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Tort Law’s Sleight of Hand – Part 4

August 8th, 2020

Beshada’s refusal to consider the industrial context of asbestos claims, with the usual involvement of sophisticated employers charged with providing a complex safety program for its workers, became the judicial norm in many decisions in state and federal courts. Ostensibly this alleged inequality of knowledge about latent hazards would justify limiting the application of the sophisticated intermediary doctrine. Many courts accepted the claim, often without evidence, that the dissemination of knowledge of asbestos hazards was different from the pervasive understanding of silica, cobalt, beryllium, benzene, and other hazards.

Low-level, or short and intense exposures to one kind of asbestos, crocidolite, is associated with mesothelioma, but many manufacturers did not use crocidolite in their products and the knowledge about this danger of crocidolite emerged in a very dramatic and public way such that there was not likely to be any “secret” knowledge held back by the product manufacturers. The scientific evidence of the carcinogenicity of other fibers emerged at different times, and with respect to mesothelioma, there is clearly a dramatic difference in hazardous potentials between and among the different mineral fibers that make up the commercial category of asbestos. Clearly some courts have been impressed by the special hazards of “asbestos,” from even fleeting or nominal exposures, without distinguishing mineral fiber types.

In 1985, the Fourth Circuit, applying Virginia law, refused to apply the learning of Section 388 to an asbestos case arising out of employment by the Newport News Shipbuilding and Drydock Company. Without citing any evidence, the court explained that the defense was unavailable because the hazard was “very great,” the burden to warn was “not great,” and the employer was unaware of asbestos hazards during plaintiffs’ employment before 1964.[1] The employer at issue was a huge industrial concern, with an extensive industrial hygiene department. Furthermore, the shipyard was building ships for the United States Navy, under Navy supervision of almost a century when these cases were filed.

In 1990, the Fourth Circuit held in Willis v. Raymark Industies, that its previous 1985 decision was binding, even though the Willis case involved employees of E.I. du Pont & Nemours Company, a different employer from the court’s previous case.[2] The legal irony was thick. A year earlier, in 1989, the New Jersey Supreme Court affirmed a judgment against du Pont in a case brought by employees who established at trial that their employer had intentionally harmed them with respect to their use of asbestos.[3] One of the plaintiffs’ key “state of the art” witnesses throughout the 1980s and 1990s was Gerrit W. H. Schepers, who was the directory of the pathology laboratory at du Pont in the 1950s, and went on to work for the United States government in the 1960s and 1970s. As a testifying expert witness for plaintiffs, Schepers attempted to establish knowledge of asbestos hazards throughout the 1940s and afterwards.

Asbestos manufacturing defendants fared slightly better in front of Judge Jack Weinstein, after New York modified its statute of limitations to include a discovery rule for latent diseases arising from asbestos exposure. The defendants moved to dismiss the claims under the sophisticated intermediary doctrine.[4] In its analysis, citing New York and general case law support, the Judge Weinstein acknowledged the general availability of the doctrine, noting that:

“In certain circumstances, if the chain of distribution is such that the duty to warn ultimate users logically falls upon an intermediary in the chain, instead of the manufacturer, the “sophisticated intermediary” doctrine may completely protect a manufacturer from liability under a theory of negligence.”[5]

Judge Weinstein stopped short, however, of recognizing the sophisticated intermediary defense as dispositive in asbestos cases because, “the latent quality of the defect in asbestos products makes the issue of sophisticated intermediary and intervening negligence questions of fact for the jury to decide.”[6]

The rationale did not, however, explain very much, given that virtually all the sophisticated intermediary cases involved a latent defect. Judge Weinstein gave virtually no consideration to the extensive knowledge the United States government had about asbestos hazards in its shipyards, at all times that were material to the cases before him.

Knowledge of hazards of any product may change over time, as can the regulatory context for the use of the product. In 1970, the Occupational and Safety Health Act (OSHA)[7] went into effect, and essentially federalized employers’ obligations to provide comprehensive safety programs. The federal government gained increased authority to establish and enforce safety and health standards for virtually all workers in the United Sates. Previously, only companies with federal contracts were subject to regulations and inspections under the Walsh-Healy Act.

In 1971, President Nixon signed an Executive Order that acknowledged that the federal government, as the country’s largest employer:

“has a special obligation to set an example for safe and healthful employment. It is appropriate that the Federal Government strengthen its efforts to assure safe and healthful working conditions for its own employees.”[8]

The Order went on to make OSHA regulations applicable to federal places of employment.

After the passage of OSHA, employers in both the private and public sectors could no longer legitimately claim ignorance of their obligations to provide a comprehensive safety program that included engineering and administrative controls over respirable dusts and fumes. Detailed regulations concerning respirators, when and how they should be selected, used, fitted, cleaned, and replaced became national law.

The passage of OSHA affected courts’ willingness to extend Section 388 to asbestos personal injury cases. In some cases involving exposures after the creation of federal OSHA, courts have upheld the applicability of the sophisticated intermediary as a complete legal defense. For example, in Triplett v. Minnesota Mining & Manufacturing Company, the court, applying Indiana law, granted summary judgment to a respirator manufacturer, on basis of the sophisticated intermediary defense, in a post-OSHA asbestos lung cancer case.[9] Similarly, in Bean v. Asbestos Corporation Limited, a Virginia trial court upheld the defense for asbestos sales after 1970.[10] The courts in Triplett and Bean emphasized the equality of knowledge of asbestos hazards among suppliers and employers. In essence, the courts were taking judicial notice, based upon OSHA, that employers were knowledgeable and sophisticated about the relevant hazards.

