Incarceration, Restitution, and Lifetime Debarment: Legal Consequences of Scientific Misconduct in the Eric Poehlman Case

Following its determination of a finding of scientific misconduct the Office of Research Integrity (ORI) will seek redress for any injury sustained. Several remedies both administrative and statutory may be available depending on the strength of the evidentiary findings of the misconduct investigation. Pursuant to federal regulations administrative remedies are primarily remedial in nature and designed to protect the integrity of the affected research program, whereas statutory remedies including civil fines and criminal penalties are designed to deter and punish wrongdoers. This commentary discusses the available administrative and statutory remedies in the context of a specific case, that of former University of Vermont nutrition researcher Eric Poehlman, and supplies a possible rationale for the legal result.     

The Essential Need for Research Misconduct Allegation Audits

Nearly 90 % of allegations of biomedical research misconduct in the United States are dismissed by responsible institutions without any faculty assessment or auditable record. Recently, members of the U.S. Congress have complained that the penalties for those against whom findings of research misconduct are made are too light and that too few grant funds associated with research misconduct have been recovered for use by other researchers and taxpayers. Here we discuss the laws that empower federal agencies that can oversee investigations of biomedical research misconduct: the Office of Research Integrity (ORI) and the Office of the Inspector General (OIG), both located within the Department of Health and Human Services (HHS). Research misconduct investigations pertaining to U.S. physical sciences funded through the National Science Foundation (NSF) are overseen by the NSF’s OIG. While OIGs may provide some improvement over the ORI in the handling of research misconduct, we have found that a much more serious flaw exists which undermines an ability to conduct performance audits of the effectiveness by which allegations of research misconduct are handled in the United States. Specifically, sufficient data do not need to be retained by U.S. research institutions funded by HHS or NSF to allow effective audit of why allegations of research misconduct are dismissed before being seen by faculty inquiry or investigative committees. U.S. federal Generally Accepted Government Auditing Standards (GAGAS/Yellow Book), if applied to the research misconduct oversight process, would allow a determination of whether the handling of allegations of biomedical research misconduct actually functions adequately, and if not, how it might be improved. In particular, we propose that independent, external peer review under GAGAS audit standards should be instituted without delay in assessing the performance of ORI, or any other similarly tasked federal agency, in handling allegations of research misconduct.     

Scientific misconduct: Present problems and future trends

Substantial progress in handling scientific misconduct cases has been made since the first cases were investigated by the NIH Office of Scientific Integrity in 1989. The successor Office of Research Integrity (ORI) has simultaneously reduced the backlog of cases and increased the professionalism with which they are handled. However, a spate of lawsuits against universities, particularly those brought under the federal False Claims Act, threatens to undermine the ORI by encouraging use of the courts as an alternate route for resolving claims of research misconduct. Next steps should include establishing a government-wide definition of scientific misconduct, providing immunity from lawsuits for institutions that follow proper procedures in investigating charges of scientific misconduct, and participating in the development of international guidelines for maintaining scientific integrity. An earlier version of this paper was presented at the symposium entitled “Misconduct in Science: A Decade of Progress or Merely Years of Controversy” held during the Annual Meeting of the American Association for the Advancement of Science, Philadelphia, Pennsylvania, 13 February, 1998.     

Scientific Forensics: How the Office of Research Integrity can Assist Institutional Investigations of Research Misconduct During Oversight Review

The Division of Investigative Oversight within the U.S. Office of Research Integrity (ORI) is responsible for conducting oversight review of institutional inquiries and investigations of possible research misconduct. It is also responsible for determining whether Public Health Service findings of research misconduct are warranted. Although ORI findings rely primarily on the scope and quality of the institution’s analyses and determinations, ORI often has been able to strengthen the original findings by employing a variety of analytical methods, often computer based. Although ORI does not conduct inquiries or investigations, it has broad authority to provide assistance to institutions at all stages of their reviews of allegations. This assistance can range from providing advice on best practices, to legal assistance, to suggestions for how best to investigate specific allegations. When asked, ORI can also conduct certain forensic analyses, such as a statistical examination of questioned digits or a simple examination of a questioned figure in Photoshop. ORI will not provide opinions or render judgment on such analyses while the institution is still conducting its investigation. Such analyses can be done without knowing much else about the case.     

