Cureus retracted his article, and now Steve Kirsch is suing

Obnoxious tech bro turned “debate me, bro” antivaxxer Steve Kirsch is a fairly frequent topic on this blog for the simple reason that it’s hard to find a more rabid antivaxxer out there who produces more and stupider antivax misinformation on such a regular basis, yet utterly lacks any sense of his own limitations with respect to understanding the relevant scientific disciplines. Whether falsely claiming that COVID-19 vaccines have killed 3.5 times more people than COVID-19, accepting stolen data from a fake “New Zealand whistleblower” and then threatening to release protected health information (PHI), or just randomly challenging anyone refuting his nonsense to “debate me, bro,” Mr. Kirsch has certainly made a name for himself as the living personification of the arrogance of ignorance applied to COVID-19, COVID-19 vaccines, and, increasingly, just vaccines and medicine in general. However, his latest antic might just be his most risibly nonsensical yet. Basically, he is suing Springer Nature, one of whose journals is Cureus, which published a review article/commentary that contained black hole density-level pseudoscience, misinterpretation of studies, and antivax quackery and pseudoscience. Why? Because Cureus actually did the right thing and retracted the paper.

Even more hilariously, Mr. Kirsch is suing for…$250 million. Seriously, there is only one meme for this:

Let’s take a look at Kirsch’s unhinged rant:

The scientific journals have been getting away with unethical retractions for decades.

They unethically retracted our paper, “COVID-19 mRNA Vaccines: Lessons Learned from the Registrational Trials and Global Vaccination Campaign.” 

Here are the bogus reasons the journal gave for retraction and Peter McCullough’s EXCELLENT article regarding the impact of the paper and our response to their reasons

It’s time for this unethical practice to stop.

I hired a private investigator and was able to get the goods on the editors of Cureus so I know for a fact the paper was unethically retracted.

It’s time for the journals to be held accountable.

I’ll be filing suit next week against Springer Nature and Cureus seeking $250M in punitive damages so that the journals think twice the next time they get a paper they don’t like.

Actually, journals should think twice the next time they get a paper they “don’t like” and not publish that paper in the first place, but that’s just my perspective. On the one hand, I can’t help but be somewhat amused in that Cureus should never have published the paper in the first place and deserves some of the crap coming its way. On the other hand, the editors of Cureus did ultimately do the right thing and retract Kirsch and colleague’s steaming, stinking turd of a paper, which was clearly always intended as a tool for antivaxxers to cite while fear mongering about COVID-19 vaccines. (Retraction Watch has more.)

Basically, the article, COVID-19 mRNA Vaccines: Lessons Learned from the Registrational Trials and Global Vaccination Campaign, was a one-stop shop for the most prevalent antivaccine narratives and distortions, a COVID-19 antivax greatest hits, if you will. Naturally, its authors, who included not just Steve Kirsch, but other antivaxxers such as Peter McCullough, Stephanie Seneff, and Jessica Rose, concluded by calling for the removal of the vaccines from the childhood vaccination schedule “until proper safety and toxicological studies are conducted” and endorsing “a global moratorium on the modified mRNA products until all relevant questions pertaining to causality, residual DNA, and aberrant protein production are answered.” (Hint: These questions have been answered; it’s just that antivaxxers don’t like the answers.”)

I was particularly interested in Mr. Kirsch’s claim that he had hired a private investigator, who “was able to get the goods on the editors of Cureus so I know for a fact the paper was unethically retracted.” I’m not sure just what a private investigator would or could find that would prove this claim. After all, Mr. Kirsch has all the email correspondence, all the peer review reports, and pretty much everything. Unless his PI hacked Cureus‘ servers to get private emails between the editors cackling (metaphorically) about retracting the paper for no reason, I really find it hard to imagine just what additional value a PI could bring. Maybe the PI did do some unethical hacking of his own, if this part of Kirsch’s rant:

You can do your own internal investigation to prove this. Ask for all the letters received, emails between the editors, find out who wrote the retraction reasons and what instructions they were given. Then look at the paper trail after we submitted our response. You’ll see for yourself the unethical behavior.

