Yuan v. Johns Hopkins University

ZARNOCH, J. The key issue in this case is whether appellant Dr. Daniel S. Yuan has clearly identified a state public policy mandate for his common law wrongful discharge claim for damages against appellee Johns Hopkins University (JHU or Hopkins). The premise of Yuan’s claim is that he was discharged for reporting “research misconduct” — reporting protected from retaliation by 42 U.S.C. § 289b and 42 C.F.R. Part 93. For reasons more fully set forth below, we conclude that the broad language and complex nature of these federal provisions, their deference to institutions, such as Hopkins, for the prevention and detection of research misconduct, and the difficult line they draw between scientific errors and wrongdoing and between falsity and fraud, make this a poor State public policy vehicle to carry a wrongful discharge action. Because the Circuit Court for Baltimore City did not err in rejecting this claim and others advanced by Yuan, we affirm.

FACTS AND PROCEEDINGS Yuan’s 149-paragraph amended complaint sets forth a complicated tale of an employee who refused to be ignored. The following represents an abridgment of Yuan’s many allegations. Board-certified in both General Pediatrics and Pediatric Gastroenterology, Yuan was a researcher at the JHU School of Medicine. After clinical training and a research stint at the National Institutes of Health (NIH), he joined the Pediatrics Faculty at JHU School of Medicine.

Having worked exten ⁵⁵⁹ sively in the field of yeast research since 1993, he eventually joined the lab of Dr. Jef Boeke, a Professor in the Department of Molecular Biology and Genetics, in 2001. Boeke’s lab received most of its funding through the NIH. From February 2002 through June 2011, the NIH gave over $11.8 million to the lab for research on “SLAM,” “an ambitious yeast genetics research project using a novel methodology.” 1 The NIH also provided a $34 million grant to fund a separate project related to the SLAM research. From July 2001, Yuan worked in Boeke’s lab, where his initial responsibility in the SLAM project was to develop the computational infrastructure to manage the massive datasets that SLAM would generate.

Yuan expressed to the team his concern that contaminating traces of DNA from preceding SLAM experiments had led to false positive results. They, however, resisted Yuan’s suggestions for addressing this problem and began to withhold data files from him. Yuan stated that from 2005 through 2011, he “repeatedly reported research misconduct with the yeast genetics research that was caused by falsification of the research results.” On November 28, 2005, Yuan wrote to Boeke about problems he identified in research performed by Xuewen Pan, a postdoctoral fellow in Boeke’s lab. In an email exchange, Yuan complained about the research, stating that Pan’s “genes are preselected,” and that continuing with those research projects “will only generate more useless data.” He also stated that the SLAM team had already established that “most of the [matches] being identified are bogus.” In early 2006, Pan’s research was published in Cell, a biomedical journal, with Boeke as the senior author.

Boeke cited Pan’s research when he applied for grant renewals through the NIH. Later in 2006, after the NIH renewed funding for the SLAM project, Boeke issued a new organiza ⁵⁶⁰ tional chart “which had the effect of excluding Dr. Yuan from extensive involvement with the SLAM research.” Yuan states that he “protested his lack of a definite professional role in the SLAM Project” and “found himself increasingly marginalized and excluded from the data management.” From 2006 to 2008, Boeke’s SLAM research was not successful. Boeke asked a colleague to perform a large retrospective analysis of the production data, which showed an extraordinarily high “False Discovery Rate.” In the summer of 2008, Boeke decided not to renew his NIH grant for SLAM, although funding for prior grants would continue into 2010. In a 2009 analysis of Pan’s microarray data, Yuan found that Pan could not have obtained the results he claimed, but that his “conclusion was not that Dr. Pan fabricated the results; instead, Dr. Pan likely conducted the experiment with preconceptions of the results he wanted to find — and then managed to find those results.” Yuan reached a similar conclusion with respect to a paper published by Dr. Yu-yi Lin in Genes & Development.

