TORTINI

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Selikoff Timeline & Asbestos Litigation History

December 20th, 2018

The critics and cheerleaders of Dr. Irving John Selikoff agree that he was a charming, charismatic, and courageous man, a compassionate physician, and a zealous advocate for worker safety and health. The consensus falls apart over the merits of Selikoff’s actual research, his credentials, and his advocacy tactics.1

Selikoff’s collaborators, protégés, and fellow travelers tend to brand any challenge or criticism as “scurrilous.”2 They attack the messenger for attacking the messenger. Certainly in his lifetime, Selikoff attracted harsh and vituperative attacks, some of which were mean-spirited and even anti-semitic.

Although I am not a Jew, I am, following Jonathan Miller, “Jew-ish, just not the whole hog.” As such, I can appreciate the ire of some of Selikoff’s defenders over the nature of these attacks. Selikoff’s legitimate achievements should not be diminished, and his defenders are correct to bemoan the ad hominem attacks on Selikoff, based upon ethnicity and personal characteristics.

Selikoff’s defenders are wrong, however, to claim that Selikoff’s training, scientific acumen, advocacy, and false positive claims are somehow off limits. Selikoff advanced his scientific and political agenda by promoting his reputation and work, and he thus put his credentials, work, and methods into issue. Selikoff’s contributions to public health in publicizing the dangers of high exposure, long-term asbestos exposure do not privilege every position he took. Selikoff is a difficult case because he was wrong on many issues, and his reputation, authority and prestige ultimately became much greater than the evidence would ultimately support.

Although Selikoff died in 1992, his legacy lives on in the perpetual litigation machine that is run by the litigation industry and Selikoff’s juniors and imitators, who serve as testifying expert witnesses. One of Selikoff’s great achievements, the federalization of worker safety and health in the Williams-Steiger Occupational Safety and Health Act of 1970,3 languishes because of inadequate resources for enforcement and frivolous efforts to address non-existent problems, such as the lowering of the crystalline silica permissible exposure limit. Activists have taken to redress the problem by advocating for nugatory “warnings” from remote suppliers, in the face of employer failures to monitor and supervise workers and the workplace, and to provide administrative, engineering, and personal protective controls.

Selikoff diverted regulatory attention from asbestos fiber type, with the result that the OSHA PELs were lowered for both chrysotile and amphibole asbestos, thus leaving the ultra-hazardous crocidolite asbestos in use. Selikoff perpetuated a good deal of mischief and misinformation to keep his myth that all fiber types are the same (and that “asbestos is asbestos is asbestos”). In doing so, he actually hurt people.

An anonymous snark on Wikipedia noted some of my blog posts about Selikoff, and offered the lame criticism that my writings were not peer reviewed.4 The snark (Tweedale?) was of course correct on this limited point, but generally in this field, peer review is worth a warm bucket of spit.And the Selikoffophiles continue to tell tall tales about Selikoff’s work and in particular about how he became involved in asbestos medicine. See, e.g., Philip Landrigan, “Stephen Levin, MD, honored with the Collegium Ramazzini’s Irving J. Selikoff Memorial Award in 2009.”So here is a timeline of Selikoff’s life and asbestos work. If anyone notes an error or inconsistency in this time line, please contact me, provide better sources, and ask for a correction. If I am wrong, I will readily note the correction and eat my words, but I am sure they will be quite digestible.5  

Jan. 15, 1915.  Irving John Selikoff was born as Irving Selecoff in the brain basket of America, Brooklyn, New York, to Abraham and Matilda (Tillie) Selecoff.6 His father, Abraham, was born on April 6, 1885, in the Kiev oblast of what is now Ukraine.7

1920.  According to the 1920 census, the Selekoff family lived at 816 179th Street, in the Bronx. Irving’s father, Abraham, was self-employed as a hat manufacturer, doing business later as United Headwear Corporation.8 The family had two children, Irving, and his older sister, Gladys.

1930. Asbestos workers’ journal published a story about the (non-malignant) risks of asbestos exposure. See The Asbestos Menace,” The Asbestos Worker 9-11 (Sept. 1930).

June 1935.  Selikoff was graduated from Columbia University, with a B.S. degree.

December 1935.  Selikoff arrived Boston from Yarmouth, on the S.S. Yarmouth, on December 24, 1935, apparently en route from Scotland.

August 1936.  Selikoff sat for the university entrance boards in Scotland.

September 1936.  Selikoff married Lydia Kapilian, in the Bronx.9

October 1936.  Selikoff entered Anderson’s College of Medicine, in Glasgow, Scotland.10

1936.  Alice Hamilton published an article on the risks and benefits of industrial asbestos use, in a key labor unionist journal. Alice Hamilton, “Industrial Poisons,” 43 The American Federationist 707-13 (1936).

April 26, 1937.  Selikoff arrived in New York, from Greenock, Scotland, on the S.S. Carinthia.

July 14, 1938.  Selikoff arrived in Quebec, from Greenock, Scotland, on the S.S. Duchess Atholl.

June 24, 1939.  Selikoff arrived in New York, from Liverpool, London, on the S.S. Mauretania. Because of the developing hostilities in Europe, Selikoff apparently did not return to Glasgow, in the fall of 1939.

November 1939.  Unable to return to Scotland, Selikoff applied to Melbourne University for coursework to finish his non-degree course of qualification for medication practice in the United Kingdom.11

Mar. 4, 1940.  Selecoff (as his name was then often spelled) arrived in Vancouver from Sydney, on the S.S. Aorangi.

April 1940.  Irving Selikoff was living with his parents, and his married sister and her family, in Rye, New York, according to the 1940 census, taken on April 10, 1940.

May 27, 1940.  Selikoff enrolled in the University of Melbourne as a non-degree student, for coursework to finish his qualification for medical license in Scotland.12

Mar. 24, 1941.  Selikoff arrived in Los Angeles, California, from Sydney, Australia, on the S.S. Mariposa. According to Bartrip, Selikoff had completed his last course at the University of Melbourne, for his “tailor-made” program, on February 27, 1941. Selikoff never gained entrance to a degree program at Melbourne.13

1941.  Selikoff joined the Mount Sinai Hospital as an assistant in Anatomy and Pathology, “immediately following his university training.”14

November 1, 1943.  Selikoff received an M.D., degree from Middlesex University,15 after two semesters in residence. This school was regarded as “substandard” and not approved by the American Medical Association. The school lost its accreditation in 1946, and closed.16 After receiving this degree, Selikoff continued his efforts to return to Scotland, to complete his “triple qualification” for medical licensure in Scotland, which would allow him to sit for the licensing examination in one of the United States.

