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Nederlog
  Mar 1, 2012                  
     

me+ME: Mikovits vs Whittemores vs Deckoff-Jones

 

It was my intention to continue with more about and around DSM-5, in fact with dr. Thomas Szasz (professor emeritus psychiatry), as rendered on Wikipedia, but then that promises to become rather a lot of text, and there also is other news, as summarized in the title, that may interest folks with ME/CFS, such as myself. Those interested are likely to know most of the story, that I will indeed also mostly presume known in what follows. Here are links to the last three Nederlogs on the subjects:

       - ME: Heidi Bauer vs the Whittemores + Dr. Lombardi PI at WPI
     - me+ME: XMRV updates + Whittemore updates

Sections

1. WPI seek millions
2. "Truth Is An Absolute Defense To Libel"

1. WPI seek millions

The latest in what may be called the litigation-saga is that the Whittemores, or formally the WPI, want millions from Judy Mikovits Ph.D., while also complaining to Jamie Deckoff-Jones M.D. about her blog and site, who knows in preparation for a lawsuit against her, and about Ms Bauer's negative writings about the Whittemores.

Let me start with the money.

There is an article by Martha Bellisle, entitled as follows, with a link to the original in the title:

     Whittemore Peterson Institute seek millions
     in damages from fired researcher

This seems reasonably well informed, in respect of the law, at least, and starts as follows, and I quote by indenting

Now that a judge has ruled in favor of the Whittemore Peterson Institute in a civil case against a researcher who took a laptop, notebooks and files after she was fired, the two sides are fighting over damages.

The Whittemore Peterson Institute for Neuro-Immune Disease made world headlines in 2009 after Dr. Judy Mikovits lead a team that discovered a new retrovirus that could help treat chronic fatigue syndrome. But the research was discredited last year and Mikovits lost her job. The institute claimed she stole important research materials when she left, a claim she denied.

But Washoe District Judge Brent Adams signed a default judgment last month in favor of the institute, saying Mikovits failed to comply with his rulings on releasing materials in the case.

In case you are interested, see

    -  me+ME: WPI vs Mikovits = 1 : 0 + ME-varia
    -  me+ME: Whittemores in court + mB12 protocol
    -  me+ME: X-Rx + Whittemores

The original continues:

A hearing on damages is expected this week. The institute is seeking millions in salary and research costs as well as lost donations, while Mikovits’ lawyer, Dennis Jones, said her actions did not cause any harm.

This seems to me a disingenuous position: She had the lab notebooks stolen - a US judge will conclude, it seems to me - and that cannot be covered by "did not cause any harm".

Criminal charges against Mikovits are pending, said her criminal lawyer, Scott Freeman.

“At this point, Ms. Mikovits has returned all of the materials that she had in her possession and they all are in evidence in the criminal case,” Freeman said. “The only reason the civil case was filed was because she didn’t give them up fast enough. But she has turned everything over.”

For more on the lab books and computer - "all of the materials" - see

     -  ME: WPI vs Mikovits - documents in the case
     -  me+ME: More on WPI vs Mikovits

As to whether it really are "all of the materials": That seems doubtful to me, but is probably hard to prove either way. And Ms. Mikovits's lawyers contradict each other, it seems to me, at least by implication.

Onward to the WPI:

Meanwhile, the institute is defending itself against two lawsuits filed by the Wingfield Nevada Group, owned by Harvey Whittemore’s former partners. The suits claim the institute owes Wingfield $1.7 million for using its staff and a company jet.

This seems as if the Seenos also attacked the WPI specifically. In a separate court case? If so, that is mildly interesting - but then the Seenos want $ 40 million from the Whittemores, who want $ 60 million from the Seenos.

And then there are quite a few lawsuits:

The lawsuits are just three on a list that Whittemore has been fighting in recent weeks. His former partners, Tom and Albert Seeno Jr. of Concord, Calif., claim he embezzled funds from Wingfield, while Whittemore claims in another suit that the Seenos are guilty of racketeering. Two banks also sued Whittemore for millions in unpaid loans. And a federal grand jury is reportedly meeting Wednesday to hear testimony on Whittemore’s campaign contribution activities.

