Croce v. N.Y. Times Co.

Decision Date06 November 2018
Docket NumberCase No. 2:17-cv-402
Parties Carlo M. CROCE, Plaintiff, v. NEW YORK TIMES COMPANY, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

Thomas Walter Hill, Loriann E. Fuhrer, Kegler Brown Hill & Ritter, Damion M. Clifford, Gerhardt A. Gosnell, II, James Edward Arnold, James E. Arnold & Associates Co., LPA, Columbus, OH, for Plaintiff.

Keith W. Schneider, Maguire Schneider Hassay, LLP, Columbus, OH, Jay Ward Brown, Matthew E. Kelley, Michael D. Sullivan, Pro Hac Vice, Ballard Spahr LLP, Washington, DC, for Defendants.

Opinion & Order

JAMES L. GRAHAM, United States District JudgeThis defamation action is brought by Dr. Carlo M. Croce, a cancer

researcher at The Ohio State University, against the New York Times and certain of its employees. The New York Times ran a front-page article entitled, "Years of Questions but Researcher Gets a Pass." The article threw suspicion on the veracity of Dr. Croce's research and questioned the financial motives of Ohio State in overlooking concerns about his work. Pending before the Court are Defendants' Motions to Dismiss, which are largely granted for the reasons set forth below.

I. Factual Background

Dr. Croce identifies defamatory statements in four publications: (1) the "Article" in the New York Times, (2) posts by the Times on Twitter and Facebook promoting the Article, (3) the "Interview," given by one of the Article's authors, James Glanz, to a Columbus media outlet and (4) the "Letter," written by Glanz to Dr. Croce and Ohio State by Glanz.

Before the Court analyzes the alleged defamatory statements, a bit of background is in order. The following recitation of facts is derived from the Amended Complaint and the documents attached thereto.

A. Dr. Croce and his Research

Dr. Croce has been researching cancer

, and specifically cancer genetics, for 45 years. He has been recognized as a pioneering scientist who has made "fundamental contributions in the areas of oncology, genetics and developmental biology that are already having a major impact in the diagnosis, prognosis and treatment of cancer." (Am. Compl. at ¶ 3). Dr. Croce has received numerous awards recognizing his research and discoveries. He is a medical doctor, the John W. Wolfe Chair, Human Cancer Genetics at Ohio State University. At Ohio State, he is also the Director of the Human Cancer Genetics Program, the Director of the Institute of Genetics, Professor of Internal Medicine and the Chair of the Department of Molecular Virology, Immunology & Medical Genetics.

Dr. Croce is a prolific author. He has authored several types of papers, including "Research" papers: "approximately 490 papers have been published in scientific journals reporting scientific research all or a substantial portion of which was done in Dr. Croce's laboratory and written entirely or in substantial part by Dr. Croce or by those performing research under his supervision in his laboratory." (Id. at ¶ 31). Dr. Croce has also been an author on approximately 165 "Review" or "Commentary" papers, which either review work done on a scientific issue or comment on papers done by others.

None of Dr. Croce's papers have been retracted, which occurs when a journal removes a paper without the author's consent. But two of Dr. Croce's papers have been withdrawn. Dr. Croce himself withdrew a Commentary Paper "because the journal involved declined to include a sentence in the Commentary Paper that Dr. Croce believed needed to be included." (Id. at ¶ 38). A Research Paper was withdrawn with Dr. Croce's consent after the publication of the New York Times Article.

Eight of Dr. Croce's Research Papers have been the subject of corrections to "figures," which are "images of experimental results and other scientific information." (Id. at ¶ 35). Most of Dr. Croce's Research Papers contain multiple figures, some of which have sub-figures—there are approximately 5,000 figures and sub-figures in Dr. Croce's research papers. Fewer than 20 of those figures, from eight research papers, have been the subject of correction. Dr. Croce alleges that all of these "were the result of honest error in the construction of the figures or sub-figures for publication." (Id. ).

Three of Dr. Croce's Research Papers have been corrected for "text overlap." (Id. at ¶ 36). Dr. Croce does not elaborate on what he means by "text overlap," but Exhibit B to Defendant's original Motion to Dismiss is an article that explores the distinction, if there is one, between "text overlap" and plagiarism. (Defs.' First Mot. to Dismiss, Ex. B at PAGEID 239). Dr. Croce alleges, however, that none of the text-overlap errors affected the scientific results or the conclusions of the research reported in the papers.

