Croce v. Sanders

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Carlo M. Croce.,

Case No: 2:17-cv-338

Plaintiff,

Judge Graham

v.

Magistrate Judge Deavers

David A. Sanders,

Defendant.

Opinion and Order

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) (holding that the Article was not defamatory under Ohio law).

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.

I. Background

A. Dr. Croce and His Authorship of Scientific Papers

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

1 The Court draws its account on the convention for listing authors from Dr. Croce’s declaration. His

description aligns with the examples of papers which are in the record of this case, and defendant does

not dispute Dr. Croce’s declaration on this matter. The Court, however, recognizes that conventions

for listing authors in scientific papers varies by discipline and publication. See Expert Report of Tiffany

L. McKerahan (Doc. 59-21) at 2; Matthias Weber, The Effects of Listing Authors in Alphabetical Order: A

Review of the Empirical Evidence, Research Evaluation, Vol. 27, No. 3 at 238 (Oxford Univ. Press July

2018); David B. Resnik, Ana M. Tyler, Jennifer R. Black, Grace Kissling, Authorship policies of scientific

journals, Journal of Medical Ethics 2016;42(3):199-202.

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.

B. Problems in Scientific Papers

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.

2 It would seem the matter of contributing authorship is a gray area. See Weber, supra; Resnik, et al.,

supra. According to the report of defendant’s expert, Tiffany L. McKerahan, the International

Committee of Medical Journal Editors recommends that four criteria be satisfied in order to qualify

for authorship: (1) substantial contributions made to the conception of the work or to the data for the

work; (2) drafting or revising the work; (3) final approval of the published version of the work and (4)

agreement to be accountable for all aspects of the work. McKerahan Report at 2-3.

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.

Terms related to the concept of plagiarism have also been used in this case. Dr. Sanders and

his expert use the term “text reuse” to refer to plagiarism when text is reused without attribution to

the original author or source. Sanders Decl. at ¶ 6; McKerahan Report at 5. Dr. Sanders has claimed

to have found instances of text reuse in Dr. Croce’s papers. See Sanders Decl. at ¶ 6. Dr. Croce uses

the term “text overlap” and admits that instances of text overlap have occurred in papers with his

name as a co-author. See Second Am. Compl. at ¶ 25. However, he denies that he has engaged in

plagiarism.3 See Croce Decl. at ¶ 15.

C. Corrections, Retractions, Withdrawals and Expressions of Concern

When problems in a paper come to light and the journal determines (or the authors volunteer)

to take responsive action, the action can take several forms. One is a correction. Eight of the 500

research papers originating from Dr. Croce’s lab (the ones for which Dr. Croce is almost always listed

as the last author) have been the subject of corrections to a figure or sub-figure. See Second Am.

Compl. at ¶ 24. “Figures” are “images of experimental results and other scientific information.” Id.

In these 8 papers, about 20 figures or sub-figures were corrected. As an example, Dr. Croce was the

last-listed author of a 2013 article in the Journal of Experimental Medicine (JEM) which contained

figures depicting images of the results from “Northern blot analysis of total RNA from HeLa cells”

subjected to certain experiments. See Doc. 59-17 at PAGEID 490. JEM later issued a correction

stating that aspects of the original figures were incorrect; the correction provided new figures supplied

by the authors. See Doc. 59-18 at PAGEID 507.

According to plaintiff’s discovery responses, a total of 12 corrections, including 3 for text

overlap, have been issued for research papers from Dr. Croce’s lab. See Doc. 63-2 at PAGEID 620.

Of the research papers for which Dr. Croce was a contributing author, 10 have been the subject of a

correction.4 Id. at PAGEID 621. Four of Dr. Croce’s review papers have been corrected, including

one for text overlap. Id. at PAGEID 622.

Retraction is another response to a problem in a scientific paper. This occurs when a journal

removes a paper without the authors’ consent. None of the research papers from Dr. Croce’s lab

have been retracted, nor have any of his review papers been retracted. Id. at PAGEID 620, 622.

3 Here too is gray area. The issue of when text reuse or overlap becomes plagiarism may depend on

the amount of text at issue, how common the reused words or phrases are and whether the reuse is

being done by an author of the original text. See Daniel T. Citron and Paul Ginsparg, Patterns of text

reuse in a scientific corpus, PNAS 112(1):25-30 (2015).

4 The discovery responses do not indicate the reasons for all of the corrections.

Research papers for which Dr. Croce was a contributing author have been retracted 3 times, but not,

according to Dr. Croce, because of any contribution he or his lab made. See id. at PAGEID 621;

Second Am. Compl. at ¶ 30.

The authors of a paper may elect to withdraw the paper. Dr. Croce withdrew one of the

research papers from his lab after the publication of the New York Times Article because of errors in 5

of the figures. See Croce Decl. at ¶ 12; Second Am. Compl. at ¶ 28. Dr. Croce has also withdrawn

one of his review papers. See Doc. 63-2 at PAGEID 622. Two papers for which Dr. Croce was a

contributing author have been withdrawn. See id. at PAGEID 621.

A journal might choose to issue an editorial expression of concern. Two research papers from

Dr. Croce’s lab have been the subject of an expression of concern. See id. at PAGEID 623. As an

example, shortly after the New York Times Article was published, the Proceedings of the National

Academy of Sciences of the United States of America (“PNAS”) issued an expression of concern over

a research paper from Dr. Croce’s lab published in its journal in 2005. See Doc. 59-8. The expression

of concern noted that a certain figure in the paper appeared to have “duplicated bands” of blot images.

Id. The expression of concern then noted that the authors of the paper did not have the original data

but had replicated the experiment, and the results of the replicated experiment were provided in the

expression of concern.

D. Dr. Sanders, “Freelance Ethicist”

Dr. Sanders has been on the faculty of Purdue University since 1995 and currently serves as

an associate professor in the Department of Biological Sciences. See Sanders Dep., Vol. I at 10;

Sanders Decl. at ¶ 2. He has taught courses in microbiology, virology, protein structure and protein

expression. See Sanders Dep., Vol. I at 12.

Dr. Sanders described himself in the New York Times Article as a “freelance ethicist.” Doc.

59-9 at PAGEID 469. A “major focus of [his] research and speaking has been the ethics of scientific

publication and strengthening peer review of grant applications and journal articles.” Sanders Decl.

at ¶ 2. Dr. Sanders endeavors to “scrutinize publications that come to [his] attention as possible

instances of duplication, data manipulation, and/or plagiarism and, where appropriate, raise these

issues through the appropriate channels with the publications.” Id.

Dr. Sanders has been a guest lecturer and speaker on the topic of ethics in scientific

publications. See id.; Sanders Dep., Vol. I at 12-14. At these talks attendees sometimes tell him about

a paper he should look into. Id. at 104. One tip he received was about Dr. Croce and a paper entitled

“WWOX gene restoration prevents lung cancer growth in vitro and in vivo.” Id. at 104-05; Doc. 59-7.

Dr. Croce was the last-listed author on the WWOX paper, which was published in PNAS in

2005 and, as mentioned above, was later the subject of an editorial expression of concern. A figure

in the paper featured numerous blot images depicting proteins that had been subjected to experiments.

Id. at PAGEID 444 (Figure 1). The figure contained a subfigure with two rows, called panels, and

nine columns, called lanes. Id. (Fig. 1B).

Dr. Sanders has a knack for detecting image duplication and remembering the blots he sees

reported in scientific journals. See Sanders Dep., Vol. I at 134 (“I’m embarrassed to say some part of

my brain has blots permanently burned into them.”). With the WWOX paper, he believed that the

blots in lanes 3, 4 and 5 of the bottom panel looked the same as the blots in lanes 6, 7 and 8 of the

same panel. See Sanders Dep., Vol. I at 22; Doc. 59-22 at PAGEID 551.

Having seen this example of what he considered to be image duplication and manipulation,

Dr. Sanders “started to dig.” Sanders Dep., Vol. I at 104. He examined over 30 articles in which Dr.

Croce was listed as an author and found what he believed to be other instances of image duplication

and manipulation, as well as plagiarism. See id. at 135-36; Sanders Decl. at ¶ 6.

Dr. Sanders made it his practice to contact scientific journals when he found a problem with

a paper they had published. Id. at ¶ 9. For example, Dr. Sanders emailed the Executive Editor of

PNAS in April 2015 about his concerns over image duplication in the WWOX paper. In response,

he was told that the authors of the paper had provided an “explanation stating that no duplication

occurred.” Doc. 59-22 at PAGEID 547. He was further told that PNAS’s “scientific experts closely

examined the materials and disagreed about potential image duplication in Fig. 1B. Given this

difference of opinion and that the paper was published in 2005, our editors therefore could not

conclusively determine whether image duplication had occurred.” Id. at PAGEID 548. This response

from PNAS comported with Dr. Sanders’s experience that “scientific journals were taking little to no

action in response” to reports of problems in published papers. Sanders Decl. at ¶ 9.

The response of the authors of the WWOX paper likewise was consistent with Dr. Sanders’s

experience “that the authors of the papers in which I had noticed errors did not own up to the errors.”

Id. at ¶ 8. According to Dr. Sanders, “it is important to the advancement of science and knowledge

that the scientific record be as accurate as possible. Where authors are presented with objective

evidence of errors in their scientific publication, yet they deny the presence of those errors, I believe

that to be misconduct and fraud.” Id. at ¶ 10.

E. Communications Between Glanz and Dr. Sanders

Dr. Sanders reached out to a reporter5 after reading a piece the reporter had written on

“questions about science.” Sanders Dep., Vol. I at 182. Dr. Sanders wanted to raise his concerns

over the problems he had found in scientific papers and over “the responses of the journals.” Id. The

reporter introduced him by email to James Glanz, an investigative journalist and science writer for The

New York Times. See id.; Glanz Decl. at ¶ 3.

Glanz and Dr. Sanders exchanged emails and telephone calls. See Sanders Dep., Vol. I at 163.

On September 26, 2016 Glanz traveled to Purdue and Dr. Sanders demonstrated how Western

blotting was done in the lab. See id. at 162, 165. They discussed blot images and Dr. Sanders focused

specifically on the WWOX paper, which he believed contained duplicated bands of images. See id. at

166.

