TORTINI

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

Conflict Over Conflicts of Interest

July 12th, 2015

“Let him who is without sin among you be the first to throw a stone … .”       John 8:7

In the recent issue of Carcinogenesis, Jonathan Samet attempts to defend the monograph and carcinogen identification process of the International Agency for Research on Cancer (IARC). Jonathan M. Samet, “The IARC monographs: critics and controversy,” 36 Carcinogenesis 707 (2015) [cited below as Samet]. The defense is largely redundant of a publication earlier this year, in which a gaggle (124) of scientists rallied around the IARC and its carcinogenicity assessments. Neil Pearce, et al., “IARC Monographs: 40 Years of Evaluating Carcinogenic Hazards to Humans,” 123 Envt’l Health Persp. 507 (2015) [cited below as Pearce].

Professor Samet’s editorial is remarkable in several respects. First, the editorial covers the same points and arguments as the opinion piece in the Environmental Health Perspectives. Samet was one of the gaggle of 124, and so his more recent editorial in Carcinogenesis is a redundant, duplicate publication.

Samet identifies recent criticisms of IARC as falling into four categories:

“(i) reliance on epidemiological evidence that may be limited;

(ii) limitations of the IARC process and reluctance to participate in it;

(iii) issues related to specific evaluations and

(iv) issues related to the composition of the Working Groups.”

Samet at 707. Samet’s defense consists largely in following the public health meme of attributing any dissent or disagreement to industry’s conflicts of interest. In his view, IARC used to have a problem with “not maintaining sufficient distance from industrial stakeholders and the associated potential for conflict of interest[1],” but the “industry” problem has now been remedied[2]. And so Samet reasons that any continued criticisms must be the result of the industrial critics’ conflicts of interest[3]. To be sure, industry conflicts of interest are given strict scrutiny. As we shall see, litigation and compensation industry credentials are welcomed at the IARC.

Samet’s defense, which is really an attack on the bona fides of the critics, has become a commonplace in the public health community, and has degraded debate into charges and counter-charges as to who has the greater conflict of interest. This defense ignores both the specific and the general criticisms of the IARC decision process.

As Professor Cornelia Baines has noted, the IARC “process,” carries the risk of group think and of ignoring substantive disagreement. “When experts in the field are chosen, some will come armed with their zealously-promoted and ferociously-defended versions of the ‘truth’, making predictable what they will recommend at the end of the review process.” Cornelia J. Baines, “Transparency at the International Agency for Research on Cancer (IARC),” 361 Lancet 781 (2003). This danger looms especially large when members of IARC working groups have already committed to the conclusion ultimately reached, or have written and published key studies the status of which will be enhanced or undermined by the outcome of the working group’s decision. Samet and the gaggle give no consideration to this potent source of conflicts of interest.

And Geoffrey Kabat, a senior epidemiologist at Albert Einstein School of Medicine, who was one of the gaggle’s “targets,” noted that the gaggle

“confine[] themselves to generalities and fail to come to grips with any specific criticisms on their merits. The EHP defense of IARC has all the subtlety of using an elephant gun to kill a gnat.”

Geoffrey Kabat, “How Many Scientists Does It Take To Squelch A Critic? Hint: 124,” Forbes (Mar. 10, 2015) (documenting how errant and mean-spirited the gaggle’s criticisms were).

Samet argues that the likelihood that other groups, such as the Environmental Protection Agency and the National Toxicology Program, walk in lockstep with IARC, suggests how “robust” the IARC system is. Using the IARC evaluation of formaldehyde as an example, Samet points to the “confirmation” of IARC’s judgments by EPA and NTP. Samet at 707. But this example and many others merely show that the IARC and the regulatory world are robust for group think. And yet the robust agreement is not always based upon robust evidence[4].

Like the gaggle’s editorial, Samet suggests that criticisms are good except that criticisms of the IARC, and especially his IARC working group, are “unfair and unconstructive.” Pearce at 514. Samet graciously acknowledges that “[w]ith regard to particular monographs, inevitably if evidence is lacking or mixed and at equipoise, any classification can be reasonably questioned.” Samet at 707. Like the gaggle, however, he never engages with Dr. Kabat’s procedural and substantive criticisms of Samet’s working group on electromagnetic radiation exposures.

There is, of course, a serious danger of placing so much emphasis on conflicts of interest as a proxy for truth and validity. One could be hoisted with his own conflict-of-interest petard. Samet, for instance, in his Carcinogenesis editorial declares no conflict of interest, and yet he was the Chairman of the IARC working group on radiofrequency electromagnetic radiation exposure[5] that was the subject of Dr. Kabat’s and others’ scathing criticisms.

Carcinogenesis has the following policy on conflicts:

“Carcinogenesis policy requires that each author reveal any financial interests or connections , direct or indirect, or other situations that might raise the question of bias in the work reported or the conclusions, implications, or opinions stated – including pertinent commercial or other sources of funding for the individual author(s) or for the associated department(s) or organization(s), personal relationships, or direct academic competition.”

Carcinogenesis CONFLICT OF INTEREST FORM <accessed July 10, 2015>.

In addition to Samet’s personal role in the criticized IARC determination, several of the gaggle have been regular testifiers for litigation-compensation industry[6]. There are no disclosures of litigation conflicts of interest in the gaggle’s editorial. Pearce.

Samet himself has been at the center of other conflict-of-interest controversies. In 2011, two tobacco companies sued the United States Food and Drug Administration (FDA) to challenge how the agency staffed its Tobacco Products Scientific Advisory Committee (“TPSAC”), which was charged with investigating the public health implications of using menthol in cigarettes.   The companies alleged that the FDA failed to comply with the Federal Advisory Committee Act (“FACA”). The TPSAC, formed after the enactment of the Family Smoking Prevention and Tobacco Control Act (“Tobacco Act”) reported that menthol in cigarettes adversely affected public health, and that menthol should be removed to promote public health.

The basis of the suit was that three members of the TPSAC had served, or continued to serve, as paid expert witnesses for plaintiffs in litigation against tobacco companies. The companies claim was that the these TPSAC members, including Dr. Samet, created a partial, interested, imbalanced committee that was unfairly predisposed to view menthol in cigarettes as harmful. In 2012, a federal district court refused the FDA’s motion to dismiss[7], and last year, the court granted the tobacco companies substantially the relief they sought[8].

The FDA appealed Judge Leon’s ruling, but in March 2015, the agency announced that four members of the TPSAC were removed, including Dr. Samet. Ironically, the American Thoracic Society (ATS) submitted an amicus brief, despite having an obvious conflict of interest. Dr. Samet is a member of the ATS’s Tobacco Action Committee, through which he organizes and coordinates the ATS’s anti-tobacco activities. The ATS and Dr. Samet’s anti-tobacco activism may be laudable, but that activism, along with Dr. Samet’s engagement as a litigation expert witness for plaintiffs against tobacco companies, surely constitute a conflict of interest, if anything is.


[1] Editorial, “Transparency at IARC,” 361 Lancet 189 (2003).

[2] citing Herbert Needleman & James Huff, “The International Agency for Research on Cancer and obligate transparency,” 6 Lancet Oncol. 920 (2005)

[3] citing those who would be manufacturers of faux certainty, Naomi Oreskes & Erik Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (N.Y. 2010); David Michaels, Doubt Is Their Product: How Industry’s Assault on Science Threatens Your Health (N.Y. 2008).

[4] See, e.g., C. Bosetti, Joseph K. McLaughlin, Robert E. Tarone, E. Pira & Carlo La Vecchia, “Formaldehyde and cancer risk: a quantitative review of cohort studies through 2006,” 19 Ann. Oncol. 29 (2008).

[5] IARC Press Release N° 208, “IARC Classifies Radiofrequency Electromagnetic Fields as Possibly Carcinogenic to Humans” (31 May 2011).

[6] Including Martyn T. Smith, whose testimony has been the subject of several judicial exclusions for lack of validity.

[7] Lorillard, Inc. v. United States Food and Drug Admin., Civ. No. 11-440 (RJL), 2012 WL 3542228 (Aug. 1, 2012).