In January 2009, Yuan notified Boeke and SLAM’s project manager of these problems with the Pan 2006 and Lin 2008 papers. In December 2009, Boeke informed Yuan that he would not be renewing his faculty contract for 2011, unless he secured self-sustaining funding within the next year. Although Boeke claimed this was due to a lack of funding, at the same time, Boeke established positions for three other individuals who had worked on SLAM full-time. On January 15, 2010, at a seminar in the Boeke lab, Yuan said that ten months earlier, he had discovered “bizarre zigzag patterns after plotting data for individual genes in SLAM’s Production data in chronological order.” He concluded that these changes “were both non-random and unpredictable” and that the “zigzags were also large enough to masquerade as the genetic interactions SLAM was looking for.” On June 29, 2010, in the last week of the NIH funding of SLAM, Yuan wrote to Boeke that he had analyzed the production team’s last 118 experiments, finding that about 10 percent ⁵⁶¹ had “noise” (bad data) with no apparent cause and only about 10 percent “looked pretty good.” On December 14, 2010, Dr. Carol Greider, the director of the Department of Molecular Biology and Genetics, offered Yuan a part-time support staff position for the 2011 year, at a salary of $24,800, well below his salary as a researcher.

Yuan accepted the position. However, from January 2011 on, Boeke excluded Yuan from activities in the lab. On April 29, 2011, Dr. Lin, now at National Taiwan University, conducted a seminar in Dr. Boeke’s lab. Yuan asked Lin a number of questions to which Lin and Boeke did not provide adequate responses.

On June 29, 2011, Yuan submitted a manuscript for publication in which he listed himself as the sole author. Greider issued a written reprimand to Yuan for failing to offer Boeke shared authorship of the manuscript. On July 8, 2011, Yuan met with Joan Johnson, a Human Resources representative for JHU School of Medicine to discuss his concerns about Greider’s reprimand. He explained that his employment problems arose in the context of the lack of results produced in the lab, despite over $12 million in NIH funding and the “inexplicable vehemence” that Boeke and Greider exhibited towards him.

On December 22, 2011, JHU denied Yuan’s grievance appeal. Yuan’s employment was scheduled to end on December 31, 2011. Prior to this date, he requested a property pass from Boeke, so he could move his research collection of archived cells out of the lab. Boeke refused to grant him the property pass until the two had “come to an understanding of all the issues” relating to which files and materials Yuan could remove.

On November 29, 2011, JHU, through an attorney, informed Yuan that he could remove “biological samples and data” without prior permission. Yuan had in his archives, prior to his departure, about 2,000 samples, occupying less than two cubic feet of freezer space. On November 30, 2011, Yuan requested an affidavit or other confirmation that Boeke would give Yuan free access to Yuan’s ⁵⁶² archived cells for a period of five years. Although Boeke initially accepted this modified request, JHU did not provide access.

On December 14, 2011, Boeke notified Yuan that his office had been emptied and his possessions had been locked. On December 15, 2011, Yuan, after seeking access to his materials, was escorted from the workplace by JHU Security Officers. Subsequent to his departure from JHU, Yuan interviewed for other positions at JHU, but was not hired. Beginning in September 2011, Yuan looked for employment outside JHU.

Soon after, Yuan was invited to interview for a position at ComputerCraft. He was told that his curriculum vitae had been received favorably by other employees and that he was invited to prepare a brief talk and to stay for a few hours to interview. On December 18, Yuan asked, through an e-mail, for Dr. Beverly Wendland from JHU to speak as a reference on his behalf; he never received a response. Yuan stated that upon “information and belief, after ComputerCraft contacted Dr. Wendland (and possibly others at JHU),” they “provided a negative reference for him.” Early in 2012, a “Letter” (equivalent to a research paper) was published in the journal Nature, listing Lin and Boeke as the authors.

After reviewing the paper, Yuan believed that there were serious conceptual errors in it. Specifically, he concluded that the data underlying the paper was not reproducible. On May 14, 2012, Yuan, through counsel, informed Ronald J. Daniels, the president of JHU, and Edward D. Miller, the president of the School of Medicine, about “serious scientific problems” in the paper, including a near-total lack of correspondence between the genetic interactions identified in this paper and the raw datafiles from which those genetic interactions were supposedly derived. The assertions made in this paper, that its new microarray methodology provided data for the “genome-wide” identification of genetic interaction, appears to be ⁵⁶³ false.

Significantly, this is the same type of problem that has beset the SLAM project for the entire duration of its production phase. (Emphasis added). On May 21, 2012, Patricia L. McClean, JHU senior associate general counsel, responded, “[t]he School of Medicine is looking into the allegations of research misconduct made in your letter under its Procedures for Dealing with Issues of Research Misconduct.” No one from JHU sought to interview Yuan or obtain further information from him. 2 On July 24, 2012, Yuan forwarded a “Communication Arising” (i.e., a rebuttal) to Lin and Boeke’s Nature article. Neither doctor responded to Yuan.

