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Historians Noir

November 18th, 2014

David Rosner and Gerald Markowitz are two “labor” historians who make it their business to testify as historian expert witnesses in occupational and environmental disease cases. They apparently do not like lawyers who argue that they should have less business in the courts[1]. Rosner and Markowitz have obsessed about my article critical of their scholarship, and about historian witnesses, but rather than respond as scholars, they have responded largely ad hominem by suggesting that my criticisms were motivated by their testifying for the litigation industry. They have accused me of “attacking the messenger,” and they have responded by attacking the messenger. And their “attacks,” feeble though they may be, have come repetitively[2], suggesting some obsession and compulsion.

Last month[3], Professor Rosner gave a public lecture on his testimonial adventures as an historian expert witness, “Judging Science: The Historian, the Courts, & Discerning Responsibility for Environmental Pollution.” The lecture, given at Columbia University’s Heyman Center, lasted a little over an hour, exemplifies Rosner’s approach to “historifying,” as well as why courts should be wary of permitting such testimony. Here is how the Heyman Center’s website describes the talk:

“Over the past twenty years a vast public negotiation has taken place over the causes of, and responsibility for, disease. For the most part this discussion has flown under the radar of doctors, historians and public health professionals. This talk will look at a number of environmental pollution and public health cases over the course of the past two decades in which Professor Rosner has participated.”

Rosner begins by recounting his initial involvement in litigation, in Texas cases involving claims for silicosis. Rosner asserts that his involvement was necessitated by the defendants’ position that no one had ever heard of silicosis, and that silicosis had vanished from the medical literature after 1940. Rosner’s characterization of the claims and defenses of the Odessa sandblasting cases is, however, badly flawed, and his suggestion that silicosis had disappeared from the medical literature at the end of the 1930s is simply false.

According to Rosner (about 22:40 into the video), Histrionic Historians was an “attack” made in response to his, and his friend Gerald Markowitz’s, testimony in the Odessa, Texas case. Wrong. By the time Histrionic Historians was published, Rosner and Markowitz were listed as retained expert witnesses in hundreds if not thousands of cases, in the silicosis MDL, see In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563 (S.D. Tex. 2005), and they were showing up in several other isolated cases around the country. One of the Odessa silicosis cases had gone up to the Texas Supreme Court, which reversed the judgment for plaintiff on the ground that the jury must consider the knowledge and role of the intermediary employer in the context of an occupational disease claim against a remote supplier. Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170 (Tex. 2004). The cases in front of Judge Jack were, of course, mostly fraudulent, and the liability in the remaining cases was almost tenuous to non-existent. In his Heyman Center lecture last month, Rosner suggests that my article was an attempt to “take back” from him and Markowitz, the narrative that had been historically controlled by industry (around 34:50 of the video). The fact is, however, that industry never controlled the silicosis narrative, which was played out in the 1930s by organized labor, government, academics, and industry. Histrionic Historians was only a preliminary essay designed to show that the Rosner narrative was false.

Towards the end of his lecture, Rosner attempts to describe the consequences of the workman’s compensation system. He argues that byssinosis, anthracosilicosis, and asbestosis were once considered “silicosis,” on the theory that silica was doing the damage, a stunning claim considering that byssinosis is caused by cotton dust, and does not involve any mineral dust of any kind. According to Rosner, the other pneumoconioses were “politically divided off of the silicosis issue” so that workers could regain the ability to sue, since workers could not sue for silicosis (due to statutory employer immunity). Video at 59:15-40. With no regard for the medical or scientific history of the knowledge of the various pneumoconioses, Rosner states that asbestosis and byssinosis were:

“in some sense created as clinical entities because of the political implications of being identified as silicosis after 1940. Silicosis was no longer compensable and so you had to find new definitions. It is a very interesting history of these disease that were once considered forms of silicosis.”

Video at 1:00:30-51. Very interesting, and entirely bogus. Asbestosis and silicosis were considered distinct diseases well before 1940, and medical science distinguished the two pneumoconioses as having different causes, different diagnostic criteria, and different sequelae. And neither asbestos nor cotton dust contains silica. A great example of the misinformation that historians unfamiliar with the relevant medical history can spout.

Historians’ Acting Badly

In response to a question from the audience, Professor Rosner recounts the events of an historical society meeting at which he and his colleagues learned that the President had been consulting for tobacco defendants in litigation. Apparently, this revelation almost led to fistfights in the halls. So much for diversity and tolerance! Video around 1:10:00. Rosner tells us that he is one of only about three historians who have decided to work for plaintiffs and labor unions. Video at 1:09:45.

Standards for Historian Testimony

Rosner criticizes the historians who testify for tobacco defendants on the grounds that they were not shown everything known (secretly) by the tobacco companies. These historian thus testified on only the public record, and their testimony was thus misleading. According to Rosner, you (the aspiring historian expert witness) “must see everything”; “you are entitled to see all the documents.” Otherwise, you are at risk of being given documents selectively by instructing counsel. Video at 1:11:10-29. There could be a semblance of a criterion in Rosner’s remarks for evaluating historian expert witness testimony. Rosner, understandably however, states that he does not know whether he wants the American Historian Association to become involved in policing historian witness testimony.

Historian Testimony – Beyond the Ken?

Rosner fielded a question from the audience about how courts viewed historian testimony. Of course, Rosner is not a lawyer, and his answer did not attempt to summarize the judicial antipathy towards historian testimony when not necessary. Instead, Rosner focused on his own niche of testifying in lead, asbestos, and silica cases, where courts have been more indulgent of permitting historian expert witness testimony. “They [the courts] are getting used to it,” Rosner reports. “Juries love” historian testimony because historians speak English, and “they understand it,” unlike the scientific testimony in the case. According to Rosner, historians are not pretending to have a special expertise that the jury cannot understand, and the materials relied upon do not require interpretation by an expert the way scientific studies do. Video at 1:12:24-14:04. Q.E.D.!

[1] 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,” Mealey’s Silica Litigation Report Vol. 2, No. 3 (Nov. 2003). See also “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).

[2] Four articles 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). To these publications, these “forensic historians” have added yet another recitation in an epilogue to a revised edition of one of their books. Gerald Markowitz and David Rosner, Deceit and Denial: The Deadly Politics of Industrial Pollution at 313-14 (U. Calif. rev. ed. 2013).

[3] October 22, 2014.

