Mauvis-Jarvis v. Wong

ILLINOIS OFFICIAL REPORTS

Appellate Court

Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070

Appellate Court FRANCK MAUVAIS-JARVIS, M.D., P.h.D., Plaintiff-Appellant, v.

Caption WINIFRED P. S. WONG, JOSEPH T. WALSH, LAURAN

QUALKENBUSH, JON E. LEVINE, MICHELLE L. OESER,

NORTHWESTERN UNIVERSITY, and JOHN AND JANE DOES Nos.

1 through 10, Defendants-Appellees.

District & No. First District, Fourth Division

Docket Nos. 1-12-0070, 1-12-0237 cons.

Filed March 28, 2013

Held In an action for defamation and conspiracy to defame arising from

(Note: This syllabus allegations that defendants presented claims that plaintiff, a professor of

constitutes no part of medicine, submitted inaccurate data for publication in a scientific paper,

the opinion of the court the dismissal of plaintiff’s defamation claims on the ground that

but has been prepared defendants were protected by absolute privilege based on their duty to

by the Reporter of report research misconduct was reversed, since plaintiff’s allegations that

Decisions for the defendants acted recklessly and with malice were not denied by any

convenience of the pleadings and plaintiff would be allowed to proceed on that issue, but the

reader.)

dismissal of the conspiracy counts was upheld on the ground that they

were barred by the one-year statute of limitations in section 13-201 of the

Code of Civil Procedure.

Decision Under Appeal from the Circuit Court of Cook County, No. 11-L-00614; the Hon

Review Michael R. Panter, Judge, presiding.

Judgment Affirmed in part and reversed in part; remanded for further proceedings.

Counsel on Constantine John Gekas and John C. Gekas, both of Gekas Law LLP, of

Appeal Chicago, for appellant.

Eric S. Matson and Marah S. McLeod, both of Sidley Austin LLP, of

Chicago, and Lisa A. Hausten, of Law Offices of Lisa A. Hausten, of

Wheaton, for appellees.

Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court,

with opinion.

Presiding Justice Lavin and Justice Pucinski concurred in the judgment

and opinion.

OPINION

¶1 The plaintiff, Franck Mauvais-Jarvis (hereinafter Mauvais-Jarvis), filed a complaint in

the circuit court alleging, inter alia, that the defendants, Winifred P. S. Wong (hereinafter

Wong), Joseph T. Walsh (hereinafter Walsh), Lauran Qualkenbush (hereinafter

Qualkenbush), Jon E. Levine (hereinafter Levine), Michelle L. Oeser (hereinafter Oeser), and

Northwestern University (hereinafter Northwestern or the University), either defamed him

or conspired to defame him by formally presenting to the Northwestern internal inquiry

committee allegations that Mauvais-Jarvis submitted inaccurate data for publication in a

scientific paper. The defendants filed motions to dismiss the complaint pursuant to sections

2-615 and 2-619 of the Illinois Code of Civil Procedure (Civil Procedure Code) (735 ILCS

5/2-615, 2-619 (West 2008)) and the circuit court granted their motions pursuant to section

2-619 (735 ILCS 5/2-619 (West 2008)).1 The court dismissed the defamation counts, holding

that since the defendants acted under a mandatory duty to report and investigate suspected

research misconduct, their statements were protected by absolute privilege. The court also

dismissed the conspiracy to defame counts, finding: (1) that since the statements at issue

1

We note that in his complaint, Mauvais-Jarvis also alleged defamation and conspiracy to

defame against other “unknown and unnamed defendants (#1-10).” The motions to dismiss did not

refer to these defendants and the circuit court initially found that the case “remain[ed] pending

against John and Jane Does #1-10.” However, on January 19, 2012, the court entered an “Agreed

Final Order” wherein the parties concurred that the circuit court’s November 29, 2011, and

December 21, 2011, orders, “disposed of all claims in the case even though the caption includes the

defendants ‘John and Jane Does #1-10’.” The court then dismissed, with prejudice, all claims against

such unknown defendants.

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were protected by absolute privilege, the plaintiff had failed to allege any actionable conduct

(i.e., defamation) underlying the alleged conspiracy and (2) that, in any event, the conspiracy

counts were time-barred pursuant to section 13-201 of the Civil Procedure Code (735 ILCS

5/13-201 (West 2008)). The plaintiff now appeals, contending that the circuit court

improperly applied absolute privilege to the defendants’ statements when no such privilege

is recognized under Illinois law in the context of a university research misconduct

proceeding. The plaintiff also argues that his civil conspiracy claim is not time-barred

because the applicable statute of limitations is found in section 13-205 of the Civil Procedure

Code (735 ILCS 5/13-205 (West 2008)), and not section 13-201 of that Code (735 ILCS

5/13-201 (West 2008)) and permits the filing of such claims within five years. For the

reasons that follow, we affirm in part, and reverse and remand in part.

¶2 I. BACKGROUND

¶3 The record reveals the following undisputed facts and procedural history. Defendant

Northwestern University is a specially chartered private Illinois corporation. As an institution

that receives federal funding for biomedical and behavioral research it is governed by a

complex set of federal regulations with respect to investigating research misconduct.

¶4 A. The Federal Regulations

¶5 Pursuant to the Public Health and Welfare Act (42 U.S.C. § 289b (2008)) the Secretary

of the United States Department of Health and Human Services (HHS) has established an

agency, the Office of Research Integrity (ORI), within the Public Health Service (PHS),2

responsible for investigating all reports of research misconduct from institutions receiving

HHS funding. The Secretary has also promulgated regulations, entitled “Public Health

Services Polices on Research Misconduct,” requiring institutions that receive such financial

assistance to establish proceedings3 to investigate good-faith allegations of research

misconduct and to report all such investigations to the ORI. See 42 U.S.C. § 289b (2008);

see also 42 C.F.R. § 93 et seq. (2005).

¶6 Pursuant to these regulations, “[i]nstitutions and institutional members have an

affirmative duty to protect PHS funds from misuse” and the “primary responsibility for

responding to and reporting allegations of research misconduct.” 42 C.F.R. § 93.100(b)

(2005) “Research misconduct” is defined as:

“fabrication, falsification, or plagiarism in proposing, performing, or reviewing research,

or in reporting research results.

2

We note that PHS includes the National Institute of Health (NIH).

3

The proceedings contemplated by these regulations are defined in the following manner:

“Research misconduct proceeding means any actions related to alleged research

misconduct taken under this part, including but not limited to, allegation assessments,

inquiries, investigations, ORI oversight reviews, hearings, and administrative appeals.” 42

C.F.R. § 93.223 (2005).

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(a) Fabrication is making up data or results and recording or reporting them.

(b) Falsification is manipulating research materials, equipment, or processes, or

changing or omitting data or results such that the research is not accurately represented

in the research record.

(c) Plagiarism is the appropriation of another person’s ideas, processes, results, or

words without giving appropriate credit.

(d) Research misconduct does not include honest error or differences of opinion.” 42

C.F.R. § 93.103 (2005).

¶7 The regulations recognize that research misconduct proceedings are most often initiated

by a complainant, i.e., a person who brings forward allegations that a researcher has

committed research misconduct. The regulations therefore require that the complainant make

allegations in “good faith.” See 42 C.F.R. § 93.203 (2005) (“Complainant means a person

who in good faith makes an allegation of research misconduct.” (Emphasis added.)). “Good

faith” is defined as:

“having a belief in the truth of one’s allegation or testimony that a reasonable person in

the complainant’s or witness’s position could have based on the information known to

the complainant or witness at the time. An allegation or cooperation with a research

misconduct proceeding is not in good faith if made with knowing or reckless disregard

for information that would negate the allegation or testimony.” 42 C.F.R. § 93.210

(2005).

¶8 The regulations mandate that any institution receiving federal funding for research

establish a two-tiered procedure for investigating allegations of research misconduct: (1) an

inquiry and (2) an investigation. 42 C.F.R. §§ 93.212, 93.307 to 93.309, 93.215, 93.310 to

93.313 (2005).

¶9 The “inquiry,” or the “preliminary information-gathering and preliminary fact-finding”

stage (42 C.F.R. § 93.212 (2005)), is intended as “an initial review of the evidence” to

determine whether an allegation warrants a further investigation, and therefore “does not

require a full review of all the evidence related to the allegation.” 42 C.F.R. § 93.307(c), (d)

(2005). The person accused of research misconduct must be placed on notice of an inquiry.

See 42 C.F.R. § 93.307(b) (2005) (“At the time of or before beginning an inquiry, an

institution must make a good faith effort to notify in writing the presumed respondent, if

any.”). The institution must also timely complete the inquiry “within 60 calendar days of its

initiation unless circumstances clearly warrant a longer period.” 42 C.F.R. § 93.307(g)

(2005). Once the inquiry is completed, the institution must prepare a written report of the

inquiry committee’s decision. 42 C.F.R. § 93.307(e) (2005). If the inquiry board determines

that the allegations warrant an investigation, the institution must send the written report to

the ORI. 42 C.F.R. § 93.309(a) (2005). If, however, the inquiry committee determines that

it is not necessary to proceed with an investigation, it must merely retain its written report

and all relevant evidence collected therein on file within the institution for the next seven

years. 42 C.F.R. § 93.309(c) (2005).

¶ 10 The second, “investigation” stage of the proceedings is defined as:

“the formal development of a factual record and the examination of that record leading

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to a decision not to make a finding of research misconduct or to make a recommendation

for a finding of research misconduct which may include a recommendation for other

appropriate actions, including administrative actions.” 42 C.F.R. § 93.215 (2005).

During the investigation, the institution must interview witnesses and diligently pursue all

leads. 42 C.F.R. §§ 93.310(g), (h) (2005). The investigation must be commenced “within 30

days after determining that an investigation is warranted” (42 C.F.R. § 93.310(a) (2005)), and

the accused must be notified in writing of all allegations against him before the investigation

begins. See 42 C.F.R. § 93.310(c) (2005) (The institution must “[n]otify the respondent in

writing of the allegations within a reasonable amount of time after determining that an

investigation is warranted, but before the investigation begins.”). The final findings of the

investigation committee must be memorialized in a written report (42 C.F.R. § 93.313

(2005)) and must be given to the accused for comment (42 C.F.R. § 93.312 (2005)). The final

report must also be sent to the ORI. 42 C.F.R. § 93.315 (2005). The investigation itself must

be completed “within 120 days of beginning it, including conducting the investigation,

preparing the report of findings, providing the draft report for comment *** and sending the

final report to ORI.” 42 C.F.R. § 93.311(a) (2005). If the institution is unable to complete the

investigation within 120 days, it must request, in writing, an extension of time from the ORI.

42 C.F.R. § 93.311(b) (2005).

¶ 11 After an institution completes its two-tiered investigatory procedure, the ORI may

become involved by, inter alia, reviewing the institution’s findings, making its own finding

of research misconduct and proposing administrative actions to the HHS. 42 C.F.R. § 93.400

(2005). When the ORI does choose to get involved and makes its own finding of research

misconduct, it must propose and obtain HHS approval for “administrative actions,” and must

notify the respondent of these actions in a formal charge letter. 42 C.F.R. §§ 93.404 to

93.405 (2005). The HHS may then impose “HHS administrative actions” including, inter

alia: (1) clarification, correction or retraction of the research record; (2) letters of reprimand;

(3) suspension or termination of a PHS grant; (4) restriction on specific activities or

expenditures under an active PHS grant; (5) adverse personnel action if the respondent is a

federal employee; and (6) suspension or debarment from future grant funding for the

individual respondent. See 42 C.F.R. §§ 93.400(c)(2), 93.404, 93.407 (2005).