1943 – 1944.  Selikoff served as an intern, at the Beth Israel Hospital, in Newark, New Jersey.17

1944 – 1946.  Selikoff served as a resident, at the Sea View Hospital, in New York City.18

April 23, 1945.  Selikoff was listed in the British Medical Registry, based upon his qualification by the Scottish Conjoint Board for his work at Anderson’s and his non-degree work at the University of Melbourne.19

June 2, 1945.  Selikoff arrived in Montreal, Quebec, from Liverpool, England, on the S.S. Axel Johnson.

February 1946.  Selikoff married Celia Schiffrin in Manhattan.20 It was the second marriage for both bride and groom.

1947.  After having left Mt. Sinai Hospital, in 1943, for an internship and a residency, Selikoff resumed his association with Mt. Sinai Hospital.21

1949.  Selikoff opened a medical office at 707 Broadway, Paterson, New Jersey,22 not far from a factory run by the Union Asbestos and Rubber Company (UNARCO). In the same year, the Selikoffs were living at 965 Fifth Avenue, near 78th Street, in Manhattan.23 By the early 1950s, Selikoff and his wife had moved to 505 Upper Boulevard, Ridgewood, New Jersey.

1950.  Selikoff’s medical practice in Paterson, New Jersey, afforded him the opportunity to observe “the incidence of lung disease among workers at the Union Asbestos and Rubber Company (UNARCO),”24 which operated one of its factories in Paterson.

1951.  New Jersey lawyer Carl Gelman retained Dr. Irving Selikoff to examine 17 workers from the Paterson plant of Union Asbestos and Rubber Company (UNARCO). Gelman filed workers’ compensation claims on behalf of the UNARCO workers.25

1952.  Supported by Selikoff’s report, UNARCO worker Anton Szczesniak settled his worker’s compensation case, involving “intestinal cancer,” for $2,000 in 1952.26 Selikoff published data on the carcinogenicity of amosite in 1972,27 a delay of twenty years.28

1952.  Selikoff and colleagues published the results of a clinical trial of isoniazid for tuberculosis patients.29

1952.  Selikoff was featured in Life magazine coverage of isoniazid, a chemotherapy for tuberculosis.30

1952.  Selikoff was an assistant attending physician for thoracic diseases in the department of thoracic diseases at Mt. Sinai Hospital. In this year, Selikoff delivered the monthly Physiological Chemistry Seminar lecture at Mt. Sinai Hospital on: “Antitubercular Hydrazines,” along with Drs. H. H. Fox and Richard J. Schnitzer, of Hoffman-La Roche.

1955.  Selikoff received the Albert Lasker Clinical Medical Research Award for his work on the clinical trial of isoniazid to treat tuberculosis, along with Walsh McDermott and Carl Muschenheim, of the Hoffmann-La Roche Research Laboratories, and Edward H. Robitzek, of the Squibb Institute for Medical Research.31

1954.  UNARCO closed its Paterson, New Jersey plant, and moved it to Tyler, Texas.32

1955.  Selikoff’s involvement in the isoniazid clinical trials continued to attract media attention. His first television appearance was panned, but he would later develop considerable public speaking skills.33

1955.  Sir Richard Doll published his epidemiologic study of lung cancer among British asbestos workers.34 This study was known to Selikoff, who relied upon it in his litigation reports to support the compensation claims of asbestos workers in the 1950s.35  Labor unions were aware of the causal claim. Herbert K. Abrams, union physician and the Medical Director of Local 25 Chicago, Building Service Employees International Union, concluded that asbestos causes cancer in a prominent union journal. Herbert K. Abrams, “Cancer in Industry,” American Federationist (1955). Dr. Abrams’ article was republished in many union newsletters. See also Lester Breslow, LeMar Hoaglin, Gladys Rasmussen & Herbert K. Abrams, “Occupations and Cigarette Smoking as Factors in Lung Cancer,” 44 Am. J. Pub. Health. 171, 171 (1954).

1956.  Selikoff became an associate attending physician for thoracic disease at Mt. Sinai Hospital.

1957.  Attorney William L. Brach filed perhaps the first civil action (as opposed to worker’s compensation claim), on behalf of Frederick LeGrande, against Johns-Manville, for asbestos-related disease, on July 17, 1957. Frederick LeGrande v. Johns-Manville Prods. Corp., No. 741-57 (D.N.J.).

1957. President Sickles, International Convention of the Asbestos Heat, Frost and Insulators Union, reported to his unions delegates that he “[b]eing well aware of the health hazards in the Asbestos industry, requested authority for the General Executive Board to make a study of the health hazards … that will enable the Board to adopt any policies that will tend to protect the health of our International membership.” The Asbestos Worker at 1 (Oct, 1957) (reporting on the Asbestos Workers’ 19th General Convention).

1960.  Dr. J. Christopher Wagner published a case series of mesothelioma among persons exposed to crocidolite, in the region of South Africa where crocidolite is mined and milled. After this publication, the causal role of crocidolite became quickly accepted in the scientific and medical community.36

1960-1961.  Selikoff published two papers on the patho-physiology of asbestosis, based on data from 17 UNARCO workers,37 obtained from his medico-legal evaluations of the men.38

Irving and Celia Selikoff in 1961 Brazilian visa documents

1961. Asbestos insulators’ union discussed collaboration with scientists to discuss lung cancer and other diseases among its membership.39 Union members, intensely interested in legal redress for compensation, became aware of Selikoff’s research hypothesis in advance of Selikoff’s survey of the members’ smoking habits, which the workers had a motive to under report.

November 1961. The Asbestos insulators’ union’s magazine featured a full page warning of the grim reaper urging insulators to Wear Your Respirator.” The Asbestos Worker (Nov. 1961). The warning was developed under the guidance of C. V. Krieger of Local No. 28, Safety Superintendent at the Long Beach Naval Shipyard.

July 12, 1962.  Selikoff visited Asbestos Corporation of America, an intermediary broker of asbestos fibers. In a memorandum Selikoff prepared from his discussions with Wade I. Duym, the general manager of the company, and others, he detailed the widespread use of amphibole asbestos fibers in a variety of products. He noted that amosite was used primarily in the insulation trade, and that it was the asbestos “of choice” for sprayed-on products, high temperature insulating cements and pipecovering (magnesia and calcium silicates). Selikoff described crocidolite, from Africa and Bolivia, as a strong, chemically resistant, relatively inexpensive fiber that was used in asbestos cement products, and in Kent cigarette filters.

September 1962. Selikoff presented to a meeting of the Asbestos Workers, to request their help in conducting his study of insulator mortality and morbidity. Irving Selikoff, “Speech at Asbestos Workers Union Annual Meeting,” The Asbestos Worker 8 (Sept. 1962).

