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

Leaving Las Vegas

February 24th, 2013

The Journal of the National Cancer Institute recently published a curious article about what appears to be unpublished research that suggests a non-asbestos environmental cause of malignant mesothelioma in Clark County, Nevada.  Leslie Harris O’Hanlon, “Researchers Explore Possible Link Between Mesothelioma and Dust Emissions in Southern Nevada,” J. Nat’l Cancer Instit., doi: 10.1093/jnci/djt033,  published ahead of print (Feb. 12, 2013).

The researcher appears to have been Francine Baumann , an epidemiologist at the University of Hawaii Cancer Center, who has worked with Michele Carbone, on occasion.  Analyzing Nevada’s cancer registry data from 1995 to 2008, Baumann found what she believed to be an increase in earlier age at diagnosis, and a reduced ratio of male-to-female cases for Clark County.   She interpreted these data to show that an environmental exposure was at work, but she professed ignorance of what the exposure might be.

The article also quotes the Nevada state epidemiologist, Ihsan Azzam, M.D., Ph.D., as saying:

“We analyzed the data and used the same data set as the researcher and came to completely different conclusions and findings. Their interpretation of data and their representation of it is wrong.”

The article presents no data or statistical analysis.  Given that Baumann’s work is unpublished, and apparently contradicted, it is curious that the Journal would publish any story about it.  Some of the raw data can be found online at Nevada Central Cancer Registry, including an online database, and Reports From The Office of Public Health Informatics and Epidemiology.

The O’Hanlon article is even more curious considering the nature of the research.  There are 16 counties in Nevada,  so Baumann presumably was canvassing counties without a pre-specified hypothesis as to whether Clark County was different from the others, or from the national rates.  This seems like post-hoc data dredging, but the Journal does not provide sufficient information to assess the validity of Baumann’s work.

The O’Hanlon article bizarrely talks about an unknown environmental cause in Clark County, but does not mention erionite, a zeolite.  The article discusses erionite-associated mesothelioma in Turkey, and an investigation into erionite occurrences in the United States.  Remarkably, O’Hanlon fails to mention that erionite occurs in Clark County, and in many other counties, throughout Nevada.  The NIOSH Science Blog fills in the missing information by showing how widespread erionite deposits are throughout Nevada.  See David Weissman, MD, and Max Kiefer, MS, CIH, “Erionite: An Emerging North American Hazard,” (Nov. 22, 2011).  Of course, the widespread deposits argue against erionite as a causal explanation for the putative environmental trigger in Clark County.  See also Arthur J. Gude & Richard Sheppard, “Wooly Erionite from the Reese River Zeolite Deposit, Lander County, Nevada, and its Relationship to Other Erionites,” 29 Clays and Clay Minerals, 378-384 (1981); Keith Papke, “Erionite and Other Associated Zeolites in Nevada,” Bulletin 79, Nevada Bureau of Mines and Geology (1972).

Erionite occurs in several mineralogical forms, including non-fibrous and various fibrous forms.  The erionite associated with environmental cases in Turkey has been studied and found to be fibrous, but there are many variations in fibers, including length, and length-to-diameter aspect ratio.  Erionite is a zeolite mineral and has the ability to absorb metal ions, including chromate, uranyl, and other ions, which may be an independent source of potential carcinogenicity.

There are many reasons to leave Las Vegas, but Dr. Baumann probably has not found a new one.

The Lobby Lives – Lobbyists Attack IARC for Conducting Scientific Research

February 19th, 2013

“[A]n anti-asbestos lobby, based in the Mount Sinai School of Medicine of the City University of New York, promoted the fiction that asbestos was an all-pervading menace, and trumped up a number of asbestos myths for widespread dissemination, through media eager for bad news.”

This statement was not the ranting of an industrialist whose company was bankrupted by asbestos personal injury cases; nor was it the complaint of an industry scientist, dismayed at a body of research that showed his industry’s product to be harmful.  The statement was made by one of the most independent, thoughtful scientists who has worked on asbestos health effects, the late Doug Liddell, of the Department of Epidemiology and Biostatistics, in McGill University.  F.D.K. Liddell, “Magic, Menace, Myth and Malice,” 41 Ann. Occup. Hyg. 3, 3 (1997).

Although Professor Liddell died in 2003,  the “Lobby” lives and thrives.  Witness the article published earlier this month, in The Lancet.   David Holmes, “IARC in the dock over ties with asbestos industry,” 381 Lancet 359 (2013).   A Scientist at the International Agency for Research on Cancer (IARC), Valerie McCormack, accepted an invitation to present data at a scientific conference in Kiev, Russia, on chrysotile asbestos risk assessment and management.  McCormack’s decision set off a firestorm of protest from various sources, claiming that the Russian scientists were in “cahoots” with the Russian asbestos industry.

