Retraction Watch threatened with legal action…again

Ariel Fernandez, source: Wikipedia
Ariel Fernandez, source: Wikipedia

For the second time this month, Retraction Watch has been slapped with the threat of a lawsuit, this time Ariel Fernandez, whose work in BMC Genomics became the subject of a recent expression of concern.

Today, Fernandez emailed one of us (Adam) the following message:

Maria Kowalczuk
Editor, BMG Genomics

Adam Marcus,

It was brought to my attention that the “Expression of Concern” to be published in BMC Genomics in relation to my contribution to BMC Genomics was published already by you as a retraction in “Retraction Watch”, BIOMED Central and numerous other places on the web.
An Expression of Concern is not a retraction.
I must ask you to please remove your libel from Retraction Watch and from all the other sites where you have posted your defamatory piece since it has damaging consequences to my reputation.

If you fail to do this by tomorrow I will take legal action against you. I will sue you for damages in a Civil Court.

When Kowalczuk replied with an 0ut-of-office message, Fernandez sent this follow-up:

Catherine Rice
Senior Editor, BMC Genomics

Adam Marcus, Retraction Watch

Dear Catherine Rice,

It has been brought to my attention that the “Expression of Concern” that BMC Genomics intends to publish in regards to my contribution to the journal has already been published at Retraction Watch and numerous other websites cited therein as if it had appeared on BMC Genomics. Furthermore, the expression of concern has been falsely misconstrued as a “Retraction” and published as such by Retraction Watch at their website and at the other said websites.

First, the publication of the Expression of Concern has been purposely delayed at your journal for reasons unknown to me, and even before its publication in your journal, it has appeared at the website of Retraction Watch incorrectly stating that this Expression of Concern has already been published.

More importantly, an Expression of Concern is not a Retraction. This miischaracterization of the facts is clearly defamatory and I will now sue Retraction Watch and Adam Marcus personally in Civil and Criminal Court for publishing the fraudulently distorted information provided by BIOMED Central UNLESS the libel is removed from Retraction Watch at once.

I must respectfully request that BIOMED Central take immediate steps to block the defamatory action perpetrated by Retraction Watch and prevent the dissemination of the defamatory false information that damages my name.

Your attention will be appreciated.

We are of course aware that an Expression of Concern is not a retraction, and the post about the EoC reflected that. We responded:

Thank you for your message. We merely reported the facts of the EoC. If we made a mistake we will be happy to correct it. But we would need to see what specifically is incorrect.

We wanted to make sure that Fernandez, writing from a Gmail address, was actually the scientist in question, so we asked him to respond from an institutional account. Which he did, with the following:

As per Adam Marcus demand to me I am hereby resending my message (pasted below).
If you do not remove your libel and your lies from the web by tomorrow 10am my time, I will sue you both personally and collectively in Civil and Criminal Court without further warning.

The address was associated with ProWD Sciences, a Madison-based company Fernandez helped found. He’s listed as the group’s chief scientific officer and vice president. He also has a consultancy, Ariel Fernandez Innovation:

Our areas of expertise are personalized molecular design and controlled specificity. The consultancy seeks to provide thought leadership on the type of cutting edge research that translates into a competitive advantage.

We’ll update with anything we hear.

Update, 1:30 p.m. Eastern, 4/23/13: Here’s Ken White, of Popehat, on the situation.

34 thoughts on “Retraction Watch threatened with legal action…again”

  1. AF probably thinks all entries on RW report on retractions, while you also report on other things, like this EoC, and publish other items like the invitation of earlier today and occasional opinion pieces.

    1. That’s what I was thinking too. Him invoking how the judicial system works (” IN THE US EVERYBODY IS PRESUMED INOCENT UNLESS PROVEN GUILTY BEYOND A SHRED OF A DOUBT”) seems silly because this isn’t criminal court, it’s scientific publishing. It doesn’t seem like he’s thinking calmly about the matter (and I imagine him seeing his name on the internet on a website regarding scientific concerns would be stress inducing, to say the least).

