Schachtman Law » Historian Testimony

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

Succès de scandale – With Thanks to Rosner & Markowitz

March 26th, 2017

“for there is only one thing in the world worse than being talked about, and that is not being talked about.”

Oscar Wilde, The Picture of Dorian Gray (1890)

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Some years ago, I co-chaired a Mealey’s conference on silicosis litigation. When plaintiffs’ counsel participate in such events, they are usually trolling for business, and jockeying for position on litigation steering committees. Ethical defense counsel are looking to put themselves out of business. My goal at the conference was to show that there was no there, there, so don’t go there. Mostly, the history of the litigation has proven me correct. In the early years of the 21^st century, there were well over 10,000 cases pending. Now, there are just a hand full of pending cases. Very little money has been given to plaintiffs’ counsel; almost no sand companies have gone bankrupt.

At that Mealey’s conference, I presented a paper, which I later allowed Mealey’s to publish in its Silica Reporter. The paper became something of a “succès de scandale,” at least in getting under the skin of the Marxist historians, David Rosner and Gerald Markowitz, whom I took to task. In at least four of their publications, they have attempted unsuccessfully to rebut my arguments, and to criticize me for making them.¹ At a meeting of the Committee on Science, Technology and the Law, of the National Academies of Science, I found myself presenting alongside Markowitz, on access to underlying study data. Markowitz played the victim of legal counsel’s subpoenas to his publisher for peer review comments in vinyl chloride, which grew out of his participation in the vinyl chloride litigation as an expert witness.²

I was on the panel for having served a subpoena upon Dr. Brad Racette for the underlying data of a study of parkinsonism in welders, with support in the form of the financial largesse of felon Richard Scruggs. Rosner was at this meeting only as a spectator, but he did not miss the opportunity, at a break, to get in my face, with the obvious intent of bullying me, with warnings that I would regret having ever written about them.

Back in 2007, the lawsuit-industry funded SKAPP conducted a conference, at which Rosner presented. I was not present, but a friend wrote me later, “Boy, does Rosner not like you. You steal a puppy from him or something?” When I presented at the Fourth International Conference on the History of Occupational and Environmental Health, in 2010, Rosner repeated his Middlebury behavior. As soon as I finished my talk, he rushed for the microphone and filibustered the entire question and answer period.³ I would chalk this up to fascisti of the left, except the very nice socialist historian who chaired my panel apologized profusely afterwards.

In a revised edition of one of their historical potboilers, Rosner and Markowitz repeated their calumny:

“It was not just the lead and chemical industries that saw our book and the evidence we presented as a threat. Nathan Schachtman, an attorney with the Philadelphia-based firm McCarter & English, and who defended companies sued for ‘exposures to allegedly toxic substances, including asbestos, benzene, cobalt isocyanates, silica and solvents’, also published an attack on us in Mealey’s Litigation Report: Silica, titled, ‘On Deadly Dust and Histrionic Historians’. In his attack on our earlier book, Deadly Dust, a history of the devastating lung disease silicosis, he accused us of writing a ‘jeremiad’ that ‘resonates to the passions and prejudices of the last century’. He took us to task for our ‘prejudice’ that ‘silicosis results from the valuation of profits over people’ and admonished us to point out the higher rates of silicosis in Communist countries. ‘They [the authors] fairly consistently excuse or justify the actions of labor… . They excoriate the motives and actions of industry’. But Schachtman’s true agenda emerged in the middle of his third paragraph. ‘We could safely leave the fate of Rosner’s and Markowitz’s historical scholarship to their community of academicians and historians if not for one discomforting fact,’ he wrote. ‘The views of Rosner and Markowitz have become part of the passion play that we call silicosis litigation.’¹⁶

Schachtman seemed to be saying that as long as academics speak only to one another and had no influence beyond academia, they can be tolerated. But once they begin to affect that wider world, they need to be put back in their place. All this despite the fact that, at the time of Schachtman’s piece, more than a decade after the publication of Deadly Dust in 1991, each of us had appeared on the stand in only one case.”⁴

Rosner and Markowitz get virtually everything wrong, but one factoid may have been true. As of 1991, Rosner and Markowitz had perhaps only “appeared on the stand in only one case,” but by the time I wrote the article in 2005, the Marxist duo had been listed as expert witnesses in hundreds, if not thousands, of cases. The language quoted above appeared in an “Epilogue” to a 2013 publication, by which time Rosner and Markowitz each had testified over a dozen times, as professional historian “arguers.” Only Markowitz testified in vinyl chloride cases, from what I can make out, but the two of them testified in many silica, asbestos, and lead cases by the time they published their Epilogue.

One obvious point is that Rosner and Markowitz are both rather disingenuous in portraying themselves as innocent academics without connections to the lawsuit industry. In their world, they seek victim status to hide their long-standing partisanship in litigation issues. The real point, however, is that Rosner and Markowitz have never rebutted my arguments that silicosis was worse for workers in East Germany, the Soviet Union, Maoist China, under communist rule than it was in the post-1935 era in the United States. Unlike the rising incidence of asbestosis, the incidence of silicosis in the United States has steadily and significantly declined after World War II. Indeed, the Centers for Disease Control has held up the control of silicosis as one of the ten great public achievements in 20^th century United States.⁵ See “Ramazzini Serves Courtroom Silica Science Al Dente” (July 25, 2015) (showing CDC data on declining silicosis incidence in the United States, against the rising trend in asbestosis incidence).

1 To date I have found four articles that dwell on the issue. 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).

2 Markowitz was excluded in at least one 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 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).

4 Gerald Markowitz and David Rosner, Deceit and Denial: The Deadly Politics of Industrial Pollution at 313-14 (U. Calif. rev. ed. 2013). Footnote 16 was a reference to 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). Their language quoted above was largely self-plagiarized from Gerald Markowitz and David Rosner, “The Historians of Industry” (Nov. – Dec. 2010).

5 CDC, “Ten Great Public Health Achievements — United States, 1900-1999,” 48 Morbidity & Mortality Weekly Report 241 (April 02, 1999).

