TORTINI

For your delectation and delight, desultory dicta on the law of delicts.

The United States Government’s Role in the Asbestos Mess

January 31st, 2012

More Asbestos History

The role of the United States government in the asbestos mess is relatively unexplored historical territory.  Anti-asbestos zealots, including the “Lobby,” and the plaintiffs bar, have demonized industry for the failure to control asbestos health hazards.  The truth is very different.  (The term, “the Lobby,” comes from the insightful article by the late Prof. Liddell:  F. D. K. Liddell, “Magic, Menance, Myth and Malice,” 41 Ann. Occup. Hyg. 3 (1997).  Liddell’s article should be required reading for all judges with an asbestos docket, as well as all policy makers and legislators who tackle asbestos issues.)

Back in 2007, Walter Olson, wrote an important essay on government and risk, “Dangerous When In Power” Reason (Mar. 2007). Olson later followed up on this theme at Point of Law, where he wrote about “The U.S. Navy and the asbestos calamity.”  Olson published some observations I shared with him at the time:

“In the mid-1970s, amidst economic turmoil and declining military budgets, the US Navy found itself with a big problem. Payments to civilians under the FECA (Federal Employees Compensation Act), a statute that gives civilian employees of shipyards the equivalent of workers’ compensation benefits, came right out of the Navy’s budget for shipbuilding. The Navy had no insurance for FECA payments, and suddenly it found itself facing a large uptick in the number of claims made by civilians for asbestos-related injuries.

About the same time, many states adopted some version of strict product liability, some stricter than others. None was likely stricter than Pennsylvania’s version.

The FECA gives the government liens against any recovery in third-party actions. The JAG lawyers, faced with a blooming docket of FECA cases, started to encourage the workers compensation plaintiffs’ lawyers to file third-party actions. Indeed, in Philadelphia, the lawyers who stepped into the forefront of asbestos personal injury actions had been workers comp lawyers with a large FECA docket (Gene Locks; Joe Shein).

The cruel irony of the FECA (or workers’ comp) statutes is that the employer pays regardless of fault, that the employer can’t be sued in civil actions, and that the employer can recover ~80% of its payments from settlements or judgment proceeds from a civil defendant.

Ultimately, the plaintiffs’ bar found that recoveries and settlements were too certain to encumber themselves and their clients with government liens, and they stopped filing their FECA cases altogether.

The government’s role in fueling the explosion of asbestos civil actions has never, to my knowledge, been discussed in the media. When I was a young lawyer, my first trials were in defense of companies that were dragged into litigation over having sold asbestos products to the Navy, often pursuant to government specifications. These cases, filed in the late 1970s, up for trial in the mid-1980s, often had a letter in the claimant’s personnel file from the JAG officer, noting that the man had been diagnosed with asbestosis and urging him to seek legal counsel to consider a civil suit against the Navy’s suppliers. Unfortunately, I don’t have any of these documents anymore, but they may not be too difficult to obtain.

What a story is hidden away in those old files! Not only did the Navy know of the asbestos hazards, hide them from its civilian workers, but when those workers got sick, the Navy turned on its outside suppliers by encouraging its workers to sue the suppliers, while hiding behind the exclusive remedy provision of the FECA.”

The historical mythology of asbestos and its hazards was created in large measure with the active cooperation of the government and asbestos plaintiffs’ lawyers.  The government, acting through the plaintiffs’ bar, was able to keep its weapons budgets intact, by minimizing its own losses on FECA payments.  We should probably thus regard the asbestos litigation as an early form of the parens patriae suits that have become a commonplace.

In the late 1960s, some of the asbestos insulation manufacturers that were still in business, created their own mythology. In litigating the early,  Navy-inspired, failure-to-warn claims, these insulation manufacturers advanced the unfounded view that the dangerousness of asbestos to end users was somehow not known before Dr. Irving Selikoff publicized the hazard, with his work in 1964. The insulators union’s publication, Asbestos Worker, shows an awareness of the hazard before then; indeed, the union’s appreciation of the hazard was in large measure the reason that the union approached Selikoff to conduct epidemiologic studies on their membership. The U.S. Navy was also well aware of the hazards (and thus did not need to be warned by anyone), as can be seen in an article entitled “Asbestosis” by Capt. H.M. Robbins & W.T. Marr in the October 1962 issue of the Navy’s Safety ReviewSee also Walter Olson, “Asbestos awareness pre-Selikoff,” (Oct. 19, 2007).

