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Fraudulent Asbestos Diagnoses Redux

August 27th, 2024

An Associated Press journalist reported on an appeal from an interesting judgment, which few other journalists have followed.[1] Last week, Matthew Brown filed a report on an appeal before the Ninth Circuit challenging a judgment against a health clinic that had diagnosed supposed asbestos-related diseases among residents of Libby, Montana. The BNSF Railway (Burlington Northern Santa Fe Corporation) challenged the validity of more than 2,000 of the clinic’s diagnoses, in a qui tam action. A federal court jury in Missoula found that the Railway had carried its burden of proving that 337 of the cases were indeed false claims. The clinic’s fraud had made its patients wrongly entitled to various federally funded benefit programs. The Railway’s tenuous connection to the underlying claims was that its railroad serviced the vermiculite mine outside of town, and its trains passed through town.

According to Brown, Plaintiff BNSF claimed that the clinic had made its diagnoses of asbestos-related disease solely upon chest radiographs. The clinic apparently defended by confession and avoidance. Yes, it had made diagnoses solely upon radiographs, but its physicians claimed that they had done so in good faith, based upon guidance of federal officials. This defense seems rather dodgy given that asbestosis does not manifest as a unique radiographic pattern.                                                                                                

The False Claims Act case resulted in a verdict of $5.8 million in penalties and damages, with one quarter of that amount going to BNSF as the relator. The federal government had declined to prosecute the case under the Act. After judgment was entered on the verdict, CART filed for bankruptcy, but its petition was dismissed at the request of the federal government. Lawyers for the government argued that the U.S. Department of Health and Human Services was the principal funder of the clinic, as well as its primary creditor. The costs of the bankruptcy would simply fall on taxpayers, who along with the Libby-area residents, were the victims of CART’s fraud.  The defendant clinic has appealed on grounds of erroneous jury instructions, according to its appellate lawyer, Tim Bechtold.

The AP story has a sub-headline claiming “[i]ndependent, fact-based, nonpartisan reporting.” Well, maybe not.

1. For some reason, Brown was coy about identifying the fraudfeasor medical clinic. The defendant in the case was the Center for Asbestos-Related Disease, Inc. (CART). Similarly, he did not identify any of the medical personnel who submitted false claims. CART had a physical presence in Libby, Montana, where W.R. Grace mined vermiculite for many years. The group has apparently filed for bankruptcy, but its website is still active. CART’s website’s landing page describes the Center as providing “advocacy, screening, care, and resources.” Notably, “advocacy” was listed first, which might not be exactly what physicians should prioritize.

2. Mr. Brown states that “[e]xposure to even a minuscule amount of asbestos can cause lung problems, according to scientists.” As Peter Woit put it, this characterization is not even wrong. Asbestos is a commercial term for six different minerals, but only in their fibrous habit. The potency for causing some diseases in humans varies by orders of magnitude among the mineral varieties. Since only god can make asbestos, and because the different varieties of asbestos are omnipresent in the natural environment, and because humans have natural defenses to inhaled minerals at levels even above “minuscule amounts,” Brown’s quote is nothing more than lawsuit industry propaganda. His statement about minuscule exposures is noteworthy for not having any identified source, although Brown used the exact phrase in an earlier article on the jury verdict.[2]

3. Mr. Brown does not provide the caption of the case he is describing, which seems like poor journalistic practice. For readers interested in the never-ending sage of fraudulent asbestos claims, the case was BNSF Railway v. Center for Asbestos Related Disease, Inc., No. CV 19-40-M-DLC (D. Mont. July 18, 2023). Some other proceedings of the case in district court are also available online. The oral argument is quite revealing in showcasing the parties’ stipulation that asbestosis cannot be diagnosed by B-readers and their interpretation of chest radiographs. The shoddy evidentiary foundations of many of the claims supported by CART are reminiscent of the fraud in In re Silica Products Liability Litigation, 398 F. Supp. 2d 563 (S.D. Tex. 2005).