Posted in Conflicts of Interest, Historian Testimony, Silica | Comments Off on Succès de scandale – With Thanks to Rosner & Markowitz

Art Historian Expert Testimony

August 15th, 2016

Art appraisal and authentication is sometimes held out as a non-technical and non-scientific area of expertise, and as such, not subject to rigorous testing.[1] But to what extent is this simply excuse mongering for an immature field of study? The law has seen way too much of this sort of rationalization in criminal forensic studies.[2] If an entire field of learning suffers from unreliability because of its reliance upon subjective methodologies, lack of rigor, inability or unwillingness to use measurements, failure to eliminate biases through blinding, and the like, then do expert witnesses in this field receive a “pass” under Rule 702, simply because they are doing reasonably well compared with their professional colleagues?

In the movie Who the Fuck is Jackson Pollack, the late Thomas Hoving was interviewed about the authenticity of a painting claimed to have been “painted” by Jackson Pollack. Hoving “authoritatively,” and with his typical flamboyance, averred that the disputed painting was not a Pollack because the work “did not sing to me like a Pollack.” Hoving did not, however, attempt to record the notes he heard; nor did Hoving speak to what key Pollack usually painted in.

In a recent case of defamation and tortious interference with prospective business benefit, a plaintiff sued over the disparagement of a painting’s authenticity and provenance. As a result of the defendants’ statements that the painting at issue was not created by Peter M. Doig, auction houses refused to sell the painting held by plaintiff. In litigation, the plaintiff proffered an expert witness who opined that the painting was, in fact, created by Doig. The defendants challenged plaintiff’s expert witness as not reliable or relevant under Federal Rule of Evidence 702. Fletcher v. Doig, 13 C 3270, 2016 U.S. Dist. LEXIS 95081 (N.D. Ill. July 21, 2016).

Peter Bartlow, the plaintiff’s expert witness on authenticity, was short on academic credentials. He had gone to college, and finished only one year of graduate study in art history. Bartlow did, however, have 40 years in experience in appraisal and authentication. Fletcher, at *3-4. Beyond qualifications, the defendants complained that Bartlow’s method was

(1) invented for the case,

(2) was too “generic” to establish authenticity, and

(3) failed to show that any claimed generic feature was unique to the work of the artist in question, Peter M. Doig.

The trial court rebuffed this challenge by noting that Peter Bartlow did not have to be an expert specifically in Doig’s work. Fletcher at *7. Similarly, the trial court rejected the defendants’ suggestion that the disputed work must exhibit “unique” features of Doig’s ouevre. Bartlow had made a legally sufficient case for his opinions based upon a qualitative analysis of 45 acknowledged works, using specific qualitative features of 11 known works. Id. At *10. Specifically, Bartlow compared types of paint, similarities in styles, shapes and positioning, and “repeated lineatures” by superimposing lines from known paintings to the questioned ones. Id. With respect to the last of these approaches, the trial court found that Bartlow’s explanation that the approach of superimposing lines to show similarity was simply a refinement of methods commonly used by art appraisers.

By comparison with Thomas Hoving’s subjective auditory methodology, as explained in Who the Fuck, Bartlow’s approach was positively brilliant, even if the challenged methodologies left much to be desired. For instance, Bartlow compared one disputed painting with 45 or so paintings of accepted provenance. No one tested Bartlow’s ability, blinded to provenance, to identify true and false positives of Doig paintings. See “The Eleventh Circuit Confuses Adversarial and Methodological Bias, Manifestly Erroneously” (June 6, 2015); see generally Christopher Robertson & Aaron Kesselheim, Blinding as a Solution to Bias: Strengthening Biomedical Science, Forensic Science, and Law (2016).

Interestingly, the Rule 702 challenges in Fletcher were in a case slated to be tried by the bench. The trial court thus toasted the chestnut that trial courts have even greater latitude in admitting expert witness opinion testimony in bench trials, in which “the usual concerns of [Rule 702] – keeping unreliable testimony from the jury – are not present.” Fletcher at *3 (citing Metavante Corp. v. Emigrants Savings Bank, 619 F.3d 648, 670 (7th Cir. 2010)). Citing Seventh Circuit precedent, the trial court, in Fletcher, asserted that the need to rule on admissibility before trial was lessened in a bench trial. Id. (citing In re Salem, 465 F.3d 767, 777 (7th Cir. 2006)). The courts that have taken this position have generally failed to explain why the standard for granting or denying a Rule 702 challenge should be different in a bench trial. Clearly, a bench trial can be just as much a waste of time, money, and energy as a jury trial. Even more clearly, judges can be, and are, snookered by misleading expert witness opinions, and they are also susceptible to their own cognitive biases and the false allure of unreliable opinion testimony, built upon invalid inferences. Men and women do not necessarily see more clearly when wearing black robes, but they can achieve some measure of objectivity by explaining and justifying their gatekeeping opinions in writing, subject to public review, comment, and criticism.

[1] See, e.g. Lees v. Carthage College, 714 F.3d 516, 525 (7^th Cir. 2013) (holding that an expert witness’s testimony on premises security involved non-scientific expertise and knowledge that did “not easily admit of rigorous testing and replication”).

[2] See, e.g., National Academies of Science, Strengthening Forensic Science in the United States: A Path Forward (2009).

Posted in Cognitive Biases, Expert Witnesses, Historian Testimony, Rule 702 | Comments Off on Art Historian Expert Testimony

Lawyers as Historians

February 2nd, 2016

“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

The negligence standard does not require omniscience by the defendant; rather, in products liability law, the manufacturer is expected to know what experts in the relevant field know, at the time of making and marketing the allegedly offending product. In long-tail litigation, involving harms that occur, if at all, only after a long latency period, the inquiry thus become an historical one, sometimes reaching back decades. Combine this aspect of products liability law, with the propensity of plaintiffs to ascribe long-standing, often fantastic, secret conspiracies and cabals to manufacturers, the historical aspect of many products cases becomes essential. The law leaves much uncertainty about how litigants are supposed to deal with uncertainty among experts at the relevant point in time. Plaintiffs typically find one or a few experts who were “out there,” at the time of the marketing, with good intuitions, but poor evidentiary bases, in asserting a causal connection. Defendants may take the opposite tack, but the important point is that the standard is epistemic and the Gettier problem[1] seriously afflicts most discussions in the legal state-of-art defenses.

