Contract analysis

I. Purpose and Status of Investigation The purpose of this memorandum is to provide TMRI's General Counsel and Vice President of Human Resources with interim findings and preliminary conclusions based on the evidence gathered to date in the independent investigation opened September 10, 2024, into formal grievances filed against Dr. Marcus Ellender, Director of Biomedical Engineering Laboratories at Thornwick Medical

II. Scope of Investigation The scope of this investigation, as defined in the September 10, 2024 engagement letter and further refined in consultation with TMRI General Counsel, encompasses four categories of alleged misconduct by Dr. Marcus Ellender in his capacity as Director of Biomedical Engineering Laboratories. Each category implicates potential violations of applicable law, regulation, or TMRI policy, as set f

1. Retaliation. The investigation examines allegations that Dr. Ellender retaliated against employees who reported safety concerns or other workplace issues, in potential violation of Massachusetts General Laws chapter 149, section 185 (the Massachusetts Whistleblower Protection Act), which prohibits employers from taking retaliatory action against employees who report or threaten to report to a supervisor or public

2. Hostile Work Environment. The investigation examines allegations that Dr. Ellender created and maintained a hostile work environment through verbal intimidation, discriminatory scheduling practices, and the imposition of punitive work assignments, in potential violation of Massachusetts General Laws chapter 151B, section 4, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and TMRI Respectful W

3. Safety-Protocol Violations. The investigation examines allegations that Dr. Ellender directed employees under his supervision to circumvent mandatory safety protocols, including OSHA-mandated personal protective equipment ("PPE") requirements under 29 C.F.R. § 1910.132 et seq. and biohazard-containment protocols established pursuant to the National Institutes of Health Guidelines for Research Involving Recombinant

4. Falsification or Alteration of Records. The investigation examines allegations that Dr. Ellender falsified or directed the alteration of official records, including safety-incident reports (specifically IR-2024-031 and IR-2024-038) and lab-notebook entries. The investigation has examined whether such alteration was intended to conceal safety incidents, shift blame to subordinate employees, or otherwise obstruct th

1. Dr. Yuna Sakata, Senior Research Scientist, Lab B-2. Grievance filed August 12, 2024. Dr. Sakata alleges retaliation following her report of a chemical spill in Lab B-2, including unjustified reassignment from her role on an NIH-funded research project to a lower-profile internal assignment.

2. Trevor Hollins, Lab Technician III, Lab B-3. Grievance filed August 19, 2024. Mr. Hollins alleges hostile work environment, including verbal intimidation during lab meetings and in front of colleagues, as well as falsification of safety-incident reports that attributed equipment malfunctions to his operator error.

3. Dr. Priya Chandrasekaran, Postdoctoral Fellow, Lab B-1. Grievance filed August 26, 2024. Dr. Chandrasekaran alleges discriminatory scheduling (disproportionate weekend and holiday shifts), denial of conference-attendance opportunities extended to similarly situated colleagues, and a retaliatory negative performance review.

4. Miguel Ferreira, Lab Technician II, Lab B-4. Grievance filed August 30, 2024. Mr. Ferreira alleges that Dr. Ellender directed him and other lab technicians to bypass OSHA-mandated PPE protocols during aerosol-generating procedures and threatened him with termination for raising safety concerns with the Environmental Health & Safety ("EHS") office.

5. Sandra Nix, Research Associate, Lab B-2. Grievance filed September 4, 2024. Ms. Nix alleges hostile work environment and reports that she directly witnessed Dr. Ellender instruct staff to alter lab-notebook entries to conceal a biohazard-containment breach that occurred in September 2023. Identification of Respondent The respondent in this investigation is Dr. Marcus Ellender, Director of Biomedical Engineering La

III. Summary of Evidence Gathered A. Witness Interviews A total of fourteen unique witnesses have been interviewed across sixteen sessions to date. Three additional follow-up sessions remain pending and are scheduled for the week of November 11, 2024. The interviews conducted are summarized as follows: Complainant Interviews (5 sessions; September 23 – October 11, 2024). Each of the five complainants identified in Se

IV. Preliminary Findings by Category The investigation team has organized its preliminary findings according to the four categories of alleged misconduct set forth in Section II. For each category, we summarize the relevant evidence gathered to date, identify areas of corroboration and conflict, and state our preliminary conclusions. These conclusions are subject to revision based on evidence developed during the rem

