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Tort Law’s Sleight of Hand

August 1st, 2020

The last century’s landmark cases, which established products liability as it currently exists in the United States, involved consumer products.[1] The consumer products were sold to, or were designed to be used by, ordinary consumers, without any technical training or knowledge. The consumer products that gave rise to advent of products liability as we know it were not products that required technical supervision or were subject to regulatory oversight with the potential for governmental inspections to ascertain safe use.

Justice Roger Traynor’s classic concurrence in Escola v. Coca Cola Bottling Company provided the initial rationale for what became strict products liability. In addition to deterrence of marketing harmful products and the prevention of injury, Traymor observed that:

“public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot.”[2]

This difference in ability to know about and anticipate some hazards has become the doctrinal foundation for broad liability rules for consumer products. The complexity of products and the processes of their manufacture places consumers into a position of forced reliance upon manufacturers.[3]

Courts would later add a “deep pocket” explanation, a blatant appeal to a felt need to place liability with the party with greater financial resources. By marketing products and realizing at least a potential to profit from the marketing indicated the manufacturer as the appropriate source of compensation for the injured consumer.[4] More thoughtfully, some scholars sought to impose tort liability on the “cheapest cost avoider,” the party who could reduce the risks of accidents and their costs most efficiently and effectively.[5] In 1965, the march towards strict products liability reached a major success in the Restatement (Second) of Torts. Section 402A embraced the economic and moral rationales to support the application of strict liability to products sold “in a defective condition unreasonably dangerous to the user or consumer”.

The industrial customer is frequently very different from the consumer as imagined by the landmark tort cases that led up to the Restatement (Second) of Torts. Some of the key characteristics of the industrial customer that differentiate it from the so-called “ordinary” consumer include:

  1. The customer is at least as knowledgeable about the latent hazards as the seller.
  2. The customer typically has employees who will use the product.
  1. The customer is often more knowledgeable than the seller about the actual circumstances of the product’s use by the purchaser’s employees, and what preventive measures can be and have been taken;
  2. The customer is itself an industrial concern with economic resources, often greater than those of the seller.
  3. The customer is often in a better position to distribute the costs of injuries than the seller.
  4. The customer, qua employer, has common law, statutory, and regulatory duties to provide a safe workplace, often specifically with reference to the product at issue.
  5. The customer stands to profit from the use of the product, and the customer has the most to gain from ignoring known hazards in terms of speeding up its production.
  6. The customer, qua employer, is in the best position to, and often the only person who can, assess and determine the hazard, intervene to prevent the hazard, determine and implement the appropriate safety measures, and supervise its employees to ensure compliance with its safety measures (many of which are mandated by state or federal law).

As a generality, the facts and circumstances of the use of many industrial products are quite different from those in which consumer products are used. Historically, tort law has recognized the relevance of the differences in the form of the sophisticated intermediary, government contractor, bulk seller, component part, and bare metal defenses. In the context of industrial products, involving a manufacturer-seller, an industrial buyer, and an injured employee of the industrial buyer, none of the doctrinal rationales for strict liability work particularly well. The buyer may have greater financial resources and greater ability to spread the cost of injuries. Almost always, the buyer will have greater ability to avoid the risk by implementing known or knowable precautions that are required in any event by state and federal law. The buyer as employer will see deviations from safety rules and can correct them before injuries result. In the wake of the Restatement (Second) of Torts, however, many courts have fallen into the error of treating the industrial accident with the same rules and rationalia that were developed for consumer cases.

[1]  See, e.g., MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, 145 N.Y. Supp. 462 (N.Y. 1916) (car); Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 150 P.2d 436 (1944) (soft drink bottle); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960) (car); Greenman v. Yuba Power Prods., Inc., 59 Cal. 2d 57, 377 P.2d 897 (Cal. 1963) (power tool designed for home use). Two of these decisions (MacPherson and Escola) are discussed in Robert L. Rabin, “Past as Prelude: The Legacy of Five Landmarks of Twentieth-Century Injury Law for the Future of Torts,” chap. 2, in M. Stuart Madden, Exploring Tort Law 52 (2005). Professor Rabin does not include any tort decisions that involved liability by remote suppliers to industrial workplaces.

[2]  Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 150 P.2d 436, 440-41 (1944) (Traynor, J., concurring) (positing in addition to the majority’s decision based upon negligence that the bottle manufacturer should be “strictly liable” to consumers for a bottle defectively made).

[3]  Id. at 443. See RESTATEMENT (SECOND) OF TORTS § 402A (1965), cmt. c (“[T]he justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it . . . .”).

[4]  Greenman v. Yuba Power Prods., Inc., 59 Cal. 2d 57, 377 P.2d 897, 901 (Cal. 1963) (“The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons . . . .”); Restatement (Second) of Torts §402A, cmt. c (1965) (“public policy demands that the burden of accidental injuries caused by products . . . be placed upon those who market them”).

[5]  Guido Calabresi & Jon T. Hirschoff, “Toward a Test for Strict Liability in Torts,” 81 Yale L.J. 1055 (1972).

Posted in Sophisticated User | Comments Off on Tort Law’s Sleight of Hand

Historical Malfeasance from Lawsuit Industry Expert Witnesses

July 31st, 2020

“The slickest way in the world to lie is to tell the right amount of truth at the right time-and then shut up.”

― Robert A. Heinlein, Stranger in a Strange Land

Is David Rosner’s and Gerald Markowitz’s ToxicDocs Website Really A Scholarly Enterprise?

In past posts,[1] I have called attention to a project launched by historian David K. Rosner and others to provide a free, web-based database of industry “secret” documents that come out of litigation files. Rosner and his frequent co-author, Gerald Markowitz, organized a group of sycophantic, lawsuit industry acolytes – both lawsuit industry consultants and lawyer – to write endorsements in a special issue in the Journal of Public Health Policy.[2]

The ToxicDocs project has received a warm embrace from Rosner’s fellow travellers,[3] and perhaps more disturbing, funding, to the tune of almost half a million dollars, from the National Science Foundation.[4]

The Abstract for the National Science Foundation grant is both incredibly revealing, and concealing:

“This award supports a research infrastructure project called ToxicDoc. It will enable easy access and use of millions of documents for multi-disciplinary research. Recent class-action tort litigation has unearthed millions of previously secret internal records from private firms responsible for wide-scale introduction of toxic substances, such as asbestos and polychlorinated biphenyls (PCBs). These documents include memos between executives, unpublished scientific studies, planning documents for public relations campaigns, letters to policymakers, and trade association meeting minutes.

Although technically part of the public record, this material is extremely hard to access, even for scientific researchers. ToxicDocs will provide a critical intellectual resource for scholars in multiple fields examining health, toxics, and corporate action. Expected users include scholars in environmental and health history, critical legal studies, hazards geography, environmental health and environmental justice research.

*** Without taking any particular side, ToxicDocs will provide an empirical base for informed policy debates that are grounded in key historical records.” (emphasis added)

The project is, in my view, a great deception for several reasons.

First, despite the claims of novelty, the concept is a rehash of tobacco industry documents that have been up and running on the internet for many years.[5]

Second, many if not most of the documents are, and have been, in the public domain for a long time. There are many transcripts and documents that were offered in open judicial proceedings, without any protective or confidentiality orders.

Third, the database has been sanitized to protect against disclosure of the lawsuit industry’s misdeeds. You will not find the infamous Barron & Budd memorandum, which provided instructions to asbestos plaintiffs on how to lie at depositions. You will not find the secret correspondence between plaintiffs’ lawyers and their expert witnesses about how to abridge their historical researches to avoid unfavorable revelations. You will not find any evidence of the unlawful and unethical schemes, by the lawsuit industry, to conduct mass screenings and manufacturing of claims in various mass tort litigations, including the asbestos, silica, and welding litigations.

Fourth, the database is grossly incomplete because many correlative documents that modify, qualify, or even reverse the meaning of databased documents are absent. Rosner’s database is a sham because it is deceptively imbalanced and misleading in its content. Contrary to the abstract on the National Science Foundation’s website, ToxicDocs most definitely takes a “particular side,” invariably the side of the lawsuit industry.

Let me give you some examples of omissions, relating to Gerrit W.H. Schepers, who was a participant in developing knowledge about asbestos hazards, and a frequent testifier for the lawsuit industry on general and specific causation of asbestos diseases, as well as the historical development of knowledge of those diseases.

In ToxicDocs, you will find entries for some testimony about Schepers, extolling his writings on asbestos and his role at the Trudeau Institute, at Saranac Lake, New York, usually by lawsuit industry expert witnesses, such as Barry Castleman. You will find examples of people within manufacturing industrial concerns that criticize Schepers, especially after he entered the fray as a partisan testifying expert witness for the lawsuit industry. What you will not find in ToxicDocs are many examples of Schepers’ testimony, and specifically some of his more outlandish testimony.

Schepers testified frequently. Indeed, he testified so often that he came to see himself as seemingly a “performing seal” for the lawyers who called him.[6] As a testifying expert witness, Schepers was certainly as slippery as a seal.

The first time I went off to cross-examine Dr. Gerritt Schepers was in a New Jersey case, brought by an Owens-Corning Fiberglas plantworker, who worked on making OCF’s Kaylo insulation.[7] The plantworker had undeniable asbestos exposure from which he had developed peritoneal mesothelioma. During his years of employment, Owens-Corning had used both chrysotile and amosite in manufacturing Kaylo. The amosite supplier was in South Africa and judgment proof, but the plaintiff’s lawyer was able to sue Carey-Canada, Inc., a Canadian chrysotile mining company for its supply to the factory. One other chrysotile supplier had settled, and the third, Johns-Manville was in bankruptcy.  In this plantworker case, I represented Carey-Canada in what turned out to be one of its last cases in the United States, before filing for bankruptcy. After a hard fought trial, in which the plaintiff’s estate called Schepers and other expert witnesses, the Camden County jury returned a no-cause verdict on the mesothelioma claim. You will not find the trial transcript of Schepers’ testimony, whether direct or cross-examination, in ToxicDocs.

A year later, I saw Schepers again, in a New Jersey case.[8] He was again a paid expert witness, this time to testify about “state of the art,” and he was as wily as ever, in providing some wild testimony. Here is a flavor:

Q. Back in the 1950s Doctor Hueper 20 was fairly well regarded as an expert in industrial medicine?

A. No. No. No. No. He was a — he was a pathologist, epidemiologist, whose main focus was cancer, not all of the industrial medicine or hygiene, and his focus was almost singularly on the issue of relationship between industrial processes and cancer. That’s about the only way I can answer that question.

Q. All right. Was he regarded – was [sic] his opinions regarded — well regarded in the 1950s?

A. Oh, my goodness, some — some people thought that he was criminally irresponsible, and others thought he was a genius. I can’t answer that question.

Q. Did some think he was irresponsible because he rejected the association between smoking and lung cancer?

A. No. No. No. No. It is because he blamed everything, he blamed he just blamed everything as a cause. By then he got to the stage where you could get cancer from riding down the highway. You could get cancer from working with silica bricks, all things that are — you know, had been disproven, so forth.[9]

After this criminal indictment of Hueper, I chose to ratchet down the examination and ask about a less nefarious character:

Q. Let me though ask you about Doctor or Professor Philip Drinker. He was not a physician but he was an industrial hygienist.

A. No, he was an engineer.

Q. He was actually on the faculty of the Harvard School of Public Health?

A. Yes.

Q. And he was a well respected figure in industrial hygiene?

A. Yes. Yes.

Q. And, in fact, I believe that you had dedicated one of your books to him; is that correct?

A. Yes.[10]

An interesting colloquy, considering that Drinker is demonized by the ToxicDoc historians, and Drinker’s works are largely absent from the ToxicDoc database, as was my deposition transcript, and many others like it.