Recently, a defense expert witness, Dr. Dennis Paustenach, published an historical review on the evolution of knowledge about asbestos.  Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011) (available for download free of charge).

Here is the authors’ abstract:

“We evaluated dozens of published and unpublished documents describing the knowledge and awareness of both the scientific community and governmental entities, particularly the US Navy, regarding the health hazards associated with asbestos over time. We divided our analysis into specific blocks of time: 1900–1929, 1930–1959, and 1960–1970. By 1930, it was clear that high occupational exposure to asbestos caused a unique disease (asbestosis). Between about 1938 and 1965, a considerable amount of exposure and epidemiology data were collected by various scientific and government organizations. Between 1960 and 1970, mesothelioma was clearly linked to exposure to amphibole asbestos. Nonetheless, the Navy continued to require the use of asbestos-containing materials on ships, but also recommended that proper precautions be taken when handling asbestos. We concluded that the Navy was arguably one of the most knowledgeable organizations in the world regarding the health hazards of asbestos, and that it attempted to implement procedures that would minimize the opportunity for adverse effects on both servicemen and civilians. Finally, it is apparent from our research that through at least 1970, neither the military nor the private sector believed that the myriad of asbestos-containing products considered “encapsulated” (e.g. gaskets, brakes, Bakelite) posed a health hazard to those working with them.”

The subject is well covered territory, but the article approaches its subject matter from the perspective of what was known by the United States Navy, which may well have been singlehandedly responsible for exposing the greatest number of men and women to asbestos in the United States.  Back in the 1980s, Dr. Sam Forman covered a similar theme, but only through War War II.  See Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988).

The focus on the Navy is a welcome change from the conspiratorial histories of Brodeur, Castleman, Rosner, and others whose writings suggest that “industry,” more or less specifically defined, withheld material knowledge from its customers.  In the case of the Navy, the withholding may have gone the other way around.

I leave it to readers to judge the bona fides and Franke and Paustenbach’s historical essay, but from my perspective, the article generally hits a more balanced and better supported view of the asbestos state of the art.

The article is, however, not without problems.

Here are some things that were either left out, or given incomplete or inadequate emphasis:

1. The Navy’s work rules that required asbestos insulation to be removed from its packaging on shore, before being taken on board ships.  This work rule deprived ship-board workers of the benefit of warnings.  (Whether package warnings could have made any difference to control exposures that required technical personnel with exposure measuring equipment is a whole other matter.)

2. The Navy had effective knowledge of working conditions through its ownership and control of the workplace.  In this respect, the Navy’s knowledge of the hazards created in its shipyards was vastly greater than that of remote suppliers.

3.  The Navy’s had no workers’ compensation budget per se.  Money paid to civilian employees under the Federal Employees’ Compensation Act (FECA) came directly from the Navy’s general revenues.  Navy legal counsel encouraged FECA plaintiffs’ counsel to sue the Navy’s vendors under emerging doctrines of strict liability.  In some states, such as Pennsylvania and New Jersey, the vendors, sued in strict liability, often could not point to the Navy’s negligence as a defense because the Navy was immune from a civil suit.

There are historical nits to pick with Franke’s article, as well.  Consider:

“the elevated risk of lung cancer was first formally discovered by Doll in 1955 (Doll, 1955).”

Id. at 2.  What does it mean to discover something formally?  Doll certainly did not present a mathematical proof, with Q.E.D. at the bottom line.  The men who had lung cancer in Doll’s cohort also had asbestosis, and his study suggested that there was a relationship between the diffuse interstitial pulmonary fibrosis and lung cancer, and not necessarily an association with the lighter, more intermittent exposures sustained by insulators.  Furthermore, although Doll’s cohort was impressive at the time, he had no control for smoking.  This oversight was remarkable given that Doll was working on the epidemiology of smoking and lung cancer at the very time he published his cohort study of asbestos factory workers.

