In several posts, I have addressed isolated issues in Professor Margaret Berger’s introductory chapter to the third edition of the Reference Manual on Scientific Evidence (RMSE 3d).  Let me back up and address the bigger, more disturbing picture.

Professor Berger was a well-respected evidence scholar, who had written about Daubert issues in her lifetime.  See generally Edward K. Cheng, ” Introduction: Festschrift in Honor of Margaret A. Berger,” 75 Brooklyn L. Rev. 1057 (2010).  Along with Judge Jack Weinstein, she was the author of Weinstein’s Evidence and Cases and Materials on Evidence.  Berger was intellectually opposed to the Daubert enterprise.  See, e.g., Margaret A. Berger & Aaron D. Twerski, “Uncertainty and Informed Choice:  Unmasking Daubert,” 104 Mich. L.  Rev. 257 (2005).  This opposition is clearly reflected in the Berger’s chapter in the new edition of the RMSE 3d.

Over the course of several years, Berger organized and supervised a series of symposia, Science for Judges.  Berger’s symposia involved many respected authors as well as some highly partisan, pro-plaintiff scholars.  Berger also participated in some of the four so-called Coronado Conferences, which featured discussions, with subsequent publications, on expert witness issues.  Both Science for Judges and the Coronado Conferences were sponsored by SKAPP, the Project on Scientific Knowledge and Public Policy, an anti-Daubert advocacy group, headed up mostly by plaintiffs’ expert witnesses.

According to SKAPP‘s website, the organization enjoyed past support from the Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Products Liability litigation.  SKAPP has consistently misrepresented the funding source of its anti-Daubert organization.  What SKAPP hides is that this “fund” is nothing more than plaintiffs’ counsel’s walking-around money from MDL 926, which involved, ironically, claims for autoimmune disease allegedly caused by silicone gel breast implants.  This MDL collapsed after 1999, when court-appointed experts and then the Institute of Medicine declared that the scientific evidence did not support plaintiffs’ causal claims.  See Judge Jack B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation” 2009 Cardozo L. Rev. de novo 1, 14 (2009) (describing plaintiffs’ expert witnesses in silicone litigation as “charlatans”; “[t]he breast implant litigation was largely based on a litigation fraud. … Claims—supported by medical charlatans—that enormous damages to women’s systems resulted could not be supported.”)

Flush with silicone MDL “common benefits money,” plaintiffs’ counsel helped fund SKAPP, rather than returning the money to their clients.  See Ralph Klier v. Elf Atochem North America Inc., 2011 U.S. App. LEXIS 19650 (5th Cir. 2011) (holding that district court abused its discretion in distributing residual funds from class action over arsenic exposure to charities; directing that residual funds be distributed to class members with manifest personal injuries).  As with all common benefit funds in multi-district litigations, the fund in MDL 926 was established pursuant to a court order, but it was certainly not money from the federal courts; SKAPP’s funding was from plaintiffs’ lawyers, who had been rebuffed and refuted by science in the courtroom.  Some of those plaintiffs’ lawyers used their left-over “walking-around” money, laundered through SKAPP, to help sponsor anti-Daubert articles in several fora, including Berger’s Science for Judges symposia, and the Coronado Conferences.  See “SKAPP A LOT” (April 30, 2010).

Given the misleading propaganda from SKAPP about the sources of its funding, Professor Berger may well have been misled, along with other scholars who participated at SKAPP-funded events.  On the other hand, I would have hoped that these scholars were aware that the “Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Liability litigation,” was nothing more than plaintiffs’ counsels’ spending allowance for advancing their own litigation goals.

Back in 2000, Professor Berger wrote a similar introductory chapter on admissibility of expert witness testimony in the second edition of the RMSE.  The second edition’s chapter, however, was decidedly less partisan, with relatively neutral presentations and discussions of the leading Supreme Court and lower court decisions.  Berger’s opposition to judicial gatekeeping was subdued and in check, as befitted a neutral introduction in a volume published by the Federal Judicial Center.

The third edition of the RMSE features a very different introduction by Professor Berger.  The gloves are off, and so is any pretense at non-partisanship.

Berger, in her chapter in RSME 3d, provides a detailed discussion of Daubert, Joiner, Kumho Tire, and Weisgram, but remarkably, Berger offers virtually no discussion of the amendments to, and revisions of, Rule 702, in 2000, after she wrote the RSME 2d chapter.  The actual text of the Rule, which is now the operative, controlling legal language, is not set out in her RSME 3d chapter; nor does Berger present any of the discussion from the Advisory Committee notes on the scope and purpose of the 2000 revision.  Instead, Berger reports, and acquiesces in a loose practice, employed by some trial courts that continue to cite and to rely upon Daubert, or Circuit-level pre-2000 precedent, without mentioning the new Rule.  Later in the chapter, Berger does discuss a specific-causation decision by Judge Jack Weinstein, in In re Zyprexa, 2009 WL 1357236 (E.D.N.Y. May 12, 2009), where he excluded the expert witness.  A footnote makes clear that Judge Weinstein held the witness’s testimony failed the three prongs of the new Rule 702.  RMSE 3d at 24 & n. 64.  This discussion obscures as much as illustrates that the rule, as amended, is the operative language.  The chapter fails to note that Judge Weinstein’s correct practice of citing the actual Rule is correct as a matter of legal process.  Berger is not shy elsewhere about criticizing trial judges’ practices so her passivity in connection with the disregard of a statutory revision of Rule 702 is difficult to understand except as a way to dodge the mandates of the revised rule.

The second edition had a lengthy discussion of Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir.), cert. denied, 519 U.S. 819 (1996), where Judge Posner famously declared “the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.”  See Margaret A. Berger, “The Supreme Court’s Trilogy on the Admissibility of Expert Testimony,” RMSE 2d 9, 24 (2000).  In the RMSE 3d, Rosen is gone, and now we have the philosophy of Milward, with its radical leveling of evidence and expert witness opinion to replace Rosen.  Remarkably, the cite to Milward had to have been added after Professor Berger’s death, but she no doubt would have approved.  There are no counterbalancing citations to important decisions, reversing trial judges for inadequate gatekeeping, such as Tamraz v. Lincoln Elec. Co., 620 F.3d 665 (6th Cir. 2010), cert. den., ___ U.S. ___ (2011), which were decided before Professor Berger’s death.

As an academic scholar and a citizen, Berger was entitled to her views about Daubert.  In her lifetime, she wrote and spoke about those views, sincerely and passionately.  Her writings and lectures helped provoke an important discussion on the role of science in the courtroom.  Her selection, however, to introduce a National Research Council volume on science in the courtroom seems dubious given her partisan views.  One could only imagine the hue and cry if, say, Peter Huber (of Galileo’s Revenge fame) were selected to write the volume’s introduction to the law of expert witness admissibility, or if tobacco companies had funded Science for Judges seminars, with money laundered through not-for-profit organizations.

Libertine View of Expert Witness Admissibility

Berger complains that the Federal Rules of Evidence were intended to be interpreted liberally in favor of the admissibility of evidence.  RMSE 3d at 36 (“the preference for admissibility contained both in the Federal Rules of Evidence and in Daubert itself”).  The word “liberal” does not appear in the Federal Rules of Evidence.  Instead, the Rules contain an explicit statement of how judges must construe and apply their evidentiary provisions:

“These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”

Rule 102 (“Purpose and Construction”).

Berger does not, nor can she, explain how a “let it all in” approach helps to secure fairness, eliminates unjustifiable expense and time of trial, or leads to just outcomes.  This would be a most illiberal result.  The truth will not be readily ascertained if expert witnesses are permitted to pass off hypotheses and ill-founded conclusions as scientific knowledge.

In any event, we should resist the mechanical, outcome-determinative interpretation of “liberal.”  Bertrand Russell presented a much more compelling understanding of what it means to have a liberal outlook in human enterprises:

“The essence of the liberal outlook lies not in what opinions are held, but in how they are held: instead of being held dogmatically, they are held tentatively, and with a consciousness that new evidence may at any moment lead to their abandonment. This is the way opinions are held in science, as opposed to the way in which they are held in theology.”

Bertrand Russell, “Philosophy and Politics,” in Unpopular Essays 15 (N.Y. 1950)(emphasis in original).  Lord Russell’s admonition counsels greater not less skepticism in the liberal outlook on opinions that lie at the fringes, and beyond the fringes, of human knowledge.

Now, it is true that the Supreme Court, back in 1993, spoke of the “Rule’s basic standard of relevance … is a liberal one.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587, 588 (1993).  Similarly, the Court spoke of the Rules’ general “liberal thrust” in relaxing barriers to opinion testimony.  But in adopting an epistemic standard, rather than a nose-counting, sociological standard of “general acceptance,” the Court did, in fact, liberalize the rules of admissibility for expert witness opinions.  Implicit in Professor Berger’s critique is an unhappiness with both the liberal epistemic and the conservative general-acceptance approach.  The principal remaining option apparently would be Ferebee‘s libertine, “let it all in” approach, which was rejected by the Supreme Court and Congress.

Serious Omissions in Berger’s “Admissibility of Expert Testimony”

A. Short Shrifting The Rules

I have previously written about the complete omission of Rule 703 and its role in ensuring the trustworthiness of expert witness opinion.  See “New Reference Manual on Scientific Evidence Short Shrifts Rule 703“ (Oct. 16, 2011).  And above, I have explored how Professor Berger studiously ignored the amended Rule 702 itself, in order to hold on to inconsistent dicta in cases that predated the statutory amendment.

The Federal Rules of Evidence are statutory law.  In 1972, the Rules were adopted by order of the Supreme Court, and were transmitted by the Chief Justice to Congress.  By law, the proposed rules “shall have no force or effect except to the extent, and with such amendments, as they may be expressly approved by Act of Congress.”  Pub. L. 93-12, Mar. 30, 1973, 87 Stat. 9.  The Supreme Court has made clear that the Federal Rules of Evidence are legislatively enacted and that the Court must interpret them as it would any statute.  See, e.g., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993) (courts must “interpret the legislatively enacted Federal Rules of Evidence as [they] would any statute”); United States v. Salerno, 505 U.S. 317, 322 (1992) (refusing to ignore the plain language of Rule 802 and 803; “To respect [the legislature’s] determination, we must enforce the words that it enacted.”); Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163 (1988).