The Biological Action of Talc and Other Silicate Minerals

In 1973, Schepers published a written statement of his views on the carcinogenicity of talc, tremolite, chrysotile, and crocidolite.[11] Schepers’ paper, which was published in an Information Circular of the United States government, pronounced that the

“[p]roliferation of pleural mesothelium is a classical sequel to crocidolite exposure which leads to neoplasis (mesothelioma) in a high proportion of cases.”[12]

Indeed, the only suggestion of the cause of mesothelioma in this 1973 government publication by Schepers was crocidolite asbestos.[13]

A copy of Schepers’ 1973 paper is not in the ToxicDocs database.

Schepers’ Letter to Grover Wrenn

Three years later, on July 19, 1976, Schepers wrote to Grover Wrenn, who was, at the time, the Chief of the Division of Health Standards Development, in the Occupational Safety and Health Administration, within the Department of Labor, in Washington.

The subject of Schepers’ letter was “Scientific Data on Fibrous Minerals and Beryllium.” According to Schepers’ letter, he was following up on his recent meeting with Wrenn, by sending represents and copies of articles on asbestos and beryllium, which were under intense scrutiny from OSHA at the time.

In his letter to Wrenn, Schepers summarized his views at the time:

“As you can see, my researches cast considerable doubt on the proposition that [A]merican fibrous minerals are carcinogenic. I am not one of those who doubt the carcinogenicity of everything. To the contrary, I believe I have helped prove that some environmental pollutants are carcinogenic. For this reason, you may perhaps accept the credibility of my findings when I state that I could detect no evidence of carcinogenicity for either chrysotile, talc or fiberglass.”

Schepers’ letter to Grover Wrenn is not in ToxicDocs.

Schepers’ Letter to Navy Captain D. F. Hoeffler

By 1978, the Navy was up to its gunnels in asbestos claims, and Schepers sensed an opportunity. On March 10, 1978, Schepers wrote to Captain D.F. Hoeffler, who with the Medical Corps in the Bureau of Medicine and Surgery, in the Department of the Navy. His intent was clear; he was looking for consulting work in connection with lawsuits. His letter was a remarkable snap shot of what an ostensible expert on asbestos was thinking and writing about fiber type and cancer in 1978, and so I am reproducing the letter in full:

Dear Captain Hoeffler:

A multitude of duties and interruptions delayed my response to your telephone inquiry of a few weeks ago. You desired some details concerning my experience with the pneumoconioses. I had to dig through some boxes to get you this material and some we had to Xerox afresh.

Here is a CV and some reprints which will possibly be helpful. Since I have been involved with so many things my expertise with respect to asbestosis is somewhat hidden among the rest. For emphasis therefore let me summarize that my clinical and research involvement with asbestosis and thus also lung cancer spans some thirty years. I commenced this work in South Africa, where as a pulmonary medical director for the pneumoconiosis Bureau we researched the working conditions and health of all employee of that countries[sic] extensive crocidolite and amosite mines an industries. The fact that mesotheliomatosis can be associated with exposure was first discovered by me during 1949 at the Penge-Egnep mines in the Eastern Transvaal. It is also important to know that only one out of three persons who develop mesothelioma ever was exposed to asbestos dust. The Institute for Pneumoconiosis Research which I started there has abundant evidence about this.

In the USA I next studied the asbestos problem for the Quebec Government and the Johns Manville Company and also for various asbestos producing companies. This embraced research on human subjects, lung tissue and experimental animals. The net result of my fifteen years of work in this field here has been to convince me that chrysotile, which is the North American type of asbestos, is relatively innocuous as compared to the African and Russian varieties. I have never seen a case of lung cancer develop in any person exposed to chrysotile only. However I have seen plenty of lung cancers in asbestos workers. This is because most asbestos workers also are exposed to carcinogenic materials other than asbestos and all the cases with lung cancer also were chronic lung self-mutilators through cigarette smoking. In a rather major set of experiments of mine I exposed animals to the most potent known carcinogen (beryllium sulphate) and then exposed them to asbestos (chrysotile) dust. These animals had fewer cancers than those exposed to the beryllium sulphate. So chrysotile is not even a significant co-carcinogen. I reversed the order of the exposure, namely asbestos (chrysotile) first and then the BeSO4. The result was the same. The animals exposed only to chrysotile never developed any lung cancers.

I probably have the largest collection of asbestosis case materials, having been a consultant to hundreds of physicians. I have a very detailed knowledge of what various types of asbestos can an cannot do to the lungs. If my command of this subject can be of any cse [sic] to the Navy in the current law suit please feel to use my services as you deem fit.

Other reprints will be forwarded in separate packages as I locate them. I am still extricating myself from my recent move.

Sincerely,

Gerrit W. H. Schepers, MD, Sc.D.

Aside from implicating smoking as the overwhelming, most important cause of lung cancer, Schepers exculpated chrysotile (the North American asbestos fiber) from causing cancer. At the same time, he pointed the finger to asbestos mined in the Transvaal, which was mostly amosite but with some crocidolite, as the cause of mesothelioma.[14] Indeed, the Transvaal was the source of almost all of world’s supply of amosite and much of its crocidolite. Schepers dates his “discovery” to 1949, a full decade and some before the date typically given for the discovery by Christopher Wagner.[15] A search of Schepers’ publications fails to show that he ever published his “discovery,” even after he came to the United States in the early 1950s. At the time, American companies were importing considerable South African amphibole asbestos, which was used a wide variety of products, including asbestos-containing insulation.

A disinterested historian might have that this letter should have been included in a database of historical documents about who knew what and when, but…

Schepers’ Letter to Captain D. F. Hoeffler is not in ToxicDocs.  

This exercise about Schepers could and should be repeated on any number of other topics and writers. It is hard to escape the conclusion that ToxicDocs is not a true research historical archive. It is designed by, and for, historians who advocate for the lawsuit industry. As such, the database frames the issues of historical knowledge as manufacturing industry versus individuals, without a meaningful exploration of what labor unions and the government knew and did when they had control over exposures to various chemicals, dusts, and materials.

What a waste of taxpayers’ money!

[1]  “ToxicHistorians Sponsor ToxicDocs” (Feb. 1, 2018); “Creators of ToxicDocs Show Off Their Biases” (June 7, 2019);  “David Rosner’s Document Repository” (July 23, 2017).

[2]  David Rosner, Gerald Markowitz, and Merlin Chowkwanyun, “ToxicDocs (www.ToxicDocs.org): from history buried in stacks of paper to open, searchable archives online,” 39 J. Public Health Pol’y 4 (2018); Anthony Robbins & Phyllis Freeman, “ToxicDocs (www.ToxicDocs.org) goes live: A giant step toward leveling the playing field for efforts to combat toxic exposures,” 39 J. Public Health Pol’y 1 (2018); Robert N. Proctor, “God is watching: history in the age of near-infinite digital archives,” 39 J. Public Health Pol’y 24 (2018); Stéphane Horel, “Browsing a corporation’s mind,” 39 J. Public Health Pol’y 12 (2018); Christer Hogstedt & David H. Wegman, “ToxicDocs and the fight against biased public health science worldwide,” 39 J. Public Health Pol’y 15 (2018); Joch McCulloch, “Archival sources on asbestos and silicosis in Southern Africa and Australia,” 39 J. Public Health Pol’y 18 (2018); Sheldon Whitehouse, “ToxicDocs: using the US legal system to confront industries’ systematic counterattacks against public health,” 39 J. Public Health Pol’y 22 (2018); Elena N. Naumova, “The value of not being lost in our digital world,” 39 J. Public Health Pol’y 27 (2018); Nicholas Freudenberg, “ToxicDocs: a new resource for assessing the impact of corporate practices on health,” 39 J. Public Health Pol’y 30 (2018).

[3]  Pamela Aaltonen, APHA President, “Science and Industry: Let’s Agree on Goals and Shared Wins,” 109 Am. J. Pub. Health 949 (2019); Carla Cantor, “ToxicDocs Exposes Industry Misdeeds” Columbia Magazine (Summer 2019); Tik Root, “In ToxicDocs.org, a Treasure Trove of Industry Secrets,”  Undark (Jan. 10, 2018); Celeste Monforton, “Public health historians make open to us a treasure trove of industry documents,” Pump Handle (Jan. 26, 2018) (praise from SKAPP co-conspirator); Susan M. Reverby, “Historical Misfeasance: Immorality to Justice in Public Health,” 107 Am. J. Public Health 14 (2017); Merlin Chowkwanyun, “Big Data, Large-Scale Text Analysis, and Public Health Research,” 109 Am. J. Pub. Health S126 (2019) (the author is associated with the Center for the History and Ethics of Public Health, Department of Sociomedical Sciences, Mailman School of Public Health, Columbia University); Sheldon Krimsky & Carey Gillam, “Roundup litigation discovery documents: implications for public health and journal ethics,” 39 J. Public Health Policy 318 (2018); Xaver Baur, Colin L. Soskolne & Lisa A. Bero, “How can the integrity of occupational and environmental health research be maintained in the presence of conflicting interests?” 18 Envt’l Health 1 (2019); Gerald Markowitz & David Rosner, “Monsanto, PCBs, and the creation of a ‘world-wide ecological problem’,” 39 J. Public Health Policy 463 (2018).

[4]  “Columbia Professors Receive NSF Grant to Expand ToxicDocs Project” Ass’n Schools & Programs of Public Health (Aug. 16, 2018) (reporting that David Rosner and Merlin Chowkwanyun in Columbia’s department of sociomedical sciences received a grant of $457,649 from the National Science Foundation (NSF) for support of their ongoing ToxicDocs project).

[5]  The tobacco litigation has spawned several such on-line repositories: “Truth Tobacco Industry Documents Library,” Tobacco Archives,” and “Tobacco Litigation Documents.” Rosner’s efforts to create a public library of the documents upon which they rely in litigation harkens to earlier websites. See David Heath & Jim Morris, “Exposed: Decades of denial on poisons. Internal documents reveal industry ‘pattern of behavior’ on toxic chemicals,” Center for Public Integrity (Dec. 4, 2014). Even before the tobacco document repositories were online, lawsuit industry expert witness, David Egilman, sponsored a website (www.egilman.com), now defunct, on which he provided his references and materials upon which he relied in giving testimony.

[6]  Testimony of Gerrit Schepers at 49:9-12 (July 25, 1990), in Hill v. Carey-Canada, Inc., N.J. Super. Ct., Law Div. for Camden Cty., Docket-051429-84.

[7]  Id.

[8]  Deposition of Gerrit W. H. Schepers, in Hadcliff v. Eagle-Picher Inc., N.J. Super. Ct., Law Div. for Gloucester Cty., Docket W-023456-88 (June 14, 1991).

[9]  Id. at 234:19 – 235:15.

[10]  Id. at 236:1-17.

[11]  Gerrit W. H. Schepers, “The Biological Action of Talc and Other Silicate Minerals,” in Goodwin, Proceedings on the Symposium on Talc; U.S. Dep’t Interior Information Circular 8639 (1973).

[12]  Id. at 65.

[13]  Id. at 68.

[14]  James I. Phillips, David Rees, Jill Murray and John C.A. Davies, “Mineralogy and Malignant Mesothelioma: The South African Experience,” Chap. 1, in Carmen Belli & Santosh Anand, eds., Malignant Mesothelioma (2012). See also G.J. V. Clarence, “Amosite asbestos,” 33 Transactions Geol. Soc’y So. Africa 5 (1930); L. Reinecke & L. McClure, “Variations in the quality of amosite asbestos at Penge, Transvaal,” 37 Transactions Geol. Soc’y So. Africa 29 (1934); Bruce Cairncross & Roger Dixon, Minerals of South Africa; The Geological Society of South Africa (1995).

