Dr. Selikoff had a general practice clinic in Paterson, New Jersey, in the 1950s, when his practice and his litigation support efforts were noticed by the asbestos insulation workers’ union.  Wikipedia, “Irving Selikoff” (last visited Jan. 4, 2014).  According to Wikipedia, “[t]he new cohort (asbestos workers) were still a small fraction of the clinic’s patient list,” but Selikoff noticed a surprising incidence of pleural mesothelioma, within a few years of opening his practice.  The Wiki authors seem deliberately vague about the date of Selikoff’s, and the union’s notice.  Most authors recognize the late Chris Wagner for the discovery of a high rate of mesothelioma, at least among those exposed to crocidolite 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).  Perhaps the vagueness is due to the realization that notice to Selikoff was notice to the union and its membership.

New Jersey lawyer Jon Gelman recounts how his father, also a New Jersey lawyer, involved Dr. Selikoff, back in 1954, as an expert witness in the “original 17” UNARCO (Union Asbestos and Rubber Co.) asbestos worker claims.  According to Gelman, these claims were successfully litigated with Selikoff’s 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). Gelman does not report what diseases were involved in the 17 claims, arising out of the Paterson factory that used mostly amosite asbestos from South Africa. See Herbert Seidman, Irving J. Selikoff, and Steven K. Gelb, “Mortality Experience of Amosite Asbestos Factory Workers : Dose-Response Relationships 5 to 40 Years After Onset of Short-Term Work Exposure,” 10 Am. J. Indus. Med. 479 (1986).

Over the 20 years following the UNARCO 17,  Selikoff went on to have an active testimonial career, always testifying for the claimant, always testifying against the employer or the supplier.[1]  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) (cited by 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)).

Some of the positions that Selikoff took as a partisan expert witness suggest that he was outrunning his headlights.  For instance, in the mid-1960s, Selikoff testified in New York proceedings, in support of a union member, who had died of colon cancer.  Although Selikoff has little or no experience as an epidemiologist, he provided the “expert witness” support for the death claim based upon the very crude data from his insulator cohort study.  Here is how the union magazine heralded the compensation victory, made possible by Selikoff’s advocacy:

“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.

In the last two or three years, a number of decisions have been handed down in the courts of New York and New Jersey acknowledging that not only pneumoconiosis (asbestosis) occurring among insulation workers is compensable, but that also lung cancer and mesothelioma of the chest or mesothelioma of the abdomen should also be compensated.

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 Workman’s Compensation Board 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).

The claimed association between colon cancer and asbestos was dubious at the time of Selikoff’s testimony, and became more so as time went on.  Nonetheless, colon cancer was important issue of compensation for the union membership.   Smoking was highly prevalent among the insulators, who had a high rate of lung cancer.  Colorectal cancer was the leading cause of cancer mortality among non-smokers in the general population, and Selikoff’s efforts to get the insulators to stop smoking was going to shift cancer mortality, naturally, to colorectal cancer. Adding colorectal cancer to the list of “compensable diseases” became an important part of the union’s (and the litigation industry’s) compensation strategy. Selikoff dug in, publishing and republishing the data from the insulator cohort study, which was uncontrolled for smoking and other risk factors. See, e.g., Irving J. Selikoff, “Epidemiology of gastrointestinal cancer,” 9 Envt’l Health Persp. 299 (1974) (arguing for his causal conclusion between asbestos and all gastrointestinal cancers).

More sophisticated epidemiologists consistently rejected the Selikoff conclusion on asbestos and colon cancer, which grew out of Selikoff’s litigation activities.  Richard Doll & Julian Peto, Asbestos: Effects on health of exposure to asbestos 8 (1985) (“In particular, there are no grounds for believing that gastrointestinal cancers in general are peculiarly likely to be caused by asbestos exposure.”)  The litigation efforts of the unions, the litigation industry, and the army of testifying physicians organized by Dr. Selikoff, kept the asbestos-colorectal cancer issue in play in the courts, despite ever increasing data against the conclusion.  Finally, four decades after the asbestos insulation union magazine’s notice about Selikoff’s success in a colon cancer case, the Institute of Medicine weighed in on the issue, to find the evidence inconsistent and insufficient to support a causal conclusion. Jonathan Samet, et al., Institute of Medicine, Asbestos: Selected Health Effects (2006).

The Selikoff acolytes, a/k/a “The Lobby,” will review this narrative as “Shooting the messenger: the vilification of Irving J. Selikoff.” Wikipedia, “Irving Selikoff” (last visited Jan. 4, 2014) (citing Jock McCulloch & Geoffrey Tweedale, “Shooting the messenger: the vilification of Irving J. Selikoff,” 37 Internat’l J. Health Serv. 619 (2007)).

This view is curious and incorrect for several reasons. First, it is curious that the cited authors, labor historians McCulloch and Tweedale, have themselves taken the liberty to attack important scientists for their litigation .  Last year, these authors published their “vilification” of Dr. Anthony Lanza, for having participated in the defense of some litigation cases arising out of the Gauley Bridge tunnel construction.  See Jock McCulloch and Geoffrey Tweedale, “Anthony J. Lanza, Silicosis and the Gauley Bridge ‘Nine’,” 26 Social History of Medicine (2013), in press.  See also “British Labor Historians Belaboring American Labor History – Gauley Bridge”(Oct. 14, 2013) (pointing out errors in McCulloch and Tweedale’s account of Gauley Bridge).

