There is a trend toward more “trial by literature,” particularly in pharmaceutical drug, toxic tort and complex products litigation. Experts increasingly testify about, interpret and extrapolate from articles, yet the authors are unavailable to be cross-examined about reliability of the data presented or limits on conclusions the testifiers should draw from the work product. Indeed, many experts opine well beyond data and findings in scientific literature. As a result, significant concerns may exist about the reliability of the scientific testimony and evidence. Indeed, sober information from science journalists themselves indicates that even peer-reviewed articles may be tainted by unreliability factors that remain obscure.
Peer review is seriously fallible. This may raise questions about reliability of the article itself or perhaps some of its data and conclusions. Courts are tasked to allow only evidence that is relevant and reliable. Thus, in “trial by literature” litigation courts must step up their gatekeeping scrutiny to assure reliability.
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