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Cancer Epidemiology 100 Years Ago

October 6th, 2014

Writing from the Department of Pathology of Columbia University, at the College of Physicians and Surgeons, Isaac Levin published a study of cancer etiology in 1910. Isaac Levin, “III. The Study of the Etiology of Cancer Based on Clinical Statistics,” 51 Ann. Surg. Jun 768 (1910). Levin looked at population and gender prevalence among cancer cases, without age correction or any statistical measure of random error. He compared population prevalence of specific or all-cause mortality without isolating exposure and outcome. Levin’s efforts were earnest, but surely they strike us as primitive. If you want to be disabused of the belief that epidemiology today is a primitive scientific enterprise, mired in methodologies and interpretative strategies of the past, Levin’s article is a welcome documentation that progress is possible and has in fact occurred.

Levin sums up what was known about occupation and cancer in 1910, which was not much:

“QUESTION 10,- OCCUPATION.–Occupation undoubtedly plays an important role in the causation of cancer. The carcinoma of the scrotum of the chimney sweeps, tumors of the bladder of the aniline workers, and X-ray cancer are well known, but it will require a great deal of research to, show how direct the influence is that these occupations exert on the causation of cancer, since only a certain number of the workers contract the disease.”

Id. at 776. No acknowledgment of dose response, or thresholds. No quantitation of risk against baselines.

Levin goes on to note that:

“[o]f extreme interest seems to be the fact, noted both in England and America, that cancer is comparatively rare among the miners. Table IV, compiled from the twelfth U. S. Census, illustrates this fact:

Table IV from Levin 1910

Table IV from Levin 1910

[Open in new window for clearer image]

Wilkesbarre and Scranton are mining towns and the death rate is lower than in Harrisburg or in the whole state of Pennsylvania. It seems also to be the opinion of the surgeons in Pennsylvania (personal communication) that cancer is rare among miners.”

Id. at 776.

There are some other quaint relics of the past here. On the questionnaire used for 4,000 cases or so, here is how Levin inquired of “Race or Nationality”

“RACE OR NATIONALITY. …………Australoid – Coolies of East India; Negroid – Negroes, Negritos of the Philippines; Mongoloid – Chinese, Japanese, American Indians, Filipinos; Melanochroic – Italians, Spaniards, Greeks, Arabs, Jews; Xanthochroic – Fair Europeans. State not only the name of the race, but also of the subdivision]”

Id. at 772. Anthropology was fairly primitive as well, in 1910.

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

October 4th, 2014

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

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

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

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

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

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

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

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

Selikoff the Testifier

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Last Squirmish Between Irving Selikoff and Sir Richard Doll

September 30th, 2014

In one of his last publications before he died, Dr. Selikoff reflected on the ethical dimensions of epidemiology. He recounted the development of our understanding of the lung cancer hazards of asbestos and smoking, and noted that there had been “random instances” of lung cancer cases reported among asbestos workers in the 1930s and 1949s, but “[w]ith the continued growth of the asbestos industry, it was deemed wise to epidemiologically examine the proposed association. This was done in an elegant, innovative, well-considered study by Richard Doll [7], a study which anyone of us would have been proud to report in 1955.” Irving J. Selikoff, “Statistical Compassion,” 55 J. Clin. Epidemol. 141S, 142S (1991).

Despite his praise for Doll’s work, Selikoff goes on to downplay Doll’s achievement by explaining how Doll supposedly missed a synergistic multiplicative interaction between asbestos exposure and smoking, which Selikoff claimed to have found a decade later:

“Not only was the association [with smoking] not yet established, indicating the need for its investigation in cohort studies, but smoking histories were not available (and indeed, many of the workers involved may not have smoked cigarettes, having begun their asbestos exposure at a time when cigarette smoking was considerably less common, even among blue collar workers). We would want such information now, but these studies were accomplished at an earlier, less informed, time.”

Id. at 143S

This short passage is revealing. In 1955, epidemiology was still a relatively young science, and it was Doll who energetically was developing and implementing its methods. Doll’s use of his cohort study was not undertaken just because it was deemed “wise,” but because the method had evolved to the point that Doll could cast offer the asbestos company in question a reasonably rigorous method of answering their “wise” concern.

Contrary to Selikoff’s suggestions, the smoking association was better established in 1955, when Doll published, than was the asbestosis association. By the time Doll published his famous paper on the association between asbestosis and lung cancer, he had published three studies on the association between smoking and lung cancer. Interestingly, Doll later acknowledged that his failure to obtain smoking histories was purely an oversight. By the time Selikoff undertook his studies of asbestos insulators in the late 1950s, a wise investigator would have known that he needed to be very careful smoking histories to study the role of asbestos in an exposed cohort.

Perhaps more revealing yet, however, was Selikoff’s counterfactual assertion that Doll’s 1955 study was conducted too early to assess the role of tobacco in lung cancers observed in the early 1950s. By the early 1950s, cigarette smoking was well established in both in the U.K., and in the U.S., and had been so for several decades. Here are the data for the United States:

 

Correlation between smoking and lung cancer in US males, showing a 20-year time lag between increased smoking rates and increased incidence of lung cancer.

Correlation between smoking and lung cancer in US males, showing a 20-year time lag between increased smoking rates and increased incidence of lung cancer.

National Cancer Institute Figure 2003

And here are the data from the United Kingdom:

 

Figure 1

Figure 1

Figure 1, from Robert Platt, et al., Smoking and Health: A Report of The Royal College of Physicians of London on Smoking in relation to Cancer of the Lung and Other Diseases 3 (1962).

 

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Asbestos and Asbestos Litigation Are Forever

September 16th, 2014

When I first started practicing “asbestos law,” I routinely found copies of letters from JAG lawyers to shipyard workers, in their personnel files. The letters were notifying the workers that they had been diagnosed with asbestosis, usually by a local pulmonary physician who performed contract services for surveillance for the shipyard. The letters notified the workers that they might have rights under the Federal Employees’ Compensation Act, but emphasized that the workers had remedies against the Navy’s vendors of asbestos-containing products, and that if they sued in tort, the Navy would have a lien against any recovery. In practice, the lien was so unwieldy, that most of the Philadelphia plaintiffs’ firms would forego filing the FECA claim altogether. Thus the Navy effectively limited its liability, and kept its munitions budgets intact, while dozens of its vendors went bankrupt.

In 2011, Kara Franke and Dennis Paustenbach published a review of historical documentation of the United States Navy’s knowledge of the hazards of asbestos use in its shipyards. Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011). Earlier, in the 1980s, Dr. Samuel Forman published a history of Navy knowledge through World War II. Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988). Both histories serve to add valuable context to the asbestos “state of the art” story, by showing that the United States had equal or greater knowledge of the hazards of asbestos at all relevant times, and that the government was in a vastly superior position to control asbestos exposures, outfit employees and servicemen with personal protective devices, and to communicate risk information.

