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Counter Cancel Culture Part III – Fixing Science

February 14th, 2020

This is the last of three posts about Cancel Culture, and the National Association of Scholars (NAS) conference on Fixing Science, held February 7^th and 8^th, in Oakland, California.

In finding my participation in the National Association of Scholars’ conference on Fixing Science, “worrying” and “concerning,” John Mashey takes his cues from the former OSHA Administrator, David Michaels. David Michaels has written much about industry conflicts of interests and efforts to influence scientific debates and discussions. He popularized the notion of “manufacturing doubt,”[1] with his book of that title. I leave it to others to decide whether Mashey’s adverting to Michaels’ work, in finding my writings on silica litigation “concerning” and “worrying,” is itself worrisome. In order to evaluate Mashey’s argument, such as it is, the reader should know something more about David Michaels, and his publications.[2]

As one might guess from its title, The Triumph of Doubt: Dark Money and the Science of Deception, Michaels’ new book s appears to be a continuation of his attack on industry’s efforts to influence regulation. I confess not to have read this new book yet, but I am willing to venture a further guess that the industry Michaels is targeting is manufacturing industry, not the lawsuit industry, for which he has worked on many occasions. There is much irony (and no little hypocrisy) in Michaels’ complaints about dark money and the science of deception. For many years, Michaels ran the now defunct The Project on Scientific Knowledge and Public Policy (SKAPP), which was bankrolled by the plaintiffs’ counsel in the silicone gel breast implant litigation. Whenever SKAPP sponsored a conference, or a publication, the sponsors or authors dutifully gave a disclosure that the meeting or publication was underwritten by “a grant from the Common Benefit Trust, a fund established pursuant to a federal court order in the Silicone Gel Breast Implant Products Liability litigation.”

Non-lawyers might be forgiven for thinking that SKAPP and its propaganda had the imprimatur of the federal court system, but nothing could be further from the truth. A common benefits fund is the pool of money that is available to plaintiffs’ lawyers who serve on the steering committee of a large, multi-district litigation, to develop expert witnesses, analyze available scientific studies, and even commission studies of their own.[3] The source of the money was a “tax” imposed upon all settlements with defendants, which funneled the money into the so-called common benefits fund, controlled by the leadership of the plaintiffs’ counsel. When litigating the silicone gel breast implant cases involving claims of autoimmune disease became untenable due to an overwhelming scientific consensus against their causal claims,[4] the leadership of the plaintiffs’ steering committee gave the remaining money to SKAPP, rather than returning the money to the plaintiffs themselves. David Michaels and his colleagues at SKAPP then misrepresented the source of the money as coming from a “trust fund” established by the federal court, which sounded rather like a neutral, disinterested source. This fund, however, was “walking around” money for the plaintiffs’ lawyers, which belonged to the settling plaintiffs, and which was diverted into a major propaganda effort against the judicial gatekeeping of expert witness opinion testimony.[5] A disinterested reader might well believe that David Michaels thus has some deep personal experience with “dark money,” and “the science of deception.” Mashey might be well advised to consider the adjacency issues raised by his placing such uncritical trust in what Michaels has published.

Regardless of David Michaels’ rhetoric, doubt is not such a bad thing in the face of uncertain and inconclusive evidence. In my view, we could use more doubt, and open-minded thought. Bertrand Russell is generally credited with having written some years ago:

“The biggest cause of trouble in the world today is that the stupid people are so sure about things and the intelligent folks are so full of doubts.”

What are we to make then of the charge by Dorothy Bishop that the conference would not be about regular scientific debate, but

“about weaponising the reproducibility debate to bolster the message that everything in science is uncertain — which is very convenient for those who wish to promote fringe ideas.”

I attended and presented at the conference because I have a long-standing interest in how scientific validity is assessed in the scientific and in the legal world. I have been litigating such issues in many different contexts for over 35 years, with notable scientific experts occasionally on either side. One phenomenon I have observed repeatedly is that expert witnesses of the greatest skill, experience, and knowledge are prone to cognitive biases, fallacies, and other errors. One of my jobs as a legal advocate is to make sure that my own expert witnesses engage fully with the evidence as well as how my adversaries are interpreting the evidence. In other words, expert witnesses of the highest scientific caliber succumb to biases in interpreting studies and evidence.

A quick anecdote, war story, will I hope make the point. A few years ago, I was helping a scientist get ready to testify in a case involving welding fume exposure and Parkinson’s disease. The scientist arrived with some PowerPoint slides, one of which commented that a study relied upon by plaintiffs’ expert witnesses had a fatal design flaw that rendered its conclusions invalid. Another slide embraced a study, sponsored by a co-defendant company, which had a null result but the same design flaw called out in the study used by plaintiff’s witnesses. It was one in the morning, but I gently pointed out the inconsistency, and the scientist immediately saw the problem and modified his slides.

The next day, my adversary noticed the lack of the codefendant’s study in the group of studies this scientist had relied upon. He cross-examined the scientist about why he had left out a study, which the codefendant had actually sponsored. The defense expert witness testified that the omitted study had the same design flaw as seen in the study embraced by plaintiffs’ expert witnesses, and that it had to be consigned to the same fate. The defense won this case, and long after the celibration died down, I received a very angry call from a lawyer for the codefendant. The embrace of bad studies and invalid inferences is not the exclusive province of the plaintiffs’ bar.

My response to Dorothy Bishop is that science ultimately has no political friends, although political actors will try to use criteria of validity selectively to arrive at convenient, and agreeable results. Do liberals ever advance junk science claims? Just say the words: Robert F. Kennedy, Jr. How bizarre and absurd for Kennedy to come out of a meeting with Trump’s organization, to proclaim a new vaccine committee to investigate autism outcomes! Although the issue has been explored in detail in medical journals for the last two decades, apparently there can even be bipartisan junk science. Another “litmus test” for conservatives would be whether they speak out against what are, in my view, unsubstantiated laws in several “Red States,” which mandate that physicians tell women who are seeking abortions that abortions cause breast cancer. There have been, to be sure, some studies that reported increased risks, but they were mostly case-control studies in which recall and reporting biases were uncontrolled. Much better, larger cohort studies done with unbiased information about history of abortions failed to support the association, which no medical organization has taken to be causal. This is actually a good example of irreproducibility that is corrected by the normal evolutionary process of scientific research, with political exploitation of the earlier, less valid studies.

Did presenters at the Fixing Science conference selectively present and challenge studies? It is difficult for me to say, not having a background in climate science. I participated in the conference to talk about how courts deal with problems of unreliable expert witness testimony and reliance upon unreliable studies. But what I heard at the conference were two main speakers argue that climate change and its human cause were real. The thrust of the most data-rich presentation was that many climate models advanced are overstated and not properly calibrated. Is Bishop really saying that we cannot have a civil conversation about whether some climate change models are poorly done and validated? Assuming that the position I heard is a reasonable interpretation of the data and the models, it establishes a “floor” in opposition to the ceilings asserted by other climate scientists. There are some implications; perhaps the National Association of Scholars should condemn Donald Trump and others who claim that climate change is a hoax. Of course, condemning Trump every time he says something false, stupid, and unsupported would be a full time job. Having staked out an interest climate change, the Association might well consider balancing the negative impression others have of it as “deniers.”

The Science Brief

Back in June 2018, the National Association of Scholars issued a Science Brief, which it described as its official position statement in the area. A link to the brief online was broken, but a copy of the brief was distributed to those who attended the Fixing Science conference in Oakland. The NAS website does contain an open letter from Dr. Peter Wood, the president of the NAS, who described the brief thus:

“the positions we have put forward in these briefs are not settled once and for all. We expect NAS members will critique them. Please read and consider them. Are there essential points we got wrong? Others that we left out? Are there good points that could be made better?

We are not aiming to compile an NAS catechism. Rather, we are asked frequently by members, academics who are weighing whether to join, reporters, and others what NAS ‘thinks’ about various matters. Our 2,600 members (and growing) no doubt think a lot of different things. We prize that intellectual diversity and always welcome voices of dissent on our website, in our conferences, and in our print publications. But it helps if we can present a statement that offers a first-order approximation of how NAS’s general principles apply to particular disciplines or areas of inquiry.

We also hope that these issue briefs will make NAS more visible and that they will assist scholars who are finding their way in the maze of contemporary academic life.

As a preface to an attempt to address general principles, Peter Wood’s language struck me as liberal, in the best sense of open-minded and generous in spirit to the possibility of reasoned disagreement.