And consider the authors’ statement:

“Crocidolite was not frequently used in products … .”

Id. at 3 (citing Rachel Maines, Asbestos and Fire (New Brunswick 2005). The authors do not provide a specific page reference so it is difficult to evaluate their citation of Professor Maines.  What is known, however, is that crocidolite was used in transite pipe and board products, as well as other products, used throughout the United States, including Navy shipyards.  After Johns-Manville went into bankruptcy, shipyard workers miraculously experienced a sudden, permanent loss of memory about their use of JM products.  A careful review of the pre-JM-bankruptcy testimony of key shipyard workers, however, shows that “big blue” was in Navy shipyards.

Discovery into the Origin of Historian Expert Witnesses’ Opinions

January 30th, 2012

As every trial lawyer in America knows, the Federal Rules of Civil Procedure were recently changed to protect expert witness draft reports and lawyer-expert witness communications from discovery.  See Rule 26. Duty to Disclose; General Provisions Governing Discovery (amended effective December 2010).

In particular, Rule 26(b) (4)(B), and (C) provides:

(4)(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(i) relate to compensation for the expert’s study or testimony;

(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

In some ways, this amendment was a retrograde step.  Although protecting drafts and communications from discovery helps ease the expense and inconvenience of working with expert witnesses, the amendment also serves to protect unscrupulous lawyers and expert witnesses who work in concert to present tendentious opinions.

In the sciences, tendentious opinions will ultimately be embarrassed by future facts, but in the field of history, the interpretative narratives are often unfalsifiable and malleable.  Discovery into the creative process of historian expert witnesses’ opinions needs to be complete and thorough.

Consider the consider the case of Barry Castleman, who has testified for decades for the asbestos litigation industry, on historical issues in asbestos personal injury cases.  Back in 1986, when Castleman was still “researching” his opinions, he received a letter from plaintiffs’ lawyer, Tom Hart:

 

Mr. Barry Castleman                                                                                   January 9, 1986
1722 Linden Avenue
Baltimore, Maryland 21217

RE: Kenneth Lynch

Dear Barry:

As a follow-up to our conversation on January 6, 1986, I have reviewed our files and find that we do not have a file on Kenneth Lynch. Apparently I was provided with some of these papers indirectly. I seem to recall that the attorneys from California came to South Carolina and conducted the search for Kenneth Lynch’s papers.

We have not been eager to pursue this due to our understanding that Dr. Lynch was not convinced that asbestos was a cause of cancer. Despite his earlier publications, he remained personally reluctant to state that asbestos was causally related to the formation of cancers until some time in the late 1950’s or early 1960’s. This indecision on his part would be contrary to our best interests in the asbestos litigation and, accordingly, we have discouraged other counsel from exploring this further.

Since we do not have the specific documents you need, perhaps Marcia Hughes could provide them to you from Dick Gerry’s office in San Diego.

With best regards, I am

Very truly yours,

Thomas H. Hart, III

 

Dr. Lynch was a well-known South Carolina pathologist, who, along with Dr. William Smith, published a case report of lung cancer in a patient with asbestosis.  See Kenneth M. Lynch & William A. Smith, “Pulmonary asbestosis III: carcinoma of lung in asbestosilicosis,” 23 Am. J. Cancer 56 (1935).  Plaintiffs’ counsel were eager to over interpret this case report as showing an association, which was beyond the ability of a single, uncontrolled case to do.

The new Rule can be seen to have a few holes in it.  Discovery is permitted into facts or data provided by counsel, and which were considered by the expert witness.  Discovery is also permitted into the identity of assumptions given by the directing counsel, and relied upon by the expert witness.  The letter from Hart to Castleman above, however, illustrates that important insights may result from suggestions, implicit or explicit, not to look at certain facts.

