Michael Mann’s lawsuit against the Competitive Enterprise Institute (CEI) for defamation is an interesting case.  See “Climategate on Appeal” (Aug. 17, 2014). Whatever you think of Mann’s research, the charges of the CEI, calling Mann’s work fraudulent were outrageous. Mann may have a political agenda, and his scientific work may be flawed and invalid, but that does not make it fraudulent. If the CEI has evidence that Mann fabricated or falsified data, then the charge would be appropriate, but so far, nothing to support the charge has emerged. In its pleadings, the CEI averred that it used “fraudulent” as a metaphor or something like that.

The excesses of the CEI are not unique to the climate change debate. One website features an interview with Mike Papantonio, an attorney for the litigation industry, about claims that the Weinberg Group spreads scientific disinformation. “Scientists for Sale” RT Question More (Sept. 17, 2014). The Weinberg Group describes itself as providing

“biotech, medical device and pharmaceutical consulting services to companies of every size on every continent, supplying them with viable and efficient drug development pathways and compliance solutions.”

Weinberg Group Website. According to Papantonio and his media facilitator, Thom Hartmann, the Weinberg Group is a group of “professional liars and huxters,” who will “cook the books,” to show that chemicals or tobacco do not cause cancer. Papantonio, however, never delivers any evidence that the Weinberg Group has falsified or fabricated evidence. He, Papantonio, does not like the Weinberg Group’s interpretation of scientific evidence in his legal cases, and its persistence in revealing the weaknesses of the litigation industry’s litigation and regulatory claims.

A shortened version of Papantonio’s irresponsible name calling can be found on YouTube. Hartmann & Papantonio, “C-8 and the Business of Misinformation” (Sept. 16, 2014). Papantonio appears to have used his media appearances to advance the litigation industry’s cause in MDL 2433, In re E. I. du Pont de Nemours and Company C-8 Personal Injury Litigation. This MDL aggregates cases of claimed health effects from exposure to perfluorooctanoic acid (PFOA), also known as C8, which is used in making du Pont’s Teflon.

Papantonio’s rants and defamatory screeds illustrate some of the litigation industry’s rhetorical strategies:

1. dichotomize the world into safe and harmful;

2. by semantic fiat, declare anything not proven safe as harmful;

3. assert that the defense of any substance, exposure, drug, etc., which is not proven absolutely safe, is deliberate infliction of harm upon the public; and

4. reclassify any statement that a substance, known to cause harm under some circumstance, doesn’t cause harm under every other circumstance as “fraudulent.”

Like the CEI, Papantonio stretches the English language and common decency beyond its ultimate tensile stress. Certainly, scientists should participate in litigation and regulatory proceedings, and their views should be given close scrutiny. Papantonio’s interview statements, however, exemplify a pathology of thought and expression that also exceeds our tolerance for discourse in a free society; it is slime and slander.

Earlier this year, January 15, 2015, would have been Irving J. Selikoff’s 100th birthday. Selikoff left a lifetime legacy of having improved public health awareness, with a shadow of some rather questionable opinions and conduct in the world of litigation[1]. Given Selikoff’s fame and prestige among public health advocates and labor union activists, it is remarkable that now, over twenty since his death, there are no major biographies of Selikoff. Even Selikoff’s Wikipedia page[2] is skimpy and devoid of many details of his activities.

There are some comical aspects to the Selikoff wikipedia page, some of which revolve around someone’s anonymous disparaging of my writing about Selikoff::

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

Make no mistake about it; I wasn’t “suggesting”; I was stating a fact. As for the reviewers who “refereed” the journal article by McCulloch and Tweedale, I have shown that this peer review was not worth a warm bucket of spit[3].

