Mauvais-Jarvis v. Wong

• Citation: 2013 IL App (1st) 120070,370 Ill.Dec. 98,987 N.E.2d 864
• Decision Date: 28 March 2013
• Docket Number: Docket Nos. 1–12–0070,1–12–0237 cons.
• Parties: Franck MAUVAIS–JARVIS, M.D., P.h.D., Plaintiff–Appellant, v. Winifred P.S. WONG, Joseph T. Walsh, Lauran Qualkenbush, Jon E. Levine, Michelle L. Oeser, Northwestern University, and John and Jane Does Nos. 1 through 10, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 120070

987 N.E.2d 864

370 Ill.Dec. 98

Franck MAUVAIS–JARVIS, M.D., P.h.D., Plaintiff–Appellant,

v.Winifred P.S. WONG, Joseph T. Walsh, Lauran Qualkenbush, Jon E. Levine, Michelle L. Oeser, Northwestern University, and John and Jane Does Nos. 1 through 10, Defendants–Appellees.

Docket Nos. 1–12–0070, 1–12–0237 cons.

Appellate Court of Illinois,

First District, Fourth Division.

March 28, 2013.

Constantine John Gekas and John C. Gekas, both of Gekas Law LLP, of Chicago, for appellant.

Eric S. Matson and Marah S. McLeod, both of Sidley Austin LLP, of Chicago, and Lisa A. Hausten, of Law Offices of Lisa A. Hausten, of Wheaton, for appellees.

OPINION

Justice FITZGERALD SMITH delivered the judgment of the court, with opinion.

[370 Ill.Dec. 100]¶ 1 The plaintiff, Franck Mauvais–Jarvis (hereinafter Mauvais–Jarvis), filed a complaintin the circuit court alleging, inter alia, that the defendants, Winifred P.S. Wong (hereinafter Wong), Joseph T. Walsh (hereinafter Walsh), Lauran Qualkenbush (hereinafter Qualkenbush), Jon E. Levine (hereinafter Levine), Michelle L. Oeser (hereinafter Oeser), and Northwestern University (hereinafter Northwestern or the University), either defamed him or conspired to defame him by formally presenting to the Northwestern internal inquiry committee allegations that Mauvais–Jarvis submitted inaccurate data for publication in a scientific paper. The defendants filed motions to dismiss the complaint pursuant to sections 2–615 and 2–619 of the Illinois Code of Civil Procedure (Civil Procedure Code) (735 ILCS 5/2–615, 2–619 (West 2008)) and the circuit court granted their motions pursuant to section 2–619 (735 ILCS 5/2–619 (West 2008)). ¹ The court dismissed the defamation counts, holding that since the defendants acted under a mandatory duty to report and investigate suspected research misconduct, their statements were protected by absolute privilege. The court also dismissed the conspiracy to defame counts, finding: (1) that since the statements at issue were protected by absolute privilege, the plaintiff had failed to allege any actionable conduct ( i.e., defamation) underlying the alleged conspiracy and (2) that, in any event, the conspiracy counts were time-barred pursuant to section 13–201 of the Civil Procedure Code ( 735 ILCS 5/13–201 (West 2008)). The plaintiff now appeals, contending that the circuit court improperly applied absolute privilege to the defendants' statements when no such privilege is recognized under Illinois law in the context of a university research misconduct proceeding. The plaintiff also argues that his civil conspiracy claim is not time-barred because the applicable statute of limitations is found in section 13–205 of the Civil Procedure Code ( 735 ILCS 5/13–205 (West 2008)), and not section 13–201 of that Code ( 735 ILCS 5/13–201 (West 2008)) and permits the filing of such claims within five years. For the reasons that follow, we affirm in part, and reverse and remand in part.

¶ 2 I. BACKGROUND

¶ 3 The record reveals the following undisputed facts and procedural history. Defendant Northwestern University is a specially chartered private Illinois corporation. As an institution that receives federal funding for biomedical and behavioral research it is governed by a complex set of federal regulations with respect to investigating research misconduct.

¶ 4 A. The Federal Regulations

¶ 5 Pursuant to the Public Health and Welfare Act (42 U.S.C. § 289b (2008)) the Secretary of the United States Department of Health and Human Services (HHS) has established an agency, the Office of Research Integrity (ORI), within the Public Health Service (PHS),² responsible for investigating all reports of research misconduct from institutions receivingHHS funding. The Secretary has also promulgated regulations, entitled “Public Health Services Polices on Research Misconduct,” requiring institutions that receive such financial assistance to establish proceedings ³ to investigate good-faith allegations of research misconduct and to report all such investigations to the ORI. See 42 U.S.C. § 289b (2008); see also 42 C.F.R. § 93 et seq. (2005).

