There was a good bit of irony in Egilman’s reaching out to me to help him prepare for my deposition of him in a silicone gel breast implant case. First, the materials he apparently wanted were all in a document repository for the benefit of plaintiffs’ lawyers. He needed only to have asked the Wilentz firm lawyers for relevant. In rather typical fashion, Egilman wanted to create a faux issue about defense counsel’s hiding the ball.
Second, Egilman had already completed his report, and his request showed that his opinions had been asserted without looking at material documents.
Third, and perhaps most important, in New Jersey, attorneys are not generally allowed to communicate with a represented party directly.[1] Expert witnesses are usually considered as agents of the parties that retained them, which means that such witnesses are also not free to communicate directly with the adverse parties or its counsel. There was no exact precedent for Egilman’s misconduct, but it was obviously disturbing to plaintiffs’ counsel, who promptly withdrew Egilman as a witness in the case. Alas, I did not get my chance to conduct this examination before trial.
Much of the irony in the New Jersey situation derived from Egilman’s fancying himself something of an ethicist. He certainly was quick to pronounce ethical judgments upon others, especially anyone in manufacturing industry, or any scientist who served as an expert witness opposite him. As he made clear at his CSPI lecture, Egilman had an ideological bias, and it deeply affected his judgment of science and history. He swam in the hogwash of critical theory, cultural hegemony, and Marxist cant.
To Egilman, it was obvious that material forces of capitalism meant that manufacturing industry was incapable of honestly defending its products. The motives, biases, and depradations of the lawsuit industry and its agents rarely concerned him. As a committed socialist, Egilman was incurious about how and why occupational and environmental diseases were so prevalent in socialist and communist countries, where profits are outlawed and the people own the means of production.[2]
Like the radical labor historians David Rosner and Gerald Markowitz, Egilman tried to cram the history of silicosis (and even silicosis litigation) into a Marxist narrative of class conflict, economic reductionism, and capitalist greed. Egilman’s ideological bias marred his attempts to relate the history of dust diseases. His bias made him a careless historian. Several of his attempts to relate the history of dust diseases were little more than recycled litigation reports, previously filed in various cases, with footnotes added. Egilman was occasionally listed as an expert witness in silicosis cases, but he glibly and ignorantly lumped the history of silica with that of asbestos diseases. In one article, for example, he wrote:
“Knowledge that asbestos and silica were hazardous to health became public several decades after the industry knew of the health concerns. This delay was largely influenced by the interests of Metropolitan Life Insurance Company (MetLife) and other asbestos mining and product manufacturing companies.”[3]
Egilman’s claims about silica, however, were never supported in this article or elsewhere. A brief review of two published monographs by Frederick L. Hoffman, published before 1923, should be sufficient to condemn the authors’ carelessness to the dustbin of occupational history.[4] The bibliographies in both these monographs document the widespread interest in, and awareness of, the occupational hazards of silica dusts, going back into the 19th century, among the media, the labor movement, and the non-industrial scientific community. The conversation about silicosis was on full display in the national silicosis conference of 1938, sponsored by Secretary of Labor Francis Perkins.
On at least one occasion, Egilman publicly acknowledged his own entrepreneurial and profit motives. In a consumer diacetyl exposure case (claiming bronchiolitis obliterans), a federal district court excluded Egilman’s causation opinions as unreliable. The court found that Egilman had manipulated data to reach misleading conclusions, devoid of scientific validity.[5]
Egilman was so distraught by being excluded that he sought to file a personal appeal to the United States Court of Appeal.[6] When the defendant-appellee opposed Egilman’s motion to intervene in the plaintiff’s appeal, Egilman stridently asserted his right to participate,[7] and filed his own declaration.[8] The declaration is required reading for anyone who wants to understand Egilman’s psycho-pathology.
In what was nothing short of a scurrilous pleading, Egilman attacked the district judge for having excluded him from testifying. He went so far as to claim that the judge had defamed him with derogatory comments about his “methodology.” If Egilman’s challenge to the trial judge was not bizarre enough, Egilman also claimed a right to intervene in the appeal by advancing the claim that the Rule 702 exclusion hurt his livelihood. The following language is from paragraph 11 of Dr. Egilman’s declaration in support of his motion:
“The Daubert ruling eliminates my ability to testify in this case and in others. I will lose the opportunity to bill for services in this case and in others (although I generally donate most fees related to courtroom testimony to charitable organizations, the lack of opportunity to do so is an injury to me). Based on my experience, it is virtually certain that some lawyers will choose not to attempt to retain me as a result of this ruling. Some lawyers will be dissuaded from retaining my services because the ruling is replete with unsubstantiated pejorative attacks on my qualifications as a scientist and expert. The judge’s rejection of my opinion is primarily an ad hominem attack and not based on an actual analysis of what I said – in an effort to deflect the ad hominem nature of the attack the judge creates ‘strawman’ arguments and then knocks the strawmen down, without ever addressing the substance of my positions.”
