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The Fourth Edition’s Chapter on Admissibility of Expert Witness Testimony – Part 2

February 24th, 2026

The Manual’s new law chapter on the admissibility (vel non) of expert witness testimony was written by two law professors who teach evidence, and who often write articles with each another.[1] Liesa Richter teaches at the University of Oklahoma College of Law. Daniel Capra teaches at Fordham School of Law, in Manhattan. For the last three decades, Capra has been the Reporter for the Judicial Conference Advisory Committee on the Federal Rules of Evidence. There probably is no evidence law scholar more involved with the Federal Rules, including with the key expert witness rules, Rule 702 and Rule 703, than Capra.

The new chapter’s strengths follow from Professor Capra’s involvement in the evolution of Rule 702. The chapter plainly acknowledges that the Supreme Court decisions in the 1990s follow from an epistemic standard, and the use of the terms “scientific” and “knowledge” in Rule 702. Counting heads, as suggested by the Frye case, was at times a weak and ambiguous proxy for knowledge.[2] The new chapter has the important advantage of not having authors entwined in the advocacy of dodgy groups such as SKAPP, and the Collegium Ramazzini. Gone from the new chapter are Berger’s gratuitous and unwarranted endorsements and mischaracterizations of carcinogenicity evaluations by the International Agency for Research on Cancer (IARC).

Like Berger’s previous versions of this chapter, the new chapter carefully explains the Supreme Court decisions on expert witness admissibility and the changes in Rule 702, over time, including the 2023 amendment to 702. One glaring omission from the new chapter is absence of any mention of the fourth Supreme Court case in the 1993-2000 quartert: Weisgram v. Marley.[3] This important opinion by Justice Ginsburg was a clear expression of the seriousness with which the Court took the gatekeeping enterprise:

“Since Daubert, moreover, parties relying on expert testimony have had notice of the exacting standards of reliability such evidence must meet… . It is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first trial fail.”[4]

Professor Berger discussed this case in her last chapter, but the new authors fail to mention it all.[5] 

On the plus side, Richter and Capra discuss, although way too briefly, the role that Federal Rule of Evidence 703 plays in governing expert witness testimony.[6]  Rule 703 does not address the admissibility of expert witnesses’ opinions, but it does give trial courts control over what hearsay facts and data (such as published studies), otherwise inadmissible, upon which expert witnesses can rely.[7] Richter and Capra do not, however come to grips what how Rule 703 will often require trial courts to engage with the specifics of the validity and flaws of specific studies in order to evaluate the reasonableness of expert witness reliance upon them. Berger, in the third edition of the Manual, completely failed to address Rule 703, and its important role in gatekeeping.

Richter and Capra helpfully advise judges to be cautious in relying upon pre-2023 amendment cases because that most recent amendment was designed to correct clearly erroneous applications of Rule 702 in both federal trial and appellate courts.[8] The new Manual authors also deserve credit for being willing to call out judges for ignoring the Rule 702 sufficiency prong and for invoking the evasive dodge of many courts in characterizing expert witness challenges as going to “weight not admissibility.”[9]

Richter and Capra improve upon past chapters by simply reporting that the 2023 amendment to Rule 702 addressed important concerns that courts were failing to keep expert witnesses “within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology,” and that Rule Rule 702(d) was amended to emphasize their legal obligation to do so.[10] Berger could have discussed this phenomenon even back in 2010-11, but failed to do so.

The new authors report that the Rules Advisory Committee had been concerned that expert witnesses engage regularly in overstating or overclaiming the appropriate level of certainty for their opinions, especially in the context of forensic science.[11] Although the recognition of problematic overclaiming in forensic science is a welcomed development, Richter and Capra fail to recognize that overclaiming is at the heart of the Milward case involving benzene exposure and acute promyelocytic leukemia (APL). And they seem unaware that overclaiming is baked into the precautionary principle that drives IARC pronouncements, advocacy positions of groups such as the Collegium Ramazzini, and much of regulatory rule-making.

In several respects, Richter and Capra have improved upon the past three editions in presenting the law of expert witness testimony. The new chapter gives a brief exposition of the Joiner case,[12] where the Court concluded that that there was an “analytical gap” between the plaintiffs’ experts witnesses’ conclusion on causation and the animal and human studies upon which they relied. The authors’ summary of the case explains that the Supreme Court majority concluded that the trial court below was well within its discretion to find that the plaintiffs’ expert witnesses had a cavernous analytical gap between their relied upon evidence and their conclusion that polychlorobiphenyls (PCBs) caused Mr. Joiner’s lung cancer.

Richter and Capra’s goes sideways in addressing the dissent by Justice Stevens and by giving it uncritical, disproportionate attention. As a dissent, which has never gained any serious acceptance on the high court by any other member, Justice Stevens’ opinion in Joiner hardly deserved any mention at all. Richter and Capra note, however, early in the chapter that Justice Stevens’ criticized the majority in Joiner for having “examined each study relied upon by the plaintiff’s experts in a piecemeal fashion and concluded that the experts’ opinions on causation were unreliable because no one study supported causation.”[13] Stevens’ criticism was wide of the mark in that the Court specifically addressed the “mosaic” theory that was a reprise of the plaintiffs’ unsuccessful strategy in the Bendectin litigation.[14]

Justice Stevens’ dissent wantonly embraced Joiner’s expert witnesses’ use of a “weight of the evidence” (WOE) methodology. Stevens asserted that WOE is accepted in regulatory circles, which is true but irrelevant, and that it is accepted in scientific circles, which is a gross exaggeration and misrepresentation. Richter and Capra somehow manage to discuss Stevens’ WOE argument twice,[15] thereby giving undue, uncritical emphasis and appearing to endorse it over the majority opinion, which after all contained the holding of the Joiner case. The authors give credence to the WOE argument in Joiner by suggesting that the majority had not adequately addressed it, and by failing to provide or cite any critical commentary on WOE.

Careful readers will be left wondering why their time is being wasted with the emphasis on a dissent that was never the law, that mischaracterized the majority opinion, that endorsed a method, WOE, that has been widely criticized, and that never persuaded any other justice to join.

The scientific community has never been seriously impressed by the so-called WOE approach to determining causality.  The phrase is vague and ambiguous; its use, inconsistent.[16] Although the phrase, WOE, is thrown around a lot, especially in regulatory contexts, it has no clear, consistent meaning or mode of application.[17]

Many lawyers, like Justice Stevens, Richter, and Capra, may feel comfortable with WOE because the phrase is used often in the law, where the subjectivity, vagueness, lack of structure and hierarchy to the metaphor “weighing” evidence is seen as a virtue that avoids having to worry too much about the evidential soundness of verdicts.[18] The process of science, however, is not like that of a jury’s determination of a fact such as who had the right of way in a car collision case. Not all evidence is the same in science, and a scientific judgment is not acceptable when it hangs on weak evidence and invalid inferences.

The lawsuit industry and its expert witnesses have adopted WOE, much as they have the equally vague term, “link,” for WOE’s permissiveness of causal inferences. WOE frees them from the requirement of any meaningful methodology, which means that any conclusion is possible, including their preferred conclusion. Under WOE, any conclusion can survive gatekeeping as an opinion. WOE frees the putative expert witness from the need to consider the quality of research. WOE-ful enthusiasts such as Carl Cranor invoke WOE or seek to inflict WOE without mentioning the crucial “nuts and bolts” of scientific inference, such as concepts of

  • Internal and external validity
  • A hierarchy of evidence
  • Assessment of random error
  • Assessment of known and residual confounding
  • Known and potential threats to validity
  • Pre-specification of end points and statistical analyses
  • Pre-specification of weights to be assigned, and inclusionary and exclusionary criteria for studies
  • Appropriate synthesis across studies, such as systematic review and meta-analysis

These important concepts are lost in the miasma of WOE.

If Richter and Capra wished to take a deeper dive into the Joiner case, rather than elevate the rank speculation of the lone dissenter, Justice Stevens, they may have asked whether Joiner’s expert witnesses relied upon all, or the most carefully conducted, epidemiologic studies.

As the record was fashioned, the Supreme Court’s discussion of the plaintiffs’ expert witnesses’ methodological excesses and failures did not include a discussion of why the excluded witnesses had failed to rely upon all the available epidemiology. The challenged witnesses relied upon an unpublished Monsanto study, but apparently ignored an unpublished investigation by NIOSH government researchers, who found that there were “no excess deaths from cancers of the … the lung,” among PCB-exposed workers at a Westinghouse Electric manufacturing facility. Actually, the NIOSH report indicated a statistically non-significant decrease in lung cancer rate among PCB exposed workers, with fairly a narrow confidence interval; SMR = 0.7 (95% CI, 0.4 – 1.2).[19] By the time the Joiner case was litigated, this unpublished NIOSH report was published and unjustifiably ignored by Joiner’s expert witnesses.[20] Twenty years after Joiner was decided in the Supreme Court, NIOSH scientists published updated data from this cohort, which showed that the long-term lung cancer mortality for PCB-exposed workers remained reduced, with a standardized mortality ratio of 0.88 (95% C.I., 0.7–1.1) for the cohort, and even lower for the workers with the highest levels of exposure, 0.82 (95% C.I., 0.5–1.3).[21]

At the time the Joiner case was on its way up to the Supreme Court, two Swedish studies were available, but they were perhaps too small to add much to the mix of evidence.[22] Another North American study published in 1987, and not cited by Joiner’s expert witnesses, was also conducted in a cohort of North American PCB-exposed capacitor workers, and showed less than expected mortality from lung cancer.[23] Joiner thus represents not only an analytical gap case, but also a cherry picking case. The Supreme Court was eminently correct to affirm the shoddy evidence proffered in the Joiner case.

