TORTINI

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

Cartoon Advocacy for Causal Claims

October 5th, 2018

I saw him today at the courthouse
On his table was a sawed-in-half man
He was practiced at the art of deception
Well I could tell by his blood-stained hands
Ah yeah! Yeah1

Mark Lanier’s Deceptive Cartoon Advocacy

A recent book by Kurt Andersen details the extent of American fantasy, in matters religious, political, and scientific.2 Andersen’s book is a good read and a broad-ranging dissection of the American psyche for cadswallop. The book has one gaping hole, however. It completely omits the penchant for fantasy in American courtrooms.

Ideally, the trial lawyers in a case balance each other and their distractions drop out of the judge or jury’s search for the truth. Sometimes, probably too frequently in so-called toxic tort cases, plaintiffs’ counsel’s penchant for fantasy is so great and persistent that it overwhelms the factfinder’s respect for the truth, and results in an unjust award. In a telling article in Forbes, Mr. Daniel Fisher has turned his sights upon plaintiffs’ lawyer Mark Lanier and his role in helping a jury deliver a $5 billion (give or take a few shekels).3

The $5 billion verdict came in the St. Louis, Missouri, courtroom of Judge Rex Burlison, who presided over a multi-plaintiff case in which the plaintiffs claimed that they had developed ovarian cancer from using Johnson & Johnson’s talcum powder. In previous trials, plaintiffs’ counsel and expert witnesses attempted to show that talc itself could cause ovarian cancer, with inconsistent jury results. Mr. Lanier took a different approach in claiming that the talcum powder was contaminated with asbestos, which caused his clients to develop ovarian cancer.

The asserted causal relationship between occupational or personal exposure to talc and ovarian cancer is tenuous at best, but there is at least a debatable issue about the claimed association between occupational asbestos use and ovarian cancer. The more thoughtful reviews of the issue, however, are cautious in noting that disease outcome misclassification (misdiagnosing mesotheliomas that would be expected in these occupational cohorts with ovarian cancer) make conclusions difficult. See, e.g., Alison Reid, Nick de Klerk and Arthur W. (Bill) Musk, “Does Exposure to Asbestos Cause Ovarian Cancer? A Systematic Literature Review and Meta-analysis,” 20 Cancer Epidemiol. Biomarkers & Prevention 1287 (2011).

Fisher reported that Lanier, after obtaining the $5 billion verdict, presented to a litigation industry meeting, held at a plush Napa Valley resort. In this presentation, Lanier described his St. Louis achievement by likening himself to a magician, and explained “how I sawed the man in half.” Of course, if Lanier had sawed the man in half, he would be a murderer, and the principle of charity requires us to believe that he is merely a purveyor of magical thinking, a deceiver, practiced in the art of deception.

Lanier’s boast about his magical skills is telling. The whole point of the magician’s act is to thrill an audience by the seemingly impossible suspension of the laws of nature. Deception, of course, is the key to success for a magician, or an illusionist of any persuasion. It is comforting to think that Lanier regards himself as an illusionist because his self-characterization suggests that he does not really believe in his own courtroom illusions.

Lanier’s magical thinking and acts have gotten him into trouble before. Fisher noted that Lanier had been branded as deceptive by the second highest court in the United States, the United States Court of Appeals, in Christopher v. DePuy Orthopaedics, Inc., Nos. 16-11051, et al., 2018 U.S. App. LEXIS 10476 (5th Cir. April 25, 2018). In Christopher, Lanier had appeared to engineer payments to expert witnesses in a way that he thought he could tell the jury that the witnesses had no pecuniary interest in the case. Id. at *67. The Court noted that “[l]awyers cannot engage with a favorable expert, pay him ‘for his time’, then invite him to testify as a purportedly ‘non-retained’ neutral party. That is deception, plain and simple.” Id. at *67. The Court concluded that “Lanier’s deceptions furnish[ed] independent grounds for a new trial, id. at *8, because Lanier’s “deceptions [had] obviously prevented defendants from ‘fully and fairly’ defending themselves.” Id. at *69.

Cartoon Advocacy

In his presentation to the litigation industry meeting in Napa Valley, Lanier explained that “Every judge lives by certain rules, just like in sports, but every stadium is also allowed to size themselves appropriately to the game.” See Fisher at note 3. Lanier’s magic act thrives in courtrooms where anything goes. And apparently, Lanier was telling his litigation industry audience that anything goes in the St. Louis courtroom of Judge Burlison.