4. Although Mr. Brown was reporting on the upcoming oral argument in the Ninth Circuit, he did not link to the video of that argument, which is available at the Circuit’s website. The Ninth Circuit’s docket number is 23-35507, and the case was heard on August 21, last week, by a panel of Judges Christen, Nguyen, and Hurwitz.

5. Mr. Brown provided no discussion or analysis whether CART’s defense was coherent or valid. The interested audience members can listen to the Ninth Circuit oral argument, and judge for themselves. I for one found the documented diagnostic practices “shocking and outrageous,” as Judge Clark Brown (of Boston Legal fame) used to say. By virtue of a federal statute, Libby area residents who have been diagnosed with an asbestos-related disease are eligible for various services, including Medicare, housekeeping, travel to medical appointments and disability benefits, at taxpayer expense.

[1] Matthew Brown, “Montana asbestos clinic seeks to reverse $6M in fines, penalties over false claims,” Assoc. Press News (Aug 21, 2024).

[2] Matthew Brown, “Montana health clinic must pay nearly $6 million over false asbestos claims, judge rules,” P.B.S. Newshour (July 23, 2023).

Posted in Asbestos, Medical monitoring, Public Nuisances | No Comments »

Zhang’s Glyphosate Meta-Analysis Succumbs to Judicial Scrutiny

August 5th, 2024

Back in March 2015, the International Agency for Research on Cancer (IARC) issued its working group’s monograph on glyphosate weed killer. The report classified glyphosate as a “probable carcinogen,” which is highly misleading. For IARC, the term “probable” does not mean more likely than not, or for that matter, probable does not have any quantitative meaning. The all-important statement of IARC methods, “The Preamble,” makes this clear.[1] 

In the case of glyphosate, the IARC working group concluded that the epidemiologic evidence for an association between glyphosate exposure and cancer (specifically non-Hodgkins lymphoma (NHL)), was limited, which is IARC’s euphemism for insuffcient. Instead of epidemiology, IARC’s glyphosate conclusion was based largely upon rodent studies, but even the animal evidence relied upon by IARC was dubious. The IARC working group cherry picked a few arguably “positive” rodent study results with increases in tumors, while ignoring exculpatory rodent studies with decreasing tumor yield.[2]

Although the IARC hazard classification was uncritically embraced by the lawsuit industry, most regulatory agencies, even indulging precautionary principle reasoning, rejected the claim of carcinogenicity. The United States  Environmental Protection Agency (EPA), European Food Safety Authority, Food and Agriculture Organization (in conjunction with World Health Organization, European Chemicals Agency, Health Canada, German Federal Institute for Risk Assessment, among others, found that the scientific evidence did not support the claim that glyphosate causes NHL. The IARC monograph very quickly after publication became the proximate cause of a huge litigation effort by the lawsuit industry against Monsanto.

The personal injury cases against Monsanto, filed in federal court, were aggregated for pre-trial hearing, before Judge Vince Chhabria, of the Northern District of California, as MDL 2741. Judge Chhabria denied Monsanto’s early Rule 702 motions, and thus cases proceeded to trial, with mixed results.

In 2019, the Zhang study, a curious meta-analysis of some of the available glyphosate epidemiologic studies appeared in Mutation Research / Reviews in Mutation Research, a toxicology journal that seemed an unlikely venue for a meta-analysis of epidemiologic studies. The authors combined selected results from one large cohort study, the Agricultural Health Study, along with five case-control studies, to reach a summary relative risk of 1.41 (95% confidence interval 1.13-1.75).[3] According to the authors, their “current meta-analysis of human epidemiological studies suggests a compelling link between exposures to GBHs [glyphosate] and increased risk for NHL.”

