Crisis flow chartA common issue that arises in connection with scientific research misconduct cases concerns what should be done with publications which contain a research record that is the subject of the allegations. This issue can arise even where an inquiry or investigation committee concludes that there was no research misconduct.  

There are four potential options – do nothing; correct the manuscript; issue an expression of concern; retract the manuscript. The Committee On Publications Ethics (“COPE”) provides guidelines for journals to follow in determining which of the foregoing actions is warranted in a particular case. Ultimately, it is up to the publication to decide what to do.

Questions regarding published research come to journals in a few different ways:

  • Sometimes an author, upon realizing that there is an error of some sort, will contact the journal directly.  
  • Sometimes the journal will be contacted by a reader who questions the article.
  • Sometimes an institution will contact the journal, perhaps because research misconduct allegations have been made to the institution about one of its scientists.

This latter scenario presents its own issues. While an institution is unlikely to contact a journal based solely on having received allegations of misconduct, if an institution launches an inquiry and then an investigation, it may have enough evidence demonstrating that there is something incorrect about a manuscript – either in the reporting of the research (for example, it learns that a legend is incorrect) or in the underlying data and conclusions. If the institution learns the information in the course of a research misconduct investigation, it must be very careful about how much information it conveys to the journal because research misconduct investigations are confidential.  

There are competing interests among the stakeholders – the scientist who authored the material, the institution, the academic community, the publication (and also its readers).  Understandably, scientists do not want to publicly admit that there is a problem, even an inadvertent nonmaterial problem, with their research publications. Thus, if the underlying research remains sound, and the scientist also believes that there are no errors in the manuscript, the scientist will contend that no changes are necessary.  

Sometimes, however, scientists acknowledge that there is an error in reporting research results or there is something misleading in a small portion of the paper, although the major portions of the underlying research, experiments and conclusions are sound. In those circumstances, the scientist will agree that a correction should be issued to fix the error.

A third possibility is that the journal issues an expression of concern. In this situation, the journal questions the manuscript but receives indeterminate information with respect to the soundness of the publication. An “Expression of Concern” is issued in which the journal states to its readership that it suspects there may be an issue with the underlying research but the evidence is inconclusive.  

The most drastic step that can be taken is retraction. In those situations, the error substantively effects the scientific conclusions reached by the scientists, casting doubt on the entire paper.

Sometimes the institution, the scientist and the journal reach agreement as to the action to be taken. Often that is not the case, however. The institution and the scientist might be aligned in arguing that only a correction is necessary, while the journal contends there must be a retraction. Sometimes the institution (especially if it has found misconduct) on its own suggests that a retraction is necessary. Ultimately, the decision as to the action to be taken belongs to the journal.    

Paul S. Thaler is the Managing Partner in the Firm’s Washington, D.C. office, co-chair of the Internal Investigations Group, and a member of the ADR and Commercial Litigation Groups. 

Christopher D. Carusone is a Partner in the Firm’s Harrisburg office, where he serves as Chair of the Firm’s Government Law & Regulatory Affairs and Energy & Utilities Groups, as well as Co-Chair of the Internal Investigations Group.

Karen S. Karas is Senior Counsel in the Firm’s Washington, D.C. Office and is a member of the Commercial Litigation and Internal Investigation Groups.