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David Egilman RIP – Part Two

April 28th, 2024

There was a good bit of irony in Egilman’s reaching out to me to help him prepare for my deposition of him in a silicone gel breast implant case. First, the materials he apparently wanted were all in a document repository for the benefit of plaintiffs’ lawyers. He needed only to have asked the Wilentz firm lawyers for relevant. In rather typical fashion, Egilman wanted to create a faux issue about defense counsel’s hiding the ball.

Second, Egilman had already completed his report, and his request showed that his opinions had been asserted without looking at material documents.

Third, and perhaps most important, in New Jersey, attorneys are not generally allowed to communicate with a represented party directly.[1] Expert witnesses are usually considered as agents of the parties that retained them, which means that such witnesses are also not free to communicate directly with the adverse parties or its counsel. There was no exact precedent for Egilman’s misconduct, but it was obviously disturbing to plaintiffs’ counsel, who promptly withdrew Egilman as a witness in the case. Alas, I did not get my chance to conduct this examination before trial.

Much of the irony in the New Jersey situation derived from Egilman’s fancying himself  something of an ethicist. He certainly was quick to pronounce ethical judgments upon others, especially anyone in manufacturing industry, or any scientist who served as an expert witness opposite him. As he made clear at his CSPI lecture, Egilman had an ideological bias, and it deeply affected his judgment of science and history. He swam in the hogwash of critical theory, cultural hegemony, and Marxist cant.

To Egilman, it was obvious that material forces of capitalism meant that manufacturing industry was incapable of honestly defending its products. The motives, biases, and depradations of the lawsuit industry and its agents rarely concerned him. As a committed socialist, Egilman was incurious about how and why occupational and environmental diseases were so prevalent in socialist and communist countries, where profits are outlawed and the people own the means of production.[2]

Like the radical labor historians David Rosner and Gerald Markowitz, Egilman tried to cram the history of silicosis (and even silicosis litigation) into a Marxist narrative of class conflict, economic reductionism, and capitalist greed. Egilman’s ideological bias marred his attempts to relate the history of dust diseases. His bias made him a careless historian. Several of his attempts to relate the history of dust diseases were little more than recycled litigation reports, previously  filed in various cases, with footnotes added. Egilman was occasionally listed as an expert witness in silicosis cases, but he glibly and ignorantly lumped the history of silica with that of asbestos diseases. In one article, for example, he wrote:

“Knowledge that asbestos and silica were hazardous to health became public several decades after the industry knew of the health concerns. This delay was largely influenced by the interests of Metropolitan Life Insurance Company (MetLife) and other asbestos mining and product manufacturing companies.”[3]

Egilman’s claims about silica, however, were never supported in this article or elsewhere. A brief review of two published monographs by Frederick L. Hoffman, published before 1923, should be sufficient to condemn the authors’ carelessness to the dustbin of occupational history.[4]  The bibliographies in both these monographs document the widespread interest in, and awareness of, the occupational hazards of silica dusts, going back into the 19th century, among the media, the labor movement, and the non-industrial scientific community. The conversation about silicosis was on full display in the national silicosis conference of 1938, sponsored by Secretary of Labor Francis Perkins.

On at least one occasion, Egilman publicly acknowledged his own entrepreneurial and profit motives. In a consumer diacetyl exposure case (claiming bronchiolitis obliterans), a federal district court excluded Egilman’s causation opinions as unreliable. The court found that Egilman had manipulated data to reach misleading conclusions, devoid of scientific validity.[5]

Egilman was so distraught by being excluded that he sought to file a personal appeal to the United States Court of Appeal.[6] When the defendant-appellee opposed Egilman’s motion to intervene in the plaintiff’s appeal, Egilman stridently asserted his right to participate,[7] and filed his own declaration.[8] The declaration is required reading for anyone who wants to understand Egilman’s psycho-pathology.

In what was nothing short of a scurrilous pleading, Egilman attacked the district judge for having excluded him from testifying. He went so far as to claim that the judge had defamed him with derogatory comments about his “methodology.” If Egilman’s challenge to the trial judge was not bizarre enough, Egilman also claimed a right to intervene in the appeal by advancing the claim that the Rule 702 exclusion hurt his livelihood.  The following language is from paragraph 11 of Dr. Egilman’s declaration in support of his motion:

“The Daubert ruling eliminates my ability to testify in this case and in others. I will lose the opportunity to bill for services in this case and in others (although I generally donate most fees related to courtroom testimony to charitable organizations, the lack of opportunity to do so is an injury to me). Based on my experience, it is virtually certain that some lawyers will choose not to attempt to retain me as a result of this ruling. Some lawyers will be dissuaded from retaining my services because the ruling is replete with unsubstantiated pejorative attacks on my qualifications as a scientist and expert. The judge’s rejection of my opinion is primarily an ad hominem attack and not based on an actual analysis of what I said – in an effort to deflect the ad hominem nature of the attack the judge creates ‘strawman’ arguments and then knocks the strawmen down, without ever addressing the substance of my positions.”

Egilman was a bit coy about how much of his fees went to him, and how much went to charity. To give the reader some idea of the artificial flavor of Egilman’s pomposity, paragraph 8 of his remarkable declaration avers”

“My views on the scientific standards for the determination of cause-effect relationships (medical epistemology) have been cited by the Massachusetts Supreme Court (Vassallo v. Baxter Healthcare Corporation, 428 Mass. 1 (1998)):

Although there was conflicting testimony at the Oregon hearing as to the necessity of epidemiological data to establish causation of a disease, the judge appears to have accepted the testimony of an expert epidemiologist that, in the absence of epidemiology, it is ‘sound science…. to rely on case reports, clinical studies, in vivo tests and animal tests.’ The judge may also have relied on the affidavit of the plaintiff’s epidemiological expert, Dr. David S. Egilman, who identified several examples in which disease causation has been established based on animal and clinical case studies alone to demonstrate that ‘doctors utilize epidemiological data as one tool among many ’.”

Egilman’s quote from the Vassallo decision is accurate as far as it goes,[9] but the underlying assertion is either a lie or a grand self-delusion. There was epidemiologic evidence on silicone and connective tissue disease before the Oregon federal district court and its technical advisors, and the court resoundingly rejected the plaintiffs’ causal claims as unsupported by valid evidence, with or without epidemiologic evidence. The argument that epidemiology was unnecessary came from Dr. Egilman’s affidavit, and the plaintiffs’ counsel’s briefs, which were considered and rejected by Judge Jones.[10]

Egilman’s affidavit in connection with the so-called Oregon hearings, which took place during the summer of 1996, was not a particularly important piece of evidence. Most of the “regulars” had put in reports or affidavits in the Hall case. Egilman failed to appear at the proceedings before the court and its technical advisors; and he was not mentioned by name in the Hall decision. Nonetheless, Judge Jones, in his published decision, clearly rejected all the plaintiffs’ witnesses and affiants, including Egilman, in their efforts to make a case for silicone as a cause of autoimmune disease.

A few months after the Oregon hearings, Judge Weinstein, in the fall of 1996, along with other federal and state judges, held a “Daubert” hearing on the admissibility of expert witness opinion testimony in breast implant cases, pending in New York state and federal courts.  Egilman’s affidavit on causation was once again in play. Plaintiffs’ counsel suggested that Egilman might testify, but he was once again a no show. Egilman’s affidavit was in the record, and the multi-judge panel considered and rejected the claimed causal connection between silicone and autoimmune or connective tissue diseases.[11]

There is more, however, to the disingenuousness of Dr. Egilman’s citation to the Vassallo case.  The Newkirk court, in receiving his curious declaration, would not likely have known that Vassallo was a silicone gel breast implant case, and one may suspect that Dr. Egilman wanted to keep the Ninth Circuit uninformed of his role in the silicone litigation. After all, by 1999, The Institute of Medicine (now the National Academies of Science, Engineering, and Medicine) delivered its assessment of the safety of silicone breast implants.  Egilman’s distorted and exaggerated claims had been rejected.[12]

Alas, the jingle of coin doth not always soothe the hurt that conscience must feel. In his declaration, Egilman sought to temper the unfavorable judgment in the Newkirk diacetyl case by noting that only judges who had not previously encountered him would be unduly persuaded by Judge Peterson’s decision. Other judges who have heard him hold forth in court would no doubt see him for the brilliant crusading avenger that he is. The feared prejudice:

“will generally not occur in cases heard before Judges where I have already appeared as a witness. For example a New York state trial judge has praised plaintiffs’ molecular-biology and public-health expert Dr. David Egilman as follows: ‘Dr. Egilman is a brilliant fellow and I always enjoy seeing him and I enjoy listening to his testimony . . . . He is brilliant, he really is.’ [Lopez v. Ford Motor Co., et al. (120954/2000; In re New York City Asbestos Litigation, Index No. 40000/88).]”[13]

The United States Court of Appeals did not appear to hold Egilman the intervenor as brilliant as he thought himself. The court was not moved by either the bullying or the braggadocio.[14] The curious appeal was denied.

Egilman obviously could not sue the trial or appellate judges in the Newkirk case, but he did on other occasions try to deflect or diminish criticism by threats of litigation. In 2009, Laurence Hirsh, a physician, formerly with Merck, wrote a commentary for the Mayo Clinic Proceedings, on conflicts of interest. His commentary was a sustained critique of the hypocrisy and anti-industry bias of journals’ requirements for disclosure of conflict of interest.[15] Hirsch pointed out that some of the authors, including David Egilman, who had written articles critical of Merck, had given anemic disclosures of their own biases and conflicts of interest. Hirsch noted that Egilman had testified in many different litigations (too many diverse litigations to be credible for any one witness), including “silicone breast implants and connective tissue disease (characterized as the epitome of junk science)….”[16] With respect to compensation, Hirsch reported that:

“Egilman has testified for Mr Lanier and other attorneys in more than 100 tort cases (nearly always for plaintiffs) for approximately 2 decades and, by his own estimate, has earned $20 to $25 million for such testimony. Besides dollars, Egilman’s objectivity is questionable on other grounds. In 2007, he signed an admission that ‘there was another side to the story’ and was fined $100,000 by an outraged federal judge for actively facilitating the leak (through a third party) to a New York Times reporter (exclusively) of court-sealed documents in litigation involving Eli Lilly (Indianapolis, IN) and olanzapine (Zyprexa).”[17]

Hirsch’s commentary was a burr under the saddle of this lawsuit industry work horse. Egilman wrote to Hirsch to demand that he correct and retract his comments. Egilman threatened to sue Dr. Hirsch for false and defamatory statements. Alas, Hirsch was intimidated by the threats. The correction that resulted was shaped by Egilman’s assertions, and what resulted was false and misleading:

“1. Dr Egilman’s income from serving as a medical expert in tort litigation, etc, was incorrectly reported as $20-$25 million during a 20-year period. Dr Egilman actually testified in court that it was $2-$2.5 million during that time. The source for the original statement in the Commentary was an online newspaper article dated July 31, 2005. The newspaper revised its report of the court testimony by Dr Egilman in a correction that was published only in the local, printed edition on August 2, 2005 (Michael Morris, oral communication, September 11, 2009).

2. Dr Egilman was not fined by a judge for leaking court sealed documents concerning the Lilly-Zyprexa litigation. Rather, Dr Egilman and Lilly entered into an (Stipulated) agreement by US District Judge Jack Weinstein, filed September 9, 2007, in which Dr Egilman agreed to pay Lilly $100,000, and to dismiss his appeal of the Court’s Final Judgment, Order and Injunction from February and March, 2007 (http://lawprofessors.typepad.com/tortsprof/files/EgilmanSettlement.pdf).

3. Dr Egilman has not testified in court in breast implant and connective tissue disease, or in antidepressant or antipsychotic drug cases. Dr Egilman did provide a sworn affidavit in one case involving local effects of leakage of silicone from breast implants (Vassallo vs Baxter Healthcare Corporation. Decisions of the Supreme Judicial Court of Massachusetts. May 5-July 16, 1998, p. 7).

I regret these inaccuracies in my Commentary.”[18]

Egilman’s estimate of his income, without access to his tax returns, was essentially worthless. The difference between a fine and a stipulated penalty was meaningless. The claim that Egilman did not testify in the Vassallo trial, in which the plaintiff claimed that she had developed atypical autoimmune disease as a result of her silicone gel breast implants, was simply a lie that Egilman foisted upon Dr. Hirsch.

Falsus in uno, falsus in omnibus.

[1] See Formal Opinion 503, of the ABA’s Standing Committee on Ethics and Professional Responsibility, ABA Model Rule of Professional Conduct 4.02.