In some of the ovarian cancer cases, Lanier had a problem: the women had a BrCa2 deletion mutation, which put them at a very high lifetime risk of ovarian cancer, irrespective of what exogenous exposures they may have had. Lanier was undaunted by this adverse evidence, and he spun a story that these women were at the edge of a cliff, when evil Johnson & Johnson’s baby powder came along and pushed them over the cliff:

Lanier Exhibit (from Fisher’s article in Forbes)

Whatever this cartoon lacks in artistic ability, we should give the magician his due; this is a powerful rhetorical metaphor, but it is not science. If it were, there would be a study that showed that ovarian cancers occurred more often in women with BrCa 2 mutations and talcum exposure than in women with BrCa 2 mutations without talcum exposure. The cartoon also imputes an intention to harm specific plaintiffs, which is not supported by the evidence. Lanier’s argument about the “edge of the cliff” does not change the scientific or legal standard that the alleged harm be the sine qua non of the tortious exposure. In the language of the American Law Institute’s Restatement of Torts4:

An actor’s tortious conduct must be a factual cause of another’s physical harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct.”

Lanier’s cartoon also mistakes risk, if risk it should be, with cause in fact. Reverting back to basic principles, Kenneth Rothman reminds us5:

An elementary but essential principle to keep in mind is that a person may be exposed to an agent and then develop disease without there being any causal connection between the exposure and the disease. For this reason, we cannot consider the incidence proportion or the incidence rate among exposed people to measure a causal effect.”

Chain, Chain, Chain — Chain of Foolish Custody

Johnson & Johnson has moved for a new trial, complaining about Lanier’s illusionary antics, as well as cheesy lawyering. Apparently, Lanier used a block of cheese to illustrate his view of talc mining. In most courtrooms, argument is confined to closing statements of counsel, but in Judge Burlison’s courtroom, Lanier seems to have engaged in one, non-stop argument from the opening bell.

Whether there was asbestos in Johnson & Johnson’s baby powder was obviously a key issue in Lanier’s cases. According to Fisher’s article, Lanier was permitted, over defense objections, to present expert witness opinion testimony based upon old baby powder samples bought from collectors on eBay, for which chain of custody was lacking or incomplete. If this reporting is accurate, then Mr. Lanier is truly a magician, with the ability to make well-established law disappear.6

The Lanier Firm’s Website

One suggestion of how out of control Judge Burlison’s courtroom was is evidenced in Johnson & Johnson’s motion for a new trial, as reported by Fisher. Somehow, defense counsel had injected the content of Lanier’s firm’s website into the trial. According to the motion for new trial, that website had stated that talc “used in modern consumer products” was not contaminated with asbestos. In his closing argument, however, Lanier told the jury he had looked at his website, and the alleged admission was not there.

How the defense was permitted to talk about what was on Lanier’s website is a deep jurisprudential puzzle. Such a statement would be hearsay, without an authorizing exception. Perhaps the defense argued that Lanier’s website was the admission by an agent of the plaintiffs, authorized to speak for them. The attorney-client relationship does create an agent-principal relationship, but it is difficult to fathom that it extends to every statement that Mr. Lanier made outside the record of the trials before the court. If you dear reader are aware of authority to the contrary, please let me know.

Whatever tenuous basis the defense may have advanced, in this cartoon trial, to inject Mr. Lanier’s personal extrajudicial statements into evidence, Mr. Lanier went one parsec farther, according to Fisher. In his closing argument, Lanier blatantly testified that he had checked the website cited and that the suggested statement was not there.

Sounds like a cartoon and a circus trial all bound up together; something that would bring smiles to the faces of Penn Jillette, P.T. Barnum, and Donald Duck.


1 With apologies to Mick Jagger and Keith Richards, and their “You Can’t Always Get What You Want,” from which I have borrowed.

2 Kurt Andersen, Fantasyland: How America Went Haywire – A 500-Year History (2017).

4 “Factual Cause,” A.L.I. Restatement of the Law of Torts (Third): Liability for Physical & Emotional Harm § 26 (2010).

5 Kenneth J. Rothman, Epidemiology: An Introduction at 57 (2d ed. 2012).

6 Paul C. Giannelli, “Chain of Custody,” Crim. L. Bull. 446 (1996); R. Thomas Chamberlain, “Chain of Custody: Its Importance and Requirements for Clinical Laboratory Specimens,” 20 Lab. Med. 477 (1989).

