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Man Oh Mann, Has the Climate Changed

March 15th, 2025

Michael Mann, formerly a climate scientist at Penn State University, is no stranger to controversy.[1] As an outspoken advocate for climate change, he has attracted close scrutiny and harsh criticism. Several right-of-center commentators criticized Mann’s work in potentially defamatory terms of “misconduct,” or “manipulation,” or data torturing. One blogger likened Mann’s conduct to Penn State’s Jerry Sandusky’s sexual abuse scandal.[2]

Mann sought vindication, not by a duel, but by lawsuits for defamation. His cases have bounced up and down the court system for over a decade,[3] but last week, they crashed landed. In the course of yo-yo’ing through the courts, the case resulted in the Supreme Court’s denial of a petition for a writ of certiorari, which was accompanied by a dissent from Associate Justice Alito. The published dissent is interesting for the light it sheds on recent speculation about the fate of New York Times v. Sullivan,[4] but also for providing a reasonably accurate statement of the facts of the case:

“Penn State professor Michael Mann is internationally known for his academic work and advocacy on the contentious subject of climate change. As part of this 345*345 work, Mann and two colleagues produced what has been dubbed the ‘hockey stick’ graph, which depicts a slight dip in temperatures between the years 1050 and 1900, followed by a sharp rise in temperature over the last century. Because thermometer readings for most of this period are not available, Mann attempted to ascertain temperatures for the earlier years based on other data such as growth rings of ancient trees and corals, ice cores from glaciers, and cave sediment cores. The hockey stick graph has been prominently cited as proof that human activity has led to global warming. Particularly after emails from the University of East Anglia’s Climate Research Unit were made public, the quality of Mann’s work was called into question in some quarters.

Columnists Rand Simberg and Mark Steyn criticized Mann, the hockey stick graph, and an investigation conducted by Penn State into allegations of wrongdoing by Mann. Simberg’s and Steyn’s comments, which appeared in blogs hosted by the Competitive Enterprise Institute and National Review Online, employed pungent language, accusing Mann of, among other things, ‘misconduct’, ‘wrongdoing’, and the ‘manipulation’ and ‘tortur[e]’ of data. App. to Pet. for Cert. in No. 18-1451, pp. 94a, 98a (App.).

Mann responded by filing a defamation suit in the District of Columbia’s Superior Court. Petitioners moved for dismissal, relying in part on the District’s anti-SLAPP statute, D. C. Code § 16-5502(b) (2012), which requires dismissal of a defamation claim if it is based on speech made ‘in furtherance of the right of advocacy on issues of public interest’ and the plaintiff cannot show that the claim is likely to succeed on the merits. The Superior Court denied the motion, and the D. C. Court of Appeals affirmed. 150 A.3d 1213, 1247, 1249 (2016). The petition now before us presents two questions: (1) whether a court or jury must determine if a factual connotation is ‘provably false’ and (2) whether the First Amendment permits defamation liability for expressing a subjective opinion about a matter of scientific or political controversy. Both questions merit our review.”[5]

Subsequent events in the Mann case have made a return trip to the Supreme Court for a substantive decision on the First Amendment issue very unlikely. Mann’s case against the National Review was dismissed before trial. A District of Columbia jury returned verdicts in favor of Mann, and against Steyn and Simberg, on Mann’s claims of libel. The jury awarded Mann two dollars, one dollar against each defendant, but one million dollars against Steyn, and one thousand dollars against Simberg, as punitive damages. Post-trial motions have been pending after the trial until earlier this month.[6]

On January 7, 2025, the trial court ordered Dr. Mann to pay court costs and attorney fees in the amount $530,820.21 to The National Review, which had been dismissed from the case, before trial.[7] Mann plans to appeal this cost award against him.

Punitive Damages

Judge Irving upheld the libel verdict for Dr. Mann, but found that the punitive damages awards were grossly excessive given the nominal damage awards.[8] As such, the punitive damage awards offended the due process clause of the constitution, and had to be reduced.[9] The one million dollar award was reduced to $5,000.

Sanctions against Michael Mann for Misconduct

In the course of the trial, Dr. Mann and his counsel introduced an exhibit with items of alleged damages in the form of loss grants.[10] In the pre-trial discovery phase of the case, Mann had not been able to adduce any evidence that he actually lost any funding because grants withheld or withdrawn because of the comments of the two blogging defendants. Mann had acknowledged, at least at one point, that the details of grants not received were not relevant to any claim or defense in the case.  Understandably, Judge Alfred S. Irving, Jr., presiding, was rather upset about the Mann testimony and exhibit. The defendants filed a “Motion for Sanctions for Bad-Faith Trial Misconduct,” during the trial.[11]

The facts of the motions were further litigated in post-trial motions, with the result that Judge Irving found, by clear and convincing evidence, that Dr. Mann and his counsel had acted in bad faith in pressing claims for several lost grants. In last week’s 46-page Order, Judge Irving documented in painful detail the dishonesty and mendacity exhibited by Mann and his lawyers, and the violation of multiple rules of professional responsibility. The court found that Dr. Mann, through his lawyers, had:

“acted in bad faith when they presented erroneous evidence and made false representations to the jury and the Court regarding damages stemming from loss of grant funding… . The Court does not reach this decision lightly.”

Judge Irving characterized the misconduct of Dr. Mann and his counsel as “extraordinary in its scope, extent, and intent.” The court has not yet made an assessment of the dollar amount for Mann’s egregious conduct. In all likelihood, the sanction award for his trial misconduct will exceed the $6,002, he has in the plus column for his litigation efforts. With over a half a million dollars assessed against Dr. Mann, in favor of the National Review, Mann’s litigation efforts to date might seem like being hit over the head repeatedly with a hockey stick.

Over a year ago, the New York Times reported on the initial jury verdict in favor of Dr. Mann.[12] Since then, however, the paper has been remarkably silent on the developments in the case, including the court’s findings concerning Dr. Mann’s misconduct in presenting evidence.

No one will miss the irony in Mann’s prevailing at trial in showing that he had been defamed by the trial defendants, and then attempting in plain sight to deceive the jury on damages, in what fair comment might call “misconduct,” or “manipulation,” or “data torturing.” Of course, none of the litigation events described by Judge Irving bear on the correctness vel non of predictions of climate change. These litigation events do, however, single out Dr. Michael Mann as lacking the ethos for serving as a spokesman for any scientific claim. Being called out for manipulating evidence is not a good thing for anyone in the evidence business.

[1][1] Mann left Penn State in 2022, to become a Presidential Distinguished Professor in the Department of Earth and Environmental Science at the University of Pennsylvania.

[2] See Competitive Enterprise Institute v. Mann (D.C. Ct. Apps. 2016).

[3] See “Oreskes Excluded as Historian Expert Witness in Mann Case,” Tortini  (Feb. 28, 2023); “Climategate on Appeal,” Tortini (Aug. 17, 2014).

[4] 376 US 254 (1964).

[5] National Review, Inc. v. Mann, 140 S.Ct. 344, 344-45 (2019).

[6] Eugene Volokh, “Punitive Damages Award in Mann v. Steyn Reduced from $1M to $5K, largely because the compensatory damages were just $1,” Reason (Mar. 4, 2025); Roger Pielke, “In Bad Faith,” AEI (Mar. 12, 2025).

[7] Mann v. National Review, Inc., 2012 CA 008263B, Amended Order Granting in Part National Review Inc.’s Motion for Attorneys’ Fees and Supplemental Motion for “Fees on Fees” (D.C. Super. Ct. Jan. 7, 2025); see Danielle Shockey, “Pennsylvania Climate Scientist Must “Pay Up” $530K After 8 Year Legal Battle Over 2 Blog Posts,” Tampa Free Press (Jan. 12, 2025); Marc Morano, “Prof. Michael Mann ‘intends to appeal’ court order to pay ‘National Review Inc. $530,820.21 in attorneys’ fees & costs’,” Climate Depot (Jan. 10, 2025).

[8] Mann v. National Review, Inc., 2012 CA 008263B, Omnibus Order on Defendants’ Post-Trial Motions for Judgment as a Matter of Law (D.C. Super. Ct. Mar. 4, 2025).

[9] Id. at 20-30. See BMW of North America v. Gore, 517 U.S. 559, 575 (1996); Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 433 (2001); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 427 (2003).

[10] Mann v. National Review, Inc., 2012 CA 008263B, Order Granting in Part Defendants’ Motions for Sanctions (D.C. Super. Ct. Mar. 12, 2025).

[11] Id. at 1-2.

[12] Delger Erdenesanaa, “Michael Mann, a Leading Climate Scientist, Wins His Defamation Suit,” N.Y. Times (Feb. 8, 2024).

Posted in Public Nuisances, Scientific Misconduct | No Comments »

The Greatest Anti-Science President Ever

March 10th, 2025

From an epistemological and psychological perspective, we would expect the most mendacious president to have the most tenuous relationship with science. President Trump never fails to disappoint when it comes to matters scientific.

