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Helm v. Ratterman

United States District Court, W.D. Kentucky, Louisville Division

June 28, 2017



          Thomas B. Russell, Senior Judge.

         In 2009, the University of Louisville School of Medicine chose not to renew the contract of Dr. C. William Helm, a cancer researcher, after he was accused of plagiarizing a colleague's work. That accusation and the events that followed gave rise to no less than four lawsuits, including two in federal court. This Court dismissed Helm's first federal suit against two University deans, holding that while Helm had a property interest in having the University follow its research misconduct policy, he had not filed his claim within the one-year statute of limitations. Helm v. Eells, No. 3:14-CV-00654-TBR, 2015 WL 1778367 (W.D. Ky. Apr. 20, 2015); Helm v. Eells, No. 3:14-CV-00654-TBR, 2015 WL 3849614 (W.D. Ky. Jun. 22, 2015) (collectively “Helm I”). The Sixth Circuit affirmed Helm I on appeal. Helm v. Eells, 642 F. App'x 558 (6th Cir. 2016).

         In this case, Helm brings suit against four different University of Louisville officials. Alongside various state-law claims, Helm alleges Defendants violated his due process rights by classifying the plagiarism complaint against him as “internal” rather than “external.” This determination meant the University did not have to follow certain federal requirements for investigating research misconduct. Defendants now move to dismiss Helm's complaint, arguing his §1983 due process claims and several of his state-law claims are time-barred, and his fraud claim was not pled with particularity. See [DN 7.]

         For the reasons explained below, Defendants' motion will be GRANTED IN PART and DENIED IN PART. The Court agrees that Helm's § 1983 claims are untimely. A one-year statute of limitations applies to those claims, and the limitations period begins to run when the plaintiff “knows or has reason to know of [his] injury.” Helm I, 642 F. App'x at 561 (citations omitted). Here, deposition testimony and legal filings from a related state court action demonstrate Helm knew or should have known Defendants classified the plagiarism allegation as “internal” no later than November 2015, more than a year before Helm filed this suit. Those claims must be dismissed.

         Further, Helm has failed to state his fraud claim with particularity, as required by Federal Rule of Civil Procedure 9(b). However, “[d]ismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment, ” Newberry v. Silverman, 789 F.3d 636, 646 (6th Cir. 2015) (citation omitted). The Court will afford Helm an opportunity to amend his complaint to comply with Rule 9(b).

         Finally, if Helm is able to state a claim for fraud, he may be entitled to equitable tolling on his tortious interference with contractual relations, interference with a prospective advantage, and breach of fiduciary duty claims. The Court will allow those to proceed.[1]

         I. Facts and Procedural History

         This case begins nearly eight years ago, when one of Dr. C. William Helm's colleagues accused him of plagiarism. In July 2009, Dr. Lynn Parker told Dr. Doug Taylor she suspected Helm had copied a portion of Taylor's National Institutes of Health (NIH) grant application in submitting Helm's own Center of Environmental Genomics (CEGIB) grant. Helm v. Eells, 642 F. App'x 558, 560 (6th Cir. 2016); [DN 1 at 5-6]. In accordance with the University's Office of Research Integrity (ORI) policy, Taylor made the University's Research Integrity Ombudsperson, Dr. Robert Staat, aware of Helm's possible plagiarism. Helm I, 642 F. App'x at 560; [DN 1 at 5-6]. Staat reviewed Taylor's allegations and told Taylor that his complaint against Helm fell within the University's guidelines for research misconduct. [DN 1 at 5-6.] Staat advised Taylor to contact Dr. Allison Ratterman, Director of the Research Integrity Program, for help filing a research misconduct complaint. [Id. at 6.] Ratterman met with Taylor and noted that Helm's CEGIB grant was a “Federal Flow Through.” [Id.] She also asked Dr. Eleanor Lederer, the Associate Research Integrity Ombudsperson, to meet and discuss Helm's case. [Id. at 7.]

         Meanwhile, Dr. Parker also told Dr. Christine Cook, Helm's department chair, that she suspected Helm had plagiarized Taylor's work. Helm I, 642 F. App'x at 560. The allegation eventually made its way to Dr. Tracy Eells, Associate Dean for Faculty Affairs, and Dr. Edward Halperin, Dean of the School of Medicine. Id. As a result, the University chose not to promote Helm to a tenured professor position, and did not renew his contract following the 2009-2010 academic year. Id. Those decisions formed the basis of Helm's 2014 suit against Eells and Halperin.

         The University's ORI investigation into Helm's alleged misconduct continued into 2010. [DN 1 at 8.] At this time, Helm was still unaware of Taylor's plagiarism accusation. [Id.] Ratterman, Lederer, and Staat all reviewed the case and the relevant documents. [Id.] Additionally, Ratterman consulted with Dr. Pamela Feldhoff, Associate Vice President for Research, and Angela Koshewa, University Counsel. [Id. at 9.] Eventually, an inquiry panel was formed in fall 2010 and met for the first time on November 30. [Id. at 10.] Helm was not notified of the ORI investigation until after that meeting, on December 6, 2010. [Id. at 11.] Two members of the inquiry panel determined the plagiarism allegations warranted further investigation, so the “Deciding Official” under the ORI policy, Dr. William Pierce, formed an investigation committee. [Id. at 11-12.] In May 2011, the committee interviewed Helm and determined the plagiarism allegations against him were meritless. [Id. at 12]; Helm I, 642 F. App'x at 561.