Research misconduct among clinical trial staff

Between 1993 and 2002, 39 clinical trial staff were investigated for scientific misconduct by the Office of Research Integrity (ORI). Analysis of ORI case records reveals practices regarding workload, training and supervision that enable misconduct. Considering the potential effects on human subjects protection, quality and reliability of data, and the trustworthiness of the clinical research enterprise, regulations or guidance on use of clinical trial staff ought to be available. Current ORI regulations do not hold investigators or institutions responsible for supervision and training of clinical trial staff. Given the important issues at stake, the definition of research misconduct should encompass the intentional or negligent mismanagement of scientific projects. Individual institutions and professional associations not only can but should adopt stricter standards of conduct than those reflected in federal regulations.     

Good to the last drop? Millikan stories as “canned” pedagogy

In recent literature, the famous Millikan oil-drop experiment appears as a case of “good scientific judgment” on the one hand, and scientific misconduct on the other. This article discusses different interpretations of the fact that Nobel laureate Robert Millikan’s notebooks show that he eliminated a number of oildrops in his published 1913 paper on the charge of the electron, while reporting that he had included all the drops. Starting with the common source of all Millikan stories, historian of physics Gerald Holton’s 1978 paper, I discuss recent “canned” versions of Millikan-as-misbehaver in books on scientific fraud. Then I examine some versions of Millikan-as-good-scientist, particularly the reconstruction by historian of physics Allan Franklin, and the views of some practicing physicists. Finally, we have an instructive head-on collision between the two standard treatments of Millikan. The problem with canned stories is not only insufficient information; we also lack a realistic evaluation of the role of ethics in science. As a fundamentally knowledge-seeking enterprise, science may harbor an inherent, perhaps irresolvable, conflict between scientific and ethical concerns. The author’s special interests include standards for “good science”, science and values, and social psychology.     

A Rhetorical Analysis of Apologies for Scientific Misconduct: Do They Really Mean It?

Since published acknowledgements of scientific misconduct are a species of image restoration, common strategies for responding publicly to accusations can be expected: from sincere apologies to ritualistic apologies. This study is a rhetorical examination of these strategies as they are reflected in choices in language: it compares the published retractions and letters of apology with the letters that charge misconduct. The letters are examined for any shifts in language between the charge of misconduct and the response to the charge in order to assess whether the apology was sincere or ritualistic. The results indicate that although most authors’ published acknowledgments of scientific misconduct seem to minimize culpability by means of the strategic use of language, their resulting ritualistic apologies often still satisfy in some way the accusers’ (and thus their community’s) concerns.     

Convergent Validity with the BERS-2 Teacher Rating Scale and the Achenbach Teacher’s Report Form: A Replication and Extension

In the present study, we sought to extend instrument validation research for a strength-based emotional and behavior rating scale, the Teacher Rating Scale of the Behavior and Emotional Rating Scale-Second Edition (BERS-2; Epstein, M. H. (2004). Behavioral and emotional rating scale (2nd ed.). Austin, TX: PRO-ED) through the use of convergent validation techniques. The associations between the strength-based domains of the BERS-2 were examined in relation to problem syndrome subscales of the Teacher’s Report Form (TRF; Achenbach, T. M. (1991b). Manual for the teacher’s report form and 1991 profile. Burlington: University of Vermont, Department of Psychiatry). Both measures were conducted with 58 students with emotional disturbance in grades 2 through 12. The overall convergent validity of the BERS-2 and the TRF was strong, particularly for TRF externalizing problems and associated syndromes. However, less evidence emerged for the convergence of domain subscales characterized by behaviors of an internalizing nature. These results provide further support for the use of the BERS-2 in the assessment of the social and behavioral functioning of students with emotional disturbance.     

The history and future of the office of research integrity: Scientific misconduct and beyond

This paper looks at the issues and controversies that led to creation of the Office of Research Integrity (ORI) and that dominated its agenda in the early years. The successes and failures of ORI are described and new problems identified. This paper then looks ahead to the future, considering what issues will dominate ORI’s agenda and affect the research institutions, individual scientists, and the scientific community in the next several years.     

Beyond conflict of interest: the responsible conduct of research

This paper reports data and scholarly opinion that support the perception of systemic flaws in the management of scientific professions and the research enterprise; explores the responsibility that professional status places on the scientific professions, and elaborates the concept of the responsible conduct of research (RCR). Data are presented on research misconduct, availability of research guidelines, and perceived research quality. An earlier version of this paper was presented at an International Conference on “Conflict of Interest and its Significance in Science and Medicine” held in Warsaw, Poland, 5–6 April, 2002. The opinions expressed herein are those of the author and do not necessarily represent the views of the Office of Research Integrity, the U.S. Department of Health and Human Services, or any other federal agency.     

