TORTINI

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

Selikoff Timeline & Asbestos Litigation History (Revised)

February 26th, 2023

The critics and cheerleaders of Dr. Irving John Selikoff agree that he was a charming, charismatic, and courageous man, a compassionate physician, and a zealous advocate for worker safety and health. The consensus falls apart over the merits of Selikoff’s actual research, his credentials, and his advocacy tactics.[1]

Selikoff’s collaborators, protégés, and fellow travelers tend to brand any challenge or criticism as “scurrilous.”[2] They attack the messenger for attacking the messenger, who attacked the messenger, u.s.w.. Certainly in his lifetime, Selikoff attracted harsh and vituperative attacks, some of which were mean-spirited and even anti-semitic. Although I am not a Jew, I am, following Jonathan Miller, “Jew-ish, just not the whole hog.” As such, I can appreciate the ire of some of Selikoff’s defenders over the nature of these attacks.

Selikoff’s legitimate achievements should not be diminished, and his defenders are correct to bemoan the ad hominem attacks on Selikoff, based upon ethnicity and personal characteristics. Some attacks, however, were merited. The time has come to stop evaluating the message by its messenger, and to pay attention to the evidence. Selikoff’s defenders and hagiographers are wrong, therefore, to claim that Selikoff’s training, scientific acumen, advocacy, and false positive claims are somehow off limits. Selikoff advanced his scientific and political agenda by promoting his reputation and work, and he thus put his credentials, work, and methods into issue. Selikoff’s contributions to public health in publicizing the dangers of high exposure, long-term asbestos 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.

Although Selikoff died in 1992, his legacy lives on in the perpetual litigation machine that is run by the litigation industry and Selikoff’s juniors and imitators, who serve as testifying expert witnesses. One of Selikoff’s great achievements, the federalization of worker safety and health in the Williams-Steiger Occupational Safety and Health Act of 1970,[3] languishes because of inadequate resources for enforcement and frivolous efforts to address non-existent problems, such as the lowering of the crystalline silica permissible exposure limit. Activists have taken to redress the problem by advocating for nugatory “warnings” from remote suppliers, in the face of employer failures to monitor and supervise workers and the workplace, and to provide administrative, engineering, and personal protective controls.

Selikoff diverted regulatory attention from asbestos fiber type, with the result that the OSHA PELs were lowered for both chrysotile and amphibole asbestos, thus leaving the ultra-hazardous crocidolite asbestos in use. Selikoff perpetuated a good deal of mischief and misinformation to keep his myth that all fiber types are the same (and that “asbestos is asbestos is asbestos”). In doing so, he actually hurt many people.

An anonymous snark on Wikipedia noted some of my blog posts about Selikoff, and offered the lame criticism that my writings were not peer reviewed.[4] The snark (Tweedale?) was of course correct on this limited point, but generally in this field, peer review is worth a warm bucket of spit. And there is the matter that the anonymous critic was offering a criticism that was also not peer reviewed.

Selikoffophiles continue to tell tall tales about Selikoff’s work and in particular about how he became involved in asbestos medicine.[5]  So here is a timeline of Selikoff’s life and asbestos work, an update of an earlier version. If anyone notes an error or inconsistency in this time line, please let me know, provide better sources, and ask for a correction. If I am wrong, I will readily note the correction and eat my words, but I am sure they will be quite digestible.[6]

1915-01-15.  Irving John Selikoff was born as Irving Selecoff in the brain basket of America, Brooklyn, New York, to Abraham and Matilda (Tillie) Selecoff.[7]  His father, Abraham, was born on April 6, 1885, in the Kyiv oblast of what is now Ukraine.[8]

1920.  According to the 1920 census, the Selekoff family lived at 816 179th Street, in the Bronx. Irving’s father, Abraham, was self-employed as a hat manufacturer, doing business later as United Headwear Corporation.[9]  The family had two children, Irving, and his older sister, Gladys.

1930. The asbestos workers’ journal published a story about the (non-malignant) risks of asbestos exposure.[10]

1935-06.  Selikoff was graduated from Columbia University, with a B.S. degree.

1935-12-24.  Selikoff arrived in Boston from Yarmouth, Nova Scotia, on the S.S. Yarmouth, on December 24, 1935, apparently en route from Scotland.

1936.  Dr. Alice Hamilton, physician and noted labor activist, wrote in a labor union journal to urge more attention to industrial dusts, the knowledge of dangers of which was[11] “still very limited except with regard to silica and asbestos.”

1936-08.  Selikoff sat for the university entrance boards in Scotland.

1936-09-27.  Selikoff married Lydia Kapilian, in the Bronx.[12]

1936-10-12. Irving Selecoff arrives in Liverpool, from New York, aboard the S.S. Samaria.

1936-10.  Selikoff entered Anderson’s College of Medicine, in Glasgow, Scotland.[13]

1936-12-28. Irving John Selikoff is listed in the UK, Medical and Dental Students Registers, 1882-1937, registration date December 28, 1936, in Scotland.

1936.  Alice Hamilton published an article on the risks and benefits of industrial asbestos use, in a key labor unionist journal. Alice Hamilton, “Industrial Poisons,” 43 The American Federationist 707-13 (1936).

1937-04-26.  Selikoff arrived in New York, from Greenock, Scotland, on the S.S. Carinthia.

1937-10-10. Irving Selecoff arrived in Glasgow, Scotland, from New York City, on board the SS. Cameronia.

1938-07-14.  Irving J. Selecoff arrived in Quebec, Canada, from Greenock, Scotland, on the S.S. Duchess Atholl.

1939-06-24.  Irving Selecoff arrived in New York, from Liverpool, London, on the S.S. Mauretania. Because of the developing hostilities in Europe, Selikoff apparently did not return to Glasgow, in the fall of 1939.

1939-11.  Unable to return to Scotland, Selikoff applied to Melbourne University for coursework to finish his non-degree course of qualification for medication practice in the United Kingdom.[14]

1940-03-04.  Selecoff (as his name was then often spelled) arrived in Vancouver from Sydney, on the S.S. Aorangi.

1940-04.  Irving Selikoff was living with his parents, and his married sister and her family, in Rye, New York, according to the 1940 census, taken on April 10, 1940.

1940-05-27.  Selikoff enrolled in the University of Melbourne as a non-degree student, for coursework to finish his qualification for medical license in Scotland.[15]

1941-03-24.  John Selecoff arrived in Los Angeles, California, from Sydney, Australia, on the S.S. Mariposa. According to Bartrip, Selikoff had completed his last course at the University of Melbourne, for his “tailor-made” program, on

1941-02-27. Selikoff never gained entrance to a degree program at Melbourne.[16]

1941-04-21. Irving John Selikoff registered for the draft, in Port Chester, New York.

1941.  Selikoff joined the Mount Sinai Hospital as an assistant in Anatomy and Pathology, “immediately following his university training.”[17]

1943-11-01.  Selikoff received an M.D., degree from Middlesex University,[18] after two semesters in residence. This school was regarded as “substandard” and not approved by the American Medical Association. The school lost its accreditation in 1946, and closed.[19] After receiving this degree, Selikoff continued his efforts to return to Scotland, to complete his “triple qualification” for medical licensure in Scotland, which would allow him to sit for the licensing examination in one of the United States.

1943 – 1944.  Selikoff served as an intern, at the Beth Israel Hospital, in Newark, New Jersey.[20]

1944 – 1946. Selikoff served as a resident, at the Sea View Hospital, in New York City.[21]

1945-04-23.  Selikoff was listed in the British Medical Registry, based upon his qualification by the Scottish Conjoint Board for his work at Anderson’s and his non-degree work at the University of Melbourne.[22]

1943-06-02. Irving J Selecoff arrived in Montreal, Quebec, Canada, from Liverpool, aboard the S.S. Axel Johnson.

1945-06-02.  Selikoff arrived in Montreal, Quebec, from Liverpool, England, on the S.S. Axel Johnson.

1945-12-21. Selikoff’s mother, Tillie, died.

1946-02.  Selikoff married Celia Schiffrin in Manhattan.[23]  It was the second marriage for both bride and groom.

1947.  After having left Mt. Sinai Hospital, in 1943, for an internship and a residency, Selikoff resumed his association with Mt. Sinai Hospital.[24]

1947-06-30. Selikoff’s father, Abraham Selecoff, married Anna Susser, in Manhattan.[25]

1949.  Selikoff opened a medical office at 707 Broadway, Paterson, New Jersey,[26] not far from a factory run by the Union Asbestos and Rubber Company (UNARCO). In the same year, the Selikoffs were living at 965 Fifth Avenue, near 78th Street, in Manhattan.[27]

1950.  Selikoff’s medical practice in Paterson, New Jersey, afforded him the opportunity to observe “the incidence of lung disease among workers at the Union Asbestos and Rubber Company (UNARCO),”[28] which operated one of its factories in Paterson.

1950-04-05. Irving J. Selikoff and his wife Celia resided at 93 Broadway, Paterson, New Jersey, USA, according to the 1950 census. By the early 1950s, Selikoff and his wife had moved to 505 Upper Boulevard, Ridgewood, New Jersey.

1951.  New Jersey lawyer Carl Gelman retained Dr. Irving Selikoff to examine 17 workers from the Paterson plant of Union Asbestos and Rubber Company (UNARCO). Gelman filed workers’ compensation claims on behalf of the UNARCO workers.[29]

1952.  Supported by Selikoff’s report, UNARCO worker Anton Szczesniak settled his worker’s compensation case, involving “intestinal cancer,” for $2,000 in 1952.[30] Selikoff published data on the carcinogenicity of amosite in 1972,[31]  a delay of twenty years.[32]

1952.  Selikoff and colleagues published the results of a clinical trial of isoniazid for tuberculosis patients.[33]

1952.  Selikoff was featured in Life magazine coverage of isoniazid, a chemotherapy for tuberculosis.[34]

1952.  Selikoff was an assistant attending physician for thoracic diseases in the department of thoracic diseases at Mt. Sinai Hospital. In this year, Selikoff delivered the monthly Physiological Chemistry Seminar lecture at Mt. Sinai Hospital on: “Antitubercular Hydrazines,” along with Drs. H. H. Fox and Richard J. Schnitzer, of Hoffman-La Roche.

1954.  UNARCO closed its Paterson, New Jersey plant, and moved it to Tyler, Texas.[35]

1955.  Selikoff received the Albert Lasker Clinical Medical Research Award for his work on the clinical trial of isoniazid to treat tuberculosis, along with Walsh McDermott and Carl Muschenheim, of the Hoffmann-La Roche Research Laboratories, and Edward H. Robitzek, of the Squibb Institute for Medical Research.[36]

1955.  Selikoff’s involvement in the isoniazid clinical trials continued to attract media attention. His first television appearance was panned, but he would later develop considerable public speaking skills.[37]

1955.  Sir Richard Doll published his epidemiologic study of lung cancer among British asbestos workers.[38]  This study was known to Selikoff, who relied upon it in his litigation reports to support the compensation claims of asbestos workers in the 1950s.[39]

1955. In 1955, American labor unions were well aware of the claim that asbestos causes lung cancer. Herbert K. Abrams, union physician and the Medical Director of Local 25 Chicago, Building Service Employees International Union, concluded that asbestos causes cancer in a prominent union journal.[40]

1956.  Selikoff became an associate attending physician for thoracic disease at Mt. Sinai Hospital.

1957.  For many years, Frederick Legrand had been a pipecoverer and asbestos worker for asbestos contracting firms. In February 1956, Legrand filed a successful claim for worker’s compensation for disability due to asbestosis.[41] Attorney William L. Brach filed perhaps the first civil action (as opposed to worker’s compensation claim), on behalf of LeGrand, against Johns-Manville, for asbestos-related disease, on July 17, 1957. Frederick LeGrande v. Johns-Manville Prods. Corp., No. 741-57 (D.N.J.).[42] Trial commenced on March 4, 1959, before the Hon. Honorable Reynier J. Wortendyke, Jr. In the middle of trial, Johns-Manville (JM)  settled the case for $35,000.[43] According to various accounts, JM badly mishandled the defense by falsely asserting that it had no knowledge of potential asbestosis hazards to end-users such as LeGrand. The defense had the dual liability of both being untrue and depriving JM of affirmative defenses of contributory negligence and assumption of risk. JM was apparently able to obtain a stipulation that LeGrand’s condition was not the result of asbestos in JM’s product, which JM used to hide the JM settlement from subsequent claimants. Frederick Legrand died in the fall of 1959.[44]

1957-07. The asbestos insulators’ union’s periodical, distributed to its members, notes that “[t]he problem of hazardous materials was again discussed with the importance of using preventative measures to eliminate inhalation. It is suggested that, when working under dusty conditions, respirators should be used at all times and gloves whenever conditions warrant.”[45]

1957-10. President Sickles, at the International Convention of the Asbestos Heat, Frost and Insulators Union, reported to his union’s delegates that he, “[b]eing well aware of the health hazards in the Asbestos industry, requested authority for the General Executive Board to make a study of the health hazards … that will enable the Board to adopt any policies that will tend to protect the health of our International membership.”[46]

1960.  Dr. J. Christopher Wagner published a case series of mesothelioma among persons exposed to crocidolite, in the region of South Africa where crocidolite is mined and milled. After this publication, the causal role of crocidolite became quickly accepted in the scientific and medical community.[47]

1960-1961.  Selikoff published two papers on the patho-physiology of asbestosis, based on data from 17 UNARCO workers,[48] obtained from his medico-legal evaluations of the men.[49]

 

Irving and Celia Selikoff from their 1961 Brazilian visa documents

1961-05. Asbestos insulators’ union discussed collaboration with scientists to discuss lung cancer and other diseases among its membership.[50]  Union members, intensely interested in legal redress for compensation, became aware of Selikoff’s research hypothesis in advance of Selikoff’s survey of the members’ smoking habits, which the workers had a motive to under report.

1961-11. The Asbestos insulators’ union’s magazine featured a full page warning of the grim reaper urging insulators to “Wear Your Respirator.”[51] The warning was developed under the guidance of C. V. Krieger of Local No. 28, Safety Superintendent at the Long Beach Naval Shipyard.

1962-07-12.  Selikoff visited Asbestos Corporation of America, an intermediary broker of asbestos fibers. In a memorandum Selikoff prepared from his discussions with Wade I. Duym, the general manager of the company, and others, he detailed the widespread use of amphibole asbestos fibers in a variety of products. He noted that amosite was used primarily in the insulation trade, and that it was the asbestos “of choice” for sprayed-on products, high temperature insulating cements and pipecovering (magnesia and calcium silicates). Selikoff described crocidolite, from Africa and Bolivia, as a strong, chemically resistant, relatively inexpensive fiber that was used in asbestos cement products, and in Kent cigarette filters.

1962-09. Selikoff presented to a meeting of the Asbestos Workers, to request their help in conducting his study of insulator mortality and morbidity. Irving Selikoff, “Speech at Asbestos Workers’ Union Annual Meeting,” The Asbestos Worker 8 (Sept. 1962).

1962.  Asbestos insulators’ union acknowledged that its leadership has been collaborating with Dr. Irving Selikoff.[52] In September 1962, Selikoff and colleagues began physical examinations of members of the New York and New Jersey locals.[53] `

1962.  In a publication for Naval personnel, with virtually no circulation in the general industrial community, the United States government acknowledged that shipyard and on-board exposures greatly exceeded the ACGIH’s then current TLV for asbestos.[54]

1963.  Selikoff established the Environmental Sciences Laboratory, later known as the Division of Environmental and Occupational Medicine, in would become the Mt. Sinai School of Medicine’s Department of Community Medicine.

1963-02. The asbestos insulation workers’ union announces that it has begun a large-scale program of examinations for asbestos-related disease in the members of the New York and New Jersey locals.[55]

1964.  Selikoff published his first article on cancer in a cohort of union asbestos insulators from New York and New Jersey.[56] Selikoff and his co-authors failed to disclose funding from the union, or the union members’ awareness of the research hypotheses under investigation.

1964.  In October 1964, Selikoff organized and co-chaired (with Dr. Jacob Churg) a conference, “The Biological Effects of Asbestos, for the New York Academy of Sciences, in New York City. The conference featured presentations and papers from many international investigators. Several presenters, including Selikoff, documented the prevalent use of amphibole asbestos (both crocidolite and amosite) in the United States.[57]

1965.  Papers presented at the 1964 New York Academy of Sciences conference were published in late 1965, in a non-peer reviewed publication, volume 132, of the Annals of the New York Academy of Sciences.

