TORTINI

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

PubMed Refutes Courtroom Historians

February 11th, 2018

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

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

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

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

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

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

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


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

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

David Rosner’s Document Repository

July 23rd, 2017

David Rosner and Gerald Markowitz are leftist labor and social historians in Columbia University and City University of New York, respectively. Both are frequently disclosed by plaintiffs’ counsel as expert witnesses on historical issues, and both often testify at asbestos and other personal injury trials1. Markowitz has been excluded in at least one reliability challenge2.

The two historians, who appear so often together on plaintiffs’ designations that they are sometime referred to as a unified persona, Rosnowitz, have create a website, “Project Toxicdocs,” supposedly in an alpha version3.

The Toxic Docs website does not identify Rosner and Markowitz by name as authors or sponsors, but the website’s content and goals bear their indelible stamp, as well as the concordance of their institutional affiliations of Columbia and CUNY. The website promises “[b]lazingly fast” searches and access to previously confidential, classified industry documents on “industrial poisons”:

This dataset and website contain millions of pages of previously secret documents about toxic substances. They include secret internal memoranda, emails, slides, board minutes, unpublished scientific studies, and expert witness reports — among other kinds of documents — that emerged in recent toxic tort litigation.

Over the next couple years, we’ll be constantly adding material from lawsuits involving lead, asbestos, silica, and PCBs, among other dangerous substances. Innovations in parallel and cloud computing have made conversion of these documents into machine-readable, searchable text a far faster process than would have been the case just a decade ago.”

Similar efforts have been put into place for documents collected in tobacco and other litigations4. David Egilman, another regular testifier for the Lawsuit Industry once maintained a website with a large library of documents he relied upon for his ethics and state-of-the-art opinion testimony in various litigations.

A trial run through the “dataset” for the search term “silicosis” turned up 44 documents, most of which had nothing to do with silica or silicosis, and many of which were duplicates. Remarkably, there were no documents from government or labor unions.

We are sure that these historian expert witnesses will improve their efforts to be comprehensive and balanced, with practice.


1 See, e.g., Garcia v. Lone Star Indus., Case No. D-149, 527, 1997 WL 34904089 (Dist. Ct. Tex., Jefferson Cty., 1997) (identifying Rosner and Markowitz as testifying expert witnesses for plaintiff); City of Milwaukee v NL Industries, Inc., Circuit Ct., Milwaukee Cty., Wisc., 2007 WL 4676349 (Jan. 16, 2007) (referencing litigation report of Rosner and Markowitz); Gibson v. American Cyanamid Co., 719 F. Supp. 2d 1031, 1048 (E.D. Wis. 2010) (noting Rosner and Markowitz’s declaration for plaintiffs); Rhode Island v. Lead Industries Ass’n, C.A. No. PC 99-5226, Rhode Island Superior Court, Providence (Feb. 26, 2007) (discussing Rosner and Markowitz’s testimony on post-verdict motions); Altria Group, Inc. v. Good, No. 07-562, U.S. Sup. Ct., Amicus Brief of Allan M. Brandt, Robert N. Proctor, David M. Burns, Jonathan M. Samet, and David Rosner (June 18, 2008) (all amici except Rosner disclosed their litigation activities); Burton v. American Cyanamid Co., 775 F. Supp. 2d 1093 (E.D. Wis. 2011) (noting Rosner and Markowitz’s testimony in lead pigment case); California v. Atlantic Richfield Co., Santa Clara Super. Ct., Calif., No. 1-00-CV-788657, 2013 WL 4425657 (July 15, 2013) (noting Rosner’s testimony); Ostenrieder v. Rohm & Haas Co., Phila. Ct. C.P. Case No. 150602485, Motion in Limine to Exclude Testimony of Gerald Markowitz and David Rosner (filed by Rohm & Haas Co., subsidiary of Dow Chemical Co., June 18, 2015); Dumas v. ABB Group, Inc., civ. action no. 13-229-SLR-SRF (D. Del. Sept. 30, 2015) (referencing Rosner’s report for plaintiffs); Assenzio v. A.O. Smith Water Prods. Co., docket nos. 190008/12, 190026/12, 190200/12, 190183/12, 190184/12, NY Sup. Ct., NY Cty. (Feb. 5, 2015) (noting that Rosner testified for plaintiffs); Noll v American Biltrite, Inc., 188 Wash. App. 572, 355 P.3d 279 (Wash. Ct. App. June 29, 2015), aff’d, 355 P.3d 279 (Wash. 2015) (deposition of Gerald Markowitz given on behalf of plaintiff); Schwartz v. Honeywell Internat’l, Inc., 66 N.E.3d 118 (Ohio Ct. App. 2016) (same), app. granted, 148 Ohio St. 3d 1442, 72 N.E.3d 656 (2017); Clair v. Monsanto Co., 412 S.W.3d 295 (Mo. App. 2013) (noting Rosner as plaintiff’s expert witness); New v. Borg-Warner Corp., No. 13-cv-00675, 2015 WL 5166946 (W.D. Mo., Sept. 3, 2015) (identifying Rosner and Markowitz as plaintiff’s expert witnesses); Begin v. Air & Liquid Corp., Case No. 3:15-cv-830-SMY-DGW (S.D. Ill. May 10, 2016) (striking designation of plaintiff’s expert witness David Rosner as untimely in asbestos case); Rost v. Ford Motor Co., 151 A.3d 1032 (Pa. 2016) (noting Rosner and Markowitz as amici authors; no disclosure of litigation income); Dominick v. A.O. Smith Water Products, CA2014-000232, NY Sup. Ct., Oneida Cty., Notes of Testimony of David Rosner, Mar. 18, 2017 (Press Release from Plaintiffs’ law firm).