1962.  Asbestos insulators’ union acknowledged that its leadership has been collaborating with Dr. Irving Selikoff.40 In September 1962, Selikoff and colleagues began physical examinations of members of the New York and New Jersey locals.41`

1962.  In a publication for Naval personnel, with virtually no circulation in the general industrial community, the United States government acknowledged that shipyard and on-board exposures greatly exceeded the ACGIH’s then current TLV for asbestos.42

1963.  Selikoff established the Environmental Sciences Laboratory, later known as the Division of Environmental and Occupational Medicine, in the Mt. Sinai School of Medicine’s Department of Community Medicine.

1964.  Selikoff published his first article on cancer in a cohort of union asbestos insulators from New York and New Jersey.43 Selikoff and his co-authors failed to disclose funding from the union, or the union members’ awareness of the research hypotheses under investigation.

1964.  In October 1964, Selikoff organized and co-chaired (with Dr. Jacob Churg) a conference, “The Biological Effects of Asbestos, for the New York Academy of Sciences, in New York City. The conference featured presentations and papers from many international investigators. Several presenters, including Selikoff, documented the prevalent use of amphibole asbestos (both crocidolite and amosite) in the United States.44

1965.  Papers presented at the 1964 New York Academy of Sciences conference were published in late 1965, in a non-peer reviewed publication, volume 132, of the Annals of the New York Academy of Sciences.

1966.  Selikoff testified on behalf of insulator claiming that his asbestos exposure caused his colorectal cancer.45 Forty years later, the Institute of Medicine (now the National Academy of Medicine) comprehensively 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.”46

1966 – 1972.  Selikoff testified frequently in civil action and in worker compensation proceedings for claimants who alleged asbestos-related injuries.47 In 1972, Andrew Haas, President of the asbestos workers’ union thanked Selikoff for his “frequent” expert witness testimony on behalf of union members.48

September 1967. In an address to the International Association of Heat and Frost Insulators and Asbestos Workers, Selikoff acknowledged the widespread use of amosite, particularly in shipyards, the absence of lung cancer among non-smoking insulation workers, and the failure of more than 9 out of 10 insulators to wear respirators on dusty jobs. See Irving J. Selikoff, Address to the delegates of the twenty-first convention of the International Association of Heat and Frost Insulators and Asbestos Workers at 8, 9-10, 24 (Chicago, Illinois, Sept. 1967) (“I have yet to see a lung cancer in an asbestos worker who didn’t smoke cigarettes. … “[C]ancer of the lung could be wiped out in your trade if you people wouldn’t smoke cigarettes, period.”).

September 1968.  Selikoff “warns” the United States of asbestos hazards that existed and continue to exist in the government’s shipyards.49 The warning was largely about seeking media attention by Selikoff; the government, and especially the Navy, had long known of asbestos hazards.50

May 1968.  Selikoff testified that all fibers are equally potent, to Congress in support of a bill that would become the OSH Act.

1969.  Selikoff served as president of the New York Academy of Sciences.

1972.  Selikoff was shown to consistently over-read chest radiographs for potential asbestos-related abnormalities.51

1973.  Selikoff  testified for the government in United States v. Reserve Mining Co., No. 5-72 Civil 19 (D. Minn. Sept. 21, 1973).52 On September 20, Selikoff testified about the town where Reserve Mining’s taconite mine was located: “I think we ought to have a sign at the entrance to sections of the town ‘Please Close Your Windows Before Driving Through’. I certainly would want to close mine.” When his testimony continued the following day, Selikoff acknowledged that he had been “facetious” in his previous day’s testimony.53

1974. After having given “facetious” testimony, Selikoff stopped testifying. Marxist historians Jock McCulloch and Geoffrey Tweedale suggest that Selikoff “ avoided the drama of the courtroom and the role of the expert witness” because of the drain on his time, his desire to avoid antagonizing industry, and his need to prevent discovery of trade union medical files.54

1974.  Selikoff published a review on asbestos and gastrointestinal cancer, without disclosing his funding from the asbestos insulation union or his receipt of fees for litigation work in which he maintained a causal relationship in advance of any data.55

July 1978.  The National Cancer Institute (NCI) invited Dr. Hans Weill to co-chair a conference on lung cancer surveillance. Ten days later, the NCI retracted the invitation. When Weill inquired about the reasons for the shoddy treatment, an NCI official (Margaret Sloan) told him that “representatives of organized labor” objected to his participation. Sloan’s superior at NCI stated that Selikoff had raised the question whether the conference’s recommendations would lose credibility if Weill were a co-chair. When asked about his role in this sordid affair, Selikoff equivocated, saying he had “simply” said that “[s]ince Weill was a consultant to the Asbestos Information Center, I didn’t know if this would enhance or detract from hearing all points of view.”56

Nov. 5, 1979.  Barry Castleman, career testifier for asbestos claimants, prepared a memorandum to Selikoff to urge him to resist allowing discovery of asbestos worker union members’ knowledge of the hazards of asbestos.57

1981.  Sir Richard Doll and Professor Richard Peto published a rebuttal to wildly exaggerated asbestos risk assessments based upon Selikoff’s insulator studies.58

1984.  Selikoff prepared a report on his group’s epidemiologic study of Electric Boat employees, who were engaged in the construction of submarines.59 The data did not fit the Mt. Sinai Catechism of large increased risks.60 Selikoff never published these data in a medical journal or a textbook.61

March 1986.  Selikoff’s wife, Celia, died.62

1987 – 1989.  Selikoff’s insulator cohort study data took on an outsize importance in litigation because of plaintiffs’ heavy reliance upon his studies in court cases. When litigants asked for these data, Selikoff consistently refused to share, which necessitated federal court intervention.63

1988.  Selikoff and William Nicholson prepared a manuscript report of a study of the mortality experience at a New Jersey asbestos product manufacturing plant of Johns Manville.64 Their report documented the substantial use of crocidolite in various products, and the resulting horrific mesothelioma mortality. Selikoff never published this crocidolite-exposed cohort, although he tirelessly republished his insulator cohort data repeatedly with the misrepresentation that the insulators were not exposed to crocidolite.

June 7 to June 9, 1990. Selikoff conspired with Ron Motley and others to pervert the course of justice by inviting judges with active asbestos dockets to a one-sided conference on asbestos science, and to pay for their travel and lodging. In his invitation to this ex parte soirée, Selikoff failed to mention that the funding came from plaintiffs’ counsel.65  Shortly after the Third Circuit spoke on the Mt. Sinai dress rehearsal for the plaintiffs’ asbestos property damage trial case, Judge Jack Weinstein issued a curious mea culpa. Because of a trial in progress, Judge Weinstein did not attend the “Third Wave” conference, but he and a state judge (Justice Helen Freedman) attended an ex parte private luncheon meeting with Dr. Selikoff. Here is how Judge Weinstein described the event:

But what I did may have been even worse [than Judge Kelly’s conduct that led to his disqualification]. A state judge and I were attempting to settle large numbers of asbestos cases. We had a private meeting with Dr. Irwin [sic] J. Selikoff at his hospital office to discuss the nature of his research. He had never testified and would never testify. Nevertheless, I now think that it was a mistake not to have informed all counsel in advance and, perhaps, to have had a court reporter present and to have put that meeting on the record.”66

What is curious is that Judge Weinstein, usually a careful judge and scholar, was so incorrect about Dr. Selikoff’s having never testified. His account suggests that Dr. Selikoff was the source for this falsehood. 67

Oct. 2, 1990.  Selikoff wrote to Judge Jack Weinstein and Justice Helen Freedman, presumably after the “regrettable” ex parte luncheon meeting, to hold forth with his views on the health effects of occupational and para-occupational exposure to asbestos.