Dr. Sanders hoped that speaking to Glanz would bring broader attention to the need for

accuracy in scientific journals and to the need for journals and authors to respond appropriately to

credible reports of problems in scientific papers. See Sanders Decl. at ¶¶ 9-10.

At some point during their exchanges, Dr. Sanders realized that Glanz intended to write an

article on the matter, and he understood that Glanz had decided to make Dr. Croce a focal point. See

Sanders Dep., Vol. I at 201-02. Dr. Sanders did not request that Dr. Croce be the focus of the article.

See id. According to Glanz, Dr. Sanders identified “what he believed to be image manipulation and

plagiarism” in numerous scientific papers. Glanz Decl. at ¶ 6. A “number of” the papers which Dr.

Sanders identified had Dr. Croce listed as an author. Id. Dr. Sanders told Glanz that “the presence

of some errors is inevitable in published scientific research, but that, based on his research, he believed

[Dr. Croce’s papers] demonstrate[d] a higher frequency of errors than is usual in the field.” Id. at ¶ 7.

Dr. Sanders described the image manipulation in the WWOX paper to Glanz as particularly

obvious and stated that the journal and the paper’s authors, after being alerted to the problem, had

failed to correct the error. Glanz Decl. at ¶ 8. Dr. Sanders viewed “such failures to correct errors as

‘a reckless disregard for the truth.’” Id. (quoting Dr. Sanders). Dr. Sanders did not single out Dr.

Croce in making this statement. Rather, Glanz understood Dr. Sanders to be saying that “each co-

author of any article containing such an error bears responsibility for ensuring that it is corrected.” Id.

5 In his deposition, Dr. Sanders identified the reporter as a Mr. Carey. See Sanders Dep., Vol. I at 182.

According to plaintiff, an email produced in discovery (but not on the record before the Court)

showed that the reporter was Ben Carey of The New York Times and that Dr. Sanders contacted him

in early 2016. See Doc. 65-2 at PAGEID 712 n.2.

Dr. Sanders agrees that Glanz’s understanding of his position was correct – “I believe everybody on

the paper is responsible.” Sanders Dep., Vol. II at 51.

F. Glanz Sends the Letter to Ohio State

Glanz had decided at some point that his article would concern “Dr. Croce and his lab.” Glanz

Decl. at ¶ 10. Glanz arranged to interview Dr. Croce in person and tour his lab at Ohio State in early

October 2016. See Doc. 32 at ¶¶ 43-44 in Croce v. New York Times Co., Case No. 2:17-cv-402 (S.D.

Ohio).

On November 23, 2016, Glanz sent the Letter on New York Times letterhead to Ohio State

and Dr. Croce. See Doc. 59-11. Glanz said he had questions he wanted to “put urgently” to Ohio

State and Dr. Croce as part of an article he was preparing. Id. at PAGEID 474. Glanz requested

responses to 25 paragraphs’ worth of questions.

Glanz cited Dr. Sanders in six of those paragraphs. He described Dr. Sanders as one of two

whistleblowers (the other being an anonymous complainant) who had claimed there were problems

in papers on which Dr. Croce was listed as an author. The alleged problems included data

manipulation and duplication and plagiarism. Glanz commented also that “the integrity of the data

or text in at least 20 papers coauthored by Dr. Croce” had been the subject of anonymous criticism

on professional websites, including one called Pubpeer. Id. at PAGEID 474.

Glanz wrote that Dr. Sanders had “lodged over a dozen complaints [with scientific journals]

involving papers on which Dr. Croce is an author.” Id. Though corrections had been issued in four

instances, Glanz noted that in other cases “Dr. Croce and colleagues have successfully disputed the

claims and prevented corrections or retractions from being issued.” Id. Glanz asked Dr. Croce to

respond to the claims of Dr. Sanders and the anonymous critics.

The Letter identified the WWOX paper and several other papers as being specific examples

of papers containing what Dr. Sanders had claimed was image duplication and plagiarism. Glanz noted

that Dr. Croce and his co-authors had not conceded any such problems with those papers, even when

the journals which published the papers or other experts had agreed with Dr. Sanders that problems

seemed to exist. Glanz asked Dr. Croce to explain his position that there was nothing wrong with

those papers. See id. at PAGEID 475.

The Letter also included a paragraph that, according to the complaint, contained two

defamatory statements.

Dr. Sanders argues – because in his observation the image fabrication, duplication

and mishandling, and plagiarism in Dr. Croce’s papers is routine, and because

the authors routinely dispute those allegations when confronted with them through

the journals – that Dr. Croce is knowingly engaging in scientific misconduct and

fraud. Does Dr. disagree with this allegation, and if so, why[?]

Id. at PAGEID 474 (emphasis added).

Dr. Croce retained legal counsel to respond to Glanz’s Letter. He asserted that Dr. Sanders’s

statements were “outrageously false and defamatory.” See Case No. 2:17-cv-402, Doc. 32-2 at

PAGEID 687.

G. The Article

The New York Times published the Article on its website on March 8, 2017. See Glanz Decl. at

¶ 4. The Article was entitled, “Years of Ethics Charges, but Star Cancer Researcher Gets a Pass.” See

Doc. 59-9 at PAGEID 457. On March 9, The Times published the Article on the front page of its print

version under the headline, “Years of Questions, but Researcher Gets a Pass.” Id. at PAGEID 471.

The Article was substantial in length, comprising over 14 pages and about 90 paragraphs in the version

submitted on the Court’s record. Id. at PAGEID 457 to 471.

The Article contained an opening sequence of paragraphs which introduced Dr. Croce as a

“prolific” cancer researcher who had attracted enormous sums of federal grant money and had

received a multitude of awards. Id. at PAGEID 457. Yet a “quotient of controversy” had followed

him. Id. Questions loomed over “his expansive claims for the therapeutic promise of his work” and

concerns existed that “his laboratory is focused more on churning out papers than on carefully

assessing its experimental data.” Id. The Article reported that “Dr. Croce has been fending off a tide

of allegations of data falsification and other scientific misconduct, according to federal and state

records, whistle-blower complaints and correspondence with scientific journals obtained by The New

York Times.” Id.

In the fifth paragraph, the Article introduced Dr. Sanders as one of Dr. Croce’s critics. Dr.

Sanders “has made claims of falsified data and plagiarism directly to scientific journals where more

than 20 of Dr. Croce’s paper have been published.” Id. The Article then quoted Dr. Sanders in a

statement that the complaint alleges is defamatory:

“It’s a reckless disregard for the truth,” Dr. Sanders said in an interview.

Id. at PAGEID 458 (emphasis added).

The Article next stated that “[a]s a result of complaints by Dr. Sanders and others, journals

have been posting notices of problems with Dr. Croce’s papers at a quickening pace.” Id. Many of

the problems, the Article explained, involved manipulation of blot images. A blot captures results and

“often indicates whether an experiment has succeeded or failed.” Id.

A graphic on the second page of the Article depicted blot images from the WWOX paper,

with a caption stating that Dr. Sanders “has concluded that the blots in at least three lanes in Figure

1B in a 2005 paper by Dr. Croce were improperly duplicated.” Id. Readers of the online version of

the Article could select a “Show Duplication” button which created an animation whereby lanes 6, 7

and 8 were superimposed on top of lanes 3, 4 and 5 to show the duplication.

The thesis of the Article was then stated: universities are “inherently conflicted arbiters” when

it comes to investigating and punishing misconduct by their rainmakers. Id. And, the Article told its

readers, Dr. Croce would be the “case study of the complex and often countervailing forces at work

as science seeks to police itself.” Id. “Despite the lashing criticisms of his work, Dr. Croce has never

been penalized for misconduct, either by federal oversight agencies or by Ohio State, which has cleared

him in at least five cases involving his work or the grant money he receives.” Id.

The Article covered much ground over the next nine pages. The viewpoints of several

respected scientists about Dr. Croce’s place in the field were offered: “I would say Carlo has made

some important contributions to the molecular causes of cancer . . . . I can’t condone the sloppiness

he has in general.” Id. at PAGEID 460. Concerns about Dr. Croce’s history as an adviser to the

tobacco industry were reviewed. See id. at PAGEID 461-63. A history of allegations of various types

of misconduct against Dr. Croce was examined, as was Ohio State’s record of responding to such

allegations. The Article included in its presentation the statements of Dr. Croce and Ohio State in

defense of their actions. See id. at PAGEID 463-67.

Twelve pages in, the Article circled back to Dr. Sanders, under the heading of “Raising Larger

Questions.” Id. at PAGEID 468. It described how Dr. Sanders used Figure 1B from the WWOX

paper in one of his classes as an example of image duplication. “‘This is the one I start with because

it’s so obvious,’ Dr. Sanders said.” Id. When Dr. Sanders tells the class that “the journal declined to

take any action, . . . [the students are] very stunned that that sort of thing happens.” Id.

The Article relayed how, when Dr. Sanders raised concerns about the WWOX paper, the

journal retained two experts and contacted Dr. Croce. The experts disagreed with one another about

whether the images were duplicates and Dr. Croce denied the allegations. This led the journal to

conclude that it “could not conclusively determine” whether to issue a correction. Id.

Dr. Sanders commented – in the next statement that is allegedly defamatory – as follows:

“A lab that is engaging in violating scientific norms is being rewarded for that

very effort,” he said.

Id. at PAGEID 469 (emphasis added).

The Article then concluded by putting the concerns about Dr. Croce’s papers in context.

“Concerns about falsified data in the scientific literature run far deeper than Dr. Croce’s papers.” Id.

The Article cited a study that had found 800 research papers, out of a sampling of 20,000, which

contained improperly manipulated blot images. The implications are alarming, according to the

Article. For one, “[s]cience is built on science . . . . Incorrect or fraudulent papers could be slowing

the pace of everything.” Id. at PAGEID 470 (internal quotation marks omitted). In addition,

misconduct undermines public confidence: “It impugns the reputation of science in general and

scientists in that field in particular.” Id. (internal quotation marks omitted).

