Articles on Law, Science, and Engineering

Using Expert Testimony In Scientific Misconduct Cases

by Charles F. Walter and Edward P. Richards, 14 IEEE Engineering in Medicine and Biology Magazine #3, pg. 338 (May/June 1995)

INDEX

• INTRODUCTION
• HHS JURISDICTION
• USING EXPERTS TO CHALLENGE JURISDICTION
• THE POLITICS OF INVESTIGATIONS

In the March, 1994, May, 1994, and February, 1995 issues of EMB Magazine, we describe how the power of the Washington bureaucracy threatens scientists who are singled out for sanctions for alleged scientific misconduct. Even vindication comes at a very steep price. For example, by the time Rameshwar Sharma had been cleared by a Department of Health and Human Services (HHS) Departmental Appeals Board in August, 1993 (See the March, 1994 issue of EMB Magazine at pp. 143), Professor Sharma had lost his tenured position as a professor, years of work as a molecular biologist, and his life savings. A year after exoneration, Dr. Sharma was working at an optometry college.

Financially drained, his two children's college education interrupted, Professor Sharma was not even able to grant his father's dying wish that his only son visit him one last time in India. The most tragic loss of all is the personal one in which you are restrained from attending to your highest duties within your family or culture, such as performing rites at your father's funeral. Nothing is adequate to compensate such loss, not even the damnation of the bureaucrats who were responsible.

Since the sanctions are so onerous, the appeal procedure so lengthy, and redress unheard of, scientists facing proposed findings of misconduct by HHS need to use every defense available to them. This article discusses the threshold question of whether HHS has jurisdiction over the conduct, even if it occurred as alleged. More generally, we want scientists to understand that it the process itself is a sanction, and that they should employ all proper means to end it as early as possible.

Most of scientists investigated to date have focused their defenses on whether they did the misdeeds alleged by HHS. By acquiescing to HHS's implicit claim that the alleged conduct is within its jurisdiction, the scientists allow HHS to pillory while they try to explain that what they did was a fundamental function of their profession.

Take, for example, Professor Urias V. Light, a leading U.S. enzymologist tenured at Hallowed New University (HNEW). HNEW has applied to HHS for a grant to support Professor Light's research on the effect of exposing enzymes to irradiation from a source emitting at wavelengths between 700 and 800 millimicrons. This will be HNEW's first HHS funded research. (Technically, the law is limited to Public Health Service funded grants, but this includes most HHS funded research, outside the FDA.)

Professor Light's preliminary experiments indicate that exposure for 10 seconds to a 100 watt source increases the activity of several enzymes isolated from plankton by about 50% at room temperature. The research proposal is entitled "Excitons." No explanation is given to explain how light frequencies in the range 1015 Hz can result in detectable activation of chemical reactions at room temperatures. After looking up Plank's constant and calculating that the basic energy unit of the UV light oscillator is only about 10-12 ergs, David Bathoff at HHS instituted scientific misconduct proceedings against Professor Light to bar him from consideration for HHS funds. And others may find themselves in the stock for failing to find the needle in a haystack of research administration.

Take, for example, Dr. Isolde Tsara, a principal investigator in the Declension and Decollation Academy (DADA). DADA received a grant from HHS to collect PET scan data from laboratories using positron emission tomography in various brain studies. Dr. Tsara's own project involves evaluation of PET scan data for the diagnosis of Alzheimer Disease. Unknown to Dr. Tsara, she received mischaracterized scans from participants in Boston (Dr. Ichabod Tartufe) and Miami (Dr. Modred E. Too), both of whom studied in Heidelberg under the same mentor, Herr Doktor Professor Eugene Trug. Dr. Tsara's publication on Alzheimer diagnosis in 3-year olds relied on scans with false characterizations of the patients. However, her publication clearly identified the source of the data she used as the HHS PET scan data base.

Three years after publishing her article, Dr. Tsara heard rumors that Dr. Too may have mischaracterized the patients for some of his PET scans. In somewhat of a panic, she soon learned that some of the scans from Dr. Tartufe may have been mischaracterized too. Meanwhile, Dr. Tsara investigated the Miami data and found that Dr. Too included 4-year olds in his study because he didn't want to deprive them of the benefits of the tests just because they had had an "extra" birthday. After consulting with DADA's lawyer (Jabez Quisling), Dr. Tsara called HHS to report the problem.

When David Bathoff at HHS heard about the false data in Dr. Tsara's publication and that Trug, Tsara, Tartufe and Too had won the Nobel Prize for naming the deficient gene in Alzheimer patients "T4", he contacted DADA and threatened to cut off all HHS support. After reviewing the information in Quisling's files, HHS informed Dr. Tsara that it proposes to disbar her for scientific misconduct.

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