So the banks are also trying to get Harvey. Here is one way, to make money, though it seems not likely to succeed doing so:

Following the judge’s ruling on the claim against Mikovits, the institute’s lawyer, Tom Bowen, filed a list of documents in preparation for a hearing on damages, which indicates they want to be refunded all costs associated with Mikovits’ work.

One document shows Mikovits was paid $693,485 since starting with the institute in 2007. Another lists research costs totaling $2.3 million and grant reimbursements that came to $655,838. The documents also claim the institute saw a drop in donations of $133,100 after Mikovits left.

That's quite unreasonable by my standards, and sounds malicious and unfair. And while I can understand why Harvey wants money, this seems an unlikely way to get it.

Bowen also submitted copies of emails between Mikovits and various colleagues as well as a statement by Max Pfost, who worked with Mikovits at the institute. After she was fired, she directed Pfost to go into her office and collect her materials, he said.

“I expressed some skepticism to Mikovits about whether she could take the research and samples and stated that Dr. (Vince) Lombardi would take over the projects and continue on behalf of WPI,” Pfost said in the affidavit. “Mikovits stated that she was in charge of the research at WPI so technically it was her research and she could move it somewhere else at any time."

This last quoted claim, I think a judge can fairly claim dr. Mikovits could and should have known to be a false claim, at least as stated by Pfost. (If she had said "morally" instead of "technically" it may be different. Then it would be just a personal judgment of value, and not a claim counter to existing legislation, viz. that the institution generally owes the research, not its PI. Also, she had contracts with the WPI, which undoubtedly gave the WPI rights and claims to the work she did while employed there.)

The following has all been detailed last year e.g. here ME: WPI vs Mikovits - documents in the case :

Pfost said he went to WPI on Sept. 30 and took between 12 and 20 notebooks for Mikovits. He gave them to Mikovits on Oct. 16, he said, and then she drove to Southern California.

“Mikovits informed me that she was hiding out on a boat to avoid being served with papers from WPI,” Pfost said in the affidavit. She was arrested Nov. 18 in Ventura, Calif., after the Washoe County District Attorney’s office filed a criminal complaint alleging she stole computer data.

Mikovits’ lawyer filed a trial statement last week in the WPI case asking the judge to ignore the list of costs associated with salary and research when considering damages in the case.

This seems fair to me - salary anyway (if dr. Mikovits didn't function as she should, according to the Whittemores, they should have dismissed her before) and research at least now, since the monetary value of the ME/CFS research dr. Mikovits did for the WPI is quite uncertain, and as far as XMRV is concerned, is probably not much worth, financially, at the present date.

"WPI does not allege that Dr. Mikovits did anything to harm WIP while she was employed," the statement said. "All of the alleged tortious conduct occurred after WPI terminated Dr. Mikovits."

This also seems fair to me - though "technically" one can object that she seems to have entered a conspiracy with Pfost on the last day she was legally and gainfully employed by the WPI, though after being dismissed.

It also said that people who decided to stop making donations to the institute did so only after Mikovits was fired. To support that claim, Jones attached 20 emails from former supporters who said they opposed the firing and would no longer make donations to the institute.

True, and even if not: That people decide not make donations is their right, including deciding so for false or stupid reasons.

"I would like to explain why I ceased donating to the Whittemore Peterson Institute," said Paul Kayes in one email. He said he donated every month "but when Dr. Mikovits was sacked"
he said he lost faith with WPI and decided he would no longer support the institute.

Another former donor, Annabel Luery, said the Whittemores were to blame for WPI problems.

"If the WPI is suffering from a lack of revenue then it is because of the actions of the Whittemores and certainly not because of anything Dr. Mikovits either said or did," Luery said in an email to Mikovits’ lawyer.

