TORTINI

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).

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).

Succès de scandale – With Thanks to Rosner & Markowitz

March 26th, 2017

for there is only one thing in the world worse than being talked about, and that is not being talked about.”

Oscar Wilde, The Picture of Dorian Gray (1890)

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

Some years ago, I co-chaired a Mealey’s conference on silicosis litigation. When plaintiffs’ counsel participate in such events, they are usually trolling for business, and jockeying for position on litigation steering committees. Ethical defense counsel are looking to put themselves out of business. My goal at the conference was to show that there was no there, there, so don’t go there. Mostly, the history of the litigation has proven me correct. In the early years of the 21st century, there were well over 10,000 cases pending. Now, there are just a hand full of pending cases. Very little money has been given to plaintiffs’ counsel; almost no sand companies have gone bankrupt.

At that Mealey’s conference, I presented a paper, which I later allowed Mealey’s to publish in its Silica Reporter. The paper became something of a “succès de scandale,” at least in getting under the skin of the Marxist historians, David Rosner and Gerald Markowitz, whom I took to task. In at least four of their publications, they have attempted unsuccessfully to rebut my arguments, and to criticize me for making them.1 At a meeting of the Committee on Science, Technology and the Law, of the National Academies of Science, I found myself presenting alongside Markowitz, on access to underlying study data. Markowitz played the victim of legal counsel’s subpoenas to his publisher for peer review comments in vinyl chloride, which grew out of his participation in the vinyl chloride litigation as an expert witness.2

I was on the panel for having served a subpoena upon Dr. Brad Racette for the underlying data of a study of parkinsonism in welders, with support in the form of the financial largesse of felon Richard Scruggs. Rosner was at this meeting only as a spectator, but he did not miss the opportunity, at a break, to get in my face, with the obvious intent of bullying me, with warnings that I would regret having ever written about them.

Back in 2007, the lawsuit-industry funded SKAPP conducted a conference, at which Rosner presented. I was not present, but a friend wrote me later, “Boy, does Rosner not like you. You steal a puppy from him or something?” When I presented at the Fourth International Conference on the History of Occupational and Environmental Health, in 2010, Rosner repeated his Middlebury behavior. As soon as I finished my talk, he rushed for the microphone and filibustered the entire question and answer period.3 I would chalk this up to fascisti of the left, except the very nice socialist historian who chaired my panel apologized profusely afterwards.

In a revised edition of one of their historical potboilers, Rosner and Markowitz repeated their calumny:

It was not just the lead and chemical industries that saw our book and the evidence we presented as a threat. Nathan Schachtman, an attorney with the Philadelphia-based firm McCarter & English, and who defended companies sued for ‘exposures to allegedly toxic substances, including asbestos, benzene, cobalt isocyanates, silica and solvents’, also published an attack on us in Mealey’s Litigation Report: Silica, titled, ‘On Deadly Dust and Histrionic Historians’. In his attack on our earlier book, Deadly Dust, a history of the devastating lung disease silicosis, he accused us of writing a ‘jeremiad’ that ‘resonates to the passions and prejudices of the last century’. He took us to task for our ‘prejudice’ that ‘silicosis results from the valuation of profits over people’ and admonished us to point out the higher rates of silicosis in Communist countries. ‘They [the authors] fairly consistently excuse or justify the actions of labor… . They excoriate the motives and actions of industry’. But Schachtman’s true agenda emerged in the middle of his third paragraph. ‘We could safely leave the fate of Rosner’s and Markowitz’s historical scholarship to their community of academicians and historians if not for one discomforting fact,’ he wrote. ‘The views of Rosner and Markowitz have become part of the passion play that we call silicosis litigation.’16

Schachtman seemed to be saying that as long as academics speak only to one another and had no influence beyond academia, they can be tolerated. But once they begin to affect that wider world, they need to be put back in their place. All this despite the fact that, at the time of Schachtman’s piece, more than a decade after the publication of Deadly Dust in 1991, each of us had appeared on the stand in only one case.”4

Rosner and Markowitz get virtually everything wrong, but one factoid may have been true. As of 1991, Rosner and Markowitz had perhaps only “appeared on the stand in only one case,” but by the time I wrote the article in 2005, the Marxist duo had been listed as expert witnesses in hundreds, if not thousands, of cases. The language quoted above appeared in an “Epilogue” to a 2013 publication, by which time Rosner and Markowitz each had testified over a dozen times, as professional historian “arguers.” Only Markowitz testified in vinyl chloride cases, from what I can make out, but the two of them testified in many silica, asbestos, and lead cases by the time they published their Epilogue.