Egilman was a bit coy about how much of his fees went to him, and how much went to charity. To give the reader some idea of the artificial flavor of Egilman’s pomposity, paragraph 8 of his remarkable declaration avers”
“My views on the scientific standards for the determination of cause-effect relationships (medical epistemology) have been cited by the Massachusetts Supreme Court (Vassallo v. Baxter Healthcare Corporation, 428 Mass. 1 (1998)):
Although there was conflicting testimony at the Oregon hearing as to the necessity of epidemiological data to establish causation of a disease, the judge appears to have accepted the testimony of an expert epidemiologist that, in the absence of epidemiology, it is ‘sound science…. to rely on case reports, clinical studies, in vivo tests and animal tests.’ The judge may also have relied on the affidavit of the plaintiff’s epidemiological expert, Dr. David S. Egilman, who identified several examples in which disease causation has been established based on animal and clinical case studies alone to demonstrate that ‘doctors utilize epidemiological data as one tool among many ’.”
Egilman’s quote from the Vassallo decision is accurate as far as it goes,[9] but the underlying assertion is either a lie or a grand self-delusion. There was epidemiologic evidence on silicone and connective tissue disease before the Oregon federal district court and its technical advisors, and the court resoundingly rejected the plaintiffs’ causal claims as unsupported by valid evidence, with or without epidemiologic evidence. The argument that epidemiology was unnecessary came from Dr. Egilman’s affidavit, and the plaintiffs’ counsel’s briefs, which were considered and rejected by Judge Jones.[10]
Egilman’s affidavit in connection with the so-called Oregon hearings, which took place during the summer of 1996, was not a particularly important piece of evidence. Most of the “regulars” had put in reports or affidavits in the Hall case. Egilman failed to appear at the proceedings before the court and its technical advisors; and he was not mentioned by name in the Hall decision. Nonetheless, Judge Jones, in his published decision, clearly rejected all the plaintiffs’ witnesses and affiants, including Egilman, in their efforts to make a case for silicone as a cause of autoimmune disease.
A few months after the Oregon hearings, Judge Weinstein, in the fall of 1996, along with other federal and state judges, held a “Daubert” hearing on the admissibility of expert witness opinion testimony in breast implant cases, pending in New York state and federal courts. Egilman’s affidavit on causation was once again in play. Plaintiffs’ counsel suggested that Egilman might testify, but he was once again a no show. Egilman’s affidavit was in the record, and the multi-judge panel considered and rejected the claimed causal connection between silicone and autoimmune or connective tissue diseases.[11]
There is more, however, to the disingenuousness of Dr. Egilman’s citation to the Vassallo case. The Newkirk court, in receiving his curious declaration, would not likely have known that Vassallo was a silicone gel breast implant case, and one may suspect that Dr. Egilman wanted to keep the Ninth Circuit uninformed of his role in the silicone litigation. After all, by 1999, The Institute of Medicine (now the National Academies of Science, Engineering, and Medicine) delivered its assessment of the safety of silicone breast implants. Egilman’s distorted and exaggerated claims had been rejected.[12]
Alas, the jingle of coin doth not always soothe the hurt that conscience must feel. In his declaration, Egilman sought to temper the unfavorable judgment in the Newkirk diacetyl case by noting that only judges who had not previously encountered him would be unduly persuaded by Judge Peterson’s decision. Other judges who have heard him hold forth in court would no doubt see him for the brilliant crusading avenger that he is. The feared prejudice:
“will generally not occur in cases heard before Judges where I have already appeared as a witness. For example a New York state trial judge has praised plaintiffs’ molecular-biology and public-health expert Dr. David Egilman as follows: ‘Dr. Egilman is a brilliant fellow and I always enjoy seeing him and I enjoy listening to his testimony . . . . He is brilliant, he really is.’ [Lopez v. Ford Motor Co., et al. (120954/2000; In re New York City Asbestos Litigation, Index No. 40000/88).]”[13]
The United States Court of Appeals did not appear to hold Egilman the intervenor as brilliant as he thought himself. The court was not moved by either the bullying or the braggadocio.[14] The curious appeal was denied.
