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COURTING CLIO: HISTORIANS UNDER OATH – Part 1

December 17th, 2011

The role of historians as expert witnesses is precarious. They purport to marshal factual evidence from reliable sources, but that is exactly what lawyers are supposed to do. Historians argue reasonable inferences from facts to opinions about causation, motivation, and intent. Again, that is what lawyers are supposed to do in the argument phase of a trial. Generally speaking, historians are superfluous in trials.

Last year, John Ulizio and I submitted an abstract, “Courting Clio,” to the International Commission on Occupational Health (ICOH), for its Fourth International Conference on the History of Occupational and Environmental Health June 19 – 22, 2010. My presentation received mixed reviews, with the negative reaction coming from a peanut gallery of a testifying historian expert witness. See “A Walk on the Wild Side” (July 16, 2010). The abstract, “Courting Clio: Historians and Their Testimony in Products Liability Action,” will appear next year in Brian Dolan and 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)(in press).

For an illustrative example of the gratuitousness of much of expert historian testimony, consider the following exchange in a deposition in a case involving claims of failure to warn, and of silicosis:

Q. Would you agree that in the 1930s, you would have to be quite a knucklehead – that’s a technical term – not to know that silica under some circumstances would cause silicosis?

A. I would agree with that characterization and the use of that technical term.

Gerald Markowitz Deposition, Mendez, at p. 115 (2005)

I believe you would have to be knucklehead to think that a jury needed Professor Markowitz to address historical knowledge about the hazards of excessive silica exposure, but plaintiffs’ lawyers persist in that practice in their silica cases.

What follows is the first part of an expanded version of the abstract presented at the ICOH.

COURTING CLIO: HISTORIANS UNDER OATH

Introduction

Every trial involves a dispute about past facts and events. The trier of fact must resolve the factual disputes based upon the evidence marshaled at trial. In the common law system, the parties are primarily responsible for adducing evidence that will support their claims about historical facts. A mature law of evidence governs admissibility of evidence, and what is reserved to counsel’s argument and the trier of fact’s reasonable inference. The body of rules and principles that make up the law of evidence has evolved toward securing fairness, eliminating undue expense and delay, and ascertaining the truth. Fed. R. Evid. 102. Many would question the perfection of the current law of evidence, but few would agree to turn control over evidence and inference to historians appearing in court as expert witnesses.

Trial lawyers, using admissible evidence at trial, and fair comment in summation, attempt to persuade the triers of fact of the correctness of their version of historical facts relevant to the dispute. In courthouses throughout the common-law world, trying cases ranging from car wrecks to complex anti-trust conspiracies, lawyers research, document, and adduce evidence of historical fact. Judges regulate the proof of relevant historical facts by a system of rules that has been refined over centuries in the crucible of judicial experience.

At first blush, historians would appear to have little or no role in the litigation process. Historians, in marshaling evidence and inference, are largely redundant to the lawyering process. Indeed, reported decisions involving historians are relatively uncommon. For the most part, historians are discussed as witnesses in only a few cases, involving such issues as land boundary disputes, navigability of rivers and riparian rights, Native American tribal status, or Nazi deportations. See, e.g., Cayuga Indian Nation v. Pataki, 165 F.Supp. 2d 266, 300 (N.D.N.Y. 2001) (testimony on state’s purchase of tribal land); Denson v. Stack, 997 F.2d 1356, 1363-68 (11^th Cir. 1993) (Clark, J., dissenting) (navigability of river in mid-19^th century); Naujalis v. INS, 240 F.3d 642, 645 n.7 (7^th Cir. 2001) (Nazi deportation); United States v. Dailide, 227 F.3d 385, 387 (6^th Cir. 2000) (historian’s testimony in deportation proceeding). The common themes to those cases are the arcane proofs, serious authenticity issues, and foreign language of the documentary evidence.

Historian As Advocate

There is a disturbing tendency for historians, as well as other academics, to view service as an expert witness as a way to effect social change. Some historians have honestly acknowledged that they became lawyers manqué in their role as experts. Professor Alfred Kelly, noted historian of the Reconstruction era, who served on the NAACP’s legal team in Brown v. Board of Education, 347 U.S. 483 (1954), strained to make out the historical case that the ratifiers of the Fourteenth Amendment had intended or anticipated to desegregate public schools. In Richard Kluger’s history of Brown, Professor Kelly is quoted as saying that he “was caught between [his] ideals as an historian and what these people in New York [NAACP] wanted and needed.” R. Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality, 802 (N.Y. 1975).

Historian David Rothman recently acknowledged advocacy as the basic motivation for historians to serve as expert witnesses. In his article, “Serving Clio and Client: The Historian as Expert Witness,” 77 Bull. Hist. Med. 25 (2003), Rothman notes and embraces the tendentious nature of historical scholarship. “Historians,” he tell us, “are no more or less ‘objective’ in the courtroom than they are in the lecture hall or in print.” Id. at 44. That assessment, alone, should give trial courts serious pause before allowing historians to testify.

In arguing why historians should serve as expert witnesses, Rothman advances the unexceptional point that litigants should have access to the expertise to have their day in court. Id. To the extent that historical expertise is the proper subject of opinion testimony, and the opinion is reliably based, Rothman’s point is well taken. Emboldened, however, by the prospect of turning the witness chair into the bully pulpit, Rothman waxes expansively about the attraction of forays into the courtroom. Historians, as expert witnesses, “may wish to bring their expertise to the support of a cause.” Id (emphasis added). Rothman sees historian expert witnesses as “advocates and agents of change.” Id.

Rothman’s view of the historian as an advocate is by no means unique. The American Historical Association (AHA), chartered by the United States Congress in 1889, has proclaimed that political views may “inform their historical practice.” AHA, Statement on Standards of Professional Conduct, 2005 Edition, available at http://www.historians.org/pubs/Free/ProfessionalStandards.cfm (last revised January 2011).

The AHA urges hopefully that historians’ political views, when “applied with integrity,” can inform their historical researches and writing. Id. One of the public arenas contemplated for historical practice, by the AHA, is the courtroom, where historians will serve as expert witnesses. Id. In its Internet website guide to job opportunities for college graduates with degrees in history, the AHA describes “historians as advocates,” and encourages young historians that they may play an important part in the legal process by serving as expert witnesses. AHA, http://www.historians.org/pubs/Free/careers/Index.htm (last visited on Dec.17, 2011).

