The Volokh Conspiracy

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Free Speech

$160K Libel Verdict for Ex-Student Based on Professor's Research Misconduct Allegations


In Rossi v. Dudek (D. Utah), plaintiff sued her former professor for libel, based on his allegations that she had committed research misconduct. Such allegations of misconduct that are made within an employer or an educational institution are often "conditionally privileged," which means (to oversimplify) that liability is only allowed when there's a showing of (1) knowing or reckless falsehood, (2) a motivation of personal hostility, or (3) communication to people who don't have a professional reason to know about the controversy. Last week, the jury rendered a $160K verdict in Rossi's favor, and Monday Judge Ted Stewart refused to set aside the verdict, holding that the jury could find that the conditional privilege didn't apply:

Dr. Jeffrey Botkin, the Vice President for Research Integrity at the University of Utah during the time Plaintiff was a student, testified that it was his job to determine if enough evidence had been produced to open an investigation into potential research misconduct. Dr. Botkin testified that Defendant could not articulate a sufficient rationale for his concerns, that his concerns lacked specificity, and he did not provide specific evidence to support his allegations of research misconduct. Accordingly, Dr. Botkin concluded there was not sufficient evidence to initiate an investigation at that time.

Dr. Botkin testified that he communicated that information to Defendant. Defendant then testified that, following this determination by Dr. Botkin and Dr. Botkin's reminder to keep concerns confidential, he [presumably Defendant -EV] continued to express his concerns about research misconduct with committee members, people in his lab, and family members.

Defendant also testified that accusations of research misconduct are serious and highly damaging to a scientist's reputation. Other witnesses … Defendant testified he did not like Plaintiff, did not trust her, and did not want to work with her. Defendant testified that Plaintiff's comments regarding his lack of availability to her caused him to believe she falsified her data, but there has been testimony from several witnesses … that Defendant failed to follow up to verify the truthfulness of his accusations and failed to produce specific evidence of his accusations. Defendant testified that he never tried to verify if his accusations of research [presumably meaning "research misconduct" -EV] were false, despite his access to all the data stored on Plaintiff's laboratory computer within Defendant's laboratory.

Defendant further testified that, even after Dr. Botkin's instruction to keep concerns about research misconduct confidential, he continued to share his concerns with people beyond the Research Integrity Office and the thesis committee. Defendant testified that he shared his research misconduct accusations with his daughter Amanda while she was a student at Harvard University, Dr. Kevin Staley at Harvard University, and other members of his lab, who did not have a legitimate role in resolving the dispute….

Based upon this evidence, the Court finds that Plaintiff has presented sufficient evidence such that a reasonable jury could find that any applicable privileges have been abused by common law malice, actual malice, and/or excessive publication.

The court also concluded, for similar reasons, that defendant couldn't claim governmental immunity.

Ryan B. Hancey and Adam Lee Grundvig (Kesler & Rust) represent plaintiff.