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Counter Cancel Culture – Part II: The Fixing Science Conference

February 12th, 2020

So this is what it is like to be denounced? My ancestors fled the Czar’s lands before they could be tyrannized by denunciations of Stalin’s Soviets. The work of contemporary denunciators is surely much milder, but no more principled than the Soviet versions of yesteryear.

Now that I am back from the Fixing Science conference, sponsored by the Independent Institute and the National Association of Scholars (NAS), I can catch up with the media coverage of the event. I have already addressed Dr. Lenny Teytelman’s issues in an open letter to him. John Mashey is a computer scientist who has written critical essays on climate science denial. On the opening day of the NAS conference, he published online his take on the recent NAS’s conference on scientific irreproducibility.[1] Mashey acknowledges that the Fixing Science conference included “credible speakers who want to improve some areas of science hurt by the use of poor statistical methods or making irreproducible claims,” but his post devolves into scurrilous characterizations of several presenters. Alas, some of the ad hominems are tossed at me, and here is what I have to say about them.

Mashey misspells my name, “Schactman,” but that is a minor flaw of scholarship. He writes that I have “published much on evidence,” which is probably too laudatory. I am hardly a recognized scholar on the law of evidence, although I know something about this area, and have published in it.

Mashey tautologically declares that I “may or may not be a ‘product defense lawyer’ (akin to Louis Anthony Cox) defending companies against legitimate complaints.” Mashey seems unaware of how the rule of law works in our country. Plaintiffs file complaints, but the standard for the legitimacy of these complaints is VERY low. Courts require the parties to engage in discovery of their claims and defenses, and then courts address dispositive motions to dismiss either the claims or the defenses. So, sometimes after years of work, legitimate complaints are revealed to be bogus complaints, and then the courts will dismiss bogus complaints, and thus legitimate complaints become illegitimate complaints. In my 36 years at the bar, I am proud to have been able to show that a great many apparently legitimate complaints were anything but what they seemed.

Mashey finds me “worrying” and “concerning.” My children are sometimes concerned about me, and even worry about me, about I do not think that Mashey was trying to express solicitude for me.

Why worry? Well, David Michaels in his most recent book, Triumph of Doubt (2020), has an entire chapter on silica dust. And I, worrisomely, have written and spoken, about silica and silicosis litigation, sometimes in a way critical of the plaintiffs’ litigation claims. Apparently, Mashey does not worry that David Michaels may be an unreliable protagonist who worked as a paid witness for the lawsuit industry on many occasions before becoming the OSHA Administrator, in which position he ignored enforcement of existing silica regulations in order to devote a great deal of time, energy, and money to revising the silica regulations. The evidentiary warrant for Michaels’ new silica rule struck me then, and now, as slim, but the real victims, workers, suffered because Michaels was so intent on changing a rule in the face of decades of declining silicosis mortality, that he failed, in my view, to attend to specific instances of over-exposure.

Mashey finds me concerning because two radical labor historians do not like me. (I think I am going eat a worm, ….) Mashey quotes at length from an article by these historians, criticizing me for having had the audacity to criticize them.[2] Oh my.

What Mashey does not tell his readers was that, as co-chair of a conference on silicosis litigation (along with a co-chair who was a plaintiffs’ lawyer), I invited historian Gerald Markowitz to speak and air his views on the history of silica regulation and litigation. In response, I delivered a paper that criticized, and I would dare say, rebutted many of Markowitz’s historical conclusions and his inferences from an incomplete, selectively assembled, and sometimes incorrect, set of historical facts. I later published my paper.

Mashey tells his readers that my criticisms, based not upon what I wrote, but upon the partisan cries of Rosner and Markowitz, “seems akin to Wood’s style of attack.” Well, if so, nicely done, Woods.

But does Mashey believe that his readers deserve to know that Rosner and Markowitz have testified repeatedly on behalf of the lawsuit industry, that is, those entrepreneurs who make lawsuits?[3] And that Rosner and Markowitz have been amply remunerated for their labors as partisan witnesses in these lawsuits?

And is Mashey worried or concerned that in the United States, silicosis litigation has been infused with fraud and deception, not by the defendants, but by the litigation industry that creates the lawsuits? Absent from Rosner and Markowitz’s historical narratives is any mention of the frauds that have led to dismissals of thousands of cases, and the professional defrocking of any number of physician witnesses. In re Silica Products Liab. Litig., MDL No. 1553, 398 F. Supp. 2d 563 (S.D.Tex. 2005). Even the redoubtable expert witness for the plaintiffs’ bar, David S. Egilman, has published articles that point out the unethical and unlawful nature of the medico-legal screenings that gave rise to the silicosis litigation, which Michaels, Rosner, and Markowitz seem to support, or at the very least suppress any criticism of.[4]

So this is what it means to be denounced! Mashey’s piece is hardly advertisement for the intellectual honesty of those who would de-platform the NAS conference. He has selectively and inaccurately addressed my credentials. As just one example, and in an effort to diminish the NAS, he has omitted that I have received a grant from the NASEM to develop a teaching module on scientific causation. My finished paper is published online at the NASEM website.[5]

I do not know Mashey, but I leave it to you to judge him by his sour fruits.

[1] John Mashey, “Dark-Moneyed Denialists Are Running ‘Fixing Science’ Symposium of Doubt,” Desmog Blog (Feb. 7, 2020).

[2] David Rosner & Gerald Markowitz, “The Trials and Tribulations of Two Historians: Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 280-81 (2009) (criticizing me for expressing the view that historians should not be permitted to testify and thereby circumvent the rules of evidence). See also David Rosner & Gerald Markowitz, “L’histoire au prétoire. Deux historiens dans les procès des maladies professionnelles et environnementales,” 56 Revue D’Histoire Moderne & Contemporaine 227, 238-39 (2009) (same); D. Rosner, “Trials and Tribulations: What Happens When Historians Enter the Courtroom,” 72 Law & Contemporary Problems 137, 152 (2009) (same). I once thought there was an academic standard that prohibited duplicative publication!

[3] I have been critical of Rosner and Markowitz on many occasions; they have never really responded to the substance of my criticisms. See, e.g., “How Testifying Historians Are Like Lawn-Mowing Dogs,” (May 15, 2010).

[4] See David Egilman and Susanna Rankin Bohme, “Attorney-directed screenings can be hazardous,” 45 Am. J. Indus. Med. 305 (2004); David Egilman, “Asbestos screenings,” 42 Am. J. Indus. Med. 163 (2002).

[5] “Drug-Induced Birth Defects: Exploring the Intersection of Regulation, Medicine, Science, and Law – An Educational Module” (2016) (A teaching module designed to help professional school students and others evaluate the role of science in decision-making, developed for the National Academies of Science, Engineering, and Medicine, and its Committee on Preparing the Next Generation of Policy Makers for Science-Based Decisions).

Posted in Conflicts of Interest, Expert Witnesses, Historian Testimony, Public Nuisances, Scientific Evidence | Comments Off on Counter Cancel Culture – Part II: The Fixing Science Conference

Creators of ToxicDocs Show Off Their Biases

June 7th, 2019

Columbia Magazine’s most recent issue includes a laudatory story about David Rosner, a professor of history in Columbia University.¹ The “story” focuses on Rosner’s website, ToxicDocs, which has become his and Gerald Markowitz’s clearing house for what they assert are industry’s misdeeds in the realm of public health.

What the magazine’s story chooses not to discuss is the provenance of the ToxicDocs website in Rosner and Markowitz’s long collaboration with the lawsuit industry in a variety of litigation endeavors. And what you will not find on ToxicDocs are documents of the many misdeeds of the sponsoring lawsuit industry’s misdeeds, such as unlawful and unethical screenings, evidentiary frauds, specious claiming, and misleading and incompetent medical advice to its clients. Nor will you find much in the way of context for the manufacturing industry’s documents.