¶ 12 A respondent has an opportunity to contest the ORI research misconduct findings and the

HHS administrative actions by requesting an “administrative hearing” before an

administrative law judge (ALJ) affiliated with the HHS within 30 days of receiving an ORI

charge letter. 42 C.F.R. §§ 93.500 to 93.501 (2005). The parties to the hearing are only the

respondent and the ORI, and not the institution where the research misconduct proceedings

were initiated. 42 C.F.R. § 93.505 (2005). During such an administrative hearing, the parties

are permitted to, inter alia: (1) be represented by counsel; (2) conduct discovery; (3) present

relevant evidence and cross-examine witnesses; (4) agree to a stipulation of facts; (5) file

motions in writing; and (6) make oral arguments. 42 C.F.R. § 93.505 (2005). After the

hearing, the ALJ issues a ruling in writing setting forth his proposed findings of fact and any

conclusions of law. 42 C.F.R. § 93.523(a) (2005). The ALJ’s decision constitutes a

recommended decision to the Assistant Secretary for Health, who reviews the ALJ’s

recommendations and makes a final decision. 42 C.F.R. § 93.523(b) (2005). The Assistant

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Secretary of Health’s decision is the final HHS action, unless debarment or suspension is an

administrative action recommended in the decision. 42 C.F.R. § 93.523(b) (2005). If a

decision results in a recommendation for debarment or suspension, the Assistant Secretary

of Health must serve a copy of that decision upon the HHS debarring official. 42 C.F.R.

§ 93.523(c) (2005). The debarring official then makes the final HHS decision on a debarment

or suspension. 42 C.F.R. § 93.523(c) (2005).

¶ 13 Because the consequences of a research misconduct proceeding can be dire, the

regulations impose conditions of strict confidentiality on allegations of research misconduct.

As section 93.108 of the regulations states:

“Disclosure of the identity of respondents and complainants in research misconduct

proceedings is limited, to the extent possible, to those who need to know, consistent with

a thorough, competent, objective and fair research misconduct proceeding, and as

allowed by law.” 42 C.F.R. § 93.108(a) (2005).

Disclosure of records or other evidence from which research subjects might be identified is

also limited to “those who have a need to know to carry out a research misconduct

proceeding.” 42 C.F.R. § 93.108(b) (2005).

¶ 14 B. Northwestern’s Internal Research Misconduct Policy and Procedures

¶ 15 Pursuant to the aforementioned federal regulations, Northwestern has set up its own

policy and procedures for reviewing allegations of research misconduct as well as its own

office of research integrity (hereinafter Northwestern’s ORI). Northwestern’s ORI is intended

as an “independent and objective” agent responsible for facilitating the inquiry and the

investigation processes. This office is headed by the vice president of research (VPR) who

appoints the associate vice president for research integrity (AVPRI) to oversee the activities

of both the inquiry and investigation committees.

¶ 16 Northwestern’s policy and procedures closely mirror the federal regulations in many

aspects, including: (1) defining “research misconduct”; (2) requiring “good faith” and

“confidentiality” from all parties involved, including the complainant and the respondent;

(3) creating a two-tiered investigation process, including an inquiry and an investigation; and

(4) defining the scope and time frame of the inquiry and investigation proceedings.

¶ 17 Northwestern’s policy advises all of its employees that they “should report observed,

suspected or apparent research misconduct in research to [their] department chair or dean,

and through such consultation determine whether the matter should be pursued.” (Emphasis

added.) The policy also permits employees to report suspected research misconduct directly

to the VPR or the AVPRI, or the provost of the University.

¶ 18 Northwestern’s policy deviates from the federal regulations in other respects. For one,

it permits the University provost to consult “in confidence” with the VPR, the AVPRI, and

the director of Northwestern’s ORI, as well as the deans and other relevant university

personnel, in the initial and preliminary assessment of all allegations of research misconduct.

According to the policy, the purpose of this initial assessment is to determine the appropriate

roles and responsibilities of the university, its personnel and the oversight agencies with

respect to evaluating the allegations, as well as to identify individuals, information and data

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relevant to the allegations. During this consultation, the director of Northwestern’s ORI

determines whether the allegation meets the definition of “research misconduct” and

warrants further action, i.e., an inquiry followed by an investigation. According to

Northwestern’s policy, after an investigation committee makes it findings, the provost is

authorized to determine and invoke appropriate sanctions or disciplinary actions within the

university.

¶ 19 C. The Parties

¶ 20 Plaintiff, Mauvais-Jarvis, is an associate professor of medicine at Northwestern

University’s Feinberg School of Medicine and the research director of Northwestern’s

Comprehensive Center on Obesity. He is a leading expert in endocrinology and diabetes

research, having authored over 50 scientific articles and book chapters in this field. Mauvais-

Jarvis is a member of the prestigious American Society for Clinical Investigation, and the

recipient of numerous awards including, inter alia, the Pioneer Award from the Institute for

Women’s Health Research at Northwestern and the Innovative Research Grant from the

American Heart Association. His current research centers on the effect of the female

hormone, estrogen, in the protection from diabetes mellitus and obesity in humans. Mauvais-

Jarvis champions the discovery of estrogen receptors’ activation in protecting insulin-

producing pancreatic â-cells in type 1 and type 2 diabetes.

¶ 21 As part of his research at Northwestern, Mauvais-Jarvis oversees a laboratory where he

conducts research funded, in substantial part, by the NIH, a division of the HHS.

¶ 22 Defendant, Wong, worked in Mauvais-Jarvis’ laboratory as a postdoctoral fellow

between 2006 and May 2010. Defendant Oeser worked in Mauvais-Jarvis’ laboratory as a

research technician between 2006 and June 2008, when she left to pursue a doctorate in

biology at the University of Washington. Defendant Levine is a professor emeritus at

Northwestern. At the time of the events underlying this cause of action, he was a full-time

professor of neurobiology and physiology at Northwestern. In 2010, he became the director

of the Wisconsin National Primate Research Center at the University of Wisconsin in

Madison. Defendant Walsh is Northwestern’s VPR and defendant Qualkenbush is the

director of Northwestern’s ORI.

¶ 23 D. The Undisputed Facts

¶ 24 Much of the factual background of this case is in dispute. We will therefore begin by

setting forth the facts that the parties agree upon. The parties agree that in 2008, Mauvais-

Jarvis and his laboratory personnel were involved in a research project involving the

possibility of estrogen amplifying â-cell insulin synthesis via extranuclear signaling of the

estrogen receptor á. This project was funded by an NIH grant. As a result of this research,

in June 2008, Mauvais-Jarvis, Wong and Oeser submitted a manuscript for possible

publication in the Journal of Biological Chemistry. Because of her doctoral degree and

seniority, Wong was assigned as the “first author” on the draft manuscript. As a lab

technician, Oeser was responsible for collecting and then mapping certain data that was

included in two figures within the manuscript, figures 6C and 6H. Those two figures,

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however, contained fabricated data. The parties disagree as to who is responsible for the

fabrication of the data, with Oeser alleging that it is Mauvais-Jarvis and Mauvais-Jarvis

contending that it is Oeser.

¶ 25 After leaving Mauvais-Jarvis’ laboratory for graduate school, Oeser contacted defendant

Levine to discuss the fabricated data. Oeser knew Levine because she had worked in his in

laboratory as a researcher, while completing her undergraduate degree at Northwestern.

Levine advised Oeser that the manuscript should be withdrawn. As a result, on June 23,

2008, Oeser informed Mauvais-Jarvis of the inaccuracy of the submitted data and asked that

her name be removed from the manuscript. Mauvais-Jarvis directed Wong to run the actual

experiments and collect the data. When the paper came back from the reviewers of the

Journal of Biological Chemistry, the corrected figures and data were inserted in the paper

and on July 8, 2008, with approval from Andrea Dunaif, Mauvais-Jarvis’ division chief and

direct supervisor, the manuscript was resubmitted for publication.

¶ 26 Soon thereafter, on July 22, 2008, upon recommendation from Larry Jameson, dean of

Northwestern’s Feinberg School of Medicine (and also coauthor of the manuscript),

Mauvais-Jarvis withdrew the paper from review by the Journal of Biological Chemistry until

the matter could be resolved within the university. Since then, significant changes have been

made to the paper and in June 2010, it was published in another prestigious journal, the

Proceedings of the National Academy of Sciences.

¶ 27 On July 30, 2008, Northwestern’s ORI sent Mauvais-Jarvis a letter, notifying him that

Oeser and Levine had accused him of research misconduct. Specifically, Mauvais-Jarvis was

charged with “falsifying” figures 6C and 6H in the draft manuscript submitted to the Journal

of Biological Chemistry in early June of that year. Soon thereafter, Northwestern officials

convened an inquiry committee of faculty members to assess the allegations of research

misconduct. The committee reviewed the allegations and interviewed various witnesses,

including Wong. On May 5, 2009, the committee issued its final report unanimously

concluding that the charges by Oeser and Levine were not credible and did not merit a full

investigation.

¶ 28 Soon thereafter, it became apparent that other data, in figure 4F, of the manuscript

submitted to the Journal of Biological Chemistry was inaccurate. The parties disagree as to

who is responsible for this incorrect data, with Wong arguing that it is Mauvais-Jarvis and

Mauvais-Jarvis pointing the finger at Wong. As a result, on December 17, 2010, as

Northwestern’s director of ORI, Qualkenbush issued a new charge letter against Mauvais-

Jarvis, alleging that Mauvais-Jarvis had: (1) falsified figure 4F; (2) falsified figures 6C and

6H; and (3) instructed Wong to lie to the inquiry committee in February 2009 and tell them

that Oeser was responsible for the falsified images in figures 6C and 6H. The charge letter

also stated that in an attempt to coerce Wong into saying what he wanted her to say,

Mauvais-Jarvis told her that “the lives of the five people in [his] lab depended on what she

told the Committee.” Qualkenbush sent copies of this letter to two administrative officials

at the Feinberg School of Medicine (the dean for research and the chair of the department of

medicine). A second inquiry committee was then convened. On June 2, 2011, that committee

concluded that sufficient evidence was presented to warrant a full investigation into all of the

charges against Mauvais-Jarvis. Walsh, Northwestern’s VPR, then sent a letter to Mauvais-

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Jarvis listing all those allegations. Qualkenbush forwarded copies of this letter to the interim

dean and the vice dean of the Feinberg School of Medicine. On June 13, 2011, Mauvais-

Jarvis filed this lawsuit.

¶ 29 E. The Complaint

¶ 30 In his five-count complaint, Mauvais-Jarvis alleges: (1) defamation per se against Wong,

Walsh, Qualkenbush and Northwestern (counts I and III); (2) defamation per quod against

Wong, Walsh, Qualkenbush and Northwestern (count II and IV); and (3) civil conspiracy

against Oeser, Wong and Levine (count V).

¶ 31 1. Defamation Claim Against Wong

¶ 32 With respect to Wong, Mauvais-Jarvis first alleges that statements she made in an email

exchange with Qualkenbush on July 22, 2010, were defamatory per se and per quod. In that

email exchange, Qualkenbush initially wrote to Wong:

“Hello Winnie [Wong],

Thank you for taking the time to talk this afternoon. I’m sending the revised language for

the allegations for your review and approval.

DRAFT allegation language:

You instructed Winifred Wong to lie on your behalf in preparation for her interview

with the Inquiry Committee in February 2009. Specifically, you instructed Ms. Wong

to inform the Committee that Michelle Oeser was responsible for the falsified images

in the manuscript. In addition, in an attempt to coerce her into saying what you

wanted, you told Ms. Wong that the lives of the five people in your lab depended on

what she told the Committee.

Please let me know if the above statement is correct, or if not, please let me know what

is incorrect.