Rothman’s and the AHA’s conception of the historian’s role in the trial process is inconsistent with long-established law of expert witness opinion. Expert witnesses are simply not supposed to be advocates. In their enthusiasm for an expansive role for historians, these historians have helped to identify much that is wrong with historian witness testimony. Venality is a relatively weak motive, and one that is easily documented, compared with the corrupting influence of the zeal of advocacy, disguised as expert opinion.

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 wrote 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 witness in Nichols, have been re-lodged against witnesses with expertise in ethics. 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 requirement of helpfulness embodied in 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 Imwinkelried, “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 that of a jury is precisely what all trial lawyers hope to accomplish. Lawyers can select and present expert witnesses based upon their opinions and conclusion, 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.

Barring Unreliable Opinion Testimony From Historians

Stripping the argument and advocacy from historian testimony would go a long way toward remedying what is unreliable and objectionable from such opinions. Indeed, in many cases, lawyers may find themselves with little or no reason to call on historian witnesses.

If juries should be subjected to the opinion testimony of historians, serving as expert witnesses, are there any protections against unreliable historical opinions? We are all familiar with the extravagant claims of revisionist historians, who endeavor to reinvent the past for some political purpose. Consider, for example, the cottage industry that decimated our forests in an effort to exculpate the late Alger Hiss. The prospect of similar opinion testimony in the forum of tort cases is no less daunting.

The American Historical Association (A.H.A.) has recently promulgated updated standards necessary for the productions of reliable history. Statement on Standards, supra at http://www.historians.org/pubs/Free/ProfessionalStandards.cfm (last revised January 2011). These standards raise the important question whether courts, to the extent they permit historical testimony at all, will insist upon a showing of “reliability” before allowing widely disparate historical opinions to be presented to juries. Surely, historical opinion that is unreliable, like unreliable scientific opinion, would not be helpful to the trier of fact. Courts, employing various evidentiary standards, routinely exclude unhelpful testimony. Furthermore, few lawyers would contend that they have a right, constitutional or otherwise, to present unreliable or unhelpful testimony.

The AHA’s Standards may provide a starting point for judicial consideration of the reliability of proffered historical testimony. The Association views itself as having a special obligation to address “dilemmas and concerns about the practice of history that historians have regularly brought to the A.H.A. seeking guidance and counsel.” Id. The AHA Standards address “forms of professional misconduct that are especially troubling to historians,” and “identify a core set of shared values that professional historians strive to honor in the course of their work.” Id. The AHA thus acts as have many medical and scientific societies that have put forward guidelines and consensus statements on methodologic issues.

The AHA Standards explicitly acknowledge that historical scholarship is pursued and presented in many venues and formats, including as expert witness testimony in public arenas:

Practicing history in the public realm presents important challenges, for when historians communicate with a wide public, they must represent not just a particular interpretation or body of facts, but the best practices of the discipline of history itself. This means they must inevitably walk a tightrope in balancing their desire to present a particular point of view with their responsibility to uphold the standards and values that underpin their professional authority as historians. This challenge can be especially complex for . . . historians working in advocacy roles.

Id. The Standards in many respects adopt a standard of care for historians. Practicing history with integrity is defined in terms of both duties of aspiration and prohibition. Among those standards relevant to a reliability assessment of historian testimony is the exhortation to acknowledge “the limits and uncertainties” of one’s arguments, as well as not to omit evidence that tends to counter or undermine one’s interpretations. Id. Although the Standards acknowledge the legitimacy of “point of view,” they define professional integrity in terms of, among other things, “a readiness to follow sound method and analysis wherever they may lead.” Id.

The limits suggested by the AHA can certainly help courts evaluate historians’ testimony when carrying out their gatekeeping role for these expert witnesses. The Standards, however, should not usurp the judicial function to define and apply criteria for the reliability and helpfulness of opinion testimony.

(to be continued)

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Scientific American(s) and the other 99%

December 7th, 2011

If you have an interest in the history of science, especially as it plays out in the so-called state-of-the-art defense in products liability litigation, you may find the following offer helpful. For the remainder of the month, Scientific American, which is now published by Nature, is making its archived issues, 1845-1909, available free of charge.

There is more fascinating than to read what people were thinking, saying, and writing, at times past. Most of what we think we know about the past is filtered by historians rather than being obtained by accessing primary sources. The Scientific American archive is a useful corrective measure, especially in the contentious area of health-effects litigation.

Here are some of the interesting historical insights. In 1871, 140 years ago, Scientific American ran an article on the ill-health effects of smoking. “To smoke or not to smoke,” Scientific American 375 (Dec. 9, 1871). Here are some highlights:

“M. Beau notices eight cases of angina pectoris caused by the use of tobacco.

Professor Lizars records several cases of cancer of the tongue and lips caused by the use of the pipe. The writer has known one such ill stance, and never wishes to see another example of such terrible suffering resulting from a worse than useless habit.”

These pronouncements might not pass muster under today’s evidence-based medicine, but they were astute observations in need of testing, in 1871.

Not all the medical observations and claims were equally prescient. Our forebears were not immune from the idiocies and enthusiasms of medical quackery. Cancer remedies seemed to be a particular focus of much unenlightened attention:

“Col. Ussery, of the parish of De Soto, informs the Editor of the Caddo Gazette that he fully tested a remedy for this troublesome disease, recommended to him by a Spanish woman, a native of the country. The remedy is this: Take an egg and break it, then pour out the white, retaining the yolk in the shell, put in salt and mix with the yolk as long as it will receive it, stir them together until the salve is formed, put a portion of this on a piece of sticking plaster and apply it to the cancer about twice a day. He has made the experiment twice in his own family with complete success.”

“Remedy for Cancer,” Scientific American 298 (June 12, 1847).

