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David Egilman RIP – Part Two

April 28th, 2024

There was a good bit of irony in Egilman’s reaching out to me to help him prepare for my deposition of him in a silicone gel breast implant case. First, the materials he apparently wanted were all in a document repository for the benefit of plaintiffs’ lawyers. He needed only to have asked the Wilentz firm lawyers for relevant. In rather typical fashion, Egilman wanted to create a faux issue about defense counsel’s hiding the ball.

Second, Egilman had already completed his report, and his request showed that his opinions had been asserted without looking at material documents.

Third, and perhaps most important, in New Jersey, attorneys are not generally allowed to communicate with a represented party directly.[1] Expert witnesses are usually considered as agents of the parties that retained them, which means that such witnesses are also not free to communicate directly with the adverse parties or its counsel. There was no exact precedent for Egilman’s misconduct, but it was obviously disturbing to plaintiffs’ counsel, who promptly withdrew Egilman as a witness in the case. Alas, I did not get my chance to conduct this examination before trial.

Much of the irony in the New Jersey situation derived from Egilman’s fancying himself  something of an ethicist. He certainly was quick to pronounce ethical judgments upon others, especially anyone in manufacturing industry, or any scientist who served as an expert witness opposite him. As he made clear at his CSPI lecture, Egilman had an ideological bias, and it deeply affected his judgment of science and history. He swam in the hogwash of critical theory, cultural hegemony, and Marxist cant.

To Egilman, it was obvious that material forces of capitalism meant that manufacturing industry was incapable of honestly defending its products. The motives, biases, and depradations of the lawsuit industry and its agents rarely concerned him. As a committed socialist, Egilman was incurious about how and why occupational and environmental diseases were so prevalent in socialist and communist countries, where profits are outlawed and the people own the means of production.[2]

Like the radical labor historians David Rosner and Gerald Markowitz, Egilman tried to cram the history of silicosis (and even silicosis litigation) into a Marxist narrative of class conflict, economic reductionism, and capitalist greed. Egilman’s ideological bias marred his attempts to relate the history of dust diseases. His bias made him a careless historian. Several of his attempts to relate the history of dust diseases were little more than recycled litigation reports, previously  filed in various cases, with footnotes added. Egilman was occasionally listed as an expert witness in silicosis cases, but he glibly and ignorantly lumped the history of silica with that of asbestos diseases. In one article, for example, he wrote:

“Knowledge that asbestos and silica were hazardous to health became public several decades after the industry knew of the health concerns. This delay was largely influenced by the interests of Metropolitan Life Insurance Company (MetLife) and other asbestos mining and product manufacturing companies.”[3]

Egilman’s claims about silica, however, were never supported in this article or elsewhere. A brief review of two published monographs by Frederick L. Hoffman, published before 1923, should be sufficient to condemn the authors’ carelessness to the dustbin of occupational history.[4]  The bibliographies in both these monographs document the widespread interest in, and awareness of, the occupational hazards of silica dusts, going back into the 19th century, among the media, the labor movement, and the non-industrial scientific community. The conversation about silicosis was on full display in the national silicosis conference of 1938, sponsored by Secretary of Labor Francis Perkins.

On at least one occasion, Egilman publicly acknowledged his own entrepreneurial and profit motives. In a consumer diacetyl exposure case (claiming bronchiolitis obliterans), a federal district court excluded Egilman’s causation opinions as unreliable. The court found that Egilman had manipulated data to reach misleading conclusions, devoid of scientific validity.[5]

Egilman was so distraught by being excluded that he sought to file a personal appeal to the United States Court of Appeal.[6] When the defendant-appellee opposed Egilman’s motion to intervene in the plaintiff’s appeal, Egilman stridently asserted his right to participate,[7] and filed his own declaration.[8] The declaration is required reading for anyone who wants to understand Egilman’s psycho-pathology.

In what was nothing short of a scurrilous pleading, Egilman attacked the district judge for having excluded him from testifying. He went so far as to claim that the judge had defamed him with derogatory comments about his “methodology.” If Egilman’s challenge to the trial judge was not bizarre enough, Egilman also claimed a right to intervene in the appeal by advancing the claim that the Rule 702 exclusion hurt his livelihood.  The following language is from paragraph 11 of Dr. Egilman’s declaration in support of his motion:

“The Daubert ruling eliminates my ability to testify in this case and in others. I will lose the opportunity to bill for services in this case and in others (although I generally donate most fees related to courtroom testimony to charitable organizations, the lack of opportunity to do so is an injury to me). Based on my experience, it is virtually certain that some lawyers will choose not to attempt to retain me as a result of this ruling. Some lawyers will be dissuaded from retaining my services because the ruling is replete with unsubstantiated pejorative attacks on my qualifications as a scientist and expert. The judge’s rejection of my opinion is primarily an ad hominem attack and not based on an actual analysis of what I said – in an effort to deflect the ad hominem nature of the attack the judge creates ‘strawman’ arguments and then knocks the strawmen down, without ever addressing the substance of my positions.”

Egilman was a bit coy about how much of his fees went to him, and how much went to charity. To give the reader some idea of the artificial flavor of Egilman’s pomposity, paragraph 8 of his remarkable declaration avers”

“My views on the scientific standards for the determination of cause-effect relationships (medical epistemology) have been cited by the Massachusetts Supreme Court (Vassallo v. Baxter Healthcare Corporation, 428 Mass. 1 (1998)):

Although there was conflicting testimony at the Oregon hearing as to the necessity of epidemiological data to establish causation of a disease, the judge appears to have accepted the testimony of an expert epidemiologist that, in the absence of epidemiology, it is ‘sound science…. to rely on case reports, clinical studies, in vivo tests and animal tests.’ The judge may also have relied on the affidavit of the plaintiff’s epidemiological expert, Dr. David S. Egilman, who identified several examples in which disease causation has been established based on animal and clinical case studies alone to demonstrate that ‘doctors utilize epidemiological data as one tool among many ’.”

Egilman’s quote from the Vassallo decision is accurate as far as it goes,[9] but the underlying assertion is either a lie or a grand self-delusion. There was epidemiologic evidence on silicone and connective tissue disease before the Oregon federal district court and its technical advisors, and the court resoundingly rejected the plaintiffs’ causal claims as unsupported by valid evidence, with or without epidemiologic evidence. The argument that epidemiology was unnecessary came from Dr. Egilman’s affidavit, and the plaintiffs’ counsel’s briefs, which were considered and rejected by Judge Jones.[10]

Egilman’s affidavit in connection with the so-called Oregon hearings, which took place during the summer of 1996, was not a particularly important piece of evidence. Most of the “regulars” had put in reports or affidavits in the Hall case. Egilman failed to appear at the proceedings before the court and its technical advisors; and he was not mentioned by name in the Hall decision. Nonetheless, Judge Jones, in his published decision, clearly rejected all the plaintiffs’ witnesses and affiants, including Egilman, in their efforts to make a case for silicone as a cause of autoimmune disease.

A few months after the Oregon hearings, Judge Weinstein, in the fall of 1996, along with other federal and state judges, held a “Daubert” hearing on the admissibility of expert witness opinion testimony in breast implant cases, pending in New York state and federal courts.  Egilman’s affidavit on causation was once again in play. Plaintiffs’ counsel suggested that Egilman might testify, but he was once again a no show. Egilman’s affidavit was in the record, and the multi-judge panel considered and rejected the claimed causal connection between silicone and autoimmune or connective tissue diseases.[11]

There is more, however, to the disingenuousness of Dr. Egilman’s citation to the Vassallo case.  The Newkirk court, in receiving his curious declaration, would not likely have known that Vassallo was a silicone gel breast implant case, and one may suspect that Dr. Egilman wanted to keep the Ninth Circuit uninformed of his role in the silicone litigation. After all, by 1999, The Institute of Medicine (now the National Academies of Science, Engineering, and Medicine) delivered its assessment of the safety of silicone breast implants.  Egilman’s distorted and exaggerated claims had been rejected.[12]

Alas, the jingle of coin doth not always soothe the hurt that conscience must feel. In his declaration, Egilman sought to temper the unfavorable judgment in the Newkirk diacetyl case by noting that only judges who had not previously encountered him would be unduly persuaded by Judge Peterson’s decision. Other judges who have heard him hold forth in court would no doubt see him for the brilliant crusading avenger that he is. The feared prejudice:

“will generally not occur in cases heard before Judges where I have already appeared as a witness. For example a New York state trial judge has praised plaintiffs’ molecular-biology and public-health expert Dr. David Egilman as follows: ‘Dr. Egilman is a brilliant fellow and I always enjoy seeing him and I enjoy listening to his testimony . . . . He is brilliant, he really is.’ [Lopez v. Ford Motor Co., et al. (120954/2000; In re New York City Asbestos Litigation, Index No. 40000/88).]”[13]

The United States Court of Appeals did not appear to hold Egilman the intervenor as brilliant as he thought himself. The court was not moved by either the bullying or the braggadocio.[14] The curious appeal was denied.

Egilman obviously could not sue the trial or appellate judges in the Newkirk case, but he did on other occasions try to deflect or diminish criticism by threats of litigation. In 2009, Laurence Hirsh, a physician, formerly with Merck, wrote a commentary for the Mayo Clinic Proceedings, on conflicts of interest. His commentary was a sustained critique of the hypocrisy and anti-industry bias of journals’ requirements for disclosure of conflict of interest.[15] Hirsch pointed out that some of the authors, including David Egilman, who had written articles critical of Merck, had given anemic disclosures of their own biases and conflicts of interest. Hirsch noted that Egilman had testified in many different litigations (too many diverse litigations to be credible for any one witness), including “silicone breast implants and connective tissue disease (characterized as the epitome of junk science)….”[16] With respect to compensation, Hirsch reported that:

“Egilman has testified for Mr Lanier and other attorneys in more than 100 tort cases (nearly always for plaintiffs) for approximately 2 decades and, by his own estimate, has earned $20 to $25 million for such testimony. Besides dollars, Egilman’s objectivity is questionable on other grounds. In 2007, he signed an admission that ‘there was another side to the story’ and was fined $100,000 by an outraged federal judge for actively facilitating the leak (through a third party) to a New York Times reporter (exclusively) of court-sealed documents in litigation involving Eli Lilly (Indianapolis, IN) and olanzapine (Zyprexa).”[17]

Hirsch’s commentary was a burr under the saddle of this lawsuit industry work horse. Egilman wrote to Hirsch to demand that he correct and retract his comments. Egilman threatened to sue Dr. Hirsch for false and defamatory statements. Alas, Hirsch was intimidated by the threats. The correction that resulted was shaped by Egilman’s assertions, and what resulted was false and misleading:

“1. Dr Egilman’s income from serving as a medical expert in tort litigation, etc, was incorrectly reported as $20-$25 million during a 20-year period. Dr Egilman actually testified in court that it was $2-$2.5 million during that time. The source for the original statement in the Commentary was an online newspaper article dated July 31, 2005. The newspaper revised its report of the court testimony by Dr Egilman in a correction that was published only in the local, printed edition on August 2, 2005 (Michael Morris, oral communication, September 11, 2009).

2. Dr Egilman was not fined by a judge for leaking court sealed documents concerning the Lilly-Zyprexa litigation. Rather, Dr Egilman and Lilly entered into an (Stipulated) agreement by US District Judge Jack Weinstein, filed September 9, 2007, in which Dr Egilman agreed to pay Lilly $100,000, and to dismiss his appeal of the Court’s Final Judgment, Order and Injunction from February and March, 2007 (http://lawprofessors.typepad.com/tortsprof/files/EgilmanSettlement.pdf).

3. Dr Egilman has not testified in court in breast implant and connective tissue disease, or in antidepressant or antipsychotic drug cases. Dr Egilman did provide a sworn affidavit in one case involving local effects of leakage of silicone from breast implants (Vassallo vs Baxter Healthcare Corporation. Decisions of the Supreme Judicial Court of Massachusetts. May 5-July 16, 1998, p. 7).

I regret these inaccuracies in my Commentary.”[18]

Egilman’s estimate of his income, without access to his tax returns, was essentially worthless. The difference between a fine and a stipulated penalty was meaningless. The claim that Egilman did not testify in the Vassallo trial, in which the plaintiff claimed that she had developed atypical autoimmune disease as a result of her silicone gel breast implants, was simply a lie that Egilman foisted upon Dr. Hirsch.

Falsus in uno, falsus in omnibus.

[1] See Formal Opinion 503, of the ABA’s Standing Committee on Ethics and Professional Responsibility, ABA Model Rule of Professional Conduct 4.02.

[2] See, e.g., Jie Li, Peng Yin, Haidong Wang, Lijun Wang, Jinling You, Jiangmei Liu, Yunning Liu, Wei Wang, Xiao Zhang, Piye Niu, and Maigeng Zhou, “The burden of pneumoconiosis in China – analysis Global Burden of Disease Study,” 22 BMC Pub. Health 1114 (2022); Na Wu, Chang Jiang Xue, Shiwen Yu, and Qiao Ye, “Artificial stone-associated silicosis in China: A prospective comparison with natural stone-associated silicosis,” 25 Respirology 518 (2019); Christa Schröder, Friedrich Klaus, Martin Butz, Dorothea Koppisch, and Otten Heinz, “Uranium mining in Germany: incidence of occupational diseases 1946-1999,” 75 Internat’l Arch. Occup. & Envt’l Health 235 (2002); A.G. Chebotarev, “Incidence of silicosis and the effectiveness of preventive measures at the Balei mines (1947 to 1967),” 13 Gigiena truda i professional’nye zabolevaniia 14 (1969) (in Russian); C. Hadjioloff, “The Development of Silicosis and Its Expert Evaluation as a Basis for the Rehabilitation of Silicosis Patients in Bulgaria,” 58 Medizinische Klinik 2023 (1963).

[3] David Egilman, Tess Bird, and Caroline Lee, “Dust diseases and the legacy of corporate manipulation of science and law, 20 Internat’l J. Occup. & Envt’l Health 115, 115 (2014) (emphasis added).