[15]  See J. Christopher Wagner, C.A. Sleggs, and Paul Marchand, “Diffuse pleural mesothelioma and asbestos exposure in the North Western Cape Province,” 17 Br. J. Indus. Med. 260 (1960); J. Christopher Wagner, “The discovery of the association between blue asbestos and mesotheliomas and the aftermath,” 48 Br. J. Indus. Med. 399 (1991).

Posted in Asbestos, Expert Witnesses, State of the Art | Comments Off on Historical Malfeasance from Lawsuit Industry Expert Witnesses

Is Your Daubert Motion Racist?

July 17th, 2020

In this week’s New York Magazine, Jonathan Chait points out there is now a vibrant anti-racism consulting industry that exists to help white (or White?) people to recognize the extent to which their race has enabled their success, in the face of systematic inequalities that burden people of color. Chait acknowledges that some of what this industry does is salutary and timely, but he also notes that there are disturbing elements in this industry’s messaging, which is nothing short of an attack on individualism as racist myth that ignores that individuals are subsumed completely into their respective racial group. Chait argues that many of the West’s most cherished values – individualism, due process, free speech and inquiry, and the rule of law – are imperiled by so-called “radical progressivism” and “identity politics.”[1]

It is hard to fathom how anti-racism can collapse all identity into racial categories, even if some inarticulate progressives say so. Chait’s claim, however, seems to be supported by the Smithsonian National Museum of African American History & Culture, and its webpages on “Talking about Race,” which provides an extended analysis of “whiteness,” “white privilege,” and the like.

On May 31, 2020, the Museum’s website published a graphic that presented its view of the “Aspects & Assumptions of Whiteness and White Culture in the United States,” which made many startling claims about what is “white,” and by implication, what is “non-white.” [The chart is set out below.] I will leave it to the sociologists, psychologists, and anthropologists to parse the discussion of “white-dominant culture,” and white “racial identity,” provided in the Museum’s webpages. In my view, the characterizations of “whiteness” were overtly racist and insulting to all races and ethnicities. As Chait points out, with an abundance of irony, Donald Trump would seem to be the epitome of non-white, by his disavowal of the Museum’s identification of white culture’s insistence that “hard work is the key to success.”

The aspect of the graphic summary of whiteness, which I found most curious, most racist, and most insulting to people of all colors and ethnicities, is the chart’s assertion that white culture places “Emphasis on the Scientific Method,” with its valuation of “[o]bjective, rational linear thinking; “[c]ause and effect relationships”; and “[q]uantitative emphasis.” The implication is that non-whites do not emphasize or care about the scientific method. So scientific method, with its concern over validity of inference, and ruling out random and systematic errors, is just white privilege, and a microaggression against non-white people.

Really? Can the Smithsonian National Museum of African American History & Culture really mean that scientific punctilio is just another manifestation of racism and cultural imperialism. Chait seems to think so, quoting Glenn Singleton, president of Courageous Conversation, a racial-sensitivity training firm, who asserts that valuing “written communication over other forms” is “a hallmark of whiteness,” as is “scientific, linear thinking. Cause and effect.”

The Museum has apparently removed the graphic from its website, in response to a blitz of criticism from right-wing media and pundits.[2]  According to the Washington Post, the graphic has its origins in a 1978 book on White Awareness.[3] In response to the criticism, museum director Spencer Crew apologized and removed the graphic, agreeing that “it did not contribute to the discussion as planned.”[4]

The removal of the graphic is not really the point. Many people will now simply be bitter that they cannot publicly display their racist tropes. More important yet, many people will continue to believe that causal, rational, linear thinking is white, exclusionary, and even racist. Something to remember when you make your next Rule 702 motion.

   

[1]  Jonathan Chait, “Is the Anti-Racism Training Industry Just Peddling White Supremacy?” New York Magazine (July 16, 2020).

[2]  Laura Gesualdi-Gilmore “‘DEEPLY INSULTING’ African American museum accused of ‘racism’ over whiteness chart linking hard work and nuclear family to white culture,” The Sun (Jul 16 2020); “DC museum criticized for saying ‘delayed gratification’ and ‘decision-making’ are aspects of ‘whiteness’,” Fox News (July 16, 2020) (noting that the National Museum of African American History and Culture received a tremendous outcry after equating the nuclear family and self-reliance to whiteness); Sam Dorman, “African-American museum removes controversial chart linking ‘whiteness’ to self-reliance, decision-making The chart didn’t contribute to the ‘productive conversation’ they wanted to see,” Fox News (July 16, 2020); Mairead McArdle, “African American History Museum Publishes Graphic Linking ‘Rational Linear Thinking,’ ‘Nuclear Family’ to White Culture,” Nat’l Rev. (July 15, 2020).

[3]  Judy H. Katz, White Awareness: Handbook for Anti-Racism Training (1978).

[4]  Peggy McGlone, “African American Museum site removes ‘whiteness’ chart after criticism from Trump Jr. and conservative media,” Wash. Post (July 17, 2020).

Posted in Causation, Cognitive Biases, Rule 702, Scientific Evidence | Comments Off on Is Your Daubert Motion Racist?

Big Blue versus Asbestos Fiber Type Egalitarianism

July 16th, 2020

The differential potency for causing mesothelioma among asbestos varieties is well established. In the year 2000, John Hodgson of the Epidemiology and Medical Statistics Unit, in the British Health and Safety Executive, published an analysis of the relative potency for different asbestos minerals. The published analysis showed that the estimated ratio of excess mesothelioma mortality for the same exposure in fiber/milliliter – years was 1:100:500 for chrysotile, amosite and crocidolite, respectively.[1] The analysis was recently updated by David Garabrant, who charitably considered some mixed exposure cohorts as chrysotile only,[2] with the result of slightly less extreme relative risks for amosite and crocidolite.[3]

The lawsuit industry’s expert witnesses have long been afraid to acknowledge the differential potency of chrysotile (with or without tremolite contamination) and the commercial amphibole fibers, amosite and crocidolite.[4] Why? First, by lumping the fiber types together, they obtain risk ratios for mesothelioma for all workers, regardless of the nature of their specific exposures. Their quest to seek compensation and obtain bans of all asbestos works better by simplification and exaggeration of risk. Second, they knew in the early days of the asbestos litigation in the United States that the South African amphibole suppliers were beyond the reach of courts and litigants in American courts. They were alert to the litigation risk that the Canadian mining companies would escape liability because the overwhelming bulk of the risk derived from South African amphibole fiber. Later cases involved chrysotile-only products that did not cause the level of exposures seen from friable insulation and cloth materials. A differential in risk for low-exposure chrysotile products raised serious questions whether such products could contribute substantially to a given case of mesothelioma, for which there was also exposure to amosite and crocidolite. Interestingly, some companies, concerned about losing contribution from low-exposure chrysotile products, took similar positions. Third, the exaggerated risks of all fibers helps advance their “each and every fiber” (or cumulative) causation theory, which they invoke to claim that even fleeting exposures from asbestos-containing products are “substantial contributing factors.” Consider how that argument goes when one product is akin to drinking 750 ml. of whiskey, and another is the equivalent of 1.5 ml. A man drinks a fifth of whiskey at one bar, and a thimble full of whiskey at the second. Most juries can see that the thimble was not substantial factor in contributing to the man’s drunkenness. Still, if you were the company that sold the whole bottle, you would love to have the thimble seller pay a 50% share; no? If you were the drunkard, and the seller of the bottle of whiskey was now a “bankruptcy trust,” obtaining a pro-rate share against the thimble seller would be lovely.

The extent to which crocidolite asbestos contributed to the horrific burden of mesothelioma was muddled by the writings of Irving John Selikoff. Before Selikoff wrote anything about any asbestos type and cancer, in 1960, in a remarkable case series, Christopher Wagner and colleagues showed a strong relationship between mesothelioma and crocidolite (blue) asbestos. Selikoff may not have had any first-hand knowledge of the unique potency of “big blue,” but he had been a regular testifier in workman’s compensation cases for UNARCO (Union Asbestos & Rubber Company) workers throughout the 1950s.[5]

In a 1965 volume, which Selikoff edited, of proceedings of a 1965 conference, which which Selikoff chaired, Selikoff presented United States Department of Commerce statistics that showed for six years reported (1957-1962), crocidolite imports exceeded amosite imports.[6] In that same year, 1965, in a prominent article in the New England Journal of Medicine, Selikoff played down the role in causing mesotheliomas in the United States.[7]

“Crocidolite is a relative newcomer to the American asbestos-industry scheme. Thus, American imports of crocidolite (none is mined here) were less than 500 tons in 1935 and had reached a level of only 20,000 tons even in 1962. In contrast, chrysotile, the type of asbestos fiber widely used in the American asbestos industry, was imported at a level of 165,000 tons in 1935 and 650,000 tons in 1962.5”

Selikoff thus chose to paint the mesothelioma problem as a dichotomy between blue asbestos and chrysotile, while leaving amosite out of the analysis completely. Indeed, the word “amosite” (or the word grunerite) does not appear in the New England Journal of Medicine article .

Aside from misleadingly framing the South Africa experience as limited to blue asbestos, and the United States experience as somehow limited to chrysotile, Selikoff presented the import statistics for amosite and crocidolite in a rather confusing way. In 1972, Selikoff presented a more revealing set of statistics about amphibole fiber imports, in the context of discussing whether amosite was carcinogenic (despite testifying in the UNARCO cases two decades earlier):

“Few data exist concerning the comparative neoplastic potential of the several kinds of asbestos in man. Some information is available for chrysotile,4 crocidolite,5 and anthophyllite.6 However, there has been no evidence to indicate whether or not the amosite variety is also carcinogenic.”[8]

Selikoff went on, in this 1972 article, to present more complete data on fiber type consumption in the United States, although still only estimates:

The 1972 article raises interesting questions about Selikoff’s own testimony in the 1950s New Jersey workman’s compensation cases on behalf of UNARCO workers.  Table 1, reproduced above from Selikoff’s 1972 article, also throws considerable doubt upon generalizations about what fiber types were commercially used by insulators and others throughout the 20th century, in the United States. We can see that for 1920 and 1925, there is an “other” category, which could be virtually anything, and no data about South African fibers, which could mean none or it could mean simply no data available. In 1930, 1935, and 1940, there are data for crocidolite and amosite combined. Throughout the 1930s, the “other” category grew considerably, introducing serious ambiguity and doubt into Selikoff’s argument. Selikoff’s 1965 article in the New England Journal of Medicine gave a distorted view of the supply issue, but to my knowledge, it has never been corrected.

From Table 1, above, we see crocidolite and amosite data segregated for the first time in 1945. And for that year, the supply of crocidolite (8,700 tons) was almost twice that of amosite (4,500 tons). There was certainly no warrant for claiming that insulators and American factory workers had no amosite or crocidolite exposure before and after World War II.

While these confusions were being put forward, other countries were acting to control the occupational hazards of asbestos by differentially banning crocidolite, and imposing stricter controls on chrysotile. Selikoff led the United States in a different direction. The photograph and text below is from the May 1966 issue of the Port of Houston Magazine, showing how blue asbestos was continuing to invade the United States, while Selikoff and many of his colleagues were pointing to chrysotile.