So what are the NAS principles when it comes to science? Because the Science Brief seems not to be online at the moment, I will quote it here at length:

OVERVIEW

The National Association of Scholars (NAS) supports the proper teaching and practice of science: the systematic exercise of reason, observation, hypothesis, and experiment aimed at understanding and making reliable predictions about the material world. We work to keep science as a mode of inquiry engaged in the disinterested pursuit of truth rather than a collection of ‘settled’ conclusions. We also work to integrate course requirements in the unique history of Western science into undergraduate core curricula and distribution requirements. The NAS promotes scientific freedom and transparency.

We support researchers’ freedom to formulate and test any scientific hypothesis, unconstrained by political inhibitions. We support researchers’ freedom to pursue any scientific experiment, within ethical research guidelines. We support transparent scientific research, to foster the scientific community’s collective search for truth.

The NAS supports course requirements on the history and the nature of the Western scientific tradition.

All students should learn a coherent general narrative of the history of science that tells how the scientific disciplines interrelate. We work to restore core curricula that include both the unique history of Western science and an introduction to the distinctive mode of Western scientific reasoning. We also work to add new requirements in statistics and experimental design for majors and graduate students in the sciences and social sciences.

The NAS works to reform the practice of modern science so that it generates reproducible results. Modern science and social science are crippled by a crisis of reproducibility. This crisis springs from a combination of misused statistics, slipshod research techniques, and political groupthink. We aim to eliminate the crisis of reproducibility by grounding scientific practice in the meticulous traditions of Western scientific thought and rigorous reproducibility standards.

The NAS works to eliminate the politicization of undergraduate science education.

Our priority is to dismantle advocacy-based science, which discards the exercise of rational skepticism in pursuit of truth when it explicitly declares that scientific inquiry should serve policy advocacy. We therefore work to remove advocacy-based science from the classroom and from university bureaucracies. We also criticize student movements that demand the replacement of disinterested scientific inquiry with advocacy-based science. We focus our critiques on disciplines such as climate science that are mostly engaged in policy advocacy.

The NAS tracks scientific controversies that affect public policy, studies the remedies that scientists propose, and criticizes laws, regulations, and proposed policies based upon advocacy-based science.

We do this to prevent a vicious cycle in which advocacy-based science justifies the misuse of government – and private funding to support yet more advocacy-based science. We also work to reform the administration of government science funding so as to prevent its capture by advocacy-scientists. The NAS’s scientific reports draw on the expertise of its member scholars and staff, as well as independent scholars. Our aim is to provide professionally credible critiques of America’s science education and science-based public policy.

John Mashey in his critique of the NAS snarkily comments that folks at the NAS lack the expertise to make the assessments they call for. Considering that Mashey is a computer scientist, without training in the climate or life sciences, his comments fall short of their mark. Still, if he were to have something worthwhile to say, and he supported his statements by sufficient evidence and reasoning, I believe we should take it seriously.

Nonetheless, the NAS statement of principles and concerns about how science and statistics is taught are unexceptional. I suspect that neither Mashey nor anyone else is against scientific freedom, methodological rigor, and ethical, transparent research.

The scientific, mathematical, and statistical literacy of most judges and lawyers, is poor indeed. The Law School Admission Test (LSAT) does not ask any questions about statistical reasoning. A jury trial is not a fair, adequate opportunity to teach jurors the intricacies of statistical and scientific methods. Most medical schools still do not teach a course in experimental design and statistical analysis. Until recently, the Medical College Acceptance Test (MCAT) did not ask any questions of a statistical nature, and the test still does not require applicants to have taken a full course in statistics. I do not believe any reasonable person could be against the NAS’s call for better statistical education for scientists, and I would add for policy makers. Certainly, Mashey offers no arguments or insights on this topic.

Perhaps Mashey is wary of the position that we should be skeptical of advocacy-based science, for fear that climate-change science will come in for unwelcomed attention. If the science is sound, the data accurate, and the models valid, then this science does not need to be privileged and protected from criticism. Whether Mashey cares to acknowledge the phenomenon or not, scientists do become personally invested in their hypotheses.

The NAS statement of principles in its Science Brief thus seems worthy of everyone’s support. Whether the NAS is scrupulous in applying its own principles to positions it takes will require investigation and cautious vigilance. Still, I think Mashey should not judge anyone harshly lest he be so judged. We are a country of great principles, but a long history of indifferent and sometimes poor implementation. To take just a few obvious examples, despite the stirring words in the Declaration of Independence about the equality of all men, native people, women, and African slaves were treated in distinctly unequal and deplorable ways. Although our Constitution was amended after the Civil War to enfranchise former slaves, our federal government, after an all-too-short period of Reconstruction, failed to enforce the letter or the spirit of the Civil War amendments for 100 years, and then some. Less than seven years after our Constitution was amended to include freedom from governmental interference with speech or publication, a Federalist Congress passed the Alien and Sedition Acts, which President Adams signed into law in 1798. It would take over 100 years before the United States Supreme Court would make a political reality of the full promise of the First Amendment.

In these sad, historical events, one thing is clear. The promise and hope of clearly stated principles did prevail. To me, the lesson is not to belittle the principles or the people, but to hold the latter to the former. If Mashey believes that the NAS is inconsistent or hypocritical about its embrace of what otherwise seems like worthwhile first principles, he should say. For my part, I think the NAS will find it difficult to avoid a charge of selectivity if it were to criticize climate change science, and not cast a wider net.

Finally, I can say that the event sponsored by the Independent Institute and the NAS featured speakers with diverse, disparate opinions. Some speakers denied that there was a “crisis,” and some saw the crisis as overwhelming and destructive of sound science. I heard some casual opinions of climate change skepticism, but from the most serious, sustained look at the actual data and models, an affirmation of anthropogenic climate change. In the area of health effects, the scientific study more relevant to what I do, I heard a fairly wide consensus about the need to infuse greater rigor into methodology and to reduce investigators’ freedom to cherry pick data and hypotheses after data collection is finished. Even so, there were speakers with stark disagreement over methods. The conference was an important airing and exchanging of many ideas. I believe that those who attended and who participated went away with less orthodoxy and much to contemplate. The Independent Institute and the NAS deserve praise for having organized and sponsored the event. The intellectual courage of the sponsors in inviting such an intellectually diverse group of speakers undermines the charge by Mashey, Teytelman, and Bishop that the groups are simply shilling for Big Oil.

[1] David Michaels, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health (2008).

[2] David Michaels, The Triumph of Doubt: Dark Money and the Science of Deception (2020).

[3] See, e.g., William Rubenstein, “On What a ‘Common Benefit Fee’ Is, Is Not, and Should Be,” Class Action Attorney Fee Digest 87, 89 (March 2009).

[4] In 1999, after much deliberation, the Institute of Medicine issued a report that found the scientific claims in the silicone litigation to be without scientific support. Stuart Bondurant, et al., Safety of Silicone Breast Implants (I.O.M. 1999).

[5] I have written about the lack of transparency and outright deception in SKAPP’s disclosures before; see “SKAPP A LOT” (April 30, 2010); “Manufacturing Certainty” (Oct. 25, 2011); “The Capture of the Public Health Community by the Litigation Industry” (Feb. 10, 2014); “Daubert’s Silver Anniversary – Retrospective View of Its Friends and Enemies” (Oct. 21, 2018); “David Michaels’ Public Relations Problem” (Dec. 2, 2011)

Posted in Causation, Conflicts of Interest, Public Nuisances | Comments Off on Counter Cancel Culture Part III – Fixing Science

Counter Cancel Culture – Part II: The Fixing Science Conference

February 12th, 2020

So this is what it is like to be denounced? My ancestors fled the Czar’s lands before they could be tyrannized by denunciations of Stalin’s Soviets. The work of contemporary denunciators is surely much milder, but no more principled than the Soviet versions of yesteryear.

Now that I am back from the Fixing Science conference, sponsored by the Independent Institute and the National Association of Scholars (NAS), I can catch up with the media coverage of the event. I have already addressed Dr. Lenny Teytelman’s issues in an open letter to him. John Mashey is a computer scientist who has written critical essays on climate science denial. On the opening day of the NAS conference, he published online his take on the recent NAS’s conference on scientific irreproducibility.[1] Mashey acknowledges that the Fixing Science conference included “credible speakers who want to improve some areas of science hurt by the use of poor statistical methods or making irreproducible claims,” but his post devolves into scurrilous characterizations of several presenters. Alas, some of the ad hominems are tossed at me, and here is what I have to say about them.

Mashey misspells my name, “Schactman,” but that is a minor flaw of scholarship. He writes that I have “published much on evidence,” which is probably too laudatory. I am hardly a recognized scholar on the law of evidence, although I know something about this area, and have published in it.

