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

By now you've likely heard that Andrew Wakefield, the British doctor whose 1998 paper published in The Lancet linked autism to the measles, mumps and rubella vaccine, has been found by that country's medical supervisory board to be guilty of "unethical" research, dishonesty, financial impropriety and "serious professional misconduct". And if you've been following the story you know that the paper has been partially retracted by The Lancet, disowned by most of Wakefield's co-authors and its findings have been refuted by subsequent and far more rigorous research. You might even know that the vaccine scare precipitated a sharp drop in vaccinations leading to a 20 fold increase in measles cases and at least 11 unnecessary deaths.

But what you might not know is that for an awful lot of people, none of it matters.

Despite the needless deaths, despite the revelation that Wakefield received $100,000 to conduct his test from lawyers hoping to sue vaccine makers and despite studies of millions of children who received the vaccine (as opposed to the 12 studied by Wakefield) showing no link to autism, as the verdict against Wakefield was read by the board's chairman he was "repeatedly heckled by distraught parents who support Wakefield..." And if you read the comments about the verdict at The Times you'll see that there are an awful lot of people who think that Wakefield is a victim of an elaborate plot to silence him orchestrated by the drug companies (out to make money) and the government (out to save money).

So what gives? One explanation is that our perception of risk is shaped largely our values. In a recent post at The Situationist you'll find a link to a video from the National Science Foundation in which Dan Kahan discusses the "cultural cognition thesis" - the idea that people perceive risk through the lens of their beliefs about what is and isn't good for society. By way of example he discusses the HPV vaccine Gardasil and the aversion to its administration by people who typically support vaccination. Apparently, for some at least, the perceived risk of green lighting sexual activity in young women outweighs the known risk of cervical and head and neck cancers.

What values then compel so many people to cling to the scientifically unsupported belief that  vaccines cause autism? That profiting from preventing disease is morally wrong? That mandating vaccination of children is a violation of rights? Something else? Whatever the answer just remember that you won't ever change a juror's values; not in time for the verdict anyway. Instead, find a way to present the facts so that they fit, or at least do not conflict, with those values and if that's not possible then frame the issue so that some other, shared value decides the question.

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The hardest thing a trial lawyer does is also the most important thing a trial lawyer does. It is to distill her case down to its essence so that it can be clearly and easily communicated. Yet simplifying doesn't just ensure that your jurors understand your position; simplifying makes it much more likely that your jurors will believe your account to be true.

In a discussion of their recently published findings about how ease of understanding affects judgments about the information being conveyed authors Song and Schwarz report that something as seemingly minor as the font in which a statement is printed can have a profound effect on people's judgments about whether that statement is correct. Judgments about risk are affected by ease of communication as well. For example, a food additive with an easy to pronounce name was repeatedly perceived to be less risky than one with a difficult to pronounce name, despite the fact that the rest of the information, much more substantive information, about the two additives was identical.

Lastly, from this and other research, the authors conclude that easily communicated information will benefit in one other aspect. Specifically, from our tendency not to scrutinize those things which we "get". So if you want your narrative nitpicked be sure to use big words and complicated demonstratives. On the other hand, if you want your jurors instead to be digging through the testimony for facts that confirm your account be sure to communicate simply and clearly in every avenue of communication.

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A lot, actually. Or so it seems from this excellent and highly readable essay on practical jury selection. Be sure to read all the way through the jury consultant's response.

Hat tip: Marginal Revolution 

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Eight contract workers recently filed suit against BP Products North America Inc. and Pasadena Tank Corp. in Galveston County claiming they were exposed to “extremely high levels of benzene,” at BP’s Texas City refinery on Aug. 19, 2009. The exposure allegedly occurred when a damaged pipe began "spewing" chemicals in an area where the plaintiffs were working. According to the plaintiffs, they immediately evacuated the area and sought medical treatment where they learned they had been exposed to benzene.

The plaintiffs now seek $500 million in damages for pain and suffering, and mental anguish associated with being exposed to benzene, yet they make no claims of suffering from benzene-related illness. Notably, these allegations follow a $100 million verdict (mostly punitive damages) handed down against BP less than a month ago to workers who were briefly sickened by unexplained fumes (maybe CS2) at BP's Texas City refinery.  .

