TORTINI

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

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).

Quackers & Cheese – Trump Picks Kennedy to Study Vaccine Safety

January 11th, 2017

Science necessarily involves a willingness to follow evidence to whatever conclusions are warranted, if conclusions properly can be had. When it comes to vaccination conspiracies, Democrats have it in their political DNA to distrust pharmaceutical companies that research, develop, and manufacture vaccines. The current Republican party, which has been commandeered by theocrats and populists, see vaccination as federal government aggrandizement, and resist vaccination policy as contrary to God’s will. Science is often the loser in the cross-fire.

And so we now have the public spectacle of watching the left and the right join in similar scientific apostasies. Consider how both McCain and Obama both suggested that vaccines and autism were related in the 2008 election. (Although both candidates were to some extent slippery in their suggestions, which might have been appropriate given how little they knew about the controversies.) And consider Michelle Bachmann was converted to a similar view about the HPV vaccine on the basis of a woman’s anecdote about her child. And then on the far left, you have the uplifting story of Robert F. Kennedy Jr, and his brief on how thimerosal supposedly causes autism.

So it should be no surprise that Donald Trump, a Birther, a Mirther, a mid-night Twitterer, should embrace the anti-vaccination movement. Trump has made it clear that he rejects evidence-based policy, and so no one should expect him to embrace a scientific policy that is driven by high-quality scientific evidence. According to Kennedy, Trump wants Kennedy to head up a “commission on vaccine safety and scientific integrity.” Michael D. Shear, Maggie Haberman & Pam Belluckjan, “Anti-Vaccine Activist Says Trump Wants Him to Lead Panel on Immunization Safety,” N.Y. Times (Jan. 10, 2017); Domenico Montanaro, “Despite The Facts, Trump Once Again Embraces Vaccine Skeptics,” National Public Radio (Jan. 10, 2017).

Who needs the National Academy of Medicine when you can put a yutzball lawyer in charge of a “commission”?

Some of the media refer to Robert F. Kennedy Jr. as a vaccine skeptic, but their terminology is grossly inaccurate and misleading. Kennedy is a vaccine denier; he has engaged in a vitriolic campaign against the safety and efficacy of vaccines. He has aligned himself with the most extreme deniers of science, medicine, and public safety, including the likes of Andrew Wakefield and Jenny McCarthy. Kennedy has not merely engaged hyperbolic rhetoric against vaccines, he has used his radio show on the lawsuit industry’s Ring of Fire, to advance his campaign against public health as well as to shill for the lawsuit industry on other issues. SeeRFK, Jr.: Science Shows That Autism — Mercury Link Exists – PT. ½,” Ring of Fire (Mar 8, 2011).

Kennedy should not be characterized as a skeptic, when he is a shrill ideologue, for whom science has no method that he is bound to respect. Back in July 2005, Kennedy published an article, “Deadly Immunity,” in both Rolling Stone and on Slate’s website. The article was a hateful screed against Big Pharma and government health agencies for an alleged conspiracy to hide the autism risks of thimerosal preservatives in vaccines. Several years later, on January 16, 2011, Salon retracted the article. Seehttps://en.wikipedia.org/wiki/Deadly_Immunity” entry in Wikipedia. See also Phil Plait, “Robert F. Kennedy Jr.: Anti-Vaxxer,” Slate (June 5 2013) (describing Kennedy as a full-blown anti-vaccination conspiracy theorist); Rahul K. Parikh, M.D., “Inside the vaccine-and-autism scare: A pediatrician traces the rise of the anti-vaccine movement that falsely linked thimerosal with autism and turned parents away from the most lifesaving medicine in history,” Salon (Sept. 22, 2008); Keith Kloor,Is Robert F. Kennedy Jr. Anti-Science?” Discover Magazine (June 1, 2013); Steven Novella, “RFK Jr.s Autism Conspiracy Theory,” (Jun 20 2007).

Back in 2008, President Obama apparently considered Robert Kennedy for a cabinet-level position, but on sober reflection, thought better of it. See Steven Novella, “Politics and Science – The RFK Jr. Test,” (Nov. 07 2008). The Wall Street Journal, joined by many others, are now urging Trump to think harder and better about the issue, perhaps with some evidence as well. See Alex Berezow & Hank Campbell, “Ignore Anti-Vaccine Hysteria, Mr. Trump: Robert F. Kennedy Jr.’s conspiracy theories have no place in the White House,” Wall Street J. (Jan. 10, 2017).

Toward Better Definitions & Assessments of Conflicts of Interest in Science

October 13th, 2016

In capitalist and in communist societies, industry has a responsibility to conduct research on health and safety concerns. For corporate research to be credible, it should be methodologically sound, transparent, and available. So should non-corporate research.

