More scientists are trying to settle accusations of misconduct in court, a trend very familiar to Washington, DC-based lawyer Paul Thaler. Regular readers may recall the name of one of Thaler’s clients — Rakesh Kumar, a scientist at George Washington University who filed an $8 million lawsuit for how the school handled an investigation into his work. He’s also representing Bharat Aggarwal, the subject of an investigation at MD Anderson who has threatened to sue us (and logged his ninth retraction this week). For 25 years, Thaler has been representing scientists embroiled in misconduct proceedings. He spoke to us about his family’s highly pedigreed background in science, and why everyone deserves an advocate.
Some of your clients have committed misconduct, but you still work to protect their reputations and even help them continue to do research. Why?
My clients hire me to protect their interests. Typically, if a scientist hires me to help him in a misconduct proceeding, his interests include protecting his reputation and career. It is not my position to judge a client or potential client. And even as to those who arguably have done something wrong, there are different degrees of misconduct. There is misconduct that falls within the federal definition. A negative finding there would result in a public announcement in the Federal Register and placement on the system notifying others of the misconduct. Obviously, this is very impactful on a scientist’s career, perhaps fatally so. But the federal regulations require certain findings and not all allegations meet the federal definition of scientific misconduct. There is also the possibility the institution in charge of investigating the allegations has its own set of policies that have a different standard of what constitutes research misconduct. Ultimately, the goal of all of the proceedings is to protect the integrity of science. Just as all those who are accused of crime are not bad people and can very well be productive members of society after they pay their penalty, so too does science not necessarily want to rid itself of all scientists accused of misconduct. And don’t forget – many scientists accused of misconduct are exonerated.
Obviously, in highly sensitive cases such as misconduct investigations, the institution and the accused often like to keep many aspects confidential, and adopt an “innocent until proven guilty” approach. On the other hand, you’ve got some people (including Retraction Watch) pushing for more transparency in science, so people can learn from others’ mistakes and funders can know the history of whomever they spend their limited funding on. Which side of the argument do you fall on?
The first thing to remember is that the federal regulations, as well as the internal policies of most institutions, protect the confidentiality of respondents in research misconduct matters. Thus, as a matter of federal law, institutions are prohibited from disclosing the identity of an accused scientist, except on a “need to know” basis, for example, to a member of the investigation committee, unless and until a finding of research misconduct is made. These proceedings are not public as court is in criminal and civil disputes. It is more comparable to proceedings against other professionals, such as lawyers, who are governed by their licensing organization. Privacy in these matters is critically important as there is no public need to, or right to know, about professionals simply accused of wrongdoing. What the public has a right to know about is a professional who has been found responsible for wrongdoing. At that point, the public is alerted. But because a professional’s reputation is so important to his or her career, the specter of an accusation can permanently stain that reputation and frequently the accusation is not well founded. So the confidentiality of the process allows a full examination before the public is made aware. We certainly do want to know about those scientists who have actually done something wrong that impacts science, but we do not, and should not, be concerned with those who are good scientists but caught up in a sometimes very political, internal dispute.
How are cases of scientific misconduct different from your other cases? Does taking them on require any special knowledge or skills?
Scientific misconduct matters are fairly different from other types of cases we handle. I have been a civil litigator for nearly 30 years. I have handled scientific misconduct matters for about 25 of those years. Misconduct matters are not handled in the aggressive, argumentative, sometimes confrontational manner litigation cases are. We are reminded that the “other side” in a misconduct matter in which we represent the scientist, is also the judge and jury. If we are representing the scientist, we are providing the inquiry or investigation committee with information, frequently in the form of a written submission. We do not use the same kind of advocacy that we would in a motion to the court. We view our role more as an educator to the committee to explain the regulations as they are applied to the facts of the case. This is very different from a submission to court in which we make our strongest arguments, sometimes while aggressively challenging the other side’s submission to court.
Misconduct cases often feature complex science. How do you get up to speed on the subject matter that you’re dealing with?
We rely very heavily on our client – whether it is the institution or the scientist. Clearly, while we have experience in well over a hundred misconduct matters, we cannot have the same level of knowledge and expertise in all the various fields of science. So we look to our clients to assist us in understanding and then explaining to others the issues in the particular matter.
