Dr. Selikoff had a general practice clinic in Paterson, New Jersey, in the 1950s, when his practice and his litigation support efforts were noticed by the asbestos insulation workers’ union. Wikipedia, “Irving Selikoff” (last visited Jan. 4, 2014). According to Wikipedia, “[t]he new cohort (asbestos workers) were still a small fraction of the clinic’s patient list,” but Selikoff noticed a surprising incidence of pleural mesothelioma, within a few years of opening his practice. The Wiki authors seem deliberately vague about the date of Selikoff’s, and the union’s notice. Most authors recognize the late Chris Wagner for the discovery of a high rate of mesothelioma, at least among those exposed to crocidolite asbestos. See J. Christopher Wagner, C.A. Sleggs, and Paul Marchand, “Diffuse pleural mesothelioma and asbestos exposure in the North Western Cape Province,” 17 Br. J. Indus. Med. 260 (1960); J. Christopher Wagner, “The discovery of the association between blue asbestos and mesotheliomas and the aftermath,” 48 Br. J. Indus. Med. 399 (1991). Perhaps the vagueness is due to the realization that notice to Selikoff was notice to the union and its membership.
New Jersey lawyer Jon Gelman recounts how his father, also a New Jersey lawyer, involved Dr. Selikoff, back in 1954, as an expert witness in the “original 17” UNARCO (Union Asbestos and Rubber Co.) asbestos worker claims. According to Gelman, these claims were successfully litigated with Selikoff’s services, in front of the New Jersey Division of Workers’ Compensation. Jon L Gelman, “Dr. Yasunosuke Suzuki, A Pioneer of Mesothelioma Medical Research” (Nov. 23, 2011). Gelman does not report what diseases were involved in the 17 claims, arising out of the Paterson factory that used mostly amosite asbestos from South Africa. See Herbert Seidman, Irving J. Selikoff, and Steven K. Gelb, “Mortality Experience of Amosite Asbestos Factory Workers : Dose-Response Relationships 5 to 40 Years After Onset of Short-Term Work Exposure,” 10 Am. J. Indus. Med. 479 (1986).
Over the 20 years following the UNARCO 17, Selikoff went on to have an active testimonial career, always testifying for the claimant, always testifying against the employer or the supplier.[1] In 1972, Andrew Haas, President of the asbestos workers union thanked Selikoff for his frequent expert witness testimony on behalf of union members. Andrew Haas, Comments from the General President, 18 Asbestos Worker (Nov. 1972) (cited by Peter W.J. Bartrip, “Irving John Selikoff and the Strange Case of the Missing Medical Degrees,” 58 J. History Med. 3, 27 & n.88-92 (2003)).
Some of the positions that Selikoff took as a partisan expert witness suggest that he was outrunning his headlights. For instance, in the mid-1960s, Selikoff testified in New York proceedings, in support of a union member, who had died of colon cancer. Although Selikoff has little or no experience as an epidemiologist, he provided the “expert witness” support for the death claim based upon the very crude data from his insulator cohort study. Here is how the union magazine heralded the compensation victory, made possible by Selikoff’s advocacy:
“The research into health hazards of insulation workers developed by the members of Local No. 12 and Local No. 32 has resulted in widening the basis of compensation claims in New York State.
Until now, the courts have been reluctant to accept many of the conditions to which insulation workers are prone, as related to employment. However, facts produced during the research investigations of Dr. 1. J. Selikoff, Dr. J. Churg, and Dr. E. Cuvler Hammond of the Environmental Sciences Laboratory of the Mt. Sinai Hospital in New York are resulting in a changing of this picture.
In the last two or three years, a number of decisions have been handed down in the courts of New York and New Jersey acknowledging that not only pneumoconiosis (asbestosis) occurring among insulation workers is compensable, but that also lung cancer and mesothelioma of the chest or mesothelioma of the abdomen should also be compensated.