In the early days of the asbestos litigation,[11] defendants made several attempts to implead the government, or to sue for indemnification after settling. With some few exceptions, these efforts were largely unsuccessful.[12]  There is, however, a huge corpus of primary historical documents that evidences the Navy’s extensive and sophisticated knowledge and expertise in the hazards of asbestos exposure.  In 1842, Congress enacted legislation that included the creation of the Navy Bureau of Medicine and Surgery (BUMED). Congressional legislation in 1871 gave the chief of BUMED the title of Surgeon General, with the rank of commodore. In addition to BUMED, the Navy would develop several operational divisions, including Naval Operations, Office of Naval Research, Office of Industrial Relations, Bureau of Naval Personnel, and Bureau of Ships, with overlapping responsibilities for health and safety. The Navy regarded asbestos insulation and fireproofing as essential to its military goals, and these multiple divisions all addressed safe use of asbestos materials.

Since at least 1922, the Navy kept informed of occupational hazards, including asbestos, through its own research, and through input from the Public Health Service and from other published research.[13] As war production of naval vessels ramped up in 1940, the Navy took an extensive interest in asbestos safety, both for Naval shipyards, as well as for private commercial shipyards that were constructing naval vessels.[14] The Navy published various journals and magazines to disseminate information to its medical and safety officers. Some of the relevant publications were Safety Review, starting in 1944, United States Navy Medicine, The Naval Medical Bulletin, and United States Navy Medical News Letter.

In the post-war era, the Navy remained intensely interested in the developing scientific record of asbestos hazards. Just as an example of the Navy’s continued monitoring of occupational health and safety developments from the academic, industrial, and labor communities, the reader may wish to look at the published Proceedings of the Third Annual Navy Industrial Health Conference (April 1951). This publication included an attendance list several pages long, showing naval officers from Naval Operations, Office of Naval Research, Office of Industrial Relations, Bureau of Ordinance, Bureau of Naval Personnel, and Bureau of Ships. The chief industrial hygienist from each Naval Shipyard was in attendance. The Navy’s conference was held concurrently with conferences of the Industrial Medical Association, and the American Conference of Industrial Hygiene Association. Over 100 medical officers, medical service corps industrial health officers, civilian industrial hygienists and nurses, from over 80 Navy stations and shipyards attended. Here is how the Proceedings described the Navy’s efforts:

“Industrial health is not new in the Navy. An occupational health service, similar to those in effect at great corporations as General Motors, Du Pont, Westinghouse and many others, has been functioning since 1941. * * *

The Navy has been in the forefront, along with other government agencies and great private corporations in developing an effective occupational health program. This period of defense mobilization finds the Navy among the leaders in the field or industrial medicine and industrial hygiene.”

The Navy was well aware of the increasing evidence of associations between asbestos exposures and some cancer outcomes.  Not that the Navy needed any warnings, in 1968, Irving Selikoff, of Mt. Sinai Medical Center, made a splashy media story about his having “warned” the Navy and other branches of the government about asbestos cancer hazards.[15]

For those who do have years to commit to reviewing the primary historical evidence, there is a substantial historical literature of secondary evidence that summarizes the key historical evidence.[16] The massive weight of the primary and secondary evidence makes incontrovertible the conclusion that the United States had equal or greater knowledge of the hazards of asbestos at all relevant times, and that the government was in a vastly superior position to control asbestos exposures, outfit employees and servicemen with personal protective devices, and to communicate risk information.

The tort law significance of the Navy knowledge is great. Historically, a large percentage of asbestos personal injury claims have been filed by Navy sailors and civilian shipyard workers at Navy and private contract shipyards, where they worked on naval vessels that incorporated asbestos-containing insulation products.

In some states, employer knowledge was inadmissible in strict liability cases, and plaintiffs’ counsel would withdraw their negligence claims when they saw that defense counsel were prepared to implicate the government and its extensive knowledge. Even in so-called strict liability cases, the intermediary’s knowledge had important potential in defending against punitive damage claims, which were often still in the case. And in some states, employer knowledge remained a defense in products liability trials, even when summary judgments were not given.[17]

In the Philadelphia County, Pennsylvania, asbestos litigation, plaintiffs’ counsel soon learned that reverse-bifurcation fit their litigation model perfectly: quick, inexpensive trials without the bother of countering liability defenses. When defendants occasionally found a judge who would permit all-issue trials, and they presented “state-of-the-art” or sophisticated intermediary defenses, they often surprised themselves as well as plaintiffs’ counsel and judges with their success.[18]

[1]  Oman v. Johns-Manville Corp., 764 F.2d 224, 233 & n.5 (4th Cir. 1985), cert. denied sub nom. Oman v. H.K. Porter, 474 U.S. 970 (1985). In 1985, the Fourth Circuit decided Beale v. Hardy, 469 F.2d 213 (4th Cir. 1985), which held that Section 388 was a complete defense in silicosis cases under Virginia law, in the absence of any warnings.

[2]  Willis v. Raymark Indus., Inc., 905 F.2d 793, 797 (4th Cir. 1990) (disallowing sophisticated intermediary defense based upon unsupportable factual predicate).

[3]  Millison v. EI Du Pont De Nemours & Co., 115 N.J. 252, 558 A.2d 461 (1989).

[4]  In re Joint Eastern & Southern District Asbestos Litig., 827 F. Supp. 1014 (S.D.N.Y. 1993).

[5]  827 F. Supp. at 1055 (citing both the Goodbar case and Restatement (Second) § 388).

[6]  Id. at 1055 (citations omitted).

[7]  84 Stat. 1590 (1970)

[8]  Executive Order 11612—Occupational Safety and Health Programs for Federal Employees (July 26, 1971), available at https://www.presidency.ucsb.edu/documents/executive-order-11612-occupational-safety-and-health-programs-for-federal-employees, last visited Aug. 7, 2020.

[9]  422 F. Supp. 2d 779 (W.D. Ky. 2006).

[10]  1998 WL 972122 (Va. Cir. Ct. 1998).

[11]  Dube v. Pittsburgh Corning Corp., 870 F.2d 790, 796-800 (1st Cir.1989) (holding that the government’s failure to warn of asbestos exposure hazards was not protected by discretionary function exception to the Federal Tort Claims Act, when Government never made affirmative decision whether to warn).