Scott Kozak in a recent article calls attention to the exercised writings of David Rosner and Gerald Markowitz, who attempt to privilege their for-pay, for-plaintiffs, testimonial adventures, while deprecating similar work by defense expert witnesses and defense counsel.[2] Kozak’s article is a helpful reminder of how Markowitz and Rosner misunderstand and misrepresent the role of lawyers, while aggressively marketing their Marxist historiography in service of the Litigation Industry. Although Rosnowitz’s approach has been debunked on many occasions,[3] their biases and errors remain important, especially given how frequently they have showed up as highly partisan, paid expert witnesses in litigation. As I have noted on many occasions, historians can play an important scholarly role in identifying sources, connections, and interpretations of evidence, but the work of drawing and arguing those inferences in court, belongs to lawyers, who are subject to rules of procedure, evidence, and ethics.

Of course, lawyers, using the same set of skills of factual research and analysis as historians, have made important contributions to historical scholarship. A recent article[4] in the Wall Street Journal pointed out the historical contributions made by William Henry Herndon, Abraham Lincoln’s law partner, to our understanding of the Lincoln presidency.[5] The example could be multiplied.

Recently, I set out to research some issues in my own family history, surrounding its immigration and adjustment to life in the United States. I found some interesting points of corroboration between the oral and the documentary history, but what was most remarkable was what omitted from the oral history, and rediscovered among ancient documents. The information omitted could have been by accident or by design. The embarrassing, the scandalous, the unpleasant, the mistakes, and the inane seem destined to be forgotten or suppressed, and thus left out of the narrative. The passage of time cloaked past events in a shroud of mystery. And then there was false memory and inaccurate recall. The Rashomon effect is in full bloom in family histories, as are all the cognitive biases, and unwarranted exceptionalist propaganda.

From all this, you might think that family histories are as intellectually corrupt and barren as national histories. Perhaps, but there is some documentary evidence that is likely to be mostly correct. Sometimes the documents even corroborate the oral history. Every fact documented, however, raises multiple new questions. Often, we are left with the black box of our ancestors’ motivation and intent, even when we can establish some basic historical facts.

In conducting this bit of family research, I was delighted to learn that there are standards for what constitutes reasonably supportable conclusions in family histories. The elements of the “genealogical proof standard,” set out in various places,[6] are generally regarded as consisting of:

reasonably exhaustive search
complete and accurate citation to sources
analysis and correlation of collected information
resolution of conflicting evidence
soundly reasoned, coherently written conclusion

If only all historians abided by this standard! There are standards for professional conduct of historians,[7] but curiously they are not as demanding as what the genealogical community has accepted as guiding and governing genealogical research. The Genealogy Standards is worth consulting as a set of methodological principles that historians of all stripes should be heeding, and should be excluded from courtroom when disregarded.

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

[2] Scott Kozak, “Use and Abuse of ‘Historical Experts’ in Toxic Tort Cases,” in Toxic & Hazardous Substances Litigation (March 2015), available at < >.

[3] For a sampling of Rosnowitz decontruction, see “Counter Narratives for Hire”; “Historians Noir”; “Too Many Narratives – Historians in the Dock”; “Courting Clio: Historians Under Oath – Part 2”; “Courting Clio: Historians Under Oath – Part 1”; “Courting Clio: Historians and Their Testimony in Products Liability Litigation”; “How testifying historians are like lawn-mowing dogs” (May 2010); “What Happens When Historians Have Bad Memories”; “Narratives & Historians for Hire”; “A Walk on the Wild Side” (July 16, 2010).”

[4] David S. Reynolds, “Abraham Lincoln and Friends,” Wall St. J. (Jan. 29, 2016).

[5] Douglas L. Wilson & Rodney O. Davis, eds., Herndon on Lincoln: Letters (2016).

[6] See generally Board for Certification of Genealogists, Genealogy Standards (50th Anniversary ed. 2014).

[7] See, e.g., American Historical Ass’n, Statement on Standards of Professional Conduct, 2005 Edition, available at <http://www.historians.org/pubs/Free/ProfessionalStandards.cfm> (last revised January 2011). For histories that live up to high standards, see Annette Gordon-Reed, The Hemingses of Monticello: An American Family (2009); Timothy Snyder, Black Earth: The Holocaust as History and Warning (2015). But see David Rosner & Gerald Markowitz, Deadly Dust: Silicosis and the On-Going Struggle to Protect Workers’ Health (2006).

Posted in Expert Witnesses, Historian Testimony, Rule 702 | Comments Off on Lawyers as Historians

Putting the Liability Spotlight on Employers

November 30th, 2015

In 2013, the Pennsylvania Supreme Court held that employers could be directly liable to employees for injuries that become manifest outside the time limits (300 weeks) of the Commonwealth’s workman’s compensation statute. Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013). The implications for so-called long latency, toxic tort claims were obvious, and the generated some commentary. See “Pennsylvania Workers Regain Their Right of Action in Tort against Employers for Latent Occupational Diseases” (Feb. 14, 2014); “The Erosion of Employer Immunity in Tort Litigation” (Jan. 20, 2015).

The Legal Intelligencer has now reported the first “cashing in” or “cashing out” on the change in Pennsylvania law. Plaintiff’s lawyer, Benjamin Shein, took an employer to trial on claims that the employer was responsible for alleged asbestos exposure that caused John F. Busbey to develop mesothelioma. Bobbie R. Bailey of Leader & Berkon, in Los Angeles, defended. The case was tried before Philadelphia Judge Lisette Shirdan-Harris and a jury. After a three week trial, on November 10, the jury returned a verdict in favor of plaintiff, against the employer defendant, in the amount of 1.7 million dollars. Busbey v. ESAB Group, Phila. Court of Common Pleas, No. 120503046. Max Mitchell, “Employer Found Liable In Asbestos Verdict: Busbey v. ESAB Group $1.7 Million Verdict,” The Legal Intelligencer (Dec. 1, 2015).

For witnesses, Shein called frequent litigation-industry testifiers, Dr. Steven Markowitz on occupational disease, and Dr. Daniel Dupont, a local pulmonary physician. Shein also called one of the pink panther historians, Gerald Markowitz. See “Narratives & Historians for Hire” (Dec. 15, 2010). The employer defendant called an industrial hygienist, Delno D. Malzahn.

