Sarka Southern, Ph.D. v. Regents of the University of California

Business Litigation

Case Summary:

A $1,502,106.00 jury verdict in a Third Party Beneficiary/Breach of Contract trial. Our client was Dr. Sarka Southern, Phd. A Czech immigrant, Dr. Southern was accepted at UCSD as a post-doctoral fellow in microbiology. After raising two children and studying fishing stress on dolphins and whales she realized that the stress factors she discovered could be useful in the detection and treatment of HIV/AIDS. After presenting her theories to UCSD they agreed to assign her a mentor so that she could receive a short-term developmental grant related to research leading to a NIMH Re-entry grant intended to help scientists who had been away from academia. Inexplicably, on May 9, 2004, only four months after the grant award, Dr. Ellis returned the money to the NIH and informed Dr. Southern that he had done so. The given reason was that he had determined that her project was not feasible. For a month, Dr. Southern worked to reinstate the grant or find an explanation. Then, on June 10, 2004, the dean of the medical school informed Dr. Southern that neither he nor anyone else at UCSD intended to provide any further assistance. Dr. Southern was left with a year and a half of her work wasted.

Plaintiff’s Technical Expert Witnesses:
Douglas Anderson, 2550 Fifth Avenue, Suite 637, San Diego, CA 92103 (Economist); Dr. Michael Storrie-Lombardi, Kinohi Institute, 530 South Lake Avenue, Suite 117, Pasadena, CA 91101 (Scientific Grants)

Defendant’s Technical Expert Witnesses:
Edward Bennett, Coast Rehabilitation, 5290 Overpass Road, Suite 118, Santa Barbara, CA 93111 (Vocational Rehabilitation); Brian Brinig, 101 West Broadway, Suite 1970, San Diego, CA 92101 (Economist)

Defendant Insurance: None

Date, Time and Place of Incident(s): University of California San Diego, 2004

Facts and Background:
Plaintiff Sarka Southern grew up and was educated in Czechoslovakia. She came to the United States in 1982 on an exceptional ability United States residency visa and was accepted at UCSD as a post-doctoral fellow in molecular biology. Seven years later, she moved with her husband and her young family to Minnesota. During that time, she did not work for a salary, but instead stayed home to raise her two children. After a divorce, she returned, with her children, to San Diego. At that time, in 1998, she accepted a position at Southwest Fisheries, studying stress on dolphins and whales as a result of tuna fishing. She finished that project in 2002 and discovered that the same stress factors affecting the dolphins could be useful in the detection and treatment of HIV and cancer patients.

In the spring of 2002, Dr. Southern began to discuss HIV research with Dr. Allen McCutchan, a professor of medicine at UCSD. She knew that she would need additional funding to accomplish the research and accordingly began investigating available research grants. Most scientific research is conducted using research grants issued by government agencies or, more rarely, by private organizations. Dr. McCutchan assisted Dr. Southern in obtaining a short-term UCSD developmental grant related to research to develop an NIH reentry grant. Recognizing the short-term nature of that grant, Dr. McCutchan introduced Dr. Southern to another UCSD professor, Dr. Ronald Ellis, intending that Dr. Ellis act in a mentoring capacity as a part of an application for an National Institute of Mental Health (“NIMH”) Re-Entry Grant. UCSD and other research institutions benefit from participation in research grants because they receive compensation for administering the grant and, more importantly, because they can take credit for scientific discoveries and studies that result from the grant projects – without having to fund the research.

NIMH Re-Entry Grants are intended to help scientists who have been away from academia to return to the grant cycle. A mentor is required because the presumption underlying the grant is that the applicant needs to be guided back into the field. The National Institute of Health (“NIH”) describes the objectives of the Re-Entry grant as follows:

The NIH recognizes the need to increase the number of under-represented racial and ethnic groups, women, individuals with disabilities, and people from disadvantaged backgrounds in biomedical, behavioral, clinical and social science research careers. Among the reasons for the low representation of women may be the fact that women bear a majority of the responsibilities surrounding child and family care. To address this issue, this program is designed to offer opportunities to women and men who have interrupted their research careers to care for children or parents or to attend to other family responsibilities. A second objective of the program is to mentor and guide those who receive support to reestablish careers in biomedical, behavioral, clinical or social science research.

In reviewing Re-Entry Grant applications, the NIMH places particular emphasis on whether “the Principal Investigator understands the importance of the mentoring component of this supplement and has prepared a mentoring plan.” The NIMH does not even review a re-entry grant application until it has determined – as it did here – that the applicant and the proposed mentor fit within this classification. Dr. Southern was one of the rare few who qualified.

Dr. Ellis and Dr. Southern jointly prepared the Re-Entry Grant application during 2003. The actual application was submitted in October 2003. The Grant was awarded on January 8, 2004. Most of the grant funds were earmarked as salary for Dr. Southern, who had been working without pay during 2003. The money was, as they say, in the bank.

Inexplicably, on May 9, 2004 – only four months after the grant award – Dr. Ellis returned the money to the NIH and informed Dr. Southern that he had done so. The given reason was that he had determined that her project was not “feasible.” For a month, Dr. Southern worked to reinstate the grant or find an explanation. Then, on June 10, 2004, the dean of the medical school informed Dr. Southern that neither he nor anyone else at UCSD intended to provide any further assistance. Dr. Southern was left with a year and a half of her work wasted.

Plaintiff’s Contentions, Allegations:
Dr. Southern alleged that UCSD breached its contract to administer her grant and provide her with mentoring during the grant period.

Injuries and/or Damages:
Plaintiff provided evidence of between $700,000 and $2.3 million in damages from lost past and future income. Plaintiff provided evidence of past lost income and future lost income because as a result of the grant being returned she was deprived of the income she should have had in 2004 and also, as per the grants expert, she will not be funded again because she now has a negative history of having a grant returned and also lacks the support of her most recent employer — UCSD.

Defense:
Defendant contended that Dr. Southern had not done enough work under the grant to entitle her to be paid her salary and that the grant was returned because Defendant believed that no work would ever be done during the two year grant period.

Verdict or Award: $1,502,106.00

Length of Trial: 21 days

Jury: deliberated one day

Attorney for client: Vincent J. Bartolotta, Jr and Karen Frostrom

Attorney for defendant:
John Adler and Lara Strauss
Littler Mendelson
501 West Broadway, Suite 900, San Diego CA 92101. 619-232-0441

Individual Defendants: Regents of the University of California (UCSD)

Civil Trial Lawyers

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