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

Coffee with Cream, Sugar & a Dash of Acrylamide

June 9th, 2018

Causal statements are made all the time without much thought of their epistemic warrant. On a day that the stock market indices fall, would-be economic pundits point to some putative cause, such as concern about wage inflation. When the stock market rises on the following day, the explanation is that investors were buoyed by corporate tax cuts, even though those tax cuts were supposedly designed to help companies increase wages. As philosophy professor Harry Frankfurt has explained:

Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about. Thus the production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic exceed his knowledge of the facts that are relevant to that topic.”1

Of course, Frankfurt’s dictum aptly describes the situation with much of expert witness testimony in health effects litigation.

Nothing seems to stimulate speculative causal claiming as much as the potential rewards of rent-seeking litigation under Proposition 65. By popular referendum, the State of California has taken upon itself to make pronouncements about the causal effects of various foods, drugs, and exposures. The referendum became a California statute with the Safe Drinking Water and Toxic Enforcement Act of 1986. Proposition 65 and the subsequent Enforcement Act require the State of California to publish a list of chemicals it “knows” cause cancers or birth defects. California knows a lot. The list, updated annually, now includes about 800 chemicals.

When California knows that a chemical or an exposure causes cancer, the state does not necessarily know that the chemical or exposure causes cancer in human beings; nor does it necessarily know that the chemical or exposure causes cancer at the exposure level experienced by the citizens of the state. Furthermore, many exposures occur in the context of complex mixtures in which a hypothetical effect of one chemical might be offset or antagonized by another chemical in the mixture. But nonetheless, what California “knows” can hurt you if you are on the wrong side of a Prop 65 enforcement action.

What has California gotten for all its “knowledge”? Clearly, the Proposition 65 statute has created huge incentives for private citizens to sue for violations by creating private rights of action against businesses that supposedly violate the law by failing to warn about what California knows. The proof standards for “known to cause cancer” are so removed from scientific discourse that forcing monetary settlements out of California businesses has become at once a big business itself, and a twisted process that distorts the truth of health hazards and benefits. There have been occasional outcries about the abusive system created from what once was perhaps a well-intentioned reform,2 but for the most part, Prop 65 has become the abnormal normal in California.

Mostly California has gotten lawsuits and a glut of warnings with no difference in cancer or birth defect rates than those observed in states less knowledgeable on such matters.3 Some of California’s cancer rates may be a bit lower than the national rates but this outcome is largely the result of lower state rates for smoking and obesity. Some birth defect rates (neural tube defects) are actually higher in California than in the country as a whole.4

Last year, 681 Prop 65 settlements worth $25.6 million were reported to the California attorney general’s office. Attorneys’ and expert witness fees and other litigation costs made up more than 75% of the total.5 The rate of return has been steady over the years. In 2011, 74 percent of Proposition 65 awards went to attorneys’ fees and costs.6

Council for Education and Research on Toxics (CERT)

For all the hoopla over CERT’s lawsuit against Starbucks,7 there has been little coverage of the actual testimony from the trial. One journalist did report that Peter Infante, a frequent testifier for the lawsuit industry, testified on epidemiology for CERT’s lawyer, Raphael Metzger.8 Apparently, Infante described some studies as showing statistically significant correlations between coffee drinking and some kinds of cancer. Infante demurred on whether coffee caused these kinds of cancer, and admitted that one “would need a clinical trial to resolve the issue.” David Kessler, the former FDA commissioner who helped create the breast implant litigation fiasco and who now testifies frequently for the Lawsuit Industry, testified for Starbucks. Despite his substantial fear-mongering credentials, Dr Kessler emphasized that coffee is a “staple of the American diet,” and that drinking coffee has known health benefits. As everyone now knows, Starbucks failed to persuade the California trial judge that coffee, acrylamide and all, should come under the statute’s safe harbor provisions.

Almost five years ago, I first blogged about the CERT, in connection with the Milward case.9 When I first wrote back in 2013, and until the present, CERT, has not had a website, which is odd for an organization that professes to have an educational mission. In 2013, my research on CERT showed it to be a California corporation, EIN: 42-1571530, founded in 2003, with a business address at 401 E. Ocean Blvd., Ste. 800, Long Beach, California 90802-4967, and a telephone number:  1-877-TOX-TORT. CERT’s reported mission statement was furthering scientific understanding of toxins. Plaintiffs’ lawyer Ralph Metzger, a denizen of the Prop 65 world, was noted as the contact person for CERT, and indeed, the telephone number for CERT was the same as that for Metzger’s lawfirm, the Metzger Law Group.