Media coverage of ToxicDocs from last year provides some further insight into the provenance of the website.² According one account, Rosner and Markowitz (collectively Rosnowitz) bristled when they were attacked for their litigation work by historian Philip Scranton, a professor in Rutgers University. Scranton showed that Rosnowitz were guilty of a variety of professional sins, from “overgeneralization and failure to corroborate” to “selectively appropriat[ing] information.” Although the radical left came to Rosnowitz’s defense by labeling Scranton a “hired gun,” that charge range rather hollow when Scranton was a well-regarded historian, and Rosnowitz were long-term hired guns for the lawsuit industry.³

And so these leftist historians felt the need to defend their long-term collaboration with the lawsuit industry by putting what they believed were incriminating documents on line at their website, ToxicDocs.⁴ The problem, however, with Rosnowitz’s response to the Scranton critique is that their website suffers from all the undue selectivity, lack of context, and bias, which afflict their courtroom work, and which validated Scranton’s report. Most important, the reader will not find anything on ToxicDocs that challenges the misdeeds of the lawsuit industry, which has employed them for so many years.

In February 2018, the Journal of Public Health Policy (vol. 39, no. 1) published a series of editorials lauding ToxicDocs.⁵ Remarkably, not a single paper by Rosnowitz, and their associates, Robert Proctor, David Wegman, or Anthony Robbins mentioned their service to the lawsuit industry or the extent of their income from that service. Sheldon Whitehouse wrote an editorial, in which he disclosed his having served as Rhode Island’s Attorney General, but failed to disclose that he had worked in lockstep with the plaintiffs’ firm, Motley Rice, and that he had hired Rosnowitz, in Rhode Island’s lawsuit against major paint manufacturers. For those observers who are in a moral panic over “industry” conflicts of interest, please note the conflicts of lawsuit industrial complex.

1 Carla Cantor, “ToxicDocs Exposes Industry Misdeeds” Columbia Magazine (Summer 2019).

2 Tik Root, “In ToxicDocs.org, a Treasure Trove of Industry Secrets,” Undark (Jan. 10, 2018).

3 See, e.g., Jon Wiener, “Cancer, Chemicals and History: Companies try to discredit the experts,” The Nation (Jan. 20, 2005).

4 See “ToxicHistorians Sponsor ToxicDocs” (Feb. 1, 2018); “David Rosner’s Document Repository” (July 23, 2017).

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

Posted in Conflicts of Interest, Expert Witnesses, Historian Testimony | Comments Off on Creators of ToxicDocs Show Off Their Biases

History of Silicosis Litigation

January 31st, 2019

“Now, Silicosis, you’re a dirty robber and a thief;
Yes, silicosis, you’re a dirty robber and a thief;
Robbed me of my right to live,
and all you brought poor me is grief.
I was there diggin’ that tunnel for just six bits a day;
I was diggin’ that tunnel for just six bits a day;
Didn’t know I was diggin’ my own grave,
Silicosis was eatin’ my lungs away.”

Josh White, “Silicosis Is Killin’ Me (Silicosis Blues)” (1936)

Recently, David Rosner, labor historian, social justice warrior, and expert witness for the litigation industry, gave the Fielding H. Garrison Lecture, in which he argued for the importance of the work that he and his comrade-in-arms, Gerald Markowitz, have done as historian expert witnesses in tort cases.¹ Although I am of course grateful for the shout out that Professor Rosner gives me,² I am still obligated to call him on the short-comings of his account of silicosis litigation.³ Under the rubric of “the contentious struggle to define disease,” Rosner presents a tendentious account of silicosis litigation, which is highly misleading, for what it says, and in particular, for it omits.

For Rosner’s self-congratulatory view of his own role in silicosis litigation to make sense, we must imagine a counterfactual world that is the center piece of his historical narrative in which silicosis remains the scourge of the American worker, and manufacturing industry is engaged in a perpetual cover up.

Rosner’s fabulistic account of silicosis litigation and his role in it falls apart under even mild scrutiny. The hazards of silica exposure were known to Josh White and the entire country in 1936. Some silicosis litigation arose in the 1930s against employers, but plaintiffs were clearly hampered by tort doctrines of assumption of risk, contributory negligence, the fellow-servant rule. To my knowledge, there were no litigation claims against remote suppliers of silica before the late 1970s, when courts started to experiment with hyperstrict liability rules.

Eventually, the litigation industry, buoyed by its successes against asbestos-product manufacturers turned their attention to silica sand suppliers to foundries and other industrial users. Liability claims against remote suppliers of a natural raw material such as silica sand, however, made no sense in terms of the rationales of tort law. There was no disparity of information between customer and supplier; the customer, plaintiffs’ employer was not only the cheapest and most efficient cost and risk avoider, the employer was the only party that could control the risk. Workers and their unions were well aware of the hazards of working in uncontrolled silica-laden workplaces.

Although employer compliance with safety and health regulations for silica exposure has never been perfect, the problem of rampant acute silicosis, such as what afflicted the tunnel workers memorialized by Josh White, is a thing of the past in the United States. The control of silica exposures and the elimination of silicosis are rightly claimed to be one of the great public health achievements of the 20^th century. See Centers Disease Control, “Ten Great Public Health Achievements — United States, 1900-1999,” 48 Morbidity & Mortality Weekly Report 241 (April 02, 1999).

Interestingly, after World War II, silicosis has been a much greater problem in the communist countries, such as China, the countries that made up the Soviet Union. Rosner and Markowitz, however, like the leftist intellectuals of the 1950s who could not bring themselves to criticize Stalin, seem blind to the sorry state of workplace safety in communist countries. Their blindness vitiates their historical project, which attempts to reduce occupational diseases and other workplace hazards to the excesses of corporate capitalism. A fair comparison with non-capitalist systems would reveal that silicosis results from many motives and conditions, including inattention, apathy, carelessness, concern with productivity, party goals, and labor-management rivalries. In the case of silicosis, ignorance of the hazards of silica is the least likely explanation for silicosis cases arising out of workplace exposures after the mid-1930s.

In the United States, silicosis litigation has been infused with fraud and deception, not by the defendants, but by the litigation industry that creates lawsuits. Absent from Rosner’s historical narratives is any mention of the frauds that have led to dismissals of thousands of cases, and the professional defrocking of any number of physician witnesses. In re Silica Products Liab. Litig., MDL No. 1553, 398 F.Supp. 2d 563 (S.D.Tex. 2005).

Nor does Rosner deign to discuss the ethical and legal breaches committed by the plaintiffs’ counsel in conducting radiographic screenings of workers, in the hopes of creating lawsuits. With the help of unscrupulous physicians, these screenings were unnaturally successful not only in detecting silicosis that did not exist, but in some cases, in transmuting real asbestosis into silicosis.⁴

Many silicosis cases in recent times were accompanied by more subtle frauds, which turned on the “failure-to-warn” rhetoric implicit in the Restatement (Second) of Torts § 402A. Consider the outbreak of silicosis litigation in western Pennsylvania, in the mid-1980s. Many of the men who claimed to have silicosis had significant silica exposure at the Bethlehem and U.S. Steel foundries in the Johnstown areas. Some of the claimants actually had simple silicosis, although discovery of these claimants’ workplace records revealed that they had been non-compliant with workplace safety rules.

The Johnstown, Cambria County, cases were not the result of unlawful medical screenings, paid for by plaintiffs’ lawyers and conducted by physicians of dubious integrity and medical acumen. Instead, the plaintiffs’ lawyers found their claimants as a result of the claimants’ having had previous workers’ compensation claims for silicosis, which resulted after the workers were diagnosed by employer medical screening programs.

Cambria County Courthouse in Ebensburg, PA (venue for an outbreak of silicosis litigation in the 1980s and early 1990s⁵)

The first of the foundrymen’s cases was set for trial in 1989, 30 years ago, in Cambria County, Pennsylvania. The silica cases were on the docket of the President Judge, the Hon. Joseph O’Kicki, who turned out to be less than honorable. Just before the first silica trial, Judge O’Kicki was arrested on charges of corruption, as well as lewdness (for calling in his female staff while lounging in chambers in his panties).

