Retraction Watch

Tracking retractions as a window into the scientific process

Judge dismisses defamation suit against diabetes journal

with 6 comments

Mario Saad, via unicamp.br

Mario Saad, via unicamp.br

Mario Saad can’t catch a break — yesterday, a Massachusetts judge dismissed his defamation suit against the American Diabetes Association, publisher of Diabetes, which published an expression of concern regarding four of his papers in March.

The researcher has tried — and failed — to use the courts to remove the EoC.

In Saad’s latest attempt to employ legal action against the journal — arguing the EoC was defamatory — the United States District Court of Massachusetts was clear in its ruling (which you can view in its entirety here):

The Court has little trouble concluding that the ADA’s Expression of Concern is not actionable for defamation.

It explains further:

The Court finds that the Expression of Concern is a statement of the ADA’s opinion of Dr. Saad’s work, and is not actionable as defamation. It amounts only to a statement of the ADA’s evolving, subjective view or interpretation of its investigation into inaccuracies in certain images contained in the articles. Dr. Saad has not identified a single passage of the Expression of Concern that is false and defamatory. The statement does not accuse Dr. Saad of dishonesty or conclude that he engaged in misconduct. In an attempt to sustain this action, Dr. Saad asserts that whether the data in his articles is reliable is an objectively verifiable fact. However, the Expression of Concern does not state that his data is not reliable. It merely alerts readers to the fact that the ADA “remains concerned” about recent questions regarding the data’s reliability, and that the ADA is in the process of investigating further.

The court document described the ADA’s statement as “measured and professional in its tenor”:

This is the type of cautionary language that suggests a statement of opinion rather than a defamatory falsehood.

In all, Diabetes’s Expression of Concern was made in the context of “ongoing scientific discourse”, the document notes:

The dispute between Dr. Saad and the ADA over the reliability of the data in his articles is not fit for resolution in the form of a defamation lawsuit. Instead, this is a case where “the trial of ideas plays out in the pages of peer-reviewed journals, and the scientific public sits as the jury.”

J. Mark Dickison, who represented the ADA in this case, told us he believed it set an “excellent precedent”:

Personally, my view is the court’s decision in this case is a validation the first amendment right of journals to have the freedom to take action to ensure the reliability of their own publications.

Although Saad argued the Expression of Concern hurt his reputation in the scientific community, Dickison noted:

[The ADA’s] argument essentially was this wasn’t about Dr. Saad’s reputation. It was about ensuring the reliability of the publication, and notifying the scientific community of concerns that had been brought to our attention by readers.

The four papers in question have been cited more than 600 times, as we’ve reported.

This isn’t the only time researchers have tried to use the courts to influence journals’ decisions (see this piece in Nature for more information), and Dickison noted that this particular case may not yet be entirely over:

It’s premature for me to speculate about what [Saad and his legal team] might do, but they do have an appeal option.

This sentiment was validated in a statement from Steven J. Brooks, a lawyer representing Saad:

We of course are aware of Judge Hillman’s order and are disappointed by the decision.  At present, we are exploring our options and what steps we will next take.

A representative of the ADA said it would not have a comment by deadline.

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Written by Alison McCook

August 19th, 2015 at 12:02 pm

Comments
  • AMW August 19, 2015 at 12:36 pm

    Sanity continues to be applied in this case. The fate of ICMJE guidelines (and those of individual countries) on how to deal with such cases would be in jeopardy if the judgment had gone with Saad.

    Presumably the scientific community is none the wiser about the data themselves. There was supposed to be an international tribunal of some form examining the case, wasn’t there?

  • YMLiang August 21, 2015 at 9:34 am

    Why ADA/Diabetes always have nothing to say? Any response from them?

  • AMW August 21, 2015 at 11:37 am

    I would say ADA have no need to comment.

    The ball is firmly in the court of Saad and his institution. As I commented on a previous post, the images in question are generally representatives of 5-10 repeat experiments and an investigation needs to be done to look at the entire research records from the relevant researchers and see if any experiments were actually done.

    Currently there are four Expressions of Concern about the university’s papers and they are unable to publish in the journal. They have a choice – either do nothing, hence accepting that they are finished as far as this particular journal is concerned, and will continue to suffer from reputational damage for an indefinite period. Or deal with the matter robustly using independent scientists.

  • Update September 10, 2015 at 8:22 am
  • Anonymous November 21, 2015 at 12:15 pm

    Another Saad publication examined at PubPeer:
    https://pubpeer.com/publications/4240E008C7505EE69482DA6B7DF93F#fb40655
    Regulation of Cbl-associated protein/Cbl pathway in muscle and adipose tissues of two animal models of insulin resistance
    Ana C P Thirone, José B C Carvalheira, Aparecida E Hirata, Lício A Velloso, Mario J A Saad, Endocrinology, 145 (2004)

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