TORTINI

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

The Slemp Case, Part I – Jury Verdict for Plaintiff – 10 Initial Observations

May 13th, 2017

While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.”

Letter from Donald Trump to James Comey (May 9, 2017) (emphasis added)

Just as a President’s poor diction does not define or guide good English grammar, a lay civil jury’s verdict on scientific issues does not resolve open scientific questions of causation between exogenous exposures and cancer or other chronic disease outcomes. Last week, a jury in St. Louis returned a substantial verdict for compensatory and punitive damages against Johnson & Johnson, and others, for supposedly causing Lois Slemp to develop ovarian cancer. From some of the media coverage, readers might infer that Ms. Slemp’s attorneys’ had presented a credible case of causation between perineal talc use and ovarian cancer. See, e.g., Daniel Siegal, “J&J Hit With $110M Verdict In Latest Mo. Talc Cancer Trial,” Law360 (May 4, 2017). The cause of this verdict requires close scrutiny of the scientific evidence, the jury and juries generally, the lawyering from both sides, and the judicial management of the trial. 

Hit.” Hit? When did comic-book language invade legal journalism? Why not “slammed,” “zapped,” or “kapow”?

The case, which has gained this recent notoriety is Lois Slemp v. Johnson & Johnson, case no. 1422-CC09326-01, 22nd Judicial Circuit Court of Missouri. The jury awarded Ms. Slemp $5.4 million in compensation, and $66 million against Johnson & Johnson, $39 million against Johnson & Johnson Consumer, and $50,000 against Imerys (the talc miner and supplier), in punitive damages. On the compensatory award, the jury ascribed 99 percent of fault to the two J & J companies, and 1 percent to Imerys. Id.

The truth is that the Slemp verdict, as is the case for most civil jury verdicts, does not represent a valid scientific judgment. Nonetheless, the verdict requires explanation. If talc does not cause ovarian cancer, we may well ask whether the case was poorly defended, whether the court system failed to serve as a gatekeeper, and whether the scientific case was beyond the comprehension of the lay jury.

The verdict of course also raises serious questions about our civil justice system. The law of products liability typically states that a manufacturer or seller is held to the level of an expert in knowing the harmful aspects of its products. If this knowledge is widely known about consumers, then the seller will generally have an obligation to warn about the latent harm. But what happens when there is no knowledge of a causal relationship? Or what happens when experts legitimately disagree? How can a manufacturer or seller be charged with outrageous misconduct, let alone negligence, when experts sincerely and legitimately disavow a causal relationship?

David H. Schwartz, Ph.D. of Innovative Science Solutions LLC, and I posted a preliminary, big-picture overview of the Slemp case at the Courtroom View Network’s website. See Schwartz & Schachtman, “10 Key Scientific Takeaways From Recent $110M Talc Powder Verdict,” Courtroom View Network Blog (May 12, 2017). Thanks to the generosity of Courtroom View, David and I were able to view the video of the Slemp trial, and to evaluate the legal process of presenting a complicated scientific case to a lay jury. There is much to be said about that process, what went right and what went wrong, but for now, I will simply repeat, below, what we said on CVN’s blog. I hope in subsequent posts to look more closely at specific issues, especially with respect to the presentation of statistical and epidemiologic evidence, by all parties.

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The following is a republication (with minor formatting changes) of the original post, by David H. Schwartz and Nathan Schachtman. 

Establishing a rigorous and reliable causal inference between an exposure and an adverse health outcome is one of the most difficult things to do in the health sciences. However, it is sometimes even more difficult to effectively and appropriately demonstrate that a causal relationship does not exist.

The difficulty of this task was illustrated in the most recent talcum powder trial in St. Louis, Missouri. As was widely reported, Johnson & Johnson and talc raw material producer Imerys received the third (and largest) plaintiff verdict in their four recent talc trials (3 plaintiff verdicts and one defense verdict). Having the enviable opportunity to watch the trial (in real time or on demand) on Courtroom View Network’s website provides an invaluable opportunity to review and learn from an important ongoing mass tort action.