[2] See, e.g., Jie Li, Peng Yin, Haidong Wang, Lijun Wang, Jinling You, Jiangmei Liu, Yunning Liu, Wei Wang, Xiao Zhang, Piye Niu, and Maigeng Zhou, “The burden of pneumoconiosis in China – analysis Global Burden of Disease Study,” 22 BMC Pub. Health 1114 (2022); Na Wu, Chang Jiang Xue, Shiwen Yu, and Qiao Ye, “Artificial stone-associated silicosis in China: A prospective comparison with natural stone-associated silicosis,” 25 Respirology 518 (2019); Christa Schröder, Friedrich Klaus, Martin Butz, Dorothea Koppisch, and Otten Heinz, “Uranium mining in Germany: incidence of occupational diseases 1946-1999,” 75 Internat’l Arch. Occup. & Envt’l Health 235 (2002); A.G. Chebotarev, “Incidence of silicosis and the effectiveness of preventive measures at the Balei mines (1947 to 1967),” 13 Gigiena truda i professional’nye zabolevaniia 14 (1969) (in Russian); C. Hadjioloff, “The Development of Silicosis and Its Expert Evaluation as a Basis for the Rehabilitation of Silicosis Patients in Bulgaria,” 58 Medizinische Klinik 2023 (1963).

[3] David Egilman, Tess Bird, and Caroline Lee, “Dust diseases and the legacy of corporate manipulation of science and law, 20 Internat’l J. Occup. & Envt’l Health 115, 115 (2014) (emphasis added).

[4] Frederick L. Hoffman, Mortality from Respiratory Diseases in the Dusty Trades; Dep’t of Labor, Bureau of Labor Statistics (1918); The Problem of Dust Phthisis in the Granite Stone Industry, Dep’t of Labor, Bureau of Labor Statistics (1922). See also U.S. Department of Labor Bulletin No. 21, part I, National Silicosis Conference, Report on Medical Control (1938).

[5] Newkirk v. Conagra Foods, Inc., 727 F.Supp. 2d 1006 (E.D. Wash. 2010).

[6] Schachtman, “Exclusion of Dr. David Egilman in Diacetyl Case,” Tortini (June 20, 2011); “David Egilman’s Methodology for Divining Causation,” Tortini (Sept. 6, 2012).

[7] Opposition of David Egilman to Motion for Order to Show Cause re Dismissal of Appeal for Lack of Standing, in case no. 10-35667, document 7547640 (9th Cir. Nov. 16, 2010).

[8] Declaration of David Egilman, in Support of Opposition to Motion for Order to Show Cuase Why Appeal Should Not Be Dismissed for Lack of Standing, in case no. 10-35667, document 7547640 (9th Cir. Nov. 16, 2010) Declaration [Declaration].

[9] Vassallo v. Baxter Healthcare Corporation, 428 Mass. 1, 12 (1998).

[10] See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387 (D. Or. 1996). Judge Jones made his views very clear:  contrary to Egilman’s affidavit, epidemiology was needed, but lacking, in the plaintiffs’ case.

[11] Transcript at p.159:7-18, from Nyitray v. Baxter Healthcare Corp., CV 93-159 (E.D.N.Y. Oct. 9, 1996) (pre-trial hearing before Judge Jack Weinstein, Justice Lobis, and Magistrate Cheryl Pollak). See In re Breast Implant Cases, 942 F. Supp. 958 (E.& S.D.N.Y. 1996) (rejecting sufficiency of plaintiffs’ causation expert witness evidence, which included affidavit of Dr. Egilman). Years later, Judge Jack B. Weinstein elaborated upon his published breast-implant decision, with a bit more detail about how he viewed the plaintiffs’ expert witnesses. Judge Jack B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation” 2009 Cardozo L. Rev. de novo 1, 14 (2009) (describing plaintiffs’ expert witnesses in silicone litigation as “charlatans”; “[t]he breast implant litigation was largely based on a litigation fraud. … Claims—supported by medical charlatans—that enormous damages to women’s systems resulted could not be supported.”) Egilman, who had filed an affidavit in support of the plaintiffs’ claims in the Hall case, and in the cases before Judge Weinstein, was within the scope of that litigation fraud.

[12] Stuart Bondurant, Virginia Ernster, and Roger Herdman, eds., Safety of Silicone Breast Implants (1999).

[13] Declaration at p. 9 n. 2.

[14] Newkirk v. Conagra Foods, Inc. 727 F.Supp. 2d 1006 (E.D. Wash. 2010), aff’d, 438 Fed.Appx. 607 (9th Cir.2011); Egilman v. Conagra Foods, Inc., 2012 WL 3836100 (9th Cir. 2012), cert. denied, 568 U.S. 1229 (2013).

[15] Laurence J. Hirsch, “Conflicts of Interest, Authorship, and Disclosures in Industry-Related Scientific Publications: The Tort Bar and Editorial Oversight of Medical Journals,” 84 Mayo Clin. Proc. 811 (2009).

[16] Id. at 815.

[17] Id. at 814 (internal citations omitted).

[18] Laurence J. Hirsch, “Corrections,” 85 Mayo Clin. Proc. 99 (2010).

Posted in Conflicts of Interest, Expert Witness Hall of Shame, Expert Witnesses, Historian Testimony, Silica | 27 Comments »

Oreskes Excluded as Historian Expert Witness in Mann Case

February 28th, 2023

“It has been said that though God cannot alter the past, historians can; it is perhaps because they can be useful to Him in this respect that He tolerates their existence.”    

                Samuel Butler, Erewhon Revisited, ch. 14

 

It has been a while since I have written about the scientist defamation case of brought by climate scientist and advocate, Michael E. Mann, against National Review magazine, the Competitive Enterprise Institute, and Mark Steyn.[1] Back in 2014, I commented upon the oddity of a scientist’s claim of defamation against lay people for criticizing a scientist’s work.[2] Mann took umbrage to statements, critical of his work that generated a “hockey-stick” model of global temperature rises. Defendants apparently accused Mann of “molest[ing] and tortur[ing] data in the service of politicized science[,]” “engaging in data manipulation[,]” and creating the “fraudulent climate-change ‘hockey-stick’ graph[.]”[3] Mann naturally claims that the defendants’ statements are false and defamatory; the defendants contend that their statements are true.

In the hurly burly of work and life, I lost touch with the proceedings in Mann, but recently I became aware of interesting gatekeeping rulings, issued in 2021.[4] I was particularly intrigued by the activity of Naomi Oreskes, qua historian, who sought to offer an expert witness opinion in the Mann case. On July 26, 2021, Judge Alfred S. Irving, Jr., dashed Oreskes’ hopes of testifying as an historian, and told her not to bother coming to Washington for trial.[5]

Naomi Oreskes is a “professor of the History of Science, in Harvard University. She teaches and writes about the history of science. When not riding political hobby horses, Oreskes has written about the Idiocracy’s rejection of science,[6] but she has also shown herself to be untutored in the basics of scientific and statistical method.[7]

She is an advocate who, along with her posse, frequently weighs in against oil companies in litigation.[8] Oreskes has also written extensively to demonize industry’s motives and to advance her conspiracy theories in which manufacturing industry (but not lawsuit industry) is responsible for suppressing the truth of positions that Oreskes believes fervently.[9] She has decried the political discrediting of science, while participating in a political strategy to discredit her scientific opponents.[10] The line between trust and credulity can sometimes be hard to locate.

The defendants had moved in limine to exclude Oreskes’ proferred historian testimony,[11] under the District of Columbia’s standard for admitting and excluding expert witness opinion testimony.[12] Oreskes’ opinion, at issue in the Mann case, was on

  • the general basis for finding scientific research to be reliable, and
  • that “think-tanks” (including the defendant CEI) “ignore, misrepresent, or reject” principled scientific thought on environmental issues.

On the general issue of reliability, Oreskes proferred an opinion that scientific research is made reliable by

“the collective vetting and critical interrogation of claims through scientific workshop, meetings, conferences, and above all, publication in peer-reviewed journals, formal scientific assessments and reports of government scientific agencies and laboratories.”

Even on superficial review, this description appears woefully inadequate and incomplete. For Oreskes, scientific reliability seems to be all about meetings, publications, and governmental reviews, with no room for actual data gathered in attempts to refute hypotheses, or room for interrogating the data and their quality. Nonetheless, on this general issue of reliability, the Court found her opinion to acceptable but redundant to scientific witnesses who had first-hand knowledge of Mann’s work (as opposed to an historian). On the first part of her proferred opinion, Judge Irving expressed his skepticism that Oreskes’ opinion would be helpful to the jury; Oreskes’ testimony might give the jury a framework that could be used to assess whether Mann’s work was fraudulent or not. Judge Irving held, however, that Oreskes’ testimony ran afoul of the law in failing to “to use a scientific technique which applies reliable methodologies.”[13]

On the second proferred opinion, the ad hominem attack on the bona fides of CEI and similar “think-tanks,” Judge Irving found Oreskes, in her report, failed to provide any explanation of her methodology.[14]

As was the case with several of Plaintiff’s proffered experts, Dr. Oreskes’ report was devoid of any discussion of her methodologies. Mann’s lawyers sought to remedy the omission by adverting to Oreskes’ description, in her deposition testimony, of her “content analysis” methodology, as applied to the public statements of the CEI:

“So we read the documents. And as I said before, we applied a well-established method in social science, which is broadly accepted as being, you know, a reputable method of analyzing something, content analysis, in order to show that there was this fairly substantial disparity between what the company scientists were saying in their private reports and publishing in peer-reviewed scientific literature which was essentially consistent with what other scientists were saying versus what the company was saying in public in advertisements that were aimed at the general public.

                           * * * * *

In the case of ExxonMobil, we had the opportunity to do this analysis because the company itself had made public these documents. And they claimed in public that if you read these documents, you would see that everything was fine and that ExxonMobil had done nothing wrong.

We applied a well-established method in social science, which is broadly accepted as being, you know, a reputable method of analyzing something, content analysis, in order to show that there was this fairly substantial disparity between what the company scientists were saying in their private reports and publishing in peer-reviewed scientific literature which was essentially consistent with what other scientists were saying versus what the company was saying in public in advertisements that were aimed at the general public.”[15]

Alas, it turned out that this jargon-laden description of method was irrelevant because Oreskes admitted that she had not performed a “content analysis” in the Mann case.[16] When pressed to explain the methodology actually used in the Mann case, she candidly explained:

“If you want me to tell you what my method is, it’s reading and thinking. We read. We read documents. And we think about them.”[17]

The court found this explanation more than a little problematic. “Reading and thinking about documents” are not the sort of methodologies that are beyond the ken of the jury. Oreskes’ best effort to explain what she had done left “the Court is unable to distinguish why Dr. Oreskes is more capable than the average juror, who can also read and think about documents.”[18]

The court’s inability to fathom what Oreskes might offer was not due to any judicial disability. Oreskes’ “reading and thinking” had never been peer-reviewed, had no known success rate, and could not be replicated by other experts in her field. The court saw that Oreskes’ opinion had not come from scientific method, and that her opinion would be aptly characterized “as a historical narrative or research compilation than scientific testimony.”[19] Oreskes’ opinion could not be justified as expert experiential opinion because it was not based upon her personal experience; rather, her opinion was based upon her review of documents and reports of others.

Oreskes’ “expert” witness report regaled the court with her take on CEI’s previous actions and statements. Oreskes offered the opinion that CEI has a history of opposing “progressive” policies and that it regularly advocates against “valid and widely accepted scientific research.” Judge Irving recognized that these opinions were nothing more than Oreskes’ subjective historical summary of CEI’s actions, no doubt with a heavy dose of Oreskes’ personal animus against the CEI. As Judge Learned Hand declared almost 100 years ago, “[a]rgument is argument whether in the box or at the bar, and its proper place is the last.”[20]

As for methodology, the court found none. The court agreed with the CEI that “Dr. Oreskes made no effort to compile or catalogue CEI’s publications according to an objectively defined set of metrics.” Oreskes was thus excluded from the litigation in July 2021.[21]

The plaintiff and Naomi Oreskes were not content to leave matters as they were decided in Judge Irving’s order. Mann moved for reconsideration of Oreskes’ exclusion, with a more limited proffer of testimony that would address the “importance of scientific expertise and the significance of the scientific method and peer review process in scientific debate.”[22]

In this requested do-over, Mann submitted a supplemental declaration from Oreskes, in which she elaborated upon her methodology of “contextual exposition.” Mann further argued that Oreskes should be “permitted to testify regarding scientific principles to permit the jury to understand those principles and to apply them to facts without running afoul of the general rules relating to opinion testimony.”