H. The Article

Shortly after the Article was published, Dr. Sanders was contacted by a local news reporter,

Meghan Holden from the Lafayette Journal & Courier, who requested an interview with him about the

New York Times Article. See Sanders Dep., Vol. I at 151-52. He agreed to an in-person interview,

which lasted 30 minutes. Id. at 151.

During the interview, he discussed a research paper published in 2013 in JEM. Id. The paper

contained another example of what Dr. Sanders believed was image duplication or falsification of blot

panels. Id. at 150. Dr. Croce was the last-listed author on the paper, which was entitled, “In vivo NCL

targeting affects breast cancer aggressiveness through miRNA regulation.” Doc. 59-17.

Dr. Sanders had raised his concerns about the paper to JEM. What followed only made the

problems worse, he believed. The journal and authors of the JEM paper purportedly tried to correct

the blots panels, but Dr. Sanders believed that, among other things, one of the supposedly corrected

versions did not actually replace a problematic panel, but rather the authors inverted or flipped the

blots in the panel to make them look different. See Sanders Dep., Vol. I at 128-30. He believed too

that another problematic panel had been replaced in a supposedly corrected version with a panel that

was copied and flipped from an earlier paper which had been published in a different journal, but with

Dr. Croce as the last-listed author. See id. at 130-33.

The Lafayette Journal & Courier published an article on March 22, 2017 entitled, “Purdue

biologist calls out cases of scientific misconduct.” The J&C Article was two-and-a-half pages long in

the version submitted on the Court’s record. See Doc. 59-16. It opened by stating that scientists who

accuse other scientists “of sloppiness or misconduct in their work” are likely to face repercussions

which could adversely affect their careers. The J&C Article then introduced Dr. Sanders as a scientist

who was willing to face that risk, and it made the following statement that the complaint alleges is

defamatory:

But that didn’t stop Sanders from alleging that Dr. Carlo Croce, a prominent cancer

researcher at Ohio State University, falsified data or plagiarized text in more than

two dozen articles Croce has authored.

Id. (emphasis added).

The J&C Article then noted Dr. Sanders’s track record for calling out scientists for “bad

behavior” and stated that he had recently gone “more public” by taking his claims to The New York

Times. Id. His motivation for doing so: “‘[I]t’s about the scientific record and the integrity of the

scientific record . . . . I believe that it is the responsibility of the individual scientist and the journals

and institutions to reinforce scientific integrity, and that’s what I’m trying to do.’” Id. (quoting Dr.

Sanders).

The J&C Article turned to a discussion of Dr. Sanders having found “a pattern of data being

duplicated within either the same article or within papers in which Croce is listed as an author.” Id.

“He said he also found acts of textual plagiarism.” Id. The J&C Article cited the New York Times

Article’s report that an anonymous critic had made claims of “falsified data in more than 30 of Croce’s

articles” and that “at least 20 corrections, retractions or editors’ notices in his articles have been

published in scientific journals.” Id. at PAGIED 485. Many of the problems involved blot images.

See id.

The J&C Article then offered this quotation that the complaint alleges contains three

defamatory statements:

“If you wanted to just make up data you could do it in a way that’s much more

difficult to detect, but they didn’t because they were able to get away with this

relatively simple manipulation,” Sanders said. “They continued to do it over and

over again.”

Id. (emphasis added).

That quotation was then put in the context of the JEM paper. “He’s alleging the correction,

which was originally prompted by a complaint from Sanders, also includes an image that was

duplicated and manipulated.” Id. The Article then explained the situation in more detail:

This original image involved a northern blot, which is used to detect specific RNA

molecules among a mixture of RNA, in a 2013 paper by Croce in the Journal of

Experimental Medicine. Sanders noticed that two of the images appeared to be

strikingly similar. The original figures were replaced in the online article by the now

corrected versions. But a screenshot of the images, which Sanders sent to the Journal

& Courier, shows that two sets of blots in the article included the same images, with

one set of blots enlarged a little.

Sanders contacted the journal about the duplication and a correction by the authors

was quickly published. That was in late January. But Sanders still sensed something

was off with the corrected images. He said he knew he had seen that same set of blots

before. He believes that set appeared in a 2010 article, of which Croce was also an

author, in another journal.

The corrected set of blots, Sanders alleges, includes a duplicate, mirror image of a set

of blots that were published in a 2010 article in Cancer Cell.

Id.

The J&C Article next incorporated the perspective of a professor at a major university who

opined that the “spike” in scientific misconduct stems from “fierce competition to get a share of the

finite pool of federal research dollars.” Id. at PAGEID 485-86. The pressure to “churn out papers

and receive more grants” creates an incentive to “rush work, cut corners or oversell the implications

of their research.” Id. at PAGEID 486.

The J&C Article returned to Dr. Sanders in the concluding paragraphs. “‘The fact that they’re

getting (grants) having engaged in this activity means somebody else who is honest is not receiving

them,’ Sanders said.” Id. (alteration in original). “On top of that, acts of fraud and dishonesty

undermine public trust in science, he said. . . . But he’s hoping he has at least inspired other scientists

to speak out and spur a discussion.” Id.

I. Procedural Background

Dr. Croce originally brought suit against Dr. Sanders in state court. The action was removed

to federal court on the basis of diversity jurisdiction. The Second Amended Complaint asserts three

causes of action: defamation per se, defamation per quod (in the alternative) and intentional infliction of

emotional distress.

Plaintiff alleges that Dr. Sanders is liable for eight separate instances of defamation: two in the

Letter, two in the New York Times Article and four in the J&C Article.

Defendant has moved for summary judgment. Defendant argues that the statements are not

actionable in defamation for one or more reasons: they are substantially true; they are statements of

protected opinion; or they are susceptible of an innocent construction. Defendant further argues that

he did not make the statements with actual malice, which he believes is the applicable standard because

he views Dr. Croce as a limited purpose public figure. Finally, defendant argues that he is entitled to

an award of attorney’s fees and costs under Indiana’s Anti-SLAPP (Strategic Lawsuit Against Public

Participation) Act. See Ind. Code § 34-7-7-1, et seq.

II. Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is proper if the evidentiary

materials in the record show that there is “no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Longaberger Co. v. Kolt, 586 F.3d

459, 465 (6th Cir. 2009). The moving party bears the burden of proving the absence of genuine issues

of material fact and its entitlement to judgment as a matter of law, which may be accomplished by

demonstrating that the nonmoving party lacks evidence to support an essential element of its case on

which it would bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005).

The “mere existence of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement is that there be no

genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in

original); see also Longaberger, 586 F.3d at 465. “Only disputed material facts, those ‘that might affect

the outcome of the suit under the governing law,’ will preclude summary judgment.” Daugherty v. Sajar

Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008) (quoting Anderson, 477 U.S. at 248). Accordingly, the

nonmoving party must present “significant probative evidence” to demonstrate that “there is [more

than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc., 8 F.3d 335,

340 (6th Cir. 1993).

A district court considering a motion for summary judgment may not weigh evidence or make

credibility determinations. Daugherty, 544 F.3d at 702; Adams v. Metiva, 31 F.3d 375, 379 (6th Cir.

1994). Rather, in reviewing a motion for summary judgment, a court must determine whether “the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. The evidence, all

facts, and any inferences that may permissibly be drawn from the facts must be viewed in the light

most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). However, “[t]he

mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there

must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252;

see Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009).

III. Threshold Issues

A. Choice of Law

Defendant argues that Ohio or Indiana law could govern the claims in this action. Even so,

he recognizes that a choice-of-law analysis would lead to the application of Ohio law because the law

of the place of the injury generally governs a tort action and Dr. Croce, the allegedly defamed person,

is an Ohio resident. See Klaxon Co. v. Stentor Elec. Mfg., Co., 313 U.S. 487, 496 (1941) (federal court

sitting in diversity applies the choice-of-law rules of the state in which it sits); Morgan v. Biro Mfg. Co.,

15 Ohio St.3d 339, 342, 474 N.E.2d 286, 289 (Ohio 1984) (the law of the state with the “more

significant relationship” to the lawsuit prevails and the place of injury is a primary consideration).

Defendant has conceded too that Ohio and Indiana law are “very similar” when it comes to plaintiff’s

defamation claims. Doc. 63-1 at p. 8.

Defendant, however, argues that Indiana law must be applied to his claim for attorney’s fees

under Indiana’s anti-SLAPP law. The Court will return to the anti-SLAPP claim in Section VII below,

but will apply Ohio law to plaintiff’s defamation claims.

B. Elements of a Defamation Claim

Defamation is the publication of a false statement of fact “made with some degree of fault,

reflecting injuriously on a person’s reputation, or exposing a person to public hatred, contempt,

ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession.”

A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 7, 651

N.E.2d 1283, 1289 (Ohio 1995).

To establish a defamation claim under Ohio law, the plaintiff must establish that:

(1) a false statement of fact was made, (2) the statement was defamatory, (3) the

statement was published, (4) plaintiff suffered injury as a proximate result of the

publication, and (5) defendant acted with the requisite degree of fault in publishing the

statement.

See Am. Chem. Soc’y v. Leadscope, Inc., 133 Ohio St.3d 366, 389, 978 N.E.2d 832, 852 (Ohio 2012)

(quoting Pollock v. Rashid, 117 Ohio App.3d 361, 368, 690 N.E.2d 903, 908 (Ohio Ct. App. 1996)).

Defendant’s motion for summary judgment puts at issue the first, second and fifth elements.

The Court will begin its analysis with the standard applicable for the fifth element – whether plaintiff

must prove that Dr. Sanders acted with actual malice in making the allegedly defamatory statements.

The Court will then examine each allegedly defamatory statement and determine whether defendant

has demonstrated, for purposes of summary judgment, that plaintiff cannot establish the disputed

elements of his defamation claims.

C. Degree of Fault

The requisite degree of fault on defendant’s part depends on the “public” nature of the

plaintiff. Ohio law creates four classifications of defamation plaintiffs “(1) a private person; (2) a

public official; (3) a public figure; and (4) a limited purpose public figure.” Talley v. WHIO TV–7 &

WDTN TV–2, 131 Ohio App.3d 164, 169, 722 N.E.2d 103, 106 (Ohio Ct. App. 1998). “The

determination of whether or not a party is a public figure is a matter of law.” Kassouf v. Cleveland

Magazine City Magazines, 142 Ohio App.3d 413, 421, 755 N.E.2d 976, 982 (Ohio Ct. App. 2001).

