Conflicts of interest disclosures have become the stuff of “criminal” accusations. In Weitz & Luxenberg P.C. v. Georgia–Pacific LLC, 2013 WL 2435565 (N.Y. App. Div., 1st Dep’t June 6, 2013), the court recited a defense expert witness’s failure to disclose his expert witness status in articles as part of a determination that a prima facie showing of “crime-fraud” had been made to justify the trial court’s in camera review of materials claimed to be protected from discovery under the attorney-client privilege:
“Nor did the articles reveal that Dr. Bernstein has been disclosed as a GP expert witness in NYCAL since 2009, that he had testified as a defense expert for Union Carbide Corporation in asbestos litigation, or that he had been paid by, and spoken on behalf of, the Chrysotile Institute, the lobbying arm of the Quebec chrysotile mining industry.”
Id. at *2. In “A Cautionary Tale on How Not to Sponsor a Scientific Study for Litigation,” I wrote about how the First Department of the New York Appellate Division went off the rails in considering the crime-fraud exception without first determining that the privilege applied in the first place. The appellate court’s reasoning as to why the trial court should look for an exception was equally vacuous. If failure to disclose consulting or testifying for attorneys is a “crime” or a “fraud,” then the playing field should be level and the indictment should apply to all sides.
Steve Markowitz is a physician with Queens College, City University of New York. Dr. Markowitz testifies for plaintiffs, both here in New York City, and abroad, in asbestos personal injury cases. See, e.g., Wannall v. Honeywell International Inc., 2013 WL 1966060 (D.D.C. May 14, 2013) (excluding Markowitz’ testimony as unreliable). So the plaintiffs’ bar, which would equate failure to disclose consulting with “crime” or “fraud,” should be on the alert that Dr. Markowitz does not disclose his consulting arrangements in publications that bear on the issues covered by his testimony.
I blogged previously about an in-press version of Markowitz’s publication of an update of the epidemiologic study of North American insulators. See “The Mt. Sinai Catechism” (June 7, 2013). The paper is now out in final form, although behind a paywall. Steven B. Markowitz, Steven M. Levin, Albert A. Miller, and Alfred Morabia, “Asbestos, asbestosis, smoking, and lung cancer. New findings from the North American insulator cohort,” 188 Am. J. Respir. Crit. Care Med. 90 (2013). What is publicly available, however, are the disclosure statements for each of the authors. Lo, and behold, Dr. Markowitz declared no consultations that could be a potential conflict of interest.
This is a remarkable double standard. Consulting for a defendant is a “crime,” if not disclosed, but plaintiffs’ testifying expert witnesses do not feel the need to disclose their consultancies at all. What is more remarkable, however, is that the authors of this article strained and stretched their data to try to save their synergy theory. Even the editorial that accompanied the article, while generally reciting the Mt. Sinai catechism, noted that the synergistic, multiplicative interaction was no longer so clear: “asbestos exposure and smoking together are associated with an at least additive increased risk. …” John R. Balmes, “Asbestos and Lung Cancer: What We Know,” 188 Am. J. Respir. Crit. Care Med. 8,9 (2013).
The only reason that I harp on conflicts is that the Third Edition of the Reference Manual on Scientific Evidence (2011) improvidently started down this road, as have several federal district and state court judges, including the judges who sat on the First Department panel, which decided Weitz & Luxenberg P.C. v. Georgia–Pacific LLC. I believe that the focus should be on the data and the analysis, not on the speaker. If the courts insist upon creating this toxic environment for scientists who “consult,” then the toxicity should be visited on all parties’ expert witnesses equally.