[8] Lorillard, Inc. v. United States Food and Drug Admin., 56 F. Supp. 3d 37 (D.D.C. 2014) (Leon, J.). Judge Leon’s decision is discussed in “Conflict of Interest Regulations Apply Symmetrically” (July 25, 2015). The case is currently on appeal to the Court of Appeals for the District of Columbia Circuit.

Transparency, Confusion, and Obscurantism

October 31st, 2014

In NIEHS Transparency? We Can See Right Through You (July 10, 2014), I chastised authors Kevin C. Elliott and David B. Resnik for their confusing and confused arguments about standards of proof, the definition of risk, and conflicts of interest (COIs). See Kevin C. Elliott and David B. Resnik, “Science, Policy, and the Transparency of Values,” 122 Envt’l Health Persp. 647 (2014) [Elliott & Resnik]. In their focus on environmentalism and environmental policy, Elliott and Resnik seem intent upon substituting various presumptions, leaps of faith, and unproven extrapolations for actual evidence and valid inference, in the hope of improving the environment and reducing risk to life. But to get to their goal, Elliott and Resnik engage in various equivocations and ambiguities in their use of “risk,” and they compound the muddle by introducing a sliding scale of “standards of evidence,” for legal, regulatory, and scientific conclusions.

Dr. David H. Schwartz is a scientist, who received his doctoral degree in Neuroscience from Princeton University, and his postdoctoral training in Neuropharmacology and Neurophysiology at the Center for Molecular and Behavioral Neuroscience, in Rutgers University. Dr. Schwartz has since gone to found one of the leading scientific consulting firms, Innovative Science Solutions (ISS), which supports both regulatory and litigation claims and defenses, as may scientifically appropriate. Given his experience, Dr. Schwartz is well positioned to address the standards of scientific evidentiary conclusions across regulatory, litigation, and scientific communities.

In this month’s issue of Environmental Health Perspectives (EHP), Dr. David Schwartz adds to the criticism of Elliott and Resnik’s tendentious editorial. David H. Schwartz, “Policy and the Transparency of Values in Science,” 122 Envt’l Health Persp. A291 (2014). Schwartz points out that “[a]lthough … different venues or contexts require different standards of evidence, it is important to emphasize that the actual scientific evidence remains constant.” Id.

Dr. Schwartz points out transparency is needed in how standards and evidence are represented in scientific and legal discourse, and he takes Elliott and Resnik to task for arguing, from ignorance, that litigation burdens are different from scientific standards. At times some writers misrepresent the nature of their evidence, or its weakness, and when challenged, attempt to excuse the laxness in standards by adverting to the regulatory or litigation contexts in which they are speaking. In some regulatory contexts, the burdens of proof are deliberately reduced, or shifted to the regulated industry. In litigation, the standard or burden of proof is rarely different from the scientific enterprise itself. As the United States Supreme Court made clear, trial courts must inquire whether an expert witness ‘‘employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’’ Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Expert witnesses who fail to exercise the same intellectual rigor in the courtroom as in the laboratory, are eminently disposable or excludable from the legal process.

Schwartz also points out, as I had in my blog post, that “[w]hen using science to inform policy, transparency is critical. However, this transparency should include not only financial ties to industry but also ties to advocacy organizations and other strongly held points of view.”

In their Reply to Dr. Schwartz, Elliott and Resnik concede the importance of non-financial conflicts of interest, but they dig in on the supposed lower standard for scientific claims:

“we caution against equating the standards of evidence expected in tort law with those expected in more traditional scientific contexts. The tort system requires only a preponderance of evidence (> 50% likelihood) to win a case; this is much weaker evidence than scientists typically demand when presenting or publishing results, and confusion about these differing standards has led to significant legal controversies (Cranor 2006).”

Rather than citing any pertinent or persuasive legal authority, Elliott and Resnik cite an expert witness, Carl Cranor, neither a lawyer nor a scientist, who has worked steadfastly for the litigation industry (the plaintiffs’ bar) on various matters. The “caution” of Elliott and Resnik is directly contradicted by the Supreme Court’s pronouncement in Kumho Tire, and is fueled by a ignoratio elenchi that is based upon a confusion between the probability of repeated sampling with confidence intervals (usually 95%) and the posterior probability of a claim: namely, the probability of the claim given the admissible evidence. As the Reference Manual for Scientific Evidence makes clear, these are very different probabilities, which Cranor and others have consistently confused. Elliott and Resnik ought to know better.

Can Expert Bias and Prejudice Disqualify a Witness From Testifying?

October 11th, 2014

The Center for Science in the Public Interest (CSPI) bills itself as a consumer advocate committed to research and education in sound science. The CSPI considers itself to be “one of the nation’s top consumer advocates,” which works to “ensure that science is used to promote the public welfare.”

You may wonder whether and why “science” turns out to promote the public welfare envisioned by the CSPI? According to the CSPI, you should just accept that it does. So sure is the CSPI that industry corrupts science that it features a web-based, open database of scientists with ties to industry. There is no database of scientists’ ties to the litigation industry (plaintiffs’ lawyers), to organized labor, or advocacy groups. No doubt, implicit in its choice, is the claim that all science done by scientists with “ties” to the plaintiffs’ bar, to labor, or to advocacy groups, is “in the public interest.”

The arrogance of the implicit claim is made even more clear by how the CSPI addresses supposed corruption and conflicts of interest in science. The CSPI features an Integrity in Science Project to ferret out corruption in science, but the Project concerns itself only with industry-sponsored and funded science. The Project is candid about its one-sided jihad against industry-based science:

“Although many have cheered partnerships between industry and the research community, it is also acknowledged that they entail conflicts of interest that may compromise the judgment of trusted professionals, the credibility of research institutions and scientific journals, the safety and transparency of human subjects research, the norms of free inquiry, and the legitimacy of science-based policy.

For example:

  • There is strong evidence that researchers’ financial ties to chemical, pharmaceutical, or tobacco manufacturers directly influence their published positions in supporting the benefit or downplaying the harm of the manufacturers’ product.
  • A growing body of evidence indicates that pharmaceutical industry gifts and inducements bias clinicians’ judgments and influence doctors’ prescribing practices.
  • There are well-known cases of industry seeking to discredit or prevent the publication of research results that are critical of its products.
  • Studies of life-science faculty indicate that researchers with industry funding are more likely to withhold research results in order to secure commercial advantage.
  • Increasingly, the same academic institutions that are responsible for oversight of scientific integrity and human subjects protection are entering financial relationships with the industries whose product-evaluations they oversee.

In response to the commercialization of science and the growing problem of conflicts of interest, the Integrity in Science Project seeks to:

  • raise awareness about the role that corporate funding and other corporate interests play in scientific research, oversight, and publication;

  • investigate and publicize conflicts of interest and other potentially destructive influences of industry-sponsored science;

  • advocate for full disclosure of funding sources by individuals, governmental and non-governmental organizations that conduct, regulate, or provide oversight of scientific investigation or promote specific scientific findings;

  • encourage policy-makers at all levels of government to seek balance on expert advisory committees and to provide public, web-based access to conflict-of-interest information collected in the course of committee formation;

  • encourage journalists to routinely ask scientists and others about their possible conflicts of interests and to provide this information to the public.”

The CSPI inquiry then is entirely one-sided, with no apparent or manifest interest in exploring and revealing conflicts created by scientists’ affiliations with advocacy groups, labor, or the litigation industry. The concern about conflicts of interests is, in my view, simply an attempt to disqualify industry-sponsored scientific studies from inclusion in policy discussions. To be sure, there are notorious examples of industry-sponsored, compromised studies. But there are similarly notorious examples of union and plaintiff-lawyer sponsored studies gone awry. Why then is there no concern at the CSPI about researchers’ ties with advocacy groups, labor unions, and most important, and the litigation industry? The obvious answer is that the CSPI is engaging in advocacy for certain conclusions. The CSPI wants to put its hand on one side of the balance, and do its best to ensure that scientific debates and discussions come out a certain way, a way that favors conclusions it desires. The CSPI wants to disqualify dissenters from the conversation. The so-called “Integrity” project thus appears to be a pretense, exactly the opposite of what it purports to be.

