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

Careless Scholarship About Silica History

July 21st, 2014

David Egilman is the Editor in Chief of the International Journal of Occupational and Environmental Health (IJOEH). A YouTube “selfie” interview provides some insight into Dr. Egilman’s motivations and editorial agenda.  Previous posts have chronicled Egilman’s testimonial adventures because of his propensity to surface in litigations of interest. See, e.g., “David Egilman’s Methodology for Divining Causation” (Sept. 6, 2012); “Egilman Petitions the Supreme Court for Review of His Own Exclusion in Newkirk v. Conagra Foods” (Dec. 13, 2012).

Dr. Egilman has used his editorial role at the IJOEH to disseminate his litigation positions.  Several of articles are little more than his litigation reports, filed in various cases, ranging from occupational dust disease claims to pharmaceutical off-target effect claims. A recent issue of the IJOEH has yet another article of this ilk, which scatters invective across several litigations. David Egilman, Tess Bird[1], and Caroline Lee[2], “Dust diseases and the legacy of corporate manipulation of science and law, 20 Internat’l J. Occup. & Envt’l Health 115 (2014).

The article mostly concerns Egilman’s allegations that companies influenced the scientific, medical, and governmental understanding and perception of asbestos hazards.  I will defer to others to address his allegations with respect to asbestos. The article, however, in its Abstract, takes broader aim at other exposures, in particular, silica:

“Knowledge that asbestos and silica were hazardous to health became public several decades after the industry knew of the health concerns. This delay was largely influenced by the interests of Metropolitan Life Insurance Company (MetLife) and other asbestos mining and product manufacturing companies.”

Egilman at 115, Abstract.

In their Abstract, the authors further claim their purpose

“To understand the ongoing corporate influence on the science and politics of asbestos and silica exposure, including litigation defense strategies related to historical manipulation of science.”

Egilman at 115. I demur for the time being with respect to asbestos, but the authors’ claims about silica are never supported in their article. A brief review of two monographs by Frederick L. Hoffman should be sufficient to condemn the authors’ carelessness to the dustbin of occupational history. Frederick L. Hoffman, Mortality from Respiratory Diseases in the Dusty Trades; Dep’t of Labor, Bureau of Labor Statistics (1918); The Problem of Dust Phthisis in the Granite Stone Industry; Dep’t of Labor, Bureau of Labor Statistics (1922).  The bibliographies in both these monographs documents the widespread interest in, and awareness of, the occupational hazards of silica dusts, going back into the 19th century, among the media, the labor movement, and the non-industrial scientific community.

Not surprisingly, the authors’ conclusions are stated only in terms of asbestos hazards, knowledge, and company conduct:

“Conclusions: Asbestos product companies would like the public to believe that there was a legitimate debate surrounding the dangers of asbestos during the twentieth century, particularly regarding the link to cancer, which delayed adequate regulation. The asbestos–cancer link was not a legitimate contestation of science; rather the companies directly manipulated the scientific literature. There is evidence that industry manipulation of scientific literature remains a continuing problem today, resulting in inadequate regulation and compensation and perpetuating otherwise preventable worker and consumer injuries and deaths.”

The authors note that Rutherford Johnstone’s 1960 “seminal” textbook relied upon a study (Braun and Truan), which study Egilman attacks as corrupted by industry influence. Rutherford Johnstone & Seward E. Miller, Occupational diseases and industrial medicine 328 (Philadelphia 1960). According to the Egilman, Rutherford Johnstone was the official American Medical Asociation’s consultant for occupational disease questions, which explains why he was providing answers to questions submitted to the Journal of the American Medical Association, on silica and asbestos issues. The authors note that Johnstone, in 1961, asserted that there was no epidemiologic evidence that asbestos causes lung cancer among American workers, which view reflects Johnstone’s reliance upon the Braun-Truan study. The authors fail, however, to note that Johnstone also opined that

“There is no epidemiological evidence that silicosis, resulting from undue exposure to free silica produces cancer of the lung.”