As I started to watch the activities of CERT, I detected some curious patterns. I saw CERT file amicus briefs in legal cases, which is not the typical activity of a scientific research organization.10 Even more curious, and somewhat dubious, in two cases in which Ralphael Metzger of the Metzger Law Group represented the plaintiffs, another firm, Richard Alexander of the Alexander Law Group, represented CERT as an amicus in the same cases.11

Given the publicity created by CERT’s victory in its Proposition 65 citizen’s action against Starbucks, I recently revisited this research. See Alexander Nazaryan, “Will coffee in California come with a cancer warning?Los Angeles Times (Feb. 18, 2018). One group, “Deniers for Hire,” which describes itself as committed to “debunk anti-science propaganda and expose the activists who produce it,” identified CERT as:

a sham environmentalist nonprofit that sues food companies and collects settlements to fund additional lawsuits against other food companies. Founded in 2002 by toxicologist Martyn T. Smith, with backing from the shameless trial lawyers at Metzger Law Group, CERT uses junk science to target California businesses that can be sued under the state’s ill-conceived Proposition 65.”

The connection with Martyn T. Smith, was news to me, and interesting given how frequently Smith testifies for plaintiffs in cases involving even minimal benzene exposure. If correct, this website’s connecting Martyn Smith with CERT raises additional conflict-of-interest issues.

Funding of Research

Does CERT actually support research? Perhaps, after a fashion, but the money trail is as sketchy as is the ownership issue. Searching in Google Scholar turns up several publications that openly acknowledge funding from CERT. Perhaps only the young and naïve will be surprised that CERT money went to Martyn Smith, alleged founder of CERT and testifier for plaintiffs’ counsel, and to Smith’s students.12 In one instance, CERT support has been acknowledged by Martyn Smith and co-authors for the production of a meta-analysis, which can then be relied upon by Smith and other plaintiffs’ expert witnesses in benzene litigation. Although this meta-analysis credits funding from CERT, most readers of a professional journal will have little idea of the funding’s litigation provenance.13 The corresponding author of the CERT-funded meta-analysis was an official in the California state Office of Environmental Health Hazard Assessment, an office which is in a position to make decisions that help CERT in its California litigation goals.14

The funding of Martyn Smith and his students would certainly be questionable if Smith was a founder of or a participant in CERT. When Smith’s litigation opinions were challenged in one high-profile case, CERT rallied to his rescue with an amicus brief, which did not disclose any relationship between CERT and Martyn Smith, or CERT’s funding of Smith’s research. Milward v. Acuity Specialty Prods. Group, Inc., 639 F.3d 11 (1st Cir. 2011).

A current online listing at Guidestar gives Nancy Quam-Wickham as the “principal officer,” with the same EIN for CERT, as I saw five years ago. Quam-Wickham is a professor of history at California State University, in Long Beach. She seems an unlikely person to head up an organization given to research and education on “toxics.” The phone number for CERT is now 6101824891, but the mailing address is still Ralphael Metzger’s law office.

The Charity Navigator website does not rate CERT because its annual revenue is below $1 million. The website describes CERT as a 501(c)(3), with the same current address as Metzger’s lawfirm. According to Charity Navigator, CERT’s IRS 990 return listed assets of $21,880, and income of $137,354, for 2017.

So what are CERT’s educational activities? The sketchiness of CERT’s appearance as an “amicus” in Ralphael Metzger’s own lawsuits seems matched by the sketchiness of the organization’s professed educational mission. A deeper dive discovered that CERT has garnered some acknowledgements on the websites of other organizations. For instance, the Green Science Policy Institute, founded in 2008, for instance, acknowledges CERT for its “generous support” of the Institute’s work.

