Dispute Over Lab Notebooks Lands Researcher in Jail# Biology - 生物学
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udy Mikovits, a biochemist who became world famous for her studies with
chronic fatigue syndrome (CFS), was arrested and jailed on 18 November in
Ventura, California, on a felony charge of possessing stolen property from a
research institute that fired her in September. The property at issue
consisted of her laboratory notebooks and related data.
Court documents filed by police in a criminal case and by her former
employer— the Whittemore Peterson Institute for Neuro- Immune Disease (WPI)
in Reno, Nevada— in a related but separate civil case allege that Mikovits
instructed a lab assistant to steal the notebooks and other material. The
documents charge that she then made a clandestine trip from her residence in
Ventura back to Reno to retrieve the “stolen items” and then hid on a
boat near her California home to dodge a possible summons. Mikovits, through
an attorney, at first strongly denied that she possessed the notebooks;
Mikovits and her attorneys have not commented since the arrest and the
filing of affidavits detailing the alleged wrongdoing.
These astonishing—if not downright bizarre—events cap a 2-year period in
which Mikovits has been mired in a topsy-turvy research debate that saw her
work praised and then derided by prominent colleagues. She first made
headlines in October 2009 when her group at the largely unknown WPI teamed
up with well-known researchers at the U.S. National Cancer Institute (NCI)
and the Cleveland Clinic in Ohio and published a report in Science that tied
an obscure mouse retrovirus to CFS. Other labs soon began reporting that
they could not confirm the finding, which outraged many CFS patients who
distrusted the scientific community and held great hope that the virus,
dubbed XMRV, could lead to a long-sought explanation for their baffling
disease and potential treatments and even cures.
But as more negative data piled up, as well as evidence that some positive
results were due to contamination, the XMRV theory began to crumble (Science
, 23 September, p. 1694). A multilab study led by a working group that the U
.S. Department of Health and Human Services established—and in which
Mikovits participated—reported online in Science on 22 September that none
could reliably find XMRV in 15 blinded samples from people who earlier had
tested positive for the virus at WPI and elsewhere.
One week later, on 29 September, WPI President Annette Whittemore, in what
she said was an incident unrelated to XMRV's woes, fired Mikovits for
insubordination and insolence. Whittemore and her husband, Harvey, a well-
known real estate developer and attorney, started WPI in 2007 with their own
money and grants from the state and federal government. They are alumni of
and major donors to the University of Nevada, Reno, where WPI is located.
Mikovits's legal troubles began on 4 November when WPI filed a civil suit
against her alleging breach of contract, misappropriating trade secrets, and
related claims. WPI asserted that after it fired Mikovits, she took her
notebooks, a laptop, and flash drives with data that did not belong to her.
Mikovits, WPI stressed, had signed a “proprietary information and invention
agreement” when her employment began in 2007 that stipulated she would
return all work materials upon termination. WPI sought a preliminary
injunction that would force her to return, undamaged, the “misappropriated
property.”
On 4 November, Lois Hart, an attorney representing Mikovits at the time,
wrote a letter to WPI's counsel at the firm SNR Denton denying all charges.
“Dr. Mikovits was not and is not in possession of the lab notebooks or any
WPI intellectual property,” Hart wrote. “A number of individuals have keys
to the office and lab, including the administrative staff, lab staff and
custodial. Your client's concern as to the location of those notebooks, and
intellectual property, should be directed elsewhere.” Many CFS patients and
their families who viewed Mikovits as a hero decried her legal fate in the
blogosphere.
The civil suit became entangled with a criminal case when WPI reported a
break-in and theft. Adam Garcia, chief of police at the University of Nevada
, Reno, told Science that his office received the report from WPI “staff ”
on 9 November but that the alleged crime could have happened earlier.
Garcia's office launched an investigation, which led one of his officers to
file affidavits with the Reno Justice Court in support of an arrest warrant.
According to the affidavits filed on 16 and 17 November, Mikovits
instructed a research assistant of hers at WPI, Max Pfost, to “illegally
enter her former office” and retrieve research notebooks, a laptop, flash
drives, and correspondence that belonged to the institute. “The missing
property includes trade secrets and inventions that are patented, or for
which a patent application is pending,” the officer stated, estimating that
“the value of the property stolen is likely to be in the hundreds of
thousands of dollars, or more.” The Reno Justice Court issued the arrest
warrant.
After Ventura County police arrested Mikovits on 18 November, they locked
her up at the Todd Road Jail. She was held on a felony charge of being a
fugitive from justice, pending her extradition to Washoe County, Nevada, to
face the criminal charges.
