Our weekly search for new drug/medical device cases for 1/13/17 turned up something unusual – not of particular substantive significance, but unusual. Two of the opinions included citations to Wikipedia.
Wikipedia? You mean the comprehensive online encyclopedia that is crowd-sourced, so that anybody – even us – can edit/alter the information contained on the entries (at least, most of them)? That’s it. Since the provenance of the information on Wikipedia is unknown, as lawyers we’ve been taught never, ever to cite to it as authoritative in filed papers (we often cite to it on the blog). After all, given the high stakes of most of our litigation, an attorney citing to Wikipedia could have just added the information to which s/he is citing.
[I]f Wikipedia were regarded as an authoritative source, an unscrupulous lawyer (or client) could edit the Web site entry to frame the facts in a light favorable to the client’s cause. Likewise, an opposing lawyer critical of the Wikipedia reference could edit the entry, reframing the facts and creating the appearance that the first lawyer was misrepresenting or falsifying the source’s content.
Peoples, “The Citation of Wikipedia in Judicial Opinions,” 12 Yale J. L. & Tech. 1, 24 (2010) (quoting Richards, “Courting Wikipedia,” Trial, at (April 2008)). Obviously, that kind of bootstrapping oneself into authority isn’t allowed. If lawyers want to cite ourselves, we should at least have to write law review articles.
So we thought it would be fun to see what we could find in the way of Wikipedia references in judicial opinions involving product liability litigation or prescription medical products, and even both. This post details what we found.
First, courts (or masters) have gotten in trouble for excessive reliance on Wikipedia. In a Vaccine Act case, a special master declined to hold a hearing, and instead relied on internet sources such as Wikipedia. That produced a reversal. As to Wikipedia, the court stated:
[T]he exhibit introduced by the Special Master indicates that its information was drawn from Wikipedia.com, a website that allows virtually anyone to upload an article into what is essentially a free, online encyclopedia. A review of the Wikipedia website reveals a pervasive and, for our purposes, disturbing series of disclaimers, among them, that: (i) any given Wikipedia article “may be, at any given moment, in a bad state: for example it could be in the middle of a large edit or it could have been recently vandalized;” (ii) Wikipedia articles are “also subject to remarkable oversights and omissions;” (iii) “Wikipedia articles (or series of related articles) are liable to be incomplete in ways that would be less usual in a more tightly controlled reference work;” (iv) “[a]nother problem with a lot of content on Wikipedia is that many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written;” and (v) “many articles commence their lives as partisan drafts” and may be “caught up in a heavily unbalanced viewpoint.”
Campbell v. Sec’y HHS, 69 Fed. Cl. 775, 781 (2006). But see Keeler v. Colvin, 2014 WL 4394467, at *3 (D. Colo. Sept. 4, 2014) (allowing administrative law judge to cite Wikipedia in vaccine case; “[t]his Court finds no per se prohibition on citing Wikipedia in judicial opinions”).
In another vaccine case, the trial court relied on Wikipedia information supplied by a parent trying to prevent vaccination in making a “best interests of the child” determination. The appellate court shot that down, holding, “[w]e cannot fathom that a document containing content that can be altered by anyone at any time could possibly demonstrate circumstantial guarantees of trustworthiness.” Kagen v. Kagen, 2015 WL 4254993, at *3 (Mich. App. July 14, 2015). Kagan included the following string citation to make its point: Bing Shun Li v. Holder, 400 Fed Appx 854, 857 (5th Cir., 2010) (“We agree with those courts that have found Wikipedia to be an unreliable source of information.”); United States v. Lawson, 677 F.3d 629, 650 (4th Cir. 2012) (“we are not the first federal court to be troubled by Wikipedia’s lack of reliability”); Johnson v. Colvin, 2014 WL 5394954, at *4 n.4 (D. Me. Oct. 21, 2014) (“Counsel are reminded that this court has not accepted Wikipedia as a reliable medical reference.”); Smartphone Technologies LLC v. Research in Motion Corp., 2012 WL 489112, at *5 n.3 (E.D. Tex. Feb. 13, 2012) (“The content on this website is provided by volunteers from around the world-anyone with internet access can provide or modify content. Thus, not only is the information unreliable, but it can potentially change on a day-to-day basis.”). Kagan, 2015 WL 4254993, at *3 n.1.