[12]  See generally Susan L. Barna, “Abandoning Ship: Government Liability for Shipyard Asbestos Exposures,” 67 New York Univ. L. Rev. 1034 (1992) (describing multiple attempts to obtain contribution or indemnification); Statement of Linda G. Morra, Associate Director Human Resources Division, on behalf of the United States General Accounting Office, “The Status of Asbestos Claims Against The Federal Government”; before the House Committee on the Judiciary, Subcommittee on Administrative Law and Governmental Relations (June 30, 1988).

[13]  See Louis Israel Dublin & Philip Leiboff, “Occupation Hazards and Diagnostic Signs: A Guide to Impairments to Be Looked for in Hazardous Occupations”; U.S. Bureau of Labor Statistics Bull. No. 306 (1922), republished as “Notes on Preventive Medicine for Medical Officers, United States Navy; Instructions to Medical Officers,” in 17 Division of Preventive Medicine 883, 898 (1922) (describing signs and symptoms of pneumoconiosis caused by chronic occupational asbestos exposure). Of course, the Navy was bound by the knowledge of the public health agencies as a matter of law. See Miller v. Diamond Shamrock Co., 275 F.3d 414, 422-23 (5th Cir. 2001) (“There can be no reasonable dispute that knowledge possessed by the United States Public Health Service, the Army Chemical Corps Chemical Warfare Laboratories, the President’s Science Advisory Committee, the National Academy of Sciences, the Office of the Army Surgeon General, the Navy’s Bureau of Medicine and Surgery, and the Advanced Research Project Agency of the Department of Defense is the knowledge of the military.”)

[14]  Ernest M. Brown, “Industrial hygiene and the Navy in national defense,” 1 War Medicine 3 (1940) (listing over a dozen occupational hazards in United States Naval shipyards, including asbestosis among workers who made pipe-insulation covering).

[15]  Thomas O. Toole, “U.S. Warned of Asbestos Peril,” Wash. Post A4, col. 1 (Dec. 4, 1968) (describing Dr. Selikoff’s warnings to the Navy and other branches of the U.S. government about the malignant and non-malignant risks of asbestos exposure).

[16]  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) (detailing historical documentation of the Navy’s knowledge of asbestos hazards in its shipyards); Denis H. Rushworth, “The Navy and Asbestos Thermal Insulation,” Naval Engineers J. 35 (Spring 2005); Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988) (providing a history of Navy knowledge through World War II); Jacqueline Karnell Corn & Jennifer Starr, “Historical perspective on asbestos: Policies and protective measures in World War II shipbuilding,” 11 Am. J. Indus. Med. 359 (1987); Peter A. Nowinski, “Chronology of Asbestos Regulation in United States Workplaces,” in Karen Antman & Joseph Aisner, eds., Asbestos-Related Malignancy  99 (1986) (Nowinski represented the government in direct lawsuits against the United States for its role in creating the asbestos hazards of federal and contract shipyards). See also Rachel Maines, Asbestos and Fire: Technological Tradeoffs and the Body at Risk (2005).

[17]  See, e.g., In re Related Asbestos Cases, 543 F.Supp. 1142 (N.D. Calif. 1982) (permitting defendants to assert that Navy was sophisticated user as an affirmative defense at trial).

[18]  See, e.g., O’Donnell v. The Celotex Corp., Phila. Cty. Ct.C.P., July 1982 Term, Case. No. 1619 (trial before Hon. Levan Gordon, and a jury; May 1989) (defense verdict in case in which plaintiffs presented negligence claims and defendants presented extensive evidence of the Navy’s superior knowledge of asbestos hazards and control of workplace).

Posted in Asbestos, Sophisticated User, State of the Art | Comments Off on Tort Law’s Sleight of Hand – Part 4

Tort Law’s Sleight of Hand – Part 3

August 3rd, 2020

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

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

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

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

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

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

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

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

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

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

[2]  90 N.J. at 196, 447 A.2d at 541.

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

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

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

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

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

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

[9]  See Berry at 794-95.

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

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

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

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

Posted in Asbestos, State of the Art | Comments Off on Tort Law’s Sleight of Hand – Part 3

Tort Law’s Sleight of Hand – Part 2

August 2nd, 2020

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

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

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

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

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

Section 388. Chattel Known to Be Dangerous for Intended Use

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

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

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

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

Comment n to Section 388 observed that

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

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

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

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

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

[1]  See, e.g., New York “Industrial Code Rule No. 12 – Control of Air Contaminants” (1956) (governing “all processes and operations releasing or disseminating air contaminants in any workroom or work space,”  and defining the employer’s duties to protect workers, regardless of the industry sector or manufacturing process), based upon New York Labor Law § 200 (enacted 1921). See also James D. Hackett, “Silicosis,” N.Y. Dep’t Labor & Industry Bull. 11 (Dec. 1932); Frieda S. Miller, Industrial Commissioner, “Detection and Control of Silicosis and Other Occupational Diseases” (1940); Adelaide Ross Smith, “Silicosis and Its Prevention, Special Bulletin No. 198” (1946).

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

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

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

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

[6]  Id. at 1105.

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

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

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

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

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

Posted in Asbestos, State of the Art | Comments Off on Tort Law’s Sleight of Hand – Part 2

Historical Malfeasance from Lawsuit Industry Expert Witnesses

July 31st, 2020

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

― Robert A. Heinlein, Stranger in a Strange Land

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A. No, he was an engineer.

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

A. Yes.

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

A. Yes. Yes.

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

A. Yes.[10]

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

The Biological Action of Talc and Other Silicate Minerals

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

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

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

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

Schepers’ Letter to Grover Wrenn

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

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

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

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

Schepers’ letter to Grover Wrenn is not in ToxicDocs.

Schepers’ Letter to Navy Captain D. F. Hoeffler

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

Dear Captain Hoeffler:

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

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

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

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

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

Sincerely,

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

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

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

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

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

What a waste of taxpayers’ money!

