Michael Hoenig ()
In my column last month, “‘Unreliable’ Articles, ‘Trial By Literature’ Revisited,”1 I reported on the increasing phenomenon of experts testifying about the content of all kinds of published articles they had not authored and results of research in which they had not participated. It is as if the hearsay article is “testifying” via the conduit of the expert. One problem is the inability of judges or fact-finders to truly gauge the reliability of the hearsay. Another is the unavailability of the author to be cross-examined, a trial mechanism that helps to test credibility, identify weaknesses and expose unreliability of content, methodology and opinions.
In civil litigation, the party’s challenge is not always to prove that the opponent expert is lying. Testimonial probity is not always weighed in a black-and-white contrast. Shades of gray often permeate the qualitative fabric of expert testimony. Which witness is more convincing? Which testimonial position is more logical, more reliable, more persuasive? An expert can testify impressively and his qualifications may be excellent. He may even believe what he is saying. But if he relies upon and spouts what is essentially “junk science,” extracted from someone else’s writing, the testimony is junky nonetheless.
One method of revealing junky testimony (or its limitations) is to demonstrate unreliability or lack of trustworthiness of the hearsay. But if opposing counsel fails to mount an incisive challenge to the hearsay, the testifier could get a free ride. Similarly, if courts, willy nilly, infer reliability of the hearsay simply because it was published, the courts are ignoring realities of the publishing marketplace, hampering the justice system in its search for the truth and defaulting on their judicial gatekeeping task.
Often, proponents of such hearsay testimony invoke the magic words “peer review” to sanctify the article with a kind of hallowed status that would, they hope, dispense with the need to prove the article’s reliability. Some courts buy it. After all, in Daubert v. Merrell Dow Pharms.,2 the U.S. Supreme Court, in elaborating the gatekeeping task, said that a “pertinent consideration” in determining whether a theory or technique is scientific knowledge that will assist the trier of fact “is whether the theory or technique has been subjected to peer review and publication.” But, as last month’s column showed and as prior articles revealed,3 peer review is riddled with problems, qualitative shortcomings, unjustified conclusions, false findings, and misleading information. Indeed, last month’s column reported on Harvard science journalist John Bohannon’s experience in submitting for publication a hoax science paper containing grave errors to hundreds of “open-access” scientific journals. In Bohannon’s sting operation, more than half the journals accepted the paper. Some 60 percent did not conduct peer review. Of the 106 journals that did conduct peer review, some 70 percent accepted the error-ridden paper! All that plus additional sources about peer review frailties were identified.
This writer received many comments in the wake of last month’s column. Not surprising! “Trial by literature,” unreliable hearsay, junk science and expert testimony are pivotal crossroads challenges at the core of complex litigation. In particular, I want to share with readers two sources on peer review cited to me by a superbly skilled litigator conversant with intensive “trial-by-literature” wars. Together with the information sources cited and discussed in my prior articles, these additional resources should equip the serious litigator with enough positive and negative information on peer review practices to help mold strategic thinking and critical advocacy. As I wrote last month, “article worship” presents dangers that threaten the reliability standard as never before.
One resource recommended to me and not mentioned earlier is a fine law review article by University of Miami Law Professor Susan Haack titled, “Peer Review and Publication: Lessons For Lawyers.”4 Published in Spring 2007, this article developed from a talk Haack gave at the National Institute of Justice Conference on Science and the Law in September 2005, in Florida. More about some of Haack’s important observations later.
A second resource is the recent development and launch by several concerned scientists of a new post-publication peer review system called “PubMed Commons,” housed on the often-accessed National Center for Biotechnology Information (NCBI) biomedical research database. PubMed Commons was announced on Oct. 22, 2013. It allows users to comment directly on any of PubMed’s 23 million indexed research articles. For a description of this new PubMed venture, the reader can consult Aimee Swartz’s October 2013 article in The Scientist Magazine, called “Post-Publication Peer Review Mainstreamed.”5
Swartz observes that studies have shown that peer review “does not elevate the quality of published science” and that many published research findings “are later shown to be false.” Part of the problem (also addressed in my May column) is that published works need to be exposed to comment, critiques, refutations, and identification of errors and weaknesses. Although, nominally, scientists are welcome to publish contradictory findings, typically by contacting the authors directly or by writing a letter to the journal’s editor, these are lengthy processes that “likely will never be heard or seen by the majority of scientists.” Thus, “most scientists do not participate in formal reviews.”
Although a small number of scholarly journals have launched online fora for scientists to comment on published materials, there is inconvenience to scientists in commenting journal by journal. If one wants to comment on a paper in the journal “Nature,” one has to go to the Nature site, find the paper and comment. If it is a PLOS paper, one has to go to the PLOS site. These attempts are major investments in time, “particularly when people may never see the comments.”
The several scientists behind development of PubMed Commons were frustrated by the inefficiencies and the unavailability of published criticism of science and technical papers. The Commons “allows users to comment directly on any of PubMed’s 23 million indexed research articles.” Such an organized post-publication peer review system could help “clarify experiments, suggest avenues for follow-up work and even catch errors,” said Stanford University’s Rob Tibshirani, one of the Commons developers and a professor of health research and policy and statistics. The post-peer review “could strengthen the scientific process.” Approximately 2.5 to 3 million people access the online resource each day. Researchers thus may have a resource to check out whether published papers have stimulated objections or controversy or, perhaps, have been retracted.