[4] Frederick L. Hoffman, Mortality from Respiratory Diseases in the Dusty Trades; Dep’t of Labor, Bureau of Labor Statistics (1918); The Problem of Dust Phthisis in the Granite Stone Industry, Dep’t of Labor, Bureau of Labor Statistics (1922). See also U.S. Department of Labor Bulletin No. 21, part I, National Silicosis Conference, Report on Medical Control (1938).

[5] Newkirk v. Conagra Foods, Inc., 727 F.Supp. 2d 1006 (E.D. Wash. 2010).

[6] Schachtman, “Exclusion of Dr. David Egilman in Diacetyl Case,” Tortini (June 20, 2011); “David Egilman’s Methodology for Divining Causation,” Tortini (Sept. 6, 2012).

[7] Opposition of David Egilman to Motion for Order to Show Cause re Dismissal of Appeal for Lack of Standing, in case no. 10-35667, document 7547640 (9th Cir. Nov. 16, 2010).

[8] Declaration of David Egilman, in Support of Opposition to Motion for Order to Show Cuase Why Appeal Should Not Be Dismissed for Lack of Standing, in case no. 10-35667, document 7547640 (9th Cir. Nov. 16, 2010) Declaration [Declaration].

[9] Vassallo v. Baxter Healthcare Corporation, 428 Mass. 1, 12 (1998).

[10] See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387 (D. Or. 1996). Judge Jones made his views very clear:  contrary to Egilman’s affidavit, epidemiology was needed, but lacking, in the plaintiffs’ case.

[11] Transcript at p.159:7-18, from Nyitray v. Baxter Healthcare Corp., CV 93-159 (E.D.N.Y. Oct. 9, 1996) (pre-trial hearing before Judge Jack Weinstein, Justice Lobis, and Magistrate Cheryl Pollak). See In re Breast Implant Cases, 942 F. Supp. 958 (E.& S.D.N.Y. 1996) (rejecting sufficiency of plaintiffs’ causation expert witness evidence, which included affidavit of Dr. Egilman). Years later, Judge Jack B. Weinstein elaborated upon his published breast-implant decision, with a bit more detail about how he viewed the plaintiffs’ expert witnesses. Judge Jack B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation” 2009 Cardozo L. Rev. de novo 1, 14 (2009) (describing plaintiffs’ expert witnesses in silicone litigation as “charlatans”; “[t]he breast implant litigation was largely based on a litigation fraud. … Claims—supported by medical charlatans—that enormous damages to women’s systems resulted could not be supported.”) Egilman, who had filed an affidavit in support of the plaintiffs’ claims in the Hall case, and in the cases before Judge Weinstein, was within the scope of that litigation fraud.

[12] Stuart Bondurant, Virginia Ernster, and Roger Herdman, eds., Safety of Silicone Breast Implants (1999).

[13] Declaration at p. 9 n. 2.

[14] Newkirk v. Conagra Foods, Inc. 727 F.Supp. 2d 1006 (E.D. Wash. 2010), aff’d, 438 Fed.Appx. 607 (9th Cir.2011); Egilman v. Conagra Foods, Inc., 2012 WL 3836100 (9th Cir. 2012), cert. denied, 568 U.S. 1229 (2013).

[15] Laurence J. Hirsch, “Conflicts of Interest, Authorship, and Disclosures in Industry-Related Scientific Publications: The Tort Bar and Editorial Oversight of Medical Journals,” 84 Mayo Clin. Proc. 811 (2009).

[16] Id. at 815.

[17] Id. at 814 (internal citations omitted).

[18] Laurence J. Hirsch, “Corrections,” 85 Mayo Clin. Proc. 99 (2010).

Posted in Conflicts of Interest, Expert Witness Hall of Shame, Expert Witnesses, Historian Testimony, Silica | 28 Comments »

The History of Litigations – Silica Litigation

July 23rd, 2021

“Progress, far from consisting in change, depends on retentiveness. When change is absolute there remains no being to improve and no direction is set for possible improvement: and when experience is not retained, as among savages, infancy is perpetual. Those who cannot remember the past are condemned to repeat it.”

George Santayana, The Life of Reason or the Phases of Human Progress 172 (1905; Marianne S. Wokeck & Martin A. Coleman, eds., 2011).

 

One of the remarkable and deplorable features of litigation in the United States is that it consumes such an incredible toll of time, energy, money, intellectual effort, creativity, while receiving so little attention in terms of careful curation of its history. Does anyone in the judiciary, the legislature, in the public, in industry, in labor, or at the bar, learn anything from the entirety of a complex litigation? Insurers certainly note their payouts, and adjust their premiums, but have their litigation strategies, and counsel selection and control, improved outcomes? I suspect that there is a great deal of learning to be had, at every level, and from every institutional perspective. It seems that this potential learning is often left untapped.

There are some notable efforts at the history of individual litigation. In 1987, Peter Schuck wrote an incisive history of the Agent Orange litigation.[1] About a decade later, two other law professors, Michael Green and Joseph Sanders, each wrote a history of the Bendectin litigation.[2] Whatever the reader thinks of these histories of litigations, they are all respectable efforts to understand the full course of a so-called “mass tort” litigation, from beginning to end. Law schools do a fine job of teaching the making of widgets, from initial pleadings, to judgments, to appeals, to enforcement of judgments. The academy does less well in teaching the high-level strategies employed in litigations, and the criteria for evaluating the success or failure of those strategies.

There are many important litigations that have not been memorialized in histories.  The asbestos litigation existed as isolated as sporadic worker compensation claims before World War II, and after the war, well into the 1970s. The first civil action may have been filed by attorney William L. Brach filed 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.). Civil litigation for individual personal injuries took another decade to get started, and has since become institutionalized as a perpetual, limitless, and often unprincipled legal phenomenon in the United States. There have also been environmental and class action asbestos cases, with the infamous case against the Reserve Mining Company in Minnesota having received book length treatment, in 1980.[3] Miles Lord, the trial judge in the Reserve Mining case, was unceremoniously rebuked for unprofessional judicial malfeasance by the Court of Appeals for the Eighth Circuit.[4] More recently, Judge Lord’s law clerk has attempted to resurrect her mentor’s destroyed reputation in a hagiographic biography.[5] These books recount, fairly or not, important episodes in the asbestos litigation, but no one to date has attempted to write a history of the entire broad sweep of asbestos litigation.

The situation is similar in silicosis litigation, where the need for a history of the multiple failed attempts to impose liability on remote silica sand suppliers cries out for unified treatment. There is, to be sure, a highly biased account that runs through one text, Deadly Dust, written by two radical historians who helped fuel the litigation attempts in the 1990s, and in the 21st century.[6] The perspective of Deadly Dust, however, either ignores or misunderstands the litigation strategies and outcomes for the actual participants in silicosis litigation.

Recently, a chapter in the new edition of a treatise on products liability law has offered up a brief history of silica litigation.[7] The chapter correctly notes that “[s]ilica litigation in the United States has largely dried up following the 2005 dismissal of the multidistrict In re Silica Products Liability Litigation.”[8] In a chapter section, “§ 8:5.2 History of Litigation,” the authors purport to discuss the history of silica litigation, but they begin with one episode, the filing of thousands of cases in Mississippi and Texas, which were removed to federal court and consolidated in a Multi-District Litigation before the Hon. Janis Graham Jack, in Corpus Christi, Texas. Judge Jack famously declared “red flags of fraud” on the litigation battleground, with active participation from many high-volume testifying expert witnesses, such as Drs. Ray Harron and B.S. Levy.

The chapter lightly touches upon a few subsequent, post-MDL silica cases in Mississippi,[9] but importantly the chapter misses the sweep of silica litigation, before the MDL debacle. A more sustained, disinterested history of silica litigation would be a worthwhile undertaking for a few reasons.

  1. Silica litigation is a strong example of misplaced liability in the industrial setting of selling a natural commodity to purchasers who are employers with strong state and federal regulatory obligations to provide safe workplaces.[10]
  2. The litigation over silica health effects severely tests the notion that litigation is needed as an adjunct to regulation. Silicosis mortality has declined steadily in the late 20th and early 21st century, despite the failure of silica claims.[11]
  3. In the late 20th and early 21st centuries, silica litigation was fueled in part by a tendentious ruling by the International Agency for Research on Cancer (IARC), which declared that crystalline silica is a “known” human carcinogen. The working group was deeply divided, and the classification was subsequently shown to have ignored important studies.[12] Although subsequent IARC working groups handed down even more suspect monographs, revisiting the conditions that gave rise to the IARC silica monograph would be yield valuable insights into the capture and corruption of the IARC process by biased advocates.
  4. Defendants often come under serious criticism and pressure to settle litigation, as though the filing of complaints, with allegations of harms, demands social justice and ample remedies. In silica litigation, many defendants did not succumb to such pressure, and their efforts revealed corruption in the manufacturing of claims, through fraudulent diagnoses, product identification, and misdirected blame.

An adequate history of silica litigation would need to explore:

  1. The era before worker’s compensation (1890-1930, including Gauley Bridge), when civil litigation was the only recourse, and when plaintiffs were met with defenses of contributory negligence, fellow-servant rule, assumption of risk, and statutes of limitations.
  2. The era of worker’s compensation (1930-1968 or so), when employers had close to absolute liability for the medical damages and lost wages of their employees.
  3. The era of strict liability (1969 – 1997), ushered in by the doctrine of stricts products liability in the Restatement (Second) of Torts, and fueled by the enticement of mushrooming jury verdicts, and perceived inadequacies of worker compensation awards. Contributory negligence gave way to comparative negligence, and plaintiffs colluded in claims of ignorance of silica hazards. Silica litigation was episodic, with “outbreaks” in Alabama, western Pennsylvania, and New Jersey.
  4. The IARC Resurgence (1998 – 2010), which “sexed up” silica litigation, and led to mass filings, and the Battle of Corpus Christi, in Judge Jack’s courtroom. Additional outbreaks occurred in Mississippi, New Jersey, Pennsylvania, and California.

There is probably much I have missed, but the sketch above is a beginning.

[1] Peter H. Schuck, Agent Orange on Trial: Mass Toxic Disasters in the Courts (1987).

[2] Michael D. Green, Bendectin: The Challenges of Mass Toxic Substances Litigation (1996); Joseph Sanders, Bendectin on Trial: A Study of Mass Tort Litigation (1998).

[3] Robert V. Bartlett, The Reserve Mining Controversy (1980).

[4] Reserve Mining Co v. Hon. Miles Lord, 529 F.2d 181 (8th Cir. 1976).

[5] Roberta Walburn, Miles Lord: The Maverick Judge Who Brought Corporate America to Justice (2017).

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

[7] George Gigounas, Arthur Hoffmann, David Jaroslaw, Amy Pressman, Nancy Shane Rappaport, Wendy Michael, Christopher Gismondi, Stephen H. Barrett, Micah Chavin, Adam A. DeSipio, Ryan McNamara, Sean Newland, Becky Rock, Greg Sperla & Michael Lisanti, “Recent Developments in Asbestos, Talc, Silica, Tobacco, and E-Cigarette/Vaping Litigation in the U.S. and Canada,” Chap. 8, in Stephanie A. Scharf, George D. Sax & Sarah R. Marmor, eds., Product Liability Litigation: Current Law, Strategies and Best Practices (2nd ed. 2021).

[8] Id. at § 8:5.1 Overview (referring to In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563 (S.D. Tex. 2005) (Jack, J.)).

[9] Mississippi Valley Silica Co. v. Eastman, 92 So. 3d 666 (Miss. 2012); Dependable Abrasives, Inc. v. Pierce, 156 So. 3d 891 (Miss. 2015).

[10] See NAS, “Products Liability Law – Lessons from the Military and Industrial Contexts,” 13 J. Tort Law 303 (2020); “The Misplaced Focus of Enterprise Liability on the Wrong Enterprise” (Mar. 27, 2021).

[11] See, e.g., Ki Moon Bang, Jacek M. Mazurek, John M. Wood, Gretchen E. White, Scott A. Hendricks, Ainsley Weston, “Silicosis Mortality Trends and New Exposures to Respirable Crystalline Silica — United States, 2001–2010,” 64 Morbidity and Mortality Weekly Report 117 (Feb. 13, 2015).

[12] Patrick A. Hessel, John Gamble, J. Bernard L. Gee, Graham Gibbs, Francis H.Y. Green, Morgan, Keith C. Morgan, and Brooke T. Mossman, “Silica, Silicosis, and Lung Cancer: A Response to a Recent Working Group Report,” 42 J. Occup. & Envt’l Med. 704 (2000).

Posted in Asbestos, Learned and sophisticated intermediary, Silica | No Comments »

The Practicing Law Institute’s Second Edition of Products Liability Litigation

May 30th, 2021

In late March, the Practicing Law Institute released the second edition of its treatise on products liability. George D. Sax, Stephanie A. Scharf, Sarah R. Marmor, eds., Product Liability Litigation: Current Law, Strategies and Best Practices, (2nd ed. 2021).

The new edition is now in two volumes, which cover substantive products liability law, as well as legal theory, policy, and strategy considerations important to products liability law, both pursuers and defenders. The work of the editors, Stephanie A. Scharf and her colleagues, George D. Sax and Sarah R. Marmor, in managing this process is nothing short of Homeric.  The authors are mostly practitioners, with a wealth of practical experience. There are a good number of friends, colleagues, and adversaries, among the chapters’ authors, so any recommendation I make should be tempered by my disclosure.