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

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

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

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

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

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

[7]  Id.

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

[9]  Id. at 234:19 – 235:15.

[10]  Id. at 236:1-17.

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

[12]  Id. at 65.

[13]  Id. at 68.

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

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

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

Big Blue versus Asbestos Fiber Type Egalitarianism

July 16th, 2020

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

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

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

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

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

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

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

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

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

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

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

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

Port of Houston Magazine 21 (May 1966)

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

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

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

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

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

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

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

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

Occup. & Envt’l Med. 616 (2007).

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

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

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

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

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

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

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

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

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

The Lobby – Cut on the Bias

July 6th, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 3rd, 2020

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

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

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

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

What is a fiber?

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

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

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

What was the estimated exposure?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[6]  Appellants’ Brief at 52.

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

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

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

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

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

[12]  Slip op. at 53.

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

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

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

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

June 26th, 2020

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

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

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

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

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

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

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

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

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

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

Reid also reported the absence of other indicia of causation:

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

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

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

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

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

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

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

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

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

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

The Egilman Challenge

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

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

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

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

Does Egilman’s opinion hold water?

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

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

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

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

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

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

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

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

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

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

[8]  Reid at 1293, 1287.

[9]  Id. at 1293.

[10]  Id. at 1294.

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

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

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

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

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

[16]  Id. at 30.

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

[18]  Id. at 30.

[19]  Slip op. at 54.

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

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

Legal Remedies for Suspect Medical Science in Products Cases – Part Two

June 3rd, 2020

The Federal Multi-District Silicosis Proceedings Before Judge Janis Jack

One of the most significant developments in the role of scientific and medical evidence gatekeeping under Rule 702, and the Supreme Court’s decision in Daubert,[1] was the 2005 opinion of Judge Janis Graham Jack in the multi-district silicosis litigation.[2] Judge Jack’s lengthy opinion addresses a variety of procedural issues, including subject matter jurisdiction over some of the cases, but Her Honor’s focus was “whether the doctors who diagnosed Plaintiffs with silicosis employed a sufficiently reliable methodology for their testimony to be admissible” and “whether Plaintiffs’ counsel should be sanctioned for submitting unreliable diagnoses and failing to fully comply with discovery orders.”  Judge Jack held that thousands of diagnoses of silicosis were radically flawed and could not be treated as proper science or medicine, and she imposed sanctions against plaintiffs’ lawyers in the cases over which she had subject matter jurisdiction.

In summary, Judge Jack held that to pass the minimum reliability analysis under Daubert, a diagnosis of silicosis requires:

“(1) an adequate exposure to silica dust with an appropriate latency period,

(2) radiographic evidence of silicosis, and

(3) the absence of any good reason to believe that the radiographic findings are the result of some other condition (i.e., a differential diagnosis).

* * * * *

As discussed above, these three criteria are universally accepted, as demonstrated by learned treatises and experts in the field.  It is the implementation of these criteria in these cases which ranged from questionable to abysmal.”[3]

With respect to the first criterion, evidence of “adequate exposure to silica dust with an appropriate latency period,” the court concluded that “[t]he ‘exposure histories’ (or ‘work histories’) were virtually always taken by people with no medical training, who had significant financial incentives to find someone positive for exposure to silica (or asbestos, depending on which type of suit the employing law firm was seeking to file).”[4]  The court went on to state that:

“[t]hese ‘histories’ were devoid of meaningful details, such as the duration and intensity of exposure, which are critical to determining whether someone has sufficient exposure, dosage and latency to support a reliable diagnosis.”[5]

Judge Jack, who had been a registered nurse before going to law school and becoming a lawyer, was clearly concerned that the medical “histories were taken by receptionists [at medical screening companies allied with plaintiffs’ counsel] with no medical training.”[6]  The head of one of the screening companies “testified that the doctors who worked for his screening company simply relied upon the abbreviated work histories that [the screening company] supplied them.”[7]  As a former nurse, Judge Jack was probably more than a little put off by the screening company executive’s explanation that “to ask the doctor to take a work history in our field would be like asking [the defense attorney questioning him] to wash my car.  I mean it’s . . . very beneath him.”[8]  Judge Jack rejected this approach entirely, and found that legitimate doctors would find it necessary to take the occupational history themselves:

“This type of thorough, detailed, physician-guided work/exposure history is the kind of history that experts in the field of occupational medicine insist upon when diagnosing silicosis.  It is therefore the type of history required by the Federal Rules for these diagnoses to be admissible.  Cf. Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194, 198 (5th Cir. 1996)… .”[9]

The second required predicate for an admissible diagnosis of silicosis was an appropriate radiographic finding – a so-called “B-read,” which is simply the interpretation of a physician, who has passed a certifying proficiency examination given by the National Institute of Occupational Health, for evaluating chest films for pneumoconiosis, using a standardized scale and notations.  Judge Jack discerned, contrary to the approach taken by some of the plaintiffs’ lawyers and certain doctors, that a positive B-read was not “a talisman that would dispel any doubts about the diagnoses as a whole.”[10]  A positive B-read simply is not sufficient alone to support a silicosis diagnosis.

Judge Jack noted that a consensus report of the American College of Occupational and Environmental Medicine rejected the use of a B-read alone as sufficient to support a diagnosis of pneumoconiosis, and emphasized the views of one testifying physician that the “ILO guidelines, by their express terms, [were] ‘not supposed to be used for designation of disease or determining compensation.’ ”[11] But even apart from rejecting the concept that a positive B-read was by itself a sufficient basis for a diagnosis of silicosis, Judge Jack fundamentally criticized the manner in which the X-rays at issue were conducted.