Tremolitic Tergiversation or Ex-PIRG-Gation?

August 11th, 2018

My first encounter with the Public Interest Research Group (PIRG) was as an undergraduate when my college mandated that part of the student activity fee went to New Jersey PIRG. The college administration gave students no choice in the matter.

Upon investigating PIRG’s activities and rhetoric, I found the organization filled with self-aggrandizement, and puffed out with a self-satisfied arrogance. Epistemically, politically, and historically, an organization that declared all its goals to be “in the public interest” was jarring and objectionable, but it was probably just my own idiosyncratic sensitivity.

Many of my fellow students and I protested the forced support for PIRG, and ultimately the college yielded to the tide of opinion. Students were give a choice to opt out of paying the portion of their fees that went to PIRG.

Almost 50 years later, I still have a healthy skepticism of most self-proclaimed “public interest” groups, including PIRG. And so, my antennae went up upon seeing a New York Times article about a PIRG back-to-school shopping guide, with warnings about hazardous materials in crayons and magic markers. See Niraj Chokshi, “Asbestos in a Crayon, Benzene in a Marker: A School Supply Study’s Toxic Results,” N.Y. Times (Aug. 8, 2018). The hazard lurking in crayons, according to PIRG, was none other than the emperor of all toxic substances: asbestos. The Times dutifully reported that PIRG had found only “trace” tremolite, but the newspaper made no attempt to quantify the amount found; nor did the paper describe the meaninfulness of inhalational exposure from trace amount of tremolite embedded in wax. Instead, the Times reported a worrisome quote: “Tremolite is responsible for many cases of asbestos-related cancer and asbestos diseases, according to the Abramson Cancer Center at the University of Pennsylvania.”

* * * * * * * * * * *

A thing is a phallic symbol if it is longer than it is wide.” 

Melanie, Safka (1972)

A thing is a fiber if it is three times longer than it is wide.” 

O.S.H.A., 29 C.F.R. § 1910.1001(b) (defining fiber as having a length-to- diameter ratio of at least 3 to 1).

Ergo, all fibers are phallic symbols.

* * * * * * * * * * *

The New York Times article did link to PIRG’s report, which at least allowed readers to inspect the inculpatory evidence. U.S. PIRG, Safer School Supplies: Shopping Guide: Consumer Guide for Finding Non-Toxic School Supplies (2018). Unfortunately, the PIRG report did not answer crucial questions. There was no quantification of the tremolite asbestos, and there was no discussion of the ability of the tremolite to escape the wax matrix of the crayon, to become airborne, and to be inhaled. The report did cite the methodology used to ascertain the presence of the tremolite (EPA Method: EPA/600/R-93/116). Safer Schools at 5. In Appendix A to the report, the authors showed two microphotographs of tremolite particles, but without any measurement scale. One of the two tremolite particles looks like a cleavage fragment, not a fiber. The other photomicrograph shows something that might be a fiber, but without a scale and a report of the elemental peaks, the reader cannot tell for sure. Safer Schools at 21.

The controversy over the potential health effects of tremolite cleavage fragments has a long history. Compare Robert Reger & W. Keith C. Morgan, “On talc, tremolite, and tergiversation,” 47 Brit. J. Indus. Med. 505 (1990) with Bruce W. Case, “On talc, tremolite, and tergiversation. Ter-gi-ver-sate: 2: to use subterfuges,” 48 Brit. J. Indus. Med. 357 (1991). The regulatory definition of fiber does not distinguish between biologically significant fibers and particles with an aspect ratio greater than three. John Gamble & Graham Gibbs, “An evaluation of the risks of lung cancer and mesothelioma from exposure to amphibole cleavage fragments,” 52 Regulatory Toxicol. & Pharmacol. S154 (2008) (the weight of evidence fully supports a conclusion that non-asbestiform amphiboles do not increase the risk of lung cancer or mesothelioma); Brent L. Finley, Stacey M. Benson & Gary M. Marsh, “Cosmetic talc as a risk factor for pleural mesothelioma: a weight of evidence evaluation of the epidemiology,” 29 Inhalation Toxicol. 179 (2017).

Surely the public interest includes the facts and issues left out by PIRG’s report.