V. Respondent's Overall Position During the respondent interview conducted on October 23 and October 24, 2024, Dr. Marcus Ellender, with his personal counsel Rachel Whitmore of Hadley, Brennan & Morrow LLP present, provided the following responses to the four categories of allegations: Retaliation. Dr. Ellender denied any retaliatory intent in connection with Dr. Sakata's reassignment from the NIH-funded project. He

VI. Outstanding Investigative Steps The following investigative steps remain to be completed before the final investigative report can be prepared and delivered:

1. Follow-Up Interviews. Three follow-up interviews are scheduled for November 11–13, 2024, to address specific evidentiary gaps identified during the document review and initial rounds of witness interviews. These interviews are anticipated to provide additional detail regarding the timeline and frequency of PPE-bypass directives, the circumstances surrounding the preparation of safety-incident reports IR-2024-031 a

2. Haverford Final Audit Report. The final comprehensive EHS audit report from Haverford Safety Consulting Group, LLC, is expected to supplement the preliminary findings received on October 28, 2024. The investigation team will review and analyze the full Haverford report and incorporate relevant findings into the final investigative report.

3. Forensic Analysis of Remaining Lab-Notebook Pages. Completion of the forensic analysis of the remaining flagged lab-notebook pages from Lab B-2 is ongoing. This analysis will confirm the scope and nature of alterations across all fifteen flagged pages and will be documented in the final report.

4. Draft Final Report. Preparation and internal circulation of the draft final investigative report within Calderwood & Harkness is anticipated for approximately November 18, 2024. The draft will be subject to internal review by the investigation team and the responsible partner before submission to TMRI.

5. Delivery of Final Report. The final investigative report is anticipated to be delivered to TMRI General Counsel and Vice President of Human Resources by late November 2024.

VII. Preliminary Risk Assessment and Institutional Considerations Based on the interim findings set forth above, the investigation team identifies the following areas of institutional risk and consideration for TMRI leadership. These assessments are preliminary and are provided to assist TMRI in evaluating its current risk posture and determining whether any interim actions are warranted prior to issuance of the fina

VIII. Recommendations for Immediate Action Based on the interim findings and preliminary risk assessment set forth above, the investigation team recommends the following immediate actions:

1. Continue Paid Administrative Leave. Dr. Ellender should be maintained on paid administrative leave pending completion and delivery of the final investigative report. Premature restoration to duty would risk further retaliatory conduct, could compromise the integrity of the remaining investigative steps, and would be inconsistent with the seriousness of the preliminary findings.

2. Maintain Litigation Hold. TMRI should ensure continued compliance with the litigation-hold memorandum issued on September 13, 2024, by Elena Graff, General Counsel. The litigation hold applies to all 1,247 documents already collected and to any additional documents identified during the remaining investigative steps. All custodians identified in the litigation-hold memorandum should be reminded of their preservati

3. Reinforce Anti-Retaliation Protections. Anti-retaliation protections for all five complainants should be reinforced under TMRI Anti-Retaliation Policy HR-2021-009 and M.G.L. c. 149, § 185. Vice President of Human Resources Grace Okenwa, in coordination with David Chu (HR's designated point of contact for the complainants), should communicate to the complainants and to supervisory personnel in Labs B-1 through B-4

4. Review EPLI Notice Obligations. TMRI should consult with its insurance broker, Crestline Brokerage Partners, Inc., to determine whether the circumstances warrant early notice to Meridian Indemnity Group under EPLI Policy No. MIG-EPLI-2024-00417. Given the seriousness of the allegations and the number of complainants, early notice may be prudent to preserve coverage rights, even in the absence of a formal claim to

5. Prepare for Board Briefing. TMRI General Counsel should prepare for a potential briefing of the Board of Directors' Governance & Compliance Committee, chaired by Raymond Alcott, following delivery of the final investigative report. The Committee should be apprised of the interim findings at an appropriate time to be determined by General Counsel, taking into account the need to preserve privilege and the Committee

IX. Reservation of Rights and Limitations This memorandum reflects the interim preliminary findings of Calderwood & Harkness LLP based on the evidence gathered to date in the investigation into formal grievances filed against Dr. Marcus Ellender. The conclusions expressed herein are preliminary in nature and are based on the investigation team's assessment of the evidence as of November 4, 2024. The final investigati