In 2004, the CSPI’s Integrity in Science Project sponsored a conference on, among other topics, Corporate and Government Suppression of Research. Actually, there was barely any discussion of governmental suppression; the speakers spoke almost entirely on corporate conduct.

One speaker on the panel presented about corporate conflicts of interest in the starkest Marxist terms. Corporations must cheat and lie because they are capable only of acting to maximize profits, and they will inevitably see safety as a dispensable cost. The speaker, who is a frequent testifier in mass tort litigation, held forth that the problem with corporations is not that there are some rotten apples, but that the entire barrel is rotten. Suppression of scientific research, according to this speaker is not an anomaly, but totally determined by the nature of the firm. Ethical companies cannot compete, and they go out of business; ergo, any company in business is unethical.

Of course, the same uncharitable determinist views can be applied to expert witnesses, to plaintiffs’ counsel, to labor unions, and to advocacy groups. Remarkably, this speaker acknowledged that is ideology is a much larger bias than money, and then confessed that

My bias is ideological.”

This speaker testifies frequently for the litigation industry, and his zeal is so uncabined that he has been held in contempt and fined as part of his litigation activities. When one federal court judge excluded his testimony, he attacked the bona fides of the judge and sought to appeal his exclusion personally. And yet the Integrity project featured him as a speaker!

The CSPI and its cadre of anti-industry scientists brings me to the question du jour: Can an expert witness be too biased or prejudiced in a matter to serve as an expert witness? We exclude judges and jurors who have potential conflicts of interest. Surely there are fact or expert witnesses, who are so untrustworthy that they should not be allowed to testify. Consider whether an expert witnesses who, having demonstrated that they will violate court orders or other laws, want the court to qualify them as “expert witnesses” to give their opinions in a pending case. The trial court does not necessarily endorse the opinions proffered, but should the court give its imprimatur to the witnesses’ standing as having opinions that could be considered, relied upon to the exclusion of competing opinions, and form the basis for verdicts for the parties offering these suspect witnesses?

Just asking.

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

October 4th, 2014

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

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

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

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

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

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

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

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

Selikoff the Testifier

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHARGE: Coyness in Disclosing Conflicts

October 1st, 2014

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

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

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

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

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

The Funding Effect in Science and in Law

September 8th, 2014

In some circles, the mere mention that a study or a paper was sponsored by an oil company is sufficient to discredit its findings, methods, and analyses, on the merits. For instance, in Exxon Shipping Co. v. Baker, 554 U.S. 471, 501 (2008), the Supreme Court struck down a $2.5 billion punitive damage award.  Justice Souter, writing for the Court in a 5-3 decision, observed that:

“We are aware of no scholarly work pointing to consistency across punitive awards in cases involving similar claims and circumstances.17

In his now infamous footnote 17, Justice Souter explained:

“The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous ‛mock juries’, where different ‛jurors’ are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L.Rev. 1139 (2000); Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of Plaintiff’s Requests and Plaintiff’s Identity on Punitive Damage Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 Yale L.J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it.”

Somehow it escaped Justice Souter’s attention that some of the investigators (Sunstein, Viscusi, Kahneman, et al.) in the papers were outstanding scientists and scholars. The mere funding disclosure gave Justice Souter the excuse to avoid any hard thinking and intellectual engagement with the merits of these papers.

The world of philosophy provides another example. Massimo Pigliucci is professor of philosophy at the City University of New York, and a frequent commentator on junk science. Pigliucci, Nonsense on Stilts: How to Tell Science from Bunk (2010). In railing against positions taken by a so-called “think tank,” the Competitive Enterprise Institute, Professor Pigliucci felts compelled to note, on almost every mention, that the Institute is partially funded by Exxon-Mobil, and so its pronouncements should be discounted. See, e.g., id. at 156.

Chris Prandoni, a contributor to Forbes, recently published a story about a Senate investigation into the “funding effect” of various environmentalist organizations. Chris Prandoni, “Senate Committee Report Details Environmentalists’ Inner Workings,” (July 30, 2014). Prandoni notes that the environmental movement has morphed into a billion-dollar industry, with funding by many one-percenters. The minority staff of the United States Senate Committee on Environment and Public Works (EPW) has issued a report entitled The Chain of Command: How a Club of Billionaires and Their Foundations Control the Environmental Movement and Obama’s EPA (July 30, 2014), which documents how a “Billionaires’ Club” funds many, if not most, of the environmental non-government organizations and their media and grassroots activities.

The Committee report also describes how many scientists and leaders from the funded organizations have entered the “revolving door” of the Obama Administration’s agencies. The Committee might have expanded its focus to include organizations such as the Project on Scientific Knowledge and Public Policy (SKAPP), a pass-through organization for the plaintiffs’ bar, a/k/a the litigation industry. SKAPP was formerly headed by David Michaels, now head of OSHA. SeeSKAPP a Lot” (April 30, 2010).

Other organizations that front for the interests of wealthy lawyers seeking to expand the largesse of the tort system include the Council for Education and Research on Toxics (“CERT”), and the Center for Progressive Reform. See Milward Symposium Organized By Plaintiffs’ Counsel and Witnesses” (Feb. 16, 2013).

The Senate Committee report highlights the hypocrisy of some critics of the Supreme Court’s recent decision in, Citizens United v. FEC, 130 S. Ct. 876 (2010), which held that the First Amendment prohibits governmental restrictions of corporations’ independent political expenditures. The hypocritical criticism lay in denouncing the political expenditures and speech of corporations, as corrupted by the wealth and motivations of the speakers, while turning blind eyes from huge expenditures by wealthy self-styled public interest groups through think tanks and non-governmental organizations. Even foreign governments have joined in the spending spree. See Eric Lipton, Brooke Williams & Nicolas Confessore, “Foreign Powers Buy Influence at Think Tanks,” N.Y. Times (Sept. 6, 2014).

Perhaps it is time to follow the data as ardently as we follow the money?

Frank Advocacy on Welding Health “Effects”

September 1st, 2014

Arthur L. Frank is a professor and the chair of Drexel University School of Public Health’s program in Environmental and Occupational Health. Frank testifies fairly extensively for plaintiffs in asbestos litigation. See, e.g., Frank Affidavit. He also has testified for plaintiffs in manganese fume litigation brought by welders, although he has no specialty training in movement disorder neurology.

Although Arthur Frank has testified for plaintiffs in asbestos cases, he does not appear to comply with professional association disclosure of conflicts, when he presents on asbestos issues. See, e.g.,More Hypocrisy Over Conflicts of Interest” (Dec. 4, 2010). The same disregard for conflict disclosures seems to hold for his work on welding health outcomes.

Last year, in September 2013, Frank presented a poster at the 11th Inhaled Particles XI (IPXI) conference, organized by the British Occupational Hygiene Society (BOHS). Frank’s poster was entitled,Health Effects of Welding Fumes,” although the poster reported only a cross-sectional study without controls from Qingdao City, China. Frank provided no conflict-of-interest disclosure in the poster. Arthur Frank, Huanqiang Zhang, and Chunsheng Xu, “Health Effects of Welding Fumes,” Inhaled Particle XI Conference, Nottingham, U.K. (Sept. 2013). His current C.V., available online, reports this as an abstract from the Inhaled Articles conference. One does not need an epidemiologic study to see how scientists could choke on this article if inhaled.

Frank’s study was based upon an anonymous questionnaire to 505 steel welders, at state-owned, foreign-funded, and privately owned companies, in Qingdao City, China. No industrial hygiene exposure measurements or use of personal respiratory protection is reported. No physical examinations are reported. No statistical tests are reported. Frank reported a “symptom” of unsteady gait/difficulty walking of 1%, but he and his Chinese colleagues did not report whether this 1% had musculo-skeletal or neurological problems. The former would be fairly common among tradesmen such as welders whose work often puts them at risk of traumatic injury.