Mashey tautologically declares that I “may or may not be a ‘product defense lawyer’ (akin to Louis Anthony Cox) defending companies against legitimate complaints.” Mashey seems unaware of how the rule of law works in our country. Plaintiffs file complaints, but the standard for the legitimacy of these complaints is VERY low. Courts require the parties to engage in discovery of their claims and defenses, and then courts address dispositive motions to dismiss either the claims or the defenses. So, sometimes after years of work, legitimate complaints are revealed to be bogus complaints, and then the courts will dismiss bogus complaints, and thus legitimate complaints become illegitimate complaints. In my 36 years at the bar, I am proud to have been able to show that a great many apparently legitimate complaints were anything but what they seemed.

Mashey finds me “worrying” and “concerning.” My children are sometimes concerned about me, and even worry about me, about I do not think that Mashey was trying to express solicitude for me.

Why worry? Well, David Michaels in his most recent book, Triumph of Doubt (2020), has an entire chapter on silica dust. And I, worrisomely, have written and spoken, about silica and silicosis litigation, sometimes in a way critical of the plaintiffs’ litigation claims. Apparently, Mashey does not worry that David Michaels may be an unreliable protagonist who worked as a paid witness for the lawsuit industry on many occasions before becoming the OSHA Administrator, in which position he ignored enforcement of existing silica regulations in order to devote a great deal of time, energy, and money to revising the silica regulations. The evidentiary warrant for Michaels’ new silica rule struck me then, and now, as slim, but the real victims, workers, suffered because Michaels was so intent on changing a rule in the face of decades of declining silicosis mortality, that he failed, in my view, to attend to specific instances of over-exposure.

Mashey finds me concerning because two radical labor historians do not like me. (I think I am going eat a worm, ….) Mashey quotes at length from an article by these historians, criticizing me for having had the audacity to criticize them.[2] Oh my.

What Mashey does not tell his readers was that, as co-chair of a conference on silicosis litigation (along with a co-chair who was a plaintiffs’ lawyer), I invited historian Gerald Markowitz to speak and air his views on the history of silica regulation and litigation. In response, I delivered a paper that criticized, and I would dare say, rebutted many of Markowitz’s historical conclusions and his inferences from an incomplete, selectively assembled, and sometimes incorrect, set of historical facts. I later published my paper.

Mashey tells his readers that my criticisms, based not upon what I wrote, but upon the partisan cries of Rosner and Markowitz, “seems akin to Wood’s style of attack.” Well, if so, nicely done, Woods.

But does Mashey believe that his readers deserve to know that Rosner and Markowitz have testified repeatedly on behalf of the lawsuit industry, that is, those entrepreneurs who make lawsuits?[3] And that Rosner and Markowitz have been amply remunerated for their labors as partisan witnesses in these lawsuits?

And is Mashey worried or concerned that in the United States, silicosis litigation has been infused with fraud and deception, not by the defendants, but by the litigation industry that creates the lawsuits? Absent from Rosner and Markowitz’s historical narratives is any mention of the frauds that have led to dismissals of thousands of cases, and the professional defrocking of any number of physician witnesses. In re Silica Products Liab. Litig., MDL No. 1553, 398 F. Supp. 2d 563 (S.D.Tex. 2005). Even the redoubtable expert witness for the plaintiffs’ bar, David S. Egilman, has published articles that point out the unethical and unlawful nature of the medico-legal screenings that gave rise to the silicosis litigation, which Michaels, Rosner, and Markowitz seem to support, or at the very least suppress any criticism of.[4]

So this is what it means to be denounced! Mashey’s piece is hardly advertisement for the intellectual honesty of those who would de-platform the NAS conference. He has selectively and inaccurately addressed my credentials. As just one example, and in an effort to diminish the NAS, he has omitted that I have received a grant from the NASEM to develop a teaching module on scientific causation. My finished paper is published online at the NASEM website.[5]

I do not know Mashey, but I leave it to you to judge him by his sour fruits.

[1] John Mashey, “Dark-Moneyed Denialists Are Running ‘Fixing Science’ Symposium of Doubt,” Desmog Blog (Feb. 7, 2020).

[2] David Rosner & Gerald Markowitz, “The Trials and Tribulations of Two Historians: Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 280-81 (2009) (criticizing me for expressing the view that historians should not be permitted to testify and thereby circumvent the rules of evidence). See also David Rosner & Gerald 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) (same); D. Rosner, “Trials and Tribulations: What Happens When Historians Enter the Courtroom,” 72 Law & Contemporary Problems 137, 152 (2009) (same). I once thought there was an academic standard that prohibited duplicative publication!

[3] I have been critical of Rosner and Markowitz on many occasions; they have never really responded to the substance of my criticisms. See, e.g., “How Testifying Historians Are Like Lawn-Mowing Dogs,” (May 15, 2010).

[4] See David Egilman and Susanna Rankin Bohme, “Attorney-directed screenings can be hazardous,” 45 Am. J. Indus. Med. 305 (2004); David Egilman, “Asbestos screenings,” 42 Am. J. Indus. Med. 163 (2002).

[5] “Drug-Induced Birth Defects: Exploring the Intersection of Regulation, Medicine, Science, and Law – An Educational Module” (2016) (A teaching module designed to help professional school students and others evaluate the role of science in decision-making, developed for the National Academies of Science, Engineering, and Medicine, and its Committee on Preparing the Next Generation of Policy Makers for Science-Based Decisions).

Posted in Conflicts of Interest, Expert Witnesses, Historian Testimony, Public Nuisances, Scientific Evidence | Comments Off on Counter Cancel Culture – Part II: The Fixing Science Conference

California Roasts Fear-Mongering Industry

June 16th, 2019

A year ago, California set out to create an exemption for coffee from its Proposition 65 regulations. The lawsuit industry, represented by the Council for Education and Research on Toxics (CERT) had been successfully deploying Prop 65’s private right of action provisions to pick the pockets of coffee vendors. Something had to give.

In 2010, Mr. Metzger, on behalf of CERT, sued Starbucks and 90 other coffee manufacturers and distributors, claiming they had failed to warn consumers about the cancer risks of acrylamide. CERT’s mission was to shake down the roasters and the vendors because coffee has minor amounts of acrylamide in it. Acrylamide in very high doses causes tumors in rats[1]; coffee consumption by humans is generally regarded as beneficial.

Earlier last year a Los Angeles Superior Court ordered the coffee companies to put cancer warnings on their beverages. In the upcoming damages phase of the case, Metzger sought as much as $2,500 in civil penalties for each cup of coffee the defendants sold over at least a decade. Suing companies for violating California’s Proposition 65 is like shooting fish in a barrel, but the State’s regulatory initiative to save California from the embarrassment of branding coffee a carcinogen was a major setback for CERT.

And so the Office of Environmental Health Hazard Assessment (OEHHA) began a rulemaking largely designed to protect the agency from the public relations nightmare created by the application of the governing statute and regulations to squeeze the coffee roasters and makers.[2] The California’s agency’s proposed regulation on acrylamide in coffee resulted in a stay of CERT’s enforcement action against Starbucks.[3] CERT’s lawyers were not pleased; they had already won a trial court’s judgment that they were owed damages, and only the amount needed to be set. In September 2018, CERT filed a lawsuit in Los Angeles Superior Court against the state of California challenging OEHHA’s proposed rule, saying it was being rammed through the agency on the order of the Office of the Governor in an effort to kill CERT’s suit against the coffee companies. Or maybe it was simply designed to allow people to drink their coffee without the Big Prop 65 warning.

Earlier this month, after reviewing voluminous submissions and holding a hearing, the OEHHA announced its ruling that Californians do not need to be warned that coffee causes cancer. Epistemically, coffee is not known to the State of California to be hazardous to human health.[4] According to Sam Delson, a spokesperson for the OEHHA, “Coffee is a complex mixture of hundreds of chemicals that includes both carcinogens and anti-carcinogens. … The overall effect of coffee consumption is not associated with any significant cancer risk.” The regulation saving coffee goes into effect in October 2019. CERT, no doubt, will press on in its litigation campaign against the State.

CERT is the ethically dodgy organization founded by C. Sterling Wolfe, a former environmental lawyer; Brad Lunn; Carl Cranor, a philosophy professor at University of California Riverside; and Martyn T. Smith, a toxicology professor at University of California Berkeley.[5] Metzger has been its lawyer for many years; indeed, Metzger and CERT share the same office. Smith has been the recipient of CERT’s largesse in funding toxicologic studies. Cranor and Smith have both testified for the lawsuit industry.

