This column revisits a challenging topic that cuts across the spectrum of complex litigation—the reliance upon and use of unreliable hearsay literature by expert testifiers. Often these are technical or scientific articles published in some journal with a claim that the published work product has been “peer reviewed.” In earlier articles, I exposed major problems with overstating the reliability of such out-of-court articles not authored by the testifier. With the increasing trend to “trial by literature,” it seemed high time to revisit the subject. Have things improved? Probably not. Indeed, there seems to be an exacerbation of problems disclosed earlier.
In particular, there has been a global proliferation of journals whose quality review practices function differently from the classic model we used to know. Many so-called “open-access” journals that accept articles charge the author a fee. That dynamic seems to create potential conflicts of interest. Many of these journals publish articles without peer review. Others do a so-called peer review that is laughable and porous. How do we know that? Because a Harvard science journalist recently conducted a sensational “sting” operation, a hoax in which he sent a science article to hundreds of journals. The results are shocking. More about that later. First, to set the stage we offer some background on the problem and our earlier findings.
