In June 2015, Honeywell International Inc. subpoenaed non-party witness Dr. Arthur Frank, to produce documents and to testify, in Yates v. Ford Motor Co., et al., No. 5:12-cv-752-FL (E.D.N.C.). Although Dr. Frank is a “prolific plaintiffs’ expert” witness, he was not retained in Yates. Dr. Frank thus moved to quash the subpoena in the district where he was served, and the matter ended up on the docket of Judge Gerald J. Pappert. Frank v. Honeywell Int’l, Inc., No. 15-mc-00172, 2015 U.S. Dist. LEXIS 106453, 2015 BL 260668 (E.D. Pa. Aug. 12, 2015) [cited below as Yates]. See also Steven M. Sellers, “Asbestos Expert Tops Honeywell in Subpoena Battle,” BNA Bloomberg Law (Aug. 18, 2015).
Back in 2009, Dr. Frank lobbied the National Cancer Institute (“NCI”), and succeeded in having the NCI change its website and “Fact Sheets” about the supposed cancer risks among auto mechanics from exposure to asbestos in repairing brakes. The NCI had proposed describing any increased risk of mesothelioma or lung cancer among brake repairman as “controversial,” and not supported by the available evidence. Dr. Frank, who routinely testifies for the litigation industry that the risk is certain, known, and substantial, believed the NCI statement would be “misleading, erroneous, and contrary to the public health.” Frank believed that the NCI was basing its evaluation upon studies that were “unreliable,” and so set out to lobby the NCI. As a result of his telephoning and letter writing campaign, the NCI eliminated citations to two studies deemed unreliable (or inconvenient) to Dr. Frank, and adopted the following Frank-approved language:
“Studies into the cancer risk experienced by automobile mechanics exposed to asbestos through brake repair are limited, but the overall evidence suggests that there is no safe level for asbestos exposure.”
Yates at *4.
Operating in cahoots with, and under the guidance of asbestos plaintiffs’ counsel, Frank wrote to the NCI, of course mindful to run a draft of his correspondence past his litigation industry members. Plaintiffs’ counsel made various suggestions that Frank adopted. Yates at *5-7.
Frank objected to the subpoena on grounds that it:
(1) was too broad and unduly burdensome, as well as intended to harass;
(2) sought communications protected by attorney-client privilege; and
(3) sought the opinion of an unretained expert witness, contrary to Federal Rule of Civil Procedure 45(d)(3)(B)(ii).
The court quashed Honeywell’s subpoena only on grounds of burden, Rule 45(d)(3)(A), and did not reach Frank’s other arguments. Yates at *8.
Citing local Eastern District of Pennsylvania precedent, Judge Pappert noted that a claim of undue burden is resolved by considering several factors:
“(1) relevance of the requested materials,
(2) the party’s need for the documents,
(3) the breadth of the request,
(4) the time period covered by the request,
(5) the particularity with which the documents are described,
(6) the burden imposed, and
(7) the recipient’s status as a non-party.”
Yates at *12.
Honeywell was easily able to show the relevance of Frank’s lobbying shenanigans. Plaintiffs’ counsel have used the Frank-approved NCI website language to cross-examine defense expert witnesses, in asbestos personal injury cases.
Judge Pappert was not persuaded that Honeywell needed the requested discovery because Frank had given much of the material before, and he had previously acknowledged his working in concert with plaintiffs’ lawyers to change the NCI statement.
Honeywell thus had the evidence it needed to rehabilitate defense expert witnesses challenged with the Frank-approved NCI language. The court thus left the discovery into Frank’s ex parte lobbying activities for a case in which Frank was actually a retained expert witness, which surely will be soon. Judge Pappert exercised restraint by not addressing Frank’s improvident claim of attorney-client privilege and involuntarily servitude as an expert witness.
Frank’s lawyer, John O’Riordan, was quoted by the BNA as chastizing Honeywell:
“What the auto industry, Honeywell and others are trying to do is attack Dr. Frank personally, and what they tried to do was improper. … If they think he was wrong as a matter of science, the answer is to come back with good science.”
Steven M. Sellers, “Asbestos Expert Tops Honeywell in Subpoena Battle,” BNA Bloomberg Law (Aug. 18, 2015).
O’Riordan’s response is rather disingenuous, given that plaintiffs’ counsel in asbestos cases exploit the imprimatur of the NCI in its Frank-approved statement to challenge defense expert witnesses. This game is not about science, it is about name dropping and authority-based decision making, the antithesis of science.
