Suppression of Publication as a Litigation Tactic

Faithful readers will remember the saga of the Santa Clara trial in which workers alleged that their cancers were caused by exposure to chemicals in IBM "clean rooms." (See our posts of 10/7/03, 10/13/03, and 2/27/04.) To summarize, a jury rendered a verdict for IBM after the trial judge excluded testimony from Boston University epidemiologist Dr. Richard Clapp, who found excess cancer rates among IBM employees based on data from IBM's "corporate mortality files."

The San Jose Mercury News (registration required) now reports that IBM's lawyers have interceded to help ward off publication of Dr. Clapp's findings in a medical journal. IBM's counsel are invoking a confidentiality order pursuant to which plaintiffs in the Santa Clara trial obtained the data.

At a minimum, the IBM lawyers' intervention should cause judges deciding on the admissibility of expert causation testimony in future IBM "clean room" trials to regard with skepticism any argument by IBM based on the alleged want of peer review and publication. More broadly, the invocation of protective orders to thwart publication of unwelcome scientific research seems contrary to the norms of scientific inquiry that the defense bar is quick to extol in other contexts. If IBM's lawyers were really confident that Dr. Clapp's work could be blithely dismissed (they call it "junk science"), wouldn't IBM profit by permitting the work to undergo the crucible of peer review, publication, and scholarly appraisal?

Update: Here's a link to the same Mercury News article at SiliconValley.com, where registration is not required.