To this end, Oreskes would give the jury a “contextual exposition…of the character and nature of scientific research.” Mann contended that this foundational opinion testimony was “crucial to enable the jury to reach its conclusions concerning the truth or falsehood of Defendants’ objectively verifiable statements of fact about Dr. Mann and his scientific research which produced the Hockey Stick Graph.”

Essentially, Mann was seeking to have Oreskes’ testimony admitted as a “teaching expert witness,” who would not provide her own personal opinion, but who would give the jury the relevant scientific principles that they may apply to the facts of the case as they find. Judge Irving accepted this more limited proffer, and modified his earlier ruling to permit Oreskes to give the so-called “contextual information” that renders scientific research reliable, such as the peer review process.[23] As noted above, this aspect of the Oreskes’ proffered testimony appears incomplete, with emphasis on “social control,” at the expense of valid inference and data quality and integrity. 

Judge Irving’s reconsideration gave Oreskes a very limited remit to testify at trial. His Honor emphasized, however, that most of what she had originally proposed for her testimony was “unreliable and irrelevant.” Oreskes will not be allowed to give her opinion over the history of “the debate over anthropogenic climate change,” or hold forth with opinions about the history and character of CEI’s “agenda.” Judge Irving reiterated his finding that Oreskes’ opinions on these matters “are not demonstrably the product of any scientific principle or method, and are largely irrelevant.”[24]

Furthermore, Oreskes will not be allowed to discuss Mann’s work, or whether or not his methodology is valid, or whether there is evidence or not of data manipulation or fraudulent behavior. As Judge Irving summarized the matter:

“Dr. Oreskes’ opinion in that regard would be entirely speculative given that she has not demonstrated any particular expertise or experience regarding Dr. Mann’s research. Neither her original expert report nor her supplemental declaration indicates any intimate knowledge of Dr. Mann’s work. Further, Dr. Oreskes’ expert report identifies her as an expert in the history of science and in geology, not as an expert in climate reconstruction. Dr. Oreskes has not demonstrated any specialized knowledge or experience concerning the substantive or factual aspects of the MBH research.”

Judge Irving also excised Oreskes’ claim, made in her belated supplemental declaration, that there is a consensus about the cause of climate change, or that there is a political and ideological basis for CEI’s opposition to the consensus. After all, Mann’s work could have been fraudulent, even if other, sound scientific work came to the same conclusion, and even if that conclusion were widely shared.[25]

The choice of Naomi Oreskes to serve as an expert witness was dubious on several fronts.  First, as a partisan in the climate science debates, Oreskes hardly brought objectivity to the courtroom to support plaintiff Michael Mann. While attacking CEI for political and ideological bias, Oreskes’ helped showcase her own biases, which have long been on display.[26] Mann would be more effectively served by presenting an expert on scientific method who was not such an extreme advocate. Second, as shown by her misidentification of the burden of proof with the coefficient of confidence, Oreskes previously had shown a lack of understanding of scientific and statistical method.[27] Mann might have considered that his case would be better supported by someone who had not made such glaring mistakes, in front of a national audience.

As for whether the historian aspect of Oreskes’ testimony could ever have succeeded, I am more doubtful. Historians who “read and think” often have little to offer beyond what lawyers can accomplish using documents presented to the trier of fact for interpretation.[28]

Presenting historian “expert” witnesses is a commonplace in occupational exposure litigations, involving silicosis or claimed asbestos-related diseases.[29] The use of such expert witnesses leads to serious abuses, by which argument and advocacy are surreptitiously presented as history.[30] Judge Irving’s exclusion of Naomi Oreskes is a valuable precedent for bench and bar.

Trial is set for June 12, 2023.

[1] Michael E. Mann v. National Review, CA 008263 B (filed in 2012, in the Washington, DC Superior Court, Civil Division).

[2] See “Climategate on Appeal” (Aug. 17, 2014).

[3] Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1262-64 (D.C. 2016), as amended (Dec. 13, 2018), cert denied 140 S. Ct. 344 (2019).

[4] There is a useful compendium of rulings available through the CEI website.

[5] See District of Columbia Superior Court Order on Expert Witnesses (July 26, 2021) [Order]. T.C. Kelly, “Expert Testimony Excluded in Michael Mann Defamation Lawsuit,” Expert Pages (Aug. 11, 2021).

[6] Naomi Oreskes, Why Trust Science? (2019).

[7] See “Playing Dumb on Statistical Significance” (Jan. 4, 2015); “ The Rhetoric of Playing Dumb on Statistical Significance – Further Comments on Oreskes” (Jan. 20, 2015); “Significance Levels Made Whipping Boy on Climate Change Evidence; Is 0.05 too Strict?” Error Statistics (Jan. 4, 2015).

[8] See, e.g., Brief of Amici Curiae Robert Brulle, Center for Climate Integrity, Justin Farrell, Benjamin Franta, Stephan Lewandowsky, Naomi Oreskes, and Geoffrey Supran in Support of Appellees and Affirmance, County of San Mateo v. Chevron Corp., Nos. 18-15499, 18-15502, 18-15503, 18-16376 at 2 (9th Cir. 2019); Brief of Amici Curiae Robert Brulle, Center for Climate Integrity, Justin Farrell, Benjamin Franta, Stephan Lewandowsky, Naomi Oreskes, Geoffrey Supran and the Union of Concerned Scientists, City of Oakland v. B.P. PLC, No. No. 18-16663 (9th Cir. Mar. 20, 2019); Brief of Amici Curiae Robert Brulle, Center for Climate Integrity, Justin Farrell, Benjamin Franta, Stephan Lewandowsky, Naomi Oreskes, Geoffrey Supran and the Union of Concerned Scientists, Mayor and City Council of Baltimore  v BP PLC, No. 19-1644 (4th Cir. Sept. 3, 2019).

[9] Naomi Oreskes & Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (2010); Naomi Oreskes & Erik M. Conway, “Defeating the merchants of doubt,” 465 Nature 686 (2010). See also Geoffrey Supran & Naomi Oreskes, “Assessing ExxonMobil’s climate change communications (1977–2014),” 12 Envt’l Research Letters (Aug. 2017). Remarkably, Oreskes declared no conflicts of interest in this publication.

[10] Zoë Corbyn, “Naomi Oreskes: ‘Discrediting science is a political strategy’,” The Guardian (Nov. 2019).

[11] See Defendants Competitive Enterprise Institute and Rand Simberg’s Motion in Limine to Exclude the Expert Testimony of Dr. Naomi Oreskes (“MIL Oreskes”), filed on March 3, 2021.

[12] The standard is substantially the same as that articulated in Federal Rule of Evidence 702; see Motorola Inc. v. Murray, 147 A.3d 751 (D.C. Ct. App. 2016) (applying standard to case involving claims of brain cancer from the use of mobile telephones).

[13] Order at 23-24.

[14] Judge Irving noted that failure to explain methodology was a fatal flaw, citing Sacchetti v. Gallaudet Univ., 344 F. Supp. 3d 233, 250-51 (D.D.C. 2018).

[15] Plaintiff’s Opposition, Oreskes Deposition v.2 at 55:12-56:5.

[16] Id. at 33:5-15.

[17] Id. at 34:13-15.

[18] Order at 24-25 (citing Parsi v. Daioleslam, 852 F. Supp. 2d 82, 89 (D.D.C. 2012) (rejecting an expert opinion based solely on the experts “reading and viewing” and finding that reading, alone, does not constitute an acceptable methodology).

[19] Id. The court acknowledged that expert witness opinion could be “experiential,” but such a case, the witness must explain “how that experience leads to the conclusions reached, why that experience is a sufficient basis for the opinion and how that experience is reliably applied to the facts.” Id. (citing Arias v. DynCorp., 928 F. Supp. 2d 10, 15-16 (D.D.C 2013).

[20] Nichols v. Universal Pictures Corp., 45 F.2d 119, 123 (2d Cir. 1930).

[21] Order at 25.

[22] Court Order on Expert Witnesses, in Michael E. Mann v. National Review, CA 008263 B, Washington, D.C, Superior Court, Civil Division (Jan. 22, 2022)

[Order II at 20].

[23] Order II at 22.

[24] Order II at 22-23.

[25] Order II at 23-24.

[26] See, e.g., Naomi Oreskes  & Erik M. Conway, The Big Myth: How American Business Taught Us to Loathe Government and Love the Free Market (2023).

[27] Oreskes, in the past, has shown a stunning disregard for the meaning of scientific and statistical concepts.[27]

[28] See, e.g., Quester v. B.F. Goodrich Co., Cuyahoga Cty., Ohio, C.P. Case No. 03-509539 (Jan. 12, 2008) (excluding historian Gerald Markowitz’s testimony as impermissible attempt to introduce expert witness opinion on defendants’ intent and motive) (Sweeney, J.).

[29] Nathan A. Schachtman, “On Deadly Dust and Histrionic Historians: Preliminary Thoughts on History and Historians as Expert Witnesses,” 2 Mealey’s Silica Litigation Report Silica 1, 2 (November 2003); Nathan Schachtman & John Ulizio, “Courting Clio:  Historians and Their Testimony in Products Liability Action,” in: Brian Dolan & Paul Blanc, eds., At Work in the World: Proceedings of the Fourth International Conference on the History of Occupational and Environmental Health, Perspectives in Medical Humanities, University of California Medical Humanities Consortium, University of California Press (2012); Scott Kozak, “Use and Abuse of ‘Historical Experts’ in Toxic Tort Cases,” in Toxic & Hazardous Substances Litigation (March 2015).

[30] See How Testifying Historians Are Like Lawn-Mowing Dogs” (May 15, 2010); “Courting Clio: Historians and Their Testimony in Products Liability Litigation” (May 24, 2010);  A Walk on the Wild Side (July 16, 2010); Counter Narratives for Hire (Dec. 13, 2010); “Narratives & Historians for Hire” (Dec. 15, 2010); “Courting Clio: Historians Under Oath – Part 1” (Dec. 17, 2011); “Courting Clio: Historians Under Oath – Part 2” (Dec. 17, 2011); “What Happens When Historians Have Bad Memories” (Mar. 15, 2014); “Too Many Narratives – Historians in the Dock” (July 14, 2014); Historians Noir (Nov. 18, 2014); “Lawyers as Historians” (Feb. 2, 2016); “Succès de scandale – With Thanks to Rosner & Markowitz” (Mar. 26, 2017); “More Rosner-Markowitz Faux History of Workplace Safety” (July 9, 2020).

Posted in Historian Testimony, Scientific Misconduct | 5 Comments »

Schauer’s Long Footnote on Statistical Significance

August 21st, 2022

One of the reasons that, in 2016, the American Statistical Association (ASA) issued, for the first time in its history, a consensus statement on p-values, was the persistent and sometimes deliberate misstatements and misrepresentations about the meaning of the p-value. Indeed, of the six principles articulated by the ASA, several were little more than definitional, designed to clear away misunderstandings.  Notably, “Principle Two” addresses one persistent misunderstanding and states:

“P-values do not measure the probability that the studied hypothesis is true, or the probability that the data were produced by random chance alone.

Researchers often wish to turn a p-value into a statement about the truth of a null hypothesis, or about the probability that random chance produced the observed data. The p-value is neither. It is a statement about data in relation to a specified hypothetical explanation, and is not a statement about the explanation itself.”[1]

The ASA consensus statement followed on the heels of an important published article, written by seven important authors in the fields of statistics and epidemiology.[2] One statistician,[3] who frequently shows up as an expert witness for multi-district litigation plaintiffs, described the article’s authors as the “A-Team” of statistics. In any event, the seven prominent thought leaders identified common statistical misunderstandings, including the belief that:

“2. The P value for the null hypothesis is the probability that chance alone produced the observed association; for example, if the P value for the null hypothesis is 0.08, there is an 8% probability that chance alone produced the association. No!”[4]

This is all basic statistics.