Rutherford T. Johnstone, “Silicosis and Cancer,” 176 J. Am. Med. Ass’n 81, 81 (1961). Neither the authors nor anyone else has ever shown that Johnstone was misled by any industry group.

Some of the authors’ scholarship is quite careless.  For instance, they assert that

“By the mid 1940s, the international scientific community had recognized the link between asbestos and cancer.10–18”

Readers should review all the endnotes, 10 – 18, but endnote 12 is especially interesting:

“12 Macklin MT, Macklin CC. Does chronic irritation cause primary carcinoma of the human lung? Arch Path. 1940;30:924–55.”

As I have noted before, the Macklins, and especially Dr. Madge Macklin, brought a great deal of rigor and skepticism to broad claims about the causation of lung cancer. See “Silicosis, Lung Cancer, and Evidence-Based Medicine in North America” (July 4, 2014).  This citation and others do not appear to support the sweep of Egilman and his student authors’ claim.

The next mention of silica occurs in the context of an allegation that corporations (presumably not plaintiffs’ laywers) have worked to “disguise” health concerns and influence governmental policy about several products, materials, including silica:

“During the last several decades, researchers in a wide spectrum of fields have documented the direct and purposeful efforts of corporations to disguise public health concerns and affect government policies, particularly in the tobacco, alcohol, silica, and asbestos industries, and more recently, the pharmaceutical, chemical, and ultra-processed food and drink industries.79,73

Egilman at 121.

The authors’ citations, however, do not support any such allegation about silica. Endnote 73[3] is an article by Egilman, and others, on Vioxx; and endnote 79[4] is an article about alcohol, tobacco, and foods. In the very next sentence, the authors further claim that:

“Corporate-funded ‘objective science’ leading to the corruption of scientific literature remains a major problem.65,68,69,71,73,75,80–86

Once again, none of the endnotes (65, 68, 69, 71, 75, and 80-86) supports the authors’ claim that anyone in the mining, milling, or marketing of crystalline silica has funded science in a way that led to the corruption of the scientific literature. Not surprisingly, the authors ignore the frauds perpetuated by litigation industry players. See, e.g., In re Silica Products Liab. Lit., 398 F. Supp. 2d 563 (S.D. Tex. 2005) (federal trial judge rebukes the litigation industry for fraudulent claiming in MDL 1553).

[1] The article acknowledges that Ms. Bird and Ms. Lee were employees of Dr. Egilman.  Ms. Bird appears now to be a student in the U.K., studying medical anthropology.  Ms. Bird, and Ms. Lee, appeared on earlier works by Egilman.  See, e.g., David S Egilman, Tess Bird, and Caroline Lee, “MetLife and its corporate allies: dust diseases and the manipulation of science,” 19 Internat’l J. Occup. & Envt’l Health 287 (2013); David Steven Egilman, Emily Laura Ardolino, Samantha Howe, and Tess Bird, “Deconstructing a state-of-the-art review of the asbestos brake industry,” 21 New Solutions 545 (2011).

[2] Ms. Lee appears to have been employed for Egilman’s litigation consulting firm, Never Again Consulting, from 2011 until August 2013, when she entered the University of Maryland law school.

[3] Krumholz HM, Ross JS, Presler AH, Egilman DS. What have we learnt from Vioxx. Br Med J. 2007;334(7585):120–3.

[4] Moodie R, Stuckler D, Montiero C, Sheron N, Neal B, Thamarangsi T, et al. Profits and pandemics: prevention of harmful effects of tobacco, alcohol, and ultra-processed food and drink industries. Lancet. 2013;381:670–79.