A recent decision has widened the range of compensable diseases for insulation workers even further. A member of Local No. 12. unfortunately died of a cancer of the colon. Dr. Selikoff reported to the compensation court that his research showed that these cancers of the intestine were at least three times as common among the insulation workers as in men of the same age in the general population.
Based upon Dr. Selikoff’s testimony, the Referee gave the family a compensation award, holding that the exposure to many dusts during employment was responsible for the cancer. The insurance company appealed this decision. A special panel of the Workman’s Compensation Board reviewed the matter and agreed with the Referee’s judgement and affirmed the compensation award. This was the first case in which a cancer of the colon was established as compensable and it is likely that this case will become an historical precedent.”
“Health Hazard Progress Notes: Compensation Advance Made in New York State,” 16(5) Asbestos Worker 13 (May 1966).
The claimed association between colon cancer and asbestos was dubious at the time of Selikoff’s testimony, and became more so as time went on. Nonetheless, colon cancer was important issue of compensation for the union membership. Smoking was highly prevalent among the insulators, who had a high rate of lung cancer. Colorectal cancer was the leading cause of cancer mortality among non-smokers in the general population, and Selikoff’s efforts to get the insulators to stop smoking was going to shift cancer mortality, naturally, to colorectal cancer. Adding colorectal cancer to the list of “compensable diseases” became an important part of the union’s (and the litigation industry’s) compensation strategy. Selikoff dug in, publishing and republishing the data from the insulator cohort study, which was uncontrolled for smoking and other risk factors. See, e.g., Irving J. Selikoff, “Epidemiology of gastrointestinal cancer,” 9 Envt’l Health Persp. 299 (1974) (arguing for his causal conclusion between asbestos and all gastrointestinal cancers).
More sophisticated epidemiologists consistently rejected the Selikoff conclusion on asbestos and colon cancer, which grew out of Selikoff’s litigation activities. Richard Doll & Julian Peto, Asbestos: Effects on health of exposure to asbestos 8 (1985) (“In particular, there are no grounds for believing that gastrointestinal cancers in general are peculiarly likely to be caused by asbestos exposure.”) The litigation efforts of the unions, the litigation industry, and the army of testifying physicians organized by Dr. Selikoff, kept the asbestos-colorectal cancer issue in play in the courts, despite ever increasing data against the conclusion. Finally, four decades after the asbestos insulation union magazine’s notice about Selikoff’s success in a colon cancer case, the Institute of Medicine weighed in on the issue, to find the evidence inconsistent and insufficient to support a causal conclusion. Jonathan Samet, et al., Institute of Medicine, Asbestos: Selected Health Effects (2006).
The Selikoff acolytes, a/k/a “The Lobby,” will review this narrative as “Shooting the messenger: the vilification of Irving J. Selikoff.” Wikipedia, “Irving Selikoff” (last visited Jan. 4, 2014) (citing Jock McCulloch & Geoffrey Tweedale, “Shooting the messenger: the vilification of Irving J. Selikoff,” 37 Internat’l J. Health Serv. 619 (2007)).
This view is curious and incorrect for several reasons. First, it is curious that the cited authors, labor historians McCulloch and Tweedale, have themselves taken the liberty to attack important scientists for their litigation . Last year, these authors published their “vilification” of Dr. Anthony Lanza, for having participated in the defense of some litigation cases arising out of the Gauley Bridge tunnel construction. See Jock McCulloch and Geoffrey Tweedale, “Anthony J. Lanza, Silicosis and the Gauley Bridge ‘Nine’,” 26 Social History of Medicine (2013), in press. See also “British Labor Historians Belaboring American Labor History – Gauley Bridge”(Oct. 14, 2013) (pointing out errors in McCulloch and Tweedale’s account of Gauley Bridge).