The Lancet article presents a muddled account of the issues, but a persistent reader may make out several supposed concerns of the “Lobbyists.” First, the Lobbyists objected on grounds that an earlier version of the paper to be delivered by McCormack, “Estimating the asbestos-related lung cancer burden from mesothelioma mortality,” was too favorable to chrysotile in relation to commercial amphibole asbestos. (The Lancet fails to mention that McCormack’s paper has since been published, with co-authorship by some distinguished scientists.  See Valerie McCormack, Julian Peto, G. Byrnes, K. Straif, and P. Boffetta, “Estimating the asbestos-related lung cancer burden from mesothelioma mortality,” 106 Brit. J. Cancer 575 (2012).)

Second, the Lobbyists objected to IARC’s decision to collaborate on a study of Russian miners and millers, with Evgeny Kovalevkiy. The study, entitled  “Historical cohort study of cancer mortality following exposure to chrysotile asbestos at the Uralasbest plant in Asbest, Russian Federation” is supported by the Russian Scientific Research Institute of Occupational Health (SRIOH), which supports the continued mining and exporting of chrysotile asbestos.  Especially vexing to the Lobbyists, Kovalevskiy has personally advocated public policy that encourages the continued use of chrysotile.  In the words of three American political scientists who sent a letter of protest to the IARC:

“Kovalevskiy is a leading promoter of use of chrysotile asbestos. He testified before the Supreme Court of Brazil in August 2012, as witness on behalf of the Brazilian Chrysotile Institute.  He testified that there is no evidence whatsoever to justify banning the use of chrysotile asbestos; that he opposes placing chrysotile asbestos on the Rotterdam Convention’s List of Hazardous Substances; that, in the past, harm to health was caused by the use of amphibole asbestos and excessive, prolonged exposure levels to chrysotile asbestos, but that, today, chrysotile asbestos is causing no harm to health in Russia. We consider that it is unacceptable that a scientist, who is a promoter of chrysotile asbestos use, should be a lead scientist on an IARC research project regarding chrysotile asbestos.”

“IARC in the dock” at 360 (quoting letter signed by Richard Lemen, Arthur Frank, and Barry Castleman).  The Lancet article conveniently omits any reference to the remunerative and unremunerative work by these gentlemen for the American anti-asbestos litigation industry.

Milward Symposium Organized By Plaintiffs’ Counsel and Witnesses

February 16th, 2013

The criticisms of corporate free speech are motivated, at bottom, over hostility to the views that would likely flow from corporate speech. In this age, it is a marvel that there is such hostility to free expression of ideas.  We should be much more focused on validity and factual accuracy of arguments than on sponsorship.  Sometimes, even the most biased sources manage to stumble upon the truth.

Still, sponsorship remains a major debating point for those who cannot or will not take the time to evaluate the merits of an issue.  The Center for Progressive Reform (CPR) is, like many American corporations, a nonprofit organization, but it aspires to be a “research and educational organization.” The CPR’s principal aims deal with protecting health and safety against occupational and environmental harms.  These are laudable goals even if the CPR is predictably a voice of entrenched interest groups, such as the litigation industry, also known as the plaintiffs’ tort bar.

One of the CPR’s key activities is “[d]efending clean science from political or corporate interference.” The CPR raises interesting questions about what is “clean,” and what is “dirty” science, and whether it is willing to defend science from all political and corporate interference, or only that interference with which it disagrees.

The American litigation industry is represented by a highly politicized “corporation,” the American Association for Justice (AAJ), previously known by the more revealing name, Association of Trial Lawyers of America (ATLA®).   The AAJ describes itself as a corporation, or a “collective,” that supports plaintiff trial lawyers as their “collective voice … on Capitol Hill and in courthouses across the nation … .” The Robert A. Habush Foundation is endowed by the AAJ, and serves as an educational mission.  Through the Habush Foundation, the AAJ funds educational programs, “think tanks,” and writing projects designed to influence judges, law professors, lawyers, and the public, on issues of importance to the AAJ:  “the civil justice system and individual rights” for bigger, better, and more profitable litigation outcomes.

Of the two organizations, the CPR, and the AAJ/ATLA, the CPR has the more disinterested stance, in theory. The AAJ may be a “not-for-profit,” but it represents the interests of one of the most powerful, and wealthiest, interest groups in American society — the plaintiffs’ bar.

