Dr. David Egilman Gives Talk on McGill's Involvement in Corrupted Asbestos Literature AT McGill

Well, today Dr. David Egilman--a renowned scientist and anti-asbestos crusader in the mold of Dr. Irving Selikoff--gave a presentation at McGill University on the role that McGill University has played in corrupting the scientific literature relating to asbestos and occupational disease.  And he did AT THE UNIVERSITY.  Epic.

He painstakingly spoke of the role of the University in the world vs. the role of Corporations (especially asbestos corporations) and how Corporations can corrupt the University's purpose by insisting on controlling data whereas the University publishes based on the data.

In this context, McGill had published scientific literature concluding in general terms that chrysotile--especially Canadian chrysotile--was not hazardous in the way industry mined it in Quebec and sold it across the world.  Dr. Egilman then demonstrates that not only were the applicaable "safety standards" not safe and had been arbitrarily adopted to protect corporations from lawsuits, but that the publishing researchers did not have access to the scientific data on which they base their scientific conclusions.

In the eyes of this lawyer, Dr. Egilman's presentation was particularly courageous because he presented directly in front of McGill University, where the shoddy research was published.

The entire presentation was broadcast here and McGill has stated that it will be recorded and placed on their website for viewing in the near future.  I suggest taking a look if you are so inclined.

5 Ways Corporations Get Away With Selling Products That Can Kill—Part 1

People often find it extremely difficult to believe that it is “legal” for corporations to sell products “if they can cause kill/cause cancer.”  So how do they do it?  At first I wanted to make the list and give it in one fell swoop.  It grew too long and so I ended having to split it up.  Therefore, this is the first in a 5-part installment on how Corporations can get away with selling products that can kill.  I hope it is informative!

1.       Paying for Your Own Scientific Evidence

In the world of toxic torts (lawsuits involving toxic substances, generally defined), we hear a lot about how a certain chemical can cause a certain illness.  In fact, it is generally accepted that certain chemicals are harmful and should not be in a consumer product—a fact which is admitted in many cases of cancer caused by a consumer product. 

Yet many times, corporations beat consumers in court even after a consumer shows he/she used a product with a specific carcinogen and that this carcinogen causes the consumer’s specific illness.  This is a primer on how they do it.

a.       The Analogy- 2005 Scott Peterson Trial

Everybody knows who Scott Peterson is, right?  No one saw him kill his pregnant wife Laci Peterson, yet he was convicted in large part because Scott Peterson’s scientific expert, Dr. Charles March, was discredited by the prosecution. 

At first, Dr. March was very impressive to the jury.  He was an excellent speaker, and the jury paid close attention to him.  During the break following his direct examination, the defense was confident in an acquittal.  

After the break, the jury saw that Dr. March based his testimony exonerating Scott Peterson on only anecdotes.  Dr. March was crushed by this admission and the jury started rolling their eyes at him.  He was finished.

Imagine if Dr. March had relied on hard evidence or even valid scientific research?  The jury would have had no reason to disbelieve him.  The California state prosecutors would have not a much weaker line of questioning.  It is generally agreed that this was the turning point of the Scott Peterson trial.

b.      Corporations creating evidence for other Corporations

In reality, corporations can pay for scientific evidence that is useful to them in court using these 6 easy steps:

1.       Chemical Corporations pay a scientific-sounding corporation to create scientific studies saying their product containing benzene/asbestos/diacetyl/beryllium/etc. does not increase risk for causing an illness. 

2.       Chemical Corporations sell the product containing benzene/asbestos/diacetyl/beryllium/etc. to a consumer.

3.       Consumer gets sick.

4.       Consumer sues corporation.

5.       Corporation points to the scientific studies to say their product is safe.

6.       Corporation wins and Consumer loses!

 

c.       Moral of the story: Only impartial science is good science

In the old days, there was a requirement that scientific studies be conducted by an uninterested party to assure accuracy and lack of bias.  Today, more and more scientific studies are bought and paid for because a corporation wants to get away with something it should not.  Therefore, be careful what you rely on—it may not be worth the paper it was printed on.

