Carlo Croce v. New York Times Co. , 930 F.3d 787 ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0160p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CARLO M. CROCE, ┐
Plaintiff-Appellant, │
│
> No. 18-4158
v. │
│
│
THE NEW YORK TIMES COMPANY; JAMES GLANZ; │
AGUSTIN ARMENDARIZ; ARTHUR OCHS SULZBERGER, │
JR.; DEAN BAQUET, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:17-cv-00402—James L. Graham, District Judge.
Argued: June 20, 2019
Decided and Filed: July 17, 2019
Before: MOORE, COOK, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Gerhardt A. Gosnell, II, JAMES E. ARNOLD & ASSOCIATES, LPA, Columbus,
Ohio, for Appellant. Jay Ward Brown, BALLARD SPAHR LLP, Washington, D.C., for
Appellees. ON BRIEF: Gerhardt A. Gosnell, II, James E. Arnold, Damion M. Clifford,
JAMES E. ARNOLD & ASSOCIATES, LPA, Columbus, Ohio, for Appellant. Jay Ward
Brown, Michael D. Sullivan, BALLARD SPAHR LLP, Washington, D.C., Keith W. Schneider,
MAGUIRE & SCHNEIDER, Columbus, Ohio, for Appellees. Bruce D. Brown, THE
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C., for Amici
Curiae.
No. 18-4158 Croce v. New York Times Co. et al. Page 2
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Some say there’s no such thing as bad
publicity, but Dr. Carlo Croce did not share this sentiment after the New York Times published
an article that included allegations against him. The article also questioned Ohio State
University’s ability to investigate properly these allegations because of a supposed conflict of
interest. Dr. Croce is a prolific cancer researcher at OSU, but some critics have made allegations
against him. The article at issue may be unflattering, but the question is whether it is
defamatory. In a thorough opinion, the district court thought not. We agree. The article is a
standard piece of investigative journalism that presents newsworthy allegations made by others,
with appropriate qualifying language. For the reasons that follow, we AFFIRM.
I. BACKGROUND
Dr. Carlo Croce is a professor and the Chair of Human Cancer Genetics at The Ohio
State University. Over the course of his forty-five-year career as a cancer researcher, Dr. Croce
has published over 650 papers. R. 32 (Am. Compl. at ¶¶ 31–32) (Page ID #608). Of these
hundreds of papers, twelve have been subject to corrections and two more have been withdrawn
with Dr. Croce’s consent. See id. ¶¶ 35–39 (Page ID #609–11). (A few of these corrections and
one withdrawal occurred after the publication of the New York Times’s article.) Dr. Croce’s
research has earned him numerous awards. See R. 32-2 (Croce Resp. Ex. B) (Page ID #704–06).
The story behind the article in question begins on September 14, 2016, when Dr. Croce
received an email from New York Times reporter James Glanz. After this exchange, Dr. Croce
agreed to speak with Glanz about “promising anti-cancer results” that Glanz was purportedly
reporting on. R. 32 (Am. Compl. at ¶ 43) (Page ID #611). After the meeting, Glanz said that he
would be in touch with Dr. Croce.
On November 1, 2016, Glanz followed up, but the tone of the communications changed.
Glanz emailed Dr. Croce as “a courtesy to let [Dr. Croce] know that the scope of [the New York
Times’s] reporting has broadened, and [Glanz had] made a few records requests at OSU and
No. 18-4158 Croce v. New York Times Co. et al. Page 3
other institutions.” Id. at ¶ 49 (Page ID #613). About three weeks later, “Glanz sent a letter on
New York Times letterhead to OSU and to Dr. Croce stating that Glanz had questions he wanted
to ‘put urgently’ to Dr. Croce and OSU ‘as part of an article’ Glanz was preparing.” Id. at ¶ 50
(Page ID #613); see also R. 32-1 (Glanz Letter). The letter (which was at issue in the district
court but is not challenged on appeal) contained some loaded and pointed questions, many of
which followed allegations made by others against Dr. Croce. See R. 32-1 (Glanz Letter).
