Nature Medicine | Spoonful of Medicine

Bullet dodged (for now)

Sighs of relief from the whole editorial community were heard this weekend, following a ruling denying Pfizer accces to confidential peer-review documents from the NEJM.

Pfizer is facing a lawsuit over injuries believed to have come from use of their drug Celebrex. So, this January the drug company filed a motion asking for peer-review documents — including reviewers’ names and confidential comments — that might be relevant to the lawsuit and useful for its defense. (If you want to read all the details about the legal showdown between Pfizer and the NEJM, I would recommend that you read this excellent blog entry in “”http://pipeline.corante.com/“>In the Pipeline”.)

This past Friday, the U.S. District Court for the Northern District of Illinois ruled that “it is not unreasonable to believe that compelling production of peer review documents would compromise the process”. And as Pfizer didn’t explained in sufficient detail what they expected to find in the confidential documents, the court decided that “whatever probative value the subpoenaed documents and information may have is outweighed by the burden and harm that would result” to the journals.

I was also delighted by the news, but I’m somewhat uncomfortable by the fact that the decision in favor the journals was shaped in no small measure by Pfizer’s inability to produce convincing-enough arguments. I wonder what would happen if a future motion makes a good case for what a company or any other party expects to find in our confidential information. Would the court then rule in favor of the company, setting a devastating precedent?

I must admit that my understanding of all the legal aspects that surround matters of this sort is very limited. But if journalists are protected from identifying their sources in court (what is often referred to as “privilege”), is that the same kind of protection that our “sources” — our referees — get when they share confidential information with us and when we promise to protect their anonymity? If this is not the case, why not? And is there something that we, the editors of scientific journals, could do to make sure that we have “privilege”?

The ruling favored us this time, setting some sort of precedent for the protection of confidential information at scientific journals, but the matter is far from closed, and heaven knows what will happen next time.

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Comments

  1. Report this comment

    Alan Dove said:

    The ruling is definitely a victory for journals and science, and I don’t think there’s much cause for additional worry. No secrecy protection is legally airtight, and this decision establishes a precedent for the idea that peer review is owed some level of protection. That’s enough for now.

    Journalists can be compelled to reveal their sources, doctors can be compelled to disclose medical records, and lawyers can even be forced to reveal what a client said in confidence. Sometimes. Appropriately, however, the law sets very high standards for such disclosures.

    For example, if you tell your psychiatrist exactly how you’re going to kill someone tomorrow, the shrink is legally required to report that to the authorities. However, if you admit that you killed someone yesterday, the psychiatrist is legally required to keep his or her mouth shut about it, forever. That’s because the law only breaches doctor-patient confidentiality if there’s a really compelling reason; a body of case law defines what’s compelling.

    It’s hard to imagine a reviewer writing about an assassination plot, but there could be a case someday where there’s a compelling reason to open those files to the court. If and when that happens, let’s hope the presiding judges define a high standard for the precedent.

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    JCL said:

    Alan illuminating as ever. Thanks a lot for this helpful clarification (and reassurance).

    JCL

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    Ambulance Doctor said:

    The situation woth Pfizer seems to be a liitle bit controversial. None word about the way they reached the documents.