Schachtman Law

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For your delectation and delight, desultory dicta on the law of delicts.

Substantial Factor Versus Sine Qua Non Causation

October 7th, 2014

In a prosecution against the eponymously named Mr. Mullet, and other Amish defendants, the Department of Justice grabbed an an Amish beard- and hair-cutting case from state authorities and cast it as a hate crime. United States v. Mullet, 868 F.Supp. 2d 618 (N.D. Ohio 2012). The criminal statute invoked by the federal prosecutors prohibits

“willfully caus[ing] bodily injury to any person . . . because of the actual or perceived . . . religion . . . of [that] person… .”

18 U.S.C. § 249(a)(2)(A). The prosecution managed to persuade the trial judge, Judge Polster, that “because of” means merely “significant motivating factor,” but the Sixth Circuit would have none of it, and reversed. United States v. Miller, 2014 U.S. App. LEXIS 16532, 2014 FED App. 0210P (6th Cir. ); see Debra Cassens Weiss, “6th Circuit reverses hate-crime convictions of Amish in beard- and hair-cutting attacks” (Aug 28, 2014).

The Court of Appeals held, in a two to one decision, that the statute required a “but for” jury instruction, reversed and remanded. Most plainly, the appellate court stated that:

“[B]ecause of” in brief means what it says: The prohibited act or motive must be an actual cause of the specified outcome.”

United States v. Miller, at *12.

The appellate court cited the common meaning of “because of” and the treatment this phrase has received in criminal[1] and civil[2] cases in the United States Supreme Court. The defendants had presented evidence of other non-religious, non-prohibited motives and thus the district court’s charge was not harmless.

The court then, rather inconsistently, pointed to the “beyond a reasonable doubt standard” and constitutional concerns over religious freedom, as requiring “but for,” despite the identical interpretive outcome in civil cases. Id. What happens when, as in Miller, there are clearly several motives involved:

“How should a jury measure whether a specific motive was significant in inspiring a defendant to act? Is a motive significant if it is one of three reasons he acted? One of ten?”

Id. at *12. The same difficulty could be raised against using the “significant” or “substantial factor” test in civil cases.

More persuasive was simply the invocation of common usage and the need to construe a statute leniently in favor of the defendant.

The dissenting judge would have brushed this all under the rug as “harmless error,” but failure to charge properly on the correct causation standard is rarely going to pass as harmless, and it did not do so here. Even the dissenter, however, acknowledged that:

“This but-for requirement is part of the common understanding of cause.”

Id. (Sargus, J., dissenting) at *46 (quoting from Burrage v. United States, 134 S. Ct. 881, 888 (2014)).

[1] Burrage v. United States, 134 S. Ct. 881, 887–89 (2014) (criminal).

[2] Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013) (civil); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176–77 (2009) (civil); Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 63–64 & n.14 (2007) (civil).

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Cancer Epidemiology 100 Years Ago

October 6th, 2014

Writing from the Department of Pathology of Columbia University, at the College of Physicians and Surgeons, Isaac Levin published a study of cancer etiology in 1910. Isaac Levin, “III. The Study of the Etiology of Cancer Based on Clinical Statistics,” 51 Ann. Surg. Jun 768 (1910). Levin looked at population and gender prevalence among cancer cases, without age correction or any statistical measure of random error. He compared population prevalence of specific or all-cause mortality without isolating exposure and outcome. Levin’s efforts were earnest, but surely they strike us as primitive. If you want to be disabused of the belief that epidemiology today is a primitive scientific enterprise, mired in methodologies and interpretative strategies of the past, Levin’s article is a welcome documentation that progress is possible and has in fact occurred.

Levin sums up what was known about occupation and cancer in 1910, which was not much:

“QUESTION 10,- OCCUPATION.–Occupation undoubtedly plays an important role in the causation of cancer. The carcinoma of the scrotum of the chimney sweeps, tumors of the bladder of the aniline workers, and X-ray cancer are well known, but it will require a great deal of research to, show how direct the influence is that these occupations exert on the causation of cancer, since only a certain number of the workers contract the disease.”

Id. at 776. No acknowledgment of dose response, or thresholds. No quantitation of risk against baselines.

Levin goes on to note that:

“[o]f extreme interest seems to be the fact, noted both in England and America, that cancer is comparatively rare among the miners. Table IV, compiled from the twelfth U. S. Census, illustrates this fact:

Table IV from Levin 1910

[Open in new window for clearer image]

Wilkesbarre and Scranton are mining towns and the death rate is lower than in Harrisburg or in the whole state of Pennsylvania. It seems also to be the opinion of the surgeons in Pennsylvania (personal communication) that cancer is rare among miners.”

Id. at 776.

There are some other quaint relics of the past here. On the questionnaire used for 4,000 cases or so, here is how Levin inquired of “Race or Nationality”

“RACE OR NATIONALITY. …………Australoid – Coolies of East India; Negroid – Negroes, Negritos of the Philippines; Mongoloid – Chinese, Japanese, American Indians, Filipinos; Melanochroic – Italians, Spaniards, Greeks, Arabs, Jews; Xanthochroic – Fair Europeans. State not only the name of the race, but also of the subdivision]”

Id. at 772. Anthropology was fairly primitive as well, in 1910.

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Scientific Prestige, Reputation, Authority & The Creation of Scientific Dogmas

October 4th, 2014

Since 1663, the Royal Society has sported the motto: “Nullius in verba,” on no one’s authority. The motto is a recognition that science, and indeed, all of knowledge turns on data properly collected, analyzed, and interpreted, and not on the prestige or authority of the speaker. In England today, there could be no better example of the disconnect between authority and knowledge than the pronouncements of Crown Prince Charles on science and medicine[1].

Although science should be about the data and methodology, the growing complexity and inaccessibility of modern science has fostered greater reliance upon reputation of researchers as a proxy for the correctness of factual statements. In some quarters, scientists are held up as shamans who are lionized and revered, at least when the scientists are advancing research and conclusions that are politically approved. When the scientists conduct research that threatens politically correct beliefs, then the scientists must be attacked, diminished, and discredited. Because the scientific claims at issue involve evidence and hard thought, the attackers and defenders seem to prefer proceed with ad hominem attacks on the personal standing and credibility of scientists whose work they embrace or distain.

The sad truth is that the persistence of interpreting science by personal charm, credibility, and political correctness of scientists’ personality remains as a legacy of our authority-based approach to knowledge. As a result, we have the spectacle of public intellectuals who complain about the demonization of scientists, while in the next breath, demonize scientists whose work threatens their political and personal preferences[2].

It would be lovely if we could ignore attacks on the personal credibility of researchers, but the sociology of knowledge and science requires us to acknowledge that reputation, prestige, and authority remain as determinants of belief. The more political and personal preferences are involved, and the greater the complexity of the underlying scientific analysis, the more we should expect people, historians, judges, and juries, to ignore the Royal Society’s Nullius in verba,” and to rely upon the largely irrelevant factors of reputation.

We would thus be on a fool’s errand not to pay attention to the social construction of reputation, both in terms of how reputations are created and how they are diminished. I have focused on Irving Selikoff, because he is such a difficult case. For virtually every advance in the scientific understanding of asbestos health effects, Selikoff did not have priority. Sir Richard Doll was ahead of Selikoff by a decade in reporting the epidemiologic association between asbestosis and lung cancer.[3] Christopher Wagner was ahead of Selikoff by several years in describing the association between amphibole asbestos and mesothelioma[4]. And the United States Navy was ahead of Selikoff in terms of detailing the difficulty in controlling confined-space asbestos lagging operations onboard ships, and the consequent asbestosis hazards[5].

Much of Selikoff’s asbestos work that was original was wrong. His advocacy of a connection between asbestos and extrapulmonary cancers, his claim that all asbestos varieties were equivalent in potency for causing mesothelioma, and his risk assessments of total attributable asbestos risks are just some examples of where Selikoff outran his scientific headlights. Still, the United States public owes Selikoff a debt of gratitude for having popularized and disseminated information about asbestos hazards at a crucial time in our history. Although Doll and Wagner had priority with respect to lung cancer and mesothelioma, they both wrote in foreign journals about exposures that were typical in the U.K. and South Africa. And while the Navy’s understanding of its own catastrophic neglect of safety in its shipyards came before Selikoff’s publications, the Navy’s coyness kept its information from being widely disseminated. Selikoff, in his 1964 publication[6], in an American journal, the Journal of the American Medical Association, thus incorporated a good amount of prior learning and showed that asbestos was a problem among asbestos insulators in the United States. At the time, insulators were often thought of as having relatively low-level asbestos exposure. Furthermore, Selikoff used his findings of asbestos-related disease among the union insulators to advance a political goal, the federalization of workplace safety and health regulation. That goal ultimately came to have bipartisan support in the United States, largely as a result of Selikoff’s advocacy.

