Durham County

Duke fights class-action effort, says UNC/Duke med-faculty switches happen

Duke School of Medicine officials have told a federal judge they don’t have any agreement with UNC-Chapel Hill to prevent “lateral” hiring raids of UNC’s faculty.
Duke School of Medicine officials have told a federal judge they don’t have any agreement with UNC-Chapel Hill to prevent “lateral” hiring raids of UNC’s faculty. hlynch@newsobserver.com

The former dean of Duke University’s medical school has told a federal judge she never tried to prevent her subordinates from raiding the faculty at nearby UNC-Chapel Hill.

Moreover, “I am not aware of any instance in which Duke School of Medicine declined to recruit or hire anyone because he or she was a member of the [UNC-CH] faculty or staff,” Nancy Andrews, dean from 2007 to 2017, said in a signed statement filed Oct. 23. “I am not aware of anyone at Duke who believed that he or she was prevented from hiring a medical faculty member because the candidate was from” UNC-CH.

Andrews’ comments came as Duke seeks to persuade a federal judge to put a lid on the anti-trust lawsuit former Duke radiology professor Danielle Seaman has filed against it. It alleges that Duke officials colluded with their counterparts at UNC to prevent so-called “lateral” job swaps between the institutions.

Seaman claims she lost out on a faculty post at UNC-CH in 2015 because of the collusion, and was told by an administrator there that Andrews and UNC Health Care System CEO Bill Roper had agreed the schools shouldn’t recruit each others’ professors unless the person changing jobs was getting a promotion by moving.

She and her lawyers want U.S. District Court Judge Catherine Eagles to elevate the case into a class-action lawsuit on behalf of all medical personnel at the two schools, on the grounds that any collusion between the universities would suppress wages.

For now, Duke is asking Eagles to reject the class-action label. But “at the appropriate time,” it also will “strongly dispute the existence of any agreement of the kind” Seaman alleges, the university said in a brief signed by its long-time litigation lawyer Paul Sun.

At the appropriate time, Duke will strongly dispute the existence of any agreement of the kind.

Paul Sun, lawyer for Duke University

The other pending wrinkle in the case is that Seaman and her lawyers have negotiated an out-of-court settlement with UNC-CH, which wasn’t originally a defendant in the case because of governmental immunity. Lawyers have since begun working through the procedural steps to implement the deal. Eagles gave her preliminary OK on Sept. 29, with final approval scheduled for Jan. 4.

The process includes publicizing the agreement, a process that on Friday included the issuance of a news release, all-employees email notices at both Duke and UNC, and the launch of a Web site, https://dukeuncemployeesettlement.com.

The deal bars UNC from engaging in any future collusion, requires its cooperation in the still-pending litigation against Duke and establishes a training and monitoring regime to prevent collusion.

What Roper has said

Roper has conceded that in the mid-2000s, he’d asked his then-counterpart at Duke, former Chancellor for Health Affairs Victor Dzau, to consider formalizing “some kind of understanding between us about the movement of faculty” between the medical schools.

But during a June 29 deposition, he also said Dzau had ultimately told him Duke and its lawyers “just don’t think that’s something we ought to enter into.”

Roper also said he’d told department chairs of the UNC School of Medicine to avoid “hostile, un-neighborly behavior” against Duke after the Durham school unsuccessfully tried to convince UNC-CH bone-marrow transplant specialist Jonathan Serody and his team to change schools. That meant, he said, giving Duke heads-up “courtesy calls” if one of its professors was in the mix for a job at UNC.

Seaman’s original lawsuit included a smoking-gun rejection email that cited guidance from Roper’s office that “lateral moves between Duke and UNC are not permitted.”

But in their latest filings, Duke’s lawyers said “contemporaneous evidence from multiple sources” suggests that Seaman, who’s now at the Durham VA Medical Center, “was not UNC’s preferred candidate” for the opening and officials there cited “an ‘agreement’ as a pretext to avoid rejecting her on the merits.”

They said the job ultimately went to “a similarly qualified candidate whom UNC paid substantially less than [what Seaman] was then earning at Duke.”

‘Guideline to be followed’

The evidence the lawyers cited appears to include deposition testimony from Laura Heyneman, a radiologist and supporter of Seaman’s candidacy who got her medical training at UNC, did her residency at Duke and who’s been a professor at both schools.

Now at Duke, she said she’d “beg[u]n to wonder” whether the chief of the cardiothoracic radiology unit, Paul Molina, “simply wanted to hire a particular person who had interviewed” and had looked for “essentially an easier excuse, because it wouldn’t be personal for him to essentially blame the higher-ups rather than accepting responsibility and saying he didn’t want to hire Danielle.”

Molina for his part told lawyers “there was a guideline to be followed,” namely that a Duke-to-UNC job switch had to include a promotion or “elevation in title.” But in a deposition excerpt Duke’s lawyers highlighted for Judge Eagles, he also conceded that he’d already interviewed candidates and was ready to make one an offer when Seaman applied for the job.

The Duke filings highlighted some UNC-to-Duke switches, including one Heyneman was in the process of negotiating with Duke radiology chairman Erik Paulson in mid-2015 as Seaman was preparing to file her lawsuit. She swapped a UNC associate professorship for a like position at Duke, despite being “near promotion” at UNC, but was also named an assistant residency-program director.

Another involved pain researcher William Maixner, who in 2016 swapped a full professorship at UNC for one in Duke med’s anesthesiology department and took four other professors or researchers with him.

The chairman of that department, Joseph Mathew, joined Executive Vice Dean for Administration Scott Gibson in signing statements that echoed Andrews in saying there’s no restriction on hiring people from UNC.

“During my tenure faculty members have moved between positions at Duke and positions at UNC, with and without promotions, said Gibson, who’s held his administrative post since 2008.

Ray Gronberg: 919-419-6648, @rcgronberg