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Tort Law’s Sleight of Hand – Part 3

August 3rd, 2020

The suppression of the industrial nature of most asbestos personal injury cases was on full display in the New Jersey’s controversial decision in Beshada v. Johns-Mansville Products Corporation.[1] Without a record of what was known or knowable, the New Jersey Supreme Court held that defendants that sold asbestos-containing products without warning of the products’ latent hazards would be liable even when the hazards were “undiscoverable” at the time of marketing.[2] This holding was based upon a trial court record devoid of the state-of-art defense. The legal issue was created on the basis of plaintiffs’ motion to strike “state of the art” as a defense, even though plaintiffs had served expert witness reports that addressed state of the art, and despite the obvious relevance of such proofs to plaintiffs’ claims of negligence and punitive damages.[3]

The Beshada Court created hyperstrict liability by holding that knowledge of an asbestos-containing product’s hazards was irrebutably imputed to the manufacturer. The Court never dealt with the epistemiologic problems raised by its holdings (such as shifting scientific paradigms of justified belief from case series and animal studies to observational epidemiologic studies, the emergence of knowledge about smoking and lung cancer at the same time the asbestos epidemiology was being done,[4] and potential Gettier problems[5]).

The Court attempted to justify its regime of hyperstrict liability by adverting to the goals of spreading costs, avoiding injury, and simplifying factfinding.[6] As with most decisions of the era, the Court believed that the cost of injuries should not be borne by “innocent victims,” but there was no record evidence of innocence or of culpable conduct. More important, the Beshada Court never asked whether the industrial purchasers benefitted more economically from the use of asbestos-containing products, or whether the industrial purchasers were better positioned to protect the workers not only through warnings but through a comprehensive safety program that involved teaching, training, industrial hygiene measurements, engineering controls in the form of ventilation, and the selection, fitting, and maintenance of appropriate personal protective equipment such as respirators.

Of the 59 plaintiffs before the court in Beshada, 57 experienced their asbestos exposure in the course of employment for three large, sophisticated companies with substantial industrial hygiene technical capabilities: Jersey Central Power and Light Company, Hercules, Inc., and Research Cottrell, Inc.[7] One of these employers was a highly regulated utility, and all three were subject to state, and later federal, regulation of workplace asbestos exposure.

The Beshada decision thus ignored the reality that the employers were in the best position to avoid the harms claimed. The court also ignored the availability of employment benefits, such as life, accident, health, and disability insurance, and the availability of workers’ compensation as a method of loss spreading for injuries and occupational diseases that arose in the course of employment. The creation of hyperstrict liability for the state policy goals also undermined sensible safety incentives for the employers, which received the benefit of liens and subrogation rights against any recovery by the employees against remote industrial suppliers.[8]

The basic error was that the court sought to squeeze a complicated three-party industrial controversy into the overly simplified, and simply wrong two-party consumer model.[9]

Beshada was quickly branded as an example of excessive judicial activism.[10] It created a perverse incentive to give vague, overly broad warnings that ultimately would be unhelpful if not hurtful to workers, while trampling on the right to litigate issues. The two law professors whose work was relied upon in Beshada both criticized the illogic of the decision.[11] Within two years after deciding Beshada, the New Jersey Supreme Court retreated from its formulation of hyper-strict liability in a pharmaceutical products liability case involving an alleged injury from the use of tetracycline antibiotic.[12] Beshada was limited to its facts; in other words, it was a derelict on the brackish jurisprudential waters of New Jersey.

The disparate treatment between asbestos-containing and pharmaceutical products led to a constitutional challenge, which was rejected by a divided en banc federal district court, and then a panel of the Third Circuit.[13] During the pendency of the appeal from the en banc court, the district court entered a stay of all trials based upon Beshada’s hyperstrict liability rule. During this stay period, one very capable plaintiff’s lawyer, waived Beshada and proceeded to trial in a case before the Hon. Stanley Brotman, on a theory of general negligence for failing to warn. The jury returned a defense verdict on liability, which implied that it had found that plaintiff had failed to show a warning was reasonably required given what was known at the time of manufacture.

