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

Disappearing Conflicts of Interest

October 29th, 2017

As the story of who funded the opposition research into Trumski and the Russian micturaters unfolds, both sides of the political spectrum seem obsessed with who funded the research. Funny thing that both sides had coins in the fountain. Funding is, in any event, an invalid proxy for good and sufficient reason. The public should be focused on the truth or falsity of the factual claims. The same goes in science, although more and more, science is evaluated by “conflicts of interest” (COIs) rather than by the strength of evidence and validity of inferences.

No one screams louder today about COIs than the lawsuit industry and its scientist fellow travelers. Although I believe we should rid ourselves of this obsession with COIs, to the extent we must put up with it, the obsession should at least be symmetrical, complete, and non-hypocritical.

In an in-press publication, Morris Greenberg has published an historical account of the role that the U.K. Medical Research Council had in studying asbestos health effects.1 Greenberg often weighs in on occupational disease issues in synch with the litigation industry, and so no one will be entirely surprised that Greenberg suspects undue industry influence (not the lawsuit industry, but an industry that actually makes things). Greenberg may be right in his historical narrative and analysis, but my point today is different. What was interesting about Greenberg’s paper was the disclosure at its conclusion, by the “American Journal of Industrial Medicine editor of record”:

Steven B. Markowitz declares that he has no conflict of interest in the review and publication decision regarding this article.”

Markowitz’s declaration is remarkable in the era when the litigation industry and its scientific allies perpetually have their knickers knotted over perceived COIs. Well known to the asbestos bar, Markowitz has testified with some regularity for plaintiffs’ lawyers and their clients. Markowitz is also an editor in chief of the “red” journal,” the American Journal of Industrial Medicine. Many of the associate editors are regular testifiers for the lawsuit industry, such as Arthur L. Frank and Richard A. Lemen.

Even more curious is that Steven Markowitz, along with fellow plaintiffs’ expert witness, Jacqueline M. Moline, recently published a case report about mesothelioma occuring in an unusual exposure situation, in the red journal. This paper appeared online in February 2017, and carried a disclosure that “[t]he authors have served as expert witnesses in cases involving asbestos tort litigation.2” A bit misleading given how both appear virtually exclusively for claimants, but still a disclosure, whereas Markowitz, qua editor of Greenberg’s article, claimed to have none.

Markowitz, as an alumnus of the Mount Sinai School of Medicine, is, of course, a member of the secret handshake society of the litigation industry, the Collegium Ramazzini. At the Collegium, Markowitz proudly presents his labor union consultancies, but these union ties are not disclosed in Markowitz’s asbestos publications.

Previously, I blogged about Markowitz’s failure to make an appropriate COI disclosure in connection with an earlier asbestos paper.3 See Conflicts of Interest in Asbestos Studies – the Plaintiffs’ Double Standard” (Sept. 18, 2013). At the time, there appeared to be no disclosure of litigation work, but I was encouraged to see, upon checking today, that Markowitz’s disclosure for his 2013 paper now reveals that he has received fees for expert testimony, from “various law firms.” A bit thin to leave out plaintiffs’ law firms, considering that the paper at issue is used regularly by Markowitz and other plaintiffs’ expert witnesses to advance their positions in asbestos cases. A more complete disclosure might read something like: “Markowitz has been paid to consult and testify in asbestos personal injury by plaintiffs’ legal counsel, and to consult for labor unions. In his testimony and consultations, he relies upon this paper and other evidence to support his opinions. This study has grown out of research that was originally funded by the asbestos workers’ union.”

Or we could just evaluate the study on its merits, or lack thereof.

1 Morris Greenberg, “Experimental asbestos studies in the UK: 1912-1950,” 60 Am. J. Indus. Med. XXX (2017) (doi: 10.1002/ajim.22762).

2 Steven B. Markowitz & Jacqueline M. Moline, “Malignant Mesothelioma Due to Asbestos Exposure in Dental Tape,” 60 Am. J. Indus. Med. 437 (2017).

Seventh Circuit Franks ‘Every Exposure’ Theory for Extinction

September 11th, 2017

In Krik v. Exxon Mobil Corp., no. 15-3112, 2017 WL 3768933, Slip op. (7th Cir. Aug. 31, 2017) [slip op. cited as Krik], a jury found that smoking cigarettes causes lung cancer, which is not particularly noteworthy. The plaintiff, Charles Krik, however, wanted the jury to find that asbestos exposure, either alone or with his 45 pack-year smoking history caused his lung cancer. The jury found that smoking was the sole cause. Hannah Meisel, “7th Circuit Affirms Exxon’s Trial Win In Asbestos Cancer Suit,” Law360 (Sept. 1, 2017).

Krik’s asbestos exposure was not particularly impressive, and he apparently did not have asbestosis. He claimed asbestos exposure from his four years of work aboard naval vessels, occasionally removing insulation materials, and his two weeks as an independent contractor at an Exxon Mobil refinery, where he replaced heaters supposedly insulated with asbestos. Exxon Mobil disputed whether the heaters even had asbestos in them. The naval vessels would have had asbestos insulation from many manufacturers, but Krik focused on Owens-Illinois because it is the only solvent company remaining in the plaintiffs’ asbestos-powered perpetual litigation machine.

Lung cancer in a man with minor asbestos exposure with very substantial tobacco consumption – who are you going to call? See Arthur Frank Report, 2011 WL 12192776 (2011).

Arthur Frank is a physician who counts himself among the intellectual progeny of the late Irving Selikoff. Like Selikoff, Frank is intensely interested in outcomes that help workers show that their work has caused them illness. In furthering his interests, Frank sometimes makes things up, such as the “each and every exposure” theory. Frank is also a proponent of the “big-tent” theory of causation, which attempts to keep every possible defendant in a lawsuit, bu asserting that every asbestos exposure, regardless of its intensity, duration, quantity, variety of asbestos, or fiber length, constitutes a cause of plaintiff’s lung cancer.