Thank you again for your assistance.

Lauran [Qualkenbush]”

In response, that same day, Wong emailed Qualkenbush the following:

“Hi Lauran [Qualkenbush],

Yes, the statement below is correct.

Winnie [Wong].”4

¶ 33 Mauvais-Jarvis alleges that the statement in Wong’s email was false and that Wong made

it with “ill will and malice” and in retaliation because Mauvais-Jarvis terminated her

4

We note that this email exchange was not attached as an exhibit, but that instead the

plaintiff included it in the body of his complaint. The parties, however, appear to agree that this

email exchange occurred; they do not dispute the sufficiency of the plaintiff’s complaint on the basis

of his failure to attach the email exchange as an exhibit.

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employment in April 2010. In the complaint, Mauvais-Jarvis alleges that beginning in

February 2009, he began documenting Wong’s substandard performance in the laboratory,

including, inter alia: permitting important animal protocols to expire; giving improper

presentations at weekly lab meetings; failing to follow instructions regarding breeding

procedures and then lying about her animal breeding strategy; sloppily editing manuscripts;

making serious mistakes in plotting data; giving samples from Mauvais-Jarvis’ laboratory

to another laboratory without his authorization and in violation of the applicable institutional

rules; mixing up different genes; and leaving work early in the middle of important

experiments.

¶ 34 Mauvais-Jarvis also documented Wong’s “inexcusable mistakes” with respect to the

manuscript that was submitted to the Journal of Biological Chemistry. Specifically,

according to the complaint, in early 2009, Wong came to Mauvais-Jarvis informing him that

Joe Tiano, a Ph.D. student in his laboratory, had discovered that there was a problem with

figure 4F, which had been included in the manuscript submitted to the Journal of Biological

Chemistry in 2008, but which had since been withdrawn. At a brief meeting, with Tiano and

Wong, Mauvais-Jarvis discussed the problem–an inversion of some data from one or two

columns to others. Both Tiano and Wong told Mauvais-Jarvis they did not know how the

inversion had occurred. According to the complaint, since Tiano was responsible for the

experiments and the recording of the data, and Wong, as first author, was responsible for

reviewing the data and putting it into proper final form, Mauvais-Jarvis immediately

suspected that Wong had made “some kind of careless error.” Mauvais-Jarvis therefore

instructed Wong to fix the problem and “make absolutely sure that the data and figure 4F

were corrected right away.” Several months later, on October 14, 2009, Mauvais-Jarvis, who

was reviewing the manuscript, wrote the following email to Wong:

“I am working on your paper. So far looks good. As we discussed you need to verify with

Joe whether the experiment of E2 induction of RIP-luc is in its correct format (I don’t

remember but some condition was inverted?) And especially if we need another

confirmation because it is one of the critical experiments of the paper. It is the

mechanism with the NeruoD1 data. Thanks.”

On November 24, 2009, Mauvais-Jarvis was reviewing the paper again and realized that the

old erroneous figure was still in the network subdirectory that should have contained only

the final version. He, therefore, emailed Wong stating: “[T]his figure should have been

finalized a month ago and you told me that it was done. It is your responsibility as the first

author to finalize all figures. Please update this figure today.” (Emphasis in original.) Wong

emailed back that the old file was still in the location for final files, so Mauvais-Jarvis

responded with the following instruction: “All final files should be final to avoid mistakes.

Withdraw the old figure and put it in an old file.”

¶ 35 According to the complaint, as a result of these serious inadequacies, in April 2010,

Mauvais-Jarvis fired Wong. The complaint alleges that before leaving the laboratory, Wong

came into Mauvais-Jarvis’ office, angrily confronted him about her termination, and

“threatened to destroy his career.” Soon thereafter, she changed her story regarding Oeser’s

“inadequate performance” with respect to figures 6C and 6H, and spoke to Qualkenbush

accusing Mauvais-Jarvis of falsifying data in figures 6C, 6H and 4F.

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¶ 36 2. Defamation Claim Against Walsh and Qualkenbush

¶ 37 With respect to Walsh and Qualkenbush, Mauvais-Jarvis alleges that they made several

per se and per quod defamatory statements against him in retaliation because he sought

redress directly from the University’s provost to end the “unwarranted research misconduct

proceedings against him,” accusing Northwestern’s ORI of violating both federal regulations

and its own policies.

¶ 38 According to the complaint, on June 14, 2010, Mauvais-Jarvis sent a letter to the provost

seeking his direct “intervention” in the matter. Mauvais-Jarvis wrote to the provost that he

was accused of research misconduct by a former lab technician (Oeser), who had failed to

perform essential duties related to a research project, and then concealed this mistake from

him. The letter to the provost stated that the lab technician had acted “at the urging of a

research competitor at the University” (Levine), and that Mauvais-Jarvis was exonerated

from any charges after a full scale inquiry. The letter also accused Northwestern’s ORI of

committing at least four documented violations of his rights and the applicable HHS

regulations during that inquiry (including, inter alia, failing to notify him of the beginning

of the inquiry proceedings on time and failing to complete the inquiry proceedings as quickly

as mandated by the federal regulations). In addition, the letter accused Walsh of ignoring the

committee’s recommendations, stating:

“Subsequently, the matter was reviewed by Vice President Walsh who ignored the

Committee recommendations and raised a new, baseless and trivial charge that the

Inquiry Committee had rejected and which did not constitute research misconduct in any

event. Through the University’s Office of General Counsel that new charge matured into

a threat of a formal investigation unless I agreed to admit wrongdoing as to that new

baseless charge that I did not commit. When I proposed a compromise on the matter and

requested that Dr. Walsh close the investigation, Dr. Walsh and the University’s lawyer

went silent for months, leaving this matter hanging over my head, as it is today.”

The letter further accused the University’s counsel of refusing Mauvais-Jarvis’ request to be

reimbursed for his legal expenses pursuant to the University’s indemnification policy.5

¶ 39 According to the complaint, on the same day that he contacted the University provost,

and as a direct result of his plea to the provost, defendant Walsh retaliated by sending him

the following letter:

“You were contacted by the [ORI] because new allegations of research misconduct have

been raised against you. Specifically that:

1. you falsified figure 4F in a draft manuscript *** which was submitted for publication

to the Journal of Biological Chemistry in 2008; and

2. You instructed Winifred Wong to lie on your behalf in preparation for her interview

5

On April 22, 2011, over the University’s objection, the circuit court granted Mauvais-

Jarvis’ motion requiring the University to advance/indemnify his legal expenses and attorney fees.

On May 15, 2011, the circuit court entered a preliminary injunction ordering the University to do

so.

-11-

with the Inquiry Committee in February 2009.”

¶ 40 The complaint alleges that Walsh’s letter set in motion a series of further investigations

against Mauvais-Jarvis. Specifically, on December 17, 2010, Qualkenbush issued a second

charge letter against Mauvais-Jarvis, alleging that he: (1) falsified figure 4F; (2) falsified

figures 6C and 6H; and (3) instructed Wong to lie to the inquiry committee in February 2009.

According to the complaint, this charge letter is defamatory per se and per quod, because it

is false and because, for no apparent reason and “in violation of both the federal regulations

and Northwestern’s ORI policies and procedures,” it was sent to Rex Chisholm, the dean for

research at the Feinberg School of Medicine, and Douglas E. Vaughn, the chair of the

department of medicine.

¶ 41 The complaint also alleged that after the second inquiry committee reported its findings

to Walsh, determining that the charges against Mauvais-Jarvis warranted a full investigation,

Walsh sent a letter containing those charges to Mauvais-Jarvis. For “no sufficient reason”

and “in violation of both the federal regulations and Northwestern’s ORI policies and

procedures,” Qualkenbush then forwarded that letter to Chisholm and Jeffrey Glassroth, the

interim dean of the Feinberg School of Medicine.

¶ 42 3. Defamation Claim Against Northwestern

¶ 43 With respect to Northwestern’s responsibility for the aforementioned defamatory

statements, the complaint alleges that at all relevant times, Oeser, Wong, Walsh and

Qualkenbush “committed the acts and omissions alleged in the complaint as employees and

agents of the university and acting in the scope of that employment and agency.” Therefore,

under the doctrine of respondeat superior, Northwestern was responsible for their actions.

¶ 44 4. Civil Conspiracy Claim Against Wong, Oeser and Levine

¶ 45 Finally, with respect to the civil conspiracy count, the complaint alleges that, acting in

“secret agreement,” Oeser, Wong and Levine engaged in a conspiracy to destroy Mauvais-

Jarvis’ professional career by making false and defamatory accusations against him in 2008.

According to the complaint, Oeser failed to conduct the experiments in figures 6C and 6H,

but in order to make it appear that she had completed them, she used templates developed

within Mauvais-Jarvis’ laboratory as part of is routine practice and then inserted made-up

data into those templates. The complaint alleges that Wong was aware of Oeser’s negligence,

because Oeser contacted her about it after she left the laboratory. Neither Oeser nor Wong

approached Mauvais-Jarvis about the falsified data or took any steps to correct it. Instead,

according to the complaint, Oeser contacted Mauvais-Jarvis’ leading competitor in the field,

Levine, to tell him what had occurred. The complaint alleges that Oeser and Levine then

conspired to shift the blame onto Mauvais-Jarvis and accuse him of research misconduct.

The complaint further alleges that in doing so, they communicated with Wong.

¶ 46 The complaint further alleges that both Oeser and Levine were motivated by ill-will and

malice toward Mauvais-Jarvis. According to the complaint, unknown to Mauvais-Jarvis,

Oeser “harbored deep resentment” against him because he had reprimanded her for taking

too much leave, which had interfered with her completion of important experiments, and

-12-

because she incorrectly believed that he did not intend to give her a recommendation for

graduate school.6 Similarly, the complaint alleges that, at least since 2006, Mauvais-Jarvis’

research directly competed with Levine’s, particularly in obtaining federal grant money. As

a result, Levine routinely attempted to interfere with Mauvais-Jarvis’ experiments and to

prevent his publications.

¶ 47 In support of these allegations, Mauvais-Jarvis attached: (1) his curriculum vitae and (2)

a transcript of Wong’s testimony before Northwestern’s first inquiry committee, which

exonerated him of all charges of research misconduct. That transcript reveals that during the

hearing before the inquiry committee, Wong testified that it was standard practice in the

laboratory to use templates. She testified that the day before the manuscript was supposed

to be submitted to the Journal of Biological Chemistry, Oeser mentioned to her in passing

that she did not believe that the data in figures 6C and 6H was real. Wong testified that Oeser

was responsible for authenticating the data in those figures and that she did not know why

Oeser did not authenticate the data or speak with Mauvais-Jarvis about it if she did not

believe it to be accurate. As Wong told the committee:

“[I]f it really bothered her all that much, why didn’t she go to my boss and sort it out

there and then–before it was submitted. But, obviously, it bothered her a lot because she

knowingly worked on incorrect data, right, because she actually put in the legends, she

put in the A, B, C’s and she put in the scale bars and everything, so she knowingly knew

that the data was inaccurate, so she was responsible for the authenticity of the data, and

if she had a problem with it, a lot of problems obviously, then she should actually have

spoken to the boss about it. So I’m not sure what went on, I don’t understand why she

didn’t do that.”

¶ 48 Wong also testified that after Oeser left the laboratory for graduate school, she

telephoned Wong and told her that she had spoken to Levine and that Levine had advised her

to ask Wong to confront Mauvais-Jarvis about the falsified data. Wong, however, did not feel

comfortable doing this, because she herself had not compiled the data, and because Oeser had

not confronted Mauvais-Jarvis while she was still working at the laboratory.