Another empirical test of Beshada’s fairness occurred in a state court case tried before the Hon. Thomas Mannion, in Middlesex County, New Jersey. The largest plaintiffs’ firm in New Jersey of the time wanted to pursue punitive damages against a particular asbestos product manufacturer. The manufacturer objected to Beshada’s hyperstrict liability in a case in which the plaintiff was already committed to presenting state-of-the-art evidence and detailed historical proofs. In order to obviate the defense objection, the plaintiff waived Beshada and proceeded to trial on negligence and punitive damages. The jury returned a defense verdict on liability.

[1]  90 N.J. 191, 447 A.2d 539 (1982).

[2]  90 N.J. at 196, 447 A.2d at 541.

[3]  Andrew T. Berry, “Beshada v. Johns-Manville Products Corp.: Revolution or Aberration in Products Liability Law,” 52 Fordham L. Rev. 786, 792 n.44 (1984) [cited below as Berry], citing Transcript of Motion to Strike State of the Art Defense at 51, Beshada v. Johns-Manville Prods. Corp., No. L-12930-79 (N.J. Super. Ct. Law Div. Oct. 9, 1981). Despite the lack of record evidence, the Beshada court was doubtlessly influenced by the lopsided historical narrative and the harsh characterization of warnings or lack of thereof in Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1104 (5th Cir. 1973) (referring to warnings first introduced on products in 1964, as “black humor,” even though the warnings were the same or similar to warnings mandated by OSHA in the early 1970s), cert. denied, 419 U.S. 869 (1974).

[4]  Collin Talley, Howard I. Kushner, and Claire E. Sterk, “Lung Cancer, Chronic Disease Epidemiology, and Medicine, 1948-1964,” 59 J. History Med. & Allied Sciences 329 (2004).

[5]  See Edmund L. Gettier, “Is Justified True Belief Knowledge?” 23 Analysis 121 (1963).

[6]  Beshada, 90 N.J. at 205-07, 447 A.2d at 547-48.

[7]  Beshada at 197-98, 447 A.2d at 543.

[8]  N.J. Stat. Ann. § 34:15-40 (1959).

[9]  See Berry at 794-95.

[10]  See, e.g., John W. Wade, “On the Effect in Product Liability of Knowledge Unavailable Prior to Marketing,” 58 N.Y.U. L. Rev. 734, 758-59 (1983); Sheila L. Birnbaum & Barbara Wrubel, “State of the Art and Strict Products Liability,” 21 Tort & Insur. L. J. 30, 33 (1985) (“In the context of a failure to warn case, it is clear that a product cannot be made safer by the addition of a warning if science and technology do not suggest to the manufacturer that there is any hazard or risk to warn about.”); C. Eric Funston, “The ‘Failure to Warn’ Defect in Strict Products Liability: A Paradigmatic Approach to ‘State of the Art’ Evidence and ‘Scientific Knowability’,” Ins. Couns. J. 39, 49 (1984) (observing that Beshada “blundered from their own jurisprudential quagmire into [the] swamp [of epistemology]”); Comment, “Requiring Omniscience: The Duty to Warn of Scientifically Undiscoverable Product Defects,” 71 Geo. L.J. 1635, 1653 (1983) (“broad generalities with little or no factual support”); Note, “Products Liability-Strict Liability in Tort-State-of-the-Art Defense Inapplicable in Design Defect Cases – Beshada v. Johns-Manville Products Corp., 90 N.J. 191, 447 A.2d 539 (1982),” 13 Seton Hall L. Rev. 625, 635 (1983) (“logically unsound”). The plaintiffs counsel of course declared Beshada a brilliant innovation. See Placitella & Darnell, “Beshada v. Johns-Manville Products Corp.: Evolution or Revolution in Strict Products Liability?” 51 Fordham L. Rev. 801 (1983).