Although Felonious Trump takes pride in his uncle who was a professor at the Massachusetts Institute of Technology, our 47th president has a science IQ that could well be in the negatives. In his first term, Trump gave us sharpie-gate wherein he determined the course of a hurricane based upon politically expedient lines. He floated the use of sodium hypochlorite as a treatment for Covid, and encouraged his administration’s health officials to investigate the possibilities.[1]

We might judge him harshly for his first-term alliances with quack Covid denialists and peddlers of quack nostrums. More recently, we have seen Felonious Trump forge alliances with the likes of supplement advocate Dr. Oz and lawsuit industry foot soldier, Robert F. Kennedy, Jr. (“Junior”). The alliance between Trump and Junior is especially strange, given Kennedy’s long-standing participation in the lawsuit industry and his demonization of pharmaceutical and other manufacturers.

On March 6, 2025, in a performative speech to Congress,[2] Felonious Trump provided further evidence of his low science I.Q. The speech contained a boast about cost-cutting begat from ignorance and stupidity. The president took credit for cutting $8 million for research “for making mice transgender — this is real.”[3]

Although it would be tempting to argue that the transgender mice were taking over laboratories because Trump supporters were eating cats, the reality is that there was no spending on supposedly transgender mice. No Mickeys became Minnies, on the watch of the National Institutes of Health. Trump had misrepresented cuts to research involving transgenic mice, mice with foreign DNA, for the purpose of conducting targeted experimental research.Transgenic mice were developed in the 1980s, and have become a standard tool in medical research.[4]

Childhood Cancer

There can hardly be a more emotional issue than childhood cancer, so we should not be surprised that Felonious Trump would exploit the issue for political gain. In the course of his March 6th address, Trump announced that a 13 year old child, Devarjaye (“DJ”) Daniel, would become an honorary Secret Service agent. DJ is a survivor of a cancer of his brain and spine. According to Trump:

“DJ’s doctors believe his cancer likely came from a chemical he was exposed to when he was younger. Since 1975, rates of child cancer have increased by more than 40 percent.”

Given that all living beings and the planet that we inhabit are all made of chemicals, it is hard to know exactly what Trump was trying to say. Presumably, he was channeling the environmentalism and chemophobia of the progressive left and its darling, Junior. But what chemicals, when, where, and in what doses? The one thing I know is that neither Trump nor Junior knows. Trump went on to give a shout out to Junior:

“Reversing this trend is one of the top priorities for our new presidential commission to Make America Healthy Again chaired by our new secretary of Health and Human Services, Robert F. Kennedy Jr. With a name Kennedy, you would have thought everybody over here would have been cheering. How quickly they forget!”

Just as Professor Trump of M.I.T. has a moronic nephew, so did the late President Kennedy. Could it be regression to the mean?

Trump was, no doubt, channeling the chemophobia usually disseminated by the radical left. What are chemicals? Everything is a chemical, but which ones was he indicting.

In a big tell, Felonious Trump did not call on Congress to allocate more funding for scientific inquiry into the “chemicals” that might have caused DJ’s cancer, or for treating childhood cancer. Cancer in children is rare, but it is the leading cause of disease morbidity among children and adolescents past infancy. Firearms are a significant cause of death as well. But has the rate of childhood cancer gone up by 40% since 1975? Because of changes in reporting methods, assessing this 50 year period is difficult. There are, however, good SEER data for the last 30 or so years that show, for nervous system cancers, there is no important increase.

The SEER (Surveillance, Epidemiology, and End Results) data comes from a program set up by the National Cancer Institute (NCI) to collect and study data on cancer incidence and mortality in the United States. The data for DJ’s cancer for the relevant time period, 1992 – 2022, are available from the NCI, and the NCI’s website. The chart below shows the incidence rate of childhood brain and nervious system cancers (ages 0 to 19):[5]

A group outside the National Cancer Institute reported its analysis over a long period, 45 years, for SEER data.[6] Looking at the most important specific cancer types, the group found that some cancer types increased, but nothing remotely close to the 40% for the cancer that afflicted young DJ.

In this group’s analysis, the incidence of childhood cancer increased from 14.23 cases per 100,000 (for 1975-1979) to 18.89 (for 2010-2019), but they noted the obvious variability among relevant cancers and the potential bias from improved diagnoses and data registration over time. Most important, the authors noted that the “underlying causes remain unclear.”

Autism

Despite his first-term success in Operation Warp Speed to encourage the development of Covid vaccines and to promote their distribution, Felonious Trump has run away from one of his few successes ever since he was booed by his MAGATs at a political rally.[7] Indeed, Trump has long been anti-vax adjacent, but reluctant to acknowledge his superstitions publicly. In a conversation with Junior, back in July 2024, both Trump and Junior let their hair down and revealed their anti-vax convictions.[8]

In the past, Trump had been cagey (and dishonest) about his anti-vax beliefs. Andrew Wakefield, the disgraced author of a retracted 1998 article, attended  one of Trump’s first inaugural balls, which occasioned numerous public denunciations that pushed Trump’s inner quack into hiding for the while.[9] In his second term, after being groomed by Junior, Trump is now unrestrained by sober second thoughts:

“Our goal is to get toxins out of our environment, poisons out of our food supply, and keep our children healthy and strong. As an example, not long ago, and you can’t even believe these numbers, one in 10,000 children have autism. One in 10,000. And now it’s one in 36. There’s something wrong. One in 36. Think of that. So we’re going to find out what it is and there’s nobody better than Bobby and all of the people that are working with you. You have the best to figure out what is going on. OK, Bobby, good luck. It’s a very important job.”

No, you really cannot believe those numbers because the diagnostic categories and criteria have changed, as have the social connotations of having an autistic child has changed. And so has the average age of fathers at the time of conception. Turning the issue over to Junior, who has labored for decades in the lawsuit industry, is hardly likely to yield any meaningful knowledge.

The result of Trump’s delegation to Junior was highly predictable. The vaccine autism hypothesis has been extensively explored,[10] and a disinterested observer might think doing another study would be a wonderful example of waste in government.[11]

And yet within a couple of days of Trump’s congressional address, Reuters reported that the government plans a large study on autism and vaccines.[12] The exact nature of the study and Junior’s role in the study remain unclear.[13]

Recent news reports suggest that the Centers for Disease Control intend to search for correlations between vaccines and autism in the Vaccine Safety Datalink (VSD), a collaboration between CDC and various healthcare organizations across the country that monitor vaccine safety and study rare and serious adverse events.[14] The CDC website has a link to a white paper on studying childhood immunization, prepared by the VSD.[15] The so-called white paper is undated and appears to have been prepared almost 10 years ago.

The hyped claim that vaccines cause autism was advanced by a British physician, Andrew Wakefield, who has since been stripped of his license. Wakefield blamed vaccines in his 1998 Lancet paper, which has since been retracted.[16] Wakefield fled his native England for the warm embrace of MAGAT nation, where he could continue to agitate against vaccines. In 2017, Wakefield attended one of Trump’s inaugural balls, which provoked a quackwatch hue and cry.[17]

[1] “Coronavirus: Outcry after Trump suggests injecting disinfectant as treatment,” BBC (Apr. 24, 2020).

[2]  “Remarks by President Trump in Joint Address to Congress,” The White House (Mar. 6, 2025).

[3] Miles Klee, “Trump Decried Millions Spent Making Mice Transgender: It was Cancer and Asthma Research,” Rolling Stone (Mar. 5, 2025); Kiona N. Smith, “This Is What’s Behind Trump’s Uproar Over ‘Transgender Mice,” Forbes (Mar. 07, 2025).

[4] See generally National Research Council. Sharing Laboratory Resources: Genetically Altered Mice (1994).

[5] “Cancer Stat Facts: Childhood Brain and Other Nervous System Cancer (Ages 0–19),” N.C.I. (last visited Mar. 10, 2025); see also  “Cancer in Children and Adolescents,” NCI (last visited Mar. 10, 2025).

[6] Iyad Sultan, Ahmad S. Alfaar, Yaseen Sultan, Zeena Salman, Ibrahim Qaddoumi, “Trends in childhood cancer: Incidence and survival analysis over 45 years of SEER data,” 20 PLoS One e0314592 (2025).

[7] See, e.g., Dan Merica, “Trump met with boos after revealing he received Covid-19 booster,” CNN (Dec. 21, 2021).

[8] Rachel Treisman, “Leaked video shows Trump criticizing vaccines on phone with RFK Jr.,” Nat’l Public Ratio (July 16, 2024).

[9] See, e.g., Casey Ross, “Andrew Wakefield appearance at Trump inaugural ball triggers social media backlash,” Stat News (Jan. 21, 2017).

[10] Kathleen Stratton, et al., eds., Adverse Effects of Vaccines: Evidence and Causality (Instit. of Med. 2012).

[11] Sheryl Gay Stolberg, “A Skeptical G.O.P. Senator Makes His Peace with Kennedy,” N.Y. Times (Mar. 5, 2025).

[12] Dan Levine and Leah Douglas, “US CDC plans study into vaccines and autism, sources say,” Reuters (Mar. 9, 2025).

[13] Judy George, “CDC Plans Large Study on Autism and Vaccines, Report Says — HHS Secretary Kennedy’s role in this research is unclear,” MedPage Today (Mar. 7, 2025).

[14] Emily Baumgaertner Nunn & Sheryl Gay Stolberg, “C.D.C. Will Investigate Debunked Link Between Vaccines and Autism,” N.Y. Times (Mar. 7, 2025).