The letter prompted Dr. Croce to retain counsel. On January 25, 2017, Dr. Croce,
through his retained counsel, responded to the letter. The response denied the allegations, stating
that “[m]any of the statements in [Glanz’s] letter are false and defamatory.” R. 32-2 (Croce
Resp. at 1) (Page ID #684). On March 2, 2017, Glanz sent another email that contained
“additional ‘misconduct allegations.’” R. 32 (Am Compl. at ¶ 74) (Page ID #620). Dr. Croce’s
counsel responded to Glanz the next day and again denied each allegation. Id. at ¶ 74 (Page ID
#620–21). No further communication occurred between the two sides.
Ultimately, the article was not about “promising anti-cancer” research. Instead, on
March 8, 2017, the New York Times published an article on its website (and social media) with
the title, “Years of Ethics Charges, but Star Cancer Researcher Gets a Pass”; and subtitle text,
“Dr. Carlo Croce was repeatedly cleared by Ohio State University, which reaped millions from
his grants. Now, he faces new whistle-blower accusations.” R. 32-3 (Article at 1) (Page ID
#707). Agustin Armendariz, another reporter, is listed as a coauthor with Glanz in the byline.
When the New York Times posted the article on Twitter and Facebook, the tagline read: “A star
cancer researcher accused of fraud was repeatedly cleared by Ohio State, which reaped millions
from his grants.” R. 32 (Am. Compl. at ¶ 77) (Page ID #621). Then the next day, March 9,
2017, the article appeared on the front page and above the fold in the printed edition, under the
headline, “Years of Questions but Researcher Gets a Pass.” Id. at ¶ 78 (Page ID #621). The
article detailed various allegations against and criticisms of Dr. Croce—all casting him in an
unfavorable light.
After the New York Times published the article online, it apparently reached the top of
the New York Times’s “‘Most Popular’ articles” list and attracted 444 comments from online
readers. R. 32 (Am. Compl. at ¶ 80) (Page ID #622). Many of these internet commenters had
No. 18-4158 Croce v. New York Times Co. et al. Page 4
harsh words for Dr. Croce. See generally id. at ¶ 93 (Page ID #625–28). In addition to detailing
the negative allegations and criticisms of Dr. Croce, the article also reads: “Despite the lashing
criticisms of his work, Dr. Croce has never been penalized for misconduct, either by federal
oversight agencies or by Ohio State, which has cleared him in at least five cases involving his
work or the grant money he receives.” R. 32-3 (Article at 2) (Page ID #708); see also id. at 3
(Page ID #709) (stating that Dr. Croce “denied any wrongdoing . . . .”); id. at 8 (Page ID #714)
(“Dr. Croce was cleared in [two cases outlined in the article]. But that was just the beginning.”).
Needless to say, Dr. Croce was not pleased with the article or the internet comments. So
he sued. Dr. Croce brought defamation, false-light, and intentional-infliction-of-emotional-
distress claims against the New York Times, Glanz, Armendariz, Arthur Ochs Sulzberger, Jr.
(publisher of the New York Times), and Dean Baquet (executive editor of the New York Times)
(“Defendants”). See R. 32 (Am. Compl. at 69–78) (Page ID #668–77). The Defendants filed a
motion to dismiss, which the district court largely granted, except for one statement in the Glanz
Letter. See Croce v. New York Times Co., 345 F. Supp. 3d 961, 995 (S.D. Ohio 2018); R. 32-1
(Glanz Letter) (Page ID #682). Dr. Croce stipulated to dismissing this remaining claim with
prejudice, thus allowing a clear path to appeal the district court’s ruling. See R. 56 (Stipulated
Order) (Page ID #1082).
II. STANDARD OF REVIEW
“We review de novo . . . the district court’s grant of a Rule 12(b)(6) motion to
dismiss . . . .” Seaton v. TripAdvisor LLC, 728 F.3d 592, 596 (6th Cir. 2013). Although a court
must view all facts in the light most favorable to the plaintiff at this stage, the article also speaks
for itself. Consequently, “if a factual assertion in the pleadings is inconsistent with a document
attached for support,” a court is not bound to accept as true the plaintiff’s factual allegation. See
Williams v. CitiMortgage, Inc., 498 F. App’x 532, 536 (6th Cir. 2012) (collecting cases).
