TORTINI

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

High, Low and Right-Sided Colonics – Ridding the Courts of Junk Science

July 16th, 2016

Not surprisingly, many of Selikoff’s litigation- and regulatory-driven opinions have not fared well, such as the notions that asbestos causes gastrointestinal cancers and that all asbestos minerals have equal potential and strength to cause mesothelioma.  Forty years after Selikoff testified in litigation that occupational asbestos exposure caused an insulator’s colorectal cancer, the Institute of Medicine reviewed the extant evidence and announced that the evidence was  “suggestive but not sufficient to infer a causal relationship between asbestos exposure and pharyngeal, stomach, and colorectal cancers.” Jonathan Samet, et al., eds., Institute of Medicine Review of Asbestos: Selected Cancers (2006).[1] The Institute of Medicine’s monograph has fostered a more circumspect approach in some of the federal agencies.  The National Cancer Institute’s website now proclaims that the evidence is insufficient to permit a conclusion that asbestos causes non-pulmonary cancers of gastrointestinal tract and throat.[2]

As discussed elsewhere, Selikoff testified as early as 1966 that asbestos causes colorectal cancer, in advance of any meaningful evidence to support such an opinion, and then he, and his protégées, worked hard to lace the scientific literature with their pronouncements on the subject, without disclosing their financial, political, and positional conflicts of interest.[3]

With plaintiffs’ firm’s (Lanier) zealous pursuit of bias information from the University of Idaho, in the LoGuidice case, what are we to make of Selikoff’s and his minions’ dubious ethics of failed disclosure. Do Selikoff and Mount Sinai receive a pass because their asbestos research predated the discovery of ethics? The “Lobby” (as the late Douglas Liddell called Selikoff and his associates)[4] has seriously distorted truth-finding in any number of litigations, but nowhere are the Lobby’s distortions more at work than in lawsuits for claimed asbestos injuries. Here the conflicts of interests truly have had a deleterious effect on the quality of civil justice. As we saw with the Selikoff exceptionalism displayed by the New York Supreme Court in reviewing third-party subpoenas,[5] some courts seem bent on ignoring evidence-based analyses in favor of Mount Sinai faith-based initiatives.

Current Asbestos Litigation Claims Involving Colorectal Cancer

Although Selikoff has passed from the litigation scene, his trainees and followers have lined up at the courthouse door to propagate his opinions. Even before the IOM’s 2006 monograph, more sophisticated epidemiologists consistently rejected the Selikoff conclusion on asbestos and colon cancer, which grew out of Selikoff’s litigation activities.[6] And yet, the minions keep coming.

In the pre-Daubert era, defendants lacked an evidentiary challenge to the Selikoff’s opinion that asbestos caused colorectal cancer. Instead of contesting the legal validity or sufficiency of the plaintiffs’ general causation claims, defendants often focused on the unreliability of the causal attribution for the specific claimant’s disease. These early cases are often misunderstood to be challenges to expert witnesses’ opinions about whether asbestos causes colorectal cancer; they were not.[7]

Of course, after the IOM’s 2006 monograph, active expert witness gatekeeping should eliminate asbestos gastrointestinal cancer claims, but sadly they persist. Perhaps, courts simply considered the issue “grandfathered” in from the era in which judicial scrutiny of expert witness opinion testimony was restricted. Perhaps, defense counsel are failing to frame and support their challenges properly.  Perhaps both.

Arthur Frank Jumps the Gate

Although ostensibly a “Frye” state, Pennsylvania judges have, when moved by the occasion, to apply a fairly thorough analysis of proffered expert witness opinion.[8] On occasion, Pennsylvania judges have excluded unreliably or invalidly supported causation opinions, under the Pennsylvania version of the Frye standard. A recent case, however, tried before a Workman’s Compensation Judge (WCJ), and appealed to the Commonwealth Court, shows how inconsistent the application of the standard can be, especially when Selikoff’s legacy views are at issue.

Michael Piatetsky, an architect, died of colorectal cancer. Before his death, he and his wife filed a worker’s compensation claim, in which they alleged that his disease was caused by his workplace exposure to asbestos. Garrison Architects v. Workers’ Comp. Appeal Bd. (Piatetsky), No. 1095 C.D. 2015, Pa. Cmwlth. Ct., 2016 Pa. Commw. Unpub. LEXIS 72 (Jan. 22, 2016) [cited as Piatetsky]. Mr. Piatetsky was an architect, almost certainly knowledgeable about asbestos hazards generally.  Despite his knowledge, Piatetsky eschewed personal protective equipment even when working at dusty work sites well marked with warnings. Although he had engaged in culpable conduct, the employer in worker compensation proceedings does not have ordinary negligence defenses, such as contributory negligence or assumption of risk.