The subject is well covered territory, but the article approaches its subject matter from the perspective of what was known by the United States Navy, which may well have been singlehandedly responsible for exposing the greatest number of men and women to asbestos in the United States.  Back in the 1980s, Dr. Sam Forman covered a similar theme, but only through War War II.  See also Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988); Peter A. Nowinski, “Chronology of Asbestos Regulation in United States Workplaces,” in Karen Antman & Joseph Aisner, eds., Asbestos-Related Malignancy 99 (1986) (Nowinski represented the government in direct lawsuits against the United States for its role in creating the asbestos hazards of federal and contract shipyards).

In the early days of the asbestos litigation, defendants made several attempts to implead the government, or to sue for indemnification after settling. With some few exceptions, these efforts were largely unsuccessful. Susan L. Barna, “Abandoning Ship: Government Liability for Shipyard Asbestos Exposures,” 67 New York Univ. L. Rev. 1034 (1992); Statement of Linda G. Morra, Associate Director Human Resources Division, on behalf of the United States General Accounting Office, “The Status of Asbestos Claims Against The Federal Government”; before the House Committee on the Judiciary, Subcommittee on Administrative Law and Governmental Relations (June 30, 1988).

In many states, employer knowledge was inadmissible in strict liability cases, and plaintiffs’ counsel would withdraw their negligence claims when they saw that defense counsel were prepared to implicate the government and its extensive knowledge. Unfortunately, many defense counsel failed to appreciate the potential that intermediary knowledge had for defending against punitive damage claims, which were often still in the case. And in some states, employer knowledge remained a defense in products liability trials, even when summary judgments were not given. See, e.g., In re Related Asbestos Cases, 543 F.Supp. 1142 (N.D. Calif. 1982) (permitting defendants to assert that Navy was sophisticated user as an affirmative defense at trial).

In the Philadelphia County, Pennsylvania, asbestos litigation, plaintiffs’ counsel soon learned that reverse-bifurcation fit their litigation model perfectly: quick, inexpensive trials without the bother of liability defenses. When defendants occasionally found a judge that would permit all-issue trials, and they presented “state-of-the-art” or sophisticated intermediary defenses, they often surprised themselves as well as plaintiffs’ counsel and judges with their success. See, e.g., O’Donnell v. The Celotex Corp., Phila. Cty. Ct.C.P., July 1982 Term, Case. No. 1619 (trial before Hon. Levan Gordon, and a jury; May 1989) (defense verdict in case in which plaintiffs presented negligence claims and defendants presented extensive evidence of federal government’s superior knowledge of hazard and control of workplace).

Finding admissible evidence of the government’s superior knowledge was not always an easy task. In the O’Donnell trial, defendants presented the testimony of Dr. Kindsvatter, an industrial hygienist with a doctoral degree, who had been the chief hygienist at the Philadelphia Naval Shipyard for most of the post-World War II period. Counsel also had copies of Bureau of Medicine & Surgery bulletins, with ribbons and seal authentication. These bulletins announced the Navy’s adoption of threshold limit values for asbestos, and its mandate that the values be complied with in all shipyards.

More recently, additional resources have become available, courtesy of the internet. The Navy published a safety magazine, Safety Review, starting in 1944. Glimpses of Safety Review can be found on Google Books, and “snippets” of selected volumes 17-22 can be viewed at the Hathi Trust Digital Library[1]. Hard copies of the entire Safety Review can be found in a few university libraries, with the help of World Catalog.

More recently, Archive.org has made available selected documents from a collection of documents from the United States Navy Bureau of Medicine and Surgery. This website provides a search engine and a browse by subject option. The collection on line is incomplete, but does include some issues of United States Navy Medicine, and United States Navy Medical News Letter. Here is how the webpage describes the fuller archives:

“A historical component has existed at the US Navy’s Bureau of Medicine and Surgery since May 1907 with the establishment of the Publications Office. In addition to producing The Naval Medical Bulletin, the Publications Office was responsible for producing occasional historical monographs, and maintaining a historical archive. Today the Office of Medical History’s mission has evolved to preserve and promote the history and heritage of the Navy Medical Department while serving the needs of our customers. The collection consists of publications, public records, manuscripts, personal papers, hospital plans, Navy Hygiene Museum records, biographical files, subject files, facility files, films, videos, photographs, prints, drawings, and artifacts. The OMH currently consists of over 100 collections covering over 1,000 linear feet and is staffed by a historian and an archivist.”

So apparently, more is available at the archive than is available on line. Perhaps in the fullness of time, when there is no more asbestos litigation, the archives will be fully digitized. Of course, the ship has sailed on most civilian and military asbestos exposure cases, but the web and the paper archive will contain a great number of documents that show the government’s superior knowledge with respect to the relevant hazards of asbestos, at various times.

[1] Curiously, the Hathi Trust website states that Safety Review is protected by copyright law: “Full view is not available for this item due to copyright © restrictions. Page numbers with matches are displayed without text snippets due to these restrictions. Snippets may be available for some items if you log in.” Of course, as a governmental work and publication, Safety Review is not subject to copyright protection.

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Irving Selikoff – Media Plodder to Media Zealot

September 9th, 2014

Some historians note that Selikoff was “consistently demonized as a media zealot.” See Jock McCulloch & Geoffrey Tweedale, “Shooting the messenger: the vilification of Irving J. Selikoff,” 37 Internat’l J. Health Services 619, 619 (2007).

McCulloch and Tweedale’s narrative is incomplete, incoherent and internally inconsistent. Selikoff was not the “messenger” of any novel information. McCulloch and Tweedale’s narrative turns upon a misconception that the dangerousness of asbestos to end users was somehow not known before Dr. Irving Selikoff publicized it with his work in 1964. Sir Richard Doll had published almost a decade earlier on asbestosis and lung cancer. Richard Doll, “Mortality from Lung Cancer in Asbestos Workers,”  12 Br. J. Indus. Med. 81 (1955). Selikoff’s publication, with its inadequate smoking histories, and lack of stratification for asbestosis, was not a significant advance over Doll’s work. With respect to mesothelioma, J. Christopher Wagner and colleagues published their work on mesothelioma among persons exposed to crocidolite, blue asbestos, in South Africa, over a decade before Selikoff published on asbestos. See J. Christopher Wagner, C.A. Sleggs, and Paul Marchand, “Diffuse pleural mesothelioma and asbestos exposure in the North Western Cape Province,” 17 Br. J. Indus. Med. 260 (1960); J. Christopher Wagner, “The discovery of the association between blue asbestos and mesotheliomas and the aftermath,” 48 Br. J. Indus. Med. 399 (1991).

