Judge Corporate-Funded Studies On Their Merits

This article originally appeared in the National Law Journal and is republished here by permission of law.com.

During the past decade, the drumbeat against corporate-funded science has sounded in major journals, books and the news media. The backlash against this research has seeped into the judicial system, appearing to influence judges and juries to believe that "buying science" is a corporate phenomenon. Perhaps no greater example of this trend is the U.S. Supreme Court decision in Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), in which Justice David Souter — writing for a 5-3 majority — declined to rely on a body of jury research examining the predictability of punitive damage awards, simply because the "research was funded in part by Exxon," the corporate defendant. The criticisms of corporate-funded scientific research, specifically in litigation, will likely continue affecting corporations and various industries for decades. From recently instituted climate-change litigation (specifically Connecticut v. American Electric Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005) and Comer v. Murphy Oil USA, 2009 WL 3321493, 17 (5th Cir. Oct. 16, 2009)) to pharmaceutical, mass-tort and other products liability cases, as well as potential litigation resulting from the 2010 BP Gulf oil disaster, corporations may continue to face a no-win situation when relying on self-funded scientific research. If they invest in scientific research that may answer questions raised in litigation, a court may ignore the findings because of their financial support. If they do not make such investments, they may then face criticism for failing to adequately evaluate the hazards and consequences resulting from a product, drug or business operation.

Souter's dismissal of scientific research solely because of its financial backing may raise a red flag for corporations funding such research. Nonetheless, corporations should continue to finance properly conducted research, for both their own benefit and the benefit of society.

Criticisms of Industry-Based Funding

Industry-funded research and scientific studies have often faced challenges from the public, government and other organizations because of claimed bias in results compared with neutral studies, industry control over the publication of negative results and failure to disclose funding and any apparent conflicts of interest.

The history of alleged research-tampering by certain sponsors has created an atmosphere of distrust of all industry-based scientific funding, specifically in litigation. For example, between 1971 and 1993, when the tobacco industry faced litigation, it contributed almost $30 million to study the link between smoking and health concerns, including lung...