At this trial, the defense put up a single expert witness, Dr. Huh, a clinician who defended the aggressive and wide-ranging scientific claims advanced by plaintiff’s expert witnesses in a number of scientific disciplines, including epidemiology, clinical medicine, and pathology. Dr. Huh, a skilled and experienced ObGyn and a clinical gynecological oncologist, attempted to neutralize plaintiff’s scientific allegations made by putting the clinical characteristics of the patient into context, while dismissing the many statistically significant epidemiological studies touted by plaintiffs as adequately establishing a causal inference for talcum powder and ovarian cancer.

In his cross examination, plaintiff counsel continuously barraged Dr. Huh with technical observations relating to the large body of epidemiologic studies that plaintiff expert witnesses claimed demonstrated that talc exposure caused ovarian cancer. From the perspective of a scientist who has consulted with many product manufacturers alleged to cause cancer and other chronic diseases, and a lawyer who has tried many science-based cases over the past 32 years, this most recent trial illustrates some important and emblematic issues that arise in pharmaceutical, medical device, and toxic tort cases. We provide 10 such observations below.

1. Provide overall context of Bradford Hill criteria

Unlike other legal cases where there is a paucity of epidemiologic data showing statistically significant associations between an exposure and a disease endpoint, in this case there are many epidemiologic studies – and even some meta-analyses – that invite plaintiffs to make the claim that the available scientific evidence meets the Bradford Hill criteria. Therefore, it is critical to provide the jury with a lucid understanding of why the Bradford Hill criteria are utilized and how they should appropriately be applied. Indeed, the Bradford Hill criteria were developed for a situation exactly like the talc litigation; that is, a relatively weak association is reported and scientists want to determine whether that association should validly and reliably be considered causal.

2. Build solid foundation for “correlation does not equal causation” argument

Multiple studies assert an association between talc and ovarian cancer. However, the defense position is that the studies used to make this assertion suffer from bias and confounding, making them unreliable. Relying upon multiple flawed or biased studies to demonstrate a relationship between two factors does not make the two factors causally related. For example, it does not matter how many times one shows that wearing work boots is associated with back injury, it does not make wearing work boots a cause of back injury. (The two factors are associated, but not causally so.) It is critical for the defense to make it crystal clear (as many times as he is questioned) that “correlation does not equal causation.”

3. Develop a genetic defense

Knowledge of the role of genetic data related to ovarian cancer is moving at breakneck speed. Indeed, a study was published in March identifying nine new susceptibility loci for different epithelial ovarian cancer histotypes. While these data may or may not have been relevant to the individual patient in the Slemp trial, there is no way to know unless the defense had a full genome sequence of the plaintiff’s germline. Such information could conceivably be aligned with newly published data to demonstrate that her genetic profile was consistent with the development of ovarian cancer.

4. Hone the lack of consistency argument

Not surprisingly, in his cross examination of Dr. Huh, plaintiff counsel repeatedly referred to the many case-control studies that reported statistically significant associations between talc and ovarian cancer to support the view that the Hill criterion of “consistency” was met. Dr. Huh repeatedly attempted to rebut this assertion, but failed to make a clear argument as to why these multiple studies failed to support the criterion of consistency. He did refer to the fact that the cohort studies disagreed with the case control studies, but failed to clearly articulate his interpretation of that discrepancy.

At the end of the day, it is not at all surprising that multiple confounded and biased studies all demonstrate the same association. To truly demonstrate the criterion of consistency, one must show that the same results are obtained when using different study methods. Indeed, when a different study design is utilized (cohort studies), the association vanishes. One can posit methodological flaws in the cohort studies (misclassification bias as was repeatedly stated by plaintiff counsel), but flaws can also be posited for the case control studies (recall bias and confounding). The point is that repeating the same poorly conceived study design over and over does not constitute consistency and that the criterion of consistency is therefore not met in this data set.

An example, such as the strong relationship between Vitamin A and cancer prevention might have helped. In observational studies, Vitamin A is clearly associated with a reduction of lung cancer rates based on multiple observational studies. When the claim was tested in randomized clinical trials, the claim failed miserably; indeed, Vitamin A might even increase the rate of lung malignancies in those who took supplements. Similarly, hormone replacement therapy (HRT) was once thought to decrease the risk of cardiovascular disease based on multiple observational studies. It was not until a large randomized controlled trial was conducted that the putative association between HRT and cardiovascular benefit was discredited.