May 20, 1992.  Selikoff dies several months before the U.S. Court of Appeals condemns the Selikoff-Motley conspiracy.68

2013.  Follow up of the national insulator cohort fails to support multiplicative interaction between smoking and asbestos for lung cancer outcomes in the absence of asbestosis.69


1 Rachel Maines, Asbestos and Fire: Technological Tradeoffs and the Body at Risk 155 (2005) (“charming, courageous, and compassion medical professional with more charisma than credentials”).

2 Jock McCulloch & Geoffrey Tweedale, Shooting the messenger: the vilification of Irving J. Selikoff,” 37 Internat’l J. Health Services 619 (2007); Scientific Prestige, Reputation, Authority & The Creation of Scientific Dogmas” (Oct. 4, 2014); David Egilman, Geoffrey Tweedale, Jock McCulloch, William Kovarik, Barry Castleman, William Longo, Stephen Levin, and Susanna Rankin Bohme, “P.W.J. Bartrip’s Attack on Irving J. Selikoff,” 46 Am. J. Indus. Med. 151, 152 (2004) [Egilman (2004)].

3 84 Stat. 1590, et seq., 29 U.S.C. § 651, et seq.

5 See Wikipedia, “Irving Selikoff” (last visited Dec. 4, 2018).

6 Kings County Birth Certificate no. 4595 (Jan. 15, 1915). His family later adopted the surname Selikoff. Irving Selikoff’s social security records list his father as Abraham Selikoff and his mother as Tillie Katz.

7 Abraham Selecoff World War II draft registration, serial no. U1750.

8 Abraham Selecoff World War II draft registration, serial no. U1750.

9 Bronx marriage certificate no. 8246 (Sept. 27, 1936); Bronx marriage license no. 8652 (Sept. 24, 1936). Irving’s parents were listed as Abraham Selikoff and Tillie Katz. His residence was at 109 W. 112th Street. Lydia was listed as the daughter of Mendel Kapilian and Bessie Weller. Irving and Lydia were divorced sometime between 1939 and 1941. The marriage certificates stated Lydia to have been 21 years old. Her Social Security records (SSN 112-052-2143), however, gave her birth date as April 22, 1917, (making her 19), and subsequent marriage names of Quint and Teichner.

10 This and other details of Selikoff’s checkered medical education come from Peter Bartrip’s exposé. Although Bartrip’s research was attacked for its allegedly gratuitous attacks on Selikoff’s research prowess, Bartrip’s account of Selikoff’s medical education in Scotland, Australia, and the United States has gone largely unrebutted, and must for the present be accepted. Peter W.J. Bartrip, “Irving John Selikoff and the Strange Case of the Missing Medical Degrees,” 58 J. History Med. 8 (2003) [Bartrip 2003]; Peter Bartrip, “Around the World in Nine Years: A Medical Education Revisited,” 59 J. History of Med. 135 (2004). One group of plaintiffs’ expert witnesses took Bartrip to task for not disclosing that he had served as a defense expert witness, but none of the complainants disclosed their substantial testimonial adventures for the litigation industry! While making some interesting points, these critics of Bartrip did not really contest his historical work on Selikoff: “Bartrip’s critiques of Anderson’s College (AC) and Middlesex University School of Medicine (MSUM) may be accurate, but are beside the point.” David Egilman, Geoffrey Tweedale, Jock McCulloch, William Kovarik, Barry Castleman, William Longo, Stephen Levin, and Susanna Rankin Bohme, “P.W.J. Bartrip’s Attack on Irving J. Selikoff,” 46 Am. J. Indus. Med. 151, 152 (2004).

11 Bartrip 2003, at 15 & n.44-51.

12 Bartrip 2003, at 17 & n.54-55.

13 Bartrip 2003 at 18.

14 William J. Nicholson & Alvin S. Teirstein, “Remembering Irving J. Selikoff,” 61 Mt. Sinai J. Med. 500 (1994) [Nicholson & Teirstein]. This account seems doubtful.

15 See Stephen Rushmore, “Middlesex University School of Medicine,” 230 New Engl. J. Med. 217 (1944).

16 Anthony Seaton, “The Strange Case of Irving Selikoff,” 60 Occup. Med. 53 (2010); Peter W.J. Bartrip, “Irving John Selikoff and the Strange Case of the Missing Medical Degrees,” 58 J. History Med. 3, 27 & n.88-92 (2003).

17 Bartrip 2003 at 22.

18 Bartrip 2003 at 22.

19 Bartrip 2003 at 21.

20 New York County marriage license no. 3879 (Feb. 2, 1946). Celia had been married to Nathan Michaels in 1937. Manhattan Marriage License no. 21454 (1937).

21 Nicholson & Teirstein.

22 City Directory of Paterson, New Jersey at p. 218 (1949).

23 Manhattan Telephone Directory (1949).

24 George W. Conk, “Deadly Dust: Occupational Health and Safety as a Driving Force in Workers’ Compensation Law and the Development of Tort Doctrine,” 69 Rutgers L. Rev. 1140, 1154 & n. 136 (2017).

25 Jon L. Gelman, “History of Asbestos and the Law” (Jan. 2, 2001). Carl Gelman was a life-long Paterson resident. His legal practice specialized in workers’ compensation, and he chaired state bar association’s workers’ compensation section for several years. His practice represented claimants from 1936, until his retirement in 1986. In the mid-1970s, with Karl Asch, Gelman’s firm sued asbestos suppliers to Raybestos Manhattan on behalf of multiple employees.Gelman died on February 24, 2009. “Obituary for Carl Gelman,” The Record/Herald News (Mar. 16, 2009); “163 Who Had Jobs at Raybestos Sue,” N.Y. Times (May 7, 1975). The suit for $326 million settled for $15.5 million.

26 Barry I. Castleman, Asbestos: Medical and Legal Aspects at 142 (1984); Matt Mauney, “Unarco,” Mesothelioma Center (Nov. 2018). Of course, there were no data to support this claim in 1952. Selikoff was publically and positionally committed to his causal hypothesis as a conclusion well in advance of conducting any studies or having any supporting data.