In litigating the Piatetsky’s claim, the employer dragged its feet and failed to name an expert witness.  Eventually, after many requests for continuances, the Workers’ Compensation Judge barred the employer from presenting an expert witness. With the record closed, and without an expert witness, the Judge understandably ruled in favor of the claimant.

The employer, sans expert witness, had to confront claimant’s expert witness, Arthur L. Frank, a minion of Selikoff and a frequent testifier in asbestos and many other litigations. Frank, of course, opined that asbestos causes colon cancer and that it caused Mr. Piatetsky’s cancer. Mr. Piatetsky’s colon cancer originated on the right side of his colon. Dr. Frank thus emphasized that asbestos causes colon cancer in all locations, but especially on the right side in view of one study’s having concluded “that colon cancer caused by asbestos is more likely to begin on the right side.” Piatetsky at *6.

On appeal, the employer sought relief on several issues, but the only one of interest here is the employer’s argument “that Claimant’s medical expert based his opinion on flimsy medical studies.” Piatetsky at *10. The employer’s appeal seemed to go off the rails with the insistence that the Claimant’s medical opinion was invalid because Dr. Frank relied upon studies not involving architects. Piatetsky at *14. The Commonwealth Court was able to point to testimony, although probably exaggerated, which suggested that Mr. Piatetsky had been heavily exposed, at least at times, and thus his exposure was similar to that in the studies cited by Frank.

With respect to Frank’s right-sided (non-sinister) opinion, the Commonwealth Court framed the employer’s issue as a contention that Dr. Frank’s opinion on the asbestos-relatedness of right-sided colon cancer was “not universally accepted.” But universal acceptance has never been the test or standard for the rejection or acceptance of expert witness opinion testimony in any state.  Either the employer badly framed its appeal, or the appellate court badly misstated the employer’s ground for relief. In any event, the Commonwealth Court never addressed the relevant legal standard in its discussion.

The Claimant argued that the hearing Judge had found that Frank’s opinion was based on “numerous studies.” Piatetsky at *15. None of these studies is cited to permit the public to assess the argument and the Court’s acceptance of it. The appellate court made inappropriately short work of this appellate issue by confusing general and specific causation, and invoking Mr. Piatetsky’s age, his lack of family history of colon cancer, Frank’s review of medical records, testimony, and work records, as warranting Frank’s causal inference. None of these factors is relevant to general causation, and none is probative of the specific causation claim.  Many if not most colon cancers have no identifiable risk factor, and Dr. Frank had no way to rule out baseline risk, even if there were an increased risk from asbestos exposure. Piatetsky at *16. With no defense expert witness, the employer certainly had a difficult appellate journey. It is hard for the reader of the Commonwealth Court’s opinion to determine whether the case was poorly defended, poorly briefed on appeal, or poorly described by the appellate judges.

In any event, the right-sided ruse of Arthur Frank went unreprimanded.  Intellectual due process might have led the appellate court to cite the article at issue, but it failed to do so.  It is interesting and curious to see how the appellate court gave a detailed recitation of the controverted facts of asbestos exposure, while how glib the court was when describing the scientific issues and evidence.  Nonetheless, the article referenced vaguely, which went uncited by the appellate court, was no doubt the paper:  K. Jakobsson, M. Albin & L. Hagmar, “Asbestos, cement, and cancer in the right part of the colon,” 51 Occup. & Envt’l Med. 95 (1994).

These authors 24 observed versus 9.63 expected right-sided colon cancers, and they concluded that there was an increased rate of right-sided colon cancer in the asbestos cement plant workers.  Notably the authors’ reference population had a curiously low rate of right-sided colon cancer.  For left-sided colon cancer, the authors 9.3 expected cases but observed only 5 cases in the asbestos-cement cohort.  Contrary to Frank’s suggestion, the authors did not conclude that right-sided colon cancers had been caused by asbestos; indeed, the authors never reached any conclusion whether asbestos causes colorectal  cancer under any circumstances.  In their discussion, these authors noted that “[d]espite numerous epidemiological and experimental studies, there is no consensus concerning exposure to asbestos and risks of gastrointestinal cancer.” Jakobsson at 99; see also Dorsett D. Smith, “Does Asbestos Cause Additional Malignancies Other than Lung Cancer,” chap. 11, in Dorsett D. Smith, The Health Effects of Asbestos: An Evidence-based Approach 143, 154 (2015). Even this casual description of the Jakobsson study will awake the learned reader to the multiple comparisons that went on in this cohort study, with outcomes reported for left, right, rectum, and multiple sites, without any adjustment to the level of significance.  Risk of right-sided colon cancer was not a pre-specified outcome of the study, and the results of subsequent studies have never corroborated this small cohort study.