And for asbestosis among insulators, the United States Navy was out in front of Selikoff, although the Navy was less generous in sharing its knowledge with its vendors.  Before Selikoff published on an asbestosis hazard among insulation workers, the United States Navy published an account in 1962, in which it acknowledged that working conditions were at times unsafe, and led to asbestosis among workers. Capt. H.M. Robbins & William T. Marr, “Asbestosis,” 19 Safety Review 10 (1962) (noting that asbestos dust counts of 200 million particles per cubic foot were not uncommon during insulation ripouts onboard naval vessels). Of course, the asbestosis hazard was known and understood by the asbestos insulators themselves, as can be seen in the union publication, Asbestos Worker, from 1930 on[1]. Anonymous, “The Pulmonary Asbestos Menace,” 9(9) The Asbestos Worker (1930). What was lacking in Selikoff’s work was a demonstration that asbestosis was occurring at exposures below the threshold limit value in place in the 1950s and much of the 1960s.

Second, Selikoff did use media, labor unions, federal agencies, and even industry to fund and advance his research agenda. Public fear worked to his advantage, and Selikoff overstated and exaggerated risk predictions to advance legislation and regulations he favored. See Richard Doll & Richard Peto, “The causes of cancer: quantitative estimates of avoidable risks of cancer in the United States today,” 66 J. Nat’l Cancer Inst. 1191 (1981). McCulloch and Tweedale never address this reality in their hagiographic narrative.

Although McCulloch and Tweedale focus on historical papers on Selikoff’s unusual path to becoming a physician, they do not address the other issues raised by Selikoff’s career, such as his testimonial adventures on behalf of workers, his lack of disclosure of his income from testifying in his publications, and his conspiratorial efforts to influence key judges in asbestos litigation by inviting them to a one-sided, ex parte conference in New York.

Interestingly, there is some evidence that Selikoff was not a “natural” as a media zealot; the skills were acquired, perhaps through his testimonial adventures in the late 1950s and 1960s. Selikoff’s early efforts at talking to the media showed him to be a “clumsy and plodding” presenter. The following 1955 article provides a contemporaneous account of Selikoff’s media efforts:

“Medical Horizons,” Broadcasting * Telecasting at 14 (Nov. 21, 1955)

“THE DRAMATIC and increasingly successful fight against tuberculosis managed to become a dull story indeed as told on Medical Horizons (ABC-TV), live documentary series showing present-day progress being made by doctors and drugs.

The Nov. 14 offering had narrator Don Goddard, complete with hand mike, making a tour of Seaview Hospital, Staten Island, N.Y., where he talked with Dr. Edward Robitzek and Dr. Irving Selikoff, pioneering physicians at the noted TB clinic. Lines intended to reflect spontaneity instead came out as clumsy and plodding from Mr. Goddard and the two medical men.”

[1] Of course, there is much coyness about acknowledging the risk and hazard information contained in union publications. See, e.g., Theer v. Philip Carey Co., 259 N.J. Super. 40, 44-45, 611 A.2d 148 (1992) (noting that plaintiff was a union insulation worker who received Asbestos Worker, but did not recall risk communications in his own union publication until the 1970s), rev’d, 133 N.J. 610, 628 A.2d 724 (1993); Skonberg v. Owens-Corning Fiberglas Corp., 576 N.E.2d 28, 30, 215 Ill. App.3d 735 (1991) (noting that plaintiff had received the Asbestos Worker magazine and read it regularly, but somehow managed to miss the information about cancer hazards). Defendants have been known to embrace Selikoff’s work because it coincided with the advent of their product warning labels, labels that were mostly the creation of the Restatement (Second) of Torts, and innovations in strict product liability. Selikoff’s claims of novelty helped support state-of-the-art defenses.

 

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Careless Scholarship About Silica History

July 21st, 2014

David Egilman is the Editor in Chief of the International Journal of Occupational and Environmental Health (IJOEH). A YouTube “selfie” interview provides some insight into Dr. Egilman’s motivations and editorial agenda.  Previous posts have chronicled Egilman’s testimonial adventures because of his propensity to surface in litigations of interest. See, e.g., “David Egilman’s Methodology for Divining Causation” (Sept. 6, 2012); “Egilman Petitions the Supreme Court for Review of His Own Exclusion in Newkirk v. Conagra Foods” (Dec. 13, 2012).

Dr. Egilman has used his editorial role at the IJOEH to disseminate his litigation positions.  Several of his articles are little more than his litigation reports, filed in various cases, ranging from occupational dust disease claims to pharmaceutical off-target effect claims. A recent issue of the IJOEH has yet another article of this ilk, which scatters invective across several litigations. David Egilman, Tess Bird[1], and Caroline Lee[2], “Dust diseases and the legacy of corporate manipulation of science and law, 20 Internat’l J. Occup. & Envt’l Health 115 (2014).

The article mostly concerns Egilman’s allegations that companies influenced the scientific, medical, and governmental understanding and perception of asbestos hazards.  I will defer to others to address his allegations with respect to asbestos. The article, however, in its Abstract, takes broader aim at other exposures, in particular, silica:

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

Egilman at 115, Abstract (emphasis added).

In their Abstract, the authors further proclaim their purpose

“To understand the ongoing corporate influence on the science and politics of asbestos and silica exposure, including litigation defense strategies related to historical manipulation of science.”

Egilman at 115. I demur for the time being with respect to asbestos, but the authors’ claims about silica are never supported in their article. A brief review of two monographs by Frederick L. Hoffman should be sufficient to condemn the authors’ carelessness to the dustbin of occupational history. Frederick L. Hoffman, Mortality from Respiratory Diseases in the Dusty Trades; Dep’t of Labor, Bureau of Labor Statistics (1918); The Problem of Dust Phthisis in the Granite Stone Industry; Dep’t of Labor, Bureau of Labor Statistics (1922).  The bibliographies in both these monographs documents the widespread interest in, and awareness of, the occupational hazards of silica dusts, going back into the 19th century, among the media, the labor movement, and the non-industrial scientific community.

Not surprisingly, the authors’ conclusions are stated only in terms of asbestos hazards, knowledge, and company conduct:

“Conclusions: Asbestos product companies would like the public to believe that there was a legitimate debate surrounding the dangers of asbestos during the twentieth century, particularly regarding the link to cancer, which delayed adequate regulation. The asbestos–cancer link was not a legitimate contestation of science; rather the companies directly manipulated the scientific literature. There is evidence that industry manipulation of scientific literature remains a continuing problem today, resulting in inadequate regulation and compensation and perpetuating otherwise preventable worker and consumer injuries and deaths.”