Defendant argues that Dr. Croce is a limited purpose public figure who must show that Dr.

Sanders acted with actual malice. “To recover in a defamation action, a public figure, including a

limited-purpose public figure, must show by clear and convincing evidence that the statements were

made with actual malice, that is, with knowledge that the statements were false or with reckless

disregard of whether they were false or not.” Daubenmire v. Sommers, 156 Ohio App.3d 322, 343, 805

N.E.2d 571, 587 (Ohio Ct. App. 2004) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-280

(1964)).

Plaintiff contends that Dr. Croce is a private person and must establish only negligence on the

part of Dr. Sanders. A “private plaintiff must show that the statement was false and that the defendant

was at least negligent in publishing the false statement.” Kassouf, 142 Ohio App.3d at 421, 755 N.E.2d

at 982-83 (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 766 (1985)).

“A limited-purpose public figure is one who becomes a public figure for a specific range of

issues by being drawn into or voluntarily injecting himself into a specific public controversy.” Kassouf,

142 Ohio App.3d at 421, 755 N.E.2d at 982 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)).

In determining whether a person is a limited purpose public figure, a court considers the “person’s

participation in the controversy from which the alleged defamation arose” and whether the person

“has attained a general notoriety in the community by reason of that participation.” Talley, 131 Ohio

App.3d at 170, 722 N.E.2d at 107.

In arguing that Dr. Croce is a limited purpose public figure, defendant recites what Dr. Croce

has said about himself. And there’s no shortage of material – “I am considered like the Pope of the

genetics of leukemias and lymphomas.” Croce Dep. at 16. Dr. Croce calls himself a “pioneer” and

“one of the world’s most distinguished scientific researchers in the area of cancer genetics.” Second

Am. Compl. at ¶ 5; Croce Decl. at ¶ 2. His “groundbreaking” work” has led to “revolutionary

innovations” and has “changed medicine” and “changed the way we think about cancer.” Second

Am. Compl. at ¶¶ 5, 8; Croce Dep. at 14, 18. Dr. Croce doesn’t hesitate to boast of his “H Index,”

“an objective measure to assess scientific impact of a scientist.” Croce Decl. at ¶ 4. His H Index of

223 ranks as “one of the highest in the world,” and Dr. Croce adds, “I am one of the most cited

scientists in the world.” Id.; see also Croce Dep. at 12-13 (“I have one of the greatest impacts in the

world. I have the highest H index of any Italian scientist ever.”). Dr. Croce’s “phenomenal” and

“outstanding” work has merited “generational fame” and his position as “the lodestar” in “a field

replete with stellar scientists.” Croce Dep. at 17; Second Am. Compl. at ¶¶ 48, 71.

But Dr. Croce’s high view of himself does not satisfy the standard for proving that someone

is a limited purpose public figure – a standard which defendant’s motion fails to address. Ohio law

follows the United States Supreme Court’s decision in Gertz in this area. See Kassouf, 142 Ohio App.3d

at 421, 755 N.E.2d at 982; Talley, 131 Ohio App.3d at 170, 722 N.E.2d at 107. Under Gertz, a court

must first examine whether a public controversy exists. See Thomas M. Cooley Law Sch. v. Kurzon Strauss,

LLP, 759 F.3d 522, 529 (6th Cir. 2014) (citing Gertz, 418 U.S. at 345). Second, a court examines “the

nature and extent of the [plaintiff’s] involvement in the controversy” so as to “determine whether the

plaintiff voluntarily injected itself into the particular public controversy giving rise to the alleged

defamation.” Id. (internal quotation marks omitted).

The Court finds that defendant has failed to meet his burden at the summary judgment stage

of showing as a matter of law that Dr. Sanders is a limited purpose public figure.6 Undoubtedly,

misconduct in scientific research, particularly cancer research, is a matter of great public importance.

See Croce v. New York Times Co., 345 F.Supp.3d at 982 (“There could hardly be an area of medical

science of greater public concern than finding a cure for cancer.”). The Court will assume, without

deciding, that a public controversy exists concerning the use of false and manipulated data in reporting

the results of scientific research. See Waldbaum v. Fairchild Pub., Inc., 627 F.2d 1287, 1296 (D.C. Cir.

1980) (a public controversy is “a real dispute, the outcome of which affects the general public or some

segment of it in an appreciable way”).

Where the evidence is currently lacking, however, is in showing that Dr. Croce voluntarily

injected himself into the controversy. A court may consider several factors in determining the nature

and extent of a plaintiff’s participation in a public controversy: the extent to which plaintiff’s

participation in the controversy was voluntary; whether plaintiff had “access to channels of effective

communication in order to counteract false statements”; the prominence of the role plaintiff played

6 In Dr. Croce’s suit against The New York Times, defendant conceded that Dr. Croce was a private

figure. See Croce v. New York Times Co., 345 F.Supp.3d 961, 974, 976 (S.D. Ohio 2018), aff’d, 930 F.3d

787 (6th Cir. 2019).

in the public controversy; whether plaintiff “sought to influence the resolution or outcome of the

controversy; and whether “the controversy existed prior to the publication of the defamatory

statement.” Thomas M. Cooley, 759 F.3d at 529; Hatfill v. The New York Times Co., 532 F.3d 312, 319

(4th Cir. 2008). See also Worldnet Software Co. v. Gannett Satellite Info. Network, Inc., 122 Ohio App.3d 499,

508, 702 N.E.2d 149, 155 (Ohio Ct. App. 1997).

Without discussing these factors, defendant relies on Dr. Croce’s prominence as a cancer

researcher as proof that Dr. Croce invited attention and critique of his work and should be treated as

a limited purpose public figure. This argument goes too far. Dr. Croce published articles in scientific,

peer-review journals, not in media of general public circulation. Dr. Croce was a prolific author in

specialized journals where review and critique are expected, but the record does not support a

conclusion that he voluntarily sought to influence public debate on misconduct in scientific research.

A public controversy involving Dr. Croce did not arise until the Times Article was published.

Dr. Croce had been the subject of criticism before by peers in the scientific community, Dr. Sanders

included. But the available evidence shows that when a journal would contact Dr. Croce with concerns

about an article he co-authored, he confined his responses to the journal contacting him. See, e.g.,

Doc. 63-3 (Dr. Croce’s response to proposed expression of editorial concern by PNAS); Docs. 63-4,

63-5, 63-6, 63-7, 63-8. Dr. Croce did not make a public matter out of these disputes or defend himself

to a larger audience. Compare Thomas M. Cooley, 759 F.3d at 530-31 (plaintiff was a limited purpose

public figure because it used its access to channels of communication to publicly respond to claim that

it “churn[ed] out too many [law school] grads”) with Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157,

167 (1979) (finding that accused spy was not a limited purpose public figure where he “never discussed

[the] matter with the press and limited his involvement to that necessary to defend himself against the

contempt charge”).

Indeed the evidence indicates that Dr. Sanders was the one who, being frustrated with the

inaction of the journals, sought access to wider channels of communication to cast attention on the

issue of research misconduct and the failure of scientific journals to adequately address these

problems. Dr. Sanders reached out to a journalist, which led him to Glanz and The New York Times.

Dr. Sanders hosted Glanz to talk about his concerns. Glanz, in turn, reached out to Dr. Croce, but

not to discuss scientific misconduct. He approached Dr. Croce under the guise of talking about

“promising anti-cancer results” and “the fascinating topic of microRNA.” Croce v. New York Times Co.,

345 F.Supp.3d at 971 (quoting Glanz’s initial letter to Dr. Croce). Even when Glanz later sent the

Letter to Dr. Croce, detailing the accusations against him, Dr. Croce responded only to Glanz; he did

not make a broader or more public self-defense. See id.

Dr. Sanders and The New York Times essentially drew Dr. Croce into the controversy. In their

view, they had very good reasons for doing so – reasons of public importance – but that does not

convert Dr. Croce into a public figure. “A private individual is not automatically transformed into a

public figure just by becoming involved in or associated with a matter that attracts public attention.”

Wolston, 443 U.S. at 167. Nor can a person create their own defamation defense by dragging someone

“unwillingly” into a public controversy. Id. at 166.

In Hutchinson v. Proxmire, 443 U.S. 111 (1979), the plaintiff was a professor and researcher

whose receipt of federal funding attracted the ire of someone who decried it as an example of

government waste. The Court rejected defendant’s claim that the plaintiff’s published writings and

his willing receipt of government funding made him a limited purpose public figure: “[Plaintiff’s]

published writings reach a relatively small category of professionals concerned with research in human

behavior. To the extent the subject of his published writings became a matter of controversy, it was

a consequence of the Golden Fleece Award. Clearly, those charged with defamation cannot, by their

own conduct, create their own defense by making the claimant a public figure.” Id. at 135. Compare

Hatfill, 532 F.3d at 320-24 (finding a research scientist to be a limited purpose public figure during the

2001 anthrax scare because, prior to the defamatory statements, he had made public speeches and

appeared in national media where he was a “vocal critic of the government’s unpreparedness for a

bioterrorist attack”) with Gilbert v. WNIR 100 FM, 142 Ohio App.3d 725, 738, 756 N.E.2d 1263, 1272

(Ohio Ct. App. 2001) (holding that a prominent attorney accused of crime was not a limited purpose

public figure because he “did not thrust himself into the investigation of the murder of Mrs. Prade;

rather, the investigation was . . . thrust upon him”); Greenberg v. CBS Inc., 69 A.D.2d 693, 705, 419

N.Y.S.2d 988 (N.Y. 2d Dep’t 1979) (holding that a doctor who had authored dozens of articles in

scientific books and journals was not a limited purpose public figure in action against CBS over a 60

Minutes story accusing him of improperly prescribing amphetamines because plaintiff’s articles were

“intended for a scholarly audience and not for a mass market,” “nor did he seek the attention of the

media”).

The Court finds that Dr. Croce is not a limited purpose public figure by virtue of Dr. Sanders’s

communications with a New York Times journalist leading to an article which used Dr. Croce as a “case

study” about how public institutions and peer-review journals police scientific misconduct. Yes, Dr.