1965.  Selikoff testified on behalf of an insulator who claimed that asbestos exposure caused his colorectal cancer.[58] Forty years later, the Institute of Medicine (now the National Academy of Medicine) comprehensively reviewed the extant evidence and announced that the evidence was “suggestive but not sufficient to infer a causal relationship between asbestos exposure and pharyngeal, stomach, and colorectal cancers.”[59] None of Selikoff’s publications, including those on asbestos and colorectal cancer, disclosed his litigation testimonies for claimants.

1966 – 1972.  Selikoff continued to testify frequently in civil action and in worker compensation proceedings for claimants who alleged asbestos-related injuries.[60]  In 1972, Andrew Haas, President of the asbestos workers’ union thanked Selikoff for his “frequent” expert witness testimony on behalf of union members.[61]

1967-09. In an address to the International Association of Heat and Frost Insulators and Asbestos Workers, Selikoff acknowledged the widespread use of amosite, particularly in shipyards, the absence of lung cancer among non-smoking insulation workers, and the failure of more than 9 out of 10 insulators to wear respirators on dusty jobs. See Irving J. Selikoff, Address to the delegates of the twenty-first convention of the International Association of Heat and Frost Insulators and Asbestos Workers at 8, 9-10, 24 (Chicago, Illinois, Sept. 1967) (“I have yet to see a lung cancer in an asbestos worker who didn’t smoke cigarettes. … “[C]ancer of the lung could be wiped out in your trade if you people wouldn’t smoke cigarettes, period.”).

1968-09.  Selikoff “warns” the United States of asbestos hazards that existed and continue to exist in the government’s shipyards.[62] The warning was largely about seeking media attention by Selikoff; the government, and especially the Navy, had long known of asbestos hazards.[63]

1968-05.  Selikoff testified that all fibers are equally potent, to Congress in support of a bill that would become the OSH Act.

1968. The Mount Sinai School of Medicine opened in 1968, as part of The City University of New York. The first class in the newly formed medical school had 36 students in the entering class. The school was chartered in 1963. It is now known as the Icahn School of Medicine at Mount Sinai.

1969.  Selikoff served as president of the New York Academy of Sciences.

1969-05. Selikoff acknowledged that only four percent of insulators wore a mask despite extensive warnings.[64]

1972.  In a published study of variability in the interpretation of chest radiographs, Selikoff was shown consistently to over-read chest radiographs for potential asbestos-related abnormalities, when compared with other pulmonary experts on pneumoconiosis.[65]

1973.  Selikoff testified for the government in United States v. Reserve Mining Co., No. 5-72 Civil 19 (D. Minn. Sept. 21, 1973).[66]  On September 20, Selikoff testified about the town where Reserve Mining’s taconite mine was located: “I think we ought to have a sign at the entrance to sections of the town ‘Please Close Your Windows Before Driving Through’. I certainly would want to close mine.” When his testimony continued the following day, Selikoff acknowledged that he had been “facetious” in his previous day’s testimony.[67]

1974. After having given “facetious” testimony, Selikoff reduced his testifying activities. Marxist historians Jock McCulloch and Geoffrey Tweedale have falsely suggested that Selikoff “avoided the drama of the courtroom and the role of the expert witness” because of the drain on his time, his desire to avoid antagonizing industry, and his need to prevent discovery of trade union medical files.[68]

1974-05-20.  Selikoff’s father, Abraham Selecoff, died in Florida.[69]

1974.  Selikoff published a review on asbestos and gastrointestinal cancer, without disclosing his funding from the asbestos insulation union or his receipt of fees for litigation work in which he maintained a causal relationship in advance of any data.[70]

1978-07.  The National Cancer Institute (NCI) invited Dr. Hans Weill to co-chair a conference on lung cancer surveillance. Ten days later, the NCI retracted the invitation. When Weill inquired about the reasons for the shoddy treatment, an NCI official (Margaret Sloan) told him that “representatives of organized labor” objected to his participation. Sloan’s superior at NCI stated that Selikoff had raised the question whether the conference’s recommendations would lose credibility if Weill were a co-chair. When asked about his role in this sordid affair, Selikoff equivocated, saying he had “simply” said that “[s]ince Weill was a consultant to the Asbestos Information Center, I didn’t know if this would enhance or detract from hearing all points of view.”[71]

1979-11-05.  Barry Castleman, career testifier for the asbestos lawsuit industry, prepared a memorandum to Selikoff to urge him to resist allowing discovery of asbestos worker union members’ knowledge of the hazards of asbestos.[72]

1980-07-29.  A Newsday journalist reports that Selikoff is loath to talk about himself, and that he threatens to cut short the interview when asked about his background.[73]

1981.  Sir Richard Doll and Professor Richard Peto published a rebuttal to wildly exaggerated asbestos risk assessments based upon Selikoff’s insulator studies.[74]

1984.  Selikoff prepared a report on his group’s epidemiologic study of Electric Boat employees, who were engaged in the construction of submarines.[75]  The data did not fit the Mt. Sinai Catechism of large increased risks.[76]  Selikoff never published these data in a medical journal or a textbook.[77]

1985-03-10. Selikoff retires from Mount Sinai Medical School.[78]

1986-03.  Selikoff’s wife, Celia, died.[79]

1987 – 1989.  Selikoff’s insulator cohort study data took on an outsize importance in litigation because of plaintiffs’ heavy reliance upon his studies in court cases. When litigants asked for these data, Selikoff consistently refused to share, which necessitated federal court intervention.[80]

1988.  Selikoff and William Nicholson prepared a manuscript report of a study of the mortality experience at a New Jersey asbestos product manufacturing plant of Johns Manville.[81] Their report documented the substantial use of crocidolite in various products, and the resulting horrific mesothelioma mortality at this plant. Selikoff never published this crocidolite-exposed cohort, although he tirelessly republished his insulator cohort data repeatedly with the misrepresentation that the insulators were not exposed to crocidolite.

1990-06-07. Selikoff conspired with Ron Motley and others to pervert the course of justice by inviting judges with active asbestos dockets to a one-sided conference on asbestos science, and to pay for their travel and lodging. In his invitation to this ex parte soirée, Selikoff failed to mention that the funding came from plaintiffs’ counsel.[82]  Shortly after the Third Circuit spoke on the Mt. Sinai dress rehearsal for the plaintiffs’ asbestos property damage trial case, Judge Jack Weinstein issued a curious mea culpa. Because of a trial in progress, Judge Weinstein did not attend the “Third Wave” conference, but he and a state judge (Justice Helen Freedman) attended an ex parte private luncheon meeting with Dr. Selikoff. Here is how Judge Weinstein described the event:

“But what I did may have been even worse [than Judge Kelly’s conduct that led to his disqualification]. A state judge and I were attempting to settle large numbers of asbestos cases. We had a private meeting with Dr. Irwin [sic] J. Selikoff at his hospital office to discuss the nature of his research. He had never testified and would never testify. Nevertheless, I now think that it was a mistake not to have informed all counsel in advance and, perhaps, to have had a court reporter present and to have put that meeting on the record.”[83]

What is curious is that Judge Weinstein, usually a careful judge and scholar, was so incorrect about Dr. Selikoff’s having never testified. His error could have been avoided by a simple search in the Westlaw or LexisNexis databases. Judge Weinstein’s account points directly to Dr. Selikoff as the source for this falsehood.[84]

1990-10-02.  Selikoff wrote to Judge Jack Weinstein and Justice Helen Freedman, presumably after the “regrettable” ex parte luncheon meeting, to hold forth with his views on the health effects of occupational and para-occupational exposure to asbestos.

1992-05-20.  Selikoff died several months before the U.S. Court of Appeals for the Third Circuit condemned the Selikoff-Motley conspiracy.[85]

2013.  Follow up of the national insulator cohort fails to support multiplicative interaction between smoking and asbestos for lung cancer outcomes in the absence of asbestosis.[86]


[1] Rachel Maines, Asbestos and Fire: Technological Tradeoffs and the Body at Risk 155 (2005) (“charming, courageous, and compassion medical professional with more charisma than credentials”).

[2] Jock McCulloch & Geoffrey Tweedale, Shooting the messenger: the vilification of Irving J. Selikoff,” 37 Internat’l J. Health Services 619 (2007); “Scientific Prestige, Reputation, Authority & The Creation of Scientific Dogmas” (Oct. 4, 2014); David Egilman, Geoffrey Tweedale, Jock McCulloch, William Kovarik, Barry Castleman, William Longo, Stephen Levin, and Susanna Rankin Bohme, “P.W.J. Bartrip’s Attack on Irving J. Selikoff,” 46 Am. J. Indus. Med. 151, 152 (2004) [Egilman (2004)].

[3] 84 Stat. 1590, et seq., 29 U.S.C. § 651, et seq.

[4]The Legacy of Irving Selikoff & Wicked Wikipedia” (Mar. 1, 2015). See also “Hagiography of Selikoff” (Sept. 26, 2015); “Historians Should Verify Not Vilify or Abilify – The Difficult Case of Irving Selikoff” (Jan. 4, 2014).

[5] See, e.g., Philip Landrigan, “Stephen Levin, MD, honored with the Collegium Ramazzini’s Irving J. Selikoff Memorial Award in 2009.”

[6] See Wikipedia, “Irving Selikoff” (last visited Dec. 4, 2018).

[7] Kings County Birth Certificate no. 4595 (Jan. 15, 1915). His family later adopted the surname Selikoff. Irving Selikoff’s social security records list his father as Abraham Selikoff and his mother as Tillie Katz.

[8] Abraham Selecoff World War II draft registration, serial no. U1750.

[9] Abraham Selecoff World War II draft registration, serial no. U1750.

[10] See “The Asbestos Menace,” The Asbestos Worker 9-11 (Sept. 1930).

[11] Alice Hamilton, “Industrial Poisons,” American Federationist (1936). This journal was “The Official Magazine of the American Federation of Labor.”

[12] Bronx marriage certificate no. 8246 (1936); Bronx marriage license no. 8652 (1936). Irving’s parents were listed as Abraham Selikoff and Tillie Katz. His residence was at 109 W. 112th Street. Lydia was listed as the daughter of Mendel Kapilian and Bessie Weller. Irving and Lydia were divorced sometime between 1939 and 1941. The marriage certificates stated Lydia to have been 21 years old. Her Social Security records (SSN 112-052-2143), however, gave her birth date as April 22, 1917, (making her 19), and subsequent marriage names of Quint and Teichner.

[13] This and other details of Selikoff’s medical education come from Peter Bartrip’s exposé. Although Bartrip’s research was attacked for its allegedly gratuitous attacks on Selikoff’s research prowess, Bartrip’s account of Selikoff’s medical education in Scotland, Australia, and the United States has gone largely unrebutted, and must for the present be accepted. Peter W.J. Bartrip, “Irving John Selikoff and the Strange Case of the Missing Medical Degrees,” 58 J. History Med. 8 (2003) [Bartrip 2003]; Peter Bartrip, “Around the World in Nine Years: A Medical Education Revisited,” 59 J. History of Med. 135 (2004). One group of plaintiffs’ expert witnesses took Bartrip to task for not disclosing that he had served as a defense expert witness, but none of the complainants disclosed their substantial testimonial adventures for the litigation industry! While making some interesting points, these critics of Bartrip did not really contest his historical work on Selikoff: “Bartrip’s critiques of Anderson’s College (AC) and Middlesex University School of Medicine (MSUM) may be accurate, but are beside the point.” David Egilman, Geoffrey Tweedale, Jock McCulloch, William Kovarik, Barry Castleman, William Longo, Stephen Levin, and Susanna Rankin Bohme, “P.W.J. Bartrip’s Attack on Irving J. Selikoff,” 46 Am. J. Indus. Med. 151, 152 (2004).

[14] Bartrip 2003, at 15 & n.44-51.

[15] Bartrip 2003, at 17 & n.54-55.

[16] Bartrip 2003 at 18.

[17] William J. Nicholson & Alvin S. Teirstein, “Remembering Irving J. Selikoff,”  61 Mt. Sinai J. Med. 500 (1994) [Nicholson & Teirstein]. This account seems doubtful; Selikoff would not have an M.D. degree until 1943, and then from a school that was about to lose its accreditation.

[18] See Stephen Rushmore, “Middlesex University School of Medicine,” 230 New Engl. J. Med. 217 (1944).

[19] Anthony Seaton, “The Strange Case of Irving Selikoff,” 60 Occup. Med. 53 (2010); 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) [cited as Bartrip].

[20] Bartrip 2003 at 22.

[21] Bartrip 2003 at 22.

[22] Bartrip 2003 at 21.

[23] New York County marriage license no. 3879 (Feb. 2, 1946). Celia had been married to Nathan Michaels in 1937. Manhattan Marriage License no. 21454 (1937).

[24] Nicholson & Teirstein.

[25] Manhattan Marriage License  21527 (1947).

[26] City Directory of Paterson, New Jersey at p. 218 (1949).

[27] Manhattan Telephone Directory (1949).

[28] George W. Conk, “Deadly Dust: Occupational Health and Safety as a Driving Force in Workers’ Compensation Law and the Development of Tort Doctrine,” 69 Rutgers L. Rev. 1140, 1154 & n. 136 (2017).

[29] Jon L. Gelman, “History of Asbestos and the Law” (Jan. 2, 2001). Carl Gelman was a life-long Paterson resident. His legal practice specialized in workers’ compensation, and he chaired state bar association’s workers’ compensation section for several years. His practice represented claimants from 1936, until his retirement in 1986. In the mid-1970s, with Karl Asch, Gelman’s firm sued asbestos suppliers to Raybestos Manhattan on behalf of multiple employees.Gelman died on February 24, 2009. “Obituary for Carl Gelman,” The Record/Herald News (Mar. 16, 2009); “163 Who Had Jobs at Raybestos Sue,” N.Y. Times (May 7, 1975). The suit for $326 million settled for $15.5 million.

[30] Barry I. Castleman, Asbestos: Medical and Legal Aspects at 142 (1984); Matt Mauney, “Unarco,” Mesothelioma Center (Nov. 2018). Of course, there were no data to support this claim in 1952. Selikoff was publically and positionally committed to his causal hypothesis as a conclusion well in advance of conducting any studies or having any supporting data.

[31] Irving J. Selikoff, E. Cuyler Hammond, and Jacob Churg, “The carcinogenicity of amosite asbestos,” 25 Arch. Envt’l Health 183 (1972). This 1972 publication was the first epidemiologic study on the carcinogenicity of amosite.

[32] David E. Lilienfeld, “The Silence: The Asbestos Industry and Early Occupational Cancer Research – A Case Study,” 81 Am. J. Pub. Health 791 (1991).

[33] Irving J. Selikoff, Edward H. Robitzek, and George G. Ornstein, “Treatment of pulmonary tuberculosis with hydrazine derivatives of isonicotinic acid,” 150 J. Am. Med. Ass’n 973 (1952).

[34] “TB Milestone,” Life (Mar. 3, 1952).

[35] Irving J. Selikoff, “Asbestos in Paterson, New Jersey and Tyler, Texas – A Tale of Two Cities,” Transcript of Lecture (Houston, Texas, Oct. 11, 1979).

[36] SeeIsoniazid for treating tuberculosis.”

[37] See “Medical Horizons,” Broadcasting * Telecasting at 14 (Nov. 21, 1955) (describing Selikoff as a plodding presenter). See alsoIrving Selikoff – Media Plodder to Media Zealot” (Sept. 9, 2014).

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

[39] Selikoff letter to Thomas Mancuso (Mar. 30, 1989).

[40] Herbert K. Abrams, “Cancer in Industry,” American Federationist (1955). Dr. Abrams’ article was republished in many union newsletters. See Herbert K. Abrams, “Cancer in Industry,” 69 The Painter & Decorator 15, 16 (Mar. 1955); see also Lester Breslow, LeMar Hoaglin, Gladys Rasmussen & Herbert K. Abrams, “Occupations and Cigarette Smoking as Factors in Lung Cancer,” 44 Am. J. Pub. Health. 171, 171 (1954).

[41] A. C. & S., Inc. v. Asner, 104 Md. App. 608, 633, 657 A.2d 379 (Md. Ct. Spec. App. 1995).

