TORTINI

For your delectation and delight, desultory dicta on the law of delicts.

Just Dissertations

October 27th, 2023

One of my childhood joys was roaming the stacks of libraries and browsing for arcane learning stored in aging books. Often, I had no particular goal in my roaming, and I flitted from topic to topic. Occasionally, however, I came across useful learning. It was in one college library, for instance, that I discovered the process for making nitrogen tri-iodide, which provided me with some simple-minded amusement for years. (I only narrowly avoided detection by Dean Brownlee for a prank involving NI3 in chemistry lab.)

Nowadays, most old book are off limits to the casual library visitor, but digital archives can satisfy my occasional compulsion to browse what is new and compelling in the world of research on topics of interest. And there can be no better source for new and topical research than browsing dissertations and theses, which are usually required to open new ground in scholarly research and debate. There are several online search tools for dissertations, such as ProQuest, EBSCO Open Dissertation, Theses and Dissertations, WorldCat Dissertations and Theses, Open Access Theses and Dissertations, and Yale Library Resources to Find Dissertation.

Some universities generously share the scholarship of their graduate students online, and there are some great gems freely available.[1] Other universities provide a catalogue of their students’ dissertations, the titles of which can be browsed and the texts of which can be downloaded. For lawyers interested in medico-legal issues, the London School of Hygiene & Tropical Medicine has a website, “LSHTM Research Online,” which is delightful place to browse on a rainy afternoon, and which features a free, open access repository of research. Most of the publications are dissertations, some 1,287 at present, on various medical and epidemiologic topics, from 1938 to the present.

The prominence of the London School of Hygiene & Tropical Medicine makes its historical research germane to medico-legal issues such as “state of the art,” notice, priority, knowledge, and intellectual provenance. A 1959 dissertation by J. D. Walters, the Surgeon Lieutenant of the Royal Nayal, is included in the repository.[2] Walters’ dissertation is a treasure trove of the state-of-the-art case – who knew what when – about asbestos health hazards, written before litigation distorted perspectives on the matter. Walters’ dissertation shows in contemporaneous scholarship, not hindsight second guessing, that Sir Richard Doll’s 1955 study, flawed as it was by contemporaneous standards, was seen as establishing an association between asbestosis (not asbestos exposure) and lung cancer. Walters’ careful assessment of how asbestos was actually used in British dockyards documents the differences between British and American product use. The British dockyards had full-time laggers since 1946, and they used spray asbestos, asbestos (amosite and crocidolite) mattresses, as well as lower asbestos content insulation.

Walters reported cases of asbestosis among the laggers. Written four years before Irving Selikoff published on an asbestosis hazard among laggers, the predominant end-users of asbestos-containing insulation, Walters’ dissertation preempts Selikoff’s claim of priority in identifying the asbestos hazard, and it shows that large employers, such as the Royal Navy, and the United States Navy, were well aware of asbestos hazards, before companies began placing warning labels. Like Selikoff, Walters typically had no information about worker compliance with safety regulations, such as respiratory use. Walters emphasized the need for industrial medical officers to be aware of the asbestosis hazard, and the means to prevent it. Noticeably absent was any suggestion that a warning label on bags of asbestos or boxes of pre-fabricated insulation were relevant to the medical officer’s work in controlling the hazard.

Among the litigation relevant finds in the repository is the doctoral thesis of Francis Douglas Kelly Liddell,[3] on the mortality of the Quebec chrysotile workers, with most of the underlying data.[4] A dissertation by Keith Richard Sullivan reported on the mortality patterns of civilian workers at Royal Navy dockyards in England.[5] Sullivan found no increased risk of lung cancer, although excesses of asbestosis and mesothelioma occurred at all dockyards. A critical look at meta-analyses of formaldehyde and cancer outcomes in one dissertation shows prevalent biases in available studies, and insufficient evidence of causation.[6]

Some of the other interesting dissertations with historical medico-legal relevance are:

Francis, The evaluation of small airway disease in the human lung with special reference to tests which are suitable for epidemiological screening; PhD thesis, London School of Hygiene & Tropical Medicine (1978) DOI: https://doi.org/10.17037/PUBS.04655290

Gillian Mary Regan, A Study of pulmonary function in asbestosis, PhD thesis, London School of Hygiene & Tropical Medicine (1977) DOI: https://doi.org/10.17037/PUBS.04655127

Christopher J. Sirrs, Health and Safety in the British Regulatory State, 1961-2001: the HSC, HSE and the Management of Occupational Risk, PhD thesis, London School of Hygiene & Tropical Medicine (2016) DOI: https://doi.org/10.17037/PUBS.02548737

Michael Etrata Rañopa, Methodological issues in electronic healthcare database studies of drug cancer associations: identification of cancer, and drivers of discrepant results, PhD thesis, London School of Hygiene & Tropical Medicine (2016). DOI: https://doi.org/10.17037/PUBS.02572609

Melanie Smuk, Missing Data Methodology: Sensitivity analysis after multiple imputation, PhD thesis, London School of Hygiene & Tropical Medicine (2015) DOI: https://doi.org/10.17037/PUBS.02212896

John Ross Tazare, High-dimensional propensity scores for data-driven confounder adjustment in UK electronic health records, PhD thesis, London School of Hygiene & Tropical Medicine (2022). DOI: https://doi.org/10.17037/PUBS.046647276/

Rebecca Jane Hardy, (1995) Meta-analysis techniques in medical research: a statistical perspective. PhD thesis, London School of Hygiene & Tropical Medicine. DOI: https://doi.org/10.17037/PUBS.00682268

Jemma Walker, Bayesian modelling in genetic association studies, PhD thesis, London School of Hygiene & Tropical Medicine (2012) DOI: https://doi.org/10.17037/PUBS.01635516

  1. Marieke Schoonen, (2007) Pharmacoepidemiology of autoimmune diseases.PhD thesis, London School of Hygiene & Tropical Medicine. DOI: https://doi.org/10.17037/PUBS.04646551

Claudio John Verzilli, Method for the analysis of incomplete longitudinal data, PhD thesis, London School of Hygiene & Tropical Medicine (2003)  DOI: https://doi.org/10.17037/PUBS.04646517

Martine Vrijheid, Risk of congenital anomaly in relation to residence near hazardous waste landfill sites, PhD thesis, London School of Hygiene & Tropical Medicine (2000) DOI: https://doi.org/10.17037/PUBS.00682274


[1] See, e.g., Benjamin Nathan Schachtman, Traumedy: Dark Comedic Negotiations of Trauma in Contemporary American Literature (2016).

[2] J.D. Walters, Asbestos – a potential hazard to health in the ship building and ship repairing industries, DrPH thesis, London School of Hygiene & Tropical Medicine (1959); https://doi.org/10.17037/PUBS.01273049.

[3]The Lobby – Cut on the Bias” (July 6, 2020).

[4] Francis Douglas Kelly Liddell, Mortality of Quebec chrysotile workers in relation to radiological findings while still employed, PhD thesis, London School of Hygiene & Tropical Medicine (1978); DOI: https://doi.org/10.17037/PUBS.04656049

[5] Keith Richard Sullivan, Mortality patterns among civilian workers in Royal Navy Dockyards, PhD thesis, London School of Hygiene & Tropical Medicine (1994) DOI: https://doi.org/10.17037/PUBS.04656717

[6] Damien Martin McElvenny, Meta-analysis of Rare Diseases in Occupational Epidemiology, PhD thesis, London School of Hygiene & Tropical Medicine (2017) DOI: https://doi.org/10.17037/PUBS.03894558

Selikoff Timeline & Asbestos Litigation History (Revised)

February 26th, 2023

The critics and cheerleaders of Dr. Irving John Selikoff agree that he was a charming, charismatic, and courageous man, a compassionate physician, and a zealous advocate for worker safety and health. The consensus falls apart over the merits of Selikoff’s actual research, his credentials, and his advocacy tactics.[1]

Selikoff’s collaborators, protégés, and fellow travelers tend to brand any challenge or criticism as “scurrilous.”[2] They attack the messenger for attacking the messenger, who attacked the messenger, u.s.w.. Certainly in his lifetime, Selikoff attracted harsh and vituperative attacks, some of which were mean-spirited and even anti-semitic. Although I am not a Jew, I am, following Jonathan Miller, “Jew-ish, just not the whole hog.” As such, I can appreciate the ire of some of Selikoff’s defenders over the nature of these attacks.

Selikoff’s legitimate achievements should not be diminished, and his defenders are correct to bemoan the ad hominem attacks on Selikoff, based upon ethnicity and personal characteristics. Some attacks, however, were merited. The time has come to stop evaluating the message by its messenger, and to pay attention to the evidence. Selikoff’s defenders and hagiographers are wrong, therefore, to claim that Selikoff’s training, scientific acumen, advocacy, and false positive claims are somehow off limits. Selikoff advanced his scientific and political agenda by promoting his reputation and work, and he thus put his credentials, work, and methods into issue. Selikoff’s contributions to public health in publicizing the dangers of high exposure, long-term asbestos exposure do not privilege every position he took. Selikoff is a difficult case because he was wrong on many issues, and his reputation, authority and prestige ultimately became much greater than the evidence would ultimately support.

Although Selikoff died in 1992, his legacy lives on in the perpetual litigation machine that is run by the litigation industry and Selikoff’s juniors and imitators, who serve as testifying expert witnesses. One of Selikoff’s great achievements, the federalization of worker safety and health in the Williams-Steiger Occupational Safety and Health Act of 1970,[3] languishes because of inadequate resources for enforcement and frivolous efforts to address non-existent problems, such as the lowering of the crystalline silica permissible exposure limit. Activists have taken to redress the problem by advocating for nugatory “warnings” from remote suppliers, in the face of employer failures to monitor and supervise workers and the workplace, and to provide administrative, engineering, and personal protective controls.

Selikoff diverted regulatory attention from asbestos fiber type, with the result that the OSHA PELs were lowered for both chrysotile and amphibole asbestos, thus leaving the ultra-hazardous crocidolite asbestos in use. Selikoff perpetuated a good deal of mischief and misinformation to keep his myth that all fiber types are the same (and that “asbestos is asbestos is asbestos”). In doing so, he actually hurt many people.

An anonymous snark on Wikipedia noted some of my blog posts about Selikoff, and offered the lame criticism that my writings were not peer reviewed.[4] The snark (Tweedale?) was of course correct on this limited point, but generally in this field, peer review is worth a warm bucket of spit. And there is the matter that the anonymous critic was offering a criticism that was also not peer reviewed.

Selikoffophiles continue to tell tall tales about Selikoff’s work and in particular about how he became involved in asbestos medicine.[5]  So here is a timeline of Selikoff’s life and asbestos work, an update of an earlier version. If anyone notes an error or inconsistency in this time line, please let me know, provide better sources, and ask for a correction. If I am wrong, I will readily note the correction and eat my words, but I am sure they will be quite digestible.[6]

1915-01-15.  Irving John Selikoff was born as Irving Selecoff in the brain basket of America, Brooklyn, New York, to Abraham and Matilda (Tillie) Selecoff.[7]  His father, Abraham, was born on April 6, 1885, in the Kyiv oblast of what is now Ukraine.[8]

1920.  According to the 1920 census, the Selekoff family lived at 816 179th Street, in the Bronx. Irving’s father, Abraham, was self-employed as a hat manufacturer, doing business later as United Headwear Corporation.[9]  The family had two children, Irving, and his older sister, Gladys.

1930. The asbestos workers’ journal published a story about the (non-malignant) risks of asbestos exposure.[10]

1935-06.  Selikoff was graduated from Columbia University, with a B.S. degree.

1935-12-24.  Selikoff arrived in Boston from Yarmouth, Nova Scotia, on the S.S. Yarmouth, on December 24, 1935, apparently en route from Scotland.

1936.  Dr. Alice Hamilton, physician and noted labor activist, wrote in a labor union journal to urge more attention to industrial dusts, the knowledge of dangers of which was[11] “still very limited except with regard to silica and asbestos.”

1936-08.  Selikoff sat for the university entrance boards in Scotland.

1936-09-27.  Selikoff married Lydia Kapilian, in the Bronx.[12]

1936-10-12. Irving Selecoff arrives in Liverpool, from New York, aboard the S.S. Samaria.

1936-10.  Selikoff entered Anderson’s College of Medicine, in Glasgow, Scotland.[13]

1936-12-28. Irving John Selikoff is listed in the UK, Medical and Dental Students Registers, 1882-1937, registration date December 28, 1936, in Scotland.

1936.  Alice Hamilton published an article on the risks and benefits of industrial asbestos use, in a key labor unionist journal. Alice Hamilton, “Industrial Poisons,” 43 The American Federationist 707-13 (1936).

1937-04-26.  Selikoff arrived in New York, from Greenock, Scotland, on the S.S. Carinthia.

1937-10-10. Irving Selecoff arrived in Glasgow, Scotland, from New York City, on board the SS. Cameronia.

1938-07-14.  Irving J. Selecoff arrived in Quebec, Canada, from Greenock, Scotland, on the S.S. Duchess Atholl.

1939-06-24.  Irving Selecoff arrived in New York, from Liverpool, London, on the S.S. Mauretania. Because of the developing hostilities in Europe, Selikoff apparently did not return to Glasgow, in the fall of 1939.

1939-11.  Unable to return to Scotland, Selikoff applied to Melbourne University for coursework to finish his non-degree course of qualification for medication practice in the United Kingdom.[14]

1940-03-04.  Selecoff (as his name was then often spelled) arrived in Vancouver from Sydney, on the S.S. Aorangi.

1940-04.  Irving Selikoff was living with his parents, and his married sister and her family, in Rye, New York, according to the 1940 census, taken on April 10, 1940.

1940-05-27.  Selikoff enrolled in the University of Melbourne as a non-degree student, for coursework to finish his qualification for medical license in Scotland.[15]

1941-03-24.  John Selecoff arrived in Los Angeles, California, from Sydney, Australia, on the S.S. Mariposa. According to Bartrip, Selikoff had completed his last course at the University of Melbourne, for his “tailor-made” program, on

1941-02-27. Selikoff never gained entrance to a degree program at Melbourne.[16]

1941-04-21. Irving John Selikoff registered for the draft, in Port Chester, New York.

1941.  Selikoff joined the Mount Sinai Hospital as an assistant in Anatomy and Pathology, “immediately following his university training.”[17]

1943-11-01.  Selikoff received an M.D., degree from Middlesex University,[18] after two semesters in residence. This school was regarded as “substandard” and not approved by the American Medical Association. The school lost its accreditation in 1946, and closed.[19] After receiving this degree, Selikoff continued his efforts to return to Scotland, to complete his “triple qualification” for medical licensure in Scotland, which would allow him to sit for the licensing examination in one of the United States.

1943 – 1944.  Selikoff served as an intern, at the Beth Israel Hospital, in Newark, New Jersey.[20]

1944 – 1946. Selikoff served as a resident, at the Sea View Hospital, in New York City.[21]

1945-04-23.  Selikoff was listed in the British Medical Registry, based upon his qualification by the Scottish Conjoint Board for his work at Anderson’s and his non-degree work at the University of Melbourne.[22]

1943-06-02. Irving J Selecoff arrived in Montreal, Quebec, Canada, from Liverpool, aboard the S.S. Axel Johnson.

1945-06-02.  Selikoff arrived in Montreal, Quebec, from Liverpool, England, on the S.S. Axel Johnson.

1945-12-21. Selikoff’s mother, Tillie, died.

1946-02.  Selikoff married Celia Schiffrin in Manhattan.[23]  It was the second marriage for both bride and groom.

1947.  After having left Mt. Sinai Hospital, in 1943, for an internship and a residency, Selikoff resumed his association with Mt. Sinai Hospital.[24]

1947-06-30. Selikoff’s father, Abraham Selecoff, married Anna Susser, in Manhattan.[25]

1949.  Selikoff opened a medical office at 707 Broadway, Paterson, New Jersey,[26] not far from a factory run by the Union Asbestos and Rubber Company (UNARCO). In the same year, the Selikoffs were living at 965 Fifth Avenue, near 78th Street, in Manhattan.[27]

1950.  Selikoff’s medical practice in Paterson, New Jersey, afforded him the opportunity to observe “the incidence of lung disease among workers at the Union Asbestos and Rubber Company (UNARCO),”[28] which operated one of its factories in Paterson.

1950-04-05. Irving J. Selikoff and his wife Celia resided at 93 Broadway, Paterson, New Jersey, USA, according to the 1950 census. By the early 1950s, Selikoff and his wife had moved to 505 Upper Boulevard, Ridgewood, New Jersey.