Croce enjoys acclaim as a scientist and he certainly is no wallflower. See Doc. 59-9 at PAGEID 457

(Times Article using the word “flamboyant” in connection with Dr. Croce); Sylvia Pagán Westphal,

High Hopes for a New Kind of Gene, Smithsonian Magazine (July 2009) (discussing Dr. Croce’s work with

microRNA and his “extravagant” taste for Ferraris and Italian art). But the summary judgment record

does not establish that Dr. Croce invited involvement in the controversy for which Dr. Sanders’s

remarks and the Times Article were concerned.

The Court therefore will apply a negligence standard when examining the claims against Dr.

Sanders. Kassouf, 142 Ohio App.3d at 421, 755 N.E.2d at 982-83.

IV. The Letter

Plaintiff alleges that there are two defamatory statements contained in the November 23, 2016

Letter sent by Glanz to Ohio State and Dr. Croce. Both statements appear in the following paragraph:

Dr. Sanders argues – because in his observation the image fabrication, duplication

and mishandling, and plagiarism in Dr. Croce’s papers is routine, and because

the authors routinely dispute those allegations when confronted with them through

the journals – that Dr. Croce is knowingly engaging in scientific misconduct and

fraud. Does Dr. disagree with this allegation, and if so, why[?]

Doc. 59-11 at PAGEID 474 (emphasis added). Though Glanz did not present these statements as

direct quotations, defendant does not dispute for purposes of the present motion that they accurately

reflect what he said to Glanz. The parties identify the statements as Statements 1a and 1b.

A. Statement 1a

Defendant argues that the statement, “image fabrication, duplication and mishandling, and

plagiarism in Dr. Croce’s papers is routine,” is not a false statement of fact. According to defendant,

discovery has proved that these problems did in fact exist in papers for which Dr. Croce was listed as

an author. Defendant further argues that the problems appeared enough to make the description of

them as “routine” substantially true. Defendant also contends that he was not negligent in making

the statement, but based it on facts within his knowledge or “in his observation.”

Plaintiff responds that an ordinary reader would interpret the statement as saying that Dr.

Croce himself engaged in image fabrication and plagiarism. A reader would not appreciate the

distinction that the problems occurred in papers he personally did not write or research. In this way,

plaintiff argues, the statement is untrue in accusing Dr. Croce of personally and routinely engaging in

fabrication and plagiarism. Plaintiff continues that in no sense of the word “routine” could a dozen

or so problems out of more than 1,000 papers be considered routine. Lastly, plaintiff argues that Dr.

Sanders was negligent in accusing Dr. Croce of misconduct without verifying whether Dr. Croce was

personally involved in each of the papers at issue.

1. Truth

The first element of a defamation claim is that defendant made a false statement of fact. See

Am. Chem. Soc’y, 133 Ohio St.3d at 389, 978 N.E.2d at 852. A false statement is one which “sets forth

matters which are not true or statements without grounds in truth or fact. A statement is not a false

statement if, even though it is misleading and fails to disclose all relevant facts, the statement has some

truth in it. Moreover, a statement that is subject to different interpretations is not false.” Susan B.

Anthony List v. Driehaus, 779 F.3d 628, 633 (6th Cir. 2015) (internal quotation marks omitted); accord

Serv. Emp. Int’l Union Dist. 1199 v. Ohio Elections Comm’n, 158 Ohio App.3d 769, 822 N.E.2d 424, 430

(Ohio Ct. App. 2004).

Showing truth in defamation law is a “low threshold.” Susan B. Anthony List, 779 F.3d at 633.

What matters is “that the ‘gist’ or ‘sting’ of the statement is substantially true.” Id.; accord National Medic

Services Corp. v. E.W. Scripps Co., 61 Ohio App.3d 752, 573 N.E.2d 1148, 1150 (Ohio Ct. App. 1989).

The Court looks past “minor inaccuracies” to find the “gist.” Masson v. New Yorker Magazine, Inc., 501

U.S. 496, 517 (1991). An inaccuracy is minor, unless the statement “‘would have a different effect on

the mind of the reader from that which the pleaded truth would have produced.’” Id. (quoting R.

Sack, Libel, Slander, and Related Problems 138 (1980)).

Discovery has proved the existence of about 30 instances of fabrication or duplication of

figures and text overlap in papers bearing Dr. Croce’s name as a co-author. Plaintiff’s own inventory

of problems has 35 entries, although as many as 3 to 5 entries relate to what are indicated as minor

mistakes, such as a correction to an author’s name or a misplaced comma, which are not the types of

problems at issue here. See Doc. 63-2 at PAGEID 620-23.

Plaintiff’s response to the motion for summary judgment does not dispute that the problems

in his inventory represent instances of fabrication, falsification and plagiarism. Rather, plaintiff

contends that Dr. Sanders’s statement falsely accuses Dr. Croce of personally engaging in image

fabrication and plagiarism. See, e.g, Doc. 65 at PAGEID 668-69, 672-73, 76-77. Plaintiff argues that

a reasonable reader would interpret the statement as claiming that Dr. Croce directly committed those

practices.

The Court disagrees. The closest the statement gets to plaintiff’s interpretation is by referring

to the problematic articles as “Dr. Croce’s papers.” But context is critical, and a court must review a

publication in its entirety. See Am. Chem. Soc’y, 133 Ohio St.3d at 389-90, 978 N.E.2d at 853;

Connaughton v. Harte Hanks Commc’ns, Inc., 842 F.2d 825, 840 (6th Cir. 1988), aff’d, 491 U.S. 657 (1989)

(“[T]he words of the publication should not be considered in isolation, but rather within the context

of the entire article . . . .”).

A reasonable reader reviewing the Letter in its entirety would understand that “Dr. Croce’s

papers” refers to papers for which he was listed a co-author. The Letter’s first numbered paragraph

sets the stage in its first sentence: “Dr. Croce is listed as a coauthor on at least 15 papers that have

been retracted or corrected, many in recent years.” Doc. 59-11 at PAGEID 474. The same paragraph

discusses problems in “papers coauthored by Croce” and states that Dr. Sanders had lodged

complaints with respect to “papers on which Dr. Croce is an author.” Id. And to leave no doubt, the

Letter further clarifies that in most of these papers “Dr. Croce is the senior author – indicated either

by his position as last author, the fact that the research was done under his supervision or in his lab,

or simply because he has far more seniority in the field than any of the other authors.” Id.

Statement 1a is the first sentence in the second numbered paragraph and immediately follows

the first numbered paragraph. So when Dr. Sanders said that the problems were in “Dr. Croce’s

papers,” a reasonable reader would know without hesitation that the papers were ones for which Dr.

Croce was listed as a co-author. They would understand that Dr. Croce’s name could have been on a

paper even though he did not personally write the article or conduct the research. And the rest of the

Letter confirms this understanding. The Letter asks whether Dr. Croce “attempt[ed] to exercise any

quality control on the papers that bear his name?” and whether he exercised any “oversight of the

practices within his lab or among his collaborators?” Id. The Letter repeatedly refers to Dr. Croce as

a co-author and as having collaborators. Id. at PAGEID 474-75.

The Court thus finds that Statement 1a was true or substantially true in stating that Dr. Croce’s

papers contained image fabrication, duplication and plagiarism.

Statement 1a describes the problems in Dr. Croce’s papers as “routine.” As an adjective,

“routine” means “performed in a more or less identical way on repeated occasions” and “performed

as or forming part of a regularly followed procedure.” Routine, Oxford English Dictionary (3d ed.

2011). It describes a practice or procedure which is “normal,” “usual” or “regular.” Routine, Oxford

American Writer’s Thesaurus (3d ed. 2012).

The Court finds that Statement 1a is substantially true in using the word routine. The gist of

Dr. Sanders’s claim was that the problems of fabrication, duplication and plagiarism appeared

repeatedly in papers Dr. Croce had co-authored. And they did – at least 30 times. As the Letter

describes, it was normal for Dr. Sanders to find these problems in papers with Dr. Croce’s name as a

co-author. See Doc. 59-11 at PAGEID 474-75; Sanders Dep., Vol. I at 135; Sanders Dep., Vol. II at

46.

In plaintiff’s view, “routine” does not accurately describe the existence of 30 or so problems

out of over 1,000 papers on which Dr. Croce’s name has appeared. However, “defamation case law

affords leeway in the reporting of numbers if the discrepancy does not alter the gist of what is being

reported and does not produce a different effect in the mind of the reader.” Croce v. New York Times

Co., 345 F.Supp.3d at 987 n.5 (citing cases). Here, the gist of Statement 1a is that problems had

repeatedly been found in Dr. Croce’s papers. A reasonable reader would not expect a certain

percentage.

The context in which Statement 1a appears supports this conclusion. The Letter’s first

numbered paragraph again sets the tone by communicating the numerical magnitude involved. It

reports that 15 papers with Dr. Croce as co-author had been corrected or retracted, that Dr. Sanders

had “lodged over a dozen complaints” and that “at least 20 papers” had been the subject of criticism

on anonymous websites. Doc. 59-11 at PAGEID 474. The Letter proceeds to cite specific examples

of papers of which Dr. Sanders had complained. See id. at PAGEID 475.

It is clear then that the Letter and Statement 1a refer to a group of several dozen papers in

which problems had been detected. Neither the Letter nor Dr. Sanders purport to have canvassed all

of Dr. Croce’s papers or have found a certain ratio with problems in them. Rather, for the papers

with which the Letter and Dr. Sanders are concerned, repeated instances of fabrication, duplication

and plagiarism were found.

The Court finds that Statement 1a is substantially true in describing the existence of problems

in Dr. Croce’s papers as routine.

2. Negligence

Defendant argues that Dr. Sanders did not act negligently when he claimed the problems in

Dr. Croce’s papers were routine. Plaintiff must prove “by clear and convincing evidence that the

defendant failed to act reasonably in attempting to discover the truth or falsity or defamatory character

of the publication.” Lansdowne v. Beacon Journal Pub. Co., 32 Ohio St.3d 176, 180, 512 N.E.2d 979, 984

(Ohio 1987). “Clear and convincing evidence is that measure or degree of proof which is more than

a mere preponderance of evidence, but not to the extent of such certainty as is required beyond a

reasonable doubt in criminal cases, and which will produce in the mind of the trier of facts a firm

belief or conviction as to the facts sought to be established.” Id., 32 Ohio St.3d at 180-81, 512 N.E.2d

at 984 (internal quotation marks omitted).