The B-reader system was not originally established for use in litigation, but as part of a coal workers’ surveillance program to determine whether a worker should be transferred to a low-dust environment.  And under this surveillance program, the worker is not transferred until at least two B-readers agree on a positive read.  But in most of these MDL cases, a single positive B-read was deemed sufficient by plaintiffs’ hired witnesses to establish a diagnosis of silicosis.[12]

Judge Jack also stressed that the methodology followed by the B-readers did “not correspond to the ILO’s recommended methodology for applying the ILO classification system, because according to ILO guidelines:

“When classifying radiographs for epidemiological purposes it is essential that the reader does not consider any information about the individuals concerned other than the radiographs themselves.  Awareness of supplementary details specific to the individuals themselves can introduce bias into the results.”[13]

In the cases before her, Judge Jack found that it was obvious that the so-called B-reader was “acutely aware of the precise disease he is supposed to be finding on the X-rays.  In these cases, the doctors repeatedly testified that they were told to look for silicosis, and the doctors did as they were told.”[14] Business pressures had obviously corrupted the diagnostic process, and resulted in improbable consistency in finding silicosis in whomever plaintiffs’ lawyers signed up for litigation.

This corrupt consistency, and obediency to retaining plaintiffs’ counsel, which led to Judge Jack’s approval of the testimony from the hearings that advanced the notion that some degree of blinding is needed to assure the integrity of the diagnostic process. When the radiographic films come from a mass screening, the readers should be confronted with films known to be negative through multiple, independent evaluations.

The third criterion given by Judge Jack for an admissible diagnosis of silicosis, was a proper “differential diagnosis,” which consisted of a showing of “the absence of any good reason to believe that the positive radiographic findings are the result of some other condition.”[15]

One of the physicians whose diagnoses were challenged claimed that this ruling out of other explanations for a radiographic pattern was not required for diagnosing silicosis, but Judge Jack found that this self-serving opinion was contradicted by the major textbooks in the field, by the physicians who showed up to testify in the hearings, and even by the plaintiffs’ own briefs. Judge Jack adverted to the language of Daubert to note that one factor to be considered in the “reliability” of an expert witness’s opinion was its general acceptance in the relevant scientific community.[16] The self-validating views of plaintiffs’ expert witnesses simply were not generally accepted in any legitimate segment of the medical profession. And thus Judge Jack found that, in the MDL cases, the plaintiffs’ expert witnesses’ failure to exclude other alternative causes of the radiographic findings clearly was not generally accepted in the field of occupational medicine, and that their opinions did not satisfy the requirements of Rule 702.[17] A proper differential diagnosis required what was lacking across the board in the cases, namely “a thorough occupational/exposure history and medical history,” as well as a social history that included travel destinations.[18]

In addition to Judge Jack’s carefully reasoned conclusions about the diagnostic “process” used by the challenged expert witnesses, Her Honor was presented with additional evidence of the egregious infirmity of the challenged diagnoses:

– The willingness of one doctor to render opinions on 1,239 plaintiffs in the MDL when he was admittedly not a qualified B-reader, not an expert in silicosis treatment, not qualified to read X-rays or CT scans, did no physical examinations, simply took whatever histories had been given to him by the plaintiffs’ lawyers, and spent a negligible amount of time reviewing each of the plaintiffs’ files.  The doctor testified that his practice consists almost entirely of litigation consulting and that he charges $600 per hour for that work.

– Another doctor’s abandonment of about 3,700 diagnoses under the scrutiny generated by the hearings before Judge Jack.

– The fact that 1,587 claimants who had previously been listed as having asbestosis, with no reference to silica disease, had their diagnoses changed to silicosis, with no reference to asbestos disease.  These diagnoses were produced rapidly and in large groups.

– The fact that a purported epidemic of silicosis apparently began abruptly in early 2001, when plaintiffs’ lawyers turned their attention to this alternative to asbestos litigation, and the fact that many of the silicosis claimants were recycled asbestosis clients of the plaintiffs’ firms.

The specific facts before Judge Jack may seem extreme, but the same or similar abuses have been commonplace in asbestos litigation for a long time before they were outed in the silicosis MDL.  The crucial holdings of In re Silica go beyond the serious depravity of the expert witnesses involved.

Raymark v. Stempel

In 1990, one now defunct asbestos product manufacturer, Raymark Industries, Inc. (“Raymark”), deluged with dubious lawsuits, brought RICO and other claims against medical professionals, lawyers, and claimants.[19]  Raymark based its allegations on deceptions that led it to settle an asbestos personal injury class action.

In ruling upon defendants’ motions to dismiss, the district court found that defendant medical screeners had disregarded standards set by the American Thoracic Society and reported that workers had asbestos-related “injuries” even thought the radiographic interpretations had no clinical significance.  The court stated that the screening program had produced a “steady flow of faulty claims” and was a “fraud on the court.”[20]  The court thus refused to dismiss Raymark’s claims based on common law fraud and RICO violations.[21]

Owens Corning Fiberglass Bankruptcy Proceedings

The efforts to curtail frivolous asbestos claims also include the motion by Credit Suisse in the Owens Corning bankruptcy for leave to file an adversary complaint against certain physicians who reported chest radiographs as positive for asbestos-related diseases.  This motion was granted conditionally on the agreement of Credit Suisse to indemnify Owens Corning for any potential ensuing liability, but then was withdrawn when Credit Suisse declined to provide such assurance.

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

[2]  In re Silica Products Liab.Litig., 398 F.Supp. 2d 563 (S.D.Tex. 2005) (“In re Silica”).

[3]  In re Silica. at 622 (internal citations and footnote omitted).

[4]  In re Silica, at 622 -23.

[5]  Id.

[6]  Id.

[7]  Id.

[8]  Id.

[9]  In re Silica, at 623-34.

[10]  In re Silica, at 625 – 26.

[11]  Id. at 626 – 27 (internal quotes omitted).

[12]  Id. at 626.

[13]  Id.

[14]  Id. at 627.

[15]  Id. at 629.