A sane understanding of subgroup analyses is important to judicial gatekeeping. SeeSub-group Analyses in Epidemiologic Studies — Dangers of Statistical Significance as a Bright-Line Test” (May 17, 2011).  The chapter on statistics in the Reference Manual for Scientific Evidence (3d ed. 2011) has some prudent caveats for multiple comparisons and testing, but neither the chapter on epidemiology, nor the chapter on clinical medicine[9], provides any sense of the dangers of over-interpreting subgroup analyses.

Some commentators have argued that we must not dissuade scientists from doing subgroup analysis, but the issue is not whether they should be done, but how they should be interpreted.[10] Certainly many authors have called for caution in how subgroup analyses are interpreted[11], but apparently Expert Witness Arthur Frank, did not receive the memo, before testifying in the Piatetsky case, and the Commonwealth Court did not before deciding this case.


[1] As good as the IOM process can be on occasion, even its reviews are sometimes less than thorough. The asbestos monograph gave no consideration to alcohol in the causation of laryngeal cancer, and no consideration to smoking in its analysis of asbestos and colorectal cancer. See, e.g., Peter S. Liang, Ting-Yi Chen & Edward Giovannucci, “Cigarette smoking and colorectal cancer incidence and mortality: Systematic review and meta-analysis,” 124 Internat’l J. Cancer 2406, 2410 (2009) (“Our results indicate that both past and current smokers have an increased risk of [colorectal cancer] incidence and mortality. Significantly increased risk was found for current smokers in terms of mortality (RR 5 1.40), former smokers in terms of incidence (RR 5 1.25)”); Lindsay M. Hannan, Eric J. Jacobs and Michael J. Thun, “The Association between Cigarette Smoking and Risk of Colorectal Cancer in a Large Prospective Cohort from the United States,” 18 Cancer Epidemiol., Biomarkers & Prevention 3362 (2009).

[2] National Cancer Institute, “Asbestos Exposure and Cancer Risk” (last visited July 10, 2016) (“In addition to lung cancer and mesothelioma, some studies have suggested an association between asbestos exposure and gastrointestinal and colorectal cancers, as well as an elevated risk for cancers of the throat, kidney, esophagus, and gallbladder (3, 4). However, the evidence is inconclusive.”).

[3] Compare “Health Hazard Progress Notes: Compensation Advance Made in New York State,” 16(5) Asbestos Worker 13 (May 1966) (thanking Selikoff for testifying in a colon cancer case) with, Irving J. Selikoff, “Epidemiology of gastrointestinal cancer,” 9 Envt’l Health Persp. 299 (1974) (arguing for his causal conclusion between asbestos and all gastrointestinal cancers, with no acknowledgment of his role in litigation or his funding from the asbestos insulators’ union).

[4] F.D.K. Liddell, “Magic, Menace, Myth and Malice,” 41 Ann. Occup. Hyg. 3, 3 (1997); see alsoThe Lobby Lives – Lobbyists Attack IARC for Conducting Scientific Research” (Feb. 19, 2013).

[5]

SeeThe LoGiudice Inquisitiorial Subpoena & Its Antecedents in N.Y. Law” (July 14, 2016).

[6] See, e.g., Richard Doll & Julian Peto, Asbestos: Effects on health of exposure to asbestos 8 (1985) (“In particular, there are no grounds for believing that gastrointestinal cancers in general are peculiarly likely to be caused by asbestos exposure.”).

[7] See Landrigan v. The Celotex Corporation, Revisited” (June 4, 2013); Landrigan v. The Celotex Corp., 127 N.J. 404, 605 A.2d 1079 (1992); Caterinicchio v. Pittsburgh Corning Corp., 127 NJ. 428, 605 A.2d 1092 (1992). In both Landrigan and Caterinicchio, there had been no challenge to the reliability or validity of the plaintiffs’ expert witnesses’ general causation opinions. Instead, the trial courts entered judgments, assuming arguendo that asbestos can cause colorectal cancer (a dubious proposition), on the ground that the low relative risk cited by plaintiffs’ expert witnesses (about 1.5) was factually insufficient to support a verdict for plaintiffs on specific causation.  Indeed, the relative risk suggested that the odds were about 2 to 1 in defendants’ favor that the plaintiffs’ colorectal cancers were not caused by asbestos.

[8] See, e.g., Porter v. Smithkline Beecham Corp., Sept. Term 2007, No. 03275. 2016 WL 614572 (Phila. Cty. Com. Pleas, Oct. 5, 2015); “Demonstration of Frye Gatekeeping in Pennsylvania Birth Defects Case” (Oct. 6, 2015).