Frederick Schauer is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia. Schauer has had contributed prolifically to legal scholarship, and his publications are often well written and thoughtful analyses. Schauer’s recent book, The Proof: Uses of Evidence in Law, Politics, and Everything Else, published by the Harvard University Press is a contribution to the literature of “legal epistemology,” and the foundations of evidence that lie beneath many of our everyday and courtroom approaches to resolving disputes.[5] Schauer’s book might be a useful addition to an undergraduate’s reading list for a course in practical epistemology, or for a law school course on evidence. The language of The Proof is clear and lively, but at times wanders into objectionable and biased political correctness. For example, Schauer channels Naomi Oreskes and her critique of manufacturing industry in his own discussion of “manufactured evidence,”[6] but studiously avoids any number of examples of explicit manufacturing of fraudulent evidence in litigation by the lawsuit industry.[7] Perhaps the most serious omission in this book on evidence is its failure to discuss the relative quality and hierarchy of evidence in science, medicine, and in policy.  Readers will not find any mention of the methodology of systematic reviews or meta-analyses in Schauer’s work.

At the end of his chapter on burdens of proof, Schauer adds “A Long Footnote on Statistical Significance,” in which he expresses surprise that the subject of statistical significance is controversial. Schauer might well have brushed up on the statistical concepts he wanted to discuss.

Schauer’s treatment of statistical significance is both distinctly unbalanced, as well as misstated. In an endnote,[8] Schauer cites some of the controversialists who have criticized significance tests, but none of the statisticians who have defended their use.[9]

As for conceptual accuracy, after giving a serviceable definition of the p-value, Schauer immediately goes astray:

“And this likelihood is conventionally described in terms of a p-value, where the p-value is the probability that positive results—rejection of the “null hypothesis” that there is no connection between the examined variables—were produced by chance.”[10]

And again, for emphasis, Schauer tells us:

“A p-value of greater than .05 – a greater than 5 percent probability that the same results would have been the result of chance – has been understood to mean that the results are not statistically significant.”[11]

And then once more for emphasis, in the context of an emotionally laden hypothetical about an experimental drug “cures” a dread, incurable disease, p = 0.20, Schauer tells us that he suspects most people would want to take the medication:

“recognizing that an 80 percent likelihood that the rejection of ineffectiveness was still good enough, at least if there were no other alternatives.”

Schauer wants to connect his discussion of statistical significance to degrees or varying strengths of evidence, but his discursion into statistical significance largely conflates precision with strength. Evidence can be statistically robust but not be very strong. If we imagine a very large randomized clinical trial that found that a medication lowered systolic blood pressure by 1mm of mercury, p < 0.05, we would not consider that finding to constitute strong evidence for therapeutic benefit. If the observation of lowering blood pressure by 1mm came from an observational study, p < 0.05, the finding might not even qualify as evidence in the views of sophisticated cardiovascular physicians and researchers.

Earlier in the chapter, Schauer points to instances in which substantial evidence for a conclusion is downplayed because it is not “conclusive,” or “definitive.” He is obviously keen to emphasize that evidence that is not “conclusive” may still be useful in some circumstances. In this context, Schauer yet again misstates the meaning of significance probability, when he tells us that:

“[j]ust as inconclusive or even weak evidence may still be evidence, and may still be useful evidence for some purposes, so too might conclusions – rejections of the null hypothesis – that are more than 5 percent likely to have been produced by chance still be valuable, depending on what follows from those conclusions.”[12]

And while Schauer is right that weak evidence may still be evidence, he seems loathe to admit that weak evidence may be pretty crummy support for a conclusion. Take, for instance, a fair coin.  We have an expected value on ten flips of five heads and five tails.  We flip the coin ten times, but we observe six heads and four tails.  Do we now have “evidence” that the expected value and the expected outcome are wrong?  Not really. The probability of observing the expected outcome on the binomial model that most people would endorse for the thought experiment is 24.6%. The probability of not observing the expected value in ten flips is three times greater. If we look at an epidemiologic study, with a sizable number of participants, the “expected value” of 1.0, embodied in the null hypothesis, is an outcome that we would rarely expect to see, even if the null hypothesis is correct.  Schauer seems to have missed this basic lesson of probability and statistics.

Perhaps even more disturbing is that Schauer fails to distinguish the other determinants of study validity and the warrants for inferring a conclusion at any level of certainty. There is a distinct danger that his comments about p-values will be taken to apply to various study designs, descriptive, observational, and experimental. And there is a further danger that incorrect definitions of the p-value and statistical significance probabilities will be used to misrepresent p-values as relating to posterior probabilities. Surely, a distinguished professor of law, at a top law school, in a book published by a prestigious  publisher (Belknap Press) can do better. The message for legal practitioners is clear. If you need to define or discuss statistical concepts in a brief, seek out a good textbook on statistics. Do not rely upon other lawyers, even distinguished law professors, or judges, for accurate working definitions.

[1] Ronald L. Wasserstein & Nicole A. Lazar, “The ASA’s Statement on p-Values: Context, Process, and Purpose,” 70 The Am. Statistician 129, 131 (2016).

[2] Sander Greenland, Stephen J. Senn, Kenneth J. Rothman, John B. Carlin, Charles Poole, Steven N. Goodman, and Douglas G. Altman, “Statistical tests, P values, confidence intervals, and power: a guide to misinterpretations,” 31 European J. Epidemiol. 337 (2016).[cited as “Seven Sachems”]

[3] Martin T. Wells.

[4] Seven Sachems at 340 (emphasis added).

[5] Frederick Schauer, The Proof: Uses of Evidence in Law, Politics, and Everything Else (2022). [Schauer] One nit: Schauer cites a paper by A. Philip Dawid, “Statistical Risk,” 194 Synthese 3445 (2017). The title of the paper is “On individual risk.”

[6] Naomi Oreskes & Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Climate Change (2010).

[7] See, e.g., In re Silica Prods. Liab. Litig., 398 F.Supp. 2d 563 (S.D.Tex. 2005); Transcript of Daubert Hearing at 23 (Feb. 17, 2005) (“great red flags of fraud”).

[8] See Schauer endnote 44 to Chapter 3, “The Burden of Proof,” citing Valentin Amrhein, Sander Greenland, and Blake McShane, “Scientists Rise Up against Statistical Significance,” www .nature .com (March 20, 2019), which in turn commented upon Blakey B. McShane, David Gal, Andrew Gelman, Christian Robert, and Jennifer L. Tackett, “Abandon Statistical Significance,” 73 American Statistician 235 (2019).

[9] Yoav Benjamini, Richard D. DeVeaux, Bradly Efron, Scott Evans, Mark Glickman, Barry Braubard, Xuming He, Xiao Li Meng, Nancy Reid, Stephen M. Stigler, Stephen B. Vardeman, Christopher K. Wikle, Tommy Wright, Linda J. Young, and Karen Kafadar, “The ASA President’s Task Force Statement on Statistical Significance and Replicability,” 15 Annals of Applied Statistics 1084 (2021); see also “A Proclamation from the Task Force on Statistical Significance” (June 21, 2021).

[10] Schauer at 55. To be sure, Schauer, in endnote 43 to Chapter 3, disclaims any identification of p-values or measures of statistical significance with posterior probabilities or probabilistic measures of the burden of proof. Nonetheless, in the text, he proceeds to do exactly what he disclaimed in the endnote.

[11] Schauer at 55.

[12] Schauer at 56.

Posted in Evidence, Expert Witnesses, Historian Testimony, statistical evidence | No Comments »

Only Judges Can Change History

June 24th, 2022

Samuel Butler is credited with the quip that “God cannot alter the past, though historians can.”  Historians can only try to alter the past; judges can do it with authority. Butler also had an opinion on authority: “Authority intoxicates, and makes mere sots of magistrates. The fumes of it invade the brain, and make men giddy, proud, and vain.”

Yesterday, the Supreme Court handed down its latest decision on the Second Amendment, in New York State Rifle & Pistol Ass’n v. Bruen.[1] Justice Thomas wrote the opinion for the Court, with concurrences by Justices Alito, Roberts, and Kavanaugh. Justice Breyer, joined by Justices Kagan and Sotomayor, dissented. A predictable 6 to 3 split, along what some regard as partisan lines. There are aspects of the decision, however, that will keep legal scholars and public intellectuals busy for a long time. In an affront to “textualists,” the Court’s decision perpetuates the earlier decision in Heller[2] to write the word “militia” out of the Constitution.

The Court’s and the dissent’s opinions have fulsome discussions of the history of laws regarding open and concealed carry of firearm. The Bruen case came up from the United States Court of Appeals on a decision to deny an injunction against the New York state judge who denied the petitioners’ a firearm carry permit. Remarkably, the decision was on the pleadings, with no testimony taken from historian expert witnesses. Remarkably, the Supreme Court took the case without requiring the petitioners to exhaust their state court appellate remedies.

As for the legal history, I defer to the legal historians. Justice Thomas, drawing from George Orwell, teaches that not all history is created equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.”[3] Perhaps we should take Thomas’s teching to heart. The Second Amendment was adopted in 1791, when there were no bullets in the form of metal casings, with shaped lead projectiles. The Second Amendment right may well ensconce the entitlement to use black powder pistols that took a minute to reload and were accurate up to five meters, but there were no handguns that could fire “bullets,” made of metal casings, repeatedly. Relevant handgun technology did not evolve until the period around 1830-40, and even then, it was a novelty.

Maybe we do need a better history? In the meanwhile, New York should promptly require permits for bullets, as we know them, since they were not in existence in 1791, when the Second Amendment became law.

 

[1] New York State Rifle & Pistol Ass’n v. Bruen, No.20-843, Slip op., U.S. Supreme Court (June 23, 2022).

[2] District of Columbia v. Heller, 554 U. S. 570 (2008).

[3] Slip op. at 25, quoting from Heller, 554 U. S., at 634–635.

Posted in Historian Testimony | No Comments »

State-of-the-Art Legal Defenses and Shifty Paradigms

October 16th, 2021

The essence of a failure-to-warn claim is that (1) a manufacturer knows, or should know, about a harmful aspect of its product, (2) which knowledge is not appreciated by customers, (3) the manufacturer fails to warn adequately of this known harm, and (4) the manufacturer’s failure to warn causes the plaintiff to sustain the particular harm of which the manufacturer had knowledge, actual or constructive.

There are myriad problems with the assessing the knowledge component in failure-to-warn claims. Some formulations impute to manufacturers the knowledge of an expert in the field. First, which expert’s claim to knowledge counts for or against the existence of a duty? The typical formulation begs the question which expert’s understanding will control when experts in the field disagree. Second, and equally problematic, knowledge has a temporal aspect. There are causal relationships we “know” today, which we did not know in times past. This temporal component becomes even more refractory for failure-to-warn claims results when the epistemic criteria for claims of knowledge change over time.

In the early 20th century, infectious disease epidemiology, with its reliance upon Koch’s postulates. dominated the model of causation used in public and scientific discourse. The very nature of Koch’s postulates made the identification of a specific pathogen necessary to the causation of a specific disease. Later in the first half of the 20th century, epidemiologists and clinicians came to realize that the specific pathogen may be necessary but not sufficient for inducing a particular infectious disease. Still there was some comfort in having causal associations predicated upon necessary relationships. Clinicians and clinical scientists did not have to worry too much about probability theory or statistics.

The development of causal models in which the putative cause was neither necessary nor sufficient for bringing about the outcome of interest was a substantial shock to the system. In the absence of a one-to-one specificity, scientists had to account for confounding variables, in ways that they had not done so previously. The implications for legal state-of-the-art defenses could not be more profound. In the first half of the 20th century, case reports and series were frequently seen as adequate for suggesting and establishing causal relationships. By the end of the 1940s, scientists were well aware of the methodological inappropriateness of relying upon case reports and series, and the need for analytical epidemiologic studies to support causal claims.

Several historians of science have addressed the changing causal paradigm, which ultimately would permit and even encourage scientists to identify causal associations, even when the exposures studied were neither necessary nor sufficient to bring about the end point of interest. In 2011, Mark Parascandola, while he was an epidemiologist in the National Cancer Institute’s Tobacco Control Research Branch, wrote an important history of this paradigm shift and its implications in epidemiology.[1] His paper should be required reading for all lawyers who work on “long-tail” litigation, involving claims that risks were known to manufacturers even before World War II.

In Parascandola’s history, epidemiology and clinical science focused largely on infectious diseases in the early 20th century, and as a result, causal association was seen through the lens of Koch’s postulates with its implied model of necessary and sufficient conditions for causal attribution. Not until after World War II did “risk factor” epidemiology emerge to address the causal role of exposures – such as tobacco smoking – that were neither necessary nor sufficient for causing an outcome of interest.[2]

The shift from infectious to chronic diseases, such as cancer and cardiovascular disease, occurred in the 1950s, and brought with it, acceptance of a different concepts of causation, which involved stochastic events, indeterminism, multi-factorial contributions, and confounding of observations by independent but correlated causes. The causal criteria for infectious disease were generally unhelpful in supporting causal claims of chronic diseases.

