Croce v. Sanders
| Decision Date | 12 May 2020 |
| Docket Number | Case No: 2:17-cv-338 |
| Citation | 459 F.Supp.3d 997 |
| Parties | Carlo M. CROCE., Plaintiff, v. David A. SANDERS, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
James Edward Arnold, Damion M. Clifford, Gerhardt A. Gosnell, II, Arnold & Clifford LLP, Columbus, OH, Judith E. Galeano, Justin Anthony Morocco, Mark C. Zronek, Mowery Youell & Galeano, Ltd., Dublin, OH, for Plaintiff.
William A. Nolan, Barnes & Thornburg LLP, Columbus, OH, Kara Kapke, Pro Hac Vice, Indianapolis, IN, for Defendant.
Dr. Carlo Croce, a cancer researcher at Ohio State University, brings this defamation action against Dr. David Sanders, a biological sciences professor at Purdue University. The suit largely relates to a March 8, 2017 article (the "Article") in The New York Times in which Dr. Sanders was quoted and paraphrased several times in connection with his claim that he had found falsified data and plagiarism in scientific papers for which Dr. Croce was listed as a co-author. "It's a reckless disregard for the truth," Dr. Sanders was quoted as saying in reference to the falsified data and plagiarism he had found in those papers.
New York Times reporter James Glanz interviewed Dr. Sanders in preparing the Article, entitled "Years of Questions, but Researcher Gets a Pass." The Article examined concerns that universities are "conflicted arbiters" when presented with allegations of scientific misconduct committed by their own "star researchers" who attract millions of dollars in grant money. The Article used Dr. Croce as its "case study of the complex and often countervailing forces at work as science seeks to police itself."
In separate suits, Dr. Croce sued both The New York Times and Dr. Sanders for defamation. He lost his suit against The New York Times . See Croce v. New York Times Co. , 930 F.3d 787 (6th Cir. 2019) ().
In this suit, Dr. Croce alleges that certain statements made by Dr. Sanders in the Article are defamatory. Dr. Croce also alleges that Dr. Sanders made defamatory statements recited in a letter (the "Letter") sent by Glanz to Ohio State and Dr. Croce in November 2016. The Letter sought Dr. Croce's responses to criticisms made by Dr. Sanders and others of papers for which Dr. Croce was listed as an author. Dr. Croce additionally alleges that Dr. Sanders made defamatory statements in a March 22, 2017 article published in the Lafayette Journal & Courier (the "J&C Article"), a local newspaper in the area where Purdue University is located. The J&C Article quoted Dr. Sanders as saying that data had been "made up" in papers with Dr. Croce's name as an author and that the authors of the papers had done it "over and over again."
This matter is before the Court on Dr. Sanders's motion for summary judgment. For the reasons set forth below, the motion is GRANTED except for defendant's request for an award of attorney's fees and costs under Indiana law.
Dr. Croce describes himself as "one of the world's most distinguished scientific researchers in the area of cancer genetics." Croce Decl. at ¶ 2. Over his 50-year career, he has been a "pioneer" whose discoveries have contributed to the prevention, detection, diagnosis and treatment of many different types of cancers. See Second Am. Compl. at ¶ 5. Since 2004, Dr. Croce has conducted research at his laboratory at Ohio State, where he has held various positions and distinctions, including Chair of the Department of Cancer Biology and Genetics, and Director of the Institute of Genetics. See Croce Decl. at ¶ 3. He has received more than 64 national and international awards for his work. See Second Am. Compl. at ¶ 6.
An important aspect of this case is authorship of articles or papers appearing in scientific journals. Dr. Croce's name has appeared as an author on over 1,250 such papers. See Croce Decl. at ¶¶ 5, 9, 10. His name has been listed on about 1,100 "research papers," which are articles reporting the results of scientific experiments. See id. at ¶¶ 5, 9. Dr. Croce's name has been listed on about 165 "review papers," which "review the work being done on a particular scientific issue." Id. at ¶ 10.