Unlike the first edition, the PLI has doubled down on control of the copyright license, and so I am no longer able to upload my chapter on statistical evidence to ResearchGate, Academia.com, or my own website.  But here is the outline index to my contribution, Chapter 28, “Statistical Evidence in Products Liability Litigation”:

  • 28:1 History and Overview
  • 28:2 Litigation Context of Statistical Issues
  • 28:3 Qualifications of Expert Witnesses Who Give Testimony on Statistical Issues
  • 28:4 Admissibility of Statistical Evidence – Rules 702 and 703
  • 28:5 Significance Probability
  • 28:5.1 Definition of Significance Probability (The “p-value”)
  • 28:5.2 Misstatements about Statistical Significance
  • 28:5.3 Transposition Fallacy
  • 28:5.4 Confusion Between Significance Probability and Burden of Proof
  • 28:5.5 Hypothesis Testing
  • 28:5.6 Confidence Intervals
  • 28:5.7 Inappropriate Use of Statistics – Matrixx  Initiatives
    • [A]     Sequelae of Matrixx Initiatives
    • [B]     Is Statistical Significance Necessary?
  • 28: 5.8 American Statistical Association’s Statemen on P-Values
  • 28:6 Statistical Power
  • 28:6.1 Definition of Statistical Power
  • 28:6.2 Cases Involving Statistical Power
  • 28:7 Evidentiary Rule of Completeness
  • 28:8 Meta-Analysis
  • 28:8.1 Definition and History of Meta-Analysis
  • 28:8.2 Consensus  Statements
  • 28:8.3 Use of Meta-Analysis in Litigation
  • 28:8.4 Competing Models for Meta-Analysis
  • 28:8.5 Recent Cases Involving Meta-Analyses
  • 28:9 Statistical Inference in Securities Fraud Cases Against Pharmaceutical Manufacturers
  • 28:10 Multiple Testing
  • 28:11 Ethical Considerations Raised by Statistical Expert Witness Testimony
  • 28:12 Conclusion

A detailed table of contents for the entire treatise is available at the PLI’s website The authors and their chapters are set out below.

Chapter 1. What Product Liability Might Look Like in the Twenty-First Century (James M. Beck)

Chapter 2. Recent Trends in Product Claims and Product Defenses (Lori B. Leskin & Angela R. Vicari)

Chapter 3. Game-Changers: Defending Products Cases with Child Plaintiffs (Sandra Giannone Ezell & Diana M. Miller)

Chapter 4. Preemption Defenses (Joseph G. Petrosinelli, Ana C. Reyes & Amy Mason Saharia)

Chapter 5. Defending Class Action Lawsuits (Mark Herrmann, Pearson N. Bownas & Katherine Garceau Sobiech)

Chapter 6. Litigation in Foreign Countries Against U.S. Companies (Joseph G. Petrosinelli & Ana C. Reyes)

Chapter 7. Emerging Issues in Pharmaceutical Litigation (Allen P. Waxman, Loren H. Brown & Brooke Kim)

Chapter 8. Recent Developments in Asbestos, Talc, Silica, Tobacco, and E-Cigarette/Vaping Litigation in the U.S. and Canada (George Gigounas, Arthur Hoffmann, David Jaroslaw, Amy Pressman, Nancy Shane Rappaport, Wendy Michael, Christopher Gismondi, Stephen H. Barrett, Micah Chavin, Adam A. DeSipio, Ryan McNamara, Sean Newland, Becky Rock, Greg Sperla & Michael Lisanti)

Chapter 9. Emerging Issues in Medical Device Litigation (David R. Geiger, Richard G. Baldwin, Stephen G.W. Stich & E. Jacqueline Chávez)

Chapter 10. Emerging Issues in Automotive Product Liability Litigation (Eric P. Conn, Howard A. Fried, Thomas N. Lurie & Nina A. Rosenbach)

Chapter 11. Emerging Issues in Food Law and Litigation (Sarah L. Brew & Joelle Groshek)

Chapter 12. Regulating Cannabis Products (James H. Rotondo, Steven A. Cash & Kaitlin A. Canty)

Chapter 13. Blockchain Technology and Its Impact on Product Litigation (Justin Wales & Matt Kohen)

Chapter 14. Emerging Trends: Smart Technology and the Internet of Things (Christopher C. Hossellman & Damion M. Young)

Chapter 15. The Law of Damages in Product Liability Litigation (Evan D. Buxner & Dionne L. Koller)

Chapter 16. Using Early Case Assessments to Develop Strategy (Mark E. (Rick) Richardson)

Chapter 17. Impact of Insurance Policies (Kamil Ismail, Linda S. Woolf & Richard M. Barnes)

Chapter 18. Advantages and Disadvantages of Multidistrict Litigation (Wendy R. Fleishman)

Chapter 19. Strategies for Co-Defending Product Actions (Lem E. Montgomery III & Anna Little Morris)

Chapter 20. Crisis Management and Media Strategy (Joanne M. Gray & Nilda M. Isidro)

Chapter 21. Class Action Settlements (Richard B. Goetz, Carlos M. Lazatin & Esteban Rodriguez)

Chapter 22. Mass Tort Settlement Strategies (Richard B. Goetz & Carlos M. Lazatin)

Chapter 23. Arbitration (Beth L. Kaufman & Charles B. Updike)

Chapter 24. Privilege in a Global Product Economy (Marina G. McGuire)

Chapter 25. E-Discovery—Practical Considerations (Denise J. Talbert, John C. Vaglio, Jeremiah S. Wikler & Christy A. Pulis)

Chapter 26. Expert Evidence—Law, Strategies and Best Practices (Stephanie A. Scharf, George D. Sax, Sarah R. Marmor & Morgan G. Churma)

Chapter 27. Court-Appointed and Unconventional Expert Issues (Jonathan M. Hoffman)

Chapter 28. Statistical Evidence in Products Liability Litigation (Nathan A. Schachtman)

Chapter 29. Post-Sale Responsibilities in the United States and Foreign Countries (Kenneth Ross & George W. Soule)

Chapter 30. Role of Corporate Executives (Samuel Goldblatt & Benjamin R. Dwyer)

Chapter 31. Contacting Corporate Employees (Sharon L. Caffrey, Kenneth M. Argentieri & Rachel M. Good)

Chapter 32. Spoliation of Product Evidence (Paul E. Benson & Adam E. Witkov)

Chapter 33. Presenting Complex Scientific Evidence (Morton D. Dubin II & Nina Trovato)

Chapter 34. How to Win a Dismissal When the Plaintiff Declares Bankruptcy (Anita Hotchkiss & Earyn Edwards)

Chapter 35. Juries (Christopher C. Spencer)

Chapter 36. Preparing for the Appeal (Wendy F. Lumish & Alina Alonso Rodriguez)

Chapter 37. Global Reach: Foreign Defendants in the United States (Lisa J. Savitt)

Posted in Rule 702, Scientific Evidence, Silica, statistical evidence | 24 Comments »

Tort Law – Theory versus Practice

November 5th, 2020

The Journal of Tort Law was founded, in 2006, by Jules Coleman as a scholarly forum for exchange of heterodox views of tort law.  Under its current Editor In Chief, Christopher Robinette, the journal has continued its exploration of tort theory and philosophy of law. Practitioners can sharpen their practice considerably by understanding the deep structure, theory, and philosophy of tort law, but it seems equally clear that theorists can and must pay attention to what actually happens in tort litigation. Professor Robinette should thus be commended for featuring a symposium in the pages of the journal on “What Practitioners Can Teach Academics about Tort Litigation.”

A passage from Immanuel Kant’s The Critique of Pure Reason (1781) is often paraphrased as “theory without practice is empty and practice without theory is blind.”  Yogi Berra gets credit for the deeper insight that “in theory, there is no difference between theory and practice, but in practice, there is.” Professor Robinette has empowered Yogi’s world view by turning over the pages of the forthcoming issue of the Journal of Tort Law to practitioners, who offer their views on what is actually going on in tort law.

Earlier this week, the various symposium contributions to “What Practitioners Can Teach Academics about Tort Litigation” appeared online as “in press” articles at the Journal of Tort Law. The contributors come from various subdisciplines of tort law, and from differing perspectives of lawyers for pursuers and defenders. This issue will be, I believe, perfect pandemic reading. Here are the symposium articles:

Nathan A. Schachtman, “Products Liability Law – Lessons from the Military and Industrial Contexts”

Malcolm E. Wheeler & Theresa Wardon Benz, “Litigation Financing: Balancing Access with Fairness,”

Paul Figley, “Defending Government Tort Litigation: Considerations for Scholars,”

Victor E. Schwartz, “Expert Testimony Needs Judges to Act as “Gatekeepers”: The Maryland Court of Appeals Teaches Why”

Thomas E. Albro & Thomas M. Hendell, “What Practitioners can Teach Academics about Tort Litigation – The Plaintiff’s Perspective in Medical Malpractice Litigation”

Scott B. Cooper, “What Practitioners can Teach Academics about Tort Litigation: Auto Accidents from the Plaintiff’s Counsel”

Daniel E. Cummins, “Fighting the Good Fight: The Insurance Defense Litigator”

Sara M. Peters, “Shifting the Burden of Proof on Causation: The One Who Creates Uncertainty Should Bear Its Burden”

As for my contribution, I can say it is a better and more succinct article for my having received suggestions from the editor, Professor Robinette. One of the casualties of page limitations, however, was my failure to acknowledge other lawyers who commented on early drafts, or who pointed me to pertinent briefs. Thank you John Garde, Kirk Hartley, Timothy Kapshandy, Michael Pichini, Robert Pisani, David Speziali, and John Ulizio, for reading drafts, listening to rants, or providing briefs. My article is better for your help, but like Donald Trump, you bear no responsibilities for any errors.

Posted in Asbestos, Silica, Sophisticated User, State of the Art | Comments Off on Tort Law – Theory versus Practice

More Rosner & Markowitz Faux History of Workplace Safety

July 9th, 2020

Historians, often of the subspecies social, labor, or Marxist, have frequently been recruited by the lawsuit industry to support their litigation efforts. One such historian, David Rosner, sometimes with his friend Gerald Markowitz, seems to show up everywhere, including the infamous Ingham case, in which he served largely as a compurgator and moralist.

Given the role that such historians are permitted to play in high-stakes litigation, it is important to look at their more professional work in the journals for insights into their methodology. A couple of years ago, David Rosner and Gerald Markowitz, published a story about governmental regulation of workplace safety before the passage of the Occupational Health and Safety Act in 1970.[1] Their article is an interesting case study of how to bias an historical analysis by leaving out material facts, a modus operandi in their litigation work as well.

The abstract gives a brief flavor of their tendentious narrative:

“The Occupational Safety and Health Act of 1970 and the Workers Right to Know laws later in that decade were signature moments in the history of occupational safety and health. We have examined how and why industry leaders came to accept that it was the obligation of business to provide information about the dangers to health of the materials that workers encountered. Informing workers about the hazards of the job had plagued labor–management relations and fed labor disputes, strikes, and even pitched battles during the turn of the century decades. Industry’s rhetorical embrace of the responsibility to inform was part of its argument that government regulation of the workplace was not necessary because private corporations were doing it.”

The authors attempt to tell a one-sided story that only “voluntary” warnings were assumed by employers before OSHA, without the force of law. The enterprise perpetuates a common myth of plaintiffs’ advocates that pre-OSHA occupational safety was based upon employers’ voluntary assumption of responsibility, and that it was not until the passage of the OSH Act that employers were subject to legal obligations to warn.

In terms of scholarship, Rosner and Markowitz break no new ground; indeed, the topic was presented with more historical acumen by scientists in an article that predated the Rosner and Markowitz article by a decade.[2] More damning, however, the historians laureate of the plaintiffs’ bar contradict their thesis that manufacturers had only voluntary commitments to their worker safety by pointing to the law of the 1930s, which placed a common law duty of care on employers:

“As one judge in the New Jersey Supreme Court opined at the time, ‘It was the duty of the defendant company to exercise reasonable care that the place in which it set the deceased at work . . . should be reasonably safe for the plaintiff, and free from latent dangers known to the defendant company, or discoverable by an ordinary prudent master, under the circumstances’.”[3]

Of course, legal historians are well aware that there has been a common law duty of reasonable care owed by “masters” (employers) to their “servants” (employees), including a duty to protect them from occupational hazards such as overexposure to dusts, including respirable crystalline silica.[4] There was nothing voluntary about the common law duty.

What makes Rosner and Markowitz’s account egregiously wrong is its complete omission of the extensive state governmental regulation of occupational exposures in advance of OSHA. Taking New York (where Rosner and Markowitz live and teach) as an example, we can see that the state had occupied the field of regulating workplace safety many decades before the enactment of OSHA.

The industrial use of crystalline silica provides an example of a “hot” issue in early 20th century industrial hygiene.  Initial efforts in New York state, starting as early as 1913, focused on the most prevalent industrial exposures, such as foundries, where whole grain and ground silica was used in metal casting and cleaning. New York’s long-recognized common law duty of employers to provide a safe workplace was statutorily codified in 1921.[5] By 1935, silicosis became a compensable disease under New York law, in all industrial settings.

New York’s efforts to protect industrial workers from silica exposure achieved national recognition in 1940, when LIFE magazine published a description of measures taken by the state to safeguard workers on an 85-mile tunnel aqueduct project. The project required thousands of workers to drill through quartzite rock (composed of almost entirely of crystalline silica). Intent on avoiding a repeat of the Hawk’s Nest tragedy, the state imposed safety measures on the project, including wet drilling, elaborate ventilation, and air sampling. LIFE declared the New York state precautions to be “[a] triumph of preventative medicine.”[6]

New York courts also have been in the forefront of recognizing the hazards of silica exposure, and addressing the legal implications of knowledge of those hazards. In 1944, New York’s highest court, the Court of Appeals, held, in a silicosis personal injury case, that:

“[i]t is a matter of common knowledge that it is injurious to the lungs and dangerous to health to work in silica dust, a fact which defendant was bound to know.”[7]

From the 1950s on, New York comprehensively regulated the use of crystalline silica in the industrial workplace. In 1956, New York promulgated “Industrial Code Rule No. 12 – Control of Air Contaminants,” which governed “all processes and operations releasing or disseminating air contaminants in any workroom or work space” (§ 12.1), and clearly defined the employer’s duties to protect workers, regardless of the industry sector or manufacturing process.

Silica was specifically covered by these 1956 regulations. Section 12.2 of the Rule, “Responsibility of employers,” requires:

“Every employer shall observe and effect compliance with the provisions of this rule relating to prevention of air contamination and to providing, installing, operating and maintaining control or protective equipment, and shall instruct his employees as to the hazards of their work, the use of such control or protective equipment and their responsibility for complying with this rule.”