The Court finds that plaintiff has not, in response to the motion for summary judgment, put

forth evidence from which a jury could find by clear and convincing evidence that Dr. Sanders was

negligent in making Statement 1a. Again, Dr. Sanders did not purport to have examined all of Dr.

Croce’s papers. Once a problem with the WWOX paper was brought to his attention, Dr. Sanders

confirmed the problem and began looking at other papers with Dr. Croce as a co-author. See Sanders

Dep., Vol. I at 135. He reviewed at least 30 papers and found repeated examples of image duplication

and plagiarism. Id. at 135-36; Sanders Decl. at ¶ 6.

Statement 1a begins with the phrase “in his observation,” making clear that Dr. Sanders was

speaking of the papers which he had reviewed. Plaintiff has not shown that Dr. Sanders was negligent

in reviewing the papers for image fabrication, duplication and plagiarism. Discovery has demonstrated

the existence of these problems and plaintiff has not contested Dr. Sanders’s credentials in being

competent to identify such problems in scientific articles.

Plaintiff’s theory of negligence returns to the argument that Dr. Sanders was accusing Dr.

Croce of directly engaging in image fabrication and plagiarism. Plaintiff contends that Dr. Sanders

acted negligently by not verifying whether Dr. Croce had personally committed the misconduct. But

again this was not the claim. Dr. Sanders claimed that the problems existed in papers for which Dr.

Croce was a co-author, not that Dr. Croce personally committed the fabrication or plagiarism.

Accordingly, the Court finds that plaintiff cannot establish by clear and convincing evidence

that Dr. Sanders made Statement 1a negligently.

B. Statement 1b

In Statement 1b, “Dr. Sanders argues . . . that Dr. Croce is knowingly engaging in scientific

misconduct and fraud.” Doc. 59-11 at PAGEID 474. He so argues because in his observation the

problems in Dr. Croce’s papers are routine and because “the authors routinely dispute those

allegations when confronted with them through the journals.” Id. Defendant contends that this

statement qualifies as protected opinion. The Court agrees.

“Expressions of opinion[,]” as opposed to statements of fact, “are generally accorded absolute

immunity from liability under the First Amendment.” Scott v. News-Herald, 25 Ohio St.3d 243, 496

N.E.2d 699, 705 (Ohio 1986). In determining “whether a statement constitutes protected opinion or

actionable fact, courts should consider the totality of the circumstances, including factors such as: (1)

the specific language used; (2) whether the statement is verifiable; (3) the general context of the

statement; and (4) the broader context in which the statement appeared.” Bentkowski v. Scene Mag., 637

F.3d 689, 693-94 (6th Cir. 2011) (internal quotation marks omitted) (citing Vail v. The Plain Dealer

Publ’g Co., 72 Ohio St.3d 279, 282-83, 649 N.E.2d 182, 185-86 (Ohio 1995)). Each factor should be

considered, “but the weight given to any one will conceivably vary depending on the circumstances

presented.” Vail, 72 Ohio St.3d at 282, 649 N.E.2d at 185.

The language used in Statement 1b presents an argument: “Dr. Sanders argues . . . .” That

language alone signals that an opinion will likely follow. See Trebilcock v. Elinsky, No. 1:05 CV 2428,

2006 WL 414064, at *6 (N.D. Ohio Feb. 21, 2006) (“[T]he Court finds that the use of the word

‘contended’ renders the statement an opinion. ‘To contend,’ by definition, means to put forth an

opinion.”). And an opinion does follow. It is Dr. Sanders’s opinion that Dr. Croce “is knowingly

engaging in scientific misconduct and fraud.” The argument is based on two factual premises which

are true or substantially true: (1) problems in Dr. Croce’s papers are routine and (2) the authors of the

papers “routinely dispute those allegations when confronted with them through the journals.”7 In

other words, because Dr. Sanders has found that problems exist in the papers for which Dr. Croce is

a co-author and found that Dr. Croce and his co-authors have disputed those problems, Dr. Sanders

believes that Dr. Croce has engaged in misconduct and fraud.

To be sure, Statement 1b contains another premise, though not expressly stated. It goes to

the issue which occupies much of plaintiff’s attention – the notion that Dr. Croce was personally

involved in the image fabrication and plagiarism. Again, Dr. Sanders never made that factual assertion,

but Statement 1b is plainly built on his belief that all authors should be held responsible for the content

of papers bearing their name. He told Glanz, “I believe everybody on the paper is responsible.”

Sanders Dep., Vol. II at 51; accord Sanders Decl. at ¶ 7. And the Letter conveys Dr. Sanders’s opinion

on the issue by explaining that in many instances Dr. Croce was the last-listed author on a paper and

by reporting that Dr. Sanders had levied his allegations against Dr. Croce as well as his co-authors or

collaborators. See Doc. 59-11 at PAGEID 474-75; accord Glanz Decl. at ¶ 10 (stating that Dr. Sanders

expressed his belief that “co-authors who are directors of laboratories and their senior researchers

have a particular responsibility for an article”). Thus, the conclusion made in Statement 1b (that Dr.

Croce is knowingly engaging in misconduct and fraud) is itself premised on an opinion that all authors

of a paper, particularly the last-listed one, should be held accountable for its contents.

Turning to the second factor, plaintiff argues that Statement 1b is more than just an opinion

because the scientific community has standards in place for what constitutes misconduct. Plaintiff

7 As explained in Section IV.A.1 above, the first factual premise is true or substantially true. And

plaintiff does not deny the truth of the second premise. See, e.g., Doc. 63-5 (Dr. Croce’s letter to PNAS

disputing the existence of problems with the WWOX paper).

contends that the statement can be verified because, under applicable federal policy adopted by the

scientific community, image fabrication and plagiarism do not constitute sanctionable “research

misconduct” unless done “intentionally knowingly, or recklessly.” See 42 C.F.R. § 93.104(b).

If this were a debate about whether Dr. Croce violated the policy, plaintiff might have a point,

but he misses the larger concern here. The whole point behind Statement 1b was Dr. Sanders’s

contention that the scientific community’s system of self-regulation had failed.8 Context again is key.

See Bentkowski, 637 F.3d at 695 (the general context and broader context are often analyzed together).

The first numbered paragraph of the Letter recounts how Dr. Sanders had lodged over a dozen

complaints with journals to little avail. In many cases “Dr. Croce and colleagues have successfully

disputed the claims and prevented corrections or retractions from being issued.” Doc. 59-11 at

PAGEID 474. The Letter additionally provides examples of papers about which Dr. Sanders had

complained, where the journal initially agreed with Dr. Sanders’s assessment but ultimately relented

after Dr. Croce or his co-authors insisted that no wrong had been committed. Id. at PAGEID 475.

The Letter also cites the WWOX paper which Dr. Sanders had complained of to PNAS. Though

independent experts agreed with Dr. Sanders, the authors had at that point successfully urged PNAS

not to issue a correction. Id.

Dr. Sanders’s statement thus expresses an opinion: when authors are confronted with evidence

of problems in a paper which they co-authored and they deny the existence of the problems and insist

their papers should not be corrected, their response should be considered to be knowing misconduct

and fraud, or failure to own up to the truth. This is a value judgment. See Sarkar v. Doe, 318 Mich.

App. 156, 196, 897 N.W.2d 207, 229 (Mich. Ct. App. 2016) (holding that statements on Pubpeer which

argued that professor should be investigated for research misconduct were protected opinion); see also

Adams v. Coughlan, No. 2:14-cv-41, 2015 WL 300465, at *3 (S.D. Ohio Jan. 22, 2015) (holding that

statements which argued that an attorney’s conduct warranted concern and were not consistent with

professional standards were protected opinion). Dr. Sanders was not arguing that Dr. Croce’s conduct

constituted research misconduct under federal policy; rather, he was expressing his belief that Dr.

Croce’s insistence on not correcting the scientific record should itself be treated as its own form of

misconduct. See also Sanders Decl. at ¶ 10; Sanders Dep., Vol. II at 49-51.

Accordingly, the Court finds as a matter of law that Statement 1b is a protected opinion.

8 The Times Article would also make the same argument.

V. The Article

Plaintiff alleges that the New York Times Article contains two separate defamatory statements.

Both are direct quotations of Dr. Sanders. The first refers to a “reckless disregard for the truth” and

the second concerns a lab which is “violating scientific norms.”

A. Statement 2a

“‘It’s a reckless disregard for the truth,’ Dr. Sanders said in an interview.” Doc. 59-9 at

PAGEID 458. Under a natural reading of the Article, the word “it’s” refers to the practice of falsified

data and plagiarism occurring in Dr. Croce’s papers. The paragraph immediately before Statement 2a

states that Dr. Sanders “has made claims of falsified data and plagiarism directly to scientific journals

where more than 20 of Dr. Croce’s paper have been published.” Id. at PAGEID 457

Defendant argues that Statement 2a is protected opinion and the Court agrees. Dr. Sanders

offered his value judgment about repeatedly having falsified data and plagiarism in one’s scientific

papers. He said in essence that he had observed serious problems occurring repeatedly in papers with

Dr. Croce’s name on them and he believed those practices showed a reckless disregard for the truth.”

In “reckless disregard” he used a term whose meaning even courts strain to define and that would not

be precise or verifiable to an ordinary reader. See St. Amant v. Thompson, 390 U.S. 727, 730 (1968)

(“‘Reckless disregard,’ it is true, cannot be fully encompassed in one infallible definition. Inevitably

its outer limits will be marked out through case-by-case adjudication . . . .); Wangen v. Ford Motor Co.,

97 Wis.2d 260, 293 n.18, 294 N.W.2d 437, 454 (Wis. 1980) (noting that the term “reckless disregard”

leaves “room for interpretation” and makes it “difficult to predict” how a jury will handle it); Christensen

v. Cooper, 972 So.2d 207, 211 n.2 (Fla. Dist. Ct. App. 2007) (observing that terms like “reckless

disregard” are “difficult to define,” “even for legal experts”).