In the well-known Milward case,[6] both Cranor and Smith served as paid expert witnesses for plaintiff. When the trial court excluded their proffered testimonies as unhelpful and unreliable, their own organization, CERT, came to the rescue by filing an amicus brief in the First Circuit. Supporting by a large cast of fellow travelers, CERT perverted the course of justice by failing to disclose the intimate relationship between the “amicus” CERT and the expert witnesses Cranor and Smith, whose opinions had been successfully challenged.[7]

The OEHHA coffee regulation shows that not all regulation is bad.

[1] National Cancer Institute, “Acrylamide and Cancer Risk.”

[2] See Sam Delson, “Press Release: Proposed OEHHA regulation clarifies that cancer warnings are not required for coffee under Proposition 65” (June 15, 2018).

[3] Council for Education and Research on Toxics v. Starbucks Corp., case no. B292762, Court of Appeal of the State of California, Second Appellate District.

[4] Associated Press, “Perk Up: California Says Coffee Cancer Risk Insignificant,” N.Y. Times (June 3, 2019); Sara Randazzo, “Coffee Doesn’t Warrant a Cancer Warning in California, Agency Says; Industry scores win following finding on chemical found in beverage,” W.S.J. (June 3, 2019); Editorial Board, “Coffee Doesn’t Kill After All: California has a moment of sanity, and a lawyer is furious,” Wall.St.J. (June 5, 2019).

[5] Michael Waters, “The Secretive Non-Profit Gaming California’s Health Laws,” The Outline (June 18, 2018); Beth Mole, “The secretive nonprofit that made millions suing companies over cancer warnings,” Ars Technica (June 6, 2019); NAS, “Coffee with Cream, Sugar & a Dash of Acrylamide” (June 9, 2018); NAS, “The Council for Education & Research on Toxics” (July 9, 2013); NAS, “Sand in My Shoe – CERTainly” (June 17, 2014) (CERT briefs supported by fellow-travelers, testifying expert witnesses Jerrold Abraham, Richard W. Clapp, Ronald Crystal, David A. Eastmond, Arthur L. Frank, Robert J. Harrison, Ronald Melnick, Lee Newman, Stephen M. Rappaport, David Joseph Ross, and Janet Weiss, all without disclosing conflicts of interest).

[6] Milward v. Acuity Specialty Products Group, Inc., 664 F. Supp. 2d 137, 148 (D.Mass. 2009), rev’d, 639 F.3d 11 (1st Cir. 2011), cert. den. sub nom. U.S. Steel Corp. v. Milward, 565 U.S. 1111 (2012), on remand, Milward v. Acuity Specialty Products Group, Inc., 969 F.Supp. 2d 101 (D.Mass. 2013) (excluding specific causation opinions as invalid; granting summary judgment), aff’d, 820 F.3d 469 (1st Cir. 2016).

[7] NAS, “The Council for Education & Research on Toxics” (July 9, 2013) (CERT amicus brief filed without any disclosure of conflict of interest). The fellow travelers who knowingly or unknowingly aided CERT’s scheme to pervert the course of justice, included some well-known testifiers for the lawsuit industry: Nicholas A. Ashford, Nachman Brautbar, David C. Christiani, Richard W. Clapp, James Dahlgren, Devra Lee Davis, Malin Roy Dollinger, Brian G. Durie, David A. Eastmond, Arthur L. Frank, Frank H. Gardner, Peter L. Greenberg, Robert J. Harrison, Peter F. Infante, Philip J. Landrigan, Barry S. Levy, Melissa A. McDiarmid, Myron Mehlman, Ronald L. Melnick, Mark Nicas, David Ozonoff, Stephen M. Rappaport, David Rosner, Allan H. Smith, Daniel Thau Teitelbaum, Janet Weiss, and Luoping Zhang. See also NAS, “Carl Cranor’s Conflicted Jeremiad Against Daubert” (Sept. 23, 2018); Carl Cranor, “Milward v. Acuity Specialty Products: How the First Circuit Opened Courthouse Doors for Wronged Parties to Present Wider Range of Scientific Evidence” (July 25, 2011).

Posted in Causation, Public Nuisances, Toxicological Evidence | Comments Off on California Roasts Fear-Mongering Industry

History of Silicosis Litigation

January 31st, 2019

“Now, Silicosis, you’re a dirty robber and a thief;
Yes, silicosis, you’re a dirty robber and a thief;
Robbed me of my right to live,
and all you brought poor me is grief.
I was there diggin’ that tunnel for just six bits a day;
I was diggin’ that tunnel for just six bits a day;
Didn’t know I was diggin’ my own grave,
Silicosis was eatin’ my lungs away.”

Josh White, “Silicosis Is Killin’ Me (Silicosis Blues)” (1936)

Recently, David Rosner, labor historian, social justice warrior, and expert witness for the litigation industry, gave the Fielding H. Garrison Lecture, in which he argued for the importance of the work that he and his comrade-in-arms, Gerald Markowitz, have done as historian expert witnesses in tort cases.¹ Although I am of course grateful for the shout out that Professor Rosner gives me,² I am still obligated to call him on the short-comings of his account of silicosis litigation.³ Under the rubric of “the contentious struggle to define disease,” Rosner presents a tendentious account of silicosis litigation, which is highly misleading, for what it says, and in particular, for it omits.

For Rosner’s self-congratulatory view of his own role in silicosis litigation to make sense, we must imagine a counterfactual world that is the center piece of his historical narrative in which silicosis remains the scourge of the American worker, and manufacturing industry is engaged in a perpetual cover up.

Rosner’s fabulistic account of silicosis litigation and his role in it falls apart under even mild scrutiny. The hazards of silica exposure were known to Josh White and the entire country in 1936. Some silicosis litigation arose in the 1930s against employers, but plaintiffs were clearly hampered by tort doctrines of assumption of risk, contributory negligence, the fellow-servant rule. To my knowledge, there were no litigation claims against remote suppliers of silica before the late 1970s, when courts started to experiment with hyperstrict liability rules.

Eventually, the litigation industry, buoyed by its successes against asbestos-product manufacturers turned their attention to silica sand suppliers to foundries and other industrial users. Liability claims against remote suppliers of a natural raw material such as silica sand, however, made no sense in terms of the rationales of tort law. There was no disparity of information between customer and supplier; the customer, plaintiffs’ employer was not only the cheapest and most efficient cost and risk avoider, the employer was the only party that could control the risk. Workers and their unions were well aware of the hazards of working in uncontrolled silica-laden workplaces.

Although employer compliance with safety and health regulations for silica exposure has never been perfect, the problem of rampant acute silicosis, such as what afflicted the tunnel workers memorialized by Josh White, is a thing of the past in the United States. The control of silica exposures and the elimination of silicosis are rightly claimed to be one of the great public health achievements of the 20^th century. See Centers Disease Control, “Ten Great Public Health Achievements — United States, 1900-1999,” 48 Morbidity & Mortality Weekly Report 241 (April 02, 1999).

Interestingly, after World War II, silicosis has been a much greater problem in the communist countries, such as China, the countries that made up the Soviet Union. Rosner and Markowitz, however, like the leftist intellectuals of the 1950s who could not bring themselves to criticize Stalin, seem blind to the sorry state of workplace safety in communist countries. Their blindness vitiates their historical project, which attempts to reduce occupational diseases and other workplace hazards to the excesses of corporate capitalism. A fair comparison with non-capitalist systems would reveal that silicosis results from many motives and conditions, including inattention, apathy, carelessness, concern with productivity, party goals, and labor-management rivalries. In the case of silicosis, ignorance of the hazards of silica is the least likely explanation for silicosis cases arising out of workplace exposures after the mid-1930s.

In the United States, silicosis litigation has been infused with fraud and deception, not by the defendants, but by the litigation industry that creates lawsuits. Absent from Rosner’s historical narratives is any mention of the frauds that have led to dismissals of thousands of cases, and the professional defrocking of any number of physician witnesses. In re Silica Products Liab. Litig., MDL No. 1553, 398 F.Supp. 2d 563 (S.D.Tex. 2005).

Nor does Rosner deign to discuss the ethical and legal breaches committed by the plaintiffs’ counsel in conducting radiographic screenings of workers, in the hopes of creating lawsuits. With the help of unscrupulous physicians, these screenings were unnaturally successful not only in detecting silicosis that did not exist, but in some cases, in transmuting real asbestosis into silicosis.⁴

Many silicosis cases in recent times were accompanied by more subtle frauds, which turned on the “failure-to-warn” rhetoric implicit in the Restatement (Second) of Torts § 402A. Consider the outbreak of silicosis litigation in western Pennsylvania, in the mid-1980s. Many of the men who claimed to have silicosis had significant silica exposure at the Bethlehem and U.S. Steel foundries in the Johnstown areas. Some of the claimants actually had simple silicosis, although discovery of these claimants’ workplace records revealed that they had been non-compliant with workplace safety rules.