Truth and trustworthiness in research

We have recently reached a watershed in the research community’s consideration of the ethics of research. The way is now open for a more nuanced discussion than the one of the last decade in which attention to legal and quasi-legal procedures for handling misconduct dominated. The new discussion of ethical issues focused on trustworthiness takes us beyond consideration of conduct that is straightforwardly permitted, forbidden or required, to consideration of criteria for responsible behavior. This paper develops an overview of the subject of trustworthiness among researchers. It illustrates and discusses various types of betrayal and defections in research conduct, and locates these in relation to many of the situations discussed elsewhere in this issue. Beginning with the breaches of trust that constitute major wrongdoing in research (“research misconduct”), I argue that these are more often examples of negligence or recklessness than they are of “fraud.” Acts of negligence and recklessness figure not only in misconduct, narrowly defined, but in many lesser betrayals and defections that undermine trust. The presence or absence of an intentional deception is not a reliable indicator of the seriousness of some moral lapse. Such a lapse, where it does occur, may be simply a particularly poor response to perennially difficult research responsibility. Finally, I consider trust and trustworthiness among collaborating researchers and a range of intentional and unintentional behaviors that influence the character of these trust relationships. The supervisor-supervisee relationship is of particular significance because it is both a difficult area of responsibility for the supervisor and because this relationship is formative for a new researcher’s subsequent expectations and behavior. I review the history of the research community’s discussion of research ethics in the editorial for this issue ofScience and Engineering Ethics 1: 322–328.     

Croatia founded a national body for ethics in science

The Committee for Ethics in Science and Higher Education (CESHE) was created in Croatia as a national body appointed by the Parliament. Thus Croatia became one of a handful of countries with national means of responding to allegations of scientific misconduct. The Committee’s duties, with the help of the Ethics Code, include promotion of ethical norms and values in science and higher education. The CESHE will work on cases of possible research misconduct and alleged disregard for the ethical norms associated with research.     

Changing explanatory frameworks in the U.S. government’s attempt to define research misconduct

Nearly two decades of debate have not settled the definition of research misconduct. The literature provides four explanatory frameworks for misconduct. The paper examines these frameworks and maps them onto efforts by the U.S. Public Health Service to define research misconduct and subsequent responses to these efforts by the scientific community. The changing frameworks suggest that closure will not be achieved without an authoritative effort, which may occur through the Research Integrity Panel’s recent attempt to create a government-wide definition.     

The medical research council’s approach to allegations of scientific misconduct

The UK’s Medical Research Council (MRC) introduced a specific policy and procedure for inquiring into allegations of scientific misconduct in December 1997; previously cases had been considered under normal disciplinary procedures. The policy formally covers staff employed in MRC units, but those in receipt of MRC grants in universities and elsewhere are expected to operate under similar policies. The MRC’s approach is stepwise: preliminary action; assessment to establish prima facie evidence of misconduct; formal investigation; sanctions; and appeal. Strict time limits apply at all stages. The procedure will be evaluated after two years. The indications so far are that the procedure is robust, and its clarity and transparency have been an asset to all parties. The MRC is also convinced that it is equally important to achieve a working culture that fosters integrity. Thus education and training in good research practices are fundamental to the prevention of research misconduct. This paper was presented at a symposium, Scientific Misconduct: An International Perspective, organized by The Medical University of Warsaw, 16 November, 1998.     

Evolving research misconduct policies and their significance for physical scientists

