Expert Witnesses Fighting Alleged Academic Retaliation

Facing retaliation for their expert opinions from the academic institutions that employ them, expert witnesses have few palatable recourses given the difficulty in proving such claims and the available remedies. In two ongoing cases, professors have filed claims of violations of academic freedom, and First and Fourteenth Amendment rights to free speech and equal protection. Winning such claims are at best bitter-sweet victories.

In one case, the allegation is that Brown University retaliated against David Egilman, MD, a clinical professor of family medicine, for co-authoring a peer-reviewed paper titled “Grave fraudulence in medical device research: a narrative review of the PIN seeding study for the Pinnacle hip system” which concluded that a study conducted by DePuy Synthes was actually aimed at generating data for marketing their Pinnacle hip product rather than studying the empirical results of the product. DePuy Synthes is a subsidiary of Johnson & Johnson, a major contributor to Brown University. Dr. Egilman had previously been an expert witness for plaintiffs suing Johnson & Johnson for allegedly defective DePuy hip implants.

In a second case, the allegation is that the University of Louisville retaliated against Dr. Allan Josephson, a (now former) Professor of Psychiatry and the Chief of the Division of Child and Adolescent Psychiatry and Psychology, for his opinions as an expert witness on gender dysphoria, including conclusions that the “notion that gender identify should trump chromosomes … is counter to medical science.” Attorneys for the Alliance Defending Freedom (considered an anti-LGBT hate group by the Southern Poverty Law Center) filed suit against the University on Dr. Josephson's behalf, claiming that he was retaliated against because other university faculty and staff demanded disciplinary action for his opinions.

The retaliation against Dr. Egilman was the more obvious, although Brown University admitted to no wrong doing. An Executive Dean sent Dr. Egilman a cease-and-desist letter requesting removal of his Brown affiliation from the publication of the paper accusing Johnson & Johnson of fraudulence. As well, the class he had taught for more than 30 years, “Science and Power: The Corruption of Public Health,” was cancelled by deans at the School of Public Health because they understood he was to be terminated in relation to the journal publication.

After cancellation of the class and the Dean's letter, Dr. Egilman filed a complaint with the American Association of University Professors and with the University Grievance Committee, alleging “violations of Academic Freedom arising from undue corporate influence on his research and teaching activities.” The Grievance Committee seems to have essentially agreed with Dr. Egilman's assertions, and its not the first time Brown University has been accused of being unduly influenced by corporate benefactors.¹

Proving Dr. Josephson's claims will be more challenging. While the University of Louisville did demote him and ultimately decided not to renew his contract, Dr. Josephson took his case to court rather than a grievance committee, alleging violations of freedom of speech and civil rights.

Dr. Josephson did have a stellar record during his time as Chief of his division, adding new faculty, enhancing the division's national profile, balancing its budget, expanding its programming, and increasing the number of patients it treated. For the three years before giving his controversial expert witness opinions, Dr. Josephson received perfect scores on his annual reviews.

The University of Louisville initially moved to dismiss Dr. Josephson's complaint, arguing that many of the allegedly discriminatory acts that supported Dr. Josephson's hostile work environment claims occurred outside the one-year statute of limitations, and were thus time-barred.

Dr. Josephson then amended his complaint to claim that the University continued to retaliate against him after his demotion, subjecting him to a “humiliating work environment” by “giv[ing] him demeaning assignments … and … diminish[ing] his responsibilities” in ways unrelated to his demotion.

The U.S. district court found that the “continuing violation” doctrine as an exception to the one-year statute of limitations had been recognized by the Sixth Circuit, and denied the University's motion to dismiss.

While the University did note in its letter demoting Dr. Josephson that he had “a duty to any gender dysphoria patients that you may see (and their families) to apprise them of available processes” and “a duty to acknowledge to trainees when you are knowingly espousing approaches and views that differ from the official curricula,” the University did not give a reason for his demotion.

Even if the University allows that it demoted Dr. Josephson for espousing approaches and views different than those of the University, a host of legal arguments could protect the University, even given the resources of the Alliance Defending Freedom in supporting Dr. Josephson. Even if Dr. Josephson wins his case, the odds that he would be reinstated to his former position at the University are nearly nil.

As for Dr. Egilman, while he may perhaps prevail, questions were raised about his co-authoring an article attacking Johnson & Johnson at the same time as he was a paid expert witness for plaintiffs against the firm and before the case settled for approximately $1 billion.

Innocent or guilty of ethical violations, or worse, expert witnesses can find their opinions seriously damaging their careers and reputations.