Context also points toward Statement 2a being an opinion. Once again, Dr. Sanders did not

tether his statement to some set of governing standards – the Article makes clear to readers that Dr.

Sanders believed self-policing by journals had failed. See id. at PAGEID 468. And to be certain that

readers knew Dr. Sanders had his own strong views of right and wrong, the Article describes Dr.

Sanders as a “critic” and “freelance ethicist” who also ran “several quixotic campaigns” for political

office as a Democrat in a deeply-Republican area. Id. at PAGEID 457, 469. See Freelance (adj.), Oxford

English Dictionary (3d ed. 2008) (“individualistic, independent”); Quixotic (adj.), id. (“naively

idealistic”).

Plaintiff has no answer to the proposition that Statement 2a is an opinion. Much as he did

with respect to the Letter, plaintiff argues that Statement 2a is defamatory because a reasonable reader

would take Dr. Sanders to be accusing Dr. Croce of personally committing research misconduct. But

here too the language and context of the statement do not support plaintiff’s interpretation. In all of

the quoted statements by Dr. Sanders, he never mentions Dr. Croce by name. The Article reports

that Dr. Sanders claimed to have found problems in Dr. Croce’s papers. And the Article goes on to

explain, “Academic papers often have multiple authors, with the scientists who perform the hands-on

work listed at the beginning and the senior scientists in charge named at the end.” Id. at PAGEID

459. Also included as authors are “junior researchers” in the senior scientist’s laboratory and

“collaborators at other labs.” Id. A reasonable reader would understand that the problems could have

been committed by any of these individuals.

That being said, the clear implication of Dr. Sanders’s statements is, as it was in the Letter,

that Dr. Croce should be held responsible for the papers bearing his name. He should answer for the

false data and plagiarism found in papers coming from his lab, even if he was not personally involved

in the writing or research. Dr. Sanders’s position on this matter again is an expression of opinion.

The Court thus finds as a matter of law that Statement 2a is a protected opinion.

B. Statement 2b

The Article quotes Dr. Sanders as saying, “A lab that is engaging in violating scientific norms

is being rewarded for that very effort.” Doc. 59-9 at PAGEID 469. Plaintiff argues that the statement

is defamatory because it accuses Dr. Croce himself of violating scientific norms.9

Plaintiff’s interpretation again is not supported by the language and context of the statement.

Dr. Sanders referred to “a lab.” Just as reasonable readers would appreciate from the whole Article

that a scientific paper has many authors, they would understand that a lab has more than one scientist.

The Article describes Dr. Croce’s lab at Ohio State as “sprawling.” Id. at PAGEID 457. “Junior

colleagues,” “junior researchers” and “younger scientists” perform work at the lab and help author

papers. Id. at PAGEID 459, 463, 464, 466, 467. A photo of Dr. Croce in his lab shows many

workstations and two individuals at work. See id. at PAGEID 463.

Again, Dr. Sanders did not accuse Dr. Croce of personally falsifying data and committing

plagiarism. He said he found such problems in papers coming from Dr. Croce’s lab. The Article

states that Dr. Croce, when confronted with claims of misconduct occurring in his lab, “largely placed

the blame” on “junior researchers” or other collaborators. Id. at PAGEID 459. The Article reports

9 In response to the motion for summary judgment, plaintiff does not argue that the “being rewarded”

portion of Statement 2b is defamatory.

past instances in which Dr. Croce used junior researchers to shield himself from further scrutiny and

to evade being required to correct problems. See id. at PAGEID 463-67. Against this backdrop,

Statement 2b appears in a section of the Article entitled “Raising Larger Questions.” Id. at PAGEID

468-69. Statement 2b reflects Dr. Sanders’s belief the Dr. Croce should be held accountable for the

problems occurring in his lab, and this view is protected opinion.

Plaintiff next argues that the statement is defamatory because it accuses Dr. Croce’s lab of

“violating scientific norms.” Plaintiff contends that this aspect of the statement is not opinion because

a violation of scientific norms can be verified with reference to federal standards as to what constitutes

research misconduct. See 42 C.F.R. § 93.104(b).

Plaintiff’s argument fails. Dr. Sanders made no reference to the federal standards10 and the

Article conveys his view that self-policing had failed and that misconduct was indeed being

“rewarded.” The view of this self-described “freelance ethicist” as to the “norms” of the scientific

community is protected opinion. As this Court said in Dr. Croce’s suit against The New York Times,

statements in reference to “the norms and ‘generally expected’ boundaries of the research community”

and “attempt[s] to position Dr. Croce relative to them . . . . are opinion; they make judgments about

consensus, bounds and norms that aren’t well enough defined to prove or disprove.” Croce v. New

York Times Co., 345 F.Supp.3d at 989-90 (citing Adams, 2015 WL 300465, at *3; Roberts v. Murawski,

No. C-060741, 2007 WL 2019833, at *4 (Ohio Ct. App. July 13, 2007)).

But even if Statement 2b were verifiable against federal or research community standards, the

Court would find the “violating scientific norms” statement to be substantially true. Discovery has

proved the existence of many instances of image manipulation and plagiarism in papers Dr. Croce co-

authored, including papers which originated from his lab. See Doc. 63-2 at PAGEID 620-23. Plaintiff

has failed to create a genuine issue of fact disputing that these instances meet the definitions of

fabrication, falsification and plagiarism found in the federal standards.11 See 42 C.F.R. § 93.103. And

10 The Article itself mentions the existence of federal standards, but only to point out the “awkward

constraint” that the federal Office of Research Integrity “does not carry out its own investigations,

but relies on accused researchers’ own institutions to forward their findings.” Doc. 59-9 at PAGEID

465. “With their own reputations on the line, institutions have a tremendous conflict of interest . . . .

There’s a terrible temptation to bury it all.” Id. (internal quotation marks omitted).

11 Plaintiff instead argues that these problems do not rise to the level of sanctionable research

misconduct because the scienter requirement is not met. See 42 C.F.R. § 93.104.(b). But what matters

is the gist of what Dr. Sanders said – that norms were violated because the papers contained image

manipulation and plagiarism. Whether or not the technical standard of sanctionable research

misconduct was met does not alter the substantial truth of the statement.

even with the journals’ alleged reluctance to enforce standards, about 30 of Dr. Croce’s papers have

been the subject of correction, retraction, withdrawal or expressions of concern. See Doc. 63-2 at

PAGEID 620-23. Thus, whether one is referring to the federal standards or to the journals’ own

editorial guidelines, the record establishes that papers from Dr. Croce’s lab have violated scientific

norms.

The Court further finds that plaintiff has not produced evidence from which a jury could find

by clear and convincing evidence that Dr. Sanders was negligent in making Statement 2b. Plaintiff

relies once more on the argument that Dr. Sanders acted negligently by not verifying whether Dr.

Croce had personally committed the misconduct. This misinterprets what Dr. Sanders said, and

plaintiff has not otherwise shown that Dr. Sanders was negligent in reviewing the papers for image

manipulation and plagiarism.

Defendant is thus entitled to summary judgment with respect to Statement 2b.

VI. The Article

The Lafayette Journal & Courier published an article on March 22, 2017 about Dr. Sanders and

his appearance in the Times Article. The J&C Article is entitled, “Purdue biologist calls out cases of

scientific misconduct.” It contains four allegedly defamatory statements.

A. Statement 3a

The Article states in the third paragraph, “But that didn’t stop Sanders from alleging that Dr.

Carlo Croce, a prominent cancer researcher at Ohio State University, falsified data or plagiarized text

in more than two dozen articles Croce has authored.” Doc. 59-16 at PAGEID 484.

Statement 3a is not a direct quotation and defendant contends that he did not make or publish

the statement and cannot be held liable for it. See Am. Chem. Soc., 133 Ohio St. 3d at 389, 978 N.E.2d

at 852; Fuchs v. Scripps Howard Broad. Co., 170 Ohio App.3d 679, 691, 868 N.E.2d 1024, 1034 (Ohio Ct.

App. 2006). In support of his factual assertion that he did not make or publish the statement,

defendant provides both his declaration and deposition testimony. “I have never asserted to anyone

that Dr. Croce himself manipulated an image or wrote plagiarized text. Rather, I have pointed out

errors in papers in which he is listed as a co-author.” Sanders Decl. at ¶ 7. “I have not made any

allegations against Dr. Croce for falsification or fabrication. I have said that there is fabrication or

falsification in these papers.” Sanders Dep., Vol. I at 138.

Plaintiff responds without elaboration, “While Sanders may deny that he made Statement 3a,

the Journal-Courier Article itself is evidence to the contrary.” Doc. 65 at PAGEID 688.

The matter in dispute is whether Dr. Sanders said that Dr. Croce “falsified data or plagiarized

text in more than two dozen articles.” Defendant has submitted evidence in admissible form that he

did not. Plaintiff contends that the statement in the J&C Article (“that didn’t stop Sanders from

alleging”) is itself evidence that he did.

The Court finds that the statement in the Article is inadmissible hearsay. See Fed. R. Evid.

802. Plaintiff attempts to offer the out-of-court statement of the author of the J&C Article for the

truth of the matter that Dr. Sanders actually made the allegation against Dr. Croce. See Fed. R. Evid.

801. Because plaintiff has not shown that the statement in the Article fits within any hearsay exception,

the rule against hearsay prevents plaintiff from using the Article to prove that Dr. Sanders made

Statement 3a. See Turner v. City of Taylor, 412 F.3d 629, 652 (6th Cir. 2005) (newspaper article is

inadmissible hearsay when offered to prove the truth of its contents); Roberts v. City of Shreveport, 397

F.3d 287, 295 (5th Cir. 2005) (newspaper articles are “classic, inadmissible hearsay” and are “unusable

to defeat summary judgment”).

Thus, defendant is entitled to summary judgment with respect to Statement 3a.

B. Statements 3b, 3c and 3d

The final set of allegedly defamatory statements are related and appeared in the following

paragraph:

“If you wanted to just make up data you could do it in a way that’s much more

difficult to detect, but they didn’t because they were able to get away with this

relatively simple manipulation,” Sanders said. “They continued to do it over and

over again.”