Defendants moved to bar Frank’s opinions under Federal Rule of Evidence 702. See Exxon Mobil’s motion, at 2013 WL 10847058. Judge Lee of the Northern District of Illinois found that Arthur Frank’s opinions, in the form of the “each and every exposure theory,” “any exposure theory,” “single fiber theory,” or “no safe level of exposure theory” was scientifically insubstantial and inadmissible under Rule 702. Krik at 2-3. Judge Lee thus ruled that Krik could not offer expert witness opinions that espoused “every exposure” is substantial.

After Judge Lees’ ruling, Krik’s case was transferred to Judge Manish Shah, for trial. Despite the earlier ruling by Judge Lee, Krik’s counsel called Dr. Frank to testify at trial, with a repackaged opinion about Krik’s “cumulative exposure” caused his lung cancer, and every constituent exposure to that cumulative exposure was causally responsible.

After a voir dire examination of Frank, Judge Shah concluded that Frank’s opinion was still untethered to any “specific quantum of exposure attributable to the defendants, but was instead based on his medical and scientific opinion that every exposure is a substantial contributing factor to the cumulative exposure that causes cancer.” Krik v. Owens‐Illinois, Inc., No. 10‐CV‐07435, 2015 WL 5050143, at *1 (N.D. Ill. Aug. 25, 2015). Frank and plaintiffs’ counsel had attempted to circumvent the earlier ruling by Judge Lee, but their ruse failed to fool Judge Shah. On appeal to the Seventh Circuit1, a panel affirmed Judge Shah’s reasoning and exclusion of Arthur Frank’s opinions. Krik at 4-5.

Arthur Frank is used to making things up, including the law. The law of causation in most jurisdictions distinguishes between substantial and insubstantial contribution, but Frank decreed: “Either it’s zero or it’s substantial; there is no such thing as not substantial.” R. 66‐3 at 23, pageID 923. Really? In Frank’s mind, even a minute, perhaps a second, of fleeting exposure, would be a substantial contributing factor to a plaintiff’s lung cancer because he has legislated insubstantial out of existence. R. 376 at 273–74, pageID 10146‐47.

Frank’s testimony presented several problems:

First, his cumulative exposure theory was no different from the previously excluded “each and every exposure” theory. Even Frank, in his deposition testimony conflated “each and every exposure” with a cumulative exposure theory.

Second, Frank’s opinion did not conform to the legal standard. In the initial ruling on Frank, Judge Lee held that plaintiff must show that asbestos was a “substantial contributing factor” to his injury2.

Third, Frank’s opinion lacked an adequate scientific foundation. Krik was tasked with showing that asbestos was a “substantial contributing factor” to his lung cancer. Krik at 7; Krik, 76 F. Supp. 3d at 747 (Lee, J.). Frank’s opinion on “every exposure” did not help him make out his case.

The trial court judges recognized, putting aside the issue of thresholds, that asbestos‐induced lung cancers are dose dependent. At the very least, any attempt to attribute a person’s lung cancer to an exposure requires a consideration of the timing and quantum of exposure. Frank, in defiance of basic common sense and basic toxicologic principles, would – if allowed by courts – treat every exposure, regardless how de minimis, as a substantial contribution to the total exposure and the total risk. Krik at 8; Krik, 76 F. Supp. 3d at 753 (Lee, J.).

The panel of the Seventh Circuit found the trial judges’ exclusion of the Frank nonsense to be well supported and well within their discretion as gatekeepers3. Krik at 14

Krik’s counsel also complained that the trial court refused to admit the so-called Helsinki document4, a 1997 statement of public policy statement of scientists who opined that “[c]umulative exposure on a probability basis should thus be considered the main criteria for the attribution of a substantial contribution by asbestos to lung cancer risk.” R. 412‐4 at 4, pageID 13657.

The problem for counsel, and for Frank, was that Frank never referred to or embraced the Helsinki statement as an “authoritative text.” If he had, he would have been roundly impeached by the statement’s pronouncement that the “likelihood that asbestos exposure has made a substantial contribution increases when the exposure increases.” Id. The Seventh Circuit held that the exclusion of this document as a stand-alone piece of evidence did not support plaintiff’s theory, and that its exclusion was not an abuse of discretion5. Krik at 15-17.

1 The appellate court noted that it reviewed de novo the question whether the trial court properly applied Rule 702. The district court’s decision to exclude or admit expert witness opinion testimony is reviewed only for “abuse of discretion.” Krik at 4 (citing C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 835 (7th Cir. 2015). The party proponent has the burden of showing that the challenged expert witness testimony satisfies the Rule 702 statutory requirements, by a preponderance of evidence. Id. (citing Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

2 Krik v. Crane Co., 76 F. Supp. 3d 747, 753 (N.D. Ill. 2014) (citing Lindstrom v. A‐C Prod. Liab., 424 F.3d 488, 493 (6th Cir. 2005) (applying maritime law); Thacker v. UNR Indus., Inc., 603 N.E.2d 449, 457 (Ill. 1992) (Illinois law).

3 The panel noted that the Sixth and Ninth Circuits had ruled similarly. McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1177 (9th Cir. 2016); Lindstrom v. A‐C Prod. Liab., 424 F.3d 488, 493 (6th Cir. 2005) (“The requirement, however, is that the plaintiff make a showing with respect to each defendant that the defendant’s product was a substantial factor in plaintiff’s injury … . A holding to the contrary would permit imposition of liability on the manufacturer of any product with which a worker had the briefest of encounters on a single occasion.”).

