AR-News: UW paid big bucks to settle lawsuit alleging 'cruel and improper treatment' of Primate Center monkeys

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From: primfocus at waste.org
Subject: primfocus: WRPRC lawsuit details


 http://www.isthmus.com/features/docfeed/docs/document.php?intdocid=62#five

Money flows over monkey woes
UW paid big bucks to settle lawsuit alleging 'cruel and improper treatment'
of Primate Center monkeys
What follows is a short Isthmus article and some supporting documentation
regarding a lawsuit that was settled last year in federal court. The
lawsuit, by Jennifer Hess, a former veterinarian at the Wisconsin Regional
Primate Center, alleged that she was terminated for raising concerns about
the treatment of animals at the facility. The Isthmus article draws on
material from the federal court case file as well as the state Personnel
Commission, where the action was commenced. These documents have been
scanned in electronically, resulting in formatting changes and perhaps minor
errors.
The Isthmus article
Hess' letter of termination, dated April 12, 2002
>From Hess' initial complaint, filed with the state Personnel Commission
The key portion of the lawsuit, filed first in circuit court.
The settlement agreement.
1. The Isthmus article, from Bill Lueders' 'Watchdog' column, published Feb.
20, 2004
The suffering of the monkeys
Quietly settled lawsuit raised concerns about treatment of animals at
UW-Madison primate center
The UW-Madison last year agreed to pay more than a quarter of a million
dollars to settle a lawsuit brought by a former employee of the Wisconsin
Regional Primate Center who was allegedly fired for raising concerns about
the "cruel and improper treatment" of rhesus macaque monkeys at the
facility.
"I felt some of the animals...really suffered," said Jennifer Hess in a
deposition that remains part of the federal court case file. Among the
problems, she testified, were "improper monitoring, unnecessary pain and
distress."
Hess worked at the center as an assistant research veterinarian from
December 2001 until she was terminated in April 2002. The case settled last
August, but the terms were first revealed this month, in response to an
records request from Isthmus. The settlement requires the center, which was
represented by the state Attorney General's Office, to pay $150,000 to Hess
for lost wages and $110,000 to her attorneys. The defendants "specifically
deny any wrongdoing"; both sides are barred from "initiating disclosure [of
the terms] to any media representative." (For this and more, see Document
Feed at thedailypage.com.)
The court file includes a thick stack of deposition testimony, much from
primate center employees unsympathetic to Hess. They allege that she
"behaved unprofessionally" and "had problems with interpersonal relations."
Center director Joe Kemnitz says he fired Hess for fear that "others might
leave the center if they were going to be required to continue to work with
Dr. Hess."
But e-mail communications show Hess took a respectful tone in asking
questions and raising concerns about animal care; this was not always
reciprocated. Shortly before her termination, she complained about monkeys
being left for hours in a room that was "well over 90 degrees." A colleague
responded that it was merely a "malfunctioning thermostat" and admonished
her for sending "alarming messages."
In her depositions, Hess said her suggestions for proper animal care were
sometimes "met with derision." Researchers pushed her to change veterinary
records and "on more than one occasion" altered the records themselves. She
also felt pressure to approve "inherently unethical" experimentation on
ailing animals.
Once, when Hess wanted a monkey to regain some weight "before it went back
into experiment," she said a researcher snapped, "If you don't let me put
her into experiment, I'm going to headcap another animal," from the center's
colony of 1,300 "non-human primates." Headcapping, Hess explained, is a
"nasty procedure" in which the monkey's "skull is removed and the headcap is
put in place of a skull and there's a hole in the top of the head."
In another case, Hess said a researcher objected to her efforts to treat a
sick monkey. "She expressed that I should just, and I quote, just kill the
monkey and send it to her to find out what the real problem is." Hess
treated the animal, which "eventually got better."
Hess also describes her exchange with a researcher who experimented on a
monkey to death: "I said to him, When did this happen? Why aren't you sure
when the monkey died? He said because I was moving my car, since she hadn't
moved much all day in the experiment. And I said, Why didn't you call me if
she wasn't moving much all day in the experiment? And he didn't have a reply
for that."
Mary Kennelly, Hess' attorney, says the UW, to its credit, conducted a
review and changed some procedures "as a result of concerns she brought
forward."

