Unusual Fraud Claim Against Scientific Co-Author Over Alleged Research Problems Fizzles Out

The claim was brought too late, the court holds, and the associated defamation claim is barred by the judicial proceeding privilege.

From Judge Wendy Beetlestone's opinion today in Pratico v. Giannopoulos (E.D. Pa.):

According to his Complaint, well-pleaded allegations from which are taken as true, Praticò is a professor at Temple University, where he researches "clinical pharmacology …." Giannopoulos graduated from Temple with a PhD in 2015. While he was at Temple, Praticò served as his advisor, and he conducted original research in Praticò's lab, which helped form the basis for his doctoral dissertation. Praticò also helped Giannopoulos publish that data, including in a journal from Springer Nature Academic Publishing … in 2018 and 2019.

As part of that process, the parties communicated via email, and Praticò notified Giannopoulos that his data was being put together and that he would "be in the authorship." The first article lists Praticò and Giannopoulos as authors, while the second article lists them and another person named Jian Chiu as authors. Giannopoulos allowed the Springer Nature papers to be featured on his profile on the website ResearchGate.

In March 2020, individuals challenged the accuracy of the data underlying these articles on a website called Pubpeer. Praticò responded by "email[ing] Dr. Giannopoulos to schedule a conversation." Giannopoulos did not, at this point, "say anything about [the] authorship" of these papers. Later, in 2023, further criticism of Giannopoulos's work came out.

In response to an inquiry from Springer Nature, Giannopoulos's attorney sent a letter to its Associate Editor and Publisher, which insisted that: (1) his "name was placed as the lead author [of these papers] without his consent, nor was he informed of the submission of these manuscripts;" (2) he "has never met, worked with, and cannot identify" Chiu; and, (3) he "did not receive any form of communication from the corresponding author regarding these manuscripts." This, as far as Praticò knows, was the first time that Giannopoulos had disputed the authorship of these articles.

The feedback from third parties led Praticò to review Giannopoulos's data himself, and he concluded that "the integrity of [the] data is compromised." This episode has led to the retraction of three papers that the parties co-authored, and Praticò has requested the retraction of four additional papers on which Giannopoulos is the first author….

Praticò alleges: (1) that Giannopoulos's statements, made through his attorney, were defamatory; and, (2) that Giannopoulos defrauded him by "represent[ing] … that his data was reliable for scholarly publications." …

Defamation

"It has long been the law of Pennsylvania that statements made by judges, attorneys, witnesses and parties in the course of or pertinent to any stage of judicial proceedings are absolutely privileged and, therefore, cannot form the basis for liability for defamation." "Judicial proceeding" is a capacious term, covering "not merely … pleadings and sessions in open court, but also … 'less formal circumstances, such as preliminary conferences, negotiations, and routine correspondence exchanges between counsel in furtherance of their clients' interests.'" It includes "'communications made prior to the institution of proceedings' if such communications were 'pertinent and material' and 'ha[d] been issued in the regular course of preparing for contemplated proceedings.'" …

Giannopoulos argues that the privilege covers his attorney's statements because "they were sent in an effort to explain [his] position related to certain allegations against him" and contemplated "a suit against [him] for fraud." Praticò counters that no such judicial proceeding has been identified: at the time Giannopoulos's lawyer sent the letter, Praticò had not filed a lawsuit yet, so no immunity can be applied here.

The privilege applies here even though the letter does not facially contemplate a proceeding between the two parties. Buschel v. MetroCorp. (E.D. Pa. 1996), is instructive. In that case, a journalist and Philadelphia Magazine had gotten into a dispute over whether he had orally agreed to sell the publication rights to an article. The journalist signed a written contract with another magazine, Esquire, for rights to the piece. In the course of this dispute, counsel for Philadelphia Magazine wrote a letter to the journalist and to Esquire that "made clear that Philadelphia would pursue its legal rights against [the plaintiff] … arising from [his] contractual arrangement with Philadelphia" and referenced a statement by Philadelphia Magazine's editor that characterized the plaintiff's decision to contract with Esquire as "a moral transgression against me and my magazine." The author alleged that these statements amounted to defamation because they accused him "of breaching a contract and committing the crime of conversion" and "of a breach of journalistic ethics." …

[T]he court concluded that the judicial privilege applied. These letters "were both relevant and material to Philadelphia's contemplated litigation" because they: (1) "informed each potential defendant … of [its] belief in the existence of its oral contract;" and, (2) "served to inform each recipient of the factual basis upon which Philadelphia would rely to prove the oral contract."

Here, as in Buschel, Giannopoulos's lawyer's letter lays out his legal position and the factual basis for it. In response to serious allegations—according to the Second Amended Complaint, academic fraud—the letter disclaims any responsibility for any possible misconduct because Giannopoulos did not "agree to be accountable for any/all aspects of" the at-issue articles' publication. In support of that position, Giannopoulos made three specific factual assertions, which form the basis for Praticò's defamation claim. Therefore, as in Buschel, those statements are entitled to judicial privilege. The defamation claim therefore will be dismissed without prejudice….

Fraud …

Fraud claims in Pennsylvania are governed by a two-year statute of limitations. The limitations period runs from "the time 'the right to institute and maintain the suit arises.'" It thus is subject to equitable tolling, inter alia, "until the plaintiff knew, or through the exercise of reasonable diligence should have known, of the injury and its cause."

Giannopoulos argues that, because the Second Amended Complaint presses a fraud claim based on "work [that] was done in 2015," "articles … published in 2018 and 2019," and "data [that] was subject to scrutiny in 2020," the two-year limitations period has run. In response, Praticò argues that he originally defended Giannopoulos's work and only discovered any inaccuracies after hiring an independent reviewer in 2023.

But the Complaint alleges that Praticò learned about the alleged problems with Giannopoulos's data three years earlier in 2020. Once Pubpeer posted concerns about the data, he emailed Giannopoulos "to schedule a conversation." Considering such allegations, Praticò at least should have known through the exercise of reasonable diligence about the alleged falsity of Giannopoulos's data more than two years ago. His fraud claim therefore is barred by Pennsylvania's two-year statute of limitations and will be dismissed with prejudice….