Bench & Bar May/June 2025

ditional studies from the expert’s field to determine whether they omitted contradictory findings; • Probe vague methodologies and unsupported conclusions – press experts to explain their process in depositions. If they cannot clearly articulate how they reached their conclusions, challenge their ad missibility under Daubert/Kumho Tire ; • Consult independent experts – if a proposed expert’s claims seem questionable, retain your own specialist to review the validity of their methodology and conclu sions; and • Use cross-examination to expose weaknesses – question whether the expert has personally replicat ed the findings they rely on and whether they can cite independent replications. If an expert cannot demonstrate that their findings are supported by transparent and replicable data, their testimony should not be admitted. Science is not immune to deception, and courts must remain vigilant to ensure that fraudulent research does not undermine the pursuit of justice. CONCLUSION Bad science impacts more than academia. It has real world meaning. When it comes to the overlap of science and our legal system, compromised methodologies and conclusions undercut the legitimacy of an institution directed, insofar as possible, at truth. Advocate and judge alike share a duty to ensure scientific rigor within the court room, and to call out questionable scientific processes and conclusions.

ENDNOTES * The authors gratefully acknowledge the editori al contributions of Zack Minsk, a student at the George Washington University Law School, Washington, D.C, and Roula Hammer, a student of Georgetown University Law Center, Washing ton, D.C. 1 Allysia Finley, How ‘Preapproved Narratives’ Corrupt Science, Wall Street Journal (Oct. 1, 2023) (journals and preprint serves are not selective about research quality, “only conclu sions.”), https://www.wsj.com/articles/how-pre approved-narratives-corrupt-science-false-stud ies-covid-climate-change-5bee0844, last visited March 26, 2025. 2 Kelsey Piper, Science Has Been in a ‘Replication Crisis’ for a Decade: Have We Learned Anything? Vox (Oct. 14, 2020, 12:20 PM) (“[P]rocesses that lead to unreliable research findings are routine.”), https://www.vox.com/future-perfect/21504366/ science-replication-crisis-peer-review-statistics, last visited March 26, 2025. 3 Grace Huckins, Scientific Fraud is Slippery to Catch—But Easier to Combat, Wired (Jan.

18, 2023, 8:00 AM) (“Fakery spans ‘beauti fied’ data, photoshopped images, and ‘paper mills.’”), https://www.wired.com/story/scientif ic-fraud-is-slippery-to-catch-but-easier-to-com bat/#:~:text=Fakery%20spans%20“beau tified”%20data%2C,research%20and%20 mitigate%20its%20reach.&text=Like%20 much%20of%20the%20internet,might%20 want%20to%20be%20anonymous, last visited March 26, 2025; see also Gideon Lewis-Kraus, They Studied Dishonesty. Was Their Work a Lie? The New Yorker (Sep. 30, 2023) (introducing p-hacking: “If you torture[] … data long enough … it would confess to anything.”), https://www. newyorker.com/magazine/2023/10/09/they studied-dishonesty-was-their-work-a-lie, last visited March 26, 2025; Tom Tegenza, How Many Scientists Fabricate and Falsify Research? A Systematic Review and Meta-Analysis of Sur vey Data, Nat’L Libr. of Med. (May 29, 2009) (explaining data can be “cooked” to give the appearance of accuracy; “mined” to find a sta tistically significant relationship then presented as the original goal; or selectively published to support expectations), https://pubmed.ncbi.nlm. nih.gov/19478950/, last visited March 26, 2025. 4 Zombie studies refer to scientific research which have been retracted but continue to be cited: “[B]y citing a zombie publication, new research becomes infected: A single unreliable citation can threaten the reliability of the research that cites it, and that infection can cascade, spreading across hundreds of papers.” Jodi Schneider, Sci ence is Littered with Zombie Studies. Here’s How to Stop Their Spread, The Hill (Nov. 26, 2023, 7:00 AM), https://thehill.com/opinion/educa tion/4326865-science-is-littered-with-zombie studies-heres-how-to-stop-their-spread/, last visited March 26, 2025. 5 Radley Balko, I’m Begging the Courts to

ABOUT THE AUTHORS JUDGE DAVID TAPP is a retired Kentucky Circuit Court judge and now serves as a judge of the United

States Court of Federal Claims in Washing ton, D.C., a national court with jurisdiction over monetary claims against the federal government.

KATHERINE TAPP is a trial attorney at The Poppe Law Firm in Louisville, Ky. Her practice includes complex civil litigation, with a focus on constitutional claims, medical and legal malpractice, and wrongful death/catastrophic injury.

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