Discovery of Litigation Financing – The Jackpot Justice Finance Corporation

July 16th, 2014

Over two years ago, I wrote that courts and counsel have not done enough to adapt to the litigation industry’s use of third-party financing. SeeLitigation Funding” (May 8, 2012). A few days ago, Byron Stier, at the Mass Tort Litigation Blog, posted a short news item about a recent effort to modify discovery rules to take into account the litigation industry’s business model of seeking third-party litigation funding.  SeeIndustry Groups Seek Amendment of Rule 26 to Require Disclosure of Third Party Litigation Financing” (July 13, 2014).

Stier reported that the U.S. Chamber of Commerce Institute for Legal Reform, American Insurance Association, American Tort Reform Association, Lawyers for Civil Justice, and National Association of Manufacturers, back in April 2014, wrote a letter to the Committee on Rules of Practice and Procedure of the Administrative Office of the federal courts, to propose an amendment to Federal Rule of Civil Procedure 26(a)(1)(A). Their proposed new language is underscored, and follows 26(a)(1)(A)(i)-(iv):

“(v) for inspection and copying as under Rule 34, any agreement under which any person, other than an attorney permitted to charge a contingent fee representing a party, has a right to receive compensation that is contingent on, and sourced from, any proceeds of the civil action, by settlement, judgment or otherwise.”

This proposal is important and necessary to ensure that defendants can inquire about financial bias in jury voir dire, as well as identify bias among judges, special masters, and witnesses.  Other procedural rule reforms will be needed as well. Appellate briefs should disclose financiers that have a stake in the litigation. When courts limit counsel and parties’ communications to the media about a case, such limits should apply as well to insurers and third-party financiers of the litigation efforts. Third-party financiers provide a convenient way for the litigation industry to lobby regulators and legislators, and more expansive disclosure rules are needed to capture the activities of the litigation financiers.  Funding of litigation-related research by third-party financiers should be anticipated by journal editors with more expansive disclosure rules; journal editors should be alert to evolving financial markets that may influence research agendas and publications. Lawyers’ scrutiny of new clients for conflicts now requires inquiry into the veiled interests created by litigation financing.

Too Many Narratives – Historians in the Dock

July 13th, 2014

Historical Associates Inc. (HAI) is a commercial vendor for historical services, including litigation services. Understandably, this firm, like the academic historians who service the litigation industry, takes a broad view of the desirability of historian expert witness testimony.  An article in one of the HAI’s newsletters stakes out lawyer strategies in trying to prove historical facts.  Lawyers can present percipient witnesses, or they

“can present the story themselves, but in the end, arguments by advocates can raise questions of bias that obscure, rather than clarify, the historical facts at issue.”

Mike Reis and Dave Wiseman, “Introducing and interpreting facts-in-evidence: the historian’s role as expert witness,” HAIpoints 1 (Summer 2010)[1]. These commercial historians recommend that advocacy bias, so clear in lawyers’ narratives, be diffused or obscured by having a professional historian present the “story.”  They tout the research skills of historians: “Historians know how to find critical historical information.” And to be sure, historians, whether academic or for-hire may offer important bibliographic services, as well as help in translating, authenticating, and contextualizing documents.  But these historians from HAI want a role on center-stage, or at least in the witness box.  They tell us that:

“Historians synthesize information into well-documented, compelling stories.”

Ah yes, compelling stories, as in “the guiltless gust of a rattling good yarn[2].” The legal system should take a pass on such stories.

*     *     *     *     *     *

A recent law review article attempts to provide a less commercial defense of expert witness testimony.  See Alvaro Hasani, “Putting history on the stand: a closer look at the legitimacy of criticisms levied against historians who testify as expert witnesses,” 34 Whittier L. Rev. 343 (2013) [Hasani].  Hasani argues that historians strive to provide objective historical “interpretation,” by selecting reliable sources, and reliably reading and interpreting these sources to create a reliable “narrative.” Hasani at 355. Hasani points to some courts that have thrown up their hands and declared Daubert reliability factors inapplicable to non-scientific historian testimony. See, e.g., United States v. Paracha, No. 03 CR. 1 197(SHS), 2006 WL 12768, at *19 (S.D.N.Y. Jan. 3, 2006) (noting that Daubert is not designed for gatekeeping of a non-scientific, historian expert witness’s methodology); Saginaw Chippewa Indian Tribe of Michigan v. Granholm, 690 F. Supp. 2d 622, 634 (E.D. Mich. 2010) (noting that “[t]here is no way to ‘test’ whether the experts’ testimony concerning the historical understanding of the treaties is correct. Nor is it possible to establish an ‘error rate’ for historical experts.”).