Because we are sitting in diversity, we apply the law of the forum state. Himmel v. Ford
Motor Co., 342 F.3d 593, 598 (6th Cir. 2003). Ohio law governs this case, and we must apply
the State’s law as announced by its highest court. Bank of New York v. Janowick, 470 F.3d 264,
272 (6th Cir. 2006). If the Ohio Supreme Court has not provided guidance on the issue at hand,
No. 18-4158 Croce v. New York Times Co. et al. Page 5
we may consider the decisions of the State’s courts of appeals, relevant dicta from the Ohio
Supreme Court, as well as other sources such as “restatements of law, law-review commentaries,
and the rules adopted by other jurisdictions.” Mazur v. Young, 507 F.3d 1013, 1016–17 (6th Cir.
2007).
III. DEFAMATION CLAIMS
Under Ohio law, “defamation occurs when a publication contains a false statement made
with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to
public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her
trade, business or profession.” Am. Chem. Soc’y v. Leadscope, Inc. (“ACS”), 978 N.E.2d 832,
852 (Ohio 2012) (internal quotation marks omitted). To state a claim of defamation,
the plaintiff must show (1) that a false statement of fact was made, (2) that the
statement was defamatory, (3) that the statement was published, (4) that the
plaintiff suffered injury as a proximate result of the publication, and (5) that the
defendant acted with the requisite degree of fault in publishing the statement.
Id. (citation omitted). The second element is at the heart of this dispute. A court must “decide as
a matter of law whether certain statements alleged to be defamatory are actionable or not.”
Yeager v. Local Union 20, Int’l Bhd. of Teamsters, 453 N.E.2d 666, 669 (Ohio 1983), abrogated
on other grounds by Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007).
The Ohio Supreme Court has stated that when a court is deciding “whether a statement is
defamatory as a matter of law, a court must review the totality of the circumstances and . . .
read[] the statement in the context of the entire publication to determine whether a reasonable
reader would interpret it as defamatory.” See ACS, 978 N.E.2d at 853 (alterations from original
incorporated) (internal quotation marks omitted); McKimm v. Ohio Elections Comm’n,
729 N.E.2d 364, 371–72 (Ohio 2000) (holding that a reasonable reader would view a particular
political cartoon and its accompanying text as a false factual assertion). Thus, Ohio has adopted
a “reasonable reader” standard. If a reasonable reader, reading a statement in the context of the
entire publication, would interpret the statement as defamatory, then the plaintiff has an
actionable claim.
No. 18-4158 Croce v. New York Times Co. et al. Page 6
Before turning to the crux of this case, it is worth clarifying the scope of this appeal. In
his briefs, Dr. Croce challenges only certain statements in the article, specifically what the
parties label as Statements 1–5 and 10–14, as well as Statement 15 (which is the article as a
whole). The Defendants, picking up on Dr. Croce’s lack of reference to various issues in his
opening brief, argue that these statements alone are at issue. See Appellees Br. at 7–9. Dr.
Croce implicitly concedes that the scope of this appeal is limited to those statements by failing to
respond to this argument in his reply brief. Accordingly, we focus our attention on the
statements the parties argue about in their briefs. At any rate, as we will explain, Ohio law
requires reading each statement in the context of the article as a whole, and we have therefore
considered the statements in that context. See ACS, 978 N.E.2d at 853; Painter v. E.W. Scripps
Co., 148 N.E.2d 503, 506 (Ohio Ct. App. 1957). Dr. Croce has also forfeited claims related to
the Glanz letter and statements made by Glanz in a radio interview by failing to develop any
argument on them in his briefs. See Engler v. Arnold, 862 F.3d 571, 577 (6th Cir. 2017).
A. The Article Is Not Defamatory
Applying Ohio law, we conclude that a reasonable reader would construe the article as a
standard piece of investigative journalism that presents newsworthy allegations made by others,
with appropriate qualifying language.
Starting at the top, the headline is, as the district court recognized, “the closest thing to
defamation in all the complained-of statements . . . .” See Croce, 345 F. Supp. 3d at 978. The
New York Times used the phrase “Gets a Pass” in both the online and print versions of the
article.1 On one hand, the implication of this phrase could be that Dr. Croce did not get the
punishment he deserved for his alleged scientific misconduct; on the other hand, the phrase could
cast the university in a negative light because the implication might be that OSU is responsible
for not pursuing a vigorous enough investigation. The latter reading is arguably bolstered by the
text immediately following the title: “Dr. Carlo Croce was repeatedly cleared by Ohio State
University, which reaped millions from his grants.” That is, OSU is cast as a conflicted party.
1The headline is Statement 1, and the similarly worded social media posts are Statement 2.