Section 12.25 specifically identified industrial processes that create “air contaminants,” such as free silica.

New York law imposed correlative obligations upon workers. Under § 12.3, the employee’s responsibility was to use the controls and equipment provided by his employer for his protection.

New York’s 1956 regulations, like the federal regulations that would follow in the early 1970s, focused on avoiding exposure to hazardous substances such as crystalline silica in the first instance. Section 12.7, “Prevention,” requires that

“[a]ll processes and operations where practicable shall be so conducted or controlled as to prevent avoidable creation of air contaminants.”

Section 12.9, General control methods, specifies “[o]ne or more of the following methods . . . control dangerous air contaminants:

  1. Substitution of a material which does not produce air contaminants;
  2. Local exhaust ventilation at the source of generation of the air contaminant;
  3. Dilution ventilation in any work space in which air contaminants are generated or released;
  4. Application of water or other wetting agent to prevent air contaminants;
  5. Other methods approved by the board.”

Section 12-29, “Maximum allowable concentrations – evidence of dangerous air contaminants,” provides that air contaminants in quantities greater than those listed “shall constitute prima-facie evidence that such contaminants are dangerous air contaminants.” In a chart entitled “Mineral Dusts,” the 1956 regulations specifically imposed a maximum exposure for free crystalline silica, depending upon the percentage concentration of silica in the total dust.

In 1958, New York revised Rule 12, with its extensive regulation of silica, to provide an even more detailed description of employer responsibilities of employers for air monitoring, ventilation, respiratory programs, and worker education. Section 12.6 of the 1958 Regulations, “Prevention of air contamination,” mandated that

“[a]ll operations producing air contaminants shall be so conducted that the generation, release or dissemination of air contaminants is kept at the lowest practicable level.”

Rule 12 was revised again in 1963, and in 1971, each time with greater specificity of the employer’s responsibility for safe handling of air contaminants, which was always defined to include silica dust. These state regulations never restricted their application to any particular industry. Crystalline silica was thus regulated in every industry conducted within New York.

New York state recruited and employed some of the leading scientists in the field of industrial hygiene and occupational medicine to serve in its Department of Labor’s Division of Industrial Hygiene. Leonard Greenberg, who was a graduate of Columbia College of Engineering, and who received his Ph.D. and M.D. degrees from Yale, served as the executive director of the New York State Division of Industrial Hygiene 1935 to 1952. He later served as an official on pollution control until 1969.[8] While at the New York Department of Labor, contributed widely to scientific publications on occupational health,[9] as did many other scientists under his supervision.[10]

Omission of material facts seems to be a key aspect of the faux historian’s methodology, and very useful in litigation if your conscience permits it.

[1]  David Rosner & Gerald Markowitz, “‘Educate the Individual . . . to a Sane Appreciation of the Risk’: A History of Industry’s Responsibility to Warn of Job Dangers Before the Occupational Safety and Health Administration,” 106 Am. J. Pub. Health 28 (2016).

[2]  See John L. Henshaw, Shannon H. Gaffney, Amy K. Madl , and Dennis J. Paustenbach, “The Employer’s Responsibility to Maintain a Safe and Healthful Work Environment: An Historical Review of Societal Expectations and Industrial Practices,” 19 Employee Responsibility & Rights J. 173 (2007).

[3]  Rosner & Markowitz at 30 (quoting Frederick Willson, “The Very Least an Employer Should Know About Dust and Fume Diseases,” 62 Safety Engineering 317 (Nov. 1931) (quoting in turn an unidentified New Jersey court decision).

[4]  See, e.g., Bellows v. Merchants Dispatch Transp. Co., 257 A.D. 15 (4th Dept. 1939) (holding that employer failed to provide a safe work environment with proper ventilation to employee who contracted silicosis).

[5]  New York Labor Law § 200 (enacted 1921).

[6]  “Silicosis,” Life (April 1, 1940).

[7]  Sadowski v. Long Island R.R., 292 N.Y. 448, 456 (1944),

[8]  “Leonard Greenberg, Pollution Official, Dies,” New York Times (April 12, 1991).

[9]  See, e.g., Leonard Greenburg, “Pneumoconiosis,” 33 Am. J. Pub. Health 849 (1943); Leonard Greenburg, “The Dust Hazard in Tremolite Talc Mining,” 19 Yale J. Biology & Med. 481 (1947).

[10]  See, e.g., James D. Hackett, Silicosis, N.Y. Dep’t Labor & Industry Bull. 11 (Dec. 1932); Frieda S. Miller, Industrial Commissioner, “Detection and Control of Silicosis and Other Occupational Diseases” (1940); Adelaide Ross Smith, “Silicosis and Its Prevention, Special Bulletin No. 198,” (1946).

Posted in Historian Testimony, Silica, Sophisticated User, State of the Art | Comments Off on More Rosner & Markowitz Faux History of Workplace Safety

Legal Remedies for Suspect Medical Science in Products Cases – Part Two

June 3rd, 2020

The Federal Multi-District Silicosis Proceedings Before Judge Janis Jack

One of the most significant developments in the role of scientific and medical evidence gatekeeping under Rule 702, and the Supreme Court’s decision in Daubert,[1] was the 2005 opinion of Judge Janis Graham Jack in the multi-district silicosis litigation.[2] Judge Jack’s lengthy opinion addresses a variety of procedural issues, including subject matter jurisdiction over some of the cases, but Her Honor’s focus was “whether the doctors who diagnosed Plaintiffs with silicosis employed a sufficiently reliable methodology for their testimony to be admissible” and “whether Plaintiffs’ counsel should be sanctioned for submitting unreliable diagnoses and failing to fully comply with discovery orders.”  Judge Jack held that thousands of diagnoses of silicosis were radically flawed and could not be treated as proper science or medicine, and she imposed sanctions against plaintiffs’ lawyers in the cases over which she had subject matter jurisdiction.

In summary, Judge Jack held that to pass the minimum reliability analysis under Daubert, a diagnosis of silicosis requires:

“(1) an adequate exposure to silica dust with an appropriate latency period,

(2) radiographic evidence of silicosis, and

(3) the absence of any good reason to believe that the radiographic findings are the result of some other condition (i.e., a differential diagnosis).

* * * * *

As discussed above, these three criteria are universally accepted, as demonstrated by learned treatises and experts in the field.  It is the implementation of these criteria in these cases which ranged from questionable to abysmal.”[3]

With respect to the first criterion, evidence of “adequate exposure to silica dust with an appropriate latency period,” the court concluded that “[t]he ‘exposure histories’ (or ‘work histories’) were virtually always taken by people with no medical training, who had significant financial incentives to find someone positive for exposure to silica (or asbestos, depending on which type of suit the employing law firm was seeking to file).”[4]  The court went on to state that:

“[t]hese ‘histories’ were devoid of meaningful details, such as the duration and intensity of exposure, which are critical to determining whether someone has sufficient exposure, dosage and latency to support a reliable diagnosis.”[5]

Judge Jack, who had been a registered nurse before going to law school and becoming a lawyer, was clearly concerned that the medical “histories were taken by receptionists [at medical screening companies allied with plaintiffs’ counsel] with no medical training.”[6]  The head of one of the screening companies “testified that the doctors who worked for his screening company simply relied upon the abbreviated work histories that [the screening company] supplied them.”[7]  As a former nurse, Judge Jack was probably more than a little put off by the screening company executive’s explanation that “to ask the doctor to take a work history in our field would be like asking [the defense attorney questioning him] to wash my car.  I mean it’s . . . very beneath him.”[8]  Judge Jack rejected this approach entirely, and found that legitimate doctors would find it necessary to take the occupational history themselves:

“This type of thorough, detailed, physician-guided work/exposure history is the kind of history that experts in the field of occupational medicine insist upon when diagnosing silicosis.  It is therefore the type of history required by the Federal Rules for these diagnoses to be admissible.  Cf. Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194, 198 (5th Cir. 1996)… .”[9]

The second required predicate for an admissible diagnosis of silicosis was an appropriate radiographic finding – a so-called “B-read,” which is simply the interpretation of a physician, who has passed a certifying proficiency examination given by the National Institute of Occupational Health, for evaluating chest films for pneumoconiosis, using a standardized scale and notations.  Judge Jack discerned, contrary to the approach taken by some of the plaintiffs’ lawyers and certain doctors, that a positive B-read was not “a talisman that would dispel any doubts about the diagnoses as a whole.”[10]  A positive B-read simply is not sufficient alone to support a silicosis diagnosis.

Judge Jack noted that a consensus report of the American College of Occupational and Environmental Medicine rejected the use of a B-read alone as sufficient to support a diagnosis of pneumoconiosis, and emphasized the views of one testifying physician that the “ILO guidelines, by their express terms, [were] ‘not supposed to be used for designation of disease or determining compensation.’ ”[11] But even apart from rejecting the concept that a positive B-read was by itself a sufficient basis for a diagnosis of silicosis, Judge Jack fundamentally criticized the manner in which the X-rays at issue were conducted.

The B-reader system was not originally established for use in litigation, but as part of a coal workers’ surveillance program to determine whether a worker should be transferred to a low-dust environment.  And under this surveillance program, the worker is not transferred until at least two B-readers agree on a positive read.  But in most of these MDL cases, a single positive B-read was deemed sufficient by plaintiffs’ hired witnesses to establish a diagnosis of silicosis.[12]

Judge Jack also stressed that the methodology followed by the B-readers did “not correspond to the ILO’s recommended methodology for applying the ILO classification system, because according to ILO guidelines:

“When classifying radiographs for epidemiological purposes it is essential that the reader does not consider any information about the individuals concerned other than the radiographs themselves.  Awareness of supplementary details specific to the individuals themselves can introduce bias into the results.”[13]

In the cases before her, Judge Jack found that it was obvious that the so-called B-reader was “acutely aware of the precise disease he is supposed to be finding on the X-rays.  In these cases, the doctors repeatedly testified that they were told to look for silicosis, and the doctors did as they were told.”[14] Business pressures had obviously corrupted the diagnostic process, and resulted in improbable consistency in finding silicosis in whomever plaintiffs’ lawyers signed up for litigation.

This corrupt consistency, and obediency to retaining plaintiffs’ counsel, which led to Judge Jack’s approval of the testimony from the hearings that advanced the notion that some degree of blinding is needed to assure the integrity of the diagnostic process. When the radiographic films come from a mass screening, the readers should be confronted with films known to be negative through multiple, independent evaluations.

The third criterion given by Judge Jack for an admissible diagnosis of silicosis, was a proper “differential diagnosis,” which consisted of a showing of “the absence of any good reason to believe that the positive radiographic findings are the result of some other condition.”[15]

One of the physicians whose diagnoses were challenged claimed that this ruling out of other explanations for a radiographic pattern was not required for diagnosing silicosis, but Judge Jack found that this self-serving opinion was contradicted by the major textbooks in the field, by the physicians who showed up to testify in the hearings, and even by the plaintiffs’ own briefs. Judge Jack adverted to the language of Daubert to note that one factor to be considered in the “reliability” of an expert witness’s opinion was its general acceptance in the relevant scientific community.[16] The self-validating views of plaintiffs’ expert witnesses simply were not generally accepted in any legitimate segment of the medical profession. And thus Judge Jack found that, in the MDL cases, the plaintiffs’ expert witnesses’ failure to exclude other alternative causes of the radiographic findings clearly was not generally accepted in the field of occupational medicine, and that their opinions did not satisfy the requirements of Rule 702.[17] A proper differential diagnosis required what was lacking across the board in the cases, namely “a thorough occupational/exposure history and medical history,” as well as a social history that included travel destinations.[18]

In addition to Judge Jack’s carefully reasoned conclusions about the diagnostic “process” used by the challenged expert witnesses, Her Honor was presented with additional evidence of the egregious infirmity of the challenged diagnoses:

– The willingness of one doctor to render opinions on 1,239 plaintiffs in the MDL when he was admittedly not a qualified B-reader, not an expert in silicosis treatment, not qualified to read X-rays or CT scans, did no physical examinations, simply took whatever histories had been given to him by the plaintiffs’ lawyers, and spent a negligible amount of time reviewing each of the plaintiffs’ files.  The doctor testified that his practice consists almost entirely of litigation consulting and that he charges $600 per hour for that work.

– Another doctor’s abandonment of about 3,700 diagnoses under the scrutiny generated by the hearings before Judge Jack.

– The fact that 1,587 claimants who had previously been listed as having asbestosis, with no reference to silica disease, had their diagnoses changed to silicosis, with no reference to asbestos disease.  These diagnoses were produced rapidly and in large groups.

– The fact that a purported epidemic of silicosis apparently began abruptly in early 2001, when plaintiffs’ lawyers turned their attention to this alternative to asbestos litigation, and the fact that many of the silicosis claimants were recycled asbestosis clients of the plaintiffs’ firms.

The specific facts before Judge Jack may seem extreme, but the same or similar abuses have been commonplace in asbestos litigation for a long time before they were outed in the silicosis MDL.  The crucial holdings of In re Silica go beyond the serious depravity of the expert witnesses involved.

Raymark v. Stempel

In 1990, one now defunct asbestos product manufacturer, Raymark Industries, Inc. (“Raymark”), deluged with dubious lawsuits, brought RICO and other claims against medical professionals, lawyers, and claimants.[19]  Raymark based its allegations on deceptions that led it to settle an asbestos personal injury class action.

In ruling upon defendants’ motions to dismiss, the district court found that defendant medical screeners had disregarded standards set by the American Thoracic Society and reported that workers had asbestos-related “injuries” even thought the radiographic interpretations had no clinical significance.  The court stated that the screening program had produced a “steady flow of faulty claims” and was a “fraud on the court.”[20]  The court thus refused to dismiss Raymark’s claims based on common law fraud and RICO violations.[21]

Owens Corning Fiberglass Bankruptcy Proceedings

The efforts to curtail frivolous asbestos claims also include the motion by Credit Suisse in the Owens Corning bankruptcy for leave to file an adversary complaint against certain physicians who reported chest radiographs as positive for asbestos-related diseases.  This motion was granted conditionally on the agreement of Credit Suisse to indemnify Owens Corning for any potential ensuing liability, but then was withdrawn when Credit Suisse declined to provide such assurance.