The Johnstown, Cambria County, cases were not the result of unlawful medical screenings, paid for by plaintiffs’ lawyers and conducted by physicians of dubious integrity and medical acumen. Instead, the plaintiffs’ lawyers found their claimants as a result of the claimants’ having had previous workers’ compensation claims for silicosis, which resulted after the workers were diagnosed by employer medical screening programs.

Cambria County Courthouse in Ebensburg, PA (venue for an outbreak of silicosis litigation in the 1980s and early 1990s⁵)

The first of the foundrymen’s cases was set for trial in 1989, 30 years ago, in Cambria County, Pennsylvania. The silica cases were on the docket of the President Judge, the Hon. Joseph O’Kicki, who turned out to be less than honorable. Just before the first silica trial, Judge O’Kicki was arrested on charges of corruption, as well as lewdness (for calling in his female staff while lounging in chambers in his panties).

As a result of O’Kicki’s arrest, the only Cambria Country trial we saw in 1989 was the criminal trial of Judge O’Kicki, in Northampton County. In April 1989, a jury found O’Kicki guilty of bribery and corruption, although it acquitted him on charges of lewdness.⁶ Facing a sentence of over 25 years, and a second trial on additional charges, O’Kicki returned to the land of his forebears, Slovenia, where he lived out his days and contributed to the surplus population.⁷

Whatever schadenfreude experienced by the defendants in the Cambria County silicosis litigation was quickly dispelled by the assignment of the silica cases to the Hon. Eugene Creany, who proved to be an active partisan for the plaintiffs’ cause. Faced with a large backlog of cases created by the rapacious filings of the Pittsburgh plaintiffs’ lawfirms, and Judge O’Kicki’s furlough from judicial service, Judge Creany devised various abridgements of due process, the first of which was to consolidate cases. As a result, the first case up in 1990 was actually three individual cases “clustered” for a single jury trial: Harmotta, Phillips, and Peterson.⁸ To poke due process in both eyes, Judge Creany made sure that one of the “clustered” cases was a death case (Peterson).

Jury selection started in earnest on April 2, 1990, with opening statements set for April 4. In between, the defense made the first of its many motions for mistrial, when defense lawyers observed one of the plaintiffs, Mr. Phillips, having breakfast with some of the jurors in the courthouse cafeteria. Judge Creany did not seem to think that this pre-game confabulation was exceptional, and admonished the defense that folks in Cambria County are just friendly, but they are fair. Trial slogged on for four weeks, with new abridgments of due process almost every day, such as forcing defendants, with adverse interests and positions, into having one direct- and one cross-examination of each witness. The last motion for mistrial was provoked by Judge Creany’s walking into the jury room during its deliberations, to deliver doughnuts.

At the end of the day, in May 1990, the jury proved to be much fairer than the trial judge. Judge Creany instructed the jury that “silica was the defect,” and on other novel points of law. Led by its foreman, a union organizer for the United Mine Workers, the jury returned a defense verdict in the Peterson case, which involved a claim that Mr. Peterson’s heart attack death case was caused by his underlying silicosis. In the two living plaintiffs’ cases, the jury found that the men had knowingly assumed the risk of silicosis, but at the judge’s insistence, the jury proceeded to address defendants’ liability, and to assess damages, in the amount of $22,500, in the two cases.

Pennsylvania’s appellate courts took a dim view of plaintiffs’ efforts to hold remote silica suppliers responsible for silicosis arising out of employment by large, sophisticated steel manufacturers. The Superior Court, Pennsylvania’s intermediate appellate court, reversed and remanded both plaintiffs’ verdicts. In Mr. Harmotta’s case, the court held that his action was collaterally estopped by a previous workman’s compensation judge’s finding that he did not have silicosis. In Mr. Phillip’s case, the court addressed the ultimate issue, whether a remote supplier to a sophisticated intermediary can be liable for silicosis that resulted from the intermediary’s employment and use of the supplied raw material. In what was a typical factual scenario of supply of silica to foundry employers, the Superior Court held that there was no strict or negligence liability for the employees’ silicosis.⁹ The Pennsylvania Supreme Court declined to hear Harmotta’s appeal on collateral estoppels, but heard an appeal in Phillips’ case. The Supreme Court pulled back from the sophisticated intermediary rationale for reversal, and placed its holding instead on the obvious lack of proximate cause between the alleged failure to warn and the claimed harm, given the jury’s special finding of assumed risk.¹⁰

One of plaintiffs’ counsel’s principal arguments, aimed at the union organizer on the jury, was that even if a warning to the individual plaintiffs might not have changed their behavior, a warning to the union would have been effective. The case law involving claims against unions for failing to warn have largely exculpated unions and taken them out of the warning loop. Given this case law, plaintiffs’ argument was puzzling, but the puzzlement turned to outrage when we learned after the first trial that Judge Creany had been a union solicitor, in which role, he had regularly written to U.S. Steel in Johnstown, to notify the employer when one of the local union members had been diagnosed with silicosis.

The next natural step seemed to list Judge Creany as a percipient fact witness to the pervasive knowledge of silicosis among the workforce and especially among the union leadership. Judge Creany did not take kindly to being listed as a fact witness, or being identified in voire dire as a potential witness. Still, the big lie about failure to warn and worker and labor union ignorance had been uncovered. Judge Creany started to delegate trials to other judges in the courthouse and to bring judges in from neighboring counties. The defense went on win the next dozen or so cases, before the plaintiffs’ lawyers gave up on their misbegotten enterprise of trying to use Pennsylvania’s hyperstrict liability rules to make remote silica suppliers pay for the fault of workers and their employers.

You won’t find any mention of the Cambria County saga in Rosner or Markowitz’s glorified accounts of silicosis litigation. The widespread unlawful screenings, the “double dipping” by asbestos claimants seeking a second paycheck for fabricated silicosis, the manufactured diagnoses and product identification do not rent space in Rosner and Markowitz’s fantastical histories.

1 David Rosner, “Trying Times: The Courts, the Historian, and the Contentious Struggle to Define Disease,” 91 Bull. Hist. Med. 471 (2017).

2 See, e.g., 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); 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); “Succès de scandale – With Thanks to Rosner & Markowitz” (Mar. 26, 2017). And of course, I have experienced some schadenfreude for when one of the Pink Panthers was excluded in a 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 “Trying Times” is the sixth Rosnowitz publication to point to me as a source of criticism of the Rosner-Markowitz radical leftist history of silicosis in the United States. See David Rosner, “Trying Times: The Courts, the Historian, and the Contentious Struggle to Define Disease,” 91 Bull. History Med. 473, 491-92 & n.32 (2017); Previously, Rosner and Markowitz have attempted to call me out in four published articles and one book. 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); and Gerald Markowitz and David Rosner, Deceit and Denial: The Deadly Politics of Industrial Pollution at 313-14 (U. Calif. rev. ed. 2013).

4 Nathan A. Schachtman, “State Regulators Impose Sanction Unlawful Screenings 05-25-07,” Washington Legal Foundation Legal Opinion Letter, vol. 17, no. 13 (May 2007); “Silica Litigation – Screening, Scheming, and Suing,” Washington Legal Foundation Critical Legal Issues Working Paper (December 2005); “Medico-Legal Issues in Occupational Lung Disease Litigation,” 27 Seminars in Roentgenology140 (1992).

5 by Publichall – own work, CC BY-SA 3.0.

6 Assoc’d Press, “Pennsylvania County Judge Guilty of Corruption,” (April 18, 1989).

7 U.P.I., “Facing Prison, Convicted Judge Skips Bail,” (Mar. 8, 1993); “Judge O’kicki Declared Fugitive; May Be In Slovenia,” The Morning Call (April 20, 1993).

8 Harmotta v. Walter C. Best, Inc., Cambria Cty. Ct. C.P. No. 1986-128; Phillips v. Walter C. Best, Inc., Cambria Cty. Ct. C.P. No. 1987-434(b)(10); Peterson v. Walter C. Best, Inc., Cambria Cty. Ct. C.P. No. 1986-678.

9 Phillips v. A.P. Green Co., 428 Pa. Super. 167, 630 A.2d 874 (1993).

10 Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167 (1995).

