Anversa v. Partners Healthcare Sys., Inc.

116 F.Supp.3d 22

Dr. Piero Anversa and, Dr. Annarosa Leri, Plaintiffs,

v.Partners Healthcare System, Inc., Harvard Medical School, Brigham and Women's Hospital, Dr. Elizabeth Nabel, and Dean Gretchen Brodnicki, Defendants.

Civil Action No. 14–14424–DJC

United States District Court, D. Massachusetts.

Signed July 27, 2015

Filed July 28, 2015

Megan A. Siddall, Tracy A. Miner, Demeo LLP, Boston, MA, for Plaintiffs.

Michael J. Tuteur, Geoffrey M. Raux, Torrey K. Young, Foley & Lardner LLP, Jennifer L. Chunias, Roberto M. Braceras, Goodwin Procter LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

CASPER, District Judge

I. Introduction

Plaintiffs Drs. Piero Anversa ("Anversa") and Annarosa Leri ("Leri") (collectively, "Plaintiffs") have filed this lawsuit against Defendants Partners Healthcare System, Inc. ("Partners"), Harvard Medical School ("HMS"), Brigham and Women's Hospital (the "Brigham"), Dr. Elizabeth Nabel ("Nabel") and Dean Gretchen Brodnicki ("Brodnicki") (collectively, "Defendants") alleging breach of contract, breach of the implied covenant of good faith and fair dealing, tortious interference claims, and violations of Mass. Gen. L. c. 93A, § 11 and c. 214, § 1B. D. 1. Defendants have moved to dismiss all claims. D. 17, 19. For the reasons stated below, the Court ALLOWS the motions.

II. Standard of Review

A. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)

In considering a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court will dismiss a pleading that fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; see SEC v. Tambone, 597 F.3d 436, 442 (1st Cir.2010) (noting that "[i]f the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal"). To state a plausible claim, it need not contain detailed factual allegations, but the claim must recite facts sufficient to at least "raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citation omitted). This determination requires a two-step inquiry. García–Catalán v. United States, 734 F.3d 100, 103 (1st Cir.2013).

First, the Court must distinguish between the factual allegations and the conclusory legal allegations in the complaint. Id. Second, taking the plaintiff's allegations as true, the Court should be able to draw "the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir.2011) ). However, "[i]n determining whether a complaint crosses the plausibility threshold, ‘the reviewing court [must] draw on its judicial experience and common sense.’ This context-specific inquiry does not demand ‘a high degree of factual specificity.’ " Id. (citations omitted).

B. Motion to Dismiss for Lack of Subject Matter Jurisdiction

"When considering a motion to dismiss under subsection 12(b)(1) of the Federal Rules of Civil Procedure, the Court should apply a standard of review ‘similar to that accorded a dismissal for failure to state a claim’ under subsection 12(b)(6)." Menge v. N. Am. Specialty Ins. Co., 905 F.Supp.2d 414, 416 (D.R.I.2012) (quoting Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995) ); see Puerto Rico Tel. Co. v. Telecomm. Regulatory Bd. of Puerto Rico, 189 F.3d 1, 13 n. 10 (1st Cir.1999) (noting that "the standard of review ... is the same for failure to state a claim and for lack of jurisdiction").

III. Factual Background

Unless otherwise noted, the facts are as alleged in the complaint, D. 1, and are taken as true for the purposes of this motion.

Anversa is a cardiovascular scientist. Id. ¶ 13. He is currently a Professor of Anesthesia and Medicine at HMS, the Director of the Center for Regenerative Medicine at the Brigham and the head of a laboratory at the Brigham (the "Brigham laboratory") focusing on myocardial regeneration and cardiac stem cells. Id. ¶¶ 14–16. Leri is a physician and researcher focusing on the molecular biology of cardiac stem cells. Id. ¶ 18. She is currently an Associate Professor of Anesthesia and Associate Professor of Medicine at HMS and a Principal Investigator in the Brigham laboratory. Id. ¶¶ 20–22.

A. Data Discrepancies in the 2012 Circulation Paper

In 2012, the Brigham laboratory published a paper in collaboration with the Lawrence Livermore National Laboratory ("LLNL"). Id. ¶ 23. Dr. Jan Kajstura ("Kajstura"), a senior scientist at the Brigham laboratory, is the first author of the paper, which was published in the journal Circulation in 2012 and reported 108 carbon–14 (C–14) measurements performed at the LLNL's Center for Accelerator Mass Spectrometry by Dr. Bruce Buchholz ("Buchholz"). Id. ¶ 24, 25. Kajstura was solely responsible for receiving the data from the LLNL and converting that data into figures and tables for the 2012 Circulation paper. Id. ¶ 26. Anversa drafted the 2012 Circulation paper based upon data provided to him by Kajstura and Leri supervised her fellows in isolating DNA samples. Id. ¶¶ 31, 32. Neither Anversa nor Leri saw the raw data from LLNL prior to publication of the paper. Id. ¶ 30.

