Mass Torts: State of the Art : Mass Torts Lawyer & Attorney : Vorys, Sater, Seymour & Pease Law Firm : Toxic Torts & Wrongful Death

What does it mean when an increase in cancer coincides with an increase in the ability to detect it? Nothing really, because correlation isn’t necessarily causation? Or something, because the new diagnostic technique has biased the data? Specifically, are doctors finding more cases of melanoma nowadays because they’re looking harder or are they finding more cases of melanoma because something else, maybe increased UV radiation, is causing more people to get it? Those are the questions raised by this New York Times article. Something similar happened with prostate cancer and something similar will likely happen in the future once methods of detecting cancers like mesothelioma and leukemia very early in the disease process are developed.

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In a paper titled “Occupational Exposure to Silica and Lung Cancer Risk in the Netherlands” the authors report on the lung cancer experience of men aged 55 – 69 from the Netherlands Cohort Study who recorded workplace exposures to crystalline silica. As duration of exposure to silica increased the risk of lung cancer increased and the finding was statistically significant. Interestingly, the association between amount of exposure and lung cancer was weaker and not significant.

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If you watch TV you’ll have noticed celebrities eager to tell you about their “digestive health”. They attribute their well being to regularity and their regularity to eating probiotics, which are live bacteria. The NYTimes also noticed and reported on the issue today. Especially of note to lawyers is the discussion of the $35 million Dannon, maker of probiotic product Activia, has agreed to pay to settle claims of mislabeling and deceptive marketing.

Interestingly, Dannon has agreed to “increase the visibility of the scientific names of the unique strains of probiotics that are in each of these products”. Pity the poor consumer who has enough trouble understanding the nutritional data already on food products – “hmmm, should I buy the yogurt with streptococcus thermophilus, lactobacillus acidophilus and a generic bifidobacterium or the one with just bifidobacterium regluaris?”

Then there’s the law of unintended consequences. The idea that certain strains of bacteria have been essentially domesticated and can be turned loose in the gut to work their magic without fear that they might mutate or disrupt an already balanced system seems overly hopeful. While the milk intolerant have been happily ingesting lactobacillus acidophilus for years and research on certain species of lactobacillus seems to support the theory that these “good” bacteria wage war in your guts against “bad” cancer-causing bacteria both directly and indirectly (e.g. by inducing intestinal epithelial cells to shore up their defenses) one wonders how long it will be before a good strain goes bad, a good strain is unmasked as a double agent or a good strain is demonstrated to have a dark side.

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I was part of a panel discussion last week in San Francisco about what we in the law call "specific causation" - essentially the determination, in an individual case of causal attribution, when the disease in question has been associated with certain risk factors in the general population.  It is, I think, a distinction without a difference but until courts move past 20th century science (epidemiology) and on to 21st century science (molecular biology) it's one we'll have to talk about.  Here's my PowerPoint from the seminar.

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Over at Mind Hacks there’s a fun discussion about the media’s propensity to take epidemiological data regarding say the risk of some dread disease, to note the uncertainty inherent in such data and to then conclude that the risk could actually be much higher. Why not also note that the uncertainty also means the risk could be much lower? Is it just a matter of hyping a story to sell more newspapers?

I think it may be something else. I think it may have more to do with the product of the news industry – a narrative that customers want to buy. Accordingly, when the news seems not to fit with the readers’ worldviews (e.g. a report about the disparate outcomes between children in daycare versus those who stay home with their mothers) you can count on the reporter to note that the surprising result may be overstated. Thus, it may not be a matter of reporters not understanding such data or of wanting to fan the flames of a story but rather to pound the day’s news into a narrative to the liking of its readership.

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Diets high in foods with large amounts of fructose sugar such as sweetened soft drinks increased blood pressure in men, according to a study presented September 23rd that also found that a drug for gout blocked the effect. Most sugar consumption in the U.S. comes from sweetened drinks and foods high in sugar or high fructose corn syrup.  Fructose is the only common sugar known to increase uric acid levels. 