Second, the Selikoff acolytes are incorrect because the historical facts of Selikoff’s involvement are important for an understanding of how some opinions, such as the notion that asbestos causes colorectal cancer, gained currency in lay and professional communities. These views may have been less attractive to the media and to judges if they had known that Selikoff was such an active worker for the litigation industry, as far back as the early 1950s.

One interesting example of how important judges misunderstood Selikoff’s activities comes from no less an astute observer than Judge Jack Weinstein, who held Selikoff up as an “independent, emiment scientist,” who eschewed the courtroom for the laboratory. See, e.g., Hon. Jack B. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and other Multi-Party Devices 117 (1995) (“A court should not coerce independent eminent scientists, such as the late Dr. Irving Selikoff, to testify if, like he, they prefer to publish their results only in scientific journals.”)  Weinstein was demonstrably wrong in this assessment, just as anyone who held up Lanza as never becoming involved in litigation activities would have been wrong.

Third, this information is important in understanding the evolution of the scientific community’s views about disclosing conflicts of interest.  None of Selikoff’s articles disclosed funding from the unions, or his testimonial activities on behalf of the unions and their allied attorneys.  For some reason, Selikoff’s heirs, who have continued to follow and to publish about the health outcomes among the asbestos insulation workers, feel that they are exempt from prevailing views about disclosure.

Dr. Steven Markowitz is the lead author on an update of the lung cancer mortality data of asbestos insulators. Steven B. Markowitz, Steven M. Levin, Albert A. Miller, and Alfred Morabia, “Asbestos, asbestosis, smoking, and lung cancer. New findings from the North American insulator cohort,” 188 Am. J. Respir. Crit. Care Med. 90 (2013).  Dr. Markowitz testifies widely for plaintiffs in asbestos personal injury cases.  See, e.g., Wannall v. Honeywell International Inc., 2013 WL 1966060 (D.D.C. May 14, 2013) (excluding Markowitz’ testimony as unreliable). A review of the disclosure statements for the authors of the 2013 asbestos insulator cohort study shows that Dr. Markowitz declared no consultations that could be a potential conflict of interest. See “The Mt. Sinai Catechism” (June 7, 2013); and “More Hypocrisy Over Conflicts of Interest,” (Dec. 4, 2010) (detailing failures of Selikoff acolytes, Castleman, Lemen, and Frank, in disclosing litigation activities when presenting on related issues to professional societies).

Fourth, there is a recent trend by the litigation industry to claim that failure of defense expert witnesses to make disclosures of their ties to companies constitutes fraud.  Indeed, last spring, the New York Appellate Division affirmed a trial court’s decision to conduct an in camera inspection of documents underlying research studies sponsored and funded by Georgia Pacific. Weitz & Luxenberg P.C. v. Georgia-Pacific LLC, 2013 WL 2435565, 2013 NY Slip Op 04127 (June 6, 2013). The Appellate Division held that the plaintiffs had made a sufficient “showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.” 2013 WL 2435565, at *4.  See “A Cautionary Tale on How Not to Sponsor a Scientific Study for Litigation” (June 21, 2013).

The claim of fraud was perhaps as tenuous as the assertion of the attorney-client privilege.  For  instance, some of the alleged fraudulent conduct was nothing more than an alleged failure to disclose fully the nature of the relationship between the sponsor, Georgia Pacific, and one of the authors:

“For articles lead-authored by David M. Bernstein, Ph.D., and co-authored by Holm, the only disclosure was that the research was ‘sponsored’ or ‘supported’ by a grant from GP. The articles did not disclose that Holm was specially employed by GP for the asbestos litigation or that he reported to GP’s in-house counsel.”

2013 WL 2435565, at *4.  If this evidence be sufficient to show fraud, there will be many parties and expert witnesses in trouble, including the reputation of Dr. Selikoff, and his influence on asbestos litigation and regulation in this country, and abroad.

Finally, this information is important to counteract the distortions of the Selikoff acolytes.  Consider for instance the current entry for Selikoff in Wikipedia.  Wikipedia, “Irving Selikoff” (last visited Jan. 4, 2014):

“Part of the contrary perspective was presented by a Nathan A. Schachtman, an adjunct lecturer at the Columbia Law School. He suggested that Selikoff and his supporters may have organized ‘a lopsided medical conference, arranged for the conference to feature defendant’s expert witnesses, set out to give short shrift to opposing points of view, invited key judges to attend the conference, and paid for the judges’ travel and hotel expenses’. This quote from Schachtman came from a web site he maintained, unlike the quote from McCulloch and Tweedale, whose comments were published only after being accepted by reviewers for a refereed academic journal.“Nathan A. Schachtman”. www.law.columbia.edu. Columbia Law School. Retrieved September 16, 2013.”

While ’tis true that this humble blogger’s posts are not peer reviewed, what is interesting is that the acolytes did not, and could not, counter on the merits.

