her allegations of scientific misconduct. The ruling, which the university plans
to appeal, represents the first time a court has fined a university a substantial amount in a case
involving scientific misconduct. But legal experts expect the high cost of such actions to deter
most scientists from rushing into court.

The plaintiff is Carolyn Phinney, a former research psychologist at the University of Michigan's
Institute of Gerontology. Phinney claimed that in 1989, while she was at the institute, her
supervisor, Marion Perlmutter, took her research on the measurement of wisdom and its
correlations with aging and included it an a grant application to the National Science Foundation
(NSF) without crediting Phinney. Phinney discussed her concerns with a colleague, who reported
them to Richard Adelman, director of the institute. When Adelman launched an investigation,
Phinney was forced to take an active role as a whistleblower. Four faculty panels were eventually
formed to investigate Phinney's allegations of plagiarism and theft of research materials against
Perlmutter, but the court heard evidence that each panel contained at least one member who had
been a participating faculty member on one or more of Perlmutter's grants. None of the faculty
panels found Perlmutter guilty of plagiarism. In 1990, Phinney filed suit, charging that during
and after the investigation Adelman had sought to discredit her and damage her reputation. In
1992 Phinney's contract with the university was not renewed, and she is currently unemployed.

In May, a jury ruled in Phinney's favor, finding that Adelman had violated the state's
Whistleblower Protection Act. The jury also found that Perlmutter had committed fraud by
making false promises regarding grants, authorship, and employment to Phinney in order to
obtain access to Phinney's research. It awarded Phinney $1.1 million - $130,300 to be paid by
Perlmutter and $989,200 by Adelman. Last week the judge upheld the damages, and awarded
another $126,000 in interest fees.

The university is paying for Adelman's lawyers (and will pay the damages Adelman owes
Phinney if the award is not reversed on appeal), but not Perlmutter's. University spokesman
Walter Harrison says this is because Adelman was acting as an agent of the university in
overseeing the investigations, but Perlmutter was acting as an individual. "We don't indemnify
all university researchers," he says.

"We believe Professor Adelman made a good-faith effort to investigate" the charges, Harrison
says. "But clearly, we were unable to convince a jury of that." Adelman declined to comment on
the case and Perlmutter was unavailable for comment.

Attorneys specializing in scientific misconduct say the case is the first in which a whistleblower
has won a financial award as a result of a suit charging retaliation. But they do not predict a flood
of imitators. "A civil suit has always been an option," says Barbara Mishkin of the Washington,
D.C. firm of Hogan and Hartson "but it's costly to do and hard to find a lawyer willing to do it."
The cost of such cases typically amount to hundreds of thousands of dollars, she says. Robert
Charrow, an attorney with the Washington firm of Crowell & Moring, says a whistleblower
contemplating a civil suit has to be prepared for years of "psychic energy-sapping" litigation.

Although the decision may still be appealed, Phinney believes that her point has been made. "I
hope that my victory dissuades scientists who are considering retaliating against a
whistleblowers," she says. Harrison says that the university will review its procedures for
investigating misconduct allegations in the wake of the verdict. Among the possible changes are
making sure at least one member of every investigation panel comes from outside the university
and including legal experts from the outset.