On August 8, 2012, Yuan received an email sent from Lin’s email account stating, “Dr. Yuan, Yu-yi [Lin] passed away this morning. Now you must be very satisfied with your success. Congratulations[.]” Lin had died from an apparently self-administered overdose of sedatives. In previous days, he had attempted to jump off a building and his wife stated that he was concerned about a “conduct-of-research” case.

On February 11, 2013, Yuan received an email from Boeke asking if he would be willing to sign a “correction” to the 2006 Cell paper, which stated that “the fraction of genetic interactions that could be traced back to the paper’s SLAM-based microarray data was 75 percent, not 90 percent as originally stated.” The next day, Yuan informed Boeke that he would not sign the proposed corrections, but Boeke submitted them. The paper was submitted to Cell, which published it as an “Erratum” on May 23, 2013. On November 6, 2013, the Nature paper was also retracted, without a “correction.” Boeke admitted that “the Methods section in our Letter is inaccurate, and that for 38% of the interactions found by the primary screen there was discordance in sign,” which confirmed Yuan’s findings. ⁵⁶⁴ On December 13, 2013, Yuan filed a complaint for damages against JHU in the Circuit Court for Baltimore City, alleging wrongful termination in violation of public policy. Yuan based his wrongful discharge action on 42 C.F.R. § 93.100 et seq., which establishes a federal administrative mechanism to police intentional, knowing, or reckless “research misconduct” that represents “a significant departure from accepted practices of the relevant research community.” Id. at § 93.104. 3 He also asserted claims for conversion, and tortious interference with prospective economic advantage.

On March 14, 2014, JHU filed a motion to dismiss or, in the alternative, motion for summary judgment and request for a hearing. On May 12, 2014, the court held a hearing and then, dismissed Yuan’s claim. Judge Lawrence Fletcher-Hill concluded: Dr. Yuan has failed to allege with sufficient specificity either that he objected to research misconduct or that even if he had that those particular objections in the context of this case would amount to a violation of a clearly established public policy. There are two issues with the complaint.

There certainly are ample allegations that Dr. Yuan raised and continued to raise issues within his lab with Dr. Boeke and with others about the conclusion being reached by the research, [and] the manner in which the research was conducted. But the allegations very carefully skirt the line of fraud, falsification of data or manipulation of data. And it is a good illustration of why this tort needs to be drawn narrowly [so] that it does not amount to the opportunity for courts to litigate debates, intellectual debates within the scientific community about methodology or research methods or conclusions. Based on the allegations, even giving them full credit, until after Dr. Yuan was fired, his objections amounted to those types of intellectual debates and challenges within the lab. ⁵⁶⁵ Relying on the Court of Appeals’s decision in Parks v. Alpharma, Inc., 421 Md. 59 , 25 A.3d 200 (2011), Judge Fletcher-Hill stated: [W]hile there’s no question that academic integrity and research integrity is an important value, I conclude that it does not rise to the level that the Court of Appeals would recognize as the clear public policy necessary to support [a] cause of action for the tort of wrongful discharge in Maryland.[ 4 ] The circuit court rejected Yuan’s conversion claim: [AJlthough it may be that there is a policy at Johns Hopkins University to on a case-by-case basis allow research material or research data to be released for the individual or non-Hopkins use by researchers who have developed it at Hopkins, the basic policy, which is clearly stated and has not been challenged here, is that Hopkins asserts its ownership of all research material and all research data that has been developed within labs of the University.

Judge Fletcher-Hill added: “Hopkins could not have converted what it in fact had ownership of.” Finally, turning to the tortious interference count, the court said: [T]he plaintiff has agreed that that count is limited to the fourth job, the one in private industry, that Dr. Yuan alleges he did not get. However, he has not alleged any specific facts to establish who at Hopkins said what to whom or how that affected his chances to get that job; and therefore, the allegations are insufficient to sustain that cause of action. From the judgment of the circuit court, Yuan filed a timely notice of appeal. ⁵⁶⁶ QUESTIONS PRESENTED Yuan presents the following questions: 1. Did the Circuit Court err in dismissing Dr. Yuan’s wrongful termination in violation of public policy claim by deciding facts and inferences against the plaintiff, but in favor of defendant, in concluding that his reports of research misconduct did not rise to the level of reporting falsification or fabrication, contrary to the well-pled allegations of his complaint? 2.