Whatever the PI did or didn’t find and what it was, Steve Kirsch can’t resist Steve Kirsching, though, and assures us that he’s certainly, most definitely and absolutely has the goods on the wicked editors of Cureus and refers readers to, well:

We have hard evidence of our claims, but supplying this would breach confidentiality. If you want to validate it, you can reach out to Paul Marik who is one of America’s top scientists; he’s seen the evidence we obtained and finds it both appalling and compelling.

Dr. Paul Marik? Seriously, my assessment is that Dr. Marik is a big time quack, one of the founders of the Frontline COVID-19 Critical Care (FLCCC) Alliance. From my perspective, the only things Dr. Marik is an expert in are antivax grifting and quackery. His other “expert” to whom he appeals, Dr. Boz (Annette Bosworth) asks in a YouTube video: Paper retracted. Was I duped? Why yes, Dr. Boz. I do believe that you were duped, likely because you are antivax and were predisposed to believe all the misinformation in the paper. Then, at the end of the paper, Mr. Kirsch appends letters of complaint about the retraction by Harald Walach (a parapsychologist known for also defending homeopathy who naturally pivoted to spreading COVID-19 misinformation), Dr. Sucharit Bhakdi (a pathologist spreading false claims that COVID-19 vaccines kill), and Adrian Parker (another parapsychologist and current president of the Society for Psychical Research). Let’s just say that these are not credible experts in the scientific issues misrepresented in the retracted paper.

His appeal to fake “experts” who are really cranks, quacks, and/or antivax aside, Steve Kirsch, being Steve Kirsch, couldn’t resist publishing his correspondence with Cureus’ legal department, which, quite reasonably, asked him:

To proceed effectively in a review of your legal concerns regarding the retraction, kindly outline your specific legal objections, including any relevant facts or documents.

Our legal department assesses all suggestions of legal action seriously and carefully.  We look forward to your prompt and detailed response.

I laughed out loud at the very first part of Mr. Kirsch’s response:

Our legal claims include:

1. Defamation
2. Breach of implied contract
3. Fraudulent misrepresentation

I realize that I am not a lawyer, but I’m not totally ignorant of the law either. For example, good luck proving defamation, which is incredibly difficult to prove in the US even with a strong case, thanks to the First Amendment. (I’ve been definitely libeled on more than one occasion but have never tried to sue because I know that the odds would be stacked against me and that it would probably be deplete my life’s savings more than I’m willing to tolerate to pursue a libel lawsuit that I would have a good chance of losing.) Mr. Kirsch and his colleagues would have to prove actual falsehood and malice—differences in opinion and interpretation of data don’t count—or a “reckless disregard for the truth or falsity” of their retraction, which I really don’t think that Cureus demonstrated, as much as I’ve criticized its editors over accepting this paper for publication.

As for the “breach of implied contract,” this tells me that there was no explicit contract. Otherwise, Mr. Kirsch would point to the text of the explicit contract. Finally, where’s the “fraudulent misrepresentation”? Mr. Kirsch just drops that accusation but never addresses it again. What, exactly, was the misrepresentation? How does Mr. Kirsch know it was fraudulent. We don’t know, and he doesn’t tell.

The next paragraph, in particular, brings up some interesting tidbits:

Our paper, “Lessons Learned” was retracted by Cureus not because of scientific merit in accordance with the COPE guidelines, but because the editors received 6 ad hominem attack letters and decided we were “anti-vaxxers” and then the journal editors looked for excuses to retract the paper. The excuses were all without scientific merit and one of them was glaringly obvious to everyone (the ridiculous claim that the COVID vaccines were thoroughly tested). The stated reasons don’t rise to the COPE standard. This was a sham retraction that injures our reputations and breaches the implied contract that the journal follows the COPE guidelines. This was arguably the most read paper the journal has ever published, and THE JOURNAL DID NOT RECEIVE A SINGLE COMPLAINT FROM ANY QUALIFIED SCIENTIST on any SCIENTIFIC errors in the article. The peer reviewers are furious and members of the scientific community have written letters in protest of the sham retraction. And when the editors gave us their sham list of reasons and we responded, within hours, they notified us that the paper would be retracted; clearly ignoring our response to their objections. That is NOT how science works. This is again unethical. It shows they made up their minds and it didn’t matter what we said.  