 

 

Divine Intervention in Litigation

January 27th, 2018

The Supreme Being, or Beings, or their Earthly Agents (Angels) rarely intervene in mundane matters such as litigation. Earlier this month, however, there may have been an unsuccessful divine intervention in the workings of a Comal County, Texas, jury, which was deliberating whether or not to convict Gloria Romero Perez of human trafficking.

After the jury reached a verdict, and rang the bell to signal its verdict, the trial judge, the Hon. Jack Robison, waltzed in and proclaimed that that God had told him that Perez was not guilty. According to jury foreperson Mark A. House, Judge Robison told them that he had prayed on the case and that God told him that he had to tell the jury. The state’s attorney was not present to object to the hearsay. House reported that the jury signaled again that it had reached a verdict, and again Judge Robison appeared to proclaim the defendant’s innocence.

Judge Robison’s pronouncements apparently anguished the jurors, some of who were “physically sick, crying and distraught” from the appearance of a putative prophet in the courthouse. Nonetheless, guilty is guilty, and the jury returned its verdict unmoved by Judge Robison. According to news reports, Judge Robison later apologized to the jury, but added something like “if God tells me to do something, I have to do it.” Zeke MacCormack, “Judge facing complaints over trying to sway jury,” San Antonio Express-News (Jan. 20, 2018); Ryan Autullo, “Texas judge interrupts jury, says God told him defendant is not guilty,” American-Statesman (Jan. 19, 2018). Foreperson House filed a complaint against Judge Robison with the judicial conduct commission, but told a local newspaper that “You’ve got to respect him for what he did. He went with his conscience.” Debra Cassens Weiss, “Judge informs jurors that God told him accused sex trafficker isn’t guilty,” A.B.A.J. online (Jan. 22, 2018).Or he was having a stroke. Somewhere, Henry Mencken is laughing and crying uncontrollably.

* * * * * * * * * * * *

For better or worse, I have not experienced divine intervention in my cases. At least, I think not. In one of my cases, the jury foreman and several jurors were in the elevator with my adversary and me, at the end of the trial. The situation was awkward, and punctuated by the foreman’s simple statement that God had directed them to their verdict. No one questioned the gentlemen. I thanked the jurors for their service, but I have never been able to verify the source of the direction or inspiration given to the jury. To this day, I prefer to believe the verdict resulted from my advocacy and marshaling of the evidence.

The case was Edward and Carmelita O’Donnell v. Celotex Corp., et al., Philadelphia County Court of Common Pleas, July Term 1982, No. 1619. My adversary was a very capable African American lawyer, Sandy L.V. Byrd, then of the Brookman, Rosenberg, Brown & Sandler firm in Philadelphia, now a sitting judge in Philadelphia County. As you will see, race was an important ingredient in this case, and perhaps the reason it was tried.

Sandy and I had pulled Judge Levan Gordon1, for the trial, which was noteworthy because Judge Gordon was one of the few trial judges who stood up to the wishes of the coordinating judge (Hon. Sandra Mazer Moss) that all cases be tried “reverse bifurcated,” that is, with medical causation and damages in a first phase, and liability in the second phase.

This unnatural way of trying asbestos personal injury cases had been first advocated by counsel for Johns Manville, which had a huge market share, a distinctive lack of liability defenses, and a susceptibility to punitive damages. In May 1989, when Sandy and defense counsel announced “ready” before Judge Gordon, Johns Manville was in bankruptcy. Reverse bifurcated had long outlasted its usefulness, and had become a way of abridging defendants’ due process rights to a trial on liability. If a jury returned a verdict with damages in phase One, plaintiffs would argue (illegitimately but often with court approval) that it was bad enough that defendants caused their illness, how much worse is it now that they are arguing to take away their compensation.

Worse yet, in trying cases backwards, with reverse bifurcation, plaintiffs quickly learned that they could, in Phase One, sneak evidence of liability, or hint that the defendants were as liable as sin, and thus suggest that the odd procedure of skipping over liability was desirable because liability was well-nigh conceded. The plaintiffs’ direct examination typically went something like:

Q. How did you feel emotionally when you received your diagnosis of asbestos-related _[fill in the blank]____?

A. I was devastated; I cried; I was depressed. I had never heard that asbestos could cause this disease..…

So clearly there was a failure to warn, at least on that colloquy, and that was all juries needed to hear on the matter, from the plaintiffs’ perspective. If the defendants lost in the first phase, and refused to settle, juries were annoyed that they were being kept from their lives by recalcitrant, liable defendants. Liability was a done deal.

