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Science magazineWhen Scientiﬁ c Research
Legal equality safeguards deliberative process while improving transparency and Legal Practice Collide
R. Camilli, 1 * A. Bowen, 1 C. M. Reddy, 2 J. S. Seewald, 2 D. R. Yoerger 1
ongoing dispute between BP and academic researchers reveal that the U.S. legal system can be exploited to attack scientific research and academic thought when it challenges entrenched interests or beliefs. These legal practices erode the ability of scientiﬁ c research and academics to function properly.
summoned for questioning about “subversive persons” within the United States. He refused to answer questions related to his academic lectures and publications, because they vio-lated his constitutional right to freedom of expression. Sweezy was found in contempt of court and incarcerated. The U.S. Supreme Court overturned this decision in 1957 ( 1).
poenaed confidential documents from an ongoing study of the carcinogenic potential of defoliants known as Agent Orange from researchers at the University of Wisconsin. 22 April 2010, Deepwater Horizon. This oil platform exploded in the Gulf of Mexico, killing 11 people and Dow sought to use preliminary results from causing the largest accidental oil spill in history.
the documents to support its claim that the scientiﬁ c analysis was inconclusive in a sepa- rate legal action against the U.S. Environmen- disaster has led to similar legal confrontation. tal Protection Agency. The researchers were In late April 2010, BP contacted us, a group not parties to the case between Dow and the for data and documents from two published of academic researchers at the Woods Hole government and refused to comply with the Oceanographic Institution (WHOI), request- subpoena. The Federal District Court sided contested these subpoenas, but the Federal ing technical expertise to assess the failed with the university researchers [( 2), para- blowout preventer. We felt an ethical obliga- stating that once the results were published, tion to assist with the disaster response. We the public had an interest in resolving dis- putes that involved the accuracy of the con- and assembled an on-site operations team project there are likely to be false leads clusions ( 3). Subsequent research uncovered to acoustically measure the well’s ﬂ ow rate or problems which will be resolved in the systematic attempts by tobacco companies and to determine the actuation states of the course of the study with no ultimate adverse to impeach scientiﬁ c ﬁ ndings linking health blowout preventer’s shear rams. On 6 May effect on the validity of the study. To force hazards to tobacco use ( 4– 9).
In 2011, as the defendant in a product lia- assessment operation ( 11) in favor of an ulti- by the subpoenas is likely to jeopardize the bility lawsuit, Bayer pharmaceuticals sought mately unsuccessful attempt to deploy a con- study by exposing it to the criticism of those conﬁ dential peer-reviewer comments from tainment dome ( 12). On 23 May 2010, the whose interests it may ultimately adversely a published study. The Federal Court denied affect, before there has been an opportunity Bayer’s request, citing the importance of peer “delays in measurement of the oil ﬂ ow are for the researchers themselves to make sure review to “ensure integrity and reliability in the study is the result of their best efforts.
scientiﬁ c activity and reporting,” stating that response” ( 13). The Coast Guard tasked us the “pillars of a successful review process are with measuring the ﬂ ow rate and delivering 1Applied Ocean Physics and Engineering Department, conﬁ dentiality and anonymity; anything less an independent ﬁ ndings report within 5 days Woods Hole Oceanographic Institution, Woods Hole, MA discourages candid discussion and weakens 02543, USA. 2Marine Chemistry and Geochemistry Depart- ment, Woods Hole Oceanographic Institution, Woods Hole, the process” and that “damage to the peer review process can also undermine efforts to of the ﬂ ow rate but were denied by BP the *Author for correspondence. E-mail: email@example.com improve public health and safety” ( 10).
opportunity to collect ﬂ uids released from 28 SEPTEMBER 2012 VOL 337 SCIENCE www.sciencemag.org the well ( 14), so our preliminary estimate obtained copies of the reviewers’ comments a litigant seeks conﬁ dential documents from only described total volumetric flow rate and subsequent confidential deliberations peer reviewers and editors, there should be ( 15). We later returned to the site and col- among the authors and peer reviewers.
