Archive for the ‘Legal Issues’ Category

Chemistry World and Others on Dodgy Data

Thursday, September 5th, 2013

ed_baseballcap_150Hello, friends. Pardon the radio silence of late. My first semester of teaching just started at SLU and my head is already spinning. I’ll have a full post on that subject soon, but I wanted to weigh in on a few recent pieces regarding the cases of suspicious data that were reported here and elsewhere.

Reporter Patrick Walter wrote a story earlier this week for Chemistry World that examined whether blogs are appropriate venues for policing the chemical literature for misconduct. I was interviewed for—and quoted in—the story, which I feel is thorough, is balanced, and represented my positions accurately. As you might imagine, I argue that blogs are indeed appropriate venues to report suspicious data and to analyze how the community should respond to misconduct.

There are plenty of people who disagree with me—to varying extents—and the article raises their concerns as well. That is fantastic, because this is a discussion that we need to have. I am happy to engage in thoughtful debate on the subject (see posts here and here) in hopes that we, as a community, can arrive at a more efficient system for removing manipulated data from the literature and preventing their publication in the future.

Mitch André Garcia, who runs both Chemistry-Blog and the chemistry subgroup of Reddit, is one of the people who took exception to my post on the manipulated spectra in Organic Letters. Here is what he wrote on Twitter:

I’m left scratching my head here. How do the nanochopsticks he reported qualify as “acceptable to cover” for being “egregiously manipulated and…in a high impact journal” but not the erased impurities in the Anxionnat/Cossy spectra reported here? Seems pretty hypocritical. And if we can’t agree on whether these cases meet his standard for “egregiously manipulated” and “high impact”, how are we supposed to agree on anything?

My view on the matter is that anyone who wants to raise concerns publicly about data may do so, with the full realization that they are putting themselves on the line. If I raise concerns about the integrity of data in a paper, I am accountable to defamation law and the high intelligence and ethical standards of the readership here. I can only bring information to people’s attention. If that information is wrong or doesn’t support my opinions, I will be excoriated in the comments and lose credibility. If what I publish is defamatory, I will probably also be sued. The root cause of the outrage among chemists about these papers cannot be attributed to blogs; the data speak for themselves.

A few days ago, John at the blog It’s the Rheo Thing posted some cautionary advice to “activist [bloggers] that are confronting examples of fraud, plagiarism and other publishing infractions in the technical literature”:

What goes around, comes around. Many are pleased to bring the axe down hard on someone’s head, and hold as many people responsible as possible (from ALL the authors to the principal investigator and maybe even beyond that), but we need to keep in mind that publishing scientific research is a human effort and as such, will be imperfect at times even when no harm, deceit or other nefarious activity is intended. Many of the commentators screaming for blood are young professionals you have yet to run a large, established research group, but who think that they will be able to do so flawlessly in the future. Of course that won’t happen. You will have failings and shortcomings and things will go wrong despite your most fervent intent to prevent it. Most people do not have a problem with that.

Most people. But there will be plenty of others wanting your head on the same chopping block and with an added level of glee since you were responsible for bringing so many down yourself. It’s human nature. We can’t change it, this perverse desire to bring down the people bringing down others. Worse yet, these efforts to trap you may be entirely without merit. That won’t matter. “A lie can travel halfway around the world while the truth is still putting on its shoes” (Mark Twain). Your name and reputation can be placed in the same trash heap as those truly deserving it far more easily than you can ever imagine. Despite your noble intents and purity of heart.

User “juicebokz” on Reddit called John’s post “a letter to ChemBark”, and I feel compelled to weigh in with the following points:

Do you seriously think that the responsibilities of running a modestly popular blog don’t weigh on me? Do you think that I don’t consider whether I am treating the subjects of these sorts of posts fairly? These posts are not aimed at destroying scientists; they are aimed at protecting science. I do not take joy in the downfall of others, but I am not going to let a miscreant’s potential downfall prevent me from discussing a topic that I feel is important. Should any researchers be “brought down” for data fabrication, I will not be the person responsible for bringing them down. They will have been the people responsible for their own downfall.

And I am by no means a perfect person. Everyone makes mistakes and does things of which they are not proud. The point is that you have to pay for your mistakes, then dust yourself off and go about living a productive life. Should anyone gather the motivation to search through my past, or present, they’re going to find stuff that will embarrass me…but they are not going to find any fabrication of data.

