Last month, we reported that a Wayne State University cancer researcher had threatened legal action involving post-publication peer review site PubPeer, claiming that he had lost a job offer from the University of Mississippi because of comments on the site. 

Fazlul Sarkar — who has received $12.8 million in NIH funding and has been an investigator on five clinical trials — has now filed suit against PubPeer’s anonymous commenters, and has demanded that PubPeer release their names and identifying information.  The complaint, filed by attorney Nicholas Roumel in Michigan’s Wayne County Circuit Court and which we’ve made available here, details more of the history of the case and of course describes the legal strategy, which we’ll describe below. 

First, we learn that in addition to a salary of $350,000, which has been previously reported, the University of Mississippi had offered Sarkar “Commitment to ‘help us realize the $2 million level on endowed professorship,’ “Relocation expenses up to $15,000,” “Laboratory and office space in two locations, Research Assistant Professors, up to two additional Research Associates, and administrative support,” “A start up package of $750,000,” and “Moving expenses for the laboratory and senior personnel.” 

Sarkar received the formal offer on March 11, 2014, had it confirmed by the provost on April 8, and signed an agreement on April 18.  He received tenure from Mississippi on May 15, and submitted a resignation to Wayne State on May 19, with an anticipated start date at Mississippi of August 1:

He engaged the services of a real estate agent in Oxford, Mississippi, and made an offer on a house to move himself and his family.  He put his house in Michigan on the market. 

Then, however, things, well, went south:

[I]n a letter dated June 19, 2014 – just eleven days before Dr. Sarkar was to begin his active employment – Dr. [Larry Walker, the Director of the National Center for Natural Products Research at the University of Mississippi Cancer Institute] rescinded that employment, as additionally confirmed by the Chancellor Jones on June 27, in effect terminating Dr. Sarkar before he’d even begun.  Dr. Walker’s June 19, 2014 letter cited PubPeer as the reason, stating in relevant part that he had “received a series of emails forwarded anonymously from (sic?)PubPeer.com, containing several posts regarding papers from your lab.  These were also sent at about the same time to Dr. Kounosuke Watabe, Associate Director of Basic Sciences for the Cancer Institute at the University of Mississippi Medical Center.  I learned yesterday that several were sent on the weekend of 14 June to Dr. David Pasco, Assistant Director of the National Center for Natural Products Research.” 

Walker wrote:

At this point, we cannot go forward with an employment relationship with you and your group.  With these allegations lodged in a public space and presented directly to colleagues here (I am not sure of the scope of the anonymous distribution), to move forward would jeopardize our research enterprise and my own credibility. 

The complaint never asserts that Sarkar did not commit misconduct, but notes that he “has never been found responsible for research misconduct:”

To put the false comments publicly communicated on PubPeer in perspective, let it be stated emphatically: Dr. Sarkar has never been found responsible for research misconduct.  He has published more than 533 papers.  He has, to date, not had one retracted by a journal.  For a tiny handful – less than 2% of his published total – he has voluntarily submitted errata.  Of these errata, half have been published; for the other half, decisions from the journals are pending.  These are unremarkable numbers given Dr. Sarkar’s prodigious output, and are quite within the normal range of errata, if not low. 

The suit’s many claims of defamation go something like this:

a. In this discussion, “Peer 1’s” commentary begins with an invitation for the reader to compare certain illustrations with others.  But then an unregistered submission links to another page, where someone sarcastically asserted that a paper “[Used] the same blot to represent different experiment(s).  I guess the reply from the authors would be inadvertent errors in figure preparation.”  b. Perhaps that same unregistered submission complains, “You might expect the home institution to at least look into the multiple concerns which have been rasied.” ( sic) This statement is defamatory.  Given the regulatory scheme described above that requires such investigations only where there are “good faith” complaints of “alleged research misconduct” [deliberate fabrication, falsification, or plagiarism], this unknown author has accused Dr. Sarkar of deliberate misconduct. 

It seems a stretch to say that suggesting a university look into allegations is the same as accusing someone of deliberate misconduct, which makes it even more of a stretch to call such a statement defamatory, but that’s of course for the courts to decide. 

Another example of questionable logic:

At https://pubpeer.com/publications/2D67107831BCCB85BA8EC45A72FCEF, another discussion takes place among anonymous posters, accusing Dr. Sarkar of “sloppiness” of such magnitude that it calls into question the scientific value of the papers.  The comments further demand a “correction” with a “public set of data to show that the experiments exist,” falsely stating that the data were false and that the experiments were fabricated. 

By the standard that requesting data is “falsely stating that the data were false and that the experiments were fabricated,” many journals will now face defamation suits.  That’s of course ridiculous, and a twisted response to attempts to allow replication. 

Sarkar’s attorney acknowledges that Section 230 of the Communications Decency Act protects PubPeer itself from a suit.  He will try, however, to convince a court that PubPeer has an obligation to turn over commenters’ identifying information.  The argument here is that the site allowed comments that violated its own policy, and that some of the comments referred to a complaint filed with Wayne State that should have been kept confidential:

Although PubPeer has since removed some of the allegedly defamatory comments, it has done so well after Plaintiff has suffered the greatest harm from its postings.  In addition, PubPeer’s violation of its own standards and disclosure of a confidential complaint when it allowed these postings are among the factors this court should examine – in addition to the posters’ own defamatory, tortious, and bad faith conduct – in order to deny PubPeer any claim in law or equity that it may have to quash a subpoena for the poster’s or posters’ identities. [ See also, e.g., Ghanam v. Does, 303 Mich App 522 (2014)]

That too seems like a stretch.  It’s unclear why allegedly violating a comments policy would be a reason for disclosure of anonymous commenters.  And while many assurance agreements filed with the Office of Research Integrity require that universities keep complaints and investigations confidential, there is no such obligation for those who file such complaints. 

If Michigan had a more robust shield law, a lot of this might be moot.  Such laws, which are on the books in many states, mean that reporters don’t have to disclose confidential sources, including anonymous commenters.  That’s what protects anonymous commenters here on Retraction Watch — and we’d argue that PubPeer is providing a valuable service by publishing critiques, and should be eligible for such protection, too.  But Michigan’s shield law is limited to grand jury and criminal cases, so a civil case like this would not seem to be covered. 

Of course, we’re not lawyers.  As of now, PubPeer, in a subpoena sent to First Amendment attorney Nicholas Jollymore, is being asked to provide commenters’ identifying information to the court by November 10. 

As we noted last month:

Sarkar is a highly cited researcher, 38 of whose papers have been cited at least 100 times, according to Thomson Scientific’s Web of Knowledge.  He has corrected some papers including:

one in Brain

one in Cancer Research

one in the American Journal of Translational Research

and one in the Journal of Cellular Physiology. 

Read the entire complaint here. 

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