1951.  New Jersey lawyer Carl Gelman retained Dr. Irving Selikoff to examine 17 workers from the Paterson plant of Union Asbestos and Rubber Company (UNARCO). Gelman filed workers’ compensation claims on behalf of the UNARCO workers.[29]

1952.  Supported by Selikoff’s report, UNARCO worker Anton Szczesniak settled his worker’s compensation case, involving “intestinal cancer,” for $2,000 in 1952.[30] Selikoff published data on the carcinogenicity of amosite in 1972,[31]  a delay of twenty years.[32]

1952.  Selikoff and colleagues published the results of a clinical trial of isoniazid for tuberculosis patients.[33]

1952.  Selikoff was featured in Life magazine coverage of isoniazid, a chemotherapy for tuberculosis.[34]

1952.  Selikoff was an assistant attending physician for thoracic diseases in the department of thoracic diseases at Mt. Sinai Hospital. In this year, Selikoff delivered the monthly Physiological Chemistry Seminar lecture at Mt. Sinai Hospital on: “Antitubercular Hydrazines,” along with Drs. H. H. Fox and Richard J. Schnitzer, of Hoffman-La Roche.

1954.  UNARCO closed its Paterson, New Jersey plant, and moved it to Tyler, Texas.[35]

1955.  Selikoff received the Albert Lasker Clinical Medical Research Award for his work on the clinical trial of isoniazid to treat tuberculosis, along with Walsh McDermott and Carl Muschenheim, of the Hoffmann-La Roche Research Laboratories, and Edward H. Robitzek, of the Squibb Institute for Medical Research.[36]

1955.  Selikoff’s involvement in the isoniazid clinical trials continued to attract media attention. His first television appearance was panned, but he would later develop considerable public speaking skills.[37]

1955.  Sir Richard Doll published his epidemiologic study of lung cancer among British asbestos workers.[38]  This study was known to Selikoff, who relied upon it in his litigation reports to support the compensation claims of asbestos workers in the 1950s.[39]

1955. In 1955, American labor unions were well aware of the claim that asbestos causes lung cancer. Herbert K. Abrams, union physician and the Medical Director of Local 25 Chicago, Building Service Employees International Union, concluded that asbestos causes cancer in a prominent union journal.[40]

1956.  Selikoff became an associate attending physician for thoracic disease at Mt. Sinai Hospital.

1957.  For many years, Frederick Legrand had been a pipecoverer and asbestos worker for asbestos contracting firms. In February 1956, Legrand filed a successful claim for worker’s compensation for disability due to asbestosis.[41] Attorney William L. Brach filed perhaps the first civil action (as opposed to worker’s compensation claim), on behalf of LeGrand, against Johns-Manville, for asbestos-related disease, on July 17, 1957. Frederick LeGrande v. Johns-Manville Prods. Corp., No. 741-57 (D.N.J.).[42] Trial commenced on March 4, 1959, before the Hon. Honorable Reynier J. Wortendyke, Jr. In the middle of trial, Johns-Manville (JM)  settled the case for $35,000.[43] According to various accounts, JM badly mishandled the defense by falsely asserting that it had no knowledge of potential asbestosis hazards to end-users such as LeGrand. The defense had the dual liability of both being untrue and depriving JM of affirmative defenses of contributory negligence and assumption of risk. JM was apparently able to obtain a stipulation that LeGrand’s condition was not the result of asbestos in JM’s product, which JM used to hide the JM settlement from subsequent claimants. Frederick Legrand died in the fall of 1959.[44]

1957-07. The asbestos insulators’ union’s periodical, distributed to its members, notes that “[t]he problem of hazardous materials was again discussed with the importance of using preventative measures to eliminate inhalation. It is suggested that, when working under dusty conditions, respirators should be used at all times and gloves whenever conditions warrant.”[45]

1957-10. President Sickles, at the International Convention of the Asbestos Heat, Frost and Insulators Union, reported to his union’s delegates that he, “[b]eing well aware of the health hazards in the Asbestos industry, requested authority for the General Executive Board to make a study of the health hazards … that will enable the Board to adopt any policies that will tend to protect the health of our International membership.”[46]

1960.  Dr. J. Christopher Wagner published a case series of mesothelioma among persons exposed to crocidolite, in the region of South Africa where crocidolite is mined and milled. After this publication, the causal role of crocidolite became quickly accepted in the scientific and medical community.[47]

1960-1961.  Selikoff published two papers on the patho-physiology of asbestosis, based on data from 17 UNARCO workers,[48] obtained from his medico-legal evaluations of the men.[49]

 

Irving and Celia Selikoff from their 1961 Brazilian visa documents

1961-05. Asbestos insulators’ union discussed collaboration with scientists to discuss lung cancer and other diseases among its membership.[50]  Union members, intensely interested in legal redress for compensation, became aware of Selikoff’s research hypothesis in advance of Selikoff’s survey of the members’ smoking habits, which the workers had a motive to under report.

1961-11. The Asbestos insulators’ union’s magazine featured a full page warning of the grim reaper urging insulators to “Wear Your Respirator.”[51] The warning was developed under the guidance of C. V. Krieger of Local No. 28, Safety Superintendent at the Long Beach Naval Shipyard.

1962-07-12.  Selikoff visited Asbestos Corporation of America, an intermediary broker of asbestos fibers. In a memorandum Selikoff prepared from his discussions with Wade I. Duym, the general manager of the company, and others, he detailed the widespread use of amphibole asbestos fibers in a variety of products. He noted that amosite was used primarily in the insulation trade, and that it was the asbestos “of choice” for sprayed-on products, high temperature insulating cements and pipecovering (magnesia and calcium silicates). Selikoff described crocidolite, from Africa and Bolivia, as a strong, chemically resistant, relatively inexpensive fiber that was used in asbestos cement products, and in Kent cigarette filters.

1962-09. Selikoff presented to a meeting of the Asbestos Workers, to request their help in conducting his study of insulator mortality and morbidity. Irving Selikoff, “Speech at Asbestos Workers’ Union Annual Meeting,” The Asbestos Worker 8 (Sept. 1962).

1962.  Asbestos insulators’ union acknowledged that its leadership has been collaborating with Dr. Irving Selikoff.[52] In September 1962, Selikoff and colleagues began physical examinations of members of the New York and New Jersey locals.[53] `

1962.  In a publication for Naval personnel, with virtually no circulation in the general industrial community, the United States government acknowledged that shipyard and on-board exposures greatly exceeded the ACGIH’s then current TLV for asbestos.[54]

1963.  Selikoff established the Environmental Sciences Laboratory, later known as the Division of Environmental and Occupational Medicine, in would become the Mt. Sinai School of Medicine’s Department of Community Medicine.

1963-02. The asbestos insulation workers’ union announces that it has begun a large-scale program of examinations for asbestos-related disease in the members of the New York and New Jersey locals.[55]

1964.  Selikoff published his first article on cancer in a cohort of union asbestos insulators from New York and New Jersey.[56] Selikoff and his co-authors failed to disclose funding from the union, or the union members’ awareness of the research hypotheses under investigation.

1964.  In October 1964, Selikoff organized and co-chaired (with Dr. Jacob Churg) a conference, “The Biological Effects of Asbestos, for the New York Academy of Sciences, in New York City. The conference featured presentations and papers from many international investigators. Several presenters, including Selikoff, documented the prevalent use of amphibole asbestos (both crocidolite and amosite) in the United States.[57]

1965.  Papers presented at the 1964 New York Academy of Sciences conference were published in late 1965, in a non-peer reviewed publication, volume 132, of the Annals of the New York Academy of Sciences.

1965.  Selikoff testified on behalf of an insulator who claimed that asbestos exposure caused his colorectal cancer.[58] Forty years later, the Institute of Medicine (now the National Academy of Medicine) comprehensively reviewed the extant evidence and announced that the evidence was “suggestive but not sufficient to infer a causal relationship between asbestos exposure and pharyngeal, stomach, and colorectal cancers.”[59] None of Selikoff’s publications, including those on asbestos and colorectal cancer, disclosed his litigation testimonies for claimants.

1966 – 1972.  Selikoff continued to testify frequently in civil action and in worker compensation proceedings for claimants who alleged asbestos-related injuries.[60]  In 1972, Andrew Haas, President of the asbestos workers’ union thanked Selikoff for his “frequent” expert witness testimony on behalf of union members.[61]

1967-09. In an address to the International Association of Heat and Frost Insulators and Asbestos Workers, Selikoff acknowledged the widespread use of amosite, particularly in shipyards, the absence of lung cancer among non-smoking insulation workers, and the failure of more than 9 out of 10 insulators to wear respirators on dusty jobs. See Irving J. Selikoff, Address to the delegates of the twenty-first convention of the International Association of Heat and Frost Insulators and Asbestos Workers at 8, 9-10, 24 (Chicago, Illinois, Sept. 1967) (“I have yet to see a lung cancer in an asbestos worker who didn’t smoke cigarettes. … “[C]ancer of the lung could be wiped out in your trade if you people wouldn’t smoke cigarettes, period.”).

1968-09.  Selikoff “warns” the United States of asbestos hazards that existed and continue to exist in the government’s shipyards.[62] The warning was largely about seeking media attention by Selikoff; the government, and especially the Navy, had long known of asbestos hazards.[63]

1968-05.  Selikoff testified that all fibers are equally potent, to Congress in support of a bill that would become the OSH Act.

1968. The Mount Sinai School of Medicine opened in 1968, as part of The City University of New York. The first class in the newly formed medical school had 36 students in the entering class. The school was chartered in 1963. It is now known as the Icahn School of Medicine at Mount Sinai.

1969.  Selikoff served as president of the New York Academy of Sciences.

1969-05. Selikoff acknowledged that only four percent of insulators wore a mask despite extensive warnings.[64]

1972.  In a published study of variability in the interpretation of chest radiographs, Selikoff was shown consistently to over-read chest radiographs for potential asbestos-related abnormalities, when compared with other pulmonary experts on pneumoconiosis.[65]

1973.  Selikoff testified for the government in United States v. Reserve Mining Co., No. 5-72 Civil 19 (D. Minn. Sept. 21, 1973).[66]  On September 20, Selikoff testified about the town where Reserve Mining’s taconite mine was located: “I think we ought to have a sign at the entrance to sections of the town ‘Please Close Your Windows Before Driving Through’. I certainly would want to close mine.” When his testimony continued the following day, Selikoff acknowledged that he had been “facetious” in his previous day’s testimony.[67]

1974. After having given “facetious” testimony, Selikoff reduced his testifying activities. Marxist historians Jock McCulloch and Geoffrey Tweedale have falsely suggested that Selikoff “avoided the drama of the courtroom and the role of the expert witness” because of the drain on his time, his desire to avoid antagonizing industry, and his need to prevent discovery of trade union medical files.[68]

1974-05-20.  Selikoff’s father, Abraham Selecoff, died in Florida.[69]

1974.  Selikoff published a review on asbestos and gastrointestinal cancer, without disclosing his funding from the asbestos insulation union or his receipt of fees for litigation work in which he maintained a causal relationship in advance of any data.[70]

1978-07.  The National Cancer Institute (NCI) invited Dr. Hans Weill to co-chair a conference on lung cancer surveillance. Ten days later, the NCI retracted the invitation. When Weill inquired about the reasons for the shoddy treatment, an NCI official (Margaret Sloan) told him that “representatives of organized labor” objected to his participation. Sloan’s superior at NCI stated that Selikoff had raised the question whether the conference’s recommendations would lose credibility if Weill were a co-chair. When asked about his role in this sordid affair, Selikoff equivocated, saying he had “simply” said that “[s]ince Weill was a consultant to the Asbestos Information Center, I didn’t know if this would enhance or detract from hearing all points of view.”[71]

1979-11-05.  Barry Castleman, career testifier for the asbestos lawsuit industry, prepared a memorandum to Selikoff to urge him to resist allowing discovery of asbestos worker union members’ knowledge of the hazards of asbestos.[72]

1980-07-29.  A Newsday journalist reports that Selikoff is loath to talk about himself, and that he threatens to cut short the interview when asked about his background.[73]

1981.  Sir Richard Doll and Professor Richard Peto published a rebuttal to wildly exaggerated asbestos risk assessments based upon Selikoff’s insulator studies.[74]

1984.  Selikoff prepared a report on his group’s epidemiologic study of Electric Boat employees, who were engaged in the construction of submarines.[75]  The data did not fit the Mt. Sinai Catechism of large increased risks.[76]  Selikoff never published these data in a medical journal or a textbook.[77]

1985-03-10. Selikoff retires from Mount Sinai Medical School.[78]

1986-03.  Selikoff’s wife, Celia, died.[79]

1987 – 1989.  Selikoff’s insulator cohort study data took on an outsize importance in litigation because of plaintiffs’ heavy reliance upon his studies in court cases. When litigants asked for these data, Selikoff consistently refused to share, which necessitated federal court intervention.[80]

1988.  Selikoff and William Nicholson prepared a manuscript report of a study of the mortality experience at a New Jersey asbestos product manufacturing plant of Johns Manville.[81] Their report documented the substantial use of crocidolite in various products, and the resulting horrific mesothelioma mortality at this plant. Selikoff never published this crocidolite-exposed cohort, although he tirelessly republished his insulator cohort data repeatedly with the misrepresentation that the insulators were not exposed to crocidolite.

1990-06-07. Selikoff conspired with Ron Motley and others to pervert the course of justice by inviting judges with active asbestos dockets to a one-sided conference on asbestos science, and to pay for their travel and lodging. In his invitation to this ex parte soirée, Selikoff failed to mention that the funding came from plaintiffs’ counsel.[82]  Shortly after the Third Circuit spoke on the Mt. Sinai dress rehearsal for the plaintiffs’ asbestos property damage trial case, Judge Jack Weinstein issued a curious mea culpa. Because of a trial in progress, Judge Weinstein did not attend the “Third Wave” conference, but he and a state judge (Justice Helen Freedman) attended an ex parte private luncheon meeting with Dr. Selikoff. Here is how Judge Weinstein described the event:

“But what I did may have been even worse [than Judge Kelly’s conduct that led to his disqualification]. A state judge and I were attempting to settle large numbers of asbestos cases. We had a private meeting with Dr. Irwin [sic] J. Selikoff at his hospital office to discuss the nature of his research. He had never testified and would never testify. Nevertheless, I now think that it was a mistake not to have informed all counsel in advance and, perhaps, to have had a court reporter present and to have put that meeting on the record.”[83]

What is curious is that Judge Weinstein, usually a careful judge and scholar, was so incorrect about Dr. Selikoff’s having never testified. His error could have been avoided by a simple search in the Westlaw or LexisNexis databases. Judge Weinstein’s account points directly to Dr. Selikoff as the source for this falsehood.[84]

1990-10-02.  Selikoff wrote to Judge Jack Weinstein and Justice Helen Freedman, presumably after the “regrettable” ex parte luncheon meeting, to hold forth with his views on the health effects of occupational and para-occupational exposure to asbestos.

1992-05-20.  Selikoff died several months before the U.S. Court of Appeals for the Third Circuit condemned the Selikoff-Motley conspiracy.[85]

2013.  Follow up of the national insulator cohort fails to support multiplicative interaction between smoking and asbestos for lung cancer outcomes in the absence of asbestosis.[86]


[1] Rachel Maines, Asbestos and Fire: Technological Tradeoffs and the Body at Risk 155 (2005) (“charming, courageous, and compassion medical professional with more charisma than credentials”).

[2] Jock McCulloch & Geoffrey Tweedale, Shooting the messenger: the vilification of Irving J. Selikoff,” 37 Internat’l J. Health Services 619 (2007); “Scientific Prestige, Reputation, Authority & The Creation of Scientific Dogmas” (Oct. 4, 2014); David Egilman, Geoffrey Tweedale, Jock McCulloch, William Kovarik, Barry Castleman, William Longo, Stephen Levin, and Susanna Rankin Bohme, “P.W.J. Bartrip’s Attack on Irving J. Selikoff,” 46 Am. J. Indus. Med. 151, 152 (2004) [Egilman (2004)].

[3] 84 Stat. 1590, et seq., 29 U.S.C. § 651, et seq.

[4]The Legacy of Irving Selikoff & Wicked Wikipedia” (Mar. 1, 2015). See also “Hagiography of Selikoff” (Sept. 26, 2015); “Historians Should Verify Not Vilify or Abilify – The Difficult Case of Irving Selikoff” (Jan. 4, 2014).

[5] See, e.g., Philip Landrigan, “Stephen Levin, MD, honored with the Collegium Ramazzini’s Irving J. Selikoff Memorial Award in 2009.”

[6] See Wikipedia, “Irving Selikoff” (last visited Dec. 4, 2018).

[7] Kings County Birth Certificate no. 4595 (Jan. 15, 1915). His family later adopted the surname Selikoff. Irving Selikoff’s social security records list his father as Abraham Selikoff and his mother as Tillie Katz.

[8] Abraham Selecoff World War II draft registration, serial no. U1750.

[9] Abraham Selecoff World War II draft registration, serial no. U1750.

[10] See “The Asbestos Menace,” The Asbestos Worker 9-11 (Sept. 1930).

[11] Alice Hamilton, “Industrial Poisons,” American Federationist (1936). This journal was “The Official Magazine of the American Federation of Labor.”