Scientific research papers usually have multiple authors. The listing of authors follows a convention, at least in the medical journals in which Dr. Croce's papers have appeared.1 The first author listed is the "lead author," the scientist who conducted the experiment being reported and who took a primary role in drafting the paper. Id. at ¶ 6. The last author listed is "the scientist who had the idea to do the experiment or research being reported" and is "generally the head of the lab in which the research was conducted." Id. at ¶ 7. The authors whose names appear between the lead and last authors are "contributing authors." Id. at ¶ 9. Though Dr. Croce does not define the role of a contributing author, a fair inference from his declaration is that they may have assisted in conducting the experiments, drafting the paper or examining or verifying the results.2
Of the roughly 1,100 research papers on which Dr. Croce's name is listed as an author, about 500 of them have originated from his lab. Id. at ¶ 8. For these papers, his name almost always appears last in the listing of authors, although occasionally first. Id. According to Dr. Croce, "[a]t a lab like mine ... most of the experiments are conducted by junior research scientists including graduate students and post-doctoral fellows, who are primarily responsible for authoring the text of the paper and reporting the results." Id. at ¶ 6.
Dr. Croce's name also appears on about 600 other research papers as a contributing author. Id. at ¶ 9. Again, though not describing what contributions he made as a contributing author to these papers, Dr. Croce clarifies that the research for these papers was not conducted at his lab and that he personally did not conduct the research being reported or write the text of the papers. Id.
As for the 165 review papers on which his name appears, Dr. Croce states that he personally wrote or co-wrote those papers. Id. at ¶ 10.
Both sides agree that problems sometimes arise with the information reported in scientific papers, whether by honest mistake or otherwise. Problems have occurred in papers with Dr. Croce's name on them, though pinning down an exact tally is a bit tricky. Dr. Croce's Second Amended Complaint admits to 13 problems with his papers. See Second Am. Compl. at ¶¶ 24, 25, 27. Dr. Sanders and his expert believe the actual number of problems is closer to 30. See Doc. 63-1 at PAGEID 571-72; McKerahan Report at 4-5. Dr. Croce's discovery responses indicate that the number exceeds 30. See Doc. 63-2 at PAGEID 620-23.
Relevant to this case are three general types of problems: fabrication, falsification and plagiarism. Before the Court examines those types of problems in detail, some context is in order. Under federal law, universities which receive federal funding for biomedical research "must take actions to ensure the integrity" of such research. Dr. Price Report at 2. Honest errors and differences of opinion do not constitute research misconduct, but fabrication, falsification and plagiarism do. 42 C.F.R. § 93.103. Ohio State has adopted standards for research integrity which are consistent with the federal regulations. Dr. Price Report at 3. Recipient institutions are largely left with the responsibility of self-policing complaints of misconduct. 42 C.F.R. § 93.300, et seq.
Plaintiff's expert, Dr. Alan R. Price, has offered definitions of the three types of research misconduct relevant to this case. His definitions are based on regulations promulgated by the United States Public Health Service. Neither Dr. Sanders nor his expert dispute the definitions.
Fabrication refers to "making up data or results and recording or reporting them." Price Report at 2. Falsification is "manipulating research materials, equipment, or processes, or changing or omitting data or results such that the research is not accurately represented in the research record." Id. Plagiarism is "the appropriation of another person's ideas, processes, results, or words without giving appropriate credit." Id . See generally 42 C.F.R. § 93.103.
Also relevant to this case are the terms "image manipulation" and image or data "duplication." It is unclear whether the parties would place these concepts into a certain category (fabrication, falsification or plagiarism) or would view them as a hybrid. At issue are images in scientific articles called blots. Based on the lab technique employed, some are known as "Western blots" and some are "Northern blots." Sanders Decl. at ¶ 4. In the case of Western blotting, the blot images are the results of experiments with proteins and they convey data about the type, size and amount of protein. See id. With Northern blotting, the blots are the results of experiments with RNA molecules and likewise convey information about the molecules. See id.
According to Dr. Sanders, each blot image should have its own distinct look. Each blot reported in a paper "represent[s] a different experimental condition" and thus should look different (at least to the trained eye) from the blots resulting from different proteins, different RNA molecules or a different set of experimental conditions. Id. at ¶ 5. Dr. Sanders has claimed to have found instances in Dr. Croce's papers where blot images have been duplicated or reused – that is, instances where an image in a paper looks the same as another image in the same paper or as one from a past paper in which Dr. Croce was listed as an author. In Dr. Sanders's view, the practice of duplicating images amounts to manipulating or making up the data being reported in the papers. See id. ; Sanders Dep., Vol. I at 125-26.
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