In the United States and in Europe, much important research is done only by private corporate sponsors. Of course, private funding of research raises questions about potential conflicts of interest (COIs), but political frenzy over such COIs is a serious diversion often motivated by a desire to live in a faith-based world in which industry and chemicals are demonized far beyond what even precautionary principles would support. Susan Sarandon’s superstitions about the herbicide Round Up come to mind.

Although members of the Lobby, the Litigation Industry, and the environmental groups of the less rational kind frequently find their knickers in a knot over corporate scientific COIs, the fact is that publicly funded and self-styled “public interest” research is often afflicted by non-financial COIs that are more mind numbing than the anticipation of money.[1] Some groups, such as the Society of Toxicology, have implemented more complete definitions of COI to include advocacy and positional conflicts.[2]

Joseph Huggard recently posted an interesting piece at Innovative Science Solutions’ blog, on the need to “Follow the Science Not the Money,” to remind us of the first principle, that research should be evaluated primarily on its merits, and not on its perceived or imagined COIs. Huggard likens the current situation of proliferating ad hominem attacks to less talented footballer who approaches the game thinking “If you can’t play the ball, play the man.” (Or if you are Donald Trump, then play the ref.)

Huggard cites an interesting meta-observational study in which researchers attempted to obtain research protocols from epidemiologic studies on phthalate exposure. Not surprisingly, researchers who published studies that purported to find adverse associations involving phthalates were three times less likely to share their study protocols.[3] A request for study protocols is hardly an intrusive or difficult request to meet. Of course, there are “reasons,” such as researchers’ desire to privilege their methods when so-called positive studies will serve as stepping stones to funding for future studies, but future studies should be conditioned on making past protocols available, and the failure to share protocols generally is pretty dubious scientific behavior.

As grim as the situation has been in the United States, Huggard suggests that an upcoming Luxembourg Chamber of Commerce conference this week, on October 10th, will seek to redress the imbalance in European COI rhetoric by calling attention to the importance of non-financial conflicts and biases.[4] Let’s hope so, but the more likely outcome is that the Chamber of Commerce’s sponsorship will disqualify any conference recommendations among the “political scientists,” those who practice science to achieve political aims.


[1] Simon N. Young, “Bias in the research literature and conflict of interest: an issue for publishers, editors, reviewers and authors, and it is not just about the money,” 34 J. Psychiatry & Neurosci. 412 (2009) (positional conflicts, based upon prior beliefs, can create much more intractable bias than financial rewards). See also “Conflict Over Conflicts of Interest” (July 12, 2015); “Conflicts of Interest in Asbestos Studies – the Plaintiffs’ Double Standard” (Sept. 24, 2013); “Conflicted Public Interest Groups” (Nov 3, 2013).

[2] See, e.g., Society of Toxicology, Conflict of Interest, Bias and Advocacy: Definitions and Statements.

[3] Gerard M.H. Swaen, Miriam J.E. Urlings, and Maurice P. Zeegers, “Outcome reporting bias in observational epidemiology studies on phthalates,” 26 Ann. Epidemiol. 597E4 (2016)

[4] “Managing Bias and Conflict of Interest: Ensuring that Policy-Makers and Regulators Access the Best Quality Scientific Advice,” at the Chambre de Commerce Luxembourg, at 7, rue Alcide de Gasperi, Luxembourg (Kirchberg).

The LoGiudice Inquisitiorial Subpoena & Its Antecedents in N.Y. Law

July 14th, 2016

The plaintiffs’ bar’s inquisition into funding has been a recurring theme in the asbestos and other litigations.[1] It is thus interesting to compare the friendly reception Justice Moulton gave plaintiffs’ subpoena in LoGiudice[2] with the New York courts’ relatively recent hostility toward a defendant’s subpoena to Mt. Sinai School of Medicine.