27 Irving J. Selikoff, E. Cuyler Hammond, and Jacob Churg, “The carcinogenicity of amosite asbestos,” 25 Arch. Envt’l Health 183 (1972). This 1972 publication was the first epidemiologic study on the carcinogenicity of amosite.

28 David E. Lilienfeld, “The Silence: The Asbestos Industry and Early Occupational Cancer Research – A Case Study,” 81 Am. J. Pub. Health 791 (1991).

29 Irving J. Selikoff, Edward H. Robitzek, and George G. Ornstein, “Treatment of pulmonary tuberculosis with hydrazine derivatives of isonicotinic acid,” 150 J. Am. Med. Ass’n 973 (1952).

30 “TB Milestone,” Life (Mar. 3, 1952).

32 Irving J. Selikoff, “Asbestos in Paterson, New Jersey and Tyler, Texas – A Tale of Two Cities,” Transcript of Lecture (Houston, Texas, Oct. 11, 1979).

33 See “Medical Horizons,” Broadcasting * Telecasting at 14 (Nov. 21, 1955) (describing Selikoff as a plodding presenter). See also Irving Selikoff – Media Plodder to Media Zealot” (Sept. 9, 2014).

35 Selikoff letter to Thomas Mancuso (Mar. 30, 1989).

36 See J. Christopher Wagner, C.A. Sleggs, and Paul Marchand, “Diffuse pleural mesothelioma and asbestos exposure in the North Western Cape Province,” 17 Br. J. Indus. Med. 260 (1960); J. Christopher Wagner, “The discovery of the association between blue asbestos and mesotheliomas and the aftermath,” 48 Br. J. Indus. Med. 399 (1991).

37 Arthur M. Langer, “Asbestos Studies in the Environmental Sciences Laboratory Mount Sinai School of Medicine 1965 – 1985: Investigations Reflecting State-of-the-Art; Contributions to the Understanding of Asbestos Medicine” (Unpublished MS, Nov. 7, 2008).

38 Alvin S. Tierstein, A. Gottlieb, Mortimer E. Bader, Richard A. Bader & Irving Selikoff, “Pulmonary mechanics in asbestosis of the lungs,” 8 Clin. Res. 256 (1960); Mortimer E. Bader, Richard A. Bader & Irving Selikoff, “Pulmonary function in asbestosis of the lung; an alveolar-capillary block syndrome, 30 Am. J. Med. 235 (1961).

39 Asbestos Worker (May 1961) (“The subject matter of Health Hazards was discussed and President Sickles reported on the possibility of an early meeting with people connected with the Medical Association for the purpose of running various tests on certain materials used by our membership in order to determine the extent of their contribution to lung cancer, silicosis, asbestosis, tuberculosis, etc.”).

40 Asbestos Worker (May 1962) (“President Sickles advised the Board as to a meeting which had been held with Vice President Rider and a Dr. Irving Selikoff, of the Paterson Clinic in connection with our issue on Health Hazards and the Committee on Health Hazards with the approval of the Board instructed President Sickles to continue his efforts in this direction.”)

41 Asbestos Worker at 25 (Feb. 1963).

42 Capt. H.M. Robbins & William T. Marr, “Asbestosis,” 19 Safety Review 10 (1962) (noting that asbestos dust counts of 200 million particles per cubic foot were not uncommon during insulation ripouts onboard naval vessels).

43 Irving J. Selikoff, Jacob Churg, and E. Cuyler Hammond, “Asbestos Exposure and Neoplasia,” 188 J. Am. Med. Ass’n 22 (1964).

44 Irving J. Selikoff, Jacob Churg, E. Cuyler Hammond, “The Occurrence of Asbestosis among Insulation Workers in the United States,” 132 Ann. N.Y. Acad. Sci. 139, 142 (1965) (“In later specimens so obtained, crocidolite has also been found. Moreover, materials used for ship insulation, while containing the same amounts of asbestos as above, began in 1934 to have significant amounts of amosite in addition to chrysotile, because of the lighter weight of the material.”); Harrington, “Chemical Studies of Asbestos,” 132 Ann. N.Y. Acad. Sci. 31, 41 (1965) (reporting the finding of chrysotile and crocidolite asbestos in equal proportions in specimens of 85% magnesia pipe-covering sections); N.W. Hendry, “The Geology, Occurrences, and Major Uses of Asbestos 132 Annals N.Y. Acad. Sci. 12, 19 (1965) (reporting that, in 1963, the U.S. used  22,000 tons of amosite in manufactured products, and 17,000 tons of crocidolite in acid-resistent filters, packings, insulations, and certain types of lagging. United States Department of Commerce statistics show that for the years 1957 to 1962, more crocidolite was used in the United States than was amosite. In 1962, the use of blue was twice as great as that for brown. 132 Ann. N.Y. Acad. Sci. at 753, Table 17 (1965); see also id. at 762, Table 23 (1965) (South African blue fiber imports exceeded brown fiber imports, starting about 1954). See alsoSelikoff and the Mystery of the Disappearing Amphiboles (Dec. 10, 2010); James R. Millette, Steven Compton, and Christopher DePasquale, “Microscopical Analyses of Asbestos-Cement Pipe and Board,” 66 The Microscope 3 (2018) (reporting analyses of cement formulations with substantial crocidolite).

45 Asbestos Worker at 13 (May 1966).

46 Jonathan Samet, et al., eds., Institute of Medicine Review of Asbestos: Selected Cancers (2006); see also 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.”).

47Selikoff and the Mystery of the Disappearing Testimony” (Dec. 3, 2010); see, e.g., Barros v. United States, 147 F.Supp. 340, 343-44 (E.D.N.Y. 1957) (noting that Dr. Selikoff testified for seaman suing for maintenance and cure as a result of a slip and fall; finding for respondent against libelant); Bradshaw v. Twin City Insulation Co. Ltd., Indus. Ct. Indiana, Claim No. O.D.1454 (Oct. 14, 1966); Bradshaw v. Johns-Manville Sales Corp., Civ. Action No. 29433, E. D. Mich. S. Div. (July 6, 1967); Bambrick v. Asten Hill Mfg. Co., Pa. Cmwlth. Ct. 664 (1972); Tomplait v. Combustion Engineering Inc.., E. D. Tex. Civ. Action No. 5402 (March 4, 1968); Babcock & Wilcox, Inc. v. Steiner, 258 Md. 468, 471, 265 A.2d 871 (1970) (affirming workman compensation award for asbestosis); Rogers v. Johns-Manville Products Corp., Cir. Ct. Mo., 16th Jud. Cir., Div. 9, Civ. Action No. 720,071 (Feb. 19, 1971); Utter v. Asten-Hill Mfg. Co., 453 Pa. 401 (1973); Karjala v Johns-Manville Products Corp., D. Minn., Civ. Action Nos. 5–71 Civ. 18, and Civ. 40 (Feb. 8, 1973); Culp Industrial Insulation v. Commonwealth of Pennsylvania Workmen’s Compensation Appeal Board, 57 Pa. Commonwealth Ct. 599, 601-602 (1981).