One of the key lessons of Daubert itself was that the Frye rule did not survive the 1972 enactment of the Federal Rules of Evidence, given the lack of reference to the Frye rule in chapter VII of the rules.  The Rules trump precedent.  See David Bernstein, “Courts Refusing to Apply Federal Rule of Evidence 702” (May 6, 2006) (arguing that the language of the 2000 amended Rule 702 trumps the various dicta scattered about the Daubert quartet as a matter of legal process).  But see Glen Weissenberger, “The Proper Interpretation of the Federal Rules of Evidence: Insights from Article VI,” 30 Cardozo L. Rev. 4 (2009) (arguing, admittedly contrary to Supreme Court precedent and the majority of evidence scholars, that the Federal Rules of Evidence are something more akin to a codification of common law, and that the usual canons of statutory interpretation do not fully apply).

B.  Ignoring the Hierarchy of Evidence

Professor Berger not only omits consideration of the reasonableness of relying upon individual scientific studies, she fails to give any consideration to a hierarchy of evidence, which distinguishes between and among study designs.  To some extent, the RSME 3d chapters on epidemiology and on medical testimony remedy this failure, but Berger’s chapter is thus badly out of synch with key chapters in the RMSE 3d, as well as with how science evaluates claims of causality and reaches conclusions of causality (or not) from multiple studies of varying designs and quality.  See RSME 3d, at 561 (noting that certain study designs, such as cross-sectional and ecological studies, are frequently unsuitable for supporting inferences of causal association); id. at 723-34 (describing the hierarchy of evidence in which some studies may raise interesting questions without offering much in the way of answering those questions).  The result of Berger’s treatment is that evidence is “leveled,” allowing litigants to escape meaningful gatekeeping as long as they can point to some study, regardless of study invalidity or poor quality.

Berger’s Concerns About Credibility

A. The Credibility of Theories

Berger worries that the 702 gatekeeping process leads to courts’ making credibility determinations of the expert witnesses and their scientific theories.  FMSE 3d at 36.  Surely federal judges have at least the ability to distinguish analytically between credibility of witnesses and the scientific opinions that are proffered.  As for the credibility of experts’ theories, I confess it is difficult to understand what Berger may have had in mind other than the actual requirements of Rule 702 itself.  If the proffered testimony is not based upon:

1. sufficient facts or data,

2. the product of reliable principles and methods, and

3. a reliable application of principles and methods to the facts of the case

then, no doubt, the testimony will be unreliable and incredible. The clear lesson of expert witness litigation, and of science in the law generally, is that qualified, and apparently credible expert witnesses, sometimes advance opinions and conclusions that fail one or more of the requirements of Rule 702.  Berger seems to have conflated reliability and credibility as a way of waving judges off any searching inquiry into the former.

B. The Credibility of Defense Expert Witnesses

Without any substantial support in case law or in the Rules, Professor Berger posits a concern over whether courts should permit a broad inquiry into the defense expert witnesses’ relationships with the defendant.  RMSE 3d at 21-22.  Berger worries that defendants will support their Daubert challenges with testimony from academics from “highly respected academic institution[s],” which likely receive donations and research grants from private corporations.

The posited concern is curious because it assumes that the “Daubert” challenge is to the plaintiff’s expert witness.  Accepting the assumption, why should not the concern be over whether the plaintiffs’ expert witnesses are compromised by their bias, whether financial or positional?  Berger’s assumption ignores the fact that the credibility and qualifications of expert witnesses are generally not at issue in a challenge to the reliability of proffered opinion testimony.

Berger’s entire discussion of credibility is a rather fanciful and far-fetched way of injecting credibility into Rule 702 determinations as a way to argue that such determinations must be left for the ultimate trier of fact — the jury — charged with resolving credibility issues.

Berger’s discussion is itself incredibly lopsided and biased attack on defendants’ expert witnesses. Her discussion is also beside the point of the Rule 702 and 703 evidentiary issues.  Courts should be focused on the reasonableness of the challenged expert witness’s reliance upon facts and data, and whether the witness has used the methods of science in a reliable way to reach his or her opinions.  Furthermore, there is a stark asymmetry between plaintiffs and defendants, and their expert witnesses, with respect to litigation bias.  Defense counsel and defense expert witnesses (assuming that they are financially compensated) stand to lose by having courts exclude plaintiffs’ expert witnesses and dismiss plaintiffs’ claims.  Plaintiffs’ expert witnesses and plaintiffs’ counsel, collectively, the litigation industry, have everything to gain and nothing to lose by abrogating the gatekeeping process.  Professor Berger’s introduction to expert witness admissibility in RSME 3d, wittingly or not, attempts to aid that litigation industry.

Michael D. Green is one of the Reports for the American Law Institute’s Restatement (Third) of Torts: Liability for Physical and Emotional Harm.  Larry S. Stewart is an advisor to the ALI’s Tort Restatement, and a well-known plaintiffs’ trial lawyer, as well as a former president of the organization euphemistically named American Association of Justice (AAJ), and formerly known as the Association of Trial Lawyers of America.

Victor E. Schwartz, also an advisor to the Restatement project, and Christopher E. Appel, of Shook Hardy called attention to the incongruity of the Restatement’s Reporter joining forces with an AAJ former president to tout what the Restatement will do for plaintiffs.  See “Reshaping the Traditional Limits of Affirmative Duties Under the Third Restatement of Torts,” 44 The John Marshall Law Review 319, 319-20 (2011).   The offending article was printed in Trial, a publication of the AAJ.  Michael D. Green & Larry S. Stewart, “The New Restatement’s Top 10 Tort Tools,” Trial 44 (April 2010).

I tracked down a copy of this article to see whether the authors really were touting the Restatement’s Reporter as a tool for winning lawsuits by plaintiffs.  To my dismay, the authors were doing just that:

“The Restatement (Third) of Torts: Liability for Physical and Emotional Harm contains many clarifications and modifications that you can use to your clients’ advantage. Here’s a quick look at the most important updated provisions.”

* * *

“Trial lawyers handling tort cases have a powerful new tool: the Restatement (Third) of Torts: Liability for Physical and Emotional Harm.”

Id. at 44.  The article goes on to consider ten substantive areas within the scope of Restatement’s coverage where plaintiffs’ counsel could benefit from the ALI’s efforts:

1. The duty to use reasonable care as the default rule.
2. Legal causation.
3. Proof of causation by toxic substances.
4. Reasonable medical proof.
5. Affirmative duties.
6. Statutes as the basis for affirmative duties.
7. Land possessor duties.
8. Negligent infliction of emotional distress.
9. Res ipsa loquitur.
10. Abnormally dangerous activity.

Id.

As Victor Schwartz points out in his article, above:

“Traditionally, those in charge of the Restatement projects of the American Law Institute (ALI) have avoided any publication that could present the appearance of an agenda favoring either plaintiffs or defendants. While there is not an ALI ‘rule’” against such activity, the reason for this tradition is that Restatements are primarily a vehicle for judicial education. They are viewed by judges as an objective and neutral voice that ‘restates’ the most thoughtfully reasoned existing case law, reflecting sound liability rules and public policy.”

Schwartz & Appel at 320 (footnoted references omitted).  Perhaps the point could have made more dramatically by a thought experiment:  imagine that the Restatement’s reporter had written an article with another advisor, say Victor Schwartz, in For the Defense, on how the new Restatement can and should be used to help defendants avoid liability in tort claims.  Maybe the reporters are busy writing such an article, although I hope not.

The reporters, as well as many others in the ALI, spent a great deal of time and energy on the scholarship involved in producing the new torts restatement to date.  There is much that is sound, and some that is dubious in that scholarship.  Professor Green has written and spoken a great deal about his and the ALI’s work product, and there has been a healthy debate about many of the Restatement’s provisions.  The Green and Stewart article may have been offered as an encouragement to plaintiffs’ counsel to use of some of the controversial provisions of the Restatement, to help promote judicial acceptance of these provisions.  This approach appears inappropriate precisely because it casts the ALI and the Restatement’s Reporter as making common, partisan cause with plaintiffs’ counsel on controversial issues.  The Trial article serves only to jeopardize the credibility and impartiality of this Restatement.

“Now their view is the rule of law: Statistical significance is neither necessary nor sufficient for proving a commercial or scientific result.”

Statistics Experts

The perverse rhetorical distortions of the Matrixx case have begun.  The quote above, from the website of one of the amicus brief authors, will probably not be the last distortion or perversion of scientific method or of the holding of Matrixx Initiatives, Inc. v. Siracusano, 2011 WL 977060 (March 22, 2011, U.S. Supreme Court).  Still, the distortion of the holding raises some interesting questions about who these would-be friends of the Court are, and why would they misrepresent the case in a way that any first-year law student would see was incorrect.  What is the agenda of these authors?

I had never heard of Deirdre N. McCloskey or Stephen T. Ziliak before the Matrixx case.  After the decision was delivered on March 22, 2011, I started to look at the amicus briefs.  McCloskey and Ziliak filed one such brief, on behalf of the respondents.  Their brief was styled “Brief of Amici Curiae Statistics Experts Professors Deirdre N. McCloskey and Stephen N. Ziliak in Support of Respondents.”  The more I considered this amicus brief, the more troubling I found it, both procedurally and substantively.

1. No statistical organization (such as the American Statistical Association) joined this amicus brief, and none of the many statistician-lawyers who frequently contribute amicus briefs on quantitative issues was associated with their effort.  This was the first peculiarity of the McCloskey-Ziliak brief, which attracted my attention only after the Supreme Court issued its opinion in the Matrixx case.