[9] John B. Wong, Lawrence O. Gostin & Oscar A. Cabrera, “Reference Guide on Medical Testimony,” in Reference Manual for Scientific Evidence 687 (3d ed. 2011).

[10] See, e.g., Phillip I. Good & James W. Hardin, Common Errors in Statistics (and How to Avoid Them) 13 (2003) (proclaiming a scientists’ Bill of Rights under which they should be allowed to conduct subgroup analyses); Ralph I. Horwitz, Burton H. Singer, Robert W. Makuch, Catherine M. Viscoli, “Clinical versus statistical considerations in the design and analysis of clinical research,” 51 J. Clin. Epidemiol. 305 (1998) (arguing for the value of subgroup analyses). In United States v. Harkonen, the federal government prosecuted a scientist for fraud in sending a telecopy that described a clinical trial as “demonstrating” a benefit in a subgroup of a secondary trial outcome.  Remarkably, in the Harkonen case, the author, and criminal defendant, was describing a result in a pre-specified outcome, in a plausible but post-hoc subgroup, which result accorded with prior clinical trials and experimental evidence. United States v. Harkonen (D. Calif. 2009); United States v. Harkonen (D. Calif. 2010) (post-trial motions), aff’d, 510 F. App’x 633 (9th Cir. 2013) (unpublished), cert. denied, 134 S. Ct. 824, ___ U.S. ___ (2014); Brief by Scientists And Academics as Amici Curiae In Support Of Petitioner, On Petition For Writ Of Certiorari in the Supreme Court of the United States, W. Scott Harkonen v. United States, No. 13-180 (filed Sept. 4, 2013).

[11] SeeSub-group Analyses in Epidemiologic Studies — Dangers of Statistical Significance as a Bright-Line Test” (May 17, 2011) (collecting commentary); see also Lemuel A. Moyé, Statistical Reasoning in Medicine:  The Intuitive P-Value Primer 206, 225 (2d ed. 2006) (noting that subgroup analyses are often misleading: “Fishing expeditions for significance commonly catch only the junk of sampling error”); Victor M. Montori, Roman Jaeschke, Holger J. Schünemann, Mohit Bhandari, Jan L Brozek, P. J. Devereaux & Gordon H Guyatt, “Users’ guide to detecting misleading claims in clinical research reports,” 329 Brit. Med. J. 1093 (2004) (“Beware subgroup analysis”); Susan F. Assmann, Stuart J. Pocock, Laura E. Enos, Linda E. Kasten, “Subgroup analysis and other (mis)uses) of baseline data in clinical trials,” 355 Lancet 1064 (2000); George Davey Smith & Mathias Egger, “Commentary: Incommunicable knowledge? Interpreting and applying the results of clinical trials and meta-analyses,” 51 J. Clin. Epidemiol. 289 (1998) (arguing against post-hoc hypothesis testing); Douglas G. Altman, “Statistical reviewing for medical journals,” 17 Stat. Med. 2662 (1998); Douglas G. Altman, “Commentary:  Within trial variation – A false trail?” 51 J. Clin. Epidemiol. 301 (1998) (noting that observed associations are expected to vary across subgroup because of random variability); Christopher Bulpitt, “Subgroup Analysis,” 2 Lancet: 31 (1988).

The LoGiudice Inquisitiorial Subpoena & Its Antecedents in N.Y. Law

July 14th, 2016

The plaintiffs’ bar’s inquisition into funding has been a recurring theme in the asbestos and other litigations.[1] It is thus interesting to compare the friendly reception Justice Moulton gave plaintiffs’ subpoena in LoGiudice[2] with the New York courts’ relatively recent hostility toward a defendant’s subpoena to Mt. Sinai School of Medicine.

A few years ago, Justice Sherry Heitler quashed a defendant’s attempt to subpoena information from the archives of a deceased, former faculty member of the Mount Sinai School of Medicine (“Mt. Sinai”), in Reyniak v. Barnstead Internat’l, No. 102688-08, 2010 NY Slip Op 50689, 2010 WL 1568424 (N.Y. Sup. Ct. Apr. 6, 2010). In a cursory opinion, Justice Heitler cited institutional expense, chilling of research, and scholars’ fears that their unpublished notes, ideas, and observations would become public as a result of litigation. Heitler relied upon and followed an earlier New York state court’s decision that adopted a rather lopsided “balancing” analysis, which permitted the New York courts to ignore the legitimate needs of defendants for access to underlying data.[3]

Remarkably, Justice Heitler failed to cite a federal appellate court’s subsequent decision, which upheld the tobacco companies’ subpoena to Mount Sinai.[4] Her opinion also ignored the important context of the asbestos litigation, in which Selikoff, long since deceased, played a crucial role in fomenting and perpetuating litigation, with tendentious publications and pronouncements. Some might say, “manufacturing certainty.” Perpetuating the Litigation Industry’s Selikoff mythology, Justice Heitler described Selikoff as a ground breaking asbestos researcher, but she either ignored, or was ignorant of, his testimonial adventures, his attempts to influence litigation with ex parte meetings with presiding judges, and his other questionable litigation-related conduct.