Occasionally, we are required to look outside of the process to enlist an expert.
How did you start representing scientists?
I began by getting referrals from my mother, Barbara Mishkin, who was very involved in helping to write regulations in the early years of [the Office of Research Integrity (ORI)] and assisting universities and hospitals with their misconduct proceedings. She was an attorney at Hogan & Hartson (now, Hogan Lovells) in Washington, D.C. and would be conflicted out of representing a potential client from time to time. As a then-young lawyer it was a great help that she included me on her referral list and I began developing my own practice in the field. So I guess that makes me a second-generation scientific misconduct lawyer.
In a Nature article on a Danish court case, Daniele Fanelli, a research-misconduct expert at Stanford University, notes that prosecutions of scientists are on the rise. “I think we should expect that some of these individuals accused of scientific misconduct will fight back,” he tells Nature. Is this a trend that you see happening? How has your caseload changed over the past decade?
Yes, I would agree. I have seen a fairly dramatic uptick in the number of proceedings in recent years. I know that ORI has a heavy caseload. I think with the increased public awareness as well as the competition in science for discovery and requests for federal funding, this trend will continue for the foreseeable future.
We’ve often lamented when journals publish opaque retraction notices, which give little clarity to what’s gone wrong with a paper. Recently, Nature blamed lawyers for this practice, noting that “those under investigation increasingly turn to lawyers to defend themselves and their reputations, and their employers and journals are more frequently having to respond accordingly.” Are you concerned that the increasing role of lawyers in misconduct investigations will impede journals’ ability to correct the literature in a transparent way?
While we do live in an increasingly litigious society, people and entities have a long history of turning to lawyers to help protect their rights. The tug of war between research institutions, scientists and journals concerning retractions is inevitable given the interests involved. For the scientist who prepared a paper relying on data from his or her research, the threat of retraction or revision is a threat to their reputation and career. When any one of us is under such pressures, there is a strong desire to protect that which we have cultivated and which provides us with our standard of living. For the universities supporting the scientist, there is an interest in striving to maintain as pristine a scientific research environment as possible. Bad scientists, or perceived bad scientists, in the eyes of such entities, should be sanctioned in some way when it becomes evident that, in their opinion, the research is tarnished and science itself should be protected. Of course, the severity of the errors or omissions is viewed, frequently, differently by the scientist and the university. Thus, when the university, for example, reaches out to a journal to notify it of misconduct uncovered by the university, the scientist might believe the report to be misleading or itself in error. Lawyers get involved to assert and defend those interests on either side, and indeed sometimes on behalf of the journal itself when threats of litigation result. Ultimately, it is for the journals to decide how to handle the request or suggestion of retraction. There does not seem to be a decrease in the number of retractions or allegations suggesting retractions. And remember, as each stakeholder involved strives to protect its interest as best as it can, you should remember you have asked a lawyer whether lawyers are getting in the way!
Your grandfather was an inventor, and several members of your family are scientists, correct? How do these personal connections influence how you see your clients, and your role in science?
I am a proud member of a family filled with scientists. You are correct, my great-great grandfather was an inventor of note, Emile Berliner. He invented the gramophone (the use of a flat disc record as opposed to Edison’s cylinder), as well as the first helicopter to have sustained flight, the microphone which Alexander Graham Bell included in the telephone and improvements in acoustics, among other things. My own immediate family includes my mother’s husband, Dr. Mortimer Mishkin, a neuropsychologist at [the National Institute of Mental Health] for 60 years and winner of the National Medal of Science from President Obama in 2009 and this year’s Neuroscience Award winner from the National Academy of Science. My brother, Dr. David E. Thaler is Chairman of the Department of Neurology at Tufts Medical Center in Boston. And our grandparents, Dr. Maurice Friedman and Gertrude Friedman, as research scientists at the University of Chicago actually developed the pregnancy test commonly referred to as the “Rabbit test.” Science has always been a part of my life and I am honored to assist institutions and scientists in improving and protecting the field of science in my own way.
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