2. The second remarkable fact about these amici is that they are not statisticians or statistics professors, despite titling their brief as that of “statistics experts.”  According to his website, Stephen T. Ziliak, is a Professor of Economics,in the department of economics, in Roosevelt University (Chicago). His doctorate was in economics.  Deirdre N. McCloskey is a professor of economics, history, English, and communication, at the University of Illinois (Chicago).  Of course, this is not to say that these professors do not have expertise in statistics.  Both authors have written on the history of statistics, but the title of their brief seems a bit misleading.  Why would they not say that they were economists?  I, for one, found this ruse peculiarly misleading for a brief filed in our highest Court.

3. The third curious fact is the incestuous nature of the brief’s authors.  McCloskey was Ziliak’s doctoral supervisor. Again, there is nothing wrong with a mentor and his or her student joining together in a project such as this, but the work suggests an intellectual inbreeding, which was, well, peculiar in that no one else with putative substantive expertise was involved in the amicus brief.

4.  Some of the McCloseky-Ziliak brief is unexceptional exposition about the meaning of Type I and Type II errors, and hypothesis testing.  The Supreme Court really did not need this information, which could readily be found in the Federal Judicial Center’s Reference Manual on Scientific Evidence.  Some of the brief, however, is peculiarly tendentious nonsense, which I will explore in follow-up posts.

5. The Supreme Court, in its opinion, did not dignify this amicus brief with a citation, but the amici nonetheless appear to have a delusionally inflated view of their influence.  Now there is nothing at all peculiar about such delusions in academia.  A short trip to Ziliak’s and McCloskey’s websites revealed many references to their efforts on the brief, including their (inflated) assessment of their influence. McCloskey’s website goes further, with what appears to be a press release, in which she claims, without citation or support that some of “their book and some of their articles did affect the case.”

6. The press release ends with the harrumphing, noted above:

“Now their [McCloskey and Ziliak’s] view is the rule of law: ‘Statistical significance is neither necessary nor sufficient for proving a commercial or scientific result.””

This statement, of course, is not the rule of law; nor is it the holding of the case.  The statement is so clearly wrong that the reader has to wonder about the authors’ academic pretenses, qualifications, and claimed disinterest in the proceedings.  Rhetorical excess is no stranger in the halls of academia, but our learned professors appear to have jumped the rhetorical shark.

This amicus brief certainly got my attention, and it raises serious questions about who files amicus briefs, and whether they distort the appellate process.   In a follow-up post, I will look at some of the substantive opinions put forward by McCloskey and Ziliak.  Like the curious distortions of their credentials, the  misleading assessment of their own influence, and the erroneous conclusion about the Matrixx holding, the substantive claims and statements by these authors, in their amicus brief, are equally dubious.  Their claims are worth exploring as a road map to how other irresponsible advocates may use and misuse the Matrixx.

In “Risk ≠ Causation,” I discussed the lack of scientific basis for confusing and conflating risk and cause.  For many years, the law was in accord, and plaintiffs could not substitute evidence of risk for evidence of cause in fact.  Some of the case law is collected, below.  The law in this area was fairly stable until Judge Weinstein’s important decision in the Agent Orange litigation, where the court confronted the limitations of epidemiologic evidence to support conclusions about specific causation. Judge Weinstein implicitly recognized the problem that very large relative risks certainly suggested that an individual case was likely to have been related to its antecedent risks.  Small relative risks suggested that any inference of specific causation from the antecedent risk was largely speculative, in the absence of some reliable marker of exposure-related causation. See In re Agent Orange Product Liab. Litig., 597 F. Supp. 740, 785, 817 (E.D.N.Y. 1984)(plaintiffs must prove at least a two-fold increase in rate of disease allegedly caused by the exposure), aff’d, 818 F.2d 145, 150-51 (2d Cir. 1987)(approving district court’s analysis), cert. denied sub nom. Pinkney v. Dow Chemical Co., 484 U.S. 1004  (1988); see also In re “Agent Orange” Prod. Liab. Litig., 611 F. Supp. 1223, 1240 (E.D.N.Y. 1985)(excluding plaintiffs’ expert witnesses), aff’d, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988). 

CASE LAW

Krim v. pcOrder.com, Inc., 402 F.3d 489 (5th Cir. 2005)(rejecting standing plaintiffs’ standing to sue for fraud absent a showing of actual tracing of sharings to the offending public offering; statistical likelihood of those shares having been among those purchased was insufficient to confer standing)

Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359–60 (7th Cir. 1998) (Posner, C.J.)

Norman v. National Gypsum Co., 739 F. Supp. 1137, 1138 (E.D. Tenn. 1990)(statistical evidence of risk of lung cancer from asbestos and smoking was insufficient to show individual causation, without evidence of asbestos fibers in the plaintiff’s lung tissue)

Washington v. Armstrong World Industries, 839 F.2d 1121 (5th Cir. 1988)(affirming grant of summary judgment on grounds that statistical correlation between asbestos exposure and disease did not support specific causation)

Thompson v. Merrell Dow Pharm., 229 N.J. Super. 230, 244, 551 A.2d 177, 185 (1988)(epidemiology looks at increased incidences of diseases in populations) 

Johnston v. United States, 597 F.Supp. 374, 412, 425-26 (D.Kan. 1984)(although the probability of attribution increases with the relative risk, expert must still speculate in making an individual attribution; “a statistical method which shows a greater than 50% probability does not rise to the required level of proof; plaintiffs’ expert witnesses’ reports were “statistical sophistry,” not medical opinion)

Robinson v. United States, 533 F. Supp. 320, 330 (E.D. Mich. 1982)(finding for government in swine flu vaccine case; the court found that that the epidemiological evidence offered by the plaintiff was not probative, and that it “would reach the same result if the epidemiological data were entirely excluded since statistical evidence cannot establish cause and effect in an individual

Sulesky v. United States, 545 F. Supp. 426, 430 (S.D.W.Va. 1982)(swine flu vaccine GBS cases; epidemiological studies alone do not prove or disprove causation in an individual)

Olson v. Federal American Partners, 567 P.2d 710, 712 13 (Wyo. 1977)(affirming judgment for employer in compensation proceedings; cigarette smoking claimant failed to show that his lung cancer resulted from workplace exposure to radiation, despite alleged synergism between smoking and radiation).

Heckman v. Federal Press Co., 587 F.2d 612, 617 (3d Cir. 1977) (statistical data about a group do not establish facts about an individual).

Crawford v. Industrial Comm’n, 23 Ariz. App. 578, 582-83, 534 P.2d 1077, 1078, 1082-83 (1975)(affirming an employee’s award of no compensation because he was exposed to disease producing conditions both on and off the job; a physician’s testimony, expressed to a reasonable degree of medical certainty that the working conditions statistically increased the probability of developing a disease does not satisfy the reasonable certainty standard)

Guenther v. Armstrong Rubber Co., 406 F.2d 1315, 1318 (3d Cir. 1969)(holding that defendant cannot be found liable on the basis that it supplied 75-80% of the kind of tire purchased by the plaintiff; any verdict based on this evidence “would at best be a guess”). 

In re King, 352 Mass. 488, 491 92, 225 N.E.2d 900, 902 (1967)(physician expert’s opinion that expressed a mathematical likelihood that claimant’s death was caused by his accident was legally insufficient to support a judgment)

Garner v. Heckla Mining Co., 19 Utah 2d 367, 431 P.2d 794, 796 97 (1967)(affirming denial of compensation to family of a uranium miner who had smoked cigarettes and had died of lung cancer; statistical evidence of synergistically increased risk of lung cancer among uranium miners is insufficient to show causation of decedent’s lung cancer, especially considering his having smoked cigarettes)

Mahoney v. United States, 220 F. Supp. 823, 840 41 (E.D. Tenn. 1963)(Taylor, C.J.)(holding that plaintiffs had failed to prove that their cancers were caused by radiation exposures, on the basis of their statistical, epidemiological proofs), aff’d, 339 F.2d 605, (6th Cir. 1964)(per curiam)

Kamosky v Owens-Illinois Co., 89 F. Supp. 561, 561-62 (M.D.Pa. 1950)(directing verdict in favor of defendant; statistical likelihood that defendant manufactured the bottle that injured plaintiff was insufficient to satisfy plaintiff’s burden of proof)

Sargent v. Massachusetts Accident Co., 307 Mass. 246, 250 (1940)(“It has been held not enough that mathematically the chances somewhat favor a proposition to be proved; for example, the fact that colored automobiles made in the current year outnumber black ones would not warrant a finding that an undescribed automobile of the current year is colored and not black, nor would the fact that only a minority of men die of cancer warrant a finding that a particular man did not die of cancer. The weight or preponderance of the evidence is its power to convince the tribunal which has the determination of the fact, of the actual truth of the proposition to be proved. After the evidence has been weighed, that proposition is proved by a preponderance of the evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may linger there.”)

Day v. Boston & Maine R.R., 96 Me. 207, 217–218, 52 A. 771, 774 (1902) (“Quantitative probability, however, is only the greater chance.  It is not proof, nor even probative evidence, of the proposition to be proved.  That in one throw of dice, there is a quantitative probability, or greater chance, that a less number of spots than sixes will fall uppermost is no evidence whatever that in a given throw such was the actual result.  Without something more, the actual result of the throw would still be utterly unknown.  The slightest real evidence would outweigh all the probability otherwise.”)

LEGAL COMMENTARY

Federal Judicial Center, Reference Manual on Scientific Evidence 337 (2d ed. 2000)( “A final caveat is that employing the results of group-based studies of risk to make a causal determination for an individual plaintiff is beyond the limits of epidemiology. Nevertheless, a substantial body of legal precedent has developed that addresses the use of epidemiologic evidence to prove causation for an individual litigant through probabilistic means, and these cases are discussed later in this reference guide.”)

Special Committee on Science and Law, “An Analysis of Proposesd Changes in Substantive and Procedural Law in Response to Perceived Difficulties in Establishing Whether or Not Causation Exists in Mass Toxic Tort Litigation,” The Record of the Ass’n of the Bar of the City of N.Y. 905, 916, 920 (1986)(epidemiologic evidence cannot answer causation issue, with “any certainty,” in the case of an individual claimant whose disease occurs “naturally” in unexposed people).