5. Do not let conflict of interest arguments cloud the causal inference assessment

Alleged conflicts of interest were raised repeatedly in accusatory tones, suggesting that any research that J & J funded could not be trusted. Furthermore, suggestions were made that J & J controlled where funding was allocated through their contributions to the National Institutes of Health. These arguments must be addressed aggressively and should not be allowed to hang in the air without response.

6. Pathological evidence must be confronted by someone who studied the pathology slides

Plaintiff counsel confronted Dr. Huh with allegations by plaintiff’s pathologist about the type of cancer from which plaintiff suffered. Because Dr. Huh is not a pathologist and because he did not look at plaintiff’s pathology sides, he attempted to use his clinical impressions and medical records to counter the pathological evidence offered by the plaintiff’s expert witness in pathology. The defense seemed enamored of a “less is more” strategy, but forcing expert witnesses into testimony beyond their expertise requires fortitude and perhaps luck.

7. Put “authoritative”statements into appropriate context

Throughout his cross examination, plaintiff’s counsel confronted Dr. Huh with statements from web sites and textbooks suggesting that talc caused ovarian cancer or where talc is listed as a risk factor for ovarian cancer. Many times, such statements referred to a putative association as opposed to a causal relationship. It is critical to point out their inherent weaknesses, including the fact that they have been cherry picked and to counter with other authoritative sources where talc is not listed as a risk factor and/or the causal link has been questioned. It is also important to be ready with other risk factors that could be equally likely to be linked to ovarian cancer and to emphasize that focusing on talc is arbitrary. The plaintiff is this recent trial was morbidly obese, an undisputed risk factor for ovarian cancer.

As with the lack of consistency argument (#3, above), rebuttal of this contention would be effectively guided using specific examples. For instance, many textbooks and other authoritative sources stated that HRT had cardiovascular benefits based on multiple observational studies. The fact is that these statements were wrong.

8. Concede that cohort studies are not always better than case-control studies

The talc defense strongly asserted the view that cohort studies are necessarily better than case control studies. While this contention is generally true (all factors being equal), it is not always true and it leads to some effective cross examination (e.g., the general assertion that cohort studies may suffer, in some instances, from misclassification bias). As one of us (NAS) stated in a recent post related to the California Science Day hearings, there is no reason to make the blanket statement that cohort studies are always better than case control studies.

Rather, the general point can be made that each study type has its appropriate use and that in this case, the findings from studies using the two different methodologies do not agree with each other. Clearly, the role of differential recall is just as likely to bias a case control study as the role of misclassification is to bias a cohort study. This leaves the evidence at a draw at best.

9. Provide a multi-disciplinary defense

In a case involving so many complex disciplines, it does not seem tenable to address all of them with a single expert, even one as well qualified and experienced as Dr. Huh. Many defense lawyers firmly believe in the “less is more” strategy, but complex scientific data sets such as these necessitate a complete presentation of the exculpatory evidence. Although it is easy in hindsight to criticize trial strategy, forcing a clinical oncologist to address pathology, toxicology, and epidemiology places an unfair burden on the lone witness. Certainly, a jury may be more prone to view an expert witness, who is willing to testify outside his area of expertise, as a hired gun advocate.

10. Careful and consistent use of terminology

Because of the nuanced nature of the defense case (i.e., statistically significant associations demonstrated in observational studies may not be causal in nature), it is critical to use terms consistently and carefully. Terms such as “association,” “link,” “causal inference,” and “causation” must be carefully defined and utilized judiciously and with clear intent.

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Of course, looking at testimony in hind-sight is always 20/20. As stated at the outset of this piece defending the assertion that an exposure is not causally related to a clearly defined injury is one of the most difficult things to do in the courtroom, especially when this is attempted through a single expert witness and there are numerous studies purporting to make such a link. Nevertheless, some extremely critical lessons can be learned from this experience to guide future cases.

David Egilman and Friends Circle the Wagons at the International Journal of Occupational & Environmental Health

May 4th, 2017

Andrew Maier is an associate professor in the Department of Environmental Health, in the University of Cincinnati. Maier received his Ph.D. degree in toxicology, with a master’s degree in industrial health. He is a Certified Industrial Hygienest and has published widely on occupational health issues. Earlier this year, Maier was named the editor-in-chief of the International Journal of Occupational and Environmental Health (IJOEH). See Casey Allen, “Andy Maier Named Editor of Environmental Health Journal(Jan. 18, 2017).