Posted in Historian Testimony, Public Nuisances, Silica, Sophisticated User | Comments Off on History of Silicosis Litigation

Carl Cranor’s Conflicted Jeremiad Against Daubert

September 23rd, 2018

Carl Cranor’s Conflicted Jeremiad Against Daubert

It seems that authors who have the most intense and refractory conflicts of interest (COI) often fail to see their own conflicts and are the most vociferous critics of others for failing to identify COIs. Consider the spectacle of having anti-tobacco activists and tobacco plaintiffs’ expert witnesses assert that the American Law Institute had an ethical problem because Institute members included some tobacco defense lawyers.¹ Somehow these authors overlooked their own positional and financial conflicts, as well as the obvious fact that the Institute’s members included some tobacco plaintiffs’ lawyers as well. Still, the complaint was instructive because it typifies the abuse of ethical asymmetrical standards, as well as ethical blindspots.²

Recently, Raymond Richard Neutra, Carl F. Cranor, and David Gee published a paper on the litigation use of Sir Austin Bradford Hill’s considerations for evaluating whether an association is causal or not.³ See Raymond Richard Neutra, Carl F. Cranor, and David Gee, “The Use and Misuse of Bradford Hill in U.S. Tort Law,” 58 Jurimetrics 127 (2018) [cited here as Cranor]. Their paper provides a startling example of hypocritical and asymmetrical assertions of conflicts of interests.

Neutra is a self-styled public health advocate⁴ and the Chief of the Division of Environmental and Occupational Disease Control (DEODC) of the California Department of Health Services (CDHS). David Gee, not to be confused with the English artist or the Australian coin forger, is with the European Environment Agency, in Copenhagen, Denmark. He is perhaps best known for his precautionary principle advocacy and his work with trade unions.⁵

Carl Cranor is with the Center for Progressive Reform, and he teaches philosophy at one of the University of California campuses. Although he is neither a lawyer nor a scientist, he participates with some frequency as a consultant, and as an expert witness, in lawsuits, on behalf of claimants. Perhaps Cranor’s most notorious appearance as an expert witness resulted in the decision of Milward v. Acuity Specialty Products Group, Inc., 639 F.3d 11 (1st Cir. 2011), cert. denied sub nom., U.S. Steel Corp. v. Milward, 132 S. Ct. 1002 (2012). Probably less generally known is that Cranor was one of the founders of an organization, the Council for Education and Research on Toxics (CERT), which recently was the complaining party in a California case in which CERT sought money damages for Starbucks’ failure to label each cup of coffee sold as known to the State of California as causing cancer.⁶ Having a so-called not-for-profit corporation can also be pretty handy, especially when it holds itself out as a scientific organization and files amicus briefs in support of reversing Daubert exclusions of the founding members of the corporation, as CERT did on behalf of its founding member in the Milward case.⁷ The conflict of interest, in such an amicus brief, however, is no longer potential or subtle, and violates the duty of candor to the court.

In this recent article on Hill’s considerations for judging causality, Cranor followed CERT’s lead from Milward. Cranor failed to disclose that he has been a party expert witness for plaintiffs, in cases in which he was advocating many of the same positions put forward in the Jurimetrics article, including the Milward case, in which he was excluded from testifying by the trial court. Cranor’s lack of candor with the readers of the Jurimetrics article is all the more remarkable in that Cranor and his co-authors give conflicts of interest outsize importance in substantive interpretations of scholarship:

“the desired reliability for evidence evaluation requires that biases that derive from the financial interests and ideological commitments of the investigators and editors that control the gateways to publication be considered in a way that Hill did not address.”

Cranor at 137 & n.59. Well, we could add that Cranor’s financial interests and ideological commitments might well be considered in evaluating the reliability of the opinions and positions advanced in this most recent work by Cranor and colleagues. If you believe that COIs disqualify a speaker from addressing important issues, then you have all the reason you need to avoid reading Cranor’s recent article.

Dubious Scholarship

The more serious problem with Cranor’s article is not his ethically strained pronouncements about financial interests, but the dubious scholarship he and his colleagues advance to thwart judicial gatekeeping of even more dubious expert witness opinion testimony. To begin with, the authors disparage the training and abilities of federal judges to assess the epistemic warrant and reliability of proffered causation opinions:

“With their enhanced duties to review scientific and technical testimony federal judges, typically not well prepared by legal education for these tasks, have struggled to assess the scientific support for—and the reliability and relevance of—expert testimony.”

Cranor at 147. Their assessment is fair but hides the authors’ cynical agenda to remove gatekeeping and leave the assessment to lay juries, who are less well prepared for the task, and whose function ensures no institutional accountability, review, or public evaluation.

Similarly, the authors note the temporal context and limitations of Bradford Hill’s 1965 paper, which date and limit the advice provided over 50 years ago in a discipline that has changed dramatically with the advancement of biological, epidemiologic, and genetic science.⁸ Even at the time of its original publication in 1965, Bradford Hill’s paper, which was based upon an informal lecture, was not designed or intended to be a definitive treatment of causal inference. Cranor and his colleagues make no effort to review Bradford Hill’s many other publications, both before and after his 1965 dinner speech, for evidence of his views on the factors for causal inference, including the role of statistical testing and inference.

Nonetheless, Bradford Hill’s 1965 paper has become a landmark, even if dated, because of its author’s iconic status in the world of public health, earned for his showing that tobacco smoking causes lung cancer,⁹ and for advancing the role of double-blind randomized clinical trials.¹⁰ Cranor and his colleagues made no serious effort to engage with the large body of Bradford Hill’s writings, including his immensely important textbook, The Principles of Medical Statistics, which started as a series of articles in The Lancet, and went through 12 editions in print.¹¹Hill’s reputation will no doubt survive Cranor’s bowdlerized version of Sir Austin’s views.

Epidemiology is Dispensable When It Fails to Support Causal Claims

The egregious aspect of Cranor’s article is its bill of particulars against the federal judiciary for allegedly errant gatekeeping, which for these authors translates really into any gatekeeping at all. Cranor at 144-45. Indeed, the authors provide not a single example of what was a “proper” exclusion of an expert witness, who was contending for some doubtful causal claim. Perhaps they have never seen a proper exclusion, but doesn’t that speak volumes about their agenda and their biases?

High on the authors’ list of claimed gatekeeping errors is the requirement that a causal claim be supported with epidemiologic evidence. Although some causal claims may be supported by strong evidence of a biological process with mechanistic evidence, such claims are not common in United States tort litigation.

In support of the claim that epidemiology is dispensable, Cranor suggests that:

“Some courts have recognized this, and distinguished scientific committees often do not require epidemiological studies to infer harm to humans. For example, the International Agency for Research on Cancer (IRAC) [sic], the National Toxicology Program, and California’s Proposition 65 Scientific Advisory Panel, among others, do not require epidemiological data to support findings that a substance is a probable or—in some cases—a known human carcinogen, but it is welcomed if available.”

Cranor at 149. California’s Proposition 65!??? Even IARC is hard to take seriously these days with its capture by consultants for the litigation industry, but if we were to accept IARC as an honest broker of causal inferences, what substance “known” to IARC to cause cancer in humans (Category I) was branded as a “known carcinogen” without the support of epidemiologic studies? Inquiring minds might want to know, but they will not learn the answer from Cranor and his co-authors.

When it comes to adverting to legal decisions that supposedly support the authors’ claim that epidemiology is unnecessary, their scholarship is equally wanting. The paper cites the notorious Wells case, which was so roundly condemned in scientific circles, that it probably helped ensure that a decision such as Daubert would ultimately be handed down by the Supreme Court. The authors seemingly cannot read, understand, and interpret even the most straightforward legal decisions. Here is how they cite Wells as support for their views:

“Wells v. Ortho Pharm. Corp., 788 F.2d 741, 745 (11th Cir. 1986) (reviewing a district court’s decision deciding not to require the use of epidemiological evidence and instead allowing expert testimony).”

Cranor at 149-50 n.122. The trial judge in Wells never made such a decision; indeed, the case was tried by the bench, before the Supreme Court decided Daubert. There was no gatekeeping involved at all. More important, however, and contrary to Cranor’s explanatory parenthetical, both sides presented epidemiologic evidence in support of their positions.¹²

Cranor and his co-authors similarly misread and misrepresent the trial court’s decision in the litigation over maternal sertraline use and infant birth defects. Twice they cite the Multi-District Litigation trial court’s decision that excluded plaintiffs’ expert witnesses:

“In re Zoloft (Sertraline Hydrochloride) Prods. Liab. Litig., 26 F. Supp. 3d 449, 455 (E.D. Pa. 2014) (expert may not rely on nonstatistically significant studies to which to apply the [Bradford Hill] factors).”