Not all testifying historians agree, however, that their research and findings are non-scientific.  Here is how one plaintiffs’ expert witness characterized historical thinking:

“Q. Do you believe that historical thinking is a form of scientific thinking?

A. I do. I think that history is sometimes classed with the humanities, sometimes classed with the social sciences, but I think there is a good deal of historical research and writing that is a form of social science.”

Examination Before Trial of Gerald Markowitz, in Mendez v. American Optical, District Court for Tarrant County, Texas (342d Judicial District), at 44:13-20 (July 19, 2005). Professor Susan Haack, and others, have made a persuasive case that the epistemic warrants for claims of knowledge, whether denominated scientific or non-scientific, are not different in kind. If historian testimony is not about knowledge of the past, then it clearly has no role in a trial. Furthermore, Professor Markowitz is correct that sometimes historical opinions are scientific in the sense that they can be tested. If a labor historian asserts that workers are exploited and subjected to unsafe work conditions due to the very nature of capitalism and the profit motives, then that historian’s opinion will be substantially embarrassed by the widespread occupational disease in European and Asian communist regimes.

When Deborah Lipstadt described historian David Irving as a holocaust denier[3], Irving sued Lipstadt for defamation.  In defending against the claim, Lipstadt successfully carried the burden of proving the truth of her accusation.  The trial court’s judgment, quoted by Hasani, reads like a so-called Daubert exclusion of plaintiff Irving’s putative historical writing. Irving v. Penguin Books Ltd., No. 1996-1-1113, 2000 WL 362478, at ¶¶ 1.1, 13.140 (Q.B. Apr. 11, 2000)(finding that “Irving ha[d] misstated historical evidence; adopted positions which run counter to the weight of the evidence; given credence to unreliable evidence and disregarded or dismissed credible evidence.”).

The need for gatekeeping of historian testimony should be obvious.  Historian testimony is often narrative of historical fact that is not beyond the ken of an ordinary fact finder, once the predicate facts are placed into evidence.  Such narratives of historical fact present a serious threat to the integrity of fact finding by creating the conditions for delegation and deferring fact finding responsibility to the historian witness, with an abdication of responsibility by the fact finder. See Ronald J. Allen, “The Conceptual Challenge of Expert Evidence,” 14 Discusiones Filosóficas 41, 50-53 (2013).

Some historians clearly believe that they are empowered by the witness chair to preach or advocate. Allan M. Brandt, who has served as a party expert witness to give testimony on many occasions for plaintiffs in tobacco cases, unapologetically described the liberties he has taken thus:

“It seems to me now, after the hopes and disappointments of the courtroom battle, that we have a role to play in determining the future of the tobacco pandemic. If we occasionally cross the boundary between analysis and advocacy, so be it. The stakes are high, and there is much work yet to do.”

Allan M. Brandt, The Cigarette Century: The Rise, Fall, and Deadly Persistance of the Product That Defined American 505 (2007).

Hasani never comes to grips with the delegation problem or with Brandt’s attitude, which is quite prevalent in the product liability arena. The problem is more than merely “occasional.” The overreaching by historian witnesses reflects the nature of their discipline, the lack of necessity for their testimony, and the failure of courts to exercise their gatekeeping. The problem with Brandt’s excuse making is that neither analysis nor advocacy is needed or desired. Advocacy is the responsibility of counsel, as well as the kind of analysis involved in much of historian testimony.  For instance, when historians offer testimony about the so-called “state of the art,” they are drawing inferences from published and unpublished sources about what people knew or should have known, and about their motivations.  Although their bibliographic and historical researches can be helpful to the fact finder’s effort to understand who was writing what about the issue in times past, historians have no real expertise, beyond the lay fact finder, in discerning intentions, motivations, and belief states.