2 Quester v. B.F. Goodrich Co., Cuyahoga Cty., Ohio, C.P. Case No. 30-509539 (Jan. 12, 2008) (excluding Markowitz’s testimony as impermissible attempt to introduce expert witness opinion on defendants’ intent and motive).

3 Presumably an alpha version is one that has not made it to beta.

Ancient Truths

May 5th, 2016

David Sackett, in some paternity disputes called the “father of evidence-based medicine,” supposedly once claimed that:

“Half of what you’ll learn in medical school will be shown to be either dead wrong or out of date within five years of your graduation; the trouble is that nobody can tell you which half–so the most important thing to learn is how to learn on your own.”

See Ivan Oransky, “So how often does medical consensus turn out to be wrong?Retraction Watch (July 11, 2011). Sackett’s meta-statement was itself certainly not “evidence based,” but his point is well taken. Time ultimately erodes the authority of the truthiest sounding claims to medical knowledge. Sara Teichholtz, “The Differential: Half of What You’re Learning is Wrong,” (Dec. 14, 2013). Only lawyers and theologians would think that a statement in an old document or text, once authenticated, has some claim on us as the “truth.”

The Federal Rules of Evidence provide an exception to the rule against hearsay for statements made in ancient documents, those at least twenty years old. Rule 803(16). In 2015, the Judicial Conference’s Committee on Rules of Practice and Procedure proposed retiring the ancient document hearsay rule.[1] The exception created for documents authenticated as “ancient” (> 20 years old) is so inimical to the truth-finding function of trials, that courts strain to avoid finding the documents “authenticated.” See, e.g., Kalamazoo River Study Group v. Menasha Corp., 228 F.3d 648 (6th Cir. 2000).

The proposal to abolish this dangerous exception to the rule against hearsay has engendered resistance from some quarters over its ability to eliminate otherwise admissible evidence in cases involving long-past events, such as environmental or occupational disease litigation. The resistance, however, is misguided.  The Committee’s proposal would not affect the authenticity presumption of an “ancient document,” and such documents could still be used to show state of mind, intention, motive, or notice. If the asserted statement in the old document is actually true, then there is likely much more recent, robust evidence to support the statement. The rule as it now stands is capable of a great deal of mischief.  The fact that a document has survived intact in a place where one would expect to find it may add to its presumptive authenticity, but in many technical, scientific, and medical contexts, the “ancient” provenance actually makes the content likely to be false. Technical and scientific facts and opinions have changed too quickly to endorse statements simply because of they were written down somewhere, over 20 years ago. SeeTime to Retire Ancient Documents As Hearsay Exception” (Aug. 23, 2015).

Although many in the legal academy have voiced opposition to the proposal[2], one law professor, Daniel Capra, has astutely observed that we will soon have a flood of easily authenticated documents of doubtful veracity, called websites, and other electronic documents, which have reached the age of evidentiary majority. Daniel J. Capra, “Electronically Stored Information and the Ancient Documents Exception to the Hearsay Rule: Fix It Before People Find Out About It,” 17 Yale J.L. & Tech 1 (2015). The truth of a proposition requires more than the lapse of 20 years since some nincompoop wrote it down.


[1] Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy Procedure and the Federal Rules of Evidence (Aug. 2015); See also Debra Cassens Weiss, “Federal judiciary considers dumping ‘ancient documents’ rule,” ABA Journal Online (Aug. 19, 2015).

[2] Peter Nicolas, “Saving an Old Friend From Extinction: A Proposal to Amend Rather Than to Abrogate the Ancient Documents Hearsay Exception,” 63 UCLA L. Rev. Disc. 172 (2015).