[15] Jason M. Glanz, et al., for the Vaccine Safety Datalink, “White Paper on Studying the Safety of the Childhood Immunization Schedule,” CDC.

[16] Andrew J. Wakefield, S.H. Murch, A Anthony, J. Linnell, D.M. Casson, M. Malik, M. Berelowitz, A.P. Dhillon, M.A. Thomson, P. Harvey, A. Valentine, S.E. Davies, J.A. Walker-Smith, “Ileal-lymphoid-nodular hyperplasia, non-specific colitis, and pervasive developmental disorder in children,” 351 Lancet 637 (1998).

[17] Casey Ross, “Andrew Wakefield appearance at Trump inaugural ball triggers social media backlash,” Stat News (Jan. 21, 2017).

Posted in Public Nuisances | No Comments »

Hallucinations in Law and in Government

February 19th, 2025

We now have a Secretary of Health and Human Services who has lost part of his brain to a worm and who has lied about pharmaceuticals and vaccines to advance his financial interests as a lawyer. Robert F. Kennedy, Jr. (Junior), says he will be open minded, which I suppose means that the worm can come and go as it pleases. Junior has made a career of radical environmental activism, anti-vaccine quackery, and shameless self-promotion. It is hard to imagine that those stripes will go away. In any event, Junior is now in charge of a sprawling federal department, which he has repeated called corrupt and venal.

It is remarkable that Junior is still a lawyer in New York state, where he unlawfully swiped road kill, let it molder in his van, and then unlawfully dumped it in Central Park. For some time, Junior has been listed by a lawsuit industry firm, Morgan & Morgan, as one of its own. When I checked last week, Junior was still listed, although he had been reduced to a stub without any biographical information. Today, the Morgan & Morgan website has scrubbed all mentions of Junior, presumably with industrial-strength cleaner.

Junior’s intelligence may be minimal, but at least it is real, not artificial. His former (?) lawfirm, which ranks number 42 in the country by head count, is facing possible sanctions for citing non-existent, fake cases in motion papers submitted in federal court.[1] Judge Kelly H. Rankin, of the District of Wyoming, noted that the Morgan & Morgan lawyers cited nine cases, eight of which were bogus.[2] The lawyers from Junior’s lawfirm acknowledged that the bogus cases had been “hallucinated” by the firm’s internal artificial intelligence platform; they never were.[3] Morgan & Morgan was not the first to deploy so-called A.I. and it will likely not be the last.[4]

Will we see Junior hallucinate evidence to support his anti-vaccine views?

[1] Debra Cassens Weiss, “No. 42 law firm by head count could face sanctions over fake case citations generated by AI,” Am. B. Assn J. (Feb. 10, 2025).

[2] Wadsworth v. Walmart Inc., Case 2:23-cv-00118-KHR, Order to Show Cause (D. Wyo. Feb. 6, 2025).

[3] Kathryn Rubino, “Massive Law Firm Gets Caught Hallucinating Cases,” Above the Law (Feb. 14, 2025).

[4] See, e.g., Mata v. Avianca, Inc., No. 22-CV-1461 (PKC), 2023 WL 3696209 (S.D.N.Y. May 4, 2023); United States v. Hayes, No. 2:24-CR0280-DJC, 2024 WL 5125812 (E.D. Cal. Dec. 16, 2024); United States v. Cohen, No. 18CR-602 (JMF), 2023 WL 8635521 (S.D.N.Y. Dec. 12, 2023).

Posted in Artificial Intelligence, Public Nuisances | 1 Comment »

Junior Goes to Washington

November 4th, 2024

I do not typically focus on politics per se in these pages, but sometimes politicians wander into the domain of public health, tort law, and the like. And when they do, they become “fair game” so to speak for comment.

Speaking of “fair game,” back in August, Robert Fitzgerald Kennedy, Jr., [Junior] admitted to dumping a dead bear in Central Park, Manhattan, and fabricating a scene to mislead authorities into believing that the bear had died from colliding with a bicycle.[1] Junior’s bizarre account of his criminal activities can be found on X, home to so many dodgy political figures.

Junior, who claims to be an animal lover and who somehow became a member of the New York bar, says he was driving in upstate New York, early in the morning, to go falconing in the Hudson Valley. On his drive, he witnessed a driver in front of him fatally hit a bear cub. We have only Junior’s word that it was another driver, and not he, who hit the bear.

Assuming that Junior was telling the truth (big assumption), we would not know whether or how he could ascertain where the bear was injured by having been hit by another vehicle in front of his own vehicle. Junior continued his story:

“So I pulled over and I picked up the bear and put him in the back of my van, because I was gonna skin the bear. It was in very good condition and I was gonna put the meat in my refrigerator.”

Kennedy noted that New York law permits taking home a bear, killed on the road, but the law requires that the incident be reported to either the New York State Department of Environmental Conservation (DEC) or to the police, who will then issue a permit. In case you are interested in going roadkill collecting, you can contact the DEC at (518) 402-8883 or wildlife@dec.ny.gov.

Junior, the putative lawyer, flouted the law. He never did obtain a permit from a law enforcement officer, but nonetheless he took the bear carcass. The bear never made it back to Junior’s sometime residence. The six-month-old, 44-pound bear cub carcass lay a-moldering in the back of his van, while Kennedy was busy with his falcons. Afterwards, Junior found himself out of time and in need to rush to Brooklyn, for a dinner with friends at the Peter Luger Steak House. Obviously, Junior is not a vegetarian; nor is beaten down by the economy. A portherhouse steak at Luger’s costs over $140 per person. No credit cards accepted from diners. The dinner went late, while the blow flies were having at the bear cub.

Junior had to run to the airport (presumably in Queens), and as he explained:

“I had to go to the airport, and the bear was in my car, and I didn’t want to leave the bear in the car because that would have been bad.”

Bad, indeed. Bad, without a permit. Bad, without being gutted. Bad, without being refrigerated.

Junior had a brain storm, in the part of his brain that remains. He would commit yet another crime. (Unfortunately, the statute of limitations has likely run on the road kill incident.) Junior dumped the dead bear along with a bicycle in Central Park. The geography is curious. Peter Luger’s is in Brooklyn, although the chain also has a restaurant in Great Neck. From either location, traveling into Manhattan would be quite a detour.  There are plenty of parks closer to either restaurant location, or en route to the New York airports.

Junior’s crime was discovered the following day. Although the perpetrator was not identified until Junior’s confession, the crime scene was reported by no other than one of Junior’s Kennedy cousins, in the New York Times.[2]

Now as any hunter knows, if Junior were to have any chance of actually using the bear meat, he needed to gut the animal immediately to prevent the viscera from contaminating muscle tissue. His recklessness in handling of the carcass reflects a profound ignorance of food safety. Junior might have made the meat available to the needy, but his disregard for handling a dead animal rendered the carcass worthless. Last weekend, Felonious Trump announced, at a rally, that he had told Junior that “you work on what we eat.”

Let them eat roadkill or Peter Luger steaks.

Women’s Health Issues

Trump, the Lothario of a porn actress, the grab-them-by-the-pussy, adjudicated sexual abuser,[3] has also announced that he will put Junior in charge of women’s health issues.[4]  Junior appears to be a fellow traveler when it comes to “protecting” women. Back in July, Vanity Fair published the account of Ms. Eliza Cooney, a former babysitter for Junior’s children. According to Cooney, Junior groped her on several occasions.[5] Junior conveniently has no memory of the events, but nonetheless apologized profusely to Ms. Cooney.[6] Junior texted an “apology” to Ms. Cooney not long after the Vanity Fair article was published:

“I have no memory of this incident but I apologize sincerely for anything I ever did that made you feel uncomfortable or anything I did or said that offended you or hurt your feelings. I never intended you any harm. If I hurt you, it was inadvertent. I feel badly for doing so.”

Junior’s lack of memory may be due to his having lost some undisclosed amount of his brain to a worm that resided within his brain.[7] Even so, the apology combined with the profession of lack of memory was peculiar. Ms. Cooney, who is now 48, was understandably underwhelmed by Junior’s text messages:

“It was disingenuous and arrogant. I’m not sure how somebody has a true apology for something that they don’t admit to recalling. I did not get a sense of remorse.”[8]

Somehow the awfulness of placing Junior in “charge” of women’s health makes perfect sense in the administration of Donald Trump.

Health Agencies

If placing the integrity of women’s health and the safety of our food supply at risk is not enough to raise your concern, Trump apparently plans to let Junior have free rein with his “Make America Healthy Again” program. Just a few days ago, Trump announced that he was “going to let him [Junior] go wild on health. I’m going to let him go wild on the food. I’m going to let him go wild on the medicines.”[9]

Junior has forever hawked conspiracy theories and claims that vaccines cause autism and other diseases. As part of the lawsuit industry, Junior has sought to make money by demonizing vaccines and prescription medications. Recently, Howard Lutnick, the co-chair of the Trump transition team, after a lengthy conversation with Junior, recited Junior’s evidence-free claims that vaccines are not safe. According to Lutnick:

“I think it’ll be pretty cool to give him the data. Let’s see what he comes up with.”[10]

Pretty cool to let a monkey have a go at a typewriter, but it would take longer than the lifetime of the universe for a monkey to compose Hamlet. [11] Junior might well need that lifetime of universe, raised to the second power, to interpret the available extensive safety and efficacy data on vaccines.

