NEWS & ANALYSIS                                                      NEWS & ANALYSIS                                      ...
NEWS&ANALYSIS       to “illegally enter her former office” and         awarded. Since 2009, Mikovits has received         ...
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Dispute Over Lab Notebooks Lands Judy Mikovits in Jail


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Dispute Over Lab Notebooks Lands Judy Mikovits in Jail

  1. 1. NEWS & ANALYSIS NEWS & ANALYSIS Then and now. Judy Mikovits (left) for 2 years faced skepticism about her CFS research, but recently, when police took this mug shot (right), she faced criminal charges. own money and grants from the state and federal government. They are alumni of and major donors to the University of Nevada, Downloaded from on December 2, 2011 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, INTELLECTUAL PROPERTY misappropriating trade secrets, and related claims. WPI asserted that after it fired Dispute Over Lab Notebooks Mikovits, she took her notebooks, a laptop, and flash drives with data that did not belong to her. Mikovits, WPI stressed, had signed Lands Researcher in Jail a “proprietary information and invention agreement” when her employment began in 2007 that stipulated she would return Judy Mikovits, a biochemist who became when her group at the largely unknown WPI all work materials upon termination. WPI world famous for her studies with chronic teamed up with well-known researchers at sought a preliminary injunction that would fatigue syndrome (CFS), was arrested and the U.S. National Cancer Institute (NCI) and force her to return, undamaged, the “misap- jailed on 18 November in Ventura, Califor- the Cleveland Clinic in Ohio and published a propriated property.” nia, on a felony charge of possessing sto- report in Science that tied an obscure mouse On 4 November, Lois Hart, an attorney len property from a research institute that retrovirus to CFS. Other labs soon began representing Mikovits at the time, wrote fired her in September. The property at issue reporting that they could not confirm the a letter to WPI’s counsel at the firm SNR consisted of her laboratory notebooks and finding, which outraged many CFS patients Denton denying all charges. “Dr. Mikovits related data. who distrusted the scientific community was not and is not in possession of the lab Court documents filed by police in a and held great hope that the virus, dubbed notebooks or any WPI intellectual prop- criminal case and by her former employer— XMRV, could lead to a long-sought explana- erty,” Hart wrote. “A number of individu-CREDITS (LEFT TO RIGHT): J. COHEN/SCIENCE; COURTESY OF VENTURA COUNTY SHERIFF’S OFFICE the Whittemore Peterson Institute for Neuro- tion for their baffling disease and potential als have keys to the office and lab, including Immune Disease (WPI) in Reno, Nevada— treatments and even cures. the administrative staff, lab staff and custo- in a related but separate civil case allege that But as more negative data piled up, as dial. Your client’s concern as to the location Mikovits instructed a lab assistant to steal well as evidence that some positive results of those notebooks, and intellectual prop- the notebooks and other material. The docu- were due to contamination, the XMRV the- erty, should be directed elsewhere.” Many ments charge that she then made a clandes- ory began to crumble (Science, 23 Septem- CFS patients and their families who viewed tine trip from her residence in Ventura back ber, p. 1694). A multilab study led by a work- Mikovits as a hero decried her legal fate in to Reno to retrieve the “stolen items” and ing group that the U.S. Department of Health the blogosphere. then hid on a boat near her California home and Human Services established—and in The civil suit became entangled with a to dodge a possible summons. Mikovits, which Mikovits participated—reported criminal case when WPI reported a break-in through an attorney, at first strongly denied online in Science on 22 September that none and theft. Adam Garcia, chief of police at the that she possessed the notebooks; Mikovits could reliably find XMRV in 15 blinded sam- University of Nevada, Reno, told Science and her attorneys have not commented since ples from people who earlier had tested posi- that his office received the report from WPI the arrest and the filing of affidavits detail- tive for the virus at WPI and elsewhere. “staff ” on 9 November but that the alleged ing the alleged wrongdoing. One week later, on 29 September, WPI crime could have happened earlier. Garcia’s These astonishing—if not downright President Annette Whittemore, in what she office launched an investigation, which led bizarre—events cap a 2-year period in which said was an incident unrelated to XMRV’s one of his officers to file affidavits with the Mikovits has been mired in a topsy-turvy woes, fired Mikovits for insubordination Reno Justice Court in support of an arrest research debate that saw her work praised and insolence. Whittemore and her husband, warrant. According to the affidavits filed on and then derided by prominent colleagues. Harvey, a well-known real estate developer 16 and 17 November, Mikovits instructed a She first made headlines in October 2009 and attorney, started WPI in 2007 with their research assistant of hers at WPI, Max Pfost, SCIENCE VOL 334 2 DECEMBER 2011 1189 Published by AAAS
