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

David Egilman and Friends Circle the Wagons at the International Journal of Occupational & Environmental Health

May 4th, 2017

Andrew Maier is an associate professor in the Department of Environmental Health, in the University of Cincinnati. Maier received his Ph.D. degree in toxicology, with a master’s degree in industrial health. He is a Certified Industrial Hygienest and has published widely on occupational health issues. Earlier this year, Maier was named the editor-in-chief of the International Journal of Occupational and Environmental Health (IJOEH). See Casey Allen, “Andy Maier Named Editor of Environmental Health Journal(Jan. 18, 2017).

Before Maier’s appointment, the IJOEH was, for the last several years, the vanity press for former editor-in-chief David Egilman and “The Lobby,” the expert witness brigade of the lawsuit industry. Egilman’s replacement with Andrew Maier apparently took place after the IJOEH was acquired by the scientific publishing company Taylor & Francis, from the former publisher, Maney.

The new owner, however, left the former IJOEH editorial board, largely a gaggle of Egilman friends and fellow travelers in place. Last week, the editorial board revoltingly wrote [contact information redacted] to Roger Horton, Chief Executive Officer of Taylor & Francis, to request that Egilman be restored to power, or that the current Editorial Board be empowered to choose Egilman’s successor. With Trump-like disdain for evidence, the Board characterized the new Editor as a “corporate consultant.” If Maier has consulted with corporations, his work appears to have rarely if ever landed him in a courtroom at the request of a corporate defendant. And with knickers tightly knotted, the Board also made several other demands for control over Board membership and journal content.

Andrew Watterson wrote to Horton on behalf of all current and former IJOEH Editorial Board members, a group heavily populated by plaintiffs’ litigation expert witnesses and “political” scientists, including among others:

Arthur Frank

Morris Greenberg

Barry S. Levy

David Madigan

Jock McCulloch

David Wegman

Barry Castleman

Peter Infante

Ron Melnick

Daniel Teitelbaum

None of the signatories apparently disclosed their affiliations as corporate consultants for the lawsuit industry.

Removing Egilman from control was bad enough, but the coup de grâce for the Lobby came earlier in April 2016, when Taylor & Francis notified Egilman that a paper that he had published in IJOEH was being withdrawn. According to the petitioners, the paper, “The production of corporate research to manufacture doubt about the health hazards of products: an overview of the Exponent Bakelite simulation study,” was removed without explanation. See Public health journal’s editorial board tells publisher they have ‘grave concerns’ over new editor,” Retraction Watch (April 27, 2017).

According to Taylor & Francis, the Egilman article was “published inadvertently, before the review process had been completed. On completing that review, it was decided the article was unsuitable for publication in the journal.” Id. Well, of course, Egilman’s article was unlikely to receive much analytical scrutiny at a journal where he was Editor-in-Chief, and where the Board was populated by his buddies. The same could be said for many articles published under Egilman’s tenure at the IJOEH. Taylor & Francis owes Egilman and the scientific and legal community a detailed statement of what was in the article, which was “unsuitable,” and why. Certainly, the law department at Taylor & Francis should make sure that it does not give Egilman and his former Board of Editors grounds for litigation. They are, after all, tight with the lawsuit industry. More important, Taylor & Francis owes Dr. Egilman, as well as the scientific and legal community, a full explanation of why the article in question was unsuitable for publication in the IJOEH.

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. See” 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).

In Queue for the Q

January 1st, 2017

All right, this has nothing to do with law, evidence, or statistics, but what a great day for New York and the Upper Eastside. Today, the “Second Avenue Line,” an extension of the Q subway line opened for business.

The local radio stations announced that the MTA would give away free subway day passes at 11 a.m., at the new 86th street station. Even before the hour, a queue formed of locals eager for a free first ride on the Second Avenue line. At 11:15 a.m., Congresswoman Carolyn Mahoney arrived. She did not greet anyone in the queue; rather, she planted herself in front of TV cameras to which she made kissy faces and self-congratulatory noises. Of course, the MTA has little or nothing to do with the federal government, and the rationale for her presence was curiously absent. Mayor DeBlasio, who lives but four blocks away in Gracie Mansion, however could not be bothered to show up. No doubt he was still in bed, and nursing a hang over.

Not only did Mahoney did speak to anyone in the queue, going to the Q, her remarks for the TV and radio media were whispered into microphones. Standing about four feet away from her, I could barely hear a word she said. Surely no one behind me heard her, and she clearly did not care. Mahoney had greater audiences in mind, and no apparent interest in actually interacting with her constituents. Perhaps she was hung over from New Year’s Eve festivities.