 Junior has been part of the lawsuit industry and anti-vax conspiracist movement against vaccines for years. When asked whether “banning certain vaccines might be on the table,” Trump told NBC that “Well, I’m going to talk to him and talk to other people, and I’ll make a decision, but he’s [Junior’s] a very talented guy and has strong views.”

Strong views; weak evidence.

Junior asserted last weekend that the aspiring Trump administration would move quickly to end fluoridation of drinking water, even though fluoridation of water supplies takes place at the state, county, and municipal level. When interviewed by NBC, yesterday, Trump said he had not yet spoken to Junior about fluoride yet, “but it sounds OK to me. You know it’s possible.”[12] Junior, not particularly expert in anything, has opined that fluoride is “an industrial waste,” which he claims, sans good and sufficient evidence is “linked” to cancer and other unspecified diseases and disorders.[13]

If there is one possible explanation for this political positioning is that anti-vax propaganda plays into the anti-elite, anti-expert mindset of Trump and his followers. We should not be surprised that surprised that people who believe that Trump was a successful businessman, based upon a (non)-reality TV show, and multiple bankruptcies, would also have no idea of what success would look like for the scientific community.

At the end of the 20th century, the Centers for Disease Control reflected on the great achievements in public health.[14] The Centers identified a fairly uncontroversial list of 10 successes:

(1) Vaccination

(2) Motor-vehicle safety

(3) Safer workplaces

(4) Control of infectious diseases

(5) Decline in deaths from coronary heart disease and stroke

(6) Safer and healthier foods

(7) Healthier mothers and babies

(8) Family planning

(9) Fluoridation of drinking water

(10) Recognition of tobacco use as a health hazard

A second Trump presidency, with Junior at his side, would unravel vaccination and fluoridation, two of the ten great public health achievements of the last century. Trump has already shown a callous disregard for the control of infectious diseases, with his handling of the corona virus pandemic. Trump’s alignment with strident anti-abortion advocates and religious zealots has undermined the health of women, and ensured that many fetuses with severe congenital malformations must be brought to term. His right-wing anti-women constituency and their hostility to Planned Parenthood has undermined family planning. Trump’s coddling of American industry likely means less safe workplaces. Trump and Junior in positions of power would also likely mean less safe, less healthful foods. (A porterhouse or McDonald Big Mac on every plate?) So basically, seven, perhaps eight, of the ten great achievements would be reversed.

Happy Election Day!

[1] Rachel Treisman, “RFK Jr. admits to dumping a dead bear in Central Park, solving a decade-old mystery,” Nat’l Public Radio (Aug. 5, 2024).

[2] Tatiana Schlossberg, “Bear Found in Central Park Was Killed by a Car, Officials Say,” N.Y. Times (Oct. 7, 2014).

[3] Larry Neumeister, Jennifer Peltz, and Michael R. Sisak, “Jury finds Trump liable for sexual abuse, awards accuser $5M,” Assoc’d Press News (May 9, 2023).

[4] “Trump brags about putting RFK Jr. in charge of women’s health,” MSNBC (Nov. 2024).

[5] Joe Hagan, “Robert Kennedy Jr’s Shocking History,” Vanity Fair (July 2, 2024).

[6] Mike Wendling, “RFK Jr texts apology to sexual assault accuser – reports,” BBC (July 12, 2024).

[7] Gabrielle Emanuel, “RFK Jr. is not alone. More than a billion people have parasitic worms,” Nat’l Public Radio (May 9, 2024).

[8] Peter Jamison, “RFK Jr. sent text apologizing to woman who accused him of sexual assault,” Washington Post (July 12, 2024).

[9] Bruce Y. Lee, “Trump States He’ll Let RFK Jr. ‘Go Wild’ On Health, Food, Medicines,” Forbes (Nov. 2, 2024).

[10] Dan Diamond, Lauren Weber, Josh Dawsey, Michael Scherer, and Rachel Roubein, “RFK Jr. set for major food, health role in potential Trump administration,” Wash. Post (Oct. 31, 2024).

[11] Stephen Woodcock & Jay Falletta, “A numerical evaluation of the Finite Monkeys Theorem,” 9 Franklin Open 100171 (2024).

[12] Jonathan J. Cooper, “RFK Jr. says Trump would push to remove fluoride from drinking water. ‘It’s possible,’ Trump says,” Assoc’d Press News (Nov. 3, 2024); William Kristol and Andrew Egger, “The Wheels on the Bus Go Off, and Off, and Off, and . . .,” The Bulwark (Nov. 4, 2024).

[13] Nadia Kounang, Carma Hassan and Deidre McPhillips, “RFK Jr. says fluoride is ‘an industrial waste’ linked to cancer, diseases and disorders. Here’s what the science says,” CNNHealth (Nov. 4, 2024).

[14] Centers for Disease Control, “Ten Great Public Health Achievements — United States, 1900-1999,”  48 Morbidity and Mortality Weekly Report 241 (Apr. 2, 1999).

Posted in Public Nuisances, Scientific Evidence | 1 Comment »

Fraudulent Asbestos Diagnoses Redux

August 27th, 2024

An Associated Press journalist reported on an appeal from an interesting judgment, which few other journalists have followed.[1] Last week, Matthew Brown filed a report on an appeal before the Ninth Circuit challenging a judgment against a health clinic that had diagnosed supposed asbestos-related diseases among residents of Libby, Montana. The BNSF Railway (Burlington Northern Santa Fe Corporation) challenged the validity of more than 2,000 of the clinic’s diagnoses, in a qui tam action. A federal court jury in Missoula found that the Railway had carried its burden of proving that 337 of the cases were indeed false claims. The clinic’s fraud had made its patients wrongly entitled to various federally funded benefit programs. The Railway’s tenuous connection to the underlying claims was that its railroad serviced the vermiculite mine outside of town, and its trains passed through town.

According to Brown, Plaintiff BNSF claimed that the clinic had made its diagnoses of asbestos-related disease solely upon chest radiographs. The clinic apparently defended by confession and avoidance. Yes, it had made diagnoses solely upon radiographs, but its physicians claimed that they had done so in good faith, based upon guidance of federal officials. This defense seems rather dodgy given that asbestosis does not manifest as a unique radiographic pattern.                                                                                                

The False Claims Act case resulted in a verdict of $5.8 million in penalties and damages, with one quarter of that amount going to BNSF as the relator. The federal government had declined to prosecute the case under the Act. After judgment was entered on the verdict, CART filed for bankruptcy, but its petition was dismissed at the request of the federal government. Lawyers for the government argued that the U.S. Department of Health and Human Services was the principal funder of the clinic, as well as its primary creditor. The costs of the bankruptcy would simply fall on taxpayers, who along with the Libby-area residents, were the victims of CART’s fraud.  The defendant clinic has appealed on grounds of erroneous jury instructions, according to its appellate lawyer, Tim Bechtold.

The AP story has a sub-headline claiming “[i]ndependent, fact-based, nonpartisan reporting.” Well, maybe not.

1. For some reason, Brown was coy about identifying the fraudfeasor medical clinic. The defendant in the case was the Center for Asbestos-Related Disease, Inc. (CART). Similarly, he did not identify any of the medical personnel who submitted false claims. CART had a physical presence in Libby, Montana, where W.R. Grace mined vermiculite for many years. The group has apparently filed for bankruptcy, but its website is still active. CART’s website’s landing page describes the Center as providing “advocacy, screening, care, and resources.” Notably, “advocacy” was listed first, which might not be exactly what physicians should prioritize.

2. Mr. Brown states that “[e]xposure to even a minuscule amount of asbestos can cause lung problems, according to scientists.” As Peter Woit put it, this characterization is not even wrong. Asbestos is a commercial term for six different minerals, but only in their fibrous habit. The potency for causing some diseases in humans varies by orders of magnitude among the mineral varieties. Since only god can make asbestos, and because the different varieties of asbestos are omnipresent in the natural environment, and because humans have natural defenses to inhaled minerals at levels even above “minuscule amounts,” Brown’s quote is nothing more than lawsuit industry propaganda. His statement about minuscule exposures is noteworthy for not having any identified source, although Brown used the exact phrase in an earlier article on the jury verdict.[2]

3. Mr. Brown does not provide the caption of the case he is describing, which seems like poor journalistic practice. For readers interested in the never-ending sage of fraudulent asbestos claims, the case was BNSF Railway v. Center for Asbestos Related Disease, Inc., No. CV 19-40-M-DLC (D. Mont. July 18, 2023). Some other proceedings of the case in district court are also available online. The oral argument is quite revealing in showcasing the parties’ stipulation that asbestosis cannot be diagnosed by B-readers and their interpretation of chest radiographs. The shoddy evidentiary foundations of many of the claims supported by CART are reminiscent of the fraud in In re Silica Products Liability Litigation, 398 F. Supp. 2d 563 (S.D. Tex. 2005).

4. Although Mr. Brown was reporting on the upcoming oral argument in the Ninth Circuit, he did not link to the video of that argument, which is available at the Circuit’s website. The Ninth Circuit’s docket number is 23-35507, and the case was heard on August 21, last week, by a panel of Judges Christen, Nguyen, and Hurwitz.