At the time, most of the asbestos case trials in Philadelphia were brought by government employees at the Philadelphia Naval Shipyard. The government was an extremely knowledgeable purchaser of asbestos-containing insulation products, and was as, or more, aware of the hazards of asbestos use than any vendor. At the time, 1989, the sophisticated intermediary defense was disallowed under Pennsylvania strict liability law, and so defendants rarely got a chance to deploy it.

In a case that went “all issues,” with negligence and even potential punitive damages, however, the sophisticated intermediary defense was valid under Pennsylvania law. Judge Gordon’s practice of trying all cases, all issues, opened the door to defending the case by showing that there was no failure to warn at all, because the Navy, at its shipyards, was knowledgeable about asbestos hazards. If plaintiff’s testimony were true about lack of protections, then the Navy itself had been grossly negligent in its maintenance and supervision of the shipyard workplace.

Before trial began, on May 8, 1989, the Brookman firm had signaled that the O’Donnell case was on track to settle in a dollar range that was typical for cases involving the age, medical condition, and work history of the plaintiff, Mr. O’Donnell. The settlement posture of the case changed, abruptly however, after jury selection. When the jury was sworn, we had 12 Philadelphians, 11 of whom were African American, and one of whom was Latina. When I asked Sandy whether we were settled at the number we had discussed the previous day, he looked at me and asked why he would want to settle now, with the jury we had. He now insisted that this trial must be tried. Racism works in curious ways and directions.

So we tried the O’Donnell case, the old-fashioned way, from front to back. Both sides called “state of the art” expert witnesses, to address the history of medical knowledge about asbestos-related diseases. We called product identification lay witnesses, as well as several physicians to testify about Mr. O’Donnell’s disputed asbestosis. The lovely thing about the O’Donnell trial, however, was that I had the opportunity to present testimony from the Philadelphia Navy Yard’s industrial hygienist, Dr. Victor Kindsvatter, who had given a deposition many years before. Kindsvatter, who had a Ph.D. in industrial hygiene, was extraordinarily knowledgeable about asbestos, permissible exposure limits, asbestos hazards, and methods of asbestos control on board ships and in the shops.

The result of Judge Gordon’s all issue trial was a fuller, fairer presentation of the case. Plaintiffs could argue that the defendants were horribly negligent given what experts knew in the medical community. Defendants could present evidence that experts at the relevant time believed that asbestos-containing insulation products could be used safely, and that the U.S. Navy was especially eager to use asbestos products on board ships, and had extensive regulations and procedures for doing so. The testimony that probably tipped the balance came from a former shipyard worker, George Rabuck. Mr. Rabuck had been a client of the Brookman firm, and he was their go-to guy to testify on product identification. In the O’Donnell case, as in many others, Rabuck dutifully and cheerfully identified the products of the non-settling defendants, and less cheerfully, the products of the settled and bankrupt defendants. In O’Donnell, I was able to elicit additional testimony from Mr. Rabuck about a shakedown cruise of a new Navy ship, in which someone had failed to insulate a hot line in the boiler room. When an oil valve broke, diesel fuel sprayed the room, and ignited upon hitting the uninsulated pipe. A ship fire ensued, in which several sailors were seriously injured and one died. In my closing argument, I was able to remind the jury of the sailor who died because asbestos insulation was not used on the Navy ship.

On May 18, 1989, the jury came back with a general verdict for the defense in O’Donnell. Judge Gordon entered judgment, from which there was no appeal. Ignoring the plaintiffs’ lawyers intransigence on settlement, Judge Moss was angry at the defense lawyers, as she typically was, for tying up one of her court rooms for Judge Gordon’s rotation in her trial program. Judge Moss stopped asking Judge Gordon to help with the asbestos docket after the O’Donnell case. Without all-issue trials that included negligence claims, sophisticated intermediary defenses went pretty much unexercised in asbestos personal injury cases for the next 25 years.

My real question though, in view of Texas Judge Robison’s epiphany, is whether the defense won in O’Donnell because of the equities and the evidence, or whether an angel had put her finger on the scales of justice. It’s a mystery.


1 Ryanne Persinger, “Levan Gordon, retired judge,” Tribune Staff (Oct. 6, 2016). Judge Gordon was one of the most respected judges in Philadelphia County. He had graduated from Lincoln University in 1958, and from Howard University School of Law in 1961. Gordon was elected to Philadelphia Municipal Court in 1974, and to the Court of Common Pleas in 1979. He died on October 4, 2016.