Actually, that may be false, in several ways also: Dr. Mikovits did write mails after her dismissal, and so did her husband; she spent a lot of time on emailing with patients that I think she should have spend on research; and she may have falsified data. Then again, any fall in donations by patients  since the WPI dismissed dr. Mikovits is due to that dismissal.

Anyway... it's all very ugly business. Also, it seems not very likely that the truth ("all the truth, nothing but the truth") will be revealed through court cases of this nature.

2. "Truth Is An Absolute Defense To Libel"

And then there is a new X Rx Blog by Jamie Deckoff-Jones MD on her new site, with the title as provided (also a link), dated February 28. This starts thus:

I keep thinking that I am done writing about the WPI and will get back to writing about my real life, but the noise from Reno continues to be deafening. Like everyone else, I was waiting to see what happens with the FBI investigation, when I got an email from Annette Whittemore. Publishing personal email is distasteful, but after serious consideration, I’ve decided that said email was written by a CEO of a non-profit, still begging my readers for donations. Their final communication, included below, is from Carli West Kinne, Annette Whittemore’s niece, who works for the WPI as an attorney. This blog is my answer.

I shall not quote all - you have the above link - but I will quote the mails, if only for the purpose of having the documents in the case, or some of them. All between the following two horizontal lines has been copied and pasted:


The first email from Annette Whittemore, dated February 20.

Subject: Civil discourse

Jamie and Heidi,

I have seen what you have written about me. It is very painful and ugly.   Obviously you think it is ok to libel me and try to hurt my reputation and that of this institute.  You should know that there are innocent people who come to work every day to try to help this institute and help patients like you.  They are hurt by your words.  Our researchers work six and seven days a week for you.  They are hurting because of you.  You should know what your actions are doing to innocent people, like my family members, all because you have decided you know something about me or think that I have done something wrong.  I would like to know what you think I’ve done or said so that we can clear the air once and for all.

I don’t believe in writing mean and ugly things about other people.  I would like to settle this in a civil manner.  We can start wherever you’d like.  If I can’t answer your concern, I can find someone in our organization who can.  If you’d prefer we can email individually.  Please let me know.

Thanks,
Annette

Here is my response of February  22.

Annette,

If you want to work things out with me, there are a few things that need to happen first. Otherwise I will continue to believe that the WPI is a black hole that you use for your own purposes, to benefit your family and friends, without regard for the patients to whom the institute professes to be dedicated.

1. Drop both the criminal and civil suits against Judy. Give her a reasonable severance package so she can get back on her feet. Apologize for your hideous public display of legal bullying.

2. Step down as CEO in favor of someone competent, someone with a prayer of retaining real talent.

3. Appoint a real Board of Directors, who are not your friends, but rather people with something to contribute other than pleasing you.

4. Account for the money and return what wasn’t used for research. I assume that the actual sum is likely larger than what I know about, which is at least $8 million: grant money already received, fundraisers, donations, contest money, UNR money? ear-marked for SPECT scanner and other medical equipment (I heard the figure $5 million on more than one occasion, a million for the scanner), $150K/month for almost a year from a private investor (yes, I do remember that you told me who it was, as well as the terms and, no, I didn’t name them publicly, though I don’t know why I am being kind to you). For all that money, I see one paper about cytokines that still stands, and Judy wrote it.

5. Return the small donations, from people who could ill afford them, that were earmarked for research or specific things for which they were not used.

Your newsletter was disgusting. It is time for you to justify your existence with more than propaganda. Why should anyone trust you? It is not possible to accomplish anything in the field without a reputation for integrity. If you cannot reclaim yours, it is better for the patient community if the WPI closes its doors. Why throw good money after bad?

Sincerely,
Jamie

P.S. Thank you for firing me.

I received this the day before yesterday, with an attachment, the letter from Carli Kinne.

Subject: harmful and damaging misinformation

Dear Jamie,

You are completely misinformed and your continued online communications full of false and misleading information are damaging to my reputation and to that of this non-profit institute.  Please stop now and apologize for the personal harm that you have caused me and this institute.