¶ 49 Wong explained that although she trusted that Oeser was a good lab technician, Oeser

“may have had some interpersonal problems with Mauvais-Jarvis.” Wong told the inquiry

committee that in January 2008 she saw Oeser crying in the women’s bathroom. When Wong

confronted her, Oeser told her that Mauvais-Jarvis said that if she did not complete certain

experiments by a certain time he would not give her a reference letter for graduate school.

Oeser then asked Wong to act as a proxy referee, and Wong drafted a reference letter and

sent it to the University of Washington on Oeser’s behalf.

¶ 50 Wong also testified that Mauvais-Jarvis is a very focused and demanding individual who

requires hard work and discipline from his employees and sets deadlines for himself and for

everyone else in the lab. Wong admitted that she often “felt pressure” while working in his

laboratory. With respect to the 2008 manuscript submission, Wong testified that Mauvais-

6

According to the complaint, Mauvais-Jarvis, had written “a glowing letter of

recommendation” for Oeser’s acceptance to the University of Washington.

-13-

Jarvis wanted the experiments and the draft completed by a certain date because a competing

laboratory in Spain was doing similar research and intending to submit a similar publication.

¶ 51 F. The Defendants’ Motions to Dismiss

¶ 52 On August 31, 2011, the defendants filed two combined section 2-619.1 motions to

dismiss (735 ILCS 5/2-619.1 (West 2008)). In these motions, they argued that Mauvais-

Jarvis’ defamation claims were barred by absolute privilege and by the Illinois Citizen

Participation Act (735 ILCS 110/1 et seq. (West 2008)). Defendants Oeser, Wong and Levine

also argued that the civil conspiracy claims against them were barred by the one-year statute

of limitations in section 13-201 of the Civil Procedure Code (735 ILCS 13-201 (West 2008)).

They pointed out that the underlying tortious acts, i.e., the alleged defamatory statements by

Oeser and Levine in fabricating the research misconduct allegations against Mauvais-Jarvis,

were made in 2008, more than three years before the lawsuit was filed. In addition, Wong

argued that the conspiracy count against her should be dismissed pursuant to section 2-615

of the Civil Procedure Code (735 ILCS 5/2-615 (West 2008)) because Mauvais-Jarvis had

insufficiently pleaded her knowledge and voluntary agreement to be part of any alleged

conspiracy.

¶ 53 In support of their motions to dismiss, the defendants attached copies of: (1)

Northwestern ORI’s policy and procedures for reviewing alleged research misconduct; (2)

the HHS and the ORI sample policy and procedures for responding to allegations of research

misconduct; and (3) an affidavit from Oeser averring that an email she sent to Levine on June

22, 2008, was accurate. A copy of that email was attached to Oeser, Wong and Levine’s

motion to dismiss and states in full:

“Jon,

I spoke to Winnie [Wong] once more and we’ve decided on the following series of

actions to get us to the desired endpoint (retraction of the paper) most quickly.

First, I’d like to send you an email with an attachment detailing how the

immunocytochemistry images in question were put together. That way, you have it

available when you contact Dr. Dunaif.

Next, I’ll send an email to Franck [Mauvais-Jarvis], cc-ing both you and Winnie

[Wong], stating the following:

a. I am uncomfortable with the current misrepresentation of my images on the current

submission of the paper.

b. I would like my name removed from the publication until the experiments in

question have been done and the actual data are included in the paper.

c. I have spoken to you and that you have advised me that retraction of the paper is

the correct action to take at this point.

Winnie [Wong] and I feel that this approach (cc-ing both of you) will give Franck

[Mauvais-Jarvis] the least amount of time to change his story or shift blame. At this point

we think it would be good for you to inform Dr. Dunaif (if you see fit), so that Franck has

absolutely no choice but to call the paper back.

-14-

Once he retracts the paper, Winnie [Wong] will ensure that all necessary experiments

are completed and all data are scrutinized before resubmitting.

Both the email with the attachment (to you only) and the email to Franck [Mauvais-

Jarvis] (cc-ing you and Winnie [Wong]) will probably be sent from my Northwestern

email address; as far as I know it is still functional.

What do you think about this? Please let me know as soon as you can.

Thanks for all of your help in this,

Michelle [Oeser].”

¶ 54 On October 11, 2013, Mauvais-Jarvis filed his response to the motions to dismiss. He

argued that the defendants’ defamatory statements were not protected by the Illinois Citizen

Participation Act (735 ILCS 110/1 et seq. (West 2008)) nor entitled to absolute privilege. At

best, Mauvais-Jarvis argued, the statements could be protected by qualified privilege. With

respect to the conspiracy claim, Mauvais-Jarvis argued that it was governed by the five-year

statute of limitations in section 13-205 of the Civil Procedure Code (735 ILCS 5/13-205

(West 2008)) and not the one-year statute of limitations in section 13-201 of that Code (735

ILCS 5/13-201 (West 2008)). He further argued that he sufficiently pleaded Wong’s

agreement and participation in the conspiracy by pointing out that the aforementioned emails

between Oeser and Levine in 2008 reveal that despite Wong’s knowledge of Oeser’s mistake

in falsifying the data in figures 6C and 6H, instead of speaking with Mauvais-Jarvis, she

communicated with Oeser and Levine and agreed on a course of action to accuse Mauvais-

Jarvis of falsifying the data. In addition, in support of his arguments, Mauvais-Jarvis attached

copies of: (1) federal regulations regarding research misconduct (42 C.F.R. pt. 93 et seq.

(2005)); (2) Northwestern ORI’s policies and procedures for reviewing alleged research

misconduct; and (3) two documents establishing that Northwestern is a private university (an

April 22, 2011, sworn certificati2on of Northwestern University Deputy General Counsel

Stephanie M. Graham, and Northwestern’s 1851 charter by the Illinois legislature).7

¶ 55 D. The Circuit Court’s Ruling

¶ 56 In response to the motions to dismiss, the circuit court issued two separate orders. In its

first order, the court denied the defendants’ motions to dismiss on the basis of the Illinois

Citizen Participation Act (735 ILCS 110/1 et seq. (West 2008)). In light of the Illinois

Supreme Court’s recent decision in Sandholm v. Kuecker, 2012 IL 111443, limiting the

scope of that Act, the defendants have not challenged this ruling on appeal.

¶ 57 In its second order, the circuit court held that the defendants enjoyed absolute privilege

under Illinois common law. The court explained:

“Federal regulations promulgated by the U.S. Department of [HHS] create an affirmative

duty for health institutions and their members to report allegations of research

misconduct in order to protect public health service funds from misuse by ensuring the

integrity of all federally funded work. [Citation.] *** There is no dispute that

7

On appeal, the parties do not dispute that Northwestern is a private entity.

-15-

Northwestern is required to comply with these regulations.”

¶ 58 The court held that Oeser, Wong and Levine were protected by absolute privilege because

under the Northwestern policy for reporting research misconduct, as employees of the

university they “had an affirmative duty to report allegations of research misconduct to

Northwestern.” The court similarly held that Walsh and Qualkenbush were protected by

absolute privilege on the basis of their obligations as Northwestern officials responsible for

investigating research misconduct. As the court explained:

“As employees directly responsible for preserving the research integrity of the institution,

they were required to provide their superiors with written notice of the determination that

an inquiry was needed to investigate charges of research misconduct against Mauvais-

Jarvis. Therefore, they had an affirmative duty through their employment relationship and

under federal law to republish the charges.”

The court also concluded that since the claims against Northwestern were derivative of the

claims against Walsh and Qualkenbush, they too had to be dismissed.

¶ 59 In coming to this decision, the court rejected Mauvais-Jarvis’ argument that the privilege

applicable to this situation is only qualified and limited to statements and allegations of

misconduct made in “good faith.” As the court noted:

“There is no basis to find defendants went to the [ORI] with a desire to cause Mauvais-

Jarvis harm. There is no allegation they deviated from established protocol in reporting

their allegations. There is no allegation they told anyone else at Northwestern other than

the people to whom they were obligated to report. Oeser, Levine and Wong put

themselves under review by reporting suspected research misconduct. They put their

work at issue before the [ORI] and potentially involved themselves. Their actions may

have negative consequences for them. *** There are no allegations and no showing that

they acted in bad faith and no basis to find that they should be deprived of the protection

afforded by privilege.”

¶ 60 The court also found that the one-year statute of limitations for defamation claims

pursuant to section 13-201 (735 ILCS 5/13-201 (West 2008)) had expired with respect to any

statements made by Oeser and Levine in 2008. Accordingly, the court dismissed the

“defamation charges” against Oeser and Levine.8

¶ 61 With respect to the civil conspiracy claims against Oeser, Wong and Levine, the court

found that since the claims were predicated on the commission of the underlying tort, i.e.,

the publishing of defamatory statements against Mauvais-Jarvis, which were absolutely

privileged, there could be no conspiracy. In addition, the court found that the conspiracy

claim against Wong was flawed because it lacked the necessary element of agreement.

¶ 62 The plaintiff now appeals contending that the circuit court erred in dismissing his

8

We note that Mauvais-Jarvis did not raise a claim of defamation against Oeser and Levine,

but rather a claim of conspiracy to defame, based on statements made by them in 2008. Accordingly,

the circuit court misspoke when it dismissed the charges of “defamation” against these two

defendants.

-16-

complaint pursuant to section 2-619.1 of the Code of Civil Procedure (735 ILCS 2-619.1

(West 2008)).

¶ 63 II. ANALYSIS

¶ 64 Section 2-619.1 of the Code of Civil Procedure allows a party to file a motion combining

a section 2-615 motion to dismiss with a section 2-619 motion to dismiss. 735 ILCS 5/2-

619.1 (West 2008). A section 2-615 motion to dismiss attacks the legal sufficiency of a

complaint by asserting that it fails to state a cause of action upon which relief can be granted.

Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147 (2002); see also 735 ILCS 5/2-615 (West

2008). A section 2-619 motion to dismiss, on the other hand, admits the sufficiency of the

complaint, but asserts an affirmative matter that acts to defeat the claim. Patrick

Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31; King v. First Capital

Financial Services Corp., 215 Ill. 2d 1, 11-12 (2005); Wallace v. Smyth, 203 Ill. 2d 441, 447

(2002); see 735 ILCS 5/2-619(a)(9) (West 2008) (allowing dismissal when “the claim

asserted against defendant is barred by other affirmative matter avoiding the legal effect of

or defeating the claim”). When ruling on either motion to dismiss, a reviewing court must

construe the pleadings and supporting documents in the light most favorable to the

nonmoving party and accept as true all well-pleaded facts in the complaint and all inferences

that may reasonably be drawn in the plaintiff’s favor. Sandholm v. Kuecker, 2012 IL 111443,

¶ 55. Under either section, our review is de novo. Solaia Technology, LLC v. Specialty

Publishing Co., 221 Ill. 2d 558, 579 (2006).

¶ 65 A. Defamation

¶ 66 In the present case, the circuit court dismissed Mauvais-Jarvis’ defamation claims against

Wong, Qualkenbush, Walsh and Northwestern pursuant to section 2-619(a)(9) of the Civil

Procedure Code (735 ILCS 5/2-619(a)(9) (West 2008)), finding that they were barred by

absolute privilege.

¶ 67 To establish defamation, a plaintiff must present facts showing that the defendant made

a defamatory statement about the plaintiff, the defendant made an unprivileged publication

of that statement to a third party, and the publication caused damages. Solaia Technology,

221 Ill. 2d at 579. “A defamatory statement is a statement that harms a person’s reputation

to the extent it lowers the person in the eyes of the community or deters the community from

associating with her or him.” Solaia, 221 Ill. 2d at 579.