No. 18-4158 Croce v. New York Times Co. et al. Page 7
The reading for which Dr. Croce argues, however, is not entirely unreasonable because the
headline and text below it imply that he is a questionable figure.
But the headline is not the whole story, and consequently the headline cannot be
considered standing alone. See Robb v. Lincoln Publ’g (Ohio), Inc., 683 N.E.2d 823, 837–38
(Ohio Ct. App. 1996); Painter, 148 N.E.2d at 506 (“It appears that the plaintiff has chosen to
consider the headline separate and apart from the remainder of the article. This may not be done
as the headline and news item to which it is attached must be construed together in determining
the effect of an article claimed to be defamatory.”). As the Ohio Supreme Court explained in
ACS, “[T]he words of the publication should not be considered in isolation, but rather within the
context of the entire [publication] . . . .” 978 N.E.2d at 853 (alterations in original) (quoting
Connaughton v. Harte Hanks Commc’ns, Inc., 842 F.2d 825, 840 (6th Cir. 1988)). Considering
headlines alongside their accompanying articles, rather than in isolation, makes sense because
headlines are often a “‘spin’ put on facts to get the attention of the reader that distorts their true
meaning.” See Robb, 683 N.E.2d at 838. Accordingly, we turn our attention to the article as a
whole.
In full context, a reasonable reader would interpret the article as a standard piece of
investigative journalism. To be sure, the article quotes several of Dr. Croce’s critics, i.e., the
article states that allegations and complaints have been lodged against Dr. Croce. (This
especially applies to Statements 3, 4, 5, 11, 12, and 13 in the article.2) Further, the article raises
concerns about various errors in Dr. Croce’s papers, as well as concerns about OSU’s ability to
investigate effectively allegations against him. See, e.g., R. 32-3 (Article at 2) (Page ID #708)
2Statement 10, meanwhile, is at least substantially true and therefore not defamatory. See Susan B.
Anthony List v. Driehaus, 779 F.3d 628, 633 (6th Cir. 2015) (citing Ohio caselaw that has explained that a statement
is not a “false statement” if it is “substantially true,” or “if, even though it is misleading and fails to disclose all
relevant facts, the statement has some truth in it,” or if it “is subject to different interpretations”). The article first
mentions that “Dr. Croce said he believed that smoking was the primary cause of lung cancer; that belief, he said in
his later statement, dated from ‘long before’ he joined the [Council for Tobacco Research].” R. 32-3 (Article at 5)
(Page ID #711). Then Statement 10 reads: “Still, some of the research Dr. Croce pioneered in those years was used
by the tobacco industry to fight the assertion that smoking caused cancer.” Id. Meanwhile, in Dr. Croce’s response
to the Glanz letter, Dr. Croce did not dispute that his research was used in this way or that he worked with the
Council for Tobacco Research; instead, he stated that he was unaware and did not approve of his research being
used in that way. R. 32-2 (Croce Resp. at 15) (Page ID #698). It is difficult to see exactly how this statement is
misleading, and again, the article states Dr. Croce’s belief that smoking causes lung cancer.
No. 18-4158 Croce v. New York Times Co. et al. Page 8
(“Dr. Croce’s story is a case study of the complex and often countervailing forces at work as
science seeks to police itself. . . . [T]he primary burden for investigating and punishing
misconduct falls to inherently conflicted arbiters: universities like Ohio State that stand to reap
millions of dollars from the federal grants won by star researchers like Dr. Croce.”). But stating
that there are allegations against someone and raising these concerns does not necessarily imply
guilt.
Put simply, the article does not say that Dr. Croce is guilty of any of these allegations and
charges of scientific misconduct, nor does the article suggest that these allegations are true. If
the article suggested that these allegations were true, or if the article did not use language that
qualified the statements made by others as allegations, then the Defendants potentially could be
liable for reporting third-party statements. See Blesedell v. Chillicothe Tel. Co., 811 F.3d 211,
225 (6th Cir. 2016) (holding that a defamation claim was not actionable because “[defendant’s]
statement to [another individual] did not suggest that [the third party’s] allegations were true”);
Sabino v. WOIO, L.L.C., 56 N.E.3d 368, 379–80 (Ohio Ct. App. 2016) (holding that a newscast
was not defamatory in part because of the use of qualifying language); Murray v. Chagrin Valley
Publ’g Co., 25 N.E.3d 1111, 1117 (Ohio Ct. App. 2014) (holding that a statement was not
defamatory because it “was published as an opinion of one of the protestors, not as an accurate
fact about [plaintiff’s] reputation”). In this case, the accusations are couched in terms like,
“Some scientists argue,” “allegations,” “claims of,” “criticisms,” “charges,” and “complaints.”