Dore, A Proposed Standard for Evaluating the Use of Epidemiological Evidence in Toxic Tort and Other Personal Injury Cases, 28 Howard L.J. 677, 692 (1985)(individual causation questions are beyond the competence of epidemiologists and the description of epidemiology)

E. Cleary, et al., eds., McCormick on Evidence § 209, at 646 & n.1 (3d ed. 1984)( “In and of itself, statistical analysis can never prove that some factor A causes some outcome B.  It can show that in a sample of observations, occurrences of B tend to be associated with those of A, and it can suggest that this statistical association probably would be observed for repeated samples.  But the association, even though “statistically significant,” need not be causal.  For instance, a third factor C could be causing both A and B.  Thus, over some time period, there may be a correlation between the number of people smoking cigarettes and the number of certain crimes committed, but if told that the population was growing rapidly during this time, no one would think that this proves that smoking causes crime.  Experimental design and some forms of statistical analysis can help control for the effects of other variables, but even these merely help formulate, confirm or refute theories about causal relationships.”)

Cong. Research Serv. Library of Cong., Report to the Subcommittee on Science, Research and Technology, “Review of Risk Assessment Methodologies,” 95th Cong., 1st Sess. 11 (Mar. 1983)(recognizing that epidemiologic predictions of disease incidence among groups can establish establishing statistical associations, but show specific causation) 

Solomons, “Workers’ Compensation for Occupational Disease Victims:  Federal Standards and Threshold Problems,” 41 Alb. L. Rev. 195, 201 (1977)(“suggesting that epidemiological showing a high probability of employment relatedness of lung cancer in an asbestos insulation worker, for example, would probably not establish causation in an individual claim.”) 

Estep, “Radiation Injuries and Statistics:  The Need for a New Approach to Injury Litigation,” 59 Mich. L. Rev. 259, 268-69 (1960)

If Ms. Valerie Schremp Hahn had not reported the story in the St. Louis Post-Dispatch, then the story would had to have been invented by a tort reformer, or perhaps by a masochistic torts law professor.

Mr. Poisson is a murderer; actually he was convicted of involuntary manslaughter, as a result of his crime.  He stole the tip jar, containing less than $5.00, from a Starbucks coffee shop in Crestwood, Missouri, a suburb of St. Louis.  A paying customer, Roger Kreutz, saw this crime unfold, and yearing for a Darwin award, gave chase to the purloining Poisson.  A struggle ensued, but Poisson managed to get into his get-away car, and back into Mr. Kreutz.  Mr. Kreutz died shortly afterwards from the mayhem. See Hahn, Estate of man sues Starbucks over death (March 9, 2011).

Having served one year in prison, Mr. Poisson is now a free man.  The surviving Kreutz family has focused their outrage not at the murderous thief, but at Starbucks for the grievous misstep of having left the tip jar out on the counter without a warning.

Lest you think that the Kreutz family is a narrow-minded, money-grubbing lot, consider this.  Last year, the Kreutzes invited Poisson to a reunion at the Crestwood Starbucks, to shower him with forgiveness, and to help with the planting of a memorial tree for Roger.  Ms. Hahn’s article inclues a photograph, of Mr. Poissson, with a sinister smile, spreading the ashes of his victim, on the ground around a young tree.  Presumably, Mr. Poisson had enough sense not to go into the nearby Starbucks shop, where he might have been tempted once again by the tip jar, or perhaps by some old woman’s handbag.

And lest you think that the Kreutz family is a forgiving lot, consider this.  The Kreutzes have filed a wrongful death suit against Starbucks.  Roger’s death, they say, was directly and proximately caused by leaving the tip jar on the counter, unanchored and without a warning to innocent bystanders not to chase anyone who might steal the tips.  Mr. Poisson, who had received absolution for his murderous deed from the Kreutzes, was not named in the suit.

The story is almost too sick to be true.  The story is almost sick enough to be a law professor’s torts examination problem. 

What are Starbucks’ legal options?  Until they have a chance to appeal to the court of common sense, Starbucks might consider impleading Mr. Poisson, the agent of death in this case.  Perhaps they ought to sue the Kreutzes for having caused emotional distress by their intentional, wonton trespass arising from spreading Roger Kreutz’s ashes on the ground outside their coffee shop.  Finally, perhaps a subsequent, remedial is in order:  post Mr. Poisson’s picture on the walls of all Starbucks stores, to identify him, his previous crime, and to caution patrons not to chase him if he robs the store lest they want to end up like Roger.

This lawsuit will be worth watching.

The Kreutzes’ misdirected lawsuit is hardly unique in the annals of American law.  Consider all the lawsuits directed at companies that supply products and materials to employers, who in turn fail to control and supervisor workplace conditions.  When employees are harmed, they cannot sue their employers because of the preclusive effects of most Worker’s Compensation Acts.  The result is that the injured workers choose to sue the remote suppliers, who cannot control and supervise the workplace.  Why?  Because you can always sue.  Sadly, this sort of thing happens all the time.

Christopher J. Robinette, at TortsProf Blog, thoughtfully provided a link to a new paper, in press, by Professor Robert Rabin.  The paper is a short romp through the last few decades of toxic tort law.  Robert L. Rabin, “Harms from Exposure to Toxic Substances:  The Limits of Liability Law,” 38 Pepperdine L. Rev. 101 (2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1747907

Having lived and practiced law through the romp, I thought it would make for an interesting read.

Professor Rabin describes the growth and contraction of judicial activism in response to popular enthusiasm for environmental and products liability.  As part of historical review, Rabin describes the growth of strict product liability, the advent of medical monitoring, fear, and increased risk damages, and the application of class action procedures to so-called toxic torts.

The story is familiar, but here it is told with enthusiasm for the very idea of liability.  Although I may be misreading the piece, Rabin seems to share the popular enthusiasm for liability, and regrets missed opportunities to impose even greater liability.  For instance, Rabin tells us that the “signals” sent by mass tort cases involving asbestos, Agent Orange, and Dalkon Shield, were “encouraging,” while the Bendectin litigation was one of the “notable litigation failures.” Id. at 105

The reader is challenged to imagine exactly what Professor Rabin has in mind by his scorecard of successes and failures.  Why, for instance, would anyone consider the asbestos litigation encouraging?  Asbestos litigation can take credit for dozens of bankruptcies, with the erosion of the country’s industrial manufacturing capability.  Jobs have been lost.  The asbestos litigation can take further credit for:

• disruption and destruction of insurance markets,
• procedural innovations, such as collusive class actions that sold out future claimants,
• collusive bankruptcies that favored powerfully positioned plaintiffs’ law firms,
• egregious consolidations
• magic jurisdictions known “easy law,”
• special rules for asbestos cases that deprived defendants of their opportunity to prepare defenses

Of course, procedural peculiarities of asbestos litigation pale in comparison with the substantive abuses:

• fraudulent product identification,
• fraudulent diagnoses,
• unlawful and unethical mass screenings,
• diluted causation standards,
• markets for junk medicine
• speculative damages for fear and risk of unrelated diseases
• governmental avoidance of liability for its widespread use of asbestos in shipyards, and elsewhere

A sensible reaction would be to condemn asbestos litigation, and similar enterprises, as grotesque failures, and to cede the control of  risks, to the extent they are real, to federal and state police powers.  Here, however, Professor Rabin goes to an even farther extreme:  he tells us that “regulation has played virtually no role at all in reducing risk and compensating victims.”  Id. 113.  Rabin tells us that the regulatory failure was “especially evident in the case of asbestos,” which continued to be used in marketed products, and thus “remained unregulated in any meaningful sense, until the toll of death and disease had spiraled entirely out of control.”  Id. at 113 & n 62. 

Well, most (but not all) regulations of asbestos deal with mitigating risk, actual or potential, and not with providing compensation.  So on that score, we can hardly fault EPA, OSHA, CDC, NIOSH, etc., in their handling of health risks from asbestos.  The remainder of this assessment is equally difficult to understand.  The landmark case of Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973), cited by Professor Rabin, came one year before asbestos-containing insulation products were banned.  To be sure, EPA and OSHA have failed to ban all uses of asbestos, but their failure is driven by a lack of scientific knowledge that extremely low exposures to asbestos, and especially to chrysotile asbestos, are of any moment at all.  Asbestosis has become a medical curiosity in the last decade or so.  Lung cancer continues of course because men and women continue to smoke tobacco products.  Mesothelioma rates have stabilized or decreased, and the orthodoxy that asbestos causes gastrointestinal cancers has been debunked by this country’s Institute of Medicine.  Tellingly, Professor Rabin cites no support for his opinion that the failure to regulate low exposures to asbestos played any role in producing a spiral of death and disease. 

And why was Bendectin litigation a failure?  A new-age style of consolidated trials of multiple claimants in federal court ended in a defense verdict on general causation.  Although a few state courts were more hospitable to the plaintiffs’ claims, the Bendectin litigation taught the federal bench and most state courts about the quality and quantity of extremist advocacy on the part of claimants.  We owe Havner and Daubert, and a host of lesser known cases to Bendectin litigation.  So although much work needs to be done, one of Bendectin’s litigation successes was the education of American courts in the ways of statistical and epidemiologic evidence.  Ultimately, the courts put their teeth into standard procedural devices, such as summary judgment and expert witness gatekeeping, to put the Bendectin claims to rest.  Before the manufacturer, Merrill Richardson achieved vindication, however, it pulled an efficacious medication from the market, despite the absence of reliable evidence to support the claims that it caused birth defects.  Perhaps Rabin suggested that Bendectin was a litigation failure because the litigation process could not shut down the unfounded allegations and claims in time to save a worthwhile medication.

Absent from Professor Rabin’s historical discussion is any mention of the silicone gel breast implant litigation, which took hold with the advocacy of expert witnesses, described by Judge Jack Weinstein as “charlatans,” B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation.”   The massive, toxic litigation inspired by silicone led to billions of dollars in settlements before a few courageous judges (including Judge Weinstein) were willing to pay attention to the science in a more discriminating fashion.  Also absent from Rabin’s retrospective is any mention of the silica litigation, with its rampant fraud that has led to the defrocking of several physician witnesses.  In re Silica Products Liab. Litig., MDL No. 1553, 398 F.Supp. 2d 563 (S.D.Tex. 2005).