Before Maier’s appointment, the IJOEH was, for the last several years, the vanity press for former editor-in-chief David Egilman and “The Lobby,” the expert witness brigade of the lawsuit industry. Egilman’s replacement with Andrew Maier apparently took place after the IJOEH was acquired by the scientific publishing company Taylor & Francis, from the former publisher, Maney.

The new owner, however, left the former IJOEH editorial board, largely a gaggle of Egilman friends and fellow travelers in place. Last week, the editorial board revoltingly wrote [contact information redacted] to Roger Horton, Chief Executive Officer of Taylor & Francis, to request that Egilman be restored to power, or that the current Editorial Board be empowered to choose Egilman’s successor. With Trump-like disdain for evidence, the Board characterized the new Editor as a “corporate consultant.” If Maier has consulted with corporations, his work appears to have rarely if ever landed him in a courtroom at the request of a corporate defendant. And with knickers tightly knotted, the Board also made several other demands for control over Board membership and journal content.

Andrew Watterson wrote to Horton on behalf of all current and former IJOEH Editorial Board members, a group heavily populated by plaintiffs’ litigation expert witnesses and “political” scientists, including among others:

Arthur Frank

Morris Greenberg

Barry S. Levy

David Madigan

Jock McCulloch

David Wegman

Barry Castleman

Peter Infante

Ron Melnick

Daniel Teitelbaum

None of the signatories apparently disclosed their affiliations as corporate consultants for the lawsuit industry.

Removing Egilman from control was bad enough, but the coup de grâce for the Lobby came earlier in April 2016, when Taylor & Francis notified Egilman that a paper that he had published in IJOEH was being withdrawn. According to the petitioners, the paper, “The production of corporate research to manufacture doubt about the health hazards of products: an overview of the Exponent Bakelite simulation study,” was removed without explanation. See Public health journal’s editorial board tells publisher they have ‘grave concerns’ over new editor,” Retraction Watch (April 27, 2017).

According to Taylor & Francis, the Egilman article was “published inadvertently, before the review process had been completed. On completing that review, it was decided the article was unsuitable for publication in the journal.” Id. Well, of course, Egilman’s article was unlikely to receive much analytical scrutiny at a journal where he was Editor-in-Chief, and where the Board was populated by his buddies. The same could be said for many articles published under Egilman’s tenure at the IJOEH. Taylor & Francis owes Egilman and the scientific and legal community a detailed statement of what was in the article, which was “unsuitable,” and why. Certainly, the law department at Taylor & Francis should make sure that it does not give Egilman and his former Board of Editors grounds for litigation. They are, after all, tight with the lawsuit industry. More important, Taylor & Francis owes Dr. Egilman, as well as the scientific and legal community, a full explanation of why the article in question was unsuitable for publication in the IJOEH.

Talc Litigation Supported by Slippery Expert Witness

April 25th, 2017

Another day, another talc trial in Missouri. This one involves Lois Slemp, who sued Johnson & Johnson and its talc supplier, Imerys Talc America Inc., on her claim that her long-term use of talc caused her to develop borderline ovarian cancer.

To support her causal claim, Slemp’s lawyers called upon Dr. Daniel Cramer, a gynecologist and epidemiologist, from Harvard, to testify. See Daniel Siegal, “J & J’s Talc Caused Woman’s Cancer, Harvard MD Tells Jury,” Law360 (April 24, 2017) [cited as Siegel]. At first blush, counsel’s retention of Dr. Cramer seems like a brilliant choice. Cramer is a Professor of Epidemiology, at Harvard University’s T.H. Chan School Of Public Health, and a Professor of Obstetrics, Gynecology and Reproductive Biology, at Harvard Medical School. For over 30 years, Cramer has published primary studies, reviews, and commentary pieces in which he has addressed the epidemiologic and biological evidence involving talc and ovarian cancer.1

Cramer, as both a physician and an epidemiologist, addressed both general and specific causation in the Slemp case. Notwithstanding Slemp’s risk factors of family history of cancer and obesity, Cramer asserted with “reasonable degree of medical and scientific certainty” that talc was “the major contributing cause and substantial cause in the development of her serious borderline tumor.” Siegel, supra.