[11]  John W. Wade, “On the Effect in Product Liability of Knowledge Unavailable Prior to Marketing,” 58 N.Y.U. L. Rev. 734, 758-59 (1983); see David Owen, “Bending Nature, Bending Law,” 62 Florida L. Rev. 570, 596 (2010) (discussing both Wade and Keaton’s criticisms).

[12]  Feldman v. Lederle Laboratories, 97 N.J. 429, 479 A.2d 374 (1984).

[13]  In re Asbestos Litigation, 628 F.Supp. 774 (D.N.J.1986) (eight to six), aff’d sub nom. Danfield v. Johns-Manville Sales Corp., 829 F.2d 1233 (3d Cir. 1987).

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Tort Law’s Sleight of Hand – Part 2

August 2nd, 2020

There was sadly no dearth of cases of asbestosis or silicosis before the publication of the Restatement (Second) of Torts. Before 1965, legal doctrine and state and federal regulatory regimes saw the occupational lung disease problem as one of employers’ management of the workplace, and employer and employee compliance with regulations.[1]

Before the Restatement (Second) of Torts in 1965, cases against remote industrial suppliers were quite uncommon. In the first few decades of the 20th century, workers could still sue their employers in tort, and remote suppliers had a robust defense based upon reliance on the purchaser-employers’ obligation to provide a safe workplace. Even after the widespread adoption of worker compensation laws, the common law acknowledged that many “[c]hattels are often supplied for the use of others,” and provided an exception to liability rules based upon the facts and circumstances of the product, its use, the known hazards of its use, and the character of buyer.[2]

By the time of the Restatement (Second), most workplace accidents and injuries, including the development of occupationally related chronic diseases were covered by workers’ compensation statutes, which effectively barred lawsuits directly against employers.[3] Perversely, these statutes also granted employers liens against tort recoveries from remote suppliers, with the consequence of diluting the costs to the employer for failing to prevent injuries and disease the employer was uniquely positioned to avoid.

Section 402A certainly opened the way for applying products liability law to protect the employees of purchasers. Nonetheless, Section 388 of the First Restatement was carried forward to the Second, and arguably qualified the application of 402A, by providing a sophisticated intermediary sophisticated intermediary defense. This defense acknowledged the impossible burden placed upon a product supplier to warn every possible user of its product, especially in the industrial context where purchaser/employers maintain and control the safety of their workplace. Section 388 observed that responsibility for warning employees in many cases must be carried out by purchasers/employers of the product, who are in the best position to warn users/employees.

The language of Section 388 provides important limitations on the scope of Section 402A, from the same Restatement:

Section 388. Chattel Known to Be Dangerous for Intended Use

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Comment n to Section 388 observed that

“Modern life would be intolerable unless one were permitted to rely to a certain extent on others’ doing what they normally do, particularly if it is their duty to do so.”[4]

The tension between Sections 388 and 402A did not escape the attention of the Judge John Minor Wisdom, in the landmark asbestos case, Borel v. Fibreboard Paper Products Corporation.[5] The plaintiff had characterized the case as a consumer case, with the duty to warn him as the ultimate user. The defendants had argued that the danger was obvious and that some of them had issued “cautions,” which were on shipping cartons. Judge Wisdom, in writing for the court, inferred that such cautions were aimed only at contractor-purchasers, and not the ultimate users who were owed a warning under the law:

“We agree with the Restatement: a seller may be liable to the ultimate consumer or user for failure to give adequate warnings. The seller’s warning must be reasonably calculated to reach such persons, and the presence of an intermediate party will not by itself relieve the seller of this duty.”[6]

Judge Wisdom might have just as easily agreed with Restatement 388, especially considering that plaintiff Clarence Borel and his fellow insulators were well aware of the asbestosis hazard from excessive exposure in insulation work since 1930,[7] despite Borel’s equivocal trial testimony.[8] Of course, between 1930 and 1973, when Judge Wisdom wrote, the scientific, industrial, and regulatory community had become aware of a cancer risk from asbestos exposure. Still, the courts might have been mindful that there were several different types of asbestos, and there were a multiplicity of expert opinions about the carcinogenic potential of chrysotile as opposed to amphibole asbestos fibers. Indeed, one expert in the employ of the United States government, who would go on to become a major testifying expert witness for plaintiffs in asbestos litigation, opined in a 1973 publication, that mesothelioma was a problem limited to exposure to South African crocidolite, which was not in every asbestos-containing insulation product.[9]

