A district judge has ended a $1 billion defamation case against Elsevier over a study about air purification technology after concluding the plaintiff’s evidence was too weak to take to trial.
Global Plasma Solutions, which makes air quality products, sued Elsevier in 2022 after the publisher declined to retract a paper in Building and Environment about the company’s needlepoint bipolar ionization technology. GPS claimed Elsevier was responsible for the authors’ alleged omission of data and misleading conclusions in the paper that led to “massive” financial losses for the company, according to its complaint. GPS, which now goes by GPS Air, claimed Elsevier knew the paper “failed peer review” but still published the paper.
On Oct. 22, the U.S. District Court for the Western District of North Carolina tossed out the suit. Judge Kenneth Bell wrote in his order there was “insufficient evidence” for a jury to conclude Elsevier acted with malice. “Actual malice” requires a plaintiff to prove the alleged defamatory statement was made with “knowledge that it was false or with reckless disregard,” which GPS could not support, according to Bell.
In his decision, Bell nodded to the case’s lengthy, fiery history, noting the parties had engaged in “extensive and contentious discovery” throughout the litigation. The action had spanned more than “four and a half years and nearly 400 docket entries,” Bell added.
A spokesperson for Elsevier told Retraction Watch the publisher was “pleased that the court upheld the scientific principles underpinning peer review.”
Robert Muckenfuss, an attorney for GPS, told us the company is evaluating the order but expects to appeal.
“We believe there was adequate evidence of malice for defamation,” Muckenfuss told us by email. “Although we’re disappointed with the ruling, it is noteworthy the court did not find the article deserved full First Amendment protection based on non-disclosure of data and further questioned the integrity of the underlying testing and Elsevier’s profit model.”
The 2021 paper in Building and Environment concluded GPS’ ionizer had minimal effect on indoor air quality and posed the risk of generating dangerous irritants. A 2022 corrigendum to the paper said two tables in the article’s supplementary materials were “accidently transposed,” but claimed the results were not affected.
As part of its complaint, GPS alleged the study’s corresponding author, Brent Stephens of the Illinois Institute of Technology, and his research team suppressed and distorted evidence to fit a predetermined conclusion, and ignored test results suggesting the technology was effective.
But Bell concluded the results were neither “fabricated” nor “fraudulent,” and were the “accurate average of actual scientific experiments.”
“However, the lack of a disclosure that an average was taken and the fact that the underlying data is not made available to the reader is concerning,” Bell wrote. “While omitting data does not necessarily make research fraudulent … the absence of this particularly relevant data may have affected the readers ability to fully assess the study’s findings.”
Bell also observed the authors’ omission of some data “might possibly justify limiting the full, dispositive First Amendment protection for scientific opinion urged by Elsevier.”
GPS also contended Elsevier acted with malice because the publisher knew the journal’s editor was “too overworked to do his job properly.” Emails obtained during discovery showed editors expressing frustration to Elsevier about increasing workloads and low pay. In an Aug. 23, 2020 email, Bert Blocken, a senior editor for the journal, wrote the “quality of submitted papers is declining monotonically. But also the quality with which I handle them is declining monotonically, because there is no time anymore.” Blocken wrote that Elsevier “seems to be very much focused on quantity over quality.”
Addressing this claim, the judge stated Elsevier “may be too focused on its profitability at the expense of a more careful review of its published articles and its editors may be overworked,” but such allegations alone do not support a finding of actual malice.
Stephens, who runs the Built Environment Research Group at Illinois Institute of Technology, did not return a request for comment about the decision.
Whether the article “failed” peer review was a central part of GPS’ complaint. The company claimed two of three peer reviewers recommended against publication, but that the article moved forward anyway. Recently unsealed records show one reviewer initially recommended a “major revision,” to the article, a second reviewer recommended “rejection,” and a third reviewer recommended a “minor revision.”
GPS also alleged Elsevier’s advertisement of its scientific journals as “peer reviewed” violated the Lanham Act, a federal law that prohibits false or misleading representation in commercial promotion.
The court concluded GPS couldn’t support this claim, writing that a reasonable jury could not find Elsevier’s ads mentioning peer review “false or misleading.” The Stephens’ article was peer reviewed, the judge wrote, “even though GPS does not like the outcome of the process.”
“Three independent, qualified reviewers were selected to review the Article and they did so, although one of the reviews was not considered ‘meaningful’ and was subsequently ignored,” according to the decision.
While two of the three reviewers did not immediately recommend the article for publication, Bell clarified that all three reviewers still assigned numerical passing scores to the paper, and “their comments were considered in two revisions of the Article prior to its acceptance for publication.”
“This is plainly a ‘peer review,’” Bell said.
At the conclusion of his order, Bell admonished both parties for “excessively” filing documents and exhibits under seal in violation of First Amendment standards mandating public access to court records, including “press releases and other obviously public documents.” The judge ordered GPS and Elsevier to refile all memoranda and exhibits in their summary judgment submissions in unredacted form.
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