      Assuming the discrepancies are honest errors, I imagine emailing RW and the BMC journal editors his side of the story (without legal threats) would probably go over much better with all parties involved (including the academic community). A paper can still have a “reader beware” attachment to it, which is what the EoC more of less appears to be, but it can at least have more context as to the discrepancies and where they come from. Once one travels down the direction of legal threats, I think it’s difficult to go back and be an honest broker. My hope is the motivation of all parties involved is ensuring accuracy of the literature.

  2. He’s got no leg to stand on. Your comments in RW clearly list it as an Expression of Concern and discuss the mechanics behind it. I wonder if he actually READ the blog post. In fact, the wording of his response actually winds up making him look suspicious and unprofessional.

  3. I suppose that many of you, the RW readers, feel that something is going wrong with such threats. I’ve not read the BMC Genomics paper, although I got a glimpse of the RW post and reactions to the post. At that point, I really would be interested to know the arguments of the allegedly offended author regarding these “anomalous data” (dixit the expression of concern released by the journal).
    Instead, the author, who was aware of the RW post, uses an overdimensioned tool with the hope to cure the hypothetical damage to his reputation, if any. This is like taking a sledgehammer to crack a nut.
    Definitively, an author taking part in the comment thread will be 1000 times more sympathetic to me than an author threatening with something which has very little to do with Science. A legal action as a very first reaction to a post is, in the present case, a complete waste of time.

  4. I’m in no position to judge Ariel Frenandez’s standing as a scientist, but I will remark that his understanding of U.S. law and it’s applicability to this kind of situation appears to me to be deficient. Although he declares – in all caps no less – “IN THE US EVERYBODY IS PRESUMED INOCENT UNLESS PROVEN GUILTY BEYOND A SHRED OF A DOUBT,” this is not the case.

    First, this kind of assessment of guilt or culpability pertains to matters of legal process. Even in those circumstances the standards are typically “beyond a reasonable doubt” for criminal charges and “according to a preponderance of the evidence” in civil matters. Neither of these standards apply here, since the issue about what Fernandez may have or may not have done wrong is not a legal claim.

    I do appreciate Fernandez’s concern about his work having been characterized implicitly as a retraction. It may be useful for Adam and Ivan to add an “About” page to their website that clarifies what criteria are applied when considering what they post. This is covered somewhat in their FAQ and their “Why write a blog about retractions” first post, but it would be helpful to have a succinct statement of policies prominently displayed on the home page. (Perhaps I’ve missed this.)

    That said, I would like to say that I think that what Retraction Watch endeavors to do is a public service and that threats of legal action that are intended to silence this important exchange of information are counterproductive.

  5. I am amused. I am trying to think what will be the excuse for a legal no-show tomorrow. Apparently this guy is not very good at keeping a low profile. If not for this amusing post, I would have not read the other one, and also the very informative and analytical comments on the case.

    1. In fairness, he didn’t say he was going to sue tomorrow, he said he would sue “without further warning” if his bumptious demands weren’t met by tomorrow.

  6. Thought experiment – a newspaper entitled “Murder Weekly”, reporting on lots of lesser crimes in addition to the occasional murder, then see how quickly it takes for a serial shoplifter to threaten a lawsuit.

    1. Or, the reporter, who knows nothing about the legality of actually investigating and presenting evedence regarding a murder, being hit with a lawsuit.

  7. This is the funniest thing I’ve read all month: “The consultancy seeks to provide thought leadership on the type of cutting edge research that translates into a competitive advantage.” “[T]hought leadership”?! Now there’s a phrase worthy of a Dilbert comic strip.

    1. Well you have two people, one is called Adam and the other Ivan, whom you gonna sue. I van just sounds mean (you Ivan the Terrible), although I have spoken to Dr. Oransky, listened to his talk and emailed him few time and he is everything but terrible.