In his final analysis, Professor Rabin seems to acknowledge that the enthusiasm of the 1970s and early 1980s had to give way to other institutional goals, values, and considerations.  What Rabin does not say, about the abuses and excesses of toxic torts, and the toxic litigation it spawned, however, could fill volumes.

For reasons that are not clear, the Reporters for the American Law Institute’s most recent torts Restatement decided to tackle an expert witness issue, the meaning of “reasonable degree of medical certainty” (RDMC). The discussion is tucked away in a comment and the accompanying note, and might easily be missed by readers interested in the restated principles of tort law.  Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 28, cmt. e (2010).  The phrase RDMC is usually incanted by an expert witness, or in a leading question by an examining lawyer, to qualify the witness’s opinion about a diagnosis, a causal attribution, a prognosis, or some other medical or scientific issue.  Indeed, the phrase is usually modified for non-medical expert witnesses, for whom it takes the form of “reasonable degree of scientific certainty.”  In any event, the phrase is used in tort cases, but also in criminal, contract, equity, trusts and estate, and other cases.  There is nothing unique about the usage in torts cases; nor is there any substantive relationship between the phrase RDMC and the law of torts. 

The Reporters for the Tort Restatement, however, found a “troubling inconsistency” between the standard of certitude for expert witnesses and the standard for the overall burden of proof in most torts cases, the so-called preponderance of evidence.  To resolve the apparent inconsistency, the Reporters suggest that courts adopt a different standard for expert witnesses to use, a “more likely than not” standard.  For most jurisdictions, this standard will be quite novel. The Restatement’s suggested standard has been the subject of previous critiques.  See James Beck & Mark Hermann, “A Critique of ALI’s Proposal to Bar Expert Testimony to a ‘Reasonable Degree of Professional Certainty’,” 2 West’s Medical Malpractice Law Report 1 (May 11, 2007); James Beck, “ALI Draft Would Abolish ‘Reasonable Degree of Professional Certainty’ Requirement” (April 12, 2007); John Day, “ALI Rejects ‘Reasonable Degree of Medical Certainity [sic]’” (May 18, 2007).

The inconsistency perceived by the Reporters, however, is non-existent.  The standards assess two very different measures – one assesses the level of certainty that an expert witness possesses about an opinion that is necessary to the case, and the other assesses the overall quantity of evidence that the party with the burden of proof has presented for each element of every claim that make up his case.  The two standards are not even close to measuring something that can or would conflict.  The independence of the standards can easily be seen when one realizes that expert witnesses in tort cases testify about issues that carry a burden of proof of clear and convincing evidence, as is often the case for tort cases involving fraud, conspiracy, or punitive damage claims.  The law of crimes typically requires proof beyond a reasonable doubt, but when expert witnesses testify about cause of death or of harm, the law does not conflate the burden of proof with the standard for expert witness certainty, and exclude experts who cannot opine about their conclusions beyond a reasonable doubt. 

Rather than creating a “troubling inconsistency” by interpreting RDMC as different from preponderance of evidence, courts are avoiding a conflation of different standards that would lead to a much deeper, more widespread “troubling confusion” throughout all areas of the law that involve expert witness opinion testimony.  One of the cases cited by the Reporters in their note to Comment e illustrates the error.  Bara v. Clarksville Mem. Hosp. Sys., Inc., 104 S.W.3d 1 (Tenn. App. 2002).  The Reporters’ explanatory parenthetical identifies this case as “holding instruction to the jury requiring plaintiff to prove causation to reasonable degree of medical certainty was erroneous and required reversal.”  This point is exactly the error made by the Reporters; the trial court involved had confused, just as the Reporters have, the standard for the jury with the standard of certitude for the expert witness.  Adopting a “more likely than not” standard for expert witness certitude would be a wholesale change in the law, and would not avoid any conflict.  Comment e is based upon a basic category mistake.

 The Restatement acknowledges that its proposal is at odds with the law of several states, such as Pennsylvania, where expert witnesses must opine to a “reasonable degree of professional certainty.”  McMahon v. Young, 442 Pa. 484, 485, 276 A.2d 534, 535 (1971).  Accord Menarde v. Philadelphia Transp. Co., 376 Pa. 497, 501, 103 A.2d 681 (1954); Nestor v. George, 354 Pa. 19, 46 A.2d 469, 472 (1946) (medical opinions of possible, or even probable, causes are incompetent to establish causation); Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 206, 133 A. 256, 258 (1926) (a “less direct expression of opinion would fall below the required standard of proof, and therefore would not constitute legally competent evidence”); Griffin v. University of Pittsburgh Medical Center-Braddock Hosp., 950 A.2d 996, 2008 Pa. Super. 104, * (2008), alloc. denied, 601 Pa. 680; 970 A.2d 431 (2009); Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1027, 1031 (Pa. Super. 2001); McCann v. Amy Joy Donut Shops, 325 Pa. Super. 340, 472 A.2d 1194 (1984); Schwartz v. Feldman, 196 Pa. Super. 492, 175 A.2d 153 (1961).  See also Beezer v. Baltimore & Ohio RR, 107 F.Supp. 361, 362 (W.D.Pa. 1952), aff’d, 203 F.2d 954, 954 (3d Cir. 1953) (per curiam).  Pennsylvania courts have made clear that this level of certainty is more than a mere probability, and this requirement is especially important in Pennsylvania, where the reliability standard is either unclear or not confidently applied by its courts.

Pennsylvania is certainly not alone in interpreting “reasonable degree of medical certainty” to mean more than a bare probability.  The law of Kansas, like that of Pennsylvania, requires causation to be proven by expert testimony to a reasonable degree of medical certainty.  Johnston v. United States, 597 F.Supp. 374, 412 (D. Kan. 1984).  As the court noted in Johnston, a statistical method that attributes a greater than 50 percent probability to two events being causally related does not satisfy the reasonably certain level of proof.  Id.  Statistical risk calculations used to show causation require a “healthy degree of skepticism,” and should not be relied upon to give a deceptively easy answer to a complex issue.  Id. at 394 – 95.

The Reporters criticize the traditional RDMC standard because it fails to assure the quality of expert witnesses’ “qualifications, expertise, investigation, methodology, or reasoning.”  This is, of course, true but irrelevant.  The RDMC standard is not the only standard that applies to expert witnesses, and there is no reason to believe that it ever was used to as the sole guarantee of adequacy of every aspect of expert witness opinion testimony.  Indeed, as numerous cases have pointed out, the standards of Federal Rules of Evidence 702 and 703 are totally independent of witness qualifications.  Some very expert expert witnesses have been precluded from testifying to dubious opinions.

Comment e also suffers from a temporal incoherence.  The Restatement urges the adoption of “the same preponderance standard that is universally applied in civil cases.  Direct and cross-examination can be employed to flesh out the degree of certainty with which an expert’s opinion is held and identify opinions that are speculative and therefore inadmissible.” As noted above, the preponderance standard is not universally applied in civil cases, and certainly not in criminal cases.  More important, making a standard of admissibility turn on the outcome of direct and cross-examination is incoherent because the opinion must be first admissible before it can be the subject of these examinations.  Leaving the issue to motions to strike would unrealistically require courts and juries to “unring the bell,” which all have heard in the courtroom.

 The Restatement further criticizes RDMC because it “suggests reliance on medical or scientific standards of proof,” and “seems to impose a high threshold for the opinion to be admissible.”  Id. at Comment e.  These criticisms further reveal that the Restatement has wondered into the field of evidence and away from the subject of torts.  The concern implicit in these criticisms, however, curiously suggests that physicians and scientists should not rely upon medical or scientific standards in the courtroom.  (Scientists would rarely make the mistake lawyers make of referring to evidence as “proof.”)  The Restatement, having wondered into the field of expert evidence, and having waived off medical and scientific standards, begs the question as to what standards should be employed by expert witnesses. 

The Restatement’s suggestion that the expert witnesses should be held to give opinions that are “more likely than not” true fails to resolve the problems that the Reporters perceive in the RDMC standard.  Even in civil cases, subject to a preponderance standard for the burden of proof, the Restatement’s comment e would be unworkable. 

First, the certainty requirement applies to all expert testimony, regardless whether proffered by the party with the burden of proof on the issue.  If we were to follow the Reporters’ reasoning, we would have to abandon any standard for expert witnesses presented by the party without the burden of proof, to ensure a concordance between the two standards.  We would also have to raise the burden on expert witnesses when they offer opinions that are essential to satisfying elements of a claim that requires more evidence than a mere preponderance.

Second, expert witness opinion testimony is often based upon assumptions, which the trier of fact may find are not established or which are themselves subject to some level of uncertainty.  The expert witness’s opinion, expressed to a mere probability, will often then fail to be sufficiently weighty to support a verdict because of the uncertainty in the witness’s assumptions, premises, or personal credibility.  For example, a jury, in evaluating an expert witness’s opinion that was barely “more likely than not,” would have to find that the witness was absolutely credible, and that the bases of his opinion were impeccable if they were to vote for the party with the burden of proof.  Similarly, trial courts might well find themselves granting judgments notwithstanding the verdict if expert witnesses gave opinions that barely met the preponderance standard because any doubt about the credibility or witness’s premises would unravel the sufficiency of the case given to the jury.

Third, there are even more far-reaching problems with simply substituting “more likely than not” for RDMC as a threshold requirement of expert witness testimony.  The Restatement Comment implies that expert witnesses can discern the difference between an opinion that they believe is “more likely than not” and another which is “as likely as not.”  On some occasions, there may be opinions that derive from quantitative reasoning, for which an expert witness could truly say, with some level of certainty, that his or her opinion is “more likely than not.”  On most occasions, an expert witness’s degree of certainty is a qualitative opinion that simply does not admit of a quantitative characterization.  The Restatement’s comment perpetuates this confusion by casting the RDMC standard as a bare probability.