Parascandola characterizes the paradigm shift as a “radical change,” influenced by developments in statistics, quantum mechanics, and causal theory.[3] Edward Cuyler Hammond, an epidemiologist with the American Cancer Society, for example, wrote in 1955, that:

“[t]he cause of an effect has sometimes been defined as a single factor which antecedes, which is necessary, and which is sufficient to produce the effect. Clearly this definition is inadequate for the study of biologic phenomena, which are produced by a complex pattern of environmental conditions interacting with the highly complex and variable make-up of living organisms.”[4]

The shift in causal models within epidemiologic thinking and research introduced new complexity with important practical implications. Gone was the one-to-one connection between pathogens (or pathogenic exposures) and specific diseases. Specificity was an important victim of the new model of causation. Causal models had to account for multi-factorial contributions to disease.[5] Confounding, the correlation between exposures of interest and other exposures that were truly driving the observations, became a substantial threat to validity. The discerning lens of analytical epidemiology was able to identify tobacco smoking as a cause of lung cancer only because of the large increased risks, ten-fold and greater, observed in multiple studies. There were no competing but independent risks of that magnitude, at hand, which could eliminate or reverse the observed tobacco risks.

Parascandola notes that in the 1950s, the criteria for causal assessment were in flux and the subject of debate:

“Previous informal rules or guides for inference, such as Koch’s postulates, were not adequate to identify partial causes of chronic disease based on a combination of epidemiologic and laboratory evidence.”[6]

As noted above, the legal implications of Parascandola’s historical analysis are hugely important.  Scientists and statisticians were scrambling to develop appropriate methodologies to accommodate the changed causal models and causal criteria. Mistakes were made along the way as the models and criteria changed. In Sir Richard Doll’s famous 1955 study of lung cancer among asbestos factory workers, the statistical methods were surprisingly primitive to modern epidemiology. Even more stunning was that Sir Richard failed to incorporate smoking histories and accounting for confounding from smoking before reaching a conclusion that lung cancer was associated with long-term asbestos factory work that had induced asbestosis.[7]

Not until the lae 1950s and early 1960s did statisticians develop multivariate models to help assess potential confounding.[8] Perhaps the most cited paper in epidemiology was published by Nathan Mantel (the pride of the Brooklyn Hebrew Orphan Asylum) and William Haenszel in 1959. Its approach to stratification of sample analyses was further elaborated upon by the authors and others all through the 1960s and into the 1970s.[9]

Similarly, the evolution of criteria for causal attribution based upon risk factor epidemiology required decades of discussion and debate. Reasonably well defined criteria did not emerge until the mid-1960s, with the famous Public Health Service report on smoking and lung cancer,[10] and Sir Austin Bradford Hill’s famous after-dinner talk to the Royal Society of Medicine.[11]

Several years before Parascandola published his historical analysis, three historians of science published a paper with a very similar thesis.[12] These authors noted that there was, indeed, a legitimate controversy over whether tobacco smoking caused lung cancer, in the 1950s early 1960s, as the mechanistic Koch’s postulates gave way to the statistical methods of risk-factor epidemiology. The historians’ paper observed that by the 1950s, infectious diseases such as tuberculosis were in retreat, and the public health community’s focus was on chronic diseases such as lung cancer. The lung cancer controversy of the 1950s pushed scientists to revise their conceptions of causation ,[13] and ultimately led to the strengthening of, and legitimizing, the field of epidemiology.[14] The growing acceptance of epidemiologic methods for identifying causes, neither necessary nor sufficient, pushed aside the attachment to Koch’s postulates and the skepticism over statistical reasoning.

Interestingly, this historians’ paper was funded completely by the Rollins Public Health of Emory University. Two of the authors had been sought out by a recruiting agency for the tobacco industry, but fell out with the agency and the tobacco companies when they realized that they could not support the litigation goals. In a footnote, the authors emphasized that their factual analysis and argument contradicted the industry’s desired defense.[15]

Reaching back even farther in time, there is the redoubtable Irving John Selikoff, who wrote in 1991:

“We are inevitably bound by the knowledge of the time in which we live. An example may be given. During the 1930s and 194Os, random instances of lung cancer occurring among workers exposed to asbestos were reported and attention was called to these by the collection of cases both in registers and in review papers. With the continued growth of the asbestos industry, it was deemed wise to epidemiologically examine the proposed association. This was done in an elegant, innovative, well-considered study by Richard Doll, a study which any one of us would have been proud to report in 1955.”[16]

What is ironic is that Dr. Selikoff had testified for plaintiffs’ counsel as an expert witness specifically on state of the art, or the question of when defendants should have known and warned that asbestos caused lung cancer.[17] Dr. Selikoff ultimately withdrew from testifying, in large part because his views on this matter were not particularly helpful to plaintiffs.

The shift in causal criteria, and rejection of case reports and case series, can be seen in the suggestion, in the 1930s, of a few pathologists who contended that silicosis caused lung cancer. The few scientists who made this causal claim relied upon heavily upon anecdotal and uncontrolled necropsy series.[18]

After World War II, these causal claims fell into disrepute as not properly supported by valid scientific methodology. Dr. Madge Thurlow Macklin, a female pioneer in clinical medicine and epidemiology,[19] and one the early adopters of statistical methodology in her work, debunked the causal claims:

“If silicosis is being considered as a causative agent in lung cancer, the control group should be as nearly like the experimental or observed group as possible in sex, age distribution, race, facilities for diagnosis, other possible carcinogenic factors, etc. The only point in which the control group should differ in an ideal study would be that they were not exposed to free silica, whereas the experimental group was. The incidence of lung cancer could then be compared in the two groups of patients.

This necessity is often ignored; and a ‘random’ control group is obtained for comparison on the assumption that any group taken at random is a good group for comparison. Fallacious results based on such studies are discussed briefly.”[20]

Macklin’s advice sounds like standard-operating procedure today, but in the 1940s, it was viewed as radical and wrong by many physicians and clinical scientists.

Of course, the change over time in the knowledge of, and techniques for, diagnostic methods, quantitative measurements, and disease definitions also affect litigated issues. The change in epistemic standards and causal criteria, however, fundamentally changed legal standards for tort liability. The shift from deterministic models of necessary and sufficient causation to risk factor causation had, and continues to have, enormous ramifications for the legal adjudication of questions concerning when companies, held to the knowledge of an expert in the field, should have started to warn about the risks created by their products. Mind the gap!

[1] Mark Parascandola, “The epidemiologic transition and changing concepts of causation and causal inference,” 64 Revue d’histoire des sciences 243 (2011).

[2] Id. at 245.

[3] Id. at 248.

[4] Id. at 252, citing Edward Cuyler Hammond, “Cause and Effect,” in Ernest L. Wynder, ed., The Biologic Effects of Tobacco (1955).

[5] Id. at 257.

[6] Id.

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

[8] See Parascandola at 258.

[9] Nathan Mantel & William Haenszel, “Statistical aspects of the analysis of data from retrospective studies of disease,” 22 J. Nat’l Cancer Instit. 19 (1959). See Mervyn Susser, “Epidemiology in the United States after World War II: The Evolution of Technique,” 7 Epidemiology Reviews 147 (1985).

[10] Surgeon General, Smoking and health : Report of the Advisory Committee to the surgeon general of the Public Health Service, PHS publication No. 1103 (1964).

[11] Austin Bradford Hill, “The Environment and Disease: Association or Causation?” 58 Proc. Royal Soc’y Med. 295, 295 (1965).

[12] Colin Talley, Howard I. Kushner & Claire E. Sterk, “Lung Cancer, Chronic Disease Epidemiology, and Medicine, 1948-1964,” 59 J. History Med. & Allied Sciences 329 (2004) [Talley]. Parascandola appeared not to have been aware of this article; at least he did not cite it.

[13] Id. at 374.

[14] Id. at 334.

[15] Id. at 329.

[16] Irving John Selikoff, “Statistical Compassion,” 44 J. Clin. Epidemiol. 141S, 142S (1991) (internal citations omitted) (emphasis added).

[17] “Selikoff and the Mystery of the Disappearing Testimony,” (Dec. 3, 2010). See also Peter W.J. Bartrip, “Irving John Selikoff and the Strange Case of the Missing Medical Degrees,” 58 J. History Med. 3, 27 & n.88-92 (2003) (quoting insulator union President Andrew Haas, as saying “[w]e all owe a great debt of thanks for often and expert testimony on behalf of our members … .” Andrew Haas, Comments from the General President, 18 Asbestos Worker (Nov. 1972)).

[18] See, e.g., Max O. Klotz, “The Association Silicosis & Carcinoma of Lung 1939,” 35 Cancer Research 38 (1939); C.S. Anderson & J. Heney Dible, “Silicosis and carcinoma of the lung,” 38 J. Hygiene 185 (1938).

[19] Barry Mehler, “Madge Thurlow Macklin,” from Barbara Sicherman and Carl Hurd Green, eds., Notable American Women: The Modern Period 451-52 (1980); Laura Lynn Windsor, Women in Medicine: An Encyclopedia 134 (2002).

[20] Madge Thurlow Macklin, “Pitfalls in Dealing with Cancer Statistics, Especially as Related to Cancer of the Lung,” 14 Diseases Chest 525 532-33, 529-30 (1948). See also “History of Silica Litigation – the Lung Cancer Angle,” (Feb. 3, 2019); “The Unreasonable Success of Asbestos Litigation,” (July 25, 2015); “Careless Scholarship about Silica History,” (July 21, 2014) (discussing David Egilman); “Silicosis, Lung Cancer, and Evidence-Based Medicine in North America,” (July 4, 2014).

Posted in Causation, Historian Testimony, State of the Art | No Comments »

The Misplaced Focus of Enterprise Liability on the Wrong Enterprise

March 27th, 2021

Well, soon the pandemic of Trump Flu will come to a close.  In the future, children too young or born after the pandemic will ask, “where were you during the pandemic, and what did you do?”

For lawyers, trials adjourned and courtrooms went dark, although discovery and motion practice continued. With some free time, I thought it a good time to write about the mess that American tort law has made of employer responsibility in product liability law. And the time seemed right because the Supreme Court had only recently provided a fascinating case study in how out of touch some courts can be with the realities of workplace injuries. The recent decision in DeVries v. Air & Liquid Systems Corp., 139 S.Ct. 986 (2019), was a perfect canvas on which to sketch out tort law’s failure to come to grips with the three-way relationship among industrial product seller, sophisticated industrial or military purchasers and employers, and injured plaintiffs.[1]

Many commentators might have viewed the justices who squared off in DeVries, Kavanaugh for the majority, Gorsuch for the dissent, as cut from the same judicial cloth, but their two opinions diverged in interesting ways. The entire court, however, shared a frail and faulty understanding of the role of third-party employers and product purchasers in providing a safe workplace. Not surprisingly, both the majority and dissenting opinions failed to do justice to the depth of Navy knowledge of the hazards of asbestos, Navy control over the workplace, and the futility of warning of asbestos exposure to the Navy, which had superior knowledge of both general asbestos hazards, the specific conditions it created, and the methods needed to protect its workers and sailors.

