• Kirk Hartley

A Duty to Mine Big Data

Tort claims and defenses involve foreseeability. Data and information can drive foreseeability.

With data and foreseeability in mind, consider a recent, great post by David Oliver on "the duty to mine big data." The post is a look by David at a pharma case involving Fosamax. In essence, the argument was that seller was negligent for failing to use standard pharma industry software tools to look at FDA data for signs of Fosamax causing "oversuppression of bone turnover." According to an expert, the warning signs were sitting in the FDA data and would have been seen if the manufacturer had looked, using industry accepted software. David’s ultimate conclusion about the opinion:

"The court thereby implicitly held, I think, that the defendant had a duty to mine the FDA’s data as early as 2001-2002. In other words, the existence of powerful data mining tools capable of uncovering an early signal of a possible harm associated with defendant’s product created a duty to use such a tool. Ultimately, that’s a duty to discover any statistical association between your product and some harm in the FDA’s (admittedly accessible) that might be causal and to thereafter warn about it; and it’s a duty to mine not only your data but any data that might shed light on your product."

Assume David is right on the holding. Now go outside pharma. Consider the implications of mining the world’s knowledge when applied against current miners, users and sellers of asbestos fibers. Consider the implications for a chemical manufacturer or distributor. Also consider the vast power of today’s supercomputers (such as Blue Waters at the University of Illinois at Urbana-Champaign), and tomorrow’s quantum computers, as foreseen by Nobel Prize committees. And think about the fact that Gordon Moore gave Caltech $ 600 million to increase the pace of scientific research, and he and his wife Betty operate a foundation that endows other smart researchers.

Stunning changes are ahead, and some are arriving today.


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