With Congresswoman Mahoney were her minions, who started to hand out the coveted free passes, but not to the people who had peacefully assembled and patiently waited in line. Because the TV cameras set up around Mahoney, her minions had to hand out cards close to her and to the cameras so that the TV audiences would see the handouts as Mahoney’s largesse. There was a visually impaired woman at the front of the line, with her guide dog, Kudo, but they were ignored by Mahoney and her aides, as well as by the media. Finally, in a Bonfire of the Vanities moment, as Mahoney started to drift away, a boisterous woman pushed her way in front of the cameras, while exclaiming that she wasn’t being pushy, because, after all, she had bona fide press credentials. So the TV cameras shifted to her, and she, a media person, was then interviewed by the media. Where was Tom Wolfe to capture this wonderful New York moment?

Guide Dog Kudo Leads the Way as First Dog Rides the Second Avenue Line on New Year’s Day, 2017

Finally, at noon, the police tape was unceremoniously pulled away, and the Second Avenue line was opened to the hoi polloi. The subway cars were not new, but were appropriately clean for the occasion. The first downtown train today on the new Second Avenue line left from 86th Street, amid great fanfare and cheering. When the subway reached 72nd Street, the conductor held the train for almost 15 minutes due to traffic on the line. Huh? I suspect that the conductor wanted the passengers to have that real MTA experience.

The subway stations at 96th, 86th, 72nd, and 63rd streets all had that wonderful new subway station smell, almost as good as a new BMW. And each of these four stations has become a wonderful museum of public art, each worth an MTA card for the price of admission. See Muoio, “New York’s long-awaited Second Avenue subway features some incredible artwork” (Dec. 30, 2016). I will leave the exhibits for the art critics to describe, except to say that the 86th, 72nd, and 63rd street stations have become outstanding artistic tributes to New York City and its residents. Thankfully, there was no sign of any likeness of Donald Trump.

A hundred years late, the Second Avenue subway has arrived. It does not go as far as it should, but perhaps Governor Cuomo will take a page out the Robert Moses playbook and use the stub as leverage to get the whole thing done. The Governor seems to have the right stuff to get infrastructure programs completed. If infrastructure were up to Mayor DeBlasio, we would still be waiting for the Second Avenue line along with the resurrection of Robert Moses himself.

Papantonio on Fire — Slander & Slime

August 1st, 2015

Michael Mann’s lawsuit against the Competitive Enterprise Institute (CEI) for defamation is an interesting case.  SeeClimategate on Appeal” (Aug. 17, 2014). Whatever you think of Mann’s research, the charges of the CEI, calling Mann’s work fraudulent were outrageous. Mann may have a political agenda, and his scientific work may be flawed and invalid, but that does not make it fraudulent. If the CEI has evidence that Mann fabricated or falsified data, then the charge would be appropriate, but so far, nothing to support the charge has emerged. In its pleadings, the CEI averred that it used “fraudulent” as a metaphor or something like that.

The excesses of the CEI are not unique to the climate change debate. One website features an interview with Mike Papantonio, an attorney for the litigation industry, about claims that the Weinberg Group spreads scientific disinformation. “Scientists for SaleRT Question More (Sept. 17, 2014). The Weinberg Group describes itself as providing

“biotech, medical device and pharmaceutical consulting services to companies of every size on every continent, supplying them with viable and efficient drug development pathways and compliance solutions.”

Weinberg Group Website. According to Papantonio and his media facilitator, Thom Hartmann, the Weinberg Group is a group of “professional liars and huxters,” who will “cook the books,” to show that chemicals or tobacco do not cause cancer. Papantonio, however, never delivers any evidence that the Weinberg Group has falsified or fabricated evidence. He, Papantonio, does not like the Weinberg Group’s interpretation of scientific evidence in his legal cases, and its persistence in revealing the weaknesses of the litigation industry’s litigation and regulatory claims.

A shortened version of Papantonio’s irresponsible name calling can be found on YouTube. Hartmann & Papantonio, “C-8 and the Business of Misinformation” (Sept. 16, 2014). Papantonio appears to have used his media appearances to advance the litigation industry’s cause in MDL 2433, In re E. I. du Pont de Nemours and Company C-8 Personal Injury Litigation. This MDL aggregates cases of claimed health effects from exposure to perfluorooctanoic acid (PFOA), also known as C8, which is used in making du Pont’s Teflon.

Papantonio’s rants and defamatory screeds illustrate some of the litigation industry’s rhetorical strategies:

  1. dichotomize the world into safe and harmful;
  1. by semantic fiat, declare anything not proven safe as harmful;
  1. assert that the defense of any substance, exposure, drug, etc., which is not proven absolutely safe, is deliberate infliction of harm upon the public; and
  1. reclassify any statement that a substance, known to cause harm under some circumstance, doesn’t cause harm under every other circumstance as “fraudulent.”

Like the CEI, Papantonio stretches the English language and common decency beyond its ultimate tensile stress. Certainly, scientists should participate in litigation and regulatory proceedings, and their views should be given close scrutiny. Papantonio’s interview statements, however, exemplify a pathology of thought and expression that also exceeds our tolerance for discourse in a free society; it is slime and slander.