The authors note that Rutherford Johnstone’s 1960 “seminal” textbook relied upon a study (Braun and Truan), which study Egilman attacks as corrupted by industry influence. Rutherford Johnstone & Seward E. Miller, Occupational Diseases and Industrial Medicine 328 (Philadelphia 1960). According to the Egilman, Rutherford Johnstone was the official American Medical Asociation’s consultant for occupational disease questions, which explains why he was providing answers to questions submitted to the Journal of the American Medical Association, on silica and asbestos issues. The authors note that Johnstone, in 1961, asserted that there was no epidemiologic evidence that asbestos causes lung cancer among American workers, which view reflects Johnstone’s reliance upon the Braun-Truan study. The authors fail, however, to note that Johnstone also opined that

“There is no epidemiological evidence that silicosis, resulting from undue exposure to free silica produces cancer of the lung.”

Rutherford T. Johnstone, “Silicosis and Cancer,” 176 J. Am. Med. Ass’n 81, 81 (1961). Neither the authors nor anyone else has ever shown that Johnstone was misled by any industry group with respect to his silica/lung cancer opinion.

Some of the Egilman’s scholarship is quite careless.  For instance, he, along with his employees, assert that

“By the mid 1940s, the international scientific community had recognized the link between asbestos and cancer.10–18”

Readers should review all the endnotes, 10 – 18, but endnote 12 is especially interesting:

“12 Macklin MT, Macklin CC. Does chronic irritation cause primary carcinoma of the human lung? Arch Path. 1940;30:924–55.”

As I have noted before, the Macklins, and especially Dr. Madge Macklin, brought a great deal of rigor and skepticism to broad claims about the causation of lung cancer. See “Silicosis, Lung Cancer, and Evidence-Based Medicine in North America” (July 4, 2014).  This citation and others do not appear to support the sweep of Egilman and his student authors’ claim.

The next mention of silica occurs in the context of an allegation that corporations (presumably not plaintiffs’ lawyers’ law firm corporations) have worked to “disguise” health concerns and influence governmental policy about several products, materials, including silica:

“During the last several decades, researchers in a wide spectrum of fields have documented the direct and purposeful efforts of corporations to disguise public health concerns and affect government policies, particularly in the tobacco, alcohol, silica, and asbestos industries, and more recently, the pharmaceutical, chemical, and ultra-processed food and drink industries.79,73”

Egilman at 121.

The authors’ citations, however, do not support any such allegation about silica. Endnote 73[3] is an article by Egilman, and others, on Vioxx; and endnote 79[4] is an article about alcohol, tobacco, and foods. In the very next sentence, the authors further claim that:

“Corporate-funded ‘objective science’ leading to the corruption of scientific literature remains a major problem.65,68,69,71,73,75,80–86”

Once again, none of the endnotes (65, 68, 69, 71, 75, and 80-86) supports the authors’ claim that anyone in the mining, milling, or marketing of crystalline silica has funded science in a way that led to the corruption of the scientific literature. Not surprisingly, the authors ignore the frauds perpetuated by litigation industry players. See, e.g., In re Silica Products Liab. Lit., 398 F. Supp. 2d 563 (S.D. Tex. 2005) (federal trial judge rebukes the litigation industry for fraudulent claiming in MDL 1553).

[1] The article acknowledges that Ms. Bird and Ms. Lee were employees of Dr. Egilman.  Ms. Bird appears now to be a student in the U.K., studying medical anthropology.  Ms. Bird, and Ms. Lee, appeared on earlier works by Egilman.  See, e.g., David S Egilman, Tess Bird, and Caroline Lee, “MetLife and its corporate allies: dust diseases and the manipulation of science,” 19 Internat’l J. Occup. & Envt’l Health 287 (2013); David Steven Egilman, Emily Laura Ardolino, Samantha Howe, and Tess Bird, “Deconstructing a state-of-the-art review of the asbestos brake industry,” 21 New Solutions 545 (2011).

[2] Ms. Lee appears to have been employed for Egilman’s litigation consulting firm, Never Again Consulting, from 2011 until August 2013, when she entered the University of Maryland law school.

[3] Krumholz HM, Ross JS, Presler AH, Egilman DS. What have we learnt from Vioxx. Br Med J. 2007;334(7585):120–3.

[4] Moodie R, Stuckler D, Montiero C, Sheron N, Neal B, Thamarangsi T, et al. Profits and pandemics: prevention of harmful effects of tobacco, alcohol, and ultra-processed food and drink industries. Lancet. 2013;381:670–79.

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Too Many Narratives – Historians in the Dock

July 13th, 2014

Historical Associates Inc. (HAI) is a commercial vendor for historical services, including litigation services. Understandably, this firm, like the academic historians who service the litigation industry, takes a broad view of the desirability of historian expert witness testimony.  An article in one of the HAI’s newsletters stakes out lawyer strategies in trying to prove historical facts.  Lawyers can present percipient witnesses, or they

“can present the story themselves, but in the end, arguments by advocates can raise questions of bias that obscure, rather than clarify, the historical facts at issue.”

Mike Reis and Dave Wiseman, “Introducing and interpreting facts-in-evidence: the historian’s role as expert witness,” HAIpoints 1 (Summer 2010)[1]. These commercial historians recommend that advocacy bias, so clear in lawyers’ narratives, be diffused or obscured by having a professional historian present the “story.”  They tout the research skills of historians: “Historians know how to find critical historical information.” And to be sure, historians, whether academic or for-hire may offer important bibliographic services, as well as help in translating, authenticating, and contextualizing documents.  But these historians from HAI want a role on center-stage, or at least in the witness box.  They tell us that:

“Historians synthesize information into well-documented, compelling stories.”

Ah yes, compelling stories, as in “the guiltless gust of a rattling good yarn[2].” The legal system should take a pass on such stories.

*     *     *     *     *     *

A recent law review article attempts to provide a less commercial defense of expert witness testimony.  See Alvaro Hasani, “Putting history on the stand: a closer look at the legitimacy of criticisms levied against historians who testify as expert witnesses,” 34 Whittier L. Rev. 343 (2013) [Hasani].  Hasani argues that historians strive to provide objective historical “interpretation,” by selecting reliable sources, and reliably reading and interpreting these sources to create a reliable “narrative.” Hasani at 355. Hasani points to some courts that have thrown up their hands and declared Daubert reliability factors inapplicable to non-scientific historian testimony. See, e.g., United States v. Paracha, No. 03 CR. 1 197(SHS), 2006 WL 12768, at *19 (S.D.N.Y. Jan. 3, 2006) (noting that Daubert is not designed for gatekeeping of a non-scientific, historian expert witness’s methodology); Saginaw Chippewa Indian Tribe of Michigan v. Granholm, 690 F. Supp. 2d 622, 634 (E.D. Mich. 2010) (noting that “[t]here is no way to ‘test’ whether the experts’ testimony concerning the historical understanding of the treaties is correct. Nor is it possible to establish an ‘error rate’ for historical experts.”).