As a result of O’Kicki’s arrest, the only Cambria Country trial we saw in 1989 was the criminal trial of Judge O’Kicki, in Northampton County. In April 1989, a jury found O’Kicki guilty of bribery and corruption, although it acquitted him on charges of lewdness.⁶ Facing a sentence of over 25 years, and a second trial on additional charges, O’Kicki returned to the land of his forebears, Slovenia, where he lived out his days and contributed to the surplus population.⁷

Whatever schadenfreude experienced by the defendants in the Cambria County silicosis litigation was quickly dispelled by the assignment of the silica cases to the Hon. Eugene Creany, who proved to be an active partisan for the plaintiffs’ cause. Faced with a large backlog of cases created by the rapacious filings of the Pittsburgh plaintiffs’ lawfirms, and Judge O’Kicki’s furlough from judicial service, Judge Creany devised various abridgements of due process, the first of which was to consolidate cases. As a result, the first case up in 1990 was actually three individual cases “clustered” for a single jury trial: Harmotta, Phillips, and Peterson.⁸ To poke due process in both eyes, Judge Creany made sure that one of the “clustered” cases was a death case (Peterson).

Jury selection started in earnest on April 2, 1990, with opening statements set for April 4. In between, the defense made the first of its many motions for mistrial, when defense lawyers observed one of the plaintiffs, Mr. Phillips, having breakfast with some of the jurors in the courthouse cafeteria. Judge Creany did not seem to think that this pre-game confabulation was exceptional, and admonished the defense that folks in Cambria County are just friendly, but they are fair. Trial slogged on for four weeks, with new abridgments of due process almost every day, such as forcing defendants, with adverse interests and positions, into having one direct- and one cross-examination of each witness. The last motion for mistrial was provoked by Judge Creany’s walking into the jury room during its deliberations, to deliver doughnuts.

At the end of the day, in May 1990, the jury proved to be much fairer than the trial judge. Judge Creany instructed the jury that “silica was the defect,” and on other novel points of law. Led by its foreman, a union organizer for the United Mine Workers, the jury returned a defense verdict in the Peterson case, which involved a claim that Mr. Peterson’s heart attack death case was caused by his underlying silicosis. In the two living plaintiffs’ cases, the jury found that the men had knowingly assumed the risk of silicosis, but at the judge’s insistence, the jury proceeded to address defendants’ liability, and to assess damages, in the amount of $22,500, in the two cases.

Pennsylvania’s appellate courts took a dim view of plaintiffs’ efforts to hold remote silica suppliers responsible for silicosis arising out of employment by large, sophisticated steel manufacturers. The Superior Court, Pennsylvania’s intermediate appellate court, reversed and remanded both plaintiffs’ verdicts. In Mr. Harmotta’s case, the court held that his action was collaterally estopped by a previous workman’s compensation judge’s finding that he did not have silicosis. In Mr. Phillip’s case, the court addressed the ultimate issue, whether a remote supplier to a sophisticated intermediary can be liable for silicosis that resulted from the intermediary’s employment and use of the supplied raw material. In what was a typical factual scenario of supply of silica to foundry employers, the Superior Court held that there was no strict or negligence liability for the employees’ silicosis.⁹ The Pennsylvania Supreme Court declined to hear Harmotta’s appeal on collateral estoppels, but heard an appeal in Phillips’ case. The Supreme Court pulled back from the sophisticated intermediary rationale for reversal, and placed its holding instead on the obvious lack of proximate cause between the alleged failure to warn and the claimed harm, given the jury’s special finding of assumed risk.¹⁰

One of plaintiffs’ counsel’s principal arguments, aimed at the union organizer on the jury, was that even if a warning to the individual plaintiffs might not have changed their behavior, a warning to the union would have been effective. The case law involving claims against unions for failing to warn have largely exculpated unions and taken them out of the warning loop. Given this case law, plaintiffs’ argument was puzzling, but the puzzlement turned to outrage when we learned after the first trial that Judge Creany had been a union solicitor, in which role, he had regularly written to U.S. Steel in Johnstown, to notify the employer when one of the local union members had been diagnosed with silicosis.

The next natural step seemed to list Judge Creany as a percipient fact witness to the pervasive knowledge of silicosis among the workforce and especially among the union leadership. Judge Creany did not take kindly to being listed as a fact witness, or being identified in voire dire as a potential witness. Still, the big lie about failure to warn and worker and labor union ignorance had been uncovered. Judge Creany started to delegate trials to other judges in the courthouse and to bring judges in from neighboring counties. The defense went on win the next dozen or so cases, before the plaintiffs’ lawyers gave up on their misbegotten enterprise of trying to use Pennsylvania’s hyperstrict liability rules to make remote silica suppliers pay for the fault of workers and their employers.

You won’t find any mention of the Cambria County saga in Rosner or Markowitz’s glorified accounts of silicosis litigation. The widespread unlawful screenings, the “double dipping” by asbestos claimants seeking a second paycheck for fabricated silicosis, the manufactured diagnoses and product identification do not rent space in Rosner and Markowitz’s fantastical histories.

1 David Rosner, “Trying Times: The Courts, the Historian, and the Contentious Struggle to Define Disease,” 91 Bull. Hist. Med. 471 (2017).

2 See, e.g., 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); Schachtman, “On Deadly Dust & Histrionic Historians 041904,”; “How Testifying Historians Are Like Lawn-Mowing Dogs” (May 15, 2010); A Walk on the Wild Side (July 16, 2010); Counter Narratives for Hire (Dec. 13, 2010); Historians Noir (Nov. 18, 2014); “Succès de scandale – With Thanks to Rosner & Markowitz” (Mar. 26, 2017). And of course, I have experienced some schadenfreude for when one of the Pink Panthers was excluded in a case in which he was disclosed as a testifying expert witness. Quester v. B.F. Goodrich Co., Case No. 03-509539, Court of Common Pleas for Cuyahoga Cty., Ohio, Order Sur Motion to Exclude Dr. Gerald Markowitz (Sweeney, J.).

3 “Trying Times” is the sixth Rosnowitz publication to point to me as a source of criticism of the Rosner-Markowitz radical leftist history of silicosis in the United States. See David Rosner, “Trying Times: The Courts, the Historian, and the Contentious Struggle to Define Disease,” 91 Bull. History Med. 473, 491-92 & n.32 (2017); Previously, Rosner and Markowitz have attempted to call me out in four published articles and one book. See D. Rosner & G. Markowitz, “The Trials and Tribulations of Two Historians: Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 280-81 (2009); D. Rosner & G. Markowitz, “L’histoire au prétoire. Deux historiens dans les procès des maladies professionnelles et environnementales,” 56 Revue D’Histoire Moderne & Contemporaine 227, 238-39 (2009); David Rosner, “Trials and Tribulations: What Happens When Historians Enter the Courtroom,” 72 Law & Contemporary Problems 137, 152 (2009); David Rosner & Gerald Markowitz, “The Historians of Industry” Academe (Nov. 2010); and Gerald Markowitz and David Rosner, Deceit and Denial: The Deadly Politics of Industrial Pollution at 313-14 (U. Calif. rev. ed. 2013).

4 Nathan A. Schachtman, “State Regulators Impose Sanction Unlawful Screenings 05-25-07,” Washington Legal Foundation Legal Opinion Letter, vol. 17, no. 13 (May 2007); “Silica Litigation – Screening, Scheming, and Suing,” Washington Legal Foundation Critical Legal Issues Working Paper (December 2005); “Medico-Legal Issues in Occupational Lung Disease Litigation,” 27 Seminars in Roentgenology140 (1992).

5 by Publichall – own work, CC BY-SA 3.0.