Fourth, the Restatement’s Comment suggests that expert witnesses are themselves expert in their own level of certainty, and that they have the training and experience to distinguish an opinion that is 50.1% likely from another that is only 50% likely.  The assignment of precise mathematical probabilities to personal, subjective beliefs is a doubtful exercise, at best.  See, e.g., Daniel Kahneman and Amos Tversky, “Judgment under Uncertainty:  Heuristics and Biases,” 185 Science 1124 (1974). 

Given all the vagaries of “more likely than not,” the Restatement’s novel standard is not likely to bring new clarity to this aspect of expert witness opinion testimony.  Ultimately, Comment e, to Section 28, is a frolic and detour in the law of torts.  Although professionals who find themselves on the witness stand may not recognize the legalistic locution of RDMC, they immediately recognize that there are some opinions that are not sufficiently strongly to act upon in a professional context.   The courts that impose a RDMC standard similarly recognize that the mere conjunction of expertise and opinion is an insufficient warrant to permit a jury to receive the opinion.  See Schachtman, “Reasonable Degree of Medical Certainty” (Dec. 3, 2010).

Fear and increased risk of cancer in asbestos cases have been considered by the United States Supreme Court, by the United States Court of Appeals, by federal District Courts, by state Supreme and appellate courts, all around the country, but rarely or never with the good sense and confidence exhibited by a lone Common Pleas judge in Philadelphia, back in 1986.  In a decision that has gotten way too little recognition, Judge Abraham Gafni explained the key importance of base rates in litigating risk.  Sutcliffe v. G.A.F. Corp., 15 Phila. 339, 1986 Phila. Cty. Rptr. LEXIS 22, 1986 WL 501554 (1986).  Judge Gafni’s short decision is still required reading for every lawyer who litigates issues of risk in personal injury or medical monitoring claims.

The Sutcliffe case was like many other Philadelphia asbestos cases.  James Sutcliffe had been an insulator, from 1954 to 1974, at the Philadelphia Naval Shipyard, where he personally worked with asbestos insulation materials.  Id. at 341.  After he retired, Mr. Sutcliffe was diagnosed with asbestosis.  Rather than suing the party responsible for his working conditions, the Navy, under the Federal Employer’s Liability Act, Sutcliffe sued the remote insulation suppliers, who had no control over safety at his workplace.  At trial, Sutcliffe’s counsel called Dr. William Atkinson, a local pulmonary physician, as an expert witness to give an opinion about the diagnosis of asbestosis, and an opinion as to Sutcliffe’s increased risk of cancer.  Dr. Atkinson characterized Sutcliffe’s increased risk of lung cancer – approximately three to five-fold increased risk — as a multiple of a baseline, but Atkinson failed to provide the magnitude of the baseline risk.  Id. at 342 – 43.  The court found that this testimony was meaningless without the measure of baseline risk for those who had not been exposed to asbestos, and thus directed a verdict in favor of the defendant on the subject of increased risk of lung cancer:

“Without a statistical reference point, a jury would not be able to measure, with any reasonable certainty, the increase in risk due to the asbestosis.  Otherwise stated, saying that a risk is, for example, three times greater upon exposure to asbestos can convey nothing in the absence of a statement as to the base rate of risk in the absence of such exposure.”

Id. at 342 – 43.  The plaintiff’s failure of proof set off a cascade of logically and legally required consequences.  Without sufficient evidence of increased risk, the jury was also precluded from awarding damages for fear of cancer:

“Whether damages should be awarded for fear of developing cancer and mesothelioma is directly related to the issue of risk. Unless there is a legally sufficient foundation for a plaintiff’s increased risk of harm, a determination of  damages for a plaintiff’s fear becomes subjective. There must be some basis upon which a plaintiff’s fear can be determined to be reasonable. In the instant matter, no such basis exists since the evidence on risk of harm was insufficient and warranted a nonsuit.”

Id. at 346.

Finally, the plaintiff’s omission of evidence of base rates limited the theories that plaintiff could urge in support of his failure-to-warn claim.  Without sufficient evidence of increased risk or fear of cancer, the plaintiff could not properly argue to the jury that G.A.F. Corporation’s warning was inadequate because it failed to mention cancer:

“At the end of plaintiffs’ case, this Court granted defendant’s motion for a nonsuit on the issues of risk and fear of cancer and mesothelioma on the ground that the evidence as to those claims was insufficient. As a result of the nonsuit, plaintiffs’ counsel was prohibited from mentioning the words ‘cancer‘ or ‘mesothelioma ‘ when arguing the inadequacy of defendant’s warning label in his closing argument.”

Id. at 341.

Judge Gafni explained why baseline risk statistics were so important that their absence would result in the dismissal of a large portion of the plaintiff’s case:

“Virtually every substance taken in excess can, of course be harmful to the human body including the most basic nutrients, vitamins and minerals otherwise necessary for human health. Yet, no one would suggest that every conceivable warning must be given as to each substance if the statistical risk is infinitesimal. Consider, for example, whether a warning would be required as to a substance which increased the risk of one exposed to it from one in one hundred million to two in one hundred million. This is a 100% increase in risk, but of minimal importance in actual risk. A jury would be entitled to determine in such circumstances whether the warning as to such a risk is required. If the jury would be merely told in such circumstances, however, that the risk had doubled, without being informed of the actual underlying risk, it could erroneously assume that the individual had, in fact, been exposed to a significant risk.”

Id. at 343-44.

Although Judge Gafni stumbled upon the distinction between statistical and clinical significance, his meaning is clear and his holding continues to be relevant to many so-called toxic tort cases:

“In sum, when attempting to establish increased risk of harm (as plaintiff has attempted to do for both cancer and mesothelioma) by statistical evidence, it is imperative that statistics be given for both the plaintiff and for the average individual (the base rate). One without the other is of no statistical or probative value since it would require sheer speculation as to the missing statistic in attempting to determine the actual increase in risk and whether such a risk is of sufficient significance that failing to warn of it rendered the product defective. Of course, it would also affect the jury’s ability to ultimately determine appropriate damages had that issue been reached. Accordingly, in the absence of appropriate statistical evidence, the Court granted a nonsuit on the issues of risk of cancer and mesothelioma; it was on that basis that plaintiff’s counsel was instructed that reference to such could not be made in his closing argument.”

Id. at 345-46.

Sutcliffe has barely been cited in Pennsylvania, although for a while, its authority helped shape the notion that a jury should be charged to consider the size of an increased cancer risk in fashioning an appropriate, proportional reward in damages.  Another judge on the Philadelphia Court of Common Pleas, Judge Sandra Mazer Moss, for instance, routinely gave an explanatory instruction in which she charged juries to consider the magnitude of the increased risk to make sure that any damages awarded for fear or increased risk of future cancer were reasonably proportional to the net risk that resulted from the alleged occupational asbestos exposure.  For instance, if the jury would award $1,000,000 in an actual cancer case, it should award $10,000, if the net excess risk were 1%.  (This analysis ignores a necessary further reduction to present value.)  Moss’s instruction on increased risk helped cabin excessive damages in increased risk cases in Pennsylvania, during the early 1990s.  Eventually, this jury instruction became unnecessary after the Pennsylvania Supreme Court effectively eliminated damages for fear and increased risk of cancer in asbestos non-malignant injury cases.  Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996).

Outside of Pennsylvania, Sutcliffe has rarely been cited.  One law professor, Christopher Guzelian, who has insightfully addressed risk and causation questions, has cited the case in his important works on the law of increased risk and fear of future diseases. See, e.g., Christopher Guzelian, “The Kindynamic Theory of Tort,” 80 Indiana L.J. 987, 1010n.85 (2005); “Liability and Fear,” 65 Ohio State L.J. 713, 816n.312 (2004).  The leading casebooks, treatises, and hornbooks, however, fail to take stock of this case.  Sutcliffe continues to be relevant in asbestos and many other so-called toxic tort cases.

Several other academic authors have addressed base or background rates, but none has seen fit to discuss Sutcliffe.  See, e.g., Aaron Taggart & Wayne Blackmon, “Statistical base and background rates: the silent issue not addressed in Massachusetts v. EPA,” 7 Law, Probability and Risk 275 (2008); Jonathan J. Koehler, “When do courts think base rate statistics are relevant?” 42 Jurimetrics J. 373 (2002); Vern R. Walker, “The Concept of Baseline Risk in Tort Litigation, 80 Ky. L.J. 631 (1992)

Tragically, Chuck Kalinowski, the lawyer who argued the motion for compulsory non-suit in Sutcliffe, has died, and Judge Gafni now teaches and serves as a mediator.  They left behind a valuable legacy, which should not be forgotten as the courts turn their attention to increased risks in other contexts.

The historians of conscience are at it, again.  Professor David Rosner, of Columbia University, and Gerald Markowitz, of John Jay College, City University of New York, testify for plaintiffs in products liability cases.  They are paid for their troubles, but they do not like the idea that other historians testify for the defendants.  It is another example of those pesky asymmetries that people have in their beliefs about conflicts of interest, access to underlying data, and other issues that surround contemporary products liability litigation.

In the current issues of Academe, Rosner and Markowitz describe their troubles as testifiers.  See “The Historians of Industry” (November – December 2010), at <http://www.aaup.org/AAUP/pubsres/academe/2010/ND/feat/mark.htm>

Their description of their testimonial adventures is noteworthy on several scores:

“Five years ago, one of us received an odd e-mail. ‘Dear Dr. Rosner’, it began. ‘I am writing to introduce you to the Round Table Group, and to notify you of a short-term consulting opportunity which may be of interest. Our client is seeking an historian, highly credentialed, at a prestigious university to perform some historical research, and instruct a lay jury about what was known about a particular occupational hazard (lead paint contamination) in 1950 to 1980.’