[42] Paul Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial 236-39 (1985). According to Brodeur’s account, Johns-Manville’s defense was clever by halves. By claiming that the company had no knowledge that asbestos could be harmful to applicators such as LeGrand, the company deprived itself of assumption-of-risk and contributory negligence defenses.  The company also set itself up to be brutally contradicted by internal documents and communications that showed an awareness of hazards to pipecoverers. By the time J-M understood that the question of responsibility required acknowledging potential hazards that were in the control of the contractors themselves (such as the use of proper respirators and the like), the company filed for bankruptcy.

[43] Greg Gordon, “Health studies drew little action,” Star Tribune (Nov. 9, 2003); Wondie Russell, “Memorandum re Frederick LeGrande v. J-M Products Corp,”(Nov. 3, 1982).

[44] The Freehold Transcript and The Monmouth Inquirer (Freehold, New Jersey) at 17 (Thurs., Oct. 22, 1959).

[45] Asbestos Worker (July 1957).

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

[47] 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).

[48] Arthur M. Langer, “Asbestos Studies in the Environmental Sciences Laboratory Mount Sinai School of Medicine 1965 – 1985: Investigations Reflecting State-of-the-Art; Contributions to the Understanding of Asbestos Medicine” (Unpublished MS, Nov. 7, 2008).

[49] Alvin S. Tierstein, A. Gottlieb, Mortimer E. Bader, Richard A. Bader & Irving Selikoff, “Pulmonary mechanics in asbestosis of the lungs,” 8 Clin. Res. 256 (1960); Mortimer E. Bader, Richard A. Bader & Irving Selikoff, “Pulmonary function in asbestosis of the lung; an alveolar-capillary block syndrome, 30 Am. J. Med. 235 (1961).

[50] Asbestos Worker (May 1961) (“The subject matter of Health Hazards was discussed and President Sickles reported on the possibility of an early meeting with people connected with the Medical Association for the purpose of running various tests on certain materials used by our membership in order to determine the extent of their contribution to lung cancer, silicosis, asbestosis, tuberculosis, etc.”).

[51] 15 The Asbestos Worker at 29 (Nov. 1961).

[52] Asbestos Worker (May 1962) (“President Sickles advised the Board as to a meeting which had been held with Vice President Rider and a Dr. Irving Selikoff, of the Paterson Clinic in connection with our issue on Health Hazards and the Committee on Health Hazards with the approval of the Board instructed President Sickles to continue his efforts in this direction.”)

[53] Asbestos Worker at 25 (Feb. 1963).

[54] 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).

[55] “Progress Report on Health Hazards,” 16 The Asbestos Worker 25 (Feb. 1963) (the examination were arranged by President Carl Sickles, Vice-President Hugh Mulligan and Vice-President George Rider of the Health Hazards Committee).

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

[57] Irving J. Selikoff, Jacob Churg, E. Cuyler Hammond, “The Occurrence of Asbestosis among Insulation Workers in the United States,” 132 Ann. N.Y. Acad. Sci. 139, 142 (1965) (“In later specimens so obtained, crocidolite has also been found. Moreover, materials used for ship insulation, while containing the same amounts of asbestos as above, began in 1934 to have significant amounts of amosite in addition to chrysotile, because of the lighter weight of the material.”); Harrington, “Chemical Studies of Asbestos,” 132 Ann. N.Y. Acad. Sci. 31, 41 (1965) (reporting the finding of chrysotile and crocidolite asbestos in equal proportions in specimens of 85% magnesia pipe-covering sections); N.W. Hendry, “The Geology, Occurrences, and Major Uses of Asbestos 132 Annals N.Y. Acad. Sci. 12, 19 (1965) (reporting that, in 1963, the U.S. used  22,000 tons of amosite in manufactured products, and 17,000 tons of crocidolite in acid-resistent filters, packings, insulations, and certain types of lagging. United States Department of Commerce statistics show that for the years 1957 to 1962, more crocidolite was used in the United States than was amosite. In 1962, the use of blue was twice as great as that for brown. 132 Ann. N.Y. Acad. Sci. at 753, Table 17 (1965); see also id. at 762, Table 23 (1965) (South African blue fiber imports exceeded brown fiber imports, starting about 1954). See alsoSelikoff and the Mystery of the Disappearing Amphiboles” (Dec. 10, 2010); James R. Millette, Steven Compton, and Christopher DePasquale, “Microscopical Analyses of Asbestos-Cement Pipe and Board,” 66 The Microscope 3 (2018) (reporting analyses of cement formulations with substantial crocidolite).

[58]  “Health Hazard Progress Notes,”16 The Asbestos Worker 13 (May 1966) (“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 Workman’s Compensation Board 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.”)

[59] Jonathan Samet, et al., eds., Institute of Medicine Review of Asbestos: Selected Cancers (2006); see also Richard Doll & Julian Peto, Asbestos: Effects on health of exposure to asbestos 8 (1985) (“In particular, there are no grounds for believing that gastrointestinal cancers in general are peculiarly likely to be caused by asbestos exposure.”).

[60]Selikoff and the Mystery of the Disappearing Testimony” (Dec. 3, 2010); see, e.g., 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); DeRienzo v. Passaic Fire Dept., reported in The News (Paterson, New Jersey) at 27 (Feb. 14, 1957) (Selikoff was a witness for the claimant); Bradshaw v. Twin City Insulation Co. Ltd., Indus. Ct. Indiana, Claim No. O.D.1454 (Oct. 14, 1966); Bradshaw v. Johns-Manville Sales Corp., Civ. Action No. 29433, E. D. Mich. S. Div. (July 6, 1967); Bambrick v. Asten Hill Mfg. Co., Pa. Cmwlth. Ct. 664 (1972); Tomplait v. Combustion Engineering Inc.., E. D. Tex. Civ. Action No. 5402 (March 4, 1968); Babcock & Wilcox, Inc. v. Steiner, 258 Md. 468, 471, 265 A.2d 871 (1970) (affirming workman compensation award for asbestosis); 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); Culp Industrial Insulation v. Commonwealth of Pennsylvania Workmen’s Compensation Appeal Board, 57 Pa. Commonwealth Ct. 599, 601-602 (1981).

[61] Andrew Haas, Comments from the General President, 18 Asbestos Worker (Nov. 1972); see also 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).

[62] Thomas O’Toole, “U.S. Warned of Asbestos Peril,” Wash. Post. A4 (Dec. 4, 1968).

[63]The United States Government’s Role in the Asbestos Mess” (Jan. 31, 2012). See also Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011); Capt. H.M. Robbins & W.T. Marr, “Asbestosis,” Safety Review (Oct. 1962); See also Walter Olson, “Asbestos awareness pre-Selikoff,” (Oct. 19, 2007).

[64] “Green Sheet,” The Asbestos Worker (May 1969).

[65] See Charles E. Rossiter, “Initial repeatability trials of the UICC/Cincinnati classification of the radiographic appearances of pneumoconioses,” 29 Brit. J. Indus. Med. 407 (1972) (among physician readers of chest radiographs, Selikoff was at the extreme of least likely to call a film normal (less than half the average of all readers), and the most likely to interpret films to show excess profusion of small irregular linear densities). SeeSelikoff and the Mystery of the Disappearing Asbestosis” (Dec. 6, 2010). The unions, of course, interested in maximizing compensation for their members loved Selikoff’s over-reading of chest films. Selikoff’s colleagues (Ruth Lilis) routinely teased Selikoff about not being able to read chest radiographs. Selikoff was rumored to have taken and failed the NIOSH B-Reader examination, a rumor which needs to be resolved by a FOIA request.

[66] United States v. Reserve Mining Co. 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); Minnesota v. Reserve Mining Co., 420 U.S. 1000, 95 S.Ct. 1441, 43 L.Ed.2d 758 (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).

[67] Robert V. Bartlett, The Reserve Mining Controversy: Science, Technology, and Environmental Quality 140-41 (1980) (describing Selikoff’s testimony).

[68] 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). These authors ignored other reasons Selikoff later stood down from the witness chair: his self-serving insistence upon the importance of his own research detracted from the work of previous authors (e.g., Sir Richard Doll, J. Christopher Wagner, et al.) in litigation of personal injury claims of asbestos health effects. Plaintiffs’ counsel needed to push back the dates of first knowledge of asbestos health effects well before Selikoff’s first insulator study in 1964. The litigation industry needed Selikoff to continue to generate publicity, and to stop testifying. Selikoff surely must have had some concerns about how further testifying would eventually lead to questions about his credentials. Furthermore, Selikoff had an entire generation of younger, less politically visible colleagues at Mt. Sinai to fill the ranks of expert witnesses for the litigation industry (Miller, Levin, Nicholson, Lillis, Daum, Anderson, Frank, et al.).

[69] Obituary for Abraham Selecoff, The Miami Herald (May 22, 1974).

[70] Irving J. Selikoff, “Epidemiology of gastrointestinal cancer,” 9 Envt’l Health Persp. 299 (1974) (arguing for causal conclusion between asbestos and all gastrointestinal cancers).

[71] Nicholas Wade, “The Science and Politics of a Disinvitation,” 201 Science 892 (1978) (commenting that the NCI was negligent in failing to evaluate the ad hominem opinions given to it by Selikoff).

[72] SeeThe Selikoff – Castleman Conspiracy” (Mar. 13, 2011); “What Happens When Historians Have Bad Memories” (Mar. 15, 2014); “Castleman-Selikoff – Can Their Civil Conspiracy Survive Death?” (Dec. 3, 2018). In 2014, Castleman testified that he has no recollection of the memorandum, but he did not deny that had written it.

[73] B.D. Colen, “Knowing When the Chemistry is Right,” Newsday (Suffolk Edition) (Melville, New York) at 85 (Tue., July 29, 1980).

[74] See Richard Doll & Richard Peto, “The causes of cancer: quantitative estimates of avoidable risks of cancer in the United States today,” 66 J. Nat’l Cancer Inst. 1191 (1981).

[75] Irving Selikoff & William Nicholson, “Mortality Experience of 1,918 Employees of the Electric Boat Company, Groton, Connecticut January 1, 1967 – June 30, 1978” (Jan. 27, 1984).

[76]The Mt. Sinai Catechism” (June 5, 2013).

[77]Irving Selikoff and the Right to Peaceful Dissembling” (June 5, 2013).

[78] Leo H. Caney, “Noted Cancer Researcher Altering Role,” N.Y. Times (Mar. 10, 1985).

[79] Celia Selikoff Social Security Records, SSN 064-12-6401. Celia was born on Sept. 12, 1908.

[80] A New York state trial court initially sided with Selikoff over this subpoena battle. In re R.J. Reynolds Tobacco Co., 136 Misc.2d 282, 518 N.Y.S.2d 729 (N.Y. Sup. Ct., N.Y. Cty. 1987). The federal court subsequently required Selikoff to honor another litigant’s subpoena. In re American Tobacco Co., 866 F.2d 552 (2d Cir. 1989).

[81] William J. Nicholson & Irving J. Selikoff, “Mortality experience of asbestos factory workers; effect of differing intensities of asbestos exposure”: unpublished manuscript produced in litigation (1988) (“[O]ther asbestos varieties (amosite, crocidolite, anthophyllite) were also used for some products. In general, chrysotile was used for textiles, roofing materials, asbestos cements, brake and friction products, fillers for plastics, etc.; chrysotile with or without amosite for insulation materials; chrysotile and crocidolite for a variety of asbestos cement products.”).

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

[83] Jack B. Weinstein, “Learning, Speaking, and Acting: What Are the Limits for Judges?” 77 Judicature 322, 326 (May-June 1994) (emphasis added). Judge Weinstein’s false statement that Selikoff “had never testified” not only reflects an incredible and uncharacteristic naiveté by a distinguished evidence law scholar, but the false statement was in a journal, Judicature, which was widely circulated to state and federal judges. The source of the lie appears to have been Selikoff himself in the ethically dodgy ex parte meeting with judges actively presiding over asbestos personal injury cases.

[84] Jack B. Weinstein, “Learning, Speaking, and Acting: What Are the Limits for Judges?” 77 Judicature 322, 326 (May-June 1994). The point apparently weighed on Judge Weinstein’s conscience. He repeated his mea culpa almost verbatim, along with the false statement about Selikoff’s never having testified, in a law review article in 1994, and then incorporated the misrepresentation into a full-length book. See Jack B. Weinstein, “Limits on Judges’ Learning, Speaking and Acting – Part I- Tentative First Thoughts: How May Judges Learn?” 36 Ariz. L. Rev. 539, 560 (1994) (“He [Selikoff] had never testified and would   never testify.”); Jack B. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and other Multi-Party Devices 117 (1995) (“A court should not coerce independent eminent scientists, such as the late Dr. Irving Selikoff, to testify if, like he, they prefer to publish their results only in scientific journals.”).

[85] Social Security records for Irving John Selikoff, social sec. no. 085-16-1882. See Bruce Lambert, “Irving J. Selikoff Is Dead at 77; TB Researcher Fought Asbestos,” N.Y. Times (May 22, 1992).

[86] Steve Markowitz, Stephen Levin, Albert Miller, and Alfredo Morabia, “Asbestos, Asbestosis, Smoking and Lung Cancer: New Findings from the North American Insulator Cohort,” Am. J. Respir. & Critical Care Med. (2013)).

Reference Manual – Desiderata for 4th Edition – Part I – Signature Diseases

January 30th, 2023

The fourth edition of the Reference Manual on Scientific Evidence is by all accounts under way. Each of the first three editions represented an improvement over previous editions, but the last edition continued to have substantive problems. The bar, the judiciary, and the scientific community hopefully await an improved fourth edition. Although I have posted previously about issues in the third edition, I am updating and adding to what I have written.[1]  There were only a few reviews and acknowledgments of the third edition.[2] The editorial staff provided little to no opportunity for comments in advance of the third edition, and to date, there has been no call for public comment about the pending fourth edition. I hope there will be more opportunity for the legal and scientific community to comment in the production of the fourth edition.

There are several issues raised by the third edition’s treatment of specific causation, which I hope will be improved in the fourth edition. One such issue is the epidemiology chapter’s brief discussion of so-called signature diseases. The chapter takes the curious position that epidemiology has nothing to say about individual or specific causation, a position I will discuss in later posts. The chapter, however, carves out a limited exception to its (questionable) edict that epidemiology does not concern itself with specific causation.  The chapter tells us, uncontroversially, that some diseases do not occur without exposure to a specific chemical or substance. In my view, the authors of this chapter then go astray in telling us that “[a]bestosis is a signature disease for asbestos, and vaginal adenocarcinoma (in young adult women) is a signature disease for in utero DES exposure.”

Now, by definition, only asbestos can cause asbestosis, but asbestosis presents clinically in a way that is indistinguishable in many cases from idiopathic pulmonary fibrosis and other interstitial fibrotic diseases of the lungs. Over the years, the diagnostic criteria for asbestosis have changed, but these criteria have always had a specificity and sensitivity less than 100%. Saying that a case of asbestosis must have been caused by asbestos begs the clinical question whether the case really is asbestosis.

The chapter’s characterization of vaginal adenocarcinoma as a signature disease of in utero DES exposure is also not correct.  Although this cancer in young women is extremely rare, there is a baseline risk that allows the calculation of relative risks for young women exposed in utero. In older women, the relative risks are lower because the baseline risks are higher, and because the effect of DES is diminished for older onset cases.[3] The disease was known before the use of DES in pregnant women began after World War II.[4]

For support of their discussion of “signal diseases,” the authors of the epidemiology chapter chose, remarkably, to cite an article that was over 25 years old (now over 35 years old) at the time the third edition was published.[5] The referenced passage asks us to:

“Consider tort claims for what have come to be called signature disease. These are diseases characteristically caused by only a few substances – such as the vaginal adenocarcinoma usually associated with exposure to DES in utero – and mesothelioma, a cancer of the pleura caused almost exclusively by exposure to asbestos fibers in the air.”[6]

Well, “usually associated” does equal signature disease.[7] The relative risks for smoking and some kinds of lung cancer are higher than for DES in utero and clear cell vaginal adenocarcinoma, but no one calls lung cancer a signature disease of smoking. (Admittedly, smoking is the major cause and perhaps the most preventable cause of lung cancer in Western countries.)

The third edition’s reference to a source that describes mesothelioma as “caused almost exclusively by exposure to asbestos fibers” is also out of date.[8] Recognizing that casual comments and citations can influence credulous judges, the authors of the fourth edition should strive for greater accuracy in their discussions of such scientific issues. It may be time to find new examples of signature disease.


