Carlo M. Croce, Plaintiff-Appellant,
The New York Times Company; James Glanz; Agustin Armendariz; Arthur Ochs Sulzberger, Jr.; Dean Baquet, Defendants-Appellees.
Argued: June 20, 2019
from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:17-cv-00402-James L.
Graham, District Judge.
Gerhardt A. Gosnell, II, JAMES E. ARNOLD & ASSOCIATES,
LPA, Columbus, Ohio, for Appellant.
Ward Brown, BALLARD SPAHR LLP, Washington, D.C., for
Gerhardt A. Gosnell, II, James E. Arnold, Damion M. Clifford,
JAMES E. ARNOLD & ASSOCIATES, LPA, Columbus, Ohio, for
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.
Before: MOORE, COOK, and NALBANDIAN, Circuit Judges.
NELSON MOORE, CIRCUIT JUDGE.
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.
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withdrawn with Dr.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).
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.
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 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).
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.
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
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 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.").
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).