5. Mr. Brown provided no discussion or analysis whether CART’s defense was coherent or valid. The interested audience members can listen to the Ninth Circuit oral argument, and judge for themselves. I for one found the documented diagnostic practices “shocking and outrageous,” as Judge Clark Brown (of Boston Legal fame) used to say. By virtue of a federal statute, Libby area residents who have been diagnosed with an asbestos-related disease are eligible for various services, including Medicare, housekeeping, travel to medical appointments and disability benefits, at taxpayer expense.

[1] Matthew Brown, “Montana asbestos clinic seeks to reverse $6M in fines, penalties over false claims,” Assoc. Press News (Aug 21, 2024).

[2] Matthew Brown, “Montana health clinic must pay nearly $6 million over false asbestos claims, judge rules,” P.B.S. Newshour (July 23, 2023).

Posted in Asbestos, Medical monitoring, Public Nuisances | No Comments »

David Egilman, Rest in Peace, Part 3

April 30th, 2024

Egilman was sufficiently clever to discern that if his “method” led to a conclusion that silicone gel breast implants cause autoimmune disease, but the Institute of Medicine, along with court-appointed experts, found no basis for a causal conclusion, then by modus tollens Egilman’s “method” was suspect and must be rejected.[1] This awareness likely explains the extent to which he went to cover up his involvement in the plaintiffs’ causation case in the silicone litigation.

Egilman’s selective leaking of Eli Lilly documents was also a sore point. Egilman’s participation in an unlawful conspiracy was carefully detailed in an opinion by the presiding judge, Hon. Jack Weinstein.[2] His shenanigans were also widely covered in the media,[3] and in the scholarly law journals.[4] When Egilman was caught with his hand in the cookie jar, and conspiring to distribute confidential Zyprexa documents to the press, he pleaded the fifth amendment. The proceedings did not go well, and Egilman ultimately stipulated to his responsibility for violating a court order, and agreed to pay a monetary penalty of $100,000. Egilman’s settlement was prudent. The Court of Appeals affirmed sanctions against Egilman’s co-conspirator, for what the court described as “brazen” conduct.[5]

 

Despite being a confessed contemnor, Egilman managed to attract a fair amount of hagiographic commentary.[6] An article in Science, described Egilman as “the scourge of companies he accuses of harming public health and corrupting science,”[7] and quoted fawning praise from his lawsuit industry employers: “[h]e’s a bloodhound who can sniff out corporate misconduct better than security dogs at an airport,”[8] In 2009, a screen writer, Patrick Coppola, announced that he was developing a script for a “Doctor David Egilman Project”. A webpage (still available on the Way-Back machine)[9] described the proposed movie as Erin Brockovich meets The Verdict. Perhaps it would have been more like King Kong meets Lenin in October.

After I started my blog, Tortini, in 2010, I occasionally commented upon David Egilman. As a result, I received occasional emails from various correpondents about him. Most were lawyers aggrieved by his behavior at deposition or in trial, or physicians libeled by him. I generally discounted those partisan and emotive accounts, although I tried to help by sharing transcripts from Egilman’s many testimonial adventures.

One email correspondent was Dennis Nichols, a well-respected journalist from Cincinnati, Ohio. Nichols had known Egilman in the early 1980s, when he was at NIOSH, in Cincinnait. Nichols had some interests in common with Egilman, and had socialized with him 40 years ago. Dennis wondered what had become of Egilman, and one day, googled Egilman, and found my post “David Egilman’s Methodology for Divining Causation.”  Nichols found my description of Egilman’s m.o. consistent with what he remembered from the early 1980s. In the course of our correspondence, Dennis Nichols shared his recollections of his interactions with the very young David Egilman. Dennis Nichols died in February 2022,[10] and I am taking the liberty of sharing his first-hand account with a broader audience.

“I met David Egilman only two or three times, and that was more than 30 years ago, when he was an epidemiologist at NIOSH. When I remarked on the content of conversation with him in about 1990, he and a lawyer representing him threatened to sue me for libel, to which I picked up the gauntlet. I had a ‘blood from the turnip’ defense to accompany my primary defense of truth, and besides, Egilman was widely known as a Communist.

I had lunch with Egilman in a Cincinnati restaurant in 1982 after someone suggested that he might be interested in supporting an arts and entertainment publishing venture that I was involved with, called The Outlook; notwithstanding that I was a conservative, The Outlook leaned left, and its key staff were Catholic pacifists and socialists. Over lunch, Egilman explained to me that he considered himself a Marxist-Leninist, his term, and that the day would come when people like him would have to kill people like me, again his language.

He subsequently invited me and the editor of The Outlook to a reception he had at his house on Mt. Adams, a Cincinnati upscale and Bohemian neighborhood, or at least as close as Cincinnati gets to Bohemian, where he served caviar that he had brought back from his most recent trip to Moscow and displayed poster-size photographs of Lenin, Marx, Stalin, Luxemburg, Gorky and other heroes of the Soviet Union and Scientific Socialism. I do not recall that Egilman admired Mao; the USSR had considerable tension in those years with China, and Egilman was clearly in the USSR camp in those days of Brezhnev, and he said so. Egilman said he traveled often to the Soviet Union, I think in the course of his work, which probably was not common in 1982.

The Outlook editor had met Egilman in the course of his advocacy journalism in reporting on the Fernald Feed Materials Production Center, now closed, which processed fuel cores for nuclear weapons.

Probably none of this matters a generation later, but is just nostalgia about an old communist and his predations before he got into exploiting medical mal. May he rot.”[11]

The account from Mr. Nichols certainly rings true. From years of combing over Egilman’s website (before he added password protection), anyone could see that he viewed litigation as class warfare that would advance his political goals. Litigation has the advantage of being lucrative, and bloodless, too – perfect for fair-weather Marxists.

Did Egilman remain a Marxist into the 1990s and the 21st century? Does it matter?

If Egilman was as committed to Marxist doctrine as Mr. Nichols suggests, he would have recognized that, as an expert witness, he needed to tone down his public rhetoric. Around the time I corresponded with Mr. Nichols, I saw that Egilman was presenting to the Socialist Caucus of the American Public Health Association (2012-13). Egilman always struck me as a bit too pudgy and comfortable really to yearn for a Spartan workers’ paradise. In any event, Egilman was probably not committed to the violent overthrow of the United States government because he had found a better way to destabilize our society by allying himself with the lawsuit industry. The larger point, however, is that political commitments and ideological biases are just as likely to lead to motivated reasoning, if not more so.

Although Egilman’s voice needed no amplification, he managed to turn up the wattage of his propaganda by taking over the reins, as editor in chief, of a biomedical journal. The International Journal of Occupational and Environmental Health (IJOEH) was founded and paid for by Joseph LaDou, in 1995. By 2007, Egilman had taken over as chief editor. He ran the journal out of his office, and the journal’s domain was registered in his name. Egilman published frequently in the journal, which became a vanity press for his anti-manufacturer, pro-lawsuit industry views. His editorial board included such testifying luminaries as Arthur Frank, Barry S. Levy, and David Madigan.

Douglas Starr, in an article in Science, described IJOEH as having had a reputation for opposing “mercenary science,” which is interesting given that Egilman, many on his editorial board, and many of the authors who published in IJOEH were retained, paid expert witnesses in litigation. The journal itself could not have been a better exemplar[12] of mercenary science, in support of the lawsuit industry.

In 2015, IJOEH was acquired by the Taylor & Francis publishing group, which, in short order, declined to renew Egilman’s contract to serve as editor. The new publisher also withdrew one of Egilman’s peer-reviewed papers that had been slated for publication. Taylor & Francis reported to the blog Retraction Watch that Egilman’s article had been “published inadvertently, before the review process was completed,” and was later deemed “unsuitable for publication.”[13] Egilman and his minions revolted, but Taylor & Francis held the line and retired the journal.[14]

Egilman recovered from the indignity foisted upon him by Taylor & Francis, by finding yet another journal, the Journal of Scientific Practice and Integrity (JOSPI).[15] Egilman probably said all that was needed to describe the goals of this new journal by announcing that the

Journal’s “partner” was the Collegium Ramazzini. Egilman of course was the editor in chief, with an editorial board made up of many well-known, high-volume testifiers for the lawsuit industry: Adriane Fugh-Berman, Barry Castleman, Michael R. Harbut, Peter Infante, William E. Longo, David Madigan, Gerald Markowitz, and David Rosner.

Some say that David Egilman was a force of nature, but so are hurricanes, earthquakes, volcanoes, and pestilences. You might think I have nothing good to say about David Egilman, but that is not true. The Lawsuit Industry has often organized and funded mass radiographic and other medical screenings to cull plaintiffs from the population of workers.[16] Some of these screenings led to the massive filing of fraudulent claims.[17] Although he was blind to many of the excesses of the lawsuit industry, Egilman spoke out against attorney-sponsored and funded medico-legal screenings. He published his criticisms in medical journals,[18] and he commented freely in lay media. He told one reporter that “all too often these medical screenings are little more than rackets perpetrated by money-hungry lawyers. Most workers usually don’t know what they’re getting involved in.”[19] Among the Collegium Ramazzini crowd, Egilman was pretty much a lone voice of criticism.

[1] See “David Egilman’s Methodology for Divining Causation,” Tortini (Sept. 6, 2012).