Port of Houston Magazine 21 (May 1966)

In a 1968 conference presentation, with the benefit of hindsight, Selikoff addressed the issue of the forseeability of widespread asbestos disease:

“At the outset of this presentation, I questioned whether asbestos might properly be included as an unanticipated environmental hazard. Yet the less iconoclastic among us might have countered with: it must have been-we could not have knowingly allowed this to come to pass! Surely the explanation lies in the length of the period that elapses between exposure and disease which kept us from really knowing the problem until now.

Perhaps so. Indeed, I do not share the demonological theory of industrial hygiene history, in which industry is seen as callously exchanging human disease for profits. Rather, I would say industry shared the ignorance and lethargy of us all. The answer will come in these next several years. We have some reason for optimism. First, we have the law of averages on our side-sooner or later, some important environmental hazard is bound to be controlled. I suspect asbestos will be one. We have reason to believe that the dose-disease relationship is on our side-to the present, disease has been uncommon except with significant exposure. And our data suggest further that such significant exposure can be prevented, that we can learn to live and work with asbestos. All it will take is the doing -but herein lies another tale.”[9]

Selikoff’s position was especially generous to manufacturers who had used crocidolite after 1960, when Wagner alerted the community to para-occupational mesothelioma cases from blue asbestos exposure. Selikoff’s dismissal of the problem of blue asbestos as somehow a problem of English workers allowed the reality of blue asbestos use to be ignored, and then hidden with the myth of equal potency among all asbestos types. Twenty years after Selikoff’s New England Journal of Medicine article, no less an authority than Dr. Harriet Hardy would refer to mesothelioma as

 “A fatal malignancy [mesothelioma] associated with inhalation of a single form (crocidolite) of asbestos invaded the chest wall (pleura) and/or the abdominal wall.”[10]

It is time to acknowledge the harm caused by asbestos fiber type egalitarianism.

[1]  John T. Hodgson & Andrew A. Darnton, “The quantitative risks of mesothelioma and lung cancer in relation to asbestos exposure,” 14 Ann. Occup. Hygiene 565 (2000).

[2]  Misty J Hein, Leslie T Stayner, Everett Lehman & John M Dement, “Follow-up study of chrysotile textile workers: cohort mortality and exposure-response,” 64

Occup. & Envt’l Med. 616 (2007).

[3]  David H. Garabrant & Susan T. Pastula, “A comparison of asbestos fiber potency and elongate mineral particle (EMP) potency for mesothelioma in humans,” 361 Toxicology & Applied Pharmacol. 127 (2018) (“relative potency of chrysotile:amosite:crocidolite was 1:83:376”). See also D. Wayne Berman & Kenny S. Crump, “Update of Potency Factors for Asbestos-Related Lung Cancer and Mesothelioma,” 38(S1) Critical Reviews in Toxicology 1 (2008).

[4]  “Playing Hide the Substantial Factors in Asbestos Litigation” (Sept. 27, 2011); “Selikoff and the Mystery of the Disappearing Amphiboles” (Dec. 10. 2010).

[5]  “Historians Should Verify Not Vilify or Abilify – The Difficult Case of Irving Selikoff” (Jan. 4, 2014); “Selikoff and the Mystery of the Disappearing Testimony” (Dec. 3, 2010).

[6]  App. 3, Statistical Tables – Asbestos, prepared by T. May, United States Bureau of Mines, in I.J. Selikoff & J. Churg, eds., “Biological Effects of Asbestos,” 132 Ann. N.Y. Acad. Sci. at 753, Table 17 (1965).

[7]  Irving J. Selikoff, Jacob Churg, and E. Cuyler Hammond, Relation Between Exposure to Asbestos and Mesothelioma, 272 New Engl. J. Med. 560 (1965).

[8]  Irving John Selikoff, E. Cuyler Hammond & Jacob Churg, “Carcinogenicity of Amosite Asbestos,” 25 Arch. Envt’l Health 183, 183 (1972). The article contains no disclosure of conflicts of interest, despite Selikoff’s testifying role in UNARCO and other asbestos cases for claimants.

[9]  Irving John Selikoff, “Asbestos” 11 Environment 3, 7 (Mar. 1969) (presented at the Symposium on “Unanticipated Environmental Hazards Resulting from Technological Intrusions,” held by the American Association for the Advancement of Science Committee on Science in the Promotion of Human Welfare and the Scientists’ Institute for Public Information, at Dallas, Texas, on Dec. 28, 1968).

[10]  Harriet Hardy, M.D., Challenging Man-Made Disease:  The Memoirs of Harriet L. Hardy, M.D. 95 (1983). See also “Harriet Hardy’s Views on Asbestos Issues” (Mar. 13, 2013).

Posted in Asbestos, Historian Testimony, State of the Art | Comments Off on Big Blue versus Asbestos Fiber Type Egalitarianism

Sharpiegate – Trump’s Assault on Scientific Expertise

July 10th, 2020

Trump lies so often, so irresponsibly, so ruthlessly, that the American people have become numb to the assault on truth. Remarkably, Trump’s lies are frequently casual, random, non-ideological, and wanton. When the lies are about scientifically verifiable processes and outcomes, the lies are particularly reprehensible because they further dumb the American people’s shaky aptitude for scientific discourse.

Take Trump’s lie last September that Hurricane Dorian would hit Alabama much harder than had been anticipated. Thousands of lies later, perhaps only a few may remember the doctored weather map, on which a falsified projection had been drawn with a sharpie pen, to suggest that the hurricane was moving towards southeastern Alabama. A few days later, the National Oceanic and Atmospheric Administration (NOAA) issued a statement that purported to support Trump’s bogus forecast.[1]

Now, almost a year later, the Inspector General for the Commerce Department, Peggy Gustafson, has issued a report that lambasts the White House (Trump and cronies) for pressuring the NOAA into issuing its unscientific, unsupportable statement.[2] The Inspector General found that the NOAA had politicized a straightforward scientific assessment, backed the Trumpian forecast, criticized the agency’s own scientists, and eroded public trust in the agency, by succumbing to pressure from the White House.

Of course, 40 percent of the United States’ electorate will not care, as long as they have their theocracy. Ms. Gustafson’s days are numbered, even as the End Times draw nigh for Trump. You may not need a weatherman to know which way the blows, but you do if you want to know which way the wind will blow.

Remember, that 40 percent could be on your jury. And there may be another 40% that blows the other way. Sharpiegate is a poignant reminder that abuse of science occurs in all three branches of government.

[1]  Andrew Freedman & Jason Samenow, “Investigation rebukes Commerce Department for siding with Trump over forecasters during Hurricane Dorian: Report confirms Commerce officials responded to orders from the White House,” Wash. Post (July 9, 2020).

[2]  Gustafson, Evaluation of NOAA’s September 6, 2019, Statement about Hurricane Dorian Forecasts (June 26, 2019).

Posted in Scientific Evidence, Scientific Misconduct | Comments Off on Sharpiegate – Trump’s Assault on Scientific Expertise

More Rosner & Markowitz Faux History of Workplace Safety

July 9th, 2020

Historians, often of the subspecies social, labor, or Marxist, have frequently been recruited by the lawsuit industry to support their litigation efforts. One such historian, David Rosner, sometimes with his friend Gerald Markowitz, seems to show up everywhere, including the infamous Ingham case, in which he served largely as a compurgator and moralist.

Given the role that such historians are permitted to play in high-stakes litigation, it is important to look at their more professional work in the journals for insights into their methodology. A couple of years ago, David Rosner and Gerald Markowitz, published a story about governmental regulation of workplace safety before the passage of the Occupational Health and Safety Act in 1970.[1] Their article is an interesting case study of how to bias an historical analysis by leaving out material facts, a modus operandi in their litigation work as well.

The abstract gives a brief flavor of their tendentious narrative:

“The Occupational Safety and Health Act of 1970 and the Workers Right to Know laws later in that decade were signature moments in the history of occupational safety and health. We have examined how and why industry leaders came to accept that it was the obligation of business to provide information about the dangers to health of the materials that workers encountered. Informing workers about the hazards of the job had plagued labor–management relations and fed labor disputes, strikes, and even pitched battles during the turn of the century decades. Industry’s rhetorical embrace of the responsibility to inform was part of its argument that government regulation of the workplace was not necessary because private corporations were doing it.”

The authors attempt to tell a one-sided story that only “voluntary” warnings were assumed by employers before OSHA, without the force of law. The enterprise perpetuates a common myth of plaintiffs’ advocates that pre-OSHA occupational safety was based upon employers’ voluntary assumption of responsibility, and that it was not until the passage of the OSH Act that employers were subject to legal obligations to warn.

In terms of scholarship, Rosner and Markowitz break no new ground; indeed, the topic was presented with more historical acumen by scientists in an article that predated the Rosner and Markowitz article by a decade.[2] More damning, however, the historians laureate of the plaintiffs’ bar contradict their thesis that manufacturers had only voluntary commitments to their worker safety by pointing to the law of the 1930s, which placed a common law duty of care on employers:

“As one judge in the New Jersey Supreme Court opined at the time, ‘It was the duty of the defendant company to exercise reasonable care that the place in which it set the deceased at work . . . should be reasonably safe for the plaintiff, and free from latent dangers known to the defendant company, or discoverable by an ordinary prudent master, under the circumstances’.”[3]

Of course, legal historians are well aware that there has been a common law duty of reasonable care owed by “masters” (employers) to their “servants” (employees), including a duty to protect them from occupational hazards such as overexposure to dusts, including respirable crystalline silica.[4] There was nothing voluntary about the common law duty.

What makes Rosner and Markowitz’s account egregiously wrong is its complete omission of the extensive state governmental regulation of occupational exposures in advance of OSHA. Taking New York (where Rosner and Markowitz live and teach) as an example, we can see that the state had occupied the field of regulating workplace safety many decades before the enactment of OSHA.

The industrial use of crystalline silica provides an example of a “hot” issue in early 20th century industrial hygiene.  Initial efforts in New York state, starting as early as 1913, focused on the most prevalent industrial exposures, such as foundries, where whole grain and ground silica was used in metal casting and cleaning. New York’s long-recognized common law duty of employers to provide a safe workplace was statutorily codified in 1921.[5] By 1935, silicosis became a compensable disease under New York law, in all industrial settings.

New York’s efforts to protect industrial workers from silica exposure achieved national recognition in 1940, when LIFE magazine published a description of measures taken by the state to safeguard workers on an 85-mile tunnel aqueduct project. The project required thousands of workers to drill through quartzite rock (composed of almost entirely of crystalline silica). Intent on avoiding a repeat of the Hawk’s Nest tragedy, the state imposed safety measures on the project, including wet drilling, elaborate ventilation, and air sampling. LIFE declared the New York state precautions to be “[a] triumph of preventative medicine.”[6]

New York courts also have been in the forefront of recognizing the hazards of silica exposure, and addressing the legal implications of knowledge of those hazards. In 1944, New York’s highest court, the Court of Appeals, held, in a silicosis personal injury case, that:

“[i]t is a matter of common knowledge that it is injurious to the lungs and dangerous to health to work in silica dust, a fact which defendant was bound to know.”[7]

From the 1950s on, New York comprehensively regulated the use of crystalline silica in the industrial workplace. In 1956, New York promulgated “Industrial Code Rule No. 12 – Control of Air Contaminants,” which governed “all processes and operations releasing or disseminating air contaminants in any workroom or work space” (§ 12.1), and clearly defined the employer’s duties to protect workers, regardless of the industry sector or manufacturing process.

Silica was specifically covered by these 1956 regulations. Section 12.2 of the Rule, “Responsibility of employers,” requires:

“Every employer shall observe and effect compliance with the provisions of this rule relating to prevention of air contamination and to providing, installing, operating and maintaining control or protective equipment, and shall instruct his employees as to the hazards of their work, the use of such control or protective equipment and their responsibility for complying with this rule.”