Haack’s 2007 law review article elaborates many of the limitations inherent in peer review identified in my columns. Her article sketches the origins of and many roles peer review now plays; the rationale for pre-publication review and its shortcomings as a quality control mechanism; the changes in science and scientific publication that have put the peer-review system “under severe strain”; recent examples of flawed or even fraudulent work that passed peer review; and the role peer review ought to play in courts’ assessments of “reliability.”
Some persons are “tempted to exaggerate” regarding the virtues of pre-publication peer review. Instead of viewing it as a “rough-and-ready preliminary filter,” some consider it a “strong indication of quality.” But, in reality, “the system now works very imperfectly.”6 Peer review cannot be expected to “guarantee truth, sound methodology, rigorous statistics, etc.” Scientific editors have stressed that they and their reviewers “have no choice but to rely on the integrity of authors.”7 I would add that when the author is not present to testify and be cross-examined, the testifier’s parroting of the hearsay can create a testimonial integrity gap that should signal gatekeeping courts to be cautious.
Citing a noted editor, Haack describes the review process roughly like this: An editor classifies articles into self-evident masterpieces, obvious rubbish, and the remainder as needing careful consideration. The latter is the large majority. The editor then chooses one or two reviewers to look at each paper selected with a checklist against which to check for aspects of style, presentation and certain kinds of obvious error. The reviewers are given a time limit—often no more than two weeks—to respond with their assessment and recommendation. Reviewers “spend an average of around 2.4 hours evaluating a manuscript.” Many journals don’t check the statistical calculations in accepted papers and reviewers are in no position to repeat authors’ experiments or studies, which ordinarily have taken a good deal of time and/or money. Acceptance rates vary. Where the acceptance rate is low, most of the rejected papers submitted to the “most desirable” journals eventually appear in some lower-ranked publication. A paper “may have been rejected by ten or twenty journals before it is finally accepted.”8
With more and more papers submitted to more and more journals, the quality of reviewers and the time and attention they can give to their task “is likely to decline.” Prestigious journal editors have expressed major concerns. Richard Smith, editor of The Lancet, wrote that peer review is “expensive, slow, prone to bias, open to abuse, possibly anti-innovatory and unable to detect fraud.” Drummond Rennie, of the Journal of the American Medical Association (JAMA) wrote: “there seems to be no study too fragmented, no hypothesis too trivial, no literature citation too biased or too egotistical, no design too warped, no methodology too bungled, …no argument too circular, no conclusion too trifling or too unjustified, and no grammar or syntax too offensive for a paper to end up in print.”9
Haack advises: The fact that a work has passed pre-publication peer review is “no guarantee that it is not flawed or even fraudulent; and the fact that it has been rejected by reviewers is no guarantee that it is not an important advance.” Publication does, in the long run, make the article available for the scrutiny of other scientists. This increases the likelihood that eventually any serious methodological flaws will be spotted.10 Haack’s discussion of how this all impacts upon the quest for “reliability” in the courtroom is too lengthy to review here. But she posits a “whole raft of questions” lawyers should ask that might throw light on the significance of publication in a peer-reviewed journal.11 These can be of value to litigators preparing to challenge the hearsay article.
The courts’ task is to gatekeep expert testimony to ensure that scientific evidence is relevant and reliable before it is ruled admissible. Anything less obscures the search for the truth and distorts the justice system. Somehow, the professionally-reliable-hearsay exception—permitted only because it is supposed to be trustworthy—has morphed into a “trial by literature” stampede in which expert testifiers use all manner of hearsay articles to quote or to bolster their testimony. Often, the magic words “peer review” are flashed as a talismanic admissibility-gate-opener.
Sometimes, the tactic works. The search for the truth deserves better, however. Litigators have been furnished with abundant information about peer review’s shortcomings. Armed with such knowledge, they can fashion compelling advocacy. A battle over reliability can dictate the lawsuit’s outcome.
Michael Hoenig is a member of Herzfeld & Rubin.
1. M. Hoenig, NYLJ, May 12, 2014, p. 3 (also available on LEXIS).
2. 509 U.S. 579, 593 (1993).
3. See M. Hoenig, “Testifying Experts and Scientific Articles: Reliability Concerns,” NYLJ, Sept. 16, 2011, p. 3 (citing prior articles on experts’ use of unreliable hearsay and scientific papers questioning the reliability of biomedical articles, and reporting serious shortcomings even in those that were peer reviewed); “Gatekeeping of Experts and Unreliable Literature,” NYLJ, Sept. 12, 2005, p.3. The articles are also available on LEXIS.
4. Susan Haack, 36 Stetson L. Rev. 789 (Spring 2007).
5. Aimee Swartz, “Post-Publication Peer Review Mainstreamed,” The Scientist Oct. 22, 2013), http://www.the-scientist.com/?articles.view/articleNo/37969/title/Post-Publication-Peer-Review.
6. Haack, supra n. 4, 36 Stetson L. Rev. at 796.
7. Id. at 797.
8. Id. at 800.
9. Id. at 802.
10. Id. at 808-809.
11. Id. at 814-815.