[12] Bronx marriage certificate no. 8246 (1936); Bronx marriage license no. 8652 (1936). Irving’s parents were listed as Abraham Selikoff and Tillie Katz. His residence was at 109 W. 112th Street. Lydia was listed as the daughter of Mendel Kapilian and Bessie Weller. Irving and Lydia were divorced sometime between 1939 and 1941. The marriage certificates stated Lydia to have been 21 years old. Her Social Security records (SSN 112-052-2143), however, gave her birth date as April 22, 1917, (making her 19), and subsequent marriage names of Quint and Teichner.

[13] This and other details of Selikoff’s medical education come from Peter Bartrip’s exposé. Although Bartrip’s research was attacked for its allegedly gratuitous attacks on Selikoff’s research prowess, Bartrip’s account of Selikoff’s medical education in Scotland, Australia, and the United States has gone largely unrebutted, and must for the present be accepted. Peter W.J. Bartrip, “Irving John Selikoff and the Strange Case of the Missing Medical Degrees,” 58 J. History Med. 8 (2003) [Bartrip 2003]; Peter Bartrip, “Around the World in Nine Years: A Medical Education Revisited,” 59 J. History of Med. 135 (2004). One group of plaintiffs’ expert witnesses took Bartrip to task for not disclosing that he had served as a defense expert witness, but none of the complainants disclosed their substantial testimonial adventures for the litigation industry! While making some interesting points, these critics of Bartrip did not really contest his historical work on Selikoff: “Bartrip’s critiques of Anderson’s College (AC) and Middlesex University School of Medicine (MSUM) may be accurate, but are beside the point.” David Egilman, Geoffrey Tweedale, Jock McCulloch, William Kovarik, Barry Castleman, William Longo, Stephen Levin, and Susanna Rankin Bohme, “P.W.J. Bartrip’s Attack on Irving J. Selikoff,” 46 Am. J. Indus. Med. 151, 152 (2004).

[14] Bartrip 2003, at 15 & n.44-51.

[15] Bartrip 2003, at 17 & n.54-55.

[16] Bartrip 2003 at 18.

[17] William J. Nicholson & Alvin S. Teirstein, “Remembering Irving J. Selikoff,”  61 Mt. Sinai J. Med. 500 (1994) [Nicholson & Teirstein]. This account seems doubtful; Selikoff would not have an M.D. degree until 1943, and then from a school that was about to lose its accreditation.

[18] See Stephen Rushmore, “Middlesex University School of Medicine,” 230 New Engl. J. Med. 217 (1944).

[19] Anthony Seaton, “The Strange Case of Irving Selikoff,” 60 Occup. Med. 53 (2010); Peter W.J. Bartrip, “Irving John Selikoff and the Strange Case of the Missing Medical Degrees,” 58 J. History Med. 3, 27 & n.88-92 (2003) [cited as Bartrip].

[20] Bartrip 2003 at 22.

[21] Bartrip 2003 at 22.

[22] Bartrip 2003 at 21.

[23] New York County marriage license no. 3879 (Feb. 2, 1946). Celia had been married to Nathan Michaels in 1937. Manhattan Marriage License no. 21454 (1937).

[24] Nicholson & Teirstein.

[25] Manhattan Marriage License  21527 (1947).

[26] City Directory of Paterson, New Jersey at p. 218 (1949).

[27] Manhattan Telephone Directory (1949).

[28] George W. Conk, “Deadly Dust: Occupational Health and Safety as a Driving Force in Workers’ Compensation Law and the Development of Tort Doctrine,” 69 Rutgers L. Rev. 1140, 1154 & n. 136 (2017).

[29] Jon L. Gelman, “History of Asbestos and the Law” (Jan. 2, 2001). Carl Gelman was a life-long Paterson resident. His legal practice specialized in workers’ compensation, and he chaired state bar association’s workers’ compensation section for several years. His practice represented claimants from 1936, until his retirement in 1986. In the mid-1970s, with Karl Asch, Gelman’s firm sued asbestos suppliers to Raybestos Manhattan on behalf of multiple employees.Gelman died on February 24, 2009. “Obituary for Carl Gelman,” The Record/Herald News (Mar. 16, 2009); “163 Who Had Jobs at Raybestos Sue,” N.Y. Times (May 7, 1975). The suit for $326 million settled for $15.5 million.

[30] Barry I. Castleman, Asbestos: Medical and Legal Aspects at 142 (1984); Matt Mauney, “Unarco,” Mesothelioma Center (Nov. 2018). Of course, there were no data to support this claim in 1952. Selikoff was publically and positionally committed to his causal hypothesis as a conclusion well in advance of conducting any studies or having any supporting data.

[31] Irving J. Selikoff, E. Cuyler Hammond, and Jacob Churg, “The carcinogenicity of amosite asbestos,” 25 Arch. Envt’l Health 183 (1972). This 1972 publication was the first epidemiologic study on the carcinogenicity of amosite.

[32] David E. Lilienfeld, “The Silence: The Asbestos Industry and Early Occupational Cancer Research – A Case Study,” 81 Am. J. Pub. Health 791 (1991).

[33] Irving J. Selikoff, Edward H. Robitzek, and George G. Ornstein, “Treatment of pulmonary tuberculosis with hydrazine derivatives of isonicotinic acid,” 150 J. Am. Med. Ass’n 973 (1952).

[34] “TB Milestone,” Life (Mar. 3, 1952).

[35] Irving J. Selikoff, “Asbestos in Paterson, New Jersey and Tyler, Texas – A Tale of Two Cities,” Transcript of Lecture (Houston, Texas, Oct. 11, 1979).

[36] SeeIsoniazid for treating tuberculosis.”

[37] See “Medical Horizons,” Broadcasting * Telecasting at 14 (Nov. 21, 1955) (describing Selikoff as a plodding presenter). See alsoIrving Selikoff – Media Plodder to Media Zealot” (Sept. 9, 2014).

[38] Richard Doll, “Mortality from Lung Cancer in Asbestos Workers,”  12 Br. J. Indus. Med. 81 (1955).

[39] Selikoff letter to Thomas Mancuso (Mar. 30, 1989).

[40] Herbert K. Abrams, “Cancer in Industry,” American Federationist (1955). Dr. Abrams’ article was republished in many union newsletters. See Herbert K. Abrams, “Cancer in Industry,” 69 The Painter & Decorator 15, 16 (Mar. 1955); see also Lester Breslow, LeMar Hoaglin, Gladys Rasmussen & Herbert K. Abrams, “Occupations and Cigarette Smoking as Factors in Lung Cancer,” 44 Am. J. Pub. Health. 171, 171 (1954).

[41] A. C. & S., Inc. v. Asner, 104 Md. App. 608, 633, 657 A.2d 379 (Md. Ct. Spec. App. 1995).

[42] Paul Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial 236-39 (1985). According to Brodeur’s account, Johns-Manville’s defense was clever by halves. By claiming that the company had no knowledge that asbestos could be harmful to applicators such as LeGrand, the company deprived itself of assumption-of-risk and contributory negligence defenses.  The company also set itself up to be brutally contradicted by internal documents and communications that showed an awareness of hazards to pipecoverers. By the time J-M understood that the question of responsibility required acknowledging potential hazards that were in the control of the contractors themselves (such as the use of proper respirators and the like), the company filed for bankruptcy.

[43] Greg Gordon, “Health studies drew little action,” Star Tribune (Nov. 9, 2003); Wondie Russell, “Memorandum re Frederick LeGrande v. J-M Products Corp,”(Nov. 3, 1982).

[44] The Freehold Transcript and The Monmouth Inquirer (Freehold, New Jersey) at 17 (Thurs., Oct. 22, 1959).

[45] Asbestos Worker (July 1957).

[46] The Asbestos Worker at 1 (Oct, 1957) (reporting on the Asbestos Workers’ 19th General Convention).

[47] See J. Christopher Wagner, C.A. Sleggs, and Paul Marchand, “Diffuse pleural mesothelioma and asbestos exposure in the North Western Cape Province,” 17 Br. J. Indus. Med. 260 (1960); J. Christopher Wagner, “The discovery of the association between blue asbestos and mesotheliomas and the aftermath,” 48 Br. J. Indus. Med. 399 (1991).

[48] Arthur M. Langer, “Asbestos Studies in the Environmental Sciences Laboratory Mount Sinai School of Medicine 1965 – 1985: Investigations Reflecting State-of-the-Art; Contributions to the Understanding of Asbestos Medicine” (Unpublished MS, Nov. 7, 2008).

[49] Alvin S. Tierstein, A. Gottlieb, Mortimer E. Bader, Richard A. Bader & Irving Selikoff, “Pulmonary mechanics in asbestosis of the lungs,” 8 Clin. Res. 256 (1960); Mortimer E. Bader, Richard A. Bader & Irving Selikoff, “Pulmonary function in asbestosis of the lung; an alveolar-capillary block syndrome, 30 Am. J. Med. 235 (1961).

[50] Asbestos Worker (May 1961) (“The subject matter of Health Hazards was discussed and President Sickles reported on the possibility of an early meeting with people connected with the Medical Association for the purpose of running various tests on certain materials used by our membership in order to determine the extent of their contribution to lung cancer, silicosis, asbestosis, tuberculosis, etc.”).

[51] 15 The Asbestos Worker at 29 (Nov. 1961).

[52] Asbestos Worker (May 1962) (“President Sickles advised the Board as to a meeting which had been held with Vice President Rider and a Dr. Irving Selikoff, of the Paterson Clinic in connection with our issue on Health Hazards and the Committee on Health Hazards with the approval of the Board instructed President Sickles to continue his efforts in this direction.”)

[53] Asbestos Worker at 25 (Feb. 1963).

[54] Capt. H.M. Robbins & William T. Marr, “Asbestosis,” 19 Safety Review 10 (1962) (noting that asbestos dust counts of 200 million particles per cubic foot were not uncommon during insulation ripouts onboard naval vessels).

[55] “Progress Report on Health Hazards,” 16 The Asbestos Worker 25 (Feb. 1963) (the examination were arranged by President Carl Sickles, Vice-President Hugh Mulligan and Vice-President George Rider of the Health Hazards Committee).

[56] Irving J. Selikoff, Jacob Churg, and E. Cuyler Hammond, “Asbestos Exposure and Neoplasia,” 188 J. Am. Med. Ass’n 22 (1964).

[57] Irving J. Selikoff, Jacob Churg, E. Cuyler Hammond, “The Occurrence of Asbestosis among Insulation Workers in the United States,” 132 Ann. N.Y. Acad. Sci. 139, 142 (1965) (“In later specimens so obtained, crocidolite has also been found. Moreover, materials used for ship insulation, while containing the same amounts of asbestos as above, began in 1934 to have significant amounts of amosite in addition to chrysotile, because of the lighter weight of the material.”); Harrington, “Chemical Studies of Asbestos,” 132 Ann. N.Y. Acad. Sci. 31, 41 (1965) (reporting the finding of chrysotile and crocidolite asbestos in equal proportions in specimens of 85% magnesia pipe-covering sections); N.W. Hendry, “The Geology, Occurrences, and Major Uses of Asbestos 132 Annals N.Y. Acad. Sci. 12, 19 (1965) (reporting that, in 1963, the U.S. used  22,000 tons of amosite in manufactured products, and 17,000 tons of crocidolite in acid-resistent filters, packings, insulations, and certain types of lagging. United States Department of Commerce statistics show that for the years 1957 to 1962, more crocidolite was used in the United States than was amosite. In 1962, the use of blue was twice as great as that for brown. 132 Ann. N.Y. Acad. Sci. at 753, Table 17 (1965); see also id. at 762, Table 23 (1965) (South African blue fiber imports exceeded brown fiber imports, starting about 1954). See alsoSelikoff and the Mystery of the Disappearing Amphiboles” (Dec. 10, 2010); James R. Millette, Steven Compton, and Christopher DePasquale, “Microscopical Analyses of Asbestos-Cement Pipe and Board,” 66 The Microscope 3 (2018) (reporting analyses of cement formulations with substantial crocidolite).

[58]  “Health Hazard Progress Notes,”16 The Asbestos Worker 13 (May 1966) (“A recent decision has widened the range of compensable diseases for insulation workers even further. A member of Local No. 12. Unfortunately died of a cancer of the colon. Dr. Selikoff reported to the compensation court that his research showed that these cancers of the intestine were at least three times as common among the insulation workers as in men of the same age in the general population. Based upon Dr. Selikoff’s testimony, the Referee gave the family a compensation award, holding that the exposure to many dusts during employment was responsible for the cancer. The insurance company appealed this decision. A special panel of the Workman’s Compensation Board reviewed the matter and agreed with the Referee’s judgement and affirmed the compensation award. This was the first case in which a cancer of the colon was established as compensable and it is likely that this case will become an historical precedent.”)

[59] Jonathan Samet, et al., eds., Institute of Medicine Review of Asbestos: Selected Cancers (2006); see also Richard Doll & Julian Peto, Asbestos: Effects on health of exposure to asbestos 8 (1985) (“In particular, there are no grounds for believing that gastrointestinal cancers in general are peculiarly likely to be caused by asbestos exposure.”).

[60]Selikoff and the Mystery of the Disappearing Testimony” (Dec. 3, 2010); see, e.g., Barros v. United States, 147 F.Supp. 340, 343-44 (E.D.N.Y. 1957) (noting that Dr. Selikoff testified for seaman suing for maintenance and cure as a result of a slip and fall; finding for respondent against libelant); DeRienzo v. Passaic Fire Dept., reported in The News (Paterson, New Jersey) at 27 (Feb. 14, 1957) (Selikoff was a witness for the claimant); Bradshaw v. Twin City Insulation Co. Ltd., Indus. Ct. Indiana, Claim No. O.D.1454 (Oct. 14, 1966); Bradshaw v. Johns-Manville Sales Corp., Civ. Action No. 29433, E. D. Mich. S. Div. (July 6, 1967); Bambrick v. Asten Hill Mfg. Co., Pa. Cmwlth. Ct. 664 (1972); Tomplait v. Combustion Engineering Inc.., E. D. Tex. Civ. Action No. 5402 (March 4, 1968); Babcock & Wilcox, Inc. v. Steiner, 258 Md. 468, 471, 265 A.2d 871 (1970) (affirming workman compensation award for asbestosis); Rogers v. Johns-Manville Products Corp., Cir. Ct. Mo., 16th Jud. Cir., Div. 9, Civ. Action No. 720,071 (Feb. 19, 1971); Utter v. Asten-Hill Mfg. Co., 453 Pa. 401 (1973); Karjala v Johns-Manville Products Corp., D. Minn., Civ. Action Nos. 5–71 Civ. 18, and Civ. 40 (Feb. 8, 1973); Culp Industrial Insulation v. Commonwealth of Pennsylvania Workmen’s Compensation Appeal Board, 57 Pa. Commonwealth Ct. 599, 601-602 (1981).

[61] Andrew Haas, Comments from the General President, 18 Asbestos Worker (Nov. 1972); see also Peter W.J. Bartrip, “Irving John Selikoff and the Strange Case of the Missing Medical Degrees,” 58 J. History Med. 3, 27 & n.88-92 (2003) (citing Haas).

[62] Thomas O’Toole, “U.S. Warned of Asbestos Peril,” Wash. Post. A4 (Dec. 4, 1968).

[63]The United States Government’s Role in the Asbestos Mess” (Jan. 31, 2012). See also Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011); Capt. H.M. Robbins & W.T. Marr, “Asbestosis,” Safety Review (Oct. 1962); See also Walter Olson, “Asbestos awareness pre-Selikoff,” (Oct. 19, 2007).

[64] “Green Sheet,” The Asbestos Worker (May 1969).

[65] See Charles E. Rossiter, “Initial repeatability trials of the UICC/Cincinnati classification of the radiographic appearances of pneumoconioses,” 29 Brit. J. Indus. Med. 407 (1972) (among physician readers of chest radiographs, Selikoff was at the extreme of least likely to call a film normal (less than half the average of all readers), and the most likely to interpret films to show excess profusion of small irregular linear densities). SeeSelikoff and the Mystery of the Disappearing Asbestosis” (Dec. 6, 2010). The unions, of course, interested in maximizing compensation for their members loved Selikoff’s over-reading of chest films. Selikoff’s colleagues (Ruth Lilis) routinely teased Selikoff about not being able to read chest radiographs. Selikoff was rumored to have taken and failed the NIOSH B-Reader examination, a rumor which needs to be resolved by a FOIA request.

[66] United States v. Reserve Mining Co. See United States v. Reserve Mining Co., 56 F.R.D. 408 (D.Minn.1972); Armco Steel Corp. v. United States, 490 F.2d 688 (8th Cir. 1974); United States v. Reserve Mining Co., 380 F.Supp. 11 (D.Minn.1974); Reserve Mining Co. v. United States, 498 F.2d 1073 (8th Cir. 1974); Minnesota v. Reserve Mining Co., 418 U.S. 911 (1974); Minnesota v. Reserve Mining Co., 419 U.S. 802 (1974); United States v. Reserve Mining Co., 394 F.Supp. 233 (D.Minn.1974); Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492 (8th Cir. 1975); Minnesota v. Reserve Mining Co., 420 U.S. 1000, 95 S.Ct. 1441, 43 L.Ed.2d 758 (1975); Reserve Mining Co. v. Lord, 529 F.2d 181 (8th Cir. 1976); United States v. Reserve Mining Co., 408 F.Supp. 1212 (D.Minn.1976); United States v. Reserve Mining Co., 412 F.Supp. 705 (D.Minn.1976); United States v. Reserve Mining Co., 417 F.Supp. 789 (D.Minn.1976); United States v. Reserve Mining Co., 417 F.Supp. 791 (D.Minn.1976); 543 F.2d 1210 (1976).