  2. 2. NEWS&ANALYSIS to “illegally enter her former office” and awarded. Since 2009, Mikovits has received asked her to remove “cell lines and plasma” retrieve research notebooks, a laptop, flash more than $300,000 a year in grants from samples and send them to collaborators at drives, and correspondence that belonged to the U.S. National Institute of Allergy and NCI, but she states that she didn’t do it.) the institute. “The missing property includes Infectious Diseases (NIAID) to develop new Pfost wrote in his affidavit that he went to trade secrets and inventions that are pat- strategies to decipher the pathophysiology WPI a few hours before sunrise, but his ented, or for which a patent application is of CFS. Hugh Auchincloss, NIAID’s deputy security key card didn’t give him access. pending,” the officer stated, estimating that director, says the institute awards grants to Pfost said he returned around 8 a.m. and “the value of the property stolen is likely to institutions, not individuals, but if the insti- entered the building, but the lab was “on be in the hundreds of thousands of dollars, tute cannot find a suitable replacement for lock down” and he could not obtain the or more.” The Reno Justice Court issued the Mikovits, WPI will have to forfeit the money. samples. He was able to enter Mikovits’s arrest warrant. The Department of Defense (DOD) had also office, he said in an affidavit, and removed After Ventura County police arrested awarded her a grant for research into pros- 12 to 20 notebooks. Pfost hid them in a Mikovits on 18 November, they locked her tate cancer, which has XMRV links, too. multicolored “Happy Birthday” bag he had up at the Todd Road Jail. She was held on a On the same day that Mikovits went to at his condo. Worried about WPI’s interest felony charge of being a fugitive from justice, court for her extradition hearing, the Second in the missing notebooks, and at the behest pending her extradition to Washoe County, Judicial District Court in Washoe County of Mikovits, Pfost said that 4 days later, he Nevada, to face the criminal charges. held a hearing on WPI’s request for a prelim- moved the bag to his mother’s garage in Downloaded from on December 2, 2011 On 22 November, Mikovits appeared in Sparks, Nevada. Ventura County Superior Court for the extra- Pfost’s affidavit says Mikovits asked him dition hearing. Outfitted in a blue jail-issued to ship the notebooks to “a safe location jump suit with an orange T-shirt underneath, in California or Virginia,” but he couldn’t Mikovits sat in a barred room-within-the- afford the cost and asked her to retrieve them room that had a few dozen similarly dressed in Reno. Pfost went on to explain that shortly inmates. When her case came up, she spoke after midnight on 17 October, he picked up to Paul Tyler, the attorney handling her crim- Mikovits at the Reno airport, drove her to his inal defense, through the cagelike bars. Tyler condo, and gave her the Happy Birthday bag requested that her extradition be delayed, with the notebooks. and the judge agreed that she could return Police Chief Garcia told Science on to his court on 19 December to decide the 22 November that the felony investiga- issue. Tyler asked the judge to reduce her tion was ongoing. “Whether or not others $100,000 bail but was denied. Tyler did not will be arrested is yet to be determined,” discuss her guilt or innocence with the judge Garcia said. He would not answer questions and declined to comment to Science. about whether Pfost was offered immu- John Coffin, a retrovirologist at Tufts nity from prosecution in return for his affi- University School of Medicine in Boston davits. According to a WPI spokesperson who switched from being an early scientific who works at SNR Denton, the law firm supporter of Mikovits to a vocal critic, says representing the institute, Pfost remains regardless of the property dispute, it “goes employed there. way too far” to jail her. “She doesn’t deserve Mikovits posted bail soon after her extra- this,” Coffin says. “It really comes down to Exhibit A. Max Pfost in June with a lab notebook at dition hearing and was released that eve- personalities. It’s almost like a domestic dis- the center of the case against Mikovits. ning. That same day, the civil court in Reno pute from love to throwing frying pans in no granted WPI the preliminary injunction it time. It just looks like an escalating situation inary injunction that would require Mikovits sought, which orders her to return the “mis- that got out of control.” to return the material undamaged. In sup- appropriated property” or be held in con- Robert Charrow, an attorney with Green- port of that civil case, WPI’s attorneys filed tempt of court. On 23 November, the day berg Traurig in Washington, D.C., who spe- affidavits with the court—made public that before Thanksgiving, WPI posted a cryp- cializes in scientific research disputes and morning—that included more details about tic note on its Facebook page suggesting represents universities, says academic insti- the theft it said Mikovits “masterminded.” that the case against Mikovits may soon tutions typically allow researchers to take a In two affidavits, Pfost describes his have closure. “We are thankful that most of copy of their data, whereas industry forbids role, which began with a phone call from our property has been returned,” the note it. With WPI, a nonprofit organization, “it’s Mikovits shortly after her firing. “She stated states. WPI’s spokesperson told Science that a gray area,” Charrow says. that WPI would go down, and that I should Mikovits’s husband “returned some material It’s unclear whether Mikovits ever get out, too,” Pfost claimed in a notarized to police in Ventura” but that it had not all requested copies of her notebooks and affidavit. Pfost said Mikovits told him she been accounted for as of 28 November. other data from WPI. But her attorney’s hoped to move the NIAID and DOD grants Coffin of Tufts says he expects the saga CREDIT: J. COHEN/SCIENCE 4 November letter to WPI’s counsel con- to wherever she ended up working. to continue. “The science is gone now, and tended that the notebooks contained “impor- Pfost states in an affidavit that Mikovits it’s all about lawyers—and there probably is tant non-proprietary information” that could gave him the keys to her office and desk and an awful lot of legal stuff under the surface,” “advance the field of neuroimmune dis- asked him to remove notebooks and “sam- Coffin says. “We’re certainly not at the end ease,” and Mikovits needed them to com- ples” from the lab. (Another affidavit from of this.” plete work on several grants she had been a different research assistant says Mikovits –JON COHEN1190 2 DECEMBER 2011 VOL 334 SCIENCE Published by AAAS