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USING EXPERTS TO CHALLENGE JURISDICTION[index]

How can scientists such as Professor Light and Dr. Tsara raise the question of jurisdiction and attempt to show that HHS has no jurisdiction because the actions complained of do not constitute misconduct?

HHS jurisdiction to propose findings of misconduct is specifically limited to the subject matter set forth in the definition of "scientific misconduct." This provides scientists facing proposed findings of misconduct with an opportunity to use expert testimony to challenge HHS jurisdiction over their conduct. Furthermore, HHS authority to impose sanctions is specifically limited to factual findings that conduct amounts to "scientific misconduct." This provides scientists with an additional opportunity to use expert testimony during HHS hearings.

If there is a question about jurisdiction, it should be raised during the preliminary conference. Generally this conference is conducted by telephone. According to the June 9, 1994 HHS Hearing Procedures for Scientific Misconduct (Guidelines), the parties should be prepared to discuss anything that will enable the case to proceed fairly and efficiently. Even if bringing up the question of jurisdiction at an early date only elicits a more complete specification of the misconduct charges, the respondent will be better off with the additional information.

There are no formal rules of evidence applicable to HHS proceedings, but the Guidelines specifically suggest that the Federal Rules of Evidence may be referenced for guidance.

The Federal Rules specifically recognize that an intelligent evaluation of facts is often difficult or impossible without specialized knowledge. The most common source of such knowledge is an expert witness. While an HHS Research Integrity Adjudication Panel (Panel) may have some general experience with scientific misconduct, it cannot be expected to be as fully informed about specific practices that conform substantially to those commonly accepted by a respondent's peers as one who has special knowledge of that scientific community.

Article VII of the Federal Rules describes the admissibility of expert testimony. Rule 7.02 recites that an expert witness may testify without knowledge of the occurrence of events if the expert's specialized knowledge will assist in the determination of a fact in issue or the understanding of the evidence. An expert witness is entitled to base his opinion on facts that he learns at or before the hearing. Furthermore, if the facts are of a type reasonably relied upon by experts in the field, the facts themselves need not be admissible in evidence. Therefore, the opinion and reasoning of an expert witness is admissible to assist the Panel decide whether the evidence to be offered, if true, describes "practices that seriously deviates from those that are commonly accepted within the scientific community for proposing, conducting or reporting research."

Experts play a different role in administrative proceedings than they do in trials. A testifying expert in a trial is talking to lay jurors, selected for their complete lack of knowledge of the matter at issue. They have no way to independently evaluate the expert's information. They can only compare one side's expert to the opposing side's expert. In such a context, it is not surprising that jurors must judge the testimony on theatrics more than substance.

In contrast, administrative agencies use knowledgeable personnel (at least in theory) to conduct investigations. Experts are judged by agency personnel who are well-versed in the matters at issue, and who are less susceptible to theatrics. Unlike the courts, agencies generally prefer written reports by experts to in person testimony.

The expert should have specialized knowledge about the metes and bounds of "scientific misconduct" as set forth in the HHS definition. He or she should be able to compare the alleged misconduct with the definition and evaluate their correspondence or lack of correspondence. In addition to these legal requirements, the expert should have specialized knowledge about how research should be proposed in grant applications, conducted in the laboratory, and reported in research publications, seminars, scientific meetings, etc., as well as the commonly-accepted practices within the scientific community for proposing, conducting and reporting research. The expert's experience should also include specialized knowledge of what constitutes acceptable errors or differences in the interpretation and judgment of scientific data, including those characterized by statistical analyses, mathematical modeling, homeomorphism, etc.

The most credible source of expert standards are consensus documents by the professional organizations. In other contexts, such as medical malpractice, generally accepted standards documents are the best evidence of the proper professional practice. Unfortunately, such documents are absent in most scientific disciplines. This is understandable: compared to medicine or law, scientists have few ethical lapses and are in remarkable consensus on acceptable practices. The irony is that scientists, who do not have professional codes because there are so few breaches, look like scoundrels precisely because they are seen as having no standards!

In our first example, Professor Light would engage an expert who will testify that even if Professor Light's preliminary results cannot be explained by existing scientific principles, it is clearly within the scientific community's commonly accepted practices to propose and conduct experiments to test the previous results, and, indeed, to deny Professor Light the right to propose or conduct such experiments would itself be contrary to the commonly accepted practice of affording academic freedom to scientific investigations. With respect to Professor Light's preliminary data, it would likewise be contrary to commonly accepted practices to assume it was incorrect without attempting to reproduce it.

In our second example, Dr. Tsara would engage an expert who will testify that, under the circumstances, Dr. Tsara's administrative failure to exclude false data from the collective data base is clearly not a substantial deviation from the scientific community's commonly accepted practices, and that by identifying the source of the data in her publication correctly, Dr. Tsara's conduct was clearly within commonly accepted practices.

There should be no hearing on the merits of any proposed finding of misconduct unless HHS establishes that it has jurisdiction to impose sanctions. At the hearing on jurisdiction, the respondent should be prepared with expert testimony to show that, even if the facts alleged against him are true, the behavior complained of is not "scientific misconduct."

Next - THE POLITICS OF INVESTIGATIONS
Previous - HHS JURISDICTION

 


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