Another administrative judge got raked over the coals for relying on Wikipedia in Badasa v. Mukasey, 540 F.3d 909 (8th Cir. 2008).
The [government] did not adopt the entirety of the IJ’s reasoning for rejecting [appellant’s] claim. Rather, the [government] acknowledged that it was improper for the IJ to consider information from Wikipedia in evaluating [appellant’s] submission on remand, and the government does not dispute that conclusion here.
Id. at 910. See also In re Marriage of LaMoure, 132 Cal.Rptr.3d 1, 15 (Cal. App. 2011) (“We do not consider Wikipedia a sufficiently reliable source.”); Sanchez v. Cegavske, ___ F. Supp.3d ___, 2016 WL 5936918, at *2 n.3 (D. Nev. Oct. 7, 2016) (“[t]he Court cannot rely on” Wikipedia citations); Henricks v. Pickaway Correctional Institute, 2013 WL 4804983, at *3 (S.D. Ohio Sept. 9, 2013) (“Wikipedia is not a valid legal authority; it is an online encyclopedia which can be written and edited by any user”), aff’d, 782 F.3d 744 (6th Cir. 2015); Du Nguyen v. Astrue, 2012 WL 975674, at *6 (Mag. D. Me. March 21, 2012) (“Wikipedia has not been shown to this court to be a reliable medical reference”), adopted, 2012 WL 2079874 (D. Me. June 8, 2012); Crispin v. Christian Audigier, Inc., 717 F. Supp.2d 965, 977 n.19 (C.D. Cal. 2010) (“unfortunate that the parties were unable to provide more authoritative evidence” than Wikipedia); Kole v. Astrue, 2010 WL 1338092, *7 n.3 (D. Idaho March 31, 2010) (“[Counsel] is admonished from using Wikipedia as an authority. . . . Wikipedia is not a reliable source at this level of discourse. . . . [Counsel] should know that citations to such unreliable sources only serve to undermine his reliability”); In re Asbestos Litigation, 2012 WL 1409011, at *4 (Del. Super. April 2, 2012) (Wikipedia is of “minimal valve because it does not contain . . . editorial controls”); but see Khepera-Bey v. Santander Consumer USA, Inc., 2012 WL 1965444, at *7 n.23 (D. Md. May 30, 2012) (as to a 1790 statute, the “most informative source, it appears, is Wikipedia”).
The most comprehensive discussion we found about the nature of Wikipedia and its reliability problems is in United States v. Lawson, 677 F.3d 629 (4th Cir. 2012), a criminal appeal reversing a conviction where jurors had accessed Wikipedia about definitions of statutory terms relevant to the offense. The Fourth Circuit discussed its reliability concerns at length:
We observe here another aspect of Wikipedia, namely, its reliability. According to the “Wikipedia:About” entry, at least in its form as of April 16, 2012, Wikipedia describes itself as “a multilingual, web-based, free-content encyclopedia project based on an openly editable model.” Indeed, the “About Wikipedia” entry notes that:
Wikipedia is written collaboratively by largely anonymous Internet volunteers who write without pay. Anyone with Internet access can write and make changes to Wikipedia articles (except in certain cases where editing is restricted to prevent disruption or vandalism). Users can contribute anonymously, under a pseudonym, or with their real identity, if they choose.
Id. The “About Wikipedia” entry further notes that “[a]nyone with Web access can edit Wikipedia…. About 91,000 editors—from expert scholars to casual readers—regularly edit Wikipedia.” Id.
Given the open-access nature of Wikipedia, the danger in relying on a Wikipedia entry is obvious and real. As the “About Wikipedia” material aptly observes, “[a]llowing anyone to edit Wikipedia means that it is more easily vandalized or susceptible to unchecked information.” Id. Further, Wikipedia aptly recognizes that it “is written largely by amateurs.” Id.