Did the Circuit Court err in dismissing Dr. Yuan’s wrongful termination in violation of public policy claim by refusing to recognize the federal statute and regulations prohibiting research misconduct as sources of public policy? 3. Did the Circuit Court err in dismissing Dr. Yuan’s conversion claim where JHU’s policy governing research materials expressly recognized that research materials belong to the researcher, not the university, given that the only other Maryland court to decide this issue recently ruled to the contrary? 4. Did the Circuit Court err in dismissing Dr. Yuan’s tortious interference claim, where the court improperly assumed all reasonable inferences against Dr. Yuan rather than draw reasonable inferences from the wellpled allegations of his complaint, i.e., that his former supervisor and other JHU administrators had the opportunity and motivation to interfere with his prospective employment opportunities? JHU poses the questions as: 1.

Did the court err in dismissing Yuan’s wrongful termination claim by concluding that his complaint failed to establish that he had reported falsification or fabrication, and that his complaint failed to establish that his termination violated public policy? ⁵⁶⁷ 2. Did the court err in dismissing Yuan’s conversion claim given that Hopkins’ policy recognized that researchers owned their research materials? 3. Did the court err in dismissing Yuan’s tortious interference with contract claim, when the court refused to accept Yuan’s allegations that Hopkins had the opportunity and motivation to interfere with his prospective employment opportunities? DISCUSSION STANDARD OF REVIEW On appeal from a dismissal for failure to state a claim, we must assume the truth of, and view in a light most favorable to the non-moving party, all well-pleaded facts and allegations contained in the complaint, as well as all inferences that may reasonably be drawn from them, and order dismissal only if the allegations and permissible inferences, if true, would not afford relief to the plaintiff, ie., the allegations do not state a cause of action for which relief may be granted.

We must confine our review of the universe of “facts” pertinent to the court’s analysis of the motion to the four corners of the complaint and its incorporated supporting exhibits, if any. The well-pleaded facts setting forth the cause of action must be pleaded with sufficient specificity; bald assertions and conclusory statements by the pleader will not suffice. Our goal, in reviewing the trial court’s grant of dismissal, is to determine whether the court was legally correct. Parks, 421 Md. at 72 , 25 A.3d 200 (Internal quotations marks and citations omitted).

Legal questions, such as whether a law creates a clear public policy mandate for the purpose of a wrongful discharge action, are reviewed de novo. McCrimmon v. State, 225 Md.App. 301, 306 , 124 A.3d 663 (2015) (citing Maryland-Nat’l Capital Park & Planning Comm’n v. Anderson, 395 Md. 172, 181 , 909 A.2d 694 (2006)). ⁵⁶⁸ I. Wrongful Termination In limited circumstances, an at-will employee can challenge his or her termination when the basis for the employer’s action would contravene “some clear mandate of public policy, and there [is] a nexus between the employee’s conduct and the employer’s decision to fire the employee.” Wholey v. Sears Roebuck, 370 Md. 38, 50-51, 803 A.2d 482 (2002) (Citations omitted). A. The Scope and Limitations of Wrongful Discharge Actions There are many public policies implicated in the employer-employee relationship, but few of them can form the basis for a wrongful discharge tort. As the Court of Appeals observed in Adler v. American Standard Corp.: The truth is that the theory of public policy embodies a doctrine of vague and variable quality, and, unless deducible in the given circumstances from constitutional or statutory provisions, should be accepted as the basis of a judicial determination, if at all, only with the utmost circumspection.

The public policy of one generation may not, under changed conditions, be the public policy of another. 291 Md. 31, 46 , 432 A.2d 464 (1981) (Emphasis added) (quoting Patton v. United States, 281 U.S. 276 , 50 S.Ct. 253 , 74 L.Ed. 854 (1930)). As a general matter, courts can rely on “legislative enactments, prior judicial decisions[, and] administrative regulations” as the chief sources of public policy. Id. at 45, 432 A.2d 464 . In some cases, an employee who is fired in retaliation for reporting the violation of a state or federal law may have an actionable wrongful discharge claim.

Yet that alone is insufficient. In Parks, supra, the Court of Appeals adopted the reasoning of Szaller v. American Nat’l Red Cross, 293 F.3d 148 (4th Cir.2002), explaining that violation of the Food and Drug Administration’s regulations alone was insufficient to establish the “public policy” prong of the wrongful termination tort. The Maryland Court observed: ⁵⁶⁹ [If a court] were to announce that [the FDA’s regulations] were all sources of Maryland public policy, an employee could immunize himself against adverse employment action simply by reporting an alleged violation of any regulation. And the narrow wrongful discharge exception, carefully carved out by the Maryland courts, would then supplant the general at will employment rule.