A few years ago, Justice Sherry Heitler quashed a defendant’s attempt to subpoena information from the archives of a deceased, former faculty member of the Mount Sinai School of Medicine (“Mt. Sinai”), in Reyniak v. Barnstead Internat’l, No. 102688-08, 2010 NY Slip Op 50689, 2010 WL 1568424 (N.Y. Sup. Ct. Apr. 6, 2010). In a cursory opinion, Justice Heitler cited institutional expense, chilling of research, and scholars’ fears that their unpublished notes, ideas, and observations would become public as a result of litigation. Heitler relied upon and followed an earlier New York state court’s decision that adopted a rather lopsided “balancing” analysis, which permitted the New York courts to ignore the legitimate needs of defendants for access to underlying data.[3]

Remarkably, Justice Heitler failed to cite a federal appellate court’s subsequent decision, which upheld the tobacco companies’ subpoena to Mount Sinai.[4] Her opinion also ignored the important context of the asbestos litigation, in which Selikoff, long since deceased, played a crucial role in fomenting and perpetuating litigation, with tendentious publications and pronouncements. Some might say, “manufacturing certainty.” Perpetuating the Litigation Industry’s Selikoff mythology, Justice Heitler described Selikoff as a ground breaking asbestos researcher, but she either ignored, or was ignorant of, his testimonial adventures, his attempts to influence litigation with ex parte meetings with presiding judges, and his other questionable litigation-related conduct.

Selikoff’s participation in litigation was not always above board.  His supposedly ground-breaking work was funded by the insulator’s union, which also sought him out as a testifying expert witness. Among his many testimonial adventures,[5] Selikoff testified as early as 1966 that asbestos causes colorectal cancer, and that it caused a specific claimant’s colorectal cancer. See “Health Hazard Progress Notes: Compensation Advance Made in New York State,” 16(5) Asbestos Worker 13 (May 1966) (thanking Selikoff for his having given testimony to support an insulator’s claim that asbestos caused his colorectal cancer). To be sure, Selikoff made his litigation claims in the scientific literature as well, but without any acknowledgement of his involving in litigation involving this very issue, and his funding by the asbestos union.[6]

Given the dubious provenance of many of Selikoff’s opinions,[7] the disparate treatment of the subpoenas in LoGuidice and Reyniak is irreconcilable. The inflated prestige of Selikoff and Mount Sinai blinded the New York state trial courts to Selikoff’s role in litigation and his biased assessments in science. The judicial hypocrisy may well be the consequence of how the academic community has promoted Selikoff’s reputation, while working assiduously to undermine the reputations of anyone who has been connected with the defense of occupational disease claims. Consider, for instance, how Labor (Marxist) historians have railed against the role that Dr. Anthony Lanza played in personal injury litigation following the Gauley Bridge tunnel construction.  See Jock McCulloch and Geoffrey Tweedale, “Anthony J. Lanza, Silicosis and the Gauley Bridge ‘Nine’,” 27 Social History of Medicine 86 (2013). While these historians deplore Lanza, however, they laud Selikoff. SeeBritish Labor Historians Belaboring American Labor History – Gauley Bridge” (Oct. 14, 2013). Politics and occupational disease litigation are like that.


[1] See In re All Litigation filed by Maune, Raichle, Hartley, French & Mudd LLC v. 3M Co., No. 5-15-0235, Ill. App., 5th Dist.; 2016 Ill. App. Unpub. LEXIS 1392 (June 30, 2016); “Engineers for Automakers Must Unredact Agendas in Madison County Asbestos Litigation,” Madison County Record (July 2016); Lynn A. Lenhart, “Meeting Agendas Between Non-Party Consultant and Counsel for Asbestos Friction Clients Not Privileged” (July 5, 2016).  See also Weitz & Luxenberg P.C. v. Georgia-Pacific LLC, 2013 WL 2435565, 2013 NY Slip Op 04127 (June 6, 2013), aff’d, 2013 WL 2435565 (N.Y. App. Div., 1st Dep’t June 6, 2013); “A Cautionary Tale on How Not to Sponsor a Scientific Study for Litigation” (June 21, 2013).

[2] LoGiudice v. American Talc Co., No. 190253/2014, 2016 N.Y. Misc. LEXIS 2360, (N.Y. Sup., N.Y. Cty., June 20, 2016).

[3] See In re R.J. Reynolds Tobacco Co., 136 Misc 2d 282, 285, 518 N.Y.S.2d 729 (Sup. Ct., N.Y. Cty. 1987); see also In re New York County Data Entry Worker Prod. Liab.Litig., No. 14003/92, 1994 WL 87529 (N.Y. Sup. Ct. N.Y. Cty. Jan 31, 1994) (denying discovery because “special circumstances,” vaguely defined were absent).

[4] Mount Sinai School of Medicine v. The American Tobacco Co., 866 F.2d 552 (2d Cir. 1889).

[5]Selikoff and the Mystery of the Disappearing Testimony” (Dec. 3, 2010).

[6] See, e.g., 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).

[7] See generally Scientific Prestige, Reputation, Authority & The Creation of Scientific Dogmas” (Oct. 4, 2014); “Historians Should Verify Not Vilify or Abilify – The Difficult Case of Irving Selikoff” (Jan. 4, 2014).