[1]Reference Manual on Scientific Evidence v4.0” (Feb. 28, 2021); “Reference Manual on Scientific Evidence – 3rd Edition is Past Its Expiry” (Oct. 17, 2021). 

[2] See, e.g., Adam Dutkiewicz, “Book Review: Reference Manual on Scientific Evidence, Third Edition,” 28 Thomas M. Cooley L. Rev. 343 (2011); John A. Budny, “Book Review: Reference Manual on Scientific Evidence, Third Edition,” 31 Internat’l J. Toxicol. 95 (2012); James F. Rogers, Jim Shelson, and Jessalyn H. Zeigler, “Changes in the Reference Manual on Scientific Evidence (Third Edition),” Internat’l Ass’n Def. Csl. Drug, Device & Biotech. Comm. Newsltr. (June 2012). See Schachtman “New Reference Manual’s Uneven Treatment of Conflicts of Interest” (Oct. 12, 2011).

[3] Janneke Verloop, Flora E. van Leeuwen, Theo J. M. Helmerhorst, Hester H. van Boven, and Matti A. Rookus, “Cancer risk in DES daughters,” 21 Cancer Causes & Control 999 (2010).

[4] See “Risk Factors for Vaginal Cancer,” American Cancer Soc’y website (last visited Jan. 29, 2023).

[5] Kenneth S. Abraham & Richard A. Merrill, Scientific Uncertainty in the Courts, 2 Issues Sci. & Tech. 93, 101 (Winter 1986).

[6] Id.

[7] See, e.g., Kadir Güzin, Semra Kayataş Eserm, Ayşe Yiğit, and Ebru Zemheri, “Primary clear cell carcinoma of the vagina that is not related to in utero diethylstilbestrol use,” 3 Gynecol. Surg. 281 (2006).

[8] Michele Carbone, Harvey I. Pass, Guntulu Ak, H. Richard Alexander Jr., Paul Baas, Francine Baumann, Andrew M. Blakely, Raphael Bueno, Aleksandra Bzura, Giuseppe Cardillo, Jane E. Churpek, Irma Dianzani, Assunta De Rienzo, Mitsuru Emi, Salih Emri, Emanuela Felley-Bosco, Dean A. Fennell, Raja M. Flores, Federica Grosso, Nicholas K. Hayward, Mary Hesdorffer, Chuong D. Hoang, Peter A. Johansson, Hedy L. Kindler, Muaiad Kittaneh, Thomas Krausz, Aaron Mansfield, Muzaffer Metintas, Michael Minaai, Luciano Mutti, Maartje Nielsen, Kenneth O’Byrne, Isabelle Opitz, Sandra Pastorino, Francesca Pentimalli, Marc de Perrot, Antonia Pritchard, Robert Taylor Ripley, Bruce Robinson, and Valerie Rusch, “Medical and Surgical Care of Patients With Mesothelioma and Their Relatives Carrying Germline BAP1 Mutations,” 17 J. Thoracic Oncol. 873 (2022). See also Mitchell Cheung, Yuwaraj Kadariya, Eleonora Sementino, Michael J. Hall, Ilaria Cozzi, Valeria Ascoli, Jill A. Ohar, and Joseph R. Testa, “Novel LRRK2 mutations and other rare, non-BAP1-related candidate tumor predisposition gene variants in high-risk cancer families with mesothelioma and other tumors,” 30 Human Molecular Genetics 1750 (2021); Thomas Wiesner, Isabella Fried, Peter Ulz, Elvira Stacher, Helmut Popper, Rajmohan Murali, Heinz Kutzner, Sigurd Lax, Freya Smolle-Jüttner, Jochen B. Geigl, and Michael R. Speicher, “Toward an Improved Definition of the Tumor Spectrum Associated With BAP1 Germline Mutations,” 30 J. Clin. Oncol. e337 (2012); Alexandra M. Haugh, BA1; Ching-Ni Njauw, MS2,3; Jeffrey A. Bubley, et al., “Genotypic and Phenotypic Features of BAP1 Cancer Syndrome: A Report of 8 New Families and Review of Cases in the Literature,” 153 J.Am. Med. Ass’n Dermatol. 999 (2017).

Finding Big Blue

July 26th, 2021

The Washington Supreme Court recently upheld an $81.5 million verdict, against GPC and NAPA, in an asbestos peritoneal mesothelioma case. The award included $30 million for loss of consortium. Coogan v. Borg-Warner Morse Tec Inc., 12 Wash. App. 2d 1021, 2020 WL 824192 (2020), rev’d in part, No. 98296-1, 2021 Wash. LEXIS 383 *, 2021 WL 2835358 (Wash. July 8, 2021).[1] The main points of contention on appeal were plaintiffs’ counsel’s misconduct and the excessiveness of the verdict, which was for only compensatory damages. Twelve defendants settled before trial for a total of $4.4 million. Of the settling defendants, Defendant Manville paid $1.5 million.

Plaintiffs’ proofs against GPC and NAPA were for chrysotile exposure from their brake and clutch parts used by Coogan. Not surprisingly, given that Coogan died of peritoneal mesothelioma, there was a strong suspicion of crocidolite exposure from Manville’s transite product over the course of two years.  Apparently, GPC and NAPA failed to show that Coogan was exposed to crocidolite, even though the workplace was small and other workers had succumbed to asbestos disease.

While the court’s opinion on misconduct and the excessiveness of the verdict are of interest, the most interesting part of the story is what was not told. It is hard to imagine that defense counsel did not try hard to establish the workplace exposures to Manville’s transite. What is not clear is why they failed. Obviously, Manville took the threat seriously enough to pay a significant sum to settle the case before trial. Why could GPC and NAPA not prove at trial what Manville knew?  Were GPC and NAPA the victims of budgetary pressures or limited resources, or were they misled or stonewalled by plaintiffs’ counsel or co-workers?

Given the propensity for crocidolite, such as was used in Manville’s transite, to cause mesothelioma, and especially peritoneal mesothelioma, the trial defendants certainly had an adequate motivation to investigate and to document the crocidolite exposure. 

A recent, large, long-term cohort study in Denmark showed that vehicle mechanics, who use brake linings and clutch parts, as did Coogan, have no increased risk of mesothelioma. Compared with other workers, automobile mechanics actually had a lower than expect risk of mesothelioma or pleural cancer, with an age-adjusted hazard ratio of HR=0.74 (95% CI 0.55 to 0.99)), based upon 47 cases.[2]

The Danish study is in accord with previous studies and meta-analyses,[3] and stands in stark contrast with the epidemiology of mesothelioma among men and women exposed to crocidolite. By way of example, in a cohort of British workers who assembled gas masks during World War II, close to 9% of all deaths were due to mesothelioma.[4] In a published cohort study of workers at Hollingsworth & Vose, a company that made the filters for the Kent cigarette, close to 18 percent of all deaths were due to mesothelioma.[5]

Dr. Irving Selikoff and his colleagues worked assiduously to obscure the vast potency difference between chrysotile and crocidolite, by arguing falsely that crocidolite was not used in the United States,[6] and by suppressing their own research into disease at the Johns-Manville plant that manufactured transite and other products. What is interesting about the Coogan case is what has not been reported. Crocidolite is clearly the most potent cause of mesothelioma.[7] Even if chrysotile were to have posed a risk to someone such as Mr. Coogan, crocidolite exposure, even for just two years, likely represented multiple orders of magnitude greater risk for peritoneal mesothelioma. Without evidence that Coogan was exposed to crocidolite from Mansville’s transite, the manufacturers of brake and clutch parts were unable to seek an apportionment between exposures from their chrysotile and Mansville’s crocidolite. Trying the so-called chrysotile defense is more difficult without being able to show substantial amphibole asbestos exposure.  The bar, both plaintiffs’ and defendants’, could learn a great deal from what efforts were made to establish the crocidolite exposure, why they were unsuccessful, and how the efforts might go better in the future.


[1] Kirk Hartley kindly called my attention to this interesting case.

[2] Reimar Wernich Thomsen, Anders Hammerich Riis, Esben Meulengracht Flachs, David H Garabrant, Jens Peter Ellekilde Bonde, and Henrik Toft Sørensen, “Risk of asbestosis, mesothelioma, other lung disease or death among motor vehicle mechanics: a 45-year Danish cohort study,” Thorax (July 8, 2021), online ahead of print at <doi: 10.1136/thoraxjnl-2020-215041>.

[3] David H. Garabrant, Dominik D. Alexander, Paula E. Miller, Jon P. Fryzek, Paolo Boffetta, M. Jane Teta, Patrick A. Hessel, Valerie A. Craven, Michael A. Kelsh, and Michael Goodman, “Mesothelioma among Motor Vehicle Mechanics: An Updated Review and Meta-analysis,” 60 Ann. Occup. Hyg. 8 (2016); Michael Goodman, M. Jane Teta, Patrick A. Hessel, David H. Garabrant, Valerie A. Craven, Carolyn G. Scrafford, and Michael A. Kelsh, “Mesothelioma and lung cancer among motor vehicle mechanics: a meta-analysis,” 48 Ann. Occup. Hyg. 309 (2004).

[4] See J. Corbett McDonald, J. M. Harris, and Geoffry Berry, “Sixty years on: the price of assembling military gas masks in 1940,” 63 Occup. & Envt’l Med. 852 (2006). 

[5] James A. Talcott, Wendy A. Thurber, Arlene F. Kantor, Edward A. Gaensler, Jane F. Danahy, Karen H. Antman, and Frederick P. Li, “Asbestos-Associated Diseases in a Cohort of Cigarette-Filter Workers,” 321 New Engl. J. Med. 1220 (1989).

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

[7] See, e.g., 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); 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); 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).

Avoiding Apportionment in Favor of Joint & Several Liabilities

July 24th, 2021

Back in 2008, Professor Michael Green wrote an interesting paper on apportionment in asbestos litigation. The paper sets out an argument that apportionment is a 20th century reform of American tort law, from the common law’s “all or nothing” approach.[1] I respectfully disagree with Professor Green’s assessment. When we consider the procedural aversion to joinder of claims, and the limited range of “joint and several” liability at common law, there was often a much greater role for apportionment in the common law of tort.[2]

Although there have been statutory reforms in some states, which have facilitated apportionments of fault and causation, tort law in the 20th century saw a steady march away from causal apportionments. This process of transformation raises interesting historical and theoretical questions. The hostility to apportionment was reflected in several doctrinal shifts. First, the burden of proof shifted from the plaintiff, who originally had to show each defendant’s share, to the defendants, who had to show their individual shares in order to avoid joint and several liability. Second, the common law’s procedural hurdles of joinder were removed, which left courts free to indulge presumptions of joint and several liability simply because the plaintiff’s harm was one unified harm, whether divisible or not. Third, the common law’s requirement of a “reasonable basis” for an estimate of apportioned share mutated into a requirement of “reasonable certainty,” with no particular clarity for how apodictic the certainty had to be to escape joint and several liability. Fourth, injuries readily seen as divisible in practical ways became “indivisible” in the result-oriented jurisprudence of the later 20th century. And fifth, judicial concern over the unfairness of imposing catastrophic damages upon a single defendant (with other potential defendants unavailable due to bankruptcy, immunity, or plaintiff’s preference) gave way to concer over plaintiffs’ not recovering fulsome damages.

Defendants in the asbestos litigation played a role in this march toward joint and several recovery, with simplistic pro rata shares when contribution was available. The economics of cases with multiple defendants led to multiple representations. Apportionment raised the prospect of invidious distinctions between and among defendants, with some defendants having minuscule causal shares, with others having large shares. Such distinctions posed serious conflicts of interest, which were, and still are, virtually impossible to manage. In the context of mesothelioma cases, for instance, many defendants prefer pro rata contribution rather than causal apportionment because the former guarantees greater offsets in cases taken to verdict. Given the huge variability in asbestos fiber type potency for causing mesothelioma, defendants that had products with some amphibole asbestos had to worry that defendants with chrysotile-only products would avoid liability altogether, or have liability for fractional shares of a single percentage point.

Of course, plaintiffs have resisted apportionments of all kinds, whether between and among joint tortfeasors, or between their conduct and the tortfeasors’, at every turn. Historically, the doctrine of joint and several liability der ives from principles of mutual agency and imputed liability. We can see examples of such liability resulting from civ il conspiracies, torts of partnerships, and true concert of action among tortfeasors.[3]

Entire liability , on the other hand , results from liberal procedural rules of joinder and an ind iv isible injury. If concurrent or successive torts cause a single harm, and the trier of fact cannot reasonably determine what proportion each tortfeasor contributed , then each tortfeasor is liable for the whole harm , even though each tortfeasor’s act alone might have been insuffi cient to cause the entire harm.[4] Although situations giving rise to entire liability may be totally lacking any basis for mutual agency or imputed liability, these situations may lead to a joint and several judgments against multiple tortfeasors. Entire liability, and its procedural consequences that resemble historical joint and several liability, do not apply to concurrent or successive tortfeasors whose acts (or products) cause distinct injuries or cause an injury that can be reasonably apportioned.

Restatement Approach

The American Law Institute’s Restatement (Second) of Torts [Restatement] restated the rules for guiding the applicability for apportionment in a section entitled “Apportionment of Harm to Causes”

(1) Damages for harm are to be apportioned among two or more causes where

(a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two or more causes.

Restatement § 433A. Comment b to Section 433A circuitously and vacuously defines “distinct harms” as those “results which, by their nature, are more capable of apportionment.” The comment provides a hypothetical case and suggested resolution, which are, however, are 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 was very much analogous to the school district asbestos property damage class action, in which some plaintiffs’ counsel sought to hold all defendants jointly and severally liable. Although all the defendants may have contributed to the overall condition of a particular building, the cost of removing or containing each asbestos product can be attributed to the producer of that product. Each defendant’s product may be in a different part of a building, and represent a different percentage of the total amount of friable asbestos in the building. Some asbestos products might not be friable at all, and removal would be unnecessary, counterproductive, and even harmful. Each product posed unique problems for removal or containment, the cost of which could be determined independently of the costs for dealing with the other products in the building.

The case of single but divisible harm is relatively straightforward under the Restatement’s apportionment approach. Apportionment is permitted for such a harm when “there is a reasonable basis for determining the contribution of each cause.”[5]

The Restatement (Second) gave several examples of joint torts that can be apportioned by cause. Instructive for the asbestos property damage and similar environmental cases, the Restatement’s following suggestion was of particular interest:

“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.”[6]

Although any actual apportionment, upon which reasonable people can disagree, must be made by the trier of fact, whether the plaintiff’s harm is apportionable is a question for the court.[7]

Judicial Applications of Apportionment Principles

Some of the earliest cases apportioning property damages involved the worrying and killing of sheep by dogs belonging to two or more persons. Many of these early cases focused on the propriety of the joinder of the dog owners and the resulting 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.”[8] 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.[9] The difficulty in estimating the separate injury done by each dog does not permit imposing liability for the entire damage.[10] In Adams v. Hall,[11] the court specifically rejected the plaintiff’s argument that the damage done to his property, his herd of sheep, was “entire.” Because the damage done by each defendant’s dog was separate, and the defendants were misjoined under the procedural rules then in effect.[12]

Several of the common law courts addressed the appropriateness of apportionment, either pro rata, or otherwise. In an 1838 case, Buddington v. Shearer,[13] 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.