Or this forerunner of the clinical trial:

“The Tuscaloosa Observer says it has seen it stated, more than once, that the common cranberry was efficacious in the cure of cancer, but have never, until very recently, been an eye-witness to the fact. Mr. Middleton Belk, residing within four or five miles of this city, who was afflicted with a cancer on the nose for the last eight years, was induced to try cranberries applied as a poultice; and to his great joy and satisfaction, has experienced a perfect and radical cure. We mention this fact at the instanee of Mr. Belk, who is desirous that others suffering under the same affliction, may avail themselves of this simple, but valuable remedy.”

“Cranberries a Cure for Cancer,” 3 Scientific American 408 (Sept. 9, 1848). Another article, three years later, touted mineral naptha as a cancer cure. “Mineral Naptha,” 6 Scientific American 243 (April 19, 1851).

The pages of Scientific American document the rise of asbestos use and the growing awareness of asbestos’ great utility to help control and prevent fire and burns. For instance, in 1876, the magazine described the utility of asbestos in roofing materials and in pipecovering. “The Industrial Uses of Asbestos,” Scientific American 258 (April 22, 1876).

A few years later, an article described the widespread use of asbestos in industrial applications, both in Europe and in the United States:

“For some time past Toope’s covering for steam surfaces has been in use in England, giving great satisfaction and receiving the indorsement of many prominent English engineers. The business of manufacturing and selling it is conducted there by a limited company located in London.
In this country Mr. Charles Toope, manufacturing agent, having an office and works at 353 East 78th street, New York City, is making and introducing the covering. The covering is readily applied, requires no previous preparation, and when in place is permanent, being incapable of injury by jarring or pounding.”

“Felt and Asbestos Covering for Steam Surfaces,” Scientific American 357 (December 4, 1880). [353 East 78th is right around the corner from me. I doubt that many of the residents of this mid-rise apartment building know that an asbestos factory once graced their property.] See also “The Prevention of Fires in Theaters,” 35 Scientific American 401 (Dec. 23,1876); “Insulated Coverings for Pipes, Boilers, Etc.,” 59 Scientific American 355, 355 (Dec. 8, 1888).

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Historians As Expert Witnesses – A Wiki

October 28th, 2011

“The one duty we owe to history is to rewrite it.”

Oscar Wilde, The Critic As Artist (1891)

“What will history say? History, sir, will tell lies as usual.”

George Bernard Shaw, The Devil’s Disciple (1901)

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

The Defense Research Institute recently announced that Bill Childs, a professor at the Western New England University School of Law, will be speaking the use of historians as expert witnesses in litigation. Having puzzled about this very issue in previous writings, I look forward to Professor Childs’ contributions on the issue. The announcement also noted Professor Childs’ creation, “the Historians as Experts Wiki,” which I knew about, but had not previously visited.

The wiki is a valuable resource of information about historians who have participated in the litigation process in all manner of cases, including art, asbestos, creationism, native Americans, holocaust, products liability, intellectual property, and voting rights. There are pages for each historian witness, including expert witnesses in other fields, who have given testimony of an explicitly historical nature. The website is still in its formative stages, but it holds great promise as a resource to lawyers who are researching historians who have been listed as expert witnesses in their cases.

Most of my musings about historians as expert witnesses have been provoked by those who have testified about the history of silicosis. Last year, I presented at a conference sponsored by the International Commission on Occupational Health (ICOH), about such historians. See “A Walk on the Wild Side,” July 16, 2010. My presentation abstract, along with all the proceedings of that conference, will be published next year as “Courting Clio: Historians and Their Testimony in Products Liability Action,” in: Brian Dolan and 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)(in press).

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Gerrit W. H. Schepers, MD — RIP

September 9th, 2011

Earlier this week, Barry Castleman, ScD, consultant to the asbestos plaintiffs’ bar, wrote to the Occupational and Environmental Medicine List to alert subscribers that Dr. Gerrit Schepers had died, on September 6, at the age of 97. Dr. Castleman took the opportunity to portray Dr. Schepers as someone who had identified asbestos hazards early and his career and worked hard to call attention to those hazards.

Schepers was born and educated in South Africa, where he practiced medicine with South Africa’s Pneumoconiosis Bureau. Most of his experience in South Africa was with amphibole asbestos – amosite and crocidolite. According to Castleman’s narrative, Schepers complained to the Prime Minister about the horrors working conditions of black children who worked at Cape Asbestos’ amosite mill at Penge, in the Transvaal. Schepers was curiously silent, however, in the printed medical literature, about these horrors, until after others, including Dr. Irving Selikoff began to publish about them in the 1960s.

Schepers came to the United States in 1949, and worked in various positions, including the Trudeau Laboratories, at Saranac Lake, New York. According to Castleman, when Schepers planned to return to South Africa, he found himself bullied by Vandiver Brown, a lawyer for Johns Manville Corporation, over turning in a report of his American research and observations to the South African government. According to Castlemen, the report was “suppressed,” but no details are provided.

Schepers ultimately stayed in the United States, and moved through jobs with DuPont, and later with the Veteran’s Administration. At the famous 1964 New York Academy of Science meeting on asbestos, Schepers was a voluble presenter and discussant of papers.

Schepers’ Career as Testifying Expert Witness in Asbestos Litigation

Castleman reports that in the late 1970s, Schepers agreed to testify in asbestos personal injury cases against some of the companies that had employed him. Castleman generously offers that “[s]ome of his recollections were later supported by corporate documents revealed in the litigation.”

And many of Schepers’ recollections proved to be illusory and fantastical. I have previously discussed some of Dr. Schepers’ writings in a post on “Manufactured Certainty” (May 27, 2011).

Schepers was not drafted reluctantly to the role of testifying witness. Here is a quote from a letter, dated March 10, 1978, Dr Schepers wrote to Captain Hoeffler, of the Dept of Navy’s Bureau of Medicine and Surgery, in Washington DC:

“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 rathe 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.”

Unfortunately, there is no similar letter to Ron Motley or Gene Locks readily available to detail how Dr. Schepers ended up on virtually ever plaintiffs’ witness list.

Chrysotile

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 from Scheper’s own 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 seems at odds with words written after decades of consulting with and testifying for plaintiffs’ counsel in asbestos litigation.

These revisions to the historical record are, however, quite incredible. Indeed, Dr. Schepers weighed in on the fiber-type controversies that were being fought out before the then young Occupational Safety and Health Adminsitration. 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.”

