Tuesday, July 29, 2008

A Public Service Announcement

Until very recently, we were clueless about this little spat:

"A few months back, Shannon Brownlee and Jeanne Lenzer wrote on Slate about potential conflicts of interest, addressing doctors who had received funds from pharma talking about SSRIs on public radio. They stated that they'd created a list of pharma-free experts for journalists. . . . " (We've now reached the limits of our technological capacity. We can't figure out how to link that quote to Torts Prof and yet keep the internal link to Slate. In any event, the preceding quote comes from Torts Prof -- here.)

Ted Frank, of the AEI and Point of Law, asked Brownlee and Lenzer for their list of "untainted" experts, but Brownlee and Lenzer refused to share it. Here's Ted's rant on that subject from a couple of months ago.

Brownlee and Lenzer have now shared their list with the world.

And here's the public service part of this announcement: We figure that readers of this blog, perhaps more than any other group on the face of the planet, can tell us which of Brownlee and Lenzer's pharma-free experts have accepted money to testify as experts for plaintiffs. (If you can provide accurate, verifiable information, feel free to name names -- specifying who received money from whom -- in the comments beneath this post.)

We, of course, don't think that it's necessarily "corrupting" for a scientist to perform work for a company and to be paid for his or her efforts. But we do think that sauce for the goose is sauce for the gander: Surely if it's worth noting the money that certain people have received from the drug industry, it's equally worth noting the money that other people have received from "Trial Lawyers, Inc."


Anonymous said...

Dr. Joseph Glenmullen has been an expert for plaintiffs in multiple antidepressant product liability cases. And Sydney Wolfe is with Public Citizen, the litigation arm of which has represented plaintiffs in antidepressant cases.

Bill Childs said...

Psaty was a paid plaintiffs' expert in the Baycol litigation (in which I served as a defense lawyer), as he disclosed in his JAMA piece on the subject (though not in a more recent NEJM piece, http://content.nejm.org/cgi/content/short/NEJMp068228).


Shannon Brownlee and Jeanne Lenzer said...

Our experts who have served as witnesses disclose on the list, and we make that information available to the journalists who have requested the list. For example, Dr. Glenmullen discloses his work as an expert witness in product liability cases.

Some of the experts on the list have served as witnesses in order to have access to data they would not be able to get any other way.

Ted Frank said...

Yet Brownlee and Lenzer reveal their own bias -- experts who take plaintiffs' lawyers money are called "independent", while experts who take money from pharmaceutical companies are not -- even though the plaintiffs' bar has a far worse record in giving a damn about patient safety in its advertising or litigation tactics. The public version of their list makes no such disclaimer.

Beck/Herrmann said...

We can add Dr. Fugh-German as an HRT plaintiffs' expert who also served (without disclosure of that fact) as a pro-plaintiff "amicus" in the Colacicco case.

Now we see that Brownlee and Lenzer are admiting that their list of so-called "independent experts" is, in fact, rife with people who regularly take money from the plaintiff's side.

We also see no disclosure of that fact anywhere on the list.

The chance of the press getting an "objective rating of health and medical journalism" from a paid litigation expert is about equal to the chance of getting such an "objective rating" from us.

But at least we're honest about it.

Imagine the outcry if one of our clients had engaged in so blatant a misrepresentation.

Shannon Brownlee said...

A few corrections are in order.

1. The list is not "RIFE" with experts who have testified for plaintiffs. "Rife" implies that many if not most of the experts have disclosed this conflict of interest. In reality, it is a small fraction.

2. At least a couple of the experts have testified on behalf of pharma.

3. Dr. Adrienne Fugh-Berman did indeed disclose her work for a plaintiff.

4. The public disclosure of our list does, in fact, make it clear that some of the experts have served as expert witnesses -- for both the plaintiff's side and defendants. It is clearly stated in the BMJ article that accompanied the list.