In the absence of a statute, the rule requiring apportionment in dog & sheep cases remains valid.[14] In one 1920 case, the appellate court, anticipating the scientific basis for different pathogenic potencies for different varieties of asbestos, noted that the relative size and ferocity of each owner’s dog was a sufficient basis to permit the jury to apportion damages.[15]

The vitality and continuing validity of the apportionments made for separate harms (in dog and sheep cases) is clearly reflected in the Restatement (Second) and its illustrations:

“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.”[16]

Based upon these facts, the second Restatement would hold A liable for the value of six of the sheep, and B liable for four.[17] 

The destruction of a field or its crops presents a case of harm, which courts have often treated as single but divisible. In an early Kansas case, 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.[18] Reasoning in a similar manner, the New York Court of Appeals, in 1907, addressed a case brought by a farmer who sued two defendants, each owner of cattle, which had trespassed upon his land.[19] 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.[20] 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 stressed the reasonable divisibility of damages and the appropriateness of apportioning damages accordingly.[21]

Cases involving the flooding of land have provided fertile soil for judicial consideration of apportionment. The 1952 California case of Griffith v. Kerrigan is typical.[22] In Griffith, 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.  The trial court entered judgment for the plaintiff against the remaining defendant for only the harm caused by that defendant. Plaintiff appealed, and claimed that each defendant was the proximate cause of the entire harm, and therefore, he was entitled to a judgment for the entire amount of damages proved at trial.[23]

Relying upon first 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.” The estimates of relative percentages of water from all possible sources were a sufficient evidentiary basis for making a reasonable apportionment of the damages.[24]

The defendants in Griffith cross-appealed, arguing 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 the burden of proving each defendant’s causal role. The California appellate count expressly rejected this contention. The expert witness’s estimate was a sufficient basis for the apportionment.[25]

The holdings in Griffith are based upon well-established precedents and intuitive principles of justice. In language that resonates for many mass-tort situations, such as multi-defendant asbestos litigation, 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… .”[26]

In an 1879 case, Sellick v. Hall, the court held that parties that independently damaged plaintiff’s property by flooding could not be found to be joint tortfeasors.[27] Each party can be liable only for that portion of the harm, which he caused. Although apportionment might be difficult in some cases, the court noted that juries are often entrusted with difficult factual judgments. The plaintiff should not, therefore, be denied any recovery; nor should one defendant be “loaded with damages to which he is not legally liable, simply  because the exact ascertainment of the proper amount is a matter of practical difficulty.”[28] Any hardship to the plaintiff in not being able to assert joint and several liability is mitigated by being relieved of the requirement to prove the precise damage inflicted by each defendant.[29] The common law’s foundational principle is clear: a reasonable basis for apportioning a single harm among multiple causes is sufficient to support an apportionment of damages, without fussing over “exactitude.”[30]

Air and Water Pollution Cases

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. In Oakwood Homeowners Assoc. v. Maration Oil Co., 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.”[31]

In Sam Finley, Inc. v. Waddell, the Virginia Supreme Court of Appeals held that the trial court had failed to require the plaintiff , who had prevailed at trial, to produce evidence apportioning the damage between the two defendants.[32] In that case, the plaintiffs had sued the operator of a quarry and the operator of a bituminous concrete plant alleging each had contributed to the clouds of filth which had rendered the plaintiffs’ land unfit for grazing. The court held that plaintiffs were barred from a recovery without proof of the apportionment of the damage caused by the two defendants.

In that case, the plaintiffs had sued the operator of a quarry and the operator of a bituminous concrete plant alleging each had contributed to the clouds of filth which had rendered the plaintiffs’ land unfit for grazing. The court held that plaintiffs were barred from a recovery without proof of the apportionment of the damage caused by the two defendants, absent proof of privity or concert of action:

“[W]here there are several concurrent negligent causes, the effects of which are separable, due to independent authors, neither being sufficient to produce the entire loss, then each of the several parties concerned is liable only for the injuries due to his negligence.”[33]

In Maas v. Perkins, 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.[34] Plaintiffs would not be relieved of their burden of showing 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.[35] Courts have consistently viewed the rule of apportionment and several liability as a rule of fairness, and have thus 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.,[36] the West Virginia Supreme Court 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.”[37]

In City of Mansfield v. Brister, the plaintiff, a riparian proprietor, sued the city for damage to his health caused by the pollution of Ritter’s Run.[38] 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 reversed, in a thoughtful and lengthy opinion, in which it considered and discussed the then 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 tort-feasor should be liable for act of others with whom he is not acting in concert.”[39]

As noted above, the Restatement (Second) of Torts contains a discussion of apportionment consistent with this discussion. One illustration contained in the comments is drawn from the pollution cases and well illustrates the point:

“Oil is negligently discharged from two factories, owned by A and B, onto the surface of a stream. As a result C, a lower riparian owner, is deprived of the use of the water for his own industrial purposes. There is evidence that 70 per cent of the oil has come from A’s factory, and 30 per cent from B’s. On the basis of this evidence, A may be held liable for 70 per cent of C’s damages, and B liable for 30 per cent.”[40]

Shifting the Burden of Proof

Some jurisdictions have shifted the burden of going forward on the issue of apportionment. In a 1952 case, Landers v. East Texas Salt water Disposal Co.,[41] the independent operators of two separate pipelines were alleged to have discharged large quantities of salt water into plaintiff’s lake when the two pipelines broke on or about the same day. The court held that plaintiff could recover despite his inability to allocate specific damage to one or the other tortfeasor:

“Where the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages.”[42]

The actual language of Landers is somewhat difficult to reconcile with the manner in which the Landers rule has been applied. Landers was decided in an era without liberal rules of joinder, and so the court apparently conceived it necessary to deem the defendants joint tortfeasors in order to join the defendants in a single action.

In what seems rather result-oriented jurisprudence, courts which have had occasion to apply Landers under the modern rules of joinder have largely cited the Landers rule as shifting the burden of going forward on the question of apportionment. And then, to add insult to injury to the common law, courts after Landers have conflated the burden of going forward with the burden of proof:

“Where several defendants are shown to have each caused some harm, the burden of proof (or burden of going forward) shifts to each defendant to show what portion of the harm he caused. If the defendants are unable to show any reasonable basis for division, they are jointly and severally liable for the total damages.”[43]

This trend toward shifting the burden of proof of apportionment can be seen in an air pollution case,[44] Michie v. Great Lakes Steel, where the court considered whether a plaintiff, alleging damages of $11,000 caused by the air pollution of three corporate defendants, would be deemed to have alleged damages of $11,000 against each for purposes of determining whether the jurisdictional amount in controversy for diversity jurisdiction had been met. Citing Landers, the court stated the rule of apportionment as follows:

“Where the injury itself is indivisible, the judge or jury must determine whether or not it is practicable to apportion the harm among the tortfeasors. If not, the entire liability may be imposed upon one (or several) tortfeasors.

* * * *

The net effect of Michigan’s new rule is to shift the burden of proof as to which one was responsible and to what degree from the injured party to the wrongdoers.”[45]

Some courts, following Landers, have found reasonable bases for apportioning entire damages.[46] The judicial embrace of joint and several liability, with burden shifting, and increasing the burden, for apportionment has led to great creativity in avoiding apportionments. For pollution cases, what might be a rough-and-ready practical basis for apportionment, courts have found confounding factors of unknown rates of discharge, for unknown times, with unknown composition, and in unknown concentrations. There can be a huge gap between the sorts of “reasonable estimates” that were found adequate at common law and the “reasonable certainties” that courts increasingly demanded.


[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]Common Law Causal Apportionment – Each Dog Had His Day” (Sept. 27, 2014).

[3] See William Lloyd Keeton, ed.,  Prosser and Keeton on the Law of Torts § 46 (1984).

[4] Stuart Speiser, Charles Krause and Alfred Gans, The American Law of Torts § 3.7, at 394 (1983 & Supp. 1984); Prosser, supra, at § 47, at 328.

[5] Restatement § 433A(1)(b), at comment d.

[6] Id.; see also S. Speiser, supra at § 3.12 & note 88 (collecting cases on joint flooding and polluting).

[7] Restatement § 434(1)(2).

[8] Russell v. Tomlinson & Hawkins, 2 Conn. 206 (1817).

[9] Id. (“[N]o 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 Steinburgh 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.

[10] Van Steinburgh v. Tobias, 17 Wend. 562, 563 (N.Y. 1837).

[11] Adams v. Hall, 2 Vt. 9 (1829),

[12] Id. at 10, 11.

[13] 37 Mass. (20 Pick.) 477, 479-80 (1838).

[14] 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 sheep the defendant’s dog killed, 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).

[15] 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).

[16] Restatement (Second) of Torts § 433A, illustration 3.

[17] Id.

[18] Powers v. Kindt, 13 Kan. 74, 83 (1874).

[19] Wood v. Snider, 187 N.Y. 28, 36, 79 N.E. 858 (1907).

[20] 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).

[21] See, e.g., 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).

[22] Griffith v. Kerrigan, 109 Cal. App. 2d 637, 241 P.2d 296, Cal. Rptr. (1952).

[23] Id. at 638.

[24] Id. at 639.

[25] Id. at 640.

[26] 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). See also Boulger v. Northern Pacific RR, 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).

[27] Sellick v. Hall, 47 Conn. 260, 273 (1879).

[28] Id. at 274.

[29] See William  Tackaberry Co., supra,154 Iowa at 377; Griffith v. Kerrigan, 109 Cal. App. 2d at 640.

[30] 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; holding each party responsible only for that portion of the flood, which damages 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).

[31] Oakwood Homeowners Ass’n v. Maration Oil Co., 104 Mich. App. 689, 305 N.W.2d 567, 569 (1981),    

[32] Sam Finley, Inc. v. Waddell, 207 Va. 602, 151 S.E. 347 (1966).

[33] Sam Finley, Inc., 151 S.E.2d at 352. The decision in Sam Finley, Inc. was a reaffirmation of the rule of Panther Coal Co. v. Looney, 185 Va. 758, 48 S.E.2d 298 (1946), and Pulaski Anthracite Coal Co. v. Gibboney Sand Bar Co., 110 Va. 444, 66 S.E. 73 (1909). These cases exemplify the line of cases which developed and applied the rule of apportionment and several liability in cases involving air and water pollution from the latter part of the last century to the 1960s, when statutory remedies for air and water pollution were enacted. These common law decisions are still binding authority in most jurisdictions and are binding on federal courts sitting in diversity.

[34] Maas v. Perkins, 42 Wash. 2d 38, 253 P.2d 427 (1953).

[35] 253 P.2d at 430. The court in Maas followed the rule previously set forth in Snavely v. City of Goldendale, 10 Wash. 2d 453, 117 P.2d 221 (1941). In this action, 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.

[36] Farley v. Crystal Coal & Coke Co., 85 W.Va. 595, 102 S.E. 265 (1920).

[37] 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. It 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.” 248 S.W. at 228. Similarly, the Florida Supreme Court has held that joint liability would not be imposed on upriver phosphate producers despite the intermingling of the consequences of their tortious acts as regards downriver riparian owners. Synnes v. Prarie Pebble Phosphate Co., 66 Fla. 27, 63 So. 1 (1913), and Standard Phosphate Co. v. Lunn, 66 Fla. 220, 63 So. 429 (1913). Noise pollution has been handled in a similar fashion. See, e.g., City of Atlanta v. Cherry, 84 Ga. App. 728, 67 S.E.2d 317 (Ga. App. 1951) (holding 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).

[38] City of Mansfield v. Brister, 76 Ohio St. 270, 81 N.E. 631 (1907).

[39] City of Mansfield, 81 N.E. at 633.

[40] Restatement (Second) of Torts § 433A, comment d, illustration 5 (1965).

[41] Landers v. East Texas Salt water Disposal Co., 151 Tx. 251, 248 S.W.2d 731 (1952).

[42] Landers, 248 S.W.2d at 734.

[43] Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1094 (5th Cir. 1973), cert. denied, 419 U.S. 869, (1974). The federal bench has, at times, been mindful of the unfairness of joint and several liability to defendants. Although largely ineffectual, some courts have opined that some method was needed to achieve “[an] apportionment which bears some relationship to causative fault.”

[44] Michie v. Great Lakes Steel, 495 F.2d 213 (6th Cir. 1974), cert. denied 419 U.S. 997 (1979).

[45] Michie, 495 F.2d at 217, 218.

[46] See, e.g. Dean v. Gladney, 621 F.2d 1331 (5th Cir. 1980) (upholding apportionment of damages, made with “reasonable certainty” between defendant police officers who had been found to have committed an unlawful arrest and imprisonment).

The History of Litigations – Silica Litigation

July 23rd, 2021

“Progress, far from consisting in change, depends on retentiveness. When change is absolute there remains no being to improve and no direction is set for possible improvement: and when experience is not retained, as among savages, infancy is perpetual. Those who cannot remember the past are condemned to repeat it.”

George Santayana, The Life of Reason or the Phases of Human Progress 172 (1905; Marianne S. Wokeck & Martin A. Coleman, eds., 2011).

 

One of the remarkable and deplorable features of litigation in the United States is that it consumes such an incredible toll of time, energy, money, intellectual effort, creativity, while receiving so little attention in terms of careful curation of its history. Does anyone in the judiciary, the legislature, in the public, in industry, in labor, or at the bar, learn anything from the entirety of a complex litigation? Insurers certainly note their payouts, and adjust their premiums, but have their litigation strategies, and counsel selection and control, improved outcomes? I suspect that there is a great deal of learning to be had, at every level, and from every institutional perspective. It seems that this potential learning is often left untapped.

There are some notable efforts at the history of individual litigation. In 1987, Peter Schuck wrote an incisive history of the Agent Orange litigation.[1] About a decade later, two other law professors, Michael Green and Joseph Sanders, each wrote a history of the Bendectin litigation.[2] Whatever the reader thinks of these histories of litigations, they are all respectable efforts to understand the full course of a so-called “mass tort” litigation, from beginning to end. Law schools do a fine job of teaching the making of widgets, from initial pleadings, to judgments, to appeals, to enforcement of judgments. The academy does less well in teaching the high-level strategies employed in litigations, and the criteria for evaluating the success or failure of those strategies.

There are many important litigations that have not been memorialized in histories.  The asbestos litigation existed as isolated as sporadic worker compensation claims before World War II, and after the war, well into the 1970s. The first civil action may have been filed by attorney William L. Brach filed on behalf of Frederick LeGrande, against Johns-Manville, for asbestos-related disease, on July 17, 1957, in LeGrande v. Johns-Manville Prods. Corp., No. 741-57 (D.N.J.). Civil litigation for individual personal injuries took another decade to get started, and has since become institutionalized as a perpetual, limitless, and often unprincipled legal phenomenon in the United States. There have also been environmental and class action asbestos cases, with the infamous case against the Reserve Mining Company in Minnesota having received book length treatment, in 1980.[3] Miles Lord, the trial judge in the Reserve Mining case, was unceremoniously rebuked for unprofessional judicial malfeasance by the Court of Appeals for the Eighth Circuit.[4] More recently, Judge Lord’s law clerk has attempted to resurrect her mentor’s destroyed reputation in a hagiographic biography.[5] These books recount, fairly or not, important episodes in the asbestos litigation, but no one to date has attempted to write a history of the entire broad sweep of asbestos litigation.

The situation is similar in silicosis litigation, where the need for a history of the multiple failed attempts to impose liability on remote silica sand suppliers cries out for unified treatment. There is, to be sure, a highly biased account that runs through one text, Deadly Dust, written by two radical historians who helped fuel the litigation attempts in the 1990s, and in the 21st century.[6] The perspective of Deadly Dust, however, either ignores or misunderstands the litigation strategies and outcomes for the actual participants in silicosis litigation.

Recently, a chapter in the new edition of a treatise on products liability law has offered up a brief history of silica litigation.[7] The chapter correctly notes that “[s]ilica litigation in the United States has largely dried up following the 2005 dismissal of the multidistrict In re Silica Products Liability Litigation.”[8] In a chapter section, “§ 8:5.2 History of Litigation,” the authors purport to discuss the history of silica litigation, but they begin with one episode, the filing of thousands of cases in Mississippi and Texas, which were removed to federal court and consolidated in a Multi-District Litigation before the Hon. Janis Graham Jack, in Corpus Christi, Texas. Judge Jack famously declared “red flags of fraud” on the litigation battleground, with active participation from many high-volume testifying expert witnesses, such as Drs. Ray Harron and B.S. Levy.

The chapter lightly touches upon a few subsequent, post-MDL silica cases in Mississippi,[9] but importantly the chapter misses the sweep of silica litigation, before the MDL debacle. A more sustained, disinterested history of silica litigation would be a worthwhile undertaking for a few reasons.