¶ 68 There are two types of defamatory statements: defamation per se and defamation per

quod. Brennan v. Kadner, 351 Ill. App. 3d 963, 968 (2004). In an action for defamation per

quod, the plaintiff must plead and prove actual damages in order to recover. Imperial

Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 390 (2008). If a defamatory

statement is actionable per se, however, the plaintiff need not plead or prove actual damage

to his or her reputation to recover. Bryson v. News America Publications, Inc., 174 Ill. 2d 77,

87 (1996). “Rather, statements that fall within *** actionable per se categories are thought

to be so obviously and materially harmful to [the plaintiff] that injury to [the plaintiff’s]

reputation may be presumed.” Bryson, 174 Ill. 2d at 87.

-17-

¶ 69 The Illinois Supreme Court recognizes only five categories of statements that are

defamatory per se: (1) words that impute a person has committed a crime; (2) words that

impute a person is infected with a loathsome communicable disease; (3) words that impute

a person is unable to perform or lacks integrity in performing his or her employment duties;

(4) words that impute a person lacks ability or otherwise prejudices that person in his or her

profession; and (5) words that impute a person has engaged in adultery or fornication. See

Solaia, 221 Ill. 2d at 579-80.

¶ 70 Even statements that are defamatory per se, however, are not actionable if they are

protected by privilege. Anderson v. Beach, 386 Ill. App. 3d 246, 249 (2008) (citing Zych v.

Tucker, 363 Ill. App. 3d 831, 834 (2006)). “As a matter of public policy, certain types of

defamatory statements are deemed privileged so that the person making the statement will

not be deterred from speaking by the threat of civil liability.” Starnes v. International

Harvester Co., 141 Ill. App. 3d 652, 653 (1986). There are two types of privilege available:

absolute and qualified privilege. Starnes, 141 Ill. App. 3d at 653-54.

¶ 71 Where absolute privilege is granted, no cause of action for defamation lies against the

person making the statement even if it is made with malice. Starnes, 141 Ill. App. 3d at 653-

54; see also Zych v. Tucker, 363 Ill. App. 3d 831, 834 (2006) (“An absolute privilege

provides a complete immunity from civil action even though the statements were made with

malice because public policy favors the free and unhindered flow of such information.”); see

also William L. Prosser, Torts § 114, at 777 (4th ed. 1971) (Absolute immunity is extended

to communications “where there is an obvious policy in favor of permitting complete

freedom of expression, without any inquiry as to the defendant’s motives.”).

¶ 72 On the other hand, where only qualified privilege is granted the person making the

statement is immune from liability unless some element such as malice is present. Starnes,

141 Ill. App. 3d at 653-54; see also Zych, 363 Ill. App. 3d at 834; see also Prosser, supra, at

785-86 (“There remain a group of situations in which the interest which the defendant is

seeking to vindicate is regarded as having an intermediate degree of importance, so that the

immunity conferred is not absolute, but is conditioned upon publication in a reasonable

manner and for a proper purpose. The privilege is therefore spoken of as ‘qualified,’

‘conditional’ or ‘defeasible’. *** [With qualified privilege] the publication is privileged

when it is ‘fairly made by a person in the discharge of some public or private duty, whether

legal or moral, or in the conduct of his own affairs, in matters where his interest is

concerned.’ ” (quoting Toogood v. Spyring, 149 Eng. Rep. 1044 (1834))). A qualified

privilege exists when the following elements are present: “ ‘(1) good faith by the defendant

in making the statement; (2) an interest or duty to uphold; (3) a statement limited in its scope

to that purpose; (4) a proper occasion; and (5) publication in a proper manner and to proper

parties only.’ ” Zych, 363 Ill. App. 3d at 834 (quoting Kuwik v. Starmark Star Marketing &

Administration, Inc., 156 Ill. 2d 16, 25 (1993)). The protection provided by a qualified

privilege is lost if: “(1) false statements are made with malice or a reckless disregard for their

truth, (2) the statements are not limited in scope, or (3) publication is not limited to proper

parties.” Zych, 363 Ill. App. 3d at 835 (citing Kuwik, 156 Ill. 2d at 27). The question of

whether privilege is absolute or qualified is a matter of law to be decided by the court.

Anderson, 386 Ill. App. 3d at 249 (citing Zych, 363 Ill. App. 3d at 834).

-18-

¶ 73 On appeal, Mauvais-Jarvis contends that only qualified privilege can apply to allegedly

defamatory statements made in the context of a university research misconduct proceeding.

The defendants, on the other hand, contend that the circuit court properly extended absolute

privilege to such statements. The parties concede, and our research has revealed, that no

Illinois case has specifically addressed this issue. Accordingly, we are faced with a case of

first impression in Illinois. For the reasons that follow, we are compelled to find that only

qualified privilege applies.

¶ 74 The class of occasions where defamatory statements are absolutely privileged in Illinois

is very narrow and has generally been limited to legislative, judicial and some quasi-judicial

proceedings and “other acts of State,” including “communications made in the discharge of

a duty under express authority of law.” Busch v. Bates, 323 Ill. App. 3d 823, 833 (2001); see

also Zych, 363 Ill. App. 3d at 834 (“The class of occasions where defamatory statements are

absolutely privileged is narrow and generally limited to legislative, judicial and some quasi-

judicial proceedings.”); see also Parillo, Weiss & Moss v. Cashion, 181 Ill. App. 3d 920, 928

(1989); see also Weber v. Cueto, 209 Ill. App. 3d 936, 942 (1991) (“The class of absolutely

privileged communications is narrow and is practically limited to legislative and judicial

proceedings and other acts of State, including communications made in the discharge of a

duty under express authority of law.”); Anderson v. Beach, 386 Ill. App. 3d 246, 249 (2008)

(“Absolutely privileged communications are rare.”); Thomas v. Petrulis, 125 Ill. App. 3d

415, 418 (1984) (“The class of occasions where libelous words are absolutely privileged is

narrow.”); Prosser, supra, at 777 (“Absolute immunity has been confined to a very few

situations where there is an obvious policy in favor of permitting complete freedom of

expression, without any inquiry as to the defendant’s motives.” (Emphasis added.)). The

Restatement (Second) of Torts § 592A (1977) provides that “[o]ne who is required by law

to publish defamatory matter is absolutely privileged to publish it.” The comment to section

592A states that the rule provided therein “will apply whenever the one who publishes the

defamatory matter acts under legal compulsion in so doing.” Restatement (Second) of Torts

§ 592A, cmt. b, at 258 (1977).

¶ 75 The defendants first argue that because they were required to report and investigate

research misconduct under the federal regulations and Northwestern’s ORI policies they

should be protected by absolute privilege. We disagree.

¶ 76 Although the defendants are correct in asserting that the federal regulations impose an

“affirmative duty” on all “institutions and institutional members” receiving federal funding

for medical and scientific research to protect government “funds from misuse” by

“responding to and reporting allegations of research misconduct” (42 C.F.R. § 93.100(b)

(2005)), that duty is explicitly qualified by the requirement of “good faith” both in reporting

and investigating research misconduct. See 42 C.F.R. § 93.203 (2005) (“Complainant means

a person who in good faith makes an allegation of research misconduct.” (Emphasis added.));

see also 42 C.F.R. § 93.210 (2005) (“Good faith as applied to a complainant or witness

means having a belief in the truth of one’s allegation or testimony that a reasonable person

in the complainant’s or witness’s position could have based on the information known to the

complainant or witness at the time. An allegation or cooperation with a research misconduct

proceeding is not in good faith if made with knowing or reckless disregard for information

-19-

that would negate the allegation or testimony. Good faith as applied to a committee member

means cooperating with the research misconduct proceeding by carrying out the duties

assigned impartially for the purpose of helping an institution meet its responsibilities under

this part. A committee member does not act in good faith if his/her acts or omissions on the

committee are dishonest or influenced by personal, professional or financial conflicts of

interest with those involved in the research misconduct proceeding.”).

¶ 77 Consistent with the federal regulations, Northwestern’s ORI policy conditions reporting

of research misconduct on “good faith.” A complainant, who is defined as “an individual

who submits an allegation of research misconduct,” is “responsible for making allegations

in good faith.” (Emphasis added.) “Good faith” allegations are defined as:

“allegation[s] made with the honest belief that research misconduct may have occurred.

An allegation is not in good faith if it is made in reckless disregard for or willful

ignorance of facts that would disprove the allegation.”

In addition, in delineating the responsibility to report research misconduct, the policy

provides that Northwestern will protect “those individuals who provide information in good

faith about questionable conduct against reprisals.” The policy further provides that just as

it aims to protect complainants against retaliation, Northwestern is “equally concerned about

malicious or frivolous allegations made against our research community” and therefore

“performs a careful assessment of all allegations brought to the attention of institutional

officials.”

¶ 78 Taking into account the “good faith” language of the federal regulations, which was

adopted by Northwestern’s ORI policy, we believe that only qualified privilege protection

is contemplated for statements made in the context of a university research misconduct

proceeding. See Lee v. John Deere Insurance Co., 208 Ill. 2d 38, 43 (2003) (the plain

language of a statute or regulation is the best indicator of its intended meaning).

¶ 79 We find direct support for this conclusion in a 1993 position paper of the ORI, the federal

agency directly responsible for enforcing the aforementioned regulations.9 That position

paper, titled, “The Whistleblower’s Conditional Privilege to Report Allegations of Scientific

Misconduct” specifically states:

9

We note that neither party has cited this position paper in their briefs. When questioned

about the paper during oral arguments, counsel for Mauvais-Jarvis stated that he “thought the paper

had been removed or withdrawn.” Counsel, however, did not cite any authority, nor point this court

to any evidence whatsoever to support this position. Counsel for the defendants, on the other hand,

remained silent, offering no argument or citation to authority to either support or negate the

reliability of the opinion paper. Since the paper remains on ORI’s website and our research has

revealed nothing that would suggest that it has been withdrawn or removed, we will treat it as

persuasive authority. See Pickett v. Sheridan Health Care Center, 664 F.3d 632, 648 (7th Cir. 2011)

(holding that a court may take judicial notice of government websites, as long as the parties are given

an opportunity to be heard on the issue). In either event, our decision does not rest on the presence

or absence of the ORI position paper; rather, for the reasons further discussed in our opinion,

regardless of that position paper, we conclude that absolute privilege does not apply to statements

made in the context of a private university’s research misconduct proceedings.

-20-

“Consistent with PHS regulations, ORI believes that whistleblowers possess a

conditional [or qualified] privilege to disclose, in good faith to the proper institutional

or ORI officials, allegations of scientific misconduct. Such a conditional privilege would

protect whistleblowers from defamation claims even where the allegations ultimately

prove to be untrue. However, whistleblowers who abuse the privilege by making bad

faith allegations or by intentionally violating the confidentiality of accused parties may

not be protected from defamation claims.”10

There can be no clearer statement of an agency’s intent than this. See Chevron U.S.A. Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984) (holding that if a

statute or regulation is silent or ambiguous with respect to specific issue, a reviewing court

should defer to an agency’s interpretation of that regulation or statute, so long as the

interpretation is reasonable); Cotter & Co. v. Property Tax Appeal Board, 277 Ill. App. 3d

538, 542-43 (1995) (a reviewing court should overturn an agency’s interpretation of its own

regulation only if the interpretation is “ ‘clearly erroneous.’ ” (quoting LaBelle v. State

Employees Retirement System of Illinois, 265 Ill. App. 3d 733, 735-36 (1994))).

