on one or two of the eight defamatory statements made by the everly dr sanders regarding dr croce the st statement is identified as statement want to in the trial court's opinion statement as to be determined by ohio law is to be reviewed by a reasonable person standard the court in this case found that statement to be c it substantially true the issue we present is whether or not the statement is substantially true and you should have been submitted to a jury to determine and i could ask you a question because one way to look at that is whether it's factor opinion and i guess where i struggle is it says the part you left out is dr sanders argues because in his observation the image fabrication duplication and mishandling in plagiarism and plagiarism  papers is routine it seems to me he's making an argument and what is routine is often opinion in other words whether something is thirty of one thousand two hundred and sixty five or eight hundred of one thousand two hundred and sixty five different people would have different views of what is routine well let me address that in two different ways your honor as i read this statement and parse it out dr sanders argues is the preface to the last part statement one b of the paragraph which is dr croce is knowingly engaged in scientific misconduct misconduct and prod that statement the court in part the trial court found was opinion because of the use of the term argue for the intervening statement the one i am addressing is not preface to by the argument so i don't thin statement of fact and well you spoke a so let me ask you about that because it says because in his observation the fabrication is routine in the papers is routine what's routine a matter of an opinion that's what i'm wondering well your honor i think in that case and this was not done at the trial court level there should have been an analysis and of the totality of the circumstances test if you are going to find that statement to be an opinion we don't believe it is routine is to be given it's ordinary common meaning under ohio law and routine means a bitch will customary and regular pattern practice in this case that specific use of that term created a heightened sense of heightened sense in any reasonable reader that you would have an error rate or initiate rate in papers of high thirty papers and found mistakes in twenty seven years that well dr sanders in his deposition could tell you couldn't identify the number of papers he repeated he found something like that right basis to say that this might be substantially true well or that a jury couldn't find otherwise i guess would be the relevant question well i think your hon that is a question of fact to be presented to the jury and to allow the jury to a bell you weigh what dr sanders did review and didn't review and how he made his determination in using the term routine if you're going to argue it that way  i mean my position would be if you're a scientist and you're going to use that language and you invoked the term routine it creates a very specific image of the number frequency raised about text overlap watts and text overlap which correlated to the plagiarism statement  if that if that provides any clarification so it's not always the same issue arising in the papers and even if it were the pregnancy of it is a question of fact to be determined question for the court yes whether it's fact versus opinion is a question for the court whether effect is whether a statement is a fact and it's true is a question for the jury well we just get to the routine aspect and i would say that the youth dr sanders chose his language he used the specific term routine by doing that he created an expectation in a reasonable reader and reasonable leader would not believe regardless of whether the papers reviewed were on one hundred or a one thousand that error rate of thirty or thirty papers with issues assuming each paper had an issue as opposed to multiple issues in one paper would constitute routine errors in a therefore we believe that the clear impact of the statement imparts that dr crew chief himself committed misconduct  which is part of the process part of the argument i was going to make and that the trial court found in part that the statement was substantially true because it looked not to dr croce but dr croce's papers employer i thought that the prior sentence in this letter said that talked about the operations that dr croce oversees and and it said that he exercises little oversight is are we talking about the same document here we are looking at a president doesn't that put it in a context of kind of a lack of oversight of what other people are doing and those people are co authors and so when we talk about knocking croce's papers in the sense that statement you're talking that we're not talking about i mean some really only his papers and it really seems to be an oversight allegation rather than one that he's in there you know personally doing things wrong well you are to there the answer to that is to pull pursed that paragraph does it is contained in there but that doesn't necessarily mean that dr croaky had also himself off the papers st nd if you read the rd paragraph the a reasonable reader in context of this letter in its entirety would see the question that  specific to dr croce has dr croce himself made a regular practice of using images incorrectly dr croce is the head of this land he is the dominant controlling figure of the la statements as to his lab or his papers or collaborators necessarily implicate him and even without specific names that's it this goes on to say or has he lost control or oversight of the practices within islam or among his school operators so i don't understand their just as this question seems to me is he doing it himself or is he just losing control of oversight iraq about this i think it's asking is he do it himself and or is he losing control over oversight but at the end of the day or has he lost control doesn't say and or it does it does not your honor it says or has he lost control over there was an oversight or practices the issue i believe is that the lib is synonymous with dr croce and the work that comes out of his lab misconduct in fraud and i know you don't want to talk about that just for a nd so why don't you concede that opinion if that's just an argument he's making i don't see that sin opinion your honor because i don't fact which is what the trial court found i believe that if you applied the four factor analysis to that nd statement state you if you argue that the light was red that's your claim but it's your opinion you're arguing that the light was red versus saying the light was red seems to me the word argues makes it an opinion am i wrong i mean how would it make it a fact well it's the word a factual question here that is subject to dispute namely whether this stuff is happening and sanders opinion is that the factual question breaks a certain way that that makes it an opinion about the existence of i don't believe it is an opinion it is if pinion because his language is specific he has sanders has in making these statements identified himself as having a precise meaning if he gives a precise meaning and gives a clear implication of what is happening he has indicated that he himself has some or implied that he has personal knowledge of the statements he's made can be verified this would be true of the light is red as well and judge the r s hypo i'll give you fifteen seconds just to wrap up this point and then you have your ok i think your honor i think you know ultimately your honour's i really what this whole case comes down to this court balancing an individual and society has interest in protecting a person's reputation with freedom of expression and in this case dr croce has been individually targeted throughout this throughout both by is identified as his leading critic and dr sanders should be held accountable to certain standards when making statements about