Abstract
Scholarly work in bioethics often finds its way into judicial opinions. Many of the opinions to which we have referred cite one or more bioethics publications. Ordinarily a judge obtains that work through expert testimony or through a brief, or finds it on his or her own or with the help of a clerk. However, on rare occasions, a subpoena may be used to get a scholar’s work into the legal system. If bioethics scholarship, or any other research, seems reasonably calculated to lead to the discovery of admissible evidence,1 litigants can attempt to compel scholars to testify in court or to produce their research notes. As Robert O’Neil, the distinguished First Amendment scholar writes, however, “scholars and subpoenas coexist uneasily.”2
F.R.C.P 26 (b)(1).
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Endnotes
O’Neil RM. A researcher’s privilege: Does any hope remain? Law Contemp Probl 1996;59:35–49 at 35.
Wilson R. When should a scholar’s notes be confidential? An anthropologist involved in a medical lawsuit says she’ll go to jail rather than turn hers over. Chron High Educ 2003 May 16;49:A10–12.
Burling S. Researcher fights for her notes. Philadelphia Inquirer, at http://www.philly.com/mld/inquirer/living/health/5301924.htm 03 March 2003 (last visited Mar. 11, 2003).
Brief History at http://www.Freesheldon.org/html/brief_history.html (last visited Dec. 2, 2004).
Alliance for Human Research Protection. Medical confidentiality of research subject in jeopardy-Lawyers subpoena anthropologist. March 9, 2003 at http://www.ahrp.org/infomail/0303/09.php (last visited May 8, 2003).
In 1997, the jury found in favor of the defendants, the sponsors of the interagency policy. The policy, however, was eventually found by the US Supreme Court to violate the women’s Fourth Amendment rights against unreasonable searches and seizures. Crystal M. Ferguson, et al., Petitioners v. City of Charleston, et al. 532 U.S. 67 (2001).
Medical University of South Carolina Administration Backs Down. Academe Online 1999;85(4):6 at http://www.aaup.org/publications/Academe/1999/99ja/JA99NB.HTM#sty3 (last visited May 26, 2005).
Matherne JG. Forced disclosure of academic research. Vand L Rev 1984;37:585–620.
Branzburg v. Hayes, 408 U.S. 665, 688 (1972) (quoting 8 John H. Wigmore on Evidence Sec. 2192 at 72) (McNaughton 1961).
Third Chicago Hospital Pays to Settle Transplant Fraud Allegations, Report on Medicare Compliance, No. 42:12 p. 5 November 20, 2003. The US Attorney’s Office recently settled a lawsuit with Chicago hospitals alleged to have committed fraud in their liver transplant programs by significantly overstating the seriousness of their patients’ conditions.
In re: Subpoena Duces Tecum; United States of America, Plaintiff-Appellee, v. Dwight L. Bailey, M.D.; Family Health Care Associates of Southwest Virginia, PC, Defendants-Appellants, 228 F. 3d 341 (2000).
Robert A. Burka, Appellant v. United States Department of Health and Human Services; Public Health Service; The National Institutes of Health; National Cancer Institute, Appellees, 318 U.S. App. D.C. 274 (1996).
In 1998, in Cusumano v. Microsoft Corp., however, the 1st circuit court drew an analogy from a First Amendment journalist’s privilege to academicians. Microsoft had subpoenaed for use in an antitrust suit the confidential research materials of two university researchers who planned to use them in a book on Netscape. A district court had quashed the subpoenas, reasoning that academic researchers engaged in prepublication research are entitled to the same protection given journalists because discovery of the researchers’ confidential work would impede the free flow of information to the public, just as discovery of journalists’ work would. Compelled disclosure would have the same “chilling effect” on their speech as if such protections were withdrawn from the press.
Solarex Corporation and RCA Corporation, Plaintiff, v. Arco Solar, Inc., Defendant-Appellant, v. The American Physical Society, Appellee, 870 F.2d 642 (1989).
Solarex Corp. v. Arco Solar, Inc., 870 F.2d 642 (1989). The district court’s decision was affirmed on appeal.
45 C. F.R. § 160.103 (2004).
45 C. F.R. § 160 160.102 (2004).
45 C. F.R. § 164.502(a) (2004).
45 C. F.R. § 164.514(d) (2004).
Northwestern Meml Hospital, Plaintiff-Appellee, v. John Ashcroft, Attorney General of the United States, Defendant-Appellant, 362 F. 3d 923 (2004).
Planned Parenthood Fed’n of Am., Inc., v. Ashcroft, 2004 U.S. Dist. LEXIS 3383 at *7 (2004). In a related California subpoena case, Planned Parenthood Fed’n of Am. v. Ashcroft, US District Judge Hamilton examined patient records in camera to determine whether they were likely to have any probative value. She denied the government’s motions to compel production of patient’s medical records, reasoning that the government’s interest in the marginally relevant patient records did not justify the invasion of privacy and other harms that would result from disclosure. Planned Parenthood Federation of America, Inc., et al., Plaintiffs, v. John Ashcroft, Defendant, 2004 U.S. Dist. LEXIS 3383 (2004).
