While we all rely on Google or other internet search engines to find and absorb information quickly these days, a recent decision in the Central District of Illinois highlights the problems for expert witnesses relying on internet research as a methodology. See Sherman v. BNSF Railway Co., Case No. 1:17-cv-01192, 2022 WL 138630 (C.D. Ill. Jan. 14, 2022). While Googling is likely a practice that many experts may engage in (though may be loathe to admit it), Google searching alone is a suspect methodology upon which to base expert opinions.
In Sherman, Plaintiff sued Defendant BNSF Railway Co. (BNSF) pursuant to the Federal Employers’ Liability Act, alleging that during her employment with BNSF, she was exposed to toxic substances and carcinogens, including asbestos, that caused her to develop rectal cancer.
BNSF moved to exclude Plaintiff’s medical causation expert. In relevant part, BNSF attacked the expert’s methodology in arriving at his general causation conclusion that asbestos could cause rectal cancer. During his deposition, the expert testified that in reaching his opinions 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, in that “he did not retain a list of what he viewed and what information he considered, he has no record of when the Google search was performed, what search terms he used, which sites he looked at, which articles he looked at, and what information he considered and discarded or why.”
The Sherman 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 lacking that it would be nearly useless to apply the non-exhaustive Daubert factors to it in order to determine its reliability.” In excluding the expert’s testimony, the court reasoned that it was “entirely precluded from finding [the expert’s] methodology was reliable where he did not keep any record whatsoever of the particulars of his Google search, including the simple 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 particulars of [his] Google searches, specifically any information he reviewed and rejected and the reasons for doing so.”
Plaintiff tried to resuscitate her expert, noting that his opinions were reliable because “he drew from his extensive knowledge, training, and experience as a medical oncologist, he undertook a review of the available literature, considering both positive and negative evidence, and he reviewed publications of authoritative bodies.” The court rejected this, noting that “[t]he fact that [the expert] purportedly applied his knowledge, training, and experience to the existing data he reviewed does not eliminate the shortcoming that the full extent of that data is not known.”
Sherman is obviously not the first case to exclude an expert for failure to conduct a reliable literature review. See e.g., In re Lipitor (Atorvastatin Calcium Marketing, Sales Pracs. and Prods. Liab. Litig., 174 F. Supp. 3d 911, 935 (D.S.C. 2016) (finding that it was not a “valid methodology” where expert “had no explanation for how she identified [medical literature] for her consideration” and that she could not “simply pick the articles that she happened to remember or that supported her views, discuss them with a little commentary, and state an opinion”). Nor is it even the first case to find that conducting Google searches does not an expert make. See e.g. Price v. L’Oreal USA, Inc., 2020 WL 4937464, at *4 (S.D.N.Y. Aug. 24, 2020) (where expert opinion that ingredient in hair products was well known to consumers was “ based on certain Google searches” among other document review, and where expert “didn’t list every article that [he] saw” during those searches, his methodology was unreliable because “[w]ithout a record of the materials reviewed, [the expert’s] methodology cannot be tested, challenged or replicated”); Wai Feng Trading Co. Ltd., v. Quick Fitting, Inc., 2018 WL 6726557, at *10 (D.R.I. Dec. 21, 2018) (holding that expert methodology was “rooted in guesswork” and unhelpful under Rule 702 where expert noted that his methodology was based in part on “‘online searching and Google,’ although he was unable to say what this research revealed”); see also Toffoloni v. LFP Pub. Group, LLC, 2010 WL 4877911, at *2 (N.D. Ga. Nov. 23, 2010) (excluding damages expert’s opinion as unreliable in case where plaintiff sought damages for publication of unauthorized photographs; plaintiff’s expert calculated the value of the photographs based on researching the value of the publication of another public figure’s photographs, and concluded plaintiff’s “images were worth more because [she] was a bigger celebrity” “based . . . on Google search results”).
However, Sherman is a good reminder of the necessity to be ready to support your expert’s literature search, and also to challenge the search methodology of any opposing expert. “A reliable literature review ‘uses formal search methods to allow a researcher to obtain a neutral ‘snapshot’ of the existing research on a particular question.’” In re Lipitor, 174 F. Supp. 3d at 929. In addition to relying on formal search methods beyond Google (e.g. searches of academic and/or scientific databases), an expert should document his or her literature searches and materials reviewed. Likewise, an expert should be prepared to describe the method of his or her searches at deposition, including how certain material was chosen to rely on and how certain material was distinguished by the expert. While your expert still may want to utilize Google in part, relying solely on Google searches and failing to document them could lead to the opinions based on those searches or the expert’s entire testimony to be excluded. The Sherman opinion does not say whether the excluded expert used Google’s “I’m Feeling Lucky” button for his searches, but his luck ran out when he was required to show his work.