Some of CERT’s “educational” efforts have not fared particularly well. In the Chemtura Corporation bankruptcy, CERT attempted to intervene to assert a $9 billion claim to compensate “the public” for alleged injuries from the bankrupt’s allegedly toxic chemicals. In re Chemtura Corp., No. 09-11233, U.S. Bankruptcy Court (S.D.N.Y. 2010). Bankruptcy Judge Robert Gerber was not impressed with CERT’s educational efforts, and dismissed the entity as lacking the necessary standing to make a claim.15

1 Harry Frankfurt, On Bullshit 63 (2005).

2 See, e.g., Lisa L. Halko, “California’s Attorney General Acknowledges Prop 65 Abuse,” 22 no. 29 Wash. Leg. Fdtn. Legal Backgrounder (July 27, 2007); Pamela A. MacLean, “California Judge Blasts Firm in Toxic-Warnings Case,” Nat’l L.J. (April 13, 2006); Consumer Defense Group v. Rental Housing Industry Members40 Cal. Rptr. 3d 832 (Cal. Ct. App. 4th 2006) (“As the Attorney General pointed out in oral argument, it does not serve the public interest to have the almost the entirety of the state of California ‘swamped in a sea [of] generic warning signs’.”).

7 Council for Education and Research on Toxics v. Starbucks Corp., BC435759, California Superior Court, Los Angeles County.

8 Edvard Pettersson, “Toxic Java? California Law Carries Big Fines, Little Evidence,” Bloomberg (Oct. 25, 2017).

10 See, e.g., Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 857 N.E.2d 1114, 824 N.Y.S.2d 584 (2006).

11 In Uriarte v. Scott Sales Co., 226 Cal. App. 4th 1396, 172 Cal. Rptr. 3d 886 (2014); Ramos v. Brenntag Specialties, Inc., 63 Cal.4th 500, 203 Cal. Rptr. 3d 273, 372 P.3d 200 (2016). In both of these cases, CERT was joined by a band of scientists proclaiming neutrality and failing to disclose their significant litigation activities and income: Dr. Jerrold Abraham, Dr. Richard W. Clapp, Dr. Ronald Crystal, Dr. David A. Eastmond, Dr. Arthur L. Frank, Dr. Robert J. Harrison, Dr. Ronald Melnick, Dr. Lee Newman, Dr. Stephen M. Rappaport, Dr. David Joseph Ross and Dr. Janet Weiss. SeeSand in My Shoe – CERTainly” (June 17, 2014). Of course, California appellate courts require that amici disclose financial interests. A motion for leave to file an amicus brief must include, among other things, the names of all persons or entities that contributed financially to the brief, and acknowledgments about whether any party of party’s lawyer helped fund the preparation or filing of the brief. Cal. Rules of Court, Rule 8.200(c)(3)(A)(ii), (B), 8.882(d)(3)(A)(ii) and (B).

12 See, e.g., Jimmy Phuong, Simon Kim, Reuben Thomas & Luoping Zhang, “Predicted Toxicity of the Biofuel Candidate 2,5-Dimethylfuran in Envt’l & Biological Systems,” 53 Envt’l & Molecular Mutagenesis 478 (2012); Michele Fromowitz, Joe Shuga, AntonioYip Wlassowsky, Zhiying Ji, Matthew North, Chris D. Vulpe, Martyn T. Smith, and Luoping Zhang, “Bone Marrow Genotoxicity of 2,5-Dimethylfuran, a Green Biofuel Candidate,” 53 Envt’l & Molecular Mutagenesis 488 (2012); Reuben Thomas, Jimmy Phuong, Cliona M. McHale and Luoping Zhang, “Using Bioinformatic Approaches to Identify Pathways Targeted by Human Leukemogens,” 9 Internat’l J. Envt’l. Research & Public Health 2479 (2012).

13 Frolayne M. Carlos-Wallace, Luoping Zhang, Martyn T. Smith, Gabriella Rader & Craig Steinmaus, “Parental, In Utero, and Early-Life Exposure to Benzene and the Risk of Childhood Leukemia: A Meta-Analysis,” 183 Am. J. Epidem. 1 (2016).

14 Dr. Craig Steinmaus, Office of Environmental Health Hazard Assessment, 1515 Clay Street, 16th Floor, Oakland, CA 94612.

15 Caroline Humer, “Judge rules against big Chemtura bankruptcy claim,” Reuters (April 8, 2010); John Parry, “Chemtura hits back at $9 billion claim over toxins,” Reuters (Mar. 24, 2010).

PubMed Refutes Courtroom Historians

February 11th, 2018

Professors Rosner and Markowitz, labor historians, or historians laboring in courtrooms, have made a second career out of testifying about other people’s motivations. Consider their pronouncement:

In the postwar era, professionals, industry, government, and a conservative labor movement tried to bury silicosis as an issue.”

