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Here is a brief and happy follow up to our stupid expert tricks redux post.  That post by Bexis involved a purported talc plaintiff-side expert who authored what could charitably be called a “junk science” medical article (now two such articles) on cosmetic talc causation of mesothelioma.  This “research” (we grin as we write that word) was based on 33 anonymous asbestos claimants with, purportedly, “no known asbestos exposure” other than talc.  The prior post discussed how that basis for the article appears to be … well, there’s no polite way to say it … false.  

Last week we received a copy of In the Matter of Johnson & Johnson et al. v. Northwell Health Inc., 2024 WL 4438319(N.Y. Ct. App., 1st Dept. Oct. 8, 2024), a to-be-published case, in which the New York Appellate Division ordered the plaintiff expert (and her employer at the time) to comply with discovery revealing the names and information about all 33 of the subjects of her “scholarly” articles.  (Those quotation marks are appropriate because the word was used in the court’s opinion, but we apply them out of sheer irony and defense-hack surliness.)  This appellate decision overruled the lower court’s denial of a petition to enforce an out-of-state subpoena. The lower court quashed the subpoenas.  The doctor’s lawyers tried to save that result, and shield the subject information, by arguing that the lower court applied the correct legal standards and acted within its proper discretion. The appellate court disagreed.   

The appellate court had no problem ruling that the information sought was “clearly relevant” to the underlying personal injury action.  After all, the information went “directly to the credibility of these articles, which speak to the central issues in dispute and are relied on by three testifying experts, and whose author was to testify as an expert until she voluntarily withdrew.”  That withdrawal of the expert was clearly an effort to keep the lid on the information about the 33 subjects.  It didn’t work.

The expert’s arguments to quash the subpoena did not impress the appellate judges. First, the information sought was not HIPAA protected.  The subjects were never the good doctor’s patients. Second, the federal “common rule” involving protection of human research subjects did not apply, because of the exception for “secondary research based on publicly available identifiable private information.”  The burden was on the party opposing the subpoena to prove that the information sought had been produced in the underlying litigations subject to a protective order.  No such proof was forthcoming.  Third, production of the information “would not be unduly burdensome, nor is it likely to have a chilling effect on future medical research.”  The information sought “consists of just a few pages, is easily located, does not concern ongoing research, and does not reveal the unpublished thought processes of the researchers.”  Further, disclosure would be unlikely to “deter future research participation” because the subjects did not agree to be research subjects; rather their information had been previously released via public litigation. 

Score one for transparency and fairness.  Score one against junk science.  Praise is due to both the defense lawyers for unearthing this tawdry story of questionable science, and to the New York Appellate Division for allowing that story to be told.