Men in the study who ate a high-fructose diet had their blood pressure rise about 5 percent after two weeks, while those who also were given a gout treatment increased less than 1 percent. Eating great amounts of fructose without the treatment also raised the risk of developing metabolic syndrome, a risk factor associated with the development of heart disease and diabetes.  The gout treatment lowered the body’s uric acid that is linked at elevated levels to high blood pressure, diabetes and heart disease.  So, it’s possible that lowering uric acid levels could become a routine practice in the future, much like lowering cholesterol.

My blood pressure was perfect until middle age when it ticked up a bit and I've not had a sugary soda in many years. The same is true for many men. Thus, I'm betting on correlation rather than causation on this one. Well, correlation and a statin that is ...

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Here's a paper that reviews current knowledge regarding the causes of autism. Note the concerns about Vitamin D deficiency. Could it be that decades of sun-o-phobia has led to more than just increases in rickets and a host of cancers?

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There are some interesting articles in the scientific literature about a war of which you've likely never heard. It's the one going on inside your body. A war pitting microbe against microbe. A conflict in which chemical warfare, the secretion of toxins, may well result in collateral damage - with the collateral damagee being you and the damage being cancer. More about that in the coming days but for now, here's an article about colon cancer risk and some of the bacteria working night and day to keep you from developing it. Here's the link.

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What is it in cigarette smoke that causes lung cancer? Tar? PNAHs? Exotic isotopes? What about bacteria and fungi? What if they're in part responsible for chronic inflammation associated with lung cancer? It turns out that when you inhale cigarette smoke you invite into your lungs a swarm of nasty germs. Here's a new article that'll introduce you to the issue and lay out the evidence.

Wouldn't it be interesting if there were similar microbes living in and on asbestos fibers? Actually ....

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Immortalized cells in a patient suffering from glioblastoma multiforme showed signs of infection by the SV40 virus. link. Further evidence of an alternate cause, particularly among who received the polio vaccine when it was contaminated with SV40, in brain cancer cases.

For the latest on the SV40 / mesothelioma debate see this article noting that both asbestos and SV40 cause calretinin (you remember - calretinin- from all those mesothelioma immunohistochemistry path reports you're always reading) to rush to the defense of mesothelial cells eventually, perhaps, exhausting some ill defined mechanism and leading to mesothelioma.

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Private lawsuits to advance changes being sought by the executive branch? Undoubtedly the plaintiff bar is saying "Yes we can!"

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The New York Times is now reporting on the biggest risk to the water supply - nasty little microbes.

"[D]airy owners, some of whom are perceived as among the most wealthy and powerful people in town" are said by some to be behind the contamination.

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Many millions of Americans will get sick this year. A couple of million will get very sick. Hundreds of thousands will die. It happens every year. But this year tens of millions will get the swine flu shot. Shortly thereafter some will come down with whatever it was they were going to get anyway. And many of them will blame the swine flu shot. After all, they will have been healthy, then have gotten the shot, and then have gotten sick. Obvious, and obviously wrong.

Wrong and obviously dangerous. If a vaccine health panic erupts people may be frightened into not getting vaccinated and that's the real danger. So public health officials have developed a plan to deal with the expected outbreak of bad causal analysis. You can read more about it here.

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Senator Tom Harkin (D-IA), the new head of the Senate Committee on Health, Education, Labor and Pensions promised on Monday to probe deeply into any potential links between cell phone use and cancer. This issue has been extensively studied, particularly in Scandinavian countries where cell phone manufacturers such as Nokia and Ericson are headquartered. Each study to date has found no statistically significant association between cell phone use and cancer, including brain cancer.

However, there are still some who attribute brain cancer to cell phones on the theory that radio waves, a form of radiation, damage brain cells. The debate comes on the heels of the 1980's and 1990's controversy regarding the potential adverse health effects of electromagnetic fields EMFs emanating from power lines. While studies cleared EMFs they implicated population mixing likely via some sub-clinical infection as a cause of cancer in children. More on population mixing to come.

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Lots of things cause aneuploidy but does that mean they cause cancer? Could it be that it's actually protective?