Hasani concludes that the prevalence of historian expert witness testimony is growing. Hasani at 364.  He cites, however, only four cases for the proposition, three of which pre-date Daubert.  The fourth is an native American rights case. Hasani at 364 n.139. There is little or no evidence that historian expert witness testimony is becoming more prevalent, although it continues in product liability where state of the art — who knew what, when — remains an issue in strict liability and negligence. Mack v. Stryker Corp., 893 F. Supp. 2d 976 (D. Minn. 2012), aff’d, 748 F.3d 845 (8th Cir. 2014). There remains a need for judicial vigilance in policing such state-of-the-art testimony.

[1] Mike Reis is the Vice President and Director of Litigation Research at History Associates Inc. Mr. Reis was received his bachelor’s degree from Loyola College, and his master’s degree from George Washington University, both in history. David Wiseman, an erstwhile trial attorney, conducts historical research for History Associates.

[2] Attributed to Anthony Burgess.

[3] Deborah E. Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory 8 (1993).


NIEHS Transparency? We Can See Right Through You

July 10th, 2014

The recent issue of Environmental Health Perspectives contains several interesting articles on scientific methodology of interest to lawyers who litigate claimed health effects.[1] The issue also contains a commentary that argues for greater transparency in science and science policy, which should be a good thing, but yet the commentary has the potential to obscure and confuse. Kevin C. Elliott and David B. Resnik, “Science, Policy, and the Transparency of Values,” 122 Envt’l Health Persp. 647 (2014) [Elliott & Resnik].

David B. Resnik has a Ph.D., in philosophy from University of North Carolina, and his law degree from the on-line Concord University School of Law.  He is currently a bioethicist and the chairman of the NIEHS Institutional Review Board. Kevin Elliott received his doctorate in the History and Philosophy of Science (Notre Dame), and he is currently an Associate Professor in Michigan State University. Elliott and Resnik advance a plea for transparency that superficially is as appealing as motherhood and apple pie. The authors argue

“that society is better served when scientists strive to be as transparent as possible about the ways in which interests or values may influence their reasoning.”

The argument appears superficially innocuous.  Indeed, in addition to the usual calls for great disclosure of conflicts of interest, the authors call for more data sharing and less tendentious data interpretation:

“When scientists are aware of important background assumptions or values that inform their work, it is valuable for them to make these considerations explicit. They can also make their data publicly available and strive to acknowledge the range of plausible interpretations of available scientific information, the limitations of their own conclusions, the prevalence of various interpretations across the scientific community, and the policy options supported by these different interpretations.”

Alas, we may as well wish for the Kingdom of Heaven on Earth!  An ethos or a requirement of publicly sharing data would indeed advance the most important transparency, the transparency that would allow full exploration of the inferences and conclusions claimed in a particular study.  Despite their high-mindedness, the authors’ argument becomes muddled when it comes to conflating scientific objectivity with subjective values:

“In the past, scientists and philosophers have argued that the best way to maintain science’s objectivity and the public’s trust is to draw a sharp line between science and human values or policy (Longino 1990). However, it is not possible to maintain this distinction, both because values are crucial for assessing what counts as sufficient evidence and because ethical, political, economic, cultural, and religious factors unavoidably affect scientific judgment (Douglas 2009; Elliott 2011; Longino 1990; Resnik 2007, 2009).”