[1]  Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

[2]  In re Silica Products Liab.Litig., 398 F.Supp. 2d 563 (S.D.Tex. 2005) (“In re Silica”).

[3]  In re Silica. at 622 (internal citations and footnote omitted).

[4]  In re Silica, at 622 -23.

[5]  Id.

[6]  Id.

[7]  Id.

[8]  Id.

[9]  In re Silica, at 623-34.

[10]  In re Silica, at 625 – 26.

[11]  Id. at 626 – 27 (internal quotes omitted).

[12]  Id. at 626.

[13]  Id.

[14]  Id. at 627.

[15]  Id. at 629.

[16]  Id. at 629 – 30 (citing Daubert, 509 U.S. at 593-94; Pipitone v. Biomatrix, Inc., 288 F.3d 239, 246 (5th Cir. 2002) (upholding admissibility under Rule 702 when a physician’s “elimination of various alternative causes. . . .were [sic] based on generally accepted diagnostic principles related to these conditions”).

[17]  Id. at 629 – 30.

[18]  Id. at 630 – 32 (coccidioidomycosis is endemic to some parts of the United States and resembles silicosis radiographically).

[19]  Raymark Indus., Inc. v. Stemple, 1990 WL 72588 (D. Kan., May 30, 1990).

[20]  1990 WL 72588 at *2, *8, *18, *22.

[21] See Nathan Schachtman, “Medico-Legal Issues in Occupational Lung Disease Litigation,” 27 Sem. Roentgenology 140 (1992) (discussing Semple in greater detail). It is unclear how Stemple was ultimately resolved.  The court’s docket does not indicate whether this case was dismissed, voluntarily, involuntarily, as a result of settlement, or otherwise.  The clerk of the court reported that this case was sealed under court order.

Posted in Asbestos, Expert Witnesses, Rule 702, Silica | Comments Off on Legal Remedies for Suspect Medical Science in Products Cases – Part Two

Legal Remedies for Suspect Medical Science in Products Cases – Part One

June 2nd, 2020

Expert witness opinions about the nature and cause of plaintiffs’ medical conditions, are the linchpin of mass tort cases involving claims of bodily injury from allegedly harmful products.  The quality of these expert witness opinions has long been the subject of debate, but the explosion of products liability cases has brought increasing scrutiny, especially in cases involving asbestos, silica, and pharmaceutical claims.[1]

Courts, Congress, and commentators have raised concerns about the scientific and medical validity of the opinions offered in support of certain product liability claims, whether certain of the individuals who offer such opinions have a proper degree of independence from the lawyers representing the plaintiffs, and whether there is any way to address these questions apart from a rejection of the individual claims in which the bogus opinions are offered.  Famously, Judge Janis Jack of the United States District Court for the Southern District of Texas addressed these issues in a lengthy decision in which she excoriated physicians, medical screeners, and plaintiffs’ lawyers who she concluded had transgressed basic ground rules of medical and legal propriety in connection with silicosis claims.[2]

The stakes generated by the availability of these medical/technical opinions are especially high in mass torts that involve medical assessments of thousands of claimants.  The pendency of asbestos claims has driven well over 100 companies into bankruptcy, and with that example, any industry facing a substantial wave of repetitive liability claims must be concerned about how to respond to what it believes are false or unfounded claims. Clients ask whether there are remedies for the promotion of false, fraudulent, or just inadequate medical science under the banner of seeking compensation in products liability cases. The answers remain less than clear.

Some Past Attempts to Remedy the Harm from Dubious Science in Products Cases

GAF’s Litigation against the Asbestos Lawsuit Industry

On January 10, 2001, G-I Holdings Inc., the successor to GAF Corporation (“GAF”), filed suit against a group of asbestos personal injury lawyers who it alleged had “orchestrated a scheme to inundate the judicial system with hundreds of thousands of asbestos cases without regard to their merit.”[3] Among the allegations were claims that the plaintiffs’ firms had “suborned perjury and fabricated evidence” and “induced expert witnesses to provide false and misleading testimony, all for the purpose of extracting unwarranted and inflated settlements, judgments and, correspondingly, attorneys’ fees, from GAF and other asbestos defendants.”  The complaint alleged that, in 1978, a group of

“approximately 125 plaintiffs’ asbestos contingency fee attorneys banded together to form and fund the Asbestos Litigation Group (“ALG”) in order to further their scheme of promoting asbestos litigation.”  GAF asserted that “acting jointly through the ALG, and through less formal asbestos-related organizations, defendants, upon information and belief, solicited tens of thousands of asbestos claimants and sued manufacturers without regard for, or in conscious disregard of, the merits of their claims against particular individual defendants such as GAF. . . . .pursuant to agreements with each network [of local counsel] member, a share of the fees . . . .is typically channeled back to the referring ALG member, and ultimately to the ALG, to be invested  in future claimant solicitations, including mailed advertisements in newsletters.  This has resulted in the filing of further claims, thereby continuing the scheme, and increasing the network, which spirals ever larger.”

GAF’s complaint specifically included claims relating to the alleged “fabricat[ion]” of “medical evidence.”  In this regard, GAF alleged, upon information and belief, that the plaintiffs’ lawyers had:[4]

  1. . . . .induced medical “experts” to testify falsely. As set forth in the “Toxic Justice” report, [the plaintiffs’ law firm] paid off what one of the firm’s paralegals described as “whore docs” i.e., doctors who for money eagerly attributed virtually any lung abnormality to asbestos exposure, regardless of what medical evidence actually showed.

And GAF complained that:

  1. . . . . these practices induced false and misleading testimony to be given by expert witnesses in support of claims brought against GAF and others, which resulted in GAF’s payment of inflated verdicts and settlements in a number of cases.

While much of GAF’s complaint did not focus specifically on the quality of the medical evidence, it is nonetheless instructive as an overall perspective on the factual framework within which these medical issues arise. GAF’s complaint understandably focused heavily on defendant’s Baron & Budd’s memorandum, entitled “Preparing for Your Deposition.”  GAF alleged that this

“memorandum, apparently created for use in preparing asbestos plaintiffs for deposition, improperly exhorts witnesses to testify in a pre-scripted manner, regardless of the truth.”

For particularity’s sake, GAF alleged, with extensive quotations from the Baron & Budd memorandum, that the memorandum told

“witnesses to identify only those products listed on the Work History Sheets prepared by Baron & Budd (lest the witness identify the product of a bankrupt entity from whom no damages or attorneys’ fees could be collected). . . .and to memorize the product names provided by Baron & Budd on the “Work History Sheets” and to testify that they actually saw those names on containers where they worked. . . .”[5]

The complaint alleges that the memorandum gave further improper instructions to plaintiffs about their testimony, including directions to omit any mention of exposures resulting “from the replacement or removal of old product that could not be identified by brand”; making false claims of “equal exposure to all products”; denying “that they ever saw any warnings or had knowledge concerning the harmful effects of asbestos.”

GAF alleged a variety of other concerted actions to file false asbestos claims.  These activities allegedly included withholding “from production in discovery death certificates for asbestos claimants that did not support the conclusion that the individual had died as a result of an asbestos-related disease”; conducting “periodic in-house training sessions to teach other attorneys and/or paralegals how to prepare all asbestos claimants to give scripted testimony in their depositions. . . . .without regard for whether or not the testimony was true”; participating in a scheme to falsify Court records to indicate that complaints were filed before the running of the statute of limitations; and submitting affidavits containing false information concerning the identity of products.

The complaint also contained a number of allegations to the effect that the defendant law firms had “used their considerable resources and power in an attempt to intimidate and deter GAF (and others) from exercising their constitutionally protected rights to petition Congress in support of legislation that would establish a fair and efficient administrative facility for resolving legitimate asbestos claims without the years of delay and wasteful fees and transaction costs that are characteristic of the current system.  Defendants have waged a full-scale, multi-front war against those seeking passage of a Congressional bill entitled the “Fairness in Asbestos Compensation Act.”

The suit pled claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”),[6] and under numerous other headings of state, and federal, law.[7]  The lawsuit industry defendants brought a series of motions to dismiss on the pleadings, with successive amended complaints filed, until there was nothing left of GAF’s complaint.[8]  For example, part of the case – relating to the Baron & Budd memorandum discussed above — pleaded fraud based on information and belief.  Judge Sweet dismissed that aspect of the fraud claims on the grounds that Federal Rule of Civil Procedure 9(b) requires that allegations of fraud be pleaded with specificity and that the plaintiff must provide a statement of facts upon which the belief of the existence of fraud is founded.  Judge Sweet concluded that GAF had repeatedly failed to meet this requirement.

Federal and State Prosecutions against Physicians and Screening Companies

After Judge Jack’s exposé of fraudulent and false diagnoses in the silicosis MDL, various news media reported that the United States Attorney’s office in the Southern District of New York was investigating possible criminal charges against the physicians and lawyers who orchestrated the screenings. Historically, there has been little interest among prosecutors in the questionable activities of screening physicians, with some notable exceptions.  In 1990, the United States Attorney’s office, for the Eastern District of Philadelphia, filed a civil RICO against several Philadelphia-area physicians for their role in submitting false and fraudulent Medicare claims.[9]  As pleaded by the government, the fraudulent scheme consisted of soliciting industrial workers for “free” lung screening, at the behest of lawyer clients, for asbestos-related diseases.  The physicians conducted radiologic and pulmonary function examinations, and submitted requests to Medicare for reimbursement of inflated costs for these services and falsely stated that the services were reasonably medically necessary because of diagnoses of chronic obstructive pulmonary disease.[10]  This matter appears to have been resolved before trial, although the docket fails to reveal the exact nature of the resolution.

The false claim problem continues, although the silicosis screenings have abated, and most asbestos plaintiffs’ lawyers have shifted their efforts to the high-yield mesothelioma and lung cancer cases, for which diagnostic accuracy is not typically the dominant issue. Some within the lawsuit industry appear to continue the practice of referring clients to friendly physicians for an examination that will form the basis of a lawsuit, with the consulting physician in turn filing a request for reimbursement with the claimant’s private or public health insurer.  For most insurers, such a claim for reimbursement impliedly represents that the services were reasonably medically necessary, and sometimes the services may well be necessary.  At other times, the services are redundant and provided only for purposes of preparing the examining physician to serve as an expert witness.  In a case I tried early in my career, the testifying expert witness first saw the plaintiff two weeks before trial for no purpose other than to serve as a witness.  The plaintiff had a regular treating physician, and had been examined by another testifying witness, but the plaintiff’s lawyer wanted to have a second testifying witness for trial.  The “Saturday-night” expert witness conducted his examination, and then requested reimbursement for the examination from the plaintiff’s health insurer, and indicated the name of the plaintiff’s counsel as the “referring physician” on the insurance forms.  The trial judge remarkably would not permit cross-examination of the testifying expert witness on the fraud, and suggested that such cross-examination was prohibited by the collateral source rule!  The health insurance industry will occasionally act vigilantly to enforce a lien against a tort recovery, but there has been little evidence of civil or criminal litigation arising from the practice of billing insurers for examinations by physicians who are essentially expert witnesses and not treating physicians.

The Pennsylvania Silicosis Litigation Cock Up

In February 2002, Texas invaded Pennsylvania. No conventional weapons were fired. The Texans took up positions in mobile vans in motel parking lots across eastern Pennsylvania. Without prescriptions, physicians’ orders, or regulatory approval, the Texans directed unlawful X-ray radiation at Pennsylvania workers in the hopes of creating evidence to be used in lawsuits for silicosis. To help establish their litigation beachhead, the Texans hired local mercenaries – a New Jersey company in the business of providing mobile X-ray screenings. Dozens of silicosis lawsuits were created and filed in Philadelphia as a result of the invasion.

On January 25, 2007, the Commonwealth of Pennsylvania, through its Department of Environmental Protection (DEP), responded by fining the New Jersey company, MOST Health Services, Inc. The DEP found that MOST violated Pennsylvania law by conducting X-ray screenings without physician or regulatory approval. For having unlawfully exposed 161 persons to ionizing radiation, DEP assessed a civil penalty of $80,500.00, against MOST. The DEP did not charge the plaintiffs’ lawyers with any violation of Commonwealth regulations.

MOST’s participation in unlawful litigation screenings was not a momentary lapse in judgment. Back in 2000, defense counsel in asbestos cases compelled the testimony of MOST principal Kenneth Warner, who acknowledged then that MOST had not been in the practice of complying with screening regulations. Mr. Warner, however, claimed that the company was in the process of filing appropriate applications to comply.

Workers were invited to the February 2002 MOST screenings by their unions, but the invitation letters were written by Texas lawyers. To participate in the screenings, the workers had to sign a retainer agreement to engage the Texas-based law firm. The workers were told that “legal ethics” required that they hire the sponsoring law firm to represent them before “the attorneys can provide [them] with medical tests.”

Of course, the law in no state permits attorneys to provide medical tests, and especially not X-rays. DEP, like most other states’ regulatory agencies, has promulgated comprehensive regulations that govern virtually every aspect of the use of medical radiation. In Pennsylvania, anyone proposing a “healing arts screening” with X-rays must submit, in advance, a comprehensive, written proposal with details of the proposed screening, the description of the population to be examined, the qualifications of the radiation technician and operator, the quality control to be used, the qualifications of the supervising physician, and the identity and qualifications of the physician who will interpret the radiographs.

The MOST screenings, commissioned by the Texas lawyers, were never authorized by the DEP. No physician was present on site. None of the workers presented prescriptions or physicians’ orders before being unlawfully exposed to radiation. The identity of the physician slated to receive the chest radiographs was never disclosed to DEP.

Ultimately, the films created by MOST were sent to a West Virginia physician, well known and well compensated in dust-disease litigation. This off-site physician diagnosed virtually all of the workers with either asbestosis or silicosis, and a majority of litigants with both asbestosis and silicosis, although he never examined the workers, never interviewed them, and never reviewed their medical records.