According to Frank, a “striking” finding was an 18% prevalence hand tremor among those working at least 15 years, with lower prevalence reported for less than 5 years (4%), at 5 years (3%), and at 10 years (5%). Frank offered no explanation of how these prevalence rates were ascertained in a cross-sectional questionnaire based study; nor did Frank offer any qualification as to whether these hand tremors were rest or action tremor, bilateral or unilateral, or of any particular kind. Notwithstanding the severe limitations of this “study,” Frank offers a conclusion that “[m]anganese from inhaled particles from welding fumes cause serious outcomes in welders. Welding fumes also cause other health effects. Workplace hygiene correlates with health outcome.”

Shortly after the Inhaled Particles conference, a colleague reported that Frank had testified in an asbestos case that he had submitted a “manganese in welding” manuscript to the Annals of Industrial Hygiene, which is the journal of the (BOHS). To date, no article by Frank has appeared in this, or any, journal.

Perhaps the only interesting aspect of this little cross-sectional study, based upon self-reported symptoms, is that workers employed by the communist state report a higher rate of symptoms than those employed by privately owned companies. More evidence that worker illness, if any there should be, is not necessarily the result of the “profit motive” of private corporations. The abstract also shows that at some scientific conferences, anything goes with respect to conflicts-of-interest disclosures and shameless advocacy.

Peer Review, PubPeer, PubChase, and Rule 702 – Candles in the Ear

August 28th, 2014

In deciding the Daubert case, the Supreme Court identified several factors to assess whether “the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” One of those factors was whether the proffered opinion had been “peer reviewed” and published. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94 (1993). The Court explained the publication factor:

“Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, and in some instances well-grounded but innovative theories will not have been published. Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of ‘good science,’ in part because it increases the likelihood that substantive flaws in methodology will be detected. The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.”

Daubert, 509 U.S. at 593-94 (internal citations omitted). See, e.g., Lust v. Merrell Dow Pharms., Inc., 89 F. 3d 594, 597 (9th Cir. 1996) (affirming exclusion of Dr. Alan Done, plaintiffs’ expert witness in Chlomid birth defects case, in part because of the lack of peer review and publication of his litigation-driven opinions); Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1406 (1996)  (noting that “the lack of peer review for [epidemiologist] Dr. Swan’s theories weighs heavily against the admissibility of Dr. Swan’s testimony”).

Case law since Daubert has made clear that peer review is neither necessary nor sufficient for the admissibility of an opinion. United States v. Mikos, 539 F.3d 706, 711 (7th Cir. 2008) (noting that the absence of peer-reviewed studies on subject of bullet grooving did not render opinion, based upon FBI database, inadmissible); In re Zoloft Prods. Liab. Litig. MDL No. 2342; 12-md-2342,  2014 U.S. Dist. LEXIS 87592; 2014 WL 2921648 (E.D. Pa. June 27, 2014) (excluding proffered testimony of epidemiologist Anick Bérard for arbitrarily selecting some point estimates and ignoring others in published studies).

As Susan Haack has noted, “peer review” has taken on mythic proportions in the adjudication of expert witness opinion admissibility.  Susan Haack, “Peer Review and Publication: Lessons for Lawyers,” 36 Stetson L. Rev. 789 (2007), republished in Susan Haack, Evidence Matters: Science, Proof, and Truth in the Law 156 (2014). Peer review, at best, is a weak proxy for the study validity, which is what is really needed in judicial proceedings. Proxies avoid the labor of independent, original thought, and so they are much favored by many judges.

In the past, some litigants oversold peer review as a touchstone of reliable, admissible expert witness testimony only to find that some very shoddy opinions show up in ostensibly peer-reviewed journals. SeeMisplaced Reliance On Peer Review to Separate Valid Science From Nonsense” (Aug. 14, 2011). Scientists often claim that science is “self-correcting,” but in some areas of research, there are few severe tests and little critical review, and mostly glib confirmations from acolytes.

Letters to the editor are sometimes held out as a remedy to peer-review screw ups, but such letters, which are not themselves peer reviewed, are subject to the whims of imperious editors who might wish to silence the views of those who would be critical of their judgment in publishing the article under discussion. Most journals have space only for a few letters, and unpopular but salient points of view can go unreported. Many scientists will not write letters to the editors, even when the published article is terribly wrong in its methods, data analyses, conclusions, or discussion.  Letters to the editor are often frowned upon in academic circles as not advancing affirmative research and scholarship agenda.

Letters to the editor often must be sent within a short time window of initial publication, often too short for busy academics to analyze a paper carefully and comment.  Furthermore, letters  and are often limited to a few hundred words, which length is often inadequate to develop a careful critique or exposition of the issues in the paper.  Moreover, such letters suffer from an additional procedural problem:  authors are permitted a response, and the letter writers are not permitted a reply. Authors thus get the last word, which they can often use to deflect or diffuse important criticisms.  The authors’ response can be sufficiently self-serving and misleading, with immunity from further criticism, that many would-be correspondents abandon the project altogether. See, e.g., PubPeer – “Example case showing why letters to the editor can be a waste of time” (Oct. 8, 2013).

Websites and blogs provide for dynamic content, with the potential for critical reviews that can be identified by search engines. See, e.g., Paul S. Brookes, “Our broken academic journal corrections system,” PSBLAB: Cardiac Mitochondrial Research in the Lab (Jan. 14, 2014). Mostly, the internet holds untapped potential for analysis, discussion, and debate on published studies.  To be sure, some journals provide “comment fields,” on their websites, with an opportunity for open discussion.  Often, full critiques must be developed and presented elsewhere. See, e.g., Androgen Study Group, “Letter to JAMA Asking for Retraction of Misleading Article on Testosterone Therapy” (Mar. 25, 2014).

PubPeer

Kate Yandell, in TheScientist, reports on the creation of PubPeer a few years ago, as a forum for post-publication review and discussion published scientific papers. Kate Yandell, “Concerns Raised Online Linger” (Aug. 25, 2014).  Billing itself as an “online journal club,” PubPeer has pointed out potentially serious problems, some of which have led to retractions and corrections. Another internet site of interest is PubChase, which monitors discussion of particular articles, as well as generating email alerts and recommendations for related articles.

One journal editor has taken notice and given notice that he will not pay attention to post-publication peer review.  Eric J. Murphy, the editor in chief of Lipids, posting a comment at PubPeer, illustrates that there will be a good deal of resistance to post-publication open peer review, out of the control of journal editors:

“As an Editor-in-Chief of a society journal, I have never examined PubPeer nor will I do so. First, there is the crowd or group mentality that may over emphasize some point in an irrational manner.  Just as using the marble theory of officiating is bad, one should never base a decision on the quantity of negative or positive comments. Second, if the concerned individual sent an e-mail or letter to me, then I would be duty bound to examine the issue.  It is not my duty to monitor PubPeer or any other such site, but rather to respond to queries sent to me.  So, with regards to Hugh’s point, I don’t support that position at all.

Mistakes happen, although frankly we try to limit these mistakes and do take steps to prevent publishing papers with FFP, it does happen.  Also, honest mistakes happen in science all the time, so[me] of these result in an erratum, while others go unnoticed by editors and reviewers.  In such a case, someone who does notice should contact the editor to put them on notice regarding the issue so that it may be resolved.  Resolution does not necessarily mean correction, but rather the editor taking a close look at the situation, discussing the situation with the original authors, and then reaching a decision.  Most of the time a correction will be made, but not always.”

Murphy’s comments are remarkable.  PubPeer provides a forum for post-publication comment, but it hardly requires editors, investigators, and consumers of scientific studies to evaluate published works by “nose counts” of favorable and unfavorable comments.  This is not, and never has been, a democratic enterprise.  Somehow, we might expect Murphy and others to evaluate the comments, on the merits, not on their prevalence.  Murphy’s declaration that he is duty-bound to investigate and evaluate letters or emails sent to him about published articles is encouraging, but the editors’ ability to ratify publication, in the face of a private communication, without comment to the scientific community, strips the community of making a principled decision on its own.  Murphy’s way, which seems largely the way of contemporary scientific publishing, ignores the important social dimension of scientific debate and resolution of issues.  Leaving control of the discussion in the hands of the editors who approved and published studies may be asking too much of editors. Nemo iudex in causa sua.