Unlike, Selikoff, Schepers was never a crocidolite denier, although after he started testifying regularly for plaintiffs’ counsel, his views appeared to change.

Wilhem Heuper: Genius or Criminal

According to Castleman, others (unidentified) directed Schepers to “snub Dr. Hueper at scientific gatherings and ‘knock him’ in conversations with others.” In my courtroom encounters with Dr. Schepers, I never found him shy about his opinions of other people and their abilities. Here is what Schepers, under oath, told me about Wilhelm Heuper:

“Q . Surely. Back in the 1950s Doctor Hueper was fairly well regarded as an expert in industrial medicine?

A. No. No. No. No. He was a — he was a pathologist, epidemiologist, whose main focus was cancer, not all of the industrial medicine or hygiene, and his focus was almost singularly on the issue of relationship between industrial processes and cancer. That’s about the only way I can answer that question.

Q. All right. Was he regarded — was his opinions regarded — well regarded in the 1950s?

A. Oh, my goodness, some — some people thought that he was criminally irresponsible, and others thought he was a genius. I can’t answer that question.

Q. Did some think he was irresponsible because he rejected the association between smoking and lung cancer?

A. No. No. No. No. It is because he blamed everything, he blamed he just blamed everything as a cause. By then he got to the stage where you could get cancer from riding down the highway. You could get cancer from working with silica bricks, all things that are — you know, had been disproven, SO forth. So I would not classify him, you know, although I knew Doctor Hueper and respected him, I would not classify him as a final authority on that subject.”

Testimony on Cross-examination, at 234: 18 – 235:23, in De bene esse videotaped deposition of Gerrit W. H. Schepers, M.D. (June 14, 1991) (presented by plaintiffs’ counsel Jim Pettit, of Greitzer & Locks), in Radcliff v. Eagle-Picher Indus., Inc., Superior Court of New Jersey, Gloucester County, Law Div., Docket No. W-023456-88.

I had any number of courtroom encounters with Dr. Schepers over the years. I owe him a debt for having carefully recording his thoughts on chrysotile before they became opprobrious to plaintiffs’ counsel. He helped me win some interesting cases.

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The Fascinating Thing About History

June 16th, 2011

“There is something fascinating about science. One gets such wholesale returns of conjecture out of such a trifling investment of fact.”

— Mark Twain, Life on the Mississippi 1883.

History is much more fun and profitable, because you can get in on the action, without any investment of fact. The SEC ought to look into this.

Consider the historians of silicosis:

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

David Rosner & Gerald Markowitz, Deadly Dust: Silicosis and the Politics of Occupational Disease in the Twentieth Century America 213 (Princeton 1991).

Now, I pick on Rosner and Markowitz because they pick on me, they are easy targets, and their writings are illustrative of what I believe is so wrong about importing historians’ broad, and sometimes glib, judgments into the courtroom. Of course, Rosner and Markowitz have made themselves actors in various litigation efforts to advance their radical and Marxist views. See Ronald Johnston & Arthur McIvor, “Workshop Handout: Approaches and Methods in the History of Occupational and Environment Health,” presented at The Fourth Annual International Conference on the History of Occupational and Environmental Health (June 2010)(asking whether Rosner and Markowitz are not the best writing in the tradition of radical and Marxist approaches to the history of workers’ health).

Before World War II, there were notable, unfortunate large scale outbreaks of silicosis. The silicosis outbreaks among workers in the Barre, Vermont, granite quarries and sheds, and of course, among workers at the Gauley Bridge/Hawk’s Nest tunnel, are among the most notorious.

After WWII, the most notable outbreak was a fantasy and a fraud, created by plaintiffs’ counsel who conspired with reprobate physicians. In re Silica Products Liab. Litig., 398 F.Supp. 2d 563 (S.D.Tex. 2005) (Jack, J.).

Occasionally, empirical evidence can be brought to bear to embarrass the glib generalizations that historians make. Consider the claim, above, by Rosner & Markowitz that everyone (other than the heroic Leninist labor unions) sought to bury the issue of silicosis.

Well, we can obtain something of a reality check by measuring the number of publications in the National Library of Medicine’s database (PubMed) on silicosis. A simply search on “silicosis,” with limits to each decade after the 1930s reveals a pattern that silicosis had not been buried at all:

Date Range Number of Articles from Keyword Search

1940 – 1949 113

1950 – 1959 1,421

1960 – 1969 1,867

1970 – 1979 1,178

1980 – 1989 940

1990 – 1999 882

2000 – 2009 843

Considering the major post-War developments in the medical world, from antibiotics, poliomyelitis, tobacco-related cancers, and other chronic diseases, the continued interest in silicosis after World War II is remarkable.

I suppose that Rosner and Markowitz would discount the words of the Centers for Disease Control (CDC), because, after all, the CDC is part of government, which in turn is part of the conspiracy with medical professionals, industry, and non-Marxist labor union leaders, to bury the silicosis issues. If you see through Rosner and Markowitz’ broad brush generalization, you might be interested to know that the CDC mentioned silicosis as among the ten great public achievements of the twentieth century. CDC, “Ten Great Public Health Achievements – United States, 1900 – 1999,” 48(12) CDC Morbidity and Mortality Weekly Report 241 (April 02, 1999)(“Work-related health problems, such as coal workers’ pneumoconiosis (black lung), and silicosis — common at the beginning of the century — have come under better control.”).

This brand of historical generalizations does not belong in courtrooms.

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Manufactured Certainty

May 27th, 2011

With the help of Selikoff’s Lobby, the anti-asbestos zealots have created a false, manufactured certainty about various asbestos issues. The manufacturing of faux certainty has taken place with respect to the history of knowledge about asbestos, as well as to the current state of knowledge about asbestos hazards.

The Selikoff lobby exercised a great deal of influence on regulators and scientists. The Lobby was able to bully many scientists and policy makers into adopting a position that held all asbestos mineral fiber types as relatively equal in their potency to cause disease. The Lobby accomplished this by suppressing evidence of past use of amphibole asbestos, and by overstating the hazards of chrysotile asbestos.

In the past, I have marshaled evidence of Selikoff’s activities as a crocidolite denier. But was there really a controversy among honest scientists outside the Lobby?