Scientific misconduct includes the fabrication, falsification, and plagiarism (FFP) of concepts, data or ideas; some institutions in the United States have expanded this concept to include “other serious deviations (OSD) from accepted research practice.” It is the absence of this OSD clause that distinguishes scientific misconduct policies of the past from the “research misconduct” policies that should be the basis of future federal policy in this area. This paper introduces a standard for judging whether an action should be considered research misconduct as distinguished from scientific misconduct: by this standard, research misconduct must involve activities unique to the practice of science and must have the potential to negatively affect the scientific record. Although the number of cases of scientific misconduct is uncertain (only the NIH and the NSF keep formal records), the costs are high in terms of the integrity of the scientific record, diversions from research to investigate allegations, ruined careers of those eventually exonerated, and erosion of public confidence in science. Existing scientific misconduct policies vary from institution to institution and from government agency to government agency; some have highly developed guidelines that include OSD, others have no guidelines at all. One result has been that the federal False Claims Act has been used to pursue allegations of scientific misconduct. As a consequence, such allegations have been adjudicated in federal courts, rather than judged by scientific peers. The federal government is now establishing a first-ever research misconduct policy that would apply to all research funded by the federal government regardless of which agency funded the research or whether the research was carried out in a government, industrial or university laboratory. Physical scientists, who up to now have only infrequently been the subject of scientific misconduct allegations, must nonetheless become active in the debate over research misconduct policies and how they are implemented since they will now be explicitly covered by this new federal wide policy. Disclaimer: The authors are grateful for the support for conduct of this research provided by the United States Department of Energy (DOE). The views expressed in this paper are solely those of the authors and were formed and expressed without reference to positions taken by DOE or the Pacific Northwest National Laboratory (PNNL). The views of the authors are not intended either to reflect or imply positions of DOE or PNNL.     

Using Criminalization and Due Process to Reduce Scientific Misconduct

The issue of how to best minimize scientific misconduct remains a controversial topic among bioethicists, professors, policymakers, and attorneys. This paper suggests that harsher criminal sanctions against misconduct, better protections for whistleblowers, and the creation of due process standards for misconduct investigations are urgently needed. Although the causes of misconduct and estimates of problem remain varied, the literature suggests that scientific misconduct—fraud, fabrication, and plagiarism of scientific research—continues to damage public health and trust in science. Providing stricter criminal statutes against misconduct is necessary to motivate whistleblowers and deter wrongdoers, and the provision of basic due process protections is necessary for ensuring a fair and balanced misconduct investigation.     

Effectiveness of research guidelines in prevention of scientific misconduct

In response to a series of allegations of scientific misconduct in the 1980’s, a number of scientific societies, national agencies, and academic institutions, including Harvard Medical School, devised guidelines to increase awareness of optimal scientific practices and to attempt to prevent as many episodes of misconduct as possible. The chief argument for adopting guidelines is to promote good science. There is no evidence that well-crafted guidelines have had any detrimental effect on creativity since they focus on design of research studies, documentation of research findings, assignment of credit through authorship, data management and supervision of trainees, not on the origin and evolution of ideas. This paper addresses a spectrum of causes of scientific misconduct or unacceptable scientific behavior and couples these with estimates of the potential for prevention if guidelines for scientific investigation are adopted. The conclusion is that clear and understandable guidelines should help to reduce the chance that flawed research will escape from our institutions. However, they cannot be relied upon alone to prevent all instances of scientific misconduct and should be regarded rather as one means of bolstering the integrity of the entire scientific enterprise.     

Scientific misconduct and findings against graduate and medical students

Allegations of scientific misconduct against graduate students appear to have unique attributes in the detection, investigation, processes used and sanctions imposed vis-à-vis other populations against which misconduct is alleged and found. An examination of the cases closed by the Department of Health and Human Services' Office of Research Integrity and the National Science Foundation reveals that most of the allegations made against graduate and medical students are for falsification and fabrication. Further, additional processes are used in these cases, e.g., student judicial processes, more students are "set up" and more students admit misconduct. Finally, the sanctions imposed when a finding is made typically involve separation from the institution and the federal sanction ranges from none to debarment. Drawing upon the teachings and circumstances of cases involving graduate student peers is a good vehicle for illustrating the concepts and perils of misconduct to graduate students.     

Lack of Improvement in Scientific Integrity: An Analysis of WoS Retractions by Chinese Researchers (1997–2016)

This study investigated the status quo of article retractions by Chinese researchers. The bibliometric information of 834 retractions from the Web of Science SCI-expanded database were downloaded and analysed. The results showed that the number of retractions increased in the past two decades, and misconduct such as plagiarism, fraud, and faked peer review explained approximately three quarters of the retractions. Meanwhile, a large proportion of the retractions seemed typical of deliberate fraud, which might be evidenced by retractions authored by repeat offenders of data fraud and those due to faked peer review. In addition, a majority of Chinese fraudulent authors seemed to aim their articles which contained a possible misconduct at low-impact journals, regardless of the types of misconduct. The system of scientific evaluation, the “publish or perish” pressure Chinese researchers are facing, and the relatively low costs of scientific integrity may be responsible for the scientific integrity. We suggested more integrity education and severe sanctions for the policy-makers, as well as change in the peer review system and transparent retraction notices for journal administrators.