[16]  Id. at 629 – 30 (citing Daubert, 509 U.S. at 593-94; Pipitone v. Biomatrix, Inc., 288 F.3d 239, 246 (5th Cir. 2002) (upholding admissibility under Rule 702 when a physician’s “elimination of various alternative causes. . . .were [sic] based on generally accepted diagnostic principles related to these conditions”).

[17]  Id. at 629 – 30.

[18]  Id. at 630 – 32 (coccidioidomycosis is endemic to some parts of the United States and resembles silicosis radiographically).

[19]  Raymark Indus., Inc. v. Stemple, 1990 WL 72588 (D. Kan., May 30, 1990).

[20]  1990 WL 72588 at *2, *8, *18, *22.

[21] See Nathan Schachtman, “Medico-Legal Issues in Occupational Lung Disease Litigation,” 27 Sem. Roentgenology 140 (1992) (discussing Semple in greater detail). It is unclear how Stemple was ultimately resolved.  The court’s docket does not indicate whether this case was dismissed, voluntarily, involuntarily, as a result of settlement, or otherwise.  The clerk of the court reported that this case was sealed under court order.

Posted in Asbestos, Expert Witnesses, Rule 702, Silica | Comments Off on Legal Remedies for Suspect Medical Science in Products Cases – Part Two

Legal Remedies for Suspect Medical Science in Products Cases – Part One

June 2nd, 2020

Expert witness opinions about the nature and cause of plaintiffs’ medical conditions, are the linchpin of mass tort cases involving claims of bodily injury from allegedly harmful products.  The quality of these expert witness opinions has long been the subject of debate, but the explosion of products liability cases has brought increasing scrutiny, especially in cases involving asbestos, silica, and pharmaceutical claims.[1]

Courts, Congress, and commentators have raised concerns about the scientific and medical validity of the opinions offered in support of certain product liability claims, whether certain of the individuals who offer such opinions have a proper degree of independence from the lawyers representing the plaintiffs, and whether there is any way to address these questions apart from a rejection of the individual claims in which the bogus opinions are offered.  Famously, Judge Janis Jack of the United States District Court for the Southern District of Texas addressed these issues in a lengthy decision in which she excoriated physicians, medical screeners, and plaintiffs’ lawyers who she concluded had transgressed basic ground rules of medical and legal propriety in connection with silicosis claims.[2]

The stakes generated by the availability of these medical/technical opinions are especially high in mass torts that involve medical assessments of thousands of claimants.  The pendency of asbestos claims has driven well over 100 companies into bankruptcy, and with that example, any industry facing a substantial wave of repetitive liability claims must be concerned about how to respond to what it believes are false or unfounded claims. Clients ask whether there are remedies for the promotion of false, fraudulent, or just inadequate medical science under the banner of seeking compensation in products liability cases. The answers remain less than clear.

Some Past Attempts to Remedy the Harm from Dubious Science in Products Cases

GAF’s Litigation against the Asbestos Lawsuit Industry

On January 10, 2001, G-I Holdings Inc., the successor to GAF Corporation (“GAF”), filed suit against a group of asbestos personal injury lawyers who it alleged had “orchestrated a scheme to inundate the judicial system with hundreds of thousands of asbestos cases without regard to their merit.”[3] Among the allegations were claims that the plaintiffs’ firms had “suborned perjury and fabricated evidence” and “induced expert witnesses to provide false and misleading testimony, all for the purpose of extracting unwarranted and inflated settlements, judgments and, correspondingly, attorneys’ fees, from GAF and other asbestos defendants.”  The complaint alleged that, in 1978, a group of

“approximately 125 plaintiffs’ asbestos contingency fee attorneys banded together to form and fund the Asbestos Litigation Group (“ALG”) in order to further their scheme of promoting asbestos litigation.”  GAF asserted that “acting jointly through the ALG, and through less formal asbestos-related organizations, defendants, upon information and belief, solicited tens of thousands of asbestos claimants and sued manufacturers without regard for, or in conscious disregard of, the merits of their claims against particular individual defendants such as GAF. . . . .pursuant to agreements with each network [of local counsel] member, a share of the fees . . . .is typically channeled back to the referring ALG member, and ultimately to the ALG, to be invested  in future claimant solicitations, including mailed advertisements in newsletters.  This has resulted in the filing of further claims, thereby continuing the scheme, and increasing the network, which spirals ever larger.”

GAF’s complaint specifically included claims relating to the alleged “fabricat[ion]” of “medical evidence.”  In this regard, GAF alleged, upon information and belief, that the plaintiffs’ lawyers had:[4]

  1. . . . .induced medical “experts” to testify falsely. As set forth in the “Toxic Justice” report, [the plaintiffs’ law firm] paid off what one of the firm’s paralegals described as “whore docs” i.e., doctors who for money eagerly attributed virtually any lung abnormality to asbestos exposure, regardless of what medical evidence actually showed.

And GAF complained that:

  1. . . . . these practices induced false and misleading testimony to be given by expert witnesses in support of claims brought against GAF and others, which resulted in GAF’s payment of inflated verdicts and settlements in a number of cases.

While much of GAF’s complaint did not focus specifically on the quality of the medical evidence, it is nonetheless instructive as an overall perspective on the factual framework within which these medical issues arise. GAF’s complaint understandably focused heavily on defendant’s Baron & Budd’s memorandum, entitled “Preparing for Your Deposition.”  GAF alleged that this

“memorandum, apparently created for use in preparing asbestos plaintiffs for deposition, improperly exhorts witnesses to testify in a pre-scripted manner, regardless of the truth.”

For particularity’s sake, GAF alleged, with extensive quotations from the Baron & Budd memorandum, that the memorandum told

“witnesses to identify only those products listed on the Work History Sheets prepared by Baron & Budd (lest the witness identify the product of a bankrupt entity from whom no damages or attorneys’ fees could be collected). . . .and to memorize the product names provided by Baron & Budd on the “Work History Sheets” and to testify that they actually saw those names on containers where they worked. . . .”[5]

The complaint alleges that the memorandum gave further improper instructions to plaintiffs about their testimony, including directions to omit any mention of exposures resulting “from the replacement or removal of old product that could not be identified by brand”; making false claims of “equal exposure to all products”; denying “that they ever saw any warnings or had knowledge concerning the harmful effects of asbestos.”