Somehow this physician epidemiologist has taken a putative risk factor and converted it into the cause. This conversion would perhaps make sense if the risk factor were necessary or sufficient to cause the outcome, but the evidence involving talc and ovarian cancer does not even remotely resemble such a situation. The epidemiologic evidence is weak and inconsistent, but if causation were assumed on the basis of cherry-picked studies, the relative risk for ovarian cancer would be somewhere around 1.2. Somewhat like the magic grits in My Cousin Vinny, Dr. Cramer has found a putative risk factor that blocks out all other risk factors, including the idiopathic, baseline risks that afflict all women in the age range of Ms. Slemp.

On cross-examination, Cramer was confronted with his failure to have asserted general causation in his professional, peer-reviewed publications on talc and ovarian cancer. Defense counsel Orlando Richmond drew the jury’s attention to an invidious comparison between Cramer’s courtroom assertions and his epistemically more modest conclusions and qualifications in the scientific literature, in which he never claimed a causal relationship between talc use and ovarian cancer:

Q. “Nowhere in the published scientific literature, did you or your colleagues, ever publish, ever publish, that genital talc use causes serious borderline tumors, the disease Ms. Slemp has. Isn’t that a correct statement, sir?”

A. “We certainly made a powerful case for there being an association. We may not have used the word ‘causal,’ if I had known how important that word was, I would have used it a long time ago.”

Siegel.

Wow! A Harvard professor of medicine and epidemiology, who teaches at the Harvard School of Public Health, and who labored in the field of epidemiology for over three decades, was unaware until earlier this week, when he darkened the doorway of a Missouri courtroom, that there was an important distinction between association and causation, and this distinction was crucial to discussions and debates in science and public policy.

Now that is slipperier than the most lubricious talc dusting. Why would such an accomplished physician scientist equivocate so? Perhaps Cramer refrained from drawing a causal conclusion because uncertainty favored obtaining future grants to study the same issue. Maybe he refrained from drawing a causal conclusion because doing so would have made him subject to criticism, ridicule, and rebuttal from his professional colleagues. I cannot think of a flattering reason for Cramer’s timidity in expressing himself clearly to his professional peers over the course of 34 years of researching the issues.

Previously, I have called attention to “white hat” bias in the courtroom, which occurs when scientists enter the fray based upon their distorted perceptions of siding with the “little guy” in a misguided quest for social justice. Cramer’s participation in the litigation process illustrates another kind of bias in play in courtrooms. After 30 years of publishing on talc and ovarian cancer, Cramer has failed to obtain acceptance of a claim for causality from the scientific community, but the courtroom is a venue where he can obtain the approving judgment of a scientifically naïve jury or judge and thus gain some vindication for his work that has gone unappreciated by professional colleagues and policy makers.


1 See, e.g., Daniel W. Cramer, et al., “The Association Between Talc Use and Ovarian Cancer: A Retrospective Case-Control Study in Two U.S. States,” 27 Epidemiology 334 (2016); Daniel W. Cramer, “The epidemiology of endometrial and ovarian cancer,” 26 Hematol. Oncol. 1 (2012); M. A. Gates, Daniel W. Cramer, et al., “Talc use, variants of the GSTM1, GSTT1, and NAT2 genes, and risk of epithelial ovarian cancer,” 17 Cancer Epidemiol. Biomarkers Prevention 2436 (2008); Joshua Muscat, M. Huncharek, and Daniel W. Cramer, “Talc and anti-MUC1 antibodies,” 14 Cancer Epidemiol Biomarkers Prevention 2679 (2005); Daniel W. Cramer, et al., “Presence of talc in pelvic lymph nodes of a woman with ovarian cancer and long-term genital exposure to cosmetic talc,” 110 Obstet. & Gynecol. 498 (2007); D. M. Gertig, Daniel W. Cramer, Graham A. Colditz, et al., “Prospective study of talc use and ovarian cancer,” 92 J. Nat’l Cancer Inst. 249 (2000); Daniel W. Cramer, “Perineal talc exposure and subsequent epithelial ovarian cancer: a case-control study,” 94 Obstet. & Gynecol. 160 (1999); Daniel W. Cramer, et al., “Genital talc exposure and risk of ovarian cancer,” 81 Internat’l J. Cancer 351 (1999); Bernard L. Harlow, Daniel W. Cramer, et al., “Perineal exposure to talc and ovarian cancer risk,” 80 Obstet. & Gynecol. 19 (1992); Daniel W. Cramer, et al., “Ovarian cancer and talc: a case-control study, 50 Cancer 372 (1982).