Section 12.25 specifically identified industrial processes that create “air contaminants,” such as free silica.

New York law imposed correlative obligations upon workers. Under § 12.3, the employee’s responsibility was to use the controls and equipment provided by his employer for his protection.

New York’s 1956 regulations, like the federal regulations that would follow in the early 1970s, focused on avoiding exposure to hazardous substances such as crystalline silica in the first instance. Section 12.7, “Prevention,” requires that

“[a]ll processes and operations where practicable shall be so conducted or controlled as to prevent avoidable creation of air contaminants.”

Section 12.9, General control methods, specifies “[o]ne or more of the following methods . . . control dangerous air contaminants:

  1. Substitution of a material which does not produce air contaminants;
  2. Local exhaust ventilation at the source of generation of the air contaminant;
  3. Dilution ventilation in any work space in which air contaminants are generated or released;
  4. Application of water or other wetting agent to prevent air contaminants;
  5. Other methods approved by the board.”

Section 12-29, “Maximum allowable concentrations – evidence of dangerous air contaminants,” provides that air contaminants in quantities greater than those listed “shall constitute prima-facie evidence that such contaminants are dangerous air contaminants.” In a chart entitled “Mineral Dusts,” the 1956 regulations specifically imposed a maximum exposure for free crystalline silica, depending upon the percentage concentration of silica in the total dust.

In 1958, New York revised Rule 12, with its extensive regulation of silica, to provide an even more detailed description of employer responsibilities of employers for air monitoring, ventilation, respiratory programs, and worker education. Section 12.6 of the 1958 Regulations, “Prevention of air contamination,” mandated that

“[a]ll operations producing air contaminants shall be so conducted that the generation, release or dissemination of air contaminants is kept at the lowest practicable level.”

Rule 12 was revised again in 1963, and in 1971, each time with greater specificity of the employer’s responsibility for safe handling of air contaminants, which was always defined to include silica dust. These state regulations never restricted their application to any particular industry. Crystalline silica was thus regulated in every industry conducted within New York.

New York state recruited and employed some of the leading scientists in the field of industrial hygiene and occupational medicine to serve in its Department of Labor’s Division of Industrial Hygiene. Leonard Greenberg, who was a graduate of Columbia College of Engineering, and who received his Ph.D. and M.D. degrees from Yale, served as the executive director of the New York State Division of Industrial Hygiene 1935 to 1952. He later served as an official on pollution control until 1969.[8] While at the New York Department of Labor, contributed widely to scientific publications on occupational health,[9] as did many other scientists under his supervision.[10]

Omission of material facts seems to be a key aspect of the faux historian’s methodology, and very useful in litigation if your conscience permits it.

[1]  David Rosner & Gerald Markowitz, “‘Educate the Individual . . . to a Sane Appreciation of the Risk’: A History of Industry’s Responsibility to Warn of Job Dangers Before the Occupational Safety and Health Administration,” 106 Am. J. Pub. Health 28 (2016).

[2]  See John L. Henshaw, Shannon H. Gaffney, Amy K. Madl , and Dennis J. Paustenbach, “The Employer’s Responsibility to Maintain a Safe and Healthful Work Environment: An Historical Review of Societal Expectations and Industrial Practices,” 19 Employee Responsibility & Rights J. 173 (2007).

[3]  Rosner & Markowitz at 30 (quoting Frederick Willson, “The Very Least an Employer Should Know About Dust and Fume Diseases,” 62 Safety Engineering 317 (Nov. 1931) (quoting in turn an unidentified New Jersey court decision).

[4]  See, e.g., Bellows v. Merchants Dispatch Transp. Co., 257 A.D. 15 (4th Dept. 1939) (holding that employer failed to provide a safe work environment with proper ventilation to employee who contracted silicosis).

[5]  New York Labor Law § 200 (enacted 1921).

[6]  “Silicosis,” Life (April 1, 1940).

[7]  Sadowski v. Long Island R.R., 292 N.Y. 448, 456 (1944),

[8]  “Leonard Greenberg, Pollution Official, Dies,” New York Times (April 12, 1991).

[9]  See, e.g., Leonard Greenburg, “Pneumoconiosis,” 33 Am. J. Pub. Health 849 (1943); Leonard Greenburg, “The Dust Hazard in Tremolite Talc Mining,” 19 Yale J. Biology & Med. 481 (1947).

[10]  See, e.g., James D. Hackett, Silicosis, N.Y. Dep’t Labor & Industry Bull. 11 (Dec. 1932); Frieda S. Miller, Industrial Commissioner, “Detection and Control of Silicosis and Other Occupational Diseases” (1940); Adelaide Ross Smith, “Silicosis and Its Prevention, Special Bulletin No. 198,” (1946).

Posted in Historian Testimony, Silica, Sophisticated User, State of the Art | Comments Off on More Rosner & Markowitz Faux History of Workplace Safety

The Lobby – Cut on the Bias

July 6th, 2020

When ordinary citizens hear about lobbies, they think about highly paid former elected officials pressing the interests of manufacturing and service industries in the federal and various state capitals. Of course, there are such lobbyists, but the description misses one of the most powerful groups, the plaintiffs’ mass tort trial bar, the largest rent-seeking group in the United States. When the plaintiffs’ lawyers’ interests are aligned with a group of scientists and physicians who have for decades pressed the interests of labor unions for more and more compensation, and have delivered scientific studies calculated to support their pro-compensation goals, the lobby deserves special attention as “The Lobby.”

Francis Douglas Kelly Liddell was the anti-Selikoff, and he frequently drew the ire, wrath, and barbs of The Lobby. Unlike Selikoff, Liddell had a first-rate education in mathematics (B.A., M.A., Trinity College, Cambridge University), and he had 21 years of hands-on pneumoconiosis research as a Scientific Officer and then Director of the Statistics Department of the National Coal Board, and then Head of the Medical Service’s Medical Statistics Branch.[1]

McGill University recruited Liddell in 1969 to its Medical School’s Department of Epidemiology. In Montreal, Liddell led the statistical analyses for epidemiologic studies of the Quebec chrysotile miners and millers. He helped develop the methodology that underlies the ILO system for evaluating chest radiographs for pneumoconiosis. Although Liddell retired in 1992, as an Emeritus Professor, he remained active in lecturing and publishing, and in his professional associations, Royal Statistical Society and later in the American Statistical Association. Liddell’s careful statistical work, and the much lower risks found in the Canadian chrysotile mining cohorts put him at odds with Selikoff and The Lobby.

In 1997, Liddell had had enough of The Lobby’s insinuations, slanders, and bent science. He did what rarely happens in the scientific world; he called them out for what they were doing:

“[A]n anti-asbestos lobby, based in the Mount Sinai School of Medicine of the City University of New York, promoted the fiction that asbestos was an all-pervading menace, and trumped up a number of asbestos myths for widespread dissemination, through media eager for bad news.”[2]

Since Liddell wrote in 1997, The Lobby has grown and insinuated itself into the International Agency for Research on Cancer, and into a variety of domestic advisory boards to regulatory agencies. The Lobby has learned to use the language and hand waving of the “moral panic,” whenever an expert who has had any connections to regulated industries. Members of The Lobby, however, seem to think that they have no conflicts of interest, despite their deep positional and financial connections to the unregulated lawsuit industry. Asserting conflicts of interest thus becomes an asymmetric weapon to advance pro-compensation and environmental “friendly” conclusions.

Early last month, a group of admittedly pro-manufacturing industry organizations[3] submitted their counter to The Lobby’s purity tests that keep defense expert witnesses and consultants from serving on advisory boards. The organizations wrote to the EPA Administrator, to object to the asymmetry of interest alignments among the Ad Hoc Peer Reviewers for the March 2020 Draft Risk Evaluation for Asbestos, from the Toxic Substances Control Act (TSCA) Science Advisory Committee on Chemicals (SACC).

While the assertion of conflicts of interest for actual research tends to be overwrought, at least when the methods and data are transparent, the conflicts identified in the letter to the EPA have the real potential to skew an opinion-laden, policy document. The reality is that any such EPA risk assessment will be used as a cudgel in tort and environmental litigation, restrictive regulations, and legislative campaigns to “ban” asbestos. The organizations’ complaints are well justified.

The three committee members at issue are Henry Anderson, Steven Markowitz, and Marty Kanarek. All three are card-carrying members of The Lobby.  Markowitz and Anderson are tied to a lobby group, the Asbestos Disease Awareness Organization (ADAO), which advocates a universal ban on asbestos, notwithstanding that this may require relocating 7+ billion people to another planet. Markowitz, Anderson, and Kanarek all testify for the asbestos lawsuit industry. Anderson has been testifying in asbestos personal injury cases, for over 35 years, after he served a brief training in the Mt. Sinai catechism, on New York’s Upper East Side. Indeed, in the mid-1980s, New Jersey plaintiffs’ lawyers regularly called Anderson as an expert witness to give the party line. Markowitz has also trained in the Mt. Sinai catechism, but now is at Queens College, in Queens, New York. Markowitz has not testified for as long as Anderson, but then he has not lived as long. In any event, Markowitz has almost certainly made up in volume for what he has lost in time.

The organizations complaining about Anderson, Markowitz, and Kanarek as peer reviewers correctly point out that these physicians are advocates and highly compensated expert witnesses for the asbestos lawsuit industry. The letter to the EPA also points out that they have been purveyors of dubious opinions on “each and every exposure,” which have been found to be unreliable and not well supported.[4] Certainly less biased experts could be found, and if not, then the Peer Review committee could be balanced with experts who have more balanced views. Inquiring minds wonder how the peer review committee ever became so unbalanced, but I suspect that asymmetrical evaluation of conflicts of interest had a lot to do with it.[5]

[1]  James Hanley, Corbett McDonald, and Margaret R. Becklake, “In Memoriam 2003: Francis Douglas Kelly Liddell.”

[2]  F.D.K. Liddell, “Magic, Menace, Myth and Malice,” 41 Ann. Occup. Hyg. 3, 3 (1997).

[3]  The U.S. Chamber of Commerce, U.S. Chamber Institute for Legal Reform, American Property Casualty Insurance Association, American Tort Reform Association, Aerospace Industries Association, Coalition for Litigation Justice, International Association of Defense Counsel, National Federation of Independent Business Small Business Legal Center, Product Liability Advisory Council, Inc., and Washington Legal Foundation.

[4]  See, e.g., In re W.R. Grace & Co., 355 B.R. 462, 482 (Bankr. D. Del. 2006) (“Dr. Anderson’s analysis is unreliable. Dr. Anderson’s opinion, therefore, does not satisfy Daubert and its progeny and is not admissible. We exclude this evidence.”), appeal den., 2007 WL 1074094 (D. Del. Mar. 26, 2007); In re Matter of New York City Asbestos Litig., 48 Misc. 3d 460, 483-484 (Sup. Ct. N.Y. Cty. 2015) (“For all of these reasons, Markowitz’s opinions, either individually or collectively, do not establish that asbestos contained in friction products can cause mesothelioma, and as he conceded, he could identify no study to support his proposition that there is an increased risk of contracting mesothelioma from exposure to auto brakes, clutches, or gaskets or that there is an increased risk of mesothelioma from the use of friction products or work on friction materials in the automobile industry…. Markowitz not only cited no study to support his opinion, but he also conceded that numerous studies contradict it.”), aff’d sub nom., Juni v. A.O. Smith Water Prods. Co., 32 N.Y.3d 1116, 116 N.E.3d 75 91 N.Y.S.3d 784 (2018).