National Abortion Federation, et al., Plaintiff, vs. John Ashcroft, Defendant. Northwestern Memorial Hospital, Movant, 2004 U.S. Dist. LEXIS 1701.
Northwestern Meml Hosp. v. Ashcroft, 362 F.3d 923, 932–999 (2004).
See Gostin LO. Health information privacy. Cornell L Rev 1995; 80:451–528.
45 C. F.R. Part 46, Subpart A (2004).
Crystal M. Ferguson, et al., Petitioners v. City of Charleston, et al., 532 U.S. 67 (2001).
Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001).
Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001) citing Whalen, Commissioner of Health of New York v. Roe, et al., 429 U.S. 589, 599–600 (1977).
Jane Potter Andrews, Plaintiff, v. Eli Lilly & Co., Inc., et al., Defendants; Tracey Ann Taylor, Plaintiff, v. E.R. Squibb & Sons, Inc., et al, Defendants, Paula Renfroe, et al., Plaintiffs, v. Eli Lilly & Company, et al., Defendants; Nancy Deitchman, Plaintiff, v. Rexall Drug Company, et al., Defendants, 97 F.R.D. 494 (1983).
Andrews v. Eli Lilly & Co., 97 F.R.D. 494, 499–500, 502 (1983).
The Dow Chemical Company, Intervening Petitioner-Appellant v. Dr. James R. Allen and John Van Miler Respondents-Appellees, and James P. Wachtendonk, et al., Intervening Respondents-Appellees, 672 F.2d 1262 (1982). In 1982, in Dow Chemical v. Allen, the 7th Circuit considered the argument in relation to administrative subpoenas by the EPA of notes, reports, working papers, and raw data relating to animal toxicity studies at the University of Wisconsin. The privilege was not explicitly recognized, but the appellate court concluded that the researcher’s interest in academic freedom had properly figured into the decision regarding whether forced disclosure was reasonable.
Crabb BB. Judicially compelled disclosure of researchers’ data: A judge’s view. Law and contemporary problems. 1996;59:9–34.
Rik Scarce describes his experience in Contempt of Court: A Scholar’s Battle for Free Speech from Behind Bars. Walnut Creek, CA: AltaMira Press, 2005.
Crabb BB. Judicially compelled disclosure of researchers’ data: A judge’s view. Law and Contemporary Problems 1996;59:9–34 at 26–27.
Watson K. Subpoena of Confidential Research: Implications for Informed Consent, ASBH Exchange 2003;6:5, 8 at http://www.asbh.org/resources/exchange/2003 ASBXFal3.pdf (last visited May 31, 2005).
In her testimony, Marshall stated, “As the institution’s bioethicist, I am of the opinion that the interagency policy fails to meet the institution’s norms or standards that have to do with informed consent.” Marshall did publish her research on the MUSC policies subsequent to the subpoena. See, for example, Jos PH, Marshall MF, Perlmutter M. The Charleston policy on cocaine use during pregnancy: a cautionary tale. J Law Med Ethics 1995;23:120–128. Nelson LJ, Marshall MF. Ethical and Legal Analysis of Three Coercive Policies Aimed at Substance Abuse by Pregnant Women. Charleston, S.C.: Medical University of South Carolina, Program In Bioethics, 1998. Medical University of South Carolina Administration Backs Down Academe Online 85 (4):6 (1999) at http://www.aaup.org/publications/Academe/1999/99ja/JA99NB.HTM# sty3 (visited May 26, 2005).
Jonathan Moreno states “...[T] the media does provide many of us with a soapbox that should be exploited for purposes other than simply to comment on the ethics crisis de jour.” Moreno JD. In the wake of Katrina: Has “bioethics” failed? AJOB 2005;5:W18–19.
There is a difference between property which, if used by another, will cause a loss to the owner (rivalrous property), and property which, even if used by another, will cause no loss to the owner. Compelled bioethics material may, in some instances, be nonrivalrous property. See Leonard J. Klay, M.D., et al., Plaintiffs, versus All Defendants, Humana, Inc., Humana Insurance Company, Coventry Health Care of Georgia, Inc., f.k.a. Principal Health Care of Georgia, Inc., United Healthcare of Florida, Inc., Health Net, Inc., f.k.a. Foundation Health, et al., Defendants-Appellees, 425 F.3d 977 (2005) at 985.
F. Rule of Civil Procedure 45C3B(i). See also Newberg JE, Dunn RL. Keeping secrets in the campus law: law, values, and rules of engagement for industry-university RD part. Am Bus L J 2002;39:187–241.
Brody B, Dubler N, Blustein J, et al. Bioethics consultation in the private sector. Hastings Cent Rep 2002;32:14–20.
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(2007). Bioethics Scholarship. In: Bioethics in Law. Humana Press. https://doi.org/10.1007/978-1-59745-295-3_6
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