6 Assoc’d Press, “Pennsylvania County Judge Guilty of Corruption,” (April 18, 1989).

7 U.P.I., “Facing Prison, Convicted Judge Skips Bail,” (Mar. 8, 1993); “Judge O’kicki Declared Fugitive; May Be In Slovenia,” The Morning Call (April 20, 1993).

8 Harmotta v. Walter C. Best, Inc., Cambria Cty. Ct. C.P. No. 1986-128; Phillips v. Walter C. Best, Inc., Cambria Cty. Ct. C.P. No. 1987-434(b)(10); Peterson v. Walter C. Best, Inc., Cambria Cty. Ct. C.P. No. 1986-678.

9 Phillips v. A.P. Green Co., 428 Pa. Super. 167, 630 A.2d 874 (1993).

10 Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167 (1995).

Posted in Historian Testimony, Public Nuisances, Silica, Sophisticated User | Comments Off on History of Silicosis Litigation

Selikoff Timeline & Asbestos Litigation History

December 20th, 2018

This post has been updated here.

Posted in Asbestos, Expert Witnesses, Historian Testimony | Comments Off on Selikoff Timeline & Asbestos Litigation History

Castleman-Selikoff – Can Their Civil Conspiracy Survive Death?

December 4th, 2018

Several, years ago, I wrote about Barry Castleman’s 1979 memorandum to Irving Selikoff, in which Castleman implored Selikoff to refuse to cooperate with lawful discovery from defense counsel in asbestos personal injury cases. The Selikoff – Castleman Conspiracy” (Mar. 13, 2011). The document, titled “Defense Attorneys’ Efforts to Use Background Files of Selikoff-Hammond Studies to Avert Liability,” was dated November 5, 1979. Coming from The Legacy Tobacco Documents Library at the University of California, San Francisco, created by litigation industry’s tobacco subsidiary, the document is clearly authentic. Barry Castleman, however, has testified that he cannot remember the 35+ year old memorandum, which failure of recall is not probative of anything.¹He refuses to renounce his role as a co-conspirator.

Jock McCulloch and Geoffrey Tweedale have both made careers of attacking any manufacturing and mining industry with connections to asbestos, while supporting the litigation industry that thrives on asbestos. Sadly, Jock McCulloch died of mesothelioma, earlier this year, on January 18, 2018, in Australia. McCulloch attributed his disease to his exposure to crocidolite when he researched one of his books on blue asbestos in South Africa.² Although I found his scholarship biased and exaggerated, I admired his tenacious zeal in pressing his claims. His candor about the cause of his last illness was exemplary compared with Selikoff’s failure to acknowledge the extent to which amosite and crocidolite were used in the United States.

In 2007, Jock McCulloch and Geoffrey Tweedale wrote an article in which they attacked those who dared to say anything negative about Irving Selikoff.³ Of course, in claiming that the asbestos industry was “shooting the messenger,” these authors were, well, shooting the messenger, too. In 2008, McCulloch and Tweedale wrote a much more interesting, hagiographic article about Selikoff.⁴ From the legal perpective, perhaps the most interesting revelation in this article was that the authors had drawn “upon unprecedented access to the Selikoff archive at Mount Sinai Hospital in New York City.”

Several years later, defense counsel in the United States attempted to visit the Selikoff archives at Mt. Sinai Hospital. After an unseemly delay, the inquisitive counsel were met with unprecedented obstruction and denial of access:

From: [ARCHIVIST]
To: [DEFENSE COUNSEL]
Subject: Request for appointment with Archivist
Date: Wed, 3 Sep 2014 16:18:53 +0000

I realize that this must seem out of the blue, but we have recently realized that the stub email address we have – msarchives – has not been forwarding email the way it was intended to do. I apologize for not responding to you previously, and for what it is worth, here is the answer to your question.

Some Selikoff material in the Mount Sinai Archives, although I believe some of his research material is still with our Dept. of Preventive Medicine. Our collection is currently closed to researchers, as per the request of Mount Sinai’s Legal Department in 2009. Here is their statement concerning these records:

It was agreed that Dr. Selikoff’s correspondence and archives that are kept within the auspices of the MSSM library under the direction of the MSSM archivist, Barbara Niss, would be kept confidential for at least an additional 25 years to protect Dr. Selikoff’s research endeavors and the privacy of all the individuals, particularly the research subjects, who he studied and with whom he communicated. It is anticipated that twenty-five years from now, these individuals will no longer be alive and their concerns about keeping these matters private will have become moot. However, if we determine that this is not the case, we will reserve the option to continue to keep these documents confidential. We are also taking this action to preserve the academic freedom of our researchers so they can pursue their research, communicate with colleagues and comment on these important environmental/scientific issues, without concerns that they will be subpoenaed as non-party witnesses in these massive tort litigations.

Again, my apologies for the very late reply. Please let me know if you have questions.

So there you have it, 35 years after Castleman implored Selikoff not to cooperate with lawyers’ proper fact discovery, the Selikoff archive is still at its obstruction and denial.

1 See “The Selikoff – Castleman Conspiracy” (Mar. 13, 2011). In 2014, Castleman testifies that he has no recollection of the memorandum. The document was also available at Scribd.

2 See Laurie Kazan-Allen, “In Memory of Jock McCulloch” (Jan. 21, 2018) (quoting an email from Jock McCulloch, dated July 21, 2017: “The injury almost certainly occurred while I was researching Asbestos Blues in South Africa, which is all of twenty years ago.”); “Remembering Jock McCulloch,” Toxic Docs Blog (Jan. 28, 2018) (quoting his partner’s tribute about the cause of his death: “His exposure to blue asbestos was probably in South Africa during the mid-1990s, when he was researching a book on the history of mining.”).

3 Jock McCulloch & Geoffrey Tweedale, “Shooting the Messenger: The Vilification of Irving J. Selikoff,” 37 Internat’l J. Health Services 619 (2007).

4 Jock McCulloch and Geoffrey Tweedale, “Science is not Sufficient: Irving J. Selikoff and the Asbestos Tragedy,” 17 New Solutions 293 (2008).

Posted in Asbestos, Expert Witness Discovery, Historian Testimony | Comments Off on Castleman-Selikoff – Can Their Civil Conspiracy Survive Death?

PubMed Refutes Courtroom Historians

February 11th, 2018

Professors Rosner and Markowitz, labor historians, or historians laboring in courtrooms, have made a second career out of testifying about other people’s motivations. Consider their pronouncement:

“In the postwar era, professionals, industry, government, and a conservative labor movement tried to bury silicosis as an issue.”

David Rosner & Gerald Markowitz, Deadly Dust: Silicosis and the Politics of Occupational Disease in the Twentieth Century America 213 (Princeton 1991); Gerald Markowitz & David Rosner, “Why Is Silicosis So Important?” Chap. 1, at 27, in Paul-André Rosental, ed., Silicosis: A World History (2017). Their accusation is remarkable for any number of reasons,¹ but the most remarkable is that their claim is unverified, but readily falsified.²

Previously, I have pointed to searches in Google’s Ngram Book viewer as well as in the National Library of Medicine’s database (PubMed) on silicosis. The PubMed website has now started to provide a csv file, with articles counts by year, which can be opened in programs such as LibreOffice Calc, Excel, etc, and then used to generate charts of the publication counts over time.

Here is a chart generated form a simple search on <silicosis> in PubMed, with years aggregated over roughly 11 year intervals:

The chart shows that the “professionals,” presumably physicians and scientists were most busy publishing on, not burying, the silicosis issue exactly when Rosner and Markowitz claimed them to be actively suppressing. Many of the included publications grew out of industry, labor, and government interests and concerns. In their book and in their courtroom performances,, Rosner and Markowitz provide mostly innuendo without evidence, but their claim is falsifiable and false.