  1. Silica litigation is a strong example of misplaced liability in the industrial setting of selling a natural commodity to purchasers who are employers with strong state and federal regulatory obligations to provide safe workplaces.[10]
  2. The litigation over silica health effects severely tests the notion that litigation is needed as an adjunct to regulation. Silicosis mortality has declined steadily in the late 20th and early 21st century, despite the failure of silica claims.[11]
  3. In the late 20th and early 21st centuries, silica litigation was fueled in part by a tendentious ruling by the International Agency for Research on Cancer (IARC), which declared that crystalline silica is a “known” human carcinogen. The working group was deeply divided, and the classification was subsequently shown to have ignored important studies.[12] Although subsequent IARC working groups handed down even more suspect monographs, revisiting the conditions that gave rise to the IARC silica monograph would be yield valuable insights into the capture and corruption of the IARC process by biased advocates.
  4. Defendants often come under serious criticism and pressure to settle litigation, as though the filing of complaints, with allegations of harms, demands social justice and ample remedies. In silica litigation, many defendants did not succumb to such pressure, and their efforts revealed corruption in the manufacturing of claims, through fraudulent diagnoses, product identification, and misdirected blame.

An adequate history of silica litigation would need to explore:

  1. The era before worker’s compensation (1890-1930, including Gauley Bridge), when civil litigation was the only recourse, and when plaintiffs were met with defenses of contributory negligence, fellow-servant rule, assumption of risk, and statutes of limitations.
  2. The era of worker’s compensation (1930-1968 or so), when employers had close to absolute liability for the medical damages and lost wages of their employees.
  3. The era of strict liability (1969 – 1997), ushered in by the doctrine of stricts products liability in the Restatement (Second) of Torts, and fueled by the enticement of mushrooming jury verdicts, and perceived inadequacies of worker compensation awards. Contributory negligence gave way to comparative negligence, and plaintiffs colluded in claims of ignorance of silica hazards. Silica litigation was episodic, with “outbreaks” in Alabama, western Pennsylvania, and New Jersey.
  4. The IARC Resurgence (1998 – 2010), which “sexed up” silica litigation, and led to mass filings, and the Battle of Corpus Christi, in Judge Jack’s courtroom. Additional outbreaks occurred in Mississippi, New Jersey, Pennsylvania, and California.

There is probably much I have missed, but the sketch above is a beginning.


[1] Peter H. Schuck, Agent Orange on Trial: Mass Toxic Disasters in the Courts (1987).

[2] Michael D. Green, Bendectin: The Challenges of Mass Toxic Substances Litigation (1996); Joseph Sanders, Bendectin on Trial: A Study of Mass Tort Litigation (1998).

[3] Robert V. Bartlett, The Reserve Mining Controversy (1980).

[4] Reserve Mining Co v. Hon. Miles Lord, 529 F.2d 181 (8th Cir. 1976).

[5] Roberta Walburn, Miles Lord: The Maverick Judge Who Brought Corporate America to Justice (2017).

[6] David Rosner & Gerald Markowitz, Deadly Dust: Silicosis and the Politics of Occupational Disease in the Twentieth Century America (1991).

[7] George Gigounas, Arthur Hoffmann, David Jaroslaw, Amy Pressman, Nancy Shane Rappaport, Wendy Michael, Christopher Gismondi, Stephen H. Barrett, Micah Chavin, Adam A. DeSipio, Ryan McNamara, Sean Newland, Becky Rock, Greg Sperla & Michael Lisanti, “Recent Developments in Asbestos, Talc, Silica, Tobacco, and E-Cigarette/Vaping Litigation in the U.S. and Canada,” Chap. 8, in Stephanie A. Scharf, George D. Sax & Sarah R. Marmor, eds., Product Liability Litigation: Current Law, Strategies and Best Practices (2nd ed. 2021).

[8] Id. at § 8:5.1 Overview (referring to In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563 (S.D. Tex. 2005) (Jack, J.)).

[9] Mississippi Valley Silica Co. v. Eastman, 92 So. 3d 666 (Miss. 2012); Dependable Abrasives, Inc. v. Pierce, 156 So. 3d 891 (Miss. 2015).

[10] See NAS, “Products Liability Law – Lessons from the Military and Industrial Contexts,” 13 J. Tort Law 303 (2020); “The Misplaced Focus of Enterprise Liability on the Wrong Enterprise” (Mar. 27, 2021).

[11] See, e.g., Ki Moon Bang, Jacek M. Mazurek, John M. Wood, Gretchen E. White, Scott A. Hendricks, Ainsley Weston, “Silicosis Mortality Trends and New Exposures to Respirable Crystalline Silica — United States, 2001–2010,” 64 Morbidity and Mortality Weekly Report 117 (Feb. 13, 2015).

[12] Patrick A. Hessel, John Gamble, J. Bernard L. Gee, Graham Gibbs, Francis H.Y. Green, Morgan, Keith C. Morgan, and Brooke T. Mossman, “Silica, Silicosis, and Lung Cancer: A Response to a Recent Working Group Report,” 42 J. Occup. & Envt’l Med. 704 (2000).

Judge Jack B. Weinstein – A Remembrance

June 17th, 2021

There is one less force of nature in the universe. Judge Jack Bertrand Weinstein died earlier this week, about two months shy of a century.[1] His passing has been noticed by the media, lawyers, and legal scholars[2]. In its obituary, the New York Times noted that Weinstein was known for his “bold jurisprudence and his outsize personality,” and that he was “revered, feared, and disparaged.” The obituary quoted Professor Peter H. Schuck, who observed that Weinstein was “something of a benevolent despot.”

As an advocate, I found Judge Weinstein to be anything but fearsome. His jurisprudence was often driven by intellectual humility rather than boldness or despotism. One area in which Judge Weinstein was diffident and restrained was in his exercise of gatekeeping of expert witness opinion. He, and his friend, the late Professor Margaret Berger, were opponents of giving trial judges discretion to exclude expert witness opinions on ground of validity and reliability. Their antagonism to gatekeeping was, no doubt, partly due to their sympathies for injured plaintiffs and their realization that plaintiffs’ expert witnesses often come up with dodgy scientific opinions to advance plaintiffs’ claims. In part, however, Judge Weinstein’s antagonism was due to his skepticism about judicial competence and his own intellectual humility.

Although epistemically humble, Judge Weinstein was not incurious. His interest in scientific issues occasionally got him into trouble, as when he was beguiled by Dr. Irving Selikoff and colleagues, who misled him on aspects of the occupational medicine of asbestos exposure. In 1990, Judge Weinstein issued a curious mea culpa. Because of a trial in progress, Judge Weinstein, along with state judge (Justice Helen Freedman), attended an ex parte private luncheon meeting with Dr. Selikoff. Here is how Judge Weinstein described the event:

“But what I did may have been even worse [than Judge Kelly’s conduct that led to his disqualification]. A state judge and I were attempting to settle large numbers of asbestos cases. We had a private meeting with Dr. Irwin [sic] J. Selikoff at his hospital office to discuss the nature of his research. He had never testified and would never testify. Nevertheless, I now think that it was a mistake not to have informed all counsel in advance and, perhaps, to have had a court reporter present and to have put that meeting on the record.”[3]

Judge Weinstein’s point about Selikoff’s having never testified was demonstrably false, but I impute no scienter for false statements to the judge. The misrepresentation almost certainly originated with Selikoff. Dr. Selikoff had testified frequently up to the point at which he and plaintiffs’ counsel realized that his shaky credentials and his pronouncements on “state of the art,” were hurtful to the plaintiffs’ cause. Even if Selikoff had not been an accomplished testifier, any disinterested observer should, by 1990, have known that Selikoff was himself not a disinterested actor in medical asbestos controversies.[4] The meeting with Selikoff apparently weighed on Judge Weinstein’s conscience. He repeated his mea culpa almost verbatim, along with the false statement about Selikoff’s never having testified, in a law review article in 1994, and then incorporated the misrepresentation into a full-length book.[5]

In his famous handling of the Agent Orange class action, Judge Weinstein manipulated the defendants into settling, and only then applied his considerable analytical ability in dissecting the inadequacies of the plaintiffs’ causation case. Rather than place the weight of his decision on Rule 702, Judge Weinstein dismembered the causation claim by finding that the bulk of what the plaintiffs’ expert witnesses relied upon under Rule 703 was unreasonable. He then found that what remained, if anything, could not reasonably support a verdict for plaintiffs, and he entered summary judgment for the defense in the opt-out cases.[6]

In 1993, the U.S. Supreme Court breathed fresh life into the trial court’s power and obligation to review expert witness opinions and to exclude unsound opinions.[7] Several months before the Supreme Court charted this new direction on expert witness testimony, the silicone breast implant litigation, fueled by iffy science and iffier scientists, erupted.[8] In October 1994, the Judicial Panel on Multi-District Litigation created MDL 926, which consolidated the federal breast implant cases before Judge Sam Pointer, in the Northern District of Alabama. Unlike most contemporary MDL judges, however, Judge Pointer did not believe that Rule 702 and 703 objections should be addressed by the MDL judge. Pointer believed strongly that the trial judges, in the individual, remanded cases, should rule on objections to the validity of proffered expert witness opinion testimony. As a result, so-called Daubert hearings began taking place in district courts around the country, in parallel with other centralized proceedings in MDL 926.

By the summer of 1996, Judge Robert E. Jones had a full-blown Rule 702 attack on the plaintiffs’ expert witnesses before him, in a case remanded from MDL 926. In the face of the plaintiffs’ MDL leadership committee’s determined opposition, Judge Jones appointed four independent scientists to serve as scientific advisors. With their help, in December 1996, Judge Jones issued one of the seminal rulings in the breast implant litigation, and excluded the plaintiffs’ expert witnesses.[9]

While Judge Jones was studying the record, and writing his opinion in the Hall case, Judge Weinstein, with a judge from the Southern District of New York, conducted a two-week Rule 702 hearing, in his Brooklyn courtroom. Judge Weinstein announced at the outset that he had studied the record from the Hall case, and that he would incorporate it into his record for the cases remanded to the Southern and Eastern Districts of New York.

I had one of the first witnesses, Dr. Donnard Dwyer, before Judge Weinstein during that chilly autumn of 1996. Dwyer was a very earnest immunologist, who appeared on direct examination to endorse the methodological findings of the plaintiffs’ expert witnesses, including a very dodgy study by Dr. Douglas Shanklin. On cross-examination, I elicited Dwyer’s view that the Shanklin study involved fraudulent methodology and that he, Dwyer, would never use such a method or allow a graduate student to use it. This examination, of course, was great fun, and as I dug deeper with relish, Judge Weinstein stopped me, and asked rhetorically to the plaintiffs’ counsel, whether any of them intended to rely upon the discredited Shanklin study. My main adversary Mike Williams did not miss a beat; he jumped to his feet to say no, and that he did not know why I was belaboring this study. But then Denise Dunleavy, of Weitz & Luxenberg, knowing that Shanklin was her listed expert witness in many cases, rose to say that her expert witnesses would rely upon the Shanklin study. Incredulous, Weinstein looked at me, rolled his eyes, paused dramatically, and then waved his hand at me to continue.

Later in my cross-examination, I was inquiring about another study that reported a statistic from a small sample. The authors reported a confidence interval that included negative values for a test that could not have had any result less than zero. The sample was obviously skewed, and the authors had probably used an inappropriate parametric test, but Dwyer was about to commit to the invalidity of the study when Judge Weinstein stopped me. He was well aware that the normal approximation had created the aberrant result, and that perhaps the authors only sin was in failing to use a non-parametric test. I have not had many trial judges interfere so knowledgably.

In short order, on October 23, 1996, Judge Weinstein issued a short, published opinion, in which he ducked the pending Rule 702 motions, and he granted partial summary judgment on the claims of systemic disease.[10] Only the lawyers involved in the matters would have known that there was no pending motion for summary judgment!

Following up with grant of summary judgment, Judge Weinstein appointed a group of scientists and a legal scholar, to help him assemble a panel of Rule 706 expert witnesses for future remanded case. Law Professor Margaret Berger, along with Drs. Joel Cohen and Alan Wolff, began meeting with the lawyers to identify areas of expertise needed by the court, and what the process of court-appointment of neutral expert witnesses would look like.

The plaintiffs’ counsel were apoplectic. They argued to Judge Weinstein that Judge Pointer, in the MDL, should be supervising the process of assembling court-appointed experts. Of course, the plaintiffs’ lawyers knew that Judge Pointer, unlike Judges Jones and Weinstein, believed that both sides’ expert witnesses were extreme, and mistakenly believed that the truth lay between. Judge Pointer was an even bigger foe of gatekeeping, and he was generally blind to the invalid evidence put forward by plaintiffs. In response to the plaintiffs’ counsel’s, Judge Weinstein sardonically observed that if there were a real MDL judge, he should take it over.

Within a month or so, Judge Pointer did, in fact, take over the court-appointed expert witness process, and incorporated Judge Weinstein’s selection panel. The process did not going very smoothly in front of the MDL judge, who allowed the plaintiffs lawyers to slow down the process by throwing in irrelevant documents and deploying rhetorical tricks. The court-appointed expert witnesses did not take kindly to the shenanigans, or to the bogus evidence. The expert panel’s unanimous rejection of the plaintiffs’ claims of connective tissue disease causation was an expensive, but long overdue judgment from which there was no appeal. Not many commentators, however, know that the panel would never have happened but for Judge Weinstein’s clever judicial politics.

In April 1997, while Judge Pointer was getting started with the neutral expert selection panel,[11] the parties met with Judge Weinstein one last time to argue the defense motions to exclude the plaintiffs’ expert witnesses. Invoking the pendency of the Rule 706 court-appointed expert witness processs in the MDL, Judge Weinstein quickly made his view clear that he would not rule on the motions. His Honor also made clear that if we pressed for a ruling, he would deny our motions, even though he had also ruled that plaintiffs’ could not make out a submissible case on causation.

I recall still the frustration that we, the defense counsel, felt that April day, when Judge Weinstein tried to explain why he would grant partial summary judgment but not rule on our motions contra plaintiffs’ expert witnesses. It would be many years later, before he let his judicial assessment see the light of day. Two decades and then some later, in a law review article, Judge Weinstein made clear that “[t]he breast implant litigation was largely based on a litigation fraud. …  Claims—supported by medical charlatans—that enormous damages to women’s systems resulted could not be supported.”[12] Indeed.

Judge Weinstein was incredibly smart and diligent, but he was human with human biases and human fallibilities. If he was a despot, he was at least kind and benevolent. In my experience, he was always polite to counsel and accommodating. Appearing before Judge Weinstein was a pleasure and an education.


[1] Laura Mansnerus, “Jack B. Weinstein, U.S. Judge With an Activist Streak, Is Dead at 99,” N.Y. Times (June 15, 2021).

[2] Christopher J. Robinette, “Judge Jack Weinstein 1921-2021,” TortsProf Blog (June 15, 2021).

[3] Jack B. Weinstein, “Learning, Speaking, and Acting: What Are the Limits for Judges?” 77 Judicature 322, 326 (May-June 1994).

[4]Selikoff Timeline & Asbestos Litigation History” (Dec. 20, 2018).

[5] See Jack B. Weinstein, “Limits on Judges’ Learning, Speaking and Acting – Part I- Tentative First Thoughts: How May Judges Learn?” 36 Ariz. L. Rev. 539, 560 (1994) (“He [Selikoff] had never testified and would never testify.”); Jack B. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and other Multi-Party Devices 117 (1995) (“A court should not coerce independent eminent scientists, such as the late Dr. Irving Selikoff, to testify if, like he, they prefer to publish their results only in scientific journals.”)

[6] In re Agent Orange Product Liab. Litig., 597 F. Supp. 740, 785 (E.D.N.Y. 1984), aff’d 818 F.2d 145, 150-51 (2d Cir. 1987)(approving district court’s analysis), cert. denied sub nom. Pinkney v. Dow Chemical Co., 487 U.S. 1234 (1988);  In re “Agent Orange” Prod. Liab. Litig., 611 F. Supp. 1223 (E.D.N.Y. 1985), aff’d, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988).

[7] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

[8] Reuters, “Record $25 Million Awarded In Silicone-Gel Implants Case,” N.Y. Times (Dec. 24, 1992).

[9] See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387 (D. Ore. 1996).

[10] In re Breast Implant Cases, 942 F. Supp. 958 (E.& S.D.N.Y. 1996).

[11] MDL 926 Order 31 (May 31, 1996) (order to show cause why a national Science Panel should not be appointed under Federal Rule of Evidence 706); MDL 926 Order No. 31C (Aug. 23, 1996) (appointing Drs. Barbara S. Hulka, Peter Tugwell, and Betty A. Diamond); Order No. 31D (Sept. 17, 1996) (appointing Dr. Nancy I. Kerkvliet).

[12] Hon. Jack B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation” 2009 Cardozo L. Rev. de novo 1, 14 (2009) (emphasis added).