Weekend Trivia Quiz: What 1 Thing Does ALEC’s Legislative donors and Chinese’s Cancer Villages Have in Common?

To the surprise of no one, China has finally admitted yesterday what Lee Liu of Environment reported in 2010 and the rest of the world already knew: There are hundreds of “cancer villages” in China.

What does that have to do with the U.S. or ALEC?  Well let’s see.

The cancer villages are an astonishing Chinese phenomenon in that, according to Liu, "China appears to have produced more cancer clusters in a few decades than the rest of the world ever had."

China is often touted for its economic boom and lack of regulations that support it.  But now that China’s admission ends the debate of what price it pays, the world is forced to ask itself “Is unregulated, unfettered pollution a price the world is willing to pay for strong industry and cheap exports?”

ALEC appears to already know the answer to that question—“of course it is”. 

You see, ALEC isn’t actually a person even though a certain Baldwin does carry that moniker.  ALEC is “non-profit” entity whose operations in the simplest terms can be described thusly: the money goes in and the legislation comes out.  This begs the question—who puts the money in?

One such organization is the “Donors Trust” operating out of a townhome in Alexandria, VA.  It describes itself as “dedicated to the ideals of limited government, personal responsibility, and free enterprise.”  In reality, what the Donors Trust actually does is hand out nearly $400 million in private donations (now unfettered by pesky campaign finance laws thanks to the infamous Citizens United Supreme Court opinion) and ask in return for the ability to pollute and deny climate change.  For more on this subject, Democracy Now has said more and better than I ever have: here

Nonetheless, what we have is an example of a world without meaningful pollution regulation: China’s “Cancer Villages”.  And you name the cancer--leukemia, lung cancer, breast cancer, bladder cancer, the list goes on.  We have a group in the U.S. who want the same in the U.S.—ALEC and its shady donors such as the Donors Trust.

It is up to us to decide what kind of world we want.  Choose well.

5 Causes of Lung Cancer in the Workplace (Smoking Excluded)

I use the term “cause” as an analog of “increase risk” as a tip of the hat to the difference between language found in medical and scientific literature and language that we non-science background types typically.  Science rarely deals in absolutes.  And because we are all made differently, science cannot say with 100% certainty that most industrial pollutants “will cause” a cancer in a certain people, only that there is a certain likelihood that a disease or injury will occur.  Otherwise stated, science can help determine “risk” associated with pollutant for developing a disease.  And with that said, here are your 5 lung cancer baddies:

1.       Asbestos

As covered in previous blog posts, it has been known/knowable since the 1930s that asbestos can cause lung cancer.  The asbestos industry did not necessarily get the information out to the public on this point—in fact they actively suppressed this knowledge.  Be that as it may, asbestos is thought to be the leading cause of occupationally-related lung cancer in the U.S.

So now we know that asbestos is an occupational cause of lung cancer; which workplaces to we mean?  To name a few, workers who worked with the following products:

• Drywall and joint compound
• Plaster
• Gas mask filters pre 1960s
• Mud and texture coats
• Vinyl floor tiles, sheeting, adhesives
• Roofing tars, felts, siding, and shingles[33]
• "Transite" panels, siding, countertops, and pipes
• Popcorn ceilings, also known as acoustic ceilings
• Fireproofing
• Caulk
• Industrial and Marine Gaskets, including those made by Garlock Sealing Technologies
• Packing, a system for sealing a rotating shaft
• Brake pads and shoes
• Stage curtains
• Fire blankets
• Interior fire doors
• Fireproof clothing for firefighters
• Thermal pipe insulation
• Filters for removing fine particulates from chemicals, liquids and wine
•  HVAC flexible duct connectors
• Drilling fluid additives​

 

                Another question which typically arises is: how much exposure to asbestos do I need to be at greatly increased risk for lung cancer?  There is no clear answer for reasons a and b below:

a.       Cigarette smoking together with asbestos exposure can have an additive or even multiplicative effect on the risk of developing lung cancer; and

b.      Every individual has a different level of susceptibility to developing a particular type of cancer.