[2] In re Zyprexa Injunction, 474 F.Supp. 2d 385 (E.D.N.Y. 2007). The Zyprexa case was not the first instance of Egilman’s involvement in a controversy over a protective order. Ballinger v. BrushWellman, Inc., 2001 WL 36034524 (Colo. Dist. June 22, 2001), aff’d in part and rev’d in part, 2002 WL 2027530 (Colo. App. Sept. 5, 2002) (unpublished).

[3] “Doctor Who Leaked Documents Will Pay $100,000 to Lilly,” N. Y. Times (Sept. 8, 2007).

[4] William G. Childs, “When the Bell Can’t Be Unrung: Document Leaks and Protective Orders in Mass Tort Litigation,” 27 Rev. Litig. 565 (2008).

[5] Eli Lilly & Co. v. Gottstein, 617 F.3d 186, 188 (2d Cir. 2010).

[6] Michelle Dally, “The Hero Who Wound Up On the Wrong Side of the Law,” Rhode Island Monthly 37 (Nov. 2001).

[7] Douglas Starr, “Bearing Witness,” 363 Science 334 (2019).

[8] Id. at 335 (quoting Mark Lanier, who fired Egilman for his malfeasance in the Zyprexa litigation).

[9] Doctor David Egilman Project, at <https://web.archive.org/web/20130902035225/http://coppolaentertainment.com/ddep.htm>.

[10] Bill Steigerwald, “The death of a great Ohio newspaperman,” (Feb. 08, 2022) (“Dennis Nichols of Cincinnati’s eastern suburbs was a dogged, brilliant and principled journalist who ran his family’s two community papers and gave the local authorities all the trouble they deserved.); John Thebout, Village of Batavia Mayor, “Batavia Mayor remembers Dennis Nichols,” Clermont Sun (Feb. 9, 2022).

[11] Dennis Nichols email to Nathan Schachtman, re David Egilman (Mar. 9, 2013)

[12] Douglas Starr, “Bearing Witness,” 363 Science 334, 337 (2019).

[13] See “Public health journal’s editorial board tells publisher they have ‘grave concerns’ over new editor,” Retraction Watch (April 27, 2017).

[14] “David Egilman and Friends Circle the Wagon at the IJOEH,” Tortini (May 4, 2017).

[15] See “A New Egilman Bully Pulpit,” Tortini (Feb. 19, 2020).

[16] Schachtman, “State Regulators Impose Sanction Unlawful Screenings 05-25-07,” Washington Legal Foundation Legal Opinion Letter, vol. 17, no. 13 (May 2007); Schachtman, “Silica Litigation – Screening, Scheming, and Suing,” Washington Legal Foundation Critical Legal Issues Working Paper (December 2005); Schachtman & Rhodes, “Medico-Legal Issues in Occupational Lung Disease Litigation,” 27 Seminars in Roentgenology 140 (1992).

[17] In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563 (S.D. Tex. 2005) (Jack, J.).

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

[19] Andrew Schneider, “Asbestos Lawsuits Anger Critics,” St. Louis Post-Dispatch (Feb. 11, 2003).

Posted in Cognitive Biases, Conflicts of Interest, Expert Witnesses, Public Nuisances, Scientific Publishing | 44 Comments »

David Egilman, Rest in Peace – Part 1

April 26th, 2024

After close to a 40 year career as a testifying expert witness, David Egilman died earlier this month.[1] He was a work horse of the lawsuit industry.  Although he made plenty of money as a retained witness, Egilman was motivated by his political agenda. As he noted in a 2004 lecture at the Center for Science in the Public Interest: “my bias is ideological.”[2]

By the mid-1980s, Egilman was actively engaged in medico-legal testimonial adventures. In 1986, he was sued for negligence and fraud in connection with medical reports he wrote to support worker compensation claims filed against the Dayton-Walther Corporation. Thanks to the excellent lawyering of Frank Woodside and others, the case was ultimately dismissed on grounds that the alleged fraud was not legally cognizable as pleaded.[3]

Not long after Egilman dodged the Ohio fraud case, he testified for a claimant in a disability case against the Norfolk & Western Railroad. The administrative tribunals found the claim “was not fully credible or supported by substantial evidence in the record.”[4] By 1990, testifying in the Virgin Islands, Egilman had appeared upon the asbestos scene. [5] And then, Egilman seemed to be everywhere.

With the decision in Daubert, Egilman became gun shy, and he would not appear in courtrooms in which he faced a substantial risk of being excluded.  Egilman submitted reports in the cases before Judge Jones, in the District of Oregon, but after the court appointed technical advisors, Egilman decided to stay on the east coast. Egilman also sat out the hearings before Judges Weinstein and Baer, and Justice Lobis, in Brooklyn, in October 1996.

Up to the fall of 1996, Egilman had never showed up in any my cases. As I was preparing for the hearing before Judge Weinstein, I received a letter by telecopy and post, from David Egilman. The circumstances surrounding this letter were nothing less than bizarre. Earlier in the winter of 1996, George Gore (Al’s cousin) tried a silicone breast implant case for Bristol Myers Squibb in Oregon state court. I was there for the trial, mostly to monitor the proceedings, and help with witness preparation. Tragically, George’s father died during the trial, and for want of a better candidate, I substituted for him while he had to be away. When George returned (after a detour to be invested as President of the IADC), he wanted his case back.  After some tussling, we agreed to share the remaining witnesses, but George was adamant that he wanted to present the closing argument.

With the jury out, the defense prospects did not look promising, and George vamoosed again. The case had been bifurcated, and there was a punitive damages phase still to go. Once again, I re-entered the fray and tried the second phase of the case. In its deliberations on the second phase, the jury deadlocked, and the parties were left to fight what the Oregon requirement of a unified jury meant.

And then, in late September 1996, a faxed letter came across my desk, from none other than David Egilman. I had a breast implant case, set for trial in Middlesex County, New Jersey, and Egilman was one of the main  causation expert witnesses for the plaintiff, represented by the Wilentz firm. Perhaps the only way to tell what happened is simply to share with you what Egilman wanted from me, and then to share with you my response to the Wilentz firm. Very shortly after I wrote my letter, Chris Placitella, the Wilentz trial lawyer, withdrew Egilman from the case, and I never got another opportunity to take his deposition or to cross-examine him.

 

And my response directed to the firm that represented the plaintiff:

 

 

 

[1] Clay Risen, “David Egilman, Doctor Who Took On Drug Companies, Dies at 71,” N.Y. Times (Apr. 15, 2024).

[2] David Egilman and Susanna Rankin Bohme, “The suppression of science: How corporate interests hide the truth & how to stop them” CSPI Conference (July 2004).

[3] Dayton-Walther Corp. v. Kelly, 42 Ohio App. 3d 184 (1987).

[4] Freels v. U.S. RR Retirement Bd., 879 F.2d 335 (1989).

[5] Dunn v. Owens-Corning Fiberglas, 774 F. Supp. 929 (D.V.I. 1991).

Posted in Asbestos, Cognitive Biases, Expert Witness Hall of Shame, Public Nuisances | 5 Comments »

The Dodgy Origins of the Collegium Ramazzini

November 15th, 2023

Or How Irving Selikoff and His Lobby (the Collegium Ramazzini) Fooled the Monsanto Corporation

Anyone who litigates occupational or environmental disease cases has heard of the Collegium Ramazzini. The group is named after a 17th century Italian physician, Bernardino Ramazzini, who is sometimes referred to as the father of occupational medicine.[1] His children have been an unruly lot. In Ramazzini’s honor, the Collegium was founded just over 40 years old, to acclaim and promises of neutrality and consensus.

Back in May 1983, a United Press International reporter chronicled the high aspirations and the bipartisan origins of the Collegium.[2] The UPI reporter noted that the group was founded by the late Irving Selikoff, who is also well known in litigation circles. Selikoff held himself out as an authority on occupational and environmental medicine, but his actual training in medicine was dodgy. His training in epidemiology and statistics was non-existent.

Selikoff was, however, masterful at marketing and prosyletizing. Selikoff would become known for misrepresenting his training, and creating a mythology that he did not participate in litigation, that crocidolite was not used in products in the United State, and that asbestos would become a major cause of cancer in the United States, among other things.[3] It is thus no surprise that Selikoff successfully masked the intentions of the Ramazzini group, and was thus able to capture the support of two key legislators, Senators Charles Mathias (Rep., Maryland) and Frank Lautenberg (Dem., New Jersey), along with officials from both organized labor and industry.

Selikoff was able to snooker the Senators and officials with empty talk of a new organization that would work to obtain scientific consensus on occupational and environmental issues. It did not take long after its founding in 1983 for the Collegium to become a conclave of advocates and zealots.

The formation of the Collegium may have been one of Selikoff’s greatest deceptions. According to the UPI news report, Selikoff represented that the Collegium would not lobby or seek to initiate legislation, but rather would interpret scientific findings in accessible language, show the policy implications of these findings, and make recommendations. This representation was falsified fairly quickly, but certainly by 1999, when the Collegium called for legislation banning the use of asbestos.  Selikoff had promised that the Collegium

“will advise on the adequacy of a standard, but will not lobby to have a standard set. Our function is not to condemn, but rather to be a conscience among scientists in occupational and environmental health.”