To be sure, the low count in the 1940s may well result from the relatively fewer journals included in the PubMed database, as well as the growth in the number of biomedical journals after the 1940s. The Post-War era certainly presented distractions in the form of other issues, including the development of antibiotics, chemotherapies for tuberculosis, the spread of poliomyelitis and the development of vaccines for this and other viral diseases, radiation exposure and illnesses, tobacco-related cancers, and other chronic diseases. Given the exponential expansion in scope of public health, the continued interest in silicosis after World War II, documented in the PubMed statistics, is remarkable for its intensity, pace Rosner and Markowitz.

1 “Conspiracy Theories: Historians, In and Out of Court” (April 17, 2013). Not the least of the reasons the group calumny is pertinent is the extent to which it keeps the authors gainfully employed as expert witnesses in litigation.

2 See also CDC, “Ten Great Public Health Achievements – United States, 1900 – 1999,” 48(12) CDC Morbidity and Mortality Weekly Report 241 (April 02, 1999)(“Work-related health problems, such as coal workers’ pneumoconiosis (black lung), and silicosis — common at the beginning of the century — have come under better control.”).

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ToxicHistorians Sponsor ToxicDocs

February 1st, 2018

A special issue of the Journal of Public Health Policy waxes euphoric over a website, ToxicDocs, created by two labor historians, David Rosner and Gerald Markowitz (also known as the “Pink Panthers”). The Panthers have gotten their universities, Columbia University and the City University of New York, to host the ToxicDocs website with whole-text searchable documents of what they advertise as “secret internal memoranda, emails, slides, board minutes, unpublished scientific studies, and expert witness reports — among other kinds of documents — that emerged in recent toxic tort litigation.” According to Rosner and Markowitz, they are “constantly adding material from lawsuits involving lead, asbestos, silica, and PCBs, among other dangerous substances.” Rosner and Markowitz are well-positioned to obtain and add such materials because of their long-term consulting and testifying work for the Lawsuit Industry, which has obtained many of these documents in routine litigation discovery proceedings.

Despite the hoopla, the ToxicDocs website is nothing new or novel. Tobacco litigation has spawned several such on-line repositories: “Truth Tobacco Industry Documents Library,” Tobacco Archives,” and “Tobacco Litigation Documents.” And the Pink Panthers’ efforts to create a public library of the documents upon which they rely in litigation go back several years to earlier websites. See David Heath & Jim Morris, “Exposed: Decades of denial on poisons. Internal documents reveal industry ‘pattern of behavior’ on toxic chemicals,” Center for Public Integrity (Dec. 4, 2014).

The present effort, however, is marked by shameless self promotion and support from other ancillary members of the Lawsuit Industry. The Special Issue of Journal of Public Health Policy is introduced by Journal editor Anthony Robbins,¹ who was a mover and shaker in the SKAPP enterprise and its efforts to subvert judicial assessments of proffered opinions for validity and methodological propriety. In addition, Robbins, along with the Pink Panthers as guest editors, have recruited additional “high fives” and self-congratulatory cheerleading from other members of, and expert witnesses for, the Lawsuit Industry, as well as zealots of the type who can be counted upon to advocate for weak science and harsh treatment for manufacturing industry.²

Rosner and Markowitz, joined by Merlin Chowkwanyun, add to the happening with their own spin on ToxicDocs.³ As historians, it is understandable that they are out of touch with current technologies, even those decades old. They wax on about the wonders of optical character recognition and whole text search, as though it were quantum computing.

The Pink Panthers liken their “trove” of documents to “Big Data,” but there is nothing quantitative about their collection, and their mistaken analogy ignores their own “Big Bias,” which vitiates much of their collection. These historians have been trash picking in the dustbin of history, and quite selectively at that. You will not likely find documents here that reveal the efforts of manufacturing industry to improve the workplace and the safety and health of their workers.

Rosner and Markowitz disparage their critics as hired guns for industry, but it is hard for them to avoid the label of hired guns for the Lawsuit Industry, an industry with which they have worked in close association for several decades, and from which they have reaped thousands of dollars in fees for consulting and testifying. Ironically, neither David Rosner nor Gerald Markowitz disclose their conflicts of interest, or their income from the Lawsuit Industry. David Wegman, in his contribution to the love fest, notes that ToxicDocs may lead to more accurate reporting of conflicts of interest. And yet, Wegman does not report his testimonial adventures for the Lawsuit Industry; nor does Robert Proctor; nor do Rosner and Markowitz.

It is a safe bet that ToxicDocs does not contain any emails, memoranda, letters, and the like about the many frauds and frivolities of the Lawsuit Industry, such as the silica litigation, where fraud has been rampant.⁴ I looked for but did not find the infamous Baron & Budd asbestos memorandum, or any of the documentary evidence from fraud cases arising from false claiming in the asbestos, silicone, welding, Fen-Phen, and other litigations.⁵

The hawking of ToxicDocs in the pages of the Journal of Public Health Policy is only the beginning. You will find many people and organizations promoting ToxicDocs on Facebook, Twitter, and LinkedIn. Proving there is no limit to the mercenary nature of the enterprise, you can even buy branded T-shirts and stationery online. Ah America, where even Marxists have the enterpreurial spirit!

1 Anthony Robbins & Phyllis Freeman, “ToxicDocs (www.ToxicDocs.org) goes live: A giant step toward leveling the playing field for efforts to combat toxic exposures,” 39 J. Public Health Pol’y 1 (2018). See “More Antic Proposals for Expert Witness Testimony – Including My Own Antic Proposals” (Dec. 30 2014).

2 Robert N. Proctor, “God is watching: history in the age of near-infinite digital archives,” 39 J. Public Health Pol’y 24 (2018); Stéphane Horel, “Browsing a corporation’s mind,” 39 J. Public Health Pol’y 12 (2018); Christer Hogstedt & David H. Wegman, “ToxicDocs and the fight against biased public health science worldwide,” 39 J. Public Health Pol’y 15 (2018); Joch McCulloch, “Archival sources on asbestos and silicosis in Southern Africa and Australia,” 39 J. Public Health Pol’y 18 (2018); Sheldon Whitehouse, “ToxicDocs: using the US legal system to confront industries’ systematic counterattacks against public health,” 39 J. Public Health Pol’y 22 (2018); Elena N. Naumova, “The value of not being lost in our digital world,” 39 J. Public Health Pol’y 27 (2018); Nicholas Freudenberg, “ToxicDocs: a new resource for assessing the impact of corporate practices on health,” 39 J. Public Health Pol’y 30 (2018). These articles are free, open-access, but in this case, you may get what you have paid for.

3 David Rosner, Gerald Markowitz, and Merlin Chowkwanyun, “ToxicDocs (www.ToxicDocs.org): from history buried in stacks of paper to open, searchable archives online,” 39 J. Public Health Pol’y 4 (2018).

4 See, e.g., In re Silica Products Liab. Litig., MDL No. 1553, 398 F.Supp. 2d 563 (S.D.Tex. 2005).

5 See Lester Brickman, “Fraud and Abuse in Mesothelioma Litigation,” 88 Tulane L. Rev. 1071 (2014); Peggy Ableman, “The Garlock Decision Should be Required Reading for All Trial Court Judges in Asbestos Cases,” 37 Am. J. Trial Advocacy 479, 488 (2014).

Posted in Conflicts of Interest, Historian Testimony | Comments Off on ToxicHistorians Sponsor ToxicDocs

Divine Intervention in Litigation

January 27th, 2018

The Supreme Being, or Beings, or their Earthly Agents (Angels) rarely intervene in mundane matters such as litigation. Earlier this month, however, there may have been an unsuccessful divine intervention in the workings of a Comal County, Texas, jury, which was deliberating whether or not to convict Gloria Romero Perez of human trafficking.

