Whistleblower Dr. Kenneth Jones and his wife Priscilla Jones won an appeal yesterday in the U.S. Court of Appeals for the First Circuit. In vacating a summary judgment, the Court held that Jones presented sufficient evidence of fraud to require a jury trial. Dr. Jones claims that Drs. Marilyn Albert and Ronald Killiany fudged brain scans in a project studying Alzheimer’s Disease (AD) to support continued federal funding of their research. Their project was one of the largest Alzheimer’s Disease research grants awarded by the National Institutes of Health (NIH). After the study failed to show positive results, Dr. Killiany re-traced certain areas of selected brain scans to get the positive results they were seeking. They further reported that their data exceeded reliability measures without disclosing that those measures applied to the negative results, not the positive results that came from the retracings. Finally, defendants made a false certification that they complied with the regulations governing investigations into scientific misconduct (42 C.F.R. § 50.103(c)(3)). The case is US ex rel. Jones v. Brigham and Women’s Hospital and Harvard University.
Dr. Jones was the chief statistician for the NIH grant. He blew the whistle after realizing that measurements used to demonstrate the reliability of the study had been secretly altered. Without these alterations, Dr. Jones explained, there was no statistical significance to the major findings of the study. After Dr. Jones insisted that the altered measurements be subjected to a reliability study and that the results could not be presented as part of a $15 million federal grant extension application, he was terminated and his career came to an end.
The First Circuit overturned a summary judgment. The First Circuit found that the lower judge had abused his discretion in failing to consider substantial evidence of fraud. This evidence established that Harvard knew of the falsifications and failed to take action to correct or disavow the data. Dr. Jones presented testimony from three experts: a statistician who confirmed that the alterations were responsible for the statistical significance of the study results, a medical researcher who identified that the altered results could not be justified and were changed to establish a predetermined outcome, and a third expert who confirmed that NIH would not have funded the study had the falsity of the data been revealed during the application process and that Harvard failed to adequately investigate allegations of research fraud. The published First Circuit opinion concludes:
the essential dispute is about whether Killiany falsified scientific data by intentionally exaggerating the re-measurements of the EC to cause proof of a particular scientific hypothesis to emerge from the data, and whether statements made in the Application about having used blinded, reliable methods to produce those results were true.
"This is a major breakthrough holding universities accountable for the integrity of reported research results," explained Michael D. Kohn, one of the lead attorneys for Dr. Jones. "Fraud committed to obtain NIH funding not only robs taxpayers, but also sets back long-term medical research goals. The facts of this case indicate that the report of false data misdirected research efforts at other institutions."
Kohn, who also serves as President of the National Whistleblowers Center, continued:
This is a potent example of how employees who risk their careers to do the right thing can hold even the most powerful and prestigious institutions accountable. Bullying and blacklisting scientists by the likes of Harvard to cover-up research fraud represents a terrible disservice to society as a whole.
Congratulations go to Dr. Jones’ legal team, including Jeremy L. Friedman, William D. Hughes and Michael Kohn.