Selikoff’s legitimate achievements should not be diminished, and historians McCulloch and Tweedale are correct to bemoan the ad hominem attacks on Selikoff, based upon ethnicity and personal characteristics. They are wrong, however, to claim that Selikoff’s training, scientific acumen, advocacy, and false positive claims are somehow off limits. Selikoff’s substantial contributions to public health by publicizing the dangers of high exposure, long-term exposure to exposure do not privilege every position he took. Selikoff is a difficult case because he was wrong on many issues, and his reputation, authority and prestige ultimately became much greater than the evidence would ultimately support.

The labor historians and anti-asbestos zeolots are right to bristle and emote when historians and others challenge the reputation of Irving Selikoff. Like Rachel Carson and Wilhelm Heuper, Selikoff is one of the icons of the environmental and occupational safety movement. Environmentalists, labor leaders, and left-leaning politicians, have invested heavily in Selikoff’s reputation and authority to support legislation and regulations. Given Selikoff’s reputation and prestige in the field of asbestos health effects, and his role in helping pass the Williams-Steiger Act of 1969, we might wonder why no one has written a full-length biography. There are some hagiographic articles to be sure, but a full-length biography would raise questions not politely answerable.

Selikoff the Testifier

Selikoff may have been a media plodder in the mid-1950s, but his experience as a testifying witness made him particularly effective in advancing his advocacy on behalf of the asbestos and other unions in the 1960s and forward. See “Medical Horizons,” Broadcasting * Telecasting at 14 (Nov. 21, 1955) (describing Selikoff as a plodding presenter). Those who would lionize Selikoff, and privilege his claims from evidence-based scrutiny, are embarrassed by his frequent testifying. They are, however, wrong to distort Selikoff’s record of participating in the litigation process. He had an obligation to do so, to some extent. Many physicians gladly would avoid the courtroom confrontations that Dr. Selikoff undertook. Despite these feelings, physicians have an ethical obligation, by virtue of their special training and experience, to assist in the administration of justice[7]. Indeed, the Board of Trustees of the American Medical Association has recommended that the presentation of expert testimony should be considered part of the practice of medicine and thus subject to peer review[8]. Ultimately, the courtroom testimony should be judged for the validity of its conclusions just as any other scientific opinion would be.

Of course, frequent testifying can be undertaken for venal or political purposes, and the reputation makers behind Selikoff have been keen to protect him from charges of being a “frequent testifier.” Much of protection probably took place because Selikoff’s testifying took place in the past before electronic files of transcripts could circulate rapidly, and even minor cases were posted to internet databases. Thus, Judge Jack Weinstein, writing after the death of Dr. Selikoff, could incorrectly describe him as an “independent” scientist, who should not be coerced to testify when he preferred to publish his “results only in scientific journals.” Jack B. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and other Multi-Party Devices 117 (1995).

Judge Weinstein was clearly wrong in his assessment that Selikoff preferred scholarly journals to the courtroom, but his assessment reflects the influence of the reputation that Selikoff and his followers worked so hard to create. Of course, Judge Weinstein was also wrong to suggest that Selikoff was “independent.” He had deep ties to unions, the plaintiffs’ bar, a cadre of plaintiffs’ expert witnesses, and to positions to which all these groups subscribed. The greatest art is that which conceals itself[9].

Selikoff’s participation in litigation proceedings has thus become a debating point between those who would acclaim and those who would detract from Selikoff’s reputation. Oxford University historian Peter Bartrip, for one, noted that Selikoff had testified frequently. Peter W.J. Bartrip, Beyond the Factory Gates: Asbestos and Health in Twentieth Century America 77 & n.4 (2006); Peter W.J. Bartrip, “Irving John Selikoff and the Strange Case of the Missing Medical Degrees,” 58 J. History Med. 3, 27 & n.88-92 (2003). Bartrip’s history has in turn been attacked by the Lobby of anti-asbestos zealots. Marxist historians Jock McCulloch and Geoffrey Tweedale, and others, have attacked Bartrip for serving as an apologist for industry, and have suggested, in their publications, that Selikoff testified infrequently:=

“[Selikoff] gave testimony in two of the early landmark legal cases, but thereafter avoided the drama of the courtroom and the role of the expert witness, not only because it would have been a drain on his time and made his confidential trade union medical files open to legal scrutiny, but also because he felt that antagonizing industry would not help his broader agenda.”

Jock McCulloch & Geoffrey Tweedale, Defending the Indefensible : The Global Asbestos Industry and its Fight for Survival: The Global Asbestos Industry and its Fight for Survival 95 & n.36 (2008).

Two and only two; or two and then some? What was McCulloch and Tweedale’s source? They cite a personal communication from one of Selikoff’s protégés and acolytes, Dr. Stephen Levin, who testified frequently on behalf of asbestos claimants in litigation, and who no doubt shared the authors’ desire to protect and enhance Dr. Selikoff’s reputation. Perhaps more interesting is Levin’s revelation that Selikoff wished to hide his “confidential” union files from scrutiny. See “The Selikoff – Castleman Conspiracy” (Mar. 13, 2011) (describing memorandum, dated November 5, 1979, from plaintiffs’ expert witness Barry Castleman to Selikoff urging resistance to lawful discovery attempts to obtain information about asbestos workers union).

Well, who is right? Did Selikoff testify frequently or not? On this point, McCulloch and Tweedale appear to be demonstrably wrong. I have previously pointed out some of Selikoff’s testimonial adventures[10]. See “Selikoff and the Mystery of the Disappearing Testimony” (Dec. 3, 2010).

There are other instances, however, of Selikoff’s medico-legal activities. According to Jon Gelman, a worker’s compensation lawyer in New Jersey, his father, also a New Jersey lawyer, employed Dr. Selikoff, in the early 1950s, as an expert witness in the “original 17” UNARCO (Union Asbestos and Rubber Co.) asbestos worker claims. Gelman reports that these claims were successfully litigated with Selikoff’s examinations and services, in front of the New Jersey Division of Workers’ Compensation. Jon L. Gelman, “Dr. Yasunosuke Suzuki, A Pioneer of Mesothelioma Medical Research” (Nov. 23, 2011); Jon L. Gelman, History of Asbestos and the Law (Jan. 02, 2001). See also Michael Nevins, Meanderings in New Jersey’s Medical History 146-47 (2011). Unfortunately, the reports and transcripts of the UNARCO 17 cases are not available.

For about two decades after the UNARCO 17, Selikoff went on to have an active testimonial career, always testifying for the claimant, and against the employer or the supplier. In 1972, Andrew Haas, President of the asbestos workers union thanked Selikoff for his “frequent” expert witness testimony on behalf of union members. Andrew Haas, Comments from the General President, 18 Asbestos Worker (Nov. 1972)[11].

In addition to the cases cited in the footnotes, Selikoff testified or was involved as an expert witness in other cases. See, e.g., Babcock & Wilcox, Inc. v. Steiner, 258 Md. 468, 471, 265 A.2d 871 (1970) (affirming workman compensation award for asbestosis); Culp Industrial Insulation v. Commonwealth of Pennsylvania Workmen’s Compensation Appeal Board, 57 Pa. Commonwealth Ct. 599, 601-602 (1981). One of the earliest reported decisions in which Selikoff testified as a party expert witness was in a federal court admiralty case, in which a seaman sued the ship owner for injuries allegedly sustained as a result of a slip and fall accident. No pulmonary injury was involved. Barros v. United States, 147 F.Supp. 340, 343-44 (E.D.N.Y. 1957) (noting that Dr. Selikoff testified for seaman suing for maintenance and cure as a result of a slip and fall; finding for respondent against libelant).

Perhaps the most egregious testimonial adventure was Selikoff’s serving as an expert witness, in 1966, for a union worker who claimed that his colon cancer had been caused by asbestos. What was remarkable about this testimony was not that it was for the worker; Selikoff’s testimony seemed always to be for the claimant. What stands out is how weak and unreliable any scientific claim for colon cancer would have been in 1966 (and after for that matter). Despite the insufficiency of the evidence, and the dubious validity of the early study relied upon, Selikoff’s participation helped obtain a favorable outcome, which led to the asbestos union’s praise for his efforts:

“The research into health hazards of insulation workers developed by the members of Local No. 12 and Local No. 32 has resulted in widening the basis of compensation claims in New York State.

