Lawyering-up News

No good news, instead a major disaster in appeal court re: Macchiarini affair

The German justice has spoken on trachea transplants again, in the appeal hearing at Kammergericht Berlin, and found the problem to lie with the journalists and press freedom. Good news first: I might have won the first injunction case against Philipp Jungebluth, or at least in large part, so I will probably get most of my money refunded there (Update 30.05.2018: the court tricked me and rejected my appeal on that injunction too. It remains valid to 1/3 just as before, see below). This only happened because the judges regarded how exactly Jungebluth left his job in Heidelberg being a minor enough issue (they did advice him to sue a Swedish newspaper for interviewing him about his sacking in Sweden (sic!)). This money I then will pay back to Paolo Macchiarini‘s acolyte and the court, and much, much more on top, because the three appeal court judges announced to uphold the second injunction in full. These are their oral arguments from yesterday summarised:

  • My claim that Macchiarini’s and Jungebluth’s unpublished manuscript refers to 5 dead patients operated by Macchiarini in Italy is void, because I failed to present that manuscript. My objection that this would identify my source, protected by journalistic confidentiality, was dismissed as my own problem, even if Jungebluth never denied the correctness of all quotes from that manuscript. German press freedom was abolished at Kammergericht Berlin on May 24th 2018.
  • Whatever a German doctor might have done abroad, can never tarnish his reputation in Germany. The court sternly berated myself and my lawyer for have bothered it with pointless and irrelevant stories of what Jungebluth did in Sweden. This is an interesting invitation for German doctors to go and have fun abroad, coming from the German Kammergericht in Berlin.
  • There is no such thing as surgery training. Either one is a surgeon who operates a patient, or one is a student of medicine, never actively involved in any operations aside of watching (which was all Jungebluth says to have done). The only person required to have a medical licence at an operation is the surgeon alone, all those assisting do not need any medical certifications. This, and that there are no practice requirements for training surgeons, was decreed by Kammergericht Berlin on May 24th 2018.
  • I was made responsible for the veracity of all works written by Jungebluth, in particular that unpublished manuscript he himself wrote. Making academic assumptions while citing Jungebluth’s own words that what he wrote might really have happened, constitutes “false factual claims” and thus punishable as libel.
  • The injunction was originally passed without any explanation or justification whatsoever by a judge at Landesgericht. After the first hearing, that judge argued that the authors’ contribution statement “PJ assisted in clinical transplantations” does not mean Jungebluth assisted in the transplantation described in that manuscript, but in some other, unspecified and unrelated and likely imagined ones. This academically ridiculous argument (supported later by Prof Macchiarini himself in a sworn affidavit), will be now replaced with a new one, which the Kammergericht was not able to formulate coherently and announced to invent for the later verdict. Basically, the court’s desire to pass an injunction was uncoupled from the actual original legal argument on the reasons: sentence first, argue later. My defence attempts became a game of wake-a-mole, where each time I disproved one argument of the court, it either went to invent another one (including arguments of English grammar), or simply told me to shut up. This goes against a right to fair trial, which was abolished at Kammergericht Berlin on May 24th 2018.
  • Macchiarini’s trachea transplants were all based on solid preclinical research, proved successful and beneficial to patients (at least initially) and received all necessary ethics approvals. I was educated about this being indisputable facts by the presiding judge. Per verdict of Berlin Kammergericht of May 2th 2018, Macchiarini and anyone associated with him can never be accused of patient abuse or unlawful activities.

I will update this post when the verdicts arrive. My legal expenses for the Jungebluth case alone are at the height of €30-40k, money which I don’t have, hence please donate. Jungebluth himself had to invest exactly NOTHING so far. His legal insurance pays for him suing me in full, in fact the court spent yesterday lots of time debating how not to let me win the first injunction completely because then Jungebluth’s legal insurance might deny coverage and the good doctor might have to pay something from his own pocket. This discussion truly took place, I was listening incredulously. My own legal insurance refused paying long ago (already in Walles case), and my pleas to court I have no income and rely on donations to pay my court costs were shrugged off with a thinly veiled “this you should have thought about before writing your lies” attitude.