Doc. 59-16 at PAGEID 485 (emphasis added). Defendant does not deny he made these statements.

Both parties analyze the three statements together as one. Combined, the statements convey

that data manipulation occurred repeatedly.12 Defendant argues that the statements are true or

substantially true because data manipulation did occur in papers for which Dr. Croce was a co-author.

Plaintiff’s argument is familiar – that the statements are defamatory because they accuse Dr. Croce of

personally engaging in data manipulation.

The J&C Article says less about the practice of multiple authors in scientific papers than do

the Letter and Times Article. Even so, the Court finds that a reasonable reader would understand from

Dr. Sanders’s statements and the context of the J&C Article that Dr. Sanders was referring to data

manipulation occurring in papers for which Dr. Croce was a co-author. Dr. Sanders is never quoted

12 Plaintiff does not argue that the “able to get away with this” portion of the statement is defamatory.

in the Article as mentioning Dr. Croce by name. Two paragraphs before the one in question, the

Article reports that Dr. Sanders had found a pattern of duplicated data in “papers in which Croce is

listed as an author.” Doc. 59-16 at PAGEID 484. And several paragraphs later it refers to the

“authors” (in the plural) of a paper against which Dr. Sanders had made a complaint. Id. at PAGEID

485. Dr. Sanders used the plural pronoun “they” in referring to the individuals who made the data up

and did it over and over again. Id.

Even if there is room to interpret Dr. Sanders’s statements as suggesting that Dr. Croce

himself manipulated data, defendant would prevail under Ohio’s innocent-construction rule. When

an allegedly defamatory statement is susceptible to both a defamatory meaning and an innocent

meaning, the innocent one is adopted and recovery is barred. See Konica Minolta Bus. Sols., U.S.A., Inc.

v. Allied Office Prod., Inc., 724 F.Supp.2d 861, 871 (S.D. Ohio 2010) (citing Kanjuka v. MetroHealth Med.

Ctr., 151 Ohio App.3d 183, 193, 783 N.E.2d 920, 928 (Ohio Ct. App. 2002)). In light of Dr. Sanders’s

use of the word “they” and his reference to “authors” and papers with Dr. Croce listed as an author,

the innocent interpretation – that the data manipulation occurred in papers for which Croce was listed

as an author – is a reasonable one and must be adopted. See McKimm v. Ohio Elections Comm., 89 Ohio

St.3d 139, 146, 729 N.E.2d 364, 372 (Ohio 2000).

The Court also finds that the innocent interpretation is substantially true. As explained above,

data manipulation has been found multiple times in papers for which Dr. Croce is an author. The

Court further finds that plaintiff has not submitted evidence from which a jury could find by clear and

convincing evidence that Dr. Sanders acted negligently in making the statements. Dr. Sanders made

Statements 3b, 3c and 3d in reference to the 2013 JEM paper. See Doc. 59-16 at PAGEID 485. He

found that the JEM paper contained duplicated blot images in one of the figures and found that

purported corrections to the paper contained inverted images to make them look different and

contained duplicated images from a 2010 Cancer Cell paper. See id.; Sanders Dep., Vol. I at 128-33,

150-53. Plaintiff, whose own discovery responses acknowledge that the JEM paper and Cancer Cell

paper were corrected for problems with the figures, has not demonstrated how Dr. Sanders was

negligent in saying that the data manipulation in the papers occurred repeatedly. See Doc. 63-2 at

PAGEID 620.

The Court thus finds that defendant is entitled to summary judgment with respect to

Statements 3b, 3c and 3d.

VII. Indiana Anti-SLAPP Act

Indiana’s Anti-SLAPP Act provides a good faith defense in defamation lawsuits. See Ind. Code

§ 34-7-7-5. It protects individuals against “meritless suits aimed at silencing a plaintiff’s opponents,

or at least diverting their resources.” Nexus Grp., Inc. v. Heritage Appraisal Serv., 942 N.E.2d 119, 122

(Ind. Ct. App. 2011). To avail himself of the Act, a defendant must plead the defense and file a special

motion to dismiss, which operates as a stay on discovery. See Ind. Code § 34-7-7-6. The filing of the

special motion to dismiss triggers an “expedited proceeding” provision by which the trial court, within

180 days, supervises limited discovery and determines whether defendant has proved by a

preponderance of the evidence that he was sued for lawfully speaking on a public issue or a matter of

public interest. Id. at § 34-7-7-9. If the Act’s procedural and substantive provisions are satisfied,

defendant may recover attorney’s fees and costs. Id. at § 34-7-7-7.

In arguing that Indiana law can provide a defense when Ohio law governs plaintiff’s

defamation claims, defendant invokes a legal doctrine known as depecage, from the French word for

“dismemberment.” See Boomsma v. Star Transp., Inc., 202 F.Supp.2d 869, 874 (E.D. Wis. 2002) (citing

Black’s Law Dictionary 448 (7th ed. 1999)). Under this doctrine, different issues in a case arising from

the same set of facts can be decided under the laws of different states. Estate of Sample through Cornish

v. Xenos Christian Fellowship, Inc., 2019-Ohio-5439, ¶¶ 23-27, 139 N.E.3d 978, 985-86 (Ohio Ct. App.

2019). Although “courts must use depecage with caution,” id., 2019-Ohio-5439 at ¶ 27, 139 N.E.3d at

986, it has been applied in anti-SLAPP cases. See, e.g., Intercon Sols., Inc. v. Basel Action Network, 969

F.Supp.2d 1026, 1035 (N.D. Ill. 2013), aff’d, 791 F.3d 729 (7th Cir. 2015) ([T]he plaintiff’s defamation

claims and defendant’s anti-SLAPP defenses need not be governed by the same state’s laws.”); Diamond

Ranch Acad., Inc. v. Filer, 117 F.Supp.3d 1313, 1322-23 (D. Utah 2015).

The Court finds that even if depecage were applied, defendant is ineligible to recover fees and

costs under Indiana’s anti-SLAPP Act. The Act is more than a fee-shifting statute. It provides a

mechanism for speedy dismissal of suits which chill free speech on public issues. See Nexus Grp., 942

N.E.2d at 124; Hamilton v. Prewett, 860 N.E.2d 1234, 1242 (Ind. Ct. App. 2007) (“The anti-SLAPP

statute is intended to reduce the number of lawsuits brought primarily to chill the valid exercise of the

constitutional rights of freedom of speech and petition for the redress of grievances.”). In order to

avail himself of the Act’s great benefits – quick dismissal of the suit and an award of attorney’s fees

and costs – the defendant must comply with the Act’s procedural and substantive requirements. Cf.

Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1235 (D.C. App. 2016), as amended (Dec. 13, 2018) (“The

special motion to dismiss is a mechanism by which a SLAPP defendant can expeditiously and

economically dispense of litigation . . . . To this end, a special motion to dismiss must be filed and

decided in the early stage of litigation.”) (internal quotation marks omitted). These requirements

include filing a pre-discovery motion to dismiss and satisfying a particularized burden of proof in a

special, expedited proceeding. Other than pleading the defense in his answer, defendant did not

comply with any of the Act’s requirements.

Defendant argues that, no matter, prevailing on summary judgment is just as good as proving

his defense by a preponderance of the evidence. But a federal court in Indiana has rejected this very

argument. In Filippo v. Lee Publications, Inc., the court granted summary judgment to defendant in a

defamation action on the grounds that a qualified privilege applied, the actual malice standard was not

satisfied and certain of defendant’s statements were protected opinion. 485 F.Supp.2d 969 (N.D. Ind.

2007). The court noted that defendant had requested attorney’s fees under the Anti-SLAPP Act, and

it ordered the parties to brief the issue of whether defendant was eligible for recovery under the Act.

Id. at 982.

Upon full briefing, the court held that “based on the plain language of § 34-7-7-7, defendant

is unable to recover attorneys’ fees and costs.” Filippo v. Lee Publications, Inc., No. 2:05 CV 64, 2007

WL 2822432, at *2 (N.D. Ind. Sept. 24, 2007). “The defense contained within the Anti-SLAPP act is

designed to be raised via a preliminary motion to dismiss,” and “the language of the statute . . . only

allows for the recouping of costs when a defendant prevails ‘on a motion to dismiss made under this

chapter . . . .’” Id. at **1-2 (quoting Ind. Code § 34-7-7-7) (emphasis added in Filippo). The court

concluded that because defendant prevailed on a motion for summary judgment which was not based

on the Act, she “cannot recoup fees under that statute.” Id. at *3.

So too here, defendant did not prevail on a preliminary motion made under the Act and thus

he cannot recover attorney’s fees and costs under the Indiana statute. See also People for the Ethical

Treatment of Animals, Inc. v. Wildlife in Need & Wildlife in Deed, Inc., No. 417CV00186RLYDML, 2018

WL 2063882, at *2 (S.D. Ind. Jan. 8, 2018) (“Fees and costs are only recoverable when a motion to

dismiss is granted under that section. See Ind. Code § 34-7-7-7. Since the court is granting Plaintiff’s

motion to dismiss under Rule 12(b)(6) for failure to state a claim, and not under Indiana’s Anti-SLAPP

statute, the court declines Plaintiff’s request for fees.”).

VIII. Intentional Infliction of Emotional Distress

Where, as here, a claim for intentional infliction of emotional distress “arises out of the same

facts as a defamation claim, and is therefore entirely derivative of the defamation claim, the emotional

distress claim cannot survive the dismissal of the underlying cause of action.” McGee v. Simon &

Schuster, Inc., 154 F.Supp.2d 1308, 1315-16 (S.D. Ohio 2001) (citing federal and state cases applying

Ohio law). Defendant is therefore entitled to summary judgment as to plaintiff’s claim for intentional

infliction of emotional distress.

IX. Conclusion

For the reasons stated above, defendant’s motion for summary judgment (Doc. 59) is

GRANTED as to plaintiff’s claims for defamation and intentional infliction of emotional distress and

DENIED as to defendant’s request for attorney’s fees and costs under Indiana Code § 34-7-7-7.

s/ James L. Graham

JAMES L. GRAHAM

United States District Judge

DATE: May 12, 2020