677 F.3d at 650 (Internet citations omitted).
But judges, they can pretty much do what they want in their opinions. Indeed, one case states that “the frequent citation of Wikipedia [in judicial opinions] at least suggests that many courts do not consider it to be inherently unreliable.” Alfa Corp. v. OAO Alfa Bank, 475 F. Supp.2d 357, 362 (S.D.N.Y. 2007). Alfa is correct insofar as, yes, judges do often cite Wikipedia. Judge Posner has done so repeatedly. Rowe v. Gibson, 798 F.3d 622, 624 (7th Cir. 2015) (facts about prescription drug); Krien v. Harsco Corp., 745 F.3d 313, 316 (7th Cir. 2014) (size of corporate defendant in product liability action); U.S. ex rel. Grenadyor v. Ukrainian Village Pharmacy, Inc., 772 F.3d 1102, 1104 (7th Cir. 2014) (size of population served by pharmacy defendant in FCA action); Pearson v. NBTY, Inc., 772 F.3d 778, 785 (7th Cir. 2014) (effectiveness of glucosamine treatment); United States v. Herrera, 704 F.3d 480, 486 (7th Cir. 2013) (nature of forensic DNA analysis); United States v. Ford, 683 F.3d 761, 768 (7th Cir. 2012) (same).
Other courts in published opinions have likewise cited Wikipedia on issues concerning medicine and/or prescription medical products. United States v. Caronia, 703 F.3d 149, 171 n.2 (2d Cir. 2012) (example of unapproved drug) (dissenting opinion); Plumbers & Pipefitters Local Union 719 Pension Fund v. Zimmer Holdings, Inc., 679 F.3d 952, 953 (7th Cir. 2012) (description of hip replacement surgery); Stimmler v. Chestnut Hill Hospital, 981 A.2d 145, 159 n.16 (Pa. 2009) (characteristics of medical device); Rivas v. Overlake Hospital Medical Center, 189 P.3d 753, 755 n.2 (Wash. 2008) (medical evaluation criteria); Mullis v. State, 79 So. 3d 747, 750 (Fla. App. 2011) (description of prescription drug); Goonan v. State, 334 S.W.3d 357, 362 (Tex. App. 2011) (FDA regulatory history of OTC drug) (concurring opinion); Abila v. Funk, ___ F. Supp.3d ___, 2016 WL 7242731, at *6 n.22 (D.N.M. Nov. 23, 2016) (defining medical terminology); Scott v. Clarke, 61 F. Supp.3d 569, 580 n.7 (W.D. Va. 2014) (nature of prescription drug); United States v. Crisman, 39 F. Supp.3d 1189, 1234 n.20 (D.N.M. 2014) (nature of meta-analysis); Telerent Leasing Corp. v. Progressive Medical Imaging PLC, 918 F. Supp.2d 666, 669, (E.D. Mich. 2013) (description of medical imaging technology); United States ex rel. Spay v. CVS Caremark Corp., 913 F. Supp.2d 125, 165 & n.25 (E.D. Pa. 2012) (drug codes used in Medicare reimbursement); United States v. Vigil, 832 F. Supp.2d 1304, 1309 n.9, (D.N.M. 2011) (identification and modes of administration of prescription drug); Winebarger v. Liberty Life Assurance Co., 571 F. Supp.2d 719, 724 n.7 (W.D. Va. 2008) (nature of certain prescription drugs); Mutual Pharmaceutical Co. v. Ivax Pharmaceuticals, Inc., 459 F. Supp.2d 925, 928 (C.D. Cal. 2006) (nature of recalled drug).
That is not to say that we’re necessarily upset by this. In United States v. Chapman, 59 F. Supp.3d 1194 (D.N.M. 2014), aff’d, 839 F.3d 1232 (10th Cir. 2016), the court looked to the Wikipedia definition of a medical condition commonly suffered by plaintiffs in cases we defend:
[T]he affected person exaggerates or creates symptoms of illnesses in themselves to gain examination, treatment, attention, sympathy, and/or comfort from medical personnel. In some extreme cases, people suffering from Munchausen’s syndrome are highly knowledgeable about the practice of medicine and are able to produce symptoms that result in lengthy and costly medical analysis, prolonged hospital stay and unnecessary operations. The role of “patient” is a familiar and comforting one, and it fills a psychological need in people with this syndrome.