¶ 80 Our conclusion is further supported by decisions of other jurisdictions, which have

specifically addressed the applicability of privilege to defamation claims raised in the context

of research misconduct proceedings, and have consistently and exclusively applied qualified

privilege. See, e.g., Arroyo v. Rosen, 648 A.2d 1074 (Md. Ct. Spec. App. 1994) (rejecting

a university research associate’s request to extend absolute privilege to statements he made

about the department chairman’s alleged fabrication of data in a published scientific paper

to the investigatory committees of the university and later the Veterans’ Administration

(which had funded the chairman’s position); holding that only qualified privilege applied to

statements made in the context of a university research misconduct proceeding); see also

Chao v. Mount Sinai Hospital, No. 10-CV 2869(HB), 2010 WL 5222118 (S.D.N.Y Dec. 17,

2010) (refusing to consider whether absolute privilege attached to statements made by a

postdoctoral student accusing her employer and assistant professor of medicine of

misrepresenting data on a manuscript about to be submitted for publication because the

statements were subject to qualified privilege and qualified privilege provided grounds for

dismissal), aff’d, 476 Fed. Appx. 982 (2d Cir. 2012) (finding that the lower court properly

applied qualified privilege to statements made during the course of an investigation and

disciplinary proceedings related to allegations of research misconduct in the context of a

former professor’s action against the medical school and faculty members for defamation);

Chandok v. Klessig, 632 F.3d 803 (2d Cir. 2011) (applying only qualified privilege to

statements made by director of a medical laboratory about postdoctoral fellow’s alleged

scientific research misconduct).11 We agree with these decisions and are disinclined to

10

See http://ori.hhs.gov/images/ddblock/whistleblower_conditional.pdf .

11

We note that, aside from Mauvais-Jarvis’ citation to Chandok, 632 F.3d 803, and the

defendants’ brief response to it, neither party cites to or addresses any of the aforementioned cases.

Instead, the defendants cite to decisions from other jurisdictions which have applied absolute

privilege to statements alleging poor teacher performance in the educational setting. See Weissman

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broaden the scope of absolute privilege immunity to include statements made in the context

of a private university’s research misconduct proceedings.

¶ 81 The defendants nevertheless cite to Weber, 209 Ill. App. 3d at 942-48, Busch, 323 Ill.

App. 3d at 832-34, Anderson, 386 Ill. App. 3d at 247-50, and Goldberg v. Brooks, 409 Ill.

App. 3d 106, 112-13 (2011), for the proposition that statements made during the research

misconduct proceedings must be protected by absolute privilege because they were made

pursuant to an “affirmative duty to report.” We have reviewed those cases, however, and find

them inapposite.

¶ 82 In both Weber and Busch, the court extended absolute privilege to statements made “in

the discharge of a duty under express authority of law.” Weber, 209 Ill. App. 3d at 942,

Busch, 323 Ill. App. 3d at 833. In Weber, absolute privilege was extended to a letter sent by

an attorney to the chief judge of the circuit court and then published to the county board

alleging improper use of funds by the State’s Attorney because the attorney was under an

absolute duty to report such violations pursuant to the disciplinary rules of the Code of

Professional Responsibility. Weber, 209 Ill. App. 3d at 942-48. In Busch, the court applied

absolute privilege to statements made by four police officers against a crime scene

technician, alleging that the technician had acted outside the scope of his employment when

he threatened a suspect in a homicide investigation, because the statements were made during

an internal police disciplinary investigation and the officers were legally obligated to report

such behavior pursuant to a State Police directive. See Busch, 323 Ill. App. 3d at 833-34.

¶ 83 In extending absolute privilege to these situations, both the Weber and Busch courts

noted that their “greatest concern was ‘the mandatory nature of the [defendant’s] duty to

report.’ ” (Emphasis added.) Busch, 323 Ill. App. 3d at 834 (quoting Weber, 209 Ill. App. 3d

at 946). In Weber the court noted that “[i]f a lawyer fail[ed] to comply with [the rules

requiring disclosure of another attorney’s violation of the Code of Professional Conduct], he

or she fac[ed] professional discipline.” Weber, 209 Ill. App. 3d at 946. Similarly, in Busch,

the court noted that pursuant to the relevant State Police directive “ ‘[f]ailure [by the police

officers] to cooperate with a properly conducted internal investigation [could] result in

v. Mogol, 462 N.Y.S.2d 383 (N.Y. Sup. Ct. 1983) (applying absolute privilege to parents’ complaints

to the board of education alleging poor performance by a junior high school teacher); see also Martin

v. Kearney, 124 Cal. Rptr. 281 (Cal. Ct. App. 1975)) (applying absolute privilege to letters from

parents complaining about public school teacher’s performance to her supervisor). We find no

analogy between evaluations of a teacher’s performance and allegations of research misconduct.

What is more, contrary to the defendants’ assertions, our supreme court has specifically held, albeit

tangentially, that statements made within a university setting about a professor’s poor performance

are to be protected only by qualified, and not absolute, privilege. See Colson v. Stieg, 89 Ill. 2d 205,

209 (1982) (holding that statements made by a university department chairman about a former

assistant professor to a university personnel committee, that he had information that reflected

adversely on the professor’s performance as a teacher, were protected only by qualified privilege;

noting “[t]he circumstances surrounding the making of the statements in question are not such as to

require the protection of an absolute privilege, but instead, come within the accepted areas to which

a qualified privilege has been extended”).

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discipline and even separation from the department.’ ” Busch, 323 Ill. App. 3d at 834

(quoting Illinois State Police Directive PER-30, 92-52, ¶ V(c)).

¶ 84 Unlike in Weber, and Busch, in the present case, the defendants would not have incurred

any negative consequences as a result of their failure to report or investigate the alleged

research misconduct. Although the federal regulations impose an “affirmative duty” upon

institutional members to report and investigate misconduct (42 C.F.R. § 93.100 (2005)), and

Northwestern’s ORI policy states that all employees “should report” such misconduct,

nothing in either the federal regulations or Northwestern’s ORI policy compels an

individual’s disclosure. The federal regulations, themselves, extend only as far as the

institutions receiving the federal funds, by conditioning the receipt of those funds upon the

creation and implementation of policies and procedures to report and investigate misconduct.

The federal regulations, however, do not have any reach over individuals. By their explicit

language they do not purport to have enforcement power over an individual’s choice to report

scientific misconduct. Northwestern, similarly, has no reach over its employees. Although

it advises all of its employees that they “should” report research misconduct, it provides

Northwestern’s ORI with no authority to either compel or enforce individual reporting or to

punish those who fail to report. Accordingly, the duty to report here is not mandatory. Cf.

South 51 Development Corp. v. Vega, 335 Ill. App. 3d 542, 560-61 (2002) (“No universal

formula exists for differentiating between mandatory and directive statutory provisions.

[Citation.] While use of the word ‘shall’ ordinarily denotes a mandatory obligation [citation],

the term may take on a permissive or directive meaning depending on the legislature’s intent.

[Citations.] Generally if a statute imposes duties and by express terms provides that the

omission to perform the duties renders the proceeding void, then courts are bound to construe

those provisions as mandatory. Where, however, the statute provides that certain acts are to

be done in a particular time and a particular manner and does not declare their performance

to be essential to the validity of a proceeding, then the statute is directory. [Citations.]”).

¶ 85 Therefore, a report of research misconduct is not an act done “in the discharge of a duty

under express authority of law” (see Weber, 209 Ill. App. 3d at 942; Busch, 323 Ill. App. 3d

at 833), but rather one carried out in furtherance of a moral obligation, which, we find, is

more suitable for qualified privilege protection. See Prosser, supra, at 785 (noting that

qualified privilege requires that the protected statements be made by a person in “the

discharge of some public or private duty whether legal or moral” (emphasis added) (internal

quotation marks omitted)); Zych, 363 Ill. App. 3d at 834 (holding that qualified privilege

requires: “ ‘(1) good faith by the defendant in making the statement; (2) an interest or duty

to uphold; (3) a statement limited in its scope to that purpose; (4) a proper occasion; and (5)

publication in a proper manner and to proper parties only’ ” (emphasis added) (quoting

Kuwik, 156 Ill. 2d at 25)).

¶ 86 We similarly find the defendants’ reliance on Anderson, 386 Ill. App. 3d at 247-50,

misplaced. Contrary to the defendants’ position, the central issue in Anderson was not the

applicability of absolute privilege. See Anderson, 386 Ill. App. 3d at 247-50. Rather, in that

case, the parties agreed that absolute privilege applied to a female police officer’s letter to

her superintendent accusing a male officer of misconduct and sexual harassment because she

was under a duty to report misconduct. Anderson, 386 Ill. App. 3d at 249-50. The parties

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disagreed, however, as to whether absolute privilege also applied to the officer’s later

dissemination of that letter to her peers. Anderson, 386 Ill. App. 3d at 250. The court in

Anderson declined to extend absolute privilege to that situation, noting that the officer “was

not acting within the scope of her official duties or authority when she revealed the letter and

its contents to officers outside her chain of command.” Anderson, 386 Ill. App. 3d at 250.

¶ 87 We also reject the defendants’ reliance on Goldberg, 409 Ill. App. 3d at 112-13. In that

case, the court extended absolute privilege to statements made by a teaching assistant to a

public school principal that the school bus driver drove her against her will to three different

locations before starting the bus route, and the principal’s later statements to the school bus

driver’s employer that the bus driver was not a suitable person to work with children because

he had harassed the teaching assistant and had threatened to run over two children crossing

slowly in front of his bus. Goldberg, 409 Ill. App. 3d at 112-13. In extending the privilege

to both statements, the court found that in reporting the misconduct, both the principal and

the teacher had “acted within the scope of their public employment.” Goldberg, 409 Ill. App.

3d at 112. Since the present case does not involve public employees acting within the scope

of their duties, but rather a private university, Goldberg is not analogous.

¶ 88 For these same reasons, we reject the defendant’s reliance on Hartman v. Keri, 883

N.E.2d 774 (Ind. 2008). In Hartman, the Indiana Supreme Court extended absolute privilege

to complaints of sexual harassment by two Purdue University students against their professor

pursuant to the university’s antiharassment policy and through the university’s affirmative

action office. Hartman, 883 N.E.2d at 777-79. Hartman, however, is inapplicable since it

involved a public university and not a private institution, like Northwestern. See Hartman,

883 N.E.2d at 775. Hartman is also factually distinguishable because Purdue’s

antiharassment policy, which details the university’s process for reporting and investigating

allegations of sexual harassment, significantly differs from Northwestern’s research

misconduct proceedings. That policy explicitly provides that a student who makes false

allegations of sexual harassment is “subject to academic discipline for abuse of the process.”

Hartman, 883 N.E.2d at 778. In extending absolute privilege to allegations of sexual

harassment in the university context, the Indiana Supreme Court relied on this precise

provision of Purdue’s antiharassment policy, noting that “[i]n practical terms [it] is a

substantial deterrent to false reporting.” Hartman, 883 N.E.2d at 778. As already explained

above, there is no equivalent punishment for a researcher who falsely reports scientific

misconduct, either under Northwestern’s ORI policy or the federal regulations, so as to make

the research misconduct proceedings analogous to Purdue’s process for investigating sexual

harassment claims. Accordingly, we find the defendants’ citation to Hartman, unpersuasive.12

¶ 89 The defendants nevertheless argue that we should extend absolute privilege to statements

made in the context of a university’s research misconduct proceeding because such a

12

This same reasoning applies to our refusal to be persuaded by the decision of the Maryland

supreme court in Reichardt v. Flynn, 823 A.2d 566, 567 (Md. 2003), which similarly extended

absolute privilege to allegations of sexual harassment made by public high school students against

their coach.

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proceeding is quasi-judicial in nature, or in the very least, “necessarily preliminary” to a

quasi-judicial proceeding. For the reasons that follow, we disagree.

