When the Milward case hit the U.S. Court of Appeals for the First Circuit, it attracted the attentions of an amicus, the Council for Education and Research on Toxics (CERT). I had never heard of CERT before, and the amicus brief filed by CERT was rather sketchy on the nature of the organization.
A bit of research on CERT revealed the following. It is a non-profit California corporation, EIN: 42-1571530, founded in 2003. CERT has a business address at:
401 E Ocean Blvd., Ste. 800, Long Beach, California 90802-4967
And a telephone number: 1-877-TOX-TORT
CERT’s mission statement? Furthering scientific understanding of toxins.
Plaintiffs’ lawyer Ralph Metzger is noted as the contact person for CERT.
Given its phone number and its contact person, one might think that its mission statement was “furthering legal positions on toxins.”
But wait; it gets better. Ralphael Metzger, at the same Long Beach, California, address is the attorney for CERT on its amicus brief in Milward!
The potential conflicts grow deeper and wider. Metzger has represented CERT, which shares at least his offices, if not his alter ego, in lawsuits including CERT v. Brad Berry Co., Ltd., No. BC461182 (Cal. Super. Ct., Los Angeles County, Cent. Dist., filed May 9, 2011), and CERT v. Starbucks Corp., BC435759 (L.A. Super. Ct., filed April 13, 2010).
CERT has sued McDonald’s and Burger King over its claim that their french fries contained high levels of acrylamide, a chemical “known” to the State of California to cause cancer. CERT has sued Chemtura on claims that the company’s chemical fire-preventive products, known as PBDEs, cause injuries to wildlife and humans.
Although not definitive, it seems that CERT’s mission is not exactly scientific, and the description of its interests in its Milward brief just a tad misleading.
In addition to the CERT, the other amici joining the brief include:
Nicholas A. Ashford,
Nachman Brautbar,
David C. Christiani,
Richard W. Clapp,
James Dahlgren,
Devra Lee Davis,
Malin Roy Dollinger,
Brian G. Durie,
David A. Eastmond,
Arthur L. Frank,
Frank H. Gardner,
Peter L. Greenberg,
Robert J. Harrison,
Peter F. Infante,
Philip J. Landrigan,
Barry S. Levy,
Melissa A. McDiarmid,
Myron Mehlman,
Ronald L. Melnick,
Mark Nicas,
David Ozonoff,
Stephen M. Rappaport,
David Rosner,
Allan H. Smith,
Daniel Thau Teitelbaum,
Janet Weiss, and
Luoping Zhang
An interesting bunch; eh? Page two of the amicus brief tells us that:
“None of the amici has any financial or other similar interest in the outcome of this lawsuit. Amici appear on their own behalf to inform this Court of the substantial medical knowledge and understanding of leukemia arising from exposure to benzene.”
That’s probably true for the Milward case itself, but more interesting for what the disclosure does not say. Many of the amici have testified frequently in toxic tort cases, and several have been excluded by the straightforward application of Rule 702 or its state counterparts. Some have lost income as a result of judicial gatekeeping, and most have seen their advocacy science curtailed by such gatekeeping.
Appendix I to the brief provides further information on the amici, but there is no mention of their testimonial adventures, their financial stake in expert witnessing, or their political or positional commitments.
I suppose from CERT you get CERT-i-tude, a certain kind of attitude.