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In "Risk Assessment of an Essential Element: Manganese" Annette Santamaria and Sandra Sulsky of ENVIRON critically review recent epidemiological literature associating a variety of abnormal psychometrics with relatively low levels of manganese exposure.  

The authors conclude that the available epidemiological data is generally flawed and unreliable at least for the purpose of doing risk assessment. Furthermore, they demonstrate that some exposure levels claimed to pose a risk of neurobehavioral injury produce effective doses well below the amount of manganese recommended in a healthy diet; they also elaborate on the adverse health effects of manganese deficiency. Santamaria and Sulsky conclude by suggesting that more accurate and defensible risk assessments for manganese will have to come from objective data such as the determination of manganese dose via inhalation and the subsequent development of physiologically based pharmacokinetic models to predict the consequences of exposure at various levels and by various routes.

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Why is there such a disparity between health outcomes of the workers who mined chrysotile and the textile workers who used it? In "Comparing Milled Fiber, Quebec Ore, and Textile Factory Dust: Has Another Piece of the Asbestos Puzzle Fallen into Place?" Berman reports that the dusts encountered at the facilities vary in two important ways. First, whether assessed by PCM or TEM, samples revealed that mine and mill dusts contain only 67% asbestos. On the other hand, typical feedstock for the textile facility was 100% asbestos. Second, the feedstock asbestos fibers were significantly longer than those typically encountered by workers exposed to mined or even refined asbestos.

Thus, for a given quantity of dust textile workers would have an approximately 50% greater exposure to asbestos and that exposure, on a fiber per fiber basis, would be significantly riskier. The author also suggests a method for reconstructing past exposures which would more accurately estimate the risk posed by each of those exposures.

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Imagine: Someone makes a claim about how things work and assigns to that clam a 90% or greater probability of it being true. The sole evidence for the assertion is a copy of a nine year old popular science magazine in which a telephone interview of someone making the claim was reported. No data. No calculations. No experiments. Nothing.

Would you think that was "science"? Most people wouldn't.

But what if you didn't know the facts. What if all you knew was that the scientists making the claim all had fine educational pedigrees and had won prestigious awards and that their report was supported by the U.S. government, the UN and most of the rest of the world? Well in that case, figuring that someone else had already done his or her job of fact checking, you'd assume the science was sound and you'd get back to doing your own job after updating your understanding of the world with this new knowledge.

The New York Times is reporting today that the scientific claim that Himalayan glaciers will disappear within 25 years leaving hundreds of millions of people without water is based on just that sort of "science". 

The revelation that one claim in the 1000+ page IPCC 2007 report is without foundation does not of course mean that the rest of the report is faulty. Nevertheless, the fact that such a profoundly important claim made its way into the final report, based on nothing more than one person's nine year old hunch, will undoubtedly make many people wonder whether the scientists who wrote it were doing the sort of critical thinking that unshackles minds or rather were, as most people, merely seeking confirmation of their beliefs - blinded to whatever flaws or errors that come with it.

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Neuronarrative has a write up on a study that goes a long way towards confirming what is often suspected about plaintiffs' exposure testimony in latent disease cases - that showing people pictures of the activity being considered causes them to subsequently remember things that never happened. But how else would you explain the testimony of a witness who swears he used Acme Asbestos Widgets in 1955 on the XYZ jobsite but can't recall for the same year where he lived, his phone number, the brand of toothpaste he used or, in one case, the name of his then wife?

ht The Situationist

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Let's say that a telecom tower was built in your neighborhood to broadcast microwaves at a new frequency. Then, after it was up and running, neighbors began claiming all sorts of ailments including rashes, headaches, nausea, tinnitus, sleep disruption especially among children and gastrointestinal upsets. Finally, following protests from "a residential community filled with children exposed to uninvited microwaves", the company shut off the tower. Thereafter your neighbors reported that their symptoms had improved dramatically or had disappeared altogether. What conclusions would you draw about the new microwave tower and the risks it poses?

Now let's say that the company announced, and proved, that the tower hadn't been "ON" in the first place. Would that change your conclusions? Well, that's exactly what happened here.

