TORTINI

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

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 They include secret internal memoranda, emails, slides, board minutes, unpublished scientific studies, and expert witness reports — among other kinds of documents — that emerged in recent toxic tort litigation.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

The Unreasonable Success of Asbestos Litigation

July 25th, 2015

In asbestos litigation, the plaintiffs’ bar has apparently invented a perpetual motion machine that feeds on outrage that will never run out. Still, lawyers who have not filled their wallets with legal fees from asbestos cases sometimes attempt to replicate the machine. For the most part, the imitators have failed.

What accounts for the unreasonable success of asbestos litigation? Unlike pharmaceutical litigation, exposure does not require a prescription. Although asbestos insulators and applicators experienced the most exposure, other trades and occupations worked with, or near, asbestos materials. Anecdotal testimony of exposure suffices in almost every case. Add para-occupational exposure, and the sky’s the limit for the class of potential plaintiffs. See Lester Brickman, “Fraud and Abuse in Mesothelioma Litigation,” 88 Tulane L. Rev. 1071 (2014); Peggy Ableman, “The Garlock Decision Should be Required Reading for All Trial Court Judges in Asbestos Cases,” 37 Am. J. Trial Advocacy 479, 488 (2014).

Then there is the range of diseases and disorders attributable to asbestos. Excessive exposure to asbestos minerals cause non-malignant pleural plaques and thickening, as well as lung fibrosis, asbestosis. Some asbestos minerals cause mesothelioma, and despite a differential in potency among some of the minerals (between amosite and crocidolite), the general and specific causation of mesothelioma is often uncontested. Furthermore, lung cancer in the presence of asbestosis may be the result of interaction of asbestos exposure and cigarette smoking. Plaintiffs’ counsel and The Lobby have expanded the list of attributable diseases to include non-pulmonary cancers, only to find some defendants willing to pay money on these claims as well.

In addition to the ease of claiming, or manufacturing, exposure, and the willing cooperation of the occupational medical community in supporting medical causation, asbestos litigation is a lightning rod for moral outrage in the courtroom. Plaintiffs claim that “industry” knew about the hazards of asbestos, including its carcinogenicity, long before warnings appeared. Defending the knowledge claim requires nuanced explanation of shifting standards for establishing causality as epidemiology developed and was applied to putative asbestos-related cancer outcomes, as well as changing views about the latencies of asbestos-related diseases.

Every once in a while, plaintiffs’ and defense counsel[1], the media[2], the academy[3], and the insurance industry[4] ask whether “silica” is the next asbestos. Although the prospects have been, and remain, dim, plaintiffs’ counsel continue to try to build their litigation palace on sand, with predictably poor results. See Kimberley A. Strassel, “He Fought the Tort Bar — and Won,” Wall St. J. (May 4, 2009).

There are many serious disanalogies between asbestos and silica litigation. One glaring difference is the inability to summon any outrage over suppressed or nondisclosed knowledge of alleged silica cancer hazards. The silica cancer state of the art, written by those who are lionized in the asbestos litigation – Hueper, Schepers, and Hardy, along with NIOSH and the Surgeon General, all appropriately denied or doubted silica as a cause of lung cancer. See below. When the IARC shifted its views in the 1990s, under the weight of determined advocacy from some partisans in the occupational medicine community, and with the help from some rather biased reviews, industry promptly warned regardless of the lack of scientific support for the IARC’s conclusion. The manufacturing of faux consensus and certainty on silica and lung cancer is an important counter to the incessant media stories about the manufacturing of doubt on topics such as climate change.


[1] Robert D. Chesler, James Stewart, and Geoffrey T. Gibson, “Is Silica the Next Asbestos?” 176 N.J.L.J. 1 (June 28, 2004); Mark S. Raffman, “Where Will Silica Litigation Go?” 1 LJN Silica Legal News 1 (2005); Chris Michael Temple, “A Case for Why Silica Litigation Is Not the ‘Next Asbestos’,” LJN Product Liability Law & Strategy (2004).

[2] Jonathan D. Glater, “Suits on Silica Being Compared To Asbestos Cases,” N.Y. Times (Sept. 6, 2003).

[3] Michelle J. White, “Mass Tort Litigation: Asbestos,” in Jürgen Georg Backhaus, ed., Encyclopedia of Law and Economics 1 (2014); Melissa Shapiro, “Is Silica the Next Asbestos? An Analysis of the Silica Litigation and the Sudden Resurgence of Silica Lawsuit Filings,” 32 Pepperdine L. Rev. 4 (2005).

[4]Is silica the new asbestos?The Actuary (2005).


