Wikipedia in the Courts
In an earlier post, I suggested that students may be competent searchers of information on the Internet but may need more guidance in assessing the relative worth of the information they find. Turns out students aren’t the only ones in need of guidance. In an opinion released in February, the U.S. Court of Federal Claims scolded a special master in a vaccine injury case for sua sponte supplementing the record with “medical ‘articles’ on afebrile seizures” that she located on the Internet.
In light of the requirement that a finding of causation (or lack thereof) in such cases must be supported by “reliable medical or scientific evidence,” the Court of Federal Claims concluded that the articles that the special master introduced into the record “[did] not — at least on their face — remotely meet this reliability requirement”:
Consider the item on “febrile seizures” that she added from the Dictionary of Neurology, www.explore-medicine.com. Although that website no longer exists, the exhibit introduced by the Special Master indicates that its information was drawn from Wikipedia.com, a website that allows virtually anyone to upload an article into what is essentially a free, online encyclopedia. A review of the Wikipedia website reveals a pervasive and, for our purposes, disturbing series of disclaimers, among them, that: (i) any given Wikipedia article “may be, at any given moment, in a bad state: for example it could be in the middle of a large edit or it could have been recently vandalized;” (ii) Wikipedia articles are “also subject to remarkable oversights and omissions;” (iii) “Wikipedia articles (or series of related articles) are liable to be incomplete in ways that would be less usual in a more tightly controlled reference work;” (iv) “another problem with a lot of content on Wikipedia is that many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written;” and (v) “many articles commence their lives as partisan drafts” and may be “caught up in a heavily unbalanced viewpoint.” The websites from which other articles introduced by the Special Master are drawn likewise warn that “the information provided herein should not be used . . . for the diagnosis or treatment of any medical condition,” www.iowahealth.org; that the sponsor “does not recommend or endorse any specific . . . opinions, or other information that may be mentioned on the Site,” www.webmd.com; or “makes no representation or warranty regarding the accuracy, reliability, completeness, currentness, or timeliness of the content, text or graphics” in its articles, www.nlm.nih.gov/medlineplus. And several of these websites caution that reliance on any information provided by the website is “solely at your risk,” see, e.g., www.webmd.com.
Without an evidentiary hearing that “would have provided an opportunity for expert witnesses to corroborate or refute the information contained in the articles,” the court concluded, “ . . . reliance on these web materials involved an extraordinary risk that cannot be squared with the Special Master’s responsibility for conducting a proceeding consistent with the principles of fundamental fairness.”