Judge dismisses most of Carlo Croce’s libel case against the New York Times

Carlo Croce, a prolific cancer researcher at The Ohio State University in Columbus who was the subject of a front page story in The New York Times last year about allegations of misconduct against him, has had most of a lawsuit he filed against the newspaper thrown out.

As first reported by Courthouse News Service, United States District Judge James Graham tossed all but one of Croce’s claims for defamation against the Times and two of its reporters. That claim — which involved a statement in a letter that reporter James Glanz sent Croce as part of his reporting — survived dismissal, but not on grounds that it inflicted emotional distress, Graham ruled.

The March 2017 story ran on the front page of the Times under the headline “Years of Ethics Charges, but Star Cancer Researcher Gets a Pass:”

Over the last several years, Dr. Croce has been fending off a tide of allegations of data falsification and other scientific misconduct, according to federal and state records, whistle-blower complaints and correspondence with scientific journals obtained by The New York Times.

Graham writes that

Put in context, the Article is an accurate and balanced report about Dr. Croce’s research, his critics, and his and Ohio State’s responses to the accusations against them.

The Croce case is one that we had been following for some time, and the Times story links to a 2014 post of ours that includes a letter from Ohio State to the pseudonymous Clare Francis.

Do middle authorships count?

As we noted last fall in a post about the lawsuit, one of Croce’s claims was that papers on which he was an author were not really his:

Defendants include in this tally of “Dr. Croce’s papers” manuscripts reporting research that (a) did not take place in Dr. Croce’s lab or under his supervision, (b) do not contain any figures prepared by Dr. Croce or anyone under his supervision, (c) were not written by Dr. Croce or anyone under his supervision, and (d) for which he is identified only as a middle author….

Defendants falsely stated that papers on which Dr. Croce was only a middle author were “Dr. Croce’s papers.”

In his 35-page opinion, Graham does not buy that argument:

Dr. Croce contends that not all papers on which his name is listed were the product of research either conducted by him or under his supervision. But the Court believes that an ordinary reader would credit such a paper, on which Dr. Croce willingly allowed his name to appear as a co-author, to him. For good measure, the Article advises readers that “[a]cademic papers often have multiple authors,” with varying degrees of involvement, and it includes Dr. Croce’s explanation that he was not to blame for any errors that may have occurred in one of the papers for which he was a co-author.

Of note, Graham distinguishes withdrawal from retraction. Retraction, he writes, “occurs when a journal removes a paper without the author’s consent.” We have always maintained that this is a distinction without a difference, and that “withdrawal” is a term often used by authors and publishers to avoid providing reasons for the removal of the article from the literature. Others may disagree. Based on his definition, Graham writes that:

None of Dr. Croce’s papers have been retracted, which occurs when a journal removes a paper without the author’s consent. But two of Dr. Croce’s papers have been withdrawn. Dr. Croce himself withdrew a Commentary Paper “because the journal involved declined to include a sentence in the Commentary Paper that Dr. Croce believed needed to be included.” (Id. at ¶ 38). A Research Paper was withdrawn with Dr. Croce’s consent after the publication of the New York Times Article.

It’s not clear whether Graham’s opinion refers to what had happened by the time the lawsuit had been filed in Spring 2017, or as of today, but by our count, Croce has now had eight papers retracted, and a slew of papers corrected or subject to an expression of concern.

Neither sides’ attorneys immediately responded to a request for comment. Croce — who is also suing David Sanders, a professor at Purdue University quoted in the Times story, who denies that he made false statements or defamed Croce — recently had to replace his attorneys.

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