Historical Statements – – State-of-the-Art

Maxcy, ed., Rosenau Preventive Medicine and Hygiene 1051 (N.Y., 7th ed. 1951) (“Thus, there is no evidence that lung cancer is related in any way to silicosis.”)

May Mayers, “Industrial Cancer of the Lungs,” 4 Compensation Medicine 11, 12 (1952) (“Nevertheless, silicosis is not, apparently associated with, or productive of, lung cancer, whereas asbestosis very probably is.”) (Chief, Medical Unit, Division of Industrial Hygiene and Safety Standards, N.Y. Dep’t of Labor)

Geritt Schepers, “Occupational Chest Diseases,” Chap. 33, p. 455, ¶3, in A. Fleming, et al., eds., Modern Occupational Medicine (Phila. 2d ed. 1960) (“Lung cancer, of course, occurs in silicotics and is on the increase. Thus far, however, statistical studies have failed to reveal a relatively enhanced incidence of pulmonary neoplasia in silicotic subjects.”)

Spencer, Pathology of the Lung (1962) (“Silicosis and lung cancer inhaled silica, unlike asbestos, does not predispose to the development of lung cancer.”)

Wilhelm Hueper, Occupational and Environmental Cancers of the Respiratory System at 2-6 (N.Y. 1966) (“The bulk of the available epidemiologic evidence on the association of silicosis and lung cancer supports the view of a mere coincidental role of silicosis in this combination. *** From the evidence on hand, it appears that a well advanced silicosis does not seem to furnish a favorable soil for the development of cancer of the lung.”) (chief of the National Cancer Institute)

Harriet L. Hardy, “Current Concepts of Occupational Lung Disease of Interest to the Radiologist,” 2 Sem. Roentgenology 225, 231-32 (1967) (“cancer of the lung is not a risk for the silicotic. It is a serious risk following asbestos exposure and for hematite, feldspar, and uranium miners. This means that certain dusts and ionizing radiation alone or perhaps with cigarette smoke act as carcinogens.”)

Raymond Parkes, Occupational Lung Disorders 192 (London 1974) (“Bronchial carcinoma occasionally occurs in silicotic lungs but there is no evidence of a causal relationship between it and silicosis; indeed the incidence of lung cancer in miners with silicosis is significantly lower than in non-silicotic males.”)

Kaye Kilburn, Ruth Lilis, Edwin Holstein, “Silicosis,” in Maxcy-Rosenau, Public Health and Preventive Medicine, 11th ed., at 606 (N.Y. 1980) (“Lung cancer is apparently not a complication of silicosis.”)

Robert Jones, “Silicosis,” Chap. 16, in W. Rom, et al., eds., Environmental and Occupational Medicine 205 (Boston 1983) (“The weight of epidemiologic evidence is against the proposition that silicosis carries an increased risk of respiratory malignancy.”)

W. Keith C. Morgan & Anthony Seaton, eds., Occupational Lung Diseases 266 (1984) (“It is generally believed that silicosis does not predispose to lung cancer. * * * On balance, it seems unlikely that silicosis itself predisposes to lung cancer.”)

1 Anderson’s Pathology at 910b (1985) (“There is no evidence that silica increases the risk of lung cancer, nor does it enhance tobacco induced carcinogenesis.”)

U.S. Dep’t of Health and Human Services, The Health Consequences of Smoking – Cancer and Chronic Lung Disease in the Workplace: A Report of the Surgeon General at 348, Chapter 8 “Silica‑Exposed Workers” (1985) (“the evidence does not currently establish whether silica exposure increases the risk of developing lung cancer in men.”)

J. Cotes & J. Steel, Work-Related Lung Disorders 156 (Oxford 1987) (“The inhalation of silica dust does not contribute to malignancy.”)

NIOSH Silicosis and Silicate Disease Committee, “Diseases Associated With Exposure to Silica and Non-fibrous Silicate Minerals,” 112 Arch. Path. & Lab. Med. 673, 707 (1988) (“Epidemiologic studies have been conducted in an effort to assess the role of silica exposure in the pathogenesis of lung cancer. *** Thus, the results are inconclusive … .”)

Arthur Frank, “Epidemiology of Lung Cancer, in J. Roth, et al., Thoracic Oncology, Chap. 2, at p. 8 (Table 2-1), 11 (Phila. 1989) (omitting silica from list of lung carcinogens) (“The question of the relationship of coal mining to the development of lung cancer has been frequently considered. Most evidence points to cigarette smoking among coal miners as the major causative factor in the development of lung cancer, and neither a recent84 nor a British study of lung cancer among coal miners has found any relationship to occupational exposure.”)