Litigation-Generated Science: Why Should we Care?

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Research | Mini-Monograph

Litigation-Generated Science: Why Should we Care?

I. Boden and Ozonoff

Department of Environmental Health, Boston University School of Public Health,

Boston, Massachusetts, USA

Abstract

Background: In a 1994 Ninth Circuit decision on the remand of Daubert v. Merrell

Dow Pharmaceuticals, Inc., Judge Kosinski wrote that science done for the

purpose of litigation should be subject to more stringent standards of

admissibility than other science.

Objectives: We analyze this proposition by considering litigation-generated

science as a subset of science involving conflict of interest.

Discussion: Judge Kosinski's formulation suggests there may be reasons to treat

science involving conflict of interest differently but raises questions about

whether litigation-generated science should be singled out. In particular we

discuss the similar problems raised by strategically motivated science done in

anticipation of possible future litigation or otherwise designed to benefit the

sponsor and ask what special treatment, if any, should be given to science

undertaken to support existing or potential future litigation.

Conclusion: The problems with litigation-generated science are not special. On

the contrary, they are very general and apply to much or most science that is

relevant and reliable in the courtroom setting.

Key words: biomedical research, conflict of interest, Daubert, litigation, peer

review, regulatory science, science and litigation, scientific evidence. Environ

Health Perspect 116: 117–122 (2008) . doi:10.1289/ehp.9987 available via

http://dx.doi.org/ [Online 7 November 2007]

http://www.ehponline.org/docs/2007/9987/abstract.html

This article is part of the mini-monograph " Science for Regulation and

Litigation. "

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