NJ Appellate Division Calls for Do Over in Baby Powder Dust Up

May 22nd, 2021

There was quite a bit of popular media reporting of the $117 million (compensatory and punitive damages) awarded by a Middlesex County, New Jersey, jury to a man who claimed his mesothelioma had been caused by his use of baby powder. There was much less media coverage last month of the New Jersey Appellate Division’s reversal of the underlying verdicts, on grounds that the trial Judge Ana C. Viscomi had abused her discretion on several key issues.[1] The New Jersey appellate court reversed the trial court’s judgment, and remanded the Lanzo case for a new trial, in a carefully reasoned decision.[2]

Johnson & Johnson Consumer Inc. (JJCI) and Imerys Talc America, Inc. (Imerys) appealed from the judgment entered by Judge Viscomi, on April 23, 2018. The appellants lodged several points of error, but the most erroneous of the erroneous trial court decisions seemed to involve a laissez-faire attitude to weak and unreliable proffered expert witness opinions.

Judge Viscomi conducted a Rule 104 hearing on the admissibility of testing of plaintiffs’ expert witness, William Longo, on crowd-sourced samples of baby powder, without chain of custody or provenance evidence. Judge Viscomi denied the challenge to Longo’s test results.

The defense had also filed Rule 702 challenges to plaintiffs’ expert witnesses, James S. Webber, Ph.D., and Jacqueline Moline, M.D., and their opinion that non-asbestiform amphibole cleavage fragments can cause mesothelioma. Judge Viscomi refused these pre-trial motions, and refused to conduct a pre-trial Rule 104 hearing on the proffered opinions. Her Honor’s denial of the Rule 702 was accompanied with little to no reasoning, which proved to be the determinant of her abuse of discretion, and deviation from the standard of judicial care.

At trial, the defense re-asserted its objections to Moline’s opinion on cleavage fragments, but Judge Viscomi permitted Moline to testify about “non-asbestiform cleavage fragments from a medical point of view.” In other words, the trial judge gave Dr. Moline carte blanche to address causation.

Understandably, on appeal, JJCI and Imerys assigned various errors. With respect to the scientific evidence, the defendants alleged that plaintiffs’ expert witnesses (Webber and Moline) failed to:

“(1) explain what causes the human body to respond in the same way to the different mineral forms;

(2) acknowledge the contrary opinions of scientists and government agencies;

(3) provide evidentiary support for their opinion that non-asbestiform minerals can cause mesothelioma; and

(4) produce evidence that their theory that non-asbestiform minerals are harmful had been subject to peer-review and publication or was generally accepted in the scientific community.”

The Federal Fiber

The genesis of the scientific dispute lay in the evolution of the definition of asbestos itself. Historically, asbestos was an industrial term for one of six different minerals, the serpentine mineral chrysotile, and the amphibole minerals, amosite, crocidolite, tremolite, anthophyllite, and actinolite. Chrysotile is, by mineralogical definition, a serpentine mineral in fibrous form.  If not fibrous, the mineral is typically called antigorite.

For the five amphiboles, the definitional morass deepens. Amosite is, again, an industrial term, an acronym for “asbestos mines of South Africa,” although South Africa once mined chrysotile and crocidolite as well.  Amosite is an iron-rich amphibole in the cummingtonite-grunerite family, with a fibrous habit.  Cummingtonite-grunerite can be either fibrous or non-fibrous in mineral habit.

Crocidolite is an amphibole that by definition is fibrous. The same mineral, if not fibrous, is known as riebeckite. Crocidolite is, by far, the most potent cause of mesothelioma.

The remaining amphiboles, tremolite, anthophyllite, and actinolite, have the same mineralogical designation, regardless whether they occur as fibers or in non-fibrous forms.

The designation of a mineral as “asbestiform” is also rather vague, apparently conveying an industrial functionality from its fibrosity. Medically, the term asbestiform became associated with minerals that have sufficiently high aspect ratio, and small cross-sectional diameter, to be considered potentially capable of inducing pulmonary fibrosis or mesothelioma.

In 1992, the federal OSHA regulations removed non-asbestiform actinolite, tremolite, and anthophyllite from the safety standard, based upon substantial evidence that the non-asbestiform occurrences of these minerals did not present the health risks associated with asbestiform amphiboles. Because nothing is ever simple, the National Institute for Occupational Safety and Health (NIOSH) persisted in its recommendation that OSHA continue to regulate non-asbestiform amphiboles under asbestos regulatory standards. This NIOSH pronouncement, however, was extremely controversial among the ranks of NIOSH scientists. In any event, NIOSH recommendations are just that, suggestions and not binding regulations.

The mineralogical, medical, and regulatory definitions of asbestos and asbestiform minerals vary greatly, and require a great deal of discipline and precision in discussing what causes mesothelioma. The health effects of non-asbestiform minerals have been studied, however, and generally shown not to cause mesothelioma.[3]

Judge Viscomi Abused Her Discretion

The Appellate Division panel applied Accutane’s abuse of discretion standard, which permits judges to screw up to some extent, but requires reversal for their mistakes when “so wide off the mark that a manifest denial of justice resulted.” The appellate court had little difficulty in saying that the trial court was “so wide off the mark” in addressing expert witness opinion admissibility.

James Webber

In the Lanzo case, plaintiffs’ expert witnesses, James Webber and Jacqueline Moline, both opined that non-asbestiform minerals can cause mesothelioma. The gravamen of the defense’s appeal was that these expert witnesses had failed to support their opinions and that the trial judge had misapplied the established judicial gatekeeping procedures required by the New Jersey Supreme Court, in In re Accutane Litigation, 234 N.J. 340 (2018).

The Appellate Division then set out to do what Judge Viscomi had failed to do – look at the proffered opinions and assess whether they followed reasonably and reliably from the expert witnesses’ stated grounds. Although Webber opined that cleavage fragments could cause mesothelioma, he had never studied the issue himself; nor was he aware of any studies showing that showed that non-asbestiform cleavage fragments can cause mesothelioma. Webber had never expressed his opinion in scientific publications, and he failed to cite any support for his opinion in his report.

At trial, Judge Viscomi permitted Webber to go beyond his anemic report and to cite reliance upon four sources for his opinion. The Appellate Division carefully reviewed each of the four sources, and found that they either did not support Webber’s opinions or they were as equally without evidentiary support. “Webber did not identify any data underlying his opinion. Further, he did not demonstrate that any of the authorities he relied on would be reasonably relied on by other experts in his field to reach an opinion regarding causation.”

Webber cited an article by Victor Roggli, who opined that he had found asbestiform and non-asbestiform fibers in the lungs of mesothelioma patients, but who went on to conclude that fibers were the likely cause. Webber also cited an article by NIOSH scientist Martin Harper, who stated the opinion, without evidentiary support that NIOSH did not believe, in 2008, that there was “sufficient evidence for a different toxicity for non-asbestiform amphibole particles that meet the morphological criteria for a fiber.”[4]

Although Harper and company appeared to be speaking on behalf of NIOSH, in 2011, the agency clarified its position to state that its previous inclusion of non-asbestiform minerals in the definition of respirable asbestos fibers had been based upon “inclusive science”:

“Epidemiological evidence clearly indicates a causal relationship between exposure to fibers from the asbestos minerals and various adverse health outcomes, including asbestosis, lung cancer, and mesothelioma. However, NIOSH has viewed as inconclusive the results from epidemiological studies of workers exposed to EMPs[9] [elongate mineral particles] from the non[-]asbestiform analogs of the asbestos minerals.”[5]

The Appellate Division was equally unimpressed with Webber’s citation of a geologist who stated an opinion in 2009, that “using the term ‘asbestiform’ to differentiate a hazardous from a non-hazardous substance has no foundational basis in the medical sciences.” Not only was the geologist, Gregory P. Meeker, lacking in medical expertise, but his article was non-peer-reviewed (for what little good that would have done) and his opinion did not cite any foundational evidence or data in an appropriate scientific study.

Webber cited to an Environmental Protection Agency (EPA) document,[6] which stated that

“[f]or the purposes of public health assessment and protection, [the] EPA makes no distinction between fibers and cleavage fragments of comparable chemical composition, size, and shape.”

The Appellate Division observed that the EPA not provide any scientific support for its assessment. Furthermore, the language cited by Webber clearly suggests that the EPA was issuing a precautionary view, not a scientific one.

Considering the Daubert factors, and New Jersey precedent, the Appellate Division readily found that Webber’s opinion was inadmissible. His opinion about non-asbestiform minerals was unsupported by data and analysis in published, peer-reviewed studies; the opinion was clearly not generally accepted; and the opinion had never been published by Webber himself. Plaintiffs had failed to show that Webber’s “methodology involv[ed] data and information of the type reasonably relied on by experts in the scientific field.”[7] The trial court’s observation that the issue of cleavage fragments was “contested” could not substitute for the required assessment of methodology and of the underlying data relied upon by Webber. Judge Viscomi abused her discretion in admitting Webber’s testimony.

Jacqueline Moline

Moline’s expert testimony that non-asbestiform minerals can cause mesothelioma suffered from many of the same defects as Webber’s opinion on this topic. The trial court once again did not conduct a pre-trial or in-trial hearing to assess Moline’s opinion, and it did not perform the rigorous assessment required by Rule 702 and the Accutane case to determine whether Moline’s opinions met the applicable (so-called Daubert) standards. The Appellate Division emphatically held that the trial court erred in permitting Moline to testify, over objection.

Moline vacuously opined that non-asbestiform amphiboles cause mesothelioma, but failed to identify any specific studies that actually supported this proposition. Like Webber, she pointed to an EPA document, from 2006, which also failed to support her asseverations. Moline also claimed support from the CDC, the American Thoracic Society, and other EPA pronouncements, but never cited anything specifically. In her pre-trial report, Moline claimed that New York state talc minerals experienced mesotheliomas from exposure to the mining and milling of talc that contained about “50% non-asbestiform anthophyllite and tremolite.” Moline’s report, however, was devoid of any reference for this remarkable claim.

Moline’s trial testimony was embarrassed on cross-examination when the defense confronted her with prior testimony she gave in another case, in which she testified that she lacked “information … one way or the other” say whether non-asbestiform minerals were carcinogenic. Moline shrugged off the impeachment with a claim that she had since come to learn of mesothelioma occurrences among patients with non-asbestiform mineral exposures. Nonetheless, Moline still could not identify the studies she relied upon to answer the question whether “asbestos-related diseases can be caused by the non-asbestiform varieties of the six regulated forms of asbestos.”

Reversal and Remand

Having concluded that the trial court erred and abused its discretion in denying the defense motions contra Webber and Moline, and having found that the error was harmful to the defense’s right to a fair trial, the appellate court reversed and remanded for new (separate) trials against JJCI and Imerys. There will be, no doubt, attempts to persuade the New Jersey Supreme Court to consider the issues further. The state Supreme Court’s jurisdiction is discretionary, and assuming that the high Court rejects petitions for certification, the case will return to the Middlesex County trial court. The intended nature of further trial court proceedings is, at best, a muddle. The Appellate Division has already done what Judge Viscomi failed to do. The three-judge panel carefully reviewed the plaintiffs’ proffered opinion testimony on causation and found it inadmissible. It would thus seem that the order of business would be for the defense to file motions for summary judgment for lack of admissible causation opinions, and for the trial court to enter judgment for the defense.

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[1] To be fair, there was some coverage in local, and in financial and legal media. See, e.g., Jef Feeley, “J&J Gets Banker’s $117 Million Talc Verdict Tossed on Appeal,” (April 28, 2021); Mike Deak, “Appeals court overturns $117 million Johnson & Johnson baby powder verdict,” My Central Jersey (April 28, 2021); “J&J, Imerys Beat $117M Talc Verdicts Over Flawed Testimony,” Law360 (April 28, 2021); Irvin Jackson, “$117M J&J Talc Cancer Verdict Overturned By New Jersey Appeals Court,” About Lawsuits (April 30, 2021).

[2] See Lanzo v. Cyprus Amax Minerals Co., Docket Nos. A-5711-17, A-5717-17, New Jersey Superior Court, App. Div. (April 28, 2021).

[3] SeeIngham v. Johnson & Johnson – A Case of Meretricious Mensuration?” (July 3, 2020); “ Tremolitic Tergiversation or Ex-PIRG-Gation?” (Aug. 11, 2018).

[4] “Differentiating Non-Asbestiform Amphibole and Amphibole Asbestos by Size Characteristics,” 5 J. Occup. & Envt’l Hygiene 761 (2008).

[5] NIOSH, “Asbestos Fibers and Other Elongate Mineral Particles: State of the Science and Roadmap for Research,” Current Intelligence Bulletin 62 (April 2011).

[6] The document in question was issued in 2006, by EPA Region 9, in response to a report prepared by R.J. Lee Group, Inc. The regional office of the EPA criticized the R.J. Lee report for applying “a [g]eologic [d]efinition rather than a [p]ublic [h]ealth [d]efinition to [c]haracterize [m]icroscopic [s]tructures,” noting that the EPA made “no distinction between fibers and cleavage fragments of comparable chemical composition, size, and shape.” This document thus did not address, with credible evidence, the key issue in the Lanzo case.

[7] Lanzo (quoting Rubanick, 125 N.J. at 449).

Dr. Harry Shubin – Asbestos Litigation Hall of Shame

February 19th, 2021

Many physicians took and failed the so-called B-reader examination for proficiency in using the International Labor Office’s grading schema of chest radiographs for pneumoconiosis. Famously, Irving Selikoff was someone who took but failed this examination, and he stopped serving as a clinical expert witness in asbestos cases. No one can say for sure whether there was cause and effect. In Philadelphia, South Jersey pulmonary physician, Dr. Joseph Sokolowski, was a frequent testifier for plaintiffs, despite his having failed the B-Reader examination three times. Sokolowski was conditionally fined and disqualified from testifying in Philadelphia because of his refusal to comply with compulsory process for his B-Reader test results.[1]

The only physician I encountered who lied outright about his B-reader examination results was the late Harry Shubin. Some people may know of Dr. Shubin only because of the “Harry Shubin, M.D. Statesman in Healthcare Administration Award,” presented by the American Academy of Medical Administrators. Indeed, Shubin had a long career in hospital administration. He was graduated from Temple School of Medicine in 1937, and went into family practice, at the age of 22. Later, he specialized in the treatment of tuberculosis and pulmonary disease.[2] Over his long career, he was a patron of the arts and of other charities in Philadelphia.

In 1955, Dr Shubin became the president of the American Academy of Tuberculosis Physicians.[3] In 1958, Shubin was elected head of staff at Pennsylvania General Hospital.[4] He later became the medical director of the Northern Division of Philadelphia General Hospital.

In 1962, along with 18 other physicians, Shubin purchased a 104-bed hospital, known as the Broad Street Hospital, at 739 South Broad Street, for which he would become medical director.[5] When the Jefferson Medical College sold its Barton Memorial Hospital for “diseases of the chest,” including silicosis and coal workers’ pneumoconiosis, at Broad and Fitzwater Streets, the South Broad Street Medical Center, Inc., bought it.  Shubin was the medical director.[6]

Shubin’s career as a medical director suffered in the ensuing decades.[7] In 1970, after a hearing, Dr. Shubin was disqualified by the U.S. Food & Drug Administration from receiving investigational products.[8] And then in 1981, his Center City Hospital, at 1829 Pine Street, closed, under pressure from both Blue Cross and the federal Health Systems Agency.[9]

Perhaps those setbacks explain Dr. Shubin’s foray into the lucrative world of expert witnessing in the asbestos litigation. Shubin started turning up as an expert witness for plaintiffs in hundreds of cases, in 1985. Dr. Peter Theodos, a prominent Philadelphia pulmonary physician had been designated to testify in these cases, but he died while the cases languished due to the huge backlog of asbestos cases in Philadelphia.

Shubin’s qualifications to replace Theodos were thin, Aside from an insignificant paper in a Pennsylvania Medicine,[10] Shubin had not written anything on asbestos or asbestos-related disease. Shubin was, however, a media hound, and in 1985, he was turning up at union halls and town hall meetings across Pennsylvania.[11]

Despite his lack of significant experience and expertise in asbestos-related disease, Shubin could put on a great show for uncritical Philadelphia juries. He was charming and persuasive. His years of public speaking on behalf of his beleaguered hospitals gave him confidence and skills of evasion in the witness box. When confronted with statements from Selikoff’s book or articles, Shubin would chuckle, smile knowingly, and say that he taught Selikoff everything about asbestos. His demeanor was avuncular and cherubic, which made cross-examination even more difficult.