The Zhang meta-analysis was not well reviewed in regulatory and scientific circles. The EPA found that Zhang used inappropriate methods in her meta-analysis.[4] Academic authors also panned the Zhang meta-analysis in both scholarly,[5] and popular articles.[6] The senior author of the Zhang paper, Lianne Sheppard, a Professor in the University of Washington Departments of Environmental  and  Occupational Health Sciences, and Biostatistics, attempted to defend the study, in Forbes.[7] Professor Geoffrey Kabat very adeptly showed that this defense was futile.[8] Despite the very serious and real objections to the validity of the Zhang meta-analysis, plaintiffs’ expert witnesses, such as Beate Ritz, an epidemiologist with U.C.L.A. testified that she trusted and relied upon the analysis.[9]

For five years, the Zhang study was a debating point for lawyers and expert witnesses in the glyphosate litigation, without significant judicial gatekeeping. It took the entrance of Luoping Zhang herself as an expert witness in the glyphosate litigation, and the procedural oddity of her placing exclusive reliance upon her own meta-analysis, to bring the meta-analysis into the unforgiving light of judicial scrutiny.

Zhang is a biochemist and toxicologist, in the University of California, Berkeley. Along with two other co-authors of her 2019 meta-analysis paper, she had been a board member of the EPA’s 2016 scientific advisory panel on glyphosate. After plaintiffs’ counsel disclosed Zhang as an expert witness, she disclosed her anticipated testimony, as is required by Federal Rule of Civil Procedure 26, by attaching and adopting by reference the contents of two of her published papers. The first paper was her 2019 meta-analysis; the other paper discussed putative mechanisms. Neither paper concluded that glyphosate causes NHL. Zhang’s disclosure did not add materially to her 2019 published analysis of six epidemiologic studies on glyphosate and NHL.

The defense challenged the validity of Dr. Zhang’s proffered opinions, and her exclusive reliance upon her own 2019 meta-analysis required the MDL court to pay attention to the failings of that paper, which had previously escaped critical judicial scrutiny. In June 2024, after an oral hearing in Bulone v. Monsanto, at which Dr. Zhang testified, Judge Chhabria ruled that Zhang’s proffered testimony, and her reliance upon her own meta-analysis was “junk science.”[10]

Judge Chhabria, perhaps encouraged by the recently fortifying amendment to Rule 702, issued a remarkable opinion that paid close attention to the indicia of validity of an expert witness’s opinion and the underlying meta-analysis. Judge Chhabria quickly spotted the disconnect between Zhang’s published papers and what is required for an admissible causation opinion. The mechanism paper did not address the extant epidemiology, and both sides in the MDL had emphasized that the epidemiology was critically important for determining whether there was, or was not, causation.

Zhang’s meta-analysis did evaluate some, but not all, of the available epidemiology, but the paper’s conclusion stopped considerably short of the needed opinion on causation. Zhang and colleagues had concluded that there was a “compelling link” between exposures to [glyphosate-based herbicides] and increased risk for NHL. In their paper’s key figure, show casing the summary estimate of relative risk of 1.41 (95% C.I., 1.13 -1.75), Zhang and her co-authors concluded only that exposure was “associated with an increased risk of NHL.” According to Judge Chhabria, in incorporating her 2019 paper into her Rule 26 report, Zhang failed to add a proper holistic causation analysis, as had other expert witnesses who had considered the Bradford Hill predicates and considerations.

Judge Chhabria picked up on another problem that has both legal and scientific implications. A meta-analysis is out of date as soon as a subsequent epidemiologic study becomes available, which would have satisfied the inclusion criteria for the meta-analysis. Since publishing her meta-analysis in 2019, additional studies had in fact been published. At the hearing, Dr. Zhang acknowledged that several of them would qualify for inclusion in the meta-analysis, per her own stated methods. Her failure to update the meta-analysis made her report incomplete and inadmissible for a court matter in 2024.

Judge Chhabria might have stopped there, but he took a closer look at the meta-analysis to explore whether it was a valid analysis, on its own terms. Much as Chief Judge Nancy Rosenstengel had done with the made-for-litigation meta-analysis concocted by Martin Wells in the paraquat litigation,[11] Judge Chhabria examined whether Zhang had been faithful to her own stated methods. Like Chief Judge Rosenstengel’s analysis, Judge Chhabria’s analysis stands as a strong rebuttal to the uncharitable opinion of Professor Edward Cheng, who has asserted that judges lack the expertise to evaluate the “expert opinions” before them.[12]

Judge Chhabria accepted the intellectual challenge that Rule 702 mandates. With the EPA memorandum lighting the way, Judge Chhabria readily discerned that “the challenged meta-analysis was not reliably performed.” He declared that the Zhang meta-analysis was “junk science,” with “deep methodological problems.”