One obvious point is that Rosner and Markowitz are both rather disingenuous in portraying themselves as innocent academics without connections to the lawsuit industry. In their world, they seek victim status to hide their long-standing partisanship in litigation issues. The real point, however, is that Rosner and Markowitz have never rebutted my arguments that silicosis was worse for workers in East Germany, the Soviet Union, Maoist China, under communist rule than it was in the post-1935 era in the United States. Unlike the rising incidence of asbestosis, the incidence of silicosis in the United States has steadily and significantly declined after World War II. Indeed, the Centers for Disease Control has held up the control of silicosis as one of the ten great public achievements in 20th century United States.5 SeeRamazzini Serves Courtroom Silica Science Al Dente” (July 25, 2015) (showing CDC data on declining silicosis incidence in the United States, against the rising trend in asbestosis incidence).


1 To date I have found four articles that dwell on the issue. See D. Rosner & G. Markowitz, “The Trials and Tribulations of Two Historians:  Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 280-81 (2009); D. Rosner & G. Markowitz, “L’histoire au prétoire.  Deux historiens dans les procès des maladies professionnelles et environnementales,” 56 Revue D’Histoire Moderne & Contemporaine 227, 238-39 (2009); David Rosner, “Trials and Tribulations:  What Happens When Historians Enter the Courtroom,” 72 Law & Contemporary Problems 137, 152 (2009); David Rosner & Gerald Markowitz, “The Historians of Industry” Academe (Nov. 2010).

2 Markowitz was excluded in at least one case in which he was disclosed as a testifying expert witness. Quester v. B.F. Goodrich Co., Case No. 03-509539, Court of Common Pleas for Cuyahoga Cty., Ohio, Order Sur Motion to Exclude Dr. Gerald Markowitz (Sweeney, J.).

3 Nathan Schachtman & John Ulizio, “Courting Clio:  Historians and Their Testimony in Products Liability Action,” in: Brian Dolan & Paul Blanc, eds., At Work in the World: Proceedings of the Fourth International Conference on the History of Occupational and Environmental Health, Perspectives in Medical Humanities, University of California Medical Humanities Consortium, University of California Press (2012); Schachtman, “On Deadly Dust & Histrionic Historians 041904,”; How Testifying Historians Are Like Lawn-Mowing Dogs” (May 15, 2010); A Walk on the Wild Side (July 16, 2010); Counter Narratives for Hire (Dec. 13, 2010); Historians Noir (Nov. 18, 2014).

4 Gerald Markowitz and David Rosner, Deceit and Denial: The Deadly Politics of Industrial Pollution at 313-14 (U. Calif. rev. ed. 2013). Footnote 16 was a reference to Nathan A. Schachtman, “On Deadly Dust and Histrionic Historians: Preliminary Thoughts on History and Historians as Expert Witnesses,” 2 Mealey’s Silica Litigation Report Silica 1, 2 (November 2003). Their language quoted above was largely self-plagiarized from Gerald Markowitz and David Rosner, “The Historians of Industry” (Nov. – Dec. 2010). 

5 CDC, “Ten Great Public Health Achievements — United States, 1900-1999,” 48 Morbidity & Mortality Weekly Report 241 (April 02, 1999).

Mercola’s Middlebury Moment – Conflicts of Interest As Distraction from the Merits

March 11th, 2017

Joseph Mercola is an osteopathic physician, who is possession of alternative facts about alternative medicine, which no doubt come from alternative science in an alternative universe. He is a conspiracy theorist who sees government, the media, and the scientific community as engaged in a vast conspiracy to stand in the way of his alternative truths.1

In his alternative world, vaccines kill, timerosal and milk2 cause autism, fluoridation3 and cell phones cause cancer. On his path to alternative health and wellbeing, Mercola has made millions selling and promoting dubious “health foods”; he has also found himself on the alternative side of the law, particularly with the FDA4 and the FTC5.

Mercola is an entrepreneurial physician, who hawks untested “natural health” products, while bashing licensed, tested pharmaceuticals. Mercola may not be the most honest broker of scientific information6, and so it seems inappropriate when he lobbies for the silencing of scientific discussion and debate.