Cranor at 144 n.85; 158 n.179. The MDL judge, Judge Rufe, decidedly never held that an expert witness may not rely upon a statistically non-significant study in a “Bradford Hill” analysis, and the Third Circuit, which affirmed the exclusions of the plaintiffs’ expert witnesses’ testimony, was equally clear in avoiding the making of such a pronouncement.¹³

Who Needs Statistical Significance

Part of Cranor’s post-science agenda is to intimidate judges into believing that statistical significance is unnecessary and a wrong-headed criterion for judging the validity of relied upon research. In their article, Cranor and friends suggest that Hill agreed with their radical approach, but nothing could be further from the truth. Although these authors parse almost every word of Hill’s 1965 article, they conveniently omit Hill’s views about the necessary predicates for applying his nine considerations for causal inference:

“Disregarding then any such problem in semantics we have this situation. Our observations reveal an association between two variables, perfectly clear-cut and beyond what we would care to attribute to the play of chance. What aspects of that association should we especially consider before deciding that the most likely interpretation of it is causation?”

Austin Bradford Hill, “The Environment and Disease: Association or Causation?” 58 Proc. Royal Soc’y Med. 295, 295 (1965). Cranor’s radicalism leaves no room for assessing whether a putative association is “beyond what we would care to attribute to the play of chance,” and his poor scholarship ignores Hill’s insistence that this statistical analysis be carried out.¹⁴

Hill’s work certainly acknowledged the limitations of statistical method, which could not compensate for poorly designed research:

“It is a serious mistake to rely upon the statistical method to eliminate disturbing factors at the completion of the work. No statistical method can compensate for a badly planned experiment.”

Austin Bradford Hill, Principles of Medical Statistics at 4 (4th ed. 1948). Hill was equally clear, however, that the limits on statistical methods did not imply that statistical methods are not needed to interpret a properly planned experiment or study. In the summary section of his textbook’s first chapter, Hill removed any doubt about his view of the importance, and the necessity, of statistical methods:

“The statistical method is required in the interpretation of figures which are at the mercy of numerous influences, and its object is to determine whether individual influences can be isolated and their effects measured.”

Id. at 10 (emphasis added).

In his efforts to eliminate judicial gatekeeping of expert witness testimony, Cranor has struggled with understanding of statistical inference and testing.¹⁵ In an early writing, a 1993 book, Cranor suggests that we “can think of type I and II error rates as “standards of proof,” which begs the question whether they are appropriately used to assess significance or posterior probabilities.¹⁶ Indeed, Cranor goes further, in confusing significance and posterior probabilities, when he described the usual level of alpha (5%) as the “95%” rule, and claimed that regulatory agencies require something akin to proof “beyond a reasonable doubt,” when they require two “statistically significant” studies.¹⁷

Cranor has persisted in this fallacious analysis in his writings. In a 2006 book, he erroneously equated the 95% coefficient of statistical confidence with 95% certainty of knowledge.¹⁸ Later in this same text, Cranor again asserted his nonsense that agency regulations are written when supported by “beyond a reasonable doubt.”¹⁹ Given that Cranor has consistently confused significance and posterior probability, he really should not be giving advice to anyone about statistical or scientific inference. Cranor’s persistent misunderstandings of basic statistical concepts do, however, explain his motivation for advocating the elimination of statistical significance testing, even if these misunderstandings make his enterprise intellectually unacceptable.

Cranor and company fall into a similar muddle when they offer advice on post-hoc power calculations, which advice ignores standard statistical learning for interpreting completed studies.²⁰ Another measure of the authors’ failed scholarship is their omission of any discussion of recent efforts by many in the scientific community to lower the threshold for statistical significance, based upon the belief that the customary 5% p-value is an order of magnitude too high.²¹

Relative Risks Greater Than Two

There are other tendentious arguments and treatments in Cranor’s brief against gatekeeping, but I will stop with one last example. The inference of specific causation from study risk ratios has provoked a torrent of verbiage from Sander Greenland (who is cited copiously by Cranor). Cranor, however, does not even scratch the surface of the issue and fails to cite the work of epidemiologists, such as Duncan C. Thomas, who have defended the use of probabilities of (specific) causation. More important, however, Cranor fails to speak out against the abuse of using any relative risk greater than 1.0 to support an inference of specific causation, when the nature of the causal relationship is neither necessary nor sufficient. In this context, Kenneth Rothman has reminded us that someone can be exposed to, or have, a risk, and then develop the related outcome, without there being any specific causation:

“An elementary but essential principle to keep in mind is that a person may be exposed to an agent and then develop disease without there being any causal connection between the exposure and the disease. For this reason, we cannot consider the incidence proportion or the incidence rate among exposed people to measure a causal effect.”

Kenneth J. Rothman, Epidemiology: An Introduction at 57 (2d ed. 2012).

The danger in Cranor’s article in Jurimetrics is that some readers will not realize the extreme partisanship in its ipse dixit, and erroneous, pronouncements. Caveat lector!

1 Elizabeth Laposata, Richard Barnes & Stanton Glantz, “Tobacco Industry Influence on the American Law Institute’s Restatements of Torts and Implications for Its Conflict of Interest Policies,” 98 Iowa L. Rev. 1 (2012).

2 The American Law Institute responded briefly. See Roberta Cooper Ramo & Lance Liebman, “The ALI’s Response to the Center for Tobacco Control Research & Education,” 98 Iowa L. Rev. Bull. 1 (2013), and the original authors’ self-serving last word. Elizabeth Laposata, Richard Barnes & Stanton Glantz, “The ALI Needs to Implement Modern Conflict of Interest Policies,” 98 Iowa L. Rev. Bull. 17 (2013).

3 Austin Bradford Hill, “The Environment and Disease: Association or Causation?” 58 Proc. Royal Soc’y Med. 295 (1965).

4 Raymond Richard Neutra, “Epidemiology Differs from Public Health Practice,” 7 Epidemiology 559 (1996).

5 See “Late Lessons from Early Warnings: The Precautionary Principle 1896-2000, a Conversation with David Gee” (2009).

6 Michael Waters, “The Secretive Non-Profit Gaming California’s Health Laws: The Council for Education and Research on Toxics has won million-dollar settlements using a controversial public health law,” The Outline (June 18, 2018).

7 “From Here to CERT-ainty” (June 28, 2018).

8 Kristen Fedak, Autumn Bernal, Zachary Capshaw, and Sherilyn A Gross, “Applying the Bradford Hill Criteria in the 21^st Century: How Data Integration Has Changed Causal Inference in Molecular Epidemiology,” Emerging Themes in Epidemiol. 12:14 (2015); John P. A. Ioannides, “Exposure Wide Epidemiology, Revisiting Bradford Hill,” 35 Stats. Med. 1749 (2016).

9 Richard Doll & Austin Bradford Hill, “Smoking and Carcinoma of the Lung,” 2(4682) Brit. Med. J. (1950).

10 Geoffrey Marshall (chairman), “Streptomycin Treatment of Pulmonary Tuberculosis: A Medical Research Council Investigation,” 2 Brit. Med. J. 769, 769–71 (1948).

11 Vern Farewell & Anthony Johnson, “The origins of Austin Bradford Hill’s classic textbook of medical statistics,” 105 J. Royal Soc’y Med. 483 (2012). See also Hilary E. Tillett, “Bradford Hill’s Principles of Medical Statistics,” 108 Epidemiol. Infect. 559 (1992).

12 See “Wells v. Ortho Pharmaceutical Corp. Reconsidered – Part 1”; “Wells v. Ortho Pharmaceutical Corp. Reconsidered – Part 2”; “Wells v. Ortho Pharmaceutical Corp. Reconsidered – Part 3”; “Wells v. Ortho Pharmaceutical Corp. Reconsidered – Part 4”; “Wells v. Ortho Pharmaceutical Corp. Reconsidered – Part 5”; “Wells v. Ortho Pharmaceutical Corp. Reconsidered – Part 6.”

13 In re Zoloft Prod. Liab. Litig., No. 16-2247 , __ F.3d __, 2017 WL 2385279, 2017 U.S. App. LEXIS 9832 (3d Cir. June 2, 2017) (affirming exclusion of biostatistician Nichols Jewell’s dodgy opinions, which involved multiple methodological flaws and failures to follow any methodology faithfully).

14 See “Bradford Hill on Statistical Methods” (Sept. 24, 2013).

15 “Rhetorical Strategy in Characterizing Scientific Burdens of Proof” (Nov. 15, 2014).