48 Andrew Haas, Comments from the General President, 18 Asbestos Worker (Nov. 1972); see also Peter W.J. Bartrip, “Irving John Selikoff and the Strange Case of the Missing Medical Degrees,” 58 J. History Med. 3, 27 & n.88-92 (2003) (citing Haas).

49 Thomas O’Toole, “U.S. Warned of Asbestos Peril,” Wash. Post. A4 (Dec. 4, 1968).

50 The United States Government’s Role in the Asbestos Mess” (Jan. 31, 2012). See also Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011); Capt. H.M. Robbins & W.T. Marr, “Asbestosis,” Safety Review (Oct. 1962); See also Walter Olson, “Asbestos awareness pre-Selikoff,” (Oct. 19, 2007).

51 See Charles E. Rossiter, “Initial repeatability trials of the UICC/Cincinnati classification of the radiographic appearances of pneumoconioses,” 29 Brit. J. Indus. Med. 407 (1972) (among physician readers of chest radiographs, Selikoff was at the extreme of least likely to call a film normal (less than half the average of all readers), and the most likely to interpret films to show excess profusion of small irregular linear densities). See Selikoff and the Mystery of the Disappearing Asbestosis” (Dec. 6, 2010). The unions, of course, interested in maximizing compensation for their members loved Selikoff’s over-reading of chest films. Selikoff’s colleagues (Ruth Lilis?) routinely teased Selikoff about not being able to read chest radiographs. Selikoff was rumored to have taken and failed the NIOSH B-Reader examination, a rumor which needs to be resolved by a FOIA request.

52 United States v. Reserve Mining Co. See United States v. Reserve Mining Co., 56 F.R.D. 408 (D.Minn.1972); Armco Steel Corp. v. United States, 490 F.2d 688 (8th Cir. 1974); United States v. Reserve Mining Co., 380 F.Supp. 11 (D.Minn.1974); Reserve Mining Co. v. United States, 498 F.2d 1073 (8th Cir. 1974); Minnesota v. Reserve Mining Co., 418 U.S. 911 (1974); Minnesota v. Reserve Mining Co., 419 U.S. 802 (1974); United States v. Reserve Mining Co., 394 F.Supp. 233 (D.Minn.1974); Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492 (8th Cir. 1975); Minnesota v. Reserve Mining Co., 420 U.S. 1000, 95 S.Ct. 1441, 43 L.Ed.2d 758 (1975); Reserve Mining Co. v. Lord, 529 F.2d 181 (8th Cir. 1976); United States v. Reserve Mining Co., 408 F.Supp. 1212 (D.Minn.1976); United States v. Reserve Mining Co., 412 F.Supp. 705 (D.Minn.1976); United States v. Reserve Mining Co., 417 F.Supp. 789 (D.Minn.1976); United States v. Reserve Mining Co., 417 F.Supp. 791 (D.Minn.1976); 543 F.2d 1210 (1976).

53 Robert V. Bartlett, The Reserve Mining Controversy: Science, Technology, and Environmental Quality 140-41 (1980) (describing Selikoff’s testimony).

54 Jock McCulloch & Geoffrey Tweedale, Defending the Indefensible : The Global Asbestos Industry and its Fight for Survival: The Global Asbestos Industry and its Fight for Survival 95 & n.36 (2008). These authors ignored more reasons Selikoff stood down from the witness chair: his self-serving insistence upon the importance of his own research detracted from the work of previous authors (e.g., Sir Richard Doll, J. Christopher Wagner, et al.) in litigation of personal injury claims of asbestos health effects. Plaintiffs’ counsel needed to push back the dates of first knowledge of asbestos health effects well before Selikoff’s first insulator study in 1964. The litigation industry needed Selikoff to continue to generate publicity, and to stop testifying. Selikoff surely must have had some concerns about how further testifying would eventually lead to questions about his credentials. Furthermore, Selikoff had an entire generation of younger, less politically visible colleagues at Mt. Sinai to fill the ranks of expert witnesses for the litigation industry (Miller, Levin, Nicholson, Lillis, Daum, Anderson, et al.).

55 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).

56 Nicholas Wade, “The Science and Politics of a Disinvitation,” 201 Science 892 (1978) (commenting that the NCI was negligent in failing to evaluate the ad hominem opinions given to it by Selikoff).

57 SeeThe Selikoff – Castleman Conspiracy” (Mar. 13, 2011); What Happens When Historians Have Bad Memories” (Mar. 15, 2014); “Castleman-Selikoff – Can Their Civil Conspiracy Survive Death? (Dec. 3, 2018). In 2014, Castleman testifies that he has no recollection of the memorandum.

58 See Richard Doll & Richard Peto, “The causes of cancer: quantitative estimates of avoidable risks of cancer in the United States today,” 66 J. Nat’l Cancer Inst. 1191 (1981).

60 The Mt. Sinai Catechism” (June 5, 2013).

62 Celia Selikoff Social Security Records, SSN 064-12-6401. Celia was born on Sept. 12, 1908.

63 A New York state trial court initially sided with Selikoff over this subpoena battle. In re R.J. Reynolds Tobacco Co., 136 Misc.2d 282, 518 N.Y.S.2d 729 (N.Y. Sup. Ct., N.Y. Cty. 1987). The federal court subsequently required Selikoff to honor another litigant’s subpoena. In re American Tobacco Co., 866 F.2d 552 (2d Cir. 1989).

64 William J. Nicholson & Irving J. Selikoff, “Mortality experience of asbestos factory workers; effect of differing intensities of asbestos exposure”: unpublished manuscript produced in litigation (1988) (“[O]ther asbestos varieties (amosite, crocidolite, anthophyllite) were also used for some products. In general, chrysotile was used for textiles, roofing materials, asbestos cements, brake and friction products, fillers for plastics, etc.; chrysotile with or without amosite for insulation materials; chrysotile and crocidolite for a variety of asbestos cement products.”)

65 In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992). See Cathleen M. Devlin, “Disqualification of Federal Judges – Third Circuit Orders District Judge James McGirr Kelly to Disqualify Himself So As To Preserve ‘The Appearance of Justice’ Under 28 U.S.C. § 455 – In re School Asbestos Litigation (1992),” 38 Villanova L. Rev. 1219 (1993); Bruce A. Green, “May Judges Attend Privately Funded Educational Programs? Should Judicial Education Be Privatized?: Questions of Judicial Ethics and Policy,” 29 Fordham Urb. L.J. 941, 996-98 (2002).

