COVID-19 and the False Science of Computer Models:

How to Demand Production of Necessary Materials and Understand the Difference between Science Fiction and Science Fact

TASA ID: 2409

Science fiction is alive and well in American science.  The perfect example of this is COVID-19 and the false science of computer models.  Understanding the language of science and how it is used to deceive the general public, juries and judges is critical for every attorney.  Every attorney must understand the language of science in order to show the judge and/or jury whether the science is fiction or fact.

“Peer review” is science fiction when it is used by the scientists to claim that their published work has been validated, verified or authenticated by the very act of publication in a peer-reviewed journal.  To the contrary, “peer review” simply means that the article has been read to see if the content is a good match for the journal and checked for syntax, grammar and punctuation.  At no time is a peer-reviewed article checked by the journal’s editors or peer reviewers for truth.  At no time is the science validated, verified or authenticated by the journal’s editors or peer reviewers before publication.

Many scientists pay to have their articles published so that they can claim that they are published in a peer-reviewed journal.  Pay-to-publish, peer-reviewed journals are numerous and profitable.  The judge and/or jury need to know that having published peer-reviewed articles does not mean that the science has been validated, verified or authenticated.  Having published peer-reviewed articles does not mean that the scientist is credible.  Explaining the truth about peer review to the judge and/or jury can help win many cases.

A “black box” is science fact.  A “black box” is a term commonly used to describe computer models.  “Black box” means that no one knows what data or algorithms, if any, were used to program the computer model because they are hidden from validation and verification by the scientist and/or programmer.  Scientists use their authority (such as how many peer-reviewed articles they have) to tell the judge and/or jury to “trust me” and blindly believe the black box computer model offered as evidence of the truth.  After educating the judge and/or jury about the truth of peer review, the attorney can then explain that the computer model is a “black box” with all data and algorithms hidden.  The attorney then explains that the scientist is asking the judge and/or jury to simply trust him without any validation or verification of the evidence he is presenting.

When demanding production of the raw underlying data and algorithms used to program a computer model, the attorney needs to know how the scientist will prevent this production.  One method to resist production is the claim that the data contains personal identifying information that is so sensitive that the data can never be shared.  This is a false assertion.

All data can have the personal identifying information removed with ease and still provide the necessary information to validate and verify the computer model built from it.  There is no excuse not to provide de-identified data in production to validate and verify a computer model.

Another method that a scientist will use to resist production of the underlying raw data and algorithms is the assertion that the data and algorithms are proprietary and thus can never be shared or revealed.  The Second Circuit Court of Appeals recently ruled otherwise regarding the clean car computer models used by the Environmental Protection Agency.  All data and algorithms must be provided openly so that the computer models can be validated and verified as truth.

When demanding production of data, the attorney must specify certain things to make sure that the data produced is intact, not scrambled up, can be successfully read and analyzed for truth, and is sufficiently documented so that other scientists can replicate the original analysis to verify and validate the computer model.  The attorney must be prepared to receive data that has been altered, scrambled and otherwise made unusable, which has been done previously in litigation.

One of the conditions of production that an attorney must demand is that the receipt of all produced materials is not complete until the data is fully downloaded, successfully read and evaluated for completeness and integrity.  The attorney must demand the production of a reasonably descriptive data dictionary to accompany the production of the data in order to fully document the structure and contents of the data.  A data dictionary is a document listing and reasonably describing all the elements of a database containing the data produced so that other scientists will understand exactly what the data is and how it is used to create the computer model.

A useful technique for deposition and trial is to have a whiteboard present and then demand that the scientist show his work on that whiteboard.  The illustration of the computer model and how it was built step by step on the whiteboard for all to see will help bring clarity to the judge and/or jury if the computer model is science fiction or science fact.  You have to show your work just as if you are in high school algebra class.

TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

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