PubPeer files motion to dismiss Sarkar defamation case

sarkarAttorneys representing PubPeer in its defense against a subpoena by cancer researcher Fazlul Sarkar, of Wayne State University in Michigan, have submitted a motion to the Wayne County Circuit Court to quash the matter.

Sarkar’s work has appeared on the anonymized post-publication peer review site, and he isn’t happy about it. In October, he sued the site’s commenters, demanding that PubPeer release the names of his accusers. Sarkar, who has not been found to have committed research misconduct, claims he lost a lucrative job offer at the University of Mississippi as a result of the posts.

The motion — available here — argues that even if the claims of image irregularities levied against Sarkar by anonymous PubPeer posters are untrue, they don’t meet conventional standards of defamation:

The subpoena to PubPeer jeopardizes the anonymity essential to PubPeer’s mission. Because the First Amendment protects the right to speak anonymously, however, it requires that Dr. Sarkar make a preliminary showing of merit to his claims before he may unmask PubPeer’s commenters. This he cannot do for three reasons.

First, his complaint fails to plead defamation with the specificity required by law. Many of the allegedly defamatory comments are not reproduced in the complaint; many are reproduced in only unintelligibly paraphrased fragments, absent their necessary context; and those that are quoted in full are quoted without any identification of the portions asserted to be defamatory.

Second, even for those comments reproduced in the complaint, none is capable of defamatory meaning. They express opinions, sarcasm and hyperbole, or facts that, even if false, would not be defamatory. For example, many state that images used in Dr. Sarkar’s papers “look similar.” That sort of subjective assessment is not provably false and thus not actionable.

Finally, the balance of interests overwhelmingly favors maintaining the anonymity of PubPeer’s commenters. The comments at issue are part of the scientific exchange necessary to scientific scholarship and progress. Because academic discourse inevitably involves—and requires—a competition among peers, courts have been loath to impose liability on the often-heated exchanges that result. To safeguard the breathing space required by the First Amendment, they generally require academics unhappy with their critics to respond with data and debate rather than defamation suits. This Court should do the same.

But PubPeer’s lawyers have submitted testimony claiming that Sarkar’s figures do indeed look iffy. In an affidavit also filed today, John Krueger, a former investigator at the Office of Research Integrity (ORI), testified that he detected signs of irregularities in all of the image samples – chiefly Western blots — from Sarkar that he reviewed.

According to Krueger, in the “approximately 44 images extracted from 25 full figures”:

there was sufficient visual support—based on morphology (shape), location, orientation and relative intensity (darkness) of the features in question in the images—to conclude that the images or their components were not authentic (did not depict different experiments as they purported to) or that they contained other irregularities (such as inconsistent splicing of data).

Krueger concludes with the following, fairly strong, statement:

PubPeer’s counsel did not ask me to determine whether the fact that the images I examined are not authentic is evidence of research misconduct by someone involved in the preparation of the papers. To make such a determination one would need direct access to the original data, and a fact-finding process that would require a fuller review by the institution. Had I been presented with these images while still at ORI, I would have recommended that ORI refer the images to the host institution where the research was conducted for such an investigation. Based on my experience at ORI, and given the demonstrable credibility of the numerous issues identified by PubPeer, I believe it very likely that ORI would have made such a referral in this case.

 

24 thoughts on “PubPeer files motion to dismiss Sarkar defamation case”

  1. The wheels of justice turn slowly, but turn they do… …I await the outcome with interest, both in terms of the solidity that the PubPeer platform can achieve and as an opportunity to let off some steam in a blog post!

    Perhaps some retractions will follow – it would be interesting if a journal was to issue a retraction while hearings proceed, but this is unlikely – the wheels of justice are on steroids compared to journal reaction to information pointing out problems with data in papers. While author responses on PubPeer are patchy, I don’t think there has been a single response for an editor, yet there should, in every instance where data are queried, which says a lot about the “system”.

  2. Fully expect this matter to be quashed soon.. Though it may be overly optimistic to think others will not sue in the future (especially when/if comments point to more ambiguously looking data). Do people mirror the criticisms on say PubMed Commons (in the egregious cases) ? That seems like it would offer some additional pressure or protection – and editors do look at PubMed, don’t they ? 🙂 And of course it wouldn’t have to be the initial commenter necessarily posting on PubMed.

    1. I’m afraid it will be some time. The judge will probably side with the motion to quash (not dismiss!) but may well give Sarkar leave to file an amended complaint, which means going back to square one.

      The only way this will end quickly is if Sarkar decides to drop the case, which his lawyers may well advise him to do now that PubPeer has ACLU muscle behind it.

  3. Never fully understood this suit. Isn’t his real beef with the people who withdrew a job offer on the basis of a few anonymous online comments? That seems like a highly dubious and unprofessional way to determine fitness for employment. My guess is that the offer was withdrawn for reasons the U of Mississippi has chosen not to enumerate (wisely, it appears, since Dr. Sarkar is clearly not shy about suing) and Pubpeer is collateral damage.

