Guest Post − Peering Behind The Curtain: Taking A Closer Look At Peer Review And Predatory Journals

This guest post is from long-time friend of the blog Bill Childs, from Bowman & Brooke, who also wishes to thank Elizabeth Haley for research assistance. It's a reworking of a piece on bogus scholarly literature that Bill previously published here. We thought it was both good and relevant enough that we approached Bill with a request to re-run it as a guest post on the Blog, and he graciously accepted. As always, our guest bloggers are 100% responsible for the content of their posts (and here that disclaimer also extends to B&B and its clients), and deserve all the credit (and any blame).

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The Daubert court, in interpreting Rule 702 of the Federal Rules of Evidence, laid out various non-exclusive criteria for consideration in evaluating proposed scientific evidence, one of them peer review. As the Court put it: "The fact of publication (or lack thereof) in a peer reviewed journal...will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised." Daubert v. Merrell Dow Pharms., 509 U.S. 579, 594 (1993). Peer review, or the absence thereof, was mentioned repeatedly by the New Jersey Supreme Court in endorsing Daubert in the recent decision in In re: Accutane Litigation, 191 A.3d 560, 586, 592, 594 (N.J. 2018). Among other things, the Court noted that the plaintiffs' expert had not submitted "his ideas...for peer review or publication," considering that failure to be a strike against his methodology. Id. at 572.

Compared to other Daubert factors (or those described in the subsequent comments to Rule 702), the presence or absence of peer review may seem more binary than other factors - i.e., easier for a court to evaluate - it's either there or it's not, it seems. Not so, either in the traditional sense of peer review or the changing world of things that now get called peer review. Given this perceived simplicity, though, it frequently gets less attention than it deserves. Litigants should think about peer review as being more complex than it appears, and in some specific contexts, additional exploration - whether through discovery into your adversaries' experts, or early investigation of your own potential experts - may make sense.

Daubert vs. Predator

One fascinating consequence of this consideration of peer review in the Daubert context is the potential for experts publishing litigation-related work in what are called "predatory journals" (sometimes also called "vanity publications)." See Kouassi v. W. Illinois Univ., 2015 WL 2406947, at *10-11 (C.D. Ill. May 19, 2015); Jeffrey Beall, "Predatory Publishing Is Just One of the Consequences of Gold Open Access," 26 Learned Pub'g 79-84 (2013); John Bohannon, "Who's Afraid of Peer Review?" 342 Science 60-65 (Oct 4, 2013).

Predatory journals, like the eponymous Predator in the 1987 film and its 2018 reboot, camouflage themselves. They...