Judge orders Duke to release more documents in Potti case

The first trial in the Dr. Anil Potti research misconduct scandal is now likely several months away—but Duke may have to turn over additional documents first.

In a pretrial hearing Thursday, plaintiff attorneys argued that the University has been withholding relevant—and potentially damaging—documents. Defense attorneys claimed that all documents that were not submitted to the court are not pertinent to the case, and some contain private information that should not be shared and would violate attorney-client privilege. Superior Court Judge Robert Ervin ordered Duke to turn over the documents for review by an independent third party to determine their relevance to the case.

"What other documents are out there about these fraudulently manipulated datasets?" plaintiff attorney Thomas Henson asked the court Thursday.

Potti's research at the University centered on a finding that he claimed allowed him to link a patient's cancer to the most effective chemotherapy drug. He resigned from the University in 2010, after it was determined that he had manipulated data in his research and falsified information on his resume. All clinical trials involving his research were suspended and then canceled as information regarding his misconduct came to light.

Potti's resignation came after years of questions into the validity of his research, and Duke administrators have since acknowledged issues with the way in which the case was handled.

The lawsuit discussed Thursday was filed in 2011 by Walter Jacobs, whose wife Juliet died in 2010 after participating in one of Potti's clinical trials. He is joined by several other patients and their families or estates. The defendants are the University, Duke University Health System, Duke Private Diagnostic Clinic, Cancerguide Diagnostics, Potti and several administrators.

In the original complaint filed with the court, plaintiffs argued that patients’ participation in Duke’s clinical trials was under false pretenses, their cancer was treated improperly and they had unnecessary chemotherapy.

Duke's defense lawyers argue that no patients were harmed—saying that although the science behind the trials was inaccurate, the health care was sound, as the research dealt with diagnostics and not treatment.

The trial was originally scheduled to begin Monday but was delayed due to a case of the flu among the attorneys. After Thursday's hearing, the trial will likely be postponed until late summer, attorneys said, but an official date has yet to be set.

Much of Thursday's pretrial hearing centered on whether or not the University's defense attorneys had turned over all documents relevant to the case.

Duke has already turned over thousands of pages of information, much of which was found by flagging certain keywords in University emails. There are approximately 2,500 emails found to contain more than one keyword that the defense attorneys examined and initially determined were not relevant to the case.

A review of the 2,500 by the defense found that approximately 900 were duplicates that had already been surrendered to the plaintiff attorneys. Of the remaining 1,400, however, there were between 75 and 100 that the defense acknowledged should have been submitted earlier.

Plaintiff attorneys argued that they had the right to see all of the emails that had initially been flagged—saying that if the defense had failed to turn over the set of 75, there might be other relevant documents in the remaining 1,400.

Defense attorneys countered that the remaining emails were not relevant, and sharing them could compromise information unrelated to the case that should remain private due to attorney-client privilege.

Ervin ruled that Duke must turn over the emails—saying that the University should submit all that it feels comfortable with directly to the plaintiff attorneys, with the emails thought to contain private information sent to a private third party for review to determine their relevance to the case.

The case is one of several civil suits pitting former patients of Potti's clinical trials against the University. Others will go to court in the Fall, following this one.

Duke is represented by Mark Anderson, Trinity '85, of McGuire Woods LLP.