Friday, March 21, 2008

Peer Review & Discovery

I'm traveling (and writing this in a dark hotel room with the rest of my family asleep, so forgive incoherence), and so haven't been following it all carefully, but In The Pipeline notes, in connection with Pfizer's efforts to take discovery into the peer review process at the NEJM, some developments.

A fair amount of commentary has suggested that Pfizer is purely fishing and/or purely an attempt to scare reviewers off. Perhaps, but it's worth remembering (as I argue here (e-mail me for a final reprint)) that much of what happens in the peer review process can be quite relevant to litigation (tending to lead to admissible evidence) -- and peer reviewers, and journals, are just as much subject to discovery as, say, doctors' records.

This is all the more so if the methodology used in the article is at issue in the litigation, in which case the mere fact of peer review makes testimony based on that methodology more likely to be admitted under Daubert. All of the Daubert factors are fact issues; thus, discovery related to them is appropriate. (If the peer review is done poorly and the peer reviewers' notes indicate that, then that factor should get less weight, for instance.) After losing the first subpoena issued, Pfizer has narrowed its request in a way that suggests to me that they are in fact focused on Daubert issues, as they are just asking for peer reviewers' comments.

All that said, as again I argue, there are in some cases greater risks in connection with peer review discovery than garden-variety third party discovery, and I propose some protections. But I do not think it appropriate to treat the entire neighborhood of peer review as sacrosanct and immune from the same third-party discovery that the rest of us are subject to. The courts are looking at the requests and, probably appropriately, balancing the hassle compared to Pfizer's interests. Maybe these requests should be granted, maybe they shouldn't, but the outrage seems misplaced.

--BC

http://lawprofessors.typepad.com/tortsprof/2008/03/peer-review-dis.html

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