Not all testifying historians agree, however, that their research and findings are non-scientific.  Here is how one plaintiffs’ expert witness characterized historical thinking:

“Q. Do you believe that historical thinking is a form of scientific thinking?

A. I do. I think that history is sometimes classed with the humanities, sometimes classed with the social sciences, but I think there is a good deal of historical research and writing that is a form of social science.”

Examination Before Trial of Gerald Markowitz, in Mendez v. American Optical, District Court for Tarrant County, Texas (342d Judicial District), at 44:13-20 (July 19, 2005). Professor Susan Haack, and others, have made a persuasive case that the epistemic warrants for claims of knowledge, whether denominated scientific or non-scientific, are not different in kind. If historian testimony is not about knowledge of the past, then it clearly has no role in a trial. Furthermore, Professor Markowitz is correct that sometimes historical opinions are scientific in the sense that they can be tested. If a labor historian asserts that workers are exploited and subjected to unsafe work conditions due to the very nature of capitalism and the profit motives, then that historian’s opinion will be substantially embarrassed by the widespread occupational disease in European and Asian communist regimes.

When Deborah Lipstadt described historian David Irving as a holocaust denier[3], Irving sued Lipstadt for defamation.  In defending against the claim, Lipstadt successfully carried the burden of proving the truth of her accusation.  The trial court’s judgment, quoted by Hasani, reads like a so-called Daubert exclusion of plaintiff Irving’s putative historical writing. Irving v. Penguin Books Ltd., No. 1996-1-1113, 2000 WL 362478, at ¶¶ 1.1, 13.140 (Q.B. Apr. 11, 2000)(finding that “Irving ha[d] misstated historical evidence; adopted positions which run counter to the weight of the evidence; given credence to unreliable evidence and disregarded or dismissed credible evidence.”).

The need for gatekeeping of historian testimony should be obvious.  Historian testimony is often narrative of historical fact that is not beyond the ken of an ordinary fact finder, once the predicate facts are placed into evidence.  Such narratives of historical fact present a serious threat to the integrity of fact finding by creating the conditions for delegation and deferring fact finding responsibility to the historian witness, with an abdication of responsibility by the fact finder. See Ronald J. Allen, “The Conceptual Challenge of Expert Evidence,” 14 Discusiones Filosóficas 41, 50-53 (2013).

Some historians clearly believe that they are empowered by the witness chair to preach or advocate. Allan M. Brandt, who has served as a party expert witness to give testimony on many occasions for plaintiffs in tobacco cases, unapologetically described the liberties he has taken thus:

“It seems to me now, after the hopes and disappointments of the courtroom battle, that we have a role to play in determining the future of the tobacco pandemic. If we occasionally cross the boundary between analysis and advocacy, so be it. The stakes are high, and there is much work yet to do.”

Allan M. Brandt, The Cigarette Century: The Rise, Fall, and Deadly Persistance of the Product That Defined American 505 (2007).

Hasani never comes to grips with the delegation problem or with Brandt’s attitude, which is quite prevalent in the product liability arena. The problem is more than merely “occasional.” The overreaching by historian witnesses reflects the nature of their discipline, the lack of necessity for their testimony, and the failure of courts to exercise their gatekeeping. The problem with Brandt’s excuse making is that neither analysis nor advocacy is needed or desired. Advocacy is the responsibility of counsel, as well as the kind of analysis involved in much of historian testimony.  For instance, when historians offer testimony about the so-called “state of the art,” they are drawing inferences from published and unpublished sources about what people knew or should have known, and about their motivations.  Although their bibliographic and historical researches can be helpful to the fact finder’s effort to understand who was writing what about the issue in times past, historians have no real expertise, beyond the lay fact finder, in discerning intentions, motivations, and belief states.

Hasani concludes that the prevalence of historian expert witness testimony is growing. Hasani at 364.  He cites, however, only four cases for the proposition, three of which pre-date Daubert.  The fourth is an native American rights case. Hasani at 364 n.139. There is little or no evidence that historian expert witness testimony is becoming more prevalent, although it continues in product liability where state of the art — who knew what, when — remains an issue in strict liability and negligence. Mack v. Stryker Corp., 893 F. Supp. 2d 976 (D. Minn. 2012), aff’d, 748 F.3d 845 (8th Cir. 2014). There remains a need for judicial vigilance in policing such state-of-the-art testimony.

[1] Mike Reis is the Vice President and Director of Litigation Research at History Associates Inc. Mr. Reis was received his bachelor’s degree from Loyola College, and his master’s degree from George Washington University, both in history. David Wiseman, an erstwhile trial attorney, conducts historical research for History Associates.

[2] Attributed to Anthony Burgess.

[3] Deborah E. Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory 8 (1993).

 

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Hysterical Histortions

June 12th, 2014

Ramses Delafontaine is a young, aspiring historian. In his graduate thesis, Historicizing the Forensification of History: A Study of Historians as Expert Witnesses in Tobacco Litigation in the United States of America (Univ. Ghent 2013), discusses my commentary on Marxist historians, David Rosner and Gerald Markowitz, and suggests that I claim that lawyers without historical training or experience can do the job of historians.  Id. at 98-100.

Given their training and skills in documenting and recounting narratives, lawyers do, indeed, often do the job of historians, and they often do it very well. Of course, lawyers are often guided, inspired, and assisted by professional historians. Sometimes that guidance is necessary. Lawyers’ narratives, unlike historians’, are also subject to judicial control in the form of evidentiary rules about speculation, relevance, reliability, authentication, and trustworthiness.

Regurgitating Historical Evidence

American courts have thus appropriately limited the use of expert witnesses to present historical narratives in judicial proceedings.  See In re Fosamax Prods. Liab. Litig., 645 F. Supp. 2d 164, 192 (S.D.N.Y. 2009) (‘‘[A]n expert cannot be presented to the jury solely for the purpose of constructing a factual narrative based upon record evidence.’’) (internal citations omitted).[1] In Fosamax, Judge Keenan excluded Dr. Susan Parisian’s proffered narrative account of the development and approval of a bisphosphonate medication for osteoporosis in a case involving a claim of osteonecrosis of the jaw (“phossy jaw”).  Judge Keenan detailed the problems that arise from using expert witnesses to present partisan historical narratives:

“In detailing the factual basis for her opinions, Dr. Parisian’s report presents a narrative of select regulatory events through the summary or selective quotation from internal Merck documents, regulatory filings, and the deposition testimony of Merck employees.