[67] Robert V. Bartlett, The Reserve Mining Controversy: Science, Technology, and Environmental Quality 140-41 (1980) (describing Selikoff’s testimony).

[68] Jock McCulloch & Geoffrey Tweedale, Defending the Indefensible: The Global Asbestos Industry and its Fight for Survival: The Global Asbestos Industry and its Fight for Survival 95 & n.36 (2008). These authors ignored other reasons Selikoff later stood down from the witness chair: his self-serving insistence upon the importance of his own research detracted from the work of previous authors (e.g., Sir Richard Doll, J. Christopher Wagner, et al.) in litigation of personal injury claims of asbestos health effects. Plaintiffs’ counsel needed to push back the dates of first knowledge of asbestos health effects well before Selikoff’s first insulator study in 1964. The litigation industry needed Selikoff to continue to generate publicity, and to stop testifying. Selikoff surely must have had some concerns about how further testifying would eventually lead to questions about his credentials. Furthermore, Selikoff had an entire generation of younger, less politically visible colleagues at Mt. Sinai to fill the ranks of expert witnesses for the litigation industry (Miller, Levin, Nicholson, Lillis, Daum, Anderson, Frank, et al.).

[69] Obituary for Abraham Selecoff, The Miami Herald (May 22, 1974).

[70] Irving J. Selikoff, “Epidemiology of gastrointestinal cancer,” 9 Envt’l Health Persp. 299 (1974) (arguing for causal conclusion between asbestos and all gastrointestinal cancers).

[71] Nicholas Wade, “The Science and Politics of a Disinvitation,” 201 Science 892 (1978) (commenting that the NCI was negligent in failing to evaluate the ad hominem opinions given to it by Selikoff).

[72] SeeThe Selikoff – Castleman Conspiracy” (Mar. 13, 2011); “What Happens When Historians Have Bad Memories” (Mar. 15, 2014); “Castleman-Selikoff – Can Their Civil Conspiracy Survive Death?” (Dec. 3, 2018). In 2014, Castleman testified that he has no recollection of the memorandum, but he did not deny that had written it.

[73] B.D. Colen, “Knowing When the Chemistry is Right,” Newsday (Suffolk Edition) (Melville, New York) at 85 (Tue., July 29, 1980).

[74] See Richard Doll & Richard Peto, “The causes of cancer: quantitative estimates of avoidable risks of cancer in the United States today,” 66 J. Nat’l Cancer Inst. 1191 (1981).

[75] Irving Selikoff & William Nicholson, “Mortality Experience of 1,918 Employees of the Electric Boat Company, Groton, Connecticut January 1, 1967 – June 30, 1978” (Jan. 27, 1984).

[76]The Mt. Sinai Catechism” (June 5, 2013).

[77]Irving Selikoff and the Right to Peaceful Dissembling” (June 5, 2013).

[78] Leo H. Caney, “Noted Cancer Researcher Altering Role,” N.Y. Times (Mar. 10, 1985).

[79] Celia Selikoff Social Security Records, SSN 064-12-6401. Celia was born on Sept. 12, 1908.

[80] A New York state trial court initially sided with Selikoff over this subpoena battle. In re R.J. Reynolds Tobacco Co., 136 Misc.2d 282, 518 N.Y.S.2d 729 (N.Y. Sup. Ct., N.Y. Cty. 1987). The federal court subsequently required Selikoff to honor another litigant’s subpoena. In re American Tobacco Co., 866 F.2d 552 (2d Cir. 1989).

[81] William J. Nicholson & Irving J. Selikoff, “Mortality experience of asbestos factory workers; effect of differing intensities of asbestos exposure”: unpublished manuscript produced in litigation (1988) (“[O]ther asbestos varieties (amosite, crocidolite, anthophyllite) were also used for some products. In general, chrysotile was used for textiles, roofing materials, asbestos cements, brake and friction products, fillers for plastics, etc.; chrysotile with or without amosite for insulation materials; chrysotile and crocidolite for a variety of asbestos cement products.”).

[82] In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992). See Cathleen M. Devlin, “Disqualification of Federal Judges – Third Circuit Orders District Judge James McGirr Kelly to Disqualify Himself So As To Preserve ‘The Appearance of Justice’ Under 28 U.S.C. § 455 – In re School Asbestos Litigation (1992),” 38 Villanova L. Rev. 1219 (1993); Bruce A. Green, “May Judges Attend Privately Funded Educational Programs? Should Judicial Education Be Privatized?: Questions of Judicial Ethics and Policy,” 29 Fordham Urb. L.J. 941, 996-98 (2002).

[83] Jack B. Weinstein, “Learning, Speaking, and Acting: What Are the Limits for Judges?” 77 Judicature 322, 326 (May-June 1994) (emphasis added). Judge Weinstein’s false statement that Selikoff “had never testified” not only reflects an incredible and uncharacteristic naiveté by a distinguished evidence law scholar, but the false statement was in a journal, Judicature, which was widely circulated to state and federal judges. The source of the lie appears to have been Selikoff himself in the ethically dodgy ex parte meeting with judges actively presiding over asbestos personal injury cases.

[84] Jack B. Weinstein, “Learning, Speaking, and Acting: What Are the Limits for Judges?” 77 Judicature 322, 326 (May-June 1994). The point apparently weighed on Judge Weinstein’s conscience. He repeated his mea culpa almost verbatim, along with the false statement about Selikoff’s never having testified, in a law review article in 1994, and then incorporated the misrepresentation into a full-length book. See Jack B. Weinstein, “Limits on Judges’ Learning, Speaking and Acting – Part I- Tentative First Thoughts: How May Judges Learn?” 36 Ariz. L. Rev. 539, 560 (1994) (“He [Selikoff] had never testified and would   never testify.”); Jack B. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and other Multi-Party Devices 117 (1995) (“A court should not coerce independent eminent scientists, such as the late Dr. Irving Selikoff, to testify if, like he, they prefer to publish their results only in scientific journals.”).

[85] Social Security records for Irving John Selikoff, social sec. no. 085-16-1882. See Bruce Lambert, “Irving J. Selikoff Is Dead at 77; TB Researcher Fought Asbestos,” N.Y. Times (May 22, 1992).

[86] Steve Markowitz, Stephen Levin, Albert Miller, and Alfredo Morabia, “Asbestos, Asbestosis, Smoking and Lung Cancer: New Findings from the North American Insulator Cohort,” Am. J. Respir. & Critical Care Med. (2013)).

State-of-the-Art Legal Defenses and Shifty Paradigms

October 16th, 2021

The essence of a failure-to-warn claim is that (1) a manufacturer knows, or should know, about a harmful aspect of its product, (2) which knowledge is not appreciated by customers, (3) the manufacturer fails to warn adequately of this known harm, and (4) the manufacturer’s failure to warn causes the plaintiff to sustain the particular harm of which the manufacturer had knowledge, actual or constructive.

There are myriad problems with the assessing the knowledge component in failure-to-warn claims. Some formulations impute to manufacturers the knowledge of an expert in the field. First, which expert’s claim to knowledge counts for or against the existence of a duty? The typical formulation begs the question which expert’s understanding will control when experts in the field disagree. Second, and equally problematic, knowledge has a temporal aspect. There are causal relationships we “know” today, which we did not know in times past. This temporal component becomes even more refractory for failure-to-warn claims results when the epistemic criteria for claims of knowledge change over time.

In the early 20th century, infectious disease epidemiology, with its reliance upon Koch’s postulates. dominated the model of causation used in public and scientific discourse. The very nature of Koch’s postulates made the identification of a specific pathogen necessary to the causation of a specific disease. Later in the first half of the 20th century, epidemiologists and clinicians came to realize that the specific pathogen may be necessary but not sufficient for inducing a particular infectious disease. Still there was some comfort in having causal associations predicated upon necessary relationships. Clinicians and clinical scientists did not have to worry too much about probability theory or statistics.

The development of causal models in which the putative cause was neither necessary nor sufficient for bringing about the outcome of interest was a substantial shock to the system. In the absence of a one-to-one specificity, scientists had to account for confounding variables, in ways that they had not done so previously. The implications for legal state-of-the-art defenses could not be more profound. In the first half of the 20th century, case reports and series were frequently seen as adequate for suggesting and establishing causal relationships. By the end of the 1940s, scientists were well aware of the methodological inappropriateness of relying upon case reports and series, and the need for analytical epidemiologic studies to support causal claims.

Several historians of science have addressed the changing causal paradigm, which ultimately would permit and even encourage scientists to identify causal associations, even when the exposures studied were neither necessary nor sufficient to bring about the end point of interest. In 2011, Mark Parascandola, while he was an epidemiologist in the National Cancer Institute’s Tobacco Control Research Branch, wrote an important history of this paradigm shift and its implications in epidemiology.[1] His paper should be required reading for all lawyers who work on “long-tail” litigation, involving claims that risks were known to manufacturers even before World War II.

In Parascandola’s history, epidemiology and clinical science focused largely on infectious diseases in the early 20th century, and as a result, causal association was seen through the lens of Koch’s postulates with its implied model of necessary and sufficient conditions for causal attribution. Not until after World War II did “risk factor” epidemiology emerge to address the causal role of exposures – such as tobacco smoking – that were neither necessary nor sufficient for causing an outcome of interest.[2]

The shift from infectious to chronic diseases, such as cancer and cardiovascular disease, occurred in the 1950s, and brought with it, acceptance of a different concepts of causation, which involved stochastic events, indeterminism, multi-factorial contributions, and confounding of observations by independent but correlated causes. The causal criteria for infectious disease were generally unhelpful in supporting causal claims of chronic diseases.

Parascandola characterizes the paradigm shift as a “radical change,” influenced by developments in statistics, quantum mechanics, and causal theory.[3] Edward Cuyler Hammond, an epidemiologist with the American Cancer Society, for example, wrote in 1955, that:

“[t]he cause of an effect has sometimes been defined as a single factor which antecedes, which is necessary, and which is sufficient to produce the effect. Clearly this definition is inadequate for the study of biologic phenomena, which are produced by a complex pattern of environmental conditions interacting with the highly complex and variable make-up of living organisms.”[4]

The shift in causal models within epidemiologic thinking and research introduced new complexity with important practical implications. Gone was the one-to-one connection between pathogens (or pathogenic exposures) and specific diseases. Specificity was an important victim of the new model of causation. Causal models had to account for multi-factorial contributions to disease.[5] Confounding, the correlation between exposures of interest and other exposures that were truly driving the observations, became a substantial threat to validity. The discerning lens of analytical epidemiology was able to identify tobacco smoking as a cause of lung cancer only because of the large increased risks, ten-fold and greater, observed in multiple studies. There were no competing but independent risks of that magnitude, at hand, which could eliminate or reverse the observed tobacco risks.

Parascandola notes that in the 1950s, the criteria for causal assessment were in flux and the subject of debate:

“Previous informal rules or guides for inference, such as Koch’s postulates, were not adequate to identify partial causes of chronic disease based on a combination of epidemiologic and laboratory evidence.”[6]

As noted above, the legal implications of Parascandola’s historical analysis are hugely important.  Scientists and statisticians were scrambling to develop appropriate methodologies to accommodate the changed causal models and causal criteria. Mistakes were made along the way as the models and criteria changed. In Sir Richard Doll’s famous 1955 study of lung cancer among asbestos factory workers, the statistical methods were surprisingly primitive to modern epidemiology. Even more stunning was that Sir Richard failed to incorporate smoking histories and accounting for confounding from smoking before reaching a conclusion that lung cancer was associated with long-term asbestos factory work that had induced asbestosis.[7]

Not until the lae 1950s and early 1960s did statisticians develop multivariate models to help assess potential confounding.[8] Perhaps the most cited paper in epidemiology was published by Nathan Mantel (the pride of the Brooklyn Hebrew Orphan Asylum) and William Haenszel in 1959. Its approach to stratification of sample analyses was further elaborated upon by the authors and others all through the 1960s and into the 1970s.[9]

Similarly, the evolution of criteria for causal attribution based upon risk factor epidemiology required decades of discussion and debate. Reasonably well defined criteria did not emerge until the mid-1960s, with the famous Public Health Service report on smoking and lung cancer,[10] and Sir Austin Bradford Hill’s famous after-dinner talk to the Royal Society of Medicine.[11]

Several years before Parascandola published his historical analysis, three historians of science published a paper with a very similar thesis.[12] These authors noted that there was, indeed, a legitimate controversy over whether tobacco smoking caused lung cancer, in the 1950s early 1960s, as the mechanistic Koch’s postulates gave way to the statistical methods of risk-factor epidemiology. The historians’ paper observed that by the 1950s, infectious diseases such as tuberculosis were in retreat, and the public health community’s focus was on chronic diseases such as lung cancer. The lung cancer controversy of the 1950s pushed scientists to revise their conceptions of causation ,[13] and ultimately led to the strengthening of, and legitimizing, the field of epidemiology.[14] The growing acceptance of epidemiologic methods for identifying causes, neither necessary nor sufficient, pushed aside the attachment to Koch’s postulates and the skepticism over statistical reasoning.

Interestingly, this historians’ paper was funded completely by the Rollins Public Health of Emory University. Two of the authors had been sought out by a recruiting agency for the tobacco industry, but fell out with the agency and the tobacco companies when they realized that they could not support the litigation goals. In a footnote, the authors emphasized that their factual analysis and argument contradicted the industry’s desired defense.[15]

Reaching back even farther in time, there is the redoubtable Irving John Selikoff, who wrote in 1991:

“We are inevitably bound by the knowledge of the time in which we live. An example may be given. During the 1930s and 194Os, random instances of lung cancer occurring among workers exposed to asbestos were reported and attention was called to these by the collection of cases both in registers and in review papers. With the continued growth of the asbestos industry, it was deemed wise to epidemiologically examine the proposed association. This was done in an elegant, innovative, well-considered study by Richard Doll, a study which any one of us would have been proud to report in 1955.”[16]

What is ironic is that Dr. Selikoff had testified for plaintiffs’ counsel as an expert witness specifically on state of the art, or the question of when defendants should have known and warned that asbestos caused lung cancer.[17] Dr. Selikoff ultimately withdrew from testifying, in large part because his views on this matter were not particularly helpful to plaintiffs.

The shift in causal criteria, and rejection of case reports and case series, can be seen in the suggestion, in the 1930s, of a few pathologists who contended that silicosis caused lung cancer. The few scientists who made this causal claim relied upon heavily upon anecdotal and uncontrolled necropsy series.[18]

After World War II, these causal claims fell into disrepute as not properly supported by valid scientific methodology. Dr. Madge Thurlow Macklin, a female pioneer in clinical medicine and epidemiology,[19] and one the early adopters of statistical methodology in her work, debunked the causal claims:

“If silicosis is being considered as a causative agent in lung cancer, the control group should be as nearly like the experimental or observed group as possible in sex, age distribution, race, facilities for diagnosis, other possible carcinogenic factors, etc. The only point in which the control group should differ in an ideal study would be that they were not exposed to free silica, whereas the experimental group was. The incidence of lung cancer could then be compared in the two groups of patients.

This necessity is often ignored; and a ‘random’ control group is obtained for comparison on the assumption that any group taken at random is a good group for comparison. Fallacious results based on such studies are discussed briefly.”[20]

Macklin’s advice sounds like standard-operating procedure today, but in the 1940s, it was viewed as radical and wrong by many physicians and clinical scientists.

Of course, the change over time in the knowledge of, and techniques for, diagnostic methods, quantitative measurements, and disease definitions also affect litigated issues. The change in epistemic standards and causal criteria, however, fundamentally changed legal standards for tort liability. The shift from deterministic models of necessary and sufficient causation to risk factor causation had, and continues to have, enormous ramifications for the legal adjudication of questions concerning when companies, held to the knowledge of an expert in the field, should have started to warn about the risks created by their products. Mind the gap!


[1] Mark Parascandola, “The epidemiologic transition and changing concepts of causation and causal inference,” 64 Revue d’histoire des sciences 243 (2011).

[2] Id. at 245.

[3] Id. at 248.

[4] Id. at 252, citing Edward Cuyler Hammond, “Cause and Effect,” in Ernest L. Wynder, ed., The Biologic Effects of Tobacco (1955).

[5] Id. at 257.

[6] Id.

[7] Richard Doll, “Mortality from Lung Cancer in Asbestos Workers,” 12 Brit. J. Indus. Med. 81 (1955).

[8] See Parascandola at 258.

[9] Nathan Mantel & William Haenszel, “Statistical aspects of the analysis of data from retrospective studies of disease,” 22 J. Nat’l Cancer Instit. 19 (1959). See Mervyn Susser, “Epidemiology in the United States after World War II: The Evolution of Technique,” 7 Epidemiology Reviews 147 (1985).

