Selikoff and the Mystery of the Disappearing Testimony

Perhaps the ultimate brushback pitch to challengers of the Selikoff legacy was thrown by McCulloch and Tweedale, who suggested that the challenges are solely motivated by venality.  Jock McCulloch & Geoffrey Tweedale, “Shooting the Messenger:  The Vilification of Irving J. Selikoff,” 37 International J. Health Services 619 (2007).  These authors rightly are critical of many of the mean-spirited attacks — mostly planned but not deployed — on Selikoff by industrial officers and executives.  The authors, however, go far beyond smear campaigns and attempt to portray all those who opposed Selikoff’s scientific work and political agenda as somehow acting in bad faith.  In arguing that all “adversaries” have been engaged in “shooting the messenger,” McCulloch and Tweedale, engage in – well – shooting the messenger.

What is astonishing is that with all the back and forth over Selikoff, and over his scientific and political work, no one has come forward to write a serious biography of the man and his work.  Perhaps it would be too difficult to avoid falling into the camp of hagiographers or of hatchetmen.

Still, Selikoff’s work in the mid-1960s was, and is, important, but mostly from the point of view of putting the world on notice of the hazards from what had been accepted use of asbestos in industrial insulation.  A decade earlier, in 1955, Sir Richard Doll had already published an article that suggested an increase risk of lung cancer from asbestosis.  Doll’s work, however, failed to take into account the confounding effects of smoking.  In 1960, J.C. Wagner and colleagues published their work on mesothelioma among persons exposed to crocidolite, blue asbestos, in South Africa.  And for asbestosis among insulators, the United States Navy was out in front of Selikoff, although the Navy was less generous in sharing its knowledge with its vendors and the public.  By 1961, the Navy had targeted asbestos hazards for research.  In 1962, two Navy officials published an article that noted that working conditions were at times unsafe, although the publication took place in an obscure Navy journal that was not in general circulation and thus was not available to industry and physicians.  Capt. H.M. Robbins & William T. Marr, “Asbestosis,” 19 Safety Review 10 (1962) (noting that asbestos dust counts of 200 million particles per cubic foot were not uncommon during insulation ripouts onboard naval vessels).  Two years later, roughly contemporaneously with Selikoff’s first publication on asbestos hazards among insulations, Mr. Marr published about the Navy’s observations in a journal in general circulation.  William T. Marr, “Asbestos Exposure During Naval Vessel Overhaul,” 25 Am. Indus. Hyg. Ass’n J. 264 (1964).

From the lawyers’ perspective, there can be no doubt that Selikoff helped to launch the asbestos personal injury litigation, although there were many other inciting factors.  Having a sane appreciation for who Selikoff was continues to be important in assessing both his positive and negative contributions to the scientific and legal landscape.

Judge Jack Weinstein, in addressing the ethics of scientists, held the late Dr. Irving Selikoff out as an example of “independent eminent” scientists, whom courts should protect in legal proceedings:

“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.”

Jack B. Weinstein, Individual Justice in Mass Tort Litigation:  The Effect of Class Actions, Consolidations, and other Multi-Party Devices 117 (Evanston 1995).

It is not surprising that Judge Weinstein invoked the memory of Dr. Selikoff to exemplify the “independent eminent” scientist who eschewed the courtroom in favor of scientific journals to advance learning, understanding, and scientific truth.  Dr. Selikoff had cultivated that reputation throughout the 1970s, until the time of his death in 1992.  Eminent Selikoff was, but at some point, the medical historians will have to come to grips with whether and to what extent Selikoff was really independent.

Clearly, Judge Weinstein was incorrect in asserting that Selikoff preferred to publish his results “only in scientific journals.”  Selikoff was an early adopter of a multi-media approach, and he was no stranger to the courtroom and litigation.  Selikoff testified in court proceedings before the mid-1970s.  Over the years, I have collected transcripts of Dr. Selikoff’s testimony in:

  • Bradshaw v. Johns-Manville Sales Corp., E. D. Michigan Southern Division, Civ. Action No. 29433 (July 6, 1967)
  • 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 (February 19, 1971)
  • Karjala v Johns-Manville Products Corp.,  D. Minn., Civ. Action Nos. 5–71 Civ. 18, and Civ. 40 (February 8, 1973) 