Of course, there was and there is, but the Lobby has done a good job of branding the contrarians as tools of industry. It is important, therefore, to come to terms with evidence that scientists without connections to industry took similar positions.

For many years, starting in the late 1970s, Dr. Gerrit Schepers was a mainstay of the plaintiffs’ state-of-the-art case against asbestos mining and manufacturing companies in asbestos personal litigation. Dr. Schepers testified as a hired expert witness for plaintiffs near and far. I encountered and crossexamined Dr. Schepers on several occasions, for different clients. He was a fascinating witness, filled with contradictions and mixed motives. In one particularly horrible mesothelioma case (Hill v. Carey Canada), I confronted Dr. Schepers with his own publication, from 1973, in which he largely exonerated chrysotile as a carcinogen. Dr. Schepers twisted and turned, but he really had no where to go to avoid the full force of his own statements. This publication is worth revisiting as an historical document, to show that there was a good deal of dissent from the Lobby’s positions, at least until the asbestos personal injury and property damage litigations mushroomed out of control in the early 1980s.

Here is what Dr. Schepers wrote, in 1973, while an employee of the United States government (Chief of the Medical Service, Veterans Administration, Lebanon, Pa.):

“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, M.D. D.Sc., “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) [available at http://www.scribd.com/doc/56461314]. The symposium was sponsored by the United States Department of the Interior, in May 1973. Recall that the dispute of non-asbestiform amphibole health effects was very much at issue in the Reserve Mining case, and the trial proceedings were about to start when Dr. Schepers delivered his paper, in 1973. Members of the Lobby, from Selikoff on down, were very much involved in the Reserve Mining case. See U.S. Environmental Protection Agency v. Reserve Mining Co., 514 F.2d 492 (8th Cir. 1975) (en banc).

“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 predoninantly 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.”

Id. at 70.

That was in 1973, but within a few years, Dr. Schepers was coopted by the asbestos plaintiff industry, which manufactured lawsuits and epistemic certainty about the hazards of all asbestos minerals. The rest is “history.”

Interestingly, another would-be historian in the asbestos litigation, Dr. David S. Egilman, has written a paper, highly critical of W.R. Grace, based in part on another presentation given at the 1973 symposium, referenced above. David Egilman, Wes Wallace, and Candace Hom, Corporate corruption of medical literature: Asbestos studies concealed by W. R. Grace & Co., 6 Accountability in Research 127 (1998)(citing a paper in the same volume by Dr. William E. Smith, “Experimental studies on biological effects of tremolite talc on hamsters.”). Egilman’s paper was available at is website, http://www.egilman.com/Documents/publications/Wr_Grace.pdf The paper by Dr. Schepers no doubt missed Egilman’s attention, even though it follows immediately after Dr. Smith’s contribution.

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The Law’s Obsession with Warnings

May 11th, 2011

Professor Beth J. Rosenberg is Assistant Professor, in the Department of Public Health & Community Medicine, in Tufts University School of Medicine, Boston, Massachusetts. Rosenberg is an unabashed activist. She is driven by concerns that humans are ruining the environment and poisoning themselves. She is a champion of workers’ safety and workers’ rights. So when she writes about her personal experience with the lack of interest among workers in the hazards of silica, we all can learn something about whether the law’s obsession with warnings makes sense.

In 2003, Rosenberg wrote an article about her experiences in trying to have silica added to the list of substances regulated under the Massachusetts’ Toxics Use Reduction Act (TURA). Beth Rosenberg, “Second Thoughts About Silicosis,” 13 New Solutions 223 (2003) (http://www.ncbi.nlm.nih.gov/pubmed/17208725). Working with support from the Environmental League of Massachusettes and the Massachusettes Public Health Association, Rosenberg petitioned to have silica added to the TURA list of substances, in part out of a desire to help fuel a ban on abrasive blasting with silica in Massachusettes. She figured that by piggybacking on the environmental movement, or riding “the green wave,” as she put it, the state’s environmental laws could be used to help control occupational exposures.

Rosenberg’s ideals and aspirations ran into the wall of worker expectations and needs. They did not want abrasive blasting banned; they wanted stronger enforcement from OSHA, and better respirators. Rosenberg admits that the workers were pursuing a path that was not her goal, and she learned that, at legislative hearings, she needed “to take tighter control of the scripts of any hearings that I’m orchestrating.” Id. at 227.

Rosenberg worked with the Painters’ union to study substitutes for silica in abrasive blasting. Motivated by a recognition that “[s]ilica-related disease is completely preventable,” id. at 224, she hoped to move them towards supporting a ban on silica for abrasive blasting. After several years of this work, however, Rosenberg decided to give up on her silica mission. Her experience is instructive for correcting the misapplication of “failure to warn” products liability law to the use of a raw material such as silica in the workplace:

“The main point here is that the men I’ve interviewed are not terribly concerned about silica dust. They care about being treated decently and respectfully by their bosses. They’re concerned about being encouraged to work too fast to work safely. They care about lead dust, particularly bringing it home to their families, so they get really angry when the foreman wants to lock up the yard at five o’clock and doesn’t leave them enough time to shower and change their clothes. They feel that they are expendable. And although most are fully aware of silica’s dangers, silica is not a top priority for them. The silica agenda was set by some physicians and health professionals who are outraged that anybody is still dying of this 100 percent preventable disease. This is understandable, and I am one of those people, but I’m not sure this is the best way to be of service. I see that there are other, more pressing issues than silica.

I’ve chosen to serve working people, and yet they’ve had little or no role in setting the research agenda. Not only is this unrewarding for me, but it’s also a bad political strategy because you need a lot of support and collaboration to accomplish anything—even when everyone agrees that action is required—and interest in silica is tepid among the people most affected. This may not be true in other trades or in other countries, but it is true with abrasive blasters. And I stress that is not an awareness problem; they know breathing dust is bad for them, but it’s just not their top concern, and I can see why. So, henceforth, I’m going to let the community I choose to serve set the research agenda, and I will offer my assistance in their battles. That to me is the best way to do public health.”