What is more, my account of “Selikoff and his supporters” did not recount that they “may have organized ‘a lopsided medical conference, arranged for the conference to feature defendant’s expert witnesses, set out to give short shrift to opposing points of view, invited key judges to attend the conference, and paid for the judges’ travel and hotel expenses’.”  My account documented that Selikoff and his supporters did, in fact, do these things.  Actually, they were previously documented in litigation and reported by the courts that held that one of the judges who improvidently had attended Selikoff’s Third Wave Conference had to disqualified from presiding over an asbestos class action.  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)

The point here is not to villify Selikoff but to gain historical perspective and understanding of the enthusiasms that went into creating the largest mass tort in American legal history. Selikoff was an important player in the passion play of products liability litigation, but it is time to substitute history for hagiography.

Expert witnesses come in all sizes, colors, shapes, races, ethnicities, and personalities.  More interestingly, expert witnesses have various motives for becoming involved in the litigation process.  Most expert witnesses, I believe, become involved because they find the issues interesting, and intellectually challenging.  After looking at the claims and defenses put forward by the parties, these expert witnesses believe that one side or the other has the better warrant, or perhaps the only warrant, for its contentions.

Some witnesses sign up to “change the world.”  They are advocates, and they see the courtroom as an extension of the laboratory or the university.  They may want acceptance for their theories or beliefs, and they hope that favorable jury verdicts and judgments based upon those verdicts will elevate their theories in the world of science or policy.

Other expert witnesses are motivated by “white-hat bias.”  They see a verdict for the side for which they testify as promoting retributive, distributive, or social justice.  They may be deontological or utilitarian or Aristotelian in their assessments of the issues, but they are motivated by considerations that often transcend the facts of the particular case.

Of course, there are expert witnesses who see litigants and litigation as an ATM to aid their personal fisc.

I have known only one expert witness who was motivated by guilt.

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Robert B. Anderson kindly alerted me to an interesting historical wiki on Saranac Lake, New York, with some interesting entries for some of the protagonists of the asbestos litigation:  Leroy Upson Gardner, Arthur Vorwald, Gerrit Schepers, and others. 

Dr. Edward Livingston Trudeau founded the Saranac Laboratory for the Study of Tuberculosis, in 1884, as a center for research and treatment of tuberculosis.  The Laboratory, later became known as the Trudeau Institute, was also one of the leading pneumoconiosis research facilities in the 20th century.  Many companies engaged the Laboratory to test their products, or the materials within their products; and Saranac Lake was the natural venue for various symposia and research meetings on industrial dust diseases.

As its director from 1927, until his death in 1946, Dr. Gardner helped put the Saranac Laboratory on the intellectual world map.  His directorship coincided with the period in which the pneumoconioses were becoming important topics in industrial medicine, and in labor-industry battles.  After Dr. Gardner’s death, Dr. Vorwald became the Director of Laboratories at Saranac. He held the position from 1947, until 1954, when he left to organize a new medical school department, of Industrial Medicine and Hygiene, in Wayne State University, in Michigan.

In 1954, the Laboratories fell into the hands of Dr. Schepers, who oversaw its passing into irrelevancy as research moved into the major universities.  Schepers left Saranac in 1958.

Dr. Schepers used his supposed personal knowledge of dealings with various companies to create a livelihood in later life, when he testified extensively for plaintiffs’ counsel in asbestos personal injury litigation.  As the litigation matured, so did Dr. Schepers, who became deaf and daft, and fantasized and testified to conversations with people, long dead, who could not contradict him.  Schepers thus used his longevity to good advantage.

After Dr. Schepers adopted the catechism of Mt. Sinai, his publications, from the early 1980s until his death, became particularly unreliable, and these typically are the only ones cited now by plaintiffs’ counsel and plaintiffs’ expert witnesses.  Fortunately, Dr. Schepers memorialized his contemporaneous observations, which frequently contradicted him when he was confronted by well-prepared defense counsel, in court or deposition examination.  Under the Federal Rules of Evidence, and most state evidentiary law, Schepers’ prior statements are admissible as they bear on his credibility and the truth of his later, scurrilous writings:

“When a hearsay statement … has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.”

Federal Rule of Evidence 806.  See, e.g., “Gerrit W. H. Schepers, MD, RIP” (2011).

The Saranac Wiki also notes that Schepers was “an experienced anthropologist and neurologist.”  Most scientists, however, have been probably all too happy to forget Dr. Schepers’ work in this area.  See, e.g., G.W.H. Schepers, “The Corpus Callosum and Related Structures in the South African Negro Brain,” 24 Am. J. Physical Anthropology 161 (1938).

The Wiki points to a hagiographic obituary that quotes an anonymous friend who called Schepers “the Old War Horse, the record holder for longevity in the struggle against corporate crime.” Laurie Kazan-Allen and Barry Castleman,  “The Passing of a Great Man” (Sept. 13, 2011).   Schepers lived to 97, but his struggle was with his own past, not with alleged corporate crime.