Ethics and Statistics

January 21st, 2012

Chance magazine has started a new feature, the “Ethics and Statistics column, which is likely to be of interest to lawyers and to statisticians who work on litigation issues.  The column is edited by Andrew Gelman.  Judging from the Gelman’s first column, I think that the column may well become a valuable forum for important scientific and legal issues arising from studies used in public policy formulation, and in reaching conclusions that are the bases for scientific expert witnesses’ testimony in court.

Andrew Gelman is a professor of statistics and political science in Columbia University.  He is also the director of the University’s Applied Statistics Center.   Gelman’s inaugural column touches on some issues of great importance to legal counsel who litigate scientific issues involving scientific studies:  access to underlying data in the studies that are the bases for expert witness opinions.  See Andrew Gelman, “Open Data and Open Methods,” 24 Chance 51 (2011).

Gelman acknowledges that conflicts are not only driven by monetary gain; they can be potently raised by positions or causes espoused by the writer:

“An ethics problem arises when you are considering an action that

(a) benefits you or some cause you support,

(b) hurts or reduces benefits to others, and

(c) violates some rule.”

Id. at 51a.

Positional conflicts among scientists whose studies touch upon policy issues give rise to “the ethical imperative to share data.”  Id. at 51c.  Naming names, Professor Gelman relates an incident in which he wrote to an  EPA scientist, Carl Blackman, who had presented a study on the supposed health effects of EMF radiation.   Skeptical of how Blackman had analyzed data, Gelman wrote to Blackman to request his data to carry out additional, alternative statistical analyses.  Blackman answered that he did not think these other analyses were needed, and he declined to share his data.

This sort of refusal is all too common, and typical of the arrogance of scientists who do not want others to be able to take a hard look at how they arrived at their conclusions.  Gelman reminds us that:

“Refusing to share your data is improper… .”

* * * *

“[S]haring data is central to scientific ethics.  If you really believe your results, you should want your data out in the open. If, on the other hand, you have a sneaking suspicion that maybe there’s something there you don’t want to see, and then you keep your raw data hidden, it’s a problem.”

* * * *

“Especially for high-stakes policy questions (such as the risks of electric power lines), transparency is important, and we support initiatives for automatically making data public upon publication of results so researchers can share data without it being a burden.”

Id. at 53.

To be sure, there are some problems with sharing data, but none that is insuperable, and none that should be an excuse for withholding data.  The logistical, ethical, and practical problems of data sharing should now be anticipated long before publication and the requests for data sharing arrive.

Indeed, the National Institutes of Health requires data sharing plans to be part of a protocol for a federally funded study.  See Final NIH Statement on Sharing Research Data (Feb. 26, 2003). Unfortunately, the NIH’s implementation and enforcement of its data-sharing policy is as spotty as a Damien Hirst painting.  SeeSeeing Spots” The New Yorker (Jan. 23, 2012).

Tortini – Guilt-Free Pastry

January 16th, 2012

Well, I have blogged over 100 posts on Tortini.  I have had the gratification of seeing some of these posts quoted, approvingly and disapprovingly, in print publications, as well as in other blogs.   More important, the blog has put me in contact with some very interesting people, who have generously shared ideas, comments, and criticisms — all grist for my blogging mill.

Up till now, I have not made my blog interactive; I have not set up the blog to permit comments from readers.   I have avoided this level of on-line, immediate interactivity with my readers mostly to avoid the pressure of having to monitor the blog closely.  As the quasi-publisher, I feel a responsibility to make sure that the comments were legitimate “fair comment,” and not defamatory rubbish, or worse.

Recently, Professor Deborah Mayo posted a good portion of my post, The Continuing Saga of Bad-Faith Assertions of Conflicts of Interest on her blog. The post attracted the attention of a critic who described my post with a mixed metaphor:  “meretricious garbage.”  I responded on Mayo’s website, but the exchange made me realize that there are plusses and minuses to opening up a blog to comments.

I think for my part, I will continue Tortini as I have been doing.  If I have given offense, personally, professionally, or intellectually, I invite you to write to me.  Let me know whether you are willing to have me post your comments.  I am certainly open to posting opposing points of view on Tortini.