When 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
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
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 protected]
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
). 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
v. New Hampshire
, 1957, U.S. Supreme Court.
2. United States
, 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
limiting its ﬁ nancial liability ( 20
). Similar to
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
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-
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
(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-
(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
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.
). 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-
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.
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
). Through the subpoena, BP has also
unsubstantiated allegations. Furthermore, if
www.sciencemag.org SCIENCE VOL 337 28 SEPTEMBER 2012
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