March 25, 2008
Pfizer Denied Discovery of JAMA Confidential Peer-Reviewer Comments in Celebrex and Bextra Litigation
As the Wall Street Journal reports -- see Pfizer Is Denied Access to JAMA Files, by Thomas M. Burton -- a magistrate judge in federal district court in Chicago has denied Pfizer's request to obtain confidential JAMA peer-reviewer comments in connection with the litigation involving Bextra and Celebrex. Such peer-reviewer comments on a study can generally be valuable to defendants questioning a scientific study in connection with a scientific evidence challenge under Daubert, as well as for criticisms at trial if the Daubert evidentiary challenge fails. Indeed, understanding peer-reviewer misgivings may be essential to placing in proper perspective the publication of a study in a prestigious scientific journal. On the other hand, scientific journals may assert an interest in developing scientific publications without the specter of litigation-driven discovery at every turn. Given the tremendous implications of the science underlying a mass tort for plaintiffs and defendants, I would be inclined to tread a middle ground -- allow limited discovery that vindicates the law's need for reliable scientific evidence, but does not unduly burden the medical journals in their important work.
In an editorial in JAMA -- Preserving Confidentiality in the Peer Review Process -- Dr. DeAngelis and JAMA's counsel, Joseph Thornton, provide more details on the dispute and decision. In addition, here's a related post on the dispute from Pharmalot, and another post from TortsProf Blog. For more depth, take a look at the following article by Professor Bill Childs (Western New England): The Overlapping Magisteria of Law and Science: When Litigation and Science Collide, Nebraska L. Rev. (2007).
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