Thirty years after the Supreme Court decided Joiner, the claim that PCBs cause lung cancer in humans remains unsubstantiated. Subsequent studies bore out the point that Joiner’s expert witnesses were using an improper, unsafe methodology and invalid inferences to advance a specious claim.[24] In 2015, researchers published a large, updated cohort study, funded by General Electric, on the mortality experience of workers in a plant that manufactured capacitors with PCBs. The study design was much stronger than anything relied upon by Joiner’s expert witnesses, and its results are consistent with the NIOSH study available to, but ignored by, them. The results are not uniformly good for General Electric, but on the end point of lung cancer for men, the standardized mortality ratio was 81 (95% C.I., 68 – 96), nominally statistically significantly below the expected SMR of 100.[25]

There is also the legal aftermath of Joiner, in which the Supreme Court reversed and remanded the case to the 11th Circuit, which in turn remanded the case back to the district court to address claims that Mr. Joiner had also been exposed to furans and dioxins, and that these other chemicals had caused, or contributed to, his lung cancer, as well.[26] 

Thus the dioxins were left in the case even after the Supreme Court ruled on admissibility of expert witnesses’ opinions on PCBs and lung cancer. Anthony Roisman, a lawyer with the plaintiff-side National Legal Scholars Law Firm, P.C., argued that the Court had addressed an artificial question when asked about PCBs alone because the case was really about an alleged mixture of exposures, and he held out hope that the Joiners would do better on remand.[27]

Alas, the Joiner case evaporated in the district court. In February 1998, Judge Orinda Evans, who had been the original trial judge, and who had sustained defendants’ Rule 702 challenges and granted their motions for summary judgments, received and reopened the case upon remand from the 11th Circuit. Judge Evans set a deadline for a pre-trial order, and then extended the deadline at plaintiff’s request. After Joiner’s lawyers withdrew, and then their replacements withdrew, the parties ultimately stipulated to the dismissal of the case with prejudice, in February 1999. The case had run its course, and so had the claim that dioxins were responsible for plaintiff’s lung cancer.

In 2006, the National Research Council published a monograph on dioxin, which took the controversial approach of focusing on all cancer mortality rather than specific cancers that had been suggested as likely outcomes of interest.[28] The validity of this approach, and the committee’s conclusions, were challenged vigorously in subsequent publications.[29] In 2013, the Industrial Injuries Advisory Council (IIAC), an independent scientific advisory body in the United Kingdom, published a review of lung cancer and dioxin. The Council found the epidemiologic studies mixed, and declined to endorse the compensability of lung cancer for dioxin-exposed industrial workers.[30]

In 1996, when Justice Stevens dissented in Joiner, and over the course of three decades, Stevens’ assessment of science, scientific methodology, and law have been wrong. His viewpoints never gained acceptance from any other justice on the Supreme Court. Richter and Capra, in writing the first chapter of the new Reference Manual, lead judges and lawyers astray in improvidently elevating the dissent, as though it were law, and in failing to provide sufficient context, analysis, and criticism.

(To be continued.)

[1] Liesa L. Richter & Daniel J. Capra, The Admissibility of Expert Testimony, National Academies of Sciences, Engineering, and Medicine & Federal Judicial Center, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 1 (4th ed. 2025).

[2] Id. at 6.

[3] 528 U.S. 440 (2000).

[4] 528 U.S. at 445 (internal citations omitted).

[5] Margaret A. Berger, The Admissibility of Expert Testimony, in National Academies of Sciences, Engineering and Medicine & Federal Judicial Center, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 11, 18-19 (3rd 2011).

[6] Richter & Capra at 17.

[7] See Nathan A. Schachtman, Rule of Evidence 703—Problem Child of Article VII, PROOF 3 (Spring 2009).

[8] Id. at 13.

[9] Id. at 16.

[10] Id. at 22-23.

[11] Id. at 23, 39.

[12] General Electric Co. v. Joiner, 522 U.S. 136 (1997).

[13] Richter & Capra at 10 (citing General Electric Co. v. Joiner, 522 U.S. 136, 150-155 (1997) (Stevens, J.).

[14] Joiner, 522 U.S. at 147-48.

[15] Richter & Capra at 10, 31.

[16] See, e.g., V. H. Dale, G.R. Biddinger, M.C. Newman, J.T. Oris, G.W. Suter II, T. Thompson, et al., Enhancing the ecological risk assessment process, 4 INTEGRATED ENVT’L ASSESS. MANAGEMENT 306 (2008) (“An approach to interpreting lines of evidence and weight of evidence is critically needed for complex assessments, and it would be useful to develop case studies and/or standards of practice for interpreting lines of evidence.”); Igor Linkov, Drew Loney, Susan M. Cormier, F.Kyle Satterstrom & Todd Bridges, Weight-of-evidence evaluation in environmental assessment: review of qualitative and quantitative approaches, 407 SCI. TOTAL ENV’T 5199–205 (2009); Douglas L. Weed, Weight of Evidence: A Review of Concept and Methods, 25 RISK ANALYSIS 1545 (2005) (noting the vague, ambiguous, indefinite nature of the concept of WOE review); R.G. Stahl Jr., Issues addressed and unaddressed in EPA’s ecological risk guidelines, 17 RISK POLICY REPORT 35 (1998); (noting that U.S. EPA’s guidelines for ecological WOE approaches to risk assessment fail to provide meaningful guidance); Glenn W. Suter & Susan M. Cormier, Why and how to combine evidence in environmental assessments: Weighing evidence and building cases, 409 SCI. TOTAL ENV’T 1406, 1406 (2011) (noting arbitrariness and subjectivity of WOE “methodology”).

[17] See Charles Menzie, et al., “A weight-of-evidence approach for evaluating ecological risks; report of the Massachusetts Weight-of-Evidence Work Group,” 2 HUMAN ECOL. RISK ASSESS. 277, 279 (1996)  (“although the term ‘weight of evidence’ is used frequently in ecological risk assessment, there is no consensus on its definition or how it should be applied”); Sheldon Krimsky, “The weight of scientific evidence in policy and law,” 95 AM. J. PUB. HEALTH S129 (2005) (“However, the term [WOE] is applied quite liberally in the regulatory literature, the methodology behind it is rarely explicated.”).

[18] See, e.g., People v. Collier, 146 A.D.3d 1146, 1147-48, 2017 NY Slip Op 00342 (N.Y. App. Div. 3d Dep’t, Jan. 19, 2017) (rejecting appeal based upon defendant’s claim that conviction was against “weight of the evidence”); Venson v. Altamirano, 749 F.3d 641, 656 (7th Cir. 2014) (noting “new trial is appropriate if the jury’s verdict is against the manifest weight of the evidence”).

[19] Thomas Sinks, et al., Health Hazard Evaluation Report, HETA 89-116-209 (Jan. 1991).

[20] Thomas Sinks, et al., Mortality among workers exposed to polychlorinated biphenyls,” 136 AM. J. EPIDEMIOL. 389 (1992).

[21] Avima M. Ruder, et al., Mortality among Workers Exposed to Polychlorinated Biphenyls (PCBs) in an Electrical Capacitor Manufacturing Plant in Indiana: An Update, 114 ENVT’L HEALTH PERSP. 18, 21 (2006).

[22] P. Gustavsson, et al., Short-term mortality and cancer incidence in capacitor manufacturing workers exposed to polychlorinated biphenyls (PCBs), 10 AM. J. INDUS. MED. 341 (1986); P. Gustavsson & C. Hogstedt, “A cohort study of Swedish capacitor manufacturing workers exposed to polychlorinated biphenyls (PCBs),” 32 AM. J. INDUS. MED. 234 (1997) (cancer incidence for entire cohort, SIR = 86, 95%; CI 51-137).

[23] David P. Brown, “Mortality of workers exposed to polychlorinated biphenyls–an update,” 42 ARCH. ENVT’L HEALTH 333, 336 (1987

[24] See Mary M. Prince, et al., Mortality and exposure response among 14,458 electrical capacitor manufacturing workers exposed to polychlorinated biphenyls (PCBs), 114 ENVT’L HEALTH PERSP. 1508, 1511 (2006) (reporting a nominally statistically significant decreased mortality ratio of 0.78, 95% C.I. 0.65–0.93, for men exposed to PCBs); Avima M. Ruder, Mortality among 24,865 workers exposed to polychlorinated biphenyls (PCBs) in three electrical capacitor manufacturing plants: a ten-year update, 217 INT’L J. HYG. & ENVT’L HEALTH 176, 181 (2014) (reporting no increase in the lung cancer standardized mortality ratio for long-term workers, 0.99, 95% C.I., 0.91–1.07).

[25] Renate D. Kimbrough, et al., Mortality among capacitor workers exposed to polychlorinated biphenyls (PCBs), a long-term update, 88 INT’L ARCH. OCCUP. & ENVT’L HEALTH 85 (2015).

[26] Joiner v. General Electric Co., 134 F.3d 1457 (11th Cir. 1998) (per curiam).

[27] Anthony Z. Roisman, The Implications of G.E. v. Joiner for Admissibility of Expert Testimony, 65 VT. J. ENVT’L L. 1 (1998).

[28] See David L. Eaton (Chairperson), HEALTH RISKS FROM DIOXIN AND RELATED COMPOUNDS – EVALUATION OF THE EPA REASSESSMENT (2006).

[29] Paolo Boffetta, et al., TCDD and cancer: A critical review of epidemiologic studies,” 41 CRIT. REV. TOXICOL. 622 (2011) (“In conclusion, recent epidemiological evidence falls far short of conclusively demonstrating a causal link between TCDD exposure and cancer risk in humans.”).

[30] Industrial Injuries Advisory Council – Information Note on Lung cancer and Dioxin (December 2013). See also Mann v. CSX Transp., Inc., 2009 WL 3766056, 2009 U.S. Dist. LEXIS 106433 (N.D. Ohio 2009) (Polster, J.) (dioxin exposure case) (“Plaintiffs’ medical expert, Dr. James Kornberg, has opined that numerous organizations have classified dioxins as a known human carcinogen. However, it is not appropriate for one set of experts to bring the conclusions of another set of experts into the courtroom and then testify merely that they ‘agree’ with that conclusion.”), citing Thorndike v. DaimlerChrysler Corp., 266 F. Supp. 2d 172 (D. Me. 2003) (court excluded expert who was “parroting” other experts’ conclusions).

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The Reference Manual’s Chapter on Expert Witness Testimony Admissibility – Part One

February 23rd, 2026

With the retraction of the climate science chapter, The Reference Manual on Scientific Evidence is now one chapter shorter, at least in the Federal Judicial Center’s version. At the time of this writing, for curious souls, the National Academies version is still sporting the climate advocacy chapter. Even without the climate chapter, the Manual is over 1,000 pages, and more than a casual weekend read. Many judges, finding this tome on their desks, will read individual subject matter chapters pro re nata. The first chapter in the Manual, however, is about the law, not science, and might be the starting place for the ordinary work-a-day judge. As in past editions of the Manual, the new edition has a chapter on the The Admissibility of Expert Testimony. In the first, second, and third editions, this chapter was written by Professor Margaret Berger. In the fourth edition, the chapter on the law was written by law professors Liesa Richter and Daniel Capra. To understand and evaluate the most recent iteration, the reader should have some sense of what has gone before.