  8. While I certainly appreciate Ariel Fernandez’s use of all caps (BECAUSE SOMETIMES SENTENCE-CASE JUST DOESN’T GET THE POINT ACROSS), I can’t help but wonder if less time would be wasted dealing with legal hassles had the site been named differently. While honest error is certainly to blame for some retractions–as Mr. Marcus and Dr. Oransky have always fairly, objectively, and explicitly pointed out–the majority of retractions reported by the site are due to misconduct. Thus, being written about on Retraction Watch, even if in a “these folks should be commended for acknowledging an honest error” context, carries a negative connotation, at least in the mind of the general public. And this might invite the conductors of questioned-but-not-retracted research to sue or threaten to sue the site. Responding to such lawsuits or threats is wasted time. Also, as this blog post has explicitly recognized, an EoC is not a retraction. Which kind of begs the question, and I’m just playing devil’s advocate here: given that an EoC, or an erratum or corrigendum, is not a retraction, why mention it at all on a site named Retraction Watch? This may be similar to the situation with, which was perhaps burdened by a name that implied guilt-by-association, whether or not that guilt was justified. From a previous Retraction Watch post, a quote from Paul Brookes:

    “Naming the site Science Fraud was probably a bad move. Certainly the name ruffled a lot of feathers, since the connotations of the word fraud are clearly damaging. Something more benign…would probably be a better choice.”

    The connotations of the word “retraction” might also be damaging (deserved or not) to those whose published studies have been questioned but not retracted. Perhaps a more general name would be more appropriate? One that encompasses blog posts related not only to retractions but also to EoCs and errata/corrigenda? Maybe QuestionableScienceWatch? This might reduce the attractiveness of Retraction Watch as a target for lawsuits by those whose research has been questioned but not retracted.

    1. There isn’t a name in the world that can solve the problem of “guilt-by-association”. Any name of a site like this will have the connotations of the issues in the majority of posts published, and thus be a foundation for the kind of claims put forward by Ariel.

    1. Please be careful, you might get sued for your comment’s damaging consequences to someone’s reputation.

  9. Tornado watch means “that the conditions have created a significant risk of a tornado occurring” (Wikipedia). Doesn’t an EoC indicate a condition in which there is a significant risk of a retraction occurring?

    1. That’s it, exactly. “Retraction Watch” can write about EoC’s because they do create a “significant risk” of a retraction. On the other hand, “Science Fraud” kind of prejudges anything you write about. “Anomalous Science” would be better, but didn’t they fold?

  10. I skimmed over the original post – I only remember it from Fernandez’s photo which is included again – but now I’ve read both postings in detail and searched outside the site for more info. Then it hit me, Streisand Effect. It also seems quite common to open a discussion with threat of a lawsuit when there is no legitimate counter argument to be made. It will be interesting to see how much negative publicity falls on Fernandez and ProWD Sciences if this saga continues.

  11. He operates a drug design and development company out of a PO box? The good news is I can check back for developments once the website is built!

  12. Mr Fernandez seems unduly focused on suppressing this expression of concern via legal threats. I am presuming that he hasn’t heard of a nice house that Ms Streisand owns by the coast. Then again, Ms Streisand’s wikipedia page has been constructed by many people unaffiliated with her.

    Still, let us not be distracted from the main point, which is that there is a significant concern over the validity of one of Mr Fernandez’s papers. Instead of threatening legal action he should perhaps concentrate his efforts on trying to satisfy those concerns.

  13. Apparently the president and co-founder of his new company (ProWD Sciences) is Sangtae Kim, who was director of the Morgridge Institute when Fernandez was there.

  14. Out of this world and like Conrad Seitz, I laughed.
    Sadly, this is very much part of our world. Ridicule apart, defensiveness rather than engagement with editors and/or scientists criticising a piece of work leads directly to increased awareness that not all may be well with the papers and a slight aroma of snake oil.

  15. Wise words from a lawyer I know. “I can start charging you a $100.00 an hour now or you can just not worry about it until the papers are served.”

  16. Um, even in criminal court in the US it’s a presumption of innocence beyond a *reasonable* doubt, not beyond a single shred of doubt. In civil court the standard is even lower– it’s a preponderance of the evidence. OJ Simpson could tell you all about the difference between the two.

  17. As a Geneticist, i’m surprised this hasn’t been dealt with more appropriately. Its a relatively simple computational paper, examining a relatively common sense theory using public data sources that a lot of geneticists use everyday. Seems to me there would be plenty of people who could replicate this study. Authors should be made to submit their code to the Journal (something i think all journals should enforce) and publish it as ‘supplemental data’ which would certainly speed up the process of review…. I think its just bad journal practice that is causing a lot of this ruckus. The Journal could also ask the reviewers to re-examine the paper in the context of the “EoC”…

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