‘Lawsuit filed against chronic fatigue syndrome researcher by former employer’, ‘Science Insider’, 14 November 2011

November 15, 2011

From ‘Science Insider', a Science magazine blog, 14 November 2011 (story by Jon Cohen).

The protracted saga of Judy Mikovits, the lead researcher who tied a mouse retrovirus to chronic fatigue syndrome (CFS), has taken yet another dizzying turn.

A little more than 1 month after firing Mikovits, the Whittemore Peterson Institute for Neuro-Immune Disease (WPI) on 4 November filed suit against its former research director. According to WPI, after Mikovits was terminated on 29 September, she wrongfully removed laboratory notebooks and kept other proprietary information on her laptop and in flash drives and in a personal e-mail account. WPI, a nonprofit organization that's based on the campus of the University of Nevada, Reno, also won a temporary restraining order that forbids Mikovits from “destroying, deleting, or altering” any of the related files or data.

Mikovits attorney, Lois Hart, said her client cannot speak to the media about the case, but she strongly denies any wrongdoing. In an e-mail to ScienceInsider, Hart stressed that “Dr. Mikovits' integrity goes to the bone.”

Hart rebutted the charges against her client in a 4 November letter to WPI's counsel that appeared on CFS-related Web sites. (Hart said she did not release the letter, but verified its contents to ScienceInsider.) “All of the allegations of theft, misappropriations, withholding of data and various intellectual property, and items, are incorrect, and untruthful,” Hart wrote.

The complaint filed by WPI focuses on the laboratory notebooks kept by Mikovits and her assistants, which she stored in a locked desk drawer. WPI had a representative from the company that manufactured the desk open the drawer after her firing and, the complaint states, then discovered that “the Notebooks were missing.” The suit, which alleges breach of contract and misappropriation of trade secrets, claims that “Mikovits had the only key to the locked desk drawer in her office.”

Hart's rebuttal letter to WPI's counsel contends that Mikovits was not in her office when she received the phone call that told her she was terminated and that she never returned to the institute. “A number of individuals have keys to the office and lab, including the administrative staff, lab staff and custodial,” Hart wrote. “Your client's concern as to the location of those notebooks, and intellectual property, should be directed elsewhere.”

Mikovits worked for WPI since its inception in 2007. Established by Annette and Harvey Whittemore, whose daughter has CFS, the institute also studies fibromyalgia, post Lyme disease, and Gulf War illness. The data Mikovits “absconded with,” alleged WPI in court documents, could harm the institute's future efforts. “Without these materials, WPI's ability to continue its important research on finding a cure for these terrible diseases impacting over 4 million Americans each year is severely hampered,” the complaint states. It contends that a Proprietary Information and Invention Agreement that Mikovits signed states that WPI owned the notebooks that she and others in the lab created.

Robert Charrow, an attorney at Greenberg Traurig in Washington, D.C., who specializes in cases involving scientific research, says academia and industry have different standards about researchers retaining their own notebooks and data. Although Charrow stresses that he is not familiar with the specifics of this case, he says industry typically forbids researchers from taking data with them. “In academic institutions, researchers are requested or required to give a copy of their material or their data to the institution, and they can retain a copy for themselves,” says Charrow. “That's how it's usually done and that's why there aren't more pissing matches.”

Mikovits and her co-workers made international headlines following Science's online publication on 8 October 2009 of an article in which they reported that they had found a recently discovered mouse retrovirus dubbed XMRV in the blood of 67% of the CFS patients they examined. Several subsequent studies, including one that WPI participated in, could not replicate the finding. A separate study, also published in Science, provided evidence that XMRV was accidentally created in a laboratory experiment with mice and questioned whether it even infected humans. Science's Editor-in-Chief Bruce Alberts issued an Editorial Expression of Concern about the paper's veracity on 31 May. Science later published a partial retraction to the Mikovits's group original paper after one of the labs that contributed to it said a contaminant marred its results.

Nevada's Second Judicial District Court will hear a preliminary injunction against Mikovits on 22 November.

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