Id. at 229 (emphasis added). Rosenberg’s epiphany should lead to some thoughtful re-evaluation of how the law of products liability is applied to the use of a natural material such as crystalline silica. While Professor Rosenberg was working with the Painters’ Union, and having her “Second Thoughts about Silicosis,” plaintiffs’ lawyers were screening, scheming, and suing for silicosis among the same union’s members. If only plaintiffs’ law firms took heed of Professor Rosenberg’s lessons, and stopped signing up sand blasters under the paternalistic pretense that the law must provide a remedy for the alleged failure to warn. The faux historians of silicosis, with their conspiratorial theories, could learn a great deal from Professor Rosenberg, as well.

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The Selikoff – Castleman Conspiracy

March 13th, 2011

In previous posts about the late Irving Selikoff, I have discussed his iconic status as a scientist who battled corporate evil, to make the workplace and the environment safe from asbestos. The truth is much murkier than this fabled narrative.

Selikoff and his cadre fueled cancerphobia, billions of dollars spent on asbestos abatement, irrational regulations that applied equally to all asbestos mineral types, demonization of legitimate industrial uses of chrysotile, and ultimately the wasting of American industry by asbestos litigation.

His conduct in these activities calls for greater scrutiny than has been accorded by journalists and historians. The difficult case of Irving Selikoff is an instructive parable of the dangers of mixed motives and scientific enthusiasms.

Some might think that we should let bygones be bygones. Perhaps, but that attitude did not spare the memory of Sir Richard Doll. His death brought out the daggers and the yutzballs. See, e.g., Samuel Epstein, “Richard Doll, An Epidemiologist Gone Awry” (visited on March 13, 2011); Sarah Boseley, “Renowned cancer scientist was paid by chemical firm for 20 years,” The Guardian (Dec. 8, 2006).

Now, imagine if a tobacco industry consultant wrote to a scientist and told him that plaintiffs were looking for important data to help them in their lawsuits, and that it was essential that these claimants not get what they were looking for. In many courtrooms, such correspondence would be prima facie evidence of a conspiracy. In the public forum, such evidence would tarnish the reputation of the scientist who engaged with the correspondent about suppressing evidence and refusing to cooperate with lawful discovery.

Now consider the case of Barry Castleman, consulting and testifying witness to the asbestos plaintiff industry. Hired gun Castleman appears to have written Dr Selikoff in 1979, in the early days of the asbestos litigation, and urged him to not cooperate with lawful efforts of Johns-Manville to obtain evidence of the insulators’ union knowledge of the hazards of asbestos. I found the memorandum from Castleman to Selikoff, “Defense Attorneys’ Efforts to Use Background Files of Selikoff-Hammond Studies to Avert Liability,” dated November 5, 1979, in a document archive at the University of California, San Francisco, The Legacy Tobacco Documents Library. The document is now also available at Scribd.

Because of its provenance, I cannot be absolutely sure of the document’s authenticity, but it certainly has the ring of truth. It was uploaded to the UCSF archive over a decade ago. Presumably, if false, Castleman, or one of Selikoff’s intellectual heirs would have sued for its removal. Perhaps someone can help me determine whether Barry Castleman, in his many testimonial adventures, has ever been confronted with this document.

Here is the text of the Castleman memorandum:

Memorandum from Barry Castleman to Irving Selikoff

November 5, 1979

Subject : Defense Attorneys’ Efforts to Use Background Files of Selikoff-Hammond Studies to Avert Liability

Ron Motley informs me that the industry lawyers are hoping to get cases thrown out of court by showing that the insulators themselves knew about their job risks. The defendants hope to obtain the questionnaire materials used by you and Dr. Hammond, in the expectation of finding reference to when the men said they first became aware of the dangers of their trade. Ron and other plaintiffs lawyers are afraid that some of the men would have answered with 20-20 hindsight, recalling vaguely that “I heard something back in the early 40’s”.

Discovery of such statements in writing, even though made without much care and without any knowledge that rights to compensation might be jeopardized, without any consultation with their attorneys, could throw out individual claims; further, a significant number of such statements pre-1964 would hurt the state of the art case for all the plaintiffs.

I don’t know what kinds of things might be found in your files and those of ACS (Dr . Hammond) but it strikes me as most important to hold these files confidential and resist efforts to get them released to the defendants. Among other things, the release of such materials could impair your ability to obtain the cooperation of the insulation workers and other trade unions who desparately [sic] need your services. From the urgency of Ron’s efforts to find me to raise this issue, I gather that defense efforts to gain access to your files is an imminent and serious possibility.

I will try to call in a week or so with more information, and to discuss this matter directly with you.

#######################################

Attached are the latest discoveries and notes thereon from Vorwald’s files and the Industrial Health Foundation . We now have the correspondence to shav that Ken Smith and Ivan Sabourin edited the Braun-Truan study prior to publication. The exchange on S-M Waukegan worker Dominic Bertogliat shows that J-M was aware that workers exposed only to the general in-plant atmosphere were in some cases developing severe asbestosis (1948).

What is interesting is that there is no reply memorandum from Dr Selikoff, to point out “Mr. Castleman, that would be wrong; all parties are entitled to the evidence, and I am not here to help insulators avoid the legal consequences of their own negligence, if negligence it be.” I would like to think that there is such a reply memorandum in the Selikoff archives, but personally, I doubt it. Perhaps someone who has control over the archives would come forward with the missing documents.

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Narratives & Historians for Hire

December 15th, 2010

As other writers have noted, historians have testified in a wide variety of cases. I do not have an exhaustive catalogue of types of cases in which historian testimony has offered, but a partial list would include:

1. discrimination cases, such as the famous Sears case;

2. constitutional cases, such as Brown v. Topeka Kansas Board of Education;

3. deportation cases, such as those involving claims of Nazi activity;

4. native American property rights cases;

5. actions between States, and other cases in which historical location of rivers determine property boundaries;

6. creationism cases;

7. tobacco cases, including product liability, states’ attorney generals’ parens patriae, and fraud claims;

8. product cases, typically those involving long latencies – e.g., asbestos, silica, vinyl chloride

9. medical research, ethical claims: radiation and other informed consent cases;

10. defamation cases against historians themselves.

11. reparation cases;

12. criminal cases against terrorists, involving claims of the historical nature of the alleged terrorists’ associations.