[5]  “Disappearing Conflicts of Interest” (Oct. 29, 2017) (discussing Steven Markowitz); “The Mt. Sinai Catechism” (June 7, 2013) (discussing Markowitz’ s publications that followed up on Selikoff’s insulator cohort).

Posted in Asbestos, Conflicts of Interest | Comments Off on The Lobby – Cut on the Bias

Ingham v. Johnson & Johnson – A Case of Meretricious Mensuration?

July 3rd, 2020

There are a few incontrovertible facts underlying the Ingham fiasco. First, only God can make asbestos; it is not a man-made substance. Second, “asbestos” is not a mineralogical or geological term. The word asbestos developed in an industrial context to designate one of six different minerals that occurred in a fibrous habit, and which had commercial application. Five of the six asbestos minerals are double-chain silicates in the amphibole family: actinolite, anthophyllite, crocidolite, grunerite (known by its non-mineralogical name, amosite, from Amosa, “asbestos mines of South Africa), and tremolite. The sixth asbestos mineral is a serpentine family silicate: chrysotile.

Many other minerals occur in fibrous habit, but not all fibrous minerals are asbestos. Of the minerals designated as asbestos, some refer to minerals that occur in fibrous and non-fibrous habits: actinolite, anthophyllite, grunerite, and tremolite. An analytical report that found one of these minerals could not automatically be interpreted as having “asbestos.” The fibrous nature of the mineral would have to be ascertained as well as its chemical an structural nature.

The asbestos mineral crocidolite is known as riebeckite when non-fibrous; and chrysotile is the fibrous form that comes from a group of serpentine minerals, including non-fibrous lizardite and antigorite.[1]

The term “asbestiform” is often used to distinguish the fibrous habit of those asbestos minerals that can occur in fibrous or non-fibrous form. The term, however, is also used to refer to any inorganic fiber, natural or synthetic that resembles the long, thin habit of the asbestos minerals.[2]

What is a fiber?

The asbestos minerals were commercially useful in large part because of their fibrous habit, which allowed them to be woven into cloth or used as heat-resistant binders in insulation materials. Fibers were very long, thin structures with aspect ratios in the hundreds or thousands. Some of the fibers can fracture into long, thin fibrils. Some of the asbestos minerals can appear in their non-fibrous habit as small cleavage fragments, which may have aspect ratios ranging from 1 to 10. The EPA’s counting protocols count fragments with aspect ratios of 3 or greater as “fibers,” but that does not mean that there is strong evidence that amphibole cleavage fragments with aspect ratios of 3 cause cancer.

According to Johnson & Johnson’s principal brief, the plaintiffs’ expert witness William Longo counted any amphibole particle long and thin enough to satisfy a particular regulatory definition of “fiber” set out by the Environmental Protection Agency (EPA).[3]

Unfortunately, in its opening brief, J&J never explained clearly what separates the asbestiform from the non-asbestiform in the counting process. The appeal presents other potential problems. From a review of the appellants’ briefs, it seems unclear whether J&J disputed Longo’s adherence to the EPA definition of asbestiform. In any event, J&J appears not to have challenged the claim that any “asbestiform” fiber as defined by regulatory agencies can cause cancer. Moreover, plaintiffs’ expert witness, Dr. Jacqueline Moline, opined that cleavage fragments, or non-asbestiform amphiboles cause cancer.[4] This opinion seems highly dubious,[5] but there was NO appellate point in the defendants’ appellate brief to allege error in admitting Moline’s testimony. In addition, the appellate court’s opinion stated plaintiffs’ position that each and every exposure was a substantial causal factor without any suggestion that there was a challenge to the admissibility of this opinion.

What was the estimated exposure?

The plaintiffs’ expert witnesses appeared to be wildly inconsistent in their quantitative estimations of asbestos exposure from the ordinary use of J&J’s talcum powder. According to J&J’s appellate brief:

“Dr. Longo testified that plaintiffs’ use of the Powders would have exposed them to levels of asbestos at least ‘10 to 20 times above’ the amount in every day air that you breathe’. Tr. 1071. He put these exposure levels in the ‘same category’ as occupational levels. Tr. 1073.”[6]

There are many estimates of the ambient asbestos levels in “every day air,” but one estimate on the high side was given by the National Research Council, in 1984, as 0.0004 fibers/cm3.[7] Using Longo’s upper estimate of 20 times the “every day” level yields exposures of 0.008 f/cm3, a level that is well below the current permissible exposure level set by the U.S. Occupational Safety and Health Administration. Historically, workers in occupational cohorts experienced asbestos exposures at or even above 50 f/cm3.[8]

David Egilman also gave inflated exposure estimates that he equated with “occupational exposure” to the plaintiffs. Egilman opined, based upon Longo’s simulation study, a NIOSH study that counted all fibers, and a published study of another talc product, that the amount of asbestos dust released during personal use of J&J’s product was as high as 2.2 f/cm3, during the application process. These estimates were not time-weighted averages, and the estimates, such as they are, would be many orders of magnitude lower if they were analyzed as part of an eight-hour work day. Nonetheless, Egilman concluded that the plaintiffs’ exposures to J&J’s talc products more than doubled their ovarian cancer risk over baseline.[9]

In my previous post on Ingham, I noted how scientifically ignorant and irresponsible Egilman’s testimony was with respect to equating talc and anthopyllite.[10]  The Missouri Court of Appeals presented Egilman’s opinion as though it were well supported, and gave perfunctory consideration to J&J’s complaint about this testimony:

“Plaintiffs concede that Dr. Egilman’s intensity values for diapering came from a test that counted all types of fibers released by a sample of the Powders, including fibers that are not asbestos (principally talc fibers). RB124.  Suggesting that any of those fibers was asbestos would be speculative; assuming all of them were, as Dr. Egilman did, is absurd. Plaintiffs respond with the radical (and scientifically false) assertion that talc fibers are ‘chemically identical’ to anthophyllite asbestos fibers and therefore equivalent. Id. But plaintiffs never argued at trial, much less proved, that talc is identical to asbestos. Indeed, their own expert, Dr. Longo, distinguished between anthophyllite fibers and talc. See Tr.1062.”[11]

We should all sympathize with a litigant that has been abused by absurd opinion testimony. The Court of Appeals took a more insouciant approach:

“Defendants maintain Dr. Egilman’s measurements ‘lacked a reasonable factual basis’ for several reasons. However, their arguments are insufficient to render Dr. Egilman’s testimony inadmissible. ‘[Q]uestions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissbility and should be left for the jury’s consideration.’  Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004) (alterations in original) (internal quotations omitted). The problems Defendants cite with Dr. Egilman’s testimony go to the weight of his testimony, not its admissibility.”[12]

Curiously, the Missouri Court of Appeals cited a federal court decision that applied an incorrect standard for evaluating the admissibility of expert witness opinion testimony.[13] It is inconceivable that the validity of the expert witness’s bases, and his inferences therefrom, are beyond the judicial gatekeeper’s scrutiny. If Egilman consulted a mercator projection map, from which he concluded the world was flat, would the Court of Appeals from the “Show Me” state shrug and say show it to the jury?

Perhaps even more remarkable than Longo’s and Egilman’s meretricious mensuration was Egilman’s opinion that personal use of talc more than doubled the plaintiffs’ risk of ovarian cancer. In the meta-analyses of studies of occupational asbestos exposure, the summary risk estimates were well below two.[14]

[1]  See “Serpentine subgroup,” in Wikipedia.

[2]  Lester Breslow, et al., Asbestiform Fibers: Nonoccupational Health Risks at 7 (Nat’l Research Council 1984).

[3]  Appellants’ Brief at 38, in Ingham v. Johnson & Johnson, No. No. ED107476, Missouri Court of Appeals for the Eastern District (St. Louis) (Sept. 6, 2019) (Tr. 1171-73).

[4]  Respondents’ Brief at 37, in Ingham v. Johnson & Johnson, No. No. ED107476, Missouri Court of Appeals for the Eastern District (St. Louis) (Dec. 19, 2019) (Tr.5.3369).

[5]  See, e.g., John F. Gamble & Graham W. Gibbs, “An evaluation of the risks of lung cancer and mesothelioma from exposure to amphibole cleavage fragments,” 52 Regulatory Toxicol. & Pharmacol. S154 (2008).

[6]  Appellants’ Brief at 52.

[7]  Lester Breslow, et al., Asbestiform Fibers: Nonoccupational Health Risks at 3 (Nat’l Research Council 1984).

[8]  Irving John Selikoff, “Statistical Compassion,” 44 J. Clin. Epidemiol. 141S, 142S (1991).

[9]  Ingham v. Johnson & Johnson, Slip op. at 52-53, No. No. ED107476, Missouri Court of Appeals for the Eastern District (St. Louis) (June 23, 2020) (Slip op.).

[10]  See “Ingham v. Johnson & Johnson – Passing Talc Off As Asbestos,” (June 26, 2020).

[11]  Appellants’ Reply Brief at 43, in Ingham v. Johnson & Johnson, No. No. ED107476, Missouri Court of Appeals for the Eastern District (St. Louis) (Mar. 3, 2020)

[12]  Slip op. at 53.

[13]  See “Judicial Dodgers – Weight not Admissibility” (May 28, 2020) (collecting authorities).

[14]  See M. Constanza Camargo, Leslie T. Stayner, Kurt Straif, Margarita Reina, Umaima Al-Alem, Paul A. Demers, and Philip J. Landrigan, “Occupational Exposure to Asbestos and Ovarian Cancer: A Meta-analysis,” 119 Envt’l Health Persp. 1211 (2011); Alison Reid, Nick de Klerk, and Arthur W Musk, “Does Exposure to Asbestos Cause Ovarian Cancer? A Systematic Literature Review and Meta-Analysis,” 20 Cancer Epidemiol., Biomarkers & Prevention 1287 (2011).

Posted in Asbestos, Expert Witnesses, Rule 702 | Comments Off on Ingham v. Johnson & Johnson – A Case of Meretricious Mensuration?

Ingham v. Johnson & Johnson – Passing Talc Off As Asbestos

June 26th, 2020

In talc exposure litigation of ovarian cancer claims, plaintiffs were struggling to show that cosmetic talc use caused ovarian cancer, despite missteps by the defense.[1] And then lawsuit industrialist Mark Lanier entered the fray and offered a meretriciously beguiling move: Stop trying talc cases and start trying asbestos cases.

The Ingham appellate decision this week from the Missouri Court of Appeals appears to be a superficial affirmation of the Lanier strategy.[2] The court gave defendants some relief on jurisdictional issues, but largely affirmed the admissibility of Lanier’s expert witnesses on medical causation, both general and specific.[3]

After all, asbestos is an established cause of ovarian cancer. Or is it?

In 2006, the Institute of Medicine (now the National Academy of Medicine) addressed extra-pulmonary cancers caused by asbestos, without ever mentioning ovarian carcinoma.[4] Many textbooks and reviews found themselves unable to conclude that asbestos of any type caused ovarian cancer throughout the 20th century and a decade into the 21st century. The world of opinions changed, however, in 2011, when a working group of the International Agency for Research on Cancer (IARC) met in Lyon, France, and issued its support for the general causation claim in a suspect document published in 2012.[5] The IARC has strict rules that prohibit anyone who has any connection with manufacturing industry from serving on its working groups, but the Agency allows consultants and contractors for the lawsuit industry to serve without limitation. The 2011 working group on fibers and dusts thus sported lawsuit industry acolytes such as Peter F. Infante, Jonathan Samet, and Philip J. Landrigan.