In any event, Judge Wisdom never directly addressed Section 388, and the framing of the Borel case as a consumer case prevailed. There was nothing inevitable about the rejection of Section 388, in the context of asbestos personal injury actions. Many other so-called toxic torts have been legally detoxified by Section 388.[10]

[1]  See, e.g., New York “Industrial Code Rule No. 12 – Control of Air Contaminants” (1956) (governing “all processes and operations releasing or disseminating air contaminants in any workroom or work space,”  and defining the employer’s duties to protect workers, regardless of the industry sector or manufacturing process), based upon New York Labor Law § 200 (enacted 1921). See also 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).

[2]  Restatement (First) of Torts § 388, & cmt. 1 (1934) .

[3]  Many state statutes withheld immunity from employers for intentional torts. See, e.g., Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A. 2d 505 (1985). Some state statutes limited the coverage for workers’ compensation to diseases that manifested within a certain time window during and after employment. Such limitations logically implied that employers had no immunity to claims that arose outside the time window. Tooey v. AK Steel Corp., 623 Pa. 60, 81 A.2d 851, 864-65 (2013); see Ellen Relkin, “The Demise of the Grand Bargain: Compensation for Injured Workers in the 21st Century,” 69 Rutgers Univ. L. Rev. 881, 881-83 (2017) (discussing Tooey and the perceived inadequacies of worker compensation statutes).

[4]  Restatement (Second) of Torts § 388 & cmt. n (1965).  In 1998, the ALI promulgated a restatement of products liability law, which carried forward the principles of Section 388. See Restatement (Third) of Torts: Products Liability § 2, and comment I (1998).

[5]  493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869 (1974).

[6]  Id. at 1105.

[7]  “The Pulmonary Asbestosis Menance,” 9 The Asbestos Worker 9 (Sept. 1930) (warning about the dangers of asbestosis from occupational asbestos exposures, in the official monthly journal of the International Association of Heat and Frost Insulation and Asbestos Workes).

[8]  See Borel v. Fibreboard Paper Prods. Corp., 493 F.2d at 1082.

[9]  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).

[10]  Section 388 has been a dispositive legal defense in most silicosis cases. See, e.g., Smith v. Walter C. Best, Inc., 927 F.2d 736, 739-40 (3d Cir. 1990) (Ohio law); Goodbar v. Whitehead Brothers, 591 F. Supp. 552, 561 (W.D. Va. 1984), aff’d sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985) (Virginia law); Bergfeld v. Unimin Corp., 319 F.3d 350 (8th Cir. 2003) (Iowa law); Haase v. Badger Mining Corp., 266 Wis. 2d 970 (Wis. Ct. App. 2003), aff’d, 274 Wis. 2d 143 (2004); Cowart v. Avondale Indus., 792 So. 2d 73 (La. Ct. App. 2001); Bates v. E.D. Bullard Co., 76 So. 3d 111 (La. App. 2011); Phillips v. A.P. Green Refractories Co., 428 Pa. Super. 167, 630 A.2d 874 (1993), aff’d on other grounds sub nom., Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167 (1995); Conley v. Air Liquide America Corp., Cuyahoga Cty. C.P. Case No. 516427 (July 15, 2008); Woodard v. Air Liquide, Cuyahoga Cty. C.P. Pleas No. CV-469127, Entry & Opinion No. 6405397 (Aug. 3, 2005); Pawlowski v. Air Liquide, Cuyahoga Cty. C.P. Case No. 499457 (Aug. 2, 2006); Huddleston v. Air Liquide, Cuyahoga Cty. C.P. Case Nos. 506488 and 510330 (Oct. 30, 2007).