Last May, the CPR sponsored a symposium in Washington D.C. on one of the most controversial, and reactionary decisions involving federal gatekeeping of expert witness testimony, Milward v. Acuity Specialty Products Group, Inc., 664 F.Supp. 2d 137 (D. Mass. 2009), rev’d, 639 F.3d 11 (1st Cir. 2011), cert. denied, U.S. Steel Corp. v. Milward, ___ U.S. ___, 2012 WL 33303 (2012).  The CPR’s interest in the Milward decision is clear.  One of CPR’s member “scholars,” Carl Cranor, was a partisan expert witness in Milward.  The trial court had excluded Cranor’s testimony; a panel of the First Circuit of the Court of Appeals reversed and ordered that Cranor and the plaintiffs’ other expert witnesses be heard at trial.  See Milward — Unhinging the Courthouse Door to Dubious Scientific Evidence (Sept. 2, 2011); WOE-fully Inadequate Methodology – An Ipse Dixit By Another Name (May 2, 2012).  The Milward decision embraced a vacuous methodology sometimes called “weight of the evidence” (WOE) or “inference to the best explanation,” which had been previously rejected by other Circuits, as well as by the United States Supreme Court, in General Electric Co. v. Joiner, 522 U.S. 136 (1997).

The agenda for the symposium, “Toxic Tort Litigation after Milward v. Acuity Specialty Products,” reflects the CPR’s role, in conjunction with the Wake Forest Journal of Law and Public Policy, in sponsoring the event.  The connection between the CPR and Wake Forest Law School may not be obvious.  CPR board member, Sid Shapiro, is a law professor at Wake Forest.  Shapiro and CPR member Thomas McGarity presented at the symposium. So did Professor Steve Gold, who has been an enthusiastic cheerleader for the Milward decision.  Law professors Michael Green and Joseph Sanders also presented.  There was only one practicing lawyer involved in the symposium, Texas plaintiffs’ lawyer, Steve Jensen, of Allen Stewart, P.C.  Mr. Jensen is a past chair of the AAJ’s Section on Toxic, Environmental, and Pharmaceutical Torts.

No defense counsel participated.

The proceedings of the Milward symposium will be published in an upcoming issue (volume 3, no. 1) of the Wake Forest Journal of Law and Public Policy.  This issue is scheduled to include papers from the presenters, along with one additional author, Carl Cranor.

The website of the Wake Forest Journal of Law & Policy describes the symposium:

In Milward v. Acuity Products, 639 F.3d 11 (1st Cir. 2011), the First Circuit became the first court – either federal or state – to allow a “weight of the evidence” methodology for assessing causation in a toxic tort case. The plaintiff had alleged that exposure to defendant’s benzene-containing products caused his rare leukemia (Acute Promyelocytic Leukemia (“APL”)).  His expert witness, a leading toxicologist and expert on benzene, surveyed five lines of scientific evidence from the peer-reviewed literature, and concluded the available evidence, taken as a whole, supported the inference that benzene exposure can cause APL.  The lower court, following a common post-Daubert approach, excluded the testimony “because no one line of evidence supported a reliable inference of causation, [and] an inference of causation based on the totality of the evidence was unreliable.”  The First Circuit rejected this “atomistic” approach, noting that the district court did not have the authority to exclude evidence because reasonable experts may disagree about what it means.

This symposium will explore the implications of Milward for toxic tort litigation in the federal and state courts, including whether it correctly applies Daubert v. Merrell Dow Pharmaceuticals, Inc., 509, U.S. 579 (1993).  * * * Speakers are invited to comment on any aspect on Milward that they find interesting and important, including the following issues:

  1. What role does the weight of the evidence methodology play in scientific risk assessment, and what are the implications of this role for tort litigation?
  2. Should well-founded testimony based on a weight of the evidence methodology be admissible in toxic tort litigation?  Does the Restatement of Torts (Third) § 28 cmt. c concerning the role of scientific judgment in adjudicating general causation support the admissibility of such testimony?
  3. Does the reliance of regulatory agencies, such as EPA, on a weight of the evidence methodology for purposes of regulating toxic chemicals support the result in Milward?  Or are there differences in the legal and policy judgments being made by regulators and judges that distinguish regulatory agencies from courts?
  4. What are the legal and policy implications of Milward for the future of toxic tort litigation?

The Journal also notes the sponsorship of the CPR, and, in a cryptic paragraph, reports that

“CPR thanks the Robert L. Habush Foundation for its support of the symposium.”

Most casual readers will not likely recognize the Habush foundation for what it is: an arm of AAJ/ATLA.  I suppose it was too painful for Wake Forest or the CPR to acknowledge openly that the litigation industry itself supported this symposium.  Some may find irony in the CPR’s past criticism of Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), when its current status as a conduit for litigation industry money to support scholarship in that industry’s interests.  See Daniel Farber, “Of the Corporations, By the Corporations, For the Corporations? The Meaning of the Citizens United Decision” (Jan. 21, 2010).

Professor Steve Gold’s paper, “When Certainty Dissolves into Probability: A Legal Vision of Toxic Causation for the Post-Genomic Era,” has been posted at the Social Science Research Network.  Steve Jensen’s contribution to the symposium has been published as well, in the AAJ’s trade journal.  Steve Baughman Jensen, “Reframing the Daubert Issue in Toxic Tort Cases,” Trial (Feb. 2013).