April 6, 2006
Litigation & Science
I again direct your attention to this week's Debate Club at Legal Affairs, with Michael Martinez and Jay Kesan, and not just because they're talking about my piece (though I naturally consider that a plus!). It really is an insightful discussion into some of the incentives and problems with the intersection of litigation and science.
A couple of brief excerpts:
Martinez: Having said all that, I think we do have some common ground. We both agree that some parties on both sides of the "v." try to get a leg up in litigation by funding studies that they hope will help their side. My view, again, is that there is nothing wrong with that given the safeguard criteria and gatekeeper functions built into the Daubert process.
Kesan: That said, I am in agreement with you that the parties in a litigation are there to win, not to adhere to good scientific norms. Hence, there is a need to craft additional rules to reduce opportunistic conduct by both sides with full disclosure rules and complete transparency. For instance, I would propose that there should be full disclosure of any direct or indirect involvement by any party in any study that is being relied on by a party in a litigation. Such disclosure should not be restricted to financial support and should include disclosure of other support for a study in the form of materials, supplies, performance of testing, and the like. These rules should be accompanied by significant judicial sanctions. If a party's involvement in a study is not disclosed in a timely fashion and is discovered later, the studies at issue should be excluded by the court and perhaps costs to the other side related to analyzing and responding to that study should be awarded.
The editors have been kind enough to post a summary of and link to my piece as well.
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