The letter went on to explain how the historian they sought “need not be a subject matter expert” but need only be a good communicator’ who could ‘easily communicate a story to a jury. The e-mail continued in some detail, telling how the process would work: if David were interested, he could send in his résumé, a brief explanation of his expertise, and a statement of his consulting fee. The note continued by informing him about the consulting group: it was a consortium of several thousand professors in management, law, medicine, science, computer science, education, engineering, economics, and other disciplines who make themselves available to law firms and companies who are clients of the Round Table Group.”

Rosner’s description of this solicitation is fascinating for what it leaves out. 

Rosner acknowledges that this article is essentially a republication of articles that previously appeared in two other journals.  Actually, he failed to acknowledge that this material actually was published previously three times.  Historians apparently are not subject to the same ethical rules as scientists on not gratuitously republishing the same material, over and over.  Rosner and Markowitz’ article in Academe is their fourth iteration of the same theme, with much of the same content.  Perhaps the inference is that historians, like history, are doomed to repeat themselves. See Schachtman, How Testifying Historians Are Like Lawn-Mowing Dogs (May 15, 2010).  The prior publications were:

1. D. Rosner & G. Markowitz, “The Trials and Tribulations of Two Historians:  Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 280-81 (2009)
2. D. Rosner & G. Markowitz, “L’histoire au prétoire.  Deux historiens dans les procès des maladies professionnelles et environnementales,” 56 Revue D’Histoire Moderne & Contemporaine 227, 238-39 (2009)
3. D. Rosner, “Trials and Tribulations:  What Happens When Historians Enter the Courtroom,” 72 Law & Contemporary Problems 137, 152 (2009)

In their earlier publication, Rosner and Markowitz expand on the Round Table Groups (RTG) and its solicitation of Rosner for paid testimony:

“What was amusing, if that is the right word, was that RTG was searching for an expert to testify on behalf of companies in a lead trial and at that very moment both of us were preparing to testify in a major lead trial on behalf of the state of Rhode Island.”

Rosner & Markowitz, “The Trials and Tribulations of Two Historians:  Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 273  (2009)`

Now, Rosner and Markowitz’ description of the Round Table Group is fascinating because, if true, RTG engaged in conduct, both incompetent and unethical. The Group, charged by defendants and their counsel, should have known that Rosner and Markowitz were adverse to their clients’ positions in the lead litigation.  A casual reading of their publications would have revealed their quasi-Marxist leanings, and their antipathy towards business interests.  Trying to recruit Rosner and Markowitz as defense historian experts was a bit like recruiting Vladimir Lenin to the University of Chicago economics department.

Furthermore, the RTG solicitation, as described, was potentially unethical.  Lawyers are not supposed to communicate with adverse parties, without the permission or presence of their counsel, and expert witnesses are agents of the party that retained them.  RTG, in addition apparently to not conducting due diligence about the views of the historians it was contacting, should have known what witnesses were already retained or likely retained by the adversary party.

Rosner and Markowitz appear more intent upon calling attention, not to the ethical or competency issues, but to the appearance of sleaziness in recruiting expert witnesses for hire.  The solicitation letter’s suggestion that one need not be a “subject-matter” expert is disquieting, but accurate.  The standard for qualifying expert witnesses is very low, and in some jurisdictions, even the reasonable pretense of expertise suffices to qualify a witness to hold forth with an “expert” opinion in court. Of course, in approaching Rosner, the RTG was attempting to recruit an historian who had written on lead issues.

Curiously, Rosner and Markowitz fail to mention that they have testified numerous times, in silica and in lead cases, and that Markowitz has testified in vinyl chloride cases.  They fail to discuss how they were recruited by plaintiffs’ lawyers, or the terms of remuneration for their testimonial efforts. 

As for the apparent sleaziness of recruiting expert witnesses, consider what appears to be Rosner’s and Markowitz’ role in recruiting faculty and students to write screeds against conservative positions.  Last May, the blogosphere erupted with news of an email sent out by Peter Drier, of the “Cry Wolf Project,” to undisclosed recipients, re “Paid activist research – request for mini-proposals.”  The email was a request for proposals to write propaganda and information pieces for left-wing causes:

“Colleagues:

We are looking for faculty and graduate students (in history, sociology, economics, political science, planning, public health, and public policy) interested in writing short (2000 word) policy briefs for which we can pay $1,000. For specifics, read on…

We are writing to ask for your help in an important project in the battle with conservative ideas. Today, as in the past, the fight to transform American politics and policy takes place on a battlefield in which ideas, narratives, and the construction of a politically driven conventional wisdom constitutes a set of highly potent weapons. Too often conservatives in the Congress and the media have captured the rhetorical high ground by asserting that virtually any substantial, progressive change in public policy, especially that involving taxes on the wealthy or regulation of business, will kill jobs, generate a stifling government bureaucracy, or curtail economic growth.

But history shows that in almost every instance the opponents of needed social and economic change are ‘crying wolf’. We therefore need to construct a counter narrative that demonstrates the falsity or exaggeration of such claims so that the first reaction of millions of people, as well as opinion leaders, will be ‘There they go again!’ Such a refrain will undermine the credibility and arguments of the organizations and individuals who use such dire social and economic prognostications to thwart progressive reform.

To give substance and scholarly integrity to this ‘crying wolf’ argument, we are calling upon historians and social scientists, in training or well established, to use their research skills to identify instances, in recent years as well as in the more distant pass, in which the ‘crying wolf’ scare was put forward by industry executives, conservative politicians, and right-wing pundits before the passage of legislation or the promulgation ofregulations that have become hallmarks of popular and progressive statecraft. On each issue we seek to document three things: First, historical examples and quotes drawn from speeches, legislative testimony, newspaper and other media opinion pieces, think-tank reports, or political platforms which claim that a proposed policy or regulation would generate a set of negative consequences; second, a discussion of how these crying-wolf claims impacted the new laws or regulations as they were passed into law; and third, a well-documented analysis of the extent to which conservative and special interest fears were or were not realized during the years and decades after the new laws or regulations went into effect.

 This work is sponsored by the San Diego-based Center on Policy Initiatives and funded by a grant from the Public Welfare Foundation. Donald Cohen of CPI, Peter Dreier of Occidental College, and Nelson Lichtenstein of UC Santa Barbara constitute the ad hoc committee now  administrating this initiative.

Based on some of the policy areas listed below, we solicit one page proposals for the kind of short studies outlined above. If we think the proposal promising, we will then ask the applicant to develop a larger policy brief, perhaps 2,000 words in length. It should be well documented and scrupulously accurate. We will pay $1,000 for each brief that meets these standards. We hope that many of these become the basis for opinion pieces designed to run in the mainstream media, on line, on the air, or in the press.

We will be focusing on the following policy areas.

We will be looking for the following things in each case study/policy brief:

1.  Taxes and public budgets
2.  Labor market standards
3.  Food, tobacco and drug health and safety
4.  Environmental protection: air, water, toxics, etc
5.  Workplace safety
6.  Financial regulation
7.  Consumer product safety
8.  Local issues (i.e. inclusionary housing, building code standards, etc.)

Proposals should be sent to Donald Cohen at dcohen@onlinecpi.org.

Please feel free to forward this RFP and/or to send ideas, references and proposals.

Sincerely,

Peter Dreier, Donald Cohen, and Nelson Lichtenstein”

And guess who were listed among the members of Cry Wolf’s Project Advisory Board? 

Gerald Markowitz, and David Rosner!!

I wonder whether they were paid $1,000 to write their piece in Academe.  If so, what easy money to recycle their triplicate 2009 publications.

The Drier email raised conservative hackles and hyperbolic criticisms in the blogosphere, but it is hard to see what is wrong with writing papers to rebut what one believes is factually or politically wrong.  See BREAKING NEWS: WOLVES IN SHEEP’S CLOTHING? CRY WOLF PROJECT: ACADEMIC INTEGRITY FOR SALE: DEM ACTIVISTS BUYING UP POLICY PAPERS TO COUNTER CONSERVATIVES IN MEDIA POWER PLAY http://theenterprisereport.typepad.com/news/2010/06/breaking-new-dems-activists-buying-up-policy-papers-to-counter-conservatives-in-media-power-play.html .

Although I do not see the Cry Wolf Project as necessarily undermining academic integrity, I do believe it raises some interesting issues.  First, for me at least, I find the analogy to what the Round Table Group did in soliciting Rosner, interesting and compelling.  The Cry Wolf Project did not seem to focus its solicitation on those academics particularly qualified and suited to write on their topics of interest.  Furthermore, the Cry Wolf Project folks were interested in soliciting faculty and students to write pieces of pre-determined positions and conclusions, which seems somewhat at odds with the open-minded, free inquiry that we, perhaps idealistically, hope goes on at colleges and universities.  Indeed, the Drier email, with hot air in its sails from Rosner and Markowitz, seems a LOT like the RTG’s solicitation of Rosner, in the lead paint litigation.  And where did the money come from to fund these earnest academicians?

Finding Rosner and Markowitz at the heart of the Cry Wolf Project, after their repeated, supercilious criticisms of the Round Table Group, and of defendants in litigation, is an irony too sweet to be overlooked. 

Crying wolves, indeed.

The goodfellas of occupational medicine are fond of telling stories about industry suppression of studies, but they don’t much like to hear or tell similar stories about how iconic public health scientists did the same.  When Sir Richard Doll died, the goodfellas attacked his consultations with industry; when Dr. Irving Selikoff died, they lauded his work.  When it comes to an iconic figure such as Dr. Irving Selikoff, the goodfellas are especially intent upon preserving his reputation at all costs.

When the biography of Irving Selikoff is written, however, the author will have to deal with Selikoff’s suppression of science on the health effects of asbestos! 

One of Selikoff’s agenda items was to treat all asbestos minerals the same, even though the scientific world differentiates between and among the different minerals that make up the class of minerals known as “asbestos.”  That class includes chrysotile (white asbestos, a fibrous serpentine mineral), crocidolite (blue asbestos, a fibrous form of riebeckite), amosite (brown asbestos, named for “asbestos mines of South Africa, a fibrous form of cummingtonite-grunerite), anthophyllite (only the fibrous form), tremolite (only the fibrous form), and actinolite (again only the fibrous form).  All the asbestos minerals are silicates, as are most of the minerals on planet Earth.  Chrysotile is in the serpentine family of silicates; whereas the other asbestos minerals are all amphiboles.  Each of these asbestos minerals has different physico-chemical properties.  All are recognized to cause asbestosis, and to the extent that they have caused asbestosis, lung cancer as well.  The asbestos minerals, however, have very different capabilities as far as mesothelioma is concerned.