Nat Rev Mol Cell Biol. 2009 Jul;10(7):478-87. Boveri revisited: chromosomal instability, aneuploidy and tumorigenesis

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If a chronic inflammatory process is behind asbestos' mayhem, then forsterite, the product of asbestos heated to very high temperatures, is likely to be far less harmful than even chrysotile.

See article.
 

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Here's an another article for the health conscious suggesting that Golden Delicious apples contain a chemical that inhibits the growth of a bacterium called helicobacter pylori (h. pylori).  H. pylori is known to cause MALT lymphoma and stomach cancer and is increasingly suspected as a causative agent in a host of other cancers often the subject of mass tort litigation.

Though IARC declared h. pylori a Class I human carcinogen for gastric cancer in 1994, unflinching efforts to demonstrate links between h. pylori and neoplasms as diverse as colon cancer and lymphoma commenced only recently.  

In another post on this topic I’ll discuss the big drum that always gets beat in mass tort cases, epidemiology, and how it fared in elucidating the real cause of gastric cancer.  Teaser: When it came to finding the real cause, h. pylori, epidemiology produced an epic failure.

See "Carotenoids with Anti-Helicobacter Pylori Activity from Golden Delicious Apple"

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Helicobacter pylori has been identified as a causative agent in cancers that are often the subject of mass tort cases such as lymphoma, stomach and colon cancer.  Though the route of transmission of helicobacter pylori is unknown it's believed that the infection is acquired early in life through drinking water.   

Here's a paper that will be presented at a conference on water and public health to be held in Philadelphia, Pennsylvania this November by the American Public Health Association that discusses how helicobacter pylori might catch a ride on amoebas to infect our water supply.  Or if you want to worry about bladder cancer from exposure to arsenic in the water supply then you might find this link of interest.  The full program can be found here.

Two other papers you might find of interest on this cancer-causing agent via the public water supply can be found here and here.

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According to this rather expensive article published in The Lancet, despite a ban in 40 countries and dramatically reduced consumption levels in other industrialized countries like the U.S., 2.2 million metric tonnes of chrysotile is still being mined and used annually with much of it going into projects in China and India. For good or ill a laboratory for studying the effects of white asbestos exposure in humans has been established.

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Chronic beryllium disease may result from very low levels of exposure to beryllium which occurred decades before any manifestation of the illness. The mechanism is thought to be a delayed immune response triggered by unknown environmental and genetic factors but at its heart due to sensitization to beryllium.

In this paper the authors present a history of the disease and current knowledge of its molecular biochemical mechanisms. They conclude that the current very low OSHA exposure limits still do not protect workers and suggest screening methodologies to identify those at risk.

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Today The New York Times has a very interesting article about reasoning.  It includes a discussion of what is called motivated reasoning which is "processing and responding to information defensively, accepting and seeking out confirming information, while ignoring, discrediting the source of, or arguing against the substance of contrary information". 

Here the authors of a paper linked to in The Times' article examined a particular mental shortcut, the situational heuristic, in which cues as to how to judge a contention are drawn from the nature of the actions in question.  Their hypothesis is that because going  to war is an important decision people believed there had to have been important reasons for having done so and went so far as to assume the existence of reasons that didn't exist or weren't suggested.

More evidence that the typical juror is similarly likely to believe, unless disabused of the notion, that lawsuits aren't filed unless there are strong grounds for doing so.

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Bloomberg is reporting in "Prostate Cancer’s Worst Form Linked to Gene-Influencing Virus" that a virus linked to the most aggressive form of prostate cancer, the XMRV virus, may insert itself in a cell's genome setting up shop next to genes coding for cell growth and thereby leading to uncontrolled growth.

Daily the 20th century scientist's belief that nature is benign yields to the wisdom:

Tho' Nature, red in tooth and claw
With ravine, shriek'd against his creed
 

  - In Memoriam A.H.H. - Alfred, Lord Tennyson

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In the hormone replacement therapy litigation there's obviously a fight over whether estrogen caused the plaintiff's breast cancer. Is the demarcation simply a line between those breast cancers fueled by estrogen and those that aren't? If so, are there alternate causes of estrogen-fueled breast cancers?