Labor historian Jock McCulloch wrote about Schepers’ role in documenting silicosis disability among South African miners, but even Schepers’ good deeds came with a dubious shadow.  McCulloch describes a South African investigator who described “Dr Schepers as a man whose outstanding intellect was compromised by an ‘inexcusable scientific dishonesty’.”  Jock McCulloch, “Hiding a Pandemic: Dr G.W.H. Schepers and the Politics of Silicosis in South Africa,” 35 J. Southern African Studies 835, 838 (2009) (citing to South African National Archives, Pretoria, F 33\671, Supplementary Confidential Report of the Departmental Committee of Enquiry into the Relation between Silicosis and Pulmonary Disability. Departmental Committee to Inquire into the Definition of Silicosis & Chest Diseases (Oosthuizen) Departmental Committee at 23 (1954)).

Contrary to the fantasy “state of the art” that made Schepers so much in demand for plaintiffs’ lawyers, and endeared so to Kazan, Castleman, and McCulloch, Schepers’ publications tell a different story. Schepers’ very first publication on asbestos and cancer came in 1963, after the work by Dr. Christopher Wagner and others, from South Africa. At that time, he wrote about pulmonary cancers:

“Neoplasia occurs in two forms:  alveolar and bronchiole carcinoma, and pleural mesothelioma.  The latter is particularly common in crocidolite workers, and has been mainly reported from South Africa.”

G. Schepers, ““Lung Disease Caused by Inorganic and Organic Dust” 44 Chest 133, 136 (1963).  This statement came after his South Africa and Saranac experiences, but before senescence set in. Schepers also noted that “neoplasia has not yet resulted” from asbestos in experimental models.  Id. at 136.

American College of Chest Physicians (1964)     

In 1964, Schepers helped prepare a position paper on asbestosis for the American College of Chest Physicians.  This report noted that the enhanced prevalence of pulmonary neoplasia did not appear to apply for the chrysotile industry in North America:

“In the medical literature, there are more articles favoring a positive relationship between cancer of the lung and asbestosis than denying it. While it has been reported that there may be an enhanced prevalence of pulmonary neoplasia in some asbestos industries (e.g. crocidolite or amosite), or in some locations (e.g. South Africa, England), this does not appear to apply for the chrysotile industry in North America. This comment applies both with respect to intrapulmonary new growths and to pleural mesothelioma.”

Peter A. Theodos, John W. G. Hannon, Paul Cartier, Ross K. Childerhose, David T. Dubow, G. W. H. Schepers, Reginald H. Smart, and Roy E. Whitehead, “Asbestosis:  Report of the Section on Nature and Prevalence Committee on Occupational Diseases of the Chest,” 45 Chest 107, 109b (1964).  This report also put pleural plaques into proper historical and physiological perspective:

“In many individuals and perhaps even the majority of cases, these pleural plaques do not present any histologic lesions of asbestosis and contain no asbestos fibers. *** These plaques, though apparent on X‑ray, are not associated with any disability.”

Id. at 109a.

New York Academy of Science Conference on Asbestos (1964)

Also in 1964, Schepers was a significant presence at Dr. Selikoff’s 1964 conference of the New York Academy of Science, where he commented upon others’ presentations.  Here Schepers continued to express his doubts about the carcinogenicity of North American chrysotile:

“Finally, there is the question of whether inhalation of chrysotile is associated with neoplasia.  On critically reviewing the work histories of eleven cases of lung cancer in chrysotile workers, I find that all of these had at one time or another also been exposed to other forms of asbestos, mainly amosite or crocidolite.  Their predominant exposure was to chrysotile, but since there is strong evidence incriminating amosite as a carcinogen, the fact that these men also had been exposed to amosite is disruptive of a theory of carcinogenicity per se.”

Schepers, “Discussion,” in Biological Effects of Asbestos 132 Ann. N. Y. Acad. Sci. 589, 596 (1965). Schepers paved the way on manufacturing uncertainty when he suggested at the 1964 conference, an alternative hypothesis to crocidolite as a cause of mesothelioma; he suggested that some of the mesotheliomas in South Africa might have been caused by a native grass known as Klitsgras.

Talc Symposium (1973)

In May 1973, Schepers participated in a written presentation at a symposium on talc, sponsored by the United States Department of Interior.  At the time, Schepers was an employee of the United States government, the Chief of the Medical Service, Veterans Administration, in Lebanon, Pennsylvania:

“There are marked differences between the capacities of the individual classes of silicate minerals to provoke responses in human and animal tissues. There also are major misconceptions as to what these substances can do when inhaled by man or other mammals. Two of the most extreme of these are

(1) that all siliceous minerals are equally pathogenic and

(2) that there is even the least semblance between the effects of the asbestiform and the non-asbestiform silicates.”

Gerrit W. H. Schepers, “The Biological Action of Talc and Other Silicate Minerals,” at 54, in Aurel Goodwin, Proceedings of the symposium on talc: U.S. Bureau of Mines; Information Circular 8639 (1974).  This view was directly opposed to the Mt. Sinai gospel about to be delivered in another government proceeding. See U.S. Environmental Protection Agency v. Reserve Mining Co., 514 F.2d 492 (8th Cir. 1975) (en banc).  Schepers, however, had not yet gotten the memo, or perhaps his loyalty was still to his employer, the United States government.  Schepers was not, however, under the influence of any company or corporate interest, when he wrote:

“Is chrysotile a carcinogen? This is a very perplexing question. A crescendo of popular opinion has sought to incriminate chrysotile. This author remains unconvinced.  The main premise for carcinogenicity stems from epidemiological observation of employees of the insulation and shipbuilding industries. In both these industries there has been in the past considerable exposure of pipe laggers to asbestos dust. Only in recent decades, however, have these insulation bats been composed predominantly of chrysotile. In former years crocidolite and amosite were important components.

