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Scientist sues over opinion piece

Kwang Yul Cha alleges Bruce Flamm was defamatory in a March opinion in obstetrics magazine

By | October 18, 2007

A Korean fertility researcher is suing a long-time critic of one of his past studies over an opinion piece the latter wrote for the March 15, 2007 issue of Ob. Gyn. News. The opinion piece, written by Bruce Flamm, clinical professor of obstetrics and gynecology at the University of California at Irvine, outlines events surrounding a controversial study coauthored by Kwang Yul Cha, chancellor of the medical school at Pochon CHA University in Korea. The study reported a higher success rate for in vitro fertilization in women who were prayed for compared to those who were not. In the piece, Flamm calls for the study's retraction from the Journal of Reproductive Medicine. Anthony Glassman, Cha's attorney, told The Scientist that his client sees a sentence in Flamm's article as false, defamatory and made with malice. That sentence reads: "This may be the first time in history that all three authors of a randomized, controlled study have been found guilty of fraud, deception, and/or plagiarism." The statement's "three authors" refers to Cha, Daniel Wirth, and Rogerio Lobo, who were listed as authors on the IVF-prayer study. Flamm's reference to plagiarism relates to an allegation regarding another paper coauthored by Cha in a 2005. Flamm, who is on the advisory board of the lobbying group the Secular Coalition for America, has written extensively on problems he sees with Cha's IVF-prayer study, which he said was "highly flawed and almost certainly fraudulent," and Cha has responded previously in print. Flamm's scientific opposition to the IVF-prayer study was not specifically outlined in the opinion piece. "'Found guilty' states and, in our judgment, implies a declaration of guilt by a court of law or some administrative agency," Glassman said. Brian Birnie, Flamm's lawyer, told The Scientist that he and his client feel that the statement has been taken out of context and that "the article itself, taken as a whole, communicates thoughts very different from what the out-of-context fragment suggests." Flamm told The Scientist that he stands by the statement he wrote in his opinion piece. "To be found guilty of plagiarism, you don't have to be convicted by a jury," he said. Glassman said that the lawsuit is "solely and exclusively" about the statement Flamm wrote in his opinion piece, but Flamm said he fears that the suit is an attack on his criticism of the science in Cha's IVF-prayer study. "My concern is that this could have a chilling effect on peer review in general," he said. Glassman said this concern is not at issue in this case. "[Flamm's] right to be critical of any scientific study is certainly a protected right," he said. Cha was not available for comment by deadline. Cha coauthored another paper in a 2005 issue of Fertility and Sterility on measuring mitochondrial DNA in women with premature ovarian failure, which was discovered to be almost identical to one published in a Korean journal the previous year. Alan DeCherney, editor-in-chief of Fertility and Sterility, told the LA Times in February of this year, "I'm sure that it's plagiarism." Flamm referenced the quote in his March opinion piece. But after Cha threatened to sue both DeCherney and the LA Times, DeCherney retracted the statements he made to the LA Times and to The Scientist. Flamm, also an obstetrician/gynecologist at Kaiser Permanente, said that he had no way of knowing that DeCherney would retract his comments at the time he wrote his opinion piece. "I was just reiterating what I had already seen in print," Flamm said. Cha's 2001 IVF-prayer paper was removed from the JRM website, but the journal, which did not respond to calls for comment, has not officially retracted the paper. Flamm said that a retraction of Cha's paper would end what Cha's official complaint, filed in the LA Superior Court, terms "his crusade against Dr. Cha." "If the journal retracted the article, that would accomplish my goal," Flamm said. "I've never wanted to punish Dr. Cha in any way. Personally, I have nothing against Dr. Cha. I've never met him." Flamm added that he has attempted to personally contact Cha several times to no avail. David Faigman, a professor of constitutional law at the University of California, Hastings College of the Law who is not involved in the case, agreed that the lawsuit may dissuade other scientists from speaking out about what they suggest to be faulty science. "It's the nature of this kind of lawsuit that it potentially chills other people from making strong statements," he told The Scientist. "The existence of the lawsuit alone is likely to chill scientific discussion." Faigman, who authored the 1999 book Legal Alchemy: The Use and Misuse of Science in the Law, said that his strategy, were he Flamm's lawyer, would be to recast the allegedly defamatory statement. "If I was [Flamm's] attorney, I would argue that the statement suggested not that [Cha] had been found guilty in a court of law, but in a court of where it counts for the readers of this editorial -- the court of public opinion," he said. Bob Grant mail@the-scientist.com B.L. Flamm, "Prayer study author charged with plagiarism," Ob. Gyn. News, March 2007. http://www.obgynnews.com/article/PIIS0029743707702021/fulltext A. McCook, "Praying for credibility," The Scientist, December 2004. http://www.the-scientist.com/article/display/15149/ A. McCook, "Korean plagiarism case ongoing," The Scientist, April 2007. http://www.the-scientist.com/news/display/53166/ K.Y. Cha, et al., "Does prayer influence the success of in vitro fertilization embryo transfer? Report of a masked, randomized trial," Journal of Reproductive Medicine, 46:781-7, September 2001. http://www.the-scientist.com/pubmed/11584476 A. McCook, "IVF-prayer study raises doubts," The Scientist, June 2004. http://www.the-scientist.com/article/display/22226/ Rogerio Lobo http://www.columbiapresbyterian.com/dxprofile.asp?ID=928 Secular Coalition for America http://www.secular.org/index.html B.L. Flamm, "Prayer and the success of IVF," Journal of Reproductive Medicine, 50:71, January 2005. http://www.the-scientist.com/pubmed/15730180 K.Y. Cha, "Clarification: influence of prayer on IVF-ET," Journal of Reproductive Medicine, 49:944-5, November 2004. http://www.the-scientist.com/pubmed/15603104 K.Y. Cha, et al., "Quantification of mitochondrial DNA using real-time polymerase chain reaction in patients with premature ovarian failure," Fertility and Sterility, 84:1712-8, December 2005. http://www.the-scientist.com/pubmed/16359970 A. Gawrylewski, "Journal editor retracts comments," The Scientist, June 2007. http://www.the-scientist.com/news/display/53275/ A. McCook, "Controversial fertility paper retracted," The Scientist, April 2007. http://www.the-scientist.com/news/display/53170/ David Faigman http://www.uchastings.edu/?pid=726 D.L. Faigman, Legal alchemy: The use and misuse of science in the law, 1999. http://www.amazon.com/Legal-Alchemy-Use-Misuse-Science/dp/0716731436
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Comments