Selikoff’s participation in litigation was not always above board.  His supposedly ground-breaking work was funded by the insulator’s union, which also sought him out as a testifying expert witness. Among his many testimonial adventures,[5] Selikoff testified as early as 1966 that asbestos causes colorectal cancer, and that it caused a specific claimant’s colorectal cancer. See “Health Hazard Progress Notes: Compensation Advance Made in New York State,” 16(5) Asbestos Worker 13 (May 1966) (thanking Selikoff for his having given testimony to support an insulator’s claim that asbestos caused his colorectal cancer). To be sure, Selikoff made his litigation claims in the scientific literature as well, but without any acknowledgement of his involving in litigation involving this very issue, and his funding by the asbestos union.[6]

Given the dubious provenance of many of Selikoff’s opinions,[7] the disparate treatment of the subpoenas in LoGuidice and Reyniak is irreconcilable. The inflated prestige of Selikoff and Mount Sinai blinded the New York state trial courts to Selikoff’s role in litigation and his biased assessments in science. The judicial hypocrisy may well be the consequence of how the academic community has promoted Selikoff’s reputation, while working assiduously to undermine the reputations of anyone who has been connected with the defense of occupational disease claims. Consider, for instance, how Labor (Marxist) historians have railed against the role that Dr. Anthony Lanza played in personal injury litigation following the Gauley Bridge tunnel construction.  See Jock McCulloch and Geoffrey Tweedale, “Anthony J. Lanza, Silicosis and the Gauley Bridge ‘Nine’,” 27 Social History of Medicine 86 (2013). While these historians deplore Lanza, however, they laud Selikoff. SeeBritish Labor Historians Belaboring American Labor History – Gauley Bridge” (Oct. 14, 2013). Politics and occupational disease litigation are like that.


[1] See In re All Litigation filed by Maune, Raichle, Hartley, French & Mudd LLC v. 3M Co., No. 5-15-0235, Ill. App., 5th Dist.; 2016 Ill. App. Unpub. LEXIS 1392 (June 30, 2016); “Engineers for Automakers Must Unredact Agendas in Madison County Asbestos Litigation,” Madison County Record (July 2016); Lynn A. Lenhart, “Meeting Agendas Between Non-Party Consultant and Counsel for Asbestos Friction Clients Not Privileged” (July 5, 2016).  See also Weitz & Luxenberg P.C. v. Georgia-Pacific LLC, 2013 WL 2435565, 2013 NY Slip Op 04127 (June 6, 2013), aff’d, 2013 WL 2435565 (N.Y. App. Div., 1st Dep’t June 6, 2013); “A Cautionary Tale on How Not to Sponsor a Scientific Study for Litigation” (June 21, 2013).

[2] LoGiudice v. American Talc Co., No. 190253/2014, 2016 N.Y. Misc. LEXIS 2360, (N.Y. Sup., N.Y. Cty., June 20, 2016).

[3] See In re R.J. Reynolds Tobacco Co., 136 Misc 2d 282, 285, 518 N.Y.S.2d 729 (Sup. Ct., N.Y. Cty. 1987); see also In re New York County Data Entry Worker Prod. Liab.Litig., No. 14003/92, 1994 WL 87529 (N.Y. Sup. Ct. N.Y. Cty. Jan 31, 1994) (denying discovery because “special circumstances,” vaguely defined were absent).

[4] Mount Sinai School of Medicine v. The American Tobacco Co., 866 F.2d 552 (2d Cir. 1889).

[5]Selikoff and the Mystery of the Disappearing Testimony” (Dec. 3, 2010).

[6] See, e.g., Irving J. Selikoff, “Epidemiology of gastrointestinal cancer,” 9 Envt’l Health Persp. 299 (1974) (arguing for his causal conclusion between asbestos and all gastrointestinal cancers).

[7] See generally Scientific Prestige, Reputation, Authority & The Creation of Scientific Dogmas” (Oct. 4, 2014); “Historians Should Verify Not Vilify or Abilify – The Difficult Case of Irving Selikoff” (Jan. 4, 2014).