The Amicus Curious Brief

January 4th, 2018

Friends – Are They Boxers or Briefers*

Amicus briefs help appellate courts by bringing important views to bear on the facts and the law in disputes. Amicus briefs ameliorate the problem of the common law system, in which litigation takes place between specific parties, with many interested parties looking on, without the ability to participate in the discussion or shape the outcome.

There are dangers, however, of hidden advocacy in the amicus brief. Even the most unsophisticated court is not likely to be misled by the interests and potential conflicts of interest of groups such as the American Association for Justice or the Defense Research Institute. If the description of the group is not as fully forthcoming as one might like, a quick trip to its website will quickly clarify the group’s mission on Earth. No one is fooled, and the amicus briefs can be judged on their merits.

What happens when the amici are identified only by their individual names and institutional affiliations? A court might be misled into thinking that the signatories are merely disinterested academics, who believe that important information or argument is missing from the appellate discussion.

The Pennsylvania Supreme Court has offered itself up as an example of a court snookered by “58 physicians and scientists.”1 Rost v. Ford Motor Co., 151 A.3d 1032, 1052 (Pa. 2016). Without paying any attention to the provenance of the amicus brief or the authors’ deep ties with the lawsuit industry, the court cited the brief’s description of:

“the fundamental notion that each exposure to asbestos contributes to the total dose and increases the person’s probability of developing mesothelioma or other cancers as an ‘irrefutable scientific fact’. According to these physicians and scientists, cumulative exposure is merely an extension of the ancient concept of dose-response, which is the ‘oldest maxim in the field’.”

Id. (citing amicus brief at 2).

Well, irrefutable in the minds of the 58 amici curious perhaps, who failed to tell the court that not every exposure contributes materially to cumulative exposure such that it must be considered a “substantial contributing factor.” These would-be friends also failed to tell the court that the human body has defense mechanisms to carcinogenic exposures, which gives rise to a limit on, and qualification of, the concept of dose-response in the form of biological thresholds, below which exposures do not translate into causative doses. Even if these putative “friends” believed there was no evidence for a threshold, they certainly presented no evidence against one. Nonetheless, a confused and misguided Pennsylvania Supreme Court affirmed the judgment below in favor of the plaintiffs.

The 58 amici also misled the Pennsylvania Supreme Court on several other issues. By their failure to disclose important information about themselves, and holding themselves out (falsely but successfully) as “disinterested” physicians and scientists, these so-called friends misled the court by failing to disclose the following facts:

1. Some of them were personal friends, colleagues, and fellow-party expert witnesses of the expert witness (Arthur Frank), whose opinion was challenged in the lower courts;

2. Some of the amici had no reasonable claim to expertise on the issues addressed in the brief;

3. Some of the amici have earned substantial fees in other asbestos cases, involving the same issues raised in the Rost case;

4. Some of the amici have been excluded from testifying in similar cases, to the detriment of their financial balance sheets;

5. Some of the amici are zealous advocates, who not only have testified for plaintiffs, but have participated in highly politicized advocacy groups such as the Collegium Ramazzini.

Two of the amici are historians (Rosner and Markowitz), who have never conducted scientific research on asbestos-related disease. Their work as labor historians added no support to the scientific concepts that were put over the Pennsylvania Supreme Court. Both of these historians have testified in multiple asbestos cases, and one of them (Markowitz) has been excluded in a state court case, under a Daubert-like standard. They have never been qualified to give expert witness testimony on medical causation issues. Margaret Keith, an adjunct assistant professor of sociology, appears never to have written about medical causation between asbestos and cancer, but she at least is married to another amicus, James Brophy, who has.

Barry Castleman,2 David F. Goldsmith, John M. Dement, Richard A. Lemen, and David Ozonoff have all testified in asbestos or other alleged dust-induced disease cases, with Castleman having the distinction of having made virtually his entire livelihood in connection with plaintiffs-side asbestos litigation testifying and consulting. Castleman, Goldsmith, and Ozonoff have all been excluded from, or severely limited in, testifying for plaintiffs in chemical exposure cases.

(Rabbi) Daniel Thau Teitelbaum has the distinction of having been excluded in case that went to the United States Supreme Court (Joiner), but Shira Kramer,3 Richard Clapp, and Peter F. Infante probably make up for the lack of distinction with the number of testimonial adventures and misadventures. L. Christine Oliver and Colin L. Soskolne have also testified for the lawsuit industry, in the United States, and for Soskolne, in Canada, as well.