According Ben Shein, the verdict represented the first trial win in Pennsylvania for an asbestos claim against an employer, since the Pennsylvania Supreme Court decided Tooey in 2013. From the Legal Intelligencer’s account, and the line-up of litigation industry witnesses, the plaintiff’s trial evidence on exposure and standard of care seems shaky, and the winner may not be discernible until the appellate review is concluded.

In Illinois, an intermediate appellate court held out the prospect of a legal change similar to Tooey. In 2014, the Illinois Court of Appeals held that workman compensation petitioners, whose claims fell outside the Illinois statute were not barred by the exclusive remedy provisions that gave employers immunity from civil suit. Folta v. Ferro Engineering, 2014 IL App (1st) 123219. See Patrick W. Stufflebeam, “Folta v. Ferro Engineering: A Shift in Illinois Workers’ Compensation Protection for Illinois Employers in Asbestos Cases,” News & Press: IDC Quarterly (Mar. 11, 2015).

The Illinois Supreme Court allowed an appeal, as well as extensive amicus briefings from the Illinois Trial Lawyers Association, the Asbestos Disease Awareness Organization, the Illinois AFL-CIO, the Illinois Self-Insurers’ Association, the Illinois Defense Trial Counsel, a joint brief from insurers,[1] and a joint brief from various manufacturing companies.[2]

Earlier this month, the Illinois Supreme Court reversed and held that even though claims fell outside the Illinois workman’s compensation statute, those claims were still barred by the Act’s exclusive remedy provisions that gave employers immunity from civil suit. Folta v. Ferro Engineering, 2015 IL 118070 (November 4, 2015).

[1] the American Insurance Association, Property Casualty Insurers Association of America, and the Travelers Indemnity Company.

[2] Caterpillar Inc., Aurora Pump Company, Innophos, Inc., Rockwell Automation, Inc., United States Steel Corporation, F.H. Leinweber Company, Inc., Driv-Lok, Inc., Ford Motor Company, and ExxonMobil Oil Corporation.

Posted in Asbestos, Historian Testimony, Learned and sophisticated intermediary, Sophisticated User | Comments Off on Putting the Liability Spotlight on Employers

Hagiography of Selikoff

September 26th, 2015

The October 2015, Volume 58, Issue 10, is a “Special Issue” of the American Journal of Industrial Medicine dedicated to “Historical Perspectives,” of Selikoff. No serious historian need have applied; the collection consists of short articles by adulatory former students, and from the voice of Big Labor’s heavy hand on medical research, Sheldon Samuels. Still, students of the Selikoff phenomenon might find the ramblings of “The Lobby” revealing of its preoccupations and prejudices.

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Henry A. Anderson, “Reflections on the legacy of Irving J. Selikoff, MD, on the 100th anniversary of his birth,” 58 Am. J. Indus. Med. 1013 (2015)

Philip J. Landrigan, “Irving J. Selikoff, MD January 15, 1915–May 20, 1992,” 58 Am. J. Indus. Med. 1015 (2015)

Albert Miller, “From the clinic to the field: Joint pulmonary medicine—environmental sciences laboratory investigations, 1973–1992 and beyond,” 58 Am. J. Indus. Med. 1017 (2015)

Morris Greenberg, “In commemoration of Irving J. Selikoff,” 58 Am. J. Indus. Med. 1025 (2015)

Sheldon Samuels, “The rise of a Titan: Irving J. Selikoff and his campaign for independent science,” 58 Am. J. Indus. Med. 1028 (2015)

Irving J. Selikoff MD, photographs (pages 1021–1024)

Posted in Asbestos, Historian Testimony | Comments Off on Hagiography of Selikoff

The Unreasonable Success of Asbestos Litigation

July 25th, 2015

In asbestos litigation, the plaintiffs’ bar has apparently invented a perpetual motion machine that feeds on outrage that will never run out. Still, lawyers who have not filled their wallets with legal fees from asbestos cases sometimes attempt to replicate the machine. For the most part, the imitators have failed.

What accounts for the unreasonable success of asbestos litigation? Unlike pharmaceutical litigation, exposure does not require a prescription. Although asbestos insulators and applicators experienced the most exposure, other trades and occupations worked with, or near, asbestos materials. Anecdotal testimony of exposure suffices in almost every case. Add para-occupational exposure, and the sky’s the limit for the class of potential plaintiffs. 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).

Then there is the range of diseases and disorders attributable to asbestos. Excessive exposure to asbestos minerals cause non-malignant pleural plaques and thickening, as well as lung fibrosis, asbestosis. Some asbestos minerals cause mesothelioma, and despite a differential in potency among some of the minerals (between amosite and crocidolite), the general and specific causation of mesothelioma is often uncontested. Furthermore, lung cancer in the presence of asbestosis may be the result of interaction of asbestos exposure and cigarette smoking. Plaintiffs’ counsel and The Lobby have expanded the list of attributable diseases to include non-pulmonary cancers, only to find some defendants willing to pay money on these claims as well.

In addition to the ease of claiming, or manufacturing, exposure, and the willing cooperation of the occupational medical community in supporting medical causation, asbestos litigation is a lightning rod for moral outrage in the courtroom. Plaintiffs claim that “industry” knew about the hazards of asbestos, including its carcinogenicity, long before warnings appeared. Defending the knowledge claim requires nuanced explanation of shifting standards for establishing causality as epidemiology developed and was applied to putative asbestos-related cancer outcomes, as well as changing views about the latencies of asbestos-related diseases.

Every once in a while, plaintiffs’ and defense counsel[1], the media[2], the academy[3], and the insurance industry[4] ask whether “silica” is the next asbestos. Although the prospects have been, and remain, dim, plaintiffs’ counsel continue to try to build their litigation palace on sand, with predictably poor results. See Kimberley A. Strassel, “He Fought the Tort Bar — and Won,” Wall St. J. (May 4, 2009).