5 Accord Rockman v. Union Carbide Corp., No. CV RDB‐16‐1169, 2017 WL 3022969, at *5 (D. Md. July 17, 2017); Bell v. Foster Wheeler Energy Corp., No. CV 15‐6394, 2016 WL 5847124, at *3, n.3 (E.D. La. Oct. 6, 2016), recon. denied, No. CV 15‐6394, 2017 WL 876983 (E.D. La. Mar. 6, 2017); Watkins v. Affinia Group, 2016‐Ohio‐2830, ¶ 37, 54 N.E.3d 174, 182; In reJames Wilson Assoc., 965 F.2d 160, 173 (7th Cir.1992); United States v. Dixon, 413 F.3d 520, 524–25 (5th Cir. 2005); Yates v. Ford Motor Co., 113 F. Supp. 3d 841, 862 (E.D.N.C. 2015); Betz v. Pneumo Abex, LLC, 44 A.3d 27, 47, 55 n.35 (Pa. 2012); Bostic v. Georgia‐Pacific Corp., 439 S.W.3d 332, 356–57 (Tex. 2014).

Samuel Tarry’s Protreptic for Litigation-Sponsored Publications

July 9th, 2017

Litigation-related research has been the punching bag of self-appointed public health advocates for some time. Remarkably, and perhaps not surprising to readers of this blog, many of the most strident critics have deep ties to the lawsuit industry, and have served the plaintiffs’ bar loyally and zealously for many years.1,2,3,4 And many of these critics have ignored or feigned ignorance of the litigation provenance of much research that they hold dear, such as Irving Selikoff’s asbestos research undertaken for the asbestos workers’ union and its legal advocates. These critics’ campaign is an exquisite study in hypocrisy.

For some time, I have argued that the standards for conflict-of-interest disclosures should be applied symmetrically and comprehensively to include positional conflicts, public health and environmental advocacy, as well as litigation consulting or testifying for any party. Conflicts should be disclosed, but they should not become a facile excuse or false justification for dismissing research, regardless of the party that sponsored it.5 Scientific studies should be interpreted scientifically – that is carefully, thoroughly, and rigorously – regardless whether they are conducted and published by industry-sponsored, union-sponsored, or Lord help us, even lawyer-sponsored scientists.

Several years ago, a defense lawyer, Samuel Tarry, published a case series of industry-sponsored research or analysis, which grew out of litigation, but made substantial contributions to the scientific understanding of claimed health risks. See Samuel L. Tarry, Jr., “Can Litigation-Generated Science Promote Public Health?” 33 Am. J. Trial Advocacy 315 (2009). Tarry’s paper is a helpful corrective to the biased (and often conflicted) criticisms of industry-sponsored research and analysis by the lawsuit industry and its scientific allies and consultants. It an ocean of uninformative papers about “Daubert,” Tarry’s paper stands out and should be required reading for all lawyers who practice in the area of “health effects litigation.”

Tarry presented a brief summary of the litigation context for three publications that deserve to remembered and used as exemplars of important, sound, scientific publications that helped changed the course of litigations, as well as the scientific community’s appreciation of prior misleading contentions and publications. His three case studies grew out of the silicone-gel breast implant litigation, the latex allergy litigation, and the never-ending asbestos litigation.

1. Silicone

There are some glib characterizations of the silicone gel breast implant litigation as having had no evidentiary basis. A more careful assessment would allow that there was some evidence, much of it fraudulent and irrelevant. See, e.g., Hon. Jack B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation” 2009 Cardozo L. Rev. de novo 1, 14 (2009) (describing plaintiffs’ expert witnesses in the silicone gel breast implant litigation as “charlatans” and the litigation as largely based upon fraud). The lawsuit industry worked primarily through so-called support groups, which in turn funded friendly, advocate physicians, who in turn testified for plaintiffs and their lawyers in personal injury cases.

When the defendants, such as Dow Corning, reacted by sponsoring serious epidemiologic analyses of the issue whether exposure to silicone gel was associated with specific autoimmune or connective tissue diseases, the plaintiffs’ bar mounted a conflict-of-interest witch hunt over industry funding.6 Ultimately, the source of funding became obviously irrelevant; the concordance between industry-funded and all high quality research on the litigation claims was undeniable. Obvious that is to court-appointed expert witnesses7, and to a blue-ribbon panel of experts in the Institute of Medicine8.

2. Latex Hypersensitivity

Tarry’s second example comes from the latex hypersensitivity litigation. Whatever evidentiary basis may have existed for isolated cases of latex allergy, the plaintiffs’ bar had taken and expanded into a full-scale mass tort. A defense expert witness, Dr. David Garabrant, a physician and an epidemiologist, published a meta-analysis and systematic review of the extant scientific evidence. David H. Garabrant & Sarah Schweitzer, “Epidemiology of latex sensitization and allergies in health care workers,” 110 J. Allergy & Clin. Immunol. S82 (2002). Garabrant’s formal, systematic review documented his litigation opinions that the risk of latex hypersensitivity was much lower than claimed and not the widespread hazard asserted by plaintiffs and their retained expert witnesses. Although Garabrant’s review did not totally end the litigation and public health debate about latex, it went a long way toward ending both.

3. Fraudulent Asbestos-Induced Radiography

I still recall, sitting at my desk, my secretary coming into my office to tell me excitedly that a recent crop of silicosis claimants had had previous asbestosis claims. When I asked how she knew, she showed me the computer print out for closed files for another client. Some of the names were so distinctive that the probability that there were two men with the same name was minuscule. When we obtained the closed files from storage, sure enough, the social security numbers matched, as did all other pertinent data, except that what had been called asbestosis previously was now called silicosis.

My secretary’s astute observation was mirrored in the judicial proceedings of Judge Janis Graham Jack, who presided over MDL 1553. Judge Jack, however, discovered something even more egregious: in some cases, a single physician interpreted a single chest radiograph as showing either asbestosis or silicosis, but not both. The two, alternative diagnoses were recorded in two, separate reports, for two different litigation cases against different defendants. This fraudulent practice, as well as others, are documented in Judge Jack’s extraordinary, thorough opinion. See In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563 (S.D. Tex. 2005)9.