Given the composition of this working group, no one was surprised by its finding:

“The Working Group noted that a causal association between exposure to asbestos and cancer of the ovary was clearly established, based on five strongly positive cohort mortality studies of women with heavy occupational exposure to asbestos (Acheson et al., 1982; Wignall & Fox, 1982; Germani et al., 1999; Berry et al., 2000; Magnani et al., 2008). The conclusion received additional support from studies showing that women and girls with environmental, but not occupational exposure to asbestos (Ferrante et al., 2007; Reid et al., 2008, 2009) had positive, though non-significant, increases in both ovarian cancer incidence and mortality.”[6]

The herd mentality is fairly strong in the world of occupational medicine, but not everyone concurred. A group of Australian asbestos researchers (Reid, et al.) without lawsuit industry credentials published another meta-analysis in 2011, as well.[7] Although the Australian researchers reported an increased summary estimate of risk, they were careful to point out that this elevation may have resulted from disease misclassification:

“In the studies that did not examine ovarian cancer pathology, or confirmed cases of mesothelioma from a cancer or mesothelioma registry, misclassification of the cause of death in some cases is likely to have occurred, given that misclassification was reported in those studies that did reexamine cancer pathology specimens. Misclassification may result in an underestimate of peritoneal mesothelioma and an overestimate of ovarian cancer or the converse. Among women, peritoneal mesothelioma may be more likely to be classified as ovarian, colon, or stomach cancer, rather than a rare occupational cancer.”[8]

The authors noted that Irving Selikoff had first reported that a significant number of peritoneal cancers, likely mesothelial in origin, have been misclassified as ovarian cancers. Studies that relied upon death certificates only might thus be very misleading. Supporting the danger of misclassification, the Reid study reported that:

“Only the meta-analysis of those studies that reported ovarian cancer incidence (i.e., those studies that did not rely on cause of death certification to classify their cases of ovarian cancer) did not observe a significant excess risk.”[9]

Reid also reported the absence of other indicia of causation:

“No study showed a statistically significant trend  of ovarian cancer with degree of asbestos exposure. In addition, there was no evidence of a significant trend across studies as grouped exposure increased.”[10]

Other scientists and physicians have acknowledged the controversial nature of the IARC’s determination. In 2011, pathologist Samuel Hammar, who has testified regularly for the lawsuit industry, voiced concerns about the diagnostic accuracy of ovarian cancer cases in asbestos studies:

“It has been difficult to draw conclusions on the basis of epidemiologic studies of ovarian cancers because, histologically, their distinction between peritoneal mesothelioma and carcinomatous peritonei (including primary peritoneal serous papillary adenocarcinoma) is difficult. Ovarian tumors tend to grow by extension and uncommonly metastasize through the bloodstream, which is similar to tumors of mesothelial origin … .”[11]

In 2014, a working group of the Finnish Institute of Occupational Health noted that “despite the conclusions by IARC and the support from recent studies, the hypothesis that asbestos is [a] cause of ovarian cancer remains controversial.”[12] The same year, 2014, the relevant chapter in a leading textbook by Dr. Victor L. Roggli and colleagues opined that:

“the balance of the evidence available at present does not support an association between asbestos exposure and cancers of the female reproductive system.”[13]

Two years later, a text by Dr. Dorsett D. Smith cited “the lack of certainty of the pathologic diagnosis of ovarian cancer versus a peritoneal mesothelioma in epidemiologic studies” as making the epidemiology uninterpretable and any conclusions impossible.[14]

Against this backdrop of evidence, I took a look at what Johnson & Johnson had to say about the occupational asbestos epidemiology in its briefs, in section “B. Studies on asbestos and ovarian cancer.”[15] The defense acknowledged that plaintiffs’ expert witnesses Drs. Jacqueline Moline and Dean Felsher focused on the IARC conclusion, and on studies of heavy occupational exposure. J & J recited without comment or criticism what plaintiffs’ expert witnesses had testified, much of which was quite objectionable.[16]

For instance, Moline and Felsher both reprised the scientifically and judicially debunked views that there is “no known safe level of exposure,” from which they inferred the non-sequitur that “any amount above ordinary background levels – could cause ovarian cancer.”[17] From ignorance, nothing derives but conjecture.

Another example was Felsher’s testimony that asbestos can make the body of an ovarian cancer patient therapy-resistant. In response to these and other remarkable assertions, J & J countered with only the statement that their expert witness, Dr. Huh, “did not agree that all of this was true in the context of ovarian cancer.”[18]

Huh, indeed; that the defense expert witness disagree with some of what plaintiffs’ witnesses claimed hardly frames an issue for exclusion of any expert witness’s opinion. Even more disturbing, there is no appellate point that corresponds to a motion to exclude Dr Moline’s testimony.

The Egilman Challenge

There was a challenge to the testimony of another expert witness, David Egilman, a frequent testifier for Mark Lanier and other lawsuit industrialists. One of the challenges that the defendants made on appeal to the admissibility of Dr. David Egilman’s testimony was his use of a 1972 NIOSH study that apparently quantified exposure in terms of fibers per cubic centimeter, without specifying whether all fibers in the measurement were asbestos fibers, as opposed to non-asbestos fibers, including talc fibers.

The Missouri Court of Appeals rejected this specificc challenge in part because Egilman had explained that:

“whether the 1972 NIOSH study identified fibers specifically as ‘asbestos’ was inconsequential, as the only other possible fiber that could be present in a talc sample is a ‘talc fiber, which is chemically identical to anthophyllite asbestos and structurally the same’.”[19]

Talc typically crystallizes in small plates, but it can occur occasionally as fibers. Egilman, however, equated a talc fiber as chemically and structurally identical to an anthophyllite fiber.

Does Egilman’s opinion hold water?

No, Egilman has wet himself badly (assuming the Missouri appellate court quoted testimony accurately).

According to the Mineralogical Society of America’s Handbook of Mineralogy (and every other standard work on mineralogy I reviewed), anthophyllite and talc, whether in fibrous habit or not, are two different minerals, with very different chemical formulae, crystal chemistry, and structure.[20] Anthophyllite has the chemical formula: (Mg;Fe2+)2(Mg;Fe2+)5Si8O22(OH)2 and is an amphibole double chain silicate. Talc, on the other hand, is a phyllosilicate, a hydrated magnesium silicate with the chemical formula Mg3Si4O10(OH)2. Talc crystallizes in the triclinic class, although sometimes monoclinic, and crystals are platy and very soft.

If the Missouri Court of Appeals characterized Egilman’s testimony correctly on this point, then Egilman gave patently false testimony. Talc and anthophyllite are different chemically and structurally.

[1]  See “The Slemp Case, Part I – Jury Verdict for Plaintiff – 10 Initial Observations”; “The Slemp Case, Part 2 – Openings”; “ Slemp Trial Part 3 – The Defense Expert Witness – Huh”; “Slemp Trial Part 4 – Graham Colditz”; “ Slemp Trial Part 5 – Daniel W. Cramer”; “Lawsuit Magic – Turning Talcum into Wampum”; “Talc Litigation Supported by Slippery Expert Witness” (2017).

[2]  Ingham v. Johnson & Johnson, No. No. ED107476, Missouri Court of Appeals for the Eastern District (St. Louis) (June 23, 2020) (Slip op.).

[3]  Cara Salvatore, “Missouri Appeals Court Slashes $4.7B Talc Verdict Against J&J,” Law360 (June 23, 2020).

[4]  Jonathan M. Samet, et al., Asbestos: Selected Cancers Effects (I.O.M. Committee on Asbestos 2006).

[5]  International Agency for Research on Cancer, A Review of Human Carcinogens, Monograph Vol. 100, Part C: Arsenic, Metals, Fibres, and Dusts (2012).

[6]  Id. at 256. Some members followed up their controversial finding with an attempt to justify it with a meta-analysis; see M. Constanza Camargo, Leslie T. Stayner, Kurt Straif, Margarita Reina, Umaima Al-Alem, Paul A. Demers, and Philip J. Landrigan, “Occupational Exposure to Asbestos and Ovarian Cancer: A Meta-analysis,” 119 Envt’l Health Persp. 1211 (2011).

[7]  Alison Reid, Nick de Klerk, and Arthur W Musk, “Does Exposure to Asbestos Cause Ovarian Cancer? A Systematic Literature Review and Meta-Analysis,” 20 Cancer Epidemiol., Biomarkers & Prevention 1287 (2011) [Reid].

[8]  Reid at 1293, 1287.

[9]  Id. at 1293.

[10]  Id. at 1294.

[11]  Samuel Hammar, Richard A. Lemen, Douglas W. Henderson & James Leigh, “Asbestos and other cancers,” chap. 8, in Ronald F. Dodson & Samuel P. Hammar, eds., Asbestos: Risk Assessment, Epidemiology, and Health Effects 435 (2nd ed. 2011) (internal citation omitted).

[12]  Finnish Institute of Occupational Health, Asbestos, Asbestosis and Cancer – Helsinki Criteria for Diagnosis and Attribution 60 (2014) (concluding that there was an increased risk in cohorts of women with “relatively high asbestos exposures”).

[13]  Faye F. Gao and Tim D. Oury, “Other Neoplasia,” chap. 8, in Tim D. Oury, Thomas A. Sporn & Victor L. Roggli, eds., in Pathology of Asbestos-Associated Diseases 177, 188 (3d ed. 2014).

[14]  Dorsett D. Smith, The Health Effects of Asbestos: An Evidence-based Approach 208 (2016).

[15]  Brief of Appellants Johnson & Johnson and Johnson & Johnson Consumer Inc., at 29, in Ingham v. Johnson & Johnson, No. No. ED107476, Missouri Court of Appeals for the Eastern District (St. Louis) (filed Sept. 6, 2019) [J&J Brief].

[16]  Id. at 30.

[17]  See Mark A. Behrens & William L. Anderson, “The ‘Any Exposure’ Theory: An Unsound Basis for Asbestos Causation and Expert Testimony,” 37 SW. U. L. Rev. 479 (2008); William L. Anderson, Lynn Levitan & Kieran Tuckley, “The ‘Any Exposure’ Theory Round II — Court Review of Minimal Exposure Expert Testimony in Asbestos and Toxic Tort Litigation Since 2008,” 22 Kans. J. L. & Pub. Pol’y 1 (2012); William L. Anderson & Kieran Tuckley, “The Any Exposure Theory Round III: An Update on the State of the Case Law 2012 – 2016,” Defense Counsel J. 264 (July 2016); William L. Anderson & Kieran Tuckley, “How Much Is Enough? A Judicial Roadmap to Low Dose Causation Testimony in Asbestos and Tort Litigation,” 42 Am. J. Trial Advocacy 38 (2018).

[18]  Id. at 30.

[19]  Slip op. at 54.

[20]  John W. Anthony, Richard A. Bideaux, Kenneth W. Bladh, and Monte C. Nichols, Handbook of Mineralogy (Mineralogical Soc’y of America 2001).

Posted in Asbestos, Causation, Conflicts of Interest, Rule 702 | Comments Off on Ingham v. Johnson & Johnson – Passing Talc Off As Asbestos

The Plague and Quackery Right & Left

June 19th, 2020

Earlier this week, the U.S. Food and Drug Administration announced the revocation of its emergency use authorization for chloroquine and hydroxychlorine (HCQ).[1] The FDA had originally granted the emergency use authorization for HCQ, on March 28, 2020, but its continued review found that the drug was “unlikely to be effective at treating COVID-19” and the potential risks of HCQ use outweigh any potential benefits. The Agency action was in line with the evolving standard of care for COVID-19, and the available evidence from clinical trials. The medical community applauded, but the Trump Administration, which had been stockpiling HCQ, labeled the revocation as “a Deep State blindside by bureaucrats who hate the administration they work for more than they’re concerned about saving American lives.”[2]

For weeks, Donald John Trump, the short-fingered vulgarian, the Orange Man, the loser of the 2016 popular vote, the Narcissist-in-Chief of the United States, has been hawking the anti-malarial medication HCQ as a potential therapy for COVID-19. Trump’s first public endorsement of HCQ came on March 19, 2020, after its use had been thoroughly scientifically vetted for a few days by talking heads at Fox News.[3] Foxy Laura Ingraham interviewed lawyer Gregory Rigano, author of one of the HCQ papers, who announced to Laura that HCQ can “just get rid of [the virus] completely.”