         Helm's claims against Eells and Halperin in Helm I and against Defendants in this suit are based primarily upon the University's ORI policy. In large part, the policy is derived from federal regulations promulgated by the United States Public Health Service (PHS). See 42 C.F.R. Part 93. As the ORI policy explains, it does not apply to every case of research misconduct:

This policy applies to allegations of research misconduct (fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results) involving:
• An individual who, at the time of the alleged research misconduct, was employed by, was an agent of, or was affiliated by contract or agreement with this institution; . . . and
• PHS support[ed] biomedical or behavioral research, research training or activities related to that research or research training, such as the operation of tissue and data banks and the dissemination of research information, (2) applications or proposals for PHS support for biomedical or behavioral research, research training or activities related to that research or research training, or (3) plagiarism of research records produced in the course of PHS supported research, research training or activities related to that research or research training. This includes any research proposed, performed, reviewed, or reported, or any research record generated from that research, regardless of whether an application or proposal for PHS funds resulted in a grant, contract, cooperative agreement, or other form of PHS support.
This policy and the associated procedures do not apply to . . . other types of violations of University research policy or misconduct in research.

[DN 1-2 at 5 (footnotes omitted).] Put simply, the ORI policy applies when a person affiliated with the University is alleged to have engaged in misconduct related to PHS-supported research. If PHS-supported research is not involved, the ORI policy does not apply; however, “[t]he Executive Vice President for Research must approve any significant variation in procedure prior to its initiation, ” and “[a]ny change from normal procedures must ensure fair treatment to the subject of the inquiry or investigation.” [Id.]

         The ORI policy lays out in great detail the responsibilities of those involved in investigations, and also provides due process protections to persons accused of research misconduct. For instance, Helm alleged in his first federal suit Eells and Halperin failed to follow the policy provision directing that “[a]ll institutional members will report observed, suspected, or apparent research misconduct to the Research Integrity Ombudsperson.” [Id. at 12]; Helm I, 642 F. App'x at 561. Here, Helm complains these Defendants deprived him of other due process protections. He says Defendants failed to promptly notify him of the inquiry, prepare a proper charge, and offer him an opportunity to object to the inquiry panel composition - all things guaranteed by the ORI policy. See [DN 1 at 10-12.]

         Helm claims Defendants deprived him of these protections because they wrongfully classified his CEGIB grant as “internal, ” i.e., as not involving PHS-supported research. He made this discovery during the course of litigation in Helm v. University of Louisville, a related suit in Jefferson County, Kentucky Circuit Court. On October 12, 2015, the University served Helm with discovery responses in that case, stating in part that “[t]he Research Misconduct Policy . . . was not applicable to Doug Taylor's allegation against Helm.” [DN 7-23 at 6.] Helm deposed Ratterman on November 2, 2015. In her deposition, Ratterman testified that “[t]he complaint that was filed by Dr. Douglas Taylor against Dr. Helm was assessed to be an internal case, ” meaning the complaint “did not meet the scope of [the ORI] policy.” [DN 7-25 at 4.] Ratterman elaborated that in “an internal proceeding, the Institution would not have an obligation to follow the formal federal regulation.” [Id. at 5.] During her investigation, Ratterman said she contacted the University's Office of Grants Management to obtain a copy of Helm's CEGIB grant, but that office did not have a copy because it was an internal grant. [Id. at 6-7, 9.] Because the University classified Helm's CEIGB grant as internal, Ratterman testified, the University used the ORI policy as guidance rather than mandatory authority. [Id. at 10.]

         On November 19, 2015, Helm filed a motion for attorney's fees in the Jefferson Circuit Court action. As grounds for that motion, Helm argued portions of Ratterman's deposition contradicted the University's earlier statement in discovery that the ORI policy did not apply to Taylor's plagiarism complaint against Helm. [DN 7-24 at 5-6.] Helm stated, “The canard that the Research Misconduct Policy was ‘not applicable' to the research misconduct allegation made against Helm in 2009 consumed a disproportionate share of Ratterman's deposition. It is now undisputed . . . that the Research Misconduct Policy ‘was applicable' to the plagiarism allegation against Helm.” [Id. at 5.] The Jefferson Circuit Court eventually denied Helm's motion. See [DN 11-6 at 3.]

         Discovery in the state court action continued. On January 13, 2016, the University disclosed a letter it previously received from the federal Office of Research Integrity, Division of Investigative Oversight (DIO). In that letter, dated March 24, 2015, DIO stated that Helm's case “was brought to [its] attention when the respondent alleged procedural deficiencies in the institution's handling of the matter and requested restoration of his reputation.” [DN 11-7 at 2.] After reviewing the pertinent documents, DIO concluded that Taylor's allegation fell within its jurisdiction because the source document of the alleged plagiarism was Taylor's NIH grant application, which involved federal funding. [Id.] In other words, to borrow the University's parlance, DIO classified Taylor's complaint as “external” rather than “internal.” However, DIO concurred with the University's determination that Helm had not committed plagiarism, and closed its case with no further action. [Id.]

         Helm filed this case on December 6, 2016. See [DN 1.] In his complaint, he asserts six separate claims against Ratterman, Koshewa, Feldhoff, and Lederer: “violations of 42 U.S.C. § 1983, a conspiracy to violate 42 U.S.C. § 1983, fraud and misrepresentation, intentional interference with prospective advantage, tortious interference with contract, and breach of fiduciary duties.” [Id. at 1.] Helm's ยง ...

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