LoGuidice v. American Talc Co. — Subpoenas to Investigate Funding

July 13th, 2016

Mickey Gunter is a University Distinguished Professor of Geological Sciences, at the University of Idaho. Gunter has long been involved in the mineralogical issues surrounding asbestos contamination and content.  He served as a member of an EPA review committee for World Trade Center dust screening method (2005), a member of an ATSDR expert panel on asbestos biomarkers (2006), and as a panel member and reviewer for the Institute of Medicine and National Research Council, Workshop on NIOSH research on asbestos and elongated mineral particles (2009). Gunter has been publishing on asbestos and asbestiform mineralogy for well over a decade.[1]

Gunter has testified for talc companies that have been dragged into mesothelioma litigation, based upon testing he conducted for Colgate-Palmolive [Colgate], starting in 2011.  In his testimony, Gunter has acknowledged that University employees and laboratories were involved in testing Colgate-Palmolive’s Cashmere Bouquet talcum powder for asbestos content and contamination. In addition to compensating Gunter, Colgate and others have contributed to the University of Idaho, and provided support for Gunter’s student assistant, Mr. Matthew Sanchez.

In a recent New York trial court ruling, Justice Peter H. Moulton refused a motion to quash plaintiff’s subpoena served on the University of Idaho, designed to obtain evidence to show that Colgate-Palmolive Company’s gifts to the University affected research that has become relevant to their claims that Colgate’s talcum powder was contaminated with asbestos. LoGiudice v. American Talc Co., No. 190253/2014, 2016 N.Y. Misc. LEXIS 2360, (N.Y. Sup., N.Y. Cty., June 20, 2016).

The plaintiffs based their lawsuit on the conjecture that the exposure to Colgate-Palmolive’s talc must contain asbestos because the talc caused mesothelioma.  Somehow idiopathic mesothelioma and occult asbestos exposure magically disappear in the plaintiffs’ worldview.

The plaintiffs’ vacuous and circular arguments supposedly thus made their claim of financial bias relevant.  Plaintiff’s mesothelioma must have been caused by cosmetic talc, but Gunter’s and Sanchez’s test results found no asbestos in the talc the tested. Therefore, the test results were skewed by financial bias. There is no suggestion in Justice Moultin’s opinion to suggest that there was any error, omission, or misconduct involved in the analytical testing conducted by Professor Gunter and his assistant.

Without much real analysis, Justice Moulton found the subpoena-based inquiry into financial influence relevant and proper.  Gunter had testified about asbestos contamination in Cashmere Bouquet and conducted research, published articles, and given speeches[2] on the subject. With minor modifications to the plaintiffs’ subpoena, he denied Colgate’s motion to quash, and allowed the plaintiffs proceed with their investigation. What the disinterested observer might well miss is that Gunter’s views were well formed, articulated, and published in advance of his retention by Colgate in litigation.

Professor Gunter thus represents an example of a litigant’s (Colgate’s) seeking out a highly qualified scientist, with relevant expertise, in part based upon his previously stated views. To be sure, his testing results of the particular talc were not done and available until commissioned by Colgate, but Gunter’s sound views about what would count as an asbestos fiber, based upon mineralogical, scientific criteria (rather than arbitrary legal, regulatory criteria) were well known in advance of retention.


[1] See, e.g., B. D. McNamee, Mickey E. Gunter & C. Viti, “Asbestiform talc from a talc mine near Talcville, New York, U.S.A.:  composition, morphology, and genetic relationships with amphiboles,” Canadian Mineralogist (2016 in press); Bryan R. Bandli & Mickey E. Gunter, “Examination of asbestos standard reference materials, amphibole particles of differing morphology, and phase discrimination from talc ores using scanning electron microscopy and transmitted electron backscatter diffraction,” 20 Microscopy and Microanalysis 1805 (2014); B. D. McNamee & Mickey E. Gunter, “Compositional analysis and morphological relationships of amphiboles, talc, and other minerals found in the talc deposits from the Gouverneur Mining District, New York,” 61 The Microscope 147 ((2013) (part one); 62 The Microscope  3 (2014) (part two); Bryan R. Bandli & Mickey E. Gunter, “Mineral identification using electron backscatter diffraction from unpolished specimens:  Applications for rapid asbestos identification,” 61 The Microscope 37 (2013); M. R. Van Baalen, Brooke T. Mossman, Mickey E. Gunter & C.A. Francis, “Environmental geology of Belvidere Mt., Vermont,” in Westerman, D.S. and Lathrop, A.S. eds., Guidebook to Field Trips in Vermont and adjacent regions of New Hampshire and New York.  New England Intercollegiate Geological Conference, 101st Annual Meeting, B11-23 (2009); Mickey E. Gunter, “Asbestos sans mineralogy,”  5 Elements 141 (2009); D. M. Levitan, J. M. Hammarstrom, Mickey E. Gunter, R. R. Seal II, I. M. Chou & N. M. Piatak, “Mineralogy of mine waste at the Vermont Asbestos Group mine, Belvidere Mountain, Vermont,” 94 American Mineralogist 1063 (2009); Mickey E. Gunter, E. Belluso & A. Mottana, “Amphiboles:  Environmental and health concerns.  In Amphiboles:  Crystal Chemistry, Occurrences, and Health Concerns,” 67 Reviews in Mineralogy & Geochemistry 453 (2007).