Succès de scandale – With Thanks to Rosner & Markowitz

March 26th, 2017

for there is only one thing in the world worse than being talked about, and that is not being talked about.”

Oscar Wilde, The Picture of Dorian Gray (1890)

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Some years ago, I co-chaired a Mealey’s conference on silicosis litigation. When plaintiffs’ counsel participate in such events, they are usually trolling for business, and jockeying for position on litigation steering committees. Ethical defense counsel are looking to put themselves out of business. My goal at the conference was to show that there was no there, there, so don’t go there. Mostly, the history of the litigation has proven me correct. In the early years of the 21st century, there were well over 10,000 cases pending. Now, there are just a hand full of pending cases. Very little money has been given to plaintiffs’ counsel; almost no sand companies have gone bankrupt.

At that Mealey’s conference, I presented a paper, which I later allowed Mealey’s to publish in its Silica Reporter. The paper became something of a “succès de scandale,” at least in getting under the skin of the Marxist historians, David Rosner and Gerald Markowitz, whom I took to task. In at least four of their publications, they have attempted unsuccessfully to rebut my arguments, and to criticize me for making them.1 At a meeting of the Committee on Science, Technology and the Law, of the National Academies of Science, I found myself presenting alongside Markowitz, on access to underlying study data. Markowitz played the victim of legal counsel’s subpoenas to his publisher for peer review comments in vinyl chloride, which grew out of his participation in the vinyl chloride litigation as an expert witness.2

I was on the panel for having served a subpoena upon Dr. Brad Racette for the underlying data of a study of parkinsonism in welders, with support in the form of the financial largesse of felon Richard Scruggs. Rosner was at this meeting only as a spectator, but he did not miss the opportunity, at a break, to get in my face, with the obvious intent of bullying me, with warnings that I would regret having ever written about them.

Back in 2007, the lawsuit-industry funded SKAPP conducted a conference, at which Rosner presented. I was not present, but a friend wrote me later, “Boy, does Rosner not like you. You steal a puppy from him or something?” When I presented at the Fourth International Conference on the History of Occupational and Environmental Health, in 2010, Rosner repeated his Middlebury behavior. As soon as I finished my talk, he rushed for the microphone and filibustered the entire question and answer period.3 I would chalk this up to fascisti of the left, except the very nice socialist historian who chaired my panel apologized profusely afterwards.

In a revised edition of one of their historical potboilers, Rosner and Markowitz repeated their calumny:

It was not just the lead and chemical industries that saw our book and the evidence we presented as a threat. Nathan Schachtman, an attorney with the Philadelphia-based firm McCarter & English, and who defended companies sued for ‘exposures to allegedly toxic substances, including asbestos, benzene, cobalt isocyanates, silica and solvents’, also published an attack on us in Mealey’s Litigation Report: Silica, titled, ‘On Deadly Dust and Histrionic Historians’. In his attack on our earlier book, Deadly Dust, a history of the devastating lung disease silicosis, he accused us of writing a ‘jeremiad’ that ‘resonates to the passions and prejudices of the last century’. He took us to task for our ‘prejudice’ that ‘silicosis results from the valuation of profits over people’ and admonished us to point out the higher rates of silicosis in Communist countries. ‘They [the authors] fairly consistently excuse or justify the actions of labor… . They excoriate the motives and actions of industry’. But Schachtman’s true agenda emerged in the middle of his third paragraph. ‘We could safely leave the fate of Rosner’s and Markowitz’s historical scholarship to their community of academicians and historians if not for one discomforting fact,’ he wrote. ‘The views of Rosner and Markowitz have become part of the passion play that we call silicosis litigation.’16