16 Carl F. Cranor, Regulating Toxic Substances: A Philosophy of Science and the Law at 33-34 (1993) (arguing incorrectly that one can think of α, β (the chances of type I and type II errors, respectively and 1- β as measures of the “risk of error” or “standards of proof.”); see also id. at 44, 47, 55, 72-76. At least one astute reviewer called Cranor on his statistical solecisms. Michael D. Green, “Science Is to Law as the Burden of Proof is to Significance Testing: Book Review of Cranor, Regulating Toxic Substances: A Philosophy of Science and the Law,” 37 Jurimetrics J. 205 (1997) (taking Cranor to task for confusing significance and posterior (burden of proof) probabilities).

17 Id. (squaring 0.05 to arrive at “the chances of two such rare events occurring” as 0.0025, which impermissibly assumes independence between the two studies).

18 Carl F. Cranor, Toxic Torts: Science, Law, and the Possibility of Justice 100 (2006) (incorrectly asserting that “[t]he practice of setting α =.05 I call the “95% rule,” for researchers want to be 95% certain that when knowledge is gained [a study shows new results] and the null hypothesis is rejected, it is correctly rejected.”).

19 Id. at 266.

20 See “Failed Gatekeeping in Ambrosini v. Labarraque (1996)” (Dec. 28, 2017).

21 See, e.g., John P. A. Ioannidis, “The Proposal to Lower P Value Thresholds to .005,” 319 J. Am. Med. Ass’n 1429 (2018); Daniel J. Benjamin, James O. Berger, Valen E. Johnson, et al., “Redefine statistical significance,” 2 Nature Human Behavior 6 (2018).

Posted in Causation, Conflicts of Interest, Public Nuisances, Rule 702, Scientific Evidence, statistical evidence | Comments Off on Carl Cranor’s Conflicted Jeremiad Against Daubert

The Expert Witness Who Put God on His Reference List

August 28th, 2018

“And you never ask questions
When God’s on your side”

Bob Dylan, “With God on Our Side” 1963.

Cases involving claims of personal injury have inspired some of the most dubious scientific studies in the so-called medical literature, but the flights of fancy in published papers are nothing compared with what is recorded in the annals of expert witness testimony. The weaker the medical claims, the more outlandish is the expert testimony proffered. Claims for personal injury supposedly resulting from mold exposure are no exception to the general rule. The expert witness opinion testimony in mold litigation has resulted in several commentaries¹ and professional position papers,² offered to curb the apparent excesses.

Ritchie Shoemaker, M.D., has been a regular expert witness for the mold lawsuit industry. Professional criticism has not deterred Shoemaker, although discerning courts have put the kibosh on some of Shoemaker’s testimonial adventures.³

Shoemaker cannot be everywhere, and so in conjunction with the mold lawsuit industry, Shoemaker has taken to certifying new expert witnesses. But how will Shoemaker and his protégées overcome the critical judicial reception?

Enter Divine Intervention

“Make thee an ark of gopher wood; rooms shalt thou make in the ark, and shalt pitch it within and without with pitch.⁴”

Some say the age of prophets, burning bushes, and the like is over, but perhaps not so. Maybe God speaks to expert witnesses to fill in the voids left by missing evidence. Consider the testimony of Dr. Scott W. McMahon, who recently testified that he was Shoemaker trained, and divinely inspired:

Q. Jumping around a little bit, Doctor, how did your interest in indoor environmental quality in general, and mold in particular, how did that come about?

A. I had — in 2009, I had been asked to give a talk at a medical society at the end of October and the people who were involved in it were harassing me almost on a weekly basis asking me what the title of my talk was going to be. I had spoken to the same society the previous four years. I had no idea what I was going to speak about. I am a man of faith, I’ve been a pastor and a missionary and other things, so I prayed about it and what I heard in my head verbatim was pediatric mold exposure colon the next great epidemic question mark. That’s what I heard in my head. And so because I try to live by faith, I typed that up as an email and said this is the name of my topic. And then I said, okay, God, you have ten weeks to teach me about this, and he did. Within three, four weeks maybe five, he had connected me to Dr. Shoemaker who was the leading person in the world at that time and the discoverer of this chronic inflammatory response.

*****

I am a man of faith, I’ve been a pastor and everything. And I realized that this was a real entity.

*****

Q. And do you attribute your decision or the decision for you to start Whole World Health Care also to be a divine intervention?

A. Well, that certainly started the process but I used my brain, too. Like I said, I went and I investigated Dr. Shoemaker, I wanted to make sure that his methods were real, that he wasn’t doing, you know, some sort of voodoo medicine and I saw that he wasn’t, that his scientific practice was standard. I mean, he changes one variable at a time in tests. He tested every step of the way. And I found that his conclusions were realistic. And then, you know, over the last few years, I’ve 1 gathered my own data and I see that they confirm almost every one of his conclusions.

Q. Doctor, was there anything in your past or anything dealing with your family in terms of exposure to mold or other indoor health issues?

A. No, it was totally off my radar.

Q. *** I’m not going to go into great detail with respect to Dr. Shoemaker, but are you Shoemaker certified?

A. I am.

Deposition transcript of Dr. Scott W. McMahon, at pp.46-49, in Courcelle v. C.W. Nola Properties LLC, Orleans Parish, Louisiana No. 15-3870, Sec. 7, Div. F. (May 18, 2018).

You may be surprised that the examining lawyer did not ask about the voice in which God spoke. The examining lawyer seems to have accepted without further question that the voice was that of an adult male voice. Still did the God entity speak in English, or in tongues? Was it a deep, resonant voice like Morgan Freeman’s in Bruce Almighty (2003)? Or was it a Yiddische voice like George Burns, in Oh God (1977)? Were there bushes burning when God spoke to McMahon? Or did the toast burn darker than expected?

Some might think that McMahon was impudent if not outright blasphemous for telling God that “He” had 10 weeks in which to instruct McMahon in the nuances of how mold causes human illness. Apparently, God was not bothered by this presumptuousness and complied with McMahon, which makes McMahon a special sort of prophet.

Of course, McMahon says he used his “brain,” in addition to following God’s instructions. But really why bother? Were there evidentiary or inferential gaps filled in by the Lord? The deposition does not address this issue.

In federal court, and in many state courts, an expert witness may base opinions on facts or data that are not admissible if, and only if, expert witnesses “in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.⁵”

Have other expert witnesses claimed divine inspiration for opinion testimony? A quick Pubmed search does not reveal any papers by God, or papers with God as someone’s Co-Author. It is only a matter of time, however, before a judge, some where, takes judicial notice of divinely inspired expert witness testimony.

1 See, e.g., Howard M. Weiner, Ronald E. Gots, and Robert P. Hein, “Medical Causation and Expert Testimony: Allergists at this Intersection of Medicine and Law,” 12 Curr. Allergy Asthma Rep. 590 (2012).

2 See, e.g., Bryan D. Hardin, Bruce J. Kelman, and Andrew Saxon, “ACOEM Evidence-Based Statement: Adverse Human Health Effects Associated with Molds in the Indoor Environment,” 45 J. Occup. & Envt’l Med. 470 (2003).

3 See, e.g., Chesson v. Montgomery Mutual Insur. Co., 434 Md. 346, 75 A.3d 932, 2013 WL 5311126 (2013) (“Dr. Shoemaker’s technique, which reflects a dearth of scientific methodology, as well as his causal theory, therefore, are not shown to be generally accepted in the relevant scientific community.”); Young v. Burton, 567 F. Supp. 2d 121, 130-31 (D.D.C. 2008) (excluding Dr. Shoemaker’s theories as lacking general acceptance and reliability; listing Virginia, Florida, and Alabama as states in which courts have rejected Shoemaker’s theory).

4 Genesis 6:14 (King James translation).

5 Federal Rule of Evidence. Bases of an Expert.

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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 (1^st 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 Members, 40 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’.”).

3 See California Cancer Facts and Figures 2017.

4 Birth Defects State Profile – California (2012).

5 Sara Randazzo, “In California, Where Cancer Warnings Abound, Coffee Is Next in Line; Judge is expected to rule whether 1986 state law, meant to warn of potential harms, applies to coffee,” Wall St. J. (Jan. 24, 2018).

6 Anastasia Killian, “Prop 65 Has its Perks for Plaintiffs’ Lawyers in Coffee Litigation,” Forbes (Oct. 10, 2012); Report of California Attorney General for 2011.

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).

9 “THE COUNCIL FOR EDUCATION AND RESEARCH ON TOXICS” (July 9, 2013).

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. See “Sand 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).

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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.

1 “Conspiracy 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.”).

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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).

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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).

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