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Science affects law, but law also affects science. As litigators, we often think about the former; we less often think about the latter.
A recent article in Neurology journal, written by two physicians and two lawyers, bemoans “The impact of litigation on neurologic research.” The article discusses a couple of cases in which litigants have sought to require the disclosure of scientists’ research data, and the article recommends several possible solutions to this perceived problem. Among other things, the authors advocate “comprehensive federal legislation recognizing a research scholar privilege and ensuring that research data are uniformly protected against disclosure in all states.”
This is another one of those issues about which we really can’t speak publicly. We’ve been involved in cases where litigants (plaintiffs, of course, given what we do for a living) improperly relied on harebrained scholarship, and the only way to protect our clients’ interest was to obtain the underlying data and discredit the research. And we’ve been involved in cases in which litigants (our defendant-clients, of course, given what we do for a living) were legitimately relying on impeccable scholarship, and plaintiffs improperly sought disclosure of the underlying research data to discredit the results. Well, you get our drift, anyway, and you see why we’re not able to speak publicly on this topic.
But we can safely say these two things: First, the law of unintended consequences applies fully to judicial precedents. Now that Daubert is the law of the land, we have seen recidivist expert witnesses planning how to get their cockamamie theories in print, solely to increase the chance that silly opinions would become admissible in court. And we can certainly imagine Daubert distorting the natural progress of science on both sides of the “v.”
Second, the law must balance, on the one hand, the need for scientific research that is unfettered by the burden of possible discovery in litigation with, on the other hand, the due process rights of litigants who may be adversely affected by inaccurate research results. That may not be an easy balance to reach, but it is surely a subject that demands intelligent thought and a good-faith effort to reach a fair solution.