a court-adjudicated ﬁ nding of fact, requiring lected samples ( 14). For more than a year compelling evidence of misconduct before after this, we, along with our colleagues at prepublication materials from academic these materials are surrendered. other academic institutions, provided assis- researchers who were not party to a court case tance at no cost to BP or the U.S. govern- in order to assert that the researchers’ ﬁ ndings ment to develop a theoretically rigorous were contradictory or inconclusive. Like the 1. Sweezy v. New Hampshire, 1957, U.S. Supreme Court.
2. United States v. Allen, in 494 F. Supp. 107. 1980, U.S. model of the well ﬂ uid chemistry and ﬂ ow Bayer product liability case, BP sought access rate. This culminated in two peer-reviewed to peer-review deliberations with the goal of 3. Mount Sinai School of Medicine and American Cancer papers in 2011 ( 16, 17).
limiting its ﬁ nancial liability ( 20). Similar to Society v. American Tobacco Company, R.J. Reynolds Tobacco Company, and Philip Morris, Inc. 1989, U.S. Sec- In late 2011, BP subpoenaed WHOI, the tobacco company cases, BP is alleged to demanding that “any transmission or have suppressed its own ﬁ ndings ( 21) while 4. L. C. Friedman, R. A. Daynard, C. N. Banthin, Am. J. Public exchange of any information, whether orally attempting to publicly discredit similar ﬁ nd- Health 95 (suppl. 1), S16 (2005). 5. H. Gaisch, Re: International Committee on Smoking or in writing, including without limitation Issues—Working Party on Medical Research [internal any conversation or discussion” be surren- Perhaps the most disturbing parallel is to memo] (Philip Morris Incorporated, Neuchatel, Switzer- dered to BP ( 18). BP claimed that it needed the case of Sweezy, because BP has informed 6. T. Grüning et al., Am. J. Public Health 96, 20 (2006). “to advance BP’s and other parties’ under- WHOI of its intention to depose our team of 7. L. Hardell et al., Am. J. Ind. Med. 50, 227 (2007). standing of scientiﬁ c work” ( 19) but also researchers for questioning with the same 8. M. E. Muggli, R. D. Hurt, D. D. Blanke, Nicotine Tob. Res. made public allegations against us that it jeopardy of sanctions that Sweezy faced. portrayed as “not simply one of impeach- Because we are not litigants to the case, having 9. F. A. Rodgman, The Smoking and Health Problem—A Critical and Objective Appraisal (R. J. Reynolds, Winston- ment, but one of integrity, reliability, and chosen to remain independent and impartial (i.e., not serve as expert witnesses), we have 10. Order No. 46 Regarding Bayer’s Motion to Compel Discov- As is common in scientiﬁ c research, our no legal standing in court. Thus, although BP ery From Plaintiffs’ Designated Expert Dr. Lidegaard, In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices analysis evolved, gaining precision over time. has made generalized assertions of miscon- and Product Liability Litigation, MDL-2100 (S.D. Ill. Nov. Our initial calculations drew from a small duct in the Courts’ public record, our oppor- subset of data and used simplifying approx- tunity to challenge these claims is restricted. 11. R. Camilli, Sizing up the BP Oil Spill: Science and Engi- neering Measuring Methods, brieﬁ ng for the Subcommit- imations to enable quick estimation under a The law paradoxically requires that, as nonliti- tee on Energy and Environment of the House Committee tight deadline. Intermediate calculations ben- gants, we must be found in contempt of court on Energy and Commerce, Washington, DC, 19 May, eﬁ ted from chemical composition and ﬁ nal before we are granted legal standing (upon 12. National Commission on the BP Deepwater Horizon Oil calculations from key information about appeal) to defend our work and reputations.
