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.