                                                                               ***

Finally, it should be pointed out that the role of cigarette smoking has not been satisfactorily discounted in the referenced epidemiological studies of lung cancer among insulation workers. In some groups reported an excess prevalence of lung cancer was not demonstrable when cigarette smoking was taken into consideration. Epidemiological surveys of chrysotile workers in Quebec showed no excess of lung cancer. A review of pleural mesothiliomatosis in Canada also failed to focus attention on Quebec or any other center where chrysotile industries are concentrated.”

Gerrit W. H. Schepers, “The Biological Action of Talc and Other Silicate Minerals,” at 70.  Unlike Dr. Selikoff, Schepers was not a crocidolite denier.

OSHA Proceedings 1976

In 1970, the Williams-Steiger Act created a new federal agency, the Occupational Safety and Health Administration, and one of its first missions was to address an asbestos problem that emerged in the 1960s.  The new agency held extensive hearings and engaged in factfinding, which was dominated by Dr. Selikoff and other proxies for the labor unions.

In 1976, Schepers was not yet under the influence of the Mt. Sinai crowd; indeed, he was an employee of the United States.  Here are the contemporaneous views of Dr. Schepers, as he attempted to influence the OSHA investigation of the asbestos fiber controversy.  In a letter dated July 19, 1976, Schepers wrote Grover Wrenn, Chief, Division of Health Standards Development, OSHA:

“This is a follow-up on our recent meeting with the Assistant Secretary of Labor at which we discussed the question of asbestosis and berylliosis and the relationship of exposure of various industrial substances to lung cancer.

I promised to help you place items in the record which you appeared not have available.”

                                                        ***

“As you can see my researches cast considerable doubt on the proposition that American fibrous minerals are carcinogenic.  I am not one of those that deny the carcinogenicity of everything.  To the contrary, I believe that I have helped prove that some environmental pollutants are carcinogenic.  For this reason you may perhaps accept the credibility of my findings when I state that I could detect no evidence of carcinogenicity for either chrysotile, talc or fiberglass.”

Asbestos Litigation – The Gathering Storm (1978)

By the late 1970s, asbestos litigation was swamping American courtrooms.  The United States Navy in particular was threatened by the potential expense of compensating its large civilian shipyard workforce.  Schepers sought out the role of testifying witness, in a letter dated March 10, 1978, Dr Schepers wrote to Captain Hoeffler, of the Navy’s Bureau of Medicine and Surgery, in Washington D.C.  Schepers shamelessly took credit for discovering the connection between mesothelioma and amphibole asbestos, in 1949. Of course, if this self-aggrandizing claim were true, Schepers would have been involved in a much more devastating cover-up than any American company.  Here is the substance of Schepers’ 1978 solicitation letter:

“Here is a CV and some reprints which will possibly be helpful.  Since I have been involved with so many things, my expertise with respect to asbestosis is somewhat hidden among the rest.  For emphasis therefore let me summarize that my clinical and research involvement with asbestosis and thus also lung cancer spans some thirty years.  I commenced this work in South Africa, where as a …. Medical director for the pneumoconiosis Bureau we researched the working conditions and health of all employees of that countries [sic] extensive crocidolite and amosite mines and industries.  The fact that mesothelioma can be associated with asbestos dust was first discovered by me during 1949 at the Penge Egnep mines in the Eastern Transvaal.  It is also important to know that only one out of three persons who develop mesothelioma ever was exposed to asbestos dust.  The Institute for Pneumoconiosis Research which I started there has abundant evidence about this.

In the USA I next studied the asbestos problem for the Quebec Government and the Johns Mansville Company and also for various asbestos producing companies.  This embraced research on human subjects, lung tissue and experimental animals.  The net result of my fifteen years of work in this field has been to convince me that chrysotile, which is the North American type of asbestos, is relatively innocuous as compared to the African and Russian varieties.  I have never seen a case of lung cancer develop on any person exposed to chrysotile only.  However I have seen plenty of lung cancers in asbestos workers.

This is because most asbestos workers are exposed to carcinogenic materials other than asbestos and all the cases with lung cancer also were chronic lung self-mutilators through cigarette smoking.  In a rather major set of experiments of mine, I exposed animals to the most potent known carcinogenic (beryllium sulphate) and then exposed them to asbestos (chrysotile) dust.  These animals had fewer cancers than those exposed to the beryllium sulphate.  So chrysotile is not even a significant co-carcinogen.  I reversed the order of the exposure – namely asbestos (chrysotile) first and the the BeSO4.  The result was the same.  The animals exposed only to chrysotile never developed any lung cancers.

