At the allegation stage of a research misconduct matter, it may not be known which of several scientists actually committed research misconduct (assuming anyone did), resulting in more than one scientist being named as a respondent. Often, an allegation will be made against the supervising scientist along with the junior scientists in the lab who are involved in the research. This is not inappropriate at the allegation stage; after all, allegations are just that – allegations. Once the entire process reaches its end, however, and a formal inquiry and investigation have been completed, a finding of research misconduct should not be made against a scientist unless that scientist has been found to have actually fabricated, falsified or plagiarized.
Too often we see that an institution is eager to hold a supervising scientist/lab director responsible for the conduct of the junior scientists in the lab. Research misconduct policies and regulations, however, do not recognize the doctrine of respondeat superior. Unlike litigation where an employer or supervisor can be held liable for the acts of an employee, in research misconduct proceedings each scientist stands or falls on his or her own conduct. A scientist is to be exonerated or found responsible based on what the scientist actually did vis-à-vis the research and the research record – not based on his or her supervision of subordinates. Unfortunately, inquiry and investigation committees do not always appreciate this fact. If there is evidence that something is amiss in their search record, the committee(and through it the institution) desires to hold someone accountable. But whom?
Committees may find that a junior scientist did something wrong, but the committee attributes the conduct to honest error (which is expressly excluded from the definition of research misconduct) or sloppiness. Perhaps due to inexperience, poor training and/or poor supervision, the junior scientist made one or more mistakes in reporting the results of an experiment. Perhaps the Committee recommends additional training in a particular area for the scientist, but with no evidence of an intent to mislead, the Committee decides, correctly, that the junior scientist did not engage in research misconduct.
With the junior scientist off the hook with perhaps what amounts to a slap on the wrist, the Committee and Institution might look to the supervising scientist. What if the junior scientist made mistakes because protocols which the supervising scientist had in place in the lab were not sufficient to detect or prevent the situation that was the subject of the allegations? What if the supervising scientist has expressed high expectations for his laboratory, unaware that a few junior scientists believed it was therefore necessary to rush through their research and were sloppy? What if the allegations concern many publications and/or experiments? Sometimes in these circumstances, the Committee and Institution decide to hold the supervising scientist responsible and find that the supervising scientist engaged in research misconduct. If the junior scientist used the same image twice, it was the supervisor’s fault. If the junior scientist reported experiment results in a manuscript even though the experiment was never conducted, it was the supervisor’s fault. If the junior scientist used a misleading legend for a figure, it was the supervisor’s fault. What committees and institutions fail to understand sometimes is that while it may all be “the supervisor’s fault “in the ultimate sense, it is not the “supervisor’s fault “as far as research misconduct findings are concerned. Being a bad supervisor might warrant mandatory training and the institution of mandatory new protocols in the supervisor’s laboratory, but being a bad supervisor does not warrant a finding of research misconduct. Historically, the Office of Research Integrity has determined that only if the supervising scientist himself/herself actually falsified data, fabricated data or plagiarized can there be a research misconduct finding.
In our written responses to draft inquiry and investigation reports, were mind the committee members of the very particular criteria that an institution must prove before a scientist can be found to have committed research misconduct. “Poor supervision” simply is not available as the basis for a research misconduct finding. It is crucial that members of the inquiry and investigation committees not lose sight of the fact that unless the accused scientist himself/herself, actually engaged in fabrication, falsification or plagiarism, there can be no finding of research misconduct.
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.
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.