Feds say they’re still probing research fraud allegations at Duke

Federal investigators have received at least 1.5 million pages of documents and questioned at least seven current or former employees of Duke University as they look into an alleged case of research fraud, recent court filings from the university and a Virginia-based U.S. prosecutor’s office say.

The probe is continuing, among other things to determine whether Duke and people in its medical school tried “to conceal the data fraud from the government and, if so, to determine a proper measure of damages caused by [their] actions,” Assistant U.S. Attorney Anthony Giorno said in one of the filings.

Giorno is a staffer in the U.S. attorney’s office for the Western District of Virginia, which is based in Roanoke. It’s involved because a former Duke lab analyst, Joseph Thomas, filed a lawsuit there in 2013 under the federal False Claims Act, a law that encourages whistle blowers to take action on the the government’s behalf against people and organizations that allegedly have misused federal funds.

Thomas alleges that Duke tried to cover up a massive case of research fraud in one of the “core laboratories” that serves its own medical researchers and others based elsewhere in the Triangle. Perpetrated by a former lab tech, Erin Potts-Kant, it compromised numerous projects, journal articles and federal research grants, he says.

Exhibits previously on file in the case suggest the affected grants were worth $112.8 million to Duke and $120.9 million to other institutions, including UNC-Chapel Hill and N.C. State University.

The alleged fraud involved the manipulation or outright falsification of results from machines used to test the lung function of lab mice used in the study respiratory ailments and diseases.

Giorno’s filing was a response to an attempt by Duke’s lawyers to have the case moved from the Virginia-based court to another federal district based in Greensboro that’s the customary home of federal lawsuits targeting Duke.

Duke contends the move would make it easier for out-of-state witnesses to attend a civil trial, and that Thomas, a North Carolina resident, likely only filed the case in Virginia’s western district because his lead lawyer (who’s also his brother) lives there. It also contends Greensboro-based federal lawyers could easily take over for Giorno’s office.

Giorno and his colleagues disagree. They say they’ve had “up to three investigators and two paralegals working on this case in addition to three attorneys,” and voiced doubt that the Greensboro-based U.S. attorney has “similarly available investigative resources.”

A counter-filing from Duke, however, confirmed that the matter’s also received attention in Greensboro. An assistant U.S. attorney based there, Cheryl Sloan, is on the case and has “actively participated in the government investigation,” the university says. Moreover, her then-boss, former Middle District of North Carolina U.S. Attorney Ripley Rand, “participated in a June 6, 2016, settlement meeting” between the government and Duke representatives.

The mention of settlement talks and, by implication, a possible settlement, alluded both to the case’s being a civil matter and to False Claims Act provisions that put Duke at risk of having to pay treble damages should it lose a trial and subsequent appeal. Thomas potentially could receive up to 30 percent of the value of a damages finding as a reward for bringing the matter to the government’s attention.

The issue’s has been on the radar for the university, the courts and the government since 2013, when Potts-Kant was caught up in an otherwise-unrelated embezzlement case at Duke. A subsequent in-house review confirmed numerous problems with her lab work and the data she’d reported. A blog that tracks scientific misconduct, Retraction Watch, says 16 papers Potts-Kant shared an author’s credit on have since been retracted.

Thomas, however, contends Potts-Kant’s actions are but the tip of the iceberg. He argues the lab’s boss, retired pulminologist Michael Foster, at best failed to monitor the Potts-Kant’s work or at worst was in on the fraud. He further claims that Duke officials missed numerous signs that something was amiss, reported to them by the university’s own people and outside researchers, and even after confirming the bad data were more interested in circling the wagons to prevent public-relations and grant-award fallout.

Along with fraud, the case is about “institutional malfeasance, which caused over $100 million of taxpayer funded to be wrongfully obtained and wasted,” Thomas’ lawyers said in a filing that opposes Duke’s attempts to have the lawsuit dismissed.

Procedurally, a False Claims Act lawsuit is secret when it’s first filed, to give government lawyers time to size up and investigate its allegations. But unless they formally intervene, taking over the case, it eventually goes public. A judge opened the file on Thomas case last August, roughly three years after its start.

Giorno said the government had moved to keep the case sealed, but the judge denied its request. It then opted to let Thomas proceed and “continue its investigation” as the lawsuit unfolds.

He added, in a footnote to filing on the venue-change dispute, that the Roanoke-based prosecutor’s office has had “continuing disputes with Duke over the pace of document production” that have “significantly delayed the investigation.”

“To this day, the document production is still incomplete,” he said.

Duke said it’s handed over documents in response to 30 separate “civil investigative demands” from the government, and that 10 more it knows of are pending. Its lawyers acknowledged government queries about “when” the hand-offs would be complete, but registered their unhappiness with what they termed “the excessive number and breadth of the government’s duplicative and burdensome” requests.

Ray Gronberg: 919-419-6648, @rcgronberg