A special issue of the Journal of Public Health Policy waxes euphoric over a website, ToxicDocs, created by two labor historians, David Rosner and Gerald Markowitz (also known as the “Pink Panthers”). The Panthers have gotten their universities, Columbia University and the City University of New York, to host the ToxicDocs website with whole-text searchable documents of what they advertise as “secret internal memoranda, emails, slides, board minutes, unpublished scientific studies, and expert witness reports — among other kinds of documents — that emerged in recent toxic tort litigation.” According to Rosner and Markowitz, they are “constantly adding material from lawsuits involving lead, asbestos, silica, and PCBs, among other dangerous substances.” Rosner and Markowitz are well-positioned to obtain and add such materials because of their long-term consulting and testifying work for the Lawsuit Industry, which has obtained many of these documents in routine litigation discovery proceedings.
Despite the hoopla, the ToxicDocs website is nothing new or novel. Tobacco litigation has spawned several such on-line repositories: “Truth Tobacco Industry Documents Library,” Tobacco Archives,” and “Tobacco Litigation Documents.” And the Pink Panthers’ efforts to create a public library of the documents upon which they rely in litigation go back several years to earlier websites. See David Heath & Jim Morris, “Exposed: Decades of denial on poisons. Internal documents reveal industry ‘pattern of behavior’ on toxic chemicals,” Center for Public Integrity (Dec. 4, 2014).
The present effort, however, is marked by shameless self promotion and support from other ancillary members of the Lawsuit Industry. The Special Issue of Journal of Public Health Policy is introduced by Journal editor Anthony Robbins,1 who was a mover and shaker in the SKAPP enterprise and its efforts to subvert judicial assessments of proffered opinions for validity and methodological propriety. In addition, Robbins, along with the Pink Panthers as guest editors, have recruited additional “high fives” and self-congratulatory cheerleading from other members of, and expert witnesses for, the Lawsuit Industry, as well as zealots of the type who can be counted upon to advocate for weak science and harsh treatment for manufacturing industry.2
Rosner and Markowitz, joined by Merlin Chowkwanyun, add to the happening with their own spin on ToxicDocs.3 As historians, it is understandable that they are out of touch with current technologies, even those decades old. They wax on about the wonders of optical character recognition and whole text search, as though it were quantum computing.
The Pink Panthers liken their “trove” of documents to “Big Data,” but there is nothing quantitative about their collection, and their mistaken analogy ignores their own “Big Bias,” which vitiates much of their collection. These historians have been trash picking in the dustbin of history, and quite selectively at that. You will not likely find documents here that reveal the efforts of manufacturing industry to improve the workplace and the safety and health of their workers.
Rosner and Markowitz disparage their critics as hired guns for industry, but it is hard for them to avoid the label of hired guns for the Lawsuit Industry, an industry with which they have worked in close association for several decades, and from which they have reaped thousands of dollars in fees for consulting and testifying. Ironically, neither David Rosner nor Gerald Markowitz disclose their conflicts of interest, or their income from the Lawsuit Industry. David Wegman, in his contribution to the love fest, notes that ToxicDocs may lead to more accurate reporting of conflicts of interest. And yet, Wegman does not report his testimonial adventures for the Lawsuit Industry; nor does Robert Proctor; nor do Rosner and Markowitz.
It is a safe bet that ToxicDocs does not contain any emails, memoranda, letters, and the like about the many frauds and frivolities of the Lawsuit Industry, such as the silica litigation, where fraud has been rampant.4 I looked for but did not find the infamous Baron & Budd asbestos memorandum, or any of the documentary evidence from fraud cases arising from false claiming in the asbestos, silicone, welding, Fen-Phen, and other litigations.5
The hawking of ToxicDocs in the pages of the Journal of Public Health Policy is only the beginning. You will find many people and organizations promoting ToxicDocs on Facebook, Twitter, and LinkedIn. Proving there is no limit to the mercenary nature of the enterprise, you can even buy branded T-shirts and stationery online. Ah America, where even Marxists have the enterpreurial spirit!
1 Anthony Robbins & Phyllis Freeman, “ToxicDocs (www.ToxicDocs.org) goes live: A giant step toward leveling the playing field for efforts to combat toxic exposures,” 39 J. Public Health Pol’y 1 (2018). See “More Antic Proposals for Expert Witness Testimony – Including My Own Antic Proposals” (Dec. 30 2014).
2 Robert N. Proctor, “God is watching: history in the age of near-infinite digital archives,” 39 J. Public Health Pol’y 24 (2018); Stéphane Horel, “Browsing a corporation’s mind,” 39 J. Public Health Pol’y 12 (2018); Christer Hogstedt & David H. Wegman, “ToxicDocs and the fight against biased public health science worldwide,” 39 J. Public Health Pol’y 15 (2018); Joch McCulloch, “Archival sources on asbestos and silicosis in Southern Africa and Australia,” 39 J. Public Health Pol’y 18 (2018); Sheldon Whitehouse, “ToxicDocs: using the US legal system to confront industries’ systematic counterattacks against public health,” 39 J. Public Health Pol’y 22 (2018); Elena N. Naumova, “The value of not being lost in our digital world,” 39 J. Public Health Pol’y 27 (2018); Nicholas Freudenberg, “ToxicDocs: a new resource for assessing the impact of corporate practices on health,” 39 J. Public Health Pol’y 30 (2018). These articles are free, open-access, but in this case, you may get what you have paid for.
3 David Rosner, Gerald Markowitz, and Merlin Chowkwanyun, “ToxicDocs (www.ToxicDocs.org): from history buried in stacks of paper to open, searchable archives online,” 39 J. Public Health Pol’y 4 (2018).
4 See, e.g., In re Silica Products Liab. Litig., MDL No. 1553, 398 F.Supp. 2d 563 (S.D.Tex. 2005).
5 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).