Although the article notes instances of corrections to Dr. Croce’s articles due to, for example,
errors in data, those statements are true. Dr. Croce attempts to cut and paste together the worst
portions of sentences, unmooring them from their full context, in order to support his claim that
the article is defamatory. In its full and proper context, however, the article reports newsworthy
allegations with appropriate qualifying language.
What’s more, the article is not entirely unfavorable. The article explains that Dr. Croce
has never been found to have committed misconduct “either by federal oversight agencies or by
Ohio State, which has cleared him in at least five cases involving his work or the grant money he
receives.” R. 32-3 (Article at 2) (Page ID #708); see also id. at 8 (Page ID #714). It mentions
No. 18-4158 Croce v. New York Times Co. et al. Page 9
that Dr. Croce has denied wrongdoing. Id. at 3 (Page ID #709). And it quotes a Nobel Prize-
winning biologist as saying:
I would say [Dr. Croce] has made some important contributions to the molecular
causes of cancer. . . . I can’t condone the sloppiness he has in general. But if I
look historically at what [Dr. Croce] has done, if I delete [him] from the scientific
community, I think the scientific community is a little less, and that isn’t true of
everybody who publishes papers.
Id. at 4 (Page ID #710). Moreover, the article gives a mixed portrayal of one of Dr. Croce’s
critics, “Clare Francis,” who is described as a “digital vigilante[],” “both legendary and loathed,”
“a scientific gadfly,” and as having a “high-strung style.” See id. at 2, 8 (Page ID #708, 714).
A reasonable reader would therefore interpret the article as presenting two sides of this
controversy. This article is similar to one at issue in ACS, in which the Ohio Supreme Court held
an article not defamatory as a matter of law when “[t]he article . . . contained a balanced report of
both parties’ arguments and defenses.” See 978 N.E.2d at 853–54; see also Early v. Toledo
Blade, 720 N.E.2d 107, 122–23 (Ohio Ct. App. 1998); cf. Sabino, 56 N.E.3d at 379–80 (holding
that a newscast was not defamatory because it used qualifying language about child-pornography
charges and “[t]he newscast could be reasonably understood to report that a . . . teacher was
being investigated, yes, but [the teacher] does not dispute that he was being investigated at that
time”). And although “it is clear that mere publication of a denial by the defamed subject does
not absolve a defendant from liability for publishing knowing or reckless falsehoods,”
Connaughton, 842 F.2d at 837–38 n.6 (internal quotation marks omitted), this article does more,
as the foregoing shows.
Two remaining arguments are worth addressing, but both ultimately lack merit.
First, Dr. Croce pleaded that the New York Times published with actual malice. Actual
malice requires showing the defendant had knowledge that the statement was false or acted with
reckless disregard for the truth. See New York Times Co. v. Sullivan, 376 U.S. 254, 279–80
(1964). Of course, even with qualifying language, a defendant could be liable for publishing
statements with actual malice. See Connaughton, 842 F.2d at 837–38 n.6. This issue is
particularly relevant to statements by Dr. Sanders, a professor at Purdue University. Dr. Croce
misleadingly asserts that Dr. Sanders has disavowed his criticisms. In actuality, Dr. Sanders
No. 18-4158 Croce v. New York Times Co. et al. Page 10
does not deny that he made the statements that appear in the article, but rather, he denies that
they are defamatory. See generally Croce, 345 F. Supp. 3d at 985–86. This argument is
therefore unavailing.
Second, Dr. Croce points to a “companion article” that appeared on the second page of
the paper’s print edition, making the novel argument that this separate article endorses the
accuracy of the allegations in the actual article at issue. This argument rests solely on half of the
headline, “Open Records Close the Case”—specifically the “Close the Case” phrase. Assuming
that a separate article on a separate page of the paper may be relevant, the second article here is
predominantly about how, in Ohio, reporters can easily access certain records and how that
helped Glanz and Armendariz unearth various documents. R. 32-5 (Open Records Article). As
with the main article, Dr. Croce’s contentions on this front do not hold up when reading the full
article.