The Adventures of Pinocchio (1883); artwork by Enrico Mazzanti

Senator Mathias proclaimed the group to be “dedicated to the improvement of the human condition.” Perhaps no one was more snookered than the Monsanto Corporation, which helped fund the Collegium back in 1983. Monte Throdahl, a Monsanto senior vice president, reportedly expressed his hopes that the group would emphasize the considered judgments of disinterested scientists and not the advocacy and rent seeking of “reporters or public interests groups” on occupational medical issues. Forty years in, those hopes are long since gone. Recent Collegium meetings have been sponsored and funded by the National Institute for Environmental Sciences, Centers for Disease Control, National Cancer Institute, and Environmental Protection Agency. The time has come to cut off funding.

[1] Giuliano Franco & Francesca Franco, “Bernardino Ramazzini: The Father of Occupational Medicine,” 91 Am. J. Public Health 1382 (2001).

[2] Drew Von Bergen, “A group of international scientists, backed by two senators,” United Press International (May 10, 1983).

[3] “Selikoff Timeline & Asbestos Litigation History” (Feb. 26, 2023); “The Lobby – Cut on the Bias” (July 6, 2020); “The Legacy of Irving Selikoff & Wicked Wikipedia” (Mar. 1, 2015). See also “Hagiography of Selikoff” (Sept. 26, 2015);  “Scientific Prestige, Reputation, Authority & The Creation of Scientific Dogmas” (Oct. 4, 2014); “Irving Selikoff – Media Plodder to Media Zealot” (Sept. 9, 2014).; “Historians Should Verify Not Vilify or Abilify – The Difficult Case of Irving Selikoff” (Jan. 4, 2014); “Selikoff and the Mystery of the Disappearing Amphiboles” (Dec. 10, 2010); “Selikoff and the Mystery of the Disappearing Testimony” (Dec. 3, 2010).

Posted in Asbestos, Conflicts of Interest, Public Nuisances, Scientific Misconduct, Scientific Publishing | 3 Comments »

Tenpenny Down to Tuppence

August 22nd, 2023

Over two years ago, an osteopathic physician by the name of Sherri Tenpenny created a stir when she told the Ohio state legislature that Covid vaccines magnetize people or cause them to “interface with 5G towers.”[1] What became apparent at that time was that Tenpenny was herself a virulent disease vector of disinformation. Indeed, in its March 2021 report, the Center for Countering Digital Hate listed Tenpenny as a top anti-vaccination shyster. As a social media vector, she is ranked in the top dozen “influencers.”[2] No surprise, in addition to bloviating about Covid vaccines, someone with such quirkly non-evidence based opinions turns up in litigation as an expert witness.[3]

 

At the time of Tenpenny’s ludicrous testimony before the Ohio state legislature, one astute observer remarked that the AMA Ethical Guidelines specify that medical societies and medical licensing boards are responsible for maintaining high standards for medical testimony, and must assess “claims of false or misleading testimony.”[4] When the testimony is false or misleading, these bodies should discipline the offender “as appropriate.”[5]

The State Medical Board of Ohio stepped up to its responsibility. After receiving hundreds (roughly 350) complaints about Tenpenny’s testimony, the Ohio Board launched an investigation of Tenpenny, who was first licensed as an osteopathic physician in 1984.[6]  The Board’s investigators tried to contact Tenpenny, who apparently evaded engaging with them. Eventually, Thomas Renz, a lawyer for Tenpenny informed the Board that Tenpenny “[d]eclin[ed] to cooperate in the Board’s bad faith and unjustified assault on her licensure, livelihood, and constitutional rights cannot be construed as an admission of any allegations against her.”

After multiple unsuccessful attempts to reach Tenpenny, the Board issued a citation, in 2022, against her for stonewalling the investigation. Tenpenny requested an administrative hearing, set for April 2023, when she would be able to submit her defense in writing. The Board refused to let Tenpenny evade questioning, and suspended her license for failure to comply with the investigation. According to the Board’s Order, “Dr. Tenpenny did not simply fail to cooperate with a Board investigation, she refused to cooperate. *** And that refusal was based on her unsupported and subjective belief regarding the Board’s motive for the investigation. Licensees of the Board cannot simply refuse to cooperate in investigations because they decide they do not like what they assume is the reason for the investigation.”[7]

According to the Board’s Order, Tenpenny has been fined $3,000, and she must satisfy the Board’s conditions before applying for reinstatement. The Ohio Board’s decision is largely based upon a procedural ruling that flowed from Tenpenny’s refusal to cooperate with the Board’s investigation. Most state medical boards have done little to nothing to address the substance of physician misconduct arising out of the COVID pandemic. This month, American Board of Internal Medicine (ABIM) announced that it was revoking the board certifications of two physicians, Drs. Paul Marik and Pierre Kory, members of the Front Line COVID-19 Critical Care Alliance, for engaging in promoting disinformation and invalid opinions about therapies for COVID-19 opinions.[8] Ron Johnson, the quack senator from Wisconsin, predictably and transparently criticized the ABIM’s action with an ad hominem attack on the ABIM as the action of a corporate cabal. Quack physicians of course have a first amendment right to say whatever, but their licensure and their board certification are contingent on basic competence. Both the state boards and the certifying private groups have the right and responsibility to revoke licenses and privileges when physicians demonstrate incompetence and callousness in the face of a pandemic. There is no unqualified right to professional licenses or certifications.

[1] Andrea Salcedo, “A doctor falsely told lawmakers vaccines magnetize people: ‘They can put a key on their forehead. It sticks’,” Washington Post (June 9, 2021); Andy Downing, “What an exceedingly dumb time to be alive,” Columbus Alive (June 10, 2021); Jake Zuckerman, “She says vaccines make you magnetized. This West Chester lawmaker invited her testimony, chair says,” Ohio Capital Journal (July 14, 2021).

[2] The Disinformation Dozen (2021),

[3] Shaw v. Sec’y Health & Human Servs., No. 01-707V, 2009 U.S. Claims LEXIS 534, *84 n.40 (Fed. Cl. Spec. Mstr. Aug. 31, 2009) (excluding expert witness opinion testimony from Tenpenny).

[4]  “Epistemic Virtue – Dropping the Dime on Tenpenny” Tortini (July 18, 2021).

[5] A.M.A. Code of Medical Ethics Opinion 9.7.1.

[6] Michael DePeau-Wilson, “Doc Who Said COVID Vax Magnetized People Has License Suspended,” MedPageToday (Aug. 11, 2023); David Gorski, “The Ohio State Medical Board has finally suspended the medical license of antivax quack Sherri Tenpenny,” Science-Based Medicine (Aug, 14, 2023).

[7] In re Sherri J. Tenpenny, D.O., Case No. 22-CRF-0168 State Medical Board of Ohio (Aug. 9, 2023).

[8] David Gorski, “The American Board of Internal Medicine finally acts against two misinformation-spreading doctors,” Science-Based Medicine (Aug. 7, 2023).

Posted in Expert Witnesses, Public Nuisances, Scientific Evidence, Scientific Misconduct | No Comments »

Mass Tortogenesis

January 22nd, 2023

Mass torts are created much as cancer occurs in humans. The multistage model of tortogenesis consists of initiating and promoting events. The model describes, and in some cases, can even predict mass torts. The model also offers insights into prevention.

INITIATION

Initiating events can take a variety of forms. A change in a substance’s categorization in the International Agency for Research on Cancer’s treatment of cancer “hazards” will often initiate a mass tort by stirring interest in the lawsuit industry. A recent example of an IARC pronouncement’s initiating mass tort litigation is its reclassification of glyphosate as a “probable” human carcinogen.  Although the IARC monograph was probably flawed at its inception, and despite IARC’s specifying that its use of “probable” has no quantitative meaning, the IARC glyphosate monograph was a potent initiator of mass tort litigation against the manufacturer of glyphosate.

Regulatory rulemaking will often initiate a mass tort. Asbestos litigation existed as workman’s compensation cases from the 1930s, and as occasional, isolated cases against manufacturers, from the late 1950s.[1] By 1970, federal regulation of asbestos, in both occupational and environmental settings, however, helped create a legal perpetual motion machine that is still running, half a century later.

Publication of studies, especially with overstated results, will frequently initiate a mass tort. In 2007, the New England Journal of Medicine published a poorly done meta-analysis by Dr. Steven Nissen, on the supposed risk of heart attack from the use of rosiglitazone (Avandia).[2] Within days, lawsuits were filed against the manufacturer, GlaxoSmithKline, which ultimately paid over six billion dollars in settlements and costs.[3] Only after the harm of this mass tort was largely complete, the results of a mega-trial, RECORD,[4] became available, and the FDA changed its regulatory stance on rosiglitazone.[5]

More recently, on October 17, 2022, the Journal of the National Cancer Institute, published an observational epidemiologic study, “Use of Straighteners and Other Hair Products and Incident Uterine Cancer.”[6] Within a week or two, lawsuits began to proliferate. The authors were equivocal about their results, refraining from using explicit causal language, but suggesting that specific (phthalate) chemicals were “driving” the association:

“Abstract

Background

Hair products may contain hazardous chemicals with endocrine-disrupting and carcinogenic properties. Previous studies have found hair product use to be associated with a higher risk of hormone-sensitive cancers including breast and ovarian cancer; however, to our knowledge, no previous study has investigated the relationship with uterine cancer.