However, if I back down now, after Jungebluth it might be Macchiarini himself suing me in Berlin, since Macchiarini is spoken of almost only positively in the gagged- and timid German media and, to make his court case in Germany, Professor Macchiarini has an ongoing academic affiliation with the Hannover Medical School.

Hence, please donate, on Patreon, or one-off donation below, or just contact me.

Those  court injunctions by Macchiarini’s past associates (Heike and Thorsten Walles, and of course Jungebluth here) take their toll, not just financially. Many scientists are afraid to invite me to give a research integrity seminar. Those court trials are also routinely used as excuse to dismiss my reporting and my evidence as a bunch of slanderous lies. The Great Ormond Street Hospital (GOSH) in London, associated with UCL, performed 3 trachea transplants on children between 2010 and 2017 (at least one of those lethal). They now categorically distance themselves from Macchiarini (who performed the first of those operations)  in the following quoted submission to UK parliament, while taking sides with Macchiarini’s former partners suing me, especially with Jungebluth (since Walles injunction was lifted after settlement). On top, GOSH also conjures a vision of me, an ethnically Jewish immigrant from Ukraine, as a German Nazi. Actually, the accusations of racism and xenophobia were raised against UCL elite, not just by myself and media, but even determined in court (page 22 here). This is now the relevant excerpt from GOSH testimony from 7 April 2018 to UK parliament, primarily signed by past Macchiarini associates from GOSH and UCL professors Paolo De Coppi and Martin Elliott:

“We thank you for the opportunity to clarify once more the position of the clinicians at Great Ormond Street Hospital involved in the care of the 3 patients transplanted with a tissue engineering trachea. Unfortunately, we noticed that the letter from MP reports reference to a malicious website (1) which has been addressing (with racist comments) the conclusions of extensive and deep investigations conducted by University College London.

The internet blogging site (“For Better Science”) is written by a German man called Leonid Schneider. Leonid Schneider has been found guilty of libel against other researchers in German courts on several occasions. From April 2017, the site has run a blog covering the writer‘s personal views of various tissue engineered tracheal transplantations. The blogger uses few scientific peer reviewed references which makes it difficult properly to comment upon it.

The circumstances and accusations have already been investigated in detail by a previous UCL initiated formal investigation. The UCL inquiry completely vindicated GOSH a fact which needs to be used as a starting point. Nevertheless, we have distanced ourselves from Macchiarini since 2010 and have since conducted 2 transplantations, without any involvement of Macchiarini or his team.”

For many reasons, I must continue defending myself in court, and on my “malicious” non-peer reviewed site against Jungebluth’s and Macchiarini’s attacks. I will try to bring my case to the Supreme Constitutional Court in Germany, or maybe even European Court of Justice, as basic constitutional rights were abolished in my case, to protect the interests of Macchiarini and his associates. This will cost, please donate. If you can help with pro bono legal advice, or with contacts to legal experts or journalists who care for truth and human rights, please do.


Update 30.05.2018. The court transcript have arrived. The court rejects my appeal on 2nd injunction entirely, I have to pay all costs: my lawyer, Jungebluth’s lawyer, all court costs. Regarding the 1st injunction: I was tricked by the court. The judges announced throughout the entire hearing to lift the injunction completely, but afterwards sneakily changed their mind. Possibly because I was exposed by the court as immigrant from Ukraine, and because Jungebluth expressed concern that his legal insurance might not cover his costs. My lawyer explained to me that my (futile)  attempt to defend myself against the second injunction led the court to develop an antipathy against my person, and hence change their verdict against me. Basically, the entire appeal was thrown out after only Jungebluth’s side was allowed to speak, I stand where I was before, with an enormous extra bill.

Update 18.05.2018. The court verdict has arrived, where my appeal is dismissed in its entirety. I am also ordered to pay a fine of €1000 plus court costs, for failing to predict and interfere with the Worpress algorithm which pops up related articles automatically.

The scariest bit: The judges tricked me, again. The final verdict follows exactly the argument of the previous court, which the judge said was wrong. I was instead accused of having made up the content of the manuscript, which in reality never described any Italian patients, and made to argue against that. That was a trick, because in the final verdict the court declares that:

PJ assisted in clinical transplantations” doesn’t mean Jungebluth assisted in any of transplantations described in the manuscript, which the court now does say happened in Italy. Why so? If those were meant, the court writes in the verdict in German, using German translations, it would have said: “PJ assisted in the clinical transplantations“.