The revelations of fraud in Judge Jack’s opinion were not entirely surprising. As everyone involved in asbestos litigation has always known, there is a disturbing degree of subjectivity in the interpretation of chest radiographs for pneumoconiosis. The federal government has long been aware of this problem, and through the Centers for Disease Control and the National Institute of Occupational Safety and Health, has tried to subdue extreme subjectivity by creating a pneumoconiosis classification schemed for chest radiographs known as the “B-reader” system. Unfortunately, B-reader certification meant only that physicians could achieve inter-observer and intra-observer reproducibility of interpretations on the examination, but they were free to peddle extreme interpretations for litigation. Indeed, the B-reader certification system exacerbated the problem by creating a credential that was marketed to advance the credibility of some of the most biased, over-reading physicians in asbestos, silica, and coal pneumoconiosis litigation.

Tarry’s third example is a study conducted under the leadership of the late Joseph Gitlin, at Johns Hopkins Medical School. With funding from defendants and insurers, Dr. Joseph Gitlin conducted a concordance study of films that had been read by predatory radiologists and physicians as showing pneumoconiosis. The readers in his study found a very low level of positive films (less than 5%), despite their having been interpreted as showing pneumoconiosis by the litigation physicians. See Joseph N. Gitlin, Leroy L. Cook, Otha W. Linton, and Elizabeth Garrett-Mayer, “Comparison of ‘B’ Readers’ Interpretations of Chest Radiographs for Asbestos Related Changes,” 11 Acad. Radiol. 843 (2004); Marjorie Centofanti, “With thousands of asbestos workers demanding compensation for lung disease, a radiology researcher here finds that most cases lack merit,” Hopkins Medicine (2006). As with the Sokol hoax, the practitioners of post-modern medicine cried “foul,” and decried industry sponsorship, but the disparity between courtroom and hospital medicine was sufficient proof for most disinterested observers that there was a need to fix the litigation process.

Meretricious Mensuration10 – Manganese Litigation Example

Tarry’s examples are important reminders that corporate sponsorship, whether from the plaintiffs’ lawsuit industry or from manufacturing industry, does not necessarily render research tainted or unreliable. Although lawyers often confront exaggerated or false claims, and witness important, helpful correctives in the form of litigation-sponsored studies, the demands of legal practice and “the next case” typically prevent lawyers from documenting the scientific depredations and their rebuttals. Sadly, unlike litigations such as those involving Bendectin and silicone, the chronicles of fraud and exaggeration are mostly closed books in closed files in closed offices. These examples need the light of day and a fresh breeze to disseminate them widely in both the scientific and legal communities, so that all may have a healthy appreciation for the value of appropriately conducted studies generated in litigation contexts.

As I have intimated elsewhere, the welding fume litigation is a great example of specious claiming, which ultimately was unhorsed by publications inspired or funded by the defense. In the typical welding fume case, plaintiff claimed that exposure to manganese in welding fume caused Parkinson’s disease or manganism. Although manganism sounds as though it must be a disease that can be caused only by manganese, in the hands of plaintiffs’ expert witnesses, manganism became whatever ailment plaintiffs claimed to have suffered. Circularity and perfect definitional precision were achieved by semantic fiat.

The Sanchez-Ramos Meta-Analysis

Manganese Madness was largely the creation of the Litigation Industry, under the dubious leadership of Dickie Scruggs & Company. Although the plaintiffs enjoyed a strong tail wind in the courtroom of an empathetic judge, they had difficulties in persuading juries and ultimately decamped from MDL 1535, in favor of more lucrative targets. In their last hurrah, however, plaintiffs retained a neurologist, Juan Sanchez-Ramos, who proffered a biased, invalid synthesis, which he billed as a meta-analysis11.

Sanchez-Ramos’s meta-analysis, such as it was, provoked professional disapproval and criticism from the defense expert witness, Dr. James Mortimer. Because the work product of Sanchez-Ramos was first disclosed in deposition, and not in his Rule 26 report, Dr. Mortimer undertook belatedly a proper meta-analysis.12 Even though Dr. Mortimer’s meta-analysis was done in response to the Sanchez-Ramos’s improper, tardy disclosure, the MDL judge ruled that Mortimer’s meta-analysis was too late. The effect, however, of Mortimer’s meta-analysis was clear in showing that welding had no positive association with Parkinson’s disease outcomes. The MDL 1535 resolved quickly thereafter, and with only slight encouragement, Dr. Mortimer published a further refined meta-analysis with two other leading neuro-epidemiologists. See James Mortimer, Amy Borenstein, and Lorene Nelson, “Associations of welding and manganese exposure with Parkinson disease: Review and meta-analysis,” 79 Neurology 1174 (2012). See also Manganese Meta-Analysis Further Undermines Reference Manual’s Toxicology Chapter(Oct. 15, 2012).

1 See, e.g., David Michaels & Celeste Monforton, “Manufacturing Uncertainty Contested Science and the Protection ofthe Public’s Health and Environment,” 95 Am. J. Pub. Health S39, S40 (2005); David Michaels & Celeste Monforton, “How Litigation Shapes the Scientific Literature: Asbestos and Disease Among Automobile Mechanics,” 15 J. L. & Policy 1137, 1165 (2007). Michaels had served as a plaintiffs’ paid expert witness in chemical exposure litigation, and Monforton had been employed by labor unions before these papers were published, without disclosure of conflicts.

2 Leslie Boden & David Ozonoff, “Litigation-Generated Science: Why Should We Care?” 116 Envt’l Health Persp. 121, 121 (2008) (arguing that systematic distortion of the scientific record will result from litigation-sponsored papers even with disclosure of conflicts of interest). Ozonoff had served as a hired plaintiffs’ expert witnesses on multiple occasion before the publication of this article, which was unadorned by disclosure.