Second, the Selikoff acolytes are incorrect because the historical facts of Selikoff’s involvement are important for an understanding of how some opinions, such as the notion that asbestos causes colorectal cancer, gained currency in lay and professional communities. These views may have been less attractive to the media and to judges if they had known that Selikoff was such an active worker for the litigation industry, as far back as the early 1950s.
One interesting example of how important judges misunderstood Selikoff’s activities comes from no less an astute observer than Judge Jack Weinstein, who held Selikoff up as an “independent, emiment scientist,” who eschewed the courtroom for the laboratory. See, e.g., Hon. Jack B. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and other Multi-Party Devices 117 (1995) (“A court should not coerce independent eminent scientists, such as the late Dr. Irving Selikoff, to testify if, like he, they prefer to publish their results only in scientific journals.”) Weinstein was demonstrably wrong in this assessment, just as anyone who held up Lanza as never becoming involved in litigation activities would have been wrong.
Third, this information is important in understanding the evolution of the scientific community’s views about disclosing conflicts of interest. None of Selikoff’s articles disclosed funding from the unions, or his testimonial activities on behalf of the unions and their allied attorneys. For some reason, Selikoff’s heirs, who have continued to follow and to publish about the health outcomes among the asbestos insulation workers, feel that they are exempt from prevailing views about disclosure.
Dr. Steven Markowitz is the lead author on an update of the lung cancer mortality data of asbestos insulators. 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). Dr. Markowitz testifies widely for plaintiffs 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). A review of the disclosure statements for the authors of the 2013 asbestos insulator cohort study shows that Dr. Markowitz declared no consultations that could be a potential conflict of interest. See “The Mt. Sinai Catechism” (June 7, 2013); and “More Hypocrisy Over Conflicts of Interest,” (Dec. 4, 2010) (detailing failures of Selikoff acolytes, Castleman, Lemen, and Frank, in disclosing litigation activities when presenting on related issues to professional societies).
Fourth, there is a recent trend by the litigation industry to claim that failure of defense expert witnesses to make disclosures of their ties to companies constitutes fraud. Indeed, last spring, the New York Appellate Division affirmed a trial court’s decision to conduct an in camera inspection of documents underlying research studies sponsored and funded by Georgia Pacific. Weitz & Luxenberg P.C. v. Georgia-Pacific LLC, 2013 WL 2435565, 2013 NY Slip Op 04127 (June 6, 2013). The Appellate Division held that the plaintiffs had made a sufficient “showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.” 2013 WL 2435565, at *4. See “A Cautionary Tale on How Not to Sponsor a Scientific Study for Litigation” (June 21, 2013).
The claim of fraud was perhaps as tenuous as the assertion of the attorney-client privilege. For instance, some of the alleged fraudulent conduct was nothing more than an alleged failure to disclose fully the nature of the relationship between the sponsor, Georgia Pacific, and one of the authors:
“For articles lead-authored by David M. Bernstein, Ph.D., and co-authored by Holm, the only disclosure was that the research was ‘sponsored’ or ‘supported’ by a grant from GP. The articles did not disclose that Holm was specially employed by GP for the asbestos litigation or that he reported to GP’s in-house counsel.”
2013 WL 2435565, at *4. If this evidence be sufficient to show fraud, there will be many parties and expert witnesses in trouble, including the reputation of Dr. Selikoff, and his influence on asbestos litigation and regulation in this country, and abroad.
Finally, this information is important to counteract the distortions of the Selikoff acolytes. Consider for instance the current entry for Selikoff in Wikipedia. Wikipedia, “Irving Selikoff” (last visited Jan. 4, 2014):
“Part of the contrary perspective was presented by a Nathan A. Schachtman, an adjunct lecturer at the Columbia Law School. He suggested that Selikoff and his supporters may have organized ‘a lopsided medical conference, arranged for the conference to feature defendant’s expert witnesses, set out to give short shrift to opposing points of view, invited key judges to attend the conference, and paid for the judges’ travel and hotel expenses’. This quote from Schachtman came from a web site he maintained, unlike the quote from McCulloch and Tweedale, whose comments were published only after being accepted by reviewers for a refereed academic journal.“Nathan A. Schachtman”. www.law.columbia.edu. Columbia Law School. Retrieved September 16, 2013.”