There are many serious disanalogies between asbestos and silica litigation. One glaring difference is the inability to summon any outrage over suppressed or nondisclosed knowledge of alleged silica cancer hazards. The silica cancer state of the art, written by those who are lionized in the asbestos litigation – Hueper, Schepers, and Hardy, along with NIOSH and the Surgeon General, all appropriately denied or doubted silica as a cause of lung cancer. See below. When the IARC shifted its views in the 1990s, under the weight of determined advocacy from some partisans in the occupational medicine community, and with the help from some rather biased reviews, industry promptly warned regardless of the lack of scientific support for the IARC’s conclusion. The manufacturing of faux consensus and certainty on silica and lung cancer is an important counter to the incessant media stories about the manufacturing of doubt on topics such as climate change.

[1] Robert D. Chesler, James Stewart, and Geoffrey T. Gibson, “Is Silica the Next Asbestos?” 176 N.J.L.J. 1 (June 28, 2004); Mark S. Raffman, “Where Will Silica Litigation Go?” 1 LJN Silica Legal News 1 (2005); Chris Michael Temple, “A Case for Why Silica Litigation Is Not the ‘Next Asbestos’,” LJN Product Liability Law & Strategy (2004).

[2] Jonathan D. Glater, “Suits on Silica Being Compared To Asbestos Cases,” N.Y. Times (Sept. 6, 2003).

[3] Michelle J. White, “Mass Tort Litigation: Asbestos,” in Jürgen Georg Backhaus, ed., Encyclopedia of Law and Economics 1 (2014); Melissa Shapiro, “Is Silica the Next Asbestos? An Analysis of the Silica Litigation and the Sudden Resurgence of Silica Lawsuit Filings,” 32 Pepperdine L. Rev. 4 (2005).

[4] “Is silica the new asbestos?” The Actuary (2005).

Historical Statements – – State-of-the-Art

Maxcy, ed., Rosenau Preventive Medicine and Hygiene 1051 (N.Y., 7th ed. 1951) (“Thus, there is no evidence that lung cancer is related in any way to silicosis.”)

May Mayers, “Industrial Cancer of the Lungs,” 4 Compensation Medicine 11, 12 (1952) (“Nevertheless, silicosis is not, apparently associated with, or productive of, lung cancer, whereas asbestosis very probably is.”) (Chief, Medical Unit, Division of Industrial Hygiene and Safety Standards, N.Y. Dep’t of Labor)

Geritt Schepers, “Occupational Chest Diseases,” Chap. 33, p. 455, ¶3, in A. Fleming, et al., eds., Modern Occupational Medicine (Phila. 2d ed. 1960) (“Lung cancer, of course, occurs in silicotics and is on the increase. Thus far, however, statistical studies have failed to reveal a relatively enhanced incidence of pulmonary neoplasia in silicotic subjects.”)

Spencer, Pathology of the Lung (1962) (“Silicosis and lung cancer inhaled silica, unlike asbestos, does not predispose to the development of lung cancer.”)

Wilhelm Hueper, Occupational and Environmental Cancers of the Respiratory System at 2-6 (N.Y. 1966) (“The bulk of the available epidemiologic evidence on the association of silicosis and lung cancer supports the view of a mere coincidental role of silicosis in this combination. *** From the evidence on hand, it appears that a well advanced silicosis does not seem to furnish a favorable soil for the development of cancer of the lung.”) (chief of the National Cancer Institute)

Harriet L. Hardy, “Current Concepts of Occupational Lung Disease of Interest to the Radiologist,” 2 Sem. Roentgenology 225, 231-32 (1967) (“cancer of the lung is not a risk for the silicotic. It is a serious risk following asbestos exposure and for hematite, feldspar, and uranium miners. This means that certain dusts and ionizing radiation alone or perhaps with cigarette smoke act as carcinogens.”)

Raymond Parkes, Occupational Lung Disorders 192 (London 1974) (“Bronchial carcinoma occasionally occurs in silicotic lungs but there is no evidence of a causal relationship between it and silicosis; indeed the incidence of lung cancer in miners with silicosis is significantly lower than in non-silicotic males.”)

Kaye Kilburn, Ruth Lilis, Edwin Holstein, “Silicosis,” in Maxcy-Rosenau, Public Health and Preventive Medicine, 11th ed., at 606 (N.Y. 1980) (“Lung cancer is apparently not a complication of silicosis.”)

Robert Jones, “Silicosis,” Chap. 16, in W. Rom, et al., eds., Environmental and Occupational Medicine 205 (Boston 1983) (“The weight of epidemiologic evidence is against the proposition that silicosis carries an increased risk of respiratory malignancy.”)

W. Keith C. Morgan & Anthony Seaton, eds., Occupational Lung Diseases 266 (1984) (“It is generally believed that silicosis does not predispose to lung cancer. * * * On balance, it seems unlikely that silicosis itself predisposes to lung cancer.”)

1 Anderson’s Pathology at 910b (1985) (“There is no evidence that silica increases the risk of lung cancer, nor does it enhance tobacco induced carcinogenesis.”)

U.S. Dep’t of Health and Human Services, The Health Consequences of Smoking – Cancer and Chronic Lung Disease in the Workplace: A Report of the Surgeon General at 348, Chapter 8 “Silica‑Exposed Workers” (1985) (“the evidence does not currently establish whether silica exposure increases the risk of developing lung cancer in men.”)

J. Cotes & J. Steel, Work-Related Lung Disorders 156 (Oxford 1987) (“The inhalation of silica dust does not contribute to malignancy.”)

NIOSH Silicosis and Silicate Disease Committee, “Diseases Associated With Exposure to Silica and Non-fibrous Silicate Minerals,” 112 Arch. Path. & Lab. Med. 673, 707 (1988) (“Epidemiologic studies have been conducted in an effort to assess the role of silica exposure in the pathogenesis of lung cancer. *** Thus, the results are inconclusive … .”)

Arthur Frank, “Epidemiology of Lung Cancer, in J. Roth, et al., Thoracic Oncology, Chap. 2, at p. 8 (Table 2-1), 11 (Phila. 1989) (omitting silica from list of lung carcinogens) (“The question of the relationship of coal mining to the development of lung cancer has been frequently considered. Most evidence points to cigarette smoking among coal miners as the major causative factor in the development of lung cancer, and neither a recent84 nor a British study of lung cancer among coal miners has found any relationship to occupational exposure.”)

