A judge has taken under advisement two possible final issues in a whistleblower case against Augusta University filed by a research scientist who was searching for a possible cure or treatment for blindness.
The Richmond County Superior Court lawsuit was filed Aug. 10, 2016, by Jay Hegde against the Georgia Board of Regents. Hegde was hired as an assistant professor for the Department of Ophthalmology, Brain and Behavior Discovery Institute, Vision Discovery Institute, and the College of Graduate Studies in September 2008.
From January 2009 Hegde was involved in a neuroscience research project investigating the neural activity of monkeys. According to the lawsuit, inserting a brain post into a monkey’s skull allowed for the real-time tracking of neural events as they occurred during various tests.
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On Jan. 7, 2014, one of Hegde’s research monkeys, Ovechkin, died after a routine cranial surgery. Hegde suspected the cause of Ovechkin’s death was an overdose of narcotics administered by a veterinarian working in the research lab. Hegde requested a blood sample for a toxicology test.
Hedge contends in the lawsuit that the monkey’s death should have been reported to the Institutional Animal Care and Use Committee in compliance with its rules and the law governing the treatment of research animals, the Animal Welfare Act.
On Jan. 27, 2014, Hegde was told the blood test results were “accidently shredded.”
Hegde contends that he pushed for a thorough investigation into the cause of Ovechkin’s death to ensure the health of other research animals was protected, and that he and others, whose research costs were covered by National Science Foundation grants, were protected. If the rules regarding the treatment of research animals were not followed, all research grants funding animal research at the school would be in jeopardy, according to the lawsuit.
According to local news reports in late 2013, the Humane Society of the United States accused the university of mistreating dogs and later monkeys, causing the animals unnecessary stress and harm. A protest was held, and the school’s management found itself defending the treatment of research animals as being not only humane but necessary in the search for significant medical breakthroughs for humans. A year earlier, the university was cited for the lack of temperature control in the area where dogs were kept, and the facility became uncomfortably hot.
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According to Hegde’s lawsuit, he went to James Rush, the school’s compliance officer. Rush published his findings on Hegde’s complaints June 16, 2015. According to other court filings in the case, a Faculty Grievance Committee received the report and recommended remedial action on Hegde’s behalf. However, President Brooks Keel declined to act.
Less than two months after the committee ruled in Hedge’s favor, according to the lawsuit, the school notified the National Science Foundation it needed to terminate Hedge’s funding.
In response to Hegde’s lawsuit, the school’s attorneys of the Georgia Attorney General’s office responded that the school had acted in all respect concerning Hegde in a lawful and fair manner. Any action taken that adversely affected Hegde was done for legitimate, non-retaliatory reasons.
In September 2018, the university asked the judge to stay, or stop, the discovery process. About 200,000 pages of documents had been exchanged and hundreds of thousands of dollars spent. The school wanted the discovery halted until the judge at least ruled on its motion for summary judgment based on what its attorneys contended was the expiration of the statute of limitations. Then-Judge Michael M. Annis denied the motion Nov. 3, 2018.
On April 24, 2019, Hegde’s attorney asked for DNA testing of what the university said was brain tissue samples taken from Ovechkin. Hegde questioned if the samples were properly maintained for testing and if the tissue samples were from Ovechkin, the monkey that died, or another animal.
In response, the school’s attorney said it was impossible because the testing lab had disposed of the samples. After Hegde’s attorney, Tanya Jeffords, spoke to the testing lab staff and learned the samples were still available, the school protested that it was too late in the legal proceeding, that Hegde should have requested the test during the two years of discovery. Now Hegde was just harassing the university and delaying the conclusion of the case, its lawyers protested.
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This year, on April 11, the school filed a motion asking the judge to deny Hegde’s request for a jury trial. The lawyers contend the Georgia Whistleblower Act does not specifically provide for jury trials, and under sovereign immunity, the state is within its rights to object to a jury trial in what was essentially an employee issue in a right-to-work state.
Hegde’s attorney responded that the state’s request, which would mean a bench trial before a judge instead of a jury, was made five and half years too late. In researching the issue, Jeffords wrote that she found no appellate ruling in Georgia on the issue, but she did find that jury trials have been held in other whistleblower cases against state entities.
On July 27, Judge Jesse Stone heard arguments from both sides over the issue of DNA testing of the tissue samples, and the issue of a jury trial. He took both matters under advisement and will issue rulings when he reaches his decisions.
Sandy Hodson is a staff reporter covering courts for The Augusta Press. Reach her at sandy@theaugustapress.com.
