Expert witnesses come in all sizes, colors, shapes, races, ethnicities, and personalities. More interestingly, expert witnesses have various motives for becoming involved in the litigation process. Most expert witnesses, I believe, become involved because they find the issues interesting, and intellectually challenging. After looking at the claims and defenses put forward by the parties, these expert witnesses believe that one side or the other has the better warrant, or perhaps the only warrant, for its contentions.
Some witnesses sign up to “change the world.” They are advocates, and they see the courtroom as an extension of the laboratory or the university. They may want acceptance for their theories or beliefs, and they hope that favorable jury verdicts and judgments based upon those verdicts will elevate their theories in the world of science or policy.
Other expert witnesses are motivated by “white-hat bias.” They see a verdict for the side for which they testify as promoting retributive, distributive, or social justice. They may be deontological or utilitarian or Aristotelian in their assessments of the issues, but they are motivated by considerations that often transcend the facts of the particular case.
Of course, there are expert witnesses who see litigants and litigation as an ATM to aid their personal fisc.
I have known only one expert witness who was motivated by guilt.
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Robert B. Anderson kindly alerted me to an interesting historical wiki on Saranac Lake, New York, with some interesting entries for some of the protagonists of the asbestos litigation: Leroy Upson Gardner, Arthur Vorwald, Gerrit Schepers, and others.
Dr. Edward Livingston Trudeau founded the Saranac Laboratory for the Study of Tuberculosis, in 1884, as a center for research and treatment of tuberculosis. The Laboratory, later became known as the Trudeau Institute, was also one of the leading pneumoconiosis research facilities in the 20th century. Many companies engaged the Laboratory to test their products, or the materials within their products; and Saranac Lake was the natural venue for various symposia and research meetings on industrial dust diseases.
As its director from 1927, until his death in 1946, Dr. Gardner helped put the Saranac Laboratory on the intellectual world map. His directorship coincided with the period in which the pneumoconioses were becoming important topics in industrial medicine, and in labor-industry battles. After Dr. Gardner’s death, Dr. Vorwald became the Director of Laboratories at Saranac. He held the position from 1947, until 1954, when he left to organize a new medical school department, of Industrial Medicine and Hygiene, in Wayne State University, in Michigan.
In 1954, the Laboratories fell into the hands of Dr. Schepers, who oversaw its passing into irrelevancy as research moved into the major universities. Schepers left Saranac in 1958.
Dr. Schepers used his supposed personal knowledge of dealings with various companies to create a livelihood in later life, when he testified extensively for plaintiffs’ counsel in asbestos personal injury litigation. As the litigation matured, so did Dr. Schepers, who became deaf and daft, and fantasized and testified to conversations with people, long dead, who could not contradict him. Schepers thus used his longevity to good advantage.
After Dr. Schepers adopted the catechism of Mt. Sinai, his publications, from the early 1980s until his death, became particularly unreliable, and these typically are the only ones cited now by plaintiffs’ counsel and plaintiffs’ expert witnesses. Fortunately, Dr. Schepers memorialized his contemporaneous observations, which frequently contradicted him when he was confronted by well-prepared defense counsel, in court or deposition examination. Under the Federal Rules of Evidence, and most state evidentiary law, Schepers’ prior statements are admissible as they bear on his credibility and the truth of his later, scurrilous writings:
“When a hearsay statement … has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.”
Federal Rule of Evidence 806. See, e.g., “Gerrit W. H. Schepers, MD, RIP” (2011).
The Saranac Wiki also notes that Schepers was “an experienced anthropologist and neurologist.” Most scientists, however, have been probably all too happy to forget Dr. Schepers’ work in this area. See, e.g., G.W.H. Schepers, “The Corpus Callosum and Related Structures in the South African Negro Brain,” 24 Am. J. Physical Anthropology 161 (1938).
The Wiki points to a hagiographic obituary that quotes an anonymous friend who called Schepers “the Old War Horse, the record holder for longevity in the struggle against corporate crime.” Laurie Kazan-Allen and Barry Castleman, “The Passing of a Great Man” (Sept. 13, 2011). Schepers lived to 97, but his struggle was with his own past, not with alleged corporate crime.