However, one bit if information is important in knowing where risk occurs: asbestos-induced lung cancer is a dose-responsive disease.  This means that a greater exposure carries greater risk.  For these reasons—stay away from asbestos.

2.       Arsenic

Arsenic was first listed in the “First Annual Reports on Carcinogens” in 1980, although knowledge of its hazards dates back well before then.  In addition to lung cancer, arsenic is known to cause cancer of the skin, digestive tract, liver, urinary bladder, kidney, and the lymphatic and hematopoietic systems. 

In what types of occupations do we see exposure to arsenic?

• Mining operations
• Copper smelting
• Agricultural-related pesticide
• Wood preservation processes
• Glass manufacture
• Drinking water in areas where arsenic-based pesticide use occurs.
• Solar cell manufacture
• Nonferrous alloys (lead, brass, etc.)
• Degraded poultry litter (through arsenic’s use as an anti-microbial agent in poultry feed)
• Electronic equipment manufacture and semiconductor applications

3.       Diesel Exhaust

In 2012, the International Agency for Research on Cancer (IARC) reclassified diesel exhaust from a probable to a known human carcinogen.  The U.S. Center for Disease Control has not yet changed its designation of diesel exhaust from the “reasonably anticipated to be a human carcinogen” designation, but discussions are ongoing as to that.  http://ntp.niehs.nih.gov/ntp/roc/twelfth/profiles/DieselExhaustParticulates.pdf#search=diesel%20exhaust   

In what occupations do we see exposure to diesel exhaust fumes?

• Mining operations
• Garage-station attendants
• Diesel truck operators

4.       Silica

Silica has been a known occupational hazard for over a century.  Sometimes referred to as “sand”, crystalline silica has been listed as “a reasonably anticipated to be a human carcinogen” since 1991 and reclassified as a “known human carcinogen” since 2000 in the U.S. Report on Carcinogens.  Importantly, silica also causes a condition known as “silicosis”, which is a debilitating chronic lung disease for which there is no known cure.

In what occupations do we see exposure to silica?

• Quarry and granite work
• Ceramic and pottery work
• Sculpting and carving
• Sandblasting
• Industrial and Marine cleaning applications
• Construction
• Crushed-stone related industries
• Nonmetallic milling industries
• Refractory brick and diatomaceous earth industries

5.       Chromium

Chromium Hexavalent (“Chrome 6” as many refer to it) has been listed as a “known human carcinogen” since the First Annual Report on Carcinogens in 1980, and IARC concluded there was sufficient evidence of human carcinogenicity in 1979.

Of all agents known to cause lung cancer listed above, Chromium is likely the one with the largest modern-day exposure.  The steel industry is THE major user of chromium in the U.S.  The NIH estimates that consumption of chromium was 78% in stainless and heat-resistant steel, 13.8% for other steel uses, 3.7% in superalloys, and 4.5% in “other” alloys end uses.  http://ntp.niehs.nih.gov/ntp/roc/twelfth/profiles/ChromiumHexavalentCompounds.pdf#search=chromium   

The U.S. is one of the, if not THE, world leaders in chromium production.  In what occupations do we see exposure to chromium?

• Steelmaking
• Leather tanning
• Wood preservatives (phased out in 2000)
• Refractory production
• Pigment production
• Textile dying production
• Drilling muds
• Pyrotechnics
• Water Treatment
• Chemical manufacturing

 

 

Three types of people with no right to sue thanks to preemption

I write this for those clients who call our office confused about when they have the right to sue for their injury and when they do not.  Warning:  Just because you have been seriously injured or even killed through no fault of your own does not mean you or your loved ones have the right to sue for justice!

                Preconception

Thanks to a confusing combination of: 1. Propaganda bought and paid for by tort-reform advocates; and 2. Limits on the right to sue by statute and an ever-expanding series of judicial opinions, an astounding number Americans believe the following three things:

a. Americans sue about anything;
b. Americans generally have the right to sue when they are injured; and
c. If you are injured through no fault of your own, your can sue.