PubPeer has already tested the limits of free speech. Kate Yandell, “PubPeer Threatened with Legal Action” (Aug. 19, 2014). A scientist whose works were receiving unfavorable attention on PubPeer threatened a lawsuit.  Let’s hope that scientists can learn to be sufficiently thick skinned that there can be open discourse of the merits of their research, their data, and their conclusions.

Pritchard v. Dow Agro – Gatekeeping Exemplified

August 25th, 2014

Robert T. Pritchard was diagnosed with Non-Hodgkin’s Lymphoma (NHL) in August 2005; by fall 2005, his cancer was in remission. Mr. Pritchard had been a pesticide applicator, and so, of course, he and his wife sued the deepest pockets around, including Dow Agro Sciences, the manufacturer of Dursban. Pritchard v. Dow Agro Sciences, 705 F.Supp. 2d 471 (W.D.Pa. 2010).

The principal active ingredient of Dursban is chlorpyrifos, along with some solvents, such as xylene, cumene, and ethyltoluene. Id. at 474.  Dursban was licensed for household insecticide use until 2000, when the EPA phased out certain residential applications.  The EPA’s concern, however, was not carcinogenicity:  the EPA categorizes chlorpyrifos as “Group E,” non-carcinogenetic in humans. Id. at 474-75.

According to the American Cancer Society (ACS), the cause or causes of NHL cases are unknown.  Over 60,000 new cases are diagnosed annually, in people from all walks of life, occupations, and lifestyles. The ACS identifies some risk factors, such as age, gender, race, and ethnicity, but the ACS emphasizes that chemical exposures are not proven risk factors or causes of NHL.  See Pritchard, 705 F.Supp. 2d at 474.

The litigation industry does not need scientific conclusions of causal connections; their business is manufacturing certainty in courtrooms. Or at least, the appearance of certainty. The Pritchards found their way to the litigation industry in Pittsburgh, Pennsylvania, in the form of Goldberg, Persky & White, P.C. The Goldberg Persky firm sued Dow Agro, and then put the Pritchards in touch with Dr. Bennet Omalu, to serve as their expert witness.  A lawsuit ensued.

Alas, the Pritchards’ lawsuit ran into a wall, or at least a gate, in the form of Federal Rule of Evidence 702. In the capable hands of Judge Nora Barry Fischer, Rule 702 became an effective barrier against weak and poorly considered expert witness opinion testimony.

Dr. Omalu, no stranger to lost causes, was the medical examiner of San Joaquin County, California, at the time of his engagement in the Pritchard case. After careful consideration of the Pritchards’ claims, Omalu prepared a four page report, with a single citation, to Harrison’s Principles of Internal Medicine.  Id. at 477 & n.6.  This research, however, sufficed for Omalu to conclude that Dursban caused Mr. Pritchard to develop NHL, as well as a host of ailments he had never even sued Dow Agro for, including “neuropathy, fatigue, bipolar disorder, tremors, difficulty concentrating and liver disorder.” Id. at 478. Dr. Omalu did not cite or reference any studies, in his report, to support his opinion that Dursban caused Mr. Pritchard’s ailments.  Id. at 480.

After counsel objected to Omalu’s report, plaintiffs’ counsel supplemented the report with some published articles, including the “Lee” study.  See Won Jin Lee, Aaron Blair, Jane A. Hoppin, Jay H. Lubin, Jennifer A. Rusiecki, Dale P. Sandler, Mustafa Dosemeci, and Michael C. R. Alavanja, “Cancer Incidence Among Pesticide Applicators Exposed to Chlorpyrifos in the Agricultural Health Study,” 96 J. Nat’l Cancer Inst. 1781 (2004) [cited as Lee].  At his deposition, and in opposition to defendants’ 702 motion, Omalu became more forthcoming with actual data and argument.  According to Omalu, the Lee study “the 2004 Lee Study strongly supports a conclusion that high-level exposure to chlorpyrifos is associated with an increased risk of NHL.’’ Id. at 480.

This opinion put forward by Omalu bordered on scientific malpractice.  No; it was malpractice.  The Lee study looked at many different cancer end points, without adjustment for multiple comparisons.  The lack of adjustment means at the very least that any interpretation of p-values or confidence intervals would have to modified to acknowledge the higher rate of random error.  Now for NHL, the overall relative risk (RR) for chlorpyrifos exposure was 1.03, with a 95% confidence interval, 0.62 to 1.70.  Lee at 1783.  In other words, the study that Omalu claimed supported his opinion was about as null a study as can be, with reasonably tight confidence interval that made a doubling of the risk rather unlikely given the sample RR.

If the multiple endpoint testing were not sufficient to dissuade a scientist, intent on supporting the Pritchards’ claims, then the exposure subgroup analysis would have scared any prudent scientist away from supporting the plaintiffs’ claims.  The Lee study authors provided two different exposure-response analyses, one with lifetime exposure and the other with an intensity-weighted exposure, both in quartiles.  Neither analysis revealed an exposure-response trend.  For the lifetime exposure-response trend, the Lee study reported an NHL RR of 1.01, for the highest quartile of chloripyrifos exposure. For the intensity-weighted analysis, for the highest quartile, the authors reported RR = 1.61, with a 95% confidence interval, 0.74 to 3.53).

Although the defense and the district court did not call out Omalu on his fantasy statistical inference, the district judge certainly appreciated that Omalu had no statistically significant associations between chloripyrifos and NHL, to support his opinion. Given the weakness of relying upon a single epidemiologic study (and torturing the data therein), the district court believed that a showing of statistical significance was important to give some credibility to Omalu’s claims.  705 F.Supp. 2d at 486 (citing General Elec. Co. v. Joiner, 522 U.S. 136, 144-46 (1997);  Soldo v. Sandoz Pharm. Corp., 244 F.Supp. 2d 434, 449-50 (W.D. Pa. 2003)).

Figure 3 adapted from Lee

Figure 3 adapted from Lee

What to do when there is really no evidence supporting a claim?  Make up stuff.  Here is how the trial court describes Omalu’s declaration opposing exclusion:

 “Dr. Omalu interprets and recalculates the findings in the 2004 Lee Study, finding that ‘an 80% confidence interval for the highly-exposed applicators in the 2004 Lee Study spans a relative risk range for NHL from slightly above 1.0 to slightly above 2.5.’ Dr. Omalu concludes that ‘this means that there is a 90% probability that the relative risk within the population studied is greater than 1.0’.”

705 F.Supp. 2d at 481 (internal citations omitted); see also id. at 488. The calculations and the rationale for an 80% confidence interval were not provided, but plaintiffs’ counsel assured Judge Fischer at oral argument that the calculation was done using high school math. Id. at 481 n.12. Judge Fischer seemed unimpressed, especially given that there was no record of the calculation.  Id. at 481, 488.

The larger offense, however, was that Omalu’s interpretation of the 80% confidence interval as a probability statement of the true relative risk’s exceeding 1.0, was bogus. Dr. Omalu further displayed his lack of statistical competence when he attempted to defend his posterior probability derived from his 80% confidence interval by referring to a power calculation of a different disease in the Lee study:

“He [Omalu] further declares that ‘‘the authors of the 2004 Lee Study themselves endorse the probative value of a finding of elevated risk with less than a 95% confidence level when they point out that ‘this analysis had a 90% statistical power to detect a 1.5–fold increase in lung cancer incidence’.”

Id. at 488 (court’s quoting of Omalu’s quoting from the Lee study). To quote Wolfgang Pauli, Omalu is so far off that he is “not even wrong.” Lee and colleagues were offering a pre-study power calculation, which they used to justify their looking at the cohort for lung cancer, not NHL, outcomes.  Lee at 1787. The power calculation does not apply to the data observed for lung cancer; and the calculation has absolutely nothing to do with NHL. The power calculation certainly has nothing to do with Omalu’s misguided attempt to offer a calculation of a posterior probability for NHL based upon a subgroup confidence interval.