[10] Surgeon General, Smoking and health : Report of the Advisory Committee to the surgeon general of the Public Health Service, PHS publication No. 1103 (1964).

[11] Austin Bradford Hill, “The Environment and Disease: Association or Causation?” 58 Proc. Royal Soc’y Med. 295, 295 (1965).

[12] Colin Talley, Howard I. Kushner & Claire E. Sterk, “Lung Cancer, Chronic Disease Epidemiology, and Medicine, 1948-1964,” 59 J. History Med. & Allied Sciences 329 (2004) [Talley]. Parascandola appeared not to have been aware of this article; at least he did not cite it.

[13] Id. at 374.

[14] Id. at 334.

[15] Id. at 329.

[16] Irving John Selikoff, “Statistical Compassion,” 44 J. Clin. Epidemiol. 141S, 142S (1991) (internal citations omitted) (emphasis added).

[17]Selikoff and the Mystery of the Disappearing Testimony,” (Dec. 3, 2010). See also Peter W.J. Bartrip, “Irving John Selikoff and the Strange Case of the Missing Medical Degrees,” 58 J. History Med. 3, 27 & n.88-92 (2003) (quoting insulator union President Andrew Haas, as saying “[w]e all owe a great debt of thanks for often and expert testimony on behalf of our members … .” Andrew Haas, Comments from the General President, 18 Asbestos Worker (Nov. 1972)).

[18] See, e.g., Max O. Klotz, “The Association Silicosis & Carcinoma of Lung 1939,” 35 Cancer Research 38 (1939); C.S. Anderson & J. Heney Dible, “Silicosis and carcinoma of the lung,” 38 J. Hygiene 185 (1938).

[19] Barry Mehler, “Madge Thurlow Macklin,” from Barbara Sicherman and Carl Hurd Green, eds., Notable American Women: The Modern Period 451-52 (1980); Laura Lynn WindsorWomen in Medicine: An Encyclopedia 134 (2002).

[20] Madge Thurlow Macklin, “Pitfalls in Dealing with Cancer Statistics, Especially as Related to Cancer of the Lung,” 14 Diseases Chest 525 532-33, 529-30 (1948). See alsoHistory of Silica Litigation – the Lung Cancer Angle,” (Feb. 3, 2019); “The Unreasonable Success of Asbestos Litigation,” (July 25, 2015); “Careless Scholarship about Silica History,” (July 21, 2014) (discussing David Egilman); “Silicosis, Lung Cancer, and Evidence-Based Medicine in North America,” (July 4, 2014).

The Misplaced Focus of Enterprise Liability on the Wrong Enterprise

March 27th, 2021

Well, soon the pandemic of Trump Flu will come to a close.  In the future, children too young or born after the pandemic will ask, “where were you during the pandemic, and what did you do?”

For lawyers, trials adjourned and courtrooms went dark, although discovery and motion practice continued. With some free time, I thought it a good time to write about the mess that American tort law has made of employer responsibility in product liability law. And the time seemed right because the Supreme Court had only recently provided a fascinating case study in how out of touch some courts can be with the realities of workplace injuries. The recent decision in DeVries v. Air & Liquid Systems Corp., 139 S.Ct. 986 (2019), was a perfect canvas on which to sketch out tort law’s failure to come to grips with the three-way relationship among industrial product seller, sophisticated industrial or military purchasers and employers, and injured plaintiffs.[1]

Many commentators might have viewed the justices who squared off in DeVries, Kavanaugh for the majority, Gorsuch for the dissent, as cut from the same judicial cloth, but their two opinions diverged in interesting ways. The entire court, however, shared a frail and faulty understanding of the role of third-party employers and product purchasers in providing a safe workplace. Not surprisingly, both the majority and dissenting opinions failed to do justice to the depth of Navy knowledge of the hazards of asbestos, Navy control over the workplace, and the futility of warning of asbestos exposure to the Navy, which had superior knowledge of both general asbestos hazards, the specific conditions it created, and the methods needed to protect its workers and sailors.

The failings of scholarship and analysis in DeVries have a bigger context.[2] The role of third parties – sophisticated intermediaries – received careful consideration in the First and Second Restatements of Torts, in Section 388 and its comments.[3] The Third Restatement continued to endorse this important defense, based upon the practical and sensible limits of liability, but placed the relevant discussion in a hard-to-find comment to a very broad, general section:

“5. The Restatement, Second, of Torts § 388, Comment n, utilizes the same factors set forth in Comment i in deciding whether a warning should be given directly to third persons. It has been relied on by numerous courts. See, e.g., Goodbar v. Whitehead Bros., 591 F. Supp. 552 (W.D.Va.1984), aff’d sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir.1985) (applying Virginia law)… .”[4]

At least these celebrated sophisticated intermediary defense cases were cited by the Third Restatement, in a comment. Many current tort textbooks fail to mention the defense at all.[5] Tort theorists stress the importance of the boundaries between consumers and industrial enterprises, but ignore the frequent setting in which the purchaser is itself an industrial enterprise, and has independent legal and regulatory duties to provide safe workplaces with the products at issue.[6] Highly sensitive to the need to protect ordinary consumers from the predations of large manufacturing companies, many tort theorists are insensate to the need to protect manufacturers-sellers from the predations of large employing purchasing corporations upon the purchasers’ employees.[7]

Many scholars have written about the United States government’s historical knowledge of asbestos dangers,[8] but without any sense of outrage or concern, such as you might find in the purple prose of Paul Brodeur.[9] Although Brodeur did ever so slightly touch upon lawsuits against the United States government for conditions in Naval shipyards and elsewhere, he quoted with seeming approval the comments by Captain George M. Lawton, given in a 1979 interview. When asked whether the Navy was responsible for workplace conditions at the Navy’s Electric Boat shipyard, Lawton flippantly shrugged off the suggestion with the observation:

“If I order an automobile and the way they make automobiles is to throw people into a furnace, I am not responsible for that.”[10]

Brodeur, who was quick to judge the asbestos product manufacturers, fails to note that it was Captain Lawton’s Navy that was throwing people in furnace at its Navy yards around the country. Similarly, asbestos plaintiffs’ expert witness, Barry Castleman, who had written a trial manual for plaintiffs’ lawyers based upon distorted assessment of individual companies’ historical involvement with asbestos, spends no time investigating the huge record of United States governmental knowledge of asbestos use.[11] Castleman, schooled by the lawsuit industry lawyers, understood that documenting the knowledge of the intermediary, product purchaser, and workplace owner, detracts from the David-and-Goliath narrative his retaining counsel needed to prevail in litigation. Writers such as Brodeur and Castleman are fond of citing historical writings of governmental health agencies for claims of health hazards. Captain Lawton’s Navy was, of course, possessed and was bound by the knowledge of those very same public health agencies.[12]

In the mid-1970’s, amidst economic turmoil, and declining military budgets, the United States Navy found itself with a big problem. Payments to civilians under the FECA (Federal Employees’ Compensation Act), a statute that gives civilian employees of shipyards the equivalent of workers’ compensation benefits, came right out of the Navy’s budget for shipbuilding. The Navy had no insurance for FECA payments, and suddenly it found itself facing a large uptick in the number of claims made by civilians for asbestos-related injuries. About the same time, many states adopted some version of strict product liability, some stricter than others. None was likely stricter than Pennsylvania’s version, which made referring to employer responsibility virtually impossible. Ultimately, the plaintiffs’ bar found that strict liability recoveries and settlements were too certain to encumber themselves and their clients with government liens, and they stopped filing their FECA cases altogether.

When I first started practicing “asbestos law,” I routinely found copies of letters from JAG lawyers to shipyard workers, in their personnel files. The letters notified the workers that they had been diagnosed with asbestosis, usually by a local pulmonary physician who performed contract services for surveillance for the shipyard. (These diagnosing physicians went on to make fortunes by serving as expert witnesses in subsequent civil litigation.) The letters notified the workers that they might have rights under FECA, but emphasized that the workers had remedies against the Navy’s vendors of asbestos-containing products, and that if they sued in tort, the Navy would have a lien against any recovery. In practice, the lien was so unwieldy, that most of the Philadelphia plaintiffs’ firms would forego filing the FECA claim altogether. Thus the Navy effectively limited its liability, and kept its munitions budgets intact, while dozens of its vendors went bankrupt. The cruel irony of the FECA (or workers’ compensation) statutes is that the employer pays regardless of fault, that the employer can’t be sued in civil actions, and that the employer can recover ~80% of its payments from settlements or judgment proceeds from a civil defendant.

The government’s role in fueling the explosion of asbestos civil actions has not received very much, if any, real scrutiny. What a story is hidden away in those old files! Not only did the Navy know of the asbestos hazards, hide them from its civilian workers, but when those workers got sick, the Navy turned on its outside suppliers by encouraging its workers to sue the suppliers, while hiding behind the exclusive remedy provision of the FECA.

The story of the Navy’s misdeeds, misrepresentations, and misinformation has been told, in bits and pieces, here and there. What was needed back in the 1980s was someone who could write a thorough documentary history of the Navy’s predations upon its employees and its sailors. There is a trove of materials from before World War II, but increasing dramatically with the wartime efforts of Dr. Philip Drinker to obtain safe asbestos workplaces for both workers both at contract and naval shipyards.

In the postwar period, Navy culpability became even clearer. In 1957, for instance, more than a decade after Drinker’s investigations and reports of asbestos safety hazards, the Navy held a Conference of Pipe and Copper Shop Master Mechanics, at the Boston Naval Shipyard, on May 8 -10. Representatives from every naval shipyard, as well as the Bureau of Ships, and Commander Simpson, were present. A master pipefitter, O.W. Meeker, visiting from Shop 56, Long Beach Naval Shipyard, presented on “Pipe Insulation Processes and Procedures.” Notwithstanding confusion between asbestosis and silicosis, and between asbestos and silica, Mr. Meeker’s remarks speak volumes about the government’s role in the “asbestos mess”:

“The asbestos which we use is a mineral as much as is the rock in which it is found. Furthermore, its principal ingredient is silicon, which is responsible for the disease which we know as silicosis [sic].

Asbestos, silicosis, is caused by prolonged breathing of silica dust [sic]. Asbestos, when handled dry, produces vast amounts of silica dust. In new applications the material can be dampened to reduce the amount of dust liberated. However, the specified type of amosite for use on cold water piping is water repellent. Also material which must be removed from an existing installation is dry and powdery, being an excellent dustproducer.

The most apparent symptom of asbestosis is lethargy or a lack of vitality. What we suspect to be lead in the posterior might well be asbestos in the lungs. During 1956, 11 deaths from asbestosis were reported on the Pacific Coast alone. One insulator died of asbestosis at the age of 29.

Asbestosis is extremely difficult to detect – particularly at the early stages. I know that two of my insulators are afflicted with this condition. How many more will become afflicted is something which I hesitate to predict. Again, the solution is obvious. Remove the cause by substituting other products such as Armaflex or StaFoam for asbestos whenever possible. However, this will take some doing.

In the meantime, the answer is wearing of respirators by all who handle asbestos products. To many the very idea of wearing respirator is repugnant. However, a respirator on the face is preferable to asbestos in the lungs.

Therefore, gentlemen, ours definitely is the important and difficult task of providing and installing effective insulating materials aboard Naval Vessels. Moreover, this task must be accomplished without sacrificing our workmen in the process.”

Tort law and history itself have been distorted by the law’s focus on manufacturing defendants as deep pockets simply because the purchasing enterprises have had immunity from civil liability.

———————————————————————————-

[1]  Schachtman, “Products Liability Law – Lessons from the Military and Industrial Contexts,” 13 J. Tort Law 303 (2020).

[2]  “Asbestos and Asbestos Litigation Are Forever” (Sept. 16, 2014).

[3]  Restatement (First) of Torts § 388, comment 1 (1934); Restatement (Second) of Torts § 388, comment n (1965).

[4]  Restatement (Third) of Torts: Products Liability § 2 Categories of Product Defect (1998), Comment i. Inadequate instructions or warnings.

[5] See, e.g., John C. P. Goldberg & Benjamin C. Zipursky, The Oxford Introductions to U.S. Law: Torts (2010); Anita Bernstein, Questions & Answers: Torts (3d ed. 2014); Saul Levmore & Catherine M. Sharkey, Foundations of Tort Law (2d ed. 2011); Mark A. Geistfeld, Principles of Products Liability (2006). But see John L. Diamond, Lawrence C. Levine, and Anita Bernstein, Understanding Torts 392 (6th ed. 2018) (citing Taylor v. American Chem. Council, 576 F.3d 16, 25 (1st Cir. 2009) (applying Massachusetts law, and affirming summary judgment for defendant PVC trade association on failure-to-warn claim, on ground that the plaintiff’s employer was a sophisticated use and well aware of the danger).

[6]  See, e.g., Gregory C. Keating, “Products Liability As Enterprise Liability,” 10 J. Tort Law 41, 60 (2017).

[7] Thomas H. Koenig & Michael L. Rustad, In Defense of Tort Law 2 (2001); Stephen R. Perry, “The Moral Foundations of Tort Law,” 77 Iowa L. Rev. 449 (1992).

[8] George M. Lawton & Paul J. Snyder, “Occupational Health Programs in United States Naval Shipyards,” 11 Envt’l Res. 162 (1976); Peter A. Nowinski, “Chronology of Asbestos Regulation in United States Workplaces,” in Karen Antman & Joseph Aisner, eds., Asbestos-Related Malignancy 99 (1986) (Nowinski represented the government in direct lawsuits against the United States for its role in creating the asbestos hazards of federal and contract shipyards); Jacqueline Karnell Corn & Jennifer Stan, “Historical Perspective on Asbestos: Policies and Protective Measures in World War II Shipbuilding,” 11 Am. J. Indus. Med. 359 (1987); Statement of Linda G. Morra, Associate Director Human Resources Division, on behalf of the United States General Accounting Office, “The Status of Asbestos Claims Against The Federal Government”; before the House Committee on the Judiciary, Subcommittee on Administrative Law and Governmental Relations (June 30, 1988); Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988); Susan L. Barna, “Abandoning Ship: Government Liability for Shipyard Asbestos Exposures,” 67 New York Univ. L. Rev. 1034 (1992);  Kenneth W. Fisher, “Asbestos: Examining the Shipyard’s Responsibility: An examination of relevant U.S. archives from the 1930s through the 1980s” (2001); Denis H. Rushworth, “The Navy and Asbestos Thermal Insulation,” Naval Engineers J. 35 (Spring 2005); Danielle M. Dell, Bruce K. Bohnker, John G. Muller, Alan F. Philippi, Francesca K. Litow, W. Garry Rudolph, Jose E. Hernandez, David A. Hiland, “Navy Asbestos Medical Surveillance Program 1990–1999: Demographic Features and Trends in Abnormal Radiographic Findings,” 8 Military Med. 717 (2006); John L. Henshaw, Shannon H. Gaffney, Amy K. Madl & 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 Responsibilities & Rights J. 173 (2007); Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011).

[9]  Paul Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial (1985).

[10]  Id. at 251 (quoting Lawton’s interview published in Connecticut Magazine, in 1979).

[11]  Barry I. Castleman, Asbestos: Medical and Legal Aspects (1984).

[12]  See Miller v. Diamond Shamrock Co., 275 F.3d 414, 422-23 (5th Cir. 2001) (“There can be no reasonable dispute that knowledge possessed by the United States Public Health Service, … [and] the Navy’s Bureau of Medicine and Surgery is the knowledge of the military.”).

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.

Two Schools of Thought for Warning Standards

September 19th, 2020

In products liability litigation over designs and warnings, a supplier or manufacturer is typically held to the knowledge and expertise of an expert in the relevant field. Experts, especially in the early days of understanding a newly identified putative risk, may disagree on the quality and quantity of evidence in support of the claimed risk. And of course they may dispute whether the claimed risk exists at all, or the criteria by which the risk should be established. Unfortunately, the law offers little help in answering the obvious question of which expert or group of experts, and which criteria, of all the experts and criteria in the world, are the appropriate reference standards. The point of adverting to experts is, no doubt, that the law knows nothing about causal claims unless there is admissible and sufficient evidence of the risk, typically from a qualified expert, serving as an expert witness, who proffers an opinion about causal claim.

The standard formulation evades the necessity of confronting the epistemic standard for knowledge of the risk by pointing to some expert’s or group of experts’ opinion. Rather than looking directly at whether the causal claim is “true, justified belief,” the law asks whether expert witnesses hold such opinions. This maneuver has several inherent risks of its own. First, it transmutes factfinding into an exercise in the sociology or sampling of expert witnesses. In the case of claims that involve long latencies between the exposure to the putative risk and the manifestation of harm, this sociological exercise becomes one of intellectual history. One of the reasons that the Frye standard was so difficult in practice was its insistence that courts ascertain whether a particular claim or a use of scientific device was “generally accepted.” The assessment of the relevant expert’s knowledge of risk has generally not gone well in litigation contexts. Second, the maneuver of looking to experts’ opinions introduces a different kind of risk; that is, the maneuver risks diluting the standard for warning, “knowledge and expertise” to subjective opinion, hunches, conjecture, and the like.