First off, even if the editors of Cureus actually were “unethical” in how they retracted the paper, that is not a legal claim. Again, I’m not a lawyer, but ethics and law are two separate things, and if you’re going to be successful suing someone you need to base your claims in the law, not in your anger at what you perceive as “unethical” behavior. Second, COPE guidelines are just that, guidelines for journals. I don’t think you can easily sue based on just guidelines, as they are not law.

Perhaps the juiciest tidbit from Kirsch’s rant is that he has made it very clear from this that he and McCullough know who the peer reviewers are and have been in communication with them. I find this very interesting in the light of what Retraction Watch reported when the retraction was first announced:

A few days after the paper appeared, we asked John Adler Jr., the editor in chief of Cureus, if the track record of the authors concerned him. His response seemed to admit to the risk, but he also defended the journal’s vetting of the paper:

Yes I am aware that many of these authors are skeptical zealots when it comes to the dangers of vaccines. Our editorial response was extra vigilance during the peer review process with 8 different reviewers weighing in on publication or not, including a few with strong statistics knowledge. Therefore, a credible peer review process was followed and the chips fell where they may. That is all I can say. If you or other readers were to note fatal flaws in this article now that it is published, i.e. failure to accurately report financial COIs [conflicts of interest], totally erroneous statistical analysis, fake data etc. we will of course re-evaluate at any time.

Adler then took a jab at other journals:

The decision process Cureus made, contrasts sharply with Elsevier’s seeming editorial decision to just censor the article using ad hominem concerns.

I wrote at the time:

It’s even worse than I thought; that is, if what Adler says is true. Eight reviewers evaluated this paper, and some supposedly had “strong statistics knowledge”? And these “reviewers” approved this paper for publication? How on earth can anyone with the requisite background knowledge have fallen for this, regardless of whether the statistics might have appeared valid or not?

I also went on to speculate that perhaps the editors of Cureus might have been too accommodating of requests by authors for suggested peer reviewers, noting that most journals ask for suggested peer reviewers, and, of course, most authors will suggest reviewers who (1) have the relevant expertise to review the manuscript and (2) won’t be too hard on it. Of course, journal editors are free to use one or more of the authors’ suggestions or to ignore their suggestions altogether. After seeing what Mr. Kirsch has written, I now strongly suspect that the editor of Cureus just used the reviewers suggested by the authors, most of whom were almost certainly antivax buddies of the him and/or the other authors. Why else would the reviewers be “furious” at the retraction?

I like to think of it this way, imagining myself in the shoes of a peer reviewer who had approved a manuscript that was later retracted. Personally, if I ever learned that a paper for which I had served as one of the peer reviewers had been retracted, my reaction, after shock, would be to question myself and, more importantly, to wonder what I had gotten wrong about the manuscript when reviewing it. I would have used the retraction as an opportunity for self-reflection and self-improvement, acknowledging a mistake, trying to figure out what the mistake was, and trying to figure out how I might avoid making similar mistakes in the future.

In any case, it’s all making a lot more sense now. Thanks, Mr. Kirsch, for inadvertently almost certainly confirming what I had suspected from the beginning, namely that Cureus had used antivaxxers suggested by McCullough and company as peer reviewers, rather than bothering to find reviewers who actually knew the material and could identify the distortions and misrepresentations of the cited literature. Seriously, Mr. Kirsch is his own worst enemy. He just can’t keep his mouth shut, social media-wise, because he has to show off what he knows behind the scenes, and in blabbing he always gives the game away. No wonder, despite being challenged to publish all the peer review reports, Mr. Kirsch has not as yet done so, even though there is nothing keeping him, Dr. McCullough, or any of the other authors from posting them.

Also amusing is his ALL CAPS rant about how this “was arguably the most read paper the journal has ever published,” to which I respond: So what? That’s just an appeal to popularity, a logical fallacy. The next part about how “THE JOURNAL DID NOT RECEIVE A SINGLE COMPLAINT FROM ANY QUALIFIED SCIENTIST on any SCIENTIFIC errors in the article” is just plain wrong. According to Retraction Watch’s account, at least two of the scientists complaining were more than qualified, as they included r, John P. Moore, a microbiologist at Weill Cornell Medicine in New York City, and Gregg Gonsalves, an epidemiologist at Yale School of Public Health. Both of these scientists are far more qualified to discuss COVID-19 and COVID-19 vaccines than any of the authors of Kirsch’s misbegotten retracted crapfest.