Previous Chapters on Admissibility of Expert Witness Testimony

Professor Berger’s past chapters had been idiosyncratic productions.[1] Berger was an evidence law scholar, who wrote often about expert witness admissibility issues.[2] She was also known for her antic proposals, such as calling for abandoning the element of causation in products liability cases.[3] As an outspoken ideological opponent of expert witness gatekeeping, Berger was a strange choice to write the law chapter of the Manual.[4] Berger’s chapters in the first through the third editions made her opposition to gatekeeping obvious, and this hostility may have been responsible for some of the judicial resistance to applying the clear language of Rule 702, even after its 2000 revision.

Berger was not only a law professor; she was at the center of ideological and financially conflicted groups that worked to undermine the application of Rule 702 in health effects cases. One of the key players in this concerted action was David Michaels. Currently, Michaels teaches epidemiology at the George Washington University Milken Institute School of Public Health. He is a card-carrying member of the Collegium Ramazzini, an organization that has participated in efforts to corrupt state and federal judges by funding ex parte conferences with lawsuit industry expert witnesses.[5] Michaels is the author of two books, both highly anti-manufacturing industry, and biased in favor of the lawsuit industry.[6] Both books are provocatively titled anti-industry diatribes, which have little scholarly value, but are used regularly by plaintiffs counsel solely to smear corporate defendants and defense expert witnesses. Most clear-eyed trial judges have quashed these efforts on various grounds, including Rule 703, because the books are not the sort of material upon which scientists would reasonably rely.[7]

In 2002, David Michaels created an anti-Daubert advocacy organization, the Project on Scientific Knowledge and Public Policy (SKAPP), from money siphoned from the plaintiffs’ common-benefit fund in MDL 926 (silicone gel breast implant litigation).[8] Michaels lavished some of the misdirected money to prepare and publish an anti-Daubert pamphlet for SKAPP, in 2003.[9] In this anti-Daubert publications, and many others sponsored by SKAPP, Michaels and the SKAPP grantees typically acknowledged the source of SKAPP funding obliquely to hide that it was nothing more than plaintiffs counsels’ walking around money:

“I am also grateful for the support SKAPP has received from the Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Liability litigation.”[10]

Many credulous lawyers, judges, and legal scholars were duped into believing that SKAPP, SKAPP publications, and SKAPP-sponsored publications were supported by the Federal Judicial Center.

Michaels directed a good amount of SKAPP’s anti-Daubert funding to support Professor Berger’s efforts in organizing a series of symposia on science and the law. Several of Berger’s SKAPP conferences were held in Coronado, California, and featured a predominance of scientists who work for the lawsuit industry and are affiliated with advocacy organizations, such as the Collegium Ramazzini. The papers from one of the Coronado Conferences were published in a special issue of the American Journal of Public Health, the official journal of the American Public Health Association,[11] which has issued position papers highly critical of Rule 702 gatekeeping.[12]

The spider web of connections between SKAPP, the Collegium Ramazzini, the American Public Health Association, the Tellus Institute, the lawsuit industry,  Professor Berger, and others hostile to Rule 702 is a testament to the concerted action to undermine the Supreme Court’s decisions in the area, and the codification of those decisions in Rule 702. That Professor Berger was within this web of connections, and was writing the chapter on the admissibility of expert witness opinion testimony, in the first three editions of the Reference Manual, explains but does not justify many of the opinions contained within those chapters.

Professor David Bernstein, who has written extensively on expert witness issues, restated the situation thus:

“In 2003, the toxic tort plaintiffs’ bar used money from a fund established as part of the silicone breast implant litigation settlement to sponsor four conference in Coronado, California, that resulted in a slew of policy papers excoriating the Daubert gatekeeping requirement.”[13]

The active measures of these groups and Professor Berger explain the straight line between Berger’s symposia and the First Circuit’s decision in Milward v. Acuity Specialty Products Group, Inc.[14] Carl Cranor was one of the speakers at the Coronado Conferences, and along with Martyn Smith, another member of the Collegium Ramazzini, founded a Proposition 65 bounty-hunting organization, Council for Education on Research on Toxics (CERT). Cranor has long advocated for a loosey-goosey “weight of the evidence” approach that had been rejected by the Supreme Court in Joiner.[15] Cranor, along with Smith, unsurprisingly turned up as expert witnesses for plaintiff in Milward, in which case they reprised their weight-of-the evidence approach opinions. When Milward appealed the exclusion of Cranor and Smith, CERT filed an amicus brief, without disclosing that Cranor and Smith were founders of the organization, and that CERT funded Smith’s research through donations to his university, from CERT’s shake-down operations under Prop 65. The First Circuit’s 2011 decision in Milward resulted from a fraud on the court.

Professor Berger died in November 2010, but when the third edition of the Manual was released in 2011, it contained Berger’s chapter on the law of expert witnesses, with a citation to the Milward case, decided after her death.[16] An editorial note from an unnamed editor to her posthumous chapter suggested that

“[w]hile revising this chapter Professor Berger became ill and, tragically, passed away. We have published her last revision, with a few edits to respond to suggestions by reviewers.”

Given that Berger was an ideological opponent of expert witness gatekeeping, there can be little doubt that she would have endorsed the favorable references to Milward made after her passing, but adding them can hardly be considered non-substantive edits. Curious readers might wonder who was the editor who took such liberties of adding the chapter citations to Milward. Curious readers do not have to wonder, however, what would have happened if the incestuous relationships among Berger, SKAPP, the plaintiffs’ bar, and others had been replicated by similar efforts of manufacturing industry to influence the interpretation and application of the law. In 2008, the Supreme Court decided an important case involving constitutional aspects of punitive damages. The Court went out of its way to decline to rely upon empirical research that showed the unpredictability of punitive damage awards because it was funded in part by Exxon:

“The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous ‘mock juries’, where different ‘jurors’ are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, & W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L.Rev. 1139 (2000); Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of Plaintiff’s Requests and Plaintiff’s Identity on Punitive Damage Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 Yale L.J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it.”[17]

Unlike the situation with SKAPP, David Michaels, the plaintiffs’ bar, and Professor Berger, the studies sponsored in part by Exxon had disclosed their funding clearly. Those studies involved outstanding scientists whose integrity were unquestionable, and for its trouble, Exxon was rewarded with gratuitous shaming from Justice Souter. The anti-Daubert papers sponsored by the plaintiffs’ bar through SKAPP, and Professor Berger’s ideological conflicts of interest have received a free pass. This disparate treatment between conflicts of interest within manufacturing industry and those within the lawsuit industry and its advocacy group allies is a serious social, political, and legal problem. It was a problem on full display in the now-retracted climate science chapter in the Manual. In evaluating the new fourth edition’s chapter on the law of expert witness admissibility (and other chapters), we should be asking whether there are signs of undue political influence.

[1] See Schachtman, The Late Professor Berger’s Introduction to the Reference Manual on Scientific Evidence, TORTINI (Oct. 23, 2011).

[2] See generally Edward K. Cheng, Introduction: Festschrift in Honor of Margaret A. Berger, 75 BROOKLYN L. REV. 1057 (2010). 

[3] Margaret A. Berger, Eliminating General Causation: Notes towards a New Theory of Justice and Toxic Torts, 97 COLUM. L. REV. 2117 (1997).

[4] See, e.g., Margaret A. Berger & Aaron D. Twerski, “Uncertainty and Informed Choice:  Unmasking Daubert,” 104 MICH. L.  REV. 257 (2005). 

[5] In re School Asbestos Litig., 977 F.2d 764 (3d Cir. 1992). See Cathleen M. Devlin, Disqualification of Federal Judges – Third Circuit Orders District Judge James McGirr Kelly to Disqualify Himself So As To Preserve ‘The Appearance of Justice’ Under 28 U.S.C. § 455 – In re School Asbestos Litigation (1992), 38 VILL. L. REV. 1219 (1993); Bruce A. Green, May Judges Attend Privately Funded Educational Programs? Should Judicial Education Be Privatized?: Questions of Judicial Ethics and Policy, 29 FORDHAM URB. L. J. 941, 996-98 (2002).

[6] David Michael, DOUBT IS THEIR PRODUCT: HOW INDUSTRY’S WAR ON SCIENCE THREATENS YOUR HEALTH (2008); David Michaels, THE TRIUMPH OF DOUBT (2020).

[7] See In re DePuy Orthopaedics, Inc. Pinnacle Hip Implant Prods. Liab. Litig., 888 F.3d 753, 787 n.71 (5th Cir. 2018) (advising the district court to weigh carefully whether Doubt is Their Product has any legal relevance); King v. DePuy Orthopaedics, Inc., 2024 WL 6953089, at *2 (D. Ariz. July 9, 2024) (finding Michaels’ books to be legally irrelevant); Sarjeant v. Foster Wheeler LLC, 2024 WL 4658407, at *1 (N.D. Cal.Oct. 24, 2024) (ruling that Doubt Is Their Product is legally irrelevant hearsay, and not the type of material upon which an expert witness would rely to form scientific opinion). See also Evans v. Biomet, Inc., 2022 WL 3648250, at *4 (D. Alaska Feb. 1, 2022) (quashing plaintiff’s subpoena to defendant’s expert for material in connection with Doubt Is Their Product).

[8] See Ralph Klier v. Elf Atochem North America Inc., 2011 U.S. App. LEXIS 19650 (5th Cir. 2011) (holding that district court abused its discretion in distributing residual funds from class action over arsenic exposure to charities; directing that residual funds be distributed to class members with manifest personal injuries). A “common benefit” fund is commonplace in multi-district litigation of mass torts.  In such cases, federal courts may require the defendant to “hold back” a certain percentage of settlement proceeds, to pay into a fund, which is available to those plaintiffs’ counsel who did “common benefit work,” work for the benefit of all claimants.  Plaintiffs’ counsel who worked for the common benefit of all claimants may petition the MDL court for compensation or reimbursement for their work or expenses.  See, e.g., William Rubenstein, On What a ‘Common Benefit Fee’ Is, Is Not, and Should Be, CLASS ACTION ATT’Y FEE DIG. 87, 89 (Mar. 2009).  In the silicone gel breast implant litigation (MDL 926), plaintiffs’ counsel on the MDL Steering Committee undertook common benefit work in the form of developing expert witnesses for trial, and funding scientific studies.  By MDL Orders 13, and 13A, the Court set hold-back amounts of 5 or 6%, and later reduced the amount to 4%.  Id. at 94.