An analogue of the standard for warning of risks may be found in the law of medical malpractice. Historically, American law relied heavily upon generally held opinions as the measure of knowledge, which were incorporated into standards of reasonable professional care. The law that governs litigation over the quality of medical care in many states resolves this issue by providing a defense under the “Two Schools of Thought Doctrine.”[1] A physician does not deviate from the standard of care simply because many or even most physicians reject the approach he or she took in the care and treatment of the aggrieved patient’s problem. As long as a substantial minority of physicians would have concurred in the judgment of the defendant physician, the claim of malpractice fails.

Pennsylvania confronted the nose-counting problem in Jones v. Chidester, by passing the buck to the jury. The Pennsylvania Supreme Court held that a physician would escape liability if his medical treatment received the support of a “considerable number” of medical experts.[2] The court allocated to the jury the factual determination how many recognized and respected medical experts were needed to create a “school of thought,” but it left completely unclear how a jury would make such a determination.[3]

The law’s lassitude in relying upon professional custom and opinion, rather than whether the custom had sound evidentiary and methodological foundations, might be taken as deference to, and protection of, the medical profession. Or, less charitably, this reliance might be taken as intellectual laziness to avoid engagement with the intellectual basis for the custom or the school of thought. Indeed, the continuing validity of the “nose-counting” approach may certainly be questioned in the era of “evidence-based medicine,” which rejects custom as the basis for medical interventions in favor of the novelty of evidence itself.[4]

If the Two Schools Doctrine should be good law, it has obvious implications for the standard of design or warning in products cases, as well as for the standard of causation. How can a judge or jury impose liability upon a manufacturer for failing to warn about a risk that “a school of thought” among scientists believes is not a risk? An even more extreme disparity arises when the jury or judge comes to the belief that a manufacturer deserves to be punished for failing to warn about supposed risks when many scientists and even regulators do not believe exist.

It is a mystery.


[1]        See, e.g., MacDonald v. United States, 767 F. Supp. 1295, 1308 (M.D. Pa. 1991) (outlining the history and development of the two-schools doctrine under Pennsylvania law); Young v. United States, 574 F. Supp. 571, 581 (D. Del. 1983) (holding that medical profession’s acceptance of alternative appropriate remedies is a complete defense to claim of negligence for failing to use another remedy);  Scheuler v. Strelinger, 204 A.2d 577, 204 A.2d 577, 585  (1964).

[2]        Jones v. Chidester, 531 Pa. 31, 610 A.2d 964, 967 (1992).

[3]        See, e.g., Dailey, “The Two Schools of Thought and Informed Consent Doctrine in Pennsylvania,” 98 Dickenson L. Rev. 713 (1994); Douglas Rader Brown, “Panacea or Pandora’s Box: The ‘Two Schools of Medical Thought’ Doctrine after Jones v. Chidester, 610 A.2d 964 (Pa. 1992),” 44 J. Urban & Contemp. Law 223 (1993).

[4]           See Terence M. Davidson & Christopher P. Guzelian, “Evidence-Based Medicine (EBM): The (Only) Means for Distinguishing Knowledge of Medical Causation from Expert Opinion in the Courtroom,” 47 Trial & Insur. Prac. L. J. 741 (2012) (discussing the advent of evidence-based medicine and its implications for medical education an practice).

Tort Law’s Sleight of Hand – Part 6

August 11th, 2020

The dissenting justices, in an opinion by Justice Gorsuch, would have affirmed the trial court’s application of the bright-line bare metal defense, in DeVries. Citing black-letter law as restated by the American Law Institute, the dissent opined that the common law precedent and policy favored a rule that “the supplier of a product generally must warn about only those risks associated with the product itself, not those associated with the ‘products and systems into which [it later may be] integrated’.”[1]

The dissent criticized the court’s retrospective imposition of a liability rule and its ignoring common law precedent, as well as the unpredictability and cost of the court’s new rule, and the breadth and the difficulty of cabining the three-part test. As part of its criticism of the majority opinion, the dissent argued that the stated rule will lead to incoherent and incongruous results, and presented a parade of horribles that might arise within the scope of the new rule:

“The traditional common law rule [which would recognize the bare metal defense] better accords, too, with consumer expectations. A home chef who buys a butcher’s knife may expect to read warnings about the dangers of knives but not about the dangers of undercooked meat. Likewise, a purchaser of gasoline may expect to see warnings at the pump about its flammability but not about the dangers of recklessly driving a car.”[2]

How telling that all the envisioned bad legal consequences involve one-on-one consumer cases, without the presence of a sophisticated employer as intermediary, operating under a complex regulatory scheme to provide a comprehensive safety program to the end user!

The dissent continues its vision of bad consequences by contemplating the substantial costs placed upon product manufacturers whose products are meant to be used with other companies’ products:

“Consider what might follow if the Court’s standard were widely adopted in tort law. Would a company that sells smartphone cases have to warn about the risk of exposure to cell phone radiation? Would a car maker have to warn about the risks of improperly stored antifreeze? Would a manufacturer of flashlights have to warn about the risks associated with leaking batteries? Would a seller of hot dog buns have to warn about the health risks of consuming processed meat?”[3]

Again, the dissent is fixated on consumer products, used by ordinary consumers, outside of a heavily regulated workplace, and without the need for a highly technical industrial hygiene safety regimen.

When the dissent considered the issue of who was in the best position to warn, Justice Gorsuch simply argued, without evidence, that the parts supplier, not the bare metal manufacturer was in the “best position” to warn:

“The manufacturer of a product is in the best position to understand and warn users about its risks; in the language of law and economics, those who make products are generally the least-cost avoiders of their risks. By placing the duty to warn on a product’s manufacturer, we force it to internalize the full cost of any injuries caused by inadequate warnings—and in that way ensure it is fully incentivized to provide adequate warnings. By contrast, we dilute the incentive of a manufacturer to warn about the dangers of its products when we require other people to share the duty to warn and its corresponding costs.”[4]

Of course, in McAffee’s case, the asbestos insulation manufacturers had been warning for over a decade before he started his service in the Navy. As documented by the plaintiffs’ own expert witness, Barry Castleman:

“In 1964, Johns-Manville (“J-M”) was among the first companies to provide warnings with its asbestos-containing products, namely its asbestos insulation. During and after this time frame, J-M sold asbestos insulation to the United States military. In any extensive review of J-M documents, which have included visits to the J-M archives in Denver, Colorado, I have never seen any evidence that J-M removed or altered the warning labels that appeared on its asbestos insulation for sales to the United States military.”[5]

As for the argument without evidence about which party, bare metal manufacturer or asbestos-insulation manufacturer, can “best” warn, all the justices ignored the party that can truly best warn, the government. Placing liability on any supplier dilutes the incentive for the Navy to carry out its statutory duties. As Justice Gorsuch acknowledged:

“Tort law is supposed to be about aligning liability with responsibility, not mandating a social insurance policy in which everyone must pay for everyone else’s mistakes.”[6]

It really is time for remote suppliers to stop having to pay for injuries caused by their purchasers, especially when the purchasers are knowledgeable and have duties to protect their employees from the injuries claims.

As disconnected as the justices in DeVries were from the realities of military service-related and industrial injuries, there is some good news to come out of the high court. First, despite the suggestions of why there might be a duty, the  Court did not hold that there was a duty; it provided three considerations for the trial court’s determining whether a duty exists, on remand.

Second, the Court located the relevant considerations for the existence and scope of a putative duty in Section 388. Although all the justices missed the relevance of this section to the three-way industrial situation, the case law under Section 388 is voluminous, and speaks directly to the situation of a “chattel to be supplied for the use of another.” In fairness to the Court, and to the parties, the case did not go up on appeal on the basis of a “sophisticated intermediary” defense. Summary judgment had been granted below on the simple notion that a seller should not be responsible for warning of another company’s product. The manufacturer appellants did extensively discuss Navy knowledge or changing “state of the art,” in their briefs. At best, the appellants’  discussions were tangential. The shape of the initial summary judgment motion may have been shaped by an earlier decision of the asbestos MDL court, which rejected the sophisticated intermediary defense under maritime law.[7] The Supreme Court’s embrace of Section 388, and its incorporation of 388’s standards, into the three articulated conditions for the existence of a duty (and particularly into the third condition, “the manufacturer has no reason to believe that the product’s users will realize that danger.”).

Third, there is a renewed summary judgment motion now pending before the MDL court. In addition to now explicitly raising a government contractor defense,[8] the defendants have carefully marshaled the evidence of Navy knowledge to show that the third condition of DeVries must necessarily fail: the manufacturer had ample reason to believe that the product’s users will realize the relevant danger.[9]


[1]  DeVries, 139 S.Ct. at 997 (Gorsuch, J., dissenting) (quoting from Restatement (Third) of Torts: Products Liability § 5, Comment b, p. 132 (1997)).

[2]  DeVries, 139 S.Ct. at 998 (Gorsuch, J., dissenting).

[3]  DeVries, 139 S.Ct. at 999 (Gorsuch, J., dissenting).

[4]  DeVries, 139 S.Ct. at 999 (Gorsuch, J., dissenting) (citing Steven Shavell, Economic Analysis of Accident Law 17 (1987); Guido Calabresi, The Costs of Accidents 135 & n. 1 (1970); Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 324 (1964)).

[5]  Declaration of Barry L. Castleman (July 18, 2008), in Joint Appendix, vol. 2,  at 462, in Air and Liquid Systems Corp. v. DeVries, No. 17-1104 (filed July 9, 2018), available at <http://www.supremecourt.gov/DocketPDF/17/17-1104/52622/20180709143550603_17-1104%20JA%20Vol.%20II.pdf>

[6]  DeVries, 139 S.Ct. at 999 (Gorsuch, J., dissenting).

[7]  Mack v. General Electric Co., 896 F. Supp. 2d 333 (E.D. Pa. 2012).

[8]  Boyle v. United Technologies Corp., 487 U.S. 500 (1988).

[9]  See Memorandum of Law in support of Defendant General Electric Company’s Renewed Motion for Summary Judgment, in DeVries v. General Elec. Co., no. 5:13-cv-00474-ER, docket entry no. 396 (E.D. Pa. filed April, 1, 2020).

Tort Law’s Sleight of Hand – Part 5

August 10th, 2020

A supreme flouting of the military and industrial contexts can be found in DeVries v. Air & Liquid Systems Corporation,[1] where two former Navy sailors, plaintiffs John DeVries and Kenneth McAffee, sued asbestos-containing product manufacturers and some non-asbestos product manufacturers on claims that they developed lung cancer from their workplace exposure to asbestos. DeVries served in the Navy from 1957 to 1960; McAffee served from 1977 to 1980, and 1982 to 1986. The asbestos-containing product manufacturers settled or were bankrupt. The non-asbestos products were pumps, turbines, and blowers, which plaintiffs alleged required asbestos –containing insulation to be affixed when installed in naval ships. The plaintiffs brought their suits for failure to warn, in the Philadelphia Court of Common Pleas, but defendants removed to the federal asbestos multi-district litigation (MDL) court, invoking maritime jurisdiction. The MDL trial judge granted summary judgment to the non-asbestos product manufacturers on their “bare metal” defense, on the basis of the absence of asbestos in their products and the absence of any duty to warn about asbestos in another manufacturer’s product.[2] The Third Circuit reversed the judgments on ground that the duty question turned on “forseeability” of the asbestos products’ being added to the bare metal products, and remanded to the MDL court for further consideration.[3] The Supreme Court granted the bare metal manufacturers’ petition for certiorari, and nominally affirmed the remand to the MDL court, but unanimously reversed the Third Circuit’s holding based upon forseeability.

The Supreme Court split, however, on what the appropriate standard for assessing the existence of a duty, vel non, in maritime law, where the federal courts must act as common law courts in developing legal rules and principles. Three justices, in dissent, would have applied a bright-line bare metal defense, as contended for by petitioners.[4] The majority eschewed both the invariant bare metal defense and the Third Circuit’s infinitely flexible forseeability test, for a “third way.”[5]

The third way consisted of a three-part test articulated by the majority; a product manufacturer has a duty to warn when:

“(i) its product requires incorporation of a part,

(ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and

(iii) the manufacturer has no reason to believe that the product’s users will realize that danger.”[6]

The court’s stated standard is much less interesting than its reasoning process, which goes 2020. The majority starts with “basic tort-law principles,” a seemingly good place. Even more encouraging, the majority looks to Restatement (Second) of Torts § 388, p. 301 (1963–1964), for defining the “general duty of care includes a duty to warn when the manufacturer

“knows or has reason to know” that its product “is or is likely to be dangerous for the use for which it is supplied” and the manufacturer “has no reason to believe” that the product’s users will realize that danger.”[7]

Starting with Section 388 is excellent, but the majority studiously ignored the rich commentary and case law that addresses this general duty in the context of sales of products to intermediaries. Based upon Section 388, the majority argues that there is no legal daylight between having a duty to warn for a product that is “dangerous in and of itself,” or for a product that will become dangerous when integrated with other products, the hazards of which the product manufacturers knows or should know. For its equating the two situations, the majority adverts to a comment to the Restatement (Third) of Torts, which suggests that “warnings also may be needed to inform users and consumers of nonobvious and not generally known risks that unavoidably inhere in using or consuming the product”.[8]

The majority, having found a possible source of the bare metal defendants to warn, sadly takes no time in assessing whether warnings were needed by the United States government, and whether the hazards were obvious and generally known. Here the two plaintiffs’ cases diverge. DeVries served in the Navy from 1957 to 1960, when there were some studies that associated lung cancer with chronic overexposure to asbestos that had resulted in asbestosis. The key study was conducted by Sir Richard Doll in 1955, which showed the association but only among those who had been overexposed in the early years of the manufacturing plant.[9] There was no causal inference claimed, and Doll had not controlled for smoking histories. The causal relationship between lung cancer and asbestos exposure that does not give rise to asbestosis is still controversial, and was not suggested until long after DeVries left his service. Similarly, the relationship between mesothelioma (which neither plaintiff had) and blue asbestos (crocidolite) was not seriously entertained until 1960, and only after for other types of asbestos minerals.[10] By the time McAffee started his service in 1977, most insulation products sold to other than the Navy no longer contained asbestos, and the hazards of asbestos were certainly known to employers, unions, and of course, to the federal government.

In addition to the temporal disconnect, the majority gave virtually no consideration to the three-way relationship between the product supplier defendants, the plaintiffs, and the plaintiffs’ employer, the United States government. After casually noting that the plaintiffs did not sue the government because of their apparent belief that “the Navy was immune,”[11] the majority attempted its justification of its standard for a duty to warn, with the usual non-evidence based recitation of policies, and without any mention of the Navy as employer, manufacturer and owner of vessels, and supervisor of workplace.

1. The bare metal defendants argued that warnings cost time and money, but the majority seemed to think otherwise; warnings are inexpensive and easy to give, which counted in favor of finding a duty to warn. The majority characterized the duty as already existing for the bare metal product, and that the burden to warn of another entity’s product “usually is not significant,” and warning for the intended uses of the integrate product “should not meaningfully add to that burden.”[12]

The majority gave no consideration to the cost of having one’s warnings endlessly second guessed in an unpredictable legal system, the effect of insurability and insurance premiums, and the risk of misjudging where the “knowledge” needle might land decades later, when courts and juries judge adequacy of warnings through the retrospectroscope, with the help of tendentious expert witnessing. Perhaps more important, the majority ignored the context of the bare metal defendants’ having sold to the federal government, with its massive knowledge infrastructure of the National Academies of Science, Engineering, and Medicine, the Centers for Disease Control, the National Institute for Occupational Safety and Health, just to name a few. The hazard from the asbestos-containing components was conditional; it could arise only when work on the integrate product disturbed and aerosolized the asbestos insulation, gasket, or other component. Only the government employer would know whether, when, and how this might happen. There is no identifiable hazard from non-aerosolized, non-respirable asbestos products. The mere presence of an asbestos-containing product on the ship is not a hazard to sailors. The mean ambient asbestos fiber (all types) concentration on ships has been measured to be 0.008 fibers/cubic centimeter, well below the current OSHA permissible exposure limit for asbestos.[13] Of course, these levels would be higher at times and places when the Navy required workers to maintain pumps, blowers, or turbines, but only the Navy would know what asbestos levels it was generating by its required work. Only the Navy was required to provide industrial hygiene techniques (including ventilation, wetting, isolation, respiratory protection, appropriate to the circumstances it created.