3 Lennart Hardell, Martin J. Walker, Bo Walhjalt, Lee S. Friedman, and Elihu D. Richter, “Secret Ties to Industry and Conflicting Interest in Cancer Research,” 50 Am. J. Indus. Med. 227, 233 (2007) (criticizing “powerful industrial interests” for “undermining independent research on hazard and risk,” in a “red” journal that is controlled by allies of the lawsuit industry). Hardell was an expert witness for plaintiffs in mobile phone litigation in which plaintiffs claimed that non-ionizing radiation caused brain cancer. In federal litigation, Hardell was excluded as an expert witness when his proffered opinions were found to be scientifically unreliable. Newman v. Motorola, Inc., 218 F. Supp. 2d. 769, 777 (D. Md. 2002), aff’d, 78 Fed. Appx. 292 (4th Cir. 2003).

4 See David Egilman & Susanna Bohme, “IJOEH and the Critique of Bias,” 14 Internat’l J. Occup. & Envt’l Health 147, 148 (2008) (urging a Marxist critique that industry-sponsored research is necessarily motivated by profit considerations, and biased in favor of industry funders). Although Egilman usually gives a disclosure of his litigation activities, he typically characterizes those activities as having been for both plaintiffs and defendants, even though his testimonial work for defendants is minuscule.

5 Kenneth J. Rothman, “Conflict of Interest: The New McCarthyism in Science,” 269 J. Am. Med. Ass’n 2782 (1993).

6 See Charles H. Hennekens, I-Min Lee, Nancy R. Cook, Patricia R. Hebert, Elizabeth W. Karlson, Fran LaMotte; JoAnn E. Manson, and Julie E. Buring, “Self-reported Breast Implants and Connective- Tissue Diseases in Female Health Professionals: A Retrospective Cohort Study, 275 J. Am. Med. Ass’n 616-19 (1998) (analyzing established cohort for claimed associations, with funding from the National Institutes of Health and Dow Corning Corporation).

7 See Barbara Hulka, Betty Diamond, Nancy Kerkvliet & Peter Tugwell, “Silicone Breast Implants in Relation to Connective Tissue Diseases and Immunologic Dysfunction: A Report by a National Science Panel to the Hon. Sam Pointer Jr., MDL 926 (Nov. 30, 1998).” The court-appointed expert witnesses dedicated a great deal of their professional time to their task of evaluating the plaintiffs’ claims and the evidence. At the end of the process, they all published their litigation work in leading journals. See Barbara Hulka, Nancy Kerkvliet & Peter Tugwell, “Experience of a Scientific Panel Formed to Advise the Federal Judiciary on Silicone Breast Implants,” 342 New Engl. J. Med. 812 (2000); Esther C. Janowsky, Lawrence L. Kupper., and Barbara S. Hulka, “Meta-Analyses of the Relation between Silicone Breast Implants and the Risk of Connective-Tissue Diseases,” 342 New Engl. J. Med. 781 (2000); Peter Tugwell, George Wells, Joan Peterson, Vivian Welch, Jacqueline Page, Carolyn Davison, Jessie McGowan, David Ramroth, and Beverley Shea, “Do Silicone Breast Implants Cause Rheumatologic Disorders? A Systematic Review for a Court-Appointed National Science Panel,” 44 Arthritis & Rheumatism 2477 (2001).

8 Stuart Bondurant, Virginia Ernster, and Roger Herdman, eds., Safety of Silicone Breast Implants (Institute of Medicine) (Wash. D.C. 1999).

9 See also Lester Brickman, “On the Applicability of the Silica MDL Proceeding to Asbestos Litigation, 12 Conn. Insur. L. J. 289 (2006); Lester Brickman, “Disparities Between Asbestosis and Silicosis Claims Generated By Litigation Screenings and Clinical Studies,” 29 Cardozo L. Rev. 513 (2007).

10 This apt phraseology is due to the late Keith Morgan, whose wit, wisdom, and scientific acumen are greatly missed. See W. Keith C. Morgan, “Meretricious Mensuration,” 6 J. Eval. Clin. Practice 1 (2000).

11 See Deposition of Dr. Juan Sanchez-Ramos, in Street v. Lincoln Elec. Co., Case No. 1:06-cv-17026, 2011 WL 6008514 (N.D. Ohio May 17, 2011).

12 See Deposition of Dr. James Mortimer, in Street v. Lincoln Elec. Co., Case No. 1:06-cv-17026, 2011 WL 6008054 (N.D. Ohio June 29, 2011).

The Slemp Case, Part 2 – Openings

June 10th, 2017

The Slemp Case, Part I – Jury Verdict for Plaintiff – 10 Initial Observations” (May 13, 2017)

The legal community is still trying to grasp the enormity of the $110M verdict against Johnson & Johnson, in the Slemp case. J & J says it will appeal, but resolution of legal issues will not necessarily clarify what happened factually in the Slemp case. Some legal commentators have attempted superficial analyses that try to correlate case outcomes with how cases are selected for trial in Missouri. In the five talc trials to date, plaintiffs have prevailed (with fulsome verdicts) in both cases in which plaintiffs’ counsel selected the case for trial. See Amy Rubenstein and Malerie Ma Roddy, “Talc Talk: 1 Of These Verdicts Is Not Like The Others,” Law360 (June 1, 2017). In the three other cases, selected by defense counsel, the defense has lost two of the three cases, again with outlandish verdicts. No statistical analysis of these correlations will suggest that the selection process is correlated with verdict outcome. If there is no general causation, then selection of plaintiff for trial should not correlate with outcome. More important, the Missouri verdicts cannot be reconciled with the ruling by Judge Johnson in the New Jersey talc cases. Carl v. Johnson & Johnson, No. ATL-L-6546-14, 2016 WL 4580145 (N.J. Super. Ct. Law Div., Atl. Cty., Sept. 2, 2016); see also “New Jersey Kemps Ovarian Cancer – Talc Cases” (Sept. 16, 2016).