[9] Eula Bingham, Leslie Boden, Richard Clapp, Polly Hoppin, Sheldon Krimsky, David Michaels, David Ozonoff & Anthony Robbins, Daubert: The Most Influential Supreme Court Ruling You’ve Never Heard Of (June 2003). The authors described the publication as a publication of SKAPP, coordinated by the Tellus Institute, and funded by The Bauman Foundation, a private foundation that supports “progressive social change advocacy.” Boden, Hoppin, Michaels, and Ozonoff are fellows of the Collegium Ramazzini.

[10] David Michael, DOUBT IS THEIR PRODUCT: HOW INDUSTRY’S WAR ON SCIENCE THREATENS YOUR HEALTH 267 (2008). See Nathan Schachtman, “SKAPP A LOT,” TORTINI (April 30, 2010); “Manufacturing Certainty” TORTINI (Oct. 25, 2011); “David Michaels’ Public Relations Problem” TORTINI (Dec. 2, 2011); “Conflicted Public Interest Groups” TORTINI (Nov. 3, 2013). 

[11] 95 AM. J. PUB. HEALTH S1 (2005).

[12] See, e.g., Am. Pub. Health Assn, Threats to Public Health Science, Policy Statement 2004-11 (Nov. 9, 2004), available at https://www.apha.org/policy-and-advocacy/public-health-policy-briefs/policy-database/2014/07/02/08/52/threats-to-public-health-science

[13] David E. Bernstein & Eric G. Lasker, Defending Daubert: It’s Time to Amend Federal Rule of Evidence, 702, 57 WM. & MARY L. REV. 1, 39 (2015), available at https://scholarship.law.wm.edu/wmlr/vol57/iss1/2. See David Michaels & Neil Vidmar, Foreword, 72 LAW & CONTEMP. PROBS. i, ii (2009) (“SKAPP has convened four Coronado Conferences.”).

[14] Milward v. Acuity Specialty Products Group, Inc., 639 F.3d 11 (1st Cir. 2011), cert. denied sub nom., U.S. Steel Corp. v. Milward, 132 S. Ct. 1002 (2012).

[15] General Electric Co. v. Joiner, 522 U.S. 136, 136-37 (1997).

[16] Margaret A. Berger, The Admissibility of Expert Testimony, in National Academies of Sciences, Engineering and Medicine & Federal Judicial Center, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 11, 20 n.51, 23-24 n.61 (3rd 2011).

[17] Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S. Ct. 2605, 2626 n.17 (2008).

Posted in Conflicts of Interest, Expert Witnesses, Reference Manual on Scientific Evidence, Rule 702, Uncategorized | No Comments »

The First Daubert Motion

February 20th, 2026

As every school child knows, or at least every law student in the United States knows, Daubert was a Bendectin case. The plaintiff claimed that his mother’s use of Bendectin, a prescription anti-nausea medication, during pregnancy caused him to be born with a major limb reduction defect.

Filed in 1984, the Daubert case was pending, in summer 1989, before Judge Earl Ben Gilliam, in the Southern District of California. A trial date was approaching, and a deadline for motions for summary judgment. The first Daubert motion was filed in August 1989, in Daubert v. Merrell Dow Pharmaceuticals, Inc.[1] It was a motion for summary judgment, not a motion specifically to exclude plaintiffs’ expert witness’s proffered testimony.

By the time of the first Daubert motion, the plaintiff was relying upon the anticipated testimony of John Davis Palmer, M.D. For the time, John Davis Palmer was not an unlikely expert witness. Although Palmer practiced internal medicine, he had a doctorate in pharmacology. Palmer, however, had no experience studying Bendectin, and no real expertise in epidemiology. He had never designed or published an epidemiologic study, and he had never done any kind of research on Bendectin. The standard for qualifying an expert witness, even in federal court, has always been very low, and thus not an effective way to police the quality of scientific evidence.

Palmer was a rather late substitute for expert witnesses previously listed by the plaintiff. Alan Kimball Done, a pediatrician, had been the main warhorse of the Bendectin plaintiffs, but he was withdrawn by plaintiff’s counsel after he was found to have committed perjury about his academic credentials in another Bendectin case.[2]

Plaintiff also needed to drop another expert witness, William Griffith McBride, who had been a star in plaintiff’s counsel’s stable. McBride helped show the teratogenicity of thalidomide in the early 1960s,[3] and his work in the Bendectin litigation gave these dodgy cases some patina of respectability. In 1988, however, McBride was accused of fraud, for which he would eventually lose his medical license.[4] McBride also chose, rather improvidently, to sue journalists, journals, and Merrell Dow executives, for reporting his rather extensive fees, only to lose that litigation.[5] When plaintiff’s counsel withdrew McBride, plaintiff was left with only Dr. Palmer to serve as plaintiff’s sole expert witness on both general and specific causation.

At the time that the first Daubert motion was filed, manufacturer Merrell Dow had voluntarily withdrawn Bendectin from the market, without any suggestion from the FDA that this action was necessary or in the public interest. The manufacturer had also enjoyed considerable success in court. The company had tried a case that consolidated the general causation claims of over 800 plaintiffs, to a defense jury verdict, in 1985, before Chief Judge Carl Rubin, of the Southern District of Ohio.[6] Despite some isolated trial losses, the company was vindicated in three federal circuits at the time its lawyers filed the “Daubert” motion.[7] The First, Fifth, and District of Columbia Circuits of the United States Court of Appeals, had all held that the plaintiffs’ case was legally insufficient to sustain a verdict against the defendant, or that the expert testimony involved was inadmissible.

In the Daubert case, Merrell Dow Pharmaceuticals was represented by the law firm Dickson, Carlson & Campillo. The important task of drafting the motion for summary judgment landed on the desk of a first year associate, Pamela Yates, who is now a partner at Arnold & Porter. Given that Merrell Dow had succeeded in other appellate courts, the task may have seemed straight forward, but the legal theories were actually all over the map.

The first Daubert motion was not styled as a motion to exclude expert witness opinion testimony, but rather as a motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56, on the issue of causation. Merrell Dow’s supporting brief did not clearly invoke the distinction between general and specific causation, which distinction was not widely drawn until later in the 1990s. The supporting brief implicitly addressed both general and specific causation.

At the time that the first Daubert motion was made, there was no clear consensus of precedent that identified the source of support for a trial court’s ruling peremptorily on a weak evidentiary display on the causation issue. The evidence supporting the defense expert witnesses’ opinion that Bendectin had not been shown to cause birth defects generally and limb reduction defects specifically was strong. For all major congenital defects, there had been no change in overall incidence for the years in which Bendectin was marketed. Such an ecological argument usually has no validity, but in the case of Bendectin, for several years, roughly half of all pregnant women used the medication. When the medication was abruptly withdrawn,[8] not because of the science but because of the cost of the litigation, the rate of birth defects remained unaffected. The great majority of birth defects have no known cause, and there was no scientific consensus that Bendectin caused birth defects; indeed by 1989, the nearly universal consensus was that Bendectin did not cause birth defects.[9]

There were also many analytical epidemiologic studies, which both individually or in combination failed to support a conclusion of causation.

In the face of the defense’s affirmative evidence, the plaintiff relied upon a potpourri of evidence:

1) chemical structure activity analysis;

2) in vitro (test tube) studies;

3 ) in vivo studies (animal teratology) studies; and

4) reanalysis of epidemiology studies.

Plaintiff’s lead counsel Barry Nace[10] had concocted this potpourri approach, which he called “mosaic theory,” and which might more aptly be called the tsemish or the shmegegge theory.[11] Whatever Nace called it, he fed it to his expert witness to argue that:

“Like the pieces of a mosaic, the individual studies showed little or nothing when viewed separately from one another, but they combined to produce a whole that was greater than the sum of its parts: a foundation for Dr. Done’s opinion that Bendectin caused appellant’s birth defects.”[12]

Although philosopher Harry Frankfurt had not yet written his seminal treatise on the subject, most courts saw that this was bullshit, which tends to result “whenever a person’s obligations or opportunities to speak about some topic exceed his knowledge of the facts that are relevant to that topic.”[13]

In addition to favorable opinions from the First, Fifth, and District of Columbia Circuits, Merrell Dow had a favorable Zeitgeist working in its favor. The plaintiff-friendly influential judge, Judge Jack Weinstein, had rolled up his sleeves and taken a hard look at the plaintiffs’ scientific evidence in the Agent Orange litigation. Judge Weinstein found that evidence wanting in an important opinion in 1985.[14] Although the alleged causal agent in Agent Orange was not Bendectin, Judge Weinstein recognized that epidemiological studies were, in a similar medico-legal context, “the only useful studies having any bearing on causation.[15] Judge Weinstein relied heavily upon Federal Rule of Evidence Rule 703, which governed what inadmissible studies expert witnesses could rely upon, to whittle down the reliance list of plaintiffs’ expert witnesses before declaring their opinions too fragile to support a reasonable jury’s verdict in favor of plaintiffs.

More generally, discerning members of the legal system were reaching the end of their tolerance for the common law laissez-faire approach to expert witness evidence. In 1986, the Department of Justice issued a report that explicitly called for meaningful judicial gatekeeping of expert witnesses.[16] And in that same year, 1986, Judge Patrick Higginbotham wrote an influential opinion, in which he warned that expert witness opinion testimony was out of control, with expert witnesses becoming mouth pieces for the lawyers and advocates of policy beyond their proper role. Judge Higginbotham observed that trial judges (with support from appellate court judges) had a duty to address the problem by policing the soundness of opinions proffered in litigation, and to reject the system’s reliance upon expert witnesses simply because they “say[] it is so:”[17]

“we recognize the temptation to answer objections to receipt of expert testimony with the short hand remark that the jury will give it ‘the weight it deserves’. This nigh reflective explanation may be sound in some cases, but in others it can mask a failure by the trial judge to come to grips with an important trial decision. Trial judges must be sensitive to the qualifications of persons claiming to be experts … . Our message to our able trial colleagues: It is time to take hold of expert testimony in federal trials.”[18]

Although Merrell Dow had a substantial tailwind behind its motion for summary judgment, there was no one clear theory upon which it could rely. Some of the Bendectin appellate court opinions were based upon the insufficiency of the plaintiffs’ expert witness evidence, on the basis of the entire record after trial. The evidence in Daubert was virtually the same if not more restricted than what was of record in some of those appellate court cases. The ecological evidence was clear.