A photo of an intubated rhesus macaque from the federal court case file.

Hess says her animal-care suggestions were 'met with derision.'

Monkey cages at the Wisconsin Regional Primate Center.
2. Hess' letter of termination, dated April 12, 2002
Wisconsin National Primate Research Center University of Wisconsin-Madison
1220 Capitol Court
Madison, WI 53715-1299
Joseph W. Kemnitz, Ph.D.
Professor and Director
Office: (608) 263-3500
Fax: (608) 263-4031
kemnitz@ primate.wisc.edu
To: Jennifer Hess, D.V.M.
From: Joe Kemnitz, Ph.D.
April 12, 2002
This memorandum will serve to terminate your probationary appointment as an
assistant research animal veterinarian with the Primate Center effective at
4:30 p.m. today. This is in compliance with Academic Staff Policies and
Procedures (ASPP) Chapter 2.04-5 (attached).
The reason for this action is because this position does not appear to be a
good match for your interpersonal skills, interests and work style.
Your unpaid leave time will be calculated and processed with the normal
monthly payroll. Information concerning your benefits such as state group
health insurance, state group life insurance, UIA life insurance, income
continuation insurance, major medical (dental) insurance, and parking is
available from Pat Hepner (263-3504). Complete the attached leave accounting
slips to account for any leave taken in March and April.
You will need to turn in your keys, key card, Primate Center badge, cell
phone and leave accounting slips to me today.
I am sorry that your employment here did not work out. I wish you success
with your future.
[...]
xc: Jennifer Hess
Personnel File
Julie Karpelenia, Graduate School
Academic Personnel Office
[End of document.]
3. From Hess' initial complaint, filed with the state Personnel Commission
ATTACHMENT TO DISCRIMINATON COMPLAINT- JENNIFER HESS
1. I was employed at Respondent from or about December 1, 2001 until I was
abruptly fired on or about April 12, 2002 just prior to the end of my
probation period. My position was that of Assistant Research Animal
Veterinarian.
2. At all relevant times, I reported to Dr. Joseph Kenmitz, Respondent’s
Director, who terminated me via the attached letter dated April 12, 2002
allegedly because I was no longer a “good match” for the position. When I
asked for specifics of how I was no longer a good match, Dr. Kemnitz refused
to elaborate and became defensive and annoyed.
3. During the course of my employment at Respondent, I raised numerous
complaints and protests regarding the treatment of rhesus macaques monkeys
which were research subjects, potential research subjects, and members of
the breeding colony of rhesus macaques.
4. Specifically, I voiced concerns regarding animal health, distress, and
care and brought my concerns/complaints to the attention of, among others,
Dr. Joe Kemnitz, Dr. Christine Parks, Dr. Eric Sandgren (member of the
IACUC), Dr. Nancy Schultz-Darken (member of the IACUC) as well as Mr. Kirk
Boehm. My concerns which were often met with hostility and/or resistance,
included, but were not limited to the following:
(a) Neglect, as well as cruel and improper treatment of the rhesus macaque
monkeys used in neuroscience experiments;
(b) Inappropriate selection of suture pattern and material resulting in the
discomfort to the monkeys and susceptibility to infection;
(c) Inappropriate selection and use of certain antibiotics to prevent
infection that may start in the brain after the removal of the
(experimental) device(s);
(d) Instructions to euthanize an animal exhibiting signs of the Herpes
B-virus and hostility for resisting this medically unnecessary procedure;
(e) Elevated temperature(s) in a room at the Biotron where I was treating an
animal that was bleeding to death because he had severed an artery in his
leg during improper transfer to another cage;
(f) Insufficient staff to treat a serious outbreak of the fatal Shigella
flexneri disease in numerous imported from China that arrived March 28th;
[End of document, stamped "RECEIVED MAY 7 2002"]
4. The key portion of the lawsuit, filed first in circuit court.
II. FACTUAL ALLEGATIONS
7. The plaintiff, Dr. Jennifer Hess, was employed as an Assistant Research
Animal Veterinarian at the University of Wisconsin Primate Research Center
from December 1, 2001 until April 2, 2002.