GAF alleged a variety of other concerted actions to file false asbestos claims.  These activities allegedly included withholding “from production in discovery death certificates for asbestos claimants that did not support the conclusion that the individual had died as a result of an asbestos-related disease”; conducting “periodic in-house training sessions to teach other attorneys and/or paralegals how to prepare all asbestos claimants to give scripted testimony in their depositions. . . . .without regard for whether or not the testimony was true”; participating in a scheme to falsify Court records to indicate that complaints were filed before the running of the statute of limitations; and submitting affidavits containing false information concerning the identity of products.

The complaint also contained a number of allegations to the effect that the defendant law firms had “used their considerable resources and power in an attempt to intimidate and deter GAF (and others) from exercising their constitutionally protected rights to petition Congress in support of legislation that would establish a fair and efficient administrative facility for resolving legitimate asbestos claims without the years of delay and wasteful fees and transaction costs that are characteristic of the current system.  Defendants have waged a full-scale, multi-front war against those seeking passage of a Congressional bill entitled the “Fairness in Asbestos Compensation Act.”

The suit pled claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”),[6] and under numerous other headings of state, and federal, law.[7]  The lawsuit industry defendants brought a series of motions to dismiss on the pleadings, with successive amended complaints filed, until there was nothing left of GAF’s complaint.[8]  For example, part of the case – relating to the Baron & Budd memorandum discussed above — pleaded fraud based on information and belief.  Judge Sweet dismissed that aspect of the fraud claims on the grounds that Federal Rule of Civil Procedure 9(b) requires that allegations of fraud be pleaded with specificity and that the plaintiff must provide a statement of facts upon which the belief of the existence of fraud is founded.  Judge Sweet concluded that GAF had repeatedly failed to meet this requirement.

Federal and State Prosecutions against Physicians and Screening Companies

After Judge Jack’s exposé of fraudulent and false diagnoses in the silicosis MDL, various news media reported that the United States Attorney’s office in the Southern District of New York was investigating possible criminal charges against the physicians and lawyers who orchestrated the screenings. Historically, there has been little interest among prosecutors in the questionable activities of screening physicians, with some notable exceptions.  In 1990, the United States Attorney’s office, for the Eastern District of Philadelphia, filed a civil RICO against several Philadelphia-area physicians for their role in submitting false and fraudulent Medicare claims.[9]  As pleaded by the government, the fraudulent scheme consisted of soliciting industrial workers for “free” lung screening, at the behest of lawyer clients, for asbestos-related diseases.  The physicians conducted radiologic and pulmonary function examinations, and submitted requests to Medicare for reimbursement of inflated costs for these services and falsely stated that the services were reasonably medically necessary because of diagnoses of chronic obstructive pulmonary disease.[10]  This matter appears to have been resolved before trial, although the docket fails to reveal the exact nature of the resolution.

The false claim problem continues, although the silicosis screenings have abated, and most asbestos plaintiffs’ lawyers have shifted their efforts to the high-yield mesothelioma and lung cancer cases, for which diagnostic accuracy is not typically the dominant issue. Some within the lawsuit industry appear to continue the practice of referring clients to friendly physicians for an examination that will form the basis of a lawsuit, with the consulting physician in turn filing a request for reimbursement with the claimant’s private or public health insurer.  For most insurers, such a claim for reimbursement impliedly represents that the services were reasonably medically necessary, and sometimes the services may well be necessary.  At other times, the services are redundant and provided only for purposes of preparing the examining physician to serve as an expert witness.  In a case I tried early in my career, the testifying expert witness first saw the plaintiff two weeks before trial for no purpose other than to serve as a witness.  The plaintiff had a regular treating physician, and had been examined by another testifying witness, but the plaintiff’s lawyer wanted to have a second testifying witness for trial.  The “Saturday-night” expert witness conducted his examination, and then requested reimbursement for the examination from the plaintiff’s health insurer, and indicated the name of the plaintiff’s counsel as the “referring physician” on the insurance forms.  The trial judge remarkably would not permit cross-examination of the testifying expert witness on the fraud, and suggested that such cross-examination was prohibited by the collateral source rule!  The health insurance industry will occasionally act vigilantly to enforce a lien against a tort recovery, but there has been little evidence of civil or criminal litigation arising from the practice of billing insurers for examinations by physicians who are essentially expert witnesses and not treating physicians.

The Pennsylvania Silicosis Litigation Cock Up

In February 2002, Texas invaded Pennsylvania. No conventional weapons were fired. The Texans took up positions in mobile vans in motel parking lots across eastern Pennsylvania. Without prescriptions, physicians’ orders, or regulatory approval, the Texans directed unlawful X-ray radiation at Pennsylvania workers in the hopes of creating evidence to be used in lawsuits for silicosis. To help establish their litigation beachhead, the Texans hired local mercenaries – a New Jersey company in the business of providing mobile X-ray screenings. Dozens of silicosis lawsuits were created and filed in Philadelphia as a result of the invasion.

On January 25, 2007, the Commonwealth of Pennsylvania, through its Department of Environmental Protection (DEP), responded by fining the New Jersey company, MOST Health Services, Inc. The DEP found that MOST violated Pennsylvania law by conducting X-ray screenings without physician or regulatory approval. For having unlawfully exposed 161 persons to ionizing radiation, DEP assessed a civil penalty of $80,500.00, against MOST. The DEP did not charge the plaintiffs’ lawyers with any violation of Commonwealth regulations.

MOST’s participation in unlawful litigation screenings was not a momentary lapse in judgment. Back in 2000, defense counsel in asbestos cases compelled the testimony of MOST principal Kenneth Warner, who acknowledged then that MOST had not been in the practice of complying with screening regulations. Mr. Warner, however, claimed that the company was in the process of filing appropriate applications to comply.