Until now, the courts have been reluctant to accept many of the conditions to which insulation workers are prone, as related to employment. However, facts produced during the research investigations of Dr. 1. J. Selikoff, Dr. J. Churg, and Dr. E. Cuvler Hammond of the Environmental Sciences Laboratory of the Mt. Sinai Hospital in New York are resulting in a changing of this picture.

A recent decision has widened the range of compensable diseases for insulation workers even further. A member of Local No. 12. unfortunately died of a cancer of the colon. Dr. Selikoff reported to the compensation court that his research showed that these cancers of the intestine were at least three times as common among the insulation workers as in men of the same age in the general population.

Based upon Dr. Selikoff’s testimony, the Referee gave the family a compensation award, holding that the exposure to many dusts during employment was responsible for the cancer. The insurance company appealed this decision. A special panel of the reviewed the matter and agreed with the Referee’s judgement and affirmed the compensation award. This was the first case in which a cancer of the colon was established as compensable and it is likely that this case will become an historical precedent.”

“Health Hazard Progress Notes: Compensation Advance Made in New York State,” 16(5) Asbestos Worker 13 (May 1966). See Viskovich v. Robert A. Keasbey Co., 36 A.D.2d 665 (3d Dep’t 1971)(affirming decision of the Compensation Board in awarding an asbestos insulator benefits for colon cancer; Selikoff’s case or perhaps a subsequent claim). Historians will search long, hard, and unsuccessfully for any disclosure of Selikoff’s consultancies or his testimonies on the issue of asbestos and colorectal cancer in any of his publications on the issue, or any other asbestos issue.

Even after Selikoff stopped participating directly in the litigation process, he continued his interest in the outcome of litigation. This interest was both intellectual and practical. For instance, at the fall meeting of the Medical History Society of New Jersey, Selikoff gave a presentation on “Nellie Keershaws [sic] and Frederick Legrand,” two of the bellwether asbestos litigants, in the U.K., and the U.S., respectively. Irving J. Selikoff, “Nellie Keershaws and Frederick Legrand,” at Fall Meeting, UMDNJ-New Jersey Medical School, Newark, N.J. (Saturday, Oct. 8, 1988). See 9(1) MHSNJ Newsletter (Jan. 1989).

Nellie Kershaw was diagnosed with asbestosis in the early 1920s, but her employer, Turner Brothers Asbestos, refused to pay her compensation for disability and her ultimate death. The investigation into her death gave rise to the first set of Asbestos Industry Regulations, in the United Kingdom, in 1931. Frederick LeGrande was one of the first plaintiffs in a civil action against Johns-Manville, for asbestos-related disease. Frederick LeGrande v. Johns-Manville Prods. Corp., No. 741-57 (D.N.J. filed in 1957, by William L. Brach, attorney for plaintiff).

As McCulloch and Tweedale note, Selikoff became too politically vulnerable to continue his direct participation in litigation, but he did not cease his involvement altogether. After asbestos litigation went viral in the late 1970s, Selikoff encouraged his juniors at Mt. Sinai Hospital to testify on behalf of union members and other asbestos claimants. The roster of physicians who trained at Mt. Sinai, in Selikoff’s department, read like a “Who’s Who” of asbestos plaintiffs’ expert witnesses[12]. Indeed, Selikoff trained a generation of testifying expert witnesses for the plaintiffs’ bar.

Another measure of Selikoff’s influence in the litigation arena was his attempt to influence the litigation process by conducting an ex parte seminar for key judges, with responsibility for important cases or large dockets. Plaintiffs’ lawyers, with the collaboration of Selikoff’s protégés as their “expert witnesses,” persuaded school districts and property owners that they should sue for the costs of asbestos removal and abatement. Selikoff and his acolytes then called a meeting, “The Third Wave conference,” to reflect their concern about the alleged danger of asbestos in place. Philip J. Landrigan & H. Kazemi, eds. “The Third Wave of Asbestos Disease: Exposure to Asbestos in Place – Public Health Control,” 643 Ann. N.Y. Acad. Sci. (1991). Under cover of support from the Collegium Ramazzini, and with the active support and participation of organized labor and plaintiffs’ asbestos bar, Selikoff invited judges to what was clearly a lopsided medical conference, dominated by his acolytes and plaintiffs’ expert witnesses in the very cases in which the invited judges presided. The corrupt affair led to the disqualification of Judge James McGirr Kelly, who attended the conference. In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992); see Cathleen M. Devlin, “Disqualification of Federal Judges – Third Circuit Orders District Judge James McGirr Kelly to Disqualify Himself so as to Preserve the Appearance of Justice under 28 U.S.C.§ 455,” 38 Vill. L. Rev. 1219 (1993); W.K.C. Morgan, “Asbestos and cancer: history and public policy,” 49 Br. J. Indus. Med. 451, 451 (1992); see also “Historians Should Verify Not Vilify or Abilify – The Difficult Case of Irving Selikoff” (Jan. 4, 2014).

Perhaps even more interesting than the public corruption is the scientific corruption that took place at the Third Wave Conference. McCulloch and Tweedale report that one scientist who attended, Dr. Bruce Case, was so upset about the nonsense spouted at the Conference that he wrote an angry letter to one of the leaders in occupational pulmonary medicine, Dr. J. Bernard L. Gee., to report that the conference was “a stage-managed piece of Broadway theater[13].” The controversy led to Julian Peto’s review of the Third Wave Conference papers, and writing to the President of Mt. Sinai Hospital Center to register his observation that many of the conference papers were scientifically “dubious” and systematically biased in favor of exaggerating the risks of asbestos in place[14].

McCulloch and Tweedale attempt to defend this (indefensible) incident in the history of asbestos litigation by claiming that Selikoff and his “team” of acolytes had not been invited to an earlier conference at Harvard, on the issue of asbestos property damage. Health Effects Institute, Asbestos in Public and Commercial Buildings: A Literature Review and Synthesis of Current Knowledge (1991); Jacqueline Karn Corn, Environmental Public Health Policy for Asbestos in Schools: Unintended Consequences at 115-16 (1999). Their complaint does not ring true, however. The so-called Harvard conference had the participation of a large group of independent experts[15] as well as some scientists from the inner sanctum of Mt. Sinai[16]. The world of science ultimately has not been kind to the Selikoff view of asbestos in place[17].

Historical perspective is much needed in considering Selikoff and his contributions, both good and bad. Even after his death, Selikoff remains an important player in the passion play of the American asbestos litigation and regulation[18], and any biographer who steps up to the task will have to confront all aspects of Selikoff’s long career, both scientific advances and missteps.

[1] See Steven Novella, “Prince Charles Alternative Medicine Charity Closes” Science-Based Medicine (May 16, 2012); Laura Donnelly, “Prince Charles makes plea on alternative medicine: Prince of Wales calls for alternative medicine to be treated fairly and for regulation to govern its use,” The Telegraph (Jan. 19, 2014).

[2] Compare Jock McCulloch & Geoffrey Tweedale, “Shooting the messenger: the vilification of Irving J. Selikoff,” 37 Internat’l J. Health Services 619, 619 (2007) (complaining that some historians have “demonized” Dr. Irving Selikoff as “a media zealot”); Jock McCulloch & Geoffrey Tweedale, “Science is not sufficient: Irving J. Selikoff and the asbestos tragedy,” 17 New Solutions 292 (2007); Jock McCulloch and Geoffrey Tweedale, Defending The Indefensible: The Global Asbestos Industry and its Fight for Survival (2008), with Geoffrey Tweedale, “Hero or Villain?—Sir Richard Doll and Occupational Cancer” 13 Internat’l J. Occup. Envt’l Health 233 (2007) (demonizing Sir Richard Doll for his affiliations and consultancies in the field of occupational cancer).

[3] Richard Doll, “Mortality from Lung Cancer in Asbestos Workers,” 12 Br. J. Indus. Med. 81 (1955).

[4] 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).

[5] Capt. H.M. Robbins & William T. Marr, “Asbestosis,” 19 Safety Review 10 (1962) (noting that asbestos dust counts of 200 million particles per cubic foot were not uncommon during insulation ripouts onboard naval vessels, and the existence of asbestosis cases among workers).