David Rosner & Gerald Markowitz, Deadly Dust: Silicosis and the Politics of Occupational Disease in the Twentieth Century America 213 (Princeton 1991); Gerald Markowitz & David Rosner, “Why Is Silicosis So Important?” Chap. 1, at 27, in Paul-André Rosental, ed., Silicosis: A World History (2017). Their accusation is remarkable for any number of reasons,1 but the most remarkable is that their claim is unverified, but readily falsified.2

Previously, I have pointed to searches in Google’s Ngram Book viewer as well as in the National Library of Medicine’s database (PubMed) on silicosis. The PubMed website has now started to provide a csv file, with articles counts by year, which can be opened in programs such as LibreOffice Calc, Excel, etc, and then used to generate charts of the publication counts over time. 

Here is a chart generated form a simple search on <silicosis> in PubMed, with years aggregated over roughly 11 year intervals:

The chart shows that the “professionals,” presumably physicians and scientists were most busy publishing on, not burying, the silicosis issue exactly when Rosner and Markowitz claimed them to be actively suppressing. Many of the included publications grew out of industry, labor, and government interests and concerns. In their book and in their courtroom performances,, Rosner and Markowitz provide mostly innuendo without evidence, but their claim is falsifiable and false.

To be sure, the low count in the 1940s may well result from the relatively fewer journals included in the PubMed database, as well as the growth in the number of biomedical journals after the 1940s. The Post-War era certainly presented distractions in the form of other issues, including the development of antibiotics, chemotherapies for tuberculosis, the spread of poliomyelitis and the development of vaccines for this and other viral diseases, radiation exposure and illnesses, tobacco-related cancers, and other chronic diseases. Given the exponential expansion in scope of public health, the continued interest in silicosis after World War II, documented in the PubMed statistics, is remarkable for its intensity, pace Rosner and Markowitz.

1Conspiracy Theories: Historians, In and Out of Court(April 17, 2013). Not the least of the reasons the group calumny is pertinent is the extent to which it keeps the authors gainfully employed as expert witnesses in litigation.

2 See also CDC, “Ten Great Public Health Achievements – United States, 1900 – 1999,” 48(12) CDC Morbidity and Mortality Weekly Report 241 (April 02, 1999)(“Work-related health problems, such as coal workers’ pneumoconiosis (black lung), and silicosis — common at the beginning of the century — have come under better control.”).

Fake Friends and Fake Followers

January 28th, 2018

In the Black Mirror production of Nosedive, based upon a short story by Charlie Brooker, a young woman named Lacie lives in a world in which social media approval metrics determine social, economic, and political opportunities. Every interaction is graded on a scale from one to five. Lacie’s approval rating is slipping, thus jeopardizing her participation in her friend’s wedding, and she is determined to improve her rating. She tries her best to be “nice,” and then enlists a ratings coach, but her efforts cannot stop her approval rating from its nosedive. Perhaps if Lacie had greater financial resources, she could have improved her ratings by paying people to like her on social media.

Would people really pay for the appearance of social approval? “Celebrities, athletes, pundits and politicians have millions of fake followers,” and they paid for them. Thus announces the New York Times in an exposé of the practice of paying for followers on social media.1 Perhaps even the President has paid for fake followers who are mere bots. Maybe bots are the only friends he has.

Although I am skeptical of the utility of Facebook and Twitter, I have come reluctantly to admit that these and other social media – even blogs – have some utility if properly used. The business of buying followers, however, is just plain sick.

Finally, Eric Schneiderman has announced an investigation into an issue of some importance. He is investigating Devumi, a company that he claims sells fake followers on social media. The company is alleged to have created over 55,000 bots based upon living people and their identifying features.2

Stealing identities and selling fake followers is deplorable, and Scheiderman’s crusade is a laudable exercise of prosecutorial discretion. But so is buying fake followers to lard up one’s social media metrics. The crime involves two separate criminal acts, and we should not lose sight of the fraudulent nature of the representations about inflated number of followers. It takes two parties to enter the contract to defraud the public. Devumi’s clients may well be in pari delicto.

Let us hope that when Schneiderman opens the books at Devumi, he will have the fortitude to tell us which “celebrities, athletes, pundits, and politicians” have been juking their stats. Schneiderman’s investigation has the promise of making Eliot Spitzer’s commercial transactions look like child’s play. Inquiring minds want to know who would buy a friend or a follower.

