Rossi v. Univ. of Utah

• Decision Date: 05 May 2020
• Docket Number: Case No. 2:15-cv-767
• Parties: CHRISTINA ROSSI, Plaintiff, v. UNIVERSITY OF UTAH, a Utah state educational institution; F. EDWARD DUDEK, an individual, in his official and individual capacities; KRISTIN A. KEEFE, an individual, in her official and individual capacities; JOHN A. WHITE, an individual, in his official and individual capacities; JEFFREY J. EKSTRAND, an individual, in his official and individual capacities; BRADLEY GREGER, an individual, in his official and individual capacities; JEFFREY R. BOTKIN, an individual, in his official and individual capacities; and DOES 1 through 25, inclusive, Defendants.
• Court: U.S. District Court — District of Utah

CHRISTINA ROSSI, Plaintiff, v. UNIVERSITY OF UTAH, a Utah state educational institution; F. EDWARD DUDEK, an individual, in his official and individual capacities;KRISTIN A. KEEFE, an individual, in her official and individual capacities; JOHN A. WHITE, an individual, in his official and individual capacities;JEFFREY J. EKSTRAND, an individual, in his official and individual capacities;BRADLEY GREGER, an individual, in his official and individual capacities;JEFFREY R. BOTKIN, an individual, in his official and individual capacities;and DOES 1 through 25, inclusive, Defendants.

Case No. 2:15-cv-767

UNITED STATES DISTRICT COURT DISTRICT OF UTAH

May 5, 2020

MEMORANDUM DECISION AND ORDER

Judge Clark Waddoups

TABLE OF CONTENTS

INTRODUCTION ............................................................. 1

FACTUAL BACKGROUND .................................................... 2

Committee Members and Their Roles ........................................ 2

Rossi's Academic Performance in the Program Prior to Dissertation Defense ......... 4

Rossi's Background Prior to Joining the Program in Utah ......................... 8

Dudek's Epoch Device and Rossi's Research ................................. 11

Unknown Information about Committee Members ............................. 20

Theta and Epilepsy Papers and Dissertation Defense ............................ 21

Initial Post-Defense Instructions ............................................ 30

Data Analysis Documentation ............................................. 31

Disagreement Over Research Requirements ................................... 35

Data Production and First Dismissal from the Program .......................... 38

Analysis After First Dismissal ............................................. 43

Dudek's Research Misconduct Accusations ................................... 46

Dudek's Final Report and Rossi's Employment Circumstances ................... 53

ANALYSIS

I. MOTION FOR RECONSIDERATION ................................ 54

II. QUALIFIED IMMUNITY - INDIVIDUAL CAPACITY .................. 56

III. PROCEDURAL DUE PROCESS - PROPERTY INTEREST ............... 57

A. Property Interest ............................................ 57B. Adequacy of Process ......................................... 60

C. Three Dismissal Grounds ..................................... 62

D. Type of Dismissal ........................................... 67

E. Notice Requirements ......................................... 69

F. Careful and Deliberate ....................................... 71

i. Conflict and Biases - Broad View of Committee's Actions .... 71

ii. Dudek .............................................. 75

iii. Keefe ............................................... 77

iv. White ............................................... 80

G. Law Clearly Established ...................................... 82

H. Summary Judgment ......................................... 83

IV. PROCEDURAL DUE PROCESS - STIGMATIZING DISMISSAL AND LIBERTY INTEREST CLAIMS ..................................... 84

A. Applicable Standard ......................................... 84

B. Application of Standard to Rossi's Allegations .................... 85

i. Alleged Defamatory Statements .......................... 85

ii. First and Second Factors ................................ 87

iii. Third and Fourth Factors ................................ 87

V. SUBSTANTIVE DUE PROCESS .................................... 89

A. Applicable Standard at Public Universities ....................... 89

B. Application of Standard to Conduct of Committee Defendants ........ 91

i. Property Rights ....................................... 91ii. Liberty Interest ....................................... 91

C. Law Clearly Established re Property Interest Claim ................. 91

D. Summary Judgment .......................................... 92

VI. DEFAMATION .................................................. 93

A. Standard of Review and Elements .............................. 93

B. Identification of the Statements at Issue .......................... 94

C. Publication ................................................ 95

D. False Statements ............................................ 96

E. Conditional Privileges and Exceptions ........................... 98

i. Common Interest Privilege .............................. 99

ii. Public Interest Privilege ............................... 100

iii. Conditional Privilege for Family Relationships ............. 100

iv. Exceptions to Conditional Privileges ..................... 102

F. Requisite Degree of Fault .................................... 104

G. Damages ................................................. 104

H. Governmental Immunity ..................................... 105

VII. BOTKIN'S SUMMARY JUDGMENT MOTION ....................... 107

A. Procedural Due Process ..................................... 107

B. Substantive Due Process ..................................... 108

VIII. OFFICIAL CAPACITY AND INJUNCTIVE RELIEF ................... 109CONCLUSION AND SCHEDULING ORDER .................................. 110INTRODUCTION