66 Jack B. Weinstein, “Learning, Speaking, and Acting: What Are the Limits for Judges?” 77 Judicature 322, 326 (May-June 1994) (emphasis added). Judge Weinstein’s false statement that Selikoff “had never testified” not only reflects an incredible and uncharacteristic naiveté by His Honor; the false statement was in a journal, Judicature, which was widely circulated to state and federal judges.

67 Jack B. Weinstein, “Learning, Speaking, and Acting: What Are the Limits for Judges?” 77 Judicature 322, 326 (May-June 1994). The point apparently weighed on Judge Weinstein’s conscience. He repeated his mea culpa almost verbatim, along with the false statement about Selikoff’s never having testified, in a law review article in 1994, and then incorporated the misrepresentation into a full-length book. See Jack B. Weinstein, “Limits on Judges’ Learning, Speaking and Acting – Part I- Tentative First Thoughts: How May Judges Learn?” 36 Ariz. L. Rev. 539, 560 (1994) (“He [Selikoff] had never testified and would never testify.); Jack B. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and other Multi-Party Devices 117 (1995) (“A court should not coerce independent eminent scientists, such as the late Dr. Irving Selikoff, to testify if, like he, they prefer to publish their results only in scientific journals.”).

68 Social Security records for Irving John Selikoff, social sec. no. 085-16-1882. See Bruce Lambert, “Irving J. Selikoff Is Dead at 77; TB Researcher Fought Asbestos,” N.Y. Times (May 22, 1992).

69 Steve Markowitz, Stephen Levin, Albert Miller, and Alfredo Morabia, “Asbestos, Asbestosis, Smoking and Lung Cancer: New Findings from the North American Insulator Cohort,” Am. J. Respir. & Critical Care Med. (2013)).

Castleman-Selikoff – Can Their Civil Conspiracy Survive Death?

December 4th, 2018

Several, years ago, I wrote about Barry Castleman’s 1979 memorandum to Irving Selikoff, in which Castleman implored Selikoff to refuse to cooperate with lawful discovery from defense counsel in asbestos personal injury cases. The Selikoff – Castleman Conspiracy(Mar. 13, 2011). The document, titled Defense Attorneys’ Efforts to Use Background Files of Selikoff-Hammond Studies to Avert Liability,” was dated November 5, 1979. Coming from The Legacy Tobacco Documents Library at the University of California, San Francisco, created by litigation industry’s tobacco subsidiary, the document is clearly authentic. Barry Castleman, however, has testified that he cannot remember the 35+ year old memorandum, which failure of recall is not probative of anything.1  He refuses to renounce his role as a co-conspirator.

Jock McCulloch and Geoffrey Tweedale have both made careers of attacking any manufacturing and mining industry with connections to asbestos, while supporting the litigation industry that thrives on asbestos. Sadly, Jock McCulloch died of mesothelioma, earlier this year, on January 18, 2018, in Australia. McCulloch attributed his disease to his exposure to crocidolite when he researched one of his books on blue asbestos in South Africa.2 Although I found his scholarship biased and exaggerated, I admired his tenacious zeal in pressing his claims. His candor about the cause of his last illness was exemplary compared with Selikoff’s failure to acknowledge the extent to which amosite and crocidolite were used in the United States.

In 2007, Jock McCulloch and Geoffrey Tweedale wrote an article in which they attacked those who dared to say anything negative about Irving Selikoff.3 Of course, in claiming that the asbestos industry was “shooting the messenger,” these authors were, well, shooting the messenger, too. In 2008, McCulloch and Tweedale wrote a much more interesting, hagiographic article about Selikoff.4 From the legal perpective, perhaps the most interesting revelation in this article was that the authors had drawn “upon unprecedented access to the Selikoff archive at Mount Sinai Hospital in New York City.”

Several years later, defense counsel in the United States attempted to visit the Selikoff archives at Mt. Sinai Hospital. After an unseemly delay, the inquisitive counsel were met with unprecedented obstruction and denial of access:

From: [ARCHIVIST]
To: [DEFENSE COUNSEL]
Subject: Request for appointment with Archivist
Date: Wed, 3 Sep 2014 16:18:53 +0000

I realize that this must seem out of the blue, but we have recently realized that the stub email address we have – msarchives – has not been forwarding email the way it was intended to do. I apologize for not responding to you previously, and for what it is worth, here is the answer to your question.

Some Selikoff material in the Mount Sinai Archives, although I believe some of his research material is still with our Dept. of Preventive Medicine. Our collection is currently closed to researchers, as per the request of Mount Sinai’s Legal Department in 2009. Here is their statement concerning these records:

It was agreed that Dr. Selikoff’s correspondence and archives that are kept within the auspices of the MSSM library under the direction of the MSSM archivist, Barbara Niss, would be kept confidential for at least an additional 25 years to protect Dr. Selikoff’s research endeavors and the privacy of all the individuals, particularly the research subjects, who he studied and with whom he communicated. It is anticipated that twenty-five years from now, these individuals will no longer be alive and their concerns about keeping these matters private will have become moot. However, if we determine that this is not the case, we will reserve the option to continue to keep these documents confidential. We are also taking this action to preserve the academic freedom of our researchers so they can pursue their research, communicate with colleagues and comment on these important environmental/scientific issues, without concerns that they will be subpoenaed as non-party witnesses in these massive tort litigations.

Again, my apologies for the very late reply. Please let me know if you have questions.

So there you have it, 35 years after Castleman implored Selikoff not to cooperate with lawyers’ proper fact discovery, the Selikoff archive is still at its obstruction and denial.


1 See The Selikoff – Castleman Conspiracy” (Mar. 13, 2011). In 2014, Castleman testifies that he has no recollection of the memorandum. The document was also available at Scribd.

2 See Laurie Kazan-Allen, “In Memory of Jock McCulloch” (Jan. 21, 2018) (quoting an email from Jock McCulloch, dated July 21, 2017: “The injury almost certainly occurred while I was researching Asbestos Blues in South Africa, which is all of twenty years ago.”); “Remembering Jock McCulloch,” Toxic Docs Blog (Jan. 28, 2018) (quoting his partner’s tribute about the cause of his death: “His exposure to blue asbestos was probably in South Africa during the mid-1990s, when he was researching a book on the history of mining.).

3 Jock McCulloch & Geoffrey Tweedale, “Shooting the Messenger: The Vilification of Irving J. Selikoff,” 37 Internat’l J. Health Services 619 (2007).

4 Jock McCulloch and Geoffrey Tweedale, “Science is not Sufficient: Irving J. Selikoff and the Asbestos Tragedy,” 17 New Solutions 293 (2008).

“Each and Every Exposure” Is a Substantial Factor

December 3rd, 2018

“Every time a bell rings an angel gets his wings”
It’s a Wonderful Life (1946)

Every time a plaintiff shows the smallest imaginable exposure, there is a full recovery.
… The American tort system.