In December 2005, the defendants in the silicosis cases that arose from the MOST screenings moved to dismiss on grounds that the claims were the direct result of unlawful activities that violated Pennsylvania public policy. The trial court denied the motion without opinion. Despite the obvious conspiracy between the plaintiffs’ lawyers and MOST to violate Pennsylvania health regulations, no disciplinary actions were brought against the plaintiffs’ lawyers in the cases.

The Pennsylvania fine against MOST seems to have been an exceptional finding. Although the predatory screening practices decried in federal Judge Janis Graham Jack’s now judicial opinion, In re Silica Products Liability Litigation, no other states to my knowledge have taken action against the conspiracies among lawyers, physicians, and mobile screening companies, to violate state health regulations. These conspiracies thrived for some time, in part because of the entrepreneurial enthusiasm of the conspirators, and the failure of courts, bar associations, adversary counsel, state and federal regulators, and medical societies to condemn the screening practices. In the context of silicosis litigation, the “red flags of fraud,” go beyond the manufacturing of diagnoses for money; they mark as dubious the entire enterprise of suing sand suppliers for failure to warn about hazards that were well known to government, industry, labor, and academia from the 1930s, forward.

[1]  The following commentary flows from a joint project that the late R. Nicholas (Nick) Gimbel and I worked on some years ago. Nick’s illness and tragic death prevented us from publishing this work, but I believe it still bears some sort of public airing. Nick Gimbel and I presented some of this commentary in a paper, “Legal Remedies to Address Suspect Medical Science in Product Liability Cases,” for Mealey’s Advanced Insurance Coverage Conference, in Philadelphia, Pennsylvania (Jan. 23, 2006).

[2]  In re Silica Products Liability Litigation, 398 F.Supp. 2d 563 (S.D.Tex. 2005) (“In re Silica”). Although Judge Jack’s deconstruction of the silicosis “epidemic” is famous among defense counsel, Her Honor’s work has been met with willful ignorance by the lawsuit industry. See, e.g., David Michaels, “Deadly Dust,” chap. 8, in The Triumph of Doubt: Dark Money and the Science of Deception (2020) (exhibiting amnesia about one of the largest litigation frauds in the 21st century, so far.)

[3]  For a more complete, scholarly exposition of this case, see Lester Brickman, “Civil RICO: An Effective Deterrent to Fraudulent Asbestos Litigation?” 40 Cardozo L. Rev. 2301, 2344-2402 (2019).

[4]  Fourth Amended Complaint dated August 19, 2002.

[5]  Fourth Amended Complaint, ¶ 61.

[6]   18 U.S.C. § 1961, et seq.

[7]  Other claims in the GAF complaint asserted tortious interference with contract and economic advantage, breach of contract, common law fraud and falsification of documents.  Claims that were dismissed include malicious interference with GAF’s right to petition Congress, violation of 15 U.S.C. § 1 (antitrust laws) and fraudulent inducement.

[8]  See G-I Holdings, Inc. v. Baron & Budd, No. 01-Civ. 0216, 2005 WL 1653623 (S.D.N.Y.); G-I Holdings, Inc. v. Baron & Budd, No. 01-Civ. 0216, 2004 WL 638141 (S.D.N.Y. Mar. 30, 2004);  G-I Holdings, Inc. v. Baron & Budd, 2004 WL 540456 (S.D.N.Y. Mar. 17, 2004); G-I Holdings, Inc. v. Baron & Budd, 2004 WL 374450 (S.D.N.Y. Feb. 27, 2004); G-I Holdings, Inc. v. Baron & Budd, 218 F.R.D. 409 (S.D.N.Y. 2003); G-I Holdings, Inc. v. Baron & Budd, 213 F.R.D. 146 (S.D.N.Y. 2003); G-I Holdings, Inc. v. Baron & Budd, 01 Civ. 0216, 2002 WL 31251702 (S.D.N.Y. Oct. 8, 2002); G-I Holdings, Inc. v. Baron & Budd, 238 F.Supp.2d 521 (S.D.N.Y. 2002); and G-I Holdings, Inc. v. Baron & Budd, 179 F.Supp.2d 233 (S.D.N.Y. 2001).

[9]  U.S. v. MRS Diagnostics, Inc., Civil Action No. 90-3517 (E.D.Pa. May 23, 1990), Complaint.

[10]  Id. at Complaint para. 1(a)-(i).

Posted in Asbestos, Scientific Misconduct, Silica | Comments Off on Legal Remedies for Suspect Medical Science in Products Cases – Part One

History of Silicosis Litigation

January 31st, 2019

“Now, Silicosis, you’re a dirty robber and a thief;
Yes, silicosis, you’re a dirty robber and a thief;
Robbed me of my right to live,
and all you brought poor me is grief.
I was there diggin’ that tunnel for just six bits a day;
I was diggin’ that tunnel for just six bits a day;
Didn’t know I was diggin’ my own grave,
Silicosis was eatin’ my lungs away.”

Josh White, “Silicosis Is Killin’ Me (Silicosis Blues)” (1936)

Recently, David Rosner, labor historian, social justice warrior, and expert witness for the litigation industry, gave the Fielding H. Garrison Lecture, in which he argued for the importance of the work that he and his comrade-in-arms, Gerald Markowitz, have done as historian expert witnesses in tort cases.1 Although I am of course grateful for the shout out that Professor Rosner gives me,2 I am still obligated to call him on the short-comings of his account of silicosis litigation.3 Under the rubric of “the contentious struggle to define disease,” Rosner presents a tendentious account of silicosis litigation, which is highly misleading, for what it says, and in particular, for it omits.

For Rosner’s self-congratulatory view of his own role in silicosis litigation to make sense, we must imagine a counterfactual world that is the center piece of his historical narrative in which silicosis remains the scourge of the American worker, and manufacturing industry is engaged in a perpetual cover up.

Rosner’s fabulistic account of silicosis litigation and his role in it falls apart under even mild scrutiny. The hazards of silica exposure were known to Josh White and the entire country in 1936. Some silicosis litigation arose in the 1930s against employers, but plaintiffs were clearly hampered by tort doctrines of assumption of risk, contributory negligence, the fellow-servant rule. To my knowledge, there were no litigation claims against remote suppliers of silica before the late 1970s, when courts started to experiment with hyperstrict liability rules.

Eventually, the litigation industry, buoyed by its successes against asbestos-product manufacturers turned their attention to silica sand suppliers to foundries and other industrial users. Liability claims against remote suppliers of a natural raw material such as silica sand, however, made no sense in terms of the rationales of tort law. There was no disparity of information between customer and supplier; the customer, plaintiffs’ employer was not only the cheapest and most efficient cost and risk avoider, the employer was the only party that could control the risk. Workers and their unions were well aware of the hazards of working in uncontrolled silica-laden workplaces.

Although employer compliance with safety and health regulations for silica exposure has never been perfect, the problem of rampant acute silicosis, such as what afflicted the tunnel workers memorialized by Josh White, is a thing of the past in the United States. The control of silica exposures and the elimination of silicosis are rightly claimed to be one of the great public health achievements of the 20th century. See Centers Disease Control, “Ten Great Public Health Achievements — United States, 1900-1999,” 48 Morbidity & Mortality Weekly Report 241 (April 02, 1999).

Interestingly, after World War II, silicosis has been a much greater problem in the communist countries, such as China, the countries that made up the Soviet Union. Rosner and Markowitz, however, like the leftist intellectuals of the 1950s who could not bring themselves to criticize Stalin, seem blind to the sorry state of workplace safety in communist countries. Their blindness vitiates their historical project, which attempts to reduce occupational diseases and other workplace hazards to the excesses of corporate capitalism. A fair comparison with non-capitalist systems would reveal that silicosis results from many motives and conditions, including inattention, apathy, carelessness, concern with productivity, party goals, and labor-management rivalries. In the case of silicosis, ignorance of the hazards of silica is the least likely explanation for silicosis cases arising out of workplace exposures after the mid-1930s.

In the United States, silicosis litigation has been infused with fraud and deception, not by the defendants, but by the litigation industry that creates lawsuits. Absent from Rosner’s historical narratives is any mention of the frauds that have led to dismissals of thousands of cases, and the professional defrocking of any number of physician witnesses.  In re Silica Products Liab. Litig., MDL No. 1553, 398 F.Supp. 2d 563 (S.D.Tex. 2005).

Nor does Rosner deign to discuss the ethical and legal breaches committed by the plaintiffs’ counsel in conducting radiographic screenings of workers, in the hopes of creating lawsuits. With the help of unscrupulous physicians, these screenings were unnaturally successful not only in detecting silicosis that did not exist, but in some cases, in transmuting real asbestosis into silicosis.4

Many silicosis cases in recent times were accompanied by more subtle frauds, which turned on the “failure-to-warn” rhetoric implicit in the Restatement (Second) of Torts § 402A. Consider the outbreak of silicosis litigation in western Pennsylvania, in the mid-1980s. Many of the men who claimed to have silicosis had significant silica exposure at the Bethlehem and U.S. Steel foundries in the Johnstown areas. Some of the claimants actually had simple silicosis, although discovery of these claimants’ workplace records revealed that they had been non-compliant with workplace safety rules.

The Johnstown, Cambria County, cases were not the result of unlawful medical screenings, paid for by plaintiffs’ lawyers and conducted by physicians of dubious integrity and medical acumen. Instead, the plaintiffs’ lawyers found their claimants as a result of the claimants’ having had previous workers’ compensation claims for silicosis, which resulted after the workers were diagnosed by employer medical screening programs.

Cambria County Courthouse in Ebensburg, PA (venue for an outbreak of silicosis litigation in the 1980s and early 1990s5)

The first of the foundrymen’s cases was set for trial in 1989, 30 years ago, in Cambria County, Pennsylvania. The silica cases were on the docket of the President Judge, the Hon. Joseph O’Kicki, who turned out to be less than honorable. Just before the first silica trial, Judge O’Kicki was arrested on charges of corruption, as well as lewdness (for calling in his female staff while lounging in chambers in his panties).

As a result of O’Kicki’s arrest, the only Cambria Country trial we saw in 1989 was the criminal trial of Judge O’Kicki, in Northampton County. In April 1989, a jury found O’Kicki guilty of bribery and corruption, although it acquitted him on charges of lewdness.6 Facing a sentence of over 25 years, and a second trial on additional charges, O’Kicki returned to the land of his forebears, Slovenia, where he lived out his days and contributed to the surplus population.7

Whatever schadenfreude experienced by the defendants in the Cambria County silicosis litigation was quickly dispelled by the assignment of the silica cases to the Hon. Eugene Creany, who proved to be an active partisan for the plaintiffs’ cause. Faced with a large backlog of cases created by the rapacious filings of the Pittsburgh plaintiffs’ lawfirms, and Judge O’Kicki’s furlough from judicial service, Judge Creany devised various abridgements of due process, the first of which was to consolidate cases. As a result, the first case up in 1990 was actually three individual cases “clustered” for a single jury trial: Harmotta, Phillips, and Peterson.8 To poke due process in both eyes, Judge Creany made sure that one of the “clustered” cases was a death case (Peterson).

Jury selection started in earnest on April 2, 1990, with opening statements set for April 4. In between, the defense made the first of its many motions for mistrial, when defense lawyers observed one of the plaintiffs, Mr. Phillips, having breakfast with some of the jurors in the courthouse cafeteria. Judge Creany did not seem to think that this pre-game confabulation was exceptional, and admonished the defense that folks in Cambria County are just friendly, but they are fair. Trial slogged on for four weeks, with new abridgments of due process almost every day, such as forcing defendants, with adverse interests and positions, into having one direct- and one cross-examination of each witness. The last motion for mistrial was provoked by Judge Creany’s walking into the jury room during its deliberations, to deliver doughnuts.

At the end of the day, in May 1990, the jury proved to be much fairer than the trial judge. Judge Creany instructed the jury that “silica was the defect,” and on other novel points of law. Led by its foreman, a union organizer for the United Mine Workers, the jury returned a defense verdict in the Peterson case, which involved a claim that Mr. Peterson’s heart attack death case was caused by his underlying silicosis. In the two living plaintiffs’ cases, the jury found that the men had knowingly assumed the risk of silicosis, but at the judge’s insistence, the jury proceeded to address defendants’ liability, and to assess damages, in the amount of $22,500, in the two cases.

Pennsylvania’s appellate courts took a dim view of plaintiffs’ efforts to hold remote silica suppliers responsible for silicosis arising out of employment by large, sophisticated steel manufacturers. The Superior Court, Pennsylvania’s intermediate appellate court, reversed and remanded both plaintiffs’ verdicts. In Mr. Harmotta’s case, the court held that his action was collaterally estopped by a previous workman’s compensation judge’s finding that he did not have silicosis. In Mr. Phillip’s case, the court addressed the ultimate issue, whether a remote supplier to a sophisticated intermediary can be liable for silicosis that resulted from the intermediary’s employment and use of the supplied raw material. In what was a typical factual scenario of supply of silica to foundry employers, the Superior Court held that there was no strict or negligence liability for the employees’ silicosis.9 The Pennsylvania Supreme Court declined to hear Harmotta’s appeal on collateral estoppels, but heard an appeal in Phillips’ case. The Supreme Court pulled back from the sophisticated intermediary rationale for reversal, and placed its holding instead on the obvious lack of proximate cause between the alleged failure to warn and the claimed harm, given the jury’s special finding of assumed risk.10

One of plaintiffs’ counsel’s principal arguments, aimed at the union organizer on the jury, was that even if a warning to the individual plaintiffs might not have changed their behavior, a warning to the union would have been effective. The case law involving claims against unions for failing to warn have largely exculpated unions and taken them out of the warning loop. Given this case law, plaintiffs’ argument was puzzling, but the puzzlement turned to outrage when we learned after the first trial that Judge Creany had been a union solicitor, in which role, he had regularly written to U.S. Steel in Johnstown, to notify the employer when one of the local union members had been diagnosed with silicosis.