In 2008, Plaintiff Christina Rossi became a graduate student at the University of Utah's (the "University") Interdepartmental Neuroscience Program to obtain a Ph.D. From Fall 2008 to early 2013, Rossi was a successful student at the University. She joined the lab of Dr. F. Edward Dudek¹ and focused her research on long-term recordings of mice to determine if lesions in a small region of the hippocampus induced seizures. Rossi injected SSP-saporin into the hippocampus of mice to ablate interneurons and evaluate whether such interneuron loss caused epilepsy. Rossi perfected the ablation technique. Rossi also perfected implanting recording electrodes into the hippocampus to continuously record data for thirty days. She initially started with a tethered recording device, and then changed to a wireless device call Epoch.

Next, Rossi analyzed the "local field potentials" or LFPs that were recorded to determine if seizures were noted, and to look at theta rhythms in the hippocampus. The mice were then euthanized, and their brains were sectioned and stained for two purposes. One was to analyze cell counts to confirm interneuron loss, and if the loss was present, to determine how extensive the loss was. The second was to determine if there was any nonspecific damage to the region from some factor besides the injection. It was theorized that loss of cells in a small region of the hippocampus would induce epilepsy. By November 2012, however, Rossi reported such interneuron loss did not induce seizures.

Then, through a series of events, as detailed hereafter, Rossi failed her dissertation in April 2013, and ultimately was terminated from the Neuroscience Program in January 2014. Rossi subsequently sued each member of her dissertation committee (the "Committee") and Dr. Jeffrey R. Botkin, the University's Vice President for Research Integrity. She also specifically sued Dudek for defamation.

On June 24, 2016, the court dismissed some of Rossi's claims and two of the Committee members in their individual capacities and one in his official capacity. The remaining Committee members and Botkin now move for summary judgment and Rossi asks the court to reconsider the earlier dismissal of two of the Committee members. For the reasons stated below, the court grants in part and denies in part summary judgment as to the Committee Defendants. The court denies Rossi's motion for reconsideration. The court denies Dudek's motion for summary judgment on the defamation claim. The court grants Botkin's motion for summary judgment.

FACTUAL BACKGROUND

Committee Members and Their Roles

1. Rossi's initial Committee members were Dudek, Dr. Raymond P. Kesner, Dr. Kristin A. Keefe, Dr. John A. White, and Dr. Bradley E. Greger. White Depo., 5:2-9 (ECF No. 86-3).² Rossi invited each person to participate on her Committee and "had a good coverage of mentors to cover all of the scientific disciplines. In that sense, it was a very strong and appropriate committee." Dudek Depo., 108:17-19 (ECF No. 86-17).

2. Keefe was in the College of Pharmacy and the Director of the Interdepartmental Program in Neuroscience during the time she served on the Committee. Keefe Depo., 4:16-25, 56:9-13 (ECF No. 86-5). According to Dudek, Keefe understood the anatomy science well, but "[n]ot the seizure science." Dudek Depo., 108:7-10 (ECF No. 86-17).

3. Kesner was in the Psychology Department, and he "was the main person on the behavior." Dudek Depo., 108:10-12 (ECF No. 86-17); Rossi Depo., 26:14-15 (ECF No. 86-1).

4. White also had "some interest in the behavior." Dudek Depo., 108:10-12 (ECF No. 86-17). White was a Professor of Bioengineering at the University. White Depo., 6:14-17 (ECF No. 86-3). He focused on the technical and mathematical aspects of Rossi's work. Id. at 54:13-19. Greger and White were the main individuals on the analysis of the electrical signals. Dudek Depo., 108:14-16.

5. Dudek was a Professor in the Department of Neurosurgery and a chair in the physiology department. Dudek Depo., 4:2-5:10 (ECF No. 86-17). He knew the seizure science and seizure literature. Id. at 108:12-14.

6. In March 2013, shortly before Rossi's dissertation defense in April 2013, Dr. Jeffrey J. Ekstrand replaced Kesner on the Committee. White Depo., 5:7-8 (ECF No. 86-3) (stating Ekstrand replaced Kesner); Dismissal Lttr., at 3 (ECF No. 78-24) (stating Kesner was removed from Committee in March). Ekstrand is a pediatric neurologist who also knew the seizure science and seizure literature as an epileptologist. Dudek Depo., 42:19-21, 44:3, 108:12-14 (ECF No. 86-17).

Rossi's Academic Performance in the Program Prior to Dissertation Defense

7. Rossi entered the University of Utah's neuroscience program in 2008. She earned a 4.0 GPA her first semester; a 3.5 GPA her second semester; a 3.9 GPA her third semester; and a 3.909 her fourth semester, which GPAs were derived from grades across multiple classes....