Egilman obviously could not sue the trial or appellate judges in the Newkirk case, but he did on other occasions try to deflect or diminish criticism by threats of litigation. In 2009, Laurence Hirsh, a physician, formerly with Merck, wrote a commentary for the Mayo Clinic Proceedings, on conflicts of interest. His commentary was a sustained critique of the hypocrisy and anti-industry bias of journals’ requirements for disclosure of conflict of interest.[15] Hirsch pointed out that some of the authors, including David Egilman, who had written articles critical of Merck, had given anemic disclosures of their own biases and conflicts of interest. Hirsch noted that Egilman had testified in many different litigations (too many diverse litigations to be credible for any one witness), including “silicone breast implants and connective tissue disease (characterized as the epitome of junk science)….”[16] With respect to compensation, Hirsch reported that:
“Egilman has testified for Mr Lanier and other attorneys in more than 100 tort cases (nearly always for plaintiffs) for approximately 2 decades and, by his own estimate, has earned $20 to $25 million for such testimony. Besides dollars, Egilman’s objectivity is questionable on other grounds. In 2007, he signed an admission that ‘there was another side to the story’ and was fined $100,000 by an outraged federal judge for actively facilitating the leak (through a third party) to a New York Times reporter (exclusively) of court-sealed documents in litigation involving Eli Lilly (Indianapolis, IN) and olanzapine (Zyprexa).”[17]
Hirsch’s commentary was a burr under the saddle of this lawsuit industry work horse. Egilman wrote to Hirsch to demand that he correct and retract his comments. Egilman threatened to sue Dr. Hirsch for false and defamatory statements. Alas, Hirsch was intimidated by the threats. The correction that resulted was shaped by Egilman’s assertions, and what resulted was false and misleading:
“1. Dr Egilman’s income from serving as a medical expert in tort litigation, etc, was incorrectly reported as $20-$25 million during a 20-year period. Dr Egilman actually testified in court that it was $2-$2.5 million during that time. The source for the original statement in the Commentary was an online newspaper article dated July 31, 2005. The newspaper revised its report of the court testimony by Dr Egilman in a correction that was published only in the local, printed edition on August 2, 2005 (Michael Morris, oral communication, September 11, 2009).
2. Dr Egilman was not fined by a judge for leaking court sealed documents concerning the Lilly-Zyprexa litigation. Rather, Dr Egilman and Lilly entered into an (Stipulated) agreement by US District Judge Jack Weinstein, filed September 9, 2007, in which Dr Egilman agreed to pay Lilly $100,000, and to dismiss his appeal of the Court’s Final Judgment, Order and Injunction from February and March, 2007 (http://lawprofessors.typepad.com/tortsprof/files/EgilmanSettlement.pdf).
3. Dr Egilman has not testified in court in breast implant and connective tissue disease, or in antidepressant or antipsychotic drug cases. Dr Egilman did provide a sworn affidavit in one case involving local effects of leakage of silicone from breast implants (Vassallo vs Baxter Healthcare Corporation. Decisions of the Supreme Judicial Court of Massachusetts. May 5-July 16, 1998, p. 7).
I regret these inaccuracies in my Commentary.”[18]
Egilman’s estimate of his income, without access to his tax returns, was essentially worthless. The difference between a fine and a stipulated penalty was meaningless. The claim that Egilman did not testify in the Vassallo trial, in which the plaintiff claimed that she had developed atypical autoimmune disease as a result of her silicone gel breast implants, was simply a lie that Egilman foisted upon Dr. Hirsch.
Falsus in uno, falsus in omnibus.
[1] See Formal Opinion 503, of the ABA’s Standing Committee on Ethics and Professional Responsibility, ABA Model Rule of Professional Conduct 4.02.
[2] See, e.g., Jie Li, Peng Yin, Haidong Wang, Lijun Wang, Jinling You, Jiangmei Liu, Yunning Liu, Wei Wang, Xiao Zhang, Piye Niu, and Maigeng Zhou, “The burden of pneumoconiosis in China – analysis Global Burden of Disease Study,” 22 BMC Pub. Health 1114 (2022); Na Wu, Chang Jiang Xue, Shiwen Yu, and Qiao Ye, “Artificial stone-associated silicosis in China: A prospective comparison with natural stone-associated silicosis,” 25 Respirology 518 (2019); Christa Schröder, Friedrich Klaus, Martin Butz, Dorothea Koppisch, and Otten Heinz, “Uranium mining in Germany: incidence of occupational diseases 1946-1999,” 75 Internat’l Arch. Occup. & Envt’l Health 235 (2002); A.G. Chebotarev, “Incidence of silicosis and the effectiveness of preventive measures at the Balei mines (1947 to 1967),” 13 Gigiena truda i professional’nye zabolevaniia 14 (1969) (in Russian); C. Hadjioloff, “The Development of Silicosis and Its Expert Evaluation as a Basis for the Rehabilitation of Silicosis Patients in Bulgaria,” 58 Medizinische Klinik 2023 (1963).