Given that there were epidemiologic studies available, Judge Fischer noted that expert witnesses were obligated to factor such studies into their opinions. See 705 F.Supp. 2d at 483 (citing Soldo, 244 F.Supp. 2d at 532).  Omalu sins against Rule 702 included his failure to consider any studies other than the Lee study, regardless of how unsupportive the Lee study was of his opinion.  The defense experts pointed to several studies that found lower NHL rates among exposed workers than among controls, and Omalu completely failed to consider and to explain his opinion in the face of the contradictory evidence.  See 705 F.Supp. 2d at 485 (citing Perry v. Novartis Pharm. Corp. 564 F.Supp. 2d 452, 465 (E.D. Pa. 2008)). In other words, Omalu was shown to have been a cherry picker. Id. at 489.

In addition to the abridged epidemiology, Omalu relied upon an analogy between the ethyl-toluene and other solvents that contained benzene rings and benzene itself to argue that these chemicals, supposedly like benzene, cause NHL.  Id. at 487. The analogy was never supported by any citations to published studies, and, of course, the analogy is seriously flawed. Many chemicals, including chemicals made and used by the human body, have benzene rings, without the slightest propensity to cause NHL.  Indeed, the evidence that benzene itself causes NHL is weak and inconsistent.  See, e.g., Knight v. Kirby Inland Marine Inc., 482 F.3d 347 (2007) (affirming the exclusion of Dr. B.S. Levy in a case involving benzene exposure and NHL).

Looking at all the evidence, Judge Fischer found Omalu’s general causation opinions unreliable.  Relying upon a single, statistically non-significant epidemiologic study (Lee), while ignoring contrary studies, was not sound science.  It was not even science; it was courtroom rhetoric.

Omalu’s approach to specific causation, the identification of what caused Mr. Pritchard’s NHL, was equally spurious. Omalu purportedly conducted a “differential diagnosis” or a “differential etiology,” but he never examined Mr. Pritchard; nor did he conduct a thorough evaluation of Mr. Pritchard’s medical records. 705 F.Supp. 2d at 491. Judge Fischer found that Omalu had not conducted a thorough differential diagnosis, and that he had made no attempt to rule out idiopathic or unknown causes of NHL, despite the general absence of known causes of NHL. Id. at 492. The one study identified by Omalu reported a non-statistically significant 60% increase in NHL risk, for a subgroup in one of two different exposure-response analyses.  Although Judge Fischer treated the relative risk less than two as a non-dispositive factor in her decision, she recognized that

“The threshold for concluding that an agent was more likely than not the cause of an individual’s disease is a relative risk greater than 2.0… . When the relative risk reaches 2.0, the agent is responsible for an equal number of cases of disease as all other background causes. Thus, a relative risk of 2.0 … implies a 50% likelihood that an exposed individual’s disease was caused by the agent. A relative risk greater than 2.0 would permit an inference that an individual plaintiff’s disease was more likely than not caused by the implicated agent.”

Id. at 485-86 (quoting from Reference Manual on Scientific Evidence at 384 (2d ed. 2000)).

Left with nowhere to run, plaintiffs’ counsel swung for the bleachers by arguing that the federal court, sitting in diversity, was required to apply Pennsylvania law of evidence because the standards of Rule 702 constitute “substantive,” not procedural law. The argument, which had been previously rejected within the Third Circuit, was as legally persuasive as Omalu’s scientific opinions.  Judge Fischer excluded Omalu’s proffered opinions and granted summary judgment to the defendants. The Third Circuit affirmed in a per curiam decision. 430 Fed. Appx. 102, 2011 WL 2160456 (3d Cir. 2011).

Practical Evaluation of Scientific Claims

The evaluative process that took place in the Pritchard case missed some important details and some howlers committed by Dr. Omalu, but it was more than good enough for government work. The gatekeeping decision in Pritchard was nonetheless the target of criticism in a recent book.

Kristin Shrader-Frechette (S-F) is a professor of science who wants to teach us how to expose bad science. S-F has published, or will soon publish, a book that suggests that philosophy of science can help us expose “bad science.”  See Kristin Shrader-Frechette, Tainted: How Philosophy of Science Can Expose Bad Science (Oxford U.P. 2014)[cited below at Tainted; selections available on Google books]. S-F’s claim is intriguing, as is her move away from the demarcation problem to the difficult business of evaluation and synthesis of scientific claims.

In her introduction, S-F tells us that her book shows “how practical philosophy of science” can counteract biased studies done to promote special interests and PROFITS.  Tainted at 8. Refreshingly, S-F identifies special-interest science, done for profit, as including “individuals, industries, environmentalists, labor unions, or universities.” Id. The remainder of the book, however, appears to be a jeremiad against industry, with a blind eye towards the litigation industry (plaintiffs’ bar) and environmental zealots.

The book promises to address “public concerns” in practical, jargon-free prose. Id. at 9-10. Some of the aims of the book are to provide support for “rejecting demands for only human evidence to support hypotheses about human biology (chapter 3), avoiding using statistical-significance tests with observational data (chapter 12), and challenging use of pure-science default rules for scientific uncertainty when one is doing welfare-affecting science (chapter 14).”

Id. at 10. Hmmm.  Avoiding statistical significance tests for observational data?!?  If avoided, what does S-F hope to use to assess random error?

And then S-F refers to plaintiffs’ hired expert witness (from the Milward case), Carl Cranor, as providing “groundbreaking evaluations of causal inferences [that] have helped to improve courtroom verdicts about legal liability that otherwise put victims at risk.” Id. at 7. Whether someone is a “victim” and has been “at risk” turns on assessing causality. Cranor is not a scientist, and his philosophy of science turns of “weight of the evidence” (WOE), a subjective, speculative approach that is deaf, dumb, and blind to scientific validity.

There are other “teasers,” in the introduction to Tainted.  S-F advertises that her Chapter 5 will teach us that “[c]ontrary to popular belief, animal and not human data often provide superior evidence for human-biological hypotheses.”  Tainted at 11. Chapter 6 will show that“[c]ontrary to many physicists’ claims, there is no threshold for harm from exposure to ionizing radiation.” Id.  S-F tells us that her Chapter 7 will criticize “a common but questionable way of discovering hypotheses in epidemiology and medicine—looking at the magnitude of some effect in order to discover causes. The chapter shows instead that the likelihood, not the magnitude, of an effect is the better key to causal discovery.” Id. at 13. Discovering hypotheses — what is that about? You might have thought that hypotheses were framed from observations and then tested.

Which brings us to the trailer for Chapter 8, in which S-F promises to show that “[c]ontrary to standard statistical and medical practice, statistical-significance tests are not causally necessary to show medical and legal evidence of some effect.” Tainted at 11. Again, the teaser raises lots of questions such as what could S-F possibly mean when she says statistical tests are not causally necessary to show an effect.  Later in the introduction, S-F says that her chapter on statistics “evaluates the well-known statistical-significance rule for discovering hypotheses and shows that because scientists routinely misuse this rule, they can miss discovering important causal hypotheses. Id. at 13. Discovering causal hypotheses is not what courts and regulators must worry about; their task is to establish such hypotheses with sufficient, valid evidence.

Paging through the book reveals that a rhetoric that is thick and unremitting, with little philosophy of science or meaningful advice on how to evaluate scientific studies.  The statistics chapter calls out, and lo, it features a discussion of the Pritchard case. See Tainted, Chapter 8, “Why Statistics Is Slippery: Easy Algorithms Fail in Biology.”

The chapter opens with an account of German scientist Fritz Haber’s development of organophosphate pesticides, and the Nazis use of related compounds as chemical weapons.  Tainted at 99. Then, in a fevered non-sequitur and rhetorical flourish, S-F states, with righteous indignation, that although the Nazi researchers “clearly understood the causal-neurotoxic effects of organophosphate pesticides and nerve gas,” chemical companies today “claim that the causal-carcinogenic effects of these pesticides are controversial.” Is S-F saying that a chemical that is neurotoxic must be carcinogenic for every kind of human cancer?  So it seems.

Consider the Pritchard case.  Really, the Pritchard case?  Yup; S-F holds up the Pritchard case as her exemplar of what is wrong with civil adjudication of scientific claims.  Despite the promise of jargon-free language, S-F launches into a discussion of how the judges in Pritchard assumed that statistical significance was necessary “to hypothesize causal harm.”  Tainted at 100. In this vein, S-F tells us that she will show that:

“the statistical-significance rule is not a legitimate requirement for discovering causal hypotheses.”