Initially, Shubin testified that he was a B-reader, but after the defense verified his absence from the NIOSH list of certified B-readers, he “modified” his next trial’s testimony to state that he had started, but had not finished, the examination because of an eye problem.

After inquiring at NIOSH and learning that Shubin had finished the examination, defense counsel confronted Shubin yet again, only to have his tale embellished by a claim that he had withdrawn from the examination after finishing because of the eye problem, and wrote to NIOSH to ask that his examination not be evaluated.

In 1986, the leading asbestos plaintiffs’ firm was pushing one of its many cases to trial, with a Shubin report to support its claims.[12] Although the defense expert witnesses had given this plaintiff a clean bill of health, we had sufficient concerned about Shubin’s testimonial skills, that I decided to document Shubin’s perjury on the subject of his B-Reader status.

In 1986, the records’ custodian of B-Reader test results for NIOSH was Mitizie Martin, in Morgantown, West Virginia. After a good deal of procedural wrangling, I was able to obtain a court order that required plaintiffs’ counsel’s appearance for a deposition of Ms. Martin, in Morgantown. I noticed her deposition in all Philadelphia asbestos cases and gave all plaintiffs’ firms notice of the event. And so, in the first week of September, 1986, plaintiffs’ counsel, John DiDonato, and I were on board a small airplane for a bumpy ride to Morgantown, for Ms. Martin’s deposition.[13]

Martin was a wonderful witness. In 1986, she was Chief of the X-ray Receiving Center Section, Division of X-Ray Disease Studies, for NIOSH. She had been with NIOSH or its predecessor for 20 years.[14] Martin explained NIOSH’s role in teaching the A-Reader course, and in administering the B-Reader examination, along with the American College of Radiology, and its record retention policies.

Martin described the B-reader examination, which at the time required a showing of proficiency in interpreting 125 chest films for the presence and absence of various pneumoconiosis, according to the ILO scale.[15]

Finally, and most important, Martin authenticated the Shubin file, and laid a foundation for its admissibility at all future asbestos trials. Shubin had sought to become a B-Reader by taking the required test, in March 1982, in Orlando, Florida.[16] He completed but failed that examination in 1982, after which he wrote to Ms. Martin, to express his desire to take the test again. He made no mention of an eye problem; nor did he request that the 1982 results be disregarded. Martin wrote back to explain that he would have to wait a year before taking the examination again.[17]

Shubin waited three years, but he eventually signed up for, and took, the B-Reader examination a second time, in March 1985, on Kiawah Island, South Carolina. This second attempt resulted in a second failure, and a notification to Shubin that he had received a “failing grade, deficient in most categories.”[18] Shubin had thus taken the B-Reader examination twice, and failed both times. He had never abandoned the test; nor had he written to NIOSH to request a withdrawal from the examination, or to notify the agency of an eye-sight problem.[19]

My then colleague, Terri Keeley, was set to try the next-schedule case in which Dr. Shubin was supposed to have testified, in September 1986. Unsurprisingly, the case resolved. As soon as I received the transcript, I provided a copy gratis to every asbestos plaintiffs’ firm in Philadelphia. The result was that we never saw Dr. Shubin in an asbestos case again. Occasionally, we would receive a Dr. Shubin report, but a quick reminder of the procedural history behind Ms. Mitzie Martin’s deposition testimony sealed his effectual exclusion.

Remarkably, despite the notoriety he had gained in the Philadelphia asbestos litigation, Shubin showed up in the high-profile Paoli Railroad PCB case, as an expert witness on causation.[20] In the Paoli case, Shubin gave rather unscientific testimony that conflated general and specific causation, and assumed that PCBs caused individual plaintiffs’ disease because PCBs can cause disease.[21] As far I can determine, he was never confronted with his perjuries from the Philadelphia asbestos cases.

————————————————————————————————————————

[1]  Downing v. Johns-Manville Corp., Philadelphia Cty. Ct. C.P. 1981- 11- 3762, Order sur Motion to Compel Dr. Sokolowski to answer interrogatories and produce documents related to his failure of the B-Reader examination (Mar. 31, 1988).

[2]  “Harry Shubin Obituary,” Phila. Inq. at 25 (Mar. 7, 1997) (Dr. Shbuin died March 2, 1997).

[3]  “News from the Field,” 45 Am. J. Pub. Health 1399 (1955).

[4]  “Pennsylvania General Hospital,” Phila. Inq. at 29 (Mar. 25, 1958).

[5]  “Doctor-Owned Hospital Opens in South Philadelphia,” Phila. Daily News at p.19 (Feb. 5, 1962).

[6]  “Medical Center Sells Building,” Phila. Daily News at 57 (May 5, 1961).

[7]  Frank Dougherty, “11 Hospitals Cut from Blue Cross,” Phila. Daily News at p.3 (Nov. 14, 1972) (Broad Street Hospital cut).

[8]  Office of Regulatory Affairs Compliance References: Bioresearch Monitoring (Mar. 16, 1970).

[9]  Phila. Inq. at 5 (Mar. 18, 1981) (Shubin, medical director).

[10]  Harry Shubin, “Asbestosis: inhalation disease of the lungs,” 88 Pa. Med. 54, 56, 58 (1985).

[11]  See, e.g., “Pat Purcell, Angry Man,” Pottsville Republican (Pottsville, PA) at p.1 (Mar. 14, 1987); Frank Scholz, “Help Coming for Asbestos Victims Living Here,” The Times-Tribune (Scranton, PA Sept. 15, 1985).

[12]  Ove Nyman v. Johns-Mansville Corp., Phila. Cty. Ct. C.P. (April Term, 1981). Years later, I met Mr. Nyman at my sister-in-law’s wedding, where he and his wife were dancing vigorously.

[13]  Deposition of Mitzie Martin, in Ove Nyman v. Johns-Mansville Corp., Phila. Cty. Ct. C.P. (April Term, 1981), taken on Sept. 5, 1986.

[14]  Id. at 3.

[15]  Id. at 7.

[16]  Id. at 12-13.

[17]  Id. at 14.

[18]  Id. at 14-15.

[19]  Id. at 16-19.

[20] In re Paoli R.R. Yard PCB Litig., 706 F. Supp. 358, 364-65 (E.D. Pa. 1988), rev’d, 916 F.2d 829, 840 (3d Cir. 1990), cert. denied, 111 S. Ct. 1584 (1991).

[21]  Susan R. Poulter, “Science and Toxic Torts: Is There a Rational Solution to the Problem of Causation?” 7 High Technology L.J. 189, 238 (1993).

Tort Law – Theory versus Practice

November 5th, 2020

The Journal of Tort Law was founded, in 2006, by Jules Coleman as a scholarly forum for exchange of heterodox views of tort law.  Under its current Editor In Chief, Christopher Robinette, the journal has continued its exploration of tort theory and philosophy of law. Practitioners can sharpen their practice considerably by understanding the deep structure, theory, and philosophy of tort law, but it seems equally clear that theorists can and must pay attention to what actually happens in tort litigation. Professor Robinette should thus be commended for featuring a symposium in the pages of the journal on “What Practitioners Can Teach Academics about Tort Litigation.”

A passage from Immanuel Kant’s The Critique of Pure Reason (1781) is often paraphrased as “theory without practice is empty and practice without theory is blind.”  Yogi Berra gets credit for the deeper insight that “in theory, there is no difference between theory and practice, but in practice, there is.” Professor Robinette has empowered Yogi’s world view by turning over the pages of the forthcoming issue of the Journal of Tort Law to practitioners, who offer their views on what is actually going on in tort law.

Earlier this week, the various symposium contributions to “What Practitioners Can Teach Academics about Tort Litigation” appeared online as “in press” articles at the Journal of Tort Law. The contributors come from various subdisciplines of tort law, and from differing perspectives of lawyers for pursuers and defenders. This issue will be, I believe, perfect pandemic reading. Here are the symposium articles:

Nathan A. Schachtman, “Products Liability Law – Lessons from the Military and Industrial Contexts

Malcolm E. Wheeler & Theresa Wardon Benz, “Litigation Financing: Balancing Access with Fairness,”

Paul Figley, “Defending Government Tort Litigation: Considerations for Scholars,”

Victor E. Schwartz, “Expert Testimony Needs Judges to Act as “Gatekeepers”: The Maryland Court of Appeals Teaches Why

Thomas E. Albro & Thomas M. Hendell, “What Practitioners can Teach Academics about Tort Litigation – The Plaintiff’s Perspective in Medical Malpractice Litigation”

Scott B. Cooper, “What Practitioners can Teach Academics about Tort Litigation: Auto Accidents from the Plaintiff’s Counsel

Daniel E. Cummins, “Fighting the Good Fight: The Insurance Defense Litigator

Sara M. Peters, “Shifting the Burden of Proof on Causation: The One Who Creates Uncertainty Should Bear Its Burden

As for my contribution, I can say it is a better and more succinct article for my having received suggestions from the editor, Professor Robinette. One of the casualties of page limitations, however, was my failure to acknowledge other lawyers who commented on early drafts, or who pointed me to pertinent briefs. Thank you John Garde, Kirk Hartley, Timothy Kapshandy, Michael Pichini, Robert Pisani, David Speziali, and John Ulizio, for reading drafts, listening to rants, or providing briefs. My article is better for your help, but like Donald Trump, you bear no responsibilities for any errors.

Tort Law’s Sleight of Hand – Part 6

August 11th, 2020

The dissenting justices, in an opinion by Justice Gorsuch, would have affirmed the trial court’s application of the bright-line bare metal defense, in DeVries. Citing black-letter law as restated by the American Law Institute, the dissent opined that the common law precedent and policy favored a rule that “the supplier of a product generally must warn about only those risks associated with the product itself, not those associated with the ‘products and systems into which [it later may be] integrated’.”[1]

The dissent criticized the court’s retrospective imposition of a liability rule and its ignoring common law precedent, as well as the unpredictability and cost of the court’s new rule, and the breadth and the difficulty of cabining the three-part test. As part of its criticism of the majority opinion, the dissent argued that the stated rule will lead to incoherent and incongruous results, and presented a parade of horribles that might arise within the scope of the new rule:

“The traditional common law rule [which would recognize the bare metal defense] better accords, too, with consumer expectations. A home chef who buys a butcher’s knife may expect to read warnings about the dangers of knives but not about the dangers of undercooked meat. Likewise, a purchaser of gasoline may expect to see warnings at the pump about its flammability but not about the dangers of recklessly driving a car.”[2]

How telling that all the envisioned bad legal consequences involve one-on-one consumer cases, without the presence of a sophisticated employer as intermediary, operating under a complex regulatory scheme to provide a comprehensive safety program to the end user!

The dissent continues its vision of bad consequences by contemplating the substantial costs placed upon product manufacturers whose products are meant to be used with other companies’ products:

“Consider what might follow if the Court’s standard were widely adopted in tort law. Would a company that sells smartphone cases have to warn about the risk of exposure to cell phone radiation? Would a car maker have to warn about the risks of improperly stored antifreeze? Would a manufacturer of flashlights have to warn about the risks associated with leaking batteries? Would a seller of hot dog buns have to warn about the health risks of consuming processed meat?”[3]

Again, the dissent is fixated on consumer products, used by ordinary consumers, outside of a heavily regulated workplace, and without the need for a highly technical industrial hygiene safety regimen.

When the dissent considered the issue of who was in the best position to warn, Justice Gorsuch simply argued, without evidence, that the parts supplier, not the bare metal manufacturer was in the “best position” to warn:

“The manufacturer of a product is in the best position to understand and warn users about its risks; in the language of law and economics, those who make products are generally the least-cost avoiders of their risks. By placing the duty to warn on a product’s manufacturer, we force it to internalize the full cost of any injuries caused by inadequate warnings—and in that way ensure it is fully incentivized to provide adequate warnings. By contrast, we dilute the incentive of a manufacturer to warn about the dangers of its products when we require other people to share the duty to warn and its corresponding costs.”[4]

Of course, in McAffee’s case, the asbestos insulation manufacturers had been warning for over a decade before he started his service in the Navy. As documented by the plaintiffs’ own expert witness, Barry Castleman:

“In 1964, Johns-Manville (“J-M”) was among the first companies to provide warnings with its asbestos-containing products, namely its asbestos insulation. During and after this time frame, J-M sold asbestos insulation to the United States military. In any extensive review of J-M documents, which have included visits to the J-M archives in Denver, Colorado, I have never seen any evidence that J-M removed or altered the warning labels that appeared on its asbestos insulation for sales to the United States military.”[5]

As for the argument without evidence about which party, bare metal manufacturer or asbestos-insulation manufacturer, can “best” warn, all the justices ignored the party that can truly best warn, the government. Placing liability on any supplier dilutes the incentive for the Navy to carry out its statutory duties. As Justice Gorsuch acknowledged:

“Tort law is supposed to be about aligning liability with responsibility, not mandating a social insurance policy in which everyone must pay for everyone else’s mistakes.”[6]

It really is time for remote suppliers to stop having to pay for injuries caused by their purchasers, especially when the purchasers are knowledgeable and have duties to protect their employees from the injuries claims.

As disconnected as the justices in DeVries were from the realities of military service-related and industrial injuries, there is some good news to come out of the high court. First, despite the suggestions of why there might be a duty, the  Court did not hold that there was a duty; it provided three considerations for the trial court’s determining whether a duty exists, on remand.

Second, the Court located the relevant considerations for the existence and scope of a putative duty in Section 388. Although all the justices missed the relevance of this section to the three-way industrial situation, the case law under Section 388 is voluminous, and speaks directly to the situation of a “chattel to be supplied for the use of another.” In fairness to the Court, and to the parties, the case did not go up on appeal on the basis of a “sophisticated intermediary” defense. Summary judgment had been granted below on the simple notion that a seller should not be responsible for warning of another company’s product. The manufacturer appellants did extensively discuss Navy knowledge or changing “state of the art,” in their briefs. At best, the appellants’  discussions were tangential. The shape of the initial summary judgment motion may have been shaped by an earlier decision of the asbestos MDL court, which rejected the sophisticated intermediary defense under maritime law.[7] The Supreme Court’s embrace of Section 388, and its incorporation of 388’s standards, into the three articulated conditions for the existence of a duty (and particularly into the third condition, “the manufacturer has no reason to believe that the product’s users will realize that danger.”).

Third, there is a renewed summary judgment motion now pending before the MDL court. In addition to now explicitly raising a government contractor defense,[8] the defendants have carefully marshaled the evidence of Navy knowledge to show that the third condition of DeVries must necessarily fail: the manufacturer had ample reason to believe that the product’s users will realize the relevant danger.[9]


[1]  DeVries, 139 S.Ct. at 997 (Gorsuch, J., dissenting) (quoting from Restatement (Third) of Torts: Products Liability § 5, Comment b, p. 132 (1997)).

[2]  DeVries, 139 S.Ct. at 998 (Gorsuch, J., dissenting).

[3]  DeVries, 139 S.Ct. at 999 (Gorsuch, J., dissenting).

[4]  DeVries, 139 S.Ct. at 999 (Gorsuch, J., dissenting) (citing Steven Shavell, Economic Analysis of Accident Law 17 (1987); Guido Calabresi, The Costs of Accidents 135 & n. 1 (1970); Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 324 (1964)).

[5]  Declaration of Barry L. Castleman (July 18, 2008), in Joint Appendix, vol. 2,  at 462, in Air and Liquid Systems Corp. v. DeVries, No. 17-1104 (filed July 9, 2018), available at <http://www.supremecourt.gov/DocketPDF/17/17-1104/52622/20180709143550603_17-1104%20JA%20Vol.%20II.pdf>

[6]  DeVries, 139 S.Ct. at 999 (Gorsuch, J., dissenting).

[7]  Mack v. General Electric Co., 896 F. Supp. 2d 333 (E.D. Pa. 2012).

[8]  Boyle v. United Technologies Corp., 487 U.S. 500 (1988).

[9]  See Memorandum of Law in support of Defendant General Electric Company’s Renewed Motion for Summary Judgment, in DeVries v. General Elec. Co., no. 5:13-cv-00474-ER, docket entry no. 396 (E.D. Pa. filed April, 1, 2020).