The defense has operated to provide a complete legal defense in a large variety of toxic substance exposure cases. See, e.g., Hoffman v. Houghton Chemical Corp., 434 Mass. 624, 751 N.E.2d 848 (2001) (acetone and other chemicals in 55-gallon drums); Parker v. Schmiede Machine & Tool Corp., 445 Fed. Appx. 231 (11th Cir. 2011) (beryllium); Morgan v. Brush Wellman, Inc., 165 F. Supp. 2d 704, 718 (E.D. Tenn. 2001) (beryllium); Byrd v. Brush Wellman, Inc., 753 F. Supp. 1403 (E.D. Tenn. 1990) (beryllium); Davis v. Avondale Indus., 975 F.2d 169, 174 (5th Cir. 1992) (cadmium in welding rods); Coffey v. Chemical Specialties, Inc., 4 F.3d 984, 1993 WL 318886 (4th Cir. 1993) (chromated copper arsenate); Jodway v. Kennametal, Inc., 207 Mich. App. 622, 525 N.W.2d 883 (Mich. Ct. App. 1994) (cobalt dust); Kudzia v. Carboloy Division, General Electric Co., 190 Mich. App. 285, 475 N.W.2d 371 (1991) (same), aff’d, 439 Mich. 923, 479 N.W.2d 679 (1992); Tasca v. GTE Products Corp., 175 Mich. App. 617, 438 N.W.2d 625 (Mich. Ct. of App. 1989) (same); Kennedy v. Mobay Corp., 84 Md. App. 397 (1990) (toluene diisocyanate), aff’d, 325 Md. 385 (1992); Adams v. Union Carbide Corp., 737 F.2d 1453, 1455 (6th Cir.) (same), cert. denied, 469 U.S. 1062 (1984); O’Neal v. Celanese Corp., 10 F.3d 249, 254 (4th Cir. 1993) (lead fumes); Whitehead v. The Dycho Co., 775 S.W.2d 593, 597-98 (Tenn. 1989) (naphtha); Parkinson v. The California Co., 255 F.2d 265 (10th Cir. 1958) (natural gas); Strong v. E.I. Du Pont de Nemours Co., 667 F.2d 682, 687 (8th Cir. 1981) (natural gas); Dusoe v. Union Carbide Corp., 2005 WL 705960, at *6 (Sup. Ct. Mass. Jan. 20, 2005) (oxygen regulator involved in explosion of welding system); Marker v. Universal Oil Prods. Co., 250 F.2d 603, 607 (10th Cir. 1957) (Okla. law) (petroleum refining process); Taylor v. Monsanto Co., 150 F.3d 806 (7th Cir. 1998) (polychlorinated biphenyls); Fisher v. Monsanto Co., 863 F.Supp. 285 (W.D. Va. 1994) (same); Wilson v. Glenro, Inc., 2012 WL 1005007 (D. Vt. Mar. 23, 2012) (polytetrafluoroethylene), aff’d, 2013 WL 1876598 (2d Cir. May 7, 2013); Newson v. Monsanto Corp., 869 F. Supp. 1255 (E.D. Mich. 1994) (polyvinyl butyl); Roney v. Gencorp, 654 F. Supp. 2d 501 (S.D.W.Va. 2009) (polyvinyl chloride); Pike v. Trinity Indus., Inc., 34 F. Supp. 3d 1193, 1199-1202 (M.D. Fla. 2014) (guardrails); Ditto v. Monsanto Co., 867 F. Supp. 585 (N.D. Ohio 1993), aff’d, 36 F.3d 1097 (6th Cir. 1994); Adams v. Union Carbide Corp., 737 F.2d 1453, 1456-57 (6th Cir.), cert. denied, 469 U.S. 1062 (1984); Midwest Specialities, Inc. v. Crown Industrial Prods. Co., 940 F. Supp. 1160, 1166 (N.D. Ohio 1996).

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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).

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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?

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