Some of the judgments relied upon by Merrell Dow were based upon the Frye test, and some were based upon Rule 703, which addresses what kinds of otherwise inadmissible evidence expert witnesses may rely upon in formulating their opinions. Finally, some courts, such as Fifth Circuit in In Re Air Crash Disaster at New Orleans, were beginning to see Rule 702 as the source of their authority to control wayward expert witness opinion testimony.

Merrell Dow advanced multiple lines of analyses to show that plaintiffs cannot establish causation based upon the then current scientific record. The first Daubert motion had no clear line of authority, and so, understandably, it cast a wide net on all available potential legal rules and doctrines to oppose the plantiff’s potpourri Bendectin causation theory. The motion harnessed precedents based upon sufficiency of the plaintiffs’ proffered expert witness, Federal Rules 702 and 703, as well as the 1923 Frye case.[19]

The cases that invoked Frye doctrine presented several interpretative problems. Frye was a criminal case that prohibited expert witnesses from testifying about their interpretations of the output of a mechanical device. The Frye case’s insistence upon general acceptance, when imported into a causation dispute in a tort case, was ambiguous as to what exactly had to be generally accepted: the specific causal claim, or the method used to reach the causal claim, or the method used as applied to the facts of the case. Furthermore, Frye’s requirement of general acceptance was not explicitly incorporated into either Rule 702 or 703, when promulgated in 1975.[20]

Merrell Dow had ample evidence that there was no general acceptance of the plaintiff’s causal claim, but its counsel also showed that by applying generally accepted methodology, scientists could not reach the plaintiff’s causal conclusion, and no scientist outside of the litigation had done so. In particular, there was general acceptance of the propositions that non-human in vivo and in vitro teratology experiments have little if any predictive ability for human outcomes. Because randomized controlled trials were never an option for testing human teratogenicity, observational epidemiology was required, and the available studies were largely exonerative. Only by post-publication data dredging and manipulation was plaintiffs’ expert witness Palmer (following what Shann Swan had done in previous cases) able to raise questions about possible associations. Plaintiff’s expert witness Palmer could not show that these manipulations were a generally accepted method for interpreting or re-analyzing published studies.

In its last point, the first Daubert motion also maintained that the standard for medical causation required that the relevant relative risk exceed two.[21] As noted, the brief did not distinguish general from specific causation, a distinction that had not entered the legal lexicon fully in 1989. The brief’s citation to swine-flu cases, however, clarifies the nature of Merrell Dow’s argument. In the swine-flu litigation, the United States government assumed liability for adverse effects of a vaccine for swine flu. The government recognized that within a certain time window after vaccination, patients had more than a doubled risk of Guillain-Barré syndrome (GBS), an autoimmune neurological condition. The government refused compensation for claimants outside that window. Merrell Dow relied heavily upon one swine flu case, Cook v. United States, which articulated and applied the principle:

“Wherever the relative risk to vaccinated persons is greater than two times the risk to unvaccinated persons, there is a greater than 50% chance that a given GBS case among vaccinees of that latency period is attributable to vaccination, thus sustaining plaintiff’s burden of proof on causation.”[22]

In other words, the government had conceded that the swine-flu vaccine could cause GBS in some temporal situations, but not others. The magnitude of the causal association had been quantified in relative risk terms by epidemiologic studies. Only for those claimants vaccinated in time windows with relative risks greater than two could courts conclude that GBS was, more likely than not, caused by vaccination.

Unlike the federal government in the swine-flu GBS litigation, Merrell Dow was not, however, conceding general causation for any exposure scenarios. The first Daubert motion can only be read to deny general causation, but to explain further that even if the court were to assume, arguendo, that Bendectin causes limb reduction deficits based upon Palmer’s schmegegge and Swan’s re-jiggered risk ratios, that there would still be no proper inference that Bendectin more likely than not caused Jason Daubert’s birth defects.

In response to these arguments, the plaintiff’s counsel argued their mosaic, potpourri, schmegegge theories. Although plaintiffs were down to Dr. Palmer, they filed transcripts and affidavits from a host of other expert witnesses, from previous Bendectin cases.

As for the legal rules of decision, Barry Nace, on behalf of plaintiffs, argued that Rule 703 had “absorbed” the Frye rule. Having been shown to be qualified under the minimal standard of Rule 702, these expert witnesses then satisfied Rule 703 by relying upon “scientific evidence” of the sort that experts in their field rely upon, even if other scientists would not rely upon such evidence in support of a conclusion. Otherwise those expert witnesses were unrestrained by the law, and they were free to assess their relied upon facts and data as sufficient to show that Bendectin probably causes birth defects and that Bendectin caused Jason Daubert’s birth defects. Nace argued that as long as expert witnesses, properly qualified, offered relevant opinions, based upon “things of science,” they could opine that the earth was flat, and it was for the jury to sort out whether to believe them.

Judge Earl Gilliam found Nace’s position untenable, and granted summary judgment later in 1989.[23] Interestingly Judge Gilliam’s opinion in the district court never cited Federal Rule of Evidence 702. Instead, the opinion pointed to Rule 703, as restricting evidence, even if “science,” unless the proponent showed that the underlying principle had gained general acceptance in the relevant field.[24] Opinions not based upon facts or data “of a type reasonably relied upon by experts in the particular field” would be confusing, misleading, and unhelpful, and thus inadmissible. The reference to helpfulness might perhaps be taken as an implicit invocation of Rule 702.

Judge Gilliam had the benefit of the Circuit decisions in Brock, Richardson, and Lynch, with their various holdings of insufficiency or inadmissibility of plaintiffs’ expert witness evidence. In particular, Judge Gilliam cited Brock for the proposition that trial courts must “critically evaluate the reasoning process by which the experts connect data to their conclusions in order for courts to consistently and rationally resolve the disputes before them.”[25] Following Judge Weinstein on Agent Orange, and the previous federal decisions on Bendectin, Judge Gilliam observed that causation in the Bendectin cases could be established, under the circumstances of plaintiffs’ evidentiary display, only through reliance upon epidemiologic evidence. Dr. Done’s schmeggege, concocted as it was by Barry Nace, would not get plaintiffs to a jury.

Judge Gilliam went further to point out that some of plaintiffs’ proffer did not even purport to claim causation. Shanna Swan’s prior testimony asserted that Bendectin was “associated” with limb reduction. Jay Glasser, a specialist in biostatistics, epidemiology and biometry had opined that “Bendectin is within a reasonable degree of epidemiological certainty associated with congenital disorders, including limb defects.” Dr. Johannes Thiersch, a specialist in pathology and pharmacology, proclaimed that “structure analysis” was “of great interest.”[26] In other words, there was a good deal of true, true, but immaterial opinion in what Mr. Nace had thrown over the transom, in opposition to the motion for summary judgment.

Nace appealed, and the Daubert case was argued to the Ninth Circuit in 1991. In a short opinion by Judge Kozinski, the appellate court affirmed the judgment below.[27] The affirmance did not mention Rule 702; rather it relied upon the decisions of other Circuits, in which the plaintiffs’ evidentiary display had been found insufficient to sustain a reasonable jury verdict.

Judge Kozinski’s opinion tilted towards Rule 703 and the Frye standard in citing to cases that stated, based upon Frye, that expert witnesses must use generally accepted techniques from the scientific community. As a legal determination, the determination of general acceptance vel non was a legal determination reviewable de novo. For its de novo decision on general acceptance, the Ninth Circuit relied upon the cases coming from the First, Fifth, and District of Columbia Circuits,[28] and of course, the record below.

By 1991, another Circuit, the Third, had weighed in on the same evidentiary display, when it reversed summary judgment for Merrell Dow, and remanded for reconsideration under the Third Circuit’s approach to Rule 702. Judge Kozinski declared that the Third Circuit’s approach was not followed in the Ninth Circuit, and proceeded to ignore the DeLuca case.[29]

Judge Kozinski treated the insufficiency and the invalidity of the Nace/Done schmeggege theory as legal precedent, and thus the court’s opinion gave very little attention by way of expository description or explanation of the problems with the four factors (in vitro, in vivo, structure analysis, and re-analysis of epidemiologic studies). As Judge Kozinski put the matter:

 “For the convincing reasons articulated by our sister circuits, we agree with the district court that the available animal and chemical studies, together with plaintiffs’ expert reanalysis of epidemiological studies, provide insufficient foundation to allow admission of expert testimony to the effect that Bendectin caused plaintiffs’ injuries.”[30]

And thus, summary judgment was proper in Daubert. Judge Kozinksi, like Judge Gilliam in the district court, never reached the specific causation argument that involved risk ratios less than two.

Some of the Circuit court cases relied upon by Judge Kozinski delved into the invalidity of these methods for determining the causes of human birth defects. The Lynch decision explored in some detail the Shanna Swan made-for-litigation rejiggering of a study based upon data from the Metropolitan Atlanta Congenital Defects Program, which included a challenge to whether it could be reasonably relied upon (Rule 703), as well as its pretense to support a scientific conclusion (Rule 702).[31] Later commentators would skirt the validity issue by asserting that re-analysis, in the abstract, is not impermissible or invalid, without addressing the specific issues discussed in the reported decisions. Other commentators have misrepresented Swan’s re-analysis as a meta-analysis, which it was not.