On October 16, 2012, after the paper was published, Buchholz contacted Anversa, Leri, and Kajstura regarding certain discrepancies in the data provided and the data reported in the paper. Id. ¶ 34. Buchholz indicated that he had only provided 88 C–14 measurements to Kajstura, not the 108 data points that had been reported. Id. ¶ 35. Prior to being contacted by Buchholz, Anversa and Leri were not aware of any problems with the data and were not fully aware of the problems with the data until sometime later. Id. ¶¶ 36, 42. On November 14, 2012, LLNL notified Brodnicki, HMS dean, about the data discrepancy. Id. ¶ 43.

B. Inquiry into Possible Research Misconduct

On January 10, 2013, Brodnicki informed Anversa and Leri that HMS and the Brigham would conduct a joint inquiry into three allegations of research misconduct. Id. ¶ 45. These initial allegations were that: (1) "Anversa and Leri falsified and/or fabricated the C–14 measurements in the 2012 Circulation paper by [ ] reporting 108 distinct data points when LLNL provided data for only 88 distinct measurements and [ ] reporting 8 data points with values inconsistent with the measurements provided by LLNL;" (2) "Anversa and Leri falsified and/or fabricated data in the 2012 Circulation paper by assigning isotope ratios to samples that have not been measured or reported by LLNL;" and (3) "Anversa and Leri ‘falsified and/or fabricated data relating to the characterization of stem cells' and notes that ‘[q]uestions have arisen regarding the reproducibility of the phenotyping of cell populations." Id. ¶¶ 47, 48, 50. On March 8, 2013, Brodnicki informed Anversa and Leri that the inquiry would be expanded to include a fourth allegation, relating to Kajstura's apparent manipulation of confocal microscope images in an unpublished manuscript that had been submitted to the journals The Lancet and Science in 2013. Id. ¶ 56. Drs. K. Frank Austen, Steven Gygi and Robert E. Kingston were the appointed members of the inquiry panel. Id. ¶ 59.

The inquiry was to be governed by HMS's Principles and Procedures for Dealing with Allegations of Faculty Misconduct (the "HMS bylaws"), Partners' Policy and Procedures for Handling Allegations of Research Misconduct (the "Partners bylaws"), and the Public Health Services Final Rule (the "PHS rule"), 42 C.F.R. § 93. Id. ¶ 46. Under the PHS rule, when allegations of research misconduct arise, an inquiry must first be conducted by the institution to determine whether an investigation is necessary. Id. ¶ 44 (citing 42 C.F.R. § 93.307 ). The PHS rule and the HMS and Partners bylaws require that the inquiry be completed within 60 days unless circumstances warranting a longer period are documented. Id. ¶ 60 (citing 42 C.F.R. § 93.307(g) ). In this case, however, the inquiry panel did not meet the 60–day deadline, issuing the final inquiry report on February 28, 2014, more than a year after Anversa and Leri were notified of the inquiry. Id. ¶¶ 61, 67. The delay was exacerbated because the inquiry panel met only once a month and then took over two months to write draft reports and recommendations, even though Anversa and Leri's attorneys notified the panel on two occasions that the delay was causing unjustified damage to their professional reputations. Id. ¶¶ 62–65.

Ultimately, the inquiry panel recommended: (1) that the Lancet paper and the 2012 Circulation paper be retracted; (2) that the inquiry should proceed to an investigation; and (3) that there should be an evaluation of whether the Bingham laboratory was an appropriate environment for trainees. Id. ¶ 68. Although the inquiry panel found substantial evidence that Kajstura may have committed research misconduct acting alone, the panel nevertheless recommended that the inquiry proceed to an investigation against Anversa and Leri on the theory that they negligently failed to investigate Kajstura's misconduct. Id. ¶¶ 70, 72. Anversa and Leri allege that the inquiry panel's reports were riddled with legal and factual errors. Id. ¶¶ 73, 75. On February 28, 2014, Anversa and Leri were notified that HMS and the Brigham would proceed with an investigation. Id. ¶ 76.

C. Investigation Panel's Alleged Defects

Plaintiffs allege that HMS, the Brigham and Partners have not ensured that the investigation is being conducted in compliance with federal law, the HMS bylaws and Partners bylaws. Id. ¶ 77 (citing 42 C.F.R. § 93.301 ).

1. Conflicts of Interest

Initially, HMS and the Brigham appointed the members of the inquiry panel—Drs. Austen, Gygi and Kingston—as the sole members of the...