There are at least two reported decisions in Pennsylvania, where Dr. Selikoff served as an expert witness for the claimaints:

  • Bambrick v. Asten Hill Mfg. Co., Pa. Commonwealth Ct. 664 (1972)
  • Utter v. Asten-Hill Mfg. Co., 453 Pa. 401 (1973)

Professor Bartrip, in his historical analysis of Selikoff’s medical education, provides another deposition reference:

Deposition of Dr. Irving J. Selikoff, in  Bradshaw v.Twin City Insulation Co. Ltd., Industrial Court of Indiana, Claim No. O.D.1454 (Oct. 14, 1966)

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). 

According to Professor Bartrip, Selikoff testified often in asbestos litigation.  Id. (quoting insulator union President Andrew Haas, as saying “[w]e all owe a great debt of thanks for often and expert testimony on behalf of our members … .” Andrew Haas, Comments from the General President, 18 Asbestos Worker (Nov. 1972)).  Of course, before 1970, most asbestosis cases were prosecuted before worker compensation referees, and decisions rarely were reported.  Another feature of worker compensation cases is that the expert witnesses often do not testify; rather, the experts’ reports are submitted to the Referee, who decides the medical issues without taking testimony.  As a result of the nature of workers’ compensation, no one has a good estimate of the extent to which Selikoff was involved in personal injury litigation in the 1950s and 1960s.

Of course, Selikoff testified in the Reserve Mining case, an environmental matter in which the government sought to regulate a non-asbestos amphibole mineral as if it were asbestos, on the basis of cleavage fragments that met only a regulatory definition of “fiber.”

To the extent that Professor Bartrip can be read to suggest that Dr. Selikoff stopped testifying to avoid inquiry into his medical qualifications, we should be mindful that Selikoff likely had other motives.  By the mid-1970s, Mt. Sinai was an officially accredited medical school (which it was not throughout the 1960s), and Selikoff began to enjoy federal funding of research grants and projects.  Selikoff’s department prospered, and he attracted new personnel, many of whom became frequent testifiers for plaintiffs in the asbestos property damage and personal injury cases. By the 1980s, Selikoff had a staff of acolytes who could be trusted to defend his theories and studies in litigation.

There was also the matter that as much as plaintiffs’ counsel liked Selikoff’s asbestos theories, they were troubled by what they believed was his overemphasis on his own research to establish the “state of the art” of asbestos science.  In order to prosecute their cases, plaintiffs’ counsel wanted to push back the date of notice and of first knowledge well before Selikoff’s publications in the mid- to late-1960s.  Selikoff believed, however, that he really had established these risks in his cohort of asbestos insulators.  In their cross-examinations of Selikoff, defense counsel elicited many concessions about how little was known or knowable about hazards to end users before Selikoff entered the field.  Plaintiffs’ counsel probably stopped calling Dr. Selikoff as a witness because there were more zealous advocates on state of the art issues, such as Dr. Schepers and Dr. Wagoner.

Perhaps the most notorious role Selikoff played in litigation was in organizing a conference with plaintiffs’ lawyers to showcase the plaintiffs’ scientific theories for judges.  The sordid affair is described in detail in a published decision of the United States Court of Appeals, In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992).  Plaintiffs’ counsel, working with and through Dr. Selikoff, invited judges actively involved in asbestos litigation to a conference of the Collegium Ramazzini on the so-called Third Wave of Asbestos Disease.  Dr. Selikoff’s invititations did not mention that the plaintiffs’ counsel were the predominant funding source; nor they did mention that the presenters included many of the plaintiffs’ expert witnesses in pending cases.  The whole conference was “overwhelmingly consistent with the plaintiffs’ position” in the very litigation over which the judges had to preside.  Id. at 780. 

One can only imagine the hue and cry that would arise if a defendant company had funded 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.

Judge Weinstein, who has so often been an astute observer of the mass tort litigation scene, was wrong when he opined that Selikoff was a scientist who preferred to present his results only in published journals.  Perhaps someday, someone will write a truly balanced account of Selikoff and his contribution to occupational medicine.  I am not holding my breath.

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