Some commentators have complained that the defense in Daubert made too much of the lack of statistical significance. Their complaint, in the abstract, might have some salience. In some contexts, an isolated and elevated risk ratio greater or less than one may well have important information, even if the p-value is a bit above 0.05. The lack of statistical significance at the conventional five percent, however, conveys important information about the finding’s imprecision, especially when there was a large dataset to evaluate. In 1994, a meta-analysis was published that found a summary estimate of all birth defects in the available epidemiologic studies to be an odds ratio of 0.95 (95% C.I., 0.88-1.04), and the summary estimate for limb reduction defects to be an odds ratio 1.12 (95% C.I., 0.83-1.48).[32]

[1] Defendant’s Memorandum of Points and Authorities in Support of Its Motion for Summary Judgment on the Issue of Causation, Daubert v. Merrell Dow Pharms., Inc., Case No. 84-2013-G(I) (S.D. Cal. Aug. 2, 1989). The motion was made in a companion case before Judge Gilliam as well, Schuller v. Merrell Dow Pharms., Inc., Case No. 84-2929-G(I). The first Daubert motion may not have been the first one drafted. The linked brief is the first one as filed.

[2] See Oxendine v. Merrell Dow Pharms., Inc., 563 A.2d 330 (D.C. Ct. App. 1989).

[3] William Griffith McBride, Thalidomide and Congenital Abnormalities, 278 LANCET 1358 (1961).

[4] William Griffith McBride, McBride criticizes inquiry, 336 NATURE 614 (1988); Norman Swan, Disciplinary tribunal for McBride, 299 BRIT. MED. J. 1360 (1989); G. F. Humphrey, Scientific fraud: the McBride case, 32 MED. SCI. LAW 199 (1992); Mark Lawson, McBride found guilty of fraud, 361 NATURE 673 (1993); Leigh Dayton, Thalidomide hero found guilty of scientific fraud, NEW SCI. (Feb.27, 1993); William McBride: alerted the world to the dangers of thalidomide in fetal development, 362 BRIT. MED. J. k3415 (2018).

[5] McBride v. Merrell Dow & Pharms., Inc., 800 F.2d 1208 (D.C. Ct. App. 1986). McBride ultimately failed against all his litigation targets.

[6] See In Re Richardson-Merrell. Inc. Bendectin Prods. Liab. Litig., 624 F.Supp. 1212 (S.D. Ohio 1985); aff’d sub nom. In re Bendectin Litig., 857 F.2d 290 (6th Cir. 1988); cert. denied, 488 US 1006 (1989).

[7] Brock v. Merrell Dow Pharmaceuticals Inc., 874 F.2d 307 (5th Cir. 1989); Richardson y. Richardson-Merrell, 857 F.2d 823 (D.C. Cir. 1988); Lynch v. Merrell-National Labs., 830 F.2d 1190 (1st Cir. 1987) (affirming grant of summary judgment).

[8] US Food & Drug Admin., Determination That Bendectin Was Not Withdrawn from Sale for Reasons of Safety or Effectiveness, 64 FED. REG. 43190–1 (1999).

[9] Brief at 3-4.

[10] Barry Nace was one of the lead plaintiffs’ counsel in the Bendectin litigation, and he represented the Daubert family. Nace was also formerly President of the lawsuit industry’s principal lobbying organization, the American Trial Lawyers Association (now the AAJ). See also In re Barry J. Nace, A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 130724), No. 13–BG–1439, Slip op. (Sept. 4, 2014), available at <https://www.dccourts.gov/sites/default/files/pdf-opinions/13-BG-1439.pdf>, last visited on Feb. 8, 2026.

[11] See Michael D. Green, Pessimism about Milward, 3 WAKE FOREST J. L & POL’Y 41, 63 (2013) (paraphrasing Nace as describing the mosaic theory as “[d]amn brilliant, and I was the one who thought of it and fed it to Alan [Done].”).

[12] Id. at 61 (2013) (citing Oxendine v. Merrell Dow Pharm., Inc., 506 A.2d 1100, 1110 (D.C. 1986).

[13] Harry Frankfurt, ON BULLSHIT 63 (2005).

[14] In re “Agent Orange” Prod. Liab. Litig., 611 F. Supp. 1223 (E.D.N.Y. 1985), aff’d, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988).

[15] Id. at p. 1231.

[16] United States Dep’t of Justice, Tort Policy Working Group, Report of the Tort Policy Working Group on the causes, extent and policy implications of the current crisis in insurance availability and affordability at 35 (Report No. 027-000-01251-5) (Wash. DC 1986), available at https://archive.org/details/micro_IA41152903_0369.

[17] In Re Air Crash Disaster at New Orleans, 795 F.2d 1230, 1233-34 (5th Cir. 1986).

[18] Id. at 1233-34.

[19] The Brief, at 2, cited United States v. Kilgus, 571 F.2d 508, 510 (9th Cir. 1987) (citing Frye).

[20] An Act to Establish Rules of Evidence for Certain Courts and Proceedings. Pub. L. 93–595, 88 Stat. 1926 (1975).

[21] Brief at 17.

[22] 545 F.Supp. 306, 308 (N.D. Cal. 1982). See generally Richard E. Neustadt & Harvey V. Fineberg, THE SWINE FLU AFFAIR: DECISION-MAKING ON A SLIPPERY DISEASE (Nat’l Acad. Sci. 1978).

[23] Daubert v. Merrell Dow Pharms., Inc., 727 F.Supp. 570 (S.D. Cal. 1989).

[24] Id. at 571, citing United States v. Kilgus, 571 F.2d 508, 510 (9th Cir.1978).

[25] Id. at 572 (citing Brock, 874 F.2d at 310).

[26] Id. at 574. The use of “association” was at best ambiguous, because it begged the question whether it as an association that was “clear cut” (reasonably free from bias and confounding), and beyond that which we would care to attribute to chance.

[27] Daubert v. Merrell Dow Pharms., Inc., 951 F.2d 1128 (9th Cir. 1991).

[28] Brock v. Merrell Dow Pharms., Inc., 874 F.2d 307, modified, 884 F.2d 166 (5th Cir.1989), cert. denied, 494 U.S. 1046 (1990); Richardson v. Richardson–Merrell, Inc., 857 F.2d 823 (D.C.Cir.1988), cert. denied, 493 U.S. 882 (1989); Lynch v. Merrell–National Labs., 830 F.2d 1190 (1st Cir.1987).

[29] DeLuca v. Merrell Dow Pharmaceuticals, Inc., 131 F.R.D. 71 (D.N.J.) (granting summary judgment), rev’d and remanded, 911 F.2d 941 (3d Cir.1990). On remand, the district court entered summary judgment on the alternative reasoning of Rule 702, as interpreted by the Third Circuit. DeLuca v. Merrell Dow Pharms., Inc., 791 F.Supp. 1042, 1048 (D.N.J. 1992) (re-entering summary judgment after considering Rule 702), aff’d, 6 F.3d 778 (3d Cir.1993) (per curiam), cert. denied, 510 U.S. 1044 (1994).

[30] Daubert v. Merrell Dow Pharms., Inc., 951 F.2d 1128, 1131 (9th Cir. 1991).

[31] Lynch v. Merrell–National Labs., 830 F.2d 1190, 1194-95 (1st Cir.1987).

[32] Paul M. McKeigue, Steven H. Lamm, Shai Linn & Jeffrey S. Kutcher, Bendectin and Birth Defects: I. A Meta-Analysis of the Epidemiologic Studies, 50 TERATOLOGY 27 (1994). This meta-analysis made no correction for multiple comparisons in examining many different types of birth defects.

Posted in Causation, Expert Witnesses, Frye, Meta-analysis, Peer Review, Rule 702, Rule 703, Scientific Evidence | No Comments »

The FJC Retracts Climate Science – Postscriptum

February 11th, 2026

The version of the Reference Manual on the NASEM website still has the climate science chapter.

The FJC website has a version without the climate science chapter. There is a note that the chapter was removed on February 6, 2026.

Perhaps the two organizations should talk?

The FJC retraction has been covered by many media outlets, but the failure of NASEM to act has not been reported, as far as I can see.[1]

[1] See, e.g., Nate Raymond, US judiciary scraps climate chapter from scientific evidence manual, REUTERS (Feb. 9, 2026)

Posted in Reference Manual on Scientific Evidence | No Comments »

The FJC Retracts Climate Science Chapter in New Reference Manual

February 10th, 2026

When the new, fourth, edition of the Reference Manual on Scientific Evidence was released late last year,[1] I remarked that there were some new chapters,[2] including one on climate change. I found the addition of a chapter on climate change curious largely because I was unfamiliar with the science or the need to address the area for federal judges, and because I thought there were other more pressing topics, such as genetic causation, from which judges could benefit, but which were not included.

I confess that I did not read the new chapter on climate change,[3] which is not a subject that comes up in my practice or in my writing. Writers at the National Review, however, did read the chapter on climate, and found it objectionable. Writing on January 17th of this year, Michael Fragoso observed that the chapter on climate science was an advocacy piece that would resolve climate change litigation in favor of plaintiffs.[4]

If Fragoso’s charge is correct, the implications are extremely serious. Judges have an ethical obligation not to go beyond the adversary process to educate themselves about the factual issues before them in pending litigation. In the past, judges who have done so have found themselves on the wrong end of a petition for a writ of mandamus, and have been disqualified and removed from cases.[5] The Federal Judicial Center (FJC), which is the research and educational division of the federal courts, has tried to create a safe space for teaching judges about technical subjects that arise in litigation in a way that is balanced and removed from partisan advocacy. The last edition, the third, and the current edition, the fourth, of the Manual have been the joint product of the both the FJC and the National Academies of Science, Engineering and Medicine (NASEM), in the hope of producing disinterested tutorials on key areas of science that are important to judges in their adjudication of civil and criminal cases, as well as their performance of judicial review of regulation and agency action.

Following up on the National Review article, on January 29, 2026, the Attorneys General of 24 states[6] wrote a letter to Judge Robin Rosenberg, the director of the Federal Judicial Center. The letter identified the advocacy perspective of the climate chapter and its authors, who wrote what the Attorneys General described as an amicus brief that placed a thumb on the scales of justice, with respect to issues currently pending at all levels of the federal courts. The Attorneys General requested the immediate withdrawal of the offending chapter.

Judge Rosenberg is a savvy judge of scientific horse flesh. She presided over the Zantac multi-district litigation (MDL No. 2924), in which she excluded plaintiffs’ expert witnesses in a detailed, analytically careful opinion of over 300 pages.[7] On February 6, a week after the request to withdraw the climate chapter was made, Judge Rosenberg, wrote to West Virginia Attorney General John McCuskey, to report that the chapter had been omitted.[8] Given the prompt response from Judge Rosenberg, the decision was likely not a difficult one.  A decision not to include this chapter, as written, in the first place, would have been an even easier one.