In sum, we hold that a reasonable reader would not interpret this article, considering it as
a whole, to be defamatory. Even if one could quibble with this conclusion, the Defendants’
arguments on the innocent-construction rule are strong. We turn to that next.
B. The Innocent-Construction Rule
Dr. Croce argues that the panel must reverse if a reasonable reader could attribute a
defamatory meaning to the article. This argument runs headlong into the innocent-construction
rule. See McKimm, 729 N.E.2d at 372 (holding that the innocent-construction rule did not apply
because the cartoon at issue was susceptible to only “one reasonable interpretation”—a
defamatory one) (emphasis added). “According to this rule, if allegedly defamatory words are
susceptible to two meanings, one defamatory and one innocent, the defamatory meaning should
be rejected, and the innocent meaning adopted.” Yeager, 453 N.E.2d at 669 (emphasis added).
Dr. Croce’s contention that this rule is not established in Ohio is not persuasive.
In McKimm, the Ohio Supreme Court reasoned that “[t]he innocent-construction rule does not
protect [the author’s] cartoon in this case. The rule protects only those statements that are
reasonably susceptible of an innocent construction.” 729 N.E.2d at 372 (citing Yeager,
453 N.E.2d at 669). If Ohio had not adopted this rule, then it would be odd for the State
No. 18-4158 Croce v. New York Times Co. et al. Page 11
Supreme Court to recite the rule’s contours and explain why it did not apply based on the facts
on the case. It could have said that Ohio does not recognize the rule. See Young v. Morning
Journal, 669 N.E.2d 1136, 1138 (Ohio 1996) (“This court has never recognized the ‘neutral
reportage’ doctrine and we decline to do so at this time.”). The State Supreme Court did not
explicitly reject, decline to accept, or even cast doubt on the validity of the innocent-construction
rule in either Yeager or McKimm, despite the rule’s use in the state appellate courts before (and
after) McKimm. See Sweitzer v. Outlet Commc’ns, Inc., 726 N.E.2d 1084, 1091 (Ohio Ct. App.
1999) (collecting Ohio appellate court cases).3 This court, too, has recognized that Ohio has
adopted this rule. See Boulger v. Woods, 917 F.3d 471, 483 (6th Cir. 2019); id. at 485 n.2
(Nalbandian, J., concurring).
Dr. Croce’s argument that the question of this rule’s validity should be certified to the
Ohio Supreme Court is also not persuasive. For one, “certification is disfavored when it is
sought only after the district court has entered an adverse judgment.” See State Auto Prop. &
Cas. Ins. Co. v. Hargis, 785 F.3d 189, 194 (6th Cir. 2015). That is the situation here.
Furthermore, as surveyed above, state law provides “a reasonably clear and principled course” to
follow. Id. (quoting Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th Cir.
2009)). That course leads us to apply the innocent-construction rule.
As our analysis in the prior section shows, this article and the statements in it can
comfortably fall within the contours of the innocent-construction rule. Even if the meaning of
the article is ambiguous or debatable, an innocent reading can surely be adopted: Yes, Dr. Croce
has been the subject of criticisms and allegations, resulting in some corrections to his work, but
no findings of deliberate misconduct have been made against him, he denies these allegations,
and he is otherwise a successful cancer researcher.
Although a case involving a public official (and thus subject to a slightly different
standard), the following passage from Robb, is particularly relevant here:
3See also Webber v. Ohio Dep’t of Pub. Safety, 103 N.E.3d 283, 296–97 (Ohio Ct. App. 2017); Sabino,
56 N.E.3d at 380; Holley v. WBNS 10TV, Inc., 775 N.E.2d 579, 583 (Ohio Ct. App. 2002); Early, 720 N.E.2d at121–23; Belinky v. Drake Ctr., Inc., 690 N.E.2d 1302, 1309 (Ohio Ct. App. 1996); Robb, 683 N.E.2d at 838–39.
No. 18-4158 Croce v. New York Times Co. et al. Page 12
The news article and (especially) its headline are examples of one of the worst
excesses of contemporary journalism: a “spin” put on facts to get the attention of
the reader that distorts their true meaning. To the extent that it represents that
monies were missing from Robb’s custody, the article is false. However, a
discerning reader may yet understand from it that Robb was cited by the auditor
for failing to “collect” monies from his own accounts that he was required by law
to remit to Butler County, and that is true. The words used in the article are,
therefore, reasonably subject to an innocent construction, and malicious intent is
not demonstrated.