After the jury reached a verdict, and rang the bell to signal its verdict, the trial judge, the Hon. Jack Robison, waltzed in and proclaimed that that God had told him that Perez was not guilty. According to jury foreperson Mark A. House, Judge Robison told them that he had prayed on the case and that God told him that he had to tell the jury. The state’s attorney was not present to object to the hearsay. House reported that the jury signaled again that it had reached a verdict, and again Judge Robison appeared to proclaim the defendant’s innocence.

Judge Robison’s pronouncements apparently anguished the jurors, some of who were “physically sick, crying and distraught” from the appearance of a putative prophet in the courthouse. Nonetheless, guilty is guilty, and the jury returned its verdict unmoved by Judge Robison. According to news reports, Judge Robison later apologized to the jury, but added something like “if God tells me to do something, I have to do it.” Zeke MacCormack, “Judge facing complaints over trying to sway jury,” San Antonio Express-News (Jan. 20, 2018); Ryan Autullo, “Texas judge interrupts jury, says God told him defendant is not guilty,” American-Statesman (Jan. 19, 2018). Foreperson House filed a complaint against Judge Robison with the judicial conduct commission, but told a local newspaper that “You’ve got to respect him for what he did. He went with his conscience.” Debra Cassens Weiss, “Judge informs jurors that God told him accused sex trafficker isn’t guilty,” A.B.A.J. online (Jan. 22, 2018).Or he was having a stroke. Somewhere, Henry Mencken is laughing and crying uncontrollably.

* * * * * * * * * * * *

For better or worse, I have not experienced divine intervention in my cases. At least, I think not. In one of my cases, the jury foreman and several jurors were in the elevator with my adversary and me, at the end of the trial. The situation was awkward, and punctuated by the foreman’s simple statement that God had directed them to their verdict. No one questioned the gentlemen. I thanked the jurors for their service, but I have never been able to verify the source of the direction or inspiration given to the jury. To this day, I prefer to believe the verdict resulted from my advocacy and marshaling of the evidence.

The case was Edward and Carmelita O’Donnell v. Celotex Corp., et al., Philadelphia County Court of Common Pleas, July Term 1982, No. 1619. My adversary was a very capable African American lawyer, Sandy L.V. Byrd, then of the Brookman, Rosenberg, Brown & Sandler firm in Philadelphia, now a sitting judge in Philadelphia County. As you will see, race was an important ingredient in this case, and perhaps the reason it was tried.

Sandy and I had pulled Judge Levan Gordon¹, for the trial, which was noteworthy because Judge Gordon was one of the few trial judges who stood up to the wishes of the coordinating judge (Hon. Sandra Mazer Moss) that all cases be tried “reverse bifurcated,” that is, with medical causation and damages in a first phase, and liability in the second phase.

This unnatural way of trying asbestos personal injury cases had been first advocated by counsel for Johns Manville, which had a huge market share, a distinctive lack of liability defenses, and a susceptibility to punitive damages. In May 1989, when Sandy and defense counsel announced “ready” before Judge Gordon, Johns Manville was in bankruptcy. Reverse bifurcated had long outlasted its usefulness, and had become a way of abridging defendants’ due process rights to a trial on liability. If a jury returned a verdict with damages in phase One, plaintiffs would argue (illegitimately but often with court approval) that it was bad enough that defendants caused their illness, how much worse is it now that they are arguing to take away their compensation.

Worse yet, in trying cases backwards, with reverse bifurcation, plaintiffs quickly learned that they could, in Phase One, sneak evidence of liability, or hint that the defendants were as liable as sin, and thus suggest that the odd procedure of skipping over liability was desirable because liability was well-nigh conceded. The plaintiffs’ direct examination typically went something like:

Q. How did you feel emotionally when you received your diagnosis of asbestos-related _[fill in the blank]____?

A. I was devastated; I cried; I was depressed. I had never heard that asbestos could cause this disease..…

So clearly there was a failure to warn, at least on that colloquy, and that was all juries needed to hear on the matter, from the plaintiffs’ perspective. If the defendants lost in the first phase, and refused to settle, juries were annoyed that they were being kept from their lives by recalcitrant, liable defendants. Liability was a done deal.

At the time, most of the asbestos case trials in Philadelphia were brought by government employees at the Philadelphia Naval Shipyard. The government was an extremely knowledgeable purchaser of asbestos-containing insulation products, and was as, or more, aware of the hazards of asbestos use than any vendor. At the time, 1989, the sophisticated intermediary defense was disallowed under Pennsylvania strict liability law, and so defendants rarely got a chance to deploy it.

In a case that went “all issues,” with negligence and even potential punitive damages, however, the sophisticated intermediary defense was valid under Pennsylvania law. Judge Gordon’s practice of trying all cases, all issues, opened the door to defending the case by showing that there was no failure to warn at all, because the Navy, at its shipyards, was knowledgeable about asbestos hazards. If plaintiff’s testimony were true about lack of protections, then the Navy itself had been grossly negligent in its maintenance and supervision of the shipyard workplace.

Before trial began, on May 8, 1989, the Brookman firm had signaled that the O’Donnell case was on track to settle in a dollar range that was typical for cases involving the age, medical condition, and work history of the plaintiff, Mr. O’Donnell. The settlement posture of the case changed, abruptly however, after jury selection. When the jury was sworn, we had 12 Philadelphians, 11 of whom were African American, and one of whom was Latina. When I asked Sandy whether we were settled at the number we had discussed the previous day, he looked at me and asked why he would want to settle now, with the jury we had. He now insisted that this trial must be tried. Racism works in curious ways and directions.

So we tried the O’Donnell case, the old-fashioned way, from front to back. Both sides called “state of the art” expert witnesses, to address the history of medical knowledge about asbestos-related diseases. We called product identification lay witnesses, as well as several physicians to testify about Mr. O’Donnell’s disputed asbestosis. The lovely thing about the O’Donnell trial, however, was that I had the opportunity to present testimony from the Philadelphia Navy Yard’s industrial hygienist, Dr. Victor Kindsvatter, who had given a deposition many years before. Kindsvatter, who had a Ph.D. in industrial hygiene, was extraordinarily knowledgeable about asbestos, permissible exposure limits, asbestos hazards, and methods of asbestos control on board ships and in the shops.

The result of Judge Gordon’s all issue trial was a fuller, fairer presentation of the case. Plaintiffs could argue that the defendants were horribly negligent given what experts knew in the medical community. Defendants could present evidence that experts at the relevant time believed that asbestos-containing insulation products could be used safely, and that the U.S. Navy was especially eager to use asbestos products on board ships, and had extensive regulations and procedures for doing so. The testimony that probably tipped the balance came from a former shipyard worker, George Rabuck. Mr. Rabuck had been a client of the Brookman firm, and he was their go-to guy to testify on product identification. In the O’Donnell case, as in many others, Rabuck dutifully and cheerfully identified the products of the non-settling defendants, and less cheerfully, the products of the settled and bankrupt defendants. In O’Donnell, I was able to elicit additional testimony from Mr. Rabuck about a shakedown cruise of a new Navy ship, in which someone had failed to insulate a hot line in the boiler room. When an oil valve broke, diesel fuel sprayed the room, and ignited upon hitting the uninsulated pipe. A ship fire ensued, in which several sailors were seriously injured and one died. In my closing argument, I was able to remind the jury of the sailor who died because asbestos insulation was not used on the Navy ship.

On May 18, 1989, the jury came back with a general verdict for the defense in O’Donnell. Judge Gordon entered judgment, from which there was no appeal. Ignoring the plaintiffs’ lawyers intransigence on settlement, Judge Moss was angry at the defense lawyers, as she typically was, for tying up one of her court rooms for Judge Gordon’s rotation in her trial program. Judge Moss stopped asking Judge Gordon to help with the asbestos docket after the O’Donnell case. Without all-issue trials that included negligence claims, sophisticated intermediary defenses went pretty much unexercised in asbestos personal injury cases for the next 25 years.