I probably have the largest collection of asbestosis case materials, having been a consultant to hundreds of physicians.  I have a very detailed knowledge of what various types of asbestos can and cannot do to the lungs.  If my command of this subject can be of use to the Navy in the current law suit, please feel to use my services as consultant as you deem fit.”

Schepers Reinvented

As we can see from his 1978 correspondence, Dr. Schepers was not shy about touting his expertise, or his opinions about the innocuousness of chrysotile asbestos.  Castleman’s revisionist history has some support only from Scheper’s own later attempts to reinvent his past.  See, e.g., Gerrit W.H. Schepers, “Chronology of Asbestos Cancer Discoveries: Experimental Studies of the Saranac Laboratory,” 27 Am. J. Indus. Med. 593-606 (1995). The contemporaneous history of Schepers’ views is, however, completely at odds with words written only after decades of consulting with, and testifying for, plaintiffs’ counsel in asbestos litigation.

Like many other defense lawyers, I confronted Dr. Schepers in cases in which he testified both on state-of-the-art issues and on the causation of mesothelioma.  Towards the end of his testifying career, he likened his courtroom performances to that of “performing seal for lawyers in the courtroom.”  Testimony of Gerrit W. Schepers, in Hill v. Carey Canada, New Jersey Superior Court, Law Division for Camden County, Docket No. L-051429-84, 48-50 (July 24, 1990) (before Judge Supnick and a jury). 

The interviews he gave for the media were even more of a performance. In one interview that Schepers gave about a year or so before his death, he cut even more grandiose poses of a whistleblower and crusader.  See Lorraine Mallinder, “Deadly Secret: A 1940s whistle-blower uncovers hidden evidence linking asbestos to cancer,” 91 Canada’s History 33 (April 2011). 

Why did Schepers commit himself in retirement to the plaintiffs’ bar and their relentless prosecution of asbestos cases?  Marxist historians and writers such as McCulloch and Castleman, who see every societal ill as the result of corporate influence will not likely discern Schepers’ true motivations.  By the time I encountered Schepers he was no longer a needy former civil servant.  He was trying to rewrite history because he was personally responsible for the continued use of South African crocidolite in the United States, for decades after he claimed to have discovered its causal relation to mesothelioma.  He was a man tormented by guilt, and his ritualistic participation in trials of mesothelioma claims was expiation for his role in the tragedy.

It is sad that the asbestos litigation is still with us. Dean Wellington’s pipedream of turning the asbestos litigation feeding frenzy into an administrative routine is long gone.  The bankruptcies of dozens of companies, with the losses of jobs and income for many thousands of American workers is a great tragedy; but so is the loss of historical perspective.

“What will history say?  History, sir, will tell lies as usual.”
George Bernard Shaw, The Devil’s Disciple (1901)

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Parties to products liability litigation have for some time resorted to the ruse of using historians as rhetoricians and advocates to argue partisan litigation positions to the jury, in the evidentiary phase of trials.  The obvious opening for this ruse has come in advancing party positions on “state of the art” to claim or defend against negligence.  When plaintiffs use this tactic, they seek not only to introduce evidence of pre-sale belief or knowledge of hazards, but also to disparage any challenges to, or doubts about, hazards as unreasonable, biased, or malicious.  When defendants use this tactic, they of course seek to return the favor, by employing their expert witnesses as advocates on crucial issues of historical knowledge.

Two historian gladiators, David Rosner and Gerald Markowitz, have served as capable arguers in silica, asbestos, lead, and vinyl chloride litigation.  Indeed, you might well expect to meet them at the Argument Clinic, although more recently, they starred in an appearance in a California lead paint case, currently on trial.  See CA Lead Paint Trial: Same old Rosner, Markowitz show (Aug. 07, 2013); Howard Mintz, “Hazardous lead paint: Legal battle comes to trial in California” (July 16, 2013) (quoting Rosner’s email exchange with reporter in which he previews his partisan opinions on lead paint in advance of his testimony).

We can find no clearer statement of judicial antipathy to expert witness advocacy than the famous copyright decision by Judge Learned Hand in Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).  Both sides in Nichols presented expert testimony on “dramatic writing” in an effort to prove or disprove a claim that one screenplay infringed upon another. Deprecating the lengthy, argumentative testimony from both sides’ experts, Judge Hand declared that

“[i]t ought not be allowed at all. . . .”

Id. at 123. Judge Hand explained with his usual magisterial authority:

“Argument is argument whether in the box or at the bar, and its proper place is the last.”

Id.

Other areas of expertise, besides historical scholarship, fail to satisfy the basic requirements of expert witness testimony. For instance, Judge Hand’s complaints about the “literary critic” expert witnesses in Nichols, have been relodged against “ethics” witnesses. In GST v. Telecommunications, Inc., 192 F.R.D. 109 (S.D.N.Y. 2000), both parties offered expert witness on the ethics of the conduct of corporate officers. Invoking the helpfulness criterion of Federal Rule of Evidence 702, the Court found the proffered testimony would not aid the jury:

“It is evident that the contentious advocacy of the experts – illustrated by conclusions on the credibility of explanations regarding the business judgment of the board of directors . . . in clearly expressed, biased viewpoints – do little to aid the triers of fact on the underlying transactions.”

