Panel Urged to Revive Libel Case Against NY Times

CINCINNATI (CN) – An award-winning cancer researcher at the Ohio State University argued Thursday before the Sixth Circuit to revive his defamation lawsuit against the New York Times over a 2017 article that raised questions about the authenticity of his research data.

(AP Photo/Mark Lennihan, File)

Dr. Carlo Croce has been involved in cancer research for over 45 years and holds numerous positions at Ohio State, including director of the Human Cancer Genetics Program and Institute of Genetics, and chair of the Department of Molecular Virology, Immunology and Medical Genetics.

Croce was interviewed in 2016 by New York Times writer James Glanz, who asked him to respond to several accusations about Croce made by members of the scientific community.

A large chunk of Glanz’s article hit Croce for his work in the 1990s as an adviser to the Council for Tobacco Research, which the story said was created by tobacco companies to fight the public perception that smoking caused cancer.

Glanz and the Times published the article in March 2017 under the headline: “Years of Ethics Charges, but Star Cancer Researcher Gets a Pass.” It contained allegations that the university cleared Croce of several allegations of misconduct related to data fabrication to ensure it continued to receive grant money associated with his research.

Croce sued the New York Times and Glanz, among others, and claimed the article “falsely maligned” his integrity, the effects of which were “crushing.”

U.S. District Judge James Graham sided with Glanz and the newspaper last November, and dismissed Croce’s defamation claims related to all but one of the 19 statements the doctor included in his lawsuit.

Graham went through each of the 19 statements in a detailed, 35-page opinion, and found the article “presents the different sides to the issues.” The judge added that the statements in question “are couched in qualifying language” and “are not presented as proven facts but as the ‘allegations,’ ‘arguments,’ ‘claims’ and ‘complaints’ other scientists are making against Dr. Croce.”

Arguing Thursday morning on behalf of Croce, attorney Gerhardt Gosnell II of the Columbus, Ohio-based firm James E. Arnold & Associates focused on the headline and first paragraph of the Times piece, which he said led readers to believe his client was guilty of research misconduct.

“The Times in three sentences summarized what the article was intended to convey,” he told the Sixth Circuit panel.

U.S. Circuit Judge John Nalbandian, an appointee of President Donald Trump, reminded Gosnell that the headline cannot be isolated from the rest of the article in a defamation case.

“It’s a very important part of the article,” the attorney replied.

U.S. Circuit Judge Deborah Cook, a George W. Bush appointee, asked Gosnell to elaborate on his claims and cite specific portions of the article he believes were defamatory.

“The words ‘gets a pass’ only mean Dr. Croce is guilty,” Gosnell answered.

Cook speculated the phrase could have been a “slam” on Ohio State University for its alleged failure to discipline Croce. Gosnell agreed and admitted it was most a likely intended to implicate both his client and the university.

Attorney Jay Brown from the D.C. office of the firm Ballard Spahr argued on behalf of the New York Times and Glanz, who attended the arguments.

“The article presents a balanced report of this controversy,” Brown told the panel in his opening remarks.

Judge Nalbandian questioned the newspaper’s attorney repeatedly about Ohio’s “innocent construction” rule regarding defamation, and specifically how tweets and other social media posts by the Times would be analyzed under the rule.

Brown told Nalbandian that case law assumes a reasonable reader would read the tweet, click the link for the article, and read the entire article.

He pointed out that the article included Croce’s denial of misconduct, as well as denials provided by several of Croce’s supporters.

Brown concluded by telling the panel that the article “uses Dr. Croce as a case study of this systemic problem” of research misconduct.

U.S. Circuit Judge Karen Moore, a Bill Clinton appointee, also sat on the panel. No timetable has been set for the court’s decision.

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