Annette

February, 24, 2011

Dear Deck-off Jones,

It has come to my attention that you are sharing incorrect information on your blog and encouraging others to write the National Institutes of Health (NIH) regarding Whittemore Peterson Institute’s NIH grant.  While your most recent blog is full of erroneous and harmful information, I am only interested in correcting the record related to WPI’s grants.  WPI is in full compliance with the NIH Grants Policy Statement, including but not limited to, all cost principles and reporting requirements.  As I am sure you are aware, claims against Annette Whittemore and/or WPI in a civil complaint are mere allegations that must be proven in court.  There is no “evidence in the public domain that the CEO of the WPI is a liar and fraud,” as stated in your blog.  There is also no evidence that WPI has misused grant funds, which you continue to allege in your blogs.  Furthermore, the NIH grant will continue under the guidance of a qualified principal investigator (PI).  There was no “pull involved” in order to change the PI, and to guess at such action taking place in your blog is damaging to all parties involved.  In addition, Dr. Lombardi does not have a financial conflict of interest as you continue to allege in connection with his relationship with VIP Dx, a company that is no longer in business.  As for the Department of Defense (DOD) grant, the DOD was pleased to approve Dr. Lombardi as the PI.  Please stop sharing false information and discontinue encouraging others to use this false information in correspondence to the NIH or any other granting agency such as the DOD.  These actions interfere with WPI’s business and harm WPI’s reputation.

Carli West-Kinne
Vice President and Legal Counsel
Whittemore Peterson Institute


Civil dis-course? Someone in the Comments section of Ms. Deckoff-Jones blog warns her that it well may be the beginning of litigation, which is indeed what I thought.

What do I think of it? Neither mail should have been written, or at least: should not have been sent, but then it's now accomplished fact. I merely  documented. (My advice? Let it be - take up knitting or study philosophy.)

Just one thing: If you do a search - incidentally: Google has changed its privacy policy as of today, and one may also use e.g. Yahoo - with "Truth Is An Absolute Defense To Libel", which is a nice and quite old phrase, you'll find that it may be not, in US law as practised, while in Dutch law it seems explicit it may not be, but indeed I am not a lawyer.



P.S.
Corrections, if any are necessary, have to be made later.
-- Mar 2, 2012: Put in a link I had forgotten and repaired some typos and added some clarifying phrases.

 

As to ME/CFS (that I prefer to call ME):
1.  Anthony Komaroff Ten discoveries about the biology of CFS (pdf)
2.  Malcolm Hooper THE MENTAL HEALTH MOVEMENT: 
PERSECUTION OF PATIENTS?
3.  Hillary Johnson The Why
4.  Consensus of M.D.s Canadian Consensus Government Report on ME (pdf)
5.  Eleanor Stein Clinical Guidelines for Psychiatrists (pdf)
6.  William Clifford The Ethics of Belief
7.  Paul Lutus

Is Psychology a Science?

8.  Malcolm Hooper Magical Medicine (pdf)
9.
 Maarten Maartensz
ME in Amsterdam - surviving in Amsterdam with ME (Dutch)
10.
 Maarten Maartensz Myalgic Encephalomyelitis

Short descriptions of the above:                

1. Ten reasons why ME/CFS is a real disease by a professor of medicine of Harvard.
2. Long essay by a professor emeritus of medical chemistry about maltreatment of ME.
3. Explanation of what's happening around ME by an investigative journalist.
4. Report to Canadian Government on ME, by many medical experts.
5. Advice to psychiatrist by a psychiatrist who understa, but nds ME is an organic disease
6. English mathematical genius on one's responsibilities in the matter of one's beliefs:

7. A space- and computer-scientist takes a look at psychology.
8. Malcolm Hooper puts things together status 2010.
9. I tell my story of surviving (so far) in Amsterdam/ with ME.
10. The directory on my site about ME.



See also: ME -Documentation and ME - Resources
The last has many files, all on my site to keep them accessible.
 


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