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Researcher fails in legal bid to halt expression of concern by journal Diabetes

BMJ 2015; 350 doi: https://doi.org/10.1136/bmj.h1112 (Published 26 February 2015) Cite this as: BMJ 2015;350:h1112
  1. Owen Dyer
  1. 1Montreal

A Brazilian researcher who sued the American Diabetes Association to prevent its flagship journal Diabetes retracting four of his papers or publishing an expression of concern about his research has failed to convince a US federal judge to issue a restraining order.

Mario Saad, professor in the department of medicine at the State University of Campinas (Unicamp) in São Paulo, Brazil, alleged in his suit that the association had informed his university that Diabetes and other journals of the association would accept no submissions from Unicamp researchers until the situation was resolved.

The association’s panel on ethical scientific programs contacted Saad after readers raised concerns about potentially duplicated and manipulated images in two papers published in Diabetes in 2011 and 2007. Saad acknowledged the duplications but said that the image files had inadvertently been mixed up during editing. He offered a new image and proposed corrections.

The panel did not accept this explanation and asked the university to investigate the two papers. A university inquiry commission issued a report on each paper. The first, written in English, concluded “that evidence of dishonesty on the side of the group was not found, but that indeed mistakes had occurred in the treatment of the digital images of the work.” The university investigators “concluded that the scientific results are valid, that they were not compromised by the mistakes cited, and highlighted that the article was extensively mentioned by literature (73 citations), validating the results practically without argumentations,” said their report.

The university’s investigation of the other paper reached similar conclusions and also disputed some of the association’s claims of image duplication. “Prof Saad presented the digitalised images of the original gels and, based on the inspection of such images, he demonstrated that they are not identical, thus refuting the affirmation . . . that a duplication of immunoblotting images might have occurred,” the report concluded. But when he submitted these images to the association’s panel, it concluded, they “did not reflect the immunoblot images shown in the published figures.”

The association asked the university to reinvestigate the two papers and also asked that it review two other papers authored by Saad and colleagues in 2006 and 1997. During this correspondence, according to Saad’s suit, the association placed an embargo on new submissions from Unicamp researchers. The university appointed a second commission, which included outside experts, to reinvestigate the two initial papers. It is expected to report in mid-March.

Diabetes published an online expression of concern about all four articles on 2 February and told Saad that the expression would be repeated in print in the March issue, published 24 February.1 Saad sought an injunction in a US federal court to remove the online expression and forestall the print one, arguing that the association should wait for the second investigation to report and that his professional reputation could be irreparably harmed. The case, in a Boston court, was unexpectedly delayed until the day before publication by the snowstorm that enveloped that city.

Contacted by The BMJ before Saad’s suit was heard, the American Diabetes Association refused to comment on ongoing litigation. The BMJ again sought the association’s comment after the case’s conclusion but received none before this article went to press. Unicamp spokespeople also did not respond to requests for comment, but the rector’s office seemed to confirm the embargo in a statement given to the Brazilian weekly news magazine Veja. “The university does not agree with the journal’s stance, since the internal inquiry has not been completed,” the statement said.

Saad also spoke to Veja, saying that he had sued the association because “I’m defending my honour, to prove that I am a person of integrity. I cannot let my name be soiled in this way.”

Saad’s suit was rejected by US district judge Timothy Hillman, who said that the First Amendment, protecting free speech, carried a heavy presumption against prior restraint of publication, a step that may impede the spreading of truth. “Whatever interest Dr Saad has in preserving his professional reputation, it is not enough to overcome the heavy presumption against the proposed order’s validity. This is precisely the type of circumstance in which the law forbids courts from halting speech before it occurs,” wrote Hillman.2

Diabetes published the print expression of concern the next day. Any decision on retraction, the expression noted, will be made “after the journal obtains more information on the reliability of the data and conclusions presented in each article.”

In a written statement Saad’s attorney, Steven Brooks, said that the ruling “has permitted the journal Diabetes to continue to defame Dr Saad, his coauthors, and the University of Campinas in São Paulo, Brazil, by questioning the reliability of the data in the articles, while at the same time ignoring the findings of the university that there was no evidence of dishonesty.”

Notes

Cite this as: BMJ 2015;350:h1112

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