8. During the course of her employment the plaintiff raised issues of public
concern regarding the care and treatment of rhesus macaques monkeys which
were research subjects, potential research subjects and members of the
breeding colony of rhesus macaques at the primate center. These issues
included but were not necessarily limited to:
• Neglect and cruel and improper treatment of the rhesus macaques used in
neuroscience experiments.
• Failure to follow protocol in a neuroscience experiment resulting in the
death of a rhesus macaque monkey.
• Inappropriate selection of suture material causing discomfort to the
primates and increasing susceptibility to infection.
• Inappropriate selection of certain antibiotics to prevent infection after
removal of “headcaps” or experimental devices.
• Insufficient staff to treat a Shigella Flexneri outbreak in a large group
of primates which arrived in late March.
• Deficiencies in written records of animals at the Biotron and unauthorized
editing of clinical notes.
• Lack of baseline blood tests for the primates and/or insufficient
medication to treat the primates.
9. The plaintiff reported her concerns regarding the care and treatment of
the rhesus macaques monkeys to members of the Graduate School Animal Care
and Use Committee (JACUC), as well as to defendants Kemnitz, Watson, Usborne
and Boehm.
10. Soon after reporting her concerns, and despite her excellent record as a
Veterinarian, the plaintiff’s employment was abruptly terminated on April
12, 2002.
11. Upon information and belief plaintiff’s conduct in raising the issues
described in paragraph 8 above and her advocacy on behalf of primates used
in research experiments was the predominant if not sole cause of her
termination.
12. Upon information and belief, each of the individual defendants
recommended plaintiff’s termination and/or directly participated in the
decision to terminate her employment in retaliation for her protected
activity described in paragraph 8 above.
III. FIRST CAUSE OF ACTION
12. [sic-paragraph number is used twice] For a first cause of action against
the defendants Kemnitz, Watson, Boehm and IJsborne under the First Amendment
of the United States Constitution and 42 U.S.C. § 1983 the plaintiff
realleges each of the preceding paragraphs as though set forth herein.
13. In engaging in the conduct described in the preceding paragraphs,
including but not limited to recommending plaintiff for and/or terminating
plaintiff’s employment, the defendants retaliated against plaintiff for
raising issues of public concern in violation of her rights under the First
Amendment and 42 U.S.C. § 1983.
14. The defendants’ conduct as described above caused plaintiff substantial
damages including but not necessarily limited to front and back wage and
benefit loss, loss of earning capacity and loss of reputation. The plaintiff
will continue to suffer these damages in the future.
15. The defendants’ conduct as described above was willful, malicious and/or
intentional and/or undertaken in reckless disregard of plaintiff’s civil
rights thereby entitling plaintiff to an award of punitive damages against
each of the defendants in his or her individual capacity.
IV. SECOND CAUSE OF ACTION
16. For a Second Cause of Action against the defendants Board of Regents of
the University of Wisconsin system, Kemnitz, Watson, Boehm and Usborne under
§ 895.65, Wis. Stats., the plaintiff realleges each of the preceding
paragraphs as though set forth herein.
17. In engaging in the conduct described in the preceding paragraphs,
including but not limited to recommending plaintiff for and/or terminating
plaintiff’s employment as a Research Animal Veterinarian, the defendants
retaliated against the plaintiff for disclosing information protected by the
First Amendment in violation of her rights under § 895.65, Wis. Stats.
18. The defendants’ conduct as described above caused plaintiff substantial
damages including but not necessarily limited to front and back wage and
benefit loss, loss of earning capacity and loss of reputation. The plaintiff
will continue to suffer these damages in the future.
19. The defendants’ conduct as described above was willful, malicious and/or
intentional and/or undertaken in reckless disregard of plaintiff’s civil
rights thereby entitling plaintiff to an award of punitive damages against
each of the defendants.
V. JURY DEMAND
20. The plaintiff demands that the issues in the above-captioned matter be
tried by a jury of twelve persons.