Zhang claimed that she was basing the meta-analysis on the subgroups of six studies with the heaviest glyphosate exposure. This claim was undermined by the absence of any exposure-response gradient in the study deemed by Zhang to be of the highest quality. Furthermore, of the remaining five studies, three studies failed to provide any exposure-dependent analysis other than a comparison of NHL rates among “ever” versus “never” glyphosate exposure. As a result of this heterogeneity, Zhang used all the data from studies without exposure characterizations, but only limited data from the other studies that analyzed NHL by exposure levels. And because the highest quality study was among those that provided exposure level correlations, Zhang’s meta-analysis used only some of the data from it.

The analytical problems created by Zhang’s meta-analytical approach were compounded by the included studies’ having measured glyphosate exposures differently, with different cut-points for inclusion as heavily exposed. Some of the excluded study participants would have heavier exposure than those included in the summary analysis.

In the universe of included studies, some provided adjusted results from multi-variate analyses that included other pesticide exposures. Other studies reported only unadjusted results. Even though Zhang’s method stated a preference for adjusted analyses, she inexplicably failed to use adjusted data in the case of one study that provided both adjusted and unadjusted results.

As shown in Judge Chhabria’s review, Zhang’s methodological errors created an incoherent analysis, with methods that could not be justified. Even accepting its own stated methodology, the meta-analysis was an exercise in cherry picking. In the court’s terms, it was, without qualification, “junk science.”

After the filing of briefs, Judge Chhabria provided the parties an oral hearing, with an opportunity for viva voce testimony. Dr. Zhang thus had a full opportunity to defend her meta-analysis. The hearing, however, did not go well for her. Zhang could not talk intelligently about the studies included, or how they defined high exposure. Zhang’s lack of familiarity with her own opinion and published paper was yet a further reason for excluding her testimony.

As might be expected, plaintiffs’ counsel attempted to hide behind peer review. Plaintiffs’ counsel attempted to shut down Rule 702 scrutiny of the Zhang meta-analysis by suggesting that the trial court had no business digging into validity concerns given that Zhang had published her meta-analysis in what apparently was a peer reviewed journal. Judge Chhabria would have none of it. In his opinion, publication in a peer-reviewed journal cannot obscure the glaring methodological defects of the relied upon meta-analysis. The court observed that “[p]re-publication editorial peer review, just by itself, is far from a guarantee of scientific reliability.”[13] The EPA memorandum was thus a more telling indicator of the validity issues than the publication in a nominally peer-reviewed journal.

Contrary to some law professors who are now seeking to dismantle expert witness gatekeeping as beyond a judge’s competence, Judge Chhabria dismissed the suggestion that he lacked the expertise to adjudicate the validity issues. Indeed, he displayed a better understanding of the meta-analytic process than did Dr. Zhang. As the court observed, one of the goals of MDL assignments was to permit a single trial judge to have time to engage with the scientific issues and to develop “fluency” in the relevant scientific studies. Indeed, when MDL judges have the fluency in the scientific concepts to address Rule 702 or 703 issues, it would be criminal for them to ignore it.

The Bulone opinion should encourage lawyers to get “into the weeds” of expert witness opinions. There is nothing that a little clear thinking – and glyphosate – cannot clear away. Indeed, now that the weeds of Zhang’s meta-analysis are cleared away, it is hard to fathom that any other expert witness can rely upon it without running afoul of both Federal Rules of Evidence 702 and 703.

There were a few issues not addressed in Bulone. As seen in her oral hearing testimony, Zhang probably lacked the qualifications to proffer the meta-analysis. The bar for qualification as an expert witness, however, is sadly very low. One other issue that might well have been addressed is Zhang’s use of a fixed effect model for her meta-analysis. Considering that she was pooling data from cohort and case-control studies, some with and some without adjustments for confounders, with different measures of exposure, and some with and some without exposure-dependent analyses, Zhang and her co-authors were not justified in using a fixed effect model for arriving at a summary estimate of relative risk. Admittedly, this error could easily have been lost in the flood of others.

