Defending Scientists Accused of Research Misconduct
We defend many scientists accused of scientific or research misconduct. Research misconduct is the fabrication, falsification or plagiarism of research presented in a scholarly journal, paper or even poster. We have already written articles that an affirmative defense to research is when the mistake or error is the result of an honest error. Honest errors are just mistakes, and the typical legal standard applied to honest error was whether the mistake happened through simple negligence. In layman’s terms – an oops happened. Let’s face it- even the most brilliant of authors and scientists make mistakes, and that’s why the honest error exists.
When Honest Error Isn’t a Valid or Effective Defense
When isn’t an honest error a valid or effective defense? The honest error defense will not be an excuse when the scientist was either intentional or reckless. Unless there is a confession or an eyewitness, it can be quite difficult to prove that someone acted intentionally in the presentation of research.
Recklessness and Research Misconduct
In most cases where the honest error defense isn’t effective, the research institution that employs the accused scientist or the Office of Research Integrity (ORI) will find that the misconduct was reckless or a significant departure from accepted practices in the community. We often think of Elizabeth Holmes and the Theranos scandal. Basically, Holmes defrauded investors into thinking that she had a device that could analyze hundreds of medical conditions from a few drops of blood. We all know that the research was bunk and that Holmes went to jail
Differentiating Between Honest Errors and Pervasive Misconduct
Again, most cases do not present with such intentional conduct. In many instances, recklessness can be proven if errors are obvious and/ or pervasive. We think differently about a scientist who makes one mistake in a journal over the course of an entire career versus a scientist caught with making a multitude of errors. Also, a scientist can be responsible if he knew or had reason to know that the scientists under his authority were manipulating or falsifying data. In other words, did the scientist turn a blind eye on the truth just so the research could get published.
The Role of the Principal Investigator and Reasonable Knowledge
Wait a minute. Aren’t there situations where the first author or the principal investigator would not know that a scientist in a lab is shady? Yes, but the lack of knowledge must be viewed as reasonable. Again, one way to prove reasonableness is through the scope of lack thereof of an error. It’s very different scenario to defend oneself if only a small piece of the research slipped by the principal investigator versus a lab run amuck. Also, most institutions understand that more junior level students make mistakes. The institutions simply expect more out the the senior doctoral or postdoctoral positions.
Presenting the Honest Error Defense
How do we present the honest error defense? We try to work with our clients on showing that standard laboratory practices were followed and that proper supervision was in place. Many times, we try to prove that the error was an aberration from all other work. And, in other cases, we show that the mistake did not impact the validity of the conclusions of the data. We counsel our clients to present evidence of how the lab displayed sound methods of storing, labeling and maintaining data. We also like to present evidence on how frequently the scientist worked with the team to ensure best practices were followed.
The Importance of Demonstrating Honest Mistakes
Again, honest mistakes can be forgiven. And, when we are tasked with defending those accused of misconduct, we work hard to either prove that no error occurred or if it did, that there was no ill intent, deliberate behavior or recklessness involved in the error.
If you or someone you know is facing allegations of research misconduct, don’t navigate this challenging situation alone. Reach out to experienced Research Misconduct attorneys Susan Stone and Kristina Supler at 216-716-5630 or complete this form submission for a confidential consultation.