Games Experts Play
By David V. Dilenschneider – February 21, 2013
Have you researched the expert’s seemingly impressive educational background? Check. Verified the claimed licensure and certifications? Check. Conducted a disclosure verification under Federal Rule of Civil Procedure 26(a)(2)(B) (comparing the expert’s list of lawsuit involvement to independent data, such as dockets and verdict reports)? Check. Double-checked the expert’s long list of authored works? Well . . .
A list of 56 authored works at the end of an expert’s 10-page, detailed curriculum vitae (CV) is enough to cause almost any practitioner’s eyes to glaze over. Yet, experienced litigators know that thoroughly researching an expert’s claimed credentials oftentimes includes poring through that list with a critical eye, looking for exaggerations, lies, or omissions that could be used to discredit.
A brief caveat. The vast majority of experts have CVs that are beyond reproach, accurately reporting key components of their professional lives, including their authored works. Accordingly, in-depth research—which takes time and, consequently, costs money—may reveal nothing amiss. Nonetheless, on occasion, such research may reveal valuable information. And just one aspect of that research is double-checking the list of authored works, based on an understanding of the games some experts “play” with that list.
Did the Expert Actually Write the Articles?
A disturbing trend is emerging—experts taking credit for articles written (either entirely or predominantly) by others. For example, a pharmaceutical company may have a professional writer draft a paper and then submit it to a professional in the field for review. After any necessary revisions are made, that professional (a.k.a. “the expert”) then claims authorship, without crediting the actual writer.
This practice of ghostwriting can be used by individuals to enhance their claimed expertise: “[Ghostwritten articles] are often used in litigation to support the manufacturer’s arguments about a drug’s efficacy and safety, or to establish a record of scientific acceptance for Daubert purposes, or to credentialize an expert witness.” Simon Stern & Trudo Lemmens, “Legal Remedies for Medical Ghostwriting: Imposing Fraud Liability on Guest Authors of Ghostwritten Articles,” 8 PLoS Med. No. 8 (Aug. 2, 2011).
Far-fetched? Unbelievable? Search Google for “Efficacy of paroxetine in the treatment of adolescent major depression”—a paper published in the July 2001 issue of the Journal of the American Academy of Child and Adolescent Psychiatry (Vol. 40, No. 7, 762–72). One of the retrieved websites notes that the paper was “published . . . with the help of [a] ghostwriter.” See Project on Gov’t Oversight, POGO Letter to NIH on Ghostwriting Academics (Dec. 22, 2010); see also Carolyn Beeler, “Ghostwriting Can Haunt Medical Journals,” Newsworks, July 14, 2011.
In 2009, journalists for the Milwaukee Journal Sentinel documented a similar ghostwriting incident. They discovered that the named author of a paper titled “Inconsistency in Epidemiologic Findings on Postmenopausal Hormone Therapy and Breast Cancer” did not actually write the paper. According to the article, the professor (from Oregon Health Sciences University) had thanked the ghostwriter in an email: “You did a super job of writing this paper—succinct and makes the points very well.” When questioned about the incident, the professor defended the practice of ghostwriting, stating “[t]here’s noting dishonest about it” and later “[i]f you don’t like the way it works, that’s your business.” John Fauber & Meg Kissinger, “Side Effects—Are Doctors’ Loyalties Divided? UW Linked to Ghostwriting,” J. Sentinel (Milwaukee), Jan. 25, 2009. That same professor has served as an expert witness in several lawsuits, including Rush v. Wyeth, No. 4:05cv497 (E.D. Ark.); In re Union Pacific Railroad Employee Practices Litigation, No. 8:03cv437 (D. Neb.); and Macy v. Blatchford, No. 9407-04746 (Multnomah Cnty., Or.).
The New York Times has reported about yet another incident, involving an associate professor at the University of New South Wales. As noted in the article, “[pharmaceutical] executives suggested that [the professor] write such a paper in 2000, according to the documents, and had the outline and draft manuscript written for him.” Duff Wilson, “Drug Maker Said to Pay Ghostwriters for Journal Articles,” N.Y. Times, Dec. 12, 2008.
Ghostwriting occurs because the process is easy. A supervisor of writers at an organization that performed ghostwriting wrote the following in an email sent to a prospective “author”:
The beauty of this process is that we become your postdocs[.] . . . We provide you with an outline that you review and suggest changes to. We then develop a draft from the final outline. You have complete editorial control of the paper but we provide you with the materials to review/critique.
See Ed Silverman, “Boo! Wyeth and Its Ghostwriting Practices,” Pharma Blog (Sept. 8, 2010).
But the incongruity of the process bothered the contacted author: “The author was puzzled over the concept of authoring, but not writing a paper.” Id.