Reality- You may not because of Pre-emption

Unfortunately, this is not the case.  Through a series of judicial opinions, the Federal Courts are eliminating the right to sue for consumers and recipients of drugs, products, medical device implants—you name it.  This is through a series of legal cases establishing that State Courts may not entertain suits if the Federal Government has “preempted” the State Courts’ power to entertain a case under express preemption or implied preemption.

                Express Preemption

Here, a Federal Statute that has passed both houses and been signed into effect by the President has stated Congress’s intention to preempt state law.  This is stated within the body of the legislation and lacks any “savings clause” that would permit a private citizen to sue.  This is NOT usually the subject of dispute for the purposes of our clients.  Although it really sucks for injured people.

                Implied Conflict Preemption (The "Meat of the Matter")

This is the “hot-bed” of litigation for those of us who represent injured people.  Even though Congress has not said that it explicitly intends to preempt a field and bar an injured person from court, Courts can nonetheless find a person is barred from court anyway.  Nowhere has this been more important that in the field of consumer products.  These comprise pharmaceutical drugs, medical devices and regular household items.

Without getting into the specifics that numb the mind of lawyers not to mention lay people, there are some settled questions that lead to unsettling results.  Results:

1. If you are injured by a generic drug through no fault of your own, you are likely preempted- Hot off the presses, on June 24, 2013, the U.S. Supreme Court in Mutual Pharmaceutical v. Bartlett decided in a 5-4 opinion that if you are injured by a generic prescription drug, you cannot sue.  Even if your skin burns off or your body and renders you blind (which, crazy as it sounds, is an actual condition known as “Stevens-Johnson Syndrome” http://en.wikipedia.org/wiki/Stevens%E2%80%93Johnson_syndrome ), you just have to tough it out and the responsible party gets away with it.  Even if they committed fraud.

2. If you are injured by a medical device for off-label (use of a product in a means not approved, but permitted by the FDA) marketing, you are possibly preempted- In Reigel v. Medtronic  and Buckman Co. v. Plaintiffs’ Legal Committee, the U.S. Supreme Court ruled that a case based on state law on behalf of a person injured from Class II medical devices are “impliedly” preempted by the Food and Drug Administration.  Here, the U.S. Supreme Court expressly ruled that even where a company committed fraud against the U.S. Government, that was insufficient to permit an injured person to sue for damages.  Whether you are actually preempted depends on the ability to plead and prove a “parallel claim”.  Because there is a split on what that actually means in various state and federal trial courts throughout the U.S., a pending Appeal in the California case John Coleman v. Medtronics Corporation et al. should provide an answer.  Stay tuned.

3. If you are injured from a consumer product containing a toxic/deadly chemical, you are possibly preempted-  In our consumer products cases, we invariably face motions to dismiss based on preemption under the Federal Hazardous Substances Act, 15 U.S.C. Sections 1261-1278.  This is an extremely fact-specific preemption argument based on the wording of a consumer product during a specific time period usually post-dating 1964 when the Federal Hazardous Substances Act was enacted.  

 

Apologies to the reader for the legal jargon, but some terms of art just cannot be avoided when describing something as complicated as preemption.  Nonetheless, attorneys who practice the above-mentioned fields must present these difficulties to their clients, who are members of the public.  

It is then up to the public to raise their voice against these decisions.  In time, the American system of justice may provide a means to overturn these decisions.  But for now, it is a tough time for injured Americans.

Dr. Irving J. Selikoff, the fight to Protect Workers and the Asbestos Industry’s Fight against Workers

Imagine a time before the U.S. EPA, before OSHA and before industrial hygienists were organized in attempting to protect American workers.  During that time, Irving J. Selikoff was a crusader on a mission to save workers from 100% preventable asbestos-related occupational diseases like asbestosis, mesothelioma and lung cancer.

In those days, the asbestos industry employed a “state of the art” defense to defend against cases where workers alleged their mesothelioma, asbestosis or lung cancer was caused by exposure to asbestos-related products.  This “state of the art” defense was, in a nutshell, that they did not and could not have known about asbestos hazards. 

