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'Unreliable ' Articles, 'Trial by Literature ' Revisited

By Michael Hoenig
January 31, 2015

The reliance upon, and use of, unreliable hearsay literature by expert testifiers is a challenging topic that cuts across the spectrum of complex litigation. Often, the literature is comprised of technical or scientific articles published in some journal with a claim that the published work product has been “peer reviewed.” Earlier articles have discussed the reliability of such out-of-court articles not authored by the testifier. Due to the increasing trend to “trial by literature,” it would be helpful to revisit the subject. Rather than diminish, the problems seem to have exacerbated.

In particular, there has been a global proliferation of journals whose quality review practices function differently from the classic model we used to know. Many so-called “open-access” journals that accept articles charge the author a fee. That dynamic seems to create potential conflicts of interest. Many of these journals publish articles without peer review. Others do a bogus peer review “sting” operation, like when a Harvard science journalist sent a science article to hundreds of journals. The shocking results are discussed below ' after presentation of some background information and findings.

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