What about human papillomavirus? It's been identified as the cause of cervical as well as head and neck cancers. Now HPV has been suggested as a cause of breast cancer.  http://www.nature.com/bjc/journal/vaop/ncurrent/full/6605282a.html

But is HPV a cause independent of estrogen or does estrogen facilitate whatever HPV does that leads to breast cancer? And if it's the latter, how do you sort out causation?

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The idea that fungi, bacteria, viruses, etc. invade much more complex organisms and force them to do their bidding is not new but the extent of the control they can exert is just now beginning to be revealed.

For a good discussion of one method by which an organism invades another to create something new see this article - though perhaps the title of it needs to be altered slightly to read "how endosymbosis is changing life on earth".

But for a really interesting read about one life form hijacking another see this story about zombie ants.  Hat tip www.MycoRant.com.

And what does this have to do with mass torts?  1) Again, there's increasing evidence of a paradigm shift in the thinking about causes of cancer and a number of infectious disease processes are being associated with cancers seen in toxic tort cases; and, 2) infectious disease, maybe including those that decades later result in cancer, may soon be among the most massive of mass torts.

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Here's a link to the program and abstract book: http://www.tum-benzenesymposium.de/AbstractBook_FINAL_082509.pdf

Given the current state of benzene litigation among the most interesting presentations will be those pertaining to (1) latency (whether attributable cases drop dramatically after 10 years or so); (2) disease endpoints (just AML, just certain subtypes of AML, or NHL, MM and even ALL); (3) molecular biology/epidemiology (biomarkers and pathways) for assessing past exposures; and, (4) risk assessment.

Details to follow.

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The CDC has reported on six cases of children exposed to lead while in their car seats who developed lead poisoning.  The lead was not in the car seats but rather tracked into the vehicles by the husbands or boyfriends of the children's' mothers.  The contamination had come from metal recycling or paint removal job sites.  Hat tip:  Dr. Buttery's Public Health BLOG.

Childhood Lead Poisoning Associated with Lead Dust Contamination of Family Vehicles and Child Safety Seats.

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Wired has a new article about the placebo effect and evidence that placebos are becoming more increasingly more potent.

Years ago I was thinking about going to medical school and so hung on every word from a friend's father when he talked about what he did for a living. I remembered being fascinated by his stories about sugar pills and the patients to whom he prescribed them. He said that he'd learned years before that for some patients, the ones without any objective signs of treatable illness, he did his best work by being part priest and part witch doctor.

He'd listen to their stories, affirm their suffering, advise them to live better, forgive them their faults and prescribe powerful new magic - "penta-methyl-tri-something-or-another-cis-this-and-that". And it worked. He and his pharmacist friend had to be creative though as patients would compare pills and often return to demand stronger magic citing a neighbor's far milder symptoms. So they wound up having a number of different sugar pills in varying shapes and sizes. I don't recall him saying much about color other than that one lady, upon discovering that she'd been prescribed a very large red and white pill, returned to the office to say that she wasn't nearly as sick as the doctor apparently thought she was.

So what does this have to do with mass torts? Well, particularly in the realm of adverse effects from the use of psychotropic drugs, there's a huge risk of (or opportunity for) getting the causation arrow pointed in the wrong direction especially when so little is known about the causes of mental and emotional disorders and the mechanisms by which they are alleviated. After all, trial lawyers thrive in conditions of uncertainty.

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Williams Kherkher has filed their brief in Bailess v. Kaiser Gysum Company, Inc., et al. on appeal from the MDL court's granting of a summary judgment against their mesothelioma client.  According to the brief at the hearing on the motion for summary judgment the court stated that its ruling would be determined as follows:

This motion is going to be decided straight up on what Borg-Warner says and what Borg-Warner requires... If Borg-Warner requires that the dose from each defendant be enough by itself to be the substantial contributing factor, the motion must be granted.  If Borg-Warner does not require that, then the motion must be denied...