As for drawing attention to co-authors who very likely did not actively participate in the fabrication of data, I still stand by the position that authors must share the responsibility for the content of their papers. “Share” does not mean “share equally”, but all authors should at least read through their papers and keep an eye out for things that are obviously wrong. When you are a corresponding author, ensuring the integrity of the data in your papers must be one of your priorities. If you think I’m alone in this view, please go back and read Smith’s editorial in Organic Letters. Any punishment doled out regarding fabricated data in a paper should be proportional to (i) one’s active involvement in the fabrication and (ii) one’s responsibilities as a conscientious scientist and/or manager. These responsibilities should be the subject of more discussion among chemists.

Finally, does anyone really think I am helping my career by reporting on scientific misconduct? Do you have any idea how uncomfortable it is to send e-mails to the editor-in-chief of a high-impact journal in my field asking for comment about how he’s going to deal with manipulated data in a paper written by one of his associate editors? Was it lost on people that Smith’s response to my inquiry was addressed “Dear Bracher”? It’s certainly not the most cordial of salutations. I asked a follow-up question by e-mail and was not given the courtesy of a reply.

I don’t like these sorts of awkward interactions, but asking hard questions is part of doing a thorough job of reporting, so I’ll just bite the bullet. I can only hope these interactions don’t come back to hurt me down the road, but that’s a possibility. At the end of the day, I would love not to have to write about scientific misconduct because (i) chemists have stopped doing it or (ii) universities, journals, and government have created a good system for dealing with it.

Now, how do we make that happen?

Andrew Myers and Harvard Sued by Former PhD Student

Sunday, June 30th, 2013

ChemBark InvestigatesDr. Mark Charest, a chemistry PhD student who graduated from Harvard in 2004, is suing the university and Andrew Myers, his PhD advisor, over the royalties associated with a patent covering intellectual property developed during Charest’s graduate work.

In 2005, the Myers Lab published this paper in Science that described a new synthetic route to 6-deoxytetracycline antibiotics. Charest was the first author on the paper, and the work was patented by Harvard’s Office of Technology Development (prior to submission for publication). A company, Tetraphase Pharmaceuticals, was started to commercialize the work by licensing the tetracycline patent from the university.

According to Charest’s complaint:

  • Harvard’s policy is to distribute royalties equally among all of the inventors on a patent unless the inventors agree to a different distribution.
  • Harvard OTD asked Charest and his former labmates to voluntarily accept a distribution of 50% to Myers, 15% to Charest, 15% to Dionicio Siegel, 15% to Christian Lerner, and 5% to Jason Brubaker (the five co-authors of the paper).
  • The four co-authors besides Myers agreed amongst themselves to a distribution of 18.75% to Charest, 11.25% to Siegel, 10% to Lerner, and 10% to Brubaker. Myers would not participate in this discussion and his 50% share was not open to discussion.
  • When Charest later spoke to Myers, Myers told Charest to “tread lightly”, “be careful”, and “think about [his] career”. Charest interpreted these statements as threats.
  • Charest initially refused to accept an unequal distribution of the royalties, and then engaged in a series of exchanges where Harvard’s representative threatened to directly cut Charest’s share of the royalties or to shift the distribution of licensing payments to a second patent on which Charest was not listed as an inventor. Fearful of this threat, Charest signed an agreement to accept 18.75% of the royalties for the first patent (presumably, the distribution arranged by the four postdocs/students).
  • The second patent never materialized, and Charest believes it was a ruse fabricated to force his hand to volunteer to let Myers get a 50% cut of the royalties.
  • Later, Charest describes a second act in which Harvard’s OTD did shift royalties away from Charest’s patent.
  • Myers refused to serve as a reference when Charest applied for a position at a venture capital firm, and Myers would not return phone calls when a potential employer directly contacted Myers regarding Charest.

Charest appealed to an internal review board at Harvard, but his case was unsuccessful. His lawsuit filed on Friday seeks reallocation of the royalties, punitive damages, and a bunch of other stuff that is outside my complete comprehension. Read the document for yourself.

It will be interesting to see how this story plays out, but it would seem to be yet another cautionary tale that when you are a graduate student, you are in a position of incredible weakness. As is said, your advisor holds your paycheck in one hand and your letter of recommendation in the other. And in case you are naive, the chains don’t get unshackled just because you’ve graduated. You’re still going to need that letter of recommendation for future jobs, so if your old boss wants to take 50% of the royalties, what’s to stop him?

Nothing.

Disclosure: I went to Harvard for my graduate work and regularly came into contact with Myers, Charest, and Brubaker, as my desk was right next to the Myers Lab. I know Mark Charest and had several conversations with him over the course of my graduate career. I think I saw him one or two times after he graduated, and I’ve had no interaction with him since I graduated from Harvard.