[6] Irving J. Selikoff, Jacob Churg & E. Cuyler Hammond, “Asbestos Exposure and Neoplasia,” 188 J. Am. Med. Ass’n 22 (1964)

[7] American Medical Association Council on Ethical and Judicial Affairs Current Opinion 9.07 on Medical Testimony (1989); Council of Medical Specialty Societies, Statement on Qualifications and Guidelines for the Physician Expert Witness, (Approved March 20,1989); American College of Physicians, Guidelines for the Physician Expert Witness. Ann Intern Med 113:789, 1990; Ethics Committee, American College of Chest Physicians Guidelines for an Expert Witness. Chest 98:1006 (1990).

[8] AMA Board of Trustees, Proceedings: House of Delegates 149-154 (June 18-22,1989). See generally Nathan Schachtman & Cynthia Rhodes, “Medico-Legal Issues in Occupational Lung Disease Litigation,” 27 Seminars in Roentgenology 140 (1992).

[9] Quintilian, IV Institutio Oratoria 1.57 (“But to avoid all display of art in itself requires consummate art.”)

[10] Bradshaw v. Twin City Insulation Co. Ltd., Industrial Court of Indiana, Claim No. O.D.1454 (Oct. 14, 1966); Bradshaw v. Johns-Manville Sales Corp., E. D. Michigan Southern Division, Civ. Action No. 29433 (July 6, 1967); Bambrick v. Asten Hill Mfg. Co., Pa. Commonwealth Ct. 664 (1972); Tomplait v. Combustion Engineering Inc.., E. D. Tex. Civ. Action No. 5402 (March 4, 1968); Rogers v. Johns-Manville Products Corp., Cir. Ct. Mo., 16th Jud. Cir., Div. 9, Civ. Action No. 720,071 (Feb. 19, 1971); Utter v. Asten-Hill Mfg. Co., 453 Pa. 401 (1973); Karjala v Johns-Manville Products Corp., D. Minn., Civ. Action Nos. 5–71 Civ. 18, and Civ. 40 (Feb. 8, 1973).

Selikoff also participated as a testifying witness for the government, in the Reserve Mining case. See United States v. Reserve Mining Co., 56 F.R.D. 408 (D. Minn.1972); Armco Steel Corp. v. United States, 490 F.2d 688 (8th Cir. 1974); United States v. Reserve Mining Co., 380 F.Supp. 11 (D. Minn.1974); Reserve Mining Co. v. United States, 498 F.2d 1073 (8th Cir. 1974); Minnesota v. Reserve Mining Co., 418 U.S. 911 (1974); Minnesota v. Reserve Mining Co., 419 U.S. 802 (1974); United States v. Reserve Mining Co., 394 F.Supp. 233 (D.Minn.1974); Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492 (8th Cir. 1975); Reserve Mining Co. v. Lord, 529 F.2d 181 (8th Cir. 1976); United States v. Reserve Mining Co., 408 F.Supp. 1212 (D. Minn.1976); United States v. Reserve Mining Co., 412 F.Supp. 705 (D.Minn.1976); United States v. Reserve Mining Co., 417 F.Supp. 789 (D. Minn.1976); United States v. Reserve Mining Co., 417 F.Supp. 791 (D.Minn.1976); 543 F.2d 1210 (1976).

[11] See Peter W.J. Bartrip, “Irving John Selikoff and the Strange Case of the Missing Medical Degrees,” 58 J. History Med. 3, 27 & n.88-92 (2003) (citing Haas).

[12] Ruth Lilis, Albert Miller, Yasunosuke Suzuki, William Nicholson, Arthur Frank, Henry Anderson, Stephen Levin, Steven Markowitz, Jacqueline Moline, Susan Daum, et al.

[13] Jock McCulloch & Geoffrey Tweedale, “Shooting the messenger: the vilification of Irving J. Selikoff,” 37 Internat’l J. Health Services 619, 626 & n.33 (2007).

[14] Jock McCulloch & Geoffrey Tweedale, “Shooting the messenger: the vilification of Irving J. Selikoff,” 37 Internat’l J. Health Services 619, 626 & n34 (2007) (citing letter from Prof. Julian Peto to Dr. Thomas Chalmers, Mount Sinai Medical Center, June 28, 1990, from the Selikoff Archive, at Mount Sinai Hospital, NY).

[15] Arthur C. Upton, Jonathan Samet, Margaret R. Becklake, John M.G. Davis, David G. Hoel (of the National Institute of Environmental Health Sciences) Morton Lippmann, Gordon Gamsu, and Julian Peto

[16] William J. Nicholson and Arthur Langer, although Dr. Langer had by this time left Mt. Sinai.

[17] See, e.g., Philip H. Abelson, “The Asbestos Removal Fiasco,” 247 Science 1017 (1990).

[18] See Department of Labor, Occupational Safety and Health Administration, Final Rule re Docket No. H-033-dl Occupational Exposure to Asbestos, Tremolite, Anthophyllite and Actinolite, 29 C.F.R. Parts 1910 and 1926, 57 Fed. Reg 24310 (June 8, 1992) (rejecting Selikoff’s and the Lobby’s attempt to have cleavage fragments regulated as though they were fibers).

Posted in Conflicts of Interest, Expert Witnesses, Historian Testimony | Comments Off on Scientific Prestige, Reputation, Authority & The Creation of Scientific Dogmas

Contrivance Standard Applied to Gatekeepers and Expert Witnesses

October 1st, 2014

In Rink v. Cheminova, Inc., 400 F.3d 1286 (11th Cir. 2005), the Eleventh Circuit’s articulated a “contrivance standard,” which suggested that a district court “may properly consider whether the expert’s methodology has been contrived to reach a particular result.” Id. at 1293 & n.7; see also “The Contrivance Standard for Expert Witness Gatekeeping” (Sept. 28, 2014).

Although this standard has some appeal, it raises questions of motives that can complicate the Rule 702 inquiry into whether an purported opinion is “knowledge.” A less psychoanalytic inquiry into the expert witness’s motivation should generally be the first line of approach.

In the Zoloft MDL, the trial court banished Dr. Anick Bérard from federal court birth defect cases because of her unprincipled and inexplicable cherry picking of data, relied upon for her causation opinions. See In re Zoloft (Sertraline Hydrochloride) Prods. Liab. Litig. MDL No. 2342; 12-md-2342, 2014 U.S. Dist. LEXIS 87592; 2014 WL 2921648 (E.D. Pa. June 27, 2014) (Rufe, J.). The “contrivance” was objectively obvious and manifest in double-counting data points, and ignoring point estimates that were contrary to the desired outcome, even from papers that provided point estimates that were selectively embraced.

In the Chantix MDL, the trial court found the defendant to have harped on methodological peccadilloes but obviously did not like the beatific music (3x). Cherry picking was going on, but it was perfectly acceptable to this MDL court:

“Why Dr. Kramer chose to include or exclude data from specific clinical trials is a matter for crossexamination, not exclusion under Daubert.”

In re Chantix (varenicline) Prods. Liab. Litig., 889 F. Supp. 2d 1272, 1288 (2012) (MDL No. 2092) (permitting Dr. Shira Kramer to testify on causation despite her embracing a “weight of the evidence” method that turned largely on‘‘subjective interpretations’’ of various, undescribed, non-prespecified lines of evidence).

The differing approaches to cherry picking are hard to reconcile other than to note that Chantix had drawn a “black box” warning from the FDA, and the SSRIs involved in Zoloft had not been given any heightened warning from the FDA, foreign agencies, or any professional society. FDA labeling, of course, should not have been determinative of the causation question. The mind of the gatekeeper, however, is inscrutable.

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CHARGE: Coyness in Disclosing Conflicts

October 1st, 2014

Back in June, the Environmental Health Perspectives posted an “in-press” version of a study from the CHARGE group on autism disorders and pesticide exposures. This month, the October issue of EHP has the final version of the article. Janie F. Shelton, Estella M. Geraghty, Daniel J. Tancredi, Lora D. Delwiche, Rebecca J. Schmidt, Beate Ritz, Robin L. Hansen, and Irva Hertz-Picciotto, “Neurodevelopmental disorders and prenatal residential Proximity to Agricultural pesticides: the CHARGE Study,” 122 Envt’l Health Persp. (2014).

At the time of the in-press publication, I posted a plea that the media pay attention to principal investigator Dr. Hertz-Picciotto’s conflict of interest disclosure, and its failure to acknowledge her advocacy role on the advisory board of Autism Speaks. See “NIEHS Study – CHARGE Failure to Disclose Conflicts of Interest” (June 23, 2014). The published version does indeed, by way of an erratum, acknowledge Hertz-Picciotto’s, and other authors’, membership in Autism Speaks, and their regret in omitting this information earlier.

