Helm v. Eells et al

Filing 25

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 6/22/2015; re 22 MOTION to Dismiss Plaintiff's Complaint Based on Statute of Limitations filed by Edward Halperin, Tracy Eells ; separate order shall issuecc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:14-CV-00654-TBR

C. WILLIAM HELM

Plaintiff

v.
TRACY EELLS
EDWARD HALPERIN

Defendants

MEMORANDUM OPINION
This matter is before the Court on Defendants’ motion to dismiss. (Docket #22).
Plaintiff has responded (Docket #23). Defendants have replied. (Docket #24). This
matter is now ripe for adjudication. For the following reasons, Defendants’ motion to
dismiss (Docket #22) will be GRANTED.
BACKGROUND
This action arises out of Plaintiff Dr. C. William Helm’s termination from the
University of Louisville School of Medicine. Helm was a clinician, teacher, and
researcher in the Division of Gynecologic Oncology from 2000 to 2010. At all relevant
times, Defendant Dr. Edward Halperin was the Dean and Defendant Dr. Tracy Eells was
the Associate Dean for Faculty Affairs.
Helm’s termination followed allegations that Helm took ideas for his research on
ovarian cancer from research performed by two other doctors, Dr. Douglas Taylor and Dr.
Cicek Gercel-Taylor. These allegations were made by Dr. Lynn Parker, the Director of
the Division of Gynecologic Oncology, in a memorandum to Eells. The allegations came
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as Helm was in the process of being reviewed for promotion from Associate Professor, an
untenured position, to Professor, a tenured position.
The University of Louisville School of Medicine has enacted a Research
Misconduct Policy. It requires research misconduct, which includes “taking another
person’s ideas without giving appropriate credit,” to be reported to the Research Integrity
Ombudsperson. (Docket #10). Helm argues Eells and Halperin did not report the alleged
plagiarism to the Ombudsperson or keep the allegations confidential, as required by the
Research Misconduct Policy. (Docket #1-15). Instead, Eells and Halperin discussed the
plagiarism allegations with administration officials, other doctors, and legal counsel for
the University of Louisville.
Helm claims he has been deprived of his liberty and property interest without due
process in violation of 42 U.S.C. § 1983. Defendants moved to dismiss these claims.
(Docket #5). This Court ruled that Helm had not been deprived of a liberty interest but
that Helm does have a property interest in having the Research Misconduct Policy
followed. (Docket #21). Defendants now move to dismiss Helm’s property interest
claim on the grounds that Helm filed it outside the one-year statute of limitations.
STANDARD
Although Defendants filed a motion to dismiss, both parties have presented
substantial evidence and matters outside the pleadings. Accordingly, the Court will treat
Defendants’ motion as a motion for summary judgment. Fed. R. Civ. P. 12(d); Song v.
Elyria, 985 F.2d 840, 842 (6th Cir. 1993).

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Summary judgment is proper if the moving party can establish that the
“pleadings, depositions, answer to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In
determining whether summary judgment is appropriate, a court must resolve all
ambiguities and draw all reasonable inferences against the moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of
material fact.” Street v. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is
“whether the party bearing the burden of proof has presented a jury question as to each
element in the case.” Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff
must present more than a mere scintilla of evidence. To support this position, he must
present evidence on which the trier of fact could find for the plaintiff. See id. (citing
Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986)). Mere speculation will not
suffice to defeat a motion for summary judgment: “[t]he mere existence of a colorable
factual dispute will not defeat a properly supported motion for summary judgment. A
genuine dispute between the parties on an issue of material fact must exist to render
summary judgment inappropriate.” Monette v. Electronic Data Systems Corp., 90 F.3d
1173, 1177 (6th Cir. 1996).
DISCUSSION
The Court will first discuss (I) whether Helm knew or should have known of his
claim more than one year before he filed this lawsuit. The Court will then discuss (II)
Helm’s argument for equitable tolling.

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I.

Statute of Limitation.