One of the disturbing aspects of Wikipedia is that contributors can hide behind I.P. addresses or pseudonyms. Whoever attempted to quote my blog posting distorted my meaning by selectively and incompletely quoting me to suggest that the conference featured defendants’ experts. I can understand that the dumbot wanted to remain anonymous to mislead in this way, but what I wrote was:

“One can only imagine the hue and cry that would arise if a defendant company had funded a lopsided medical conference, arranged for the conference to feature defendant’s expert witnesses, set out to give short shrift to opposing points of view, invited key judges to attend the conference, and paid for the judges’ travel and hotel expenses.”

The counterfactual point, obviously, was that if defense counsel had conspired with defense expert witnesses, to hold an ex parte conference with sitting judges, to feature the work of defense experts, there would have been acrimonious denunciations from the public health community about the evils of corporate influence. In the Wikipedia article, the only reference to Selikoff’s participation in the conspiracy with the litigation industry was an attack on my writing, and a distortion of my posting by incomplete citation. But the misquotation was welcomed in motivating me to register with Wikipedia to correct the misattribution.

There are two document archives of Selikoff documents, one at Mt. Sinai Hospital in New York[4], and the other in St. Louis[5]. Jock McCulloch described Selikoff as having “avoided litigation” and having “fought to keep his papers away from the legal arena.”[6] The first part of McCulloch’s description is demonstrably wrong, but the efforts to suppress access to his papers, and data, is sadly all too true. The accusations of “cover up” flow so freely against industry, but why the cover up of Selikoff’s papers? And who would trust the Mt. Sinai custodians?

The Asbestos Disease Awareness Organization (ADAO) claims to be an “independent asbestos victims’ organization,” started in 2004. Its website points out that the ADAO is a registered 501(c)(3) nonprofit corporation, which “does not make legal referrals.” The ADAO posted a kind memoriam to the late Dr. Selikoff: “Dr. Irving Selikoff: Clinician, Researcher, Public Health Advocate and Occupational Health Pioneer (1915 – 2015)” (Jan. 15, 2015).

For almost ten years, the ADAO has been recognizing “exceptional leaders” with the Dr. Irving Selikoff Lifetime Achievement Award, for the recipient’s efforts to increase awareness and prevention of asbestos-related diseases.

Remarkably, many of the “exceptional leaders,” in the eyes of the ADAO, are (or were before their deaths) regular testifiers for the litigation industry:

Paul Brodeur 2006

Yasunosuke Suzuki 2006

Michael Harbut 2008:

Barry Castleman 2008

Stephen Levin 2009

Arthur Frank, 2012

Richard Lemen, 2012

Celeste Monforton 2013

David Egilman 2014

Brodeur, of course, did not testify; he wrote for the New Yorker, including a series that became the book, Outrageous Misconduct: the Asbestos Industry on Trial, This book became an important lobbying tool for plaintiffs’ counsel with judges and legislatures. His subsequent book, The Great Power-Line Cover-Up: How the Utilities and Government Are Trying to Hide the Cancer Hazard Posed by Electromagnetic Fields (1993) revealed his aptitude for overinterpreting studies and failing to appreciate validity concerns. See Sander Greenland, Asher R. Sheppard, William T. Kaune, Charles Poole, and Michael A. Kelsh, “A Pooled Analysis of Magnetic Fields, Wire Codes, and Childhood Leukemia,” 11 Epidemiology 624 (2000).

Harbut was the proponent, in the silicone gel breast implant litigation, of a half-baked theory about a role for platinum in causing autoimmune disease among claimants. The FDA and The Institute of Medicine easily dispatched Harbut’s theory. Suzuki, Castleman, Levin, Frank, and Lemen testify (or did testify when alive) with some frequency and regularity in asbestos litigation, on behalf of the litigation industry. Egilman to his credit is perhaps the lone recipient who has spoken out[7], on one or more occasions against the depredations of the litigation industry’s unethical[8] and unlawful screenings, but he has openly acknowledged his bias against corporate industry (although not against litigation industry). See David S. Egilman, “Corporate and Government Suppression of Research” (2004). And Monforton was one of the movers and shakers in establishing SKAPP[9], which misrepresented its funding sources, while lobbying against the legal requirements of reliability and validity for scientific expert witness opinion testimony.