A manufacturer is legally held to the standard of having expert knowledge of the hazards of a product, and warning about those hazards that are not common knowledge. The conflicts noted above, and the exculpatory views of various professional groups and federal and international agencies should mean, in a sane system of products liability law, that a manufacturer would have no liability in the ovarian cancer – talc cases. A recent review concluded:

While mechanistic, pathology, and animal studies do not support evidence for the carcinogenicity of talc on the ovarian epithelium 329, epidemiological studies have indicated an association with talc use and increased OC [ovarian cancer] risk.”

Brett M. Reid, Jennifer B. Permuth, Thomas A. Sellers, “Epidemiology of ovarian cancer: a review,” Cancer Biol. Med. 14 (2017). The authors went on, however, to note that the association was not consistently found among studies, and that the IARC had rejected the causal contention as having been shown. How on this evidence, can a manufacturer be held liable for not warning of a causal connection? And how could a manufacturer be found to have acted maliciously or outrageously, with substantial scientific support?

What is needed is careful, detailed evaluation of the actual evidence at trial. The International Agency for Research on Cancer (IARC), the FDA, the NTP, and virtually every other agency and professional group that has addressed the question whether talc causes ovarian cancer, have declared that there is no causal connection established. Have the plantiffs in these cases hit a treasure trove of data not seen by the scientific and regulatory community? Or have plaintiffs exploited the weaknesses of the jury system, and advanced arguments and evidence that would never move a panel of disinterested scientists?

Meaningful analyses of the talc trials are not likely to happen from hipshot commentary. Fortunately, Courtroom View Network videotaped the Slemp trial from openings to return of verdict, which has created a rich resource for lawyers, legal analysts, political scientists, scientists, and regulators to judge the efficacy and content of courtroom presentations of complex scientific evidence.

Less is More, Except When Less is Just Less

There are two common, glib pronouncements you can often hear uttered in defense counsel confabulations. The first is “Less is More.” The second is “Let’s not get into weeds.” These generalizations cannot be tested with jury research in which both sides’ presentations are often no longer than 60 minutes, or so. Actual research of trial research rarely can move beyond anecdotal observations.

In Slemp, the defense case went took up two days. The plaintiffs’ case took 12 days. The plaintiff presented multiple medical expert witnesses, including two epidemiologists who have been involved in studying talc and ovarian cancer, and publishing on the issue, for decades. The defense presented just one expert witness, Dr. Warner Huh, a gynecologic oncologist. Dr. Huh claimed to have epidemiologic expertise by virtue of his work on studies on cervical cancer screening. Dr. Huh, as we will see, never explained how, when, and where he received training in epidemiologic study design and biostatistics. This defense strategy on expert witnesses requires careful analysis. Furthermore, the plaintiffs’ counsel presented a minimally qualified regulatory expert witness to serve primarily as a document reader. The defense effectively cross-examined this witness by showing his ignorance and selectivity in document reading and presentation. J & J, however, never called a fact witness, or corporate witness, to give viva voce testimony, that rebutted the innuendo, defamations, and characterizations of the company by plaintiffs’ counsel.

The Opening “Statements”

Perhaps it is best to begin at the beginning. Voir dire is not available at Courtroom View Network, but the opening statements are on line. There is a widespread myth that Hans Zeisel’s research established that most cases are won in the openings. Zeisel debunked that reading of his work, without disagreeing that the first impressions of opening statement can be powerful. See Hans Zeisel, “A Jury Hoax: The Superpower of the Opening Statement,” 14 Litigation 17 (Summer 1988). Inquiring minds might want to know how the openings statements went for the parties involved in Slemp.

Counsel for the plaintiff and for the two defendants (J & J, Imerys) all gave strong arguments that went well beyond stating what the evidence will show. All counsel worked hard to establish ethos and pathos, but plaintiff’s counsel excelled at creating the appearance of scientific logos, even when there was none. Defense counsel, on the other hand, tried to avoid talking about epidemiology for the most part. When the defense did discuss epidemiology, they made some disturbing, unnecessary mistakes.

Plaintiffs’ Opening

The plaintiff’s opening was noteworthy for its fear mongering. There are some authors who seem to want to take credit for a so-called reptile strategy, but fear mongering has been part of the dark side of rhetoric since at least the dawn of recorded history.1 Edmund Burke captured the sum and substance of the reptile strategy, which was so much on display in 18th century politics:

No passion so effectually robs the mind of all its powers of acting and reasoning as fear.”

Edmund Burke, A Philosophical Inquiry into The Origin of Our Ideas of The Sublime And Beautiful – With Several Other Additions at Sect. II. Terror (1757). Plaintiff’s counsel argued that all women, everywhere [including the women jurors and the male jurors’ female kin] are threatened by the evil corporate behemoth that sells baby powder. Women, everywhere, are developing ovarian cancer by the millions because they have used talcum powder. Only this jury can stop the carnage because regulators have ignored the situation. Regulators and the scientific establishment are venal, and J & J has bought them off. Steve Bannon would be proud.