Id. at 110. The trial court discerned a serious danger that expert testimony on ethics would usurp the jury’s role in applying the law to the facts found in the case. Id. Permitting such testimony would allow expert witnesses to attempt to substitute their judgment for the jury’s. Id.; see, e.g., Pan American World Airways, Inc. v. Aetna Casualty & Surety, 505 F.2d 989, 998 (2d Cir. 1974) (noting disapprovingly that, evidence consisted “largely of hearsay, propaganda, speculation, and conjecture”). See also Imwinkelreid, “Expert Testimony by Ethicists: What Should Be the Norm?” 76 Temple L. Rev. 91, 114, 128 (2003) (noting that normative testimony will virtually always be inadmissible).

Of course, the substitution of an expert witness’s judgment for the jury’s is precisely what many trial lawyers hope to accomplish. Lawyers can select and present expert witnesses based upon their opinions and conclusions, whereas the conclusions of juries are all too unpredictable.  Trial courts must be vigilant to police expert witness opinion testimony in the area of history as much as, if not more than, in the area of scientific testimony. Rule 702’s requirement of knowledge that will assist the trier of fact is designed to prevent expert witnesses from testifying about matters within the common understanding of the jury, and about which the jurors can reason without help from an expert witness. In the Rezulin Multidistrict Litigation (MDL), testimony that was “a narrative of the case which a juror is equally capable of constructing” was precluded.  In re Rezulin Products Liability Litig., 309 F.Supp. 2d 531, 541 (S.D.N.Y. 2004).  Judge Kaplan explained that expert witnesses were not the appropriate conduit for a narrative of events, meetings, regulations, and documents, when they were not percipient witnesses. Such testimony was within the jury’s lay understanding, and the law prohibited the attempt to have expert witnesses “supplant the role of counsel in making argument at trial, and the role of the jury in interpreting the evidence.” Id. at 551.  See generally “Narratives & Historians for Hire”; and “How Testifying Historians Are Like Lawn-Mowing Dogs.”

In Marvel Characters, Inc. v. Kirby, 2013 WL 4016875 (2d Cir. Aug. 8, 2013), the Second Circuit reaffirmed Learned Hand’s jaundiced view of expert witness advocates in the form of historian testimony. Jack Kirby was among the artists responsible for creating comic strip characters of X-Men, the Hulk, Captain America, Thor, and the Fantastic Four. Kirby’s heirs claimed that the intellectual property rights in these characters passed to them.  Marvel Characters, Inc., sought a declaratory judgment that the characters were “works for hire,” now owned by Marvel Entertainment, a subsidiary of corporate oligarch, Walt Disney Co.

The district court rejected the claims of Kirby’s heirs, and the Second Circuit affirmed. Marvel Worldwide, Inc. v. Kirby, 777 F. Supp. 2d 720 (S.D.N.Y. 2011), aff’d, 2013 WL 4016875 (2d Cir. 2013).  In ruling on Marvel’s motion for judgment, the district evaluated and excluded the proffered expert witness testimony of John Morrow and Mark Evanier, who would have testified on the history of the relationship between Marvel and Jack Kirby. 777 F. Supp. 2d 720, 729-30 (S.D.N.Y. 2011). The Second Circuit held that the district court had clearly not abused its discretion in these exclusionary rulings.  Marvel Characters, Inc. v. Kirby, slip op. at 36.

In affirming the rejection of these historians’ proffered opinions, the Circuit waxed  historiosophical:

“We have no doubt that a historian’s ‘specialized knowledge’ could potentially aid a trier of fact in some cases. A historian could, for example, help to identify, gauge the reliability of, and interpret evidence that would otherwise elude, mislead, or remain opaque to a layperson. He or she might helpfully synthesize dense or voluminous historical texts. Or such a witness might offer background knowledge or context that illuminates or places in perspective past events.”

Slip op. at 34 (internal citations omitted).

Morrow and Evanier wandered far outside the permissible boundaries of historian expert testimony.  They sought to marshal opinions based largely upon hearsay statements of various artists, uttered in a variety of settings, about how Marvel treated artists back in the day. From these statements, the aspiring litigation historians speculated about intentions, understandings, and motivations of the historical actors at Marvel, and of Jack Kirby.  Id. at 35.

The appellate court recognized the serious danger of using historian expert witnesses as

“a conduit for introducing hearsay under the guise that the testifying expert used the hearsay as the basis of his testimony.”

Id. (internal citations omitted).  The Circuit recognized that implicit in Rule 703 is something akin to a “best evidence” rule, which relegated the historians to clearly less than best:

“The appropriate way to adduce factual details of specific past events is, where possible, through persons who witnessed those events. And the jobs of judging these witnesses’ credibility and drawing inferences from their testimony belong to the factfinder.”

Id. at 37.  The Circuit also noted that the expert opinion testimony from historians was beset a serious evidentiary challenges. In addition to relevance, legal and logical, and Rule 702, historian opinions raises basic issues about the source of the opinions.