Spill and Offshore Drilling, Deep Water: The Gulf Oil source geometry. All of the earlier estimates Although it is tempting for researchers to Disaster and the Future of Offshore Drilling, Report to the are within the error budget of the ﬁ nal peer- seek the protections used by journalists for President (Commission, Washington, DC, 2011), p. 392.
reviewed calculation, which indicates that conﬁ dential sources and material, journalistic 13. U.S. Coast Guard Research and Development Center, Deepwater Horizon Oil Spill Flow Rate and Characteristics any quantitative differences are statistically privilege claims are tenuous. Unlike attorney- Analysis (Department of Homeland Security, Washington, insignificant. All of these calculations are client and doctor-patient privilege, federal also within the range of values that BP’s own legislation for journalistic privilege is absent.
14. R. Camilli, testimony to National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, Wash- engineering staff calculated and then alleg- edly attempted to destroy ( 21). Furthermore, trial research communities should work 15. R. Camilli, Preliminary Report from the WHOI Flow Rate these estimates are also within the range of together to better align American legal prac- Measurement Group (WHOI, Woods Hole, 2010).
16. C. M. Reddy et al., Proc. Natl. Acad. Sci. U.S.A. published values from multiple independent tice with the deliberative process of science. studies using separate methods of analysis This can be accomplished through new fed- 17. R. Camilli et al., Proc. Natl. Acad. Sci. U.S.A. ( 22– 25). Most important, we promptly sup- eral legislation that protects researchers 18. BP Exploration & Production Inc. and BP America Produc- plied BP with over 52,000 pages of materials, from legal harassment by interests seeking tion Company, Subpoena, U.S. District Court for the Dis- including all the information needed to verify to silence scientiﬁ c inquiry or retribution for publishing independent research ﬁ ndings.
19. Letter from BP to Magistrate Judge Shushan, (Docket No. Legal equality facilitates scientiﬁ c trans- MDL-2179)—Subpoena Served on WHOI (11 April 2012).
20. Letter from BP to Magistrate Judge Shushan (Docket No. duction of additional deliberative and con- parency and accountability. If independent MDL-2179)—Subpoena Served on WHOI (30 April 2012).
ﬁ dential materials because doing so would researchers are drawn into a legal proceeding 21. B. O’Donnell, Federal Bureau of Investigation afﬁ davit compromise independent scientiﬁ c inquiry. and forced to surrender conﬁ dential delib- (U.S. District Court, Eastern District of Louisiana, 2012). 22. T. J. Crone, M. Tolstoy, Science 330, 634 (2010). The Court recognized the principle that we erative documents or submit to deposition, 23. C. M. Oldenburg et al., Proc. Natl. Acad. Sci. U.S.A. asserted, writing in its decision that produc- they should be granted the same legal rights tion of these deliberative documents “could that are afforded to litigants. At a minimum, 24. S. K. Grifﬁ ths, Environ. Sci. Technol. 46, 5616 (2012). 25. M. K. McNutt et al., Proc. Natl. Acad. Sci. U.S.A. 10.1073/ hamper future research efforts”; however, the independent researchers should be granted Court still ordered WHOI to surrender these legal standing to defend their work and repu- 26. Letter from WHOI to Magistrate Judge Shushan (Docket documents to BP “even if the only purpose for tations with the same level of access to legal No. MDL-2179)—Subpoena Served on WHOI (15 March 2012).
the analysis documents is impeachment” ( 27).
discovery as litigants. This should include 27. Order Regarding BP’s Subpoena for Woods Hole’s Analysis Through other legal actions, BP obtained reciprocal subpoena power to examine conﬁ - Documents, MDL-2179 (E.D. La. Apr. 20, 2012) (Docket a prepublication manuscript submission ( 20) dential information held by litigants, as well from the editor for one of the WHOI papers as the right to seek direct legal remedy for ( 17). Through the subpoena, BP has also unsubstantiated allegations. Furthermore, if www.sciencemag.org SCIENCE VOL 337 28 SEPTEMBER 2012
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