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

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.

The Legacy of Irving Selikoff & Wicked Wikipedia

March 7th, 2015

Earlier this year, January 15, 2015, would have been Irving J. Selikoff’s 100th birthday. Selikoff left a lifetime legacy of having improved public health awareness, with a shadow of some rather questionable opinions and conduct in the world of litigation[1]. Given Selikoff’s fame and prestige among public health advocates and labor union activists, it is remarkable that now, over twenty since his death, there are no major biographies of Selikoff. Even Selikoff’s Wikipedia page[2] is skimpy and devoid of many details of his activities.

There are some comical aspects to the Selikoff wikipedia page, some of which revolve around someone’s anonymous disparaging of my writing about Selikoff::

“Part of the contrary perspective was presented by a Nathan A. Schachtman, an adjunct lecturer at the Columbia Law School. He suggested that Selikoff and his supporters may have organized ‘a lopsided medical conference, arranged for the conference to feature defendant’s expert witnesses, set out to give short shrift to opposing points of view, invited key judges to attend the conference, and paid for the judges’ travel and hotel expenses’. This quote from Schachtman came from a web site he maintained, unlike the quote from McCulloch and Tweedale, whose comments were published only after being accepted by reviewers for a refereed academic journal.“Nathan A. Schachtman”. Columbia Law School. Retrieved September 16, 2013.”

Make no mistake about it; I wasn’t “suggesting”; I was stating a fact. As for the reviewers who “refereed” the journal article by McCulloch and Tweedale, I have shown that this peer review was not worth a warm bucket of spit[3].

One of the disturbing aspects of Wikipedia is that contributors can hide behind I.P. addresses or pseudonyms. Whoever attempted to quote my blog posting distorted my meaning by selectively and incompletely quoting me to suggest that the conference featured defendants’ experts. I can understand that the dumbot wanted to remain anonymous to mislead in this way, but what I wrote was:

“One can only imagine the hue and cry that would arise if a defendant company had funded a lopsided medical conference, arranged for the conference to feature defendant’s expert witnesses, set out to give short shrift to opposing points of view, invited key judges to attend the conference, and paid for the judges’ travel and hotel expenses.”

The counterfactual point, obviously, was that if defense counsel had conspired with defense expert witnesses, to hold an ex parte conference with sitting judges, to feature the work of defense experts, there would have been acrimonious denunciations from the public health community about the evils of corporate influence. In the Wikipedia article, the only reference to Selikoff’s participation in the conspiracy with the litigation industry was an attack on my writing, and a distortion of my posting by incomplete citation. But the misquotation was welcomed in motivating me to register with Wikipedia to correct the misattribution.

There are two document archives of Selikoff documents, one at Mt. Sinai Hospital in New York[4], and the other in St. Louis[5]. Jock McCulloch described Selikoff as having “avoided litigation” and having “fought to keep his papers away from the legal arena.”[6] The first part of McCulloch’s description is demonstrably wrong, but the efforts to suppress access to his papers, and data, is sadly all too true. The accusations of “cover up” flow so freely against industry, but why the cover up of Selikoff’s papers? And who would trust the Mt. Sinai custodians?

The Asbestos Disease Awareness Organization (ADAO) claims to be an “independent asbestos victims’ organization,” started in 2004. Its website points out that the ADAO is a registered 501(c)(3) nonprofit corporation, which “does not make legal referrals.” The ADAO posted a kind memoriam to the late Dr. Selikoff: “Dr. Irving Selikoff: Clinician, Researcher, Public Health Advocate and Occupational Health Pioneer (1915 – 2015)” (Jan. 15, 2015).

For almost ten years, the ADAO has been recognizing “exceptional leaders” with the Dr. Irving Selikoff Lifetime Achievement Award, for the recipient’s efforts to increase awareness and prevention of asbestos-related diseases.