WHEREFORE, the plaintiff demands judgment as follows:
a. Back wages and benefits;
b. Front pay and benefits;
c. Compensation for future loss of earning capacity and loss of reputation;
d. Punitive damages against each of the defendants;
e. An order finding that the defendants violated plaintiff’s rights under
the First Amendment of the United States Constitution as guaranteed by 42
U.S.C. § 1983 and § 895.65, Wis. Stats.;
f. An order recommending to the Board that disciplinary or other action be
taken against the individual defendants as provided under § 895.65(4)(f),
Wis. Stats.
g. Reasonable attorney fees and costs incurred in bringing this action as
well as reasonable attorney fees and costs incurred during the
administrative proceedings before the Wisconsin Personnel Commission; and
h. Such other relief as the Court may deem just and proper.
Dated at Madison, Wisconsin this [4th] day of December, 2002.
Respectfully submitted:
FOX & FOX, S.C.
[signed Mary Kennelly]
Michael R. Fox
Mary E. Kennelly
Randall B. Gold
44 East Mifflin Street/suite 403
Madison, WI 53703
608/258-9588
[End of document.]
5. The settlement agreement.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN
JENNIFER HESS, DVM
Plaintiff,
vs.
BOARD OF REGENTS OF THE
UNIVERSITY OF WISCONSIN SYSTEM,
JOSEPH KEMNITZ, ROBERT WATSON,
AMY USBORNE and KIRK BOEHM
Defendants,
Case No: 03-C-002-S
SETTLEMENT AGREEMENT
The parties, by their undersigned attorneys, stipulate and agree as follows:
1. The parties wish to effect a final settlement of all complaints, claims,
charges, demands and liabilities, of any kind or nature, known or unknown,
whether filed or unfiled, arising out of the facts and circumstances which
gave rise to the present action, and the parties further wish to avoid the
expense and burden of further litigation.
2. This agreement is in resolution of disputed claims and causes of action
and does not constitute an admission of liability by the defendants for any
claim or cause of action, whether filed or not filed. The defendants
specifically deny any wrongdoing by any of them, their agents or their
employees.
3. Dr. Jennifer Hess (“Hess”) for herself, her heirs, and assigns, releases
and discharges the State of Wisconsin, and all of its agencies, officers and
agents, including without limitation, the Board of Regents of the University
of Wisconsin System, Joseph Kemnitz, Robert Watson, Kirk Boehm and Amy
Usborne, from any and all claims, demands, or causes of action she has
asserted, which she may have asserted, or which she could have asserted
which relate in any manner to her action in Dr. Jennifer Hess v. Board of
Regents et al, Western District Case No. 03-C-Ô002-S, whether or not based
on state or federal law, and whether or not said claim, demand, or cause of
action now exists or may hereafter accrue, is known or unknown, or is
anticipated or unanticipated. Hess so releases and so discharges all other
persons, corporations, and entities whatsoever, governmental and
nongovernmental alike, such as are classed as joint tortfeasors under the
laws of the State of Wisconsin or the United States, completely barring any
right of action against any such persons or entities whether or not named
herein. Said release and discharge extends to and includes, without
limitation because of enumeration, any claims, demands, or causes of (action
whether based on a collective bargaining agreement; the Wisconsin Fair
Employment Act, sees. 111,31-11 1.395, Wis. Stats.; Title VII of the Civil
Rights Act of 1964, 42 U.S.C. secs. 2000e et seq., and as amended by the
Civil Rights Act of 1991, P.L. 102261; the United States Constitution and
any amendment thereto; the Wisconsin Constitution and any amendment thereto;
42 U.S.C. § 1981; the Ku Klux Klan Act of 1871, 42 U.S.C. Sec. 1.983; any
other matter in Title 42 of the United States Code; section 504 of the
Rehabilitation Act of 1973; the Americans with Disabilities Act, 42U.S.C.
see. 12101 et seq.; the Equal Pay Act; the Fair Labor Standards Act; the Age
Discrimination in Employment Act (as amended by the Older Workers Benefit
Protection Act, P.L. 101-433, sec. 210; 104 Stat. 983; amending 29 U.S.C.
sec.i626); and also including any entitlement to attorney’s fees, costs and
expenses.
