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September 11, 1997

Fisher drops suit in exchange for apology, $2.75 million; University administrators credited with bringing about settlement

According to an attorney for Pitt breast cancer researcher Bernard Fisher, the University of Pittsburgh will pay "little, if any" of the $2.75 million settlement that Fisher will receive in return for dropping his lawsuit against the University and 13 other defendants.

Joseph A. Katarincic, of the Downtown firm of Katarincic & Salmon, credited Pitt Chancellor Mark A. Nordenberg and members of his administration with "really grabbing this bull by the horns and, through their efforts, bringing about this settlement. The University administration took it upon itself to get the different defendants to make contributions to the settlement.

"Little, if any, of the $2.75 million is coming from the University itself. The great majority of it is coming from the other defendants," Katarincic said. "Beyond that, I don't know who's paying what." Previous press stories reported that Pitt would pay $2.75 million to Fisher, while the National Cancer Institute would provide an additional $300,000 toward his legal fees. But Katarincik said the settlement totaled $2.75 million, with Pitt paying a minimal share.

Fisher declined to comment on the financial terms of the settlement, citing "confidentiality obligations." The University administration released the following written statement: "The agreement in question represents a good faith effort to resolve what has been a difficult matter for all parties. To facilitate settlement, the University has agreed to serve as the distributor of a settlement fund established by various parties. Consistent with the confidentiality obligations assumed by all parties under the agreement, the University has no further comment." Fisher's lawsuit had been scheduled to go to trial Sept. 2. But Fisher, a Distinguished Service Professor of Surgery at Pitt, withdrew the suit Aug. 27 in return for the $2.75 million settlement and an official apology from the University for "any harm or public embarrassment" it caused him.

Fisher had filed the suit in federal court three years ago against Pitt, four federal agencies and a number of individuals after the University acceded to the National Cancer Institute's demand that Fisher be removed as chairperson and principal investigator of the National Surgical Adjuvant Breast and Bowel Project (NSABP), a large federally funded breast cancer research group. Fisher had chaired NSABP for 27 years.

Fisher alleged in his lawsuit that the defendants violated his constitutional rights to due process by removing him. He had sought unspecified monetary damages, an injunction barring the restrictions placed on him by the federal government, and an assurance that he be allowed to continue his breast cancer research unimpeded.

Fisher's removal as NSABP chairperson came four months after the Chicago Tribune reported that a Montreal surgeon submitted falsified data to a multi-center NSABP study headed by Fisher.

Re-analyses by NSABP and the National Cancer Institute showed that the fraudulent data did not change the conclusions of the NSABP's research. Among those studies was a landmark 1985 project that showed the less disfiguring lumpectomy surgery, with follow-up radiation treatment, is as effective as removing the entire breast in preventing the spread of early forms of the disease in many women.

Fisher's staff had detected the discrepancies in the Montreal data and reported them to the federal government, but National Cancer Institute officials accused Fisher of dragging his feet in publishing a corrected version of the study findings.

Also in 1994, the federal Office of Research Integrity (ORI) filed charges of scientific misconduct against Fisher and two colleagues. The charges alleged that the NSABP researchers published study findings that they knew contained false data. Following a three-year investigation, the ORI cleared Fisher and his colleagues of those charges last spring.

As part of the lawsuit settlement, Pitt and Fisher jointly released an unsigned statement in which the University expressed its "sincere regret at any harm or public embarrassment that Dr. Fisher sustained which was in any manner related to the activities of the University of Pittsburgh and/or its employees. The University and Dr. Fisher wish to affirm that at no time was Dr. Fisher found to have engaged in any scientific or ethical misconduct concerning any of his work." For the text of the Aug. 27 statement by Pitt and Fisher, see page 4.

Fisher's attorney Katarincic praised Chancellor Nordenberg, Assistant Chancellor Jerome Cochran and University of Pittsburgh Medical Center President Jeffrey Romoff for leading the effort to settle the lawsuit out of court. "I'm sure if the old [Pitt] administration had still been around this would have lingered and blown up in the face of the University when we went to trial," Katarincic said. "But this current administration managed the problem very well, which is something you don't often see in these types of disputes which are so overridden with emotions and personal feelings." According to Katarincic, a public trial would have been "devastating" to the National Cancer Institute, and to a lesser extent to Pitt, both financially and in terms of negative publicity.

Nordenberg said that avoiding a public trial was "a positive byproduct of the settlement" but not Pitt's overriding concern. "We were driven more by a desire to bring this matter to an end and to create a more appropriate set of relationships with a distinguished graduate and member of the faculty," Nordenberg said. "Obviously, no one was looking forward to a public trial. It would not, in the end, have benefited any party on any side, in my view." Nordenberg declined to discuss specifics of the settlement or his role in reaching it. "I really don't feel that I'm in a position to comment on that. I was determined to do what I could from this position to bring this unfortunate chapter in Dr. Fisher's life and in the life of the University to the most satisfactory possible close, and I am pleased to see that that has happened. I hope that my future contact with Dr. Fisher is frequent, pleasant and productive, and I hope the same is true of his relationships with other people on campus." University Senate President Gordon MacLeod commented: "The University Senate has supported Bernie Fisher all along against the indignities he has suffered at the hands of the Congress, the National Cancer Institute and the University of Pittsburgh. I think it was appropriate that some kind of a justifiable settlement be made for that kind of maltreatment. It was a generous settlement, but not inappropriate. I have not heard anyone criticize it." James Holland, who was Senate president during the 1994 NSABP controversies, said: "I was very pleased to see the University's apology. I think it's a good sign. The one thing I would like is for the University to reiterate it outside the context of heading off a court battle, and I have no reason to think that won't happen."

— Bruce Steele

Filed under: Feature,Volume 30 Issue 2

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