The plaintiff’s counsel argued that J & J’s talcum powder contains not one, not two, but three carcinogens: talc, asbestos, and heavy metals. Talc, of course, is the focus of the claim and the trial, but what about the other two? Plaintiffs’ counsel did not advert to any evidence or opinion that heavy metals cause ovarian cancer; nor did he even slow down to say what heavy metals he was claiming were present. The evidence that asbestos causes ovarian cancer is perhaps marginally credible, but the causal conclusion is still doubtful. The studies that suggest an association are generally poorly done and heavily confounded. The real issue, however, with the asbestos claim, other than its effectiveness in instilling fear and knee-jerk reactions among lay jurors, is that it obscures an important issue whether the tremolite that sometimes accompanies talc in serpentine rock deposits is actually tremolite asbestos. Tremolite, as a mineral, has numerous crystallogaphic “habits,” including acicular fibers, angular particles, plates, etc.2 Some time ago, the federal government adopted a convention of counting anything as a “fiber,” if it were greater than 5 μm in length, and it had an aspect ratio of at least three to one. Another agency, the U.S. EPA adopted a minimal 5:1 aspect ratio, but both federal regulatory definitions disregard both mineralogical and biological considerations for what is a “fiber” with biological effects. Pace Melanie3, a thing is not a phallic system if it is just longer than it is wide, and a tremolite cleavage fragment is not a fiber, even if it is three times longer than wide.

There were other notable rhetorical moves in Plaintiff’s opening statement. In most other litigations, Plaintiffs run away from the need to rule out random error in studies that their expert witnesses proffer as support for causal claims. See, e.g., In re Zoloft (Sertraline Hydrochloride) Products Liability Litigation, U.S. Court of Appeals, 3rd Circuit, No. 16-2247 (June 2, 2017). In doing so, Plaintiffs often distort the consensus views about statistical significance, from the American Statistical Association4 and other groups. In the Slemp case, however, Plaintiff’s counsel swung to an opposite extreme by over-endorsing statistical significance as the apparent end-all and be-all for assessing causality. Study validity, whether internal or external, received no serious mention; bias in the studies relied upon was not discussed in any meaningful way.

To highlight the disingenuousness of the Plaintiffs’ opening with respect to failing to consider study validity and bias, and its over-endorsement of statistical significance, the Plaintiff later in the trial flashed sound bites from a report, commissioned by J & J, on the claimed causal connection. The report was by done other than Professor Kenneth Rothman, along with others. Professor Rothman has been in the forefront of criticizing the use of statistical significance testing as a bright-line criterion for causation. Rothman, along with Jonathan Samet (hardly a defense friendly epidemiologist) and Harris Pastides, reported, in 2000, that there was a “statistically significant” association, but demurred on causation because of the problem of study bias and validity:

A weighted average of the results from epidemiologic studies to date measuring the relation between talc and ovarian cancer risk gives an overall relative risk of 1.31, with a 95% confidence interval of 1.21-1.41. Bias and causation are competing explanations for the weak positive association observed. This weak association could be an underestimate of a stronger association if there are errors in measuring talc exposure that apply uniformly to all study subjects (non-differential misclassification). On the other hand, non-differential misclassification does not bias an association that is null to begin with, so postulating non-differential misclassification cannot shed light on whether the association results from a causal relation or not. Most of the published studies are interview-based case-control studies, subject to recall bias, which can readily give rise to associations of this magnitude. The evidence from these studies regarding recall bias is mixed. Uncontrolled confounding can also easily explain associations this weak; although no single confounding factor would seem to account for the overall effect, the combined effect of several such unidentified confounders could do so. In considering these competing explanations of bias and causation, the evidence in favor of a causal explanation is only the overall weak association of a relative risk of 1.31. The lack of a plausible biologic mechanism, on the other hand, weighs against a causal interpretation. Also weighing against a causal explanation is the dose-response pattern among talc users, which is an inverse trend for both duration of use and frequency of use. A causal relation would predict a positive trend, not an inverse trend. Based on these considerations, we suggest that the evidence to date does not indicate that talc can be ‘reasonably anticipated to be a human carcinogen’.”

Kenneth J. Rothman Harris Pastides Jonathan Samet, “Interpretation of Epidemiologic Studies on Talc and Ovarian Cancer,” (Nov. 28, 2000).

From a rhetorical perspective, one of the more interesting moves in Plaintiff’s opening was a pivot from causation to association. Without ever really discussing the standards or factors for inferring causation, Plaintiff’s counsel invoked regulatory standards and avoided addressing himself to the Missouri standard of causation. The standards for whether to warn and for determining cause in fact were conflated and confused, in what seemed liked a deliberate effort.

Defense Openings

J & J’s Opening

The defense strategies were apparent enough. The defense emphasized that Ms. Slemp had a serous borderline tumor (SBT). The emphasis appeared to be a plea of confession and avoidance. In other words, maybe there is something going on with talc and ovarian cancer, but this is an SBT, and it is different, so you do not need to worry too much about the more general claim that talc causes ovarian cancer. SBTs are a subset of epithelial ovarian tumors, often characterized as semi-malignant, with a more favorable outcome than other ovarian epithelial tumors. The defense also strived to shift the spotlight to Ms. Slemp and her strikingly poor health, preëxisting her cancer diagnosis, as well as her massive obesity and her heavy smoking, both risk factors for ovarian cancer.

On the positive side, J & J’s counsel anticipated and warned the jury that plaintiffs’ expert witnesses would be seriously challenged on their post-hoc analyses and their failing to share their causal conclusions with the scientific community. J & J’s counsel did engage on the general causation claim, but mostly to argue that most governmental agencies and professional organizations have refused to accept the causal claim. To the limited extent that J & J got into the “weeds,” it identified the Bradford Hill factors as the generally accepted decision procedure for reaching causal conclusions. So far, so good (except for the insistence upon referring to Sir Austin as Sir Bradford, as though Bradford was the man’s first name). What defense counsel did not say, astonishingly, is that Sir Austin’s nine factors require a necessary predicate that is satisfied when:

Our observations reveal an association between two variables, perfectly clear-cut and beyond what we would care to attribute to the play of chance.”