The failings of scholarship and analysis in DeVries have a bigger context.[2] The role of third parties – sophisticated intermediaries – received careful consideration in the First and Second Restatements of Torts, in Section 388 and its comments.[3] The Third Restatement continued to endorse this important defense, based upon the practical and sensible limits of liability, but placed the relevant discussion in a hard-to-find comment to a very broad, general section:

“5. The Restatement, Second, of Torts § 388, Comment n, utilizes the same factors set forth in Comment i in deciding whether a warning should be given directly to third persons. It has been relied on by numerous courts. See, e.g., Goodbar v. Whitehead Bros., 591 F. Supp. 552 (W.D.Va.1984), aff’d sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir.1985) (applying Virginia law)… .”[4]

At least these celebrated sophisticated intermediary defense cases were cited by the Third Restatement, in a comment. Many current tort textbooks fail to mention the defense at all.[5] Tort theorists stress the importance of the boundaries between consumers and industrial enterprises, but ignore the frequent setting in which the purchaser is itself an industrial enterprise, and has independent legal and regulatory duties to provide safe workplaces with the products at issue.[6] Highly sensitive to the need to protect ordinary consumers from the predations of large manufacturing companies, many tort theorists are insensate to the need to protect manufacturers-sellers from the predations of large employing purchasing corporations upon the purchasers’ employees.[7]

Many scholars have written about the United States government’s historical knowledge of asbestos dangers,[8] but without any sense of outrage or concern, such as you might find in the purple prose of Paul Brodeur.[9] Although Brodeur did ever so slightly touch upon lawsuits against the United States government for conditions in Naval shipyards and elsewhere, he quoted with seeming approval the comments by Captain George M. Lawton, given in a 1979 interview. When asked whether the Navy was responsible for workplace conditions at the Navy’s Electric Boat shipyard, Lawton flippantly shrugged off the suggestion with the observation:

“If I order an automobile and the way they make automobiles is to throw people into a furnace, I am not responsible for that.”[10]

Brodeur, who was quick to judge the asbestos product manufacturers, fails to note that it was Captain Lawton’s Navy that was throwing people in furnace at its Navy yards around the country. Similarly, asbestos plaintiffs’ expert witness, Barry Castleman, who had written a trial manual for plaintiffs’ lawyers based upon distorted assessment of individual companies’ historical involvement with asbestos, spends no time investigating the huge record of United States governmental knowledge of asbestos use.[11] Castleman, schooled by the lawsuit industry lawyers, understood that documenting the knowledge of the intermediary, product purchaser, and workplace owner, detracts from the David-and-Goliath narrative his retaining counsel needed to prevail in litigation. Writers such as Brodeur and Castleman are fond of citing historical writings of governmental health agencies for claims of health hazards. Captain Lawton’s Navy was, of course, possessed and was bound by the knowledge of those very same public health agencies.[12]

In the mid-1970’s, amidst economic turmoil, and declining military budgets, the United States Navy found itself with a big problem. Payments to civilians under the FECA (Federal Employees’ Compensation Act), a statute that gives civilian employees of shipyards the equivalent of workers’ compensation benefits, came right out of the Navy’s budget for shipbuilding. The Navy had no insurance for FECA payments, and suddenly it found itself facing a large uptick in the number of claims made by civilians for asbestos-related injuries. About the same time, many states adopted some version of strict product liability, some stricter than others. None was likely stricter than Pennsylvania’s version, which made referring to employer responsibility virtually impossible. Ultimately, the plaintiffs’ bar found that strict liability recoveries and settlements were too certain to encumber themselves and their clients with government liens, and they stopped filing their FECA cases altogether.

When I first started practicing “asbestos law,” I routinely found copies of letters from JAG lawyers to shipyard workers, in their personnel files. The letters notified the workers that they had been diagnosed with asbestosis, usually by a local pulmonary physician who performed contract services for surveillance for the shipyard. (These diagnosing physicians went on to make fortunes by serving as expert witnesses in subsequent civil litigation.) The letters notified the workers that they might have rights under FECA, but emphasized that the workers had remedies against the Navy’s vendors of asbestos-containing products, and that if they sued in tort, the Navy would have a lien against any recovery. In practice, the lien was so unwieldy, that most of the Philadelphia plaintiffs’ firms would forego filing the FECA claim altogether. Thus the Navy effectively limited its liability, and kept its munitions budgets intact, while dozens of its vendors went bankrupt. The cruel irony of the FECA (or workers’ compensation) statutes is that the employer pays regardless of fault, that the employer can’t be sued in civil actions, and that the employer can recover ~80% of its payments from settlements or judgment proceeds from a civil defendant.

The government’s role in fueling the explosion of asbestos civil actions has not received very much, if any, real scrutiny. What a story is hidden away in those old files! Not only did the Navy know of the asbestos hazards, hide them from its civilian workers, but when those workers got sick, the Navy turned on its outside suppliers by encouraging its workers to sue the suppliers, while hiding behind the exclusive remedy provision of the FECA.

The story of the Navy’s misdeeds, misrepresentations, and misinformation has been told, in bits and pieces, here and there. What was needed back in the 1980s was someone who could write a thorough documentary history of the Navy’s predations upon its employees and its sailors. There is a trove of materials from before World War II, but increasing dramatically with the wartime efforts of Dr. Philip Drinker to obtain safe asbestos workplaces for both workers both at contract and naval shipyards.

In the postwar period, Navy culpability became even clearer. In 1957, for instance, more than a decade after Drinker’s investigations and reports of asbestos safety hazards, the Navy held a Conference of Pipe and Copper Shop Master Mechanics, at the Boston Naval Shipyard, on May 8 -10. Representatives from every naval shipyard, as well as the Bureau of Ships, and Commander Simpson, were present. A master pipefitter, O.W. Meeker, visiting from Shop 56, Long Beach Naval Shipyard, presented on “Pipe Insulation Processes and Procedures.” Notwithstanding confusion between asbestosis and silicosis, and between asbestos and silica, Mr. Meeker’s remarks speak volumes about the government’s role in the “asbestos mess”:

“The asbestos which we use is a mineral as much as is the rock in which it is found. Furthermore, its principal ingredient is silicon, which is responsible for the disease which we know as silicosis [sic].

Asbestos, silicosis, is caused by prolonged breathing of silica dust [sic]. Asbestos, when handled dry, produces vast amounts of silica dust. In new applications the material can be dampened to reduce the amount of dust liberated. However, the specified type of amosite for use on cold water piping is water repellent. Also material which must be removed from an existing installation is dry and powdery, being an excellent dustproducer.

The most apparent symptom of asbestosis is lethargy or a lack of vitality. What we suspect to be lead in the posterior might well be asbestos in the lungs. During 1956, 11 deaths from asbestosis were reported on the Pacific Coast alone. One insulator died of asbestosis at the age of 29.

Asbestosis is extremely difficult to detect – particularly at the early stages. I know that two of my insulators are afflicted with this condition. How many more will become afflicted is something which I hesitate to predict. Again, the solution is obvious. Remove the cause by substituting other products such as Armaflex or StaFoam for asbestos whenever possible. However, this will take some doing.

In the meantime, the answer is wearing of respirators by all who handle asbestos products. To many the very idea of wearing respirator is repugnant. However, a respirator on the face is preferable to asbestos in the lungs.

Therefore, gentlemen, ours definitely is the important and difficult task of providing and installing effective insulating materials aboard Naval Vessels. Moreover, this task must be accomplished without sacrificing our workmen in the process.”

Tort law and history itself have been distorted by the law’s focus on manufacturing defendants as deep pockets simply because the purchasing enterprises have had immunity from civil liability.

———————————————————————————-

[1]  Schachtman, “Products Liability Law – Lessons from the Military and Industrial Contexts,” 13 J. Tort Law 303 (2020).

[2]  “Asbestos and Asbestos Litigation Are Forever” (Sept. 16, 2014).

[3]  Restatement (First) of Torts § 388, comment 1 (1934); Restatement (Second) of Torts § 388, comment n (1965).

[4]  Restatement (Third) of Torts: Products Liability § 2 Categories of Product Defect (1998), Comment i. Inadequate instructions or warnings.

[5] See, e.g., John C. P. Goldberg & Benjamin C. Zipursky, The Oxford Introductions to U.S. Law: Torts (2010); Anita Bernstein, Questions & Answers: Torts (3d ed. 2014); Saul Levmore & Catherine M. Sharkey, Foundations of Tort Law (2d ed. 2011); Mark A. Geistfeld, Principles of Products Liability (2006). But see John L. Diamond, Lawrence C. Levine, and Anita Bernstein, Understanding Torts 392 (6th ed. 2018) (citing Taylor v. American Chem. Council, 576 F.3d 16, 25 (1st Cir. 2009) (applying Massachusetts law, and affirming summary judgment for defendant PVC trade association on failure-to-warn claim, on ground that the plaintiff’s employer was a sophisticated use and well aware of the danger).

[6]  See, e.g., Gregory C. Keating, “Products Liability As Enterprise Liability,” 10 J. Tort Law 41, 60 (2017).

[7] Thomas H. Koenig & Michael L. Rustad, In Defense of Tort Law 2 (2001); Stephen R. Perry, “The Moral Foundations of Tort Law,” 77 Iowa L. Rev. 449 (1992).

[8] George M. Lawton & Paul J. Snyder, “Occupational Health Programs in United States Naval Shipyards,” 11 Envt’l Res. 162 (1976); Peter A. Nowinski, “Chronology of Asbestos Regulation in United States Workplaces,” in Karen Antman & Joseph Aisner, eds., Asbestos-Related Malignancy 99 (1986) (Nowinski represented the government in direct lawsuits against the United States for its role in creating the asbestos hazards of federal and contract shipyards); Jacqueline Karnell Corn & Jennifer Stan, “Historical Perspective on Asbestos: Policies and Protective Measures in World War II Shipbuilding,” 11 Am. J. Indus. Med. 359 (1987); Statement of Linda G. Morra, Associate Director Human Resources Division, on behalf of the United States General Accounting Office, “The Status of Asbestos Claims Against The Federal Government”; before the House Committee on the Judiciary, Subcommittee on Administrative Law and Governmental Relations (June 30, 1988); Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988); Susan L. Barna, “Abandoning Ship: Government Liability for Shipyard Asbestos Exposures,” 67 New York Univ. L. Rev. 1034 (1992);  Kenneth W. Fisher, “Asbestos: Examining the Shipyard’s Responsibility: An examination of relevant U.S. archives from the 1930s through the 1980s” (2001); Denis H. Rushworth, “The Navy and Asbestos Thermal Insulation,” Naval Engineers J. 35 (Spring 2005); Danielle M. Dell, Bruce K. Bohnker, John G. Muller, Alan F. Philippi, Francesca K. Litow, W. Garry Rudolph, Jose E. Hernandez, David A. Hiland, “Navy Asbestos Medical Surveillance Program 1990–1999: Demographic Features and Trends in Abnormal Radiographic Findings,” 8 Military Med. 717 (2006); John L. Henshaw, Shannon H. Gaffney, Amy K. Madl & Dennis J. Paustenbach, “The Employer’s Responsibility to Maintain a Safe and Healthful Work Environment: An Historical Review of Societal Expectations and Industrial Practices,” 19 Employee Responsibilities & Rights J. 173 (2007); Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011).

[9]  Paul Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial (1985).

[10]  Id. at 251 (quoting Lawton’s interview published in Connecticut Magazine, in 1979).

[11]  Barry I. Castleman, Asbestos: Medical and Legal Aspects (1984).

[12]  See Miller v. Diamond Shamrock Co., 275 F.3d 414, 422-23 (5th Cir. 2001) (“There can be no reasonable dispute that knowledge possessed by the United States Public Health Service, … [and] the Navy’s Bureau of Medicine and Surgery is the knowledge of the military.”).

Posted in Historian Testimony, Learned and sophisticated intermediary, Sophisticated User, State of the Art | No Comments »

Lawsuit Industry Expert Witness Robert Neel Proctor’s Intimidation Tactics

December 25th, 2020

In his autobiography, Sir Karl Popper described one of the most curious and interesting confrontations in 20th century philosophy. While visiting Cambridge University to give a guest lecture, Popper was hectored by the renown chairman of the philosophy department, Ludwig Wittgenstein. While nervously playing with a fireplace poker and waving it about for emphasis, Wittgenstein challenged Popper to provide an example of a moral rule. Popper rejoined “Not to threaten visiting lecturers with pokers,” after which Wittgenstein threw down the poker and stormed out of the room.[1]

A more recent anecdote in this century gives rise to another moral rule, “thou shalt not bully graduate students working for your adversary.”

The law firm of Jones Day, representing tobacco mega-defendant R. J. Reynolds in personal injury lawsuits, was working with Associate Professor Gregg L. Michel, at the University of Texas. Michel needed research assistants to help with this litigation consulting work, and so in 2008, he reached out to J. Matthew Gallman, a professor of history at the University of Florida, to help line up some worker bees. Gallman helped Michel hire four master-level graduate students from Gallman’s department.

Tobacco lawsuit industry testifier Associate Professor Louis M. Kyriakoudes, at University of Southern Mississippi, learned of the arrangement from his involvement in tobacco litigation. Kyriakoudes shared the information with his fellow-traveling expert witness for tobacco plaintiffs, Robert Neel Proctor.

There was no impropriety in Michel’s hiring the graduate students to assist with his research. Parties are allowed to have consulting expert witness, if for no other reason than to test the accuracy of the other side’s expert witness’s opinions. The research assignment involved searching the archives of a local Pensacola newspaper, in the 1940s, for coverage of smoking’s ill health effects. According to Gallman, the students were “explicitly told not to be selective,” to favor one party or the other.