My real question though, in view of Texas Judge Robison’s epiphany, is whether the defense won in O’Donnell because of the equities and the evidence, or whether an angel had put her finger on the scales of justice. It’s a mystery.

1 Ryanne Persinger, “Levan Gordon, retired judge,” Tribune Staff (Oct. 6, 2016). Judge Gordon was one of the most respected judges in Philadelphia County. He had graduated from Lincoln University in 1958, and from Howard University School of Law in 1961. Gordon was elected to Philadelphia Municipal Court in 1974, and to the Court of Common Pleas in 1979. He died on October 4, 2016.

Posted in Asbestos, Historian Testimony, Learned and sophisticated intermediary | Comments Off on Divine Intervention in Litigation

Love that Hormesis to Pieces

October 12th, 2017

Hermann Joseph Muller was an American biologist who won the Nobel Prize in 1946, for Physiology or Medicine, for his work on fruit fly genetics. In his Nobel Prize speech, Muller opined that there was no threshold dose for radiation-induced mutagenesis. Muller’s speech became a locus of support for what later became known as the “linear no threshold” (LNT) theory of carcinogenesis.

Muller was an ardent eugenicist, although of the communist, not the Nazi, variety.¹ After 1932, Muller’s political enthusiasms took him to the Soviet Union, where Muller blithely ignored murderous purges and famines, in order to pursue his scientific interests for the greater glory of the Proletarian Dicatorship.² Muller became enamored of a People’s eugenics program. On May 5, 1936, Muller wrote to “Comrade Stalin,” “[a]s a scientist with confidence in the ultimate Bolshevik triumph throughout all possible spheres of human endeavor,” to offer the brutal dictator “a matter of vital importance arising out of my own science – biology, and, in particular, genetics.”³

Comrade Stalin was underwhelmed by Muller’s offer, and threw his lot in with Trofim Lysenko. A disheartened Muller managed to extricate himself from the Soviet fatherland, but not so much from its politics and ideology⁴. After returning to the United States, he remained active in noteworthy liberal and progressive political activities. Alas, he also seemed to remain a Communist fellow traveler, who found time to criticize only the Soviet embrace of Lysenkoism and its treatment of dissident geneticists (such as himself), with nary a mention of Ukrainian farmers, political dissidents, or the Soviet subjugation of eastern and central Europe.⁵

In retreating from his Soviet homeland, Muller did not abandon his eugenic vision for the United States. In 1966, Muller urged the immediate establishment of sperm banks for “outstanding men,” such as himself, to make deposits for use in artificial insemination⁶

**********************************

Back in a 1976, George E. P. Box outlined his notion that all models are wrong even though some may be useful⁷. The LNT model, as devised by Muller and embraced by regulatory agencies around the world, has long since lost its usefulness in describing and predicting biological phenomena. LNT is scientific in the sense that it is testable and falsifiable; LNT has been tested and falsified. Muller’s model ignores relevant biological processes of tolerance, defense, and adaptation⁸.

The resilience of the LNT seems to be due to the advocacy of scientists and regulators who find the simplistic LNT model to be useful in ensuring regulation of, and compensation for, low-dose exposures. The perpetual machine litigation created with asbestos comes to mind. Other “political scientists” come to mind as well. Theory and data are often in tension, but at the end of any debate, scientists are obligated to “save the phenomena.” Fortunately, there are scientists who are challenging the dominance of the LNT model, and who are pointing out where the model just does not fit the data⁹.

In the United States, Muller’s theories were subjected to some real-world tests. In May 1947, Muller warned of the possible evolution of evil monsters born to Japanese survivors of Hiroshima and Nagasaki, on the basis of his assessment that the atomic bombs had produced countless mutants. Later that year, however, Austin Brues, director of the Argonne National Laboraty, published his findings of children born to Hiroshima survivors, who had no more mutations than baseline expectation¹⁰.

Notwithstanding the shaky evidentiary foundations of Muller’s views, his prestige as a Nobel laureate encouraged the adoption and promotion of the LNT model by the National Academy of Sciences’ Biological Effects of Atomic Radiation (BEAR) I Genetics Panel. Edward J. Calabrese, a prominent toxicologist in the Department of Environmental Health Sciences, School of Public Health and Health Sciences, University of Massachusetts, has taken pains, on multiple occasions, to trace the genealogy of this error. His most recent, and most succinct effort, is a worthwhile read for policy makers, judges, and lawyers who want to understand the historical dimension of the LNT model¹¹. A fuller bibliography is set out as an appendix to this post.

1 Herman Joseph Muller, Out of the Night – a Biologist’s View of the Future (1935).

2 Elof Alex Carlson, Genes, Radiation, and Society: The Life and Work of H.J. Muller (1981).

3 John Glad, “Hermann J. Muller’s 1936 Letter to Stalin,” 43 The Mankind Quarterly 305 (2003).

4 See, e.g., Peter J. Kuznick, Beyond the Laboratory: Scientists as Political Activists in 1930’s America 121 (1987).

5 Hermann J. Muller, “The Crushing of Genetics in the USSR,” 4 Bull. Atomic Scientists 369 (1948). Some have attempted to protect Muller’s conduct by arguing that he testified before the House Un-American Activities Committee, where he was critical of Soviet restrictions on secondary education. See Thomas D. Clark, Indiana University: Midwestern Pioneer 310 (1977). Given Muller’s privileged position to observe first hand what had happened to Ukrainian farmers and others, this coming forward on Soviet education seems feeble indeed.

6 See “Sperm Banks Urged by Nobel Laureate,” N.Y. Times (Sept. 13, 1966).

7 See George E. P. Box, “Science and Statistics,” 71 J. Am. Stat. Ass’ 791 (1976); George E. P. Box, “Robustness in the strategy of scientific model building,” in R. L. Launer & G.N. Wilkinson, Robustness in Statistics at 201–236 (1979); George E. P. Box & Norman Draper, Empirical Model-Building and Response Surfaces at 74 (1987) (“Remember that all models are wrong; the practical question is how wrong do they have to be to not be useful.”).

8 See, e.g., Adam D. Thomas, Gareth J. S. Jenkins, Bernd Kaina, Owen G. Bodger, Karl-Heinz Tomaszowski, Paul D. Lewis, Shareen H. Doak, and George E. Johnson, “Influence of DNA Repair on Nonlinear Dose-Responses for Mutation,” 132 Toxicol. Sci. 87 (2013).

9 See, e.g., Bill Sacks & Jeffry A. Siegel, “Preserving the Anti-Scientific Linear No-Threshold Myth: Authority, Agnosticism, Transparency, and the Standard of Care,” 15 Dose-Response: An Internat’l J. 1 (2017); Charles L. Sanders, Radiobiology and Radiation Hormesis: New Evidence and its Implications for Medicine and Society (2017).

10 William Widder, “Probe Effects of Atom Bomb: Study Betrays No Evidence of Mutations,” Greensburg Daily News (Greensburg, Indiana) at 22 (Mon, Nov. 24, 1947).

11 Edward J.Calabrese, “The Mistaken Birth and Adoption of the LNT: An Abridged Version,” 15 Dose-Response: An Internat’l J. (2017).