While ’tis true that this humble blogger’s posts are not peer reviewed, what is interesting is that the acolytes did not, and could not, counter on the merits.
What is more, my account of “Selikoff and his supporters” did not recount that they “may have organized ‘a lopsided medical conference, arranged for the conference to feature defendant’s expert witnesses, set out to give short shrift to opposing points of view, invited key judges to attend the conference, and paid for the judges’ travel and hotel expenses’.” My account documented that Selikoff and his supporters did, in fact, do these things. Actually, they were previously documented in litigation and reported by the courts that held that one of the judges who improvidently had attended Selikoff’s Third Wave Conference had to disqualified from presiding over an asbestos class action. In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992); see Cathleen M. Devlin, “Disqualification of Federal Judges – Third Circuit Orders District Judge James McGirr Kelly to Disqualify Himself so as to Preserve the Appearance of Justice under 28 U.S.C.§ 455,” 38 Vill. L. Rev. 1219 (1993); W.K.C. Morgan, “Asbestos and cancer: history and public policy,” 49 Br. J. Indus. Med. 451, 451 (1992)
The point here is not to villify Selikoff but to gain historical perspective and understanding of the enthusiasms that went into creating the largest mass tort in American legal history. Selikoff was an important player in the passion play of products liability litigation, but it is time to substitute history for hagiography.
[1] Bradshaw v. Twin City Insulation Co. Ltd., Industrial Court of Indiana, Claim No. O.D.1454 (Oct. 14, 1966); Bradshaw v. Johns-Manville Sales Corp., E. D. Michigan Southern Division, Civ. Action No. 29433 (July 6, 1967); Bambrick v. Asten Hill Mfg. Co., Pa. Commonwealth Ct. 664 (1972); Tomplait v. Combustion Engineering Inc.., E. D. Tex. Civ. Action No. 5402 (March 4, 1968); Rogers v. Johns-Manville Products Corp., Cir. Ct. Mo., 16th Jud. Cir., Div. 9, Civ. Action No. 720,071 (Feb. 19, 1971); Utter v. Asten-Hill Mfg. Co., 453 Pa. 401 (1973); Karjala v Johns-Manville Products Corp., D. Minn., Civ. Action Nos. 5–71 Civ. 18, and Civ. 40 (Feb. 8, 1973). Selikoff also participated as a testifying witness for the government, in United States v. Reserve Mining Co. See United States v. Reserve Mining Co., 56 F.R.D. 408 (D.Minn.1972); Armco Steel Corp. v. United States, 490 F.2d 688 (8th Cir. 1974); United States v. Reserve Mining Co., 380 F.Supp. 11 (D.Minn.1974); Reserve Mining Co. v. United States, 498 F.2d 1073 (8th Cir. 1974); Minnesota v. Reserve Mining Co., 418 U.S. 911 (1974); Minnesota v. Reserve Mining Co., 419 U.S. 802 (1974); United States v. Reserve Mining Co., 394 F.Supp. 233 (D.Minn.1974); Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492 (8th Cir. 1975); Minnesota v. Reserve Mining Co., 420 U.S. 1000, 95 S.Ct. 1441, 43 L.Ed.2d 758 (1975); Reserve Mining Co. v. Lord, 529 F.2d 181 (8th Cir. 1976); United States v. Reserve Mining Co., 408 F.Supp. 1212 (D.Minn.1976); United States v. Reserve Mining Co., 412 F.Supp. 705 (D.Minn.1976); United States v. Reserve Mining Co., 417 F.Supp. 789 (D.Minn.1976); United States v. Reserve Mining Co., 417 F.Supp. 791 (D.Minn.1976); 543 F.2d 1210 (1976).