Methods

We examined associations between hair product use and incident uterine cancer among 33947 Sister Study participants aged 35-74 years who had a uterus at enrollment (2003-2009). In baseline questionnaires, participants in this large, racially and ethnically diverse prospective cohort self-reported their use of hair products in the prior 12 months, including hair dyes; straighteners, relaxers, or pressing products; and permanents or body waves. We estimated adjusted hazard ratios (HRs) and 95% confidence intervals (CIs) to quantify associations between hair product use and uterine cancer using Cox proportional hazard models. All statistical tests were 2-sided.

Results

Over an average of 10.9 years of follow-up, 378 uterine cancer cases were identified. Ever vs never use of straightening products in the previous 12 months was associated with higher incident uterine cancer rates (HR= 1.80, 95% CI = 1.12 to 2.88). The association was stronger when comparing frequent use (> 4 times in the past 12 months) vs never use (HR=2.55, 95% CI = 1.46 to 4.45; P trend=.002). Use of other hair products, including dyes and permanents or body waves, was not associated with incident uterine cancer.

Conclusion

These findings are the first epidemiologic evidence of association between use of straightening products and uterine cancer. More research is warranted to replicate our findings in other settings and to identify specific chemicals driving this observed association.”

The JNCI article might be considered hypothesis generating, but we can observe the article, in real time, initiating a mass tort. A petition for “multi-district litigation” status was filed not long after publication, and the lawsuit industry is jockeying for the inside post in controlling the litigation. Although the authors acknowledged that their findings were “novel,” and required more research, the lawsuit industry did not.

PROMOTION OF INITIATED MASS TORTS

As noted, within days of publication of the JNCI article on hair straighteners and uterine cancer, lawyers filed cases against manufacturers and sellers of hair straighteners. Mass tort litigation is a big business, truly industrial in scale, with its own eco-system of litigation finance, and claim finding and selling. Laws against champerty and maintenance have gone the way of the dodo. Part of the ethos of this eco-system is the constant deprecation of manufacturing industry’s “conflicts of industry,” while downplaying the conflicts of the lawsuit industry.

Here is an example of an email that a lawsuit industry lawyer might have received last month. The emphases below are mine:

“From:  ZZZ

To:  YYYYYYYYY

Date:  12/XX/2022
Subject:  Hair relaxer linked to cancer

Hi,

Here is the latest information on the Hair Relaxer/Straightener tort.

A recent National Institute of Health sister study showed proof that hair straightener products are linked to uterine cancer.

Several lawsuits have been filed against cosmetic hair relaxer companies since the release of the October 2022 NIH study.

The potential plaintiff pool for this case is large since over 50,000 women are diagnosed yearly.

A motion has been filed with the Judicial Panel on Multi District Litigation to have future cases moved to a class action MDL.

There are four cosmetic hair relaxers that are linked to this case so far.  Dark & Lovely, Olive Oil Relaxer, Motions, and Organic Root Stimulator.

Uterine fibroids and endometriosis have been associated with phthalate metabolites used in hair relaxers.

Are you looking to help victims in this case

ZZZ can help your firm sign up these thousands of these claimants monthly with your hair relaxer questionnaire, criteria, retainer agreement, and Hippa without the burden of doing this in house at an affordable cost per signed retainer for intake fees.

  • ZZZ intake fees are as low as $65 dollars per signed based upon a factors which are criteria, lead conversion %, and length of questionnaire.  Conversion rates are averaging 45%.
  • I can help point you in the right direction for reputable marketing agencies if you need lead sources or looking to purchase retainers.  

Please contact me to learn more about how we can help you get involved in this case.

Thank you,

ZZZ”

As you can see from ZZZ’s email, the JNCI article was the tipping point for the start of a new mass tort. ZZZ, however, was a promoter, not an initiator. Consider the language of ZZZ’s promotional efforts:

“Proof”!

As in quod erat demonstrandum.

Where is the Department of Justice when you have the makings of a potential wire fraud case?[7]

And “link.” Like sloppy journalists, the lawsuit industry likes to link a lot.

chorizo sausage links (courtesy of Wikipedia)[8]

And so it goes.

Absent from the promotional email are of course, mentions of the “novelty” of the JNCI paper’s finding, its use of dichotomized variables, its multiple comparisons, or its missing variables. Nor will you see any concern with how the JNCI authors inconsistently ascertained putative risk factors. Oral contraception was ascertained for over 10 years before base line, but hair straightener use was ascertained only for one year prior to baseline.

SYSTEMIC FAILURES TO PREVENT MASS TORTOGENESIS

Human carcinogenesis involves initiation and promotion, as well as failure of normal defense mechanisms against malignant transformation. Similarly, mass tortogenesis involves failure of defense mechanisms. Since 1993, the federal courts have committed to expert witness gatekeeping, by which they exclude expert witnesses who have outrun their epistemic headlights. Gatekeeping in federal court does not always go well, as for example in the Avandia mass tort, discussed above. In state courts, gatekeeping is a very uneven process.

Most states have rules or law that looks similar to federal law, but state judges, not uncommonly, look for ways to avoid their institutional responsibilities. In a recent decision involving claims that baby foods allegedly containing trace metals cause autism, a California trial judge shouted “not my job”[9]:

 “Under California law, the interpretation of epidemiological data — especially data reported in peer-reviewed, published articles — is generally a matter of professional judgment outside the trial court’s purview, including the interpretation of the strengths and weaknesses of a study’s design. If the validity of studies, their strengths and weaknesses, are subject to ‘considerable scientific interpretation and debate’, a court abuses its discretion by ‘stepping in and resolving the debate over the validity of the studies’. Nor can a court disregard ‘piecemeal … individual studies’ because it finds their methodology, ‘fully explained to the scientific community in peer-reviewed journals, to be misleading’ – ‘it is essential that… the body of studies be considered as a whole’. Flaws in study methodology should instead be ‘explored in detail through cross-examination and with the defense expert witnesses’ and affect ‘the weight[,] not the admissibility’ of an expert’s opinions.”

When courts disclaim responsibility for ensuring validity of evidence used to obtain judgments in civil actions, mass tortogenesis is complete, and the victim, the defendants, often must undergo radical treatment.

[1] The first civil action appears to have been filed by attorney William L. Brach on behalf of Frederick LeGrande, against Johns-Manville, for asbestos-related disease, on July 17, 1957, in LeGrande v. Johns-Manville Prods. Corp., No. 741-57 (D.N.J.).

[2] Steven E. Nissen, M.D., and Kathy Wolski, M.P.H., “Effect of Rosiglitazone on the Risk of Myocardial Infarction and Death from Cardiovascular Causes,” 356 New Engl. J. Med. 2457, 2457 (2007).

[3] In re Avandia Marketing, Sales Practices and Product Liability Litigation, 2011 WL 13576, *12 (E.D. Pa. 2011) (Rufe, J.).  See “Learning to Embrace Flawed Evidence – The Avandia MDL’s Daubert Opinion” (Jan. 10, 2011). Failed expert witness opinion gatekeeping promoted the mass tort into frank mass tort.

[4] Philip D. Home, Stuart J Pocock, et al., “Rosiglitazone Evaluated for Cardiovascular Outcomes in Oral Agent Combination Therapy for Type 2 Diabetes (RECORD),” 373 Lancet 2125 (2009) (reporting hazard ratios for cardiovascular deaths 0.84 (95% C.I., 0·59–1·18), and for myocardial infarction, 1·14 (95% C.I., 0·80–1·63). See “Revisiting the Avandia Scare: Results from the RECORD Trial” DiaTribe Learn (updated Aug. 14, 2021).

[5] FDA Press Release, “FDA requires removal of certain restrictions on the diabetes drug Avandia” (Nov. 25, 2013). And in December 2015, the FDA abandoned its requirement of a Risk Evaluation and Mitigation Strategy for Avandia. FDA, “Rosiglitazone-containing Diabetes Medicines: Drug Safety Communication – FDA Eliminates the Risk Evaluation and Mitigation Strategy (REMS)” (Dec. 16, 2015).

[6] Che-Jung Chang, Katie M O’Brien, Alexander P Keil, Symielle A Gaston, Chandra L Jackson, Dale P Sandler, and Alexandra J White, “Use of Straighteners and Other Hair Products and Incident Uterine Cancer,”114 J.Nat’l Cancer Instit. 1636 (2022).

[7] See, e.g., United States v. Harkonen, 2010 WL 2985257, at *5 (N.D. Calif. 2010) (denying defendant’s post–trial motions to dismiss the indictment, for acquittal, or for a new trial), aff’d, 510 Fed. Appx. 633, 2013 WL 782354, 2013 U.S. App. LEXIS 4472 (9th Cir. March 4, 2013), cert. denied 134 S.Ct. 824 (2013).

[8] See https://en.wikipedia.org/wiki/List_of_sausages.

[9] NC v Hain Celestial Group, Inc., 21STCV22822, Slip op. sur motion to exclude expert witnesses, Cal. Super. Ct. (Los Angeles May 24, 2022) (internal citations omitted).

Posted in Public Nuisances, Rule 702, Scientific Evidence, Scientific Publishing | 2 Comments »

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