Avatar of: Ruth Rosin

Ruth Rosin

Posts: 117

October 19, 2007

This is not funny at all!\n\nMembers of Scifraud, (a free website that deals primarily with scientific fraud & misconduct), know of the case of Ted Gerrard, a British scientist specializing in animal behavior, and a Scifraud member, who was sued by some German scientists, in a court in Portugal, (where he was apparently working at the time),for posting on Scifraud a message in which he criticized some work they did in genetics, as "illegitimate". The lawsuit was filed before Scifraud began to keep an archive, and as a result we know very little about it, though Ted explained online, at some point that the study concerned animal behavior. He also explained that, since Scifraud is international, all those scientists had to show was that at least 2 persons saw his post, in order for them to gain the right to sue him.\n\nWe know, from later posts, available in the archive, that the lawsuit dragged on for very many years, causing Ted considerable financial & emotional stress, and that he was finally judged "Not guilty".
Avatar of: Wendy Hughes

Wendy Hughes

Posts: 1

October 19, 2007

Re: your article in TheScientist.com\nhttp://www.the-scientist.com/news/home/53709/\n\nOne of the threats of a study such as Dr. Cha's being published is that it opens the door for other, similar claims of superstition \nentering the practice of medicine.\n\nThe history of Therapeutic Touch being practiced by nurses included publication in an obscure journal of an article describing the technique. Publication, in science, is a step toward validation of a theory.\n\nI think Dr. Flamm's opinion piece was part of the scientific process, and should be supported by other scientists, not just because of the plagiarism issue, but also because of the threat to science and medicine of the claims that a medical procedures can be affected by intercessory prayer. Dr. Flamm makes that clear in his editorial.\n\nThank you for your article publicizing the position of the Journal of Reproductive Medicine. What on earth is going on with them?\n- Wendy Hughes\nAmateur skeptic\nwww.iigwest.org

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