The next natural step seemed to list Judge Creany as a percipient fact witness to the pervasive knowledge of silicosis among the workforce and especially among the union leadership. Judge Creany did not take kindly to being listed as a fact witness, or being identified in voire dire as a potential witness. Still, the big lie about failure to warn and worker and labor union ignorance had been uncovered. Judge Creany started to delegate trials to other judges in the courthouse and to bring judges in from neighboring counties. The defense went on win the next dozen or so cases, before the plaintiffs’ lawyers gave up on their misbegotten enterprise of trying to use Pennsylvania’s hyperstrict liability rules to make remote silica suppliers pay for the fault of workers and their employers.

You won’t find any mention of the Cambria County saga in Rosner or Markowitz’s glorified accounts of silicosis litigation. The widespread unlawful screenings, the “double dipping” by asbestos claimants seeking a second paycheck for fabricated silicosis, the manufactured diagnoses and product identification do not rent space in Rosner and Markowitz’s fantastical histories.

2 See, e.g., Nathan A. Schachtman, “On Deadly Dust and Histrionic Historians: Preliminary Thoughts on History and Historians as Expert Witnesses,” 2 Mealey’s Silica Litigation Report Silica 1, 2 (November 2003); Nathan Schachtman & John Ulizio, “Courting Clio:  Historians and Their Testimony in Products Liability Action,” in: Brian Dolan & Paul Blanc, eds., At Work in the World: Proceedings of the Fourth International Conference on the History of Occupational and Environmental Health, Perspectives in Medical Humanities, University of California Medical Humanities Consortium, University of California Press (2012); Schachtman, “On Deadly Dust & Histrionic Historians 041904,”; “How Testifying Historians Are Like Lawn-Mowing Dogs” (May 15, 2010); A Walk on the Wild Side (July 16, 2010); Counter Narratives for Hire (Dec. 13, 2010); Historians Noir (Nov. 18, 2014); “Succès de scandale – With Thanks to Rosner & Markowitz” (Mar. 26, 2017). And of course, I have experienced some schadenfreude for when one of the Pink Panthers was excluded in a case in which he was disclosed as a testifying expert witness. Quester v. B.F. Goodrich Co., Case No. 03-509539, Court of Common Pleas for Cuyahoga Cty., Ohio, Order Sur Motion to Exclude Dr. Gerald Markowitz (Sweeney, J.).

3 “Trying Times” is the sixth Rosnowitz publication to point to me as a source of criticism of the Rosner-Markowitz radical leftist history of silicosis in the United States. See David Rosner, “Trying Times: The Courts, the Historian, and the Contentious Struggle to Define Disease,” 91 Bull. History Med. 473, 491-92 & n.32 (2017); Previously, Rosner and Markowitz have attempted to call me out in four published articles and one book. See D. Rosner & G. Markowitz, “The Trials and Tribulations of Two Historians:  Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 280-81 (2009); D. Rosner & G. Markowitz, “L’histoire au prétoire.  Deux historiens dans les procès des maladies professionnelles et environnementales,” 56 Revue  D’Histoire Moderne & Contemporaine 227, 238-39 (2009); David Rosner, “Trials and Tribulations:  What Happens When Historians Enter the Courtroom,” 72 Law & Contemporary Problems 137, 152 (2009); David Rosner & Gerald Markowitz, “The Historians of Industry” Academe (Nov. 2010); and Gerald Markowitz and David Rosner, Deceit and Denial: The Deadly Politics of Industrial Pollution at 313-14 (U. Calif. rev. ed. 2013). 

4 Nathan A. Schachtman, “State Regulators Impose Sanction Unlawful Screenings 05-25-07,” Washington Legal Foundation Legal Opinion Letter, vol. 17, no. 13 (May 2007); “Silica Litigation – Screening, Scheming, and Suing,” Washington Legal Foundation Critical Legal Issues Working Paper (December 2005); “Medico-Legal Issues in Occupational Lung Disease Litigation,” 27 Seminars in Roentgenology140 (1992).

5 by Publichall – own work, CC BY-SA 3.0.

6 Assoc’d Press, “Pennsylvania County Judge Guilty of Corruption,” (April 18, 1989).

7 U.P.I., “Facing Prison, Convicted Judge Skips Bail,” (Mar. 8, 1993); “Judge O’kicki Declared Fugitive; May Be In Slovenia,” The Morning Call (April 20, 1993).

8 Harmotta v. Walter C. Best, Inc., Cambria Cty. Ct. C.P. No. 1986-128; Phillips v. Walter C. Best, Inc., Cambria Cty. Ct. C.P. No. 1987-434(b)(10); Peterson v. Walter C. Best, Inc., Cambria Cty. Ct. C.P. No. 1986-678.

9 Phillips v. A.P. Green Co., 428 Pa. Super. 167, 630 A.2d 874 (1993).

10 Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167 (1995).

Posted in Historian Testimony, Public Nuisances, Silica, Sophisticated User | Comments Off on History of Silicosis Litigation

Succès de scandale – With Thanks to Rosner & Markowitz

March 26th, 2017

“for there is only one thing in the world worse than being talked about, and that is not being talked about.”

Oscar Wilde, The Picture of Dorian Gray (1890)

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

Some years ago, I co-chaired a Mealey’s conference on silicosis litigation. When plaintiffs’ counsel participate in such events, they are usually trolling for business, and jockeying for position on litigation steering committees. Ethical defense counsel are looking to put themselves out of business. My goal at the conference was to show that there was no there, there, so don’t go there. Mostly, the history of the litigation has proven me correct. In the early years of the 21st century, there were well over 10,000 cases pending. Now, there are just a hand full of pending cases. Very little money has been given to plaintiffs’ counsel; almost no sand companies have gone bankrupt.

At that Mealey’s conference, I presented a paper, which I later allowed Mealey’s to publish in its Silica Reporter. The paper became something of a “succès de scandale,” at least in getting under the skin of the Marxist historians, David Rosner and Gerald Markowitz, whom I took to task. In at least four of their publications, they have attempted unsuccessfully to rebut my arguments, and to criticize me for making them.1 At a meeting of the Committee on Science, Technology and the Law, of the National Academies of Science, I found myself presenting alongside Markowitz, on access to underlying study data. Markowitz played the victim of legal counsel’s subpoenas to his publisher for peer review comments in vinyl chloride, which grew out of his participation in the vinyl chloride litigation as an expert witness.2

I was on the panel for having served a subpoena upon Dr. Brad Racette for the underlying data of a study of parkinsonism in welders, with support in the form of the financial largesse of felon Richard Scruggs. Rosner was at this meeting only as a spectator, but he did not miss the opportunity, at a break, to get in my face, with the obvious intent of bullying me, with warnings that I would regret having ever written about them.

Back in 2007, the lawsuit-industry funded SKAPP conducted a conference, at which Rosner presented. I was not present, but a friend wrote me later, “Boy, does Rosner not like you. You steal a puppy from him or something?” When I presented at the Fourth International Conference on the History of Occupational and Environmental Health, in 2010, Rosner repeated his Middlebury behavior. As soon as I finished my talk, he rushed for the microphone and filibustered the entire question and answer period.3 I would chalk this up to fascisti of the left, except the very nice socialist historian who chaired my panel apologized profusely afterwards.

In a revised edition of one of their historical potboilers, Rosner and Markowitz repeated their calumny:

“It was not just the lead and chemical industries that saw our book and the evidence we presented as a threat. Nathan Schachtman, an attorney with the Philadelphia-based firm McCarter & English, and who defended companies sued for ‘exposures to allegedly toxic substances, including asbestos, benzene, cobalt isocyanates, silica and solvents’, also published an attack on us in Mealey’s Litigation Report: Silica, titled, ‘On Deadly Dust and Histrionic Historians’. In his attack on our earlier book, Deadly Dust, a history of the devastating lung disease silicosis, he accused us of writing a ‘jeremiad’ that ‘resonates to the passions and prejudices of the last century’. He took us to task for our ‘prejudice’ that ‘silicosis results from the valuation of profits over people’ and admonished us to point out the higher rates of silicosis in Communist countries. ‘They [the authors] fairly consistently excuse or justify the actions of labor… . They excoriate the motives and actions of industry’. But Schachtman’s true agenda emerged in the middle of his third paragraph. ‘We could safely leave the fate of Rosner’s and Markowitz’s historical scholarship to their community of academicians and historians if not for one discomforting fact,’ he wrote. ‘The views of Rosner and Markowitz have become part of the passion play that we call silicosis litigation.’16

Schachtman seemed to be saying that as long as academics speak only to one another and had no influence beyond academia, they can be tolerated. But once they begin to affect that wider world, they need to be put back in their place. All this despite the fact that, at the time of Schachtman’s piece, more than a decade after the publication of Deadly Dust in 1991, each of us had appeared on the stand in only one case.”4

Rosner and Markowitz get virtually everything wrong, but one factoid may have been true. As of 1991, Rosner and Markowitz had perhaps only “appeared on the stand in only one case,” but by the time I wrote the article in 2005, the Marxist duo had been listed as expert witnesses in hundreds, if not thousands, of cases. The language quoted above appeared in an “Epilogue” to a 2013 publication, by which time Rosner and Markowitz each had testified over a dozen times, as professional historian “arguers.” Only Markowitz testified in vinyl chloride cases, from what I can make out, but the two of them testified in many silica, asbestos, and lead cases by the time they published their Epilogue.

One obvious point is that Rosner and Markowitz are both rather disingenuous in portraying themselves as innocent academics without connections to the lawsuit industry. In their world, they seek victim status to hide their long-standing partisanship in litigation issues. The real point, however, is that Rosner and Markowitz have never rebutted my arguments that silicosis was worse for workers in East Germany, the Soviet Union, Maoist China, under communist rule than it was in the post-1935 era in the United States. Unlike the rising incidence of asbestosis, the incidence of silicosis in the United States has steadily and significantly declined after World War II. Indeed, the Centers for Disease Control has held up the control of silicosis as one of the ten great public achievements in 20th century United States.5 See “Ramazzini Serves Courtroom Silica Science Al Dente” (July 25, 2015) (showing CDC data on declining silicosis incidence in the United States, against the rising trend in asbestosis incidence).

1 To date I have found four articles that dwell on the issue. See D. Rosner & G. Markowitz, “The Trials and Tribulations of Two Historians:  Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 280-81 (2009); D. Rosner & G. Markowitz, “L’histoire au prétoire.  Deux historiens dans les procès des maladies professionnelles et environnementales,” 56 Revue D’Histoire Moderne & Contemporaine 227, 238-39 (2009); David Rosner, “Trials and Tribulations:  What Happens When Historians Enter the Courtroom,” 72 Law & Contemporary Problems 137, 152 (2009); David Rosner & Gerald Markowitz, “The Historians of Industry” Academe (Nov. 2010).

2 Markowitz was excluded in at least one case in which he was disclosed as a testifying expert witness. Quester v. B.F. Goodrich Co., Case No. 03-509539, Court of Common Pleas for Cuyahoga Cty., Ohio, Order Sur Motion to Exclude Dr. Gerald Markowitz (Sweeney, J.).

3 Nathan Schachtman & John Ulizio, “Courting Clio:  Historians and Their Testimony in Products Liability Action,” in: Brian Dolan & Paul Blanc, eds., At Work in the World: Proceedings of the Fourth International Conference on the History of Occupational and Environmental Health, Perspectives in Medical Humanities, University of California Medical Humanities Consortium, University of California Press (2012); Schachtman, “On Deadly Dust & Histrionic Historians 041904,”; “How Testifying Historians Are Like Lawn-Mowing Dogs” (May 15, 2010); A Walk on the Wild Side (July 16, 2010); Counter Narratives for Hire (Dec. 13, 2010); Historians Noir (Nov. 18, 2014).

4 Gerald Markowitz and David Rosner, Deceit and Denial: The Deadly Politics of Industrial Pollution at 313-14 (U. Calif. rev. ed. 2013). Footnote 16 was a reference to Nathan A. Schachtman, “On Deadly Dust and Histrionic Historians: Preliminary Thoughts on History and Historians as Expert Witnesses,” 2 Mealey’s Silica Litigation Report Silica 1, 2 (November 2003). Their language quoted above was largely self-plagiarized from Gerald Markowitz and David Rosner, “The Historians of Industry” (Nov. – Dec. 2010). 

5 CDC, “Ten Great Public Health Achievements — United States, 1900-1999,” 48 Morbidity & Mortality Weekly Report 241 (April 02, 1999).

Posted in Conflicts of Interest, Historian Testimony, Silica | Comments Off on Succès de scandale – With Thanks to Rosner & Markowitz

The Webb of Unsophistication in Products Liability Law

May 29th, 2016

The Heart of the Matter

The classic early cases in products liability law were about consumers hurt by consumer products, sold by manufacturers or dealers directly to consumers. The key component of these cases was inequality of bargaining power, of knowledge about latent defects or hazards, and of control over the discovery of latent hazards or defects. American products liability law was created around consumer products.  Just think of Henningsen, Escola, and MacPherson.[1]  These were all consumer products for which the rhetoric about inequality of bargaining, knowledge, and control over design, manufacturing, and latent hazards sometimes makes sense. The paradigmatic model for products liability, however, frequently does not work for the three-way relationship of sales of products to large industrial employers. The model especially does not work when the product is a raw material used throughout a factory, or incorporated into another product.

Many courts have failed to come to grips with the inadequacy of the consumer model for products liability cases in instances of occupational harm to industrial employees.  Courts have been trying to ram this square peg into a round hole since the early asbestos litigation (which perhaps made some sense because there was inequality between Johns Manville and most vendees), but makes no sense when John Manville is itself the purchaser.

The Tangled Webb in California Law

The Webb case received some attention after the California Court of Appeals reversed a trial court’s entry of JNOV for defendant Special Electric on the so-called sophisticated intermediary defense.  See “California Supreme Court Set To Untangle Webb” (July 7, 2013); “Big Blue & The Sophisticated User and Intermediary Defenses” (Sept. 27, 2014); G. Jeff Coons, “What a Tangled Webb We Weave: Court Imposes Failure to Warn Liability On Supplier to Johns-Manville” (April 2013). Special Electric petition for review, and eventually the California Supreme Court called for full briefing and oral argument in the Webb case.