We used to have all sorts of fun like this back in the days of multiple chemical sensitivity and similar litigation. The plaintiffs' lawyers though learned to discover everything there was to discover about a defendant's operations first and only then present their witnesses, prepared for all such revelations and ready with new and unfalsifiable claims, for deposition. Alas.

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In "Manganese, Iron, and Total Particulate Exposures to Welders" the authors analyzed multiple sets of data in an attempt to characterize exposures generated by welding. They conclude that manganese exposures are likely often above the current TLV of 0.2 mg/cubic meter.

Significantly, they also report strong and consistent correlations between levels of manganese, iron and total particulate that, they suggest, would allow the extrapolation of manganese exposure where only data on say iron exposure is available. Expect to see this approach used to demonstrate high exposures where none were seen before.

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For a number of years my great grandmother's admonition to get out of the house and get some "healthy sunshine" as soon as winter eased its grip has been at odds with the consensus in the medical community. Sunlight is officially expected to be a human carcinogen. And there's no safe level for carcinogens, right? So stay out of the sun and slather up any uncovered skin with sun block whenever you're forced to venture into the perilous outdoors. That's what the science said anyway.

The problem is that science, which is to say the business of generating knowledge, is as addicted to fads as Madison Avenue. So often when a hot new idea comes along, especially one that confirms part of a dominant narrative, most scientists and physicians seem to immediately buy into it. Thereafter, rather than investigate further whether sunshine is indeed an insidious carcinogen to be avoided at all costs, they investigate ways to stop it, or discover where it is brightest (and so riskiest), or find medicines that might ameliorate its dire effect.

At the same time though a vast and uncontrolled experiment gets carried out on the people who buy into the fad. In this case they're depriving their bodies of the Vitamin D manufactured in their skin when sunshine falls on it. Is that something they should worry about?

Well, it's beginning to look as though the good health of Mediterraneans has a lot more to do with getting plenty of sunshine than it does with getting plenty of dolmades and wine. The number of papers demonstrating vitamin D deficiencies in Americans and the relationship between vitamin D deficiency and increased risk of cancer is astounding. The newest I've found, "Plasma 25-hydroxyvitamin D Levels and the Risk of Colorectal Cancer: the Multiethnic Cohort Study" demonstrates a 37% to 46% decrease in colorectal cancer among Hawaiians of Japanese, Latino, African-American, White and Native ancestries with the highest levels of 25-hydroxyvitamin D in their blood.

And vitamin D deficiency isn't just associated with cancer. In another new paper it's associated with infections leading to more illness, costly treatments and long hospital stays. The authors conclude: "Vitamin D deficiency is intimately linked to adverse health outcomes and costs in Veterans with staphylococcal and c. difficile infections in North East Tennessee".

My great grandmother worked in her garden almost to the end of her days. She made it to 101 without a walker or even a cane then died in her sleep after a fall. Simply an anecdote proving nothing about sunlight, I know. Nevertheless, we might do well to consider tradition and the thoughts of the wise before jumping aboard every bandwagon that rolls by.

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If a strong and consistent association between autism and a single chemical or vaccine were found in ten separate clusters around California you'd expect to read about it; and you'd expect the researchers to infer that the chemical or vaccine was, in fact, the cause of autism. But what if the only strong and consistent association wasn't between autism and exposure to some substance but was instead between autism and something complex, like "high parental education"? Well, you'd probably expect a lot of frustration; and you'd be pretty sure autism wouldn't be laid at the feet of higher education.

So what should we make of "Geographic Distribution of Autism in California: a Retrospective Birth Cohort Analysis" ? Why would the children of parents with college degrees be at a 400% increased risk of autism? Why aren't chemicals to blame?

The authors concede in interviews with Scientific American that the results tend to undermine claims that industrial pollution causes autism. Yet rather than explore the possible reasons why college-educated parents might be significantly more likely to have autistic children the authors speculate that their results may be biased. Perhaps, they suggest, the less educated aren't educated enough to take their autistic children in to be diagnosed. Or maybe, they wondered, the educated are much more likely to use some unknown household chemical which does, in fact, cause autism. Scientific American hastens to add that there's an unpublished study that shows a doubling of the risk of autism in mothers who use pet flea shampoos.

But why point to a much smaller effect allegedly to be found in an unpublished paper when a much larger effect published in a peer reviewed journal is in front of you?