[2] See, e.g., Mickey Gunter, Matthew Sanchez & Richard Van Orden, “Fibrous talc (ribbon talc/”kinky” talc),” at Talc Methods Expert Panel Meeting, United States Pharmacopeial Convention, Rockville, Maryland (June 28, 2016).

Mens Rea Defense – Good Heart (?) and Empty Head

July 11th, 2016

Extreme Carelessness Versus Gross Negligence

The case of Hilary Clinton offers an interesting fact set for exploring jurisprudential questions about the differences among intentional, reckless, and negligent misconduct. Of course, Clinton’s malfeasance, regardless of the attributed mens rea, has received a good deal of publicity, and ultimately, there should be an exemplary factual record, which can be used to explore the different culpable states of mind.

In her column yesterday, Maureen Dowd captured how many rational United States voters must feel about the irrationality of our national politics, and the Clinton email scandal.[1]  James Comey, Director of the FBI, detailed the facts that would probably require President Obama to fire Hilary Clinton if she were still Secretary of State in his administration.  Instead, the President is endorsing Clinton to be his successor. Of course, Obama could put the nation at ease, however, by revealing that he never allowed Clinton to have access to REALLY confidential information because he just did not trust her. Perhaps that might improve public perception of his judgment while exculpating her.

Dowd was commenting upon Comey’s conclusion that Hillary Clinton’s use of email for State Department confidential and classified communications, over her own, private e-mail server to handle work-related communications was “extremely careless.” See James B. Comey, “Statement by FBI Director on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System,” FBI Press Office, Washington, D.C. (July 05, 2016). In his press conference, however, Comey announced that the FBI would not recommend criminal charges because in his view Ms. Clinton’s conduct was not proscribed by pertinent statutes. And of course, Obama’s Attorney General, Loretta Lynch, fresh from a tête-à-tête with Ms. Clinton’s husband, who had nominated her to the position of United States Attorney back in 1999, agreed with Comey in a New York minute.

Comey framed his political indictment of extreme carelessness in a way to suggest that although Clinton might not be worthy of a security clearance, she should not be prosecuted:

“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

Comey acknowledged that “there is evidence of potential violations of the statutes regarding the handling of classified information,” but offered his judgment “that no reasonable prosecutor would bring such a case.”[2]

But why is it that no reasonable prosecute would indict? This is where the Clinton scandal raises questions about inferring mental states and becomes jurisprudentially interesting.

Comey was clear that Clinton had put confidential, classified information at risk, by using her email on foreign soil, where sophisticated, “hostile actors” could have hacked her account without her being able to certify otherwise. Cybersecurity experts were less “politic,” and more willing to go beyond “possible” to claim “probable” hacking had taken place. Clinton had no full-time cyber-security professional monitoring her email system.[3]

Comey ended his performance by claiming that only the facts mattered; opinions were irrelevant. “Just the facts, ma’am.” But his judgments about reasonable prosecutors, obstruction, and disloyalty are not facts; they are opinions, and particularly, they are opinions that involve inferences about mental states, mens rea, and motives.

Comey offered precedent, in the form of prior prosecutions, which according to Comey, all involved elements of intentional conduct, including willful mishandling of classified information, indications of disloyalty to the United States, or efforts to obstruct justice. And Comey just did not see those elements in the Hilary Clinton case.

Were the inferences to these putatively missing elements truly unwarranted? Was Comey really looking or was this a case of cognitive bias or willful blindness? After all, Comey was compelled “on the facts,” to acknowledge that there were over 100 Clinton emails with classified information turned over to the State Department, and a few additional emails found with classified information, which were not turned over to State.  Of course no one could say what was in the emails that had been spoliated by Clinton or under her supervision.

Clinton clearly had attempted to obstruct the investigation into her unlawful conduct. She repeatedly lied about her motive for eschewing State Department regulations and protocols. She destroyed evidence.  She lied about the content of the emails and their security status. Clinton’s disloyalty to the country was manifest. She adopted a private, unsecured email system not only for her own convenience, for the needs of her own future political candidacy, and so that she could provide access to confidents not in the government, such as unapproved actors, Sidney Blumenthal and William J. Clinton.