Retractions of publications of the NASEM, which includes what was formerly the Institute of Medicine, are rarer than hens teeth.  This one received coverage and some intense harrumphing.[9] The retraction of the climate science chapter comes on the heels of a high-profile retraction, in December 2025, of an article in the prestigious journal Nature,[10] which argued that the costs of climate change would reach $38 trillion a year by 2049.[11]

The climate science chapter appears to be the outcome of what the late Daniel Kahneman called poor decision hygiene.  The chapter in question had two authors, and both were from the same institution, published together, and shared the same advocacy perspectives on climate change. Hardly a team of rivals. The editors of the Manual certainly could have done better in selecting these authors and in editing the work product.

Jessica Wentz is a Non-Resident Senior Fellow at the Sabin Center for Climate Change Law, at the Columbia Law School. The Sabin Center website describes itself as “develop[ing] legal techniques to combat the climate crisis and advance climate justice, and train the next generation of leaders in the field.” The language of “combat” and “crisis” certainly suggests a hardened, adversarial stance. Wentz’s writings reveal her advocacy and adversarial positions.[12]

Radley Horton is a Professor at Columbia University’s Climate School. He describes his research as focusing on climate extremes, and related topics. Horton’s curriculum vitae, social media, social media, testimony,[13] and professional work certainly mark him as an advocate for “attribution science” in litigation to address climate crises. Horton and Wentz previously published a law review article that seems to be a brief for plaintiffs’ positions in climate litigation.[14] One of the key issues in climate litigation is whether litigation is an appropriate avenue for addressing climate issues, and Horton and Wentz have both clearly committed to endorsing litigation strategies, and the plaintiffs’ positions to boot.

This kerfuffle at FJC and NASEM has a larger meaning. There is a glib assumption afoot that the only conflicts of interest that matter are ones that are attributed to industrial stakeholders and their scientific supporters. This naïve view was attacked and debunked back in 1980, by Sir Richard Peto, writing in the pages of Nature. Sir Richard noted that whereas industry may downplay risks, “environmentalists usually exaggerate the likely hazards and are largely indifferent to the costs of control.” Positional conflicts can be, and often are, more powerful than the ones created by profit.[15]

[1] National Academies of Sciences, Engineering, and Medicine & Federal Judicial Center, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (4th ed. 2025) (cited as RMSE 4th ed.).

[2] Nathan Schachtman, A New Year, A New Reference Manual, in TORTINI (Jan. 5, 2026).

[3] Jessica Wentz & Radley Horton, Reference Guide on Climate Science, RMSE 4th ed.

[4] Michael A. Fragoso, Bias and the Federal Judicial Center’s ‘Climate Science’, NAT’L REV. (Jan. 17, 2026). Fragoso also took umbrage to the use of the silly phrase “pregnant people” elsewhere in the Manual. RMSE 4th ed. at 84.

[5] In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992). See Cathleen M. Devlin, Disqualification of Federal Judges – Third Circuit Orders District Judge James McGirr Kelly to Disqualify Himself So As To Preserve ‘The Appearance of Justice’ Under 28 U.S.C. § 455 – In re School Asbestos Litigation (1992), 38 VILL. L. REV. 1219 (1993);

[6] Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakato, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakato, Tennessee, Texas, Utah, West Virginia, West Virginia, and Wyoming.

[7] In re Zantac (Ranidine) Prods. Liab. Litig., 644 F. Supp. 3d 1075 (S.D. Fla. 2022).

[8] Hon. Robin Rosenberg, Letter in Response to Attorneys General (Feb. 6, 2026).

[9] Editorial Board, A Failed Climate Coup in the Courts,  WALL ST. J. (Feb. 9, 2026); Charles Creitz, Judicial research center cuts climate section from judges’ manual, FOX NEWS (Feb. 9, 2026); Suzanne Monyak, Judiciary Cuts Climate Part of Science Manual after Backlash, BLOOMBERG LAW (Feb. 9, 2026).

[10] Maximilian Kotz, Anders Levermann & Leonie Wenz, The economic commitment of climate change, 628 NATURE 551 (2024) (retracted on Dec. 3, 2025).

[11] Authors retract Nature paper projecting high costs of climate change, RETRACTION WATCH (Dec. 3, 2025).

[12] Michael Burger, Jessica Wentz & Daniel Metzger, Climate science in rights-based advocacy contexts (June 28, 2020).

[13] Written Testimony of Radley Horton, Lamont Associate Research Professor, Columbia University, before the Committee on Science, Space, and Technology Subcommittee on Environment Sea Change: Impacts of Climate Change on Our Oceans and Coasts (Feb. 27, 2019).

[14] Michael Burger, Radley M. Horton & Jessica Wentz, The Law and Science of Climate Change Attribution, 45 COLUMBIA J. ENVT’L J. L. 57  (2020).

[15] Richard Peto, Distorting the epidemiology of cancer: the need for a more balanced overview, 284 NATURE 297, 297 (1980).

Posted in Cognitive Biases, Conflicts of Interest, Reference Manual on Scientific Evidence | No Comments »

Selikoff’s Role in Establishing OSHA

February 1st, 2026

In May 1970, Selikoff testified in support of the Occupational Safety and Health Act of 1970, on which the Senate was then deliberating. By many accounts, Selikoff’s testimony helped overcome significant resistance to “federalizing” the workplace,[1] by establishing national standards for worker safety and health. Activists in the labor movement credit Selikoff’s testimony as a substantial factor in the creation of OSHA.[2]

Rhetorically, Selikoff’s presentation was brilliant. He showed up with two high-ranking officers of the Asbestos Workers Union,[3] Albert Hutchinson and Andrew Haas, and with Ivan Sabourin, Chief Legal Counsel for Johns Manville Corporation. The civil litigation against Johns Manville had not yet erupted, but the storm clouds were amassing. Tort litigation standards were undergoing a radical transformation, with the help of the American Law Institute’s Restatement Second of Torts.[4] In the late 1960s, sensationalist journalistic exposés of the asbestos mining and manufacturing industry received national attention,[5] and Johns Manville’s reputation was seriously damaged. Sabourin, no doubt, had a sense that he had to join with Selikoff to promote federal remedial legislation, and Selikoff exploited the opportunity to the hilt.

In his testimony, Selikoff made a compelling case for remedial occupational safety legislation, with muscular federal oversight and enforcement. Selikoff’s strongest argument was that national occupational safety standards, with federal enforcement, were in industry’s own best interests. Although some states had regulatory oversight of workplace safety, many states did not. Some states with strong regulation had weak enforcement. Manufacturers were inclined to build factories where they would have lower rather than higher compliance costs. Among manufacturers, competition undermined even safety-minded enterprises because caring companies could compete successfully only by shedding the costs and burden of worker protection.

Not only were conscientious employers often at a competitive disadvantage, they were often hurt directly by uncaring employers in their industry. Employees move around. Workers may be over-exposed to a hazardous substance, which has a long latency, at one employer, and then end up working for a more caring employer, when they manifest with an occupational disease. Worker’s compensation laws require the current, conscientious employer to foot the bill for the bad-acting former employer. Smaller employers might lack the knowledge to address the relevant health hazards at all.[6]

Selikoff saw these and other coordination problems as inuring to the detriment of workers because no one industry will invest in changes unless such remedial changes are introduced and enforced across all employers.[7] In Selikoff’s dramatic phrasing, “those who advocate weak occupational health legislation do industry no service at all and certainly do labor a great deal of harm.”[8]

On the positive side of the ledger, the control or elimination of hazardous exposures in the workplace would have a meaningful benefit to workers. Selikoff pointed to Great Britain and Germany, where reduced exposure limits for asbestos exposure in the workplace resulted in falling rates of asbestosis and lung cancer.[9] The difficult question Selikoff’s testimony raises is whether the benefits of national standards for worker safety and health justify his testimonial exaggerations and misrepresentations.

Misleading Statistics and Fake History

On science and history, Selikoff was on shakier ground much shakier grounds than his political arguments. In 1962, Selikoff began to assemble mortality data on a cohort of 632 insulators, New York and New Jersey asbestos workers union members, who had been on the union rolls in 1943. He first published their mortality data in 1964,[10] and at the Senate hearing, Selikoff presented an updated account through April 1967. In 1970, there still not many large, well-conducted epidemiologic studies available, and Selikoff’s small cohort of insulators had the most dramatic, and exaggerated mortality statistics. Valid or not, the Selikoff data were a powerful argument for pushing forward with a federal agency that would oversee hazardous workplace operations.

According to Selikoff’s testimony, of the 632 union workers, 405 had died. Among these 405 deaths, 32 insulators died of asbestosis. From litigation of some of these cases, however, it is clear that some of the “asbestosis” deaths were due to chronic emphysema caused by cigarette smoking, in the presence of concomitant asbestosis. In any event, Selikoff took the liberty of extrapolating from his small insulator cohort, and rounded up asbestosis mortality from 8 to 10 percent. Clearly, many of these 32 insulators had been exposed above the New York and New Jersey permissible exposure limits.

Selikoff testified that there had been 20 deaths due to mesothelioma, when only one in 10,000 deaths had been expected from this rare disease. Somehow the 5 percent of cohort deaths (20/405) became “one out of seven deaths,” or over 14 percent, at another point in Selikoff’s testimony, only to have Selikoff retreat back down to 10 percent (one of every 10 deaths), a few minutes later.