683 N.E. at 838–39 (emphasis added). Here, to the extent that the article and its headline
represent that Dr. Croce has in fact been found (by OSU or the federal government) to have
committed scientific misconduct, it is false. A discerning reader, however, would understand
that others have lodged allegations against Dr. Croce, none of which have resulted in an actual
finding of misconduct, but corrections have been issued for Dr. Croce’s papers—and that is true.
We therefore conclude that Ohio has adopted the innocent-construction rule, and we hold
that this article is easily susceptible to an innocent construction.
C. Statement 14 Is Substantially True
Statement 14 is singled out as a separate issue in the parties’ briefing, and the question is
whether the statement is substantially true. It reads:
As a result of complaints by Dr. Sanders and others, journals have been posting
notices of problems with Dr. Croce’s papers at a quickening pace. From just a
handful of notices before 2013 – known as corrections, retractions and editors’
notices – the number has ballooned to at least 20, with at least three more on the
way, according to journal editors. Many of the notices involve the improper
manipulation of a humble but universal lab technique called western blotting,
which measures gene function in a cell and often indicates whether an experiment
has succeeded or failed.
R. 32-3 (Article at 2) (Page ID #708). This statement follows a string of paragraphs that outline
allegations made against Dr. Croce, including by Dr. Sanders. Dr. Sanders “has made claims of
falsified data and plagiarism directly to scientific journals where more than 20 of Dr. Croce’s
papers have been published.” Id. at 1 (Page ID #707). “‘It’s a reckless disregard for the truth,’
Dr. Sanders said in an interview.” Id. at 2 (Page ID #708).
No. 18-4158 Croce v. New York Times Co. et al. Page 13
We have explained previously that, in Ohio, “[a] statement is not a ‘false statement’ if,
even though it is misleading and fails to disclose all relevant facts, the statement has some truth
in it. Moreover, a statement that is subject to different interpretations is not ‘false.’” Susan B.
Anthony List v. Driehaus, 779 F.3d 628, 633 (6th Cir. 2015) (citation omitted). Accordingly, if
“the ‘gist’ or ‘sting’ of the statement is substantially true,” then the statement is not defamatory,
id. (citation omitted), even if “[m]inor inaccuracies” exist, see Masson v. New Yorker Magazine,
Inc., 501 U.S. 496, 517 (1991). “Put another way, the statement is not considered false unless it
would have a different effect on the mind of the reader from that which the pleaded truth would
have produced.” Id. (internal quotation marks omitted).
This is a “low threshold,” Driehaus, 779 F.3d at 633, and the article clears it. The “gist”
of this statement is true, and the purported inaccuracies, if any, are minor. To the extent that Dr.
Croce disputes the number, any disparity is minor and would not change the effect on the reader.
By Dr. Croce’s own admission, at least twelve of his papers have been subject to a correction for
one reason or another, and two papers have been withdrawn (with his consent). See R. 32 (Am.
Compl. at ¶¶ 36–39) (Page ID #609–11). Others have in fact complained about Dr. Croce’s
work, and again his work has been subject to corrections for data that are incorrect or
duplicated—in other words, people lodged complaints and then corrections were made. The
article does not state that Dr. Croce intentionally falsified data or committed fraud. To the extent
that this statement might possibly be interpreted that way, this statement, like the rest of the
article, comfortably fits within the innocent-construction rule.
IV. REMAINING CLAIMS
Dr. Croce’s remaining false-light and intentional-infliction-of-emotional-distress claims
can be disposed of quickly because their success rests on the defamation claims. On appeal, he
simply argues that “[b]ecause the District Court erred in dismissing [the] defamation claims, the
District Court equally erred in dismissing his false light and intentional infliction of emotional
distress claims.” See Appellant Br. at 54. The defamation claims fail, and no arguments remain
to support the false-light and intentional-infliction-of-emotional-distress claims. Thus, we affirm
the district court’s dismissal of these claims as well.
No. 18-4158 Croce v. New York Times Co. et al. Page 14
V. CONCLUSION
For these reasons, we AFFIRM the district court.