Unfortunately, the erratum fails to mention that Hertz-Picciotto also serves on the advisory board of the radically anti-chemical Healthy Child, Healthy World organization, located in California (12100 Wilshire Blvd. Suite 800, Los Angeles CA 90025). Healthy Child Healthy World is a California non-profit corporation that advocates to:

“Demand corporate accountability
Engage communities for collective action
Support safer chemicals and products
Influence legislative and regulatory reform.”

It looks as though more regrets and more errata are in order.

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The Last Squirmish Between Irving Selikoff and Sir Richard Doll

September 30th, 2014

In one of his last publications before he died, Dr. Selikoff reflected on the ethical dimensions of epidemiology. He recounted the development of our understanding of the lung cancer hazards of asbestos and smoking, and noted that there had been “random instances” of lung cancer cases reported among asbestos workers in the 1930s and 1949s, but “[w]ith the continued growth of the asbestos industry, it was deemed wise to epidemiologically examine the proposed association. This was done in an elegant, innovative, well-considered study by Richard Doll [7], a study which anyone of us would have been proud to report in 1955.” Irving J. Selikoff, “Statistical Compassion,” 55 J. Clin. Epidemol. 141S, 142S (1991).

Despite his praise for Doll’s work, Selikoff goes on to downplay Doll’s achievement by explaining how Doll supposedly missed a synergistic multiplicative interaction between asbestos exposure and smoking, which Selikoff claimed to have found a decade later:

“Not only was the association [with smoking] not yet established, indicating the need for its investigation in cohort studies, but smoking histories were not available (and indeed, many of the workers involved may not have smoked cigarettes, having begun their asbestos exposure at a time when cigarette smoking was considerably less common, even among blue collar workers). We would want such information now, but these studies were accomplished at an earlier, less informed, time.”

Id. at 143S

This short passage is revealing. In 1955, epidemiology was still a relatively young science, and it was Doll who energetically was developing and implementing its methods. Doll’s use of his cohort study was not undertaken just because it was deemed “wise,” but because the method had evolved to the point that Doll could cast offer the asbestos company in question a reasonably rigorous method of answering their “wise” concern.

Contrary to Selikoff’s suggestions, the smoking association was better established in 1955, when Doll published, than was the asbestosis association. By the time Doll published his famous paper on the association between asbestosis and lung cancer, he had published three studies on the association between smoking and lung cancer. Interestingly, Doll later acknowledged that his failure to obtain smoking histories was purely an oversight. By the time Selikoff undertook his studies of asbestos insulators in the late 1950s, a wise investigator would have known that he needed to be very careful smoking histories to study the role of asbestos in an exposed cohort.

Perhaps more revealing yet, however, was Selikoff’s counterfactual assertion that Doll’s 1955 study was conducted too early to assess the role of tobacco in lung cancers observed in the early 1950s. By the early 1950s, cigarette smoking was well established in both in the U.K., and in the U.S., and had been so for several decades. Here are the data for the United States:

Correlation between smoking and lung cancer in US males, showing a 20-year time lag between increased smoking rates and increased incidence of lung cancer.

National Cancer Institute Figure 2003

And here are the data from the United Kingdom:

Figure 1

Figure 1, from Robert Platt, et al., Smoking and Health: A Report of The Royal College of Physicians of London on Smoking in relation to Cancer of the Lung and Other Diseases 3 (1962).

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The Contrivance Standard for Expert Witness Gatekeeping

September 28th, 2014

According to Google ngram, the phrase “junk science” made its debut circa 1975, lagging junk food by about five years. See “The Rise and Rise of Junk Science” (Mar. 8, 2014). I have never much like the phrase “junk science” because it suggests that courts need only be wary of the absurd and ridiculous in their gatekeeping function. Some expert witness opinions are, in fact, serious scientific contributions, just not worthy of being advanced as scientific conclusions. Perhaps better than “junk” would be patho-epistemologic opinions, or maybe even wissenschmutz, but even these terms might obscure that the opinion that needs to be excluded derives from serious scientific, only it is not ready to be held forth as a scientific conclusion that can be colorably called knowledge.

Another formulation of my term, patho-epistemology, is the Eleventh Circuit’s lovely “Contrivance Standard.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1293 & n.7 (11th Cir. 2005). In Rink, the appellate court held that the district court had acted within its discretion to exclude expert witness testimony because it had properly confined its focus to the challenged expert witness’s methodology, not his credibility:

“In evaluating the reliability of an expert’s method, however, a district court may properly consider whether the expert’s methodology has been contrived to reach a particular result. See Joiner, 522 U.S. at 146, 118 S.Ct. at 519 (affirming exclusion of testimony where the methodology was called into question because an “analytical gap” existed “between the data and the opinion proffered”); see also Elcock v. Kmart Corp., 233 F.3d 734, 748 (3d Cir. 2000) (questioning the methodology of an expert because his “novel synthesis” of two accepted methodologies allowed the expert to ”offer a subjective judgment … in the guise of a reliable expert opinion”).”

Note the resistance, however, to the Supreme Court’s mandate of gatekeeping. District courts must apply the statutes, Rule of Evidence 702 and 703. There is no legal authority for the suggestion that a district court “may properly consider wither the expert’s methodology has been contrived.” Rink, 400 F.3d at 1293 n.7 (emphasis added).

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Examining Expert Witnesses Before Trial – Getting Personal

September 27th, 2014

Personal and cognitive biases are major issues in challenging expert witnesses and their opinions. Discovery is an important opportunity to explore substantive issues, but some time should be allocated to inquiring about biases. Unfortunately, many lawyers inquire about fees and income and stop. At the end of a case, the jury will have heard that all the expert witnesses, typically, are charging for their time, and the jury’s initial shock at exorbitant fees will subside. Finding more revealing biases than income should be one of the goals of a pre-trial deposition.

One question that I try always to ask of expert witnesses is whether they have any friends or family members who have been injured by a product, and especially my client’s product. You never know until you ask.

Here is how the inquiry went with one expert witness in the field of history:

Q. Has anyone in your family or any close friend ever in your belief been injured by a product?

A. Well, this would only be my own belief. I don’t know that this is true. I have no specific knowledge of it.

Q. Sure.

A. It was never brought to court, but I believe my father was.

Q. In what way?

A. Well, he always had a very bad cough and he had always been very — he had been exposed as a worker in many different conditions to various dusts.

Q. What kind of dusts?

A. I have no idea. He worked in a foundry. He worked in a steel mill.

Deposition Transcript at 32:7-23, taken in Mendez v. American Optical, 342d Judicial District, District Court of Tarrant County, Texas (July 13, 2005)

In insurance coverage cases, I have asked defense expert witnesses whether they have advised family members against using products, the safety of which was at issue. Again, on more than one occasion, I have elicited testimony that family members were using the product and had no ill effects. In each case, the expert witness for the defendants withdrew rather than testify at trial about why they permitted a close relative to use the product, which they had maligned in their litigation opinion. Here is the Q&A in a deposition of one frequent testifier:

Q. By the way, has anyone in your family or any of your friends ever been implanted with a silicone medical device?

A. Yes.

Q. And does that have any significance in your reaching your opinions?

A. No.

Q. Is it a friend or a family member?

A. Family member.

Q. In your view, did that family member sustain any harm as a result of the silicone implant?

A. I have no comment to make about that. There have been no complaints and no difficulties. So, so far, I can’t answer the question. I’m not her physician.

Q. Does that person have a legal suit involving the silicone medical device?

A. No.

Deposition transcript at 19-20, in Claus v. Cooper Surgical, Inc., California Superior Court for San Diego County, JCCP-2754-00243, and Santa Clara County, No. 922061 (Dec. 6, 1994). The “cold” record does not capture the witness’s discomfort. The deposition was not concluded, and the witness withdrew rather than continue with his advocacy. See also Deposition transcript in Medical Engineering v AIU Insurance, 58th Judicial District, District Court for Jefferson County, Texas (Feb. 6, and 7, 1997).

Moving beyond the obvious financial incentives for expert witnesses, there are many other sources of potential and actual bias. Injuries and diseases among family members and friends are just the beginning. Memberships in advocacy groups, political organizations, and special-interest professional associations are other issues to be discovered and explored. Many expert witnesses have signed on to amicus briefs that have taken tendentious positions in high-profile cases. Beware of advocate expert witness opinion testimony.