Applying these principles, the appellate court recognized that the heirs’ witnesses were not using specialized knowledge or offering helpful historian insights, but they were marshalling hearsay:

“But Morrow and Evanier do not bring their expertise to bear in any such way. As the district court recognized, their reports are by and large undergirded by hearsay statements, made by freelance artists in both formal and informal settings, concerning Marvel’s general practices towards its artists during the relevant time period.  Drawing from these statements, they then speculate as to the motivations and intentions of certain parties… .”

Id. at 36 (internal citations omitted).

The Second Circuit’s decision is timely.  Perhaps the California trial court pondering the claims against the paint industry will heed the Marvel opinion.  The Marvel Characters opinion should close the door on the use of Rosner and Markowitz’ historical argument, as well as that of other would-be testifying historians in other cases.  In products liability cases, many of the proffered witnesses seek to testify about hearsay statements, and argue inferences about intentions, understandings, and motivations of the historical actors.  Like Morrow and Evanier, they should be excluded from the litigation process.

Every TV-literate American of my generation knows that Mr. Peabody and his boy, Sherman, invented a time machine, the “WABAC machine,” which allowed them to travel back in time to explore, and to alter, historical events. The Rocky and Bullwinkle Show. My children know that the universe began with the creation of the internet, and that all you need to visit the past is the Wayback Machine, at http://archive.org/index.php

The content of the internet is not static; webpages come and go.  The Wayback Machine periodically archives snapshots of webpages, and makes them available for review.  The Wayback Machine has great utility for investigative journalists, historians, and, of course, lawyers.  See Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627 (E.D. Pa. 2007) (describing the Internet Archive as “a nonprofit organization that has created an online library of digital media in an effort to preserve digital content for future reference. Its digital database is equivalent to a paper library, but is filled with digital media like websites instead of books. The library includes a collection of chronological records of various websites which Internet Archive makes available at no cost to the public via the Wayback Machine. The library’s records include more than 85 billion screenshots of web pages which are stored on a computer database in California. Internet Archive’s database provides users with the ability to study websites that may have been changed or no longer exist.”).

A few years ago, when I was practicing in Philadelphia, an out-of-town firm filed over 100 silicosis cases in the Court of Common Pleas.  The cases were generated by screenings funded and organized by the plaintiffs’ firm.  The plaintiffs’ and defense counsel tussled over the propriety of the screenings, and the plaintiffs’ firm insisted that it did not historically conduct radiographic screenings for pneumoconiosis cases.  A simple search for the plaintiffs’ firm’s website, on The Wayback Machine, told a different story.   See Schachtman, “State Regulators Impose Sanction for Unlawful Silicosis Screenings,” 17(13) Wash. Leg. Fdtn. Leg. Op. Ltr. (May 25, 2007).

Proving the past content of the plaintiffs’ firm’s website never became an issue in the Philadelphia silicosis issue, but the Wayback Machine has figured in other litigation where authentication was required.  United States v. Bansal, 663 F.3d 634 (3d Cir. 2011);  Keystone Retaining Wall Sys., Inc. v. Basalite Concrete Prods., LLC, 2011 U.S. Dist. LEXIS 145545, n.9 (D. Minn. Dec. 19, 2011) (noting that federal courts have regularly accepted evidence from the Internet Archive); St. Luke’s Cataract & Laser Inst., P.A. v. Sanderson, No. 8:06-CV-223, 2006 U.S. Dist. LEXIS 28873, at *6, 2006 WL 1320242, at *2 (M.D. Fla. May 12, 2006) (noting that a screen capture from the Internet Archive could be printed out and authenticated with an affidavit from a “representative of Internet Archive with personal knowledge of its contents, verifying that the printouts Plaintiff seeks to admit are true and accurate copies of Internet Archive’s records”).

There is also a significant secondary literature describing authentication procedures.  See WAYBACK MACHINE MEMO: Report of the Discovery Practices and Procedures Subcommittee of the Enforcement Committee (Nov. 2009) (collecting cases and urging authentication by judicial notice or stipulation); Wayback Machine Frequently Asked Questions (describing model affidavit for authentication, and alternative procedures in lieu of affidavit).

See also Kenneth N. Rashbaum, Matthew F. Knouff, and Dominique Murray, “Admissibility of Non-U.S. Electronic Evidence,” 18 Richmond J. L. & Tech. 9 (2012);  Rebecca Levy-Sachs & Jason Curtin, “Clearing Hurdles to Admission,” For The Defense 24 (Jan. 2011); James Gibson & Ketan Bhirud, “Admitting Web Pages Into Evidence,” Nevada Lawyer 15 (Oct. 2010); Deborah R. Eltgroth, “Best Evidence and the Wayback Machine: Toward a Workable Authentication Standard for Archived Internet Evidence,” 78 Fordham L. Rev. 181 (2009); Beryl A. Howell, “Proving Web History: How to Use the Internet Archive,” J. Internet Law 3 (Feb. 2006); Gregory P. Joseph, “Internet Archive (Wayback Machine) Printouts Received in Evidence on Preliminary Injunction Motion Evidently without Further Authentication — Courts Warming to Reliability“; Federal Evidence Review, “Authenticating Internet Screenshot Evidence Under FRE 901” (Dec. 19, 2011) (describing Bansal case and its review of authentication methods for the Wayback Machine archive of website pages).