Labor historian Jock McCulloch wrote about Schepers’ role in documenting silicosis disability among South African miners, but even Schepers’ good deeds came with a dubious shadow. McCulloch describes a South African investigator who described “Dr Schepers as a man whose outstanding intellect was compromised by an ‘inexcusable scientific dishonesty’.” Jock McCulloch, “Hiding a Pandemic: Dr G.W.H. Schepers and the Politics of Silicosis in South Africa,” 35 J. Southern African Studies 835, 838 (2009) (citing to South African National Archives, Pretoria, F 33\671, Supplementary Confidential Report of the Departmental Committee of Enquiry into the Relation between Silicosis and Pulmonary Disability. Departmental Committee to Inquire into the Definition of Silicosis & Chest Diseases (Oosthuizen) Departmental Committee at 23 (1954)).
Contrary to the fantasy “state of the art” that made Schepers so much in demand for plaintiffs’ lawyers, and endeared so to Kazan, Castleman, and McCulloch, Schepers’ publications tell a different story. Schepers’ very first publication on asbestos and cancer came in 1963, after the work by Dr. Christopher Wagner and others, from South Africa. At that time, he wrote about pulmonary cancers:
“Neoplasia occurs in two forms: alveolar and bronchiole carcinoma, and pleural mesothelioma. The latter is particularly common in crocidolite workers, and has been mainly reported from South Africa.”
G. Schepers, ““Lung Disease Caused by Inorganic and Organic Dust” 44 Chest 133, 136 (1963). This statement came after his South Africa and Saranac experiences, but before senescence set in. Schepers also noted that “neoplasia has not yet resulted” from asbestos in experimental models. Id. at 136.
American College of Chest Physicians (1964)
In 1964, Schepers helped prepare a position paper on asbestosis for the American College of Chest Physicians. This report noted that the enhanced prevalence of pulmonary neoplasia did not appear to apply for the chrysotile industry in North America:
“In the medical literature, there are more articles favoring a positive relationship between cancer of the lung and asbestosis than denying it. While it has been reported that there may be an enhanced prevalence of pulmonary neoplasia in some asbestos industries (e.g. crocidolite or amosite), or in some locations (e.g. South Africa, England), this does not appear to apply for the chrysotile industry in North America. This comment applies both with respect to intrapulmonary new growths and to pleural mesothelioma.”
Peter A. Theodos, John W. G. Hannon, Paul Cartier, Ross K. Childerhose, David T. Dubow, G. W. H. Schepers, Reginald H. Smart, and Roy E. Whitehead, “Asbestosis: Report of the Section on Nature and Prevalence Committee on Occupational Diseases of the Chest,” 45 Chest 107, 109b (1964). This report also put pleural plaques into proper historical and physiological perspective:
“In many individuals and perhaps even the majority of cases, these pleural plaques do not present any histologic lesions of asbestosis and contain no asbestos fibers. *** These plaques, though apparent on X‑ray, are not associated with any disability.”
Id. at 109a.
New York Academy of Science Conference on Asbestos (1964)
Also in 1964, Schepers was a significant presence at Dr. Selikoff’s 1964 conference of the New York Academy of Science, where he commented upon others’ presentations. Here Schepers continued to express his doubts about the carcinogenicity of North American chrysotile:
“Finally, there is the question of whether inhalation of chrysotile is associated with neoplasia. On critically reviewing the work histories of eleven cases of lung cancer in chrysotile workers, I find that all of these had at one time or another also been exposed to other forms of asbestos, mainly amosite or crocidolite. Their predominant exposure was to chrysotile, but since there is strong evidence incriminating amosite as a carcinogen, the fact that these men also had been exposed to amosite is disruptive of a theory of carcinogenicity per se.”
Schepers, “Discussion,” in Biological Effects of Asbestos 132 Ann. N. Y. Acad. Sci. 589, 596 (1965). Schepers paved the way on manufacturing uncertainty when he suggested at the 1964 conference, an alternative hypothesis to crocidolite as a cause of mesothelioma; he suggested that some of the mesotheliomas in South Africa might have been caused by a native grass known as Klitsgras.