There is one additional wrinkle to the glib rationale that warnings are easy to give. In opposing defendants’ petition for certiorari, plaintiffs noted that “Mr. DeVries did not know who manufactured the [asbestos-containing] replacement components or “wear parts” that they installed because these parts had been removed from the packaging when the parts were delivered to the engineering spaces.”[14] The plaintiffs offered this fact as a reason why they could not identify the manufacturers of asbestos-containing products that were used on board ship. The fact has much greater salience for the claim that warnings could be easily given. Starting in 1964, Johns-Manville Corporation, the major manufacturer of asbestos-containing insulation, started warning. (The incurious Supreme Court, both majority and dissent, was oblivious to this fact as well as the extensive regulation of asbestos-containing products by the federal government.) Given the nature of the insulation, Johns-Manville and other companies, affixed their warnings to the cardboard packaging in which the insulation shipped. The Navy, however, removed all insulation from its packaging on shore before delivering it to workers, or to storage, on vessels. Cardboard was a serious fire hazard on ship.

The government so completely controlled the workplace that a verbal warning at the time of the sale would be meaningless compared with the comprehensive duty of the Navy, as employer, to educate and train, to supervisor, and to discipline its employees. The law does not know useless acts.[15]

2. A correlative, airy fairy rationale for why warnings might be required is that warnings would allow workers to exercise the choice to wear a respirator. The majority asserts that “[i]f the manufacturers had provided warnings, the workers on the ships presumably could have worn respiratory masks and thereby avoided the danger.”[16]

If the justices signing on to this majority opinion had given this any thought, they might have wondered where Navy sailors, on board ship, would obtain respiratory masks. They could not very well just duck out to the local hardware store; nor would they know what respirator to purchase. They might ask their supervising officer, but the selection of a respirator turns on the kinds of dusts and fumes, their measured levels, both average and peak intensities. Before industrial respirators are assigned, medical personnel must determine the respiratory competence of the workers assigned to wear them. Facial hair must be removed. Ambient heat levels must be factored in to the decision to require respirators to be worn, and for how long. Respirators that would filter asbestos fibers invariably have canisters that hold replaceable filters, which must be inspected and periodically replaced. Respirator use cannot and does not happen in the industrial context at the judgment of employees, who lack the sophisticated measuring devices to assess the actual contaminant air levels. Furthermore, industrial hygiene practice has, for the last 90 years, made the respirator the last choice in comprehensive safety programs, which must start with product substitution, ventilation, wetting techniques, worker rotation, and other measures, all of which would have part of a comprehensive safety program implemented by the Navy.

3. The majority, citing no evidence in the record or anywhere on Planet Earth, argued that “importantly, the product manufacturer will often be in a better position than the parts manufacturer to warn of the danger from the integrated product.”[17] The majority goes on to assert that:

“The product manufacturer knows the nature of the ultimate integrated product and is typically more aware of the risks associated with that integrated product. By contrast, a parts manufacturer may be aware only that its part could conceivably be used in any number of ways in any number of products. A parts manufacturer may not always be aware that its part will be used in a way that poses a risk of danger.”[18

The majority does not even attempt to argue that its ungrounded generalizations have any relevance to the bare metal suppliers vis-à-vis asbestos-containing product manufacturers.

4. Perhaps the most delicious irony served up by the majority for its holding is the “Special Solicitude for Sailors,”[19] that maritime law provides. The majority tells us that:

“[m]aritime law has always recognized a ‘special solicitude for the welfare’ of those who undertake to ‘venture upon hazardous and unpredictable sea voyages’.”[20]

The majority cited several cases for this “special solicitude,” but three of the cited cases involved suits against the vessel owners or operators.[21] The remaining case cited was a consumer case against a jet-ski manufacturer, in which the Court rejected the application of maritime law, and so no special solicitude there.[22]

Invoking “special solicitude” on the facts of DeVries is akin to arguing for an extension of products liability for a product that caused a workplace accident because the non-party employer has a common law duty to provide a safe workplace. To cap off this non-sequitur, Justice Kavanaugh, the author of the majority opinion in DeVries, joined the majority opinion in The Dutra Group v. Batterton, decided the same term as DeVries, in which the Court announced that the special solicitude towards sailors has only a small role to play in contemporary maritime law.[23] A foolish consistency may be the hobgoblin of little minds, but it may be the least we can expect from due process.

5. The last motive for the majority’s rejecting the bare metal defense was the poor-mouthing raised by the plaintiffs who “could not recover much from the manufacturers of the asbestos insulation and asbestos parts because those manufacturers had gone bankrupt.” The majority did not expand upon this as a “reason,” but again the fact of multiple bankruptcies explains little and justifies nothing. Over 100 companies have gone bankrupt in whole or in part because of the asbestos litigation.[24] This economic devastation would suggest that rational limits on liability should be sought rather than imposing substantial liability upon companies that did not sell the asbestos-containing product that arguably contributed to the plaintiffs’ injuries. The bankruptcies that the majority tangentially referenced have distorted the litigation process substantially. Not only have they create a crushing burden on the remaining defendants under joint and several liability rules,[25] they have created a litigation environment in which product identification of the bankrupt companies’ products is fraudulent, or conveniently, suppressed.[26]

Furthermore, the poor-mouthing was unwarranted. There had been solvent defendants other than the bare metal suppliers, and the plaintiffs had ample opportunity to collect from the many bankruptcy trusts. As veterans, the plaintiffs had access to medical care through the Veterans Administration, as well as benefits for service-related injuries.


[1]  ___ U.S. ___, 139 S.Ct. 986 (2019).

[2]  DeVries v. General Electric Co., 188 F. Supp. 3d 454 (E.D. Pa. 2016).

[3]  In re Asbestos Prods. Liab. Litig. (No. VI), 873 F.3d 232 (3d Cir. 2017).

[4]  ___ U.S. ___, 139 S.Ct. 986, 996 (2019) (Gorsuch, J., dissenting) (joined by Alito, J., and Thomas, J.)

[5]  This third way is likely to be as successful as its historical predecessor. See Graham Greene, The Quiet American (1955).

[6]  DeVries, 139 S.Ct. at 991. In this short opinion, the majority repeated its three-part test three times. Id. at 993-94, and 995.

[7]  DeVries, 139 S.Ct. at 994.

[8]  Id., citing and quoting Restatement (Third) of Torts: Products Liability § 2, Comment i, p. 30 (1997)

[9]  Richard Doll, “Mortality from Lung Cancer in Asbestos Workers,”  12 Br. J. Indus. Med. 81 (1955).

[10]  See J. Christopher Wagner, C.A. Sleggs, and Paul Marchand, “Diffuse pleural mesothelioma and asbestos exposure in the North Western Cape Province,” 17 Br. J. Indus. Med. 260 (1960); J. Christopher Wagner, “The discovery of the association between blue asbestos and mesotheliomas and the aftermath,” 48 Br. J. Indus. Med. 399 (1991).

[11]  DeVries, 139 S.Ct. at 992 (citing Feres v. United States, 340 U.S. 135 (1950)).

[12]  Id. at 994-95.

[13]  Dana M. Murbach, Amy K. Madl, Ken M. Unice, Jeffrey S. Knutsen, Pamela S. Chapman, Jay L. Brown, and Dennis J. Paustenbach, “Airborne concentrations of asbestos onboard maritime shipping vessels (1978-1992),” 52 Ann. Occup. Hyg. 267 (2008).

[14]  Brief in Opposition to Petition for Certiorari at 2, in Air & Liquid Systems Corp. v. DeVries, No. 17-1104, U.S. Supreme Court (filed Mar. 23, 2018).

[15]  The fundamental tenet in our jurisprudence has been expressed in various ways, including as the ancient maxim “lex non cogit ad inutilia.” Ohio v. Roberts, 448 U.S. 56, 74 (1980) (“The law does not require the doing of a futile act.”); Cary v. Curtis, 44 U.S. 236, 246 (1845) (“[T]he law never requires … a vain act.”); New York, New Haven & Hartford R.R. v. lannoti, 567 F.2d 166, 180 (2d Cir. 1977) (“The law does not require that one act in vain.”); Terminal Freight Handling Co. v. Solien, 444 F.2d 699, 707 (8th Cir. 1971) (“The law does not and should not require the doing of useless acts.”); Bohnen v. Harrison, 127 F. Supp. 232, 234 (N.D. Ill. 1955) (“It is fundamental that the law does not require the performance of useless acts.”); Stevens v. United States, 2 Ct. Cl. 95 (U.S. Ct. Cl. 1866) (“[T]he law does not require the performance of a useless act.”);  In re Anthony B., 735 A.2d 893, 901 (Conn. 1999) (“It is axiomatic that the law does not require a useless and futile act.”); Wilmette Partners v. Hamel, 594 N.E.2d 1177, 1187 (Ill. App. 1992) (“[I]t is a basic legal tenet that the law never requires a useless act.”); People v. Greene Co. Supervisors, 12 Barb. 217, 1851 WL 5372, at *3 (N.Y. Sup. Ct. 1851). See also Seaconsar Far East, Ltd. v. Bank Markazi Jomhouri Islami Iran, [1999] I Lloyd’s Rep. 36, 39 (English Court of Appeal 1998).

[16]  DeVries, 139 S.Ct. at 992.

[17]  DeVries, 139 S.Ct. at 994. The majority did cite Guido Calabresi’s text, The Costs of Accidents 311–318 (1970), but this is hardly empirical evidence of any of the extravagant claims made by the court.

[18]  Id.

[19]  Not to be confused with a bar of this name in New Orleans.

[20]  DeVries, 139 S.Ct. at 995.

[21]  Moragne v. States Marine Lines, Inc., 398 U.S. 375, 376 (1970) (suit against vessel owner); American Export Lines, Inc. v. Alvez, 446 U.S. 274 , 285 (1980) (suit against vessel owner); Miles v. Apex Marine Corp., 498 U.S. 19, 21-22 (1990) (suit against vessel’s operators and owner).

[22]  Yamaha Motor Corp. v Calhoun, 516 U.S. 199, 202, 213 (1996) (rejecting maritime law and applying state law in jet ski accident).

[23]  The Dutra Group v. Batterton, ___ U.S. ___, 139 S.Ct. 2275, 2287 (2019) (holding that maritime law does not countenance punitive damage awards, special solicitude or not). See generally Tod Duncan, “Air & Liquid Systems Corporation v. DeVries: Barely Afloat,” 97 Denver L. Rev. 621, 636 (2020) (criticizing the majority opinion’s reliance upon he special solicitude rationale without considering its relevance or appropriateness).

[24]  Crowell & Moring, “List of asbestos bankruptcy cases” (Jan. 24, 2020).

[25]  Lloyd Dixon & Geoffrey McGovern, “Bankruptcy Trusts Complicate the Outcomes of Asbestos Lawsuits,” Rand Research Paper (2015).

[26]  Lloyd Dixon & Geoffrey McGovern, “Bankruptcy’s Effect on Product Identification in Asbestos Personal Injury Cases,” Rand Research Report (2015) (noting that bankruptcy increases the likelihood that the bankrupt’s products will not be identified in subsequent tort case discovery).

Tort Law’s Sleight of Hand – Part 4

August 8th, 2020

Beshada’s refusal to consider the industrial context of asbestos claims, with the usual involvement of sophisticated employers charged with providing a complex safety program for its workers, became the judicial norm in many decisions in state and federal courts. Ostensibly this alleged inequality of knowledge about latent hazards would justify limiting the application of the sophisticated intermediary doctrine. Many courts accepted the claim, often without evidence, that the dissemination of knowledge of asbestos hazards was different from the pervasive understanding of silica, cobalt, beryllium, benzene, and other hazards.

Low-level, or short and intense exposures to one kind of asbestos, crocidolite, is associated with mesothelioma, but many manufacturers did not use crocidolite in their products and the knowledge about this danger of crocidolite emerged in a very dramatic and public way such that there was not likely to be any “secret” knowledge held back by the product manufacturers. The scientific evidence of the carcinogenicity of other fibers emerged at different times, and with respect to mesothelioma, there is clearly a dramatic difference in hazardous potentials between and among the different mineral fibers that make up the commercial category of asbestos. Clearly some courts have been impressed by the special hazards of “asbestos,” from even fleeting or nominal exposures, without distinguishing mineral fiber types.

In 1985, the Fourth Circuit, applying Virginia law, refused to apply the learning of Section 388 to an asbestos case arising out of employment by the Newport News Shipbuilding and Drydock Company. Without citing any evidence, the court explained that the defense was unavailable because the hazard was “very great,” the burden to warn was “not great,” and the employer was unaware of asbestos hazards during plaintiffs’ employment before 1964.[1] The employer at issue was a huge industrial concern, with an extensive industrial hygiene department. Furthermore, the shipyard was building ships for the United States Navy, under Navy supervision of almost a century when these cases were filed.

In 1990, the Fourth Circuit held in Willis v. Raymark Industies, that its previous 1985 decision was binding, even though the Willis case involved employees of E.I. du Pont & Nemours Company, a different employer from the court’s previous case.[2] The legal irony was thick. A year earlier, in 1989, the New Jersey Supreme Court affirmed a judgment against du Pont in a case brought by employees who established at trial that their employer had intentionally harmed them with respect to their use of asbestos.[3] One of the plaintiffs’ key “state of the art” witnesses throughout the 1980s and 1990s was Gerrit W. H. Schepers, who was the directory of the pathology laboratory at du Pont in the 1950s, and went on to work for the United States government in the 1960s and 1970s. As a testifying expert witness for plaintiffs, Schepers attempted to establish knowledge of asbestos hazards throughout the 1940s and afterwards.

Asbestos manufacturing defendants fared slightly better in front of Judge Jack Weinstein, after New York modified its statute of limitations to include a discovery rule for latent diseases arising from asbestos exposure. The defendants moved to dismiss the claims under the sophisticated intermediary doctrine.[4] In its analysis, citing New York and general case law support, the Judge Weinstein acknowledged the general availability of the doctrine, noting that:

“In certain circumstances, if the chain of distribution is such that the duty to warn ultimate users logically falls upon an intermediary in the chain, instead of the manufacturer, the “sophisticated intermediary” doctrine may completely protect a manufacturer from liability under a theory of negligence.”[5]

Judge Weinstein stopped short, however, of recognizing the sophisticated intermediary defense as dispositive in asbestos cases because, “the latent quality of the defect in asbestos products makes the issue of sophisticated intermediary and intervening negligence questions of fact for the jury to decide.”[6]

The rationale did not, however, explain very much, given that virtually all the sophisticated intermediary cases involved a latent defect. Judge Weinstein gave virtually no consideration to the extensive knowledge the United States government had about asbestos hazards in its shipyards, at all times that were material to the cases before him.

Knowledge of hazards of any product may change over time, as can the regulatory context for the use of the product. In 1970, the Occupational and Safety Health Act (OSHA)[7] went into effect, and essentially federalized employers’ obligations to provide comprehensive safety programs. The federal government gained increased authority to establish and enforce safety and health standards for virtually all workers in the United Sates. Previously, only companies with federal contracts were subject to regulations and inspections under the Walsh-Healy Act.

In 1971, President Nixon signed an Executive Order that acknowledged that the federal government, as the country’s largest employer:

“has a special obligation to set an example for safe and healthful employment. It is appropriate that the Federal Government strengthen its efforts to assure safe and healthful working conditions for its own employees.”[8]

The Order went on to make OSHA regulations applicable to federal places of employment.

After the passage of OSHA, employers in both the private and public sectors could no longer legitimately claim ignorance of their obligations to provide a comprehensive safety program that included engineering and administrative controls over respirable dusts and fumes. Detailed regulations concerning respirators, when and how they should be selected, used, fitted, cleaned, and replaced became national law.

The passage of OSHA affected courts’ willingness to extend Section 388 to asbestos personal injury cases. In some cases involving exposures after the creation of federal OSHA, courts have upheld the applicability of the sophisticated intermediary as a complete legal defense. For example, in Triplett v. Minnesota Mining & Manufacturing Company, the court, applying Indiana law, granted summary judgment to a respirator manufacturer, on basis of the sophisticated intermediary defense, in a post-OSHA asbestos lung cancer case.[9] Similarly, in Bean v. Asbestos Corporation Limited, a Virginia trial court upheld the defense for asbestos sales after 1970.[10] The courts in Triplett and Bean emphasized the equality of knowledge of asbestos hazards among suppliers and employers. In essence, the courts were taking judicial notice, based upon OSHA, that employers were knowledgeable and sophisticated about the relevant hazards.

In the early days of the asbestos litigation,[11] defendants made several attempts to implead the government, or to sue for indemnification after settling. With some few exceptions, these efforts were largely unsuccessful.[12]  There is, however, a huge corpus of primary historical documents that evidences the Navy’s extensive and sophisticated knowledge and expertise in the hazards of asbestos exposure.  In 1842, Congress enacted legislation that included the creation of the Navy Bureau of Medicine and Surgery (BUMED). Congressional legislation in 1871 gave the chief of BUMED the title of Surgeon General, with the rank of commodore. In addition to BUMED, the Navy would develop several operational divisions, including Naval Operations, Office of Naval Research, Office of Industrial Relations, Bureau of Naval Personnel, and Bureau of Ships, with overlapping responsibilities for health and safety. The Navy regarded asbestos insulation and fireproofing as essential to its military goals, and these multiple divisions all addressed safe use of asbestos materials.