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Common Law Causal Apportionment – Each Dog Had His Day

September 27th, 2014

Some legal scholars have suggested that apportionment of damages by causation is a 20th century reform to the common law[1]. This strikes view strikes me as ignoring the late 20th century American courts’ penchant for favoring joint and several liability, without apportionment, and its hostility or refusal to permit causal apportionments. See, e.g., Carter v. The Wallace & Gale Asbestos Settlement Trust, 439 Md. 333, 96 A.3d 147 (2014). See also “Maryland Refuses Apportionment in Asbestos Lung Cancer Cases – Carter” (Sept. 19, 2014); “Further Thoughts on the Carter Apportionment Case – The Pennsylvania Experience” (Sept. 20, 2014).

The common law, as it developed in the United States from the early 19th century, was hospitable to apportionments that avoided “entire” or “joint and several” liability. Apportionments of single harms were often permitted and encouraged by the use of reasonable estimates of relative causal contributions. The common law generally provided that entire liability, and its procedural consequences similar to joint and several liability, did not apply to concurrent or successive tortfeasors whose acts (or products) cause distinct injuries or cause an injury that can be reasonably apportioned.

Asbestos (and other similar) cases raise interesting questions about the divisibility and apportionment of physical injuries and resulting impairment or death. Asbestosis represented the cumulative fibrotic result from multiple exposures to asbestos, over the course of an entire occupational exposure. For workers who were exposed to asbestos that came from different manufacturers’ products, the workers’ asbestosis represents the cumulative, single result of all the exposures that resulted in pulmonary deposition of fibers. A very slight, passing exposure may not have contributed at all to pulmonary deposition and retention. Heavier, more sustained exposures might contribute to the overall fiber burden, but certainly not equally. Exposures, deposition, and retention would be expected to vary in proportion to the use and dustiness (asbestos) of each product, weighted by the duration of exposure from each product. If all products were used equally, and were equally dusty, then perhaps they all could be taken to contribute equally. This last hypothetical, however, ignores the reality of market dominance of a few manufacturers, such as Johns-Manville up through the end of asbestos use in insulation.

The situation with mesothelioma is more complicated because not all commercial asbestos fiber types have the same potency with respect to causing mesothelioma. Crocidolite fiber has a potency an order of magnitude greater than amosite fiber. Chrysotile, even with some tremolite contamination, is orders of magnitude below crocidolite in its ability to cause mesothelioma, if it does so at all. These complexities of varying potency can be modeled by dustiness, duration of exposure, intensity of exposure, and potency factors. A further consideration is that mesothelioma arises from one or a few cells deranged by an asbestos fiber in close proximity. Increasing exposure would appear to increase the risk of malignant change, but the change is likely a local phenomenon, not the result of total fiber burden. (Increasing total fiber burden, however, represents an increasing risk of mesothelioma induction.) The assessment of causal responsibility is essential an attribution based upon ex ante risk, not actual causation. Given this reality, there is no reason that the causation cannot and should not be apportioned by the magnitude of the risk, modeled as suggested above.

The scholar’s suggestion that apportionment is a new-fangled development in tort law, and a reform of the common law, does not appear to hold up on close scrutiny. The common law dealt with combined causes in a variety of situations, and liberally permitted apportionment even for single harms, when there was a rational basis. As Restatement (Second) of Torts makes clear, even so-called distinct harms may require some “rough” estimation in attributing damages to the tortfeasors responsible for the different harms. Restatement (Second) of Torts § 433A (1965). Comment b to this section rather circularly defines “distinct harms” as those “results which, by their nature, are more capable of apportionment.” The comment states a hypothetical case and suggested resolution, which are, however, more helpful:

“If two defendants independently shoot the plaintiff at the same time, and one wounds him in the arm and the other in the leg, the ultimate result may be a badly damaged plaintiff in the hospital, but it is still possible, as a logical, reasonable, and practical matter, to regard the two wounds as separate injuries, and as distinct wrongs. The mere coincidence in time does not make the two wounds a single harm, or the conduct of the two defendants one tort. There may be difficulty in the apportionment of some elements of damages, such as the pain and suffering resulting from the two wounds, or the medical expenses, but this does not mean that one defendant must be liable for the distinct harm inflicted by the other. It is possible to make a rough estimate which will fairly apportion such subsidiary elements of damages.”

The above hypothetical is very much analogous to cases that occur in asbestos personal injury and property damage litigation. The Restatement also provides for apportionment of damages in cases in which the plaintiff suffers a single but divisible harm. Restatement § 433A(1)(b). Apportionment is permitted for such a harm when “there is a reasonable basis for determining the contribution of each cause.” Id. at comment d, the Restatement gives several examples of joint torts that can be apportioned by cause. Of particular interest is the suggestion that:

“Apportionment is commonly made in cases of private nuisance, where the pollution of a stream, or flooding, or smoke or dust or noise, from different sources, has interfered with the plaintiff’s use or enjoyment of his land. Thus where two or more factories independently pollute a stream, the plaintiff’s use of the water may be treated as divisible in terms of degree, and may be apportioned among the owners of the factories, on the basis of the respective quantities of pollution discharged into the stream.”

Id. See also 1 S. Speiser, C. Krause & A. Gans, The American Law of Torts at § 3.12 & note 88 (1983 & Supp. 1984) (collecting cases on joint flooding and polluting). Like a stream wasted by pollution, a person’s lungs impaired by fibrosis should be divisible “in terms of degrees” of contribution to the outcome.

Some of the earliest cases giving rise to an apportionment of property damages have involved the worrying and killing of sheep by dogs belonging to two or more persons. Many of these early cases involved the propriety of joinder of the dog owners and the resultant joint liability. Under the common-law approach to joinder, courts found it “repugnant to the plainest principles of justice to say that the dogs of different persons, by joining in doing mischief could make the owners jointly liable.” Russell v. Tomlinson & Hawkins, 2 Conn. 206 (1817). Consequently, if two dogs, each belonging to different persons, run together and kill the plaintiff’s sheep, each owner is liable only for the sheep his dog killed. Id. (“no man can be liable for the mischief done by the dog of another, unless he had some agency in causing the dog to do it.”) Van Steenburgh v. Tobias, 17 Wend. 562 (N.Y. 1837) (affirming nonsuit based upon misjoinder because joinder was error unless defendants jointly liable). The court in Van Steenburgh noted that the imposition of joint liability on the owner of one dog, which happened to unite with other dogs in destroying a herd, would be unjust. Id. at 564. The difficulty in estimating the separate injury done by each dog does not permit imposing liability for the entire damage. Id. at 563.

In Adams v. Hall, 2 Vt. 9 (1829), the court rejected the plaintiff’s argument that the damage done to his property, a herd of sheep, was entire. Id. at 10, 11. Because the damage done by each defendant’s dog was separate, the defendants were misjoinded under the then current procedural rules. Id. at 11.

In Buddington v. Shearer, 37 Mass. (20 Pick.) 477 (1838), the court acknowledged that the plaintiff would have some difficulty in proving which dog caused what distinct harm, but that under the circumstances, the trier of fact could reasonably apportion damages equally on the assumption that the dogs were capable of equal mischief. Id. at 479-80.

In the absence of a statute, the rule requiring apportionment in dog and sheep cases remains valid. See Miller v. Prough, 203 Mo. App. 413, 425, 221 S.W. 159 (1920) (each owner of a dog may not be liable for the entire damage; evidence of relative size and ferocity sufficient to permit the jury to apportion damages); Stine v. McShane, 55 N.D. 745, 746 214 N.W. 906 (1927) (in absence of a joint tort or a statute modifying the common law, plaintiff can recover only those damages occasioned by that defendant’s conduct); Nohre v. Wright, 98 Minn. 477, 478-79, 108 N.W. 865 (1906) (each dog owner is liable separately for the damages done by his animal); Anderson v. Halverson, 126 Iowa 125, 127, 101 N.W. 781 (1904) (reversing judgment for defendant dog owner because although plaintiff could not show which defendant’s dog killed which sheep, the jury should have been allowed to consider defendant’s liability with proper instructions on apportionment), Denny v. Correll, 9 Ind. 72, 73 (1857) (per curiam) (reversing joint judgment against defendant dog owners); Dyer v. Hutchins, 87 Tenn. 198, 199, 10 S.W. 194 (1889)(each defendant dog owner is responsible only for the depradations of his own animal).