The Court agrees with Merck that, to the extent such evidence is admissible, it should be presented to the jury directly. Dr. Parisian’s commentary on any documents and exhibits in evidence will be limited to explaining the regulatory context in which they were  created, defining any complex or specialized terminology, or drawing inferences that would not be apparent without the benefit of experience or specialized knowledge. She will not be permitted to merely read, selectively quote from, or ‘regurgitate’ the evidence.”

Id.[2]

Ramses Delafontaine is wrong, however, to opine that my rants against Rosner and Markowitz suggest that I have ruled out any role for historians in litigation.   Lisa K. Walker is an historian, who trained at the University of California, Berkeley.  In the welding fume litigation, plaintiffs’ counsel weaved a complex narrative of conspiracy allegations, based in large measure upon the absence of evidence. At the request of Metropolitan Life Insurance Company, Professor Walker researched the dates of publication for various editions of a booklet, Health Protection in Welding, which formed the basis for the plaintiffs’ speculations. Walker found and analyzed eight separate editions, and dated each by internal and external references.  Based upon her research, Walker submitted a declaration, which ultimately was immensely helpful to the resolution of the issues. See In re Welding Rod Prods. Liab. Litig., Case No. 1:03-CV-17000 (MDL Docket No. 1535) (N.D.Ohio Nov. 24, 2004; In re Welding Fume Prods. Liab. Litig., 2007 WL 1087605 (N.D. Ohio April 9, 2007)  (O’Malley, J.) (granting summary judgment in favor of Metropolitan Life Insurance Company).

Although Metropolitan Life should not have had to disprove the allegations, Walker’s research showed the plaintiffs’ historical speculation to be clearly wrong. Sometimes historians can and do contribute valuably to the resolution of legal issues, but the issues are usually more modest than the ones that social and labor historians want to see resolved in favor of their pet theories.

Delafontaine also has a website on the role of historians as expert witnesses in United States tobacco cases.  One of his theses is that “historians who have been involved as expert witnesses for the tobacco industry have been in it for the money and have sold their professional integrity as a historian and an academic.” Delafontaine’s approach is a bit one-sided in that he sees only defendants’ expert witnesses as being “in it for the money,” despite the substantial billings of plaintiffs’ expert witnesses, and their ideological biases. Somehow Delafontaine has missed how even the feel-good advocacy of anti-tobacco activists occasionally outruns its evidentiary headlights.  See, e.g., Michael Siegel, “Is the tobacco control movement misrepresenting the acute cardiovascular health effects of secondhand smoke exposure? An analysis of the scientific evidence and commentary on the implications for tobacco control and public health practice,” 4 Epidem. Persp. & Innov. 12 (2007).

[1] See also In re Prempro Prods. Liab. Litig., 554 F.Supp. 2d 871, 880, 886 (E.D.Ark.2008) (overturning a punitive damages award based on Dr. Parisian’s testimony in part because she ‘‘did not explain the documents, provide summaries, or tie them in to her proposed regulatory testimony’’ and ‘‘did not provide analysis, opinion, or expertise’’); Highland Capital Management, L.P. v. Schneider, 379 F.Supp. 2d 461, 469 (S.D.N.Y.2005)(‘‘[A]n expert cannot be presented to the jury solely for the purpose of constructing a factual narrative based upon record evidence.’’); In re Rezulin Products Liab. Litig., 309 F.Supp. 2d 531, 546 (S.D.N.Y.2004) (rejecting portion of expert report presenting history of Rezulin for no purpose but to ‘‘provid[e] an historical commentary of what happened,’’ along with subjective assessments of intent, motives, and states of mind); In re Diet Drugs Prods. Liab. Litig., MDL No. 1203, 2000 WL 876900, at *9 (E.D.Pa. June 20, 2000) (same); Taylor v. Evans, 1997 WL 154010, at *2 (S.D.N.Y. Apr.1, 1997) (rejecting portions of expert report on the ground that the testimony consisted of ‘‘a narrative of the case which a lay juror is equally capable of constructing’’).

[2] Dr. Parisian appears to be a serial narrative abuser, who has been repeatedly but not consistently excluded. See Scheinberg v. Merck & Co. 924 F.Supp. 2d 477, 497 (S.D.N.Y. 2013); Pritchett v. I-Flow Corp., 2012 WL 1059948, at *7 (D. Colo. Mar. 28, 2012); Miller v. Stryker Instruments, 2012 WL 1718825, at *10-12 (D. Ariz. Mar. 29, 2012) (excluding narrative testimony); Kaufman v. Pfizer Pharms., Inc., 2011 WL 7659333, at *6-10 (S.D. Fla. Aug. 4, 2011), reh’g denied, 2011 WL 10501233 (S.D. Fla. Aug. 10, 2011)(narrative testimony); Hines v. Wyeth, 2011 WL 2680842, at *7 (S.D.W. Va. July 8, 2011), reh’g granted in part, 2011 WL 2730908, at *2 (S.D.W. Va. July 13, 2011); In re Heparin Prods. Liab. Litig., 2011 WL 1059660, at *8 (N.D. Ohio March 21, 2011); Lopez v. I-Flow Inc., 2011 WL 1897548, at *9-10 (D. Ariz. Jan. 26, 2011) (narrative testimony); In re Trasylol Prods. Liab. Litig., 709 F.Supp.2d 1323, 1351 (S.D. Fla. 2010)(tendentious narrative testimony) (“Plainly stated, Dr. Parisian is an advocate, presented with the trappings of an expert but with no expectation or intention of abiding by the opinion constraints of Rule 702.”), reh’g denied, 2010 WL 2541892 (S.D. Fla. June 22, 2010); In re Gadolinium-Based Contrast Agents Prods. Liab. Litig., 2010 WL 1796334, at *13 (N.D. Ohio May 4, 2010); Bessemer v. Novartis Pharms. Corp., 2010 WL 2300222 (N.J. Super. Law Div. April 30, 2010); In re Prempro Prods. Liab. Litig., 554 F. Supp. 2d 871, 879-87 (E.D. Ark. 2008)(reversing judgment on grounds of erroneous admission of narrative testimony), aff’d  in relevant part, 586 F.3d 547, 571 (8th Cir. 2009). Occasionally, Dr. Parisian slips through the gate.  See, e.g., Block v. Woo Young Medical Co., 937 F.Supp.2d 1028, 1044-47 (2013)

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What Happens When Historians Have Bad Memories

March 15th, 2014

Well when patients have poor recall of their medical treatments, signs, and symptoms, physicians say that they are poor historians. Can one say that about Barry Castleman, plaintiffs’ standard bearer on asbestos state-of-the-art issues?