[1] See “Selikoff and the Mystery of the Disappearing Testimony” (Dec. 3, 2010); “Selikoff and the Mystery of the Disappearing Asbestosis” (Dec. 6, 2010); “Selikoff and the Mystery of the Disappearing Amphiboles” (Dec. 10, 2010); “The Selikoff – Castleman Conspiracy” (Mar. 13, 2011); “Irving Selikoff and the Right to Peaceful Dissembling” (June 5, 2013); “The Mt. Sinai Catechism” (June 7, 2013); “Historians Should Verify Not Vilify or Abilify – The Difficult Case of Irving Selikoff” (Jan. 4, 2014); “What Happens When Historians Have Bad Memories” (Mar. 15, 2014); “The Last Squirmish Between Irving Selikoff and Sir Richard Doll” (Sept. 9, 2014); “Irving Selikoff – Media Plodder to Media Zealot” (Sept. 9, 2014); “Scientific Prestige, Reputation, Authority & The Creation of Scientific Dogmas” (Oct. 4, 2014). See also Cathleen M. Devlin, “Disqualification of Federal Judges – Third Circuit Orders District Judge James McGirr Kelly to Disqualify Himself so as to Preserve the Appearance of Justice under 28 U.S.C.§ 455,” 38 Vill. L. Rev. 1219 (1993); W.K.C. Morgan, “Asbestos and cancer: history and public policy,” 49 Br. J. Indus. Med. 451, 451 (1992).

[2] Wikipedia, “Irving Selikoff” (last visited March 6, 2015).

[3] “Historians Should Verify Not Vilify or Abilify – The Difficult Case of Irving Selikoff” (Jan. 4, 2014); “Scientific Prestige, Reputation, Authority & The Creation of Scientific Dogmas” (Oct. 4, 2014).

[4] 83 Am. J. Pub. Health 609, 609 (1993)(describing the Irving J. Selikoff Asbestos Archives and Research Center holdings of Dr. Selikoff’s research documents).

[5] http://beckerarchives.wustl.edu/?p=collections/controlcard&id=6725

[6] Jock McCulloch and Geoffrey Tweedale, Defending The Indefensible: The Global Asbestos Industry and its Fight for Survival 271 (Oxford 2008) (describing how even after his death, the Selikoff papers have still not been made generally available, but thanking Valerie Josephson, Philip Landrigan, and Stephen Levin, for helping McCulloch gain access to the papers).

[7] David Egilman & Susanna Rankin Bohme, “Attorney-Directed Screenings Can Be Hazardous,” 45 Am. J. Indus. Med. 305 (2004).

[8] Nathan A. Schachtman & Cynthia J. Rhodes, “Medico-Legal Issues in Occupational Lung Disease Litigation,” 27 Sem. Roentgenology 140 (1992).

[9] “SKAPP-A-LOT” (April 30, 2010); “Conflicted Public Interest Groups” (Nov. 3, 2013).

When a Wall Street Journal opinion piece stated that “the plaintiffs bar is all but running the Senate[1],” Frederick Martin (“Fred”) Baron, former president of the litigation industry’s Association of Trial Lawyers of America (ATLA), reportedly quipped that “I really, strongly disagree with that. Particularly the ‘all but’.” Baron, affectionately known as “Robber Baron” for his aggressive advocacy for uninjured asbestos claimants and questionable deposition coaching tactics, was the ultimate Democratic party insider. He was the finance chair of John Edwards’ ill-fated presidential campaign, and the sugar daddy for Rielle Hunter, the mother of Edwards’ out-of-wedlock child. You cannot get more “inside” than that.