Although a § 1983 claim is a federal claim, the statute of limitations for a § 1983
claim is governed by state law. Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 180
(6th Cir. 1990) (“Since Congress has never legislated a statute of limitations period for
section 1983 actions, the courts, pursuant to the mandate of 42 U.S.C. § 1988, have had
to look to analogous state statutes”). Accordingly, “Kentucky's one-year statute of
limitations governs section 1983 actions.” Id. at 183; see also Baar v. Jefferson County
Bd. of Educ., 311 Fed. Appx. 817, 825 (6th Cir. 2009) (unpublished) (holding a teacher’s
due process claims were barred by Kentucky’s one-year statute of limitations).
While state law controls the length of the statute of limitations, “federal law
governs the question of when that limitations period begins to run.” McCune v. Grand
Rapids, 842 F.2d 903, 905 (6th Cir. 1988). “The statute of limitations commences to run
when the plaintiff knows or has reason to know of the injury which is the basis of his
action.” Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). “A plaintiff has reason to
know of his injury when he should have discovered it through the exercise of reasonable
diligence.” Id.
In this case, Helm’s injury is being deprived of a property interest when the
plagiarism claims against him were not reported in accordance with the Research
Misconduct Policy. The Research Misconduct Policy requires allegations of research
misconduct to be reported “immediately” to the Research Integrity Ombudsperson, who
is then responsible for “immediately assess[ing] the allegation to determine whether it is
sufficiently credible.” (Docket #1-15). Eells and Halperin allegedly violated the

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Research Misconduct Policy in conducting their own investigation, thereby depriving
Helm of a prompt clearing of his name.
Helm filed this lawsuit on September 30, 2014. Defendants argue there were
three incidents prior to September, 2013, which either did or should have put Helm on
notice of his claim. These incidents are: (1) an October, 2009 meeting between Helm and
Eells; (2) a May, 2010 grievance hearing; and (3) the May, 2013 deposition of Eells by
Helm’s attorney in a related case.
1. The October, 2009 meeting between Helm and Eells.
Helm met with Eells on October 7, 2009, to discuss Helm’s “persistent disruptive
behavior.” (Docket #24). At that meeting, Helm was removed as the principle
investigator on a research project and placed on administrative leave. Defendants argue
that Helm should have known that Eells had not reported the alleged research misconduct
to the Research Integrity Ombudsperson at this time. (Docket #24). In response, Helm
argues that in October, 2009, he was unaware that any plagiarism claims had been made
against him and believed he was being disciplined for his alleged “persistent disruptive
behavior.” Helm claims he did not learn of the plagiarism claims against him until
December 10, 2010. (Docket #23). Therefore, it would be impossible for him to know
that the Research Misconduct Policy was not followed. (Docket #23).
From the record, it appears Helm was unaware of the plagiarism claims against
him during the October, 2009 meeting. Therefore, even with reasonable diligence, Helm
could not have known whether these plagiarism claims were properly reported to the
Research Integrity Ombudsperson.

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2. The May, 2010 grievance hearing.
Following the October, 2009 meeting between Helm and Eells, Helm filed a
grievance with the University of Louisville regarding his suspension. Defendants argue
that Helm was provided with several internal e-mails and memoranda that should have
put Helm on notice of the plagiarism charges made against him. Significantly, in a
memorandum from Dr. Lynn Parker to Eells, Parker explains her concerns that Helm may
have committed plagiarism. These allegations are laid out over one-and-a-half pages
under the title “Research Integrity.” (Docket #1-16). While this document would have
alerted Helm to the plagiarism claims against him, it is arguable whether it would have
also put Helm on notice that Eells and Halperin failed to properly report these claims to
the Research Integrity Ombudsperson, thereby injuring Helm. The Court cannot say that
at this time Helm should have reasonably known about his injury, but this is one fact
which should have begun arousing Helm’s suspicion. 1
However, Helm knew of the plagiarism claims against him and should have
known that these claims were not properly reported in December, 2010. Helm admits
that he received a letter from the Research Integrity Ombudsperson on December 6,
2010. The letter from the Research Integrity Ombudsperson stated that Helm was
accused of plagiarism over a grant titled “Plasma microRNA biomarkers of ovarian
cancer.” (Docket #1-39). Helm knew that Parker had made the same allegation against
Helm, as Parker alleged Helm misappropriated research for a grant that “involves