In a web post this week, Mercola claimed that the newspaper USA Today,had been ridiculed for a column by an “industry front group.”7 This was a bit of fake news from Mercola; the event he referenced actually involved an attempt by environmental activist groups8 to silence speech that they disagreed with. The speaker to be silenced was the American Council on Science and Health (ACSH). No ridicule was involved; only accusations of undisclosed funding from self-styled public interest groups, which themselves do not disclose their funding sources in their letter.9

The President of the ACSH, Hank Campbell, responded with a rebuttal to this Middlebury Maneuver10, which is worth reading.11 Campbell eloquently makes three points. First, the accusers have serious conflicts of interest, both financial and positional, themselves. Second, the crucial issue in a scientific debate is the evidence, its quality, and its ability to warrant valid inferences. The “Lobby” wants to silence speech, but has nothing to offer on the merits of any scientific issue, except politically correct, subjective opinion. Third, the Lobby ignores that the ACSH has taken stands on health issues against many the pecuniary interests of corporations; indeed it has taken one of the strongest anti-smoking stances of any advocacy group. Campbell’s rebuttal is a powerful reminder that scientific disagreements cannot be won by bullying opponents into silence.


2 Joseph Mercola, “Milk linked to autism, schizophrenia,” Optimal Wellness Center Website (Mar .21, 1999; archived Jan. 2, 2008).

3 See, e.g., A. Mesh, “Dr Joseph Mercola gives $15,000 to anti-flouride campaign,” Williamette Week (May 6, 2013); Joseph Mercola, “Is fluoride as safe as you are told,” Optimal Wellness Center Website (Feb 2, 6, and 9, 2002); Mercola, the Sun, Tanning Beds, and Melanoma (Skeptic’s Dictionary Newsletter)

4 Susan J. Walker, Director, Division of Dietary Supplement Programs, “Warning letter to Joseph Mercola, D.O.,” (Feb 16, 2005) (Ref. No. CL-04-HFS-810-134 ); Scott J. MacIntire, District Director, “Warning letter to Joseph Mercola, D.O.,” (Sept. 21, 2006); Steven Silverman, Director, Office of Compliance, Center for Devices and Radiological Health, “Warning letter to Dr. Joseph Mercola,” (Mar. 22, 2011); see also Trine Tsouderos, “FDA warns doctor: Stop touting camera as disease screening tool,” Chicago Tribune (April 26, 2011); Stephen Barrett, “Dr. Joseph Mercola Ordered to Stop Illegal Claims,” Quackwatch (Jan. 9, 2017).

6 See Kate Knibbs, “The Most Honest Man in Medicine?” The Ringer (Jan. 5, 2017); Brian Smith, “Dr Mercola: Visionary or quack?” Chicago Magazine (Feb. 12, 2012).

7 Joseph Mercola, “USA Today Ridiculed for Column by Industry Front Group,” (Mar. 07, 2017).

8 Alaska Community Action on Toxics; Beyond Toxics; Breast Cancer Action; Breast Cancer Fund; Californians for Pesticide Reform; Center for Biological Diversity; Center for Food Safety; Citizens’ Environmental Coalition; Clean and Healthy New York Community Science Institute; Empire State Consumer Project; Farmworker Association of Florida; Friends of the Earth – US; Greenpeace; HavenBMedia; Healthy Building Network; Health Care Without Harm; Learning Disabilities Association of Maine; Made Safe Organic Consumers Association; Pesticide Action Network North America; Real Food Media; The 5 Gyres Institute; US Right to Know; Vermont Public Interest Research Group; Women’s Voices for the Earth; Ann Blake, PhD, Environmental & Public Health Consulting; Josh Freeman, MD (Emeritus Chair of Family Medicine, University of Kansas School of Medicine); Matthew Anderson, MD (Associate Professor, Dept. of Family and Social Medicine, Montefiore Medical Center); Martin Donohoe, MD, FACP (Adjunct Faculty, School of Community Health, Portland State University; Board of Advisors, Oregon Physicians for Social Responsibility).

10 Addison County Independent,Middlebury College professor injured by protesters as she escorted controversial speaker” (Mar. 6, 2017); Editorial Board, “Smothering Speech at Middlebury,” N.Y. Times (Mar. 7, 2017); Katharine Q. Seelye, “Protesters Disrupt Speech by ‘Bell Curve’ Author at Vermont College,” N.Y. Times (Mar. 3, 2017).