Remarkably, many of the “exceptional leaders,” in the eyes of the ADAO, are (or were before their deaths) regular testifiers for the litigation industry:

Paul Brodeur 2006

Yasunosuke Suzuki 2006

Michael Harbut 2008:

Barry Castleman 2008

Stephen Levin 2009

Arthur Frank, 2012

Richard Lemen, 2012

Celeste Monforton 2013

David Egilman 2014

Brodeur, of course, did not testify; he wrote for the New Yorker, including a series that became the book, Outrageous Misconduct: the Asbestos Industry on Trial, This book became an important lobbying tool for plaintiffs’ counsel with judges and legislatures. His subsequent book, The Great Power-Line Cover-Up: How the Utilities and Government Are Trying to Hide the Cancer Hazard Posed by Electromagnetic Fields (1993) revealed his aptitude for overinterpreting studies and failing to appreciate validity concerns. See Sander Greenland, Asher R. Sheppard, William T. Kaune, Charles Poole, and Michael A. Kelsh, “A Pooled Analysis of Magnetic Fields, Wire Codes, and Childhood Leukemia,” 11 Epidemiology 624 (2000).

Harbut was the proponent, in the silicone gel breast implant litigation, of a half-baked theory about a role for platinum in causing autoimmune disease among claimants. The FDA and The Institute of Medicine easily dispatched Harbut’s theory. Suzuki, Castleman, Levin, Frank, and Lemen testify (or did testify when alive) with some frequency and regularity in asbestos litigation, on behalf of the litigation industry. Egilman to his credit is perhaps the lone recipient who has spoken out[7], on one or more occasions against the depredations of the litigation industry’s unethical[8] and unlawful screenings, but he has openly acknowledged his bias against corporate industry (although not against litigation industry). See David S. Egilman, “Corporate and Government Suppression of Research” (2004). And Monforton was one of the movers and shakers in establishing SKAPP[9], which misrepresented its funding sources, while lobbying against the legal requirements of reliability and validity for scientific expert witness opinion testimony.

[1] SeeSelikoff and the Mystery of the Disappearing Testimony” (Dec. 3, 2010); “Selikoff and the Mystery of the Disappearing Asbestosis” (Dec. 6, 2010); “Selikoff and the Mystery of the Disappearing Amphiboles” (Dec. 10, 2010); “The Selikoff – Castleman Conspiracy” (Mar. 13, 2011); “Irving Selikoff and the Right to Peaceful Dissembling” (June 5, 2013); “The Mt. Sinai Catechism” (June 7, 2013); “Historians Should Verify Not Vilify or Abilify – The Difficult Case of Irving Selikoff” (Jan. 4, 2014); “What Happens When Historians Have Bad Memories” (Mar. 15, 2014); “The Last Squirmish Between Irving Selikoff and Sir Richard Doll” (Sept. 9, 2014); “Irving Selikoff – Media Plodder to Media Zealot” (Sept. 9, 2014); “Scientific Prestige, Reputation, Authority & The Creation of Scientific Dogmas” (Oct. 4, 2014). See also Cathleen M. Devlin, “Disqualification of Federal Judges – Third Circuit Orders District Judge James McGirr Kelly to Disqualify Himself so as to Preserve the Appearance of Justice under 28 U.S.C.§ 455,” 38 Vill. L. Rev. 1219 (1993); W.K.C. Morgan, “Asbestos and cancer: history and public policy,” 49 Br. J. Indus. Med. 451, 451 (1992).

[2] Wikipedia, “Irving Selikoff” (last visited March 6, 2015).

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

[4] 83 Am. J. Pub. Health 609, 609 (1993)(describing the Irving J. Selikoff Asbestos Archives and Research Center holdings of Dr. Selikoff’s research documents).


[6] Jock McCulloch and Geoffrey Tweedale, Defending The Indefensible: The Global Asbestos Industry and its Fight for Survival 271 (Oxford 2008) (describing how even after his death, the Selikoff papers have still not been made generally available, but thanking Valerie Josephson, Philip Landrigan, and Stephen Levin, for helping McCulloch gain access to the papers).

[7] David Egilman & Susanna Rankin Bohme, “Attorney-Directed Screenings Can Be Hazardous,” 45 Am. J. Indus. Med. 305 (2004).

[8] Nathan A. Schachtman & Cynthia J. Rhodes, “Medico-Legal Issues in Occupational Lung Disease Litigation,” 27 Sem. Roentgenology 140 (1992).

[9]SKAPP-A-LOT” (April 30, 2010); “Conflicted Public Interest Groups” (Nov. 3, 2013).