Schachtman seemed to be saying that as long as academics speak only to one another and had no influence beyond academia, they can be tolerated. But once they begin to affect that wider world, they need to be put back in their place. All this despite the fact that, at the time of Schachtman’s piece, more than a decade after the publication of Deadly Dust in 1991, each of us had appeared on the stand in only one case.”4

Rosner and Markowitz get virtually everything wrong, but one factoid may have been true. As of 1991, Rosner and Markowitz had perhaps only “appeared on the stand in only one case,” but by the time I wrote the article in 2005, the Marxist duo had been listed as expert witnesses in hundreds, if not thousands, of cases. The language quoted above appeared in an “Epilogue” to a 2013 publication, by which time Rosner and Markowitz each had testified over a dozen times, as professional historian “arguers.” Only Markowitz testified in vinyl chloride cases, from what I can make out, but the two of them testified in many silica, asbestos, and lead cases by the time they published their Epilogue.

One obvious point is that Rosner and Markowitz are both rather disingenuous in portraying themselves as innocent academics without connections to the lawsuit industry. In their world, they seek victim status to hide their long-standing partisanship in litigation issues. The real point, however, is that Rosner and Markowitz have never rebutted my arguments that silicosis was worse for workers in East Germany, the Soviet Union, Maoist China, under communist rule than it was in the post-1935 era in the United States. Unlike the rising incidence of asbestosis, the incidence of silicosis in the United States has steadily and significantly declined after World War II. Indeed, the Centers for Disease Control has held up the control of silicosis as one of the ten great public achievements in 20th century United States.5 SeeRamazzini Serves Courtroom Silica Science Al Dente” (July 25, 2015) (showing CDC data on declining silicosis incidence in the United States, against the rising trend in asbestosis incidence).


1 To date I have found four articles that dwell on the issue. See D. Rosner & G. Markowitz, “The Trials and Tribulations of Two Historians:  Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 280-81 (2009); D. Rosner & G. Markowitz, “L’histoire au prétoire.  Deux historiens dans les procès des maladies professionnelles et environnementales,” 56 Revue D’Histoire Moderne & Contemporaine 227, 238-39 (2009); David Rosner, “Trials and Tribulations:  What Happens When Historians Enter the Courtroom,” 72 Law & Contemporary Problems 137, 152 (2009); David Rosner & Gerald Markowitz, “The Historians of Industry” Academe (Nov. 2010).

2 Markowitz was excluded in at least one case in which he was disclosed as a testifying expert witness. Quester v. B.F. Goodrich Co., Case No. 03-509539, Court of Common Pleas for Cuyahoga Cty., Ohio, Order Sur Motion to Exclude Dr. Gerald Markowitz (Sweeney, J.).

3 Nathan Schachtman & John Ulizio, “Courting Clio:  Historians and Their Testimony in Products Liability Action,” in: Brian Dolan & Paul Blanc, eds., At Work in the World: Proceedings of the Fourth International Conference on the History of Occupational and Environmental Health, Perspectives in Medical Humanities, University of California Medical Humanities Consortium, University of California Press (2012); Schachtman, “On Deadly Dust & Histrionic Historians 041904,”; How Testifying Historians Are Like Lawn-Mowing Dogs” (May 15, 2010); A Walk on the Wild Side (July 16, 2010); Counter Narratives for Hire (Dec. 13, 2010); Historians Noir (Nov. 18, 2014).

4 Gerald Markowitz and David Rosner, Deceit and Denial: The Deadly Politics of Industrial Pollution at 313-14 (U. Calif. rev. ed. 2013). Footnote 16 was a reference to Nathan A. Schachtman, “On Deadly Dust and Histrionic Historians: Preliminary Thoughts on History and Historians as Expert Witnesses,” 2 Mealey’s Silica Litigation Report Silica 1, 2 (November 2003). Their language quoted above was largely self-plagiarized from Gerald Markowitz and David Rosner, “The Historians of Industry” (Nov. – Dec. 2010). 

5 CDC, “Ten Great Public Health Achievements — United States, 1900-1999,” 48 Morbidity & Mortality Weekly Report 241 (April 02, 1999).

The opinions, statements, and asseverations expressed on Tortini are my own, or those of invited guests, and these writings do not necessarily represent the views of clients, friends, or family, even when supported by good and sufficient reason.