On 22 November, Mikovits appeared in Ventura County Superior Court for the
extradition hearing. Outfitted in a blue jail-issued jump suit with an
orange T-shirt underneath, Mikovits sat in a barred room-within-the-room
that had a few dozen similarly dressed inmates. When her case came up, she
spoke to Paul Tyler, the attorney handling her criminal defense, through the
cagelike bars. Tyler requested that her extradition be delayed, and the
judge agreed that she could return to his court on 19 December to decide the
issue. Tyler asked the judge to reduce her $100,000 bail but was denied.
Tyler did not discuss her guilt or innocence with the judge and declined to
comment to Science.
John Coffin, a retrovirologist at Tufts University School of Medicine in
Boston who switched from being an early scientific supporter of Mikovits to
a vocal critic, says regardless of the property dispute, it “goes way too
far” to jail her. “She doesn't deserve this,” Coffin says. “It really
comes down to personalities. It's almost like a domestic dispute from love
to throwing frying pans in no time. It just looks like an escalating
situation that got out of control.”
Robert Charrow, an attorney with Greenberg Traurig in Washington, D.C., who
specializes in scientific research disputes and represents universities,
says academic institutions typically allow researchers to take a copy of
their data, whereas industry forbids it. With WPI, a nonprofit organization,
“it's a gray area,” Charrow says.
It's unclear whether Mikovits ever requested copies of her notebooks and
other data from WPI. But her attorney's 4 November letter to WPI's counsel
contended that the notebooks contained “important non-proprietary
information” that could “advance the field of neuroimmune disease,” and
Mikovits needed them to complete work on several grants she had been awarded
. Since 2009, Mikovits has received more than $300,000 a year in grants from
the U.S. National Institute of Allergy and Infectious Diseases (NIAID) to
develop new strategies to decipher the pathophysiology of CFS. Hugh
Auchincloss, NIAID's deputy director, says the institute awards grants to
institutions, not individuals, but if the institute cannot find a suitable
replacement for Mikovits, WPI will have to forfeit the money. The Department
of Defense (DOD) had also awarded her a grant for research into prostate
cancer, which has XMRV links, too.
On the same day that Mikovits went to court for her extradition hearing, the
Second Judicial District Court in Washoe County held a hearing on WPI's
request for a preliminary injunction that would require Mikovits to return
the material undamaged. In support of that civil case, WPI's attorneys filed
affidavits with the court—made public that morning—that included more
details about the theft it said Mikovits “masterminded.”
In two affidavits, Pfost describes his role, which began with a phone call
from Mikovits shortly after her firing. “She stated that WPI would go down,
and that I should get out, too,” Pfost claimed in a notarized affidavit.
Pfost said Mikovits told him she hoped to move the NIAID and DOD grants to
wherever she ended up working.
Pfost states in an affidavit that Mikovits gave him the keys to her office
and desk and asked him to remove notebooks and “samples” from the lab. (
Another affidavit from a different research assistant says Mikovits asked
her to remove “cell lines and plasma” samples and send them to
collaborators at NCI, but she states that she didn't do it.) Pfost wrote in
his affidavit that he went to WPI a few hours before sunrise, but his
security key card didn't give him access. Pfost said he returned around 8 a.
m. and entered the building, but the lab was “on lock down” and he could
not obtain the samples. He was able to enter Mikovits's office, he said in
an affidavit, and removed 12 to 20 notebooks. Pfost hid them in a multi
colored “Happy Birthday” bag he had at his condo. Worried about WPI's
interest in the missing notebooks, and at the behest of Mikovits, Pfost said
that 4 days later, he moved the bag to his mother's garage in Sparks,
Nevada.
Pfost's affidavit says Mikovits asked him to ship the notebooks to “a safe
location in California or Virginia,” but he couldn't afford the cost and
asked her to retrieve them in Reno. Pfost went on to explain that shortly
after midnight on 17 October, he picked up Mikovits at the Reno airport,
drove her to his condo, and gave her the Happy Birthday bag with the
notebooks.
Police Chief Garcia told Science on 22 November that the felony
investigation was ongoing. “Whether or not others will be arrested is yet
to be determined,” Garcia said. He would not answer questions about whether
Pfost was offered immunity from prosecution in return for his affidavits.
According to a WPI spokesperson who works at SNR Denton, the law firm
representing the institute, Pfost remains employed there.
Mikovits posted bail soon after her extradition hearing and was released
that evening. That same day, the civil court in Reno granted WPI the
preliminary injunction it sought, which orders her to return the “mis-
appropriated property” or be held in contempt of court. On 23 November, the
day before Thanksgiving, WPI posted a cryptic note on its Facebook page
suggesting that the case against Mikovits may soon have closure. “We are
thankful that most of our property has been returned,” the note states. WPI
's spokesperson told Science that Mikovits's husband “returned some
material to police in Ventura” but that it had not all been accounted for
as of 28 November.
