| Litigation-Generated Science:
Why Should we Care? Leslie I. Boden and David 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 Alex 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]
This article is part of the mini-monograph "Science for Regulation and Litigation." Address correspondence to L.I. Boden, Department of Environmental Health, Boston University School of Public Health, 715 Albany St., Boston, MA 02118 USA. Telephone: (617) 638-4635. Fax: (617) 638-4857. E-mail: lboden@bu.edu We thank conference participants S. Krimsky and S. Jasanoff in particular, for their helpful feedback. This work was supported in part by the Project on Scientific Knowledge and Public Policy (SKAPP) . Major funding for SKAPP is provided by the Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Products Liability Litigation. D.O. appears as a witness in toxic in toxic tort cases. L.B. declares he has no competing financial interests. Received 13 December 2006 ; accepted 18 April 2007.
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