Let Me Google That For You: A Recent Opinion from the Central District of Illinois Highlights the Limitations of Google Search by Expert Witnesses Under Rule 702 and Daubert | Faegre Drinker Biddle & Reath LLP
While we all rely on Google or other Internet search engines to quickly find and absorb information these days, a recent decision in the Central District of Illinois highlights the problems of expert witnesses who rely on internet research as a methodology. See Sherman v. BNSF Railway Co., Case No. 1:17-cv-01192, 2022 WL 138630 (CD Ill. January 14, 2022). While Google Search is probably a practice many experts can indulge in (although they may be reluctant to admit it), Google Search alone is a suspect methodology on which to base expert opinions.
In Sherman, plaintiff sued defendant BNSF Railway Co. (BNSF) under the Federal Employers Liability Act, alleging that during her employment with BNSF she was exposed to toxic and carcinogenic substances, including asbestos , which had led her to develop rectal cancer.
The BNSF decided to exclude the plaintiff’s medical causation expert. In the relevant part, the BNSF attacked the expert’s methodology in arriving at its general conclusion of causation that asbestos could cause rectal cancer. During his deposition, the expert testified that to form an opinion on certain chemicals and rectal cancer, his “general approach is to do a Google search, and that’s what I did in this case as well”.
BNSF argued that the expert’s methodology was unreliable, as “he did not keep a list of what he consulted and what information he considered, he did not There is no record of when the Google search was performed, what search terms he used, what sites he viewed, what articles he viewed, and what information he considered and rejected or why.
the Sherman the court agreed, noting that the “expert’s methodology – his Google search – seriously lacks indicia of reliability”. In fact, the court noted that “the expert’s methodology is so deficient that it would be almost pointless to apply the non-exhaustive method. Daubert factors to determine its reliability. By excluding the expert’s testimony, the court held that it was “totally excluded to conclude [the expert’s] methodology was reliable when he kept no record of the details of his Google search, including the mere fact of the date(s) on which he performed his Google searches. Significantly, it would be essentially impossible for defense counsel to effectively cross-examine [the expert] at trial without knowing the details of [his] Google does research, specifically all the information it has reviewed and rejected and the reasons for doing so. »
The plaintiff attempted to resuscitate her expert, noting that her opinions were reliable because “he drew upon his vast knowledge, training and experience as a medical oncologist, he undertook a review of the available literature , considering both positive and negative evidence, and it reviewed publications from authoritative bodies. The court rejected this, noting that “[t]it does so [the expert] purportedly applied his knowledge, training and experience to the existing data he has reviewed does not eliminate the flaw that the full extent of such data is not known.
Sherman is obviously not the first case to exclude an expert for failing to carry out a reliable literature review. See for example In re Lipitor (Atorvastatin Calcium Marketing, Sales Pracs. and Prods. Liab. Litig., 174 F. Supp. 3d 911, 935 (DSC 2016) (finding that this was not a “valid method” where the expert “had no explanation of how she identified [medical literature] for her consideration” and that she could not “simply choose the articles she remembered or that supported her opinions, discuss them with a short comment and express an opinion”). This is not even the first case to find that conducting searches on Google is not done by an expert. See for example Price v. L’Oreal USA, Inc., 2020 WL 4937464, at *4 (SDNY 24 Aug 2020) (where expert opinion that hair products ingredient was well known to consumers was “based on some Google searches” among other document reviews , and where the expert ‘did not list all the items that [he] seen” during this research, his methodology was unreliable because “[w]Without a record of the materials examined, [the expert’s] the methodology cannot be tested, disputed or reproduced”); Wai Feng Trading Co.Ltd., v. Quick Assembly, Inc., 2018 WL 6726557, at *10 (DRI 21 Dec 2018) (stating that the expert methodology was “rooted in guesswork” and unnecessary under Rule 702 where the expert noted that his methodology was based in part about “online research and Google, ‘although he was unable to say what that research revealed’); see also Toffoloni v. LFP Pub. Group, LLC, 2010 WL 4877911, at *2 (ND Ga. 23 November 2010) (excluding the opinion of the damages expert as unreliable in the event that the plaintiff sought damages for the publication of unauthorized photographs; the plaintiff’s expert calculated the value of the photographs based on research into the value of publishing the photographs of another public figure, and concluded that the “plaintiff’s images were worth more because than [she] was a “bigger celebrity” based. . . on Google search results”).
However, Sherman is a good reminder of the need to be prepared to support your expert’s desk research, and also to challenge the research methodology of any opposing expert. “A reliable literature review ‘uses formal research methods to enable a researcher to obtain a neutral ‘snapshot’ of existing research on a particular question.'” In re Lipitor, 174 F. Supp. 3d at 929. In addition to relying on formal research methods beyond Google (e.g., searches of academic and/or scientific databases), an expert should document their desk research and the documents reviewed . Similarly, an expert should be prepared to describe the method of their research when filing, including how certain documents were chosen to rely on and how certain documents were singled out by the expert. Although your expert will always want to use Google in part, relying solely on Google research and not documenting it could result in the exclusion of opinions based on that research or the expert’s entire testimony. the Sherman the review doesn’t say whether the excluded expert used Google’s “I’m lucky” button for his research, but his luck ran out when he had to show his work.