¶ 90 We acknowledge that in Illinois, absolute privilege protects statements made during

legislative, judicial and some quasi-judicial proceedings, as well as actions and statements

that are “necessarily preliminary” to such proceedings. Zych, 363 Ill. App. 3d at 835.

¶ 91 However, the defendants do not cite, nor has our research revealed, any Illinois case that

has found a quasi-judicial proceeding or a “necessarily preliminary” step toward one in a

proceeding before a private entity (which the parties concede Northwestern is) rather than

one involving a governmental agency or another type of state actor. See Weber v. Cueto, 209

Ill. App. 3d 936, 942 (1991) (“The class of absolutely privileged communications is narrow

and is practically limited to legislative and judicial proceedings and other acts of State,

including communications made in the discharge of a duty under express authority of law.”

(Emphasis added.)); see also Richardson v. Dunbar, 95 Ill. App. 3d 254, 257 (1981) (“The

[absolute] privilege adhering to testimony given in quasi-judicial proceedings encompasses

testimony given before administrative agencies or other governmental bodies when such

agencies or bodies are performing a judicial function. [Citations.]” (Emphasis added.)); see

also, e.g., Allen v. Ali, 105 Ill. App. 3d 887 (1982) (applying absolute privilege to statements

made before the Illinois Attorney Registration and Disciplinary Commission (ARDC) since

it acted as a quasi-judicial body); see also Kalish v. Illinois Education Ass’n, 157 Ill. App.

3d 969 (1987) (applying absolute privilege to a letter to the Illinois Supreme Court’s

Character and Fitness Committee for admission to the Illinois Bar because it acted in a quasi-

judicial capacity); Parker v. Kirkland, 298 Ill. App. 340 (1939) (applying absolute privilege

to statements made before the Board of Appeals of Cook County, since the board acted in

a quasi-judicial capacity); Kimball v. Ryan, 283 Ill. App. 456 (1936) (applying absolute

privilege to communications before the Chicago Board of Election Commissioners because

it is a quasi-judicial body); Krumin v. Bruknes, 255 Ill. App. 503 (1930) (applying absolute

privilege to statements made to the Naturalization Bureau of the United States Department

of Labor since it performs quasi-judicial functions); Thomas, 125 Ill. App. 3d 415 (applying

absolute privilege to a charge of sexual discrimination filed with the Equal Employment

Opportunity Commission (EEOC) because the EEOC is a quasi-judicial body); Starnes, 141

Ill. App. 3d 652 (applying absolute privilege to a letter attacking the integrity of a circuit

court judge sent to the Illinois Judicial Inquiry Board (JIB) since it acted in a quasi-judicial

capacity); Adco Services, Inc. v. Bullard, 256 Ill. App. 3d 655 (1993) (applying absolute

privilege to letters to the Central Midwest Interstate Low-Level Radioactive Waste

Commission and Illinois Department of Nuclear Safety as they are quasi-judicial bodies);

Parrillo, Weiss & Moss, 181 Ill. App. 3d 920 (applying absolute privilege to a letter to the

Illinois Department of Insurance since the letter was a preliminary step to a quasi-judicial

proceeding); but see Allen v. Ali, 105 Ill. App. 3d 887 (rejecting plaintiff’s request to extend

absolute privilege to letters written to the Chicago Bar Association and American Bar

Association because the two private organizations did not perform quasi-judicial functions).

¶ 92 Even if a private entity could be considered a quasi-judicial body, which we certainly do

not concede, in the present case, Northwestern’s ORI does not possess the requisite powers

necessary to act as such a body. In Illinois courts have identified six powers that differentiate

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a quasi-judicial body from one performing merely an administrative function. See Starnes,

141 Ill. App. 3d at 655. These are: (1) the power to exercise judgment and discretion; (2) the

power to hear and determine or ascertain facts and decide; (3) the power to make binding

orders and judgements; (4) the power to affect personal or property rights of private persons;

(5) the power to examine witnesses, to compel witness attendance and to hear the litigation

of issues on a hearing; and (6) the power to enforce decisions or impose penalties. See

Starnes, 141 Ill. App. 3d at 655. A quasi-judicial body need not possess all six powers;

however, the more powers it possesses the more likely it is acting in a quasi-judicial manner.

See Starnes, 141 Ill. App. 3d at 655.

¶ 93 Although Northwestern’s ORI has the power to exercise judgment and determine facts

in investigating research misconduct through the inquiry and investigation committees, it is

not authorized to compel witness attendance during those proceedings. Nor does

Northwestern’s ORI posses the power to make binding orders and judgments that affect the

personal or property rights of those found to have committed research misconduct. While it

is true that upon a finding of research misconduct, the provost may “determine and invoke

appropriate sanctions or disciplinary actions,” those sanctions may be imposed only “within

[the confines of] the university.” For these reasons, we cannot find that Northwestern’s ORI

possesses the requisite powers of a quasi-judicial body. See Starnes, 141 Ill. App. 3d at 655.

¶ 94 Nor can we hold that the proceedings before Northwestern’s ORI are a step “necessarily

preliminary” to a quasi-judicial proceeding, particularly since the federal ORI must, of its

own accord, choose to become involved by making its own finding of research misconduct,

filing a formal charge letter and proposing and obtaining HHS approval for “administrative

actions” against the respondent (42 C.F.R. §§ 93.400, 93.404 to 93.405, 93.500 to 93.501

(2005)).13 See Zych, 363 Ill. App. 3d at 836 (holding that only qualified, rather than absolute,

privilege applied to a defamatory letter that an arrestee sent to the office of internal affairs

(OIA) of the sheriff’s department, accusing the arresting officer of using excessive force;

finding that a complaint to the OIA was not necessarily preliminary to a proceeding before

the sheriff’s merit board, which was authorized by statute to suspend a member of the police

force, because the OIA was not charged with the duty to file charges against an officer with

the merit board and because “[n]othing in the record support[ed] the conclusion that [it]

ha[d] any power other than to investigate complaints against a member of [the police] and

make recommendations to the sheriff who, in turn, [was authorized to] determine whether

to suspend a member *** or file written charges with the Board”).

¶ 95 In that respect, we are mindful that the ORI, the federal agency directly responsible for

creating and implementing the regulations concerning the reporting and investigation of

research misconduct, explicitly recognizes that institutional research misconduct proceedings

generally do not rise to the level of judicial or quasi-judicial proceedings. See Office of

13

In that respect, we also note that the federal regulations explicitly state that the parties to

any “administrative hearing” initiated by a respondent seeking to challenge an ORI finding of

research misconduct or any HHS administrative action are only the respondent and the ORI and not

the institution where the research misconduct proceedings were initiated. See 42 C.F.R. § 93.505

(2005).

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Research Integrity, Position Paper #1, The Whistleblower’s Conditional Privilege to Report

Allegations of Scientific Misconduct (Dec. 1993),

http://ori.hhs.gov/images/ddblock/whistleblower_conditional.pdf (“An absolute privilege

applies only in legislative and judicial proceedings. Allegations of scientific misconduct

usually occur in a pre-adjudicatory context, and thus do not trigger an absolute privilege.

Nevertheless, the whistleblower may claim a conditional privilege.” (Emphasis in original.)).

¶ 96 In addition, we note that those jurisdictions that have explicitly addressed the

applicability of absolute privilege to university research misconduct proceedings have

refused to define such proceedings as quasi-judicial, noting that they lack the requisite

procedural safeguards to protect those accused of research misconduct. See, e.g., Arroyo, 648

A.2d at 1077-78 (holding that statements that a university research associate made about the

department chairman’s alleged fabrication of data in a published scientific paper to the

investigatory committee of the university were not absolutely privileged for purposes of the

chairman’s defamation action against the associate; holding that the proceedings lacked the

requisite safeguards to qualify as judicial or quasi-judicial, since, inter alia, the complaint

commencing the proceedings was not made under oath, the proceedings were not public, the

witnesses were not under oath or subject to cross-examination, and discovery was not

available).

¶ 97 In the present case, Northwestern’s ORI procedures, formulated on the basis of the

federal regulations, establish only minimal due process protection for individuals accused

of research misconduct, both during the inquiry and investigation stages. Although the

procedures require that the respondent be placed on notice of the charges and the results of

each step in the process, as well as given an opportunity to comment, they do not grant the

respondent the right to subpoena witnesses or otherwise gather evidence, or the opportunity

to confront or cross-examine their accusers. See 42 C.F.R. §§ 93.310 to 93.313 (2005).

Rather, those kinds of safeguards become available only after the federal ORI decides to get

involved by making its own finding of research misconduct, filing a formal charge letter

against the respondent, and proposing and obtaining HHS approval for “administrative

actions” against the respondent. See 42 C.F.R. §§ 93.400, 93.404 to 93.405 (2005); see also

42 C.F.R. §§ 93.500, 93.501, 93.505 (2005) (a respondent can contest the ORI’s finding of

research misconduct and the HHS administrative actions by requesting an “administrative

hearing” before an ALJ; the parties at that hearing will be the respondent and the ORI; during

such an administrative hearing, the parties are permitted to: (1) be represented by counsel;

(2) conduct discovery; (3) present relevant evidence and cross-examine witnesses; (4) agree

to a stipulation of facts (5) file motions in writing and (6) make oral arguments). For all of

these reasons, we are disinclined to define Northwestern’s internal research misconduct

proceedings as quasi-judicial or preliminary to a quasi-judicial proceeding.

¶ 98 The defendants nevertheless contend that public policy necessitates the extension of

absolute privilege to statements made about research misconduct because society has a vital

interest in the soundness of scientific research and because the “need for protection is greater

in the educational setting where the subject of the complaint–the educator–is in a position

of authority over the student, so fear of retaliation presents a potential obstacle to open airing

of grievances.” We disagree.

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¶ 99 As already articulated above, Northwestern’s ORI policy, modeled after the federal

regulations, recognizes the need for and strikes a balance between protecting complainants

and whistleblowers, by enforcing strict rules of confidentiality and maintaining the integrity

and reputation of its scholars by requiring “good faith” in reporting misconduct. The policy

provides sufficient protection to whistleblowers by broadly encouraging reports of any

“observed, suspected or apparent research misconduct,” and by specifically providing that

Northwestern will afford protection against reprisals to any individual who “provide[s]

information in good faith about questionable conduct.” On the other hand, the policy states

that Northwestern is “equally concerned about malicious or frivolous allegation made against

[its] research community” and therefore “performs a careful assessment of all allegations

brought to the attention of institutional officials.” Accordingly, contrary to the defendants’

assertions, absolute privilege is not necessary in the context of a private university research

misconduct proceeding. In fact, the extension of such privilege to protect those statements

not made in good faith would only hinder investigation into and prevention of scientific

misconduct, since it would burden the university’s ORI with investigations into baseless

complaints by disgruntled or malicious parties. Public policy is therefore better served by the

rule of qualified privilege, since it encourages open communications on matters of research

misconduct while not shielding the use of such communications for an individual’s malicious

purposes. See Prosser, supra, at 777 (“Absolute immunity has been confined to a very few

situations where there is an obvious policy in favor of permitting complete freedom of

expression, without any inquiry as to the defendant’s motives.”).

¶ 100 Accordingly, for all of the aforementioned reasons, we reject the defendants’ invitation

to extend absolute privilege to statements made in the context of a university’s research

misconduct proceedings. Instead, we find that such statements can only be protected by

qualified privilege. See Arroyo v. Rosen, 648 A.2d 1074; see also Chao, 2010 WL 5222118,

aff’d, 476 Fed. Appx. 982; Chandok, 632 F.3d 803.