Appendix

Edward J.Calabrese & Linda A. Baldwin, “Chemical hormesis: its historical foundations as a biological hypothesis,” 19 Human & Experimental Toxicol. 2 (2000)

Edward J. Calabrese and Linda A. Baldwin, “Hormesis: U-shaped dose responses and their centrality in toxicology,” 22 Trends Pharmacol. Sci. 285 (2001)

Edward J.Calabrese, “Hormesis: a revolution in toxicology, risk assessment and medicine: Re-framing the dose–response relationship,” 5 Eur. Mol. Bio. Org. Reports S37 (2004)

Edward J. Calabrese & Robyn Blain, “The occurrence of hormetic dose responses in the toxicological literature, the hormesis database: an overview,” 202 Toxicol. & Applied Pharmacol. 289 (2005);

Edward J. Calabrese, “Pain and U-shaped dose responses: occurrence, mechanisms and clinical Implications,” 38 Crit. Rev. Toxicol. 579 (2008)

Edward J. Calabrese, “Neuroscience and hormesis: overview and general findings,” 38 Crit. Rev. Toxicol. 249 (2008)

Edward J. Calabrese, “Linear No Threshold (LNT) – The New Homeopathy,” 31 Envt’l Toxicol. & Chem. 2723 (2012)

Edward J. Calabrese, “Muller’s Nobel Prize Lecture: When Ideology Prevailed over Science,” 126 Toxicol. Sci. 1 (2012)

Edward J. Calabrese, “How the U.S. National Academy of Sciences misled the world community on cancer risk assessment: new findings challenge historical foundations of the linear dose response, 87 Arch. Toxicol. 2063 (2013)

Edward J. Calabrese, “On the origins of the linear no-threshold (LNT) dogma by means of untruths, artful dodges and blind faith,” 142 Envt’l Research 432 (2015)

Edward J. Calabrese, “An abuse of risk assessment: how regulatory agencies improperly adopted LNT for cancer risk assessment,” 89 Arch. Toxicol. 647 (2015)

Edward J. Calabrese, “LNTgate: How scientific misconduct by the U.S. NAS led to governments adopting LNT for cancer risk assessment,” 148 Envt’l Research 535 148 (2016)

Edward J. Calabrese, “The threshold vs LNT showdown: Dose rate findings exposed flaws in the LNT model part 1. The Russell-Muller debate,” 154 Envt’l Res. 435 (2017)

Edward J. Calabrese, “The threshold vs LNT showdown: Dose rate findings exposed flaws in the LNT model part 2. How a mistake led BEIR I to adopt LNT,” 154 Envt’l Res. 452 (2017)

Posted in Causation, Historian Testimony, Scientific Evidence | Comments Off on Love that Hormesis to Pieces

David Rosner’s Document Repository

July 23rd, 2017

David Rosner and Gerald Markowitz are leftist labor and social historians in Columbia University and City University of New York, respectively. Both are frequently disclosed by plaintiffs’ counsel as expert witnesses on historical issues, and both often testify at asbestos and other personal injury trials¹. Markowitz has been excluded in at least one reliability challenge².

The two historians, who appear so often together on plaintiffs’ designations that they are sometime referred to as a unified persona, Rosnowitz, have create a website, “Project Toxicdocs,” supposedly in an alpha version³.

The Toxic Docs website does not identify Rosner and Markowitz by name as authors or sponsors, but the website’s content and goals bear their indelible stamp, as well as the concordance of their institutional affiliations of Columbia and CUNY. The website promises “[b]lazingly fast” searches and access to previously confidential, classified industry documents on “industrial poisons”:

“This dataset and website contain millions of pages of previously secret documents about toxic substances. They include secret internal memoranda, emails, slides, board minutes, unpublished scientific studies, and expert witness reports — among other kinds of documents — that emerged in recent toxic tort litigation.

Over the next couple years, we’ll be constantly adding material from lawsuits involving lead, asbestos, silica, and PCBs, among other dangerous substances. Innovations in parallel and cloud computing have made conversion of these documents into machine-readable, searchable text a far faster process than would have been the case just a decade ago.”

Similar efforts have been put into place for documents collected in tobacco and other litigations⁴. David Egilman, another regular testifier for the Lawsuit Industry once maintained a website with a large library of documents he relied upon for his ethics and state-of-the-art opinion testimony in various litigations.

A trial run through the “dataset” for the search term “silicosis” turned up 44 documents, most of which had nothing to do with silica or silicosis, and many of which were duplicates. Remarkably, there were no documents from government or labor unions.

We are sure that these historian expert witnesses will improve their efforts to be comprehensive and balanced, with practice.

1 See, e.g., Garcia v. Lone Star Indus., Case No. D-149, 527, 1997 WL 34904089 (Dist. Ct. Tex., Jefferson Cty., 1997) (identifying Rosner and Markowitz as testifying expert witnesses for plaintiff); City of Milwaukee v NL Industries, Inc., Circuit Ct., Milwaukee Cty., Wisc., 2007 WL 4676349 (Jan. 16, 2007) (referencing litigation report of Rosner and Markowitz); Gibson v. American Cyanamid Co., 719 F. Supp. 2d 1031, 1048 (E.D. Wis. 2010) (noting Rosner and Markowitz’s declaration for plaintiffs); Rhode Island v. Lead Industries Ass’n, C.A. No. PC 99-5226, Rhode Island Superior Court, Providence (Feb. 26, 2007) (discussing Rosner and Markowitz’s testimony on post-verdict motions); Altria Group, Inc. v. Good, No. 07-562, U.S. Sup. Ct., Amicus Brief of Allan M. Brandt, Robert N. Proctor, David M. Burns, Jonathan M. Samet, and David Rosner (June 18, 2008) (all amici except Rosner disclosed their litigation activities); Burton v. American Cyanamid Co., 775 F. Supp. 2d 1093 (E.D. Wis. 2011) (noting Rosner and Markowitz’s testimony in lead pigment case); California v. Atlantic Richfield Co., Santa Clara Super. Ct., Calif., No. 1-00-CV-788657, 2013 WL 4425657 (July 15, 2013) (noting Rosner’s testimony); Ostenrieder v. Rohm & Haas Co., Phila. Ct. C.P. Case No. 150602485, Motion in Limine to Exclude Testimony of Gerald Markowitz and David Rosner (filed by Rohm & Haas Co., subsidiary of Dow Chemical Co., June 18, 2015); Dumas v. ABB Group, Inc., civ. action no. 13-229-SLR-SRF (D. Del. Sept. 30, 2015) (referencing Rosner’s report for plaintiffs); Assenzio v. A.O. Smith Water Prods. Co., docket nos. 190008/12, 190026/12, 190200/12, 190183/12, 190184/12, NY Sup. Ct., NY Cty. (Feb. 5, 2015) (noting that Rosner testified for plaintiffs); Noll v American Biltrite, Inc., 188 Wash. App. 572, 355 P.3d 279 (Wash. Ct. App. June 29, 2015), aff’d, 355 P.3d 279 (Wash. 2015) (deposition of Gerald Markowitz given on behalf of plaintiff); Schwartz v. Honeywell Internat’l, Inc., 66 N.E.3d 118 (Ohio Ct. App. 2016) (same), app. granted, 148 Ohio St. 3d 1442, 72 N.E.3d 656 (2017); Clair v. Monsanto Co., 412 S.W.3d 295 (Mo. App. 2013) (noting Rosner as plaintiff’s expert witness); New v. Borg-Warner Corp., No. 13-cv-00675, 2015 WL 5166946 (W.D. Mo., Sept. 3, 2015) (identifying Rosner and Markowitz as plaintiff’s expert witnesses); Begin v. Air & Liquid Corp., Case No. 3:15-cv-830-SMY-DGW (S.D. Ill. May 10, 2016) (striking designation of plaintiff’s expert witness David Rosner as untimely in asbestos case); Rost v. Ford Motor Co., 151 A.3d 1032 (Pa. 2016) (noting Rosner and Markowitz as amici authors; no disclosure of litigation income); Dominick v. A.O. Smith Water Products, CA2014-000232, NY Sup. Ct., Oneida Cty., Notes of Testimony of David Rosner, Mar. 18, 2017 (Press Release from Plaintiffs’ law firm).

2 Quester v. B.F. Goodrich Co., Cuyahoga Cty., Ohio, C.P. Case No. 30-509539 (Jan. 12, 2008) (excluding Markowitz’s testimony as impermissible attempt to introduce expert witness opinion on defendants’ intent and motive).

3 Presumably an alpha version is one that has not made it to beta.

4 See “Truth Tobacco Industry Documents,” and “Tobacco Archives.”

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