Court: University disclosure of researcher’s misconduct did not violate due process

An appellate court has dismissed a legal challenge by a cancer researcher against her former institution, ruling the university’s misconduct investigation and disclosure process did not violate her right to due process.  

In 2020, The Ohio State University determined that Flavia Pichiorri, a former postdoc in the lab of Carlo Croce, was responsible for manipulating and reusing images in four publications, spanning from her time in Croce’s lab through establishing her own lab at Ohio State. Pichiorri sued the Ohio State Board of Trustees in April 2023 alleging the release of its misconduct findings to “prestigious journals” and her new employer violated her due process rights, defamed her, and inflicted emotional distress, among other claims. 

But in a December 19 ruling, the U.S. Court of Appeals for the Sixth Circuit concluded Pichiorri’s complaint never identified an adequate “liberty interest” worthy of procedural protections under the Due Process Clause of the 14th Amendment. The appeals court affirmed a lower court’s decision tossing the complaint for failure to state a constitutional claim. 

Richard Goldstein, a Boston attorney who represents scientists involved in research misconduct cases, said the Sixth Circuit’s decision is consistent with those of other appellate federal courts in similar cases. However, the case is particularly important because it’s one of the first to focus on the regulations mandating confidentiality, he said.

“In general, scientists have had little or no success in the federal courts when it comes to challenging the acts and omissions of institutions in research misconduct cases,” Goldstein told Retraction Watch. “This case is somewhat unique because it specifically addresses the issue of confidentiality, which is one that rarely gets attention in the court system, but confidentiality is a very significant element of the institutional process and it is a matter of great concern to scientists.” 

Pichiorri and her attorneys did not return messages seeking comment. A spokesperson for Ohio State told us: “We’ll let the ruling speak for itself.” 

In court filings, attorneys for the school had asked the court to dismiss the suit, arguing Pichiorri’s due process claims were without basis, and that her state claims were preempted by federal regulation. Because Congress has manifested “a clear intent to occupy the field of research misconduct,” there is “no room for plaintiff’s state-law claims,” attorneys for the university wrote.

Pichiorri worked at Ohio State from 2004 to 2016, first as a postdoctoral researcher in Croce’s lab, then as a research scientist, and finally as an assistant professor of hematology. She left “by all accounts on good terms” in August 2016, according to a summary of the case in the court’s decision, for City of Hope Medical Center in Duarte, Calif. Pichiorri’s LinkedIn profile and personal website state she is a professor there, but a spokesperson for City of Hope told us the institution no longer employs Pichiorri.   

After her departure, Ohio State received allegations that some of her work contained falsified data. Following an investigation, the university found Pichiorri had committed research misconduct and barred her from future employment with the university, according to the decision summary. 

The institution also recommended that two of Pichiorri’s papers should be retracted and another corrected. Of the two articles recommended for retraction, one has been retracted and the other marked with an expression of concern. A correction was made to the third paper. Pichiorri has two other retractions on papers she wrote with Croce.

Nature reported the university’s findings in 2022, calling them one of “the first determinations of research misconduct relating to work done in Croce’s lab.” Croce, once a high-profile cancer researcher at Ohio State, now has 15 retractions. He has filed several defamation lawsuits unsuccessfully, and reportedly owes his attorneys more than $1 million.

In her complaint, Pichiorri alleged Ohio State did not simply disclose its findings when they came out in 2020, but “re-sent the report to others and repeated the misconduct findings over the years.” The institution alerted “prestigious journals” about the report as late as July and November 2022 and notified City of Hope, according to the lawsuit.

The disclosures caused Pichiorri ongoing “public humiliation and emotional distress,” and “harmed her reputation and standing in the research community,” she claimed in her suit. The consequences included the National Institutes of Health removing her from a “coveted panel” on which she had long served, and City of Hope investigating “all her past work funded by the National Institutes of Health,” according to the suit. While City of Hope found no other misconduct, the investigation reduced “her role as a senior leader” and “one of her employees quit as a result,” according to her complaint. 

The appeals court, however, ruled Pichiorri failed to meet the legal standard required to show that a government-related defamatory statement violated constitutional due process. That standard, called the stigma plus test, requires a plaintiff to demonstrate the defamation not only damaged a person’s reputation but was accompanied by a tangible loss of a liberty interest, such as a job or license termination.    

“Neither of Pichiorri’s two alleged injuries show an actionable change to a cognizable interest,” the appeals court wrote in its decision. In addition, the court pointed out Pichiorri did not claim City of Hope took any personnel action against her, such as “a discharge, demotion, or the like.” 

“Rather, she alleges (vaguely) that she suffered a ‘diminished role’ at the City of Hope and that a staff member resigned,” judges wrote. “Her complaint identifies no more than a harm to her ‘future employment opportunities,’ … at the City of Hope because she now has a worse reputation as a researcher. That harm falls short under the stigma-plus test.”

Given the “lack of details” about the NIH panel, the court added there was also no “plausible claim” that the removal rose to the required level of harm. 

The court also struck down Pichiorri’s claims that Ohio State officials engaged in “conscience-shocking behavior” when they disclosed her research misconduct allegations to medical journals and the City of Hope Medical Center more than two years after their investigation was completed. Pichiorri argued these disclosures “shock the conscience” because they ran afoul of a then-applicable confidentiality rule by the Office of Research Integrity. The rule requires an institution to maintain the confidentiality of “records or evidence” that identify the subjects of an investigation, except as may otherwise be prescribed by applicable law, according to court documents.

But judges said substantive due process protects a person’s privacy only when the government’s disclosure of personal information could lead to harm such as,  “sexual … personal, and humiliating details.” Pichiorri’s allegations did not include the type of harms found protected in past cases, the court ruled.     

“In sum, neither Pichiorri’s claim that the Ohio State officials defamed her nor her claim that they violated a confidentiality regulation plausibly alleged conscience-shocking behavior,” judges said.       

In his opinion, Goldstein said the court’s ruling is an endorsement of practices institutions have been engaging in for some time.

“It does not mean institutions can breach their confidentiality obligations, but the case is significant because, if an institution lets the cat out of the bag, either deliberately or by accident, the scientist under investigation has little recourse in federal court,” he said. “ORI’s new regulations, which are more explicit than the ones the court looked at in this case, would permit the disclosures OSU made here.”

Goldstein  referred to updated guidance from ORI, which took effect January 1, 2026, amending the agency’s recommendations about confidentiality, investigation timelines, and the required records for research misconduct proceedings, among other topics.

The new regulations explicitly allow disclosure to journals if there is a “need to know,” Goldstein said. 

“I suspect that the institutions will feel more comfortable with the procedures that they have adopted, and as a result, I think it will encourage them to expand the circle of people and entities who are told of a misconduct proceeding,” he said. “This could dramatically increase the likelihood a misconduct investigation will become a matter of public record.”

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