Talc Symposium (1973)
In May 1973, Schepers participated in a written presentation at a symposium on talc, sponsored by the United States Department of Interior. At the time, Schepers was an employee of the United States government, the Chief of the Medical Service, Veterans Administration, in Lebanon, Pennsylvania:
“There are marked differences between the capacities of the individual classes of silicate minerals to provoke responses in human and animal tissues. There also are major misconceptions as to what these substances can do when inhaled by man or other mammals. Two of the most extreme of these are
(1) that all siliceous minerals are equally pathogenic and
(2) that there is even the least semblance between the effects of the asbestiform and the non-asbestiform silicates.”
Gerrit W. H. Schepers, “The Biological Action of Talc and Other Silicate Minerals,” at 54, in Aurel Goodwin, Proceedings of the symposium on talc: U.S. Bureau of Mines; Information Circular 8639 (1974). This view was directly opposed to the Mt. Sinai gospel about to be delivered in another government proceeding. See U.S. Environmental Protection Agency v. Reserve Mining Co., 514 F.2d 492 (8th Cir. 1975) (en banc). Schepers, however, had not yet gotten the memo, or perhaps his loyalty was still to his employer, the United States government. Schepers was not, however, under the influence of any company or corporate interest, when he wrote:
“Is chrysotile a carcinogen? This is a very perplexing question. A crescendo of popular opinion has sought to incriminate chrysotile. This author remains unconvinced. The main premise for carcinogenicity stems from epidemiological observation of employees of the insulation and shipbuilding industries. In both these industries there has been in the past considerable exposure of pipe laggers to asbestos dust. Only in recent decades, however, have these insulation bats been composed predominantly of chrysotile. In former years crocidolite and amosite were important components.
***
Finally, it should be pointed out that the role of cigarette smoking has not been satisfactorily discounted in the referenced epidemiological studies of lung cancer among insulation workers. In some groups reported an excess prevalence of lung cancer was not demonstrable when cigarette smoking was taken into consideration. Epidemiological surveys of chrysotile workers in Quebec showed no excess of lung cancer. A review of pleural mesothiliomatosis in Canada also failed to focus attention on Quebec or any other center where chrysotile industries are concentrated.”
Gerrit W. H. Schepers, “The Biological Action of Talc and Other Silicate Minerals,” at 70. Unlike Dr. Selikoff, Schepers was not a crocidolite denier.
OSHA Proceedings 1976
In 1970, the Williams-Steiger Act created a new federal agency, the Occupational Safety and Health Administration, and one of its first missions was to address an asbestos problem that emerged in the 1960s. The new agency held extensive hearings and engaged in factfinding, which was dominated by Dr. Selikoff and other proxies for the labor unions.
In 1976, Schepers was not yet under the influence of the Mt. Sinai crowd; indeed, he was an employee of the United States. Here are the contemporaneous views of Dr. Schepers, as he attempted to influence the OSHA investigation of the asbestos fiber controversy. In a letter dated July 19, 1976, Schepers wrote Grover Wrenn, Chief, Division of Health Standards Development, OSHA:
“This is a follow-up on our recent meeting with the Assistant Secretary of Labor at which we discussed the question of asbestosis and berylliosis and the relationship of exposure of various industrial substances to lung cancer.
I promised to help you place items in the record which you appeared not have available.”
***
“As you can see my researches cast considerable doubt on the proposition that American fibrous minerals are carcinogenic. I am not one of those that deny the carcinogenicity of everything. To the contrary, I believe that I have helped prove that some environmental pollutants are carcinogenic. For this reason you may perhaps accept the credibility of my findings when I state that I could detect no evidence of carcinogenicity for either chrysotile, talc or fiberglass.”
Asbestos Litigation – The Gathering Storm (1978)
By the late 1970s, asbestos litigation was swamping American courtrooms. The United States Navy in particular was threatened by the potential expense of compensating its large civilian shipyard workforce. Schepers sought out the role of testifying witness, in a letter dated March 10, 1978, Dr Schepers wrote to Captain Hoeffler, of the Navy’s Bureau of Medicine and Surgery, in Washington D.C. Schepers shamelessly took credit for discovering the connection between mesothelioma and amphibole asbestos, in 1949. Of course, if this self-aggrandizing claim were true, Schepers would have been involved in a much more devastating cover-up than any American company. Here is the substance of Schepers’ 1978 solicitation letter:
“Here is a CV and some reprints which will possibly be helpful. Since I have been involved with so many things, my expertise with respect to asbestosis is somewhat hidden among the rest. For emphasis therefore let me summarize that my clinical and research involvement with asbestosis and thus also lung cancer spans some thirty years. I commenced this work in South Africa, where as a …. Medical director for the pneumoconiosis Bureau we researched the working conditions and health of all employees of that countries [sic] extensive crocidolite and amosite mines and industries. The fact that mesothelioma can be associated with asbestos dust was first discovered by me during 1949 at the Penge Egnep mines in the Eastern Transvaal. It is also important to know that only one out of three persons who develop mesothelioma ever was exposed to asbestos dust. The Institute for Pneumoconiosis Research which I started there has abundant evidence about this.
