Saturday, October 20, 2007

When Litigation and Science Collide (Childs article)

We've never met Bill Childs, but we like him. He's an Associate Professor at Western New England School of Law, and he hosts the Torts Prof Blog, where he keeps the content both fresh and informative. We thus read with interest his recent article in the Nebraska Law Review, "The Overlapping Magisteria of Law and Science: When Litigation and Science Collide."

We didn't know what the word "magisteria" meant, so we borrowed as our title here the part of Childs' title that came after the colon. (Actually, footnote 7 of Childs' article tried to educate us: "'Magisteria' is a term for the teaching authority of a particular area of inquiry." But even that left us a little fuzzy, so we stuck to words we understand.)

Anyway, Childs' article focuses on two related issues that can arise in mass tort litigation. First, when one party cites peer-reviewed literature, the opposing party may seek discovery into the peer-review process. This can, of course, chill scholars' willingness to act as peer reviewers. Second, Daubert and the comments to Federal Rule of Evidence 702 instruct courts to consider whether scientific evidence "has been subjected to peer review and publication" as one factor in deciding whether expert testimony should be admissible. This encourages expert witnesses to engage in "litigation-driven scholarship;" expert witnesses seek publication of their ideas in peer-reviewed journals to increase the likelihood that the experts' testimony will be admissible in court.

Ultimately, Childs doesn't mind discovery into the peer-review process, because he thinks it may (beneficially) educate courts about the nature of peer review, although Childs does propose some limits on that type of discovery. And Childs doesn't mind rules that encourage expert witnesses to publish their litigation-driven work, because he believes that scholarship may merit publication even though the research was undertaken for a partisan purpose.

We agree with some of Childs' ideas; we disagree with others. But we figured there was one thing we could add to the mix: a practitioner's perspective. Academicians do fine scholarship, but they're sometimes surprised to learn how things play out in the real world.

Here are our thoughts on litigation-driven scholarship:

1. Childs focuses on scholarship by folks who can at least hold themselves out as "scholars." His article discusses at some length a book written by two historians, one from City University of New York and one from Columbia University's Mailman School of Public Health. (One of your humble scribes has opposed these two historians in litigation; we'll steer far clear of any commentary on their work.)

But what about "experts" who are plainly two-bit clowns? We're thinking, for example, of a fellow with an undergraduate degree in engineering who was fired by a company, never worked in academia, and now makes his living solely by giving expert testimony against his former industry. We've seen letters to and from such folks fretting that they must continue to submit their silly articles to every conceivable peer-reviewed journal, because only a peer-reviewed publication will preserve their careers. If you send an article to enough journals, one will ultimately publish it, and "expert" testimony based on that article may survive Daubert scrutiny.

Maybe we're ultimately criticizing peer review itself. If all peer-reviewed journals maintained high standards, then litigation-driven nonsense would never make its way into print, and junk science would routinely be junked. But we're not that confident in the screening process. We'd like to see some recognition in the academic literature that "litigation-driven scholarship" doesn't always mean retaining a distinguished gentleman with a D. Phil. from Oxford to undertake an extra experiment or two. It often means retaining Bozo the Clown and hoping that, if he sends out copies of his work to enough journals, it will slip through the cracks somewhere and make its way into print.

2. There's one huge difference between research undertaken by pharmaceutical companies and research sponsored by litigants. Historically, drug companies didn't publish the results of every clinical trial they undertook. (Don't jump to conclusions here. This wasn't necessarily because of evil motives. Journals were often not interested in publishing an article that said, basically, "we tested a drug and it didn't work." Publish a bunch of those puppies, and watch your readership drop. Companies simply could not publish results that didn't interest the journals.) But companies did typically report the results of clinical trials -- including null and negative studies -- to the FDA as part of New Drug Application submissions. An expert government agency thus had access to these results. Negative trials were not deep-sixed entirely.

Not so in litigation. Counsel can retain non-testifying consultants, ask them to conduct studies, and then conceal entirely the unfavorable results. So long as the consultants are not asked to testify, no one will ever even know that the studies were done at all. Unlike work performed by drug companies, litigation-driven scholarship can be permanently concealed from everyone -- period. That possibility skews the debate in an unfortunate way.

3. Finally, we'd like to see some empirical work done here. We know that drug companies occasionally run clinical trials that fail. But we wonder whether any expert witness retained by plaintiffs' counsel in mass tort litigation has ever run an experiment that failed. We suspect not.

If we're right, that means one of three things: (1) Plaintiffs' experts pick their theories exceptionally well, or are exceptionally lucky, (2) lots of negative experiments are being run by non-testifying consultants, so the results are never made public, or (3) litigation-driven "scholarship" is a breed unto itself, so terribly biased that its results are truly suspect. (We won't say which of those we think is most likely, but we suspect regular readers of this blog can intuit where we stand.)

That's our rant for the day. As usual, we feel much better now. That's for bearing with us.

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