Selikoff’s handling of lung cancer mortality was equally confused and confusing. Of the 405 deaths, Selikoff reported that 66 deaths had been due to lung cancer. This 16 percent was then rounded up to one of five deaths (or 20 percent), moments later. In his Senate testimony, Selikoff did not report what the smoking prevalence had been among the 632 union insulators, and how it compared with his control group. Smoking accounts for 90 percent or so of lung cancer deaths in the United States. Selikoff’s cohort’s 16 percent lung cancer mortality is actually a bit less than 17 percent, what other general population studies have shown for smokers’ lung cancer rates.[11]

Selikoff also gave a confusing and inaccurate account of the history of the knowledge of asbestos cancer risks. At one point in his testimony, Selikoff recounted a 1935 case report by Kenneth Lynch. [12]According to Selikoff, Lynch had encountered at autopsy a man who had both lung cancer and asbestosis. Lynch regarded the clinical coincidence of the two diseases as remarkable, and wondered in a published case report whether the two diseases were causally related.[13]

As Selikoff held forth to the Senate subcommittee, his account of the Lynch case report became more exaggerated.[14] What at first was a 1935 report that asked a question became an assertion that “in 1935, Kenneth Lynch reported the association of asbestos work and lung cancer and warned that they were causally related.”[15]

The problem with Selikoff’s testimony was that Lynch had done no such thing. Lynch’s case report of a man who worked for 21 years in an asbestos factory raised the question of causality, but nowhere in the 1935 publication does Lynch issue a “warning” that asbestosis and lung cancer were causally related. Lynch never reported whether or not the 57 year-old white man had been a smoker. In trying to downplaying the unexplored smoking history, Selikoff embellishes upon the case report by asserting that not “many people smoked cigarettes … in 1910-1915.”[16]

This claim about smoking prevalence is also false, and part of Selikoff’s pattern of misrepresentations about smoking that were consistently designed to minimize the role of tobacco and maximize the role of asbestos in causing lung cancer.  World War I had a tremendous influence on both soldiers and the general population, with smoking prevalence among men rising dramatically after 1915. With the mass production of cigarettes, more than half of adult males in the United States smoked by 1920.[17] In September 1967, almost three years before testifying at the Senate hearings on the Occupational Health and Safety Act, Selikoff addressed a meeting of the asbestos workers international, and told them that he had

“yet to see a lung cancer in an asbestos worker who didn’t smoke cigarettes. … “[C]ancer of the lung could be wiped out in your trade if you people wouldn’t smoke cigarettes… .”[18]

Selikoff strategically omitted this detail from his Senate testimony.

On scientific and historical issues, Selikoff testified recklessly and with impunity to an audience of credulous Senators. Not only had Lynch not warned of a causal relationship in 1935, his case report was not capable of supporting such a causal inference. Case reports and series were certainly a commonplace in the medical literature, but by the early 1950s, the scientific community witnessed a dramatic shift in appreciating the need for controlled epidemiologic investigations to establish associations and causal associations.[19] Lynch’s 1935 case report had little scientific credibility after the success of lung cancer epidemiology in the 1950s.

Selikoff castigated the Public Health Service for not having researched the lung cancer issue through the 1950s. The lack of research, however, did not keep union physicians from claiming that asbestos caused lung cancer from at least the early 1950s.[20]

The Myth of the Innocent Asbestos Worker

Selikoff pressed his case for the need for national legislation by adverting to the supposed ignorance of the asbestos workers of the hazards of their trade, and how no one had told them of Lynch’s “warning.” The asbestos workers “assumed that someone was looking after any health hazards there might be.”  Although no one delights in blaming the victim, Selikoff’s narrative was false.[21]

By the time Selikoff testified before the Senate subcommittee, he had been working with the asbestos workers’ union for at least eight years.  In 1957, before Selikoff’s collaboration began, the asbestos insulators’ union’s periodical, distributed to its members, noted that

“[t]he problem of hazardous materials was again discussed with the importance of using preventative measures to eliminate inhalation. It is suggested that, when working under dusty conditions, respirators should be used at all times and gloves whenever conditions warrant.”[22]

Later that same year, President Sickles, at the International Convention of the Asbestos Heat, Frost and Insulators Union, reported to his union’s delegates that he

“[b]eing well aware of the health hazards in the Asbestos industry, requested authority for the General Executive Board to make a study of the health hazards … that will enable the Board to adopt any policies that will tend to protect the health of our International membership.”[23]

In 1961, before the asbestos workers formally engaged Selikoff to conduct any epidemiologic study, the union ran a full page warning in its monthly magazine. The warning featured a picture of the grim reaper urging insulators to “Wear Your Respirator.”[24] Notwithstanding widespread warnings from union leaders, Selikoff and his staff, and manufacturers’ product label warnings, Selikoff acknowledged, in 1967, that more than nine out of 10 insulators failed to wear respirators on dusty jobs.[25]

Valorization of Johns Manville Corporation

Up until Sabourin’s appearance at Selikoff’s side in the Senate hearings, Johns Manville had ducked adverse verdicts in civil litigation.[26] Sabourin was eager to please, and Selikoff was happy to show up with industry support. For sitting through Selikoff’s hyperbolic testimony, distorted statistics, and fanciful history, and for helping finance Selikoff research, Sabourin was rewarded with some sops from Selikoff. After being skewered by Paul Brodeur and others, executives at Johns Manville were no doubt pleased to have Selikoff testify that “it is idle and probably incorrect to blame the industry.”[27]

Selikoff claimed that

“it has been inspiring to me as a medical scientist to see the responsibility with which at least one large company, Johns Manville, has approached this problem. They have had the advantage of the leadership of a rather remarkable man, Mr. Clinton Burnett. They have cooperated fully. They have held nothing back because they are determined to make asbestos safe to use and to work with.”[28]

Selikoff’s allies at the tort bar would soon descend upon Johns Manville with a vengeance, with no benefit of clergy or Selikoff’s blessings.

[1] Occupational Safety and Health Act of 1970, S. 2193 and S. 2788, Before the Subcomm. on Labor & Public Welfare, 91st Cong. at 1072 (May 5, 1970) (testimony of Irving Selikoff) [cited below as Selikoff OSHA testimony].

[2] Anonymous, Irving J. Selikoff, MD, 1915-1992: A Centennial Celebration, ICAHN ARCH. (Oct. 22, 2015), at https://archives.icahn.mssm.edu/irving-j-selikoff-md-1915-1992-a-centennial-celebration/; Sheldon W. Samuels, Knut Ringen, William N. Rom, Arthur Frank, Selikoff was a brave pioneer examining workers throughout the country, Ethical thinking in occupational and environmental medicine: Commentaries from the Selikoff Fund for Occupational and Environmental Cancer Research, 65 AM. J. INDUS. MED. 286 (2022); Judson MacLaury, The Job Safety Law of 1970: Its Passage Was Perilous, 104 MONTHLY LAB. REV. 18 (Mar. 1981) (Buried in the battle of witnesses for and against the Nixon proposal were some thought-provoking comments by Irving Selikoff. He described the suffering of construction workers who succumbed to asbestosis from applying asbestos insulation to buildings. Refusing to blame any one group, he asked rhetorically, “Who killed Cock Robin?” Selikoff’s answer was: “No one …. His has been an impersonal, technological death …. We have all failed.”).

[3] International Association of Heat and Frost Insulators and Asbestos Workers. Albert Hutchinson was president of the International; Andrew Haas was treasurer.

[4] Restatement (Second) of Torts § 402A (Am. Law Inst. 1965).

[5] Paul Brodeur, The Magic Mineral, NEW YORKER (Oct. 5, 1968), at https://www.newyorker.com/magazine/1968/10/12/the-magic-mineral.

[6] Selikoff OSHA testimony at 1077.

[7] Selikoff OSHA testimony at 1077.

[8][8] Selikoff OSHA testimony at 1078-79.

[9] Selikoff OSHA testimony at 1076.

[10] Irving J. Selikoff, Jacob Churg & E. Cuyler Hammond, Asbestos Exposure and Neoplasia, 188 J. AM. MED. ASS’N 22 (1964).

[11] Paul J. Villeneuve & Yang Mao, Lifetime probability of developing lung cancer, by smoking status, Canada, 85 CAN. J. PUB. HEALTH 358 (1994).

[12] Selikoff at 1074.

[13] Kenneth M. Lynch & W. Atmar Smith, Pulmonary Asbestosis III: Carcinoma of Lung in Asbesto-Silicosis, 24 AM. J. CANCER 56 (1935).

[14] Selikoff at 1080.

[15] Selikoff OSHA testimony at 1080.

[16] Selikoff OSHA testimony at 1074.

[17] Jeffrey E. Harris, Cigarette smoking among successive birth cohorts of men and women in the United States during 1900-80, 71. J. NAT’L CANCER INSTIT. 473 (1983).

[18] Irving J. Selikoff, Address to the delegates of the twenty-first convention of the International Association of Heat and Frost Insulators and Asbestos Workers at 9 (Chicago, Illinois, Sept. 1967), https://search.worldcat.org/fr/title/dr-irving-j-selikoffs-address-to-the-delegates-of-the-twenty-first-convention-of-the-international-association-of-heat-and-frost-insulators-and-asbestos-workers-chicago-illinois-september-1967/oclc/12288308.

[19] See Colin Talley, et al., Lung Cancer, Chronic Disease Epidemiology, and Medicine, 1948 – 1964, 59 J. HIST. MED. & ALLIED SCI. 329 (2004).

[20] Herbert K. Abrams, Cancer in Industry, Illinois ST. FED. LABOR WEEKLY NEWS LTR 1 (1955); Herbert K. Abrams, Cancer in Industry, 69 THE PAINTER & DECORATOR 15 (Mar. 1955). Abrams was the medical director of the Building Service Employees Union.

[21] Selikoff OSHA testimony at 1080.

[22] Asbestos Worker (July 1957).

[23] The Asbestos Worker at 1 (Oct, 1957) (reporting on the Asbestos Workers’ 19th General Convention).

[24] 15 The Asbestos Worker at 29 (Nov. 1961). The warning was developed under the guidance of C. V. Krieger of Local No. 28, Safety Superintendent at the Long Beach Naval Shipyard.

[25] Irving J. Selikoff, Address to the delegates of the twenty-first convention of the International Association of Heat and Frost Insulators and Asbestos Workers at 8, 9-10, 24 (Chicago, Illinois, Sept. 1967), at https://search.worldcat.org/fr/title/dr-irving-j-selikoffs-address-to-the-delegates-of-the-twenty-first-convention-of-the-international-association-of-heat-and-frost-insulators-and-asbestos-workers-chicago-illinois-september-1967/oclc/12288308

[26] Johns Mansville won a jury trial in 1969, but it would go on to lose in a case brought by insulator Clarence Borel, in 1971.

[27] Selikoff OSHA testimony at 1076.

[28] Selikoff OSHA testimony at 1078.

Posted in Asbestos, Expert Witness Hall of Shame | No Comments »