When a scientist or physician signs on as a litigation expert, he opens himself up to scrutiny, not only about the bases for his opinion but also, to the extent permitted by law, his personal biases and professional background. In accepting a fee for service, the expert tacitly agrees to submit to intensive scrutiny.

But what about the scientist or physician who is not involved in litigation? What privacy protections should be afforded to an expert whose scientific work becomes a linchpin for one or another party’s position in a toxic tort litigation? Increasingly, authors of scientific journal articles, FDA advisory panel members and other public health advocates have been subjected to increasingly intrusive subpoenas with the intent of undermining their scientific research or opinions.

In a decision protective of the privacy of scientists and scholars involved in research benefiting public health and safety, New York Supreme Court Justice Sherry Klein Heitler refused to permit a company that marketed asbestos-containing products from obtaining the private papers of a former faculty member of the Mount Sinai School of Medicine (“Mt. Sinai”). Victor Reyniak and Sybille Reyniak v. Barnstead International et al. (2010 NY Slip Op. 30819) In that case, Kentile Floors, Inc. (“Kentile”) served a subpoena duces tecum on Mt. Sinai seeking disclosure of Dr. Irving Selikoff’s private papers, including his personal correspondence and memoranda. Dr. Selikoff, who died in 1992, was a pioneering researcher in asbestos who devoted his career to enhancing public awareness of the hazards of asbestos and published over 380 scientific articles. Largely on the basis of Dr. Selikoff’s research, OSHA imposed safeguards for asbestos workers in the 1970’s. Kentile argued that Dr. Selikoff’s private papers might potentially shed light on “state of the art” issues crucial to their defense.

In rejecting Kentile’s argument, and granting Mt. Sinai’s motion for a protective order, Judge Heitler held that the “expense Mt. Sinai would incur as a result of such a broad interpretation of the subpoena could well discourage other institutions from conducting vital health and safety research. Other scholars in the laboratory may fear that their unpublished notes, observations and ideas could be released to the public as a result of litigation. Although a scholar’s right to academic freedom is not absolute, it should factor into a court’s analysis on whether forced disclosure of documents is permissible (see, In R.J. Reynolds Tobacco Co., 136 Misc.2d supra at 287).”

Justice Heitler further held that “in the circumstances of this case, Kentile’s request is sweeping and indiscriminate. The relative burden on Mt. Sinai to conduct such a mass production of documents covering 30 years of Dr. Selikoff’s studies outweighs any benefit Kentile might receive by conducting such a search.”

There is surprisingly scant case law addressing the privacy concerns of scientists and physicians who find their professional work (and themselves) ensnared in litigation not of their own making. In one case, In re New York County Data Entry Worker Product Liability Litigation, No. 14003/92, 1994 WL 87529 (N.Y. Sup. Ct. N.Y. County Jan 31, 1994), discovery related to studies performed by a non-party scientist was denied because “special circumstances” warranting disclosure were not found to exist.. Noting that the non-party scientist had made his studies public, the parties were directed to obtain the information from other sources. Similarly, Dr. Selikoff's 380 published scientific works are also clearly available to Kentile in the public domain. However, his unpublished notes and preliminary ideas were never intended to be exposed to the public or subject to use in litigation.

As noted in Plough Inc. v. National Academy of Sciences, 530 A.2d 1152, 1157-58 (D.C. 1987) "Although premature disclosure of ongoing research may be the most severe form of ‘chill’ on scientific research, it is not the only form. Even limited disclosure of the preliminary conclusions, hypotheses, thoughts and ideas ventured by [scientists] prior to their being tested and criticized would not only embarrass those members, it would discourage [scientists] in the future from expressing themselves freely during their deliberations, and might cause some potential volunteer to refrain from participating in [] studies altogether.