Parks, 421 Md. at 86-87 , 25 A.3d 200 (Emphasis added) (quoting Szaller, 293 F.3d at 152 ). The Court of Appeals has articulated two “limitations on a court’s ability to articulate a new public policy mandate” to establish wrongful termination. Id. at 79, 25 A.3d 200 . First, a court must look to the “accepted purpose behind recognizing the tort in the first place: to provide a remedy for an otherwise unremedied violation of policy.” Id.

(Quotation omitted). Second, the policy at issue “should be reasonably discernible from prescribed constitutional or statutory mandates.” Id. (Quotation omitted). In Makovi v. Sherwin-Williams Co., 316 Md. 603 , 561 A.2d 179 (1989), the Court of Appeals observed that “the generally accepted reason for recognizing the tort” of wrongful discharge is “vindicating an otherwise civilly unremedied public policy violation.” Id. at 626 , 561 A.2d 179 .

Where a statute already provides its own remedy, “allowing full tort damages to be claimed in the name of vindicating the statutory public policy goals upsets the balance between right and remedy struck by the Legislature in establishing the very policy relied upon.” Id. Hopkins has not urged this Court to apply this limitation here. JHU has not argued that 42 U.S.C. § 289b or 42 C.F.R. Part 93, provide an exclusive remedy for Yuan’s complaints. In addition, Yuan’s counsel has correctly conceded that federal law does not implicitly authorize a damage action against JHU.

Even in the case of an unremedied violation of public policy, however, a second limitation applies: the subject policy must “be reasonably discernible from prescribed constitutional or statutory mandates.” Wholey, 370 Md. at 53 , 803 A.2d 482 ⁵⁷⁰ (Citations omitted). The circuit court relied on the Parks case, as do we, as controlling this determination. There, the Court held that overly broad federal regulations could not form the basis for a wrongful discharge claim, because specificity is important when relying on a statute or regulation. Although accepting as a general matter that federal law and regulation could form the basis for the tort in Maryland, the Court found that Federal Trade Commission (FTC) and Federal Drug Administration (FDA) regulations lacked “the specificity of public policy that we have required to support a wrongful discharge claim.” 421 Md. at 83 , 25 A.3d 200 . 5 The Court noted the “extensiveness” of 15 U.S.C. § 45 (a)(2), which vested in the FTC the exclusive power to determine the unfairness of a business practice based on a consideration of its value versus its harm to consumers.

This determination, vested exclusively with the FTC, was indiscernible for a Maryland court and thus “undermine[d] its utility as a basis for a wrongful discharge claim, because a specific public policy mandate is not discernible.” Id. at 84-85 , 25 A.3d 200 . The Court reached a similar finding with regard to the FDA regulations. See id. at 86 , 25 A.3d 200 (“The regulation at issue provides the FDA’s standard for what details must be included on a prescription drug label if there is ‘reasonable evidence’ that a particular drug has a ‘clinically significant hazard.’ What is not clear from the regulation is the specific ⁵⁷¹ public policy mandate that Alpharma allegedly violated to support the instant wrongful discharge claim”). B. Federal Research Misconduct We now examine in detail the statute and regulations that Yuan asserts are the source of a specific public policy mandate. 6 In 1993, Congress amended 42 U.S.C. § 289b to create the federal Office of Research Integrity (ORI); it required entities that apply for or receive public health service (PHS) funds to establish an administrative process to review reports of research misconduct in connection with sponsored biomedical and behavioral research, and directed ORI to monitor administrative processes and investigations.

Section 289b(e) requires the promulgation of regulations to deter “research misconduct” and to protect whistleblowers from retaliation if they have “made an allegation that the entity, its officials or agents, [have] engaged in or failed to adequately respond to an allegation of research misconduct.” Regulations were also required to establish remedies for retaliation, which may include termination of funding, recovery of funding, “or other actions as appropriate.” § 289b(e). The regulations adopted by the Secretary of Health and Human Services declare that “[Research misconduct involving PHS support is contrary to the interests of the PHS and the Federal government and to the health and safety of the public, to the integrity of research, and to the conservation of public funds.” 42 C.F.R. § 93.100 (a). 7 Most importantly for this case, these regulations define “research misconduct” as “fabrication, falsification, or plagia ⁵⁷² rism in proposing, performing, or reviewing research, or in reporting research results.” 42 C.F.R. § 93.103 . (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