¶ 6 Pursuant to these regulations, “[i]nstitutions and institutional members have an affirmative duty to protect PHS funds from misuse” and the “primary responsibility for responding to and reporting allegations of research misconduct.” 42 C.F.R. § 93.100(b) (2005) “Research misconduct” is defined as:

“fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.

(a) Fabrication is making up data or results and recording or reporting them.

(b) Falsification is manipulating research materials, equipment, or processes, or changing or omitting data or results such that the research is not accurately represented in the research record.

(c) Plagiarism is the appropriation of another person's ideas, processes, results, or words without giving appropriate credit.

(d) Research misconduct does not include honest error or differences of opinion.” 42 C.F.R. § 93.103 (2005).

¶ 7 The regulations recognize that research misconduct proceedings are most often initiated by a complainant, i.e., a person who brings forward allegations that a researcher has committed research misconduct. The regulations therefore require that the complainant make allegations in “good faith.” See 42 C.F.R. § 93.203 (2005) (“Complainant means a person who in good faith makes an allegation of research misconduct.” (Emphasis added.)). “Good faith” is defined as:

“having a belief in the truth of one's allegation or testimony that a reasonable person in the complainant's or witness's position could have based on the information known to the complainant or witness at the time. An allegation or cooperation with a research misconduct proceedings is not in good faith if made with knowing or reckless disregard for information that would negate the allegation or testimony.” 42 C.F.R. § 93.210 (2005).

¶ 8 The regulations mandate that any institution receiving federal funding for research establish a two-tiered procedure for investigating allegations of research misconduct: (1) an inquiry and (2) an investigation. 42 C.F.R. §§ 93.212, 93.307 to 93.309, 93.215, 93.310 to 93.313 (2005).

¶ 9 The “inquiry,” or the “preliminary information-gathering and preliminary fact-finding” stage (42 C.F.R. § 93.212 (2005)), is intended as “an initial review of the evidence” to determine whether an allegation warrants a further investigation, and therefore “does not require a full review of all the evidence related to the allegation.” 42 C.F.R. §§ 93.307(c), (d) (2005). The person accused of research misconduct must be placed on notice of an inquiry. See 42 C.F.R. § 93.307(b) (2005) (“At the time of or before beginning an inquiry, an institution must make a good faith effort to notify in writing the presumed respondent, if any.”). The institution must also timely complete the inquiry “within 60 calendar days of its initiation unless circumstances clearly warrant a longer period.” 42 C.F.R. § 93.307(g) (2005). Once the inquiry is completed, the institution must prepare a written report of the inquiry committee's decision. 42 C.F.R. § 93.307(e) (2005). If the inquiry board determines that the allegations warrant an investigation, the institution must send the written report to the ORI. 42 C.F.R. § 93.309(a) (2005). If, however, the inquiry committee determines that it is not necessary to proceed with an investigation, it must merely retain its written report and all relevant evidence collected therein on file within the institution for the next seven years. 42 C.F.R. § 93.309(c) (2005).

¶ 10 The second, “investigation” stage of the proceedings is defined as:

“the formal development of a factual record and the examination of that record leading to a decision not to make a finding of research misconduct or to make a recommendation for a finding of research misconduct which may include a recommendation for other appropriate actions, including administrative actions.” 42 C.F.R. § 93.215 (2005).

During the investigation, the institution must interview witnesses and diligently pursue all leads. 42 C.F.R. §§ 93.310(g), (h) (2005). The investigation must be commenced “within 30 days after determining that an investigation is warranted” (42 C.F.R. § 93.310(a) (2005)), and the accused must be notified in writing of all allegations against him before the investigation begins. See 42 C.F.R. § 93.310(c) (2005) (The institution must “[n]otify the respondent in writing of the allegations within a reasonable amount of time after determining that an investigation is warranted, but before the investigation begins.”). The final findings of the investigation committee must be memorialized in a written report (42 C.F.R. § 93.313 (2005)) and must be given to the accused for comment (42 C.F.R. § 93.312 (2005)). The final report must also be sent to the ORI. 42 C.F.R. § 93.315 (2005). The investigation itself must be completed “within 120 days of beginning it, including conducting the investigation, preparing the report of findings, providing the draft report for comment * * * and sending the final report to ORI.” 42 C.F.R. § 93.311(a) (2005). If the institution is unable to complete the investigation within 120 days, it must request, in writing, an extension of time from the ORI. 42 C.F.R. § 93.311(b) (2005).

¶ 11 After an institution completes its two-tiered investigatory procedure, the ORI may become involved by, inter alia, reviewing the institution's findings, making its own finding of research misconduct and proposing administrative actions to the HHS. 42 C.F.R. § 93.400 (2005). When the ORI does choose to get involved and makes its own finding of research misconduct, it must propose and obtain HHS approval for “administrative actions,” and must notify the respondent of these actions in a formal charge letter. 42 C.F.R. §§ 93.404 to 93.405 (200...