2 courts with 3 ethnically German judges each, whose entire knowledge of English language is school-derived, unable to pronounce the name “Macchiarini” correctly, sentenced a Russian native speaker for malicious and criminal ignorance of English grammar.

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20 comments on “No good news, instead a major disaster in appeal court re: Macchiarini affair

  1. Ana Pedro

    I ask the United Nations Secretary General Antonio Guterres to consider this case an obstruction to freedom of expression and a violation of human rights

    Like

  2. I will do the same, and I will encourage all readers to follow up this case. Leonid, have you considered Scandinavia as a possible base for further critical blogging? It loooks like Germany is not the right place to be for critical journalism, In Norway you still have the freedom of speech!

    Liked by 1 person

  3. Antonio.guterres@un.org bounced back, does anyone knows the correct address?
    The European court of human rights should also be contacted (maybe more relevant?).

    Like

    • Ana Pedro

      I submitted a concern to United Nations about this, I can try to submit it to the European court of human rights as well

      Like

      • Ana Pedro

        Done!
        Between the United Nations and the European court of human rights they must be able to take any action…Leonid’s site speaks by itself

        Like

  4. Aprippina

    From the Elliott and De Coppi letter above:
    “The circumstances and accusations have already been investigated in detail by a previous UCL initiated formal investigation. The UCL inquiry completely vindicated GOSH a fact which needs to be used as a starting point.”

    What UCL formal investigation was conducted and when? How could the circumstances and allegations have been investigated in detail if they were only raised by Drs. Murray and Levi in the first quarter of 2018? See here: https://www.parliament.uk/business/committees/committees-a-z/commons-select/science-and-technology-committee/inquiries/parliament-2017/research-integrity-17-19/publications/

    The UCL inquiry on regenerative medicine was not a misconduct investigation & UCL took pains to make this point.

    Hint: disdain without command of the facts tends to backfire.

    Like

  5. German law system is really surprising! What a nonsense. Jungebluth and Macchiarini somehow have not tried to sue Swedish TV after “experiment” movie. They would never win any international case of course.

    Like

    • It is not about winning. It is about financially hurting Leonid. With a TV station that is more difficult.
      The single most important observation that I read was: Macchiarini is a pathological liar.
      The rest of the entire situation follows from there.

      Like

  6. Pingback: Boletim de Notícias: 23 entidades científicas endossam SBPC contra ‘PL do Veneno’ | Direto da Ciência

  7. Why Macchiarini is still not in jail is for me unbelievable.

    It clearly shows that research integrity is not on the agenda in EU, and send out a clear
    message to students: Do whatever you need to get the high impact paper you will nedd to get a carreer in a rotten but top research institute. No one cares as long as you bring some grants so they can continue the theatre.

    Like

  8. Zebedee

    There is something heavy handed about the German court system. One big negative about the country, which otherwise is not bad.

    Like

  9. apiljic

    Leonid, I think you need to make your work more formal. My advice would be to found a non-profit organisation dedicated to research integrity. You are in Germany, so that means e.V. Maybe there are other forms you could consider.

    Costs of founding it are low. You’ll have to pay an accountant/tax adviser maybe 500-600 EUR each year, but the benefits are huge.

    Association would be the legal entity standing behind you. All legal action would be directed towards the association and it could potentially be fined, but at least your private money you need for living and to support your family would be safe.

    The association would have members.

    You could consider having a small membership fee. In exchange, people could get advice on ethical and research integrity issues when they find themselves in a situation that they need help.

    Alternatively, you could have no membership fees. Then members could help you with your work. Some people could read the articles prior to publishing, edit, help with research etc.

    You could get some money from donations, and those would be tax-deductible.

    You already give seminars in which you present your work. But to really fix the problem, you need to educate. So you could expand on seminars and teach people research ethics. Make this a Europe-wide initiative, so as many institutions as possible are a part of it. Create a seal or a label that participating organisations get to indicate they are part of this program.

    Also, you would need to replace the wordpress blog with a more formal association webpage.

    These are just some ideas. Should you decide to take this road and need help, let me know.

    Liked by 1 person

    • Ana Pedro

      Please, keep me informed as well….I will be totally available to help as well

      Like

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