Workers were invited to the February 2002 MOST screenings by their unions, but the invitation letters were written by Texas lawyers. To participate in the screenings, the workers had to sign a retainer agreement to engage the Texas-based law firm. The workers were told that “legal ethics” required that they hire the sponsoring law firm to represent them before “the attorneys can provide [them] with medical tests.”

Of course, the law in no state permits attorneys to provide medical tests, and especially not X-rays. DEP, like most other states’ regulatory agencies, has promulgated comprehensive regulations that govern virtually every aspect of the use of medical radiation. In Pennsylvania, anyone proposing a “healing arts screening” with X-rays must submit, in advance, a comprehensive, written proposal with details of the proposed screening, the description of the population to be examined, the qualifications of the radiation technician and operator, the quality control to be used, the qualifications of the supervising physician, and the identity and qualifications of the physician who will interpret the radiographs.

The MOST screenings, commissioned by the Texas lawyers, were never authorized by the DEP. No physician was present on site. None of the workers presented prescriptions or physicians’ orders before being unlawfully exposed to radiation. The identity of the physician slated to receive the chest radiographs was never disclosed to DEP.

Ultimately, the films created by MOST were sent to a West Virginia physician, well known and well compensated in dust-disease litigation. This off-site physician diagnosed virtually all of the workers with either asbestosis or silicosis, and a majority of litigants with both asbestosis and silicosis, although he never examined the workers, never interviewed them, and never reviewed their medical records.

In December 2005, the defendants in the silicosis cases that arose from the MOST screenings moved to dismiss on grounds that the claims were the direct result of unlawful activities that violated Pennsylvania public policy. The trial court denied the motion without opinion. Despite the obvious conspiracy between the plaintiffs’ lawyers and MOST to violate Pennsylvania health regulations, no disciplinary actions were brought against the plaintiffs’ lawyers in the cases.

The Pennsylvania fine against MOST seems to have been an exceptional finding. Although the predatory screening practices decried in federal Judge Janis Graham Jack’s now judicial opinion, In re Silica Products Liability Litigation, no other states to my knowledge have taken action against the conspiracies among lawyers, physicians, and mobile screening companies, to violate state health regulations. These conspiracies thrived for some time, in part because of the entrepreneurial enthusiasm of the conspirators, and the failure of courts, bar associations, adversary counsel, state and federal regulators, and medical societies to condemn the screening practices. In the context of silicosis litigation, the “red flags of fraud,” go beyond the manufacturing of diagnoses for money; they mark as dubious the entire enterprise of suing sand suppliers for failure to warn about hazards that were well known to government, industry, labor, and academia from the 1930s, forward.

[1]  The following commentary flows from a joint project that the late R. Nicholas (Nick) Gimbel and I worked on some years ago. Nick’s illness and tragic death prevented us from publishing this work, but I believe it still bears some sort of public airing. Nick Gimbel and I presented some of this commentary in a paper, “Legal Remedies to Address Suspect Medical Science in Product Liability Cases,” for Mealey’s Advanced Insurance Coverage Conference, in Philadelphia, Pennsylvania (Jan. 23, 2006).

[2]  In re Silica Products Liability Litigation, 398 F.Supp. 2d 563 (S.D.Tex. 2005) (“In re Silica”). Although Judge Jack’s deconstruction of the silicosis “epidemic” is famous among defense counsel, Her Honor’s work has been met with willful ignorance by the lawsuit industry. See, e.g., David Michaels, “Deadly Dust,” chap. 8, in The Triumph of Doubt: Dark Money and the Science of Deception (2020) (exhibiting amnesia about one of the largest litigation frauds in the 21st century, so far.)

[3]  For a more complete, scholarly exposition of this case, see Lester Brickman, “Civil RICO: An Effective Deterrent to Fraudulent Asbestos Litigation?” 40 Cardozo L. Rev. 2301, 2344-2402 (2019).

[4]  Fourth Amended Complaint dated August 19, 2002.

[5]  Fourth Amended Complaint, ¶ 61.

[6]   18 U.S.C. § 1961, et seq.

[7]  Other claims in the GAF complaint asserted tortious interference with contract and economic advantage, breach of contract, common law fraud and falsification of documents.  Claims that were dismissed include malicious interference with GAF’s right to petition Congress, violation of 15 U.S.C. § 1 (antitrust laws) and fraudulent inducement.

[8]  See G-I Holdings, Inc. v. Baron & Budd, No. 01-Civ. 0216, 2005 WL 1653623 (S.D.N.Y.); G-I Holdings, Inc. v. Baron & Budd, No. 01-Civ. 0216, 2004 WL 638141 (S.D.N.Y. Mar. 30, 2004);  G-I Holdings, Inc. v. Baron & Budd, 2004 WL 540456 (S.D.N.Y. Mar. 17, 2004); G-I Holdings, Inc. v. Baron & Budd, 2004 WL 374450 (S.D.N.Y. Feb. 27, 2004); G-I Holdings, Inc. v. Baron & Budd, 218 F.R.D. 409 (S.D.N.Y. 2003); G-I Holdings, Inc. v. Baron & Budd, 213 F.R.D. 146 (S.D.N.Y. 2003); G-I Holdings, Inc. v. Baron & Budd, 01 Civ. 0216, 2002 WL 31251702 (S.D.N.Y. Oct. 8, 2002); G-I Holdings, Inc. v. Baron & Budd, 238 F.Supp.2d 521 (S.D.N.Y. 2002); and G-I Holdings, Inc. v. Baron & Budd, 179 F.Supp.2d 233 (S.D.N.Y. 2001).

[9]  U.S. v. MRS Diagnostics, Inc., Civil Action No. 90-3517 (E.D.Pa. May 23, 1990), Complaint.

[10]  Id. at Complaint para. 1(a)-(i).

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