A ghostwritten work may be one that the expert, in fact, stands behind, even if it was written by someone else. But for that expert to claim sole authorship is misleading.
Even if the Expert Did Write the Articles, Is Something Amiss?
Even if all the claimed publications check out—they were, in fact, written by the expert—a researcher’s keen eye might still spot something that doesn’t quite seem right. Toward the end of the 2010 documentary Inside Job, about the worldwide meltdown of the financial markets in 2007–2008, a professor from Columbia University is interviewed about a paper he cowrote in 2006. The paper, titled “Financial Stability in Iceland,” recounted the sound economic fundamentals of Iceland. During the interview, Charles Ferguson asks the professor about a discrepancy found on Ferguson’s version of the professor’s CV. Ferguson notes that the professor’s post-crash CV has a different title for the paper: “Financial Instability in Iceland.” The professor responds, “Oh. Well, I don’t know, if, itch-, whatever it is, is, the, uh, the thing—if it’s a typo, there’s a typo.” See Screenplay of Inside Job at 64.
The difference in titles could have legitimately been a typo—as the information was transcribed (perhaps even by the professor’s assistant), a mistake was made, and the difference between “stability” and “instability” was not picked up by a spell-check program. It happens. However, the change is such that it does seem to make the professor look prescient and, perhaps, more of an expert. A savvy researcher, coming across that title in the professor’s post-crash CV and reflecting on it, might pause and do a double-check.
What Authored Works Are Not Included in the List?
Many experts author numerous works, so whether the expert in question has divulged all those authored works on his or her CV should be considered. Federal Rule of Civil Procedure 26(a)(2)(B)(iv) requires that an expert disclose to the opposing side “the witness’s qualifications, including a list of all publications authored in the previous 10 years[.]” Accordingly, a vague or incomplete disclosure is insufficient.
Recently, a court made just such a determination. In Tactical Stop-Loss LLC v. Travelers Casualty and Surety Co., 2010 U.S. Dist. LEXIS 8304 (W.D. Mo. 2010), the expert’s CV merely stated “various and occasional articles and op-ed pieces between March of 2001 and January 2005. Exact titles and dates unknown.” The court struck the expert’s testimony because the disclosure failed to comply with the “express and mandatory requirements of Fed. R. Civ. P. 26(a)(2)(B)” and because the expert never cured the deficiency even after notified of it. Id. at *7; see also Hoss v. UPS, 2010 U.S. Dist. LEXIS 15168 (D. Idaho 2010) (motion to exclude and strike an expert’s report granted for failure to include a résumé or list of cases).
Think about it. If an expert has previously written a paper that contradicts the conclusions to be made while representing the opposing party in a pending lawsuit, it is possible that that expert will conveniently omit that paper from his or her disclosure to opposing counsel.
Has the Expert Repurposed Any of the Articles?
Being an expert witness can be lucrative—if you can get the work. But an individual with a less-than-robust publishing history can be hampered in his or her efforts to be retained. Thus, it is an understandable temptation for such an individual to increase his or her list of authored works through a simple “trick”: repurposing. Simply put, in an effort to bolster their credibility, some experts have been known to take one of their authored works that has been published by a particular organization, change the title of that paper, and then submit it to a second, third, and even fourth organization for publication.
In a motion in limine in a federal lawsuit, counsel for State Farm related just such a ploy, pointing out that “[u]nder close examination, [the expert] revealed the ‘seven’ papers are really five as two in the list are basically repeats with only minor changes. [The expert] testified the second and third papers listed are essentially the same as are the fourth and fifth.” See Motion in Limine, White v. State Farm Fire & Cas. Co., No. 07-1871, 2009 U.S. Dist. Ct. Motions LEXIS 82228 (W.D. La. Dec. 30, 2009). The court, in response, was similarly puzzled: “The court is just as concerned with [the expert’s] testimony that he has published at least seven (7) or eight (8) papers that have been ‘peer reviewed.’ Plaintiff has been able to only present evidence of three (3) papers[.]” White v. State Farm Fire & Cas. Co., 2010 U.S. Dist. LEXIS 19082, at *14–15 (W.D. La. Mar. 2, 2010).
It is very tempting for a practitioner to be impressed by an expert’s long list of claimed authored works and simply leave it at that. However, in some instances it may make sense for a researcher to verify authorship, uncover omissions from the list, and track down instances of duplicate papers with different titles and publishing organizations. In addition—or at the very least—a litigator should inquire while deposing an expert as to his or her list of publications, with an eye toward eliciting a revealing, or even evasive, response to be followed up with further research.
Keywords: litigation, expert witnesses, authored works, credentials, curriculum vitae, Federal Rule of Civil Procedure 26(a)(2)(B), disclosure, ghostwriting
David V. Dilenschneider is a director of client relations for LexisNexis in the greater Denver area in Colorado.