Historian testimony presents legal evidentiary issues, especially when the historian testifying acts as an advocate for a cause rather than as a witness whose testimony can be fairly evaluated by the jury. Historian opinion testimony seems particularly apt to derail in product cases.

Over the years, I have written critiques of historian testimony, with a focus on product liability cases, where historians often serve as cheerleaders for the party that retained them. See Nathan Schachtman, “On Deadly Dust And Histrionic Historians: Preliminary Thoughts On History And Historians As Expert Witnesses In Products Liability Cases,” 2 Mealey’s Litig. Rep. (Silica) 1, 1-2 (Nov. 2003). At the recent Fourth Annual International Conference on the History of Occupational and Environmental Health, in San Francisco (June 19 – June 22, 2010), I presented a paper, “Courting Clio: Historians and Their Testimony in Products Liability Litigation,” an abstract of which can be found on-line. Schachtman & Ulizio, Courting Clio – Historians and Their Testimony in Products Liability Litigation (June 2010). I have also blogged about the subject previously. See, e.g., 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).

In the current issues of Academe, Professors David Rosner and Gerald Markowitz describe their troubles as testifiers. See “The Historians of Industry” (November – December 2010). This most recent attack is the fourth, largely duplicative, publication in which the authors call me out for having the audacity to criticize their history of silicosis in the United States, and for suggesting that their testimony did not properly belong in a courtroom. I must now constantly check behind doors, under beds, above shelves, for the Pink Panthers – Rosner & Markowitz. Who knows where the fifth and subsequent re-publications will appear. I must say that I learning from their persistence.

In the past few years, historians who have testified for plaintiffs’ counsel, mostly in tobacco litigation, have nastily attacked their counterparts, historians who have testified for defense counsel in the same litigation. See, e.g., Robert N. Proctor, “Expert witnesses take the stand Historians of science can play an important role in US public health litigation,” 407 Nature 15 (Sept. 7, 2000); Alan Blum, “A Dissenting View of Robert Proctor by a Fellow Anti-Smoking Advocate” (Apr. 26, 2010) [last visited Dec. 13, 2010]; John C. Burnham, “In Defense of Historians as Expert Witnesses: A Rebuttal to Jon Wiener” (Mar. 29, 2010) [last visited Dec. 13, 2010]; Jon Wiener, “Big Tobacco and the Historians,” The Nation (March 15, 2010); Robert N Proctor, ‘‘’Everyone knew but no one had proof’’: tobacco industry use of medical history expertise in US courts, 1990–2002,” 15 (Suppl IV) Tobacco Control 117 2006; Louis M Kyriakoudes, “Historians’ testimony on ‘common knowledge’ of the risks of tobacco use: a review and analysis of experts testifying on behalf of cigarette manufacturers in civil litigation,” 15 (Suppl IV) Tobacco Control 107 2006.

Historians who testify for plaintiffs seem to have a problem with dissents from their positions. Rosner and Markowitz have extended the attack to those who have argued that any historian opinion testimony may be inappropriate, especially in product liability cases. Here is their most recent discussion of my writing on the issue:

“The first shot across the bow occurred in 2003, when Nathan Schachtman, an attorney with the Philadelphia-based firm McCarter & English, published an attack on us in Mealey’s Litigation Report: Silica. He accused us of writing a ‘jeremiad’ that ‘resonates to the passions and prejudices of the last century.’ He took us to task for our ‘prejudice’ that ‘silicosis results from the valuation of profits over people’ and said that we should point out that in Communist countries silicosis rates were much higher. ‘They fairly consistently excuse or justify the actions of labor. . . . They excoriate the motives and actions of industry’.

But Schachtman’s true agenda emerged in the middle of his third paragraph. ‘We could safely leave the fate of Rosner’s and Markowitz’s historical scholarship to their community of academicians and historians if not for one discomforting fact’, he wrote. ‘The views of Rosner and Markowitz have become part of the passion play that we call silicosis litigation.’

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

“The Historians of Industry” (November – December 2010). Rosner and Markowitz got many of their facts and their amateur psycho-analysis wrong. They have participated in litigation much more broadly than their anemic disclosure suggests. They have been listed in many silicosis lawsuits as plaintiffs’ expert witnesses, and they have given deposition testimony, for which they were compensated, in several silicosis cases. Markowitz has testified in vinyl chloride cases, and the pair has testified in lead paint cases.

As for my true agenda, I clearly spelled out a legal problem – historians, offering testimony along the lines of what Rosner and Markowitz had been giving in silicosis cases, should not be allowed to do so for several, compelling evidentiary reasons. As historians, I believe that Rosner and Markowitz can and should be tolerated. And they should be read by historians outside their close-knit community of labor and Marxist historians, and openly rebutted. In any event, as historians, Rosner and Markowitz may have a role, even an important role, in helping lawyers find their way to important documentary evidence, but I have serious doubts about whether they should occupy witness chairs.

Although Rosner and Markowitz’ testimony was an easy target in terms of their excesses, errors, and exaggerations, my true agenda was to exclude historian testimony that attempted to substitute for the jury’s own assessment of the primary evidence. Here is what I actually said:

“The work of Professors David Rosner and Gerald Markowitz raises important issues about the role historians seek to play in the litigation process. In writing about the social, labor, and political history of silicosis, Rosner and Markowitz interpret and draw inferences from an evidentiary display on the credibility, motives, and goals of industry, labor, and government.

Their ‘story’ is often tendentious, and rarely charitable to industry. They fairly consistently excuse or justify the actions of labor, even when those actions lacked contemporaneous (or subsequent) basis in scientific or medical fact. They excoriate the motives and actions of industry, even when supported by sound science, or when the plight of workers was ameliorated. They hint at, or announce, conspiracies to hurt workers. Every effort at industrial cost-savings is denounced; whereas little or no attention is paid to the huge expenditures made, often voluntarily, by industry to improve the health of workers.