    1. It does not put the U.Miss recruitment procedure in a good light. If the links to Pubpeer they were sent were sufficiently compelling to rescind the job offer, what kind of cursory half-assed job of applicant-checking did the committee do, not to pick it up themselves?

    2. Pongo has lit on an illuminating surmise: the suggestion that it is possible that UM had additional information from an independent source that prompted them to withdraw their offer of employment, and that they didn’t wish to reveal.
      This possibility is certainly worth evaluating.

  4. Bravo!

    And given that this is the charitable time of year, might I suggest anyone interested in these matters consider putting the ACLU on their holiday gift list?

    Based on today’s earlier RW post about delayed ORI findings, plus the respondent’s willingness to lawyer up, I’d say we can happily look forward to a final resolution to this case in 2019.

  5. See the link cited in this Retraction Watch post to the affadavit by Dr. John Krueger, the former ORI Scientist-Investigator who created the ORI Forensic Droplets program to assist scientists and investigators in the details and difficulties in doing their own forensic image analysis, and who in ORI helped many editors and institutional investigation committees in using these sophisticated tools, in the two decades 19993-2013.

  6. I would like to congratulate all commenters on Pubpeer for their comments on the various figures in papers co-authored by Dr. Fazlul Sarkar. Dr. John Krueger was unable to rebut any of the comments. It is highly recommended to read his extensive report ( http://retractionwatch.com/wp-content/uploads/2014/12/2014.12.10-PubPeer-Motion-to-Quash-Ex-B-Krueger-Affidavit.pdf ). Thanks to RW to upload an unedited version of this report.
    .
    I would like to invite Dr. Fazlul Sarkar and/or his co-workers/co-authors to react on the findings of the report of Dr. John Krueger.

  7. A living example of a powerful Streisand effect supported fully by an irrefutable expert affidavit!
    Another cornerstone of post publication peer review

  8. This brings the Popehat mantra in play here “..vagueness in legal filings is a sure sign of thuggery..” or something to that effect 🙂

  9. Here is another Sarkar paper placed on Pubpeer.

    It seems to contain mysterious flexibly spaced NA bands.

    https://pubpeer.com/publications/DA2C4BCB5B8674EA11483A9C6C24C2

    Ali S1, Al-Sukhun S, El-Rayes BF, Sarkar FH, Heilbrun LK, Philip PA.
    Protein kinases C isozymes are differentially expressed in human breast carcinomas.
    Life Sci. 2009 May 22;84(21-22):766-71
    PMID: 19324060

    As it happens, there is a tad more to highlight comparing Fig. 1 to Fig. 3 and we may as well archive it in case it might be useful at some point in the future.

    http://i.imgur.com/vGj5dRP.png

    Fig. 1 Legend: “samples are from three representative patients out of a total of 24 patients examined.”

    Fig. 3 Legend: “samples are from three representative subjects out of a total of 12 subjects examined.”

    Does that mean that in breast cancer research, 12 = 24?

  10. Still plenty of stuff to find in the back catalogue. Here is one that is not yet on PubPeer.

    You can see that for yourself

    https://pubpeer.com/publications/57661195149856D1D521E6D4DB617C

    Li Y1, Hong X, Hussain M, Sarkar SH, Li R, Sarkar FH.
    Gene expression profiling revealed novel molecular targets of docetaxel and estramustine combination treatment in prostate cancer cells.
    Mol Cancer Ther. 2005 Mar;4(3):389-98.
    PMID: 15767548

    Figure 3 has a pair of what look like beautifully duplicated bands – almost pixel perfect but you can’t see the joins at all.

    http://i.imgur.com/eVYT11Y.png

    For cathepsin K, it looks as though that C = D.

    1. As well as the white dot in the middle of the duplicated bands, they both have the black dot below the left-hand end.

      1. Indeed, herr doktor, the triangulation points are more than clear to correctly superpose these bands, should one wish to do so.

  11. Still plenty of stuff to find in the back catalogue. Here is another one that is not yet on PubPeer.

    You can see that for yourself here

    https://pubpeer.com/publications/64577B5A646B68CD280F3F61FB4769

    Zhang Y1, Banerjee S, Wang ZW, Marciniak DJ, Majumdar AP, Sarkar FH.
    Epidermal growth factor receptor-related protein inhibits cell growth and induces apoptosis of BxPC3 pancreatic cancer cells.
    Cancer Res. 2005 May 1;65(9):3877-82.
    PMID: 15867387

    In that article, a gel slice appears to be reused between Figs. 4 and 5. Slightly stretched but otherwise almost pixel perfect. Labelling indicates two different proteins, however.

    http://i.imgur.com/dFGK6At.png

    In BxPC3 pancreatic cancer cells, it turns out that EGFR appears to = beta-Actin. Who knew?

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