H/T to A.D. for tipping off ChemBark

Elsewhere: Universal Hub, Chemjobber (analysis of prof-student/postdoc fiduciary relationship), Chemistry Reddit, Chemical & Engineering News, In The Pipeline, The Harvard Crimson.

Sue the “Chemical-Free” Bastards

Monday, June 17th, 2013

Chemical Free Beauty ProductsWhile I’m an idealist at heart, in my old age, I’ve increasingly found myself giving in to apathy and letting things slide more often. In the shower this weekend, I saw another one of my fiancée’s hair-care products advertised as “chemical free” and was soon awash in the same frustration expressed in this old post. The phrase “chemical free” is profoundly stupid, it is damaging to our field, and the problem is getting worse. While a lot of frustration has been expressed by a small group of chemists online, I’ve seen no effective campaign against the stupidity of the term “chemical free.” On the flip side, you’ve got another group of chemists who find the argument against “chemical free” to be pedantic, and some have even embraced the term for use in lab.

While I might be closer to abandoning this cause in favor of apathy, I don’t think the problem is worth giving up on just yet. Previously, I have lobbied bench chemists to become more involved in educating the public, suggested that the ACS develop a “war room” to address misinformation in the mainstream media, and volunteered a first draft of a pro-chemicals ad campaign. But maybe that’s my idealism talking. “Positive” approaches, where we tout the benefits of chemistry, require a lot of effort and take time to bring about change. Perhaps it would be more effective to adopt a negative approach? And, of course, what approach could be more negative than to sue?

SUE, SUE, SUE!

Yes, let’s start suing companies that advertise their products as “chemical free”. Make the dummies hurt where it counts: their wallets.

You see, there are laws that require truth-in-advertising, and many of them should be directly applicable to “chemical free” cases. The Federal Trade Commission has explained its policy for how it judges whether or not it will act on potentially deceptive ads:

Certain elements undergird all deception cases. First, there must be a representation, omission or practice that is likely to mislead the consumer. Practices that have been found misleading or deceptive in specific cases include false oral or written representations, misleading price claims, sales of hazardous or systematically defective products or services without adequate disclosures, failure to disclose information regarding pyramid sales, use of bait and switch techniques, failure to perform promised services, and failure to meet warranty obligations.

Second, we examine the practice from the perspective of a consumer acting reasonably in the circumstances. If the representation or practice affects or is directed primarily to a particular group, the Commission examines reasonableness from the perspective of that group.

Third, the representation, omission, or practice must be a “material” one. The basic question is whether the act or practice is likely to affect the consumer’s conduct or decision with regard to a product or service. If so, the practice is material, and consumer injury is likely, because consumers are likely to have chosen differently but for the deception. In many instances, materiality, and hence injury, can be presumed from the nature of the practice. In other instances, evidence of materiality may be necessary.

Thus, the Commission will find deception if there is a representation, omission or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.

So, there are three major criteria for an ad to meet: (i) it must be deceptive, (ii) it must have an impact on a “reasonable” consumer, and (iii) it must induce a material change in behavior on the part of a consumer. Any product which advertises itself as “chemical free” easily meets these three criteria.

First, everything that I have come across as “chemical free” (e.g., cosmetics, fertilizer, sunscreen) has contained chemicals, so the claim is a false written representation of the product. Second, the fear of chemicals is so widespread in society that it is more than reasonable for an average, uneducated consumer to care whether something is “chemical free”. Finally, a “chemical free” label can easily have a material effect in that a chemophobic consumer could choose to purchase a falsely labeled product over a competing product that is not labeled “chemical free” yet contains the same active chemicals.

Unfortunately, it is probably unreasonable for any halfway-decent chemist to claim he was fooled by something as scientifically nonsensical as “chemical free.” But, a class-action lawsuit waged by a group of typical (chemophobic) consumers who’ve purchased a chemical-free product could easily have merit.

Perhaps even more effective would be for a major company (with hefty legal resources) to file lawsuits claiming damages due to unfair business practices. It is unfair to have to compete against rival products that benefit from advertising with false claims. Let’s see these smaller companies have to defend themselves against the giants. Unfortunately, there’s no single chemical-free product on the market that is successful enough to make such a lawsuit a worthwhile cause.

Outside of lawsuits, what can you do? Well, the FTC has an FAQ about what sorts of ads are potentially deceptive, and you can contact them to register a complaint about products making false claims. Some complaints they pursue and some they don’t, but their decisions carry the weight of the law and they can issue cease-and-desist orders as well as fines. You can also register complaints with the Better Business Bureau (BBB) and state/local consumer protection offices.