Having granted summary judgment the MDL court apparently settled on the former rather than the latter intrepretation of Borg-Warner.  In my opinion the premise doesn't reflect the true meaning of Borg-Warner.

Texas case law has refined and melded concepts of causality and culpability into a coherent and flexible scheme for determining whether or not liability ought to be imposed for the adverse consequences (negative externalities) of our actions. Essentially, a substantial contributing factor is a "but for" cause resulting from a risk imposed that was more than de minimis. The word "substantial" in "substantial contributing factor" relates, I think, to risk since any candidate cause must we know from Ford v. Ledesma be a "but for" cause and thus no more or less important than any other "but for" cause since without it, or any other such cause, the plaintiff would not have been injured.

The Bailess ruling then appears to impose a requirement that any candidate cause must be shown by plaintiff to be a sufficient cause - in other words, a cause which in and of itself, and without resort to other causes, would have brought about the plaintiff's injury. If so, this change would mark a dramatic shift in our law since in toxic tort cases, as well as in just about any other non-intentional tort case, plaintiff has always been able to recover despite the fact that her injury would not have occurred but for the actions of each of two or more tortfeasors; tortfeasors whose actions were necessary causes but not sufficient causes.  For a good discussion of the difference between sufficient cause and component "but for" causes which collectively produced the injury, see:  www.defendingscience.org/upload/Rothman-Greenland.pdf

I don't think that's where Texas case law is heading.  The question raised by Borg-Warner in a mesothelioma case is not "was defendant's asbestos a cause and if so how big a cause was it" but rather "was the exposure (i.e. the risk) from defendant's product substantial"? In other words, was the risk imposed by defendant's conduct so substantial that it can justly form the basis for liability assuming that it can never be determined which fiber or groups of fibers actually caused the plaintiff's cancer?

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In Bennett et al. v. Reynolds, No. 08-0074, Tex. 2009.  (Opinion of Court of Appeals, 242 S.W.3d 866), a wonderful only-in-Texas cattle rustling claim, the Texas Supreme Court has granted  defendant's/appellant's petition for review.  While actual damages awarded were only $5,327.11  the punitive damages came to $1,250,000.00.  Among the four issues the court will consider, mass tort lawyers will be most interested in the first two:

1. Was the evidence of malice legally insufficient to warrant punitive damages when the cattle
raiser merely sold some cattle that were not his, but did not cause or threaten “death, grievous
physical injury, or financial ruin”?

2. Is the $1.25 million punitive damages award—which is 235 times the compensatory damages
awarded—within the limits allowed by constitutional due process?

Stay tuned as this case has been set for oral argument on December 15, 2009.

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"The European Chemicals Agency (ECHA) has published on its website proposals to identify chemicals as Substances of Very High Concern (SVHC). Interested parties are welcome to comment on these 15 substances within the next 45 days."

The fifteen substances are: Anthracene oil; Anthracene oil, anthracene paste, lght fractions from distillationi; Anthracene oil, anthracene paste, anthracene fraction; Anthracene oil, anthracene-low; Anthracene oil, anthracene paste; Coal tar pitch, high temperature; Acrylamide; Aluminiosilicate, Refractory Ceramic Fibres; Zirconia Aluminosilicate, Refractory Ceramic Fibres; 2,4-Dinitrotoluene; Diisobutyl phthalate; Lead chromate; Lead chromate molybdate sulphate red (C.I. Pigment Red 104); Lead sulfochromate yellow (C.I. Pigment Yellow 34); Tris(2-chloroethyl)phosphate.

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At Overcoming Bias there's a post, Moral Rules Are To Check Power, that may shed some light on yesterday's trolley problem. Could it be that we judge more harshly the person who shoves the fat man under the trolley than the one who flips a switch to divert the trolley so that it kills an innocent pedestrian because the former has physical power and directed it at someone over whom he could exert that power whereas the latter, who flipped a switch that anyone can flip merely made a choice that anyone could make? If that's the case, then the context of a defendant's action, including its ability to impose its will on another, may be strictly scrutinized and mere utilitarian arguments will fall flat.