other scientists very well you'll have your bottom  something very important that miss callahan said today she talked about how croce is the figurehead of his lab and the lab is synonymous with dr croce and ultimately he is responsible for what goes on in the papers and i think that's a very important blots you would see problems with image duplication where you use one control panel of the same time he'd see those repeatedly and relatedly i think what you have is you know it's there's a lot of talk but when a scientist is confronted with evidence of that air and the scientist then does nothing in response to that doesn't say yeah i made a mistake let's fix that let's redo the experiment let's let's correct let's say let's add to a quotation and prevent the text overlap when a scientist doesn't do that that's when it turns into routine because it's a routine part of their habit to challenge though the potential of errors and so i you're talking i understand the allegations whether it's routine or not but there's a souther aspect to the argument is an art is a claim that the lab generally was making errors and there were unknown scientists were making them which seems less personal whatsoever that that was ever uttered by dr sanders and it wouldn't make sense for dr sanders to ever utter such a statement because he told jim clancy tall you know you look at the letter it's full of nobody knowingly engaged in scientific misconduct and fraud i think that sounds a lot more i mean what you said is a much cleaner and maybe more forgiving state but what he said when i read knowingly gaging in scientific misconduct and fraud i'm not thinking he's just overseeing his oversight is sloppy think in he's actually engaged he's manipulating things he's doing things f and then he has multiple conversations with gen plans over several days where he talks about lab culture and he talks about how scientists go through and process these things it's understood by jim of a factual question because i can't know your state of mind you're saying well you could if i told you what it was but you're saying he committed a fraud why is it that same one b where where dr sanders argues that because you have routine errors and because you have challenges to those errors you have fraud what are you saying is look there are errors in these papers i tell the journals about these errors and the author say nope there's no errors there's no where i'm denying the existence of these errors i deny the existence of these errors dr security saying that  value judgment that when a scientist makes an air when a scientist is confronted with the obviousness of the error which is not challenged in this case and denies that exists that that area exists that you have itself constitutes scientific misconduct well i mean but i mean this statement doesn't really end a dispute about ethics with between the two doctors it's a dispute about whether dr croce knowingly acted in a certain way and i mean isn't that isn't dr sanders speaking as a professional here and as somebody who has expert knowledge of this sort of factual question and i mean whitner reader sale kay this guy's a fire ologists and has a doctorate and he's saying this and he's saying as a matter of fact based on his expert knowledge that this other guy is doing bad things on purpose i mean that sounds like a representation of fact rather then a dispute looking at the blot and seeing that you know what the the lanes thirty four and five they overlap with lanes sixty seven and eight that's his expertise you know he has those blots permanent we blaze and into his  head and that's not been challenge here that the fact that there was that fabrication were thirty four and five overlap with six of an eight has not been challenged i don't think that there's other than the reference to dr sanders being a bit of a freelance ethicist and running quixotic campaigns for congress you get the sense how glance describes him and how he has testified in this case that he is not someone who is coming to the table with statements of you know reference to and i ate standards of misconduct he is making a value judgment that i see a problem and the problem is it being corrected and that is ethical misconduct in my mind and i don't think dr sanders has this particular expertise about ethics other than his own self proclaimed deciding being someone who is on the forefront of advocating who are better ethics and science and that's something that he openly admits he's advocating for better ethics he cares about the scientific record and that takes him out of this concept a fact finder with respect to ethics and puts him in the context of a and advocate who is passionately trying did it on purpose what he would say is that not correcting another scientists you maybe maybe did it on purpose maybe didn't do it on purpose but by not correcting not that's in and of itself misconduct and that's where you have that opinion and frankly i think every single one of the dr sandor statements and have the opinion layer because it is it is one of those he's a scientist he knows that had he wanted to meet not personalize them he could have said the cancer in genetics lab at the u has state university has authored x number of statements or papers in which there's manipulation duplications mishandling of images in plagiarism he elected not to do that he chose his words and he needs to be held in bound by the terms that he used i contrary to councils position dr sanders does represent represent himself as an expert in a fix he teaches a course in ethics it's in the record he talks about how he utilizes one of these not talking about whether lights read here you know he would want to talk about constituted or don't care whether that's you know we're in the realm of opinion when we're talking about ethics well we are but we are there are benchmarks there are scientific norms there are scientific measures by which to to measure the kind of misconduct that dr sanders references and he disregards tho to make statements that are faults scientific misconduct is a defined term pride is a defined term is a matter of law and yet he uses those statements as if they're fact he either two people can have a a disagreement with regard to whether a specific body of facts amounts to fraud they can disagree amounts to prod two scientists to whatever it's not possible to have any disagreement based on agreed upon facts about whether those facts amount to pro in the case where facts are agreed upon i think that the conclusion it's yes your honor i guess it would be possible however why isn't that arguably the situation here we have the slides there they are one person thinks that the fact that those slides made it into a paper monster prop the other one doesn't because this there are more statements than just that that is fraud their statements knowingly engaging in misconduct their statements that these types of issues with papers are  us and so more factual here we decide we have a rival professor at a different you know rival university commenting on someone i thought that was pretty for a way to distinguish that case if i guess you disagree but can i get your thirty seconds on while here i think better works well here because it's really more i viewed it your honor as and i believe that it's appropriate leave viewed as a roadway up on how to do the analysis of the t circumstances related to each statement made by dr sanders as to whether it's fact or opinion i don't if it gives guidance i don't think that big that case in that itself because in the statements were made by an investigative committee at a university make it distinguishable the statements can't contain the same kind of language the statements did even with statements in that case of blatantly and and other somewhat hyperbolic terms the court still found that those statements were statements of fact and ultimately the analysis goes down to what were they based on they were based on