First, people tend to prefer simple answers with readily implemented solutions, the blame for which, and the costs of which, get imposed on someone else. 

Second, epidemiology, at least as practised in the West, tends to be reductionist. The triumph of linking tobacco to smoking led many epidemiologists to believe, or at least to want to believe, that indeed there are simple solutions to big problems and that silver bullets are out there just waiting to be found.

Finally, it's becoming increasingly clear that all sorts of ailments, from cancer to obesity, are highly complex and result in large part, from lifestyle, cultural and economic choices. Take breast cancer for example. One of the very best ways to reduce the risk of breast cancer is for a woman to bear children and to begin doing so in her late teens or early 20s. Yet no one wants to say that putting off children to get a degree and start a career is a cause of breast cancer.

And so, for now, the search is still on for the usual suspects.

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The EPA says that radon, a colorless, odorless gas, is responsible for 20,000 American lung cancer deaths annually. Because January is the best time to test for the gas it has been designated "National Radon Action Month". You can read the EPA's press release here and find its radon information and testing site here.

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Public authorities, citizens and organisations are being asked to weigh in on a new Action Plan for Nanotechnology being considered by the European Commission . Submissions are due by Feb. 19, 2010. There's also an online questionnaire to be filled out that will give you a pretty good idea of the benefits and risks being contemplated for this new technology.

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The California Supreme Court will review an asbestos case against valve and pump manufacturers that will provide the opportunity to reconcile divergent California appellate court views on the issue of whether a manufacturer had a duty to warn of the dangers associated with the subsequent application of asbestos-containing materials to its products.

In O’Neil v. Crane Co., plaintiffs asserted mesothelioma claims of a naval officer that was exposed to asbestos during his military service on ships. A panel of the California Court of Appeal, First Appellate District reversed the trial court and permitted the case to proceed against manufacturers of pumps and valves for harm caused by asbestos-containing replacement packing and insulation which were used with their products but they didn't manufacture.

The appellate court disagreed with the reasoning of the California Court of Appeal, First Appellate District, in Taylor v. Elliott Turbomachinery Co., 171 Cal. App. 4th 564 (2009). Although the facts were very similar to O’Neil, the appellate court in Taylor rejected liability for pump and valve manufacturers as they were manufacturers of non-defective component parts of a greater whole, and they didn't manufacture the asbestos-containing products that caused the harm.

To further complicate the issue, a different panel of the Second Appellate District agreed with the reasoning in Taylor and held that valve manufacturer “owed no duty to warn against dangers in products, used in association with or as replacement parts of its valves, which it did not manufacture or supply.” For detailed write-up of the Second Appellate District's opinion, see our earlier post on Merrill v. Leslie Control, Inc.

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Arguing that the target of benzene is a multipotent stem cell capable, when carrying the sort of mutations thought to be caused by benzene, of producing both myeloid and lymphoid malignancies, and that new classification systems are blurring the lines between previously thought distinct diseases, Goldstein's article concludes that  there is now sufficient evidence to attribute lymphomas to benzene exposure.

That's the same argument made years ago in benzene litigation, though with different references. So what should we make of the intervening science? What about alkylating chemotherapeutics that produced similar genotoxicity and t-AMLs but not lymphomas? What about the epi studies that show increased risk for AML but not lymphomas?

In many respects last year's benzene conference in Munich served mainly to demonstrate how little is known about leukemogenesis and how staggeringly complex is the causal web that leads to lymphoproliferative malignancies.

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"If there is one thing the history of evolution has taught us it's that life will not be contained. Life breaks free, expands to new territory, and crashes through barriers, painfully, maybe even dangerously." -Dr. Ian Malcom, Jurassic Park

That's the quote that came to mind when I read the story about infectious cancer in Tasmanian devils from The New York Times. It's about a cell that became "malignant" and then set out on its own to be parasitic on others of the species. So far, only one similar case has been found - that of canine transmissible venereal tumor in dogs. But then, how long have researchers been looking for cells that left the multicellular super organism of which they were once a part to set up shop and find a new way of growing and propagating?

The dogmatic view that chronic diseases like cancer must be due to chemicals or behavior is now yielding to an older view that many of our woes are instead due to a nature red in tooth and claw.

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