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“Secret Histories” in Litigation

July 14th, 2015

A recent, special issue of The Public Historian, published by the University of California Press on behalf of the National Council on Public History, focuses on the role and nature of historian expert witnesses in judicial proceedings[1]. The collection raises interesting methodological questions about the historian’s craft and the interrelation between historical research and the law. The various contributions, listed at the end of this post, cover some of the diverse activities and subject-matter expertise that historians bring to the litigation process, in the United States, in Canada, and elsewhere.

My interest was drawn, not to the articles on native peoples or land rights, but to the one article on health-effect claims. See Keith A. Zahniser, “Why Litigation-Driven History Matters: Lessons Learned from the Secret History of TCE,” 37 The Public Historian 46 (2015). The author, Keith Zahniser, is a member of Historical Research Associates, Inc., which provides litigation support services, ranging from research to expert witness testimony. In his contribution to this collection of articles, Zahniser argues that litigation-driven historical research can live up to the professional standards of historians. Using an example of the history of trichloroethylene (TCE) use and its health hazards, he laments that relevant historical scholarship often remains secret and inaccessible, unpublished, and unimproved by peer review. Id. at 47-48.

Zahniser attributes the secretive nature of litigation-driven history to:

(1) confidentiality agreements;

(2) assertion of “work product” protections for documents uncovered by historical research; and

(3) assertion of “attorney-client privilege” for consulting expert historians’ opinions and identification of documents.

Id. at 49-50. Confidentiality agreements certainly could silence an expert witness during the course of the litigation, and forever after, perhaps. The assertion of work product or attorney-client privilege to avoid production of historical documents found by consulting or testifying historians is, however, more questionable. Unless the documents involved client communications made for the purpose of obtaining legal counsel, the attorney-client privilege would not apply. Opinions developed by a consulting expert witness might well be off limits to discovery in most common law jurisdictions, but historical documents, even if obtained with a consultant’s expertise and knowledge of archival sources, would not fall under the protection of the so-called work-product doctrine.

But what of Zahniser’s claim that the history of TCE has remained a “secret”? A briefest of internet searches suggests otherwise. Another consulting historian, Steve Swisdak of History Associates, presented on the history of TCE at an American Bar Association conference in 2013[2]. A scientist at GeoInsight, Inc., has published on the history of TCE, both in a journal and in a toxicology text[3]. The medicinal use of TCE is readily ascertained through publications listed in PubMed and other publication databases[4]. And a publisher of scientific bibliographies has published a timeline of TCE history[5].

Notwithstanding the complaint about “secret history,” Zahniser has not published on TCE; nor has he, or the company with which he is affiliated, made key historical documents available on their website, or any of the myriad websites that host documents for wider viewing. Finally, many historians’ reports or declarations are available through legal archives of case materials, such as WestlawNext or Lexis Advance. Zahniser’s reports on TCE do not appear to be available.

====================================

Randolph Bergstrom, “Expert History and the Tribulations of Trials,” 37 The Public Historian 8 (2015)

Michael M. Brescia, “Bridging Troubled Waters: Historians, Natural Resource Litigation, and the Expert Witness Phenomenon,” 37 The Public Historian 11 (2015)

Jay C. Martin, “The Advocate’s Devil: The Maritime Public Historian as Expert,” 37 The Public Historian 25 (2015)

Emily Greenwald and Ian Smith, “Bury My Documents in Lenexa, Kansas: Expert Witness Work and the American Indian Records Repository,” 37 The Public Historian 39 (2015)

Keith A. Zahniser, “Why Litigation-Driven History Matters: Lessons Learned from the Secret History of TCE,” 37 The Public Historian 46 (2015)

Susan E. Gray, “Indigenous Space and the Landscape of Settlement: A Historian as Expert Witness,” 37 The Public Historian 54 (2015)

Jennifer A. Stevens, “From Archive to Evidence: Historians and Natural Resource Litigation,” 37 The Public Historian 68 (2015)

Gwynneth C. D. Jones, “Documentary Evidence and the Construction of Narratives in Legal and Historical,” 37 The Public Historian 88 (2015)

Bidtah N. Becker, “The Lawyer’s Guidebook for the Expert Witness in Natural Resources Litigation,” 37 The Public Historian 95 (2015)

[1] Thanks to Ramses Delafontaine for calling my attention to this issue of the Public Historian. Ramses’ new book provides an in-depth analysis of the role of historians as expert witnesses, in the context of tobacco litigation, as well as others. See Ramses Delafontaine, Historians as Expert Judicial Witnesses in Tobacco Litigation: A Controversial Legal Practice (2015).

[2] Steve Swisdak, “A Historical Survey of the Use and Regulation of TCE” (Oct. 11, 2013).

[3] Richard E. Doherty, “History of TCE,” in Kathleen M. Gilbert & Sarah J. Blossom, Trichloroethylene: Toxicity and Health Risks Molecular and Integrative Toxicology, at 1-14 ( 2014); Richard E. Doherty, “A History of the Production and Use of Carbon Tetrachloride, Tetrachloroethylene, Trichloroethylene and 1,1,1-Trichloroethane in the United States: Part 1 — Historical Background; Carbon Tetrachloride and Tetrachloroethylene,” 1 Envt’l Forensics 69 (2000); Richard E. Doherty, “A History of the Production and Use of Carbon Tetrachloride, Tetrachloroethylene, Trichloroethylene and 1,1,1-Trichloroethane in the United States: Part 2–Trichloroethylene and 1,1,1-Trichloroethane,”1 Envt’l Forensics 83 (2000).

[4] See, e.g., Gordon Ostlere, “The History of Trichloroethylene,” 8 Anaesthesia 21 (1953); Cecil Striker, “Clinical experiences with the use of trichlorethylene in the production of over 300 analgesias and anesthesias,” 14 Curr. Res. Anesth. 68 (1935).

[5] Icon Group Internat’l, Trichloroethylene: Webster’s Timeline History, 1949 – 2007 (2010).

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Unguarded Historian’s Inquiry into Nazi Science of Silica and Lung Cancer

July 10th, 2015

Robert N. Proctor is Professor of the History of Science, in Stanford University. In the litigation world, he is known mostly for his advocacy on behalf of tobacco plaintiffs. He has testified in dozens of cases over the years, always on behalf of claimants. See Ramses Delafontaine, “Making History in Court: A Survey of Historians as Expert Witnesses in Tobacco Litigation in the US – Robert N. Proctor,” The Judge and the Historian (last visited July 6, 2015).