5. You underestimate the critical faculties of scientists when you claim that "The chance of the press getting an "objective rating of health and medical journalism" from a paid litigation expert is about equal to the chance of getting such an "objective rating" from us." The experts on our list are not chosen for holding a particular point of view about a specific drug or device. And their names weren't just plucked randomly out of a hat. They are really good at what they do -- probably at least as good as you two are at what you do. But good sicence should not be confused with the practice of law.

6. What's all the fuss about? We've made a list available to our colleagues to help them find sources who have demonstrated expertise in several areas of medical research and data analysis. There's ample evidence to show that financial conflicts of interest with industry bias both researchers and research. We thought it would help journalists do a better job of providing balanced stories if they had some names in their rolodexes of people who don't have that particular problem.

Bill Childs said...


I think the issue may be that the listing that I found and posted (which triggered all of this), which is not the BMJ one, unless there's a public version I can't find, but instead the one on your site, doesn't reference the fact that some number of the purportedly independent experts have made money from plaintiffs' litigation work.

That doesn't preclude them from saying useful things, just as having taken pharma money doesn't preclude people from saying useful things, but that disclosure is useful. I take it that you agree that the disclosure is useful, which is why it's in the BMJ article.

So perhaps you can add it to the HealthNewsReview.org site, maybe even identifying which of the listed experts has been a paid plaintiffs' expert? That way the beneficiaries of the list can make their own choice about whether to only contact those who are clear of the potential taint of both pharma money and plaintiffs' lawyer money, or instead if they only want to avoid pharma money.

I guess it's worth asking, though: do you agree that having received money as an expert in litigation can constitute a relevant financial conflict when relying on the person as a source in journalism? If not, why is it different?

For whatever it's worth, I think there's a real difference between the folks who do occasional one-off work and those who have made a near career of expert work, always on one side or another. That's why I've advocated for having more complete disclosures, not just identifying the fact of compensation but the frequency and at least a magnitude range.

hg said...

I agree with Bill Childs when he writes:

"For whatever it's worth, I think there's a real difference between the folks who do occasional one-off work and those who have made a near career of expert work, always on one side or another. That's why I've advocated for having more complete disclosures, not just identifying the fact of compensation but the frequency and at least a magnitude range."

Framing the issue one-dimensionally - The Constant Gardner versus the King of Torts - does not serve us.

Ted Frank said...

Fugh-Berman has written several pieces--including at least one mimicking Brownlee & Lenzer that is critical of Peter Pitts's ostensible lack of disclosure and conflicts of interest--without disclosing her financial ties to the plaintiffs' bar. I presume that Beck & Herrmann were referring to Fugh-Berman's amicus brief when they were talking about her lack of disclosure, but I don't have access to that brief to confirm that.

It's worth noting that anyone who "served as witnesses in order to have access to data they would not be able to get any other way" quite possibly committed perjury, as most protective orders permitting expert witnesses access to private data requires them to only use that data for purposes of the litigation. Indeed, I can't think of a single protective order off-hand that permits experts to use unavailable data for other reasons. I ask the authors of this blog, who have many more protective orders immediately at hand, to correct me on this point.

So either Brownlee and Lenzer are making something up, the experts lied to Brownlee and Lenzer, or the experts lied under oath to the court. Might Brownlee and Lenzer disclose who claims that they have served as an expert to get access to data, and in what cases they did so?

(Separately, given Brownlee and Lenzer's excessively broad idea of "conflict of interest," it's not clear why they think it matters that their experts who took money from plaintiffs' lawyers claim they did so for noble reasons. It's not like scientists who take money from pharmaceuticals claim they're selling themselves to the highest bidder; they think they're working for noble reasons, too, but Brownlee and Lenzer claim they're all tainted regardless of the reasons they took money.)