Deadly Dust [Rosner and Markowitz’ book on silicosis] is a book that resonates to the passions and prejudices of the last century. The authors argue their case that silicosis results from the valuation of profits over people. Their thesis ignores the practical, often refractory problem, of motivating or mandating workers to take appropriate measures to protect themselves. Their ascription of motives and their evaluation of causality are often devoid of any empirical support. Their jeremiad against industry’s positions on scientific and medical issues is similarly unsupported and frequently demonstrable false. Witness how silicosis, as a serious, prevalent fatal disease has passed into the dustbin of medical history in the Western World. Compare the rarity of disabling silicosis in the United States with the high silicosis mortality in Communist countries, where profits are outlawed and labor controls the means of production. These observations and comparison embarrass the scholarship and the world view of Deadly Dust, but they receive virtually no acknowledgement.

We could safely leave the fate of Rosner’s and Markowitz’s historical scholarship to their community of academicians and historians if not for one, discomforting fact. Either directly through their participation in court cases as expert witnesses, or indirectly through opinions offered or sneaked into evidence, the views of Rosner and Markowitz have become part of the passion play that we call silicosis litigation. Their participation in the litigation process thus raises the question of exactly what is the proper role of historians in litigation.

Upon initial inquiry, historians would appear to have little or no role in the litigation process. Trial lawyers, in courthouses throughout the common-law world, try cases ranging from automobile wrecks to antitrust conspiracies, by researching, documenting, and adducing evidence of historical fact. At trial, the proof of historical facts relevant to claims and defenses proceeds under a system of rules of evidence, which have evolved and have been refined over centuries in the crucible of judicial experience.

The intrusion of historians into the litigation process thus raises several important problems. First, historians may claims to have ‘proven’ or ‘supported’ particular factual assertions, which they could not prove up in a courtroom with competent, admissible evidence. Their participationundermines the legal requirement of ‘primary sources’ for the proof of facts. Various exclusionary rules, ranging from the rule against hearsay to the best-evidence rule, dramatically limit the scope and content of what historians might actually offer at trial.

Second, historians will usually be inappropriate witnesses because they do not contribute anything beyond what trial lawyers may accomplish through competent proofs and argument to the trier of fact. Indeed, much of what historians do, in advancing a particular thesis, is argue from an evidentiary display, which may often be interpreted in various, competing ways. Generally, we have more than enough argument from trial lawyers. How historians could be helpful to the trier of fact is thus far from clear.

Finally, if historians were allowed to offer opinion testimony, much of what they would have to say might fail to satisfy any reasonable criteria of reliability. Although a decade has elapsed since the United States Supreme Court decided Daubert, trial courts have yet to address reliability challenges to historians and their opinions. The absence of published cases seems to result from the rarity of historians as expert witnesses. For the most part, historians are noted in only a few cases, typically involving issues such as state boundary disputes, navigability of rivers andriparian rights, Indian Tribal status, or Nazi deportations. The common themes to these cases are the arcane proofs, serious authenticity issues, and foreign language of the documentary evidence. None of these distinguishing features is present in historical opinion on the motives, credibility, and conduct of labor or industry on the control of silicosis in American workplaces.”

See Nathan Schachtman, “On Deadly Dust And Histrionic Historians: Preliminary Thoughts On History And Historians As Expert Witnesses In Products Liability Cases,” 2 Mealey’s Litig. Rep. (Silica) 1, 1-2 (Nov. 2003) (endnotes omitted).

Rosner and Markowitz have chosen to attack me for having an agenda, which dares to be different from their agenda – testifying for causes that have political significance to them, and being compensated for doing so. These authors, however, have failed to respond to my substantive challenges. Since my article appeared in 2003, several other writers have questioned the indiscriminate admission of historian testimony in cases. See, e.g., Maxine D. Goodman, “A Hedgehog on the Witness Stand — What’s the Idea?: The Challenges of Using Daubert to Assess Social Science and Non-scientific Testimony,” 59 Amer. L. Rev. 635 (2010); Maxine D. Goodman, “Slipping through the Gate: Trusting Daubert and Trial Procedures to Reveal the ‘Pseudo-Historian’ Expert Witness and to Enable the Reliable Historian expert Witness — Troubling Lessons from the Holocaust-Related Trials,” 60 Baylor L. Rev. 824 (2008); William G. Childs, “The Proper Role of Historians as Expert Witnesses,” DRI Annual Meeting (2007).

More important, since I wrote Histrionic Historians in 2003, courts have begun to address the admissibility of historian testimony. Recently in one of Markowitz’ cases, the trial judge, the well-respected Justice Francis E. Sweeney, ruled that Markowitz’ testimony was improper and had to be excluded. Quester v. B.F. Goodrich Co., Cuyahoga Cty. Ct. Common Pleas Case No. 03-50939 (Jan. 15, 2009). Justice Sweeney succinctly stated the problem, and the solution:

“Dr. Markowitz’s opinions as to the conspiratorial actions and motives of ‘the vinyl industry’ are excluded, as both within the ken of lay jurors, and impermissible attempts to introduce expert opinion as to the intent and motive of Defendants.

Dr. Markowitz’s area of expertise is history. Here the basis for his opinions is exclusively the voluminous documentation produced through vinyl chloride injury litigation. Dr. Markowitz neither holds, nor asserts, scientific expertise. In order to put forward admissible expert opinions based upon the documents at issue, those documents themselves must be admitted into evidence. However, Dr. Markowitz’s historic expertise, when limited purely to interpretation of the documents in evidence in this case, invades the ken of lay jurors. He is not qualified, nor offered, to testify as to the state of the art, or to the technical/scientific details in the documentation, but rather opines as to what the documents mean. In this regard, Dr. Markowitz is no more qualified than lay jurors, and as such his ‘conspiracy’ opinions invade the province of the jury.

Moreover, Dr. Markowitz’s interpretation of the documents and resultant opinions are replete with discussion of the intent and motives of ‘the industry’ or the authors of the documents. Such opinion is not appropriate for expert testimony in a court of law. Dr. Markowitz has placed evidence in the record that his book is well-regarded and legitimate historical scholarship, which the Court does not dispute. It is merely that the relevant opinions and scholarly arguments that he makes in his book are inherently ill-suited to the role of expert witness in court proceedings. His opinions related to scholarly arguments for the rationale, intent, and motive of various entities individually and collectively is more appropriately within the purview of counsel in argument rather than the expert witness on stand.”

Id. (footnotes omitted). ‘’

And that was a judgment from which there was no appeal.

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