Id. Again, the reader is left to puzzle why statistical significance is discussed in the context of hypothesis discovery, whatever that may be, as opposed to hypothesis testing or confirmation. And whatever it may be, we are warned that “unless the [statistical significance] rule is rejected as necessary for hypothesis-discovery, it will likely lead to false causal claims, questionable scientific theories, and massive harm to innocent victims like Robert Pritchard.”

Id. S-F is decidedly not adverting to Mr. Pritichard’s victimization by the litigation industry and the likes of Dr. Omalu, although she should. S-F not only believes that the judges in Pritchard bungled their gatekeeping wrong, she knows that Dr. Omalu was correct, and the defense experts wrong, and that Pritchard was a victim of Dursban and of questionable scientific theories that were used to embarrass Omalu and his opinions.

S-F promised to teach her readers how to evaluate scientific claims and detect “tainted” science, but all she delivers here is an ipse dixit.  There is no discussion of the actual measurements, extent of random error, or threats to validity, for studies cited either by the plaintiffs or the defendants in Pritchard.  To be sure, S-F cites the Lee study in her endnotes, but she never provides any meaningful discussion of that study or any other that has any bearing on chlorpyrifos and NHL.  S-F also cited two review articles, the first of which provides no support for her ipse dixit:

“Although mutagenicity and chronic animal bioassays for carcinogenicity of chlorpyrifos were largely negative, a recent epidemiological study of pesticide applicators reported a significant exposure response trend between chlorpyrifos use and lung and rectal cancer. However, the positive association was based on small numbers of cases, i.e., for rectal cancer an excess of less than 10 cases in the 2 highest exposure groups. The lack of precision due to the small number of observations and uncertainty about actual levels of exposure warrants caution in concluding that the observed statistical association is consistent with a causal association. This association would need to be observed in more than one study before concluding that the association between lung or rectal cancer and chlorpyrifos was consistent with a causal relationship.

There is no evidence that chlorpyrifos is hepatotoxic, nephrotoxic, or immunotoxic at doses less than those that cause frank cholinesterase poisoning.”

David L. Eaton, Robert B. Daroff, Herman Autrup, James Bridges, Patricia Buffler, Lucio G. Costa, Joseph Coyle, Guy McKhann, William C. Mobley, Lynn Nadel, Diether Neubert, Rolf Schulte-Hermann, and Peter S. Spencer, “Review of the Toxicology of Chlorpyrifos With an Emphasis on Human Exposure and Neurodevelopment,” 38 Critical Reviews in Toxicology 1, 5-6(2008).

The second cited review article was written by clinical ecology zealot[1], William J. Rea. William J. Rea, “Pesticides,” 6 Journal of Nutritional and Environmental Medicine 55 (1996). Rea’s article does not appear in Pubmed.

Shrader-Frechette’s Criticisms of Statistical Significance Testing

What is the statistical significance against which S-F rails? She offers several definitions, none of which is correct or consistent with the others.

“The statistical-significance level p is defined as the probability of the observed data, given that the null hypothesis is true.8

Tainted at 101 (citing D. H. Johnson, “What Hypothesis Tests Are Not,” 16 Behavioral Ecology 325 (2004). Well not quite; attained significance probability is the probability of data observed or those more extreme, given the null hypothesis.  A Tainted definition.

Later in Chapter 8, S-F discusses significance probability in a way that overtly commits the transposition fallacy, not a good thing to do in a book that sets out to teach how to evaluate scientific evidence:

“However, typically scientists view statistical significance as a measure of how confidently one might reject the null hypothesis. Traditionally they have used a 0.05 statistical-significance level, p < or = 0.05, and have viewed the probability of a false-positive (incorrectly rejecting a true null hypothesis), or type-1, error as 5 percent. Thus they assume that some finding is statistically significant and provides grounds for rejecting the null if it has at least a 95-percent probability of not being due to chance.

Tainted at 101. Not only does the last sentence ignore the extent of error due to bias or confounding, it erroneously assigns a posterior probability that is the complement of the significance probability.  This error is not an isolated occurrence; here is another example:

“Thus, when scientists used the rule to examine the effectiveness of St. John’s Wort in relieving depression,14 or when they employed it to examine the efficacy of flutamide to treat prostate cancer,15 they concluded the treatments were ineffective because they were not statistically significant at the 0.05 level. Only at p < or = 0.14 were the results statistically significant. They had an 86-percent chance of not being due to chance.16

Tainted at 101-02 (citing papers by Shelton (endnote 14)[2], by Eisenberger (endnote 15) [3], and Rothman’s text (endnote 16)[4]). Although Ken Rothman has criticized the use of statistical significance tests, his book surely does not interpret a p-value of 0.14 as an 86% chance that the results were not due to chance.

Although S-F previous stated that statistical significance is interpreted as the probability that the null is true, she actually goes on to correct the mistake, sort of:

“Requiring the statistical-significance rule for hypothesis-development also is arbitrary in presupposing a nonsensical distinction between a significant finding if p = 0.049, but a nonsignificant finding if p = 0. 051.26 Besides, even when one uses a 90-percent (p < or = 0.10), an 85-percent (p < or = 0.15), or some other confidence level, it still may not include the null point. If not, these other p values also show the data are consistent with an effect. Statistical-significance proponents thus forget that both confidence levels and p values are measures of consistency between the data and the null hypothesis, not measures of the probability that the null is true. When results do not satisfy the rule, this means merely that the null cannot be rejected, not that the null is true.”

Tainted at 103.

S-F’s repeats some criticisms of significance testing, most of which involve their own misunderstandings of the concept.  It hardly suffices to argue that evaluating the magnitude of random error is worthless because it does not measure the extent of bias and confounding.  The flaw lies in those who would interpret the p-value as the sole measure of error involved in a measurement.

S-F takes the criticisms of significance probability to be sufficient to justify an alternative approach: evaluating causal hypotheses “on a preponderance of evidence,47 whether effects are more likely than not.”[5] Here citations, however, do not support the notion that an overall assessment of the causal hypothesis is a true alternative of statistical testing, but rather only a later step in the causal assessment, which presupposes the previous elimination of random variability in the observed associations.

S-F compounds her confusion by claiming that this purported alternative is superior to significance testing or any evaluation of random variability, and by noting that juries in civil cases must decide causal claims on the preponderance of the evidence, not on attained significance probabilities:

“In welfare-affecting areas of science, a preponderance-of-evidence rule often is better than a statistical-significance rule because it could take account of evidence based on underlying mechanisms and theoretical support, even if evidence did not satisfy statistical significance. After all, even in US civil law, juries need not be 95 percent certain of a verdict, but only sure that a verdict is more likely than not. Another reason for requiring the preponderance-of-evidence rule, for welfare-related hypothesis development, is that statistical data often are difficult or expensive to obtain, for example, because of large sample-size requirements. Such difficulties limit statistical-significance applicability. ”

Tainted at 105-06. S-F’s assertion that juries need not have 95% certainty in their verdict is either a misunderstanding or a misrepresentation of the meaning of a confidence interval, and a conflation of two very kinds of probability or certainty.  S-F invites a reading that commits the transposition fallacy by confusing the probability involved in a confidence interval with that involved in a posterior probability.  S-F’s claim that sample size requirements often limit the ability to use statistical significance evaluations is obviously highly contingent upon the facts of case, but in civil cases, such as Pritchard, this limitation is rarely at play.  Of course, if the sample size is too small to evaluate the role of chance, then a scientist should probably declare the evidence too fragile to support a causal conclusion.