B. James Glanz Interviews Dr. Croce

James Glanz writes for the New York Times. He contacted Dr. Croce in September 2016 with the following email:

Dear Prof. Croce, I am doing some reporting on promising anti-cancer results at a basic research level. I am at the very beginning stages of the work and have the burden of a physical sciences background (Ph.D. in physics), but wonder if I could speak with you briefly on the fascinating topic of microRNA. Thanks so much for considering this request. Sincerely, Jim Glanz.

(Am. Compl. at ¶ 43). Dr. Croce accepted the request and invited Glanz to Columbus. Glanz interviewed Dr. Croce, toured his lab and spoke with a post-doctoral fellow about recent lab research. Afterwards, Glanz sent a follow-up email to Dr. Croce thanking him for the invite to Columbus and informing Dr. Croce that he would be in touch.

C. Glanz Sends the Letter

Glanz did get in touch. After making several public-records requests, Glanz sent the Letter on New York Times letterhead to Ohio State and Dr. Croce on November 23, 2016. The Letter stated that Glanz had questions he wanted to "put urgently" to Dr. Croce and Ohio State as part of an article he was preparing. (Id. at ¶ 50). The Letter requested answers to 25 paragraphs' worth of questions.

Dr. Croce alleges that the Letter contained several defamatory statements. The Letter raised various accusations against Dr. Croce, many of which were Glanz's representations of what others in the scientific community had said. For example, the Letter stated that a "Dr. Sanders argues ... that Dr. Croce is knowingly engaging in scientific misconduct and fraud. Does Dr. Croce disagree with this allegation, and if so, why[?]" (Am. Compl., Ex. A at PAGEID 679).

D. Dr. Croce Responds

Dr. Croce retained legal counsel to respond to Glanz's letter. He responded point-by-point to the Letter, as he says, refuting the false and defamatory allegations in the Letter. Dr. Croce also requested information supporting some of the statements made in the Letter, but Glanz did not respond to those requests.

On January 26, 2017, Glanz sent an email to Dr. Croce's counsel posing two additional questions, to which Dr. Croce responded. Dr. Croce then asked Glanz to cite and explain any inaccuracies in Dr. Croce's earlier responsive letter and to provide information that Dr. Croce had earlier requested. Glanz again did not respond. On March 2 and 3, 2017, the two sides exchanged a third round of correspondence, which ended similarly, without a response from Glanz to Dr. Croce's questions.

E. The New York Times Publishes the Article

On March 8, 2017, the New York Times published the Article on the front page of its digital version under this headline: "Years of Ethics Charges, but Star Cancer

Researcher Gets a Pass. Dr. Carlo Croce was repeatedly cleared by Ohio State University, which reaped millions from his grants. Now, he faces new whistle-blower accusations." (Am. Compl. at ¶ 76). The next day, the Article "was published on the front page of the New York Times' print version, above the fold, under the headline ‘Years of Questions but Researcher Gets a Pass.’ " (Id. at ¶ 78). The Article was "Number One on the list of ‘Most Popular’ articles in the digital version of The New York Times." (Id. at ¶ 80). The Article quickly garnered over 400 comments online.

The Times also advertised the Article on Twitter and Facebook under another headline: "A star cancer

researcher accused of fraud was repeatedly cleared by Ohio State, which reaps millions from his grants." (Id. at ¶ 77). Glanz posted the article to his own Twitter page as well.

The Article is substantial in length, comprising over 14 pages and about 90 paragraphs in the version submitted as an attachment to the Amended Complaint. The Court will discuss below the specific statements in the Article which are alleged to be defamatory. But generally speaking, the Article describes Dr. Croce as a "prolific" scientist who "parlayed his decades-long pursuit of cancer

remedies into a research empire." (Id. , Ex. C at PAGEID 87). The Article reports on the "quotient of controversy" which has become attached to Dr. Croce, specifically "allegations of data falsification other scientific misconduct." (Id. ). The claims made by Dr. Croce's critics are recounted, as is Dr. Croce's response denying any wrongdoing. Varying explanations (from critics, Dr. Croce and other observers) are offered for the alleged bad data and errors—ranging from "falsification" to "reckless disregard" to "sloppiness" to "honest errors." The Article reports that Dr. Croce has not been sanctioned for misconduct by any oversight agencies or by Ohio State, which cleared him in at least five cases. The Article raises the concern that Ohio State has a financial incentive to overlook problems with Dr. Croce's work, but it adds a statement from Ohio State saying that the University evaluates complaints of misconduct on the merits and without regard to a researcher's grant money.

F. Glanz Gives the Interview to a Columbus PBS Affiliate

Glanz publicly commented on the Article too. Glanz was interviewed by WOSU Radio on March 9, 2017. He made the following statement in the Interview:

"Well, the allegations are that in the lab he
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