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The Court finds it important that the Grievance Panel Recommendations (Docket #1225) discuss only Helm’s suspension for “disruptive behavior” with no discussion of the
alleged plagiarism claims against Helm. Therefore, while Parker’s memorandum might
have raised Helm’s suspicion, given that the focus was on Helm’s “disruptive behavior,”
the Court finds it unlikely he would have reasonably known of his claim in May, 2010.
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microRNA and ovarian cancer.” (Docket #1-16). The fact that fifteen months elapsed
between Parker’s September, 2009 memorandum and the Research Integrity
Ombudsperson’s December, 2010 letter would have put a reasonable person on notice
that the Eells and Halperin did not promptly report the plagiarism charges against Helm
as required by the Research Misconduct Policy. Accordingly, Helm knew or should have
reasonably known in December, 2010 of this claim.
3. The May, 2013 deposition of Eells.
Regardless of whether Helm knew of his claim in December, 2010, Helm did
know or should have known of his claim in May, 2013. Helm’s counsel deposed Eells on
May 28, 2013 in Helm’s lawsuit against Parker and Dr. Christine Cook. In that lawsuit,
Helm claimed that Parker and Cook had defamed him by making false claims that Helm
plagiarized research. (Docket #13-10). At least three times during the deposition Helm’s
counsel questioned Eells 2 about whether she referred the plagiarism claims to the
Research Integrity Ombudsperson. Each time, Eells stated she did not refer the
complaints to the Research Integrity Ombudsperson and instead told Cook and Parker to
report their concerns to a vice dean or the associate dean for research. (Docket #24-1).
Helm’s attempt to characterize Eells’ responses as equivocal is not persuasive. When
asked if Eells instructed Cook and Parker to report their concerns to the Research
Integrity Ombudsperson, Eells replied:
“I don’t recall I gave them that specific advice.”

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It appears that Eells was reporting to and acting on behalf of Halperin. (Docket #24-1).
The same information that would put Helm on notice that Eells had not properly reported
the plagiarism allegations would cause Helm to reasonably suspect that Halperin had also
not reported the plagiarism allegations.
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Question: “Do you re -- is it possible that you gave them that advice?”
Eells: “I think what I probably did was ask that they -- or suggest that they speak
to the vice dean or the associate dean for research.” (Docket #24-1, p. 2).
Eells subsequent responses on this question were similar: “As best I recall, I advised -they talked to the research deans.” (Docket #24-1, p. 3). In May, 2013, Helm should
have reasonably known from Eells’s testimony that the plagiarism claims made against
Helm were not reported to the Research Integrity Ombudsperson as required by the
Research Misconduct Policy.
II.

Equitable Tolling.

Helm argues that the statute of limitations should be tolled because the
Defendants concealed information regarding Helm’s claim. Specifically, Helm argues the
following was concealed from him: the notes from Halperin’s executive session meeting
in September, 2009; Eells’ e-mail of events sent to Halperin prior to that meeting; and
Promotion and Tenure documents. (Docket #23).
“When a cause of action . . . accrues against a resident of this state, and he by
absconding or concealing himself or by any other indirect means obstructs the
prosecution of the action, [that time] shall not be computed as any part of the period
within which the action shall be commenced.” KRS § 413.190(2). Nevertheless, the
statute begins to run when the fraud or concealment is discovered or when the facts
demonstrating the existence of a claim are discovered or should have been discovered
with reasonable diligence. Adams v. Ison, 249 S.W.2d 791, 793 (Ky. App. 1952);
Emberton v. GMRI, Inc., 299 S.W.3d 565, 575 (Ky. 2009) (“the limitations period began

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only when GMRI's concealment was revealed or when Emberton should have discovered
his cause of action by reasonable diligence”).
In this case, regardless of whether Defendants concealed evidence, Helm was
aware of his cause of action when he deposed Eells in May, 2013. This occurred more
than one year before Helm filed this action, and accordingly Helm’s claim is barred by
Kentucky’s one-year statute of limitations.
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss (Docket #22) will be
GRANTED.
A separate judgment and order will issue.

June 22, 2015

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