Publish an article that undermines lawsuits? See you in court

by Walter Olson on September 18, 2013

A plaintiff’s lawyer is suing a medical journal and two doctors for publishing a case report that makes it harder to win some birth-injury lawsuits.

Here are the details, as reported by Sheri Qualters of the National Law Journal. 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 AJOG 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. The lawsuit invokes a Massachusetts consumer protection law which allows treble damages, and also asks for a court order forbidding the report to be entered as evidence in future litigation. A trial court dismissed the case, in part on the grounds that the plaintiffs had not shown that the article was a material cause of the families’ failure to prevail in the suits. Now the case is on appeal to the First Circuit, where defense lawyers are arguing, inter alia, that if there are weaknesses in the article the remedy for plaintiffs is to introduce evidence to that effect to counter it in trials. “As for its own role, Elsevier argued that applying a state consumer protection law to its published material would violate its free-speech right under the First Amendment.”

First Amendment? Let’s not go to extremes. If we start applying the First Amendment, how are lawyers supposed to silence publications that inconvenience them?

Our “watch what you say about lawyers” tag — which perhaps we should rename as “watch what you say about lawyers or their cases” — is here (cross-posted at Cato at Liberty; & welcome readers from Jesse Walker, Reason, Prof. Bainbridge).

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Attorney Sues Scientists Because Their Paper Made It Harder To Win Suits - Hit & Run : Reason.com
09.18.13 at 1:19 pm

{ 5 comments }

1 No Name Guy 09.18.13 at 12:07 pm

Yet one more of the copious examples of why this nation needs loser pays.

2 Leland D. Davis 09.18.13 at 10:50 pm

Given that the financial benefit of a company like Elsevier (which publishes hundreds of articles every month in multiple disciplines) from any one article is minuscule, and that the company will be out money even if it “wins” speedily, there is no need to for Elsevier to lose in order to get the message.

3 Ben S. 09.19.13 at 9:52 am

@Leland D. Davis: Get what message?

4 Vern Dennis 09.20.13 at 12:20 am

Evidently this turkey of a lawyer has been unsuccessful retaining experts who could rebut the article at trial or he wouldn’t feel the need for censorship through litigation. Cases revolving around the attempt to suppress First Amendment rights should always be on a “loser pays” basis

5 Mike 09.20.13 at 9:54 am

Ben S: the message for defendant is “shut up.”

SLAPP statute, anyone?

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