German v. Rubin, et al. (Lawyers Weekly No. 12-117-17)
David Lopes Ca 1 rdozo and President & Fellows of Harvard College COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION NO. 16-01640 GUSTAVO GERMAN vs. LEE L. RUBIN & others1 MEMORANDUM OF DECISION AND ORDER ON PRESIDENT & FELLOWS OF HARVARD COLLEGE’S MOTION FOR RECONSIDERATION OF ITS REQUEST FOR A STAY PENDING APPEAL INTRODUCTION On May 31, 2017, this court issued an order allowing the pro se plaintiff, Gustavo German’s (“German”), motion to add President & Fellows of Harvard College (“Harvard”) as a party and directing Harvard to comply with this court’s December 5, 2016 order. On June 19, 2017, this court issued an amended Revised Order directing Harvard to provide German with “full access” to “the Bauer Building (located in the basement of the Sherman-Fairchild Building where the Rubin Lab is located)” and to “the BRI facility inside the Bio Lab Building” where German houses and conducts research with a specialized mouse colony. Counsel for Harvard sought a stay of the court’s orders pending appeal in open court, which was denied. This court stated that it would reconsider its ruling if Harvard submitted evidence concerning the laws and regulations governing animal research at Harvard. Harvard filed a notice of appeal on June 21, 2017, seeking appellate review of this court’s May 31, 2017 order and its June 19, 2017 Revised Amended Order. 2 Before this court is Harvard’s Motion for Reconsideration of its Request for a Stay of both orders pending appeal (“Motion”). After hearing and careful review of the submissions of the parties, the Motion is ALLOWED in part and DENIED in part. Before this court is Harvard’s Motion for Reconsideration of its Request for a Stay of both orders pending appeal (“Motion”). After hearing and careful review of the submissions of the parties, the Motion is ALLOWED in part and DENIED in part. BACKGROUND On June 20, 2017, following this court’s invitation to submit additional evidence, Harvard submitted the affidavit of Steven Niemi, which addressed various federal and local regulations governing animal research at Harvard. The affidavit also explained that because German has been withdrawn as a graduate student at Harvard, he is no longer eligible to use or access any regulated animals located in any Harvard facility for any purpose. On June 29, 2017, this court conducted an evidentiary hearing where Harvard offered the testimony of Dr. Ara Tahmassian, its Chief Research Compliance Officer, concerning the role of Harvard’s Institutional Animal Care and Use Committee (“IACUC”), which revoked German’s access to the BRI facility. Dr. Tahmassian guided this court through the federal regulations that establish the IACUC as an oversight body that is independent of Harvard. He explained that under those regulations Harvard cannot overrule […]