Back in March 2011, I wrote about a memorandum, dated November 5, 1979, apparently written by Castleman to Dr. Irving Selikoff, “Defense Attorneys’ Efforts to Use Background Files of Selikoff-Hammond Studies to Avert Liability.” See “The Selikoff – Castleman Conspiracy” (Mar. 13, 2011). A year later, defense counsel, in a Delaware jury trial before Judge John Parkins, Jr., confronted Castleman with the memorandum.  The exchange was short:

“Q. So, between 1971 and 1992, you’ve had many exchanges with Dr. Selikoff; is that correct?

A. Yes.

Q. And you once asked him to conceal some of the research that he might have done on the 1964 study; is that correct?

A. No. What you’re referring to is a memorandum that doesn’t have any signature and it doesn’t have any letterhead, and was produced in cross-examination about two years ago in a trial. And I have no memory of this document.”

Carlton v. Crane Co., et al., No. 10C-08-216, Delaware Superior Court, New Castle Cty., at p. 152 (June 11, 2012).

After Castleman testified, Judge Parkins issued an order to show cause whether the examining defense counsel violated the rules of professional conduct in his examination of Castleman.  Defense counsel filed a thorough rebuttal to the suggestion that he lacked a good-faith basis for having asked questions about the 1979 memorandum. See Defendant Crane Co.’s Response to Order to Show Cause, Transaction ID 44889066 (June 19, 2012).

In responding to the Order to Show Cause, defense counsel marshaled past testimony given by Castleman, about the memorandum.  In the following 2010 testimony, Castleman acknowledged that he might well have written the memorandum, and that the memorandum reflected contemporaneous concerns of plaintiffs’ counsel Ron Motley and Motley’s requests to Castleman to communicate with Selikoff:

“Q. And you actually wrote a letter to Dr. Selikoff in 1979 wherein you told him Ron Motley, the plaintiffs’ lawyer I work for, knows that you got some information about insulators who said they knew about the hazards of asbestos in the ’40s and ’50s, please don’t let that get out?

A. That is a gross mischaracterization of what I wrote to Dr. Selikoff.

Q. Tell me what the letter said.

A. The memo showed up last summer for the first time. I hadn’t seen this thing or didn’t even remember it. It showed up in cross-examination at some trial last summer. It’s dated 1979 and it — it’s not on any letterheads and not signed, but it looks like something I might have written. I had testified a total of one time at the time I wrote this and I conveyed to Dr. Selikoff one of the plaintiffs’ lawyers with whom I had been in contact, this guy, Motley, was concerned that Selikoff’s medical research records might contain a questionnaire that would include information asking the workers when they first heard that asbestos work was dangerous. And Motley — I conveyed to Selikoff — I am basically conveying Motley’s concern and was saying that if such a thing was turned over to defense counsel, they would use this to get people’s cases dismissed. . . .”

See Transcript of Castleman Testimony, at 753-55, in Farag v. Advance Auto Parts, No. 431525 California Superior, Los Angeles Cty. (Dec. 1, 2010).  Castleman’s testimony further supports the authenticity and his authorship of memorandum, when he explained that he had agreed to communicate with Selikoff because Motley was experiencing a “paranoid fit” over the possibility of the defendants’ obtaining information that would support their defenses of contributory negligence and assumption of risk Id. at 756.

In a Madison County, Illinois, case in 2010, Castleman testified at deposition in a way that appeared to accept his authorship of the memorandum, and his active collaboration with Motley to suppress defendants’ access to discovery of information about the insulators’ knowledge of asbestos hazards:

“Q: Okay. Now, obviously, but you asked Dr. Selikoff, you said, [i]t strikes me as most important to hold these files confidential and resist efforts to get them released to the defendants. Isn’t that true?

A: Yes. I felt that medical research was not something that should just be – – I mean, again, the date of this memo is 1979. I had testified in a total of one trial in my whole life by that time. I was not at all familiar with the legal system. I was very concerned about what Motley told me, because I thought it would jeopardize Selikoff’s ability to do epidemiology studies on workers and identify occupational health hazards, not just with asbestos but with all kinds of things.”

Castleman Deposition Transcript at 26, in Luna v. A.W. Chesterton, Inc., et al., No. 08-L-619, Circuit Court of Madison County, Illinois (July 12, 2010). See also Transcript of Testimony of Barry Castleman at 377, in Benton v. John Crane, Inc., No. 109661/02, Supreme Court of the State of New York, New York County (Oct. 14, 2011) (testifying in response to questions about the memorandum that “I go on to say in the next sentence that it might impair Selikoff’s ability to obtain the cooperation of unions and workers in other studies. . . .”).

In response to this offer of proof for the good-faith basis to inquire about the memorandum, Judge Parkins withdrew the rule to show cause.

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

I have been to Madison County, Illinois, only a couple of times.  Some years ago, I had a deposition in Granite City, a double misnomer; it is neither a city, nor does it have any granite.  Some might say that the county court house, not far away, in Edwardsville, Illinois, has also been a misnomer at times.

A recent trial suggests that the truth will sometime come out in a Madison County trial.  Local media coverage of the trial reported that Barry Castleman testified early in the proceedings, and that he denied writing the conspiratorial 1979 memorandum.  See Heather Isringhausen Gvillo, “Plaintiffs expert denies writing letter to asbestos researcher during Madison County trial” (Feb. 21, 2014) (reporting on Brian King, individually and as special administrator of the estate of Tom King vs. Crane Co.) Actually the text of the article makes clear that Castleman did not deny writing the memorandum; rather, he testified that he had no memory of having written it. “I have no memory of writing this and I don’t recognize it.” Id. On February 28, 2014, distancing themselves from Castleman’s poor memory for his own writings, the jury in the King case rejected the plaintiffs’ claims. Gvillo, “Defense verdict reached in asbestos trial” (Mar. 3, 2014).

Castleman’s lapse of memory is perhaps convenient, and maybe even a disability in someone who aspires to be an historian.  In addition to being a “poor historian” of his own career, which was financed by plaintiffs’ counsel, Castleman appears to have taken direction from Ron Motley and his partners, on where to look, and where not to look, for historical support for the plaintiffs’ version of the state of the art. See “Discovery into the Origin of Historian Expert Witnesses’ Opinions” (Jan. 30, 2012).

There are steps that could be taken to shore up the authenticity of the Castleman-Selikoff memorandum.  A subpoena to the Selikoff document archive might be in order. Since everyone loves a conspiracy, why not convene a grand jury to inquire into an ongoing conspiracy to suppress evidence?

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