The wheels of justice grind slowly in California. Special Electric filed its opening brief on the merits, on September 10, 2013. Webb’s widow answered in December 2013, and Special Electric replied in February 2014. Several amici curiae joined the fray in April 2014. Mark A. Behrens filed a brief on behalf of the Coalition for Litigation Justice, Inc., Chamber of Commerce, NFIB Small Business Legal Center, and American Chemistry Council. The Pacific Legal Foundation also filed, as did Elementis Chemicals Inc.

After mulling over the briefs for two years, the California Supreme Court heard argument on March 1, 2016, and then in surprisingly short order, affirmed the intermediate appellate, earlier this week. The Supreme Court’s ruling upheld a Court of Appeal’s decision that reversed a judgment for defendant Special Electric, based upon a jury verdict in favor of William Webb, who was exposed to crocidolite sold by Special Electric, and which caused him to develop mesothelioma in 2011. The Supreme Court’s opinion[2] held that sophisticated intermediary doctrine was a complete legal defense, even potentially for an asbestos supplier, but declined to apply it to the benefit of Special Electric, which had misrepresented facts about crocidolite and offered no evidence that its purchaser was sophisticated about crocidolite asbestos and its unique relationship with mesothelioma. [Slip opinion cited here as Webb.] Webb v. Special Elec. Co., Inc., 2016 BL 163642, Cal., No. S209927, 5/23/16).

The majority opinion[3] fortunately was able to separate the poorly framed and supported defense by Special Electric from the basic tenets of tort law and the sophisticated intermediary defense. To the extent that anyone doubted the validity of the sophisticated intermediary defense, the Webb Court formally adopted the doctrine as the law of California, as set out in the Second and Third Restatements of Tort Law. Webb at 15-16. According to the Court, a defendant may set up sophisticated intermediary doctrine as a complete defense, to failure to warn claims for known or knowable product risks, sounding in negligence or in strict liability, when the defendant supplier:

“(1) provides adequate warnings to the product’s immediate purchaser, or sells to a sophisticated purchaser that it knows is aware or should be aware of the specific danger, and

(2) reasonably relies on the purchaser to convey appropriate warnings to downstream users who will encounter the product.”

Webb at 16 (emphasis in original).[4]

As an affirmative defense, the defendant supplier must carry its burden of showing that it adequately warned the intermediary, or that it knew the intermediary knew or should have known of the specific hazard, and that it reasonably relied upon the purchaser to transmit warnings. Id.

On appeal, the California Supreme Court held that defendant Special Electric failed to preserve its entitlement to the sophisticated intermediary defense because “it never attempted to show that it actually or reasonably relied on Johns-Manville to warn end users. Nor did Special Electric request a jury instruction or verdict form question on the sophisticated intermediary doctrine.” Webb at 23.

Alternatively, on the assumption that Special Electric preserved the defense, the Court held that this defendant failed to establish the defense as a matter of law because:

“[a]lthough the record clearly shows Johns-Manville was aware of the risks of asbestos in general, no evidence established it knew about the particularly acute risks posed by the crocidolite asbestos Special Electric supplied. In addition, plaintiffs presented evidence that at least one Special Electric salesperson told customers crocidolite was safer than other types of asbestos fiber, when the opposite was true.”

Webb at 23.

The Webb Court reviewed the Tort Restatements’ embrace of the sophisticated intermediary defense in both the Second and Third editions.  The Webb Court noted that the Third Restatement demonstrated the continued validity and vitality of the defense, as had been expressed in the Section 388 of the Restatement Second of Torts.[5] The Court noted and followed the Third Restatement’s recitation of guiding considerations for invoking and sustaining the defense:

“There is no general rule as to whether one supplying a product for the use of others through an intermediary has a duty to warn the ultimate product user directly or may rely on the intermediary to relay warnings. The standard is one of reasonableness in the circumstances. Among the factors to be considered are the gravity of the risks posed by the product, the likelihood that the intermediary will convey the information to the ultimate user, and the feasibility and effectiveness of giving a warning directly to the user.”

Webb at 15 (citing Restatement 3d Torts, Products Liability, § 2, com. i, at p. 30.) Citing California precedent, the Webb Court noted that

“[t]he focus of the [sophisticated intermediary] defense . . . is whether the danger in question was so generally known within the trade or profession that a manufacturer should not have been expected to provide a warning specific to the group to which plaintiff belonged.”

Webb at 9-10 (quoting from Johnson v. American Standard, Inc. 43 Cal.4th 56, 72 (2008).  The pertinent legal test is whether a reasonable supplier would have known of the intermediary’s sophistication with respect to the relevant risk. Webb at 20.[6] Of course, the existence of a pervasive regulatory control of risk creation, detection, and mitigation in the workplace would count heavily in this objective test.  “Every person has a right to presume that every other perform his duty and obey the law.” Webb at 21 (internal citation omitted) (emphasis added).

The Restatement factors, however, did not support Special Electric’s invocation of the defense in a case involving:

(1) crocidolite asbestos, one of the most hazardous substances known,

(2) defendant’s affirmative and blatantly false misrepresentations of the relative safety of crocidolite relative to chrysotile asbestos,[7] and

(3) a complete failure of proof that the purchaser, Johns Manville, knew that crocidolite was especially hazardous with respect to the causation of mesothelioma.

Webb at 23-24. Factors one and two were givens for defense counsel, but factor three speaks to unnecessary coyness on the part of the defense.  Showing that Johns Manville was well aware of the extraordinarily great hazard of crocidolite would have been relatively easy to do from past transcripts, articles, speeches, and litigation conduct of the Johns Manville companies. Despite the extreme hazards from uncontrolled asbestos exposures, the Webb case explained that the sophisticated intermediary defense was not per se inapplicable to asbestos cases, and went so far as to disapprove an earlier California Court of Appeals decision that refused to apply the defense in the asbestos personal injury context when no warnings had been given.[8] “Sophistication obviates the need for warnings because a sophisticated purchaser already knows or should know of the relevant risks.” Webb at 17-18.

The Webb case acknowledged that defective design claims against raw material suppliers are incoherent and invalid, whether for the raw material itself, or for downstream design defect claims against for the product with the incorporated raw material. “[A] basic raw material such as sand, gravel, or kerosene cannot be defectively designed.” Webb at 11-12 (quoting from Restatement 3d Torts, Products Liability, § 5, com. c, at p. 134).[9]

The Webb Court also evinced a healthy disrespect for the notion that tort law is only about spreading risk and compensating injured persons. The Court acknowledged that in some instances, there were competing policies of compensating persons injured by products and “encouraging conduct that can feasibly be performed.” Webb at 2. The Court also acknowledged that there were hazards to warning when none was needed or when the absence of a warning would not be a legal cause of harm:

“Because sophisticated users already know, or should know, about the product’s dangers, the manufacturer’s failure to warn is not the legal cause of any harm. A sophisticated user’s knowledge is thus the equivalent of prior notice. The defense serves public policy, because requiring warnings of obvious or generally known product dangers could invite consumer disregard and contempt for warnings in general.”

Webb at 9 (internal citations omitted) (emphasis added). Furthermore, the sophisticated intermediary defense balances the need for the worker-consumer’s safety with “the practical realities of supplying products.” Webb at 17.

The Webb decision puts California in line with the majority rule that recognizes the validity of the sophisticated intermediary defense, and embraces real-world truth that:

“[in] some cases, the buyer’s sophistication can be a substitute for actual warnings, but this limited exception only applies if the buyer was so knowledgeable about the material supplied that it knew or should have known about the particular danger.”

Webb at 17.[10] The Court noted and agreed with the Restatement Third’s observation that imposing liability upon raw material suppliers for failure to warn can be unduly and unfairly burdensome when such liability would require remote suppliers

“to develop expertise regarding a multitude of different end-products and to investigate the actual use of raw materials by manufacturers over whom the supplier has no control.”

Webb at 12 (quoting from Restatement 3d Torts, Products Liability, § 5, com. c, at p. 134).

Concurrence

Chief Justice Tani Gorre Cantil-Sakauye, along with Justice Ming W. Chin, concurred in the result, but dissented from the majority’s rationale as overly broad. The concurring justices insisted that a supplier reasonably relies upon its purchaser only when the purchaser has actual awareness of the product’s risks. Webb concurrence at 4. Even this stingier approach noted that one of the purpose of warnings is

“to enable the consumer or others who might come in contact with the product to choose not to expose themselves to the risks presented.”

Webb Concurrence at 3 (citing Restatement3d Torts, Products Liability, § 2, com. i, at p. 30).  In many sophisticated intermediary contexts involving occupational exposures to fumes, vapors, and dusts, workers (consumers) cannot appreciate whether they might come in contact with the product such that they have actual risks unless the sophisticated intermediary measures its specific workplace exposures, given its actual engineering, administrative, and person protection controls.

Commentary

The Webb Court failed to address in any meaningful form how Special Electric could discharge a duty to warn Mr. Webb directly, when it sold blue asbestos to Johns-Manville, which then incorporated that fiber, along with other recycled asbestos into transite pipes. To this extent, the Webb decision carries forward the glib belief in efficacy of warnings, without any evidence or critical thought.

It is hard to imagine an industrial purchaser that was unaware of the special hazards of crocidolite by 1970, and yet Special Electric apparently failed to offer evidence on the issue whether Johns-Manville had such awareness. A court might take judicial notice of Johns-Manville sophistication, but there is not even the suggestion that Special Electric attempted to supplement the vacuous record with a request for judicial notice.

If the California Supreme Court’s recitation of the facts of the case is correct, then we are left with an unflattering inference about Special Electric’s trial strategy and execution.  Perhaps Special Electric was coyly trying to avoid a downside outcome in which it was responsible for 99.99% of the verdict because its blue asbestos was by far the most important cause of Mr. Webb’s tragic disease, a disease that would have almost certainly been avoided had never had exposure to blue asbestos. The propensity of crocidolite to cause mesothelioma is orders of magnitude greater than chrysotile, which by itself may not even be a competent cause of the harm suffered by Mr. Webb.

In the final analysis, the Webb Court correctly adopted the sophisticated intermediary principle as an essential limit to tort liability, but denied its benefit to Special Electric.  The sophisticated intermediary doctrine should not, however, be conceived of as an affirmative defense.  The scope of the rule is defined by the rationale for its existence, and the sophisticated intermediary situation lies outside the realm and rationale of protecting, by warning, consumers against latent hazards.  It is time that courts recognize that much litigation brought to its doors is really the result of labor-management issues within the workplace, and not the doings or responsibility of remote suppliers of raw materials.

[1] See, e.g, MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) (holding that privity of contract did not bar suit and that product manufacturers could be liable to consumers for injuries); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960); Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 150 P. 2d 436  (1944).

[2] See Steven Sellers, “California Ruling Defines Asbestos Supplier’s Duty to Warn,” BNA Product Safety & Liability Reporter (May 24, 2016).

[3] The majority opinion was written by Associate Justice Carol A. Corrigan, and joined by Associate Justices Kathryn Mickle Werdegar, Goodwin Liu, Mariano-Florentino Cuéllar and Leondra R. Kruger.

[4] See also Webb at 2 (“Under the sophisticated intermediary doctrine, the supplier can discharge this duty if it conveys adequate warnings to the material’s purchaser, or sells to a sufficiently sophisticated purchaser, and reasonably relies on the purchaser to convey adequate warnings to others, including those who encounter the material in a finished product. Reasonable reliance depends on many circumstances, including the degree of risk posed by the material, the likelihood the purchaser will convey warnings, and the feasibility of directly warning end users.”); Webb at 6 (“[T]he sophisticated intermediary doctrine provides that a supplier can discharge its duty to warn if it provides adequate warnings, or sells to a sufficiently sophisticated buyer, and reasonably relies on the buyer to warn end users about the harm.”). Webb at 17 (“If a purchaser is so knowledgeable about a product that it should already be aware of the product’s particular dangers, the seller is not required to give actual warnings telling the buyer what it already knows.”).

[5] See Webb at 15 (“The drafters intended this comment to be substantively the same as section 388, comment n, of the Restatement Second of Torts.”) (citing Restatement 3d Torts, Products Liability, § 2, com. i, reporter’s note 5, at p. 96; Humble Sand & Gravel Inc. v. Gomez, 146 S.W.3d 170, 190 (Tex. 2004). See also Webb at 9 (citing Restatement 2d Torts, § 388 (b), com. k, at pp. 306-307) (“Courts have interpreted section 388, subdivision (b), to mean that if the manufacturer reasonably believes the user will know or should know about a given product’s risk”).

[6] Relevant considerations may include the general dissemination of knowledge of relevant risks, the intermediary’s knowledge of those risks, and the intermediary’s reputation for care. Webb at 20.

[7] Webb at 3, 23.

[8] See Webb at 17-18 (disapproving of the holding in Stewart v. Union Carbide Corp., 190 Cal. App. 4th 23, 29-30 (2010)).

[9] See also Webb at 12 (quoting from Restatement 3d Torts, Products Liability, § 5, com. c, at p. 134) (“Inappropriate decisions regarding the use of such materials are not attributable to the supplier of the raw materials but rather to the fabricator that puts them to improper use.”).

[10] citing approvingly Cimino v. Raymark Industries, Inc., 151 F.3d 297, 334 (5th Cir. 1998) (holding that raw asbestos supplier did not need to warn asbestos product manufacturer Fibreboard, which was “a sophisticated, expert, and knowledgeable manufacturer” of insulation products, about asbestos risks); Higgins v. E.I. DuPont de Nemours & Co., 671 F. Supp. 1055, 1061-1062  (D. Md. 1987) (exculpating supplier when purchaser was a highly sophisticated manufacturer with knowledge from independent sources, as well as its suppliers), aff’d, 863 F.2d 1162 (4th Cir. 1988).

Posted in Asbestos, Silica, Sophisticated User | Comments Off on The Webb of Unsophistication in Products Liability Law

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