Civil Liberties

Attorney Sues Scientists Because Their Paper Made It Harder To Win Suits

For the "First Amendment? What's that?" files.


If a scientific paper has made it harder to win lawsuits, what's an attorney to do? Why, sue the scientists and their publisher, of course. Walter Olson tells the tale:

Some newborns are found to be suffering from brachial plexus injury, a type of harm to a child's shoulder, arm, or hand that in a minority of cases results in permanent disability (so-called Erb's palsy or a number of related conditions). A large volume of birth-injury litigation goes on as a result, in part because courts have tended to accept the idea that the only medically recognized cause of those conditions in newborns is excessive or traumatic use of physical force by clinicians ("traction"). In 2008, however, the American Journal of Obstetrics & Gynecology published a case report of a delivery in which an infant was found to be suffering such injury although the physician by her own account had not applied any excessive traction during the birth. If instead natural forces of labor could cause the dislocation resulting in the condition, many lawsuits might rest on shakier ground. Since then, defense lawyers have cited the report—by Henry Lerner of Harvard Medical School and Eva Salamon of the Bond Clinic in Winter Park, Fla.—in litigation.

A Boston lawyer who claims to have debunked the Lerner-Salamon case study has proceeded to sue its two authors, Elsevier—which publishes ACOG and many other medical and scientific journals—and Dr. Salamon's clinic for publishing and refusing to retract it. The damages are said to be $3 million each to two families of infant plaintiffs whose lawsuits did not succeed allegedly because of the case report.

I have no informed opinion on the accuracy of the paper. I do know, though, that under the First Amendment the proper response to an inaccurate paper is to criticize it, not to suppress it. If experts are citing the study in court, you can ask other experts to criticize it in court. To instead file a suit demanding a retraction is just legal thuggery.

The good news is that a district court dismissed the case. The bad news is that the suit isn't dead yet: It's on appeal to the First Circuit.