¶ 101 We now apply this holding to the facts of this case to determine whether the allegedly

defamatory statements made by the defendants during the research misconduct proceedings

are in fact protected by qualified privilege so as to justify the dismissal of Mauvais-Jarvis’

claims. The parties agree that there are only three allegedly defamatory per se statements at

issue: (1) Wong’s July 22, 2010, statement in an email to Qualkenbush confirming that

Mauvais-Jarvis told her that the lives of five people in his laboratory depended on what she

told the first inquiry committee and that he instructed her to lie to the committee that Oeser

was responsible for the falsified images in figures 6C and 6H of the manuscript; (2)

Qualkenbush’s second charge letter against Mauvais-Jarvis, accusing him of making up data

in figure 4F and instructing Wong to lie to the initial inquiry committee regarding figures 6C

and 6H, which was “published” on December 17, 2010, to two senior medical school

administrators; and (3) Walsh’s June 3, 2011, letter to Mauvais-Jarvis containing those same

allegations, written after the second inquiry committee concluded that the allegations

warranted a full investigation, which Qualkenbush “published” by forwarding it to two senior

administrators in the medical school.

¶ 102 We note, with some surprise, that the defendants do not argue in the alternative, nor did

they before the circuit court, that if we reject their invitation to extend absolute privilege to

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the allegedly defamatory statements, they should nonetheless be protected by qualified

privilege. Nor do they offer any argument whatsoever as to why the three allegedly

defamatory statements are in fact protected by qualified privilege so as to permit us to affirm

the judgment of the circuit court on that ground. It is well settled that “issues not raised in

the trial court are deemed forfeited and may not be raised for the first time on appeal.”

Martinez v. River Park Place, LLC, 2012 IL App (1st) 111478, ¶ 29; People v. Phillips, 215

Ill. 2d 554, 565 (2005).

¶ 103 Although it is axiomatic that we review the judgment of the lower court, and not its

reasoning and therefore may uphold the court’s judgment on any grounds called for by the

record (Lane v. Kalcheim, 394 Ill. App. 3d 324, 331 (2009)), in reviewing a motion to

dismiss we must, nevertheless, accept all the well-pleaded allegations and reasonable

inferences therefrom in the light most favorable to the nonmoving party–here, Mauvais-

Jarvis. See Sandholm v. Kuecker, 2012 IL 111443, ¶ 55. Since the record before us contains

no answer to the complaint or any other pleadings by the defendants denying Mauvais-Jarvis’

detailed allegations of recklessness and malice by Wong, Walsh and Qualkenbush in making

the aforementioned statements, we have no basis upon which to determine that they were in

fact protected by qualified privilege. See, e.g., People v. Universal Public Transportation,

Inc., 2012 IL App (1st) 073303-B, ¶ 50 (a reviewing court “is not a repository” into which

a party “may foist the burden of argument and research” (internal quotation marks omitted));

People v. Universal Public Transportation, Inc., 2012 IL App (1st) 073303-B, ¶ 50 (nor is

it the function or obligation of this court to act as an advocate or search the record for error).

In that respect, we disagree with the circuit court’s assessment that “there is no basis to find

defendants went to [Northwestern’s ORI] with a desire to cause Mauvais-Jarvis harm,” or

that there were “no allegations and knowing that they acted in bad faith.” Mauvais-Jarvis’

complaint sets forth detailed allegations of “ill-will” and “malice” by all three defendants to

the defamation count. Specifically, the complaint alleges: (1) that Wong acted in retaliation

for being terminated; and (2) that Walsh and Qualkenbush acted in reprisal after Mauvais-

Jarvis sought redress with the University provost and accused Northwestern’s ORI of

violating his rights both under Northwestern’s ORI policies and the federal regulations.

Under this record, we are compelled to reverse the circuit court’s dismissal of Mauvais-

Jarvis’ defamation claims and permit the case to proceed with discovery on that issue.

¶ 104 B. Civil Conspiracy

¶ 105 We next address whether the circuit court properly dismissed Mauvais-Jarvis’ civil

conspiracy counts against Wong, Oeser, and Levine on the basis of it being time-barred. The

parties agree that the conspiracy to defame claim against these three defendants is based upon

statements they made in 2008, when the initial research misconduct allegations were brought

to the attention of Northwestern’s ORI by Levine and Oeser. The parties also agree that

Mauvais-Jarvis did not file his complaint until three years later, in 2011. The parties dispute,

however, which statute of limitations applies to this cause of action.

¶ 106 The defendants contend that the one-year statute of limitations for defamation claims

found in section 13-201 of the Civil Procedure Code (735 ILCS 5/13-201 (West 2008)) is

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applicable. That section provides in full:

“Defamation–Privacy. Actions for slander, libel or for publication of matter violating the

right of privacy, shall be commenced within one year next after the cause of action

accrued.” 735 ILCS 5/13-201 (West 2008).

¶ 107 Mauvais-Jarvis, on the other hand, argues that since the Civil Procedure Code does not

contain a distinct statute of limitations provision for civil conspiracy claims, such claims

should necessarily fall under the five-year “catch-all” limitations period provided for in

section 13-205 of the Code (735 ILCS 5/13-205 (West 2008)). That section provides in full:

“Five year limitation. *** [A]ctions on unwritten contracts, expressed or implied, or on

awards of arbitration, or to recover damages for an injury done to property, real or

personal, or to recover the possession of personal property or damages for the detention

or conversion thereof, and all civil actions not otherwise provided for, shall be

commenced within 5 years next after the cause of action accrued.” (Emphasis added.)

735 ILCS 5/13-205 (West 2008).

¶ 108 For the reasons that follow, we disagree with Mauvais-Jarvis and find that his civil

conspiracy claim against Wong, Oeser and Levine was properly dismissed as time-barred

pursuant to section 13-201 of the Civil Procedure Code (735 ILCS 5/13-201 (West 2008)).

¶ 109 It is well settled that conspiracy, standing alone, is not a separate and distinct tort in

Illinois. See Weber v. Cueto, 253 Ill. App. 3d 509, 518 (1993) (citing Olsen v. Karwoski, 68

Ill. App. 3d 1031, 1037 (1979)); Thomas v. Fuerst, 345 Ill. App. 3d 929, 936 (2004)

(“Conspiracy is not an independent tort.”); see also Illinois Traffic Court Driver

Improvement Education Foundation v. Peoria Journal Star, Inc., 144 Ill. App. 3d 555, 562

(1986) (“[T]he mere allegation of a conspiracy does not in and of itself constitute an

allegation of wrongful acts upon which liability may be predicated. Rather, it is the act

performed in pursuance of the agreement that may create liability.”); see also Adcock v.

Brakegate, Ltd., 164 Ill. 2d 54, 63 (1994) (“An agreement to commit a wrongful act is not

a tort, even if it might be a crime. [Citation.] A cause of action for civil conspiracy exists

only if one of the parties to the agreement commits some act in furtherance of the agreement,

which is itself a tort.”).

¶ 110 Because it is the underlying tortious acts performed pursuant to the agreement that give

rise to a claim for civil conspiracy, it is logical that a conspiracy claim itself be governed by

the statute of limitations for the underlying tort. See 15 C.J.S. Conspiracy § 26, at 1043

(2013) (Unless a jurisdiction provides an independent statute of limitations for civil

conspiracy, “[t]he statute of limitations for a civil-conspiracy claim is determined by the

nature of the underlying conduct on which the claim of conspiracy is based. *** A claim

alleging civil conspiracy is thus time-barred if the substantive tort underlying it was time-

barred.”). Otherwise, a plaintiff could evade the applicable statute of limitations for the

underlying tort by simply recasting his or her claim as a “conspiracy” to perform that tort.

¶ 111 What is more, the few Illinois decisions that have addressed the appropriate statute of

limitations for a conspiracy to defame action have applied the one-year statute of limitations

for defamation pursuant to section 13-201 of the Civil Procedure Code (735 ILCS 5/13-201

(West 2008)). See, e.g., Weber, 253 Ill. App. 3d at 522 (upholding the dismissal of a civil

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conspiracy claim where the one-year statute of limitations had expired on the underlying,

allegedly defamatory statements); Zielinski v. Schmalbeck, 269 Ill. App. 3d 572, 581 (1995)

(applying the one-year statute of limitations for defamation to both the plaintiff’s defamation

and civil conspiracy to defame counts).

¶ 112 In rejecting Mauvais-Jarvis’ request to apply the five-year catch-all statute of limitations,

we have reviewed Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958), and Breitenberger v.

Schmidt, 38 Ill. App. 168 (1890), cited to by him, and find them inapposite.

¶ 113 Wakat involved a cause of action brought pursuant to the federal Civil Rights Act, and

not a state law conspiracy claim. The court in Wakat held that because the civil rights action

was based upon the federal Civil Rights Act, it was a statutory right of action and thus a

“civil action not otherwise provided for” within the meaning of the five-year statute of

limitations pursuant to section 13-205 of the Civil Procedure Code (735 ILCS 5/13-205

(West 2008)).

¶ 114 Unlike Wakat, the present case does not involve a statutory right, but rather a common

law conspiracy claim. While there is no question that the rights and liabilities of the parties

to a federal civil rights action derive solely from the statute that creates it, the rights and

liabilities of the parties to a civil conspiracy action, do not derive either from a statute or

from a stand-alone common law tort. Rather, an action for conspiracy is derivative of the

underlying tort. See Employers Insurance of Wausau v. Ehlco Liquidating Trust, 309 Ill.

App. 3d 730, 747-48 (1999) (refusing to apply the 5-year “catch-all” statute of limitations

to an action for declaratory judgment by an insured’s liquidating trust regarding the duty to

defend under an insurance contract, and instead applying the 10-year limitations statute for

actions on written contracts; distinguishing Wakat on the basis that the parties’ rights and

liabilities did not derive from the statute creating the declaratory judgment action, but rather

from the contract which created them).

¶ 115 We similarly find Mauvais-Jarvis’ reliance on Breitenberger misplaced. That decision

was published in 1890 and therefore carries no precedential weight. See, e.g., Reichert v.

Court of Claims, 203 Ill. 2d 257, 262 n.1 (2003) (noting that “appellate court decisions

issued prior to 1935 are persuasive authority only”); Bryson v. News America Publications,

Inc., 174 Ill. 2d 77, 95 (1996) (noting that “[a]ppellate court decisions issued prior to 1935

ha[ve] no binding authority”). Furthermore, contrary to Mauvais-Jarvis’ contention that case

does not stand for the proposition that a conspiracy to defame claim is governed by the

“catch-all” five-year statute of limitations. Rather, Breitenberger involved a conspiracy to

deprive the plaintiff of his interest in a partnership and the related claim of action to trespass.

See Breitenberger, 38 Ill. App. at 175-76. The court therein held that conspiracy as a cause

of action was not included in the statute limiting time for suit to two years, but “might be

held to be within the clause ‘and all civil actions not otherwise provided for,’ in the section

which fixes the limitation at five years.” (Emphasis added.) Breitenberger, 38 Ill. App. at

177. Considering the court’s use of the conditional language in applying the five-year statute

of limitations, we find this case unpersuasive.

¶ 116 For all of the aforementioned reasons, we conclude that the circuit court properly applied

the one-year statute of limitations in section 13-201 of the Civil Procedure Code (735 ILCS

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5/13-201 (West 2008)) to Mauvais-Jarvis’ civil conspiracy claims against Wong, Oeser and

Levine.

¶ 117 III. CONCLUSION

¶ 118 Accordingly, we affirm that part of the circuit court’s order dismissing, as time-barred,

Mauvais-Jarvis’ civil conspiracy claims. We, however, reverse that part of the circuit court’s

order dismissing Mauvais-Jarvis’ defamation actions against Wong, Qualkenbush, Walsh

and Northwestern and remand for further proceedings on those claims.

¶ 119 Affirmed in part and reversed in part; remanded for further proceedings.

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