Durham County

Who will win if doctor proves Duke and UNC colluded on hirings? A judge weighs in

Professors at the Duke and UNC medical schools are potentially in line to benefit from the outcome of an anti-trust lawsuit against Duke University that alleges hiring collusion between the schools.
Professors at the Duke and UNC medical schools are potentially in line to benefit from the outcome of an anti-trust lawsuit against Duke University that alleges hiring collusion between the schools. hlynch@newsobserver.com

If a former Duke University radiology professor wins her anti-trust lawsuit against the school, all the medical school professors at Duke and UNC-Chapel Hill may receive compensation for damages.

U.S. District Court Judge Catherine Eagles ruled Thursday that radiologist Danielle Seaman’s case against Duke can proceed as a class-action lawsuit on behalf of anyone on faculty who’s held an “academic appointment” in the Duke or UNC medical schools from Jan. 1, 2012, to the present day.

Eagles ruled out including non-faculty physicians at Duke or UNC, or the nurses and “other skilled medical staff” Seaman and her lawyers wanted to also represent. Their inclusion would “make it very difficult” to manage the case and might confuse a jury, the judge said.

Moreover, the case is “substantially weaker” that non-faculty employees at the medical schools suffered from the alleged hiring collusion between the universities that Seaman claims limits opportunities to swap a job on one campus for a job at the other, Eagles said.

Even with their exclusion, class-action status will entitle Seaman and her San Francisco-based lawyers to speak for about 5,649 Duke and UNC professors who might have had their salaries depressed if the medical schools actually tried to restrict the so-called lateral movement of faculty, Eagles said.

The judge’s ruling Thursday was the latest development in a lawsuit that’s been pending since 2015 and began after Seaman lost out on a chance to move from Duke to UNC.

An administrator at the UNC School of Medicine later emailed her to say he couldn’t give her a job because “lateral moves between Duke and UNC are not permitted” thanks to an agreement between their medical deans. Lateral moves are job switches into same-rank positions, for instance a move from an assistant professor’s post at Duke into an assistant professorship at UNC.

The dean of UNC’s medical school, Bill Roper, last year told lawyers he’d urged subordinates with hiring authority to avoid “engaging in what I would view as a hostile, unneighborly behavior” toward Duke. And he admitted having urged former Duke Chancellor for Health Affairs Victor Dzau to consider formalizing “some kind of understanding between us about the movement of faculty.”

But Roper denied that there was a formal agreement or policy on the matter at UNC, and told lawyers that Dzau ultimately told him people on Duke’s side “just don’t think that’s something we ought to enter into.”

Seaman’s lawyers eventually negotiated an out-of-court settlement with UNC-CH that bars it from colluding with anyone to suppress the competition for labor, and that requires it to train senior administrators on the relevant points of federal anti-trust law.

Duke’s lawyers, meanwhile, are poised to deny any wrongdoing by the Durham institution. A former dean of the Duke School of Medicine, Nancy Andrews, has told Eagles she’s unaware of any lid on the school’s hiring people from UNC.

But Seaman and her attorneys contend the absence of a formal agreement between the schools masks under-the-table practices that amount to the same thing.

They’d argued that any collusion affecting faculty hirings would also have spillover effects up and down the payroll, as medical professors typically assemble regular teams of nurses and other personnel to support their work. When the leading faculty member switches jobs, the rest of the team often comes along and benefits from increased pay, the lawyers claimed.

Eagles, however, said the argument depends on “several inferences-on-inferences” and raises the possibility “that the strength of the faculty claim or the weakness of the non-faculty claims might tend to bleed over to the other [in] the jury’s mind.” That would create “a real potential for unfairness” to professors and to Duke, she said.

In a footnote, Eagles also signaled that Duke wouldn’t necessarily win by pointing to examples of successful hiring raids on the UNC faculty – a strategy the university’s lawyers have already deployed.

Seaman’s case “does not require her to prove that the movement of every faculty member was restrained,” the judge said as she analyzed the merits of giving the lawsuit class-action status.

Ray Gronberg: 919-419-6648, @rcgronberg

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