Id. at 1170 n.6 (quoting Wikipedia discussion of Munchausen Syndrome). Accord Feingerts v. American Casualty Co., 34 So.3d 358, 364 n.4 (La. App. 2010) (relying on Wikipedia definition of “somatoform disorder”).
There are also cases holding that Wikipedia is hearsay and otherwise not admissible evidence. Kace v. Liang, 36 N.E.3d 1215, 1226 (Mass. 2015) (the “Internet encyclopedia ‘Wikipedia’ is not [a] learned treatise”); People v. Stamps, 207 Cal. Rptr. 3d 828, 834 (Cal. App. 2016) (“any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rule”; mentioning Wikipedia as example); Thompson v. Walgreen Co., 2014 WL 1691894, at *1 n.3 (Cal. App. April 30, 2014) (Wikipedia description of drug and its effects cannot be judicially noticed); Cowan v. Costco Wholesale Corp., 2017 WL 59080, at *2 (E.D.N.Y. Jan. 5, 2017) (Wikipedia cannot be judicially noticed); Gravelle v. Kiander, 2016 WL 2930433, at *5 n.10 (W.D. Wash. May 19, 2016) (same); Foppa v. Specialized Bicycle Components, Inc., 2015 WL 11256937, at *2 n.2 (N.D. Ga. Mar. 11, 2015) (Wikipedia article is not evidence supporting jurisdiction); Spears v. United States, 2014 WL 3513203, at *4 (W.D. Tex. July 14, 2014) (striking unauthenticated Wikipedia description of drug); Johnson v. Total Renal Care, Inc., 2012 WL 896155, at *6 (W.D. Tenn. March 15, 2012) (Wikipedia discussion of nature of drug is hearsay); Altman v. HO Sports Co., 821 F. Supp. 2d 1178, 1181 n.2 (E.D. Cal. 2011) (Wikipedia cannot be judicially noticed).
Something else we found were cases involving expert witnesses who cite to Wikipedia in their reports – so theoretically (and perhaps, actually) they could be citing to material that they just inputted into Wikipedia, or conversely, the material they cite to could vanish tomorrow as a result of someone else’s edits. In medical device product liability litigation, the court in Jones v. Synthes USA Sales, LLC, 2010 WL 3311840 (D.N.J. Aug. 19, 2010), held that an expert opinion based on “an article found on Wikipedia” “lack[ed] reliable scientific grounds.” Id. at *9. “[T]he article had no author and ha[d] not been peer reviewed.” Id. “Wikipedia is an on-line encyclopedia which could be written and edited by any internet user,” therefore “such an article is not grounded in any legitimacy or reliability with regards to scientific authority.” Id. See McKerrow v. Buyers Products Co., 2016 WL 1110303, at *3 (D. Md. March 22, 2016) (a defect opinion lacked credible methodology where, inter alia, the plaintiff’s expert used Wikipedia definitions as “industry standards”); Karlo v. Pittsburgh Glass Works, LLC, 2015 WL 4232600, at *13 n.17 (W.D. Pa. July 13, 2015) (excluded expert “relies upon an unreliable source: Wikipedia”), vacated on other grounds, ___ F.3d ___, 2017 WL 83385 (3d Cir. Jan. 10, 2017).
Finally, we found one case holding that a Wikipedia entry qualified as a “public disclosure” that could bar a False Claims Act action. United States ex rel. Brown v. Walt Disney World Co., 2008 WL 2561975, at *4 (M.D. Fla. June 24, 2008), aff’d, 361 F. Appx. 66 (11th Cir. 2010).
So there you go. The Wiktionary definition of “overkill” is “[a]n unnecessary excess of whatever is needed to achieve a goal.”