Coffin of Tufts says he expects the saga to continue. “The science is gone
now, and it's all about lawyers—and there probably is an awful lot of legal
stuff under the surface,” Coffin says. “We're certainly not at the end of
this.”
chronic fatigue syndrome (CFS), was arrested and jailed on 18 November in
Ventura, California, on a felony charge of possessing stolen property from a
research institute that fired her in September. The property at issue
consisted of her laboratory notebooks and related data.
Court documents filed by police in a criminal case and by her former
employer— the Whittemore Peterson Institute for Neuro- Immune Disease (WPI)
in Reno, Nevada— in a related but separate civil case allege that Mikovits
instructed a lab assistant to steal the notebooks and other material. The
documents charge that she then made a clandestine trip from her residence in
Ventura back to Reno to retrieve the “stolen items” and then hid on a
boat near her California home to dodge a possible summons. Mikovits, through
an attorney, at first strongly denied that she possessed the notebooks;
Mikovits and her attorneys have not commented since the arrest and the
filing of affidavits detailing the alleged wrongdoing.
These astonishing—if not downright bizarre—events cap a 2-year period in
which Mikovits has been mired in a topsy-turvy research debate that saw her
work praised and then derided by prominent colleagues. She first made
headlines in October 2009 when her group at the largely unknown WPI teamed
up with well-known researchers at the U.S. National Cancer Institute (NCI)
and the Cleveland Clinic in Ohio and published a report in Science that tied
an obscure mouse retrovirus to CFS. Other labs soon began reporting that
they could not confirm the finding, which outraged many CFS patients who
distrusted the scientific community and held great hope that the virus,
dubbed XMRV, could lead to a long-sought explanation for their baffling
disease and potential treatments and even cures.
But as more negative data piled up, as well as evidence that some positive
results were due to contamination, the XMRV theory began to crumble (Science
, 23 September, p. 1694). A multilab study led by a working group that the U
.S. Department of Health and Human Services established—and in which
Mikovits participated—reported online in Science on 22 September that none
could reliably find XMRV in 15 blinded samples from people who earlier had
tested positive for the virus at WPI and elsewhere.
One week later, on 29 September, WPI President Annette Whittemore, in what
she said was an incident unrelated to XMRV's woes, fired Mikovits for
insubordination and insolence. Whittemore and her husband, Harvey, a well-
known real estate developer and attorney, started WPI in 2007 with their own
money and grants from the state and federal government. They are alumni of
and major donors to the University of Nevada, Reno, where WPI is located.
Mikovits's legal troubles began on 4 November when WPI filed a civil suit
against her alleging breach of contract, misappropriating trade secrets, and
related claims. WPI asserted that after it fired Mikovits, she took her
notebooks, a laptop, and flash drives with data that did not belong to her.
Mikovits, WPI stressed, had signed a “proprietary information and invention
agreement” when her employment began in 2007 that stipulated she would
return all work materials upon termination. WPI sought a preliminary
injunction that would force her to return, undamaged, the “misappropriated
property.”
On 4 November, Lois Hart, an attorney representing Mikovits at the time,
wrote a letter to WPI's counsel at the firm SNR Denton denying all charges.
“Dr. Mikovits was not and is not in possession of the lab notebooks or any
WPI intellectual property,” Hart wrote. “A number of individuals have keys
to the office and lab, including the administrative staff, lab staff and
custodial. Your client's concern as to the location of those notebooks, and
intellectual property, should be directed elsewhere.” Many CFS patients and
their families who viewed Mikovits as a hero decried her legal fate in the
blogosphere.
The civil suit became entangled with a criminal case when WPI reported a
break-in and theft. Adam Garcia, chief of police at the University of Nevada
, Reno, told Science that his office received the report from WPI “staff ”
on 9 November but that the alleged crime could have happened earlier.
Garcia's office launched an investigation, which led one of his officers to
file affidavits with the Reno Justice Court in support of an arrest warrant.
According to the affidavits filed on 16 and 17 November, Mikovits
instructed a research assistant of hers at WPI, Max Pfost, to “illegally
enter her former office” and retrieve research notebooks, a laptop, flash
drives, and correspondence that belonged to the institute. “The missing
property includes trade secrets and inventions that are patented, or for
which a patent application is pending,” the officer stated, estimating that
“the value of the property stolen is likely to be in the hundreds of
thousands of dollars, or more.” The Reno Justice Court issued the arrest
warrant.
After Ventura County police arrested Mikovits on 18 November, they locked
her up at the Todd Road Jail. She was held on a felony charge of being a
fugitive from justice, pending her extradition to Washoe County, Nevada, to
face the criminal charges.
On 22 November, Mikovits appeared in Ventura County Superior Court for the
extradition hearing. Outfitted in a blue jail-issued jump suit with an
orange T-shirt underneath, Mikovits sat in a barred room-within-the-room
that had a few dozen similarly dressed inmates. When her case came up, she
spoke to Paul Tyler, the attorney handling her criminal defense, through the
cagelike bars. Tyler requested that her extradition be delayed, and the
judge agreed that she could return to his court on 19 December to decide the
issue. Tyler asked the judge to reduce her $100,000 bail but was denied.