This argument confuses pathology of science with what actually makes science valuable and enduring.  The Nazis invoked cultural arguments, explicitly or implicitly to reject “Jewish” science; religious groups in the United States invoke religious and political considerations to place creationism on an equal or superior footing with evolution; anti-vaccine advocacy groups embrace case reports over rigorous epidemiologic analyses. To be sure, these and other examples show that “ethical, political, economic, cultural, and religious factors unavoidably affect scientific judgment,” but yet science can and does transcend them.  There is no Jewish or Nazi science; indeed, there is no science worthy of its name that comes from any revealed religion or cult.  As Tim Minchin has pointed out, alternative medicine is either known not to work or not known to work because if alternative medicine is known to work, then we call it “medicine.” The authors are correct that these subjective influences require awareness and understanding of prevalent beliefs, prejudices, and corrupting influences, but they do not, and they should not, upset our commitment to an evidence-based world view.

Elliott and Resnik are focused on environmentalism and environmental policy, and they seem to want to substitute various presumptions, leaps of faith, and unproven extrapolations for actual evidence  and valid inference, in the hope of improving the environment and reducing risk to life.  The authors avoid the obvious resolution: value the environment, but acknowledge ignorance and uncertainty.  Rather than allow precautionary policies to advance with a confession of ignorance, the authors want to retain their ability to claim knowledge even when they simply do not know, just because the potential stakes are high. The circularity becomes manifest in their ambiguous use of “risk,” which strictly means a known causal relationship between the “risk” and some deleterious outcome.  There is a much weaker usage, popularized by journalists and environmentalists, in which “risk” refers to something that might cause a deleterious outcome.  The might in “risk” here does not refer to a known probabilistic or stochastic relationship between the ex ante risk and the outcome, but rather to an uncertainty whether or not the relationship exists at all. We can see the equivocation in how the authors attempt to defend the precautionary principle:

“Insisting that chemicals should be regulated only in response to evidence from human studies would help to prevent false positive conclusions about chemical toxicity, but it would also prevent society from taking effective action to minimize the risks of chemicals before they produce measurable adverse effects in humans. Moreover, insisting on human studies would result in failure to identify some human health risks because the diseases are rare, or the induction and latency periods are long, or the effects are subtle (Cranor 2011).”

Elliott & Resnik at 648.

If there is uncertainty about the causal relationship, then by calling some exposures a “risk,” the authors prejudge whether there will be “adverse effects” at all. This is just muddled.  If the relationship is uncertain, and false positive conclusions are possible, then we simply cannot claim to know that there will be such adverse effects, without assuming what we wish to prove.

The authors compound the muddle by introducing a sliding scale of “standards of evidence,” which appears to involve both variable posterior probabilities that the causal claim is correct, as well as variable weighting of types of evidence.  It is difficult to see how this will aid transparency and reduce confusion. Indeed, we can see how manipulative the authors’ so-called transparency becomes in the context of evaluating causal claims in pharmaceutical approvals versus tort claims:

“Very high standards of evidence are typically expected in order to infer causal relationships or to approve the marketing of new drugs. In other social contexts, such as tort law and chemical regulation, weaker standards of evidence are sometimes acceptable to protect the public (Cranor 2008).”

Remarkably, the authors cite no statute, no case law, no legal treatise writer for the proposition that the tort law standard for causation is somehow lower than for a claim of drug efficacy before the Food and Drug Administration.  The one author they cite, Carl Cranor, is neither a scientist nor a lawyer, but a philosophy professor who has served as an expert witness for plaintiffs in tort litigation (usually without transparently disclosing his litigation work). As for the erroneous identification of tort and regulatory standards, there is of course, much real legal authority to the contrary[2].

The authors go on to suggest that demanding

“the very highest standards of evidence for chemical regulation—including, for example, human evidence, accompanying animal data, mechanistic evidence, and clear exposure data—would take very long periods of time and leave the public’s health at risk.”

Elliott & Resnik at 648.

