Judge Alsup’s order requiring disclosure of money paid to bloggers and journalists is only a recent manifestation of a misguided attempt to control conflicts of interest among non-parties. See Can a Court Engage in Abusive Discovery? (Jan. 10, 2013). Judge Alsup’s curious orders can be traced to encouragement in the Federal Judicial Center’s “pocket guide” to managing an MDL for products liability cases. Barbara Rothstein & Catherine Borden, Managing Multidistrict Litigation in Products Liability Cases: A Pocket Guide for Transferee Judges (2011). Link or download This FJC publication suggested that an MDL court should unleash discovery against authors of published works for evidence of bias, citing an MDL trial court that ordered parties to produce lists of payments to authors of articles relied upon by expert witnesses. Id. at 35 n.48 (citing In re Welding Fume Prods. Liab. Litig., 534 F. Supp. 2d 761 (N.D. Ohio 2008).
The United States Supreme Court has also encouraged hostility to party-funded research and writing. In Exxon Shipping Co. v. Baker, 554 U.S. 471, 501 (2008), the Court struck down a large punitive damage award. Justice Souter, writing for a divided court, noted in footnote 17:
“The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous ‘mock juries’, where different ‘jurors’ are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L.Rev. 1139 (2000); Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of Plaintiff’s Requests and Plaintiff’s Identity on Punitive Damage Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 Yale L.J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it.”
Id. at n.17; see also Conflicts of Interest, Footnote 17, and Scientific McCarthyism. The glib dismissal of behavioral research on a relevant topic by the Supreme Court was remarkable. Professor Sunstein, is a professor at University of Chicago, and formerly served the Administrator of the White House Office of Information and Regulatory Affairs, in President Obama’s administration. Professor Kahneman, a Nobel Laureate, is Professor Emeritus in Princeton University. Professor W. Kip Viscusi has been one of the most prolific writers about and investigators of punitive damages. Justice Souter’s footnote might be interpreted to impugn the integrity of their research by virtue of their corporate sponsorship. More important, Justice Souter’s opinion fails to explain why the Court would not look beyond funding to the merits of the funded research. Courts consider arguments of the parties’ counsel, although of course, the parties compensate their counsel for marshalling facts, and formulating and presenting arguments. Perhaps Justice Souter would have been justified in announcing that he and his judicial colleagues had looked at Sunstein’s research more closely than other cited research. The wholesale dismissal of relevant evidence based upon funding is irrational.
A new article posted on the Social Science Research Network explores the misdirection and distortion created by the single-minded focus on financial conflicts of interest. Richard S. Saver, “Is It Really All About The Money? Reconsidering Non-Financial Interests In Medical Research,” Journal of Law, Medicine & Ethics (forthcoming 2013).
Richard Saver is a professor of law at the University of North Carolina School of Law, and also holds appointments in the UNC’s School of Medicine. Saver describes how conflicts of interest (COIs) have largely and incorrectly been reduced to financial conflicts. For instance, in 2011, the National Institutes of Health (NIH) addressed only financial issues when it promulgated rules for managing conflicts of interest in the field of medical research. Department of Health and Human Services, “Responsibility of Applicants for Promoting Objectivity in Research for Which Public Health Service Funding is Sought and Responsible Prospective Contractors,” 76 Fed. Reg. 53256 (Aug. 25, 2011). Several commentators advocated regulation of non-financial COI, but the agency refused to include such COIs within its rules. Id. at 53258. The Institute of Medicine (IOM), in its monograph on COI in medicine, similarly gave almost exclusive priority to financial ties. Institute of Medicine, Conflict of Interest in Medical Research, Education, and Practice (Washington, D.C.: The National Academies Press, 2009).
Saver argues that the focus on economic COI is dangerous because it instills complacency about non-financial interests, and provides a false sense of assurance that the most serious biases are disclosed or eliminated. Saver’s review of retractions, frauds, and ethical lapses in biomedical research suggests that non-financial interests, such as friendships and alliances, institutional hierarchies, intellectual biases and commitments, beneficence, “white-hat” advocacy, as well as the drive for professional achievement, recognition, and rewards, all have the potential to complicate, distort, and sometimes undermine scientific research in myriad ways. The failure to recognize serious non-economic COIs and biases, and the reluctance to treat them differently from financial COIs endangers the validity of science. Not only are these non-financial threats ignored, but financial interests receive undue attention, resulting in the erosion of public trust in scientific research that is sound.
Professor Saver’s caveats about COI moralism apply beyond biomedical research. The Exxon Shipping case, the MDL Pocket Guide, and Judge Alsup’s opinion on disclosure of payments to journalists and bloggers signal that courts are well on their way towards selectively and arbitrarily screening out evidence and arguments based upon sponsorship. What is needed is a whole-hearted commitment to consider and analyze all the available data. Time to shed the blinders.