4. Hess warrants and represents that there are not known to her persons,
firms, corporations, associations, government entities, insurance companies,
hospitals or other health care providers, or other third parties who have or
may have rights against the parties released hereunder based upon
subrogation, derivation or assignment resulting from or arising out of the
above-described accident. Hess, for herself, her spouse, her heirs,
executors, administrators, agents and assigns, hereby agrees to indemnify
and hold harmless all parties released hereunder, and their attorneys, of
and from all loss, damage and expense, including all costs of defense and
attorney feds, as a result of any claim based upon subrogation, derivation
or assignment resulting from or arising out of the above-captioned case or
any underlying agency proceedings.
5. This agreement is a full, final and complete compromise and settlement of
all disputed claims and the amount to be paid as herein recited is the sole
consideration for this settlement.
6. Within 10 days of the execution of this agreement defendants will issue a
check made payable to Hess in the amount of Seventy Five Thousand Dollars
and No Cents ($75,000.00) for gross wages, minus applicable deductions and
withholdings required by law. A second check made payable, to Hess in the
amount of Seventy Five Thousand Dollars and No Cents ($75,000.00) for gross
wages minus applicable deductions and withholdings required by law will be
paid after January 1, 2004 but before January 30, 2004.
7. Within 30 days of execution of this agreement defendants will issue a
check made payable to Fox & Fox, S.C. in the amount of One Hundred Ten
Thousand Dollars and No Cents ($110,000.00) which represents payment for
attorney fees. The parties explicitly recognize that all money paid as
attorney’s fees under this agreement is the sole and exclusive property of
Fox & Fox, S.C.
8. Due to impending changes and uncertainties in federal tax Law, the
parties understand and agree that the that defendants shall report the
entire settlement amount of Two Hundred Sixty Thousand Dollars and No Cents
($260,000.00) by way of a single Tax Form 1099 issued to Dr. Jennifer Hess.
In the event that the current alternative minimum tax law is unchanged by
the end of December, 2003, and this reporting method results in liability by
Dr. Hess for alternative minimum tax based upon the attorneys’ fee portion
of this settlement, the State of Wisconsin agrees to reimburse Dr. Hess for
that portion of the alternative minimum tax attributable to the attorneys’
fee portion of this settlement. Such request for reimbursement shall be made
to counsel of record for the defendants and shall include a certified copy
of Dr. Hess’ tax return and a letter from an independent tax attorney or
certified public accountant indicating what portion of the alternative
minimum tax liability is attributable to the attorney fee portion of the
settlement. Upon receipt of such information, the State shall provide Dr.
Hess with reimbursement within 60 days. The State reserves the right to have
the tax information submitted by Dr. Hess reviewed by an independent tax
attorney or certified public accountant of the State’s choosing.
9. In further consideration of the funds paid under this settlement, the
plaintiff agrees to relinquish all rights to any current or future
employment with any part of the University of Wisconsin System and promises
never to seek or accept employment with the State of Wisconsin. Plaintiff
also agrees not to list as a reference any current or past employee of the
Wisconsin Regional Primate Center. Plaintiff may list as a reference
individuals employed elsewhere in the University of Wisconsin System.
10. The plaintiff further agrees to obtain the dismissal with prejudice of
any and all judicial proceedings pending in any forum against the defendants
or any of its agents or employees, past or present, including Case
#03-C-0002-S pending in the District Court for the Western District of
Wisconsin.
11. Neither the parties nor the attorneys will initiate disclosure to any
media representative of the terms and conditions of this settlement
agreement, nor will they initiate with such media representatives any
discussion of the merits of the agreement. It is understood, however, that
if inquiries are made the parties may discuss the case subject to the
protective orders executed by the parties which protect the confidentiality
of certain University documents and plaintiff’s medical records.
12. Hess has read the foregoing and, by signing this agreement, represents
that she understands all its terms and has had full opportunity to consult
legal counsel and any other representatives for advice. By signing this
agreement, Attorney Mary Kennelly represents that she has fully advised Hess
as to the consequences of signing this settlement agreement and is satisfied
that Hess signs it voluntarily and knowingly.
13. The above provisions constitute the full settlement of this case.
[Signed by Jennifer Hess, July 22, 2003; Mary E. Kennelly, Aug. 4, 2003;
Monica Burkert-Brist, Assistant Attorney General, Aug. 7, 2003; and Darrell
Bezzell, UW-Madison vice-chancellor for administration, Aug. 9, 2003.]
[End of document.]