Particularly amusing is this part:

I wrote Retraction Watch and asked for a copy of the letter they referenced in their article. They refused to supply the letter or tell me where they got the letter from. 

I wrote to Professor John Moore directly who also refused to provide the letter that the Retraction Watch published. Instead, he wrote this:

Orac says: Nice response, Dr. Moore. I couldn’t have done it better myself. Also, note how he blurred out the email address of his friends but not Drs. Moore or Gonsalves. True, you can easily find their email addresses on their university websites, but still…

I would point out to Mr. Kirsch that Retraction Watch published some of the text of the letter by Dr. Moore and Gonsalves outlining their concerns. Apparently, Mr. Kirsch’s private eye didn’t find that. Truly, this is the gang that couldn’t shoot straight, and Mr. Kirsch should demand a refund from whatever PI he hired, as he himself ended up writing Retraction Watch asking for a copy of the email. Retraction Watch, to its credit, told him to pound sand.

As for Mr. Kirsch’s complaint that the editors retracted the paper despite his and McCullough’s objections, well boo hoo. The letter, as republished on Kirsch’s Substack, stated quite clearly that the decision had been made to retract the paper: “Editors have therefore decided to retract your article.” They even said at the end of the email that the retraction notice would be amended thusly, depending on whether the authors agree to the retraction:

[will be amended as appropriate:] All authors agree to this retraction/ None of the authors agree to this retraction /[author name] agrees to this retraction/[author name] does not agree to this retraction/ [author name] has not responded to any correspondence from the editor/publisher about this retraction.

Since none of the authors agreed, the retraction notice states, “The authors disagree with this retraction.” Clearly, Mr. Kirsch does not understand how retractions work. The editors do not have to reconsider their decision to retract just because you’re pissed off about it and think it unjustified.

Of course, it’s fairly obvious that this lawsuit is probably not about actually winning. Somehow I doubt that even Mr. Kirsch is sufficiently stupid or deluded to believe that he can actually win (although he might well be!), and, even if he is, any competent lawyer he might hire would be under no such illusion. (That assumes, of course, that Mr. Kirsch hires a competent and ethical lawyer; so perhaps I’m off-base here too.) What this is about is intimidation. Don’t believe me? Look at this part of Mr. Kirsch’s email to the legal department:

In the meantime, we will be filing a suit in Texas against Springer and Journal for punitive damages of $250M so this sort of unethical behavior never happens again. The deposition of the Cureus editors will make it clear to the entire world how unethical the journal is. WE HAVE THE EVIDENCE. Doing the right thing in the meantime will make Springer look less bad. We may reconsider our lawsuit if you promptly do the right thing outlined in red.

Shorter Steve Kirsch:

Yeah, yeah. Just reinstate our paper and maybe, just maybe, we’ll make this lawsuit go away. As for their suing in Texas, I’m sure that’s because McCullough thinks that a Texas court will be sympathetic to their sorts of crappy arguments and because he lives in Dallas. On the other hand, it’s a risky move, as Texas does have an anti-SLAPP law, designed to produce potential penalties for filing frivolous strategic lawsuits against public participation; i.e., lawsuits filed against people or entities for exercising speech, press, assembly, petition, or association rights.

Personally, I can’t wait to see the actual legal complaint that Kirsch files, because you can’t just bluster and be this imprecise in a legal complaint. (Well, you can, but that’s a good way to provoke a summary dismissal for wasting the court’s time.) It will be then that Kirsch and his lawyers will have to spell out their arguments and give an idea of what sort of “bombshell evidence” they have that will prove their case. My prediction? Just like his “mother of all revelations” about the New Zealand database, the ultimate reaction in reality-based circles outside of his usual base of antivax conspiracy theorists will be very much like Marvin the Martian.

Truly, the comparison is apt.