[3] David Egilman, Tess Bird, and Caroline Lee, “Dust diseases and the legacy of corporate manipulation of science and law, 20 Internat’l J. Occup. & Envt’l Health 115, 115 (2014) (emphasis added).
[4] Frederick L. Hoffman, Mortality from Respiratory Diseases in the Dusty Trades; Dep’t of Labor, Bureau of Labor Statistics (1918); The Problem of Dust Phthisis in the Granite Stone Industry, Dep’t of Labor, Bureau of Labor Statistics (1922). See also U.S. Department of Labor Bulletin No. 21, part I, National Silicosis Conference, Report on Medical Control (1938).
[5] Newkirk v. Conagra Foods, Inc., 727 F.Supp. 2d 1006 (E.D. Wash. 2010).
[6] Schachtman, “Exclusion of Dr. David Egilman in Diacetyl Case,” Tortini (June 20, 2011); “David Egilman’s Methodology for Divining Causation,” Tortini (Sept. 6, 2012).
[7] Opposition of David Egilman to Motion for Order to Show Cause re Dismissal of Appeal for Lack of Standing, in case no. 10-35667, document 7547640 (9th Cir. Nov. 16, 2010).
[8] Declaration of David Egilman, in Support of Opposition to Motion for Order to Show Cuase Why Appeal Should Not Be Dismissed for Lack of Standing, in case no. 10-35667, document 7547640 (9th Cir. Nov. 16, 2010) Declaration [Declaration].
[9] Vassallo v. Baxter Healthcare Corporation, 428 Mass. 1, 12 (1998).
[10] See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387 (D. Or. 1996). Judge Jones made his views very clear: contrary to Egilman’s affidavit, epidemiology was needed, but lacking, in the plaintiffs’ case.
[11] Transcript at p.159:7-18, from Nyitray v. Baxter Healthcare Corp., CV 93-159 (E.D.N.Y. Oct. 9, 1996) (pre-trial hearing before Judge Jack Weinstein, Justice Lobis, and Magistrate Cheryl Pollak). See In re Breast Implant Cases, 942 F. Supp. 958 (E.& S.D.N.Y. 1996) (rejecting sufficiency of plaintiffs’ causation expert witness evidence, which included affidavit of Dr. Egilman). Years later, Judge Jack B. Weinstein elaborated upon his published breast-implant decision, with a bit more detail about how he viewed the plaintiffs’ expert witnesses. Judge Jack B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation” 2009 Cardozo L. Rev. de novo 1, 14 (2009) (describing plaintiffs’ expert witnesses in silicone litigation as “charlatans”; “[t]he breast implant litigation was largely based on a litigation fraud. … Claims—supported by medical charlatans—that enormous damages to women’s systems resulted could not be supported.”) Egilman, who had filed an affidavit in support of the plaintiffs’ claims in the Hall case, and in the cases before Judge Weinstein, was within the scope of that litigation fraud.
[12] Stuart Bondurant, Virginia Ernster, and Roger Herdman, eds., Safety of Silicone Breast Implants (1999).
[13] Declaration at p. 9 n. 2.
[14] Newkirk v. Conagra Foods, Inc. 727 F.Supp. 2d 1006 (E.D. Wash. 2010), aff’d, 438 Fed.Appx. 607 (9th Cir.2011); Egilman v. Conagra Foods, Inc., 2012 WL 3836100 (9th Cir. 2012), cert. denied, 568 U.S. 1229 (2013).
[15] Laurence J. Hirsch, “Conflicts of Interest, Authorship, and Disclosures in Industry-Related Scientific Publications: The Tort Bar and Editorial Oversight of Medical Journals,” 84 Mayo Clin. Proc. 811 (2009).
[16] Id. at 815.
[17] Id. at 814 (internal citations omitted).
[18] Laurence J. Hirsch, “Corrections,” 85 Mayo Clin. Proc. 99 (2010).