I’m not saying that lawsuits are the best approach to solving the problem, but in some cases, insisting on the enforcement of existing laws might be an effective solution to the proliferation of all this “chemical free” nonsense.

Lab Manuals

Thursday, May 16th, 2013

ChemBark's Orby the InsectI’m always interested to come across instructional documents on chemistry professors’ Web sites. These documents can be great resources, because they often contain very practical advice about safety, direction on how to maintain instruments, and guidance on experimental technique from experts in the field. Taking the time to commit this information to writing also helps prevent “institutional” loss of memory when senior members of the lab graduate without having properly trained the next generation of students.

Unfortunately, you don’t come across that many lab manuals online. Perhaps this is because some of them are distributed in hard copy only. Perhaps, some professors don’t want to explicitly write procedures and safety guidelines in fear they might be used against them in court. My guess, however, is that most people can’t find the time to sit down and write out this information—or they don’t see the value in doing so.

Jim Tour’s “Guidelines for Research” is among my favorite documents. He gets very specific about some of the advice he doles out. For instance, all nitrogen bubblers left on overnight should have a flow rate of one bubble per second or less. Tour provides guidance on how he likes notebooks to be kept, and he also provides expectations about work ethic and vacations. Finally, there is the passage on personal hygiene:

Personal Hygiene: Although not customary in all countries, Americans generally bathe at least several times per week. As a result, many Americans are offended by the infrequent bathing habits of others (whether Americans or internationals). Thus, you may be leaving a negative impression of yourself without ever knowing it. Unfortunately, bad impressions are often difficult to overcome. Likewise, be sure to use an underarm deodorant since most Americans find body odor to be most offensive. I have seen people causing themselves to be ostracized by others simply because of poor personal hygiene habits.

It might seem trifling or overbearing to provide advice on this level, but the info is correct and I wish more people heeded Tour’s advice.

While the idea of writing a manual all at once seems daunting, I think that doing it in pieces seems quite reasonable. In fact, I think you can assemble some really good tidbits of advice from material that is already posted online. These documents are almost like official memoranda to members of professors’ labs. For instance:

The famous “How to Write a Scientific Paper” article in Advanced Materials had its beginnings as a type-written memo from George Whitesides to his lab.

There’s also Ken Suslick’s cool presentation on how to give a talk.

And I like how some professors provide specific instructions on how to ask them for letters of recommendation.

Anyway, before I go writing similar stuff in the future, I wanted to know if you all had come across any great lab manuals or memos. Leave them in the comments, and I’ll compile a list below.

Lab Manuals

Jim Tour’s “Guidelines for Research
Melanie Sanford’s “Group Welcome Kit
Dave Collum’s site
Bart Bartlett’s “Standard Operating Procedures
Turro Group’s site
Watson Group Manual
Tolman Lab’s “Standard Operating Procedures
Armen Zakarian’s site

 

UCLA Chemistry Professor Patrick Harran to Stand Trial

Sunday, April 28th, 2013

Chemical Ed with GogglesThe big news on Friday was that a California judge denied UCLA chemistry professor Patrick Harran’s motion to dismiss or reduce the charges against him relating to the death of Sheri Sangji in a tragic tert-butyllithium accident in Harran’s lab. C&EN and the LA Times both had reporters in the courtroom. Chemjobber and Jyllian Kemsley are curating lists of links.

I’ve weighed in on the subject before, and my views have not changed. There is plenty of blame to go around. Should Sangji have taken more precautions in running her experiment, the most important of which would have been wearing a lab coat? Certainly. She had to have known better, but she paid the ultimate price. Now, it’s past time to decide what responsibility Harran bears in the accident. I think the judge made the right decision in allowing the case to go to trial, and unless the sides strike a plea bargain, a jury will now decide if Harran broke the law. I don’t like Professor Harran’s chances in front of a jury. While most people who’ve been in grad school may recognize the lax oversight by Harran as “normal”, that doesn’t make it legal.

And while Harran faces the possibility of 4.5 years in prison, I still don’t think a prison sentence is warranted should Harran be convicted. The most effective and relevant punishment would be something that specifically limits Harran’s ability to run a laboratory. What I also find distressing is UCLA’s “unwavering” support of Harran. (Side note: Does that include Harran’s claim that UCLA never trained him properly?) UCLA is sending a bad message here; schools should make a point of requiring that professors take their responsibilities in managing labs and training students more seriously.