On April 24, the FDA “issued an alert warning doctors against prescribing the drug for COVID-19 outside of hospitals and research settings because of the risks of serious side effects and death.” Although Trump may be stupid, he is strong and resolute. On May 18, 2020, the nominal President of the United States, announced that he is taking hydroxychloroquine (HCQ), an anti-malaria medication that he had been hyping for months as a potential treatment for COVID-19.[4] When pressed for why he was taking HCQ for prophylaxis, Trump explained his basis:

“Here we go. Are you ready? Here’s my evidence. I get a lot of positive calls about it.”

Although Drs. Anthony Fauci and Deborah Birx have clearly explained that there was insufficient evidence to conclude that HCQ was efficacious in treating COVID-19, and no evidence that HCQ was preventative, Agent Orange followed the playbook he inherited early in life from Roy Cohen: never apologize, never acknowledge you have been wrong, just change the conversation.[5]

Trump’s embrace of HCQ was peculiar in the face of his usual disregard for prophylactics. Of course, Agent Orange’s advocacy for HCQ arose in the context of another lie: virus denial. Trump acolyte Rush Limbaugh has asseverated that the viral agent behind COVID-19 is

“‘the common cold’ that’s being ‘weaponized’ against Trump.”

* * * * * * * * * * * * * * * * * * * * * * * *

“Now, I want to tell you the truth about the coronavirus. … Yeah, I’m dead right on this. The coronavirus is the common cold, folks.”[6]

In the United Kingdom, men who have contributed greatly to an activity and who have gained national and international respect are knighted by the Queen and become Knight Commanders of the Most Excellent Order of the British Empire. In the United States, the President awards the National Medal of Freedom. During this year’s state-of-the-union address, Trump, while ignoring warnings of the COVID-19 pandemic, awarded the Medal to master trash-talker Rush Limbaugh. Remarkably, the toxicity of Agent Orange is manifested in support for both virus denial and for a bogus therapy.

Evidence is never really necessary for opinion, as Trump has taught us. For his endorsement of HCQ, Trump has, however, the opinion of “experts,” at the Association of American Physicians & Surgeons (AAPS). The AAPS has been stridently championing the cause of HCQ with what can be called only scientific propaganda,[7] including the debunked study by Didier Raoult, which has drawn a statement of concern from the scientific group, International Society of Antimicrobial Chemotherapy (ISAC), which publishes the journal in which Raoult’s results appeared.[8] The AAPS also relied upon claims made Vladimir Zelenko about 1,554 patients, for which he had “published no data, described no study design, and reported no analysis.” And since no quackfest would be complete without hard evidence from Mehmet Cengiz Öz, commonly known as Dr. Oz, the AAPS has dutifully reported that Oz had two patients to whom he gave HCQ, and both survived.

The HCQ issue is not the AAPS’s first quack rodeo. Those who follow the organization will sense déjà vu.[9] A sampler of AAPS’ scientific contributions to public policy debates include:

Abortion and Breast Cancer. The AAPS, on shoddy evidence, jumped on the issue whether abortion causes breast cancer, in 2002, to equate abortion for a teenager as “child abuse,” because the procedure will cause a “30% risk of breast cancer in her lifetime.” The AAPS ignored better and fairly definitive evidence of no association.

Vaccination and Austim. The AAPS has unrepentantly engaged in anti-vaccination propaganda. While acknowledging the scientific consensus against the claim that vaccines cause autism, the group raised hyperbolic doubts and threw itself in with conspiracy theorists to oppose mandatory vaccination.[10] When a measles outbreak occurred in Florida, in 2015, the AAPS issued a news release that “linked” autism with the measles vaccine.

HIV and AIDS. Despite the careful and well-documented conclusion of the National Academy of Science, in 1988, that AIDS was caused by a virus, HIV, the AAPS remains unconvinced. As recently as 2015, the AAPS, through its Executive Director Jane Orient, has questioned the connection and the standard-of-care treatment for HIV infection.

Barak Obama and Hypnotic Induction. In 2008, the AAPS website published an article that condemned Obama’s use of covert hypnotic techniques, which the group traced to Milton H. Erickson’s so-called neurolinguistic programming. The AAPS cited to “An Examination of Obama’s Use of Hidden Hypnosis Techniques in His Speeches,” a 67-page, unpublished, unsigned manuscript, on a right-wing conspiracy website, which no longer seems to have this masterpiece. Fortunately, the “proof” is still available online.

If the AAPS appears to trade in all manner of scientific quackery with a distinctive Republican flavor, then you will not be surprised that its General Counsel is Andrew Schafly, son of the late Phyllis Schafly (1924-2016). Mom was the Grand Dame of the know-nothing Republican party after she helped kill off the Nelson Rockefeller wing of the G.O.P.

Under Andrew Schafly’s deft legal guidance, the AAPS sued the FDA,[11] on June 2, 2020 to end “its arbitrary interference with the use of hydroxychloroquine.”[12] Schafly proudly cited his support for HCQ, which President Trump and other world leaders have taken as a prophylaxis against COVID-19.

The June 2nd AAPS Press Release generously cites and quotes Andrew Schafly’s pronouncements that

“that if everyone [sic] was allowed to take hydroxychloroquine, there would be no need for any social distancing or restrictions on mass gatherings”

and

“Entrenched, politically biased officials at the FDA should not be allowed to interfere with Americans’ right to access medication donated to the federal government for public use. … By preventing Americans’ use of HCQ as a prophylaxis, the FDA is infringing on First Amendment rights to attend religious services or participate in political events such as political conventions, town halls, and rallies in an important election year.”[13]

The litigious Mr. Schafly claims that “[t]here is no legal or factual basis for the FDA to limit use of HCQ,” and that the agency’s restrictions on HCQ are indefensible. The FDA was unmoved and proceeded yesterday to remove its emergency use authorization for HCQ.

We really did not need a plague to learn that Don Trumpolino and his acolytes were liars and buffoons. Still, the plague was, like so many other events, a great Rorschach epistemic test about care for the truth. In the 1980s, I thought that the toxicity of Agent Orange was exaggerated, but now that the theocons have dropped this weaponized Russian Agent Orange on the White House, I see that I was wrong. The entire country is suffering post-trumpatic stress disorder. We have all stepped in Tweety Turd. But why does truth have to be the first casualty?

The plague has, however, revealed the tenuous connection many United States citizens have with the truth. For anyone who has toiled in the American litigation stables, fragility of respect for truth is a given. Kurt Andersen’s book Fantasyland shows how exceptional Americans are when it comes to cults, conspiracies, fanaticism, fantasies, superstitions, and the like.[14] Andersen makes the point that more cults and new religions are spawned in the USA than in Europe or any else. No surprise then, when Andrew Wakefield was run out of the U.K., he found a warm embrace in the USA from RFK Jr. and Jenny McCarthy. Maybe the truth, small t, never had a chance in the United States, the land of Truth, big T, with its conspiracies and unbounded credulity.

Is American exceptionalism just another instance of the American public’s credulity? I would like to believe that our exceptionalism is real and tied to our great principles and the implicit promise that someday the promise of those principles will be kept.[15] Today, American exceptionalism looks more like an excuse to avoid our own Vergangenheitsbewältigung over slavery and genocide. We have an entrenched minority who adore the Confederacy and its pantheon of losers, traitors, and racists.

Even so, there are traps of untruthfulness on the left, as we see in the New Woke Times’ reinventing history to make slavery into an abuse of capitalism, when in fact slavery was the ultimate alienation of human beings from their labor through force, feudalism, and religion. Apologists for Southern chattel slavery criticized Northern “free labor” capitalism, but woke scholarship finds this inconvenient. Today, facts seem disposable on the left as well, with much needed calls for racial justice and police reform, larded down with virtue signaling and hand-waving excuse mongering for looting and failure to insist that all people stop resisting arrest. These are tough times for the truth.

[1]  FDA Press Release, “Coronavirus (COVID-19) Update: FDA Revokes Emergency Use Authorization for Chloroquine and Hydroxychloroquine” (June 15, 2020); Molly Walker, “HCQ No Longer Approved Even a Little for COVID-19 – Study after study showed no benefit, and now the FDA has had enough,” MedPage Today (June 15, 2020).

[2]  Sheryl Gay Stolberg, “A Mad Scramble to Stock Millions of Malaria Pills, Likely for Nothing,” N.Y. Times (June 16, 2020) (quoting Trump’s Trade Advisor Peter Navarro). Curiously, the Administration has ignored the emerging potentially good news about the efficacy of dexamethasone in treating seriously ill COVID-19 patients, as shown in a randomized clinical trial, which is not yet peer reviewed and published. Benjamin Mueller & Roni Caryn Rabin, “Common Drug Reduces Coronavirus Deaths, Scientists Report,” N.Y. Times (June 16, 2020).

[3]  Philip Bump, “The rise and fall of Trump’s obsession with hydroxychloroquine – Forty days of promotion, hype – and eventual retreat,” Wash. Post (April 24, 2020).

[4]  “Remarks by President Trump in a Roundtable with Restaurant Executives and Industry Leaders” (May 18, 2020).

[5]   Andrew Solender, “All The Times Trump Has Promoted Hydroxychloroquine” Forbes (May 22, 2020).

[6]   Allyson Chiu, “Rush Limbaugh on coronavirus: ‘The common cold’ that’s being ‘weaponized’ against Trump,” Wash. Post (Feb. 25, 2020); See also “The corona virus is the common cold”; “Rush Limbaugh: coronavirus a ‘common cold’ being ‘weaponised’ against Trump,” The Guardian (Feb. 25, 2020). See generally Anthony Bardon, “Science Denial,” chap. 2, in The Truth About Denial: Bias and Self-Deception in Science, Politics, and Religion (2019) (exploring the role of cognitive dissonance, motivated reasoning, and confirmation bias, in science denialism).

[7]   “Hydroxychloroquine Has about 90 Percent Chance of Helping COVID-19 Patients,” AAPS (April 28, 2020).

[8]   The ISAC reported that Raoult’s work “does not meet the Society’s expected standard,” and that the ISAC was concerned “regarding the content, the ethical approval of the trial and the process that this paper underwent.”

[9]  David Gorski, “The Association of American Physicians and Surgeons: Ideology trumps science-based medicine,” Science-Based Med. (June 23, 2008).

[10]   AAPS, “Statement on Federal Vaccine Mandates” (Feb. 26, 2019).

[11]   The AAPS complaint is available at its website: http://aapsonline.org/judicial/aaps-v-fda-hcq-6-2-2020.pdf

[12]   “AAPS Sues the FDA to End Its Arbitrary Restrictions on Hydroxychloroquine,” AAPS (June 2, 2020).

[13]    Id.

[14]  Kurt Andersen, Fantasyland: How America Went Haywire – A 500-Year History (2017).

[15]  See, e.g., People v. Ruggles, 8 Johns. R. 290 (N.Y. 1811) (Kent, C.J.) (holding that common law of crime prohibited blasphemy but only for blasphemy against Chancellor Kent’s own religious superstitions).

Posted in Public Nuisances, Scientific Evidence | Comments Off on The Plague and Quackery Right & Left

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