In my May and June columns,1 I discussed some of the problems presented in litigations that essentially boil down to “trial by literature,” where experts rely on hearsay articles to create or fortify their opinions. I reported that many articles are not truly peer reviewed. Further, I elaborated massive shortcomings in the peer review process even when it is performed.
The instant column demonstrates how painstaking the “gatekeeping” task of a judge is when an expert, even one well qualified in the scientific field, expresses opinions and uses methods that depart from accepted principles and methodology recognized by the relevant scientific community. The gatekeeping challenge is particularly onerous when the field in question reflects publication of numerous technical articles or studies that may allow the expert to “cherry-pick” here and there in order to slap together a litigation opinion. Everyone should be on “red alert” in “trial by literature” scenarios.