Since at least 1922, the Navy kept informed of occupational hazards, including asbestos, through its own research, and through input from the Public Health Service and from other published research.[13] As war production of naval vessels ramped up in 1940, the Navy took an extensive interest in asbestos safety, both for Naval shipyards, as well as for private commercial shipyards that were constructing naval vessels.[14] The Navy published various journals and magazines to disseminate information to its medical and safety officers. Some of the relevant publications were Safety Review, starting in 1944, United States Navy Medicine, The Naval Medical Bulletin, and United States Navy Medical News Letter.

In the post-war era, the Navy remained intensely interested in the developing scientific record of asbestos hazards. Just as an example of the Navy’s continued monitoring of occupational health and safety developments from the academic, industrial, and labor communities, the reader may wish to look at the published Proceedings of the Third Annual Navy Industrial Health Conference (April 1951). This publication included an attendance list several pages long, showing naval officers from Naval Operations, Office of Naval Research, Office of Industrial Relations, Bureau of Ordinance, Bureau of Naval Personnel, and Bureau of Ships. The chief industrial hygienist from each Naval Shipyard was in attendance. The Navy’s conference was held concurrently with conferences of the Industrial Medical Association, and the American Conference of Industrial Hygiene Association. Over 100 medical officers, medical service corps industrial health officers, civilian industrial hygienists and nurses, from over 80 Navy stations and shipyards attended. Here is how the Proceedings described the Navy’s efforts:

“Industrial health is not new in the Navy. An occupational health service, similar to those in effect at great corporations as General Motors, Du Pont, Westinghouse and many others, has been functioning since 1941. * * *

The Navy has been in the forefront, along with other government agencies and great private corporations in developing an effective occupational health program. This period of defense mobilization finds the Navy among the leaders in the field or industrial medicine and industrial hygiene.”

The Navy was well aware of the increasing evidence of associations between asbestos exposures and some cancer outcomes.  Not that the Navy needed any warnings, in 1968, Irving Selikoff, of Mt. Sinai Medical Center, made a splashy media story about his having “warned” the Navy and other branches of the government about asbestos cancer hazards.[15]

For those who do have years to commit to reviewing the primary historical evidence, there is a substantial historical literature of secondary evidence that summarizes the key historical evidence.[16] The massive weight of the primary and secondary evidence makes incontrovertible the conclusion that the United States had equal or greater knowledge of the hazards of asbestos at all relevant times, and that the government was in a vastly superior position to control asbestos exposures, outfit employees and servicemen with personal protective devices, and to communicate risk information.

The tort law significance of the Navy knowledge is great. Historically, a large percentage of asbestos personal injury claims have been filed by Navy sailors and civilian shipyard workers at Navy and private contract shipyards, where they worked on naval vessels that incorporated asbestos-containing insulation products.

In some states, employer knowledge was inadmissible in strict liability cases, and plaintiffs’ counsel would withdraw their negligence claims when they saw that defense counsel were prepared to implicate the government and its extensive knowledge. Even in so-called strict liability cases, the intermediary’s knowledge had important potential in defending against punitive damage claims, which were often still in the case. And in some states, employer knowledge remained a defense in products liability trials, even when summary judgments were not given.[17]

In the Philadelphia County, Pennsylvania, asbestos litigation, plaintiffs’ counsel soon learned that reverse-bifurcation fit their litigation model perfectly: quick, inexpensive trials without the bother of countering liability defenses. When defendants occasionally found a judge who would permit all-issue trials, and they presented “state-of-the-art” or sophisticated intermediary defenses, they often surprised themselves as well as plaintiffs’ counsel and judges with their success.[18]


[1]  Oman v. Johns-Manville Corp., 764 F.2d 224, 233 & n.5 (4th Cir. 1985), cert. denied sub nom. Oman v. H.K. Porter, 474 U.S. 970 (1985). In 1985, the Fourth Circuit decided Beale v. Hardy, 469 F.2d 213 (4th Cir. 1985), which held that Section 388 was a complete defense in silicosis cases under Virginia law, in the absence of any warnings.

[2]  Willis v. Raymark Indus., Inc., 905 F.2d 793, 797 (4th Cir. 1990) (disallowing sophisticated intermediary defense based upon unsupportable factual predicate).

[3]  Millison v. EI Du Pont De Nemours & Co., 115 N.J. 252, 558 A.2d 461 (1989).

[4]  In re Joint Eastern & Southern District Asbestos Litig., 827 F. Supp. 1014 (S.D.N.Y. 1993).

[5]  827 F. Supp. at 1055 (citing both the Goodbar case and Restatement (Second) § 388).

[6]  Id. at 1055 (citations omitted).

[7]  84 Stat. 1590 (1970)

[8]  Executive Order 11612—Occupational Safety and Health Programs for Federal Employees (July 26, 1971), available at https://www.presidency.ucsb.edu/documents/executive-order-11612-occupational-safety-and-health-programs-for-federal-employees, last visited Aug. 7, 2020.

[9]  422 F. Supp. 2d 779 (W.D. Ky. 2006).

[10]  1998 WL 972122 (Va. Cir. Ct. 1998).

[11]  Dube v. Pittsburgh Corning Corp., 870 F.2d 790, 796-800 (1st Cir.1989) (holding that the government’s failure to warn of asbestos exposure hazards was not protected by discretionary function exception to the Federal Tort Claims Act, when Government never made affirmative decision whether to warn).

[12]  See generally Susan L. Barna, “Abandoning Ship: Government Liability for Shipyard Asbestos Exposures,” 67 New York Univ. L. Rev. 1034 (1992) (describing multiple attempts to obtain contribution or indemnification); Statement of Linda G. Morra, Associate Director Human Resources Division, on behalf of the United States General Accounting Office, “The Status of Asbestos Claims Against The Federal Government”; before the House Committee on the Judiciary, Subcommittee on Administrative Law and Governmental Relations (June 30, 1988).

[13]  See Louis Israel Dublin & Philip Leiboff, “Occupation Hazards and Diagnostic Signs: A Guide to Impairments to Be Looked for in Hazardous Occupations”; U.S. Bureau of Labor Statistics Bull. No. 306 (1922), republished as “Notes on Preventive Medicine for Medical Officers, United States Navy; Instructions to Medical Officers,” in 17 Division of Preventive Medicine 883, 898 (1922) (describing signs and symptoms of pneumoconiosis caused by chronic occupational asbestos exposure). Of course, the Navy was bound by the knowledge of the public health agencies as a matter of law. See Miller v. Diamond Shamrock Co., 275 F.3d 414, 422-23 (5th Cir. 2001) (“There can be no reasonable dispute that knowledge possessed by the United States Public Health Service, the Army Chemical Corps Chemical Warfare Laboratories, the President’s Science Advisory Committee, the National Academy of Sciences, the Office of the Army Surgeon General, the Navy’s Bureau of Medicine and Surgery, and the Advanced Research Project Agency of the Department of Defense is the knowledge of the military.”)

[14]  Ernest M. Brown, “Industrial hygiene and the Navy in national defense,” 1 War Medicine 3 (1940) (listing over a dozen occupational hazards in United States Naval shipyards, including asbestosis among workers who made pipe-insulation covering).

[15]  Thomas O. Toole, “U.S. Warned of Asbestos Peril,” Wash. Post A4, col. 1 (Dec. 4, 1968) (describing Dr. Selikoff’s warnings to the Navy and other branches of the U.S. government about the malignant and non-malignant risks of asbestos exposure).

[16]  Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011) (detailing historical documentation of the Navy’s knowledge of asbestos hazards in its shipyards); Denis H. Rushworth, “The Navy and Asbestos Thermal Insulation,” Naval Engineers J. 35 (Spring 2005); Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988) (providing a history of Navy knowledge through World War II); Jacqueline Karnell Corn & Jennifer Starr, “Historical perspective on asbestos: Policies and protective measures in World War II shipbuilding,” 11 Am. J. Indus. Med. 359 (1987); Peter A. Nowinski, “Chronology of Asbestos Regulation in United States Workplaces,” in Karen Antman & Joseph Aisner, eds., Asbestos-Related Malignancy  99 (1986) (Nowinski represented the government in direct lawsuits against the United States for its role in creating the asbestos hazards of federal and contract shipyards). See also Rachel Maines, Asbestos and Fire: Technological Tradeoffs and the Body at Risk (2005).

[17]  See, e.g., In re Related Asbestos Cases, 543 F.Supp. 1142 (N.D. Calif. 1982) (permitting defendants to assert that Navy was sophisticated user as an affirmative defense at trial).

[18]  See, e.g., O’Donnell v. The Celotex Corp., Phila. Cty. Ct.C.P., July 1982 Term, Case. No. 1619 (trial before Hon. Levan Gordon, and a jury; May 1989) (defense verdict in case in which plaintiffs presented negligence claims and defendants presented extensive evidence of the Navy’s superior knowledge of asbestos hazards and control of workplace).

Tort Law’s Sleight of Hand – Part 3

August 3rd, 2020

The suppression of the industrial nature of most asbestos personal injury cases was on full display in the New Jersey’s controversial decision in Beshada v. Johns-Mansville Products Corporation.[1] Without a record of what was known or knowable, the New Jersey Supreme Court held that defendants that sold asbestos-containing products without warning of the products’ latent hazards would be liable even when the hazards were “undiscoverable” at the time of marketing.[2] This holding was based upon a trial court record devoid of the state-of-art defense. The legal issue was created on the basis of plaintiffs’ motion to strike “state of the art” as a defense, even though plaintiffs had served expert witness reports that addressed state of the art, and despite the obvious relevance of such proofs to plaintiffs’ claims of negligence and punitive damages.[3]

The Beshada Court created hyperstrict liability by holding that knowledge of an asbestos-containing product’s hazards was irrebutably imputed to the manufacturer. The Court never dealt with the epistemiologic problems raised by its holdings (such as shifting scientific paradigms of justified belief from case series and animal studies to observational epidemiologic studies, the emergence of knowledge about smoking and lung cancer at the same time the asbestos epidemiology was being done,[4] and potential Gettier problems[5]).

The Court attempted to justify its regime of hyperstrict liability by adverting to the goals of spreading costs, avoiding injury, and simplifying factfinding.[6] As with most decisions of the era, the Court believed that the cost of injuries should not be borne by “innocent victims,” but there was no record evidence of innocence or of culpable conduct. More important, the Beshada Court never asked whether the industrial purchasers benefitted more economically from the use of asbestos-containing products, or whether the industrial purchasers were better positioned to protect the workers not only through warnings but through a comprehensive safety program that involved teaching, training, industrial hygiene measurements, engineering controls in the form of ventilation, and the selection, fitting, and maintenance of appropriate personal protective equipment such as respirators.

Of the 59 plaintiffs before the court in Beshada, 57 experienced their asbestos exposure in the course of employment for three large, sophisticated companies with substantial industrial hygiene technical capabilities: Jersey Central Power and Light Company, Hercules, Inc., and Research Cottrell, Inc.[7] One of these employers was a highly regulated utility, and all three were subject to state, and later federal, regulation of workplace asbestos exposure.

The Beshada decision thus ignored the reality that the employers were in the best position to avoid the harms claimed. The court also ignored the availability of employment benefits, such as life, accident, health, and disability insurance, and the availability of workers’ compensation as a method of loss spreading for injuries and occupational diseases that arose in the course of employment. The creation of hyperstrict liability for the state policy goals also undermined sensible safety incentives for the employers, which received the benefit of liens and subrogation rights against any recovery by the employees against remote industrial suppliers.[8]

The basic error was that the court sought to squeeze a complicated three-party industrial controversy into the overly simplified, and simply wrong two-party consumer model.[9]

Beshada was quickly branded as an example of excessive judicial activism.[10] It created a perverse incentive to give vague, overly broad warnings that ultimately would be unhelpful if not hurtful to workers, while trampling on the right to litigate issues. The two law professors whose work was relied upon in Beshada both criticized the illogic of the decision.[11] Within two years after deciding Beshada, the New Jersey Supreme Court retreated from its formulation of hyper-strict liability in a pharmaceutical products liability case involving an alleged injury from the use of tetracycline antibiotic.[12] Beshada was limited to its facts; in other words, it was a derelict on the brackish jurisprudential waters of New Jersey.

The disparate treatment between asbestos-containing and pharmaceutical products led to a constitutional challenge, which was rejected by a divided en banc federal district court, and then a panel of the Third Circuit.[13] During the pendency of the appeal from the en banc court, the district court entered a stay of all trials based upon Beshada’s hyperstrict liability rule. During this stay period, one very capable plaintiff’s lawyer, waived Beshada and proceeded to trial in a case before the Hon. Stanley Brotman, on a theory of general negligence for failing to warn. The jury returned a defense verdict on liability, which implied that it had found that plaintiff had failed to show a warning was reasonably required given what was known at the time of manufacture.

Another empirical test of Beshada’s fairness occurred in a state court case tried before the Hon. Thomas Mannion, in Middlesex County, New Jersey. The largest plaintiffs’ firm in New Jersey of the time wanted to pursue punitive damages against a particular asbestos product manufacturer. The manufacturer objected to Beshada’s hyperstrict liability in a case in which the plaintiff was already committed to presenting state-of-the-art evidence and detailed historical proofs. In order to obviate the defense objection, the plaintiff waived Beshada and proceeded to trial on negligence and punitive damages. The jury returned a defense verdict on liability.


[1]  90 N.J. 191, 447 A.2d 539 (1982).

[2]  90 N.J. at 196, 447 A.2d at 541.

[3]  Andrew T. Berry, “Beshada v. Johns-Manville Products Corp.: Revolution or Aberration in Products Liability Law,” 52 Fordham L. Rev. 786, 792 n.44 (1984) [cited below as Berry], citing Transcript of Motion to Strike State of the Art Defense at 51, Beshada v. Johns-Manville Prods. Corp., No. L-12930-79 (N.J. Super. Ct. Law Div. Oct. 9, 1981). Despite the lack of record evidence, the Beshada court was doubtlessly influenced by the lopsided historical narrative and the harsh characterization of warnings or lack of thereof in Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1104 (5th Cir. 1973) (referring to warnings first introduced on products in 1964, as “black humor,” even though the warnings were the same or similar to warnings mandated by OSHA in the early 1970s), cert. denied, 419 U.S. 869 (1974).

[4]  Collin Talley, Howard I. Kushner, and Claire E. Sterk, “Lung Cancer, Chronic Disease Epidemiology, and Medicine, 1948-1964,” 59 J. History Med. & Allied Sciences 329 (2004).

[5]  See Edmund L. Gettier, “Is Justified True Belief Knowledge?” 23 Analysis 121 (1963).

[6]  Beshada, 90 N.J. at 205-07, 447 A.2d at 547-48.

[7]  Beshada at 197-98, 447 A.2d at 543.

[8]  N.J. Stat. Ann. § 34:15-40 (1959).

[9]  See Berry at 794-95.

[10]  See, e.g., John W. Wade, “On the Effect in Product Liability of Knowledge Unavailable Prior to Marketing,” 58 N.Y.U. L. Rev. 734, 758-59 (1983); Sheila L. Birnbaum & Barbara Wrubel, “State of the Art and Strict Products Liability,” 21 Tort & Insur. L. J. 30, 33 (1985) (“In the context of a failure to warn case, it is clear that a product cannot be made safer by the addition of a warning if science and technology do not suggest to the manufacturer that there is any hazard or risk to warn about.”); C. Eric Funston, “The ‘Failure to Warn’ Defect in Strict Products Liability: A Paradigmatic Approach to ‘State of the Art’ Evidence and ‘Scientific Knowability’,” Ins. Couns. J. 39, 49 (1984) (observing that Beshada “blundered from their own jurisprudential quagmire into [the] swamp [of epistemology]”); Comment, “Requiring Omniscience: The Duty to Warn of Scientifically Undiscoverable Product Defects,” 71 Geo. L.J. 1635, 1653 (1983) (“broad generalities with little or no factual support”); Note, “Products Liability-Strict Liability in Tort-State-of-the-Art Defense Inapplicable in Design Defect Cases – Beshada v. Johns-Manville Products Corp., 90 N.J. 191, 447 A.2d 539 (1982),” 13 Seton Hall L. Rev. 625, 635 (1983) (“logically unsound”). The plaintiffs counsel of course declared Beshada a brilliant innovation. See Placitella & Darnell, “Beshada v. Johns-Manville Products Corp.: Evolution or Revolution in Strict Products Liability?” 51 Fordham L. Rev. 801 (1983).

[11]  John W. Wade, “On the Effect in Product Liability of Knowledge Unavailable Prior to Marketing,” 58 N.Y.U. L. Rev. 734, 758-59 (1983); see David Owen, “Bending Nature, Bending Law,” 62 Florida L. Rev. 570, 596 (2010) (discussing both Wade and Keaton’s criticisms).

[12]  Feldman v. Lederle Laboratories, 97 N.J. 429, 479 A.2d 374 (1984).

[13]  In re Asbestos Litigation, 628 F.Supp. 774 (D.N.J.1986) (eight to six), aff’d sub nom. Danfield v. Johns-Manville Sales Corp., 829 F.2d 1233 (3d Cir. 1987).