S-F also postulates that that a posterior probability rather than a significance probability approach would “better counteract conflicts of interest that sometimes cause scientists to pay inadequate attention to public-welfare consequences of their work.” Tainted at 106. This claim is a remarkable assertion, which is not supported by any empirical evidence.  The varieties of evidence that go into an overall assessment of a causal hypothesis are often quantitatively incommensurate.  The so-called preponderance-of-the-evidence described by S-F is often little more than a subjective overall assessment of weight of the evidence.  The approving citations to the work of Carl Cranor support interpreting S-F to endorse this subjective, anything-goes approach to weight of the evidence.  As for WOE eliminating inadequate attention to “public welfare,” S-F’s citations actually suggest the opposite. S-F’s citations to the 1961 reviews by Wynder and by Little illustrate how subjective narrative reviews can be, with diametrically opposed results.  Rather than curbing conflicts of interest, these subjective, narrative reviews illustrate how contrary results may be obtained by the failure to pre-specify criteria of validity, and inclusion and exclusion of admissible evidence. Still, S-F asserts that “up to 80 percent of welfare-related statistical studies have false-negative or type-II errors, failing to reject a false null.” Tainted at 106. The support for this assertion is a citation to a review article by David Resnik. See David Resnik, “Statistics, Ethics, and Research: An Agenda for Education and Reform,” 8 Accountability in Research 163, 183 (2000). Resnik’s paper is a review article, not an empirical study, but at the page cited by S-F, Resnik in turn cites to well-known papers that present actual data:

“There is also evidence that many of the errors and biases in research are related to the misuses of statistics. For example, Williams et al. (1997) found that 80% of articles surveyed that used t-tests contained at least one test with a type II error. Freiman et al. (1978)  * * *  However, empirical research on statistical errors in science is scarce, and more work needs to be done in this area.”

Id. The papers cited by Resnik, Williams (1997)[6] and Freiman (1978)[7] did identify previously published studies that over-interpreted statistically non-significant results, but the identified type-II errors were potential errors, not ascertained errors, because the authors made no claim that every non-statistically significant result actually represented a missed true association. In other words, S-F is not entitled to say that these empirical reviews actually identified failures to reject fall null hypotheses. Furthermore, the empirical analyses in the studies cited by Resnik, who was in turn cited by S-F, did not look at correlations between alleged conflicts of interest and statistical errors. The cited research calls for greater attention to proper interpretation of statistical tests, not for their abandonment.

In the end, at least in the chapter on statistics, S-F fails to deliver much if anything on her promise to show how to evaluate science from a philosophic perspective.  Her discussion of the Pritchard case is not an analysis; it is a harangue. There are certainly more readable, accessible, scholarly, and accurate treatments of the scientific and statistical issues in this book.  See, e.g., Michael B. Bracken, Risk, Chance, and Causation: Investigating the Origins and Treatment of Disease (2013).


[1] Not to be confused with the deceased federal judge by the same name, William J. Rea. William J. Rea, 1 Chemical Sensitivity – Principles and Mechanisms (1992); 2 Chemical Sensitivity – Sources of Total Body Load (1994),  3 Chemical Sensitivity – Clinical Manifestation of Pollutant Overload (1996), 4 Chemical Sensitivity – Tools of Diagnosis and Methods of Treatment (1998).

[2] R. C. Shelton, M. B. Keller, et al., “Effectiveness of St. John’s Wort in Major Depression,” 285 Journal of the American Medical Association 1978 (2001).

[3] M. A. Eisenberger, B. A. Blumenstein, et al., “Bilateral Orchiectomy With or Without Flutamide for Metastic [sic] Prostate Cancer,” 339 New England Journal of Medicine 1036 (1998).

[4] Kenneth J. Rothman, Epidemiology 123–127 (NY 2002).

[5] Endnote 47 references the following papers: E. Hammond, “Cause and Effect,” in E. Wynder, ed., The Biologic Effects of Tobacco 193–194 (Boston 1955); E. L. Wynder, “An Appraisal of the Smoking-Lung-Cancer Issue,”264  New England Journal of Medicine 1235 (1961); see C. Little, “Some Phases of the Problem of Smoking and Lung Cancer,” 264 New England Journal of Medicine 1241 (1961); J. R. Stutzman, C. A. Luongo, and S. A McLuckey, “Covalent and Non-Covalent Binding in the Ion/Ion Charge Inversion of Peptide Cations with Benzene-Disulfonic Acid Anions,” 47 Journal of Mass Spectrometry 669 (2012). Although the paper on ionic charges of peptide cations is unfamiliar, the other papers do not eschew traditional statistical significance testing techniques. By the time these early (1961) reviews were written, the association that was reported between smoking and lung cancer was clearly accepted as not likely explained by chance.  Discussion focused upon bias and potential confounding in the available studies, and the lack of animal evidence for the causal claim.

[6] J. L. Williams, C. A. Hathaway, K. L. Kloster, and B. H. Layne, “Low power, type II errors, and other statistical problems in recent cardiovascular research,” 42 Am. J. Physiology Heart & Circulation Physiology H487 (1997).

[7] Jennie A. Freiman, Thomas C. Chalmers, Harry Smith and Roy R. Kuebler, “The importance of beta, the type II error and sample size in the design and interpretation of the randomized control trial: survey of 71 ‛negative’ trials,” 299 New Engl. J. Med. 690 (1978).

Conflict of Interest Regulations Apply Symmetrically

July 25th, 2014

Last week, a federal judge ruled that working as a plaintiffs’ expert witness in tobacco litigation or as consultants for pharmaceutical companies with tobacco-cessation medications was a conflict of interest, which invalidated a FDA report on menthol cigarettes. Lorillard Inc. et al. v. U.S. Food and Drug Administration, 1:11-cv-00440, D.D.C. (July 21, 2014).

The report was issued in 2011 by the agency’s Tobacco Products Scientific Advisory Committee (TPSAC).  Two tobacco companies sought an injunction against the FDA’s report because of the improper memberships on the TPSAC of Drs. Jonathan Samet and Neil Benowitz. Lorillard’s General Counsel also challenged agency pronouncements under the Data Quality Act.  Letter Request for Correction of Information Disseminated to the Public and the Tobacco Products Scientific Advisory Committee (March 16, 2011) (petition lodged under the Data Quality Act (DQA), 44 U.S.C. § 3516, and the related agency regulations of the Office of Management and Budget, Health and Human Services, and FDA).

Although the TPSAC report concluded that menthol cigarettes imparted no greater risk of lung cancer than the already deadly non-menthol cigarettes, the report claimed that studies show menthol flavoring increased usage among young people and African Americans.  The TPSAC recommended a ban on menthol cigarettes in the interest of public health. The district court held that the FDA’s decision that the disputed members had no conflict of interest violated the Administrative Procedures Act, and that the violation required the agency to reconstitute the TPSAC in compliance with the applicable ethics regulations.

What is remarkable about the case is its rejection of the delusion that advocacy for plaintiffs is not a potential conflict of interest, whereas advocacy for a company is.  An amicus brief filed on behalf of several medical and public health groups, including Public Citizen, Inc., American Cancer Society, American Medical Association, American Thoracic Society, and others, supported the agency’s motion to dismiss. Amici argued that balancing scientific opinions of experts on the committee would impair the integrity of advisory committees and would be unmanageable for courts. Given the obvious adversarial bias from service as an expert witness in tobacco litigation, the district court rejected amici’s arguments. Although amici’s position is understandable as a reaction to the callousness of tobacco marketing, the brief’s indifference to the ethical implications about conflicts of interest is surprising.  One can only imagine the hue and cry if there had been committee members who had been engaged as expert witnesses for the tobacco companies.

The implications of the Lorillard decision are considerable, especially for FDA advisory committees. See Glenn Lammi, “FDA Advisory Committee Not Rife with Conflicts of Interest? — ‛Please!’ Quips Federal Judge” (July 24, 2014) (discussing Lorillard case and detailing efforts to obtain FDA compliance with the Federal Advisory Committee Act). Industry representatives are typically non-voting members, but members who have been retained by the litigation industry have served in voting positions. In other contexts, expert witnesses for plaintiffs accuse scientists who testify for a defendant of “conflicts of interest,” but conveniently ignore and fail to disclose their own. SeeMore Hypocrisy Over Conflicts of Interest” (Dec. 4, 2010) (Arthur Frank, Richard Lemen, and Barry Castleman); James Coyne, “Lessons in Conflict of Interest: The Construction of the Martyrdom of David Healy and The Dilemma of Bioethics,” 5 Am. J. Bioethics W3 (2005). The Lorillard case teaches that “white hat” bias is as disqualifying as “black hat” bias.