Curiously, Brownlee and Lenzer now claim that "At least a couple of the [pharma-free] experts have testified on behalf of pharma." So taking money from pharma doesn't necessarily mean that someone isn't "pharma-free." So it now behooves us to ask what criteria did Brownlee and Lenzer use to create the "independent" list, since there was neither a requirement that someone on the list be independent of the special interest of the plaintiffs' bar or even independent of pharma itself.

Is it that these are the doctors who confirm Brownlee and Lenzer's own particular biases about the pharmaceutical industry? If so, "independent" is being used by B&L to mean something other than "independent."

Lenzer & Brownlee said...

Our list seems to have created quite a stir, at least some of which is based on a poor understanding of the criteria we used to create it, and why we thought it was necessary in the first place. For anybody who wants to know the criteria we used for including the experts on the list, we refer you to www.HealthNewsReview.org, and the BMJ article at http://www.newamerica.net/publications/articles/2008/naming_names_there_unbiased_doctor_house_7652.

The most recent attacks on our list appear to be focused on the fact that a small number of the experts have served as paid experts witnesses for plaintiffs. We didn’t try to create a list of experts deemed to be in some perfect (and unachievable) state of non-bias. Our list was merely intended to be an additional resource of industry-independent experts for journalists, who currently are inundated by drug industry PR, industry-backed associations, and industry-paid key opinion leaders. We couldn’t have been more explicit about the form of bias we were attempting to rectify when we wrote in Slate, “…we've created for journalists an international list of prestigious and independent medical experts who declare they have no financial ties to drug and device manufacturers for at least the past five years.” We did not, and could not, assure that list members have no form of other bias.

We agree with the critics, paid legal testimony can be a conflict of interest – though it isn’t always since A.) some of the experts on the list have declined any pay for their testimony and B) some provide testimony only about appropriate use of a drug – and thus can neither be described as “pro-drug” nor “anti- drug.” We don’t want to get into an argument about whether being paid for legal testimony is a mortal sin or a venial sin; the fact is, we were creating a list of people who are as free as possible from the biases introduced by financial relationships with industry.

Researchers have all sorts of biases, of course – they’re only human. But in contrast to the multiple directions other forms of bias can take, industry bias is unidirectional: making products seem safe and effective. And let’s be honest here. The pharmaceutical industry very deliberately and systematically uses financial relationships with key opinion leaders and academic researchers to help sell its products. The industry doesn’t spend billions of dollars on clinical trials for the good of mankind. It spends that money because A) the FDA requires some of the trials, and B) many of the trials help the industry shape medical opinion and sell more drugs. Indeed, one of the reasons we created the list is to counter the ill effects of poor medical science, much of it paid for and crafted by the industry. Journalists need experts who can help them sift, as objectively as possible, the scientific wheat from the chaff.

For those who doubt that pharma is deliberately using financial conflicts of interest to bias research and sell drugs, we can recommend any number of articles on the topic. You could start with this one: http://www.newamerica.net/publications/articles/2004/doctors_without_borders
A few last clarifications. While we don't plan to add any information to the version of the list that is currently available for all to see on HealthNewsReview.org, journalists who receive the full list not only get disclosure information about various potential conflicts of interest, they also get contact information and a description of each expert’s area of expertise.

Here is the nature of the disclosures we provide to journalists who get the list: Testifying upon occasion in court cases for pay; (some have done so but without pay and we don’t feel they need to disclose); financial conflicts with industry within the last five years. The ones who have had direct conflicts within the last five years are included on “Page 2” because they have either decided they will forego those financial relationships in the future or because they have provided unusual insights into the partnerships between industry and physicians or into data suppressed by industry.

This is not an all-inclusive list, obviously, since it is only 100 experts thus far. And it is not meant to imply that anybody who isn't on it is second rate. There are plenty of superb researchers out there who have COIs with industry. We offer this list to our colleagues in the interest of giving them a way to find experts whose opinions might well agree with those who have conflicts, but who can say they came to their conclusions and they conducted their research without that particular bias.