Proctor’s book, The Nazi War on Cancer (Princeton 1999), which won the American Public Health Association’s 1999 Viseltear Award, is an extended exploration of the Nazi ideology of health. The value of the book is not merely in its discussion of the scientific record on various issues, such as

tobacco and asbestos, in the Nazi empire; rather Proctor’s historical narrative provides a valuable insight into how science can become the plaything of political ideologies. The Nazi War illustrates that the political pressures do not always come from corporations. Some of the most intense and unremitting pressures come from popular movements such as those made up of consumerists and environmentalists.

Although Proctor’s focus is on tobacco, and to a lesser extent, asbestos, he does have some intriguing things to say about silica, silicosis, and lung cancer. According to Proctor:

“Cancer was an occasional concern of the German industrial hygienists who worried about silicosis. A 1934 dissertation explored the coincidence of silicosis and lung cancer, the primary question being whether the quartz dust inhaled by Ruhr Valley coal miners could cause malignancies. Though the results of this particular study were negative (silicosis did not seem to predispose to lung cancer), the prescience of the interest is notable.¹³²”

Nazi War at 107 & n. 132 (citing Kurt Kollmeier, Silikose und Lungenkrebs (Bonn: Medical Dissertation, 1934), and noting that Ludwig Teleky, “Der berufliche Lugenkrebs,” 3 Actio Unio Internationalis Contra Cancrum 253 (1938) “failed to find a link.”). Lack of resolution was not a common occurrence in Nazi politics or science, but Proctor notes that:

“The question of whether silica exposure could cause cancer was never resolved in the Nazi era — and remains confused even today, more than a half century later.”

Nazi Science at 107. And despite the political ideology of OSHA’s administrator and white-hat public health zealots, the question whether silica can cause lung cancer is still not resolved.

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The Shyster Files – Racketeering in Silicosis Litigation

November 26th, 2014

David Rosner and Gerald Markowitz trace the silicosis compensation issues back to debates at the 1935 National Silicosis Conference, where representatives of labor and management squared off on the appropriate criteria for compensation.

David Rosner & Gerald Markowitz, Deadly Dust: Silicosis and the On-Going Struggle to Protect Workers’ Health at 110-15 (Ann Arbor 2006). Labor’s representative argued that silicosis should be defined by inhaling silica dust, which would have made every case of respiratory disease compensable. A lawyer who represented industry, Alfred C. Hirth, argued that compensation should be tied to disability.

Although Hirth acknowledged that silicosis was an employer problem[1], Rosner and Markowitz give a typically uncharitable assessment of Hirth’s ideas, even though the labor view that any silica inhalation constituted silicosis was demonstrably wrong at the time, and more so today. The authors quote Hirth as decrying the “[i]gnorance and sensational journalism” that has given rise to the then “the popular belief … that to inhale silica is to have silicosis.” Plus ça change, plus c’est la même chose!

Rosner and Markowitz then hone in on one sentence in Hirth’s presentation, where he criticizes the:

“shyster lawyer and quack doctor, who have been with the United States always, but whom we hope we may someday exterminate.”

Deadly Dust at 113. Here they launch the charge that Hirth was an anti-semite because he was against shysters and quacks, and even hoped, not unreasonably, that someday we might be rid of them. The historians urge that we:

“Note the anti-Semitism implied by the use of shyster and the call for extermination, which echoed the views of the Nazi and the anti-Semites during the 1930s.”

Id. at 113n.19. Really?

Now when I first read this passage in Deadly Dust, I was puzzled. My grandmother, a sweet, charming Jewish lady, who could curse in several languages, including Yiddish, would regularly rant about the shysters about in the world. As far as I can recall, her usage was non-denominational, non-racial, non-ethnic. It was an equal opportunity epithet. So I decided to dig a little deeper into the alleged “implication” seen by Markowitz and Rosner. Everything I could find pointed to both Jewish hypersensitivity and linguistic ignorance in the authors of the Deadly Dust.

Fanciful Etymology

Here is what the venerable Oxford English Dictionary has to say about shyster:

“shyster slang. [Of obscure origin. It might be f. shy a. (sense 7, disreputable) + -ster; but this sense of the adj. is app. not current in the U.S.]

1. A lawyer who practises in an unprofessional or tricky manner; especially, one who haunts the prisons and lower courts to prey on petty criminals; hence, any one who conducts his business in a tricky manner.”

Nothing there to support the authors’ character assassination, but perhaps the English are just too polite? Here is the earthier, more down-to-Earth, American Heritage Dictionary (4th ed. 2000):

“shyster. NOUN: Slang An unethical, unscrupulous practitioner, especially of law.

ETYMOLOGY: Probably alteration of German Scheisser, son of a bitch, bastard, from scheissen, to defecate … .”

Now we are getting to fundamentals. The Merriam Webster dictionary is in line with the defecator, which accords with my sense of lawyers who file fraudulent lawsuits:

“a person who is professionally unscrupulous especially in the practice of law or politics : pettifogger. Origin of SHYSTER: probably from German Scheisser, literally, defecator. First Known Use: 1844”

The less venerable, crowd-sourced Wikipedia notes that

“Various false etymologies have suggested an anti-Semitic origin, but there is no proof for that.^[3]”

Wikipedia entry for “shyster” (citing Michael Quinion “Shyster” World Wide Words (19 May 2007).

“Shysters” in Court

My view of the usage and etymology of shyster would appear to have the highest judicial authority. When some puglistic contracts turned puglistic, Lennox Lewis sued Don King in cases that spanned the Atlantic Ocean. At some point, King, with his gloves off and his mouth open, called Judd Berstein, Lewis’s attorney, a “shyster lawyer.” Berstein claimed that these were fighting words, or at least suing words, but the House of Lords disagreed. Lennox Lewis v Don King, [2004] EWCA Civ1329 (House of Lords, Supreme Court of Judicature).

Burstein’s claim, in his action for libel, turned on the assertion that calling a Jewish lawyer a “shyster lawyer” was anti-semitic (and defamatory). The appellate court (Lord Chief Justice Mummery and the eponymously named Lord Justice Laws) noted, with apparent approval, that the court below had diligently searched but failed to find any support for Burstein’s claim:

“It seems clear from a web search of 900 dictionaries (including specifically American ones) that there is no support for the word ‘shyster’ having any anti-semitic connotations.”