The validity of the apportionments made for separate harms in dog and sheep cases continued into the second half of the 20th century, as evidenced by the following illustration in the Second Restatement:

“Five dogs owned by A and B enter C’s farm and kill ten of C’s sheep. There is evidence that three of the dogs are owned by A and two by B, and that all of the dogs are of the same general size and ferocity.”

Second Restatement § 433A, illustration 3. Based upon these facts, the Second Restatement would hold A liable for the value of six of the sheep, and B liable for four. Id.

The destruction of a field or its crops presents a case of harm, which courts have often treated as single but divisible. In Powers v. Kindt, 13 Kan. 74 (1874), the plaintiff sued for the damage inflicted to his crops by cattle belonging to two unrelated parties. Noting that the plaintiff had suffered a single injury to his property, the court held that the damages for the single injury should be apportioned by the relative number of each defendant’s cattle. Id. at 83. In Wood v. Snider, 187 N.Y. 28, 79 N.E. 858 (1907), the plaintiff sued an owner of cattle, which had trespassed along with the cattle belonging to other persons, on the plaintiff’s land. Id. at 36, 79 N.E. 858. The court noted that the cattle were all on the plaintiff’s land and that they all caused equal damage to the plaintiff, and, therefore, each cattle owner was liable for his proportionate share of the entire damages. Id. Accord Pacific Live Stock Co. v. Murray, 45 Or. 103, 76 P. 1079 (1904) (the proper measure of plaintiff’s damages was the value of pasturage consumed by defendant’s sheep, not the mischief done by animals belonging to other persons); Hill v. Chappel Brothers of Montana, 93 Mont. 92, 103, 18 P. 2d 1106 (1933) (jury allowed to make the best possible estimate of the portion of damages attributable to the defendant’s horses).

Other courts, in considering animal trespass cases, have not emphasized whether they viewed the plaintiff’s injury as single or several. Rather, these courts, simply have stressed the reasonable divisibility of damages and the appropriateness of apportioning damages accordingly. Westgate v. Carr, 43 Ill. 450, 454-44 (1867) (each defendant cattle owner is liable only for the damage done by his cattle); State v. Wood, 59 N.J.L. 112, 113-14, 35 A. 654 (1896) (each dog’s trampling of the plaintiff’s cabbage patch is a separate harm; each owner is liable only for the harm his dog caused); King v. Ruth, 136 Miss. 377, 381,101 So. 500 (1924) (each dog owner is liable only for the damages done by his animals’ separate and distinct trespass). See also Cogswell v. Murphy, 46 Iowa 44 (1877) (reversing judgment against defendant cattle owners because of misjoinder of parties).

Apportionments of damages for indivisible harms are routinely made in cases involving the flooding of land from multiple sources. In Griffith v. Kerrigan, 109 Cal. App. 2d 637, 241 P.2d 296 (1952), a typical joint-flooding case, the plaintiff sued for damage to his peach orchard, caused by excessive underground water seepage from one defendant’s irrigation of an adjacent rice paddy, and from another defendant’s nearby canal. Id. at 638, 241 P.2d 296. The trial court entered judgment for the plaintiff against the remaining defendant for only the harm caused by that defendant. Id. Both parties appealed. On appeal, the plaintiff claimed that each defendant was the proximate cause of the entire harm, and therefore, she was entitled to a judgment for the entire amount of damages proved at trial. Relying on Restatement of Torts Section 881, the predecessor to Section 433A of the Second Restatement, the Griffith court rejected the plaintiff’s contention that damage and liability were entire. Id. at 639, 241 P.2d 296. The appellate court was satisfied that the estimates of the relative percentages of water from all possible sources were a sufficient evidentiary basis for making a reasonable apportionment of the damages. Id.

The defendants[2] in Griffith also appealed on grounds that the expert witness testimony given at trial established that no exact apportionment was possible. Because of this lack of precision, the defendants contended that the plaintiff had failed to carry his burden of proving each defendant’s causal role. Id. at 640, 241 P.2d 296. The appellate count expressly rejected the defendants’ contention and held that the expert witness’s estimate was a sufficient basis for the apportionment. Id.

The holdings in Griffith are based upon well-established precedents and principle of justice. Joint and several liability in such a case would allow “a plaintiff to overwhelm a defendant with claims for damages out of all proportion to his wrongdoing …” William Tackaberry Co. v. Sioux City Service Co.,154 Iowa 358, 377-78, 132 N.W. 945 (1911) (extensively reviewing authorities and rejecting joint and several liability for property damage caused by flooding from multiple causes; Boulger v. Northern Pacific Railroad Co., 41 N.D. 316, 324, 171 N.W. 632, (1918) (imposing entire liability on a party responsible for only a portion of the harm caused by a flood would be contrary to law and justice).

In Sellick v. Hall, 47 Conn. 260 (1879), the court held that regarding parties that independently damaged plaintiff’s property by flooding as joint tortfeasors was error. Id. at 273. Each party can be liable only for that portion of the harm, which he caused. Id. at 274. Although apportionment might be difficult in some cases, the court noted that juries are often entrusted with difficult factual judgments. Id. The plaintiff should not, therefore, be denied any recovery; nor should one defendant be “loaded with damages to not legally liable, simply because the exact ascertainment of the proper amount is a matter of practical difficulty.” Id.

The common law saw that any hardship to the plaintiff in not being able to assert joint and several liability was fairly mitigated by plaintiff’s being relieved of the requirement to prove the precise damage inflicted by each defendant. William Tackaberry Co. v. Sioux City Service, Co. 154 Iowa at 377, 132 N.W. 945; Griffith v. Kerrigan, 109 Cal. App. 2d. at 640, 241 P.2d 296. A reasonable basis for apportioning the single harm among multiple causes is sufficient to support an apportionment of damages. Sloggy v. Dilworth, 38 Minn. 179, 185, 36 N.W. 451 (1888) (rejecting entire liability; apportionment for damage to plaintiff’s crops caused by flooding from multiple causes may be based on the relative contribution of each party): Blaisdell v.Stephens, 14 Nev. 17, 19 (1879)(reversing joint judgment in a flooding case); Verheyen v. Dewey, 27 Idaho 1, 11-12, 146 P. 1116 (1915)(reversing joint judgment; each party should be responsible only for that portion of the flood that damaged plaintiff’s property): Ryan Gulch Reservoir Co. v. Swartz, 77 Colo. 60, 234 P. 1059, 1061 (1925) (rejecting joint liability for independent flooders of plaintiff’s land); Miller v. Highland Ditch Co., 87 Cal. 430, 431, 23 P. 550 (1891)(reversing joint judgment against defendants, whose irrigation ditches independently overflowed and deluged plaintiff’s land).

When two or more independent tortfeasors separately pollute the air or water and the consequences combine to form a single injury, each tortfeasor will be liable only for the consequences of his independent tortious act and will not be liable for the entire injury. Oakwood Homeowners Assoc. v. Maration Oil Co., 104 Mich. App. 689, 305 N.W.2d 567 (Mich. App. 1981). In Oakwood, the appellate court sustained the trial court’s jury instruction that the jury should separate the injuries caused to the plaintiff by the defendant from the injuries caused by other tortfeasors if they could do so.

“If two or more persons acting independently tortiously cause distinct harms or a single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he himself caused.”

Oakwood Homeowners, 305 N.W.2d at 569.

In Maas v. Perkins, 42 W.2d 38, 253 P.2d 427 (Wash. 1953), the Supreme Court of Washington held that, while two alleged tortfeasors, accused of having contributed to the damage caused by oil sludge draining onto plaintiffs’ property, could be joined in one action, their liability was several and not joint. Plaintiffs would not be relieved of their burden that a particular defendant caused damage of a specified amount. Although the court admitted of the difficulty of such proof, the court required some basis for the allocation of the total damage. 42 W.2d 38, 253 P.2d at 430. The Maas decision followed the rule previously set out in Snavely v. City of Goldendale, 10 Wash. 2d 453, 117 P.2d 221 (1941, where a downstream farmer alleged that a municipality and a slaughterhouse discharged refuse into the Little Klickitat River. The court affirmed the rule that tortfeasors independently contributing to the pollution of a stream cannot be held jointly liable for the common injury. The basis of the court’s decision was fairness.

“[I]t might work great injustice to hold one responsible for the entire injurious effect of the pollution of a stream brought about by himself and others in varying degrees.”

Snavely, 117 P.2d at 224.