Of course, the point is that until such data are developed, we really do not know whether the public’s health is at risk.  Transparency would be aided not by some sliding and slippery scale of evidence, but by frank admissions that we do not know whether the public’s health is at risk, but we choose to act anyway, and to impose whatever costs, inconvenience, and further uncertainty by promoting alternatives that are accompanied by even greater risk or uncertainty.  Environmentalists rarely want to advance such wishy-washy proposals, devoid of claims of scientific knowledge that their regulations will avoid harm, and promote health, but honesty and transparency require such admissions.

The authors advance another claim in their Commentary:  transparency in the form of more extensive disclosure of conflicts of interest will aid sound policy formulation.  To their credit, the authors do not limit the need for disclosure to financial benefits; rather they take an appropriately expansive view:

“Disclosures of competing financial interests and nonfinancial interests (such as professional or political allegiances) also provide opportunities for more transparent discussions of the impact of potentially implicit and subconscious values (Resnik and Elliott 2013).”

Elliott & Resnik at 649.  Problematically, however, when the authors discuss some specific instances of apparent conflicts, they note industry “ties,” of the authors of an opinion piece on endocrine disruptors[3], but they are insensate to the ties of critics, such as David Ozonoff and Carl Cranor, to the litigation industry, and of others to advocacy groups that might exert much more substantial positional bias and control over those critics.

The authors go further in suggesting that women have greater perceptions of risk than men, and presumably we must know whether we are being presented with a feminist or a masculinist risk assessment. Will self-reported gender suffice or must we have a karyotype? Perhaps we should have tax returns and a family pedigree as well? The call for transparency seems at bottom a call for radical subjectivism, infused with smug beliefs that want to be excused from real epistemic standards.

[1] In addition to the Elliott and Resnick commentary, see Andrew A. Rooney, Abee L. Boyles, Mary S. Wolfe, John R. Bucher, and Kristina A. Thayer, “Systematic Review and Evidence Integration for Literature-Based Environmental Health Science Assessments,” 122 Envt’l Health Persp. 711 (2014); Janet Pelley, “Science and Policy: Understanding the Role of Value Judgments,” 122 Envt’l Health Persp. A192 (2014); Kristina A. Thayer, Mary S. Wolfe, Andrew A. Rooney, Abee L. Boyles, John R. Bucher, and Linda S. Birnbaum, “Intersection of Systematic Review Methodology with the NIH Reproducibility Initiative,” 122 Envt’l Health Persp. A176 (2014).

[2] Sutera v. The Perrier Group of America, 986 F. Supp. 655, 660 (D. Mass. 1997); In re Agent Orange Product Liab. Litig., 597 F. Supp. 740, 781 (E.D.N.Y. 1984) (Weinstein, J.), aff’d, 818 F.2d 145 (2d Cir. 1987); Allen v. Pennsylvania Engineering Corp., 102 F.3d 194, 198 (5th Cir. 1996) (distinguishing regulatory pronouncements from causation in common law actions, which requires higher thresholds of proof); Glastetter v. Novartis Pharms. Corp., 107 F. Supp. 2d 1015, 1036 (E.D. Mo. 2000), aff’d, 252 F.3d 986 (8th Cir. 2001);  Wright v. Willamette Indus., Inc., 91 F.3d 1105 (8th Cir. 1996); Siharath v. Sandoz Pharms. Corp., 131 F. Supp. 2d 1347, 1366 (N.D. Ga. 2001), aff’d, 295 F.3d 1194 330 (11th Cir. 2002).

[3] Daniel R. Dietrich, Sonja von Aulock, Hans Marquardt, Bas Blaauboer, Wolfgang Dekant, Jan Hengstler, James Kehrer, Abby Collier, Gio Batta Gori, Olavi Pelkonen, Frans P. Nijkamp, Florian Lang, Kerstin Stemmer, Albert Li, KaiSavolainen, A. Wallace Hayes, Nigel Gooderham, and Alan Harvey, “Scientifically unfounded precaution drives European Commission’s recommendations on EDC regulation, while defying common sense, well-established science and risk assessment principles,” 62 Food Chem. Toxicol. A1 (2013)


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