So in 1964 and 1965 Selikoff did what only a member of the scientific community could do: organized a symposium dedicated to protecting workers against asbestos diseases by publishing peer-reviewed articles stating the dangers of asbestos exposure and related diseases.  This conference was on the “Biological Effects of Asbestos” and the presentations were published in 1965’s volume 132 of the Annals of the New York Academy of Sciences.  

Though any asbestos company who cared to know about asbestos hazards could have learned from the English 1890s publications of the Queen’s Inspectorate done on the workers dying in the Turner & Newall asbestos factories or even the 1940s publications 

What did the asbestos industry do in response?  The industry went to war against Dr. Selikoff.  The asbestos industry tape-recorded his presentations, made verbatim transcripts, hired a doctor to analyze the transcripts and provide any potential refutations, stating: 

As is still true today, often times the industry has the best ability to monitor health hazards in people exposed to various levels of a toxic pollutant—such as asbestos, benzene, diacetyl, etc.—in regularly exposed people.  They have the records, the data, the facts.  Therefore what is publically known often pales in comparison to what a company is forced to produce in litigation.

In the 1980s, the time had come when the asbestos industry did not produce important information publically.  Therefore, Dr. Selikoff knew that in order to gain valuable information it had to come from lawyers who sued these companies.  Larry Madeksho was one such lawyer who shared information with Dr. Selikoff:

The communication continued and the legal system in litigation against asbestos companies brought to light the dangers of asbestos over time.

At a time where there is serious, well founded doubt about the U.S. Justice System, it has nonetheless done tremendous good for American people.  Unfortunately, Dr. Selikoff passed away on May 20, 1992 at the age of 77.  We remember him and honor his legacy by fighting for human safety over corporate profit motive.

Why Toxic Exposures are a Danger to Us All

About me: 

I have practiced law on behalf of cancer and occupational disease victims across the country for more than 10 years now.  This blog is an attempt to relate my experience as an attorney dedicated to toxic disease victims and the son of a former asbestos worker and highly respected lawyer to the community for the community to use and understand information in the medico-legal community.  

What do I mean by occupational disease victims?  

The answer is entirely contextual. By that I mean: If you worked around poisonous chemicals like asbestos or benzene and have mesothelioma or lung cancer (for asbestos) or leukemia or lymphoma (for  benzene) then you are an occupational disease victim.  But victims are also the family members who suffer seeing a family member sick from a disease or even losing a loved one.  For sure they are also victims.  Sometimes beyond the distress of seeing a family member sick with an occupational disease; a person who has never worked directly with a toxic substance can be sick from it.  How is that possible?  It is possible because some substances are so toxic and so deadly that if your dad or husband brought the substance (like beryllium or asbestos) home on his clothes—you can be exposed and get sick or die from it.  About workers’ families developing mesothelioma, Wagner wrote this in 1960 here: Mesothelioma and Non-Occupational Asbestos Exposure

And about beryllium workers’ families developing chronic beryllium disease, Sam Roe bravely wrote about them here: Beryllium Exposures Article from The Toledo Blade

The lessons: 1. Occupational disease touches us all; 2. You don’t have to be a worker for ccupational disease to kill you.

About the blog: 

Succintly; 1. what does science say about a certain disease?  2. What does the law say about a certain disease?  3. What is going on in the greater legal community at present?  These questions will be answered from the following perspectives: under a microscope, in the context of litigation in U.S. courts, and from a historical perspective of people who have litigated toxic exposure cases for over 40 years.

Medical and scientific occurrences will be looked at times scientific article by scientific article, judicial occurrence by judicial occurence and (hopefully) with anecdotes as to what was occurring in the industrial and legal communities at the time of the events.  To my knowledge, it will be the first blog of its kind, but it will allow for valuable experience to be recorded and preserved.  And writing it will be healthier than drinking excessively or engaging in destructive consumption—two banes of modern lawyers that are best avoided.  Plus I can look back and reference them anytime.

A link to the facebook blog on beryllium exposure is here: https://www.facebook.com/MadekshoLaw