1 Nicholas Confessore, Gabriel J.X. Dance, Richard Harris, and Mark Hansen, “The Follower Factory: Everyone wants to be popular online. Some even pay for it. Inside social media’s black market,” N.Y. Times (Jan. 27, 2018).

2 Nicholas Confessore, “New York Attorney General to Investigate Firm That Sells Fake Followers,” N.Y. Times (Jan. 27, 2018).

Manufacturing Consent

December 2nd, 2017

David Michaels along with other “political” scientists, and the lawsuit industry, have worked assiduously over the last several decades to delegitimize discussion, debate, and controversy over scientific claims.1 Their key goals have been to attempt to disqualify manufacturing industry and any scientist with the slightest manufacturing industry contact. Their attempts to disqualify other interlocutors is, however, highly asymmetrical. If those with connections to manufacturing industry criticize studies or causal conclusions, then we hear that the criticism is corrupt. If those with connections to manufacturing industry embrace studies that show favored associations, or causal conclusions, then we hear that the embrace of advocacy positions was an “admission,” reluctantly given but “forced” by overwhelming evidence. In other words, the attempts to disqualify interlocutors are made only when the speakers articulate criticism of the claims of advocacy science.

David Zaruk has argued that the techniques used to squelch criticism of advocacy science bear an uncanny resemblance to the techniques used by fascists generally. See David Zaruk, “Ten Practices Linking Environmentalism with Fascism,” Riskmonger (Dec. 2, 2017). Although Zaruk’s argument may appear hyperbolic, there is no denying that advocacy scientists (not merely in the field of environmentalism) have used the rhetorical devices that are used by intellectual bullies everywhere. In the case of advocacy scientists, one of their key maneuvers has been to privilege advocacy scientists who speak for their favored positions, for the lawsuit industry, and for self-styled public interest groups by ignoring their potential conflicts of interest, while diminishing the substantive content of all “opposition” voices by pejoratively characterizing their opponents’ motivation as “manufacturing doubt.” Of course, the deepest irony is that before there was manufacturing doubt, there was manufacturing consent.2 The unkindest thing that can, and must be said, of the current enthusiasm for attacking dissident scientists is not that the attacks are fascist, but that they are unscientific.

The likes of David Michaels have sought to manufacture consent on various health effects issues, by selectively and asymmetrically accusing scientists of conflicts of interest, or trying to pervert the course of science. These attacks on “dissidents” assume the truth of the contested causal conclusions, and then proceed to call out the dissidents for casting doubt on the “truth” in favor of falsehood. What this mobbing of dissidents ignores is the basic normative structure of science, which requires doubt.

One of the first sociologists of science, Robert Merton, described four institutional imperatives of science: universality, communitarianism, disinterestedness, and “organized skepticism.”3 Scientists are committed to methodologies and an institutional ethos that require searching scrutiny of claims to scientific knowledge. The scientific advocates who would silence criticism with accusations of “manufacturing doubt” ignore the epistemic importance of dissent and disagreement in science. The prevalent attempts to squelch dissent as “manufacturing doubt” is thus unscientific and dangerous.4

1 See, e.g., David Michaels, Doubt is Their Product: How Industry’s War on Science Threatens Your Health (2008); David Michaels, “Manufactured Uncertainty: Protecting Public Health in the Age of Contested Science and Product Defense,” 1076 Ann. N.Y. Acad. Sci. 149 (2006); David Michaels, “Mercenary Epidemiology – Data Reanalysis and Reinterpretation for Sponsors with Financial Interest in the Outcome,” 16 Ann. Epidemiol. 583 (2006); David Michaels & Celeste Monforton, “Manufacturing Uncertainty: Contested Science and the Protection of the Public’s Health and Environment,” 95 Amer. J. Public Health S39 (2005); David Michaels, “Doubt is their Product,” 292 Sci. Amer. 74 (June 2005).

2 See generally Edward S. Herman & Noam Chomsky, Manufacturing Consent (1988).

3 Robert K. Merton, “The Normative Structure of Science,” in Robert K. Merton, The Sociology of Science: Theoretical and Empirical Investigations, chap. 13, at 267, 270 (1973).

4 See Inmaculada de Melo-Mmartín and Kristen Intemann, “Who’s afraid of dissent? Addressing concerns about undermining scientific consensus in public policy developments,” 22 Persp. on Science 593 (2014).