 

In 1984, Philadelphia County had a non-jury system for asbestos personal injury cases, with a right to “appeal” for a de novo trial with a jury. The non-jury trials were a wonderful training ground for a generation of trial lawyers, and for a generation or two of testifying expert witnesses. When I started to try asbestos cases as a young lawyer, the plaintiffs’ counsel had already taught their expert witnesses to include the “each and every exposure” talismanic language in their direct examination testimonies on the causation of the plaintiffs’ condition. The litigation industry had figured out that this expression would help avoid a compulsory non-suit on proximate causation.

Back in those wild, woolly frontier days, I encountered the slick Dr. Joseph Sokolowski (“Sok”), a pulmonary physician in private practice in New Jersey. Sok, like many other pulmonary physicians in the Delaware Valley area, had seen civilian workers referred by Philadelphia Naval Shipyard to be evaluated for asbestosis. When the plaintiff-friendly physicians diagnosed asbestosis, a few preferred firms would then pursue their claims under the Federal Employees Compensation Act (FECA). The United States government would notify the workers of their occupational disease, and urge them to pursue the government’s outside vendors of asbestos-containing materials, with a reminder that the government had a lien against any civil action recovery. The federal government thus made common cause with the niche law practices of workers’ compensation lawyers,1 and helped launch the tsunami of asbestos litigation.2

Sok was perfect for his role in the federal kick-back scheme. He could deliver the most implausible testimony, and weather brutal cross-examination without flinching. He had the face of a choir boy, and his service as an outside examiner for the Navy Yard employees gave his diagnoses the apparent imprimatur of the federal government. Although Sok had no real understanding of epidemiology, he could readily master the Selikoff litany of 5-10-50, for relative risks for lung cancer, from asbestos alone (supposedly), from smoking alone, and from asbestos and smoking combined, respectively. And he similarly mastered his lines that “each and every exposure” is substantial, when pressed on whether and how exposure to a minor vendor’s product was a substantial factor. Back in those days, before Johns-Manville (JM) Corporation went bankrupt, honest witnesses at the Navy Yard acknowledged that JM supplied the vast majority of asbestos products, but that testimony changed literally over the course of a trial day, when the plaintiffs’ bar learned of the JM bankruptcy.

It was into this topsy-turvy litigation world, I was thrown. I had the sense that there was no basis for the “each and every exposure” opinion, but my elders at the defense bar seemed to avoid the opinion studiously on cross-examination. I recall co-defendants’ counsels’ looks of horror and disapproval when I broached the topic in my first cross-examination. Sok had known to incorporate the “each and every exposure” opinion into his direct testimony, but he had no intelligible response to my question about what possible basis there was for the opinion. “Well, we have to blame each and every exposure because we have no way distinguish among exposures.” I could not let it lie there, and so I asked: “So your opinion about each and every exposure is based upon your ignorance?” My question was quickly met with an objection, and just as quickly with a rather loud and disapproving, “Sustained!” When Sok finished his testimony, I moved to strike his substantial factor opinion as having no foundation, but my motion was met with by judicial annoyance and apathy.

And so I learned that science and logic had nothing to do with asbestos litigation. Some determined defense counsel persevered, however, and in the face of over one hundred bankruptcies,3 a few courts started to take the evidence and arguments against the “every exposure” testimony, seriously. Last week, the New York Court of Appeals, New York’s highest court, agreed to state out loud that the plaintiffs’ “every exposure” theory had no clothes, no foundation, and no science. Juni v. A.O. Smith Water Products Co., No. 123, N.Y. Court of Appeals (Nov. 27, 2018).4

In a short, concise opinion, with a single dissent, the Court held that plaintiffs’ evidence (any exposure, no matter how trivial) in a mesothelioma death case was “insufficient as a matter of law to establish that respondent Ford Motor Co.’s conduct was a proximate cause of the decedent’s injuries.” The ruling affirmed the First Department’s affirmance of a trial court’s judgment notwithstanding the $11 million jury verdict against Ford.5 Arguing for the proposition that every exposure is substantial, over three dozen scientists, physicians, and historians, most of whom regularly support and testify for the litigation industry, filed a brief in support of the plaintiffs.6 The Atlantic Legal Foundation filed an amicus brief on behalf of several scientists,7 and I had the privilege of filing an amicus brief on behalf of the Coalition for Litigation Justice and nine other organizations in support of Ford’s positions.8

It has been 34 years since I first encountered the “every exposure is substantial” dogma in a Philaddelphia courtroom. Some times in litigation, it takes a long time to see the truth come out.


1 E.g., Shein and Brookman; Greitzer & Locks; both of Philadelphia.

2 Encouraging litigation against its suppliers, the federal government pulled off a coup of misdirection. First, it deflected public censure from the Navy and other governmental branches for its own carelessness in the use, installation, and removal of asbestos-containing insulations. Second, the government winnowed the ranks of older, better compensated workers. Third, and most diabolically, the government, which was self-insured for FECA claims, recovered most of their outlay when its former employees recovered judgments or settlements against the government’s outside asbestos product vendors. “The United States Government’s Role in the Asbestos Mess” (Jan. 31, 2012). See also Walter Olson, “Asbestos awareness pre-Selikoff,” Point of Law (Oct. 19, 2007); “The U.S. Navy and the asbestos calamityPoint of Law (Oct. 9, 2007).

4 The plaintiffs were represented by Alani Golanski of Weitz & Luxenberg LLP.

6 Abby Lippman, Annie Thebaud Mony, Arthur L. Frank, Barry Castleman, Bruce P. Lanphear,

Celeste Monforton, Colin L. Soskolne, Daniel Thau Teitelbaum, Dario Consonni, Dario Mirabelli, David Egilman, David F. Goldsmith, David Ozonoff, David Rosner, Fiorella Belpoggi, James Huff, John Heinzow, John M. Dement, John Coulter Maddox, Karl T. Kelsey, Kathleen Ruff, Kenneth D. Rosenman, L. Christine Oliver, Laura Welch, Leslie Thomas Stayner, Morris Greenberg, Nachman Brautbar, Philip J. Landrigan, Xaver Baur, Hans-Joachim Woitowitz, Bice Fubini, Richard Kradin, T.K. Joshi, Theresa S. Emory, Thomas H. Gassert,

Tony Fletcher, and Yv Bonnier Viger.

7 John Henderson Duffus, Ronald E. Gots, Arthur M. Langer, Robert Nolan, Gordon L. Nord, Alan John Rogers, and Emanuel Rubin.

8 Amici Curiae Brief of Coalition for Litigation Justice, Inc., Business Council of New York State, Lawsuit Reform Alliance of New York, New York Insurance Association, Inc., Northeast Retail Lumber Association, National Association of Manufacturers, Chamber of Commerce of the U.S.A., American Tort Reform Association, American Insurance Association, and NFIB Small Business Legal Center Supporting Defendant-Respondent Ford Motor Company.

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).