Courts have consistently viewed the rule of apportionment and several liability as a rule of fairness. Courts have been unwilling to impose liability on one tortfeasor for the acts of another over which the first had no control and where the only logical connection was some similarity of consequences.

In Farley v. Crystal Coal & Coke Co., 85 W.Va. 595, 102 S.E. 265 (1920), the Supreme Court of Appeals of West Virginia held that six separate mine operators, alleged to have polluted with slag, cinder and sewage the stream on which plaintiff’s farm was situated, could not be jointly liable for damage caused by the pollution:

“In the actual infliction of the injury there was nothing more than a combination, effected by natural causes of the consequences or results or the wrongful acts, in which the parties did not act. This of course does not absolve them from liability, but it does away with the ground or basis of joint liability and liability for entire damages. Each is liable only for the consequences of his own wrong and must be sued alone for the damages.”

Farley, 102 S.E. at 268.

Similarly, the court in Watson v. Pyramid Oil Co., 198 Ky. 135, 248 S.W. 227 (1923), was moved by considerations of fairness to adopt the rule of apportionment and several liability. Watson held that several refining companies could not be liable for the damage caused by each other’s operations. Otherwise, it reasoned “a defendant who had contributed to the injury in the slightest degree would be liable for all the damage caused by the wrongful acts of all the others.” 198 Ky. 135, 248 S.W. at 228.

In a case concerning noise pollution, the Georgia Court of Appeals held that a city operating an airport and the airlines using it were not jointly liable for damage caused to the plaintiff by a low flying aircraft. City of Atlanta v. Cherry, 84 Ga. App. 728, 67 S.E.2d 317 (Ga. App. 1951).

The Florida Supreme Court has held that joint liability would not be imposed on up-river phosphate producers despite the intermingling of the consequences of their tortious acts for the downstream riparian owners. Synnes v. Prarie Pebble Phosphate Co., 66 Fla. 27, 63 So. 1 (Fla. 1913); Standard Phosphate Co. v. Lunn, 66 Fla. 220, 63 So. 429 (Fla. 1913).

Apportionment, with burden on the plaintiff, was applied in personal injuries as well, at common law. In City of Mansfield v. Brister, 76 Ohio 270, 81 N.E. 631 (1907), the plaintiff, a riparian proprietor, sued the city for damage to his health caused by the pollution of Ritter’s Run. Ritter’s Run was found to have been fouled by five sewers, only one of which had been constructed by the city. The trial court instructed that jury that it was unnecessary to find that the city had caused the entire injury in order to find it liable for the damage. The Ohio Supreme Court deemed this error, and reversed. In a thoughtful opinion, the court discussed the contemporary authority. The court found the difficulty of apportionment presented no compelling reason to relieve the plaintiff from the obligation of proving that the damages sought from a defendant sprung from the act of that defendant:

“Each is liable only to the extent of the wrong committed by him. The fact that it is difficult to separate the injury done by each one from the others furnishes no reason for holding that one tortfeasor should be liable for act of others with whom he is not acting in concert.”

City of Mansfield, 76 Ohio 270, 81 N.E. at 633.

The suggestion of legal scholars that causal apportionment was a 20th century reform seems misguided. The mantra of “joint and several” has often clouded consideration of the fairness and practicality of causal apportionment in many kinds of personal injury cases.

[1] Michael D. Green, “Second Thoughts about Apportionment in Asbestos Litigation,” 37 Southwestern Univ. L. Rev. 531 (2008) (“The idea that liability is not all or nothing—a basic tenet of the common law—but could be apportioned in a fine-grained manner—that is using a scale of 100, whether you call it comparative negligence, fault, responsibility, or causation—is a reform of the twentieth century and one of the most influential in tort law of that century.”).

[2] Interesting how the procedure at that time put the defendants into the position that plaintiffs today take with respect to apportionment.

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Big Blue & The Sophisticated User and Intermediary Defenses

September 26th, 2014

Two particularly perfidious myths perpetrated by the asbestos litigation industry is that crocidolite was not used in the United States, and that chrysotile is as potent in causing mesothelioma as is crocidolite. Both myths are untrue, but they have become current articles of faith among the “The Lobby.” See “Selikoff and the Mystery of the Disappearing Amphiboles” (Dec. 10, 2010).

Because of the flagrant falsehoods imbedded in the Lobby’s mythology, I am always fascinated to see incontrovertible evidence of the use of crocidolite. Crocidolite is a blue fiber, and Johns-Manville (JM) was the “Big Blue” of the North American asbestos industry. JM used crocidolite in several products, but perhaps best known is its incorporation of blue fiber into asbestos cement products, known as Transite. One of JM’s manufacturing facilities, where crocidolite was used, was in Stockton, California, a.k.a. Fat City.

The JM Stockton plant was the situs of a recent sophisticated intermediary case, which is set for argument soon before the California Supreme Court. Webb v. Special Electric Company, Inc., 214 Cal. App. 4th 595, 153 Cal. Rptr. 3d 882, 888 (2013). See Monica Williams Monroe “Is There a Duty to Warn Even the Most Sophisticated User?”(July 23, 2014); “California Supreme Court Set To Untangle Webb” (July 7, 2013). The JM Stockton facility was, at one time, the largest consumer of asbestos in California, for use in making Transite (asbestos-cement) pipe products. See Asbestos: The Magic Mineral (JM Brochure). In 1982, JM sold the Stockton facility to the J-M Manufacturing Co., and the J-M A/C Pipe Corp., which were unaffiliated with JM. “Johns-Manville Sells Pipe Unit” N.Y. Times (Dec. 21, 1982)[1].

Back in April 2001, the Kazan firm obtained a substantial jury verdict against J-M A/C Pipe Company, on behalf an employer who had worked there since 1959. Hardcastle v. J-M A/C Pipe Corp., Alameda County Superior Court No. 830058-2 (Jury verdict, April 21, 2001). The employer claimed untruthfully that it had never been sued, and had to confront allegations that it had cheated on air quality testing. The jury found J-M A/C Pipe Co. liable for negligence, with actual malice.

Given the actual knowledge and sophistication of the employer, one would expect that there was no need for an outside vendor of asbestos to warn the employer of its hazards, especially not after the early 1960s. Such a defense appears to have been interposed in one unreported California case. Ransom v. Calaveras Asbestos Ltd., No. B207018 (Cal. App. 2d Dist., Div. 5) (Mar. 4, 2009) (unpublished). Plaintiff claimed that his lung cancer was related to occupational exposure at the Stockton plant. Dr. Samuel Hammar, a pathologist, testified conclusorily that “each and every occupational exposure to asbestos” was a substantial factor. Dr. B.S. Levy offered testimony on epidemiology of asbestos fiber types. Somehow the court got the idea that “there were no distinctions in the effect of the types of asbestos to which plaintiff was exposed.” Id. Mistakes were made, and not much seems to have come of the sophisticated intermediary defense.

The sophisticated user defense seems to have gone better in a jury trial that ended with a defense verdict last month. Plaintiffs sued Special Electric for having brokered South African crocidolite fiber to the Stockton facility, and for having caused plaintiff’s mesothelioma. See “Special Electric Secures Defense Verdict In San Francisco Asbestos Trial” (Sept. 24, 2014). Plaintiffs called a physician, Barry Horn, M.D., and an industrial hygienist, William Ewing, CIH, as expert witnesses, to support their consumer expectations test for design defect. The defense called no witness, but defended on theory that the plaintiff, Mr. Dennis Hill, had been trained in, and aware of, the hazards of asbestos by the mid-1970s. Martha Joan Hill v. A.C.& S. Inc., et al., San Francisco County Superior Court (trial Sept. 2 through 10, with verdict returned Sept. 10, 2014) (Hon. Richard B. Ulmer, Dept. 624, and a jury).

It is a safe bet that Mr. Hill, and his union, had known about asbestos hazards for much longer than acknowledged. Mr. Hill’s demise is sad outcome to the crocidolite tragedy, for which his employer was and should have responsible. Almost as sad is forcing a remote supplier of crocidolite to defend itself for having brokered asbestos to the one of the world’s most knowledgeable users of the natural material.

[1] The Stockton plant was organized by the Machinists District Lodge 115, Local Lodge 1549, from 1958, on. Johns-Manville Sales Corp. v. National Labor Relations Board, 906 F.2d 1428 (10th Cir. 1990). The sale of the facility took place on the heels of a violent strike, in which the union showed it, too, could act maliciously and violently.

Posted in Causation, Sophisticated User | Comments Off on Big Blue & The Sophisticated User and Intermediary Defenses

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