Proctor was, and still is, a highly paid expert witness for the tobacco lawsuit industry, that is the plaintiffs’ bar, and a regular feature of tobacco trials. After learning the names of the graduate students from his litigation work, Proctor in turn contacted Professor Vassiliki Betty Smocovitis, who held joint appointments in the University of Florida history and biology departments.[2]

In a fairly obvious effort to intimidate and harass the students, Proctor revealed the students’ names to Smocovitis, and pressed his tendentious, gratuitous opinion:

“In my view this is historical malpractice, and I would be very interested to know if the advisers of these students know what they have been doing.”

Smocovitis, who had never been involved in litigation as a partisan expert witness, dutifully carried out the inquiry for Proctor, only to find, unsurprisingly, that her colleagues did not believe that the students had done anything improper. According to her emails, Smocovitis reported back to Proctor that her departmental colleagues were indifferent or annoyed or both for her having bothered them with Proctor’s issue. She told Proctor that “I’m afraid that this is a case of ‘shoot the messenger’, so I can’t persist without alienating myself further,” She resisted Proctor’s importuning to raise the issue at a faculty meeting.

Lawyers at Jones Day sought emails of Proctor and Kyriakoudes from their university servers, and ultimately took depositions of Proctor and Kyriakoudes, the plaintiffs’ expert witnesses, and Smocovitis, in support of motions to sanction Proctor. Michel filed an affidavit in which he described how one of the four students had been led to believe by her departmental chairman, Joseph F. Spillane, that Proctor intended to publish her name.

Kyriakoudes, who dropped the dime on the graduate students, suggested in his deposition that Proctor’s intrusion into the University of Florida department was a “tactical mistake.” According the Chronicle of Higher Education, he testified that “[t]his whole business of getting involved in a department’s activities like this is just—it’s caused no end of trouble.”

In his own deposition, Proctor described the communications as:

“legitimate scholarly inquiry into the participation of historians in litigation.”

* * *

“I was simply raising an ethical issue that she might want to discuss.”

Sort of like Trump’s perfect conversation with President Volodymyr Zelensky. In Trumpian turn-around, Proctor complained that he was real victim of witness harassment and bullying by the defense counsel, in an effort to “silence him.” Ah, the flexibility of historical narrative!

What really seemed to irk Proctor was that any historian, even master-level graduate students, would disagree with him, or find historical evidence that embarrassed Proctor’s litigation positions. Proctor’s blindness to his own bad behavior in the recent past, certainly raises questions about his historical acumen.

Proctor’s play at grievance victimhood was amplified by the obsequious scholarship of Jon Wiener. In the pages of The Nation, Wiener incorrectly reported that “[n]othing improper was found, no witness tampering or intimidation, and the tobacco attorneys dropped the issue–for a while.”[3] In fact, as an historical matter, Wiener was quite wrong.

Judgment Day

The Jones Day lawyers’ motion claimed that Proctor’s improprieties was part of a pattern of behavior that stemmed from his “uncontrolled zeal to win.” Proctor, a paid advocate for the tobacco lawsuit industry, thought it was within his mandate to expose the connection between tobacco defense and historians. In doing so, he engaged in witness tampering and harassment. Proctor and his employers in the lawsuit industry responded with an attempt to portray Proctor’s ham-fisted inquiries as concern for the vulnerable graduate students who were not receiving “guidance,” which would impair their future careers.

The Motion contra Proctor came before Judge Williams Parsons, in the Volusia County Circuit Court.[4] Contrary to the Wiener report, Judge Parsons found that Proctor indeed had intended to harass and humiliate the students into abandoning their litigation support work. Judge Parsons described Proctor’s willingness to advance the plaintiffs’ case at the students’ expense as “appalling,” and “the lowest of the low.” The defense had sought Proctor’s exclusion, but Judge Parsons declined to impose this extreme sanction in favor of barring Proctor from having any contact with adversary expert witnesses or their assistants.

Conduct the following thought experiment. Imagine an historian who testifies for the defense in tobacco litigation finds out that Proctor had hired graduate students to help with research. The defense historian calls up the students’ supervisors to suggest that they are acting unethically and unprofessionally. Now close your eyes and listen to the outcry from the Wieners of the world, or from the American Historical Association! Even after the ugly facts were disclosed, there were some in in the academic historian establishment who rallied to Proctor’s defense, and tried to give Wiener cover for his mendacious coverage of the graduate student incident.[5]

Lancet-ing Adversary Expert Witnesses

Proctor’s attempt to exploit vulnerable history graduate students was not his first attempt to silence historians who disagree with him. Proctor, who has stridently criticized tobacco defense counsel for trying to “silence him,” has worked assiduously to try to silence historians who work for the other side. In a commentary piece in The Lancet, Proctor criticized colleagues who have worked on historical issues for tobacco companies’ legal defense.[6] Proctor substantively criticized his adversaries’ testimony, without providing much in the way of detail, and he implied that their work was ethically improper and rife with conflicts of interest. Perhaps more telling, Proctor himself gave conflicts disclosure that he had “worked on several occasions as an expert witness in plaintiff’s lawsuits,” without telling his readers that he was highly compensated for work.

Proctor’s one-sided analysis provoked spirited opposition from several distinguished medical historians who refused to be bullied or to acquiesce in his moral grandstanding. John C. Burnham, a Professor of History at The Ohio State, wrote a scathing letter to the Lancet’s editors, as well as opinion pieces in History News Network.[7] David Rothman, a professor at Columbia University, similarly took Proctor to task for his pretensions of doing “history” while testifying for the lawsuit industry.[8]

Perhaps the most telling rebuttal came from Professor Alan Blum, a physician and anti-tobacco activist. Dr. Blum, who is the Director of Center for the Study of Tobacco & Society, and a chaired professor at the University of Alabama, is a leading authority on the history of tobacco use and the depradations of the tobacco industry. Professor Blum found Proctor’s animadversions a bit too sanctimonious given that Proctor himself has been a compensated expert witness for the tobacco lawsuit industry.[9]

Conflicted Friends of the Court

The friend of the court brief, from disinterested third parties, is an important, potentially useful source of extra-record information and opinion for judges, both in trial and appellate courts. Historians can on occasion have important historical information, necessary for adjudication. For instance, in the theocratic zeal to strip women of their reproductive rights, historians have adduced important scholarship that abortion was lawful in all thirteen colonies at the time of the Constitutional ratification.  In the context of amicus briefs, historians of course can and do overstep their distinterested roles to act as legal advocates.[10]

Speaking of overstepping, Robert Proctor filed an amicus brief in Altria Group, Inc. v. Good, which involved a tobacco industry’s challenge to Federal Trade Commission control of advertising for “light” or “lowered tar” cigarettes.[11] Accompanying Proctor were four other signatories, Allan M. Brandt, David M. Burns, Jonathan M. Samet and David Rosner.

All except for Brandt had testified multiple times as expert witnesses. Brandt, Proctor, and Samet acknowledged having testified as expert witnesses in United States v. Philip Morris USA, Inc.[12] They all conveniently forgot to note that they were remunerated, and that they had testified against Philip Morris USA, Inc. Burns, who testified as an expert witness in United States v. Philip Morris USA, Inc., failed to mention his testimonial role in that case, as well as many other tobacco cases in support of the lawsuit industry. Rosner, who had not testified in tobacco cases, failed to mention his many paid testimonial adventures for the lawsuit industry.[13]

[1] Karl Popper, Unended Quest: An Intellectual Autobiography at 141-43 (rev. ed. 2005), first published as “Autobiography by Karl Popper,” in Paul Arthur Schlipp, ed., The Philosophy of Karl Popper (1974). The incident is the subject of a book-long inquiry. David Edmonds & John Eidinow, Wittgenstein’s Poker: The Story of a Ten-Minute Argument Between Two Great Philosophers (2001).

[2] Peter Schmidt, “Big Tobacco Strikes Back at Historian in Court,” The Chronicle of Higher Education (Nov. 8, 2009).

[3] Jon Wiener, “Big Tobacco and the Historians: A tale of seduction and intimidation,” The Nation (Feb. 25, 2010).

[4] Nathan Crabbe, “UF students caught in middle of tobacco case’s controversy,” The Gainesville Sun (Dec 8, 2009).

[5]  See “More debate over Jon Wiener’s tobacco exposé,” History News Network (Dec. 13, 2010).

[6] Robert N. Proctor, “Should medical historians be working for the tobacco industry?” 363 Lancet 1173 (2004).

[7] John C. Burnham, “Medical historians and the tobacco industry,” 364 Lancet 838 (2004); John C. Burnham, “In Defense of Historians as Expert Witnesses: A Rebuttal to Jon Wiener,” History News Network (Mar. 29, 2010).

[8] David Rothman, “Medical historians and the tobacco industry,” 364 Lancet 839 (2004). See also Patricia Cohen, “Historians for Hire in Industry Lawsuits,” N.Y. Times (June 13, 2003) (quoting David J. Rothman,  director of the Center for the Study of Science and Medicine at the Columbia College of Physicians and Surgeons, concludes, “To enter the courtroom is to do many things, but it is not to do history”).

[9] Alan Blum, “A Dissenting View of Robert Proctor by a Fellow Anti-Smoking Advocate,” History Network News (April 26, 2010).

[10] Nell Gluckman, “Why More Historians Are Embracing the Amicus Brief,” The Chronicle of Higher Education (May 3, 2017) (quoting Harvard history professor Tomiko Brown-Nagin’s observation that “[t]o be a legal advocate is freeing”; Brown-Nagin filed an amicus brief in the 2013 Supreme Court case involving racist policies at the University of Texas).

[11]  Amicus Brief of Allan M. Brandt, Robert N. Proctor, David M. Burns, Jonathan M. Samet & David Rosner, in Support of Petition for Certiorari, in Altria Group, Inc. v. Good, No. 07-562, 2008 WL 2472390, (U.S. Supreme Court June 18, 2008).

[12] United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006).

[13] “The Amicus Curious Brief” (Jan. 4, 2018) (describing Rosner and many other plaintiffs’ expert witnesses’ failure to disclose their testimonial conflicts of interest when writing and filing an amicus brief in litigation that directly affected the economic viability of their testimony in asbestos cases for the lawsuit industry).

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Two Schools of Thought for Warning Standards

September 19th, 2020

In products liability litigation over designs and warnings, a supplier or manufacturer is typically held to the knowledge and expertise of an expert in the relevant field. Experts, especially in the early days of understanding a newly identified putative risk, may disagree on the quality and quantity of evidence in support of the claimed risk. And of course they may dispute whether the claimed risk exists at all, or the criteria by which the risk should be established. Unfortunately, the law offers little help in answering the obvious question of which expert or group of experts, and which criteria, of all the experts and criteria in the world, are the appropriate reference standards. The point of adverting to experts is, no doubt, that the law knows nothing about causal claims unless there is admissible and sufficient evidence of the risk, typically from a qualified expert, serving as an expert witness, who proffers an opinion about causal claim.

The standard formulation evades the necessity of confronting the epistemic standard for knowledge of the risk by pointing to some expert’s or group of experts’ opinion. Rather than looking directly at whether the causal claim is “true, justified belief,” the law asks whether expert witnesses hold such opinions. This maneuver has several inherent risks of its own. First, it transmutes factfinding into an exercise in the sociology or sampling of expert witnesses. In the case of claims that involve long latencies between the exposure to the putative risk and the manifestation of harm, this sociological exercise becomes one of intellectual history. One of the reasons that the Frye standard was so difficult in practice was its insistence that courts ascertain whether a particular claim or a use of scientific device was “generally accepted.” The assessment of the relevant expert’s knowledge of risk has generally not gone well in litigation contexts. Second, the maneuver of looking to experts’ opinions introduces a different kind of risk; that is, the maneuver risks diluting the standard for warning, “knowledge and expertise” to subjective opinion, hunches, conjecture, and the like.

An analogue of the standard for warning of risks may be found in the law of medical malpractice. Historically, American law relied heavily upon generally held opinions as the measure of knowledge, which were incorporated into standards of reasonable professional care. The law that governs litigation over the quality of medical care in many states resolves this issue by providing a defense under the “Two Schools of Thought Doctrine.”[1] A physician does not deviate from the standard of care simply because many or even most physicians reject the approach he or she took in the care and treatment of the aggrieved patient’s problem. As long as a substantial minority of physicians would have concurred in the judgment of the defendant physician, the claim of malpractice fails.

