Peering Behind the Curtain: A Closer Look at Peer Review and Predatory Journals

The Daubert Court, in interpreting Rule 702 of the Federal Rules of Evidence, laid out various nonexclusive criteria for consideration in evaluating proposed scientific evidence, and one of them was peer review. As the Court put it, “[t]he fact of publication (or lack thereof) in a peer reviewed journal . . . will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 594 (1993). Peer review, or the absence thereof, was mentioned repeatedly by the New Jersey Supreme Court in endorsing Daubert in the recent decision in In re Accutane Litigation, 191 A.3d 560, 586, 592, 594 (N.J. 2018). Among other things, the court noted that the plaintiffs’ expert had not submitted “his ideas . . . for peer review or publication,” considering that failure to be a strike against his methodology. Id. at 572.