Robber Baron died in 2008, but his legacy is a reminder of the hypocrisy of those who decry the Citizens United[2] opinion, which held that corporations and unions have first amendment rights to speak in ways that might influence the outcomes of elections. While many fuss over “corporate” speech, the litigation industry has operated largely without constraint. Last year, for example, plaintiffs’ counsel, Edward F. Blizzard, and representatives of the litigation industry’s ATLA, now operating under the self-serving name, American Association for Justice (AAJ), met with Food and Drug Administration officials to influence agency policy on generic medication warnings. This week, the Times featured front-page coverage of how the litigation industry has co-opted the policies and agendas of the States’ attorneys general, and directed their targeting of corporations. See Eric Lipton, “Lawyers Create Big Paydays by Coaxing Attorneys General to Sue,” New York Times (Dec. 18, 2014).

The litigation industry makes its presence felt in many ways, sometimes as an omnipresent threat that influences business and professional judgments. President Obama criticized Sony’s decision to pull down The Interview, as an undue concession to terrorists. See “Sony’s Decision to Pull Movie Is a ‘Mistake,’ Obama Says.” Obama went so far as to express his wish that “they’d spoken to me first.” But would Obama, or anyone, have been able to control the litigation industry’s second-guessing of Sony’s or any individual theater owner’s decision to show the movie?

Lipton’s article is a vivid reminder that the plaintiffs’ trial bar remains the largest rent-seeking lobby in the United States.

[1] John Fund, “Have You Registered to Sue?” Wall Street Journal (Nov. 6, 2002).

[2] Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010).

Lying About

President Obama has appointed a political operative, a lawyer, to be the “Ebola czar,” while the Surgeon General and Secretary of Health and Human Resources remain in hiding. Dr. Craig Spencer, who lies in a Bellevue Hospital isolation ward, lied about his travels about New York City when talking to the New York City authorities. He claimed to have been in voluntary quarantine and isolation at his Manhattan home upon returning from West Africa. Jamie Schram & Bruce Golding, “Ebola doctor ‛lied’ about NYC travels” NY Post (Oct. 29, 2014) (“The city’s first Ebola patient initially lied to authorities about his travels around the city following his return from treating disease victims in Africa, law-enforcement sources said.”) We now know he used the subways, ate at public restaurants, and generally cavorted about town.

Foolish Consistencies and Some Inconsistency, Too

President Obama has pressured Governors Christie and Cuomo to back off their stricter quarantine rules, and demonstrated that Cuomo is politically soft in the center. At the same time that the Obama’s administration has bullied critics of its voluntary quarantine protocol, they have imposed mandatory quarantine on military personnel, returning from West Africa. Secretary of War Defense has announced a mandatory quarantine. See Starr, “Hagel announces mandatory Ebola quarantine” CNN (Oct. 29, 2014). Ah, our leaders would follow Ralph Waldo Emerson, on Self-Reliance and self-quarantine: “[a] foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall.”

Australia has banned travel with Ebola affected countries, which should now include the United States. Michelle Nichols and Umaru Fofana, “Australia bans travel from Ebola-hit countries; U.S. isolates troops” Reuters (Oct. 28, 2014). Of course, Australia was settled by criminals, as we all know.

Wild Nurse Hickox

Voluntary quarantine is a quaint notion. A healthcare worker takes his or her temperature twice a day, but fevers come on, when they come on. Nurse Kaci Hickox, whose “human rights” were supposedly violated by Order of Governor Christie, has been removed to Maine, whence she has announced her attention to violate Maine’s lax rule that requires voluntary quarantine. Jennifer Levitz, “Nurse in Ebola Quarantine Flap Says She Won’t Obey Maine’s Isolation Rules: Kaci Hickox Says She Will Go to Court if Restrictions Aren’t Removed by Thursday“ Wall Street Journal (Oct. 29, 2014). So much for the human rights of Maine’s good citizens, not to mention the rights of the moose, and other innocent species.

The litigation industry is, I am sure, gearing up to meet the crisis. And Nurse Hickox is now be free to litigate her voluntary quarantine in Maine.