Austin Bradford Hill, “The Environment and Disease: Association or Causation?” 58 Proc. Royal Soc’y Med. 295, 295 (1965). See “Woodside & Davis on the Bradford Hill Considerations” (Aug. 23, 2013). To be sure, there are any number of studies on talc and ovarian cancer that satisfy Hill’s requirement of an association not attributable to the play of chance, but what is lacking is the clear-cut association; that is, the associations that are “statistically significant” have not ruled out bias and confounding. The defense opening did introduce the concept of recall bias, which plays an important part in undermining the validity of the available case-control studies. What the defense did not say, however, is that misclassification biases in cohort studies do not always bias towards the null, and even if they did, then the latest cohort study (with a hazard ratio below 1.0) would have had a risk ratio even lower than 1.0 than what was reported.

The defense did emphasize the absence of the Bradford Hill factors for plausibility and dose response. A more sophisticated analysis would have acknowledged what Sir Austin had over 60 years ago: plausibility or explanation is not necessary to infer causation. Not all the Bradford Hill factors are equal, and the defense diluted the analysis by falsely elevating one factor, plausibility, to the status of a necessary criterion.

The defense opening also had some dubious moves. It deprecated case-control studies as inferior to cohort studies, both as a general proposition and specifically with respect to talc. Case-control studies are generally harder to do, as the Plaintiffs’ bar learned when it based an entire mass tort litigation on a single case-control study, the so-called Yale Hemorrhagic Stroke Project.5 The Plaintiffs won the Daubert war6 in that litigation, but lost their jury trials because juries ultimately saw the methodological flaws that the MDL court disregarded. The general proposition that cohort studies are always superior to case-control studies, however, is doubtful. The defense did not need to stake out this claim, especially since it was not going to call an epidemiologist to testify.

Some of the claims that the defense committed to in its opening were as stunning as they were dubious. J & J’s counsel promised that he would show that talc has been proven safe. That claim is, however, beyond what the available science can show, especially with a plethora of statistically significant associations in case-control studies. J & J need only show that the plaintiffs’ claim has not been established, but it created an unnecessary burden of proving safety. The rhetorical value of the claim is obvious, but promising to show something that cannot be delivered seems like a recipe for disaster. $110 million is a disaster.

Then there was a defense claim that epidemiology cannot show that talc causes ovarian cancer. The claim was unclear as to whether epidemiology cannot establish general or specific causation, and vague as to whether the inability resulted from the weak, equivocal evidence in the instance of talc and ovarian cancer, or some deeper inability that stems from the nature of the evidence itself. Of course, given that there is an expected base rate of ovarian cancer in the general population, epidemiology will be required, even if it may not be sufficient. But if epidemiology alone is not sufficient, then what else is required? The defense never clarified its claim.

As for specific causation, the notion that epidemiology never informs individual patient predictions or causal assessments seems far fetched. If are dealing with a case of mesothelioma and occupational crocidolite exposure, with relative risks in the thousands, the attribution based upon the existence of a very high relative risk seems eminently reasonable. The same with maternal thalidomide use and an infant’s phocomelia, even though there is a baseline risk of phocomelia. Even in the case of a heavy smoker and lung cancer, with relative risks in the range of 20 to 40, inferring specific causation seems like a sound inference, especially in the absence of evidence that the risk is segregated in some subgroup of the population that suffers the outcome.

Imerys’s Opening

Counsel for Imerys also gave an opening statement, which started on common defense themes of the need to reserve judgment until all evidence is heard, and the need to consider context for statements. Imerys echoed the dubious claims that epidemiology can never inform inferences about individual patients, that epidemiology has determined that talc is safe, that cohort studies are always better than case-control studies, and that cohort studies are better because they have many thousand of women in them as opposed to “just a handful” in case-control studies.

Imerys, however, soon wandered into territory that affirmatively undermined J & J’s defense. First, it applauded itself for having warned of “possible causation,” which tended to concede the point to plaintiffs that there is a duty to warn of possibly caused outcomes. Second, Imerys appropriately urged its bulk supplier defense, which placed the spotlight on J & J’s alleged culpability.

The Imerys lawyer may have offended the Missouri jury by referring to talc as a mineral formed millions of years ago. A large percentage of Americans believe that the Earth was created less than 6,000 years ago. And yet, we still believe that allowing ordinary citizens to decide scientific issues is a good thing!

In its opening, Imerys also misstated the law to its own detriment. In discussing its obligations to warn, Imerys asserted that as a mining company it had to follow the rules established by OSHA. Actually, not. Mining companies are under the jurisdiction of the Mining Safety and Health Administration (MSHA), and OSHA Hazards Communication regulations did not apply to mining companies for the years involved in the Slemp case. See Memorandum from Patricia K. Clark, Director of OSHA Compliance Programs, to Regional Administrators re Hazard Communication and Mining Operations (Mar. 3, 1992).

1 See also Anthony Pratkanis & Elliot Aronson, Age of Propaganda: The Everyday Use and Abuse of Persuasion at 210 (2000) (“[A]ll other things being equal, the more frightened a person is by a communication, the more likely her or she is to take positive preventive action.”); H.L. Mencken, In Defence of Women § 13 “Women and the Emotions” (1923) (“The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, most of them imaginary.”); Conor Boyack, Feardom: How Politicians Exploit Your Emotions and What You Can Do to Stop Them (2014).

2 John W. Anthony, Richard A. Bideaux, Kenneth W. Bladh, and Monte C. Nichols, The Handbook of Mineralogy, vol. II (1995).

3 Melanie Safka, “Psychotherapy” (“A thing is a phallic symbol if it’s longer than it’s wide”).

4 Ronald L. Wasserstein & Nicole A. Lazar, “The ASA’s Statement on p-Values: Context, Process, and Purpose,” The American Statistician, available online (Mar. 7, 2016), in-press at DOI:10.1080/00031305.2016.1154108, <>.

5 Walter N. Kernan, Catherine M. Viscoli, et al., “Phenylpropanolamine and the Risk of Hemorrhagic Stroke,” 343 New Engl. J. Med. 1826 (2000).

6 See In re Phenylpropanolamine Prod. Liab. Litig., 289 F. 2d 1230 (2003).