So be cognizant of the power relationships in the narratives you construct for your cases and never assume that the good things your client did will be seen to outweigh the suspicions and biases raised when the outcome at issue resulted from an exercise of that power.

Our morals may exist to contain the powerful.
 

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If an analysis of the most recent list of Google Adsense's highest paying search terms as compiled by CyberWyre is any indication of what the future holds, and where the money is, then I'm guessing it has something to do with mesothelioma.  The top two highest paying search terms are "mesothelioma treatment options" at $69.10/click and "mesothelioma risk" at $66.46/click.

Of the top twenty-five highest paying search terms, eighteen contain the word mesothelioma.   A number of the most expensive search phrases related to mesothelioma also contain words like "treatment", "doctor", "prognosis", "chemotherapy" and "cure".  An unscientific sampling of the results of such searches appears to generate far more links to lawyers than to physicians.  Go figure.

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Or would a better title be something like "Back to the Future"? When I got out of law school I worked on more PAHs, nitrosamine and butadiene cases than dust cases. Some early and fairly primitive epi studies had suggested causal associations with brain cancers in southeast Texas but the litigation never really went anywhere - or at least it didn't turn into the next asbestos. There were a few bladder cancer cases that got interesting but the literature on glioblastoma pretty uniformly concluded that it had no known etiology and the brain cancer cases died out.

See: Human exposure to selected animal neurocarcinogens: a biomarker-based assessment and implications for brain tumor epidemiology. You'll have to register (and pay) to get more than the abstract.

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From bisphenol-A to benzene some researchers are claiming that some toxic substances not only don't have a no observable effect level (NOEL) but also that the shape of the dose response curve for these substances at low levels is supralinear.  What that all means is that the bane of any toxic tort litigator, the linear dose response assumption implying that even one molecule poses some risk, understates the actual risk associated with very low levels of exposure.

In "Evidence That Humans Metabolize Benzene via Two Pathways" by Rappaport, et al. hypothesize that at low levels of benzene exposure (less than one ppm) humans metabolize  the aromatic molecule much more efficiently than at higher levels due to some as-yet unidentified metabolic pathway.  Consequently "true leukemia risks" from exposure to benzene at what are considered acceptable ambient levels may instead pose significantly greater risks than are currently contemplated by regulators, according to the authors.

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Distinguishing a mesothelioma from a lung adenocarcinoma is critical in asbestos malignancies. Over time, diagnoses made on the basis of morphology and the presence of asbestos bodies gave way to immunohistochemistry. Immunohistochemical staining panels keep changing and debates often rage over whether say a positive calretinen, etc. and negative CEA, etc. is enough or whether they merely show for example an adenoma of mesothelial origin. Now there's a new paper out discussing the use of epigenetic (your genes aren't so deterministic after all) profiles. Its title is "Differentiation of lung adenocarcinoma, pleural mesothelioma, and nonmalignant pulmonary tissues using DNA methylation profiles" and you can buy a copy of it there.

Of course all these new methodologies raise the obvious question of "What happens when you try to draw causal inferences about a case diagnosed today from epidemiological research conducted at a time long before these diagnostic techniques existed?" Will these then be, at least with regard to the litigation, distinctions without a difference?

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When defending a client's actions it's important to remember that those actions will be judged not solely on the basis of outcome but also on the basis of your client's freedom to have varied from the choice it made, its relative power vis-a-vis the plaintiff, its intentions and, I suspect, whether any benefit accrued as a result of those actions.

Why this is so is explained, perhaps, by findings related to the so called trolley problems.  In the standard trolley problem a runaway trolley is running down the tracks and will crash and kill all five people on the trolley unless something is done.  A bystander has the option to throw a switch which, if thrown, will divert the trolley onto another track where it will run over and kill a pedestrian but save the five people on the trolley.  Various permutations of the problem involve varying the bystander's range of  choices, intentions and physical actions in diverting the trolley.  These permutations elicit, from those judging the bystander's conduct, widely differing views of her culpability though in each iteration, from a strictly utilitarian perspective, five are always saved and one is always lost if she chooses to save the five.

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