Pennsylvania confronted the nose-counting problem in Jones v. Chidester, by passing the buck to the jury. The Pennsylvania Supreme Court held that a physician would escape liability if his medical treatment received the support of a “considerable number” of medical experts.[2] The court allocated to the jury the factual determination how many recognized and respected medical experts were needed to create a “school of thought,” but it left completely unclear how a jury would make such a determination.[3]

The law’s lassitude in relying upon professional custom and opinion, rather than whether the custom had sound evidentiary and methodological foundations, might be taken as deference to, and protection of, the medical profession. Or, less charitably, this reliance might be taken as intellectual laziness to avoid engagement with the intellectual basis for the custom or the school of thought. Indeed, the continuing validity of the “nose-counting” approach may certainly be questioned in the era of “evidence-based medicine,” which rejects custom as the basis for medical interventions in favor of the novelty of evidence itself.[4]

If the Two Schools Doctrine should be good law, it has obvious implications for the standard of design or warning in products cases, as well as for the standard of causation. How can a judge or jury impose liability upon a manufacturer for failing to warn about a risk that “a school of thought” among scientists believes is not a risk? An even more extreme disparity arises when the jury or judge comes to the belief that a manufacturer deserves to be punished for failing to warn about supposed risks when many scientists and even regulators do not believe exist.

It is a mystery.

[1]        See, e.g., MacDonald v. United States, 767 F. Supp. 1295, 1308 (M.D. Pa. 1991) (outlining the history and development of the two-schools doctrine under Pennsylvania law); Young v. United States, 574 F. Supp. 571, 581 (D. Del. 1983) (holding that medical profession’s acceptance of alternative appropriate remedies is a complete defense to claim of negligence for failing to use another remedy);  Scheuler v. Strelinger, 204 A.2d 577, 204 A.2d 577, 585  (1964).

[2]        Jones v. Chidester, 531 Pa. 31, 610 A.2d 964, 967 (1992).

[3]        See, e.g., Dailey, “The Two Schools of Thought and Informed Consent Doctrine in Pennsylvania,” 98 Dickenson L. Rev. 713 (1994); Douglas Rader Brown, “Panacea or Pandora’s Box: The ‘Two Schools of Medical Thought’ Doctrine after Jones v. Chidester, 610 A.2d 964 (Pa. 1992),” 44 J. Urban & Contemp. Law 223 (1993).

[4]           See Terence M. Davidson & Christopher P. Guzelian, “Evidence-Based Medicine (EBM): The (Only) Means for Distinguishing Knowledge of Medical Causation from Expert Opinion in the Courtroom,” 47 Trial & Insur. Prac. L. J. 741 (2012) (discussing the advent of evidence-based medicine and its implications for medical education an practice).

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Big Blue versus Asbestos Fiber Type Egalitarianism

July 16th, 2020

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

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

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

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

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

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

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

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

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

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

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

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

Port of Houston Magazine 21 (May 1966)

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

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

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

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

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

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

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

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

Occup. & Envt’l Med. 616 (2007).

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

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

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

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

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

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

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

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

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

More Rosner & Markowitz Faux History of Workplace Safety

July 9th, 2020

Historians, often of the subspecies social, labor, or Marxist, have frequently been recruited by the lawsuit industry to support their litigation efforts. One such historian, David Rosner, sometimes with his friend Gerald Markowitz, seems to show up everywhere, including the infamous Ingham case, in which he served largely as a compurgator and moralist.

Given the role that such historians are permitted to play in high-stakes litigation, it is important to look at their more professional work in the journals for insights into their methodology. A couple of years ago, David Rosner and Gerald Markowitz, published a story about governmental regulation of workplace safety before the passage of the Occupational Health and Safety Act in 1970.[1] Their article is an interesting case study of how to bias an historical analysis by leaving out material facts, a modus operandi in their litigation work as well.

The abstract gives a brief flavor of their tendentious narrative:

“The Occupational Safety and Health Act of 1970 and the Workers Right to Know laws later in that decade were signature moments in the history of occupational safety and health. We have examined how and why industry leaders came to accept that it was the obligation of business to provide information about the dangers to health of the materials that workers encountered. Informing workers about the hazards of the job had plagued labor–management relations and fed labor disputes, strikes, and even pitched battles during the turn of the century decades. Industry’s rhetorical embrace of the responsibility to inform was part of its argument that government regulation of the workplace was not necessary because private corporations were doing it.”

The authors attempt to tell a one-sided story that only “voluntary” warnings were assumed by employers before OSHA, without the force of law. The enterprise perpetuates a common myth of plaintiffs’ advocates that pre-OSHA occupational safety was based upon employers’ voluntary assumption of responsibility, and that it was not until the passage of the OSH Act that employers were subject to legal obligations to warn.

In terms of scholarship, Rosner and Markowitz break no new ground; indeed, the topic was presented with more historical acumen by scientists in an article that predated the Rosner and Markowitz article by a decade.[2] More damning, however, the historians laureate of the plaintiffs’ bar contradict their thesis that manufacturers had only voluntary commitments to their worker safety by pointing to the law of the 1930s, which placed a common law duty of care on employers:

“As one judge in the New Jersey Supreme Court opined at the time, ‘It was the duty of the defendant company to exercise reasonable care that the place in which it set the deceased at work . . . should be reasonably safe for the plaintiff, and free from latent dangers known to the defendant company, or discoverable by an ordinary prudent master, under the circumstances’.”[3]

Of course, legal historians are well aware that there has been a common law duty of reasonable care owed by “masters” (employers) to their “servants” (employees), including a duty to protect them from occupational hazards such as overexposure to dusts, including respirable crystalline silica.[4] There was nothing voluntary about the common law duty.

What makes Rosner and Markowitz’s account egregiously wrong is its complete omission of the extensive state governmental regulation of occupational exposures in advance of OSHA. Taking New York (where Rosner and Markowitz live and teach) as an example, we can see that the state had occupied the field of regulating workplace safety many decades before the enactment of OSHA.

The industrial use of crystalline silica provides an example of a “hot” issue in early 20th century industrial hygiene.  Initial efforts in New York state, starting as early as 1913, focused on the most prevalent industrial exposures, such as foundries, where whole grain and ground silica was used in metal casting and cleaning. New York’s long-recognized common law duty of employers to provide a safe workplace was statutorily codified in 1921.[5] By 1935, silicosis became a compensable disease under New York law, in all industrial settings.

New York’s efforts to protect industrial workers from silica exposure achieved national recognition in 1940, when LIFE magazine published a description of measures taken by the state to safeguard workers on an 85-mile tunnel aqueduct project. The project required thousands of workers to drill through quartzite rock (composed of almost entirely of crystalline silica). Intent on avoiding a repeat of the Hawk’s Nest tragedy, the state imposed safety measures on the project, including wet drilling, elaborate ventilation, and air sampling. LIFE declared the New York state precautions to be “[a] triumph of preventative medicine.”[6]

New York courts also have been in the forefront of recognizing the hazards of silica exposure, and addressing the legal implications of knowledge of those hazards. In 1944, New York’s highest court, the Court of Appeals, held, in a silicosis personal injury case, that:

“[i]t is a matter of common knowledge that it is injurious to the lungs and dangerous to health to work in silica dust, a fact which defendant was bound to know.”[7]

From the 1950s on, New York comprehensively regulated the use of crystalline silica in the industrial workplace. In 1956, New York promulgated “Industrial Code Rule No. 12 – Control of Air Contaminants,” which governed “all processes and operations releasing or disseminating air contaminants in any workroom or work space” (§ 12.1), and clearly defined the employer’s duties to protect workers, regardless of the industry sector or manufacturing process.

Silica was specifically covered by these 1956 regulations. Section 12.2 of the Rule, “Responsibility of employers,” requires:

“Every employer shall observe and effect compliance with the provisions of this rule relating to prevention of air contamination and to providing, installing, operating and maintaining control or protective equipment, and shall instruct his employees as to the hazards of their work, the use of such control or protective equipment and their responsibility for complying with this rule.”

Section 12.25 specifically identified industrial processes that create “air contaminants,” such as free silica.

New York law imposed correlative obligations upon workers. Under § 12.3, the employee’s responsibility was to use the controls and equipment provided by his employer for his protection.

New York’s 1956 regulations, like the federal regulations that would follow in the early 1970s, focused on avoiding exposure to hazardous substances such as crystalline silica in the first instance. Section 12.7, “Prevention,” requires that

“[a]ll processes and operations where practicable shall be so conducted or controlled as to prevent avoidable creation of air contaminants.”

Section 12.9, General control methods, specifies “[o]ne or more of the following methods . . . control dangerous air contaminants:

  1. Substitution of a material which does not produce air contaminants;
  2. Local exhaust ventilation at the source of generation of the air contaminant;
  3. Dilution ventilation in any work space in which air contaminants are generated or released;
  4. Application of water or other wetting agent to prevent air contaminants;
  5. Other methods approved by the board.”

Section 12-29, “Maximum allowable concentrations – evidence of dangerous air contaminants,” provides that air contaminants in quantities greater than those listed “shall constitute prima-facie evidence that such contaminants are dangerous air contaminants.” In a chart entitled “Mineral Dusts,” the 1956 regulations specifically imposed a maximum exposure for free crystalline silica, depending upon the percentage concentration of silica in the total dust.

In 1958, New York revised Rule 12, with its extensive regulation of silica, to provide an even more detailed description of employer responsibilities of employers for air monitoring, ventilation, respiratory programs, and worker education. Section 12.6 of the 1958 Regulations, “Prevention of air contamination,” mandated that

“[a]ll operations producing air contaminants shall be so conducted that the generation, release or dissemination of air contaminants is kept at the lowest practicable level.”

Rule 12 was revised again in 1963, and in 1971, each time with greater specificity of the employer’s responsibility for safe handling of air contaminants, which was always defined to include silica dust. These state regulations never restricted their application to any particular industry. Crystalline silica was thus regulated in every industry conducted within New York.

New York state recruited and employed some of the leading scientists in the field of industrial hygiene and occupational medicine to serve in its Department of Labor’s Division of Industrial Hygiene. Leonard Greenberg, who was a graduate of Columbia College of Engineering, and who received his Ph.D. and M.D. degrees from Yale, served as the executive director of the New York State Division of Industrial Hygiene 1935 to 1952. He later served as an official on pollution control until 1969.[8] While at the New York Department of Labor, contributed widely to scientific publications on occupational health,[9] as did many other scientists under his supervision.[10]

Omission of material facts seems to be a key aspect of the faux historian’s methodology, and very useful in litigation if your conscience permits it.

[1]  David Rosner & Gerald Markowitz, “‘Educate the Individual . . . to a Sane Appreciation of the Risk’: A History of Industry’s Responsibility to Warn of Job Dangers Before the Occupational Safety and Health Administration,” 106 Am. J. Pub. Health 28 (2016).

[2]  See John L. Henshaw, Shannon H. Gaffney, Amy K. Madl , and Dennis J. Paustenbach, “The Employer’s Responsibility to Maintain a Safe and Healthful Work Environment: An Historical Review of Societal Expectations and Industrial Practices,” 19 Employee Responsibility & Rights J. 173 (2007).

[3]  Rosner & Markowitz at 30 (quoting Frederick Willson, “The Very Least an Employer Should Know About Dust and Fume Diseases,” 62 Safety Engineering 317 (Nov. 1931) (quoting in turn an unidentified New Jersey court decision).

[4]  See, e.g., Bellows v. Merchants Dispatch Transp. Co., 257 A.D. 15 (4th Dept. 1939) (holding that employer failed to provide a safe work environment with proper ventilation to employee who contracted silicosis).

[5]  New York Labor Law § 200 (enacted 1921).

[6]  “Silicosis,” Life (April 1, 1940).

[7]  Sadowski v. Long Island R.R., 292 N.Y. 448, 456 (1944),

[8]  “Leonard Greenberg, Pollution Official, Dies,” New York Times (April 12, 1991).

[9]  See, e.g., Leonard Greenburg, “Pneumoconiosis,” 33 Am. J. Pub. Health 849 (1943); Leonard Greenburg, “The Dust Hazard in Tremolite Talc Mining,” 19 Yale J. Biology & Med. 481 (1947).

[10]  See, e.g., James D. Hackett, Silicosis, N.Y. Dep’t Labor & Industry Bull. 11 (Dec. 1932); Frieda S. Miller, Industrial Commissioner, “Detection and Control of Silicosis and Other Occupational Diseases” (1940); Adelaide Ross Smith, “Silicosis and Its Prevention, Special Bulletin No. 198,” (1946).

Posted in Historian Testimony, Silica, Sophisticated User, State of the Art | Comments Off on More Rosner & Markowitz Faux History of Workplace Safety

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