Ramazzini Serves Courtroom Silica Science Al Dente

July 25th, 2015

Collegium Ramazzini styles itself as an “independent, international academy.” The Collegium Ramazzini was founded in 1982, by the late Irving Selikoff and others to serve as an advocacy forum for their pro-compensation and aggressive regulation views on social and political issues involving occupational and environmental health.

The Collegium is a friendly place where plaintiffs’ expert witnesses, consultants, and advocates never have to declare their conflicts of interest.[1] Last year, in October 2014, the Collegium conducted a conference on silica health issues, entitled “Silica Three Hundred Years Later: Occupational Exposure, Medical Monitoring, and Regulation.”

The silica session was chaired by Christine Oliver, one of plaintiff’s key expert witnesses in Allen v. Martin Surfacing, 263 F.R.D. 47 (D. Mass. 2009). SeeBad Gatekeeping or Missed Opportunity – Allen v. Martin Surfacing” (Nov. 30, 2012). The purported goal of the session was

“to shine a light on silica as a persistent and dangerous threat to the health of exposed workers worldwide,” focusing on the following issues:

“1) Occupational silica exposures, new and old;

2) silica as a recognized human lung carcinogen and its interaction with other lung carcinogens such as tobacco smoke;

3) the role of silica and silicosis in tuberculosis;

4) issues relevant to medical surveillance of silica-exposed workers as set forth in OSHA’s proposed silica standard;

5) the role of the US Government in protecting the health of silica-exposed workers; and

6) international variability in addressing the threat to worker health posed by silicosis.”

Recently, the Collegium updated its website to provide PDF files of some of the conference presentations:

Carol H. Rice, “Silica – old, new and emerging uses result in worker exposure

Arthur L. Frank, “Silica as a lung carcinogen

Rodney Ehrlich, “Silica in the head of the snake. Silica, gold mining, and tuberculosis in southern Africa

Christine Oliver, “Medical surveillance for silica-related disease: the Collegium responds to OSHA’s proposed rulemaking,”

Gregory R. Wagner, “US Government role in recognizing, reducing, and regulating silica risk: 80 years and counting

Sverre Langard, “Silicosis 300 years after Ramazzini: Eradication in some countries, increased incidence in others

A poster session chaired by Melissa McDiarmid and Carol Rice, revealingly titled “Sustainable Work 2020 – an advocacy platform for Horizon 2020,” followed. Casey Bartrem asked whether “Asbestos-induced lung cancer in Germany: is the compensation practice in accordance with the epidemiological findings?” Odds are that this presentation was a brief for greater compensation. Xaver Baur of Germany, presented on the “Ethics in the applied sciences: The challenge of preventing corporate influence over public health regulation,” but remarkably no one presented on the challenge of preventing the litigation and compensation industry’s influence over public health regulation.

You won’t find any cutting-edge science in the linked slides, but you will find some interesting revelations. Sverre Langard’s presentation makes the dramatic point that silicosis has been declining, despite the hand waving of OSHA Administrator David Michaels, and the histortions of Rosner and Markowitz. Consider Langard’s slide, based upon CDC data:

CDC Siicosis vs Asbestosis Mortality Over Time

And consider the admissions of Arthur Frank, veteran plaintiffs’ expert witness, who acknowledged that:

“until very recently it [silica] was not recognized as a carcinogen.”

True to form, Dr. Frank blamed Selikoff and his other teachers at Mt. Sinai Hospital in New York City, where he trained:

“At Mount Sinai I did not get trained that silica was a carcinogen”

Well, even a scurry of blind squirrels sometimes find their nuts!


[1][1] Some of the names on the list of Fellows and Emeritus Fellows reads like a “Who’s Who” of testifying expert witnesses, consultants, and advocates for the litigation industry:

Henry A. Anderson, Barry Castleman, David C. Christiani, Carl F. Cranor, Devra Lee Davis , John M. Dement, Arthur Frank, Bernard D. Goldstein, Howard Frumkin, Lennart Hardell, Peter F. Infante, Joseph LaDou, Philip Landrigan, Richard A. Lemen, Barry S. Levy, Roberto G. Lucchini, Steven B. Markowitz, Myron A. Mehlman, Ronald L. Melnick, Donna Mergler, Albert Miller, Franklin E. Mirer, Herbert L. Needleman, L. Christine Oliver, David M. Ozonoff, Carol H. Rice, Kenneth D. Rosenman, Sheldon W. Samuels, Ellen K. Silbergeld, Peter D. Sly, Martyn Thomas Smith, Colin L. Soskolne, Leslie Thomas Stayner, Daniel T. Teitelbaum, Laura Welch