In the USA I next studied the asbestos problem for the Quebec Government and the Johns Mansville Company and also for various asbestos producing companies. This embraced research on human subjects, lung tissue and experimental animals. The net result of my fifteen years of work in this field has been to convince me that chrysotile, which is the North American type of asbestos, is relatively innocuous as compared to the African and Russian varieties. I have never seen a case of lung cancer develop on any person exposed to chrysotile only. However I have seen plenty of lung cancers in asbestos workers.
This is because most asbestos workers are exposed to carcinogenic materials other than asbestos and all the cases with lung cancer also were chronic lung self-mutilators through cigarette smoking. In a rather major set of experiments of mine, I exposed animals to the most potent known carcinogenic (beryllium sulphate) and then exposed them to asbestos (chrysotile) dust. These animals had fewer cancers than those exposed to the beryllium sulphate. So chrysotile is not even a significant co-carcinogen. I reversed the order of the exposure – namely asbestos (chrysotile) first and the the BeSO4. The result was the same. The animals exposed only to chrysotile never developed any lung cancers.
I probably have the largest collection of asbestosis case materials, having been a consultant to hundreds of physicians. I have a very detailed knowledge of what various types of asbestos can and cannot do to the lungs. If my command of this subject can be of use to the Navy in the current law suit, please feel to use my services as consultant as you deem fit.”
Schepers Reinvented
As we can see from his 1978 correspondence, Dr. Schepers was not shy about touting his expertise, or his opinions about the innocuousness of chrysotile asbestos. Castleman’s revisionist history has some support only from Scheper’s own later attempts to reinvent his past. See, e.g., Gerrit W.H. Schepers, “Chronology of Asbestos Cancer Discoveries: Experimental Studies of the Saranac Laboratory,” 27 Am. J. Indus. Med. 593-606 (1995). The contemporaneous history of Schepers’ views is, however, completely at odds with words written only after decades of consulting with, and testifying for, plaintiffs’ counsel in asbestos litigation.
Like many other defense lawyers, I confronted Dr. Schepers in cases in which he testified both on state-of-the-art issues and on the causation of mesothelioma. Towards the end of his testifying career, he likened his courtroom performances to that of “performing seal for lawyers in the courtroom.” Testimony of Gerrit W. Schepers, in Hill v. Carey Canada, New Jersey Superior Court, Law Division for Camden County, Docket No. L-051429-84, 48-50 (July 24, 1990) (before Judge Supnick and a jury).
The interviews he gave for the media were even more of a performance. In one interview that Schepers gave about a year or so before his death, he cut even more grandiose poses of a whistleblower and crusader. See Lorraine Mallinder, “Deadly Secret: A 1940s whistle-blower uncovers hidden evidence linking asbestos to cancer,” 91 Canada’s History 33 (April 2011).
Why did Schepers commit himself in retirement to the plaintiffs’ bar and their relentless prosecution of asbestos cases? Marxist historians and writers such as McCulloch and Castleman, who see every societal ill as the result of corporate influence will not likely discern Schepers’ true motivations. By the time I encountered Schepers he was no longer a needy former civil servant. He was trying to rewrite history because he was personally responsible for the continued use of South African crocidolite in the United States, for decades after he claimed to have discovered its causal relation to mesothelioma. He was a man tormented by guilt, and his ritualistic participation in trials of mesothelioma claims was expiation for his role in the tragedy.
It is sad that the asbestos litigation is still with us. Dean Wellington’s pipedream of turning the asbestos litigation feeding frenzy into an administrative routine is long gone. The bankruptcies of dozens of companies, with the losses of jobs and income for many thousands of American workers is a great tragedy; but so is the loss of historical perspective.