Tyler did not discuss her guilt or innocence with the judge and declined to
comment to Science.
John Coffin, a retrovirologist at Tufts University School of Medicine in
Boston who switched from being an early scientific supporter of Mikovits to
a vocal critic, says regardless of the property dispute, it “goes way too
far” to jail her. “She doesn't deserve this,” Coffin says. “It really
comes down to personalities. It's almost like a domestic dispute from love
to throwing frying pans in no time. It just looks like an escalating
situation that got out of control.”
Robert Charrow, an attorney with Greenberg Traurig in Washington, D.C., who
specializes in scientific research disputes and represents universities,
says academic institutions typically allow researchers to take a copy of
their data, whereas industry forbids it. With WPI, a nonprofit organization,
“it's a gray area,” Charrow says.
It's unclear whether Mikovits ever requested copies of her notebooks and
other data from WPI. But her attorney's 4 November letter to WPI's counsel
contended that the notebooks contained “important non-proprietary
information” that could “advance the field of neuroimmune disease,” and
Mikovits needed them to complete work on several grants she had been awarded
. Since 2009, Mikovits has received more than $300,000 a year in grants from
the U.S. National Institute of Allergy and Infectious Diseases (NIAID) to
develop new strategies to decipher the pathophysiology of CFS. Hugh
Auchincloss, NIAID's deputy director, says the institute awards grants to
institutions, not individuals, but if the institute cannot find a suitable
replacement for Mikovits, WPI will have to forfeit the money. The Department
of Defense (DOD) had also awarded her a grant for research into prostate
cancer, which has XMRV links, too.
On the same day that Mikovits went to court for her extradition hearing, the
Second Judicial District Court in Washoe County held a hearing on WPI's
request for a preliminary injunction that would require Mikovits to return
the material undamaged. In support of that civil case, WPI's attorneys filed
affidavits with the court—made public that morning—that included more
details about the theft it said Mikovits “masterminded.”
In two affidavits, Pfost describes his role, which began with a phone call
from Mikovits shortly after her firing. “She stated that WPI would go down,
and that I should get out, too,” Pfost claimed in a notarized affidavit.
Pfost said Mikovits told him she hoped to move the NIAID and DOD grants to
wherever she ended up working.
Pfost states in an affidavit that Mikovits gave him the keys to her office
and desk and asked him to remove notebooks and “samples” from the lab. (
Another affidavit from a different research assistant says Mikovits asked
her to remove “cell lines and plasma” samples and send them to
collaborators at NCI, but she states that she didn't do it.) Pfost wrote in
his affidavit that he went to WPI a few hours before sunrise, but his
security key card didn't give him access. Pfost said he returned around 8 a.
m. and entered the building, but the lab was “on lock down” and he could
not obtain the samples. He was able to enter Mikovits's office, he said in
an affidavit, and removed 12 to 20 notebooks. Pfost hid them in a multi
colored “Happy Birthday” bag he had at his condo. Worried about WPI's
interest in the missing notebooks, and at the behest of Mikovits, Pfost said
that 4 days later, he moved the bag to his mother's garage in Sparks,
Nevada.
Pfost's affidavit says Mikovits asked him to ship the notebooks to “a safe
location in California or Virginia,” but he couldn't afford the cost and
asked her to retrieve them in Reno. Pfost went on to explain that shortly
after midnight on 17 October, he picked up Mikovits at the Reno airport,
drove her to his condo, and gave her the Happy Birthday bag with the
notebooks.
Police Chief Garcia told Science on 22 November that the felony
investigation was ongoing. “Whether or not others will be arrested is yet
to be determined,” Garcia said. He would not answer questions about whether
Pfost was offered immunity from prosecution in return for his affidavits.
According to a WPI spokesperson who works at SNR Denton, the law firm
representing the institute, Pfost remains employed there.
Mikovits posted bail soon after her extradition hearing and was released
that evening. That same day, the civil court in Reno granted WPI the
preliminary injunction it sought, which orders her to return the “mis-
appropriated property” or be held in contempt of court. On 23 November, the
day before Thanksgiving, WPI posted a cryptic note on its Facebook page
suggesting that the case against Mikovits may soon have closure. “We are
thankful that most of our property has been returned,” the note states. WPI
's spokesperson told Science that Mikovits's husband “returned some
material to police in Ventura” but that it had not all been accounted for
as of 28 November.
Coffin of Tufts says he expects the saga to continue. “The science is gone
now, and it's all about lawyers—and there probably is an awful lot of legal
stuff under the surface,” Coffin says. “We're certainly not at the end of
this.”