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Fabrication of evidence in asbestos litigation

We’ve seen some recent attention to a major problem in asbestos litigation concerning the fabrication of evidence by defense experts. In a recent editorial, “Data Sharing, Federal Rule of Evidence 702, and the Lions in the Undergrowth” the editor in chief of the Annals of Occupational Hygiene, Trevor Ogden, discusses the sharing of occupational exposure data, and the very real possibility that published data may be misinterpreted by those with commercial interest.

Ogden explains how Federal Rule of Evidence 702, which encourages expert witnesses to get their testimony material into peer-reviewed journals, has led to the manipulation of scientific research. The notes for the rule contain a checklist for courts to apply to expert evidence, including whether the experts’ “technique or theory has been subject to peer review or publication.” This has resulted in the creation of “vanity” journals whose primary function is to polish up bad science for use in lawsuits. There is no shortage of “scientists” willing to manufacture doubt, if the price is right.

Recently, it was revealed that the Australian branch of publishing giant Elsevier published six journals between 2000 and 2005 that were secretly sponsored by pharmaceutical companies: the Australasian Journal of General Practice, the Australasian Journal of Neurology, the Australasian Journal of Cardiology, the Australasian Journal of Clinical Pharmacy, the Australasian Journal of Cardiovascular Medicine, and the Australasian Journal of Bone & Joint [Medicine].

Michael Hansen, CEO of Elsevier’s Health Sciences Division, admitted this breach, and issued the following statement:

“It has recently come to my attention that from 2000 to 2005, our Australia office published a series of sponsored article compilation publications, on behalf of pharmaceutical clients, that were made to look like journals and lacked the proper disclosures. This was an unacceptable practice, and we regret that it took place.”

A multi-million dollar industry has been created to serve industry at the expense of public health and to the detriment of victims’ rights. One would hope these abuses stop, but until they do, we will continue to investigate these abuses as we take depositions of these dishonest experts.

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