Lennart Hardell has testified in cellular telephone brain cancer cases,4 for plaintiffs of course, which qualified as an expert for the IARC on electromagnetic frequency and carcinogenesis.5

Celeste Monforton has earned credentials serving with fellow skapper David Michaels in the notorious Project on Scientific Knowledge and Public Policy (SKAPP) organization.6 Laura S. Welch, like Monforton, another George Washington lecturer, has served the lawsuit industry in asbestos personal injury and other cases.

Exhibit A to the Amicus brief lists the institutional affiliations of each amicus. Although some of the amici described themselves as “consultants,” only one amicus (Massimiliano Bugiani) listed his consultancy as specifically litigation related, with an identification of the party that engaged him: “Consultant of the Plaintiff in the Turin and Milan Courts.” Despite Bugiani’s honorable example, none of the other amici followed suit.

* * * * * * * *

Although many judges and lawyers agree that amicus briefs often bring important factual expertise to appellate courts, there are clearly some abuses. I, for one, am proud to have been associated with a few amicus briefs in various courts. One law professor, Allison Orr Larsen, in a trenchant law review article, has identified some problems and has suggested some reforms.7 Regardless of what readers think of Larsen’s proposed reforms, briefs should not be submitted by testifying and consulting expert witnesses for one side in a particular category of litigation, without disclosing fully and accurately their involvement in the underlying cases, and their financial enrichment from perpetuating the litigation in question.

* Thanks to Ramses Delafontaine for having alerted me to other aspects of the lack of transparency in connection with amicus briefs filed by professional historian organizations.


1 Brief of Muge Akpinar-Elci, Xaver Bauer, Carlos Bedrossian, Eula Bingham, Yv Bonnier-Viger, James Brophy, Massimiliano Buggiani, Barry Castleman, Richard Clapp, Dario Consonni, Emilie Counil, Mohamed Aquiel Dalvie, John M. Dement, Tony Fletcher, Bice Fubini, Thomas H. Gassert, David F. Goldsmith, Michael Gochfeld, Lennart Hadell [sic, Hardell], James Huff, Peter F. Infante, Moham F. Jeebhay, T. K. Joshi, Margaret Keith, John R. Keyserlingk, Kapil Khatter, Shira Kramer, Philip J. Landrigan, Bruce Lanphear, Richard A. Lemen, Charles Levenstein, Abby Lippman, Gerald Markowitz, Dario Mirabelli, Sigurd Mikkelsen, Celeste Monforton, Rama C. Nair, L. Christine Oliver, David Ozonoff, Domyung Paek, Smita Pakhale, Rolf Petersen, Beth Rosenberg, Kenneth Rosenman, David Rosner, Craig Slatin, Michael Silverstein, Colin L. Soskolne, Leslie Thomas Stayner, Ken Takahashi, Daniel Thau Teitelbaum, Benedetto Terracini, Annie Thebaud-Mony, Fernand Turcotte, Andrew Watterson, David H. Wegman, Laura S. Welch, Hans-Joachim Woitowitz as Amici Curiae in Support of Appellee, 2015 WL 3385332, filed in Rost v. Ford Motor Co., 151 A.3d 1032 (Pa. 2016).

2 SeeThe Selikoff – Castleman Conspiracy” (Mar. 13, 2011).

4 Newman v. Motorola, Inc., 218 F. Supp. 2d 769 (D. Md. 2002) (excluding Hardell’s proposed testimony), aff’d, 78 Fed. Appx. 292 (4th Cir. 2003) (affirming exclusion of Hardell).

6 See, e.g., SKAPP A LOT” (April 30, 2010); Manufacturing Certainty” (Oct. 25, 2011); “David Michaels’ Public Relations Problem” (Dec. 2, 2011); “Conflicted Public Interest Groups” (Nov. 3, 2013).

7 See Allison Orr Larsen, “The Trouble with Amicus Facts,” 100 Virginia L. Rev. 1757 (2014). See also Caitlin E. Borgmann, “Appellate Review of Social Facts in Constitutional Rights Cases,” 101 Calif. L. Rev. 1185, 1216 (2013) (“Amicus briefs, in particular, are often submitted by advocates and may be replete with dubious factual assertions that would never be admitted at trial.”).