Id. at para. 18.

Shysters to the Right of Me; Shysters to the Left

In playing the “shyster” card, Rosner and Markowitz protest too much. They are so intent upon painting industry as unreasonable, that they overlook that the litigious behavior of the shyster lawyers in the 1930s embarrassed labor. There were, to be sure, real cases of silicosis, with real impairment, and real disability, even if the diagnostic criteria and classification of silicosis were in flux. Liability was contested in many of the “real cases,” which made administrative compensation boards such as workman’s compensation courts more attractive to many in labor unions than were litigation solutions. Here is what one labor union publication of the time had to say about the explosion of silicosis litigation in the 1930s:

“It is estimated that today in the United States there are approximately $500,000,000 in damage suits pending against employers. Many of these are legitimate, many admittedly racketeering. But just as medical research has demonstrated that one disease can be cured by the injection of another into the system, so in the end this regretable [sic] racketeering in damage suits — this ambulance chasing and canvassing of hospital beds by shyster lawyers and quack doctors — may prove to be the beneficent agent that shall cure big business of the greed and insensitiveness that places profits above human lives.”

“Silicosis Prevention” 72 Internat’l Molders’ J. 1 (July 1936) (emphasis added) (republished from the American Federationist (June 1936)).

So everyone agreed that there were shysters out in the land, and in court. The difference between labor and management is that labor wanted to use the shysters and fraudulent lawsuits in the hope that they would pressure industry into providing safer workplaces. And industry somehow objected to being besmirched by the shysters.

[1] See Alfred C. Hirth, Silicosis as an Employer Problem (1935).

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History – Lies My Teacher Told Me

November 26th, 2014

James W. Loewen, a professor of history, has been one of the most untiring critics of how history is taught and practiced in the United States. A large part of his criticism derives from the overt politicization of the teaching of history, especially the heavy hand of school boards and textbook committees in their selection of “appropriate textbooks” for high school students. See James W. Loewen, Lies My Teacher Told Me: Everything Your American History Textbook Got Wrong (2007). The disgraceful “conservative” sanitizing of United States highschoolers’ history textbooks is almost equal to the heavy-handed Marxist bent of some University professors. The politicization of history may be unavoidable, but we should be alert to the intellectual depredations from the right and the left.

* * * * * *

I recently saw the self-styled social history of silicosis, Deadly Dust, by David Rosner and Gerald Markowitz, cited in a trial court brief. The cite was to the original edition, but it led me to read the “new and expanded” edition[1], published in 2006. Expanded, but not exactly super-sized, and with the same empty calories as before. The authors’ Preface to the second edition relays an air of excitement about recent (at the time of publication) media suggestions that silicosis may be the “new asbestosis.[2]” Of course, the authors were excited because the uptick in silicosis litigation around 2003, based almost exclusively upon fraudulent filings, brought them engagements as compensated expert witnesses for plaintiffs’ counsel.

The Preface also confesses that before their initial edition, the authors were ignorant about silicosis. And because they are so well read they assumed that their not having heard of silicosis meant that silicosis must have disappeared from the literature. Id. at xiii. This fallacious confusion between absence of evidence and evidence of absence pervades the entire book. Their first edition was written with this confirmation bias dominating their narrative:

“The book we wrote tells the story of a condition that dominated public health, medical, labor, and popular discourse on disease in the 1930s but that virtually vanished from popular and professional consciousness after World War II. How, we asked, could a chronic disease that took decades to develop and that was assumed to affect hundreds of thousands of American workers disappear from the literature and public notice in less than a decade? This question is the basis for Deadly Dust, and we believe that we answered it, providing a cultural, medical, and political model of how we, as a society, decide to recognize or forget about illness.”

Deadly Dust at xiv (emphasis added). The second edition is more of the same biased narrative.

Also clear from their Preface is the authors’ messianic complex. I now know why they have repeatedly attacked me for having criticized them: It is important for them to be seen as having been resistant victims of industry, indeed, especially if they are triumphant victims:

“We are particularly proud that lawyers for various industries have sought to get judges to exclude our book from court cases.”

Id. at xvi. Of course, from the lawyers’ perspective, a book such as Deadly Dust has many layers of evidentiary problems, running from authentication of documents, to multiple layers of hearsay, legal and logical relevancy, and rampant, subjective opinion spread throughout the narrative.

The “virtually vanished” phrase caused me to revisit[3] my previous quantitative assessment of discussions of silicosis in the popular and medical literature. The National Library of Medicine PubMed database is expanding back into the past, adding old journals and their articles to the database. Here is the most recent tally, by decade of articles with keyword “silicosis”:

Date Range Number of Articles from Keyword Search

1940 – 1949 119

1950 – 1959 1,436

1960 – 1969 1,868

1970 – 1979 1,176

1980 – 1989 940

1990 – 1999 883

2000 – 2009 860

2010 — present 498

The Rosner/Markowitz claim about silicosis “virtually vanishing” from professional discourse after World War II, is an assertion that is completely belied by the evidence. Google’s Ngram function further confirms the incorrectness of the fundamental premise of Deadly Dust:

Silicosis Ngram 1920 – 2010

The Google chart shows that although there was a peak around 1940, the level of referencing silicosis remained at or above the level for the mid-1930s until 1960, and never retreated to levels as low as for 1930-32.

This false premise, that silicosis vanished, or virtually vanished, from the medical literature, is the starting point for Rosner and Markowitz’ faux conspiracy charge against industry for suppressing discussion, when the reality was exactly the opposite. What follows from the false premise is a false set of conclusions.

[1] David Rosner & Gerald Markowitz, Deadly Dust: Silicosis and the On-Going Struggle to Protect Workers’ Health (Ann Arbor 2006).

[2] citing Jonathan Glater, “Suits on Silica Being Compared to Asbestos Cases,” New York Times (Sept. 6, 2003), C-1 (quoting one defense lawyer as saying that “I actually thought that we had made the world safe for sand.”).

[3] See Schachtman, “Conspiracy Theories: Historians, In and Out of Court” (April 17, 2013).

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