Postscript

Glyphosate is not merely a scientific issue. Its manufacturer, Monsanto, is the frequent target of media outlets (such as Telesur) from autocratic countries, such as Communist China and its client state, Venezuela.[14]

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[1] “The IARC-hy of Evidence – Incoherent & Inconsistent Classifications of Carcinogenicity,” Tortini (Sept. 19, 2023).

[2] Robert E Tarone, “On the International Agency for Research on Cancer classification of glyphosate as a probable human carcinogen,” 27 Eur. J. Cancer Prev. 82 (2018).

[3] Luoping Zhang, Iemaan Rana, Rachel M. Shaffer, Emanuela Taioli, Lianne Sheppard, “Exposure to glyphosate-based herbicides and risk for non-Hodgkin lymphoma: A meta-analysis and supporting evidence,” 781 Mutation Research/Reviews in Mutation Research 186 (2019).

[4] David J. Miller, Acting Chief Toxicology and Epidemiology Branch Health Effects Division, U.S. Environmental Protection Agency, Memorandum to Christine Olinger, Chief Risk Assessment Branch I, “Glyphosate: Epidemiology Review of Zhang et al. (2019) and Leon et al. (2019) publications for Response to Comments on the Proposed Interim Decision” (Jan. 6, 2020).

[5] Geoffrey C. Kabat, William J. Price, Robert E. Tarone, “On recent meta-analyses of exposure to glyphosate and risk of non-Hodgkin’s lymphoma in humans,” 32 Cancer Causes & Control 409 (2021).

[6] Geoffrey Kabat, “Paper Claims A Link Between Glyphosate And Cancer But Fails To Show Evidence,” Science 2.0 (Feb. 18, 2019).

[7] Lianne Sheppard, “Glyphosate Science is Nuanced. Arguments about it on the Internet? Not so much,” Forbes (Feb. 20, 2020).

[8] Geoffrey Kabat, “EPA Refuted A Meta-Analysis Claiming Glyphosate Can Cause Cancer And Senior Author Lianne Sheppard Doubled Down,” Science 2.0 (Feb. 26, 2020).

[9] Maria Dinzeo, “Jurors Hear of New Study Linking Roundup to Cancer,” Courthouse News Service (April 8, 2019).

[10] Bulone v. Monsanto Co., Case No. 16-md-02741-VC, MDL 2741 (N.D. Cal. June 20, 2024). See Hank Campbell, “Glyphosate legal update: Meta-study used by ambulance-chasing tort lawyers targeting Bayer’s Roundup as carcinogenic deemed ‘junk science nonsense’ by trial judge,” Genetic Literacy Project (June 24, 2024).

[11] In re Paraquat Prods. Liab. Litig., No. 3:21-MD-3004-NJR, 2024 WL 1659687 (S.D. Ill. Apr. 17, 2024) (opinion sur Rule 702 motion), appealed sub nom., Fuller v. Syngenta Crop Protection, LLC, No. 24-1868 (7th Cir. May 17, 2024). See “Paraquat Shape-Shifting Expert Witness Quashed,” Tortini (April 24, 2024).

[12] Edward K. Cheng, “The Consensus Rule: A New Approach to Scientific Evidence,” 75 Vanderbilt L. Rev. 407 (2022). See “Cheng’s Proposed Consensus Rule for Expert Witnesses,” Tortini (Sept. 15, 2022); “Further thoughts on Cheng’s Consensus Rule,” Tortini (Oct. 3, 2022).

[13] Bulone, citing Valentine v. Pioneer Chlor Alkali Co., 921 F. Supp. 666, 674-76 (D. Nev. 1996), for its distinction between “editorial peer review” and “true peer review,” with the latter’s inclusion of post-publication assessment of a paper as really important for Rule 702 purposes.

[14] Anne Applebaum, Autocracy, Inc.: The Dictators Who Want to Run the World 66 (2024).

Posted in Causation, Confounding, Expert Witnesses, Meta-analysis, Rule 702, Rule 703, statistical evidence | 11 Comments »