What Happens When Historians Have Bad Memories

Well when patients have poor recall of their medical treatments, signs, and symptoms, physicians say that they are poor historians. Can one say that about Barry Castleman, plaintiffs’ standard bearer on asbestos state-of-the-art issues?

Back in March 2011, I wrote about a memorandum, dated November 5, 1979, apparently written by Castleman to Dr. Irving Selikoff, “Defense Attorneys’ Efforts to Use Background Files of Selikoff-Hammond Studies to Avert Liability.” SeeThe Selikoff – Castleman Conspiracy” (Mar. 13, 2011). A year later, defense counsel, in a Delaware jury trial before Judge John Parkins, Jr., confronted Castleman with the memorandum.  The exchange was short:

“Q. So, between 1971 and 1992, you’ve had many exchanges with Dr. Selikoff; is that correct?

A. Yes.

Q. And you once asked him to conceal some of the research that he might have done on the 1964 study; is that correct?

A. No. What you’re referring to is a memorandum that doesn’t have any signature and it doesn’t have any letterhead, and was produced in cross-examination about two years ago in a trial. And I have no memory of this document.”

Carlton v. Crane Co., et al., No. 10C-08-216, Delaware Superior Court, New Castle Cty., at p. 152 (June 11, 2012).

After Castleman testified, Judge Parkins issued an order to show cause whether the examining defense counsel violated the rules of professional conduct in his examination of Castleman.  Defense counsel filed a thorough rebuttal to the suggestion that he lacked a good-faith basis for having asked questions about the 1979 memorandum. See Defendant Crane Co.’s Response to Order to Show Cause, Transaction ID 44889066 (June 19, 2012).

In responding to the Order to Show Cause, defense counsel marshaled past testimony given by Castleman, about the memorandum.  In the following 2010 testimony, Castleman acknowledged that he might well have written the memorandum, and that the memorandum reflected contemporaneous concerns of plaintiffs’ counsel Ron Motley and Motley’s requests to Castleman to communicate with Selikoff:

“Q. And you actually wrote a letter to Dr. Selikoff in 1979 wherein you told him Ron Motley, the plaintiffs’ lawyer I work for, knows that you got some information about insulators who said they knew about the hazards of asbestos in the ’40s and ’50s, please don’t let that get out?

A. That is a gross mischaracterization of what I wrote to Dr. Selikoff.

Q. Tell me what the letter said.

A. The memo showed up last summer for the first time. I hadn’t seen this thing or didn’t even remember it. It showed up in cross-examination at some trial last summer. It’s dated 1979 and it — it’s not on any letterheads and not signed, but it looks like something I might have written. I had testified a total of one time at the time I wrote this and I conveyed to Dr. Selikoff one of the plaintiffs’ lawyers with whom I had been in contact, this guy, Motley, was concerned that Selikoff’s medical research records might contain a questionnaire that would include information asking the workers when they first heard that asbestos work was dangerous. And Motley — I conveyed to Selikoff — I am basically conveying Motley’s concern and was saying that if such a thing was turned over to defense counsel, they would use this to get people’s cases dismissed. . . .”

See Transcript of Castleman Testimony, at 753-55, in Farag v. Advance Auto Parts, No. 431525 California Superior, Los Angeles Cty. (Dec. 1, 2010).  Castleman’s testimony further supports the authenticity and his authorship of memorandum, when he explained that he had agreed to communicate with Selikoff because Motley was experiencing a “paranoid fit” over the possibility of the defendants’ obtaining information that would support their defenses of contributory negligence and assumption of risk Id. at 756.

In a Madison County, Illinois, case in 2010, Castleman testified at deposition in a way that appeared to accept his authorship of the memorandum, and his active collaboration with Motley to suppress defendants’ access to discovery of information about the insulators’ knowledge of asbestos hazards:

“Q: Okay. Now, obviously, but you asked Dr. Selikoff, you said, [i]t strikes me as most important to hold these files confidential and resist efforts to get them released to the defendants. Isn’t that true?

A: Yes. I felt that medical research was not something that should just be – – I mean, again, the date of this memo is 1979. I had testified in a total of one trial in my whole life by that time. I was not at all familiar with the legal system. I was very concerned about what Motley told me, because I thought it would jeopardize Selikoff’s ability to do epidemiology studies on workers and identify occupational health hazards, not just with asbestos but with all kinds of things.”

Castleman Deposition Transcript at 26, in Luna v. A.W. Chesterton, Inc., et al., No. 08-L-619, Circuit Court of Madison County, Illinois (July 12, 2010). See also Transcript of Testimony of Barry Castleman at 377, in Benton v. John Crane, Inc., No. 109661/02, Supreme Court of the State of New York, New York County (Oct. 14, 2011) (testifying in response to questions about the memorandum that “I go on to say in the next sentence that it might impair Selikoff’s ability to obtain the cooperation of unions and workers in other studies. . . .”).

In response to this offer of proof for the good-faith basis to inquire about the memorandum, Judge Parkins withdrew the rule to show cause.

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I have been to Madison County, Illinois, only a couple of times.  Some years ago, I had a deposition in Granite City, a double misnomer; it is neither a city, nor does it have any granite.  Some might say that the county court house, not far away, in Edwardsville, Illinois, has also been a misnomer at times.

A recent trial suggests that the truth will sometime come out in a Madison County trial.  Local media coverage of the trial reported that Barry Castleman testified early in the proceedings, and that he denied writing the conspiratorial 1979 memorandum.  See Heather Isringhausen Gvillo, “Plaintiffs expert denies writing letter to asbestos researcher during Madison County trial” (Feb. 21, 2014) (reporting on Brian King, individually and as special administrator of the estate of Tom King vs. Crane Co.) Actually the text of the article makes clear that Castleman did not deny writing the memorandum; rather, he testified that he had no memory of having written it. “I have no memory of writing this and I don’t recognize it.” Id. On February 28, 2014, distancing themselves from Castleman’s poor memory for his own writings, the jury in the King case rejected the plaintiffs’ claims. Gvillo, “Defense verdict reached in asbestos trial” (Mar. 3, 2014).

Castleman’s lapse of memory is perhaps convenient, and maybe even a disability in someone who aspires to be an historian.  In addition to being a “poor historian” of his own career, which was financed by plaintiffs’ counsel, Castleman appears to have taken direction from Ron Motley and his partners, on where to look, and where not to look, for historical support for the plaintiffs’ version of the state of the art. SeeDiscovery into the Origin of Historian Expert Witnesses’ Opinions” (Jan. 30, 2012).

There are steps that could be taken to shore up the authenticity of the Castleman-Selikoff memorandum.  A subpoena to the Selikoff document archive might be in order. Since everyone loves a conspiracy, why not convene a grand jury to inquire into an ongoing conspiracy to suppress evidence?

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