Given that the email server belonged to the Clintons, not the State Department, former President Bill Clinton, could check into his Chappaqua, New York, system to catch up on the latest diplomatic initiatives before he set off to give a six-figure speech to foreign potentates. Bill Clinton claimed he does not send emails, but that does not mean he does not read emails, on which may have been blind copied. How convenient to bcc Bill on emails sent to Barack, to get keep him “in the loop”?

Comey’s suggestion that Clinton did not meet the mens rea requirement of the pertinent criminal statute would not seem to hold up under scrutiny. The provisions of the federal criminal code define punishable conduct for “gathering, transmitting, or losing defense information.” 18 U.S. Code § 793. This provision does require intent or gross negligence, which Comey seemed to suggest were absent or not readily proven in the Clinton case. And yet, Clinton intended to gather and transmit defense information contrary to law.  Actually “losing information” is not a required element, although even there, Clinton lost information that sat on her server when she chose to destroy it rather than maintain it, as was legally required.

As for gross negligence, Comey himself made the case, although he characterized Clinton’s conduct as “extremely careless.” There does not seem to be any meaningful distinction between gross negligence and extreme carelessness. The current Wikipedia entry for gross negligence illustrates the subtle, sometimes evanescent distinctions among “negligence,” “gross negligence,” and “recklessness”:

 “Gross negligence is legally culpable carelessness that shows a conscious and voluntary disregard of the need to use reasonable care, and likely to cause foreseeable grave injury or harm. The difference between “negligence” and “gross negligence” may be subjective since it is a matter of degree. Negligence is the opposite of diligence, or being careful. The standard of ordinary negligence is what conduct deviates from the proverbial “reasonable person.” By analogy, if somebody has been grossly negligent, that means they have fallen so far below the ordinary standard of care that one can expect, to warrant the label of being “gross.” Prosser and Keeton describe gross negligence as being “the want of even slight or scant care”, and note it as having been described as a lack of care that even a careless person would use. They further note that while some jurisdictions equate the culpability of gross negligence with that of recklessness, most simply differentiate it from simple negligence in its degree.[1]

Jurisprudes struggle to define gross negligence and distinguish it from ordinarily negligence and recklessness. Consensus and precise definitions are hard to find, and some of the case law definitions appear vacuous or circular. In many analyses, the grossness of someone’s negligence may be something recognized when encountered, much like Potter Stewart’s obscenities. See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).

The recent litigation over the 2010 oil spill in the Gulf of Mexico, caused by the oil rig, Deepwater Horizon, illustrates the struggle to define gross negligence:

“Gross negligence is a nebulous term that is defined in a multitude of ways, depending on the legal context and the jurisdiction. However, when the “cluster of ideas” surrounding “gross negligence” is considered, the prevailing notion is that gross negligence differs from ordinary negligence in terms of degree, and both are different in kind from reckless, wanton, and willful misconduct.

[…]

Gross negligence, like ordinary negligence, requires only objective, not subjective, proof. While ordinary negligence is a failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances, gross negligence is an extreme departure from the care required under the circumstances or a failure to exercise even slight care. Thus, the United States contends that gross negligence differs from ordinary negligence only in degree, not in kind.”

In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, 2014 WL 4375933 (E.D. La. Sept. 4, 2014).

Some commentators have argued that reckless and careless are synonyms.[4] This argument ignores important distinctions drawn in the criminal law, and in the law of torts. Perhaps the clearest distinction between recklessness and negligence is set out in the Model Penal Code’s definitions of the kinds of culpability.  MPC  § 2.02 (2). Subsection (c) defines “recklessly” as follows:

“A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”

And Subsection (d) defines “negligently” as follows:

“A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.”

So both recklessness and (criminal) negligence involve “gross” deviations, but recklessness requires a greater subjective awareness, whereas negligence can be shown using an objective, “reasonable person” test.

Given Comey’s recitation of “just the facts,” and adding in his Capitol Hill testimony, it would seem that a rookie prosecutor could indict and convict Ms. Clinton of intentional or grossly negligent mishandling of confidential information, as well as a conspiracy to cover it up.

Of course, there might be good political reasons not to indict Clinton, including that it might cause the election of Donald Trump, but that would require adverting to facts beyond the Clinton case.


[1] Maureen Dowd, “The Clinton Contamination,” New York Times (July 10, 2016).

[2] See Daniel Fisher, “FBI Calls Hillary’s E-Mail Habits ‘Extremely Careless’ But Not Criminal,” Forbes (July 5, 2016).

[3] David E. Sanger, “Hillary Clinton’s Email Was Probably Hacked, Experts Say,” New York Times (July 6, 2016).

[4] See Craig Bannister, “A President Can’t Be RecklessNational Review (July 2016).

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.