Selikoff was intent upon treating all the asbestos fiber types the same, even though the scientific community has long recognized that the fiber types are very different with respect to mesothelioma causation.

By way of example, in a cohort of British workers who assembled gas masks during World War II, close to 9% of all deaths were due to mesothelioma. See J. C. McDonald, J. M. Harris, and G. Berry, “Sixty years on: the price of assembling military gas masks in 1940,” 63 Occupational & Envt’l Med. 852 (2006).  Workers who had even longer exposures to crocidolite experienced even higher mesothelioma rates.  In an American factory that used crocidolite to make filters and filter papers, including filters for cigarettes, mesothelioma made up close to 18% of all deaths.  James A. Talcott, et al., “Asbestos-associated Diseases in a Cohort of Cigarette-Filter Workers,” 321 N.Engl.J.Med. 1220 (1989).

In chrysotile only populations, the prevalence of mesothelioma as a cause of death is very low (well under 1%) and it may well be non-existent. 

Selikoff, however, was intent upon having all fiber types treated the same, both in regulation, and in litigation.  Selikoff was an amphibole denier, or at least a crocidolite denier, in the same vein as the so-called Global-Warming Deniers, who are so ridiculed these days.

Let’s start with a quote from a 1990 paper by Dr. Selikoff:

“Insulation workers in the United States and Canada were exposed to materials that contained chrysotile asbestos in early years and chrysotile plus amosite, later. The chrysotile used, from Canada, is believed to have contained small proportions of tremolite, as a contaminant, generally less than 1%. The extraordinary cancer risk demonstrated among insulation workers would therefore refer only to the fibrous materials to which they were exposed, and to the conditions of such exposure. We have no information on the effects of crocidolite in similar circumstances nor whether reduction of exposure would result in decreased risk.”

Herbert Seidman & Irving Selikoff, “Decline in Death Rates among Asbestos Insulation Workers l967-1986 Associated with Diminution of Work Exposure to Asbestos,” 609 Annals N.Y. Acad. Sci. 300, 311 (1990)

Now there are two remarkable misstatements in this passage, and they are so clearly wrong that a disinterested reader may well wonder about the motivations that gave rise to the falsehoods.

First, the suggestion that amosite exposure came about “later” in the exposure of insulators is factually wrong.  The United States Navy, and its private contractor shipyards, had a seemingly endless appetite for amosite, in the form of blankets, and later in the form of pre-molded pipecovering insulation (such as Unibestos).  The Navy’s own documents show that amosite featured heavily in the most injurious exposures that shipyard workers experienced before and during World War II.  Selikoff had written about the existence of asbestos-related disease in American shipyards.  See, e.g., Selikoff, Lilis, and Nicholson, “Asbestos Disease in United States Shipyards,” 330 Annals N.Y. Acad. Sci. 295 (1979); Irving J. Selikoff & Cuyler Hammond, “Asbestos-associated Disease in United States Shipyards,” 28 CA – A Cancer Journal for Clinicians 87 (1978).  His ignorance on this point is hard to square with the depth of his knowledge about shipyard exposure circumstances.

Second, and even more remarkable, is the suggestion that the insulators under study had no exposure to crocidolite (blue) asbestos.  This misrepresentation seems neither innocent nor immaterial.

Selikoff, himself, can be shown to have known both suggestions, about amosite’s late arrival, and the non-use of crocidolite, were false.  In a paper published in 1965, Selikoff reports on the content of asbestos insulating materials:

“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.”

I. J. Selikoff, J. Churg, E. C. Hammond, “The Occurrence of Asbestosis among Insulation Workers in the United States,” 132 Annals N.Y. Acad. Sci. 139, 142 (1965).  So Selikoff was well aware of the use of amosite, going back to the 1930s, and he was well aware of the use of crocidolite in the United States.

Selikoff had other sources of the knowledge of where, and how much, amphibole asbestos was used in the United States.  During the course of discovery in the Caterinnichio case, I obtained a manuscript of a study that Selikoff and his colleagues prepared, but never published.  The study examined the mortality, and especially the cancer mortality, of workers at a Johns-Manville asbestos product manufacturing plant in New Jersey.  William J. Nicholson, Ph.D. & Irving J. Selikoff, M.D., “Mortality experience of asbestos factory workers; effect of differing intensities of asbestos exposure”: unpublished manuscript produced in litigation (circa 1988).  Selikoff’s failure to publish this paper is curious given his tireless and repeated republication of data from his insulator cohort.  Selikoff’s failure to publish this paper, however, is more concerning because the paper acknowledges the undeniable — Johns Manville used crocidolite asbestos in its products:

“[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.”

Id.  Interestingly, the failure to publish research is a claim that is often made against industry generally.  The suppression of studies clearly takes place outside the world of commercial interests.

Johns-Manville was hardly alone in its commercial use of crocidolite.  Back in July 1962, Selikoff visited the Asbestos Corporation of America, and memorialized his observations in a memorandum.  The general manager of the company, Wade I. Duym, appeared to have hosted the visit.  Here are some quotes from Selikoff’s 1962 memorandum:

“Amosite.  This continues to be used in the insulation trade primarily; for example, it is the asbestos of choice for high temperature insulation cement inasmuch as it has less water in combination.  Similarly, it is used in the calcium silicate insulation products (“magnesia”) [sic].”

Id. at 1.

“Other insulation uses [of amosite] include spray insulation.”

Id. at 2.

“The amosite used comes only from Africa.  The two large companies involved in its exploitation are the Cape Asbestos Company and Turner & Newell.  Representatives in the U.S. are the North American Asbestos Corporation.” 

Id. at 2.

“Crocidolite.  This is relatively inexpensive (10 – 12¢) and it is also exceedingly strong and is therefore used in asbestos cement products, especially since it is fairly resistant chemically.  Its sources are primarily Africa and Bolivia and samples of both were made available to us.”

Id. at 5.

“Of historical note, and of some peripheral interest, is the fact that Kent cigarettes for years used filters made of blue asbestos.  It would have been interesting to examine the smoke inhaled through such filters for particles of asbestos.  Bolivian blue asbestos was utilized.” 

Id. at 6.

At the 1964 meeting of the New York Academy of Sciences, which Selikoff organized, and the proceedings of which he edited, several investigators reported the content of asbestos insulation.  Hendry, a Johns-Manville geologist, noted that for the year 1963, the United States used 22,000 tons of amosite in its manufactured products. For the same year, 17,000 tons crocidolite were used, in acid-resistent filters, packings, insulations, and certain types of lagging. N.W. Hendry, “The Geology, Occurrences, and Major Uses of Asbestos 132 Annals N.Y. Acad. Sci. 12, 19 (1965). 

At this meeting, Harrington reported  on the asbestos content of insulation pipe sections.  He found chrysotile and crocidolite asbestos in equal proportions in specimens of 85% magnesia pipe-covering sections. Harrington, “Chemical Studies of Asbestos,” 132 Annals N.Y. Acad. Sci. 31, 41 (1965). 

This contemporaneous evidence is hardly surprising or novel.  The United States Department of Commerce keeps statistics, on importation of various kinds of asbestos.  For several years, crocidolite imports exceeded amosite, and often both minerals were imported in similar quantities.

Selikoff’s distortions have become “evidence” that fuels the asbestos litigation industry.  Here is a typical example of how plaintiffs’ counsel, Baron & Budd, exploit the misrepresentations:

“Published epidemiological studies demonstrate significantly increased rates of mesothelioma, often more than double what was expected, in chrysotile-exposed populations.[32] The cohort of more than 17,000 insulators studied by Dr. Selikoff and Dr. Frank worked primarily with chrysotile and developed mesothelioma at a significantly higher rate than the general population.[33] Dr. Selikoff explained that the increase in mesothelioma and other asbestos-related diseases ‘cannot be ascribed to other than the one asbestos fiber that was in regular use in insulation materials during the 1930s – chrysotile’. [34] As Dr. Frank reiterated, it was hard to imagine that . . . a few percent of amphibole . . . was the sole cause of the vast amount of mesothelioma we were seeing.[35]”

Plaintiffs’ Consolidated Response to All Motions to Exclude General Causation Opinion Testimony That Chrysotile Asbestos Can Cause Mesothelioma, filed in Gasner v. A.O. Smith Corp., No. 2004-03964, In the District of Harris County, 11^th Judicial District, Texas, available at http://baronandbudd.com/briefbank/Texas_MDL_Response_to_Motion_to_Strike_Evidence_that_Chrysotile_Asbestos_Causes_Mesothelioma (citing Egilman affidavit, and in endnote 34, a letter from Irving J. Selikoff, M.D. (dated July 31, 1973), Ex. 31 to plaintiffs’ brief).

Dr. Irving Selikoff, who did so much to bring about an awareness of the hazards of asbestos, also did much to suppress the differences between and among the various mineral types of asbestos fibers.  And plaintiffs’ lawyers have continued to press this issue in order to make out their case for “every exposure” counts against low-exposure chrysotile defendants.

When Selikoff’s biography is written, this issue must be confronted directly.  Why was someone who so dedicated to public and worker health willing to take such liberties with the historical and scientific record?

The disinterested historical inquirer may observe that the companies that imported amosite and crocidolite into the United States were generally “judgment proof” in American courtrooms.  South African courts refused to acknowledge the validity of American judgments.  Plaintiffs’ lawyers, and their union sponsors, worried that chrysotile suppliers would escape liability and harsh regulation if the extent of amosite and crocidolite use, and its much greater hazardous, were appreciated.  One inference the disinterested observer might draw is that Selikoff was intent upon treating all fibers alike to advance a regulatory and litigation agenda that had nothing to do with science.