[extropy-chat] FWD (SK) 'Cancer, Chemicals and History' from The Nation

[Terry W. Colvin]

[FOR Forteana: Does anyone remember Brent?  He subscribed from Phoenix where
he attended Arizona State University.  Brent made some comments about Monsanto,
perhaps in private e-mail to me (CRS). -Terry]


from H-SCI-MED-TECH at H-NET.MSU.EDU

Date:   Friday, January 21 2005 10:04 am
From:   David Rosner <dr289 at columbia.edu> add to contacts
Subject: 'Cancer, Chemicals and History' from The Nation

Dear All,

David Rosner wanted to alert the list to following article in the Nation, that
is of interest to historians of science, medicine, and technology,
particularly those interested in corporate histories, and the history of
public health. We welcome responses about this article, and the subject in
general from listmembers.

Best,
Suzanne Moon



    Cancer, Chemicals and History
    by Jon Wiener


    Twenty of the biggest chemical companies in the United States have
    launched a campaign to discredit two historians who have studied the
    industry's efforts to conceal links between their products and
    cancer. In an unprecedented move, attorneys for Dow, Monsanto,
    Goodrich, Goodyear, Union Carbide and others have subpoenaed and
    deposed five academics who recommended that the University of
    California Press publish the book Deceit and Denial: The Deadly
    Politics of Industrial Pollution, by Gerald Markowitz and David
    Rosner. The companies have also recruited their own historian to
    argue that Markowitz and Rosner have engaged in unethical conduct.
    Markowitz is a professor of history at the CUNY Grad Center; Rosner
    is a professor of history and public health at Columbia University
    and director of the Center for the History and Ethics of Public
    Health at Columbia's School of Public Health.

    The reasons for the companies' actions are not hard to find: They
    face potentially massive liability claims on the order of the tobacco
    litigation if cancer is linked to vinyl chloride-based consumer
    products such as hairspray. The stakes are high also for publishers
    of controversial books, and for historians who write them, because
    when authors are charged with ethical violations and manuscript
    readers are subpoenaed, that has a chilling effect. The stakes are
    highest for the public, because this dispute centers on access to
    information about cancer-causing chemicals in consumer products.

    For Rosner and Markowitz the story began in 1993, when they traveled
    to Lake Charles, Louisiana, to look at what they were told was "a
    warehouse of material" about vinyl chloride and cancer. The address
    they were given turned out to be a "decrepit hovel in the desolate
    center of town," as Markowitz describes it. They found it "full of
    chemical industry documents, lining every wall and filling every
    corner." The material, Rosner told me, was "incredible. Not just
    company documents but records of meetings of the trade association
    for the chemical companies. No one had ever seen anything like it."

    The material had been obtained through the discovery process by a
    local attorney, Billy Baggett Jr., who was working alone with a
    single client: A woman whose husband, a former worker in a chemical
    plant, had died of a rare cancer, angiosarcoma of the liver, caused
    by exposure to vinyl chloride monomer. She was suing the chemical
    company where he had worked. Baggett "had become obsessed with the
    case and dropped all the other cases he was supposed to be working on
    in his father's firm," Rosner told me. "He had not been able to bring
    the case to trial. So his father went to a bigger law firm asking for
    help. They asked us to go down to Lake Charles, Louisiana, and find
    out--is there anything there in the documents? Or is this guy just an
    obsessive?"

    Baggett had sued thirty companies and the Chemical Manufacturers
    Association (now called the American Chemistry Council) for
    conspiracy, arguing that they had concealed evidence of disease and
    death related to vinyl chloride. He had received hundreds of
    thousands of documents in response to his discovery motions.
    Apparently the chemical companies had flooded him with material in
    the belief that he would be overwhelmed by the sheer quantity, and
    that as a result nothing would happen.

    The question about the chemical companies and the health risks of
    vinyl chloride is the classic one: What did they know, and when did
    they know it? Rosner and Markowitz used the Baggett materials to show
    that in 1973 the industry learned that vinyl chloride monomer caused
    cancer in animals--even at low levels of exposure. Since vinyl
    chloride was the basis for hairspray, Saran Wrap, car upholstery,
    shower curtains, floor coverings and hundreds of other consumer
    products, the implications for public health were massive. Yet the
    companies failed to disclose that information about cancer to the
    public and to the federal regulatory agencies.

    The bigger issue for the companies stems from the role of vinyl
    chloride monomer as a propellant in aerosols in the 1950s and '60s.
    In 1974 the Food and Drug Administration and the Environmental
    Protection Agency asked for the recall of hairsprays (along with
    insecticides and other aerosols) that were still on the shelves with
    vinyl chloride monomer as the propellant--one hundred products in
    all. No one has studied whether people who worked in beauty parlors,
    or women who used hairspray, have had higher rates of cancer. But the
    industry started worrying in the early 1970s that the liability
    problem could be bigger than that for workers in chemical plants. The
    problem was "essentially unlimited liability to the entire US
    population," as one chemical company supervisor wrote in a 1973 memo.
    Hairspray was a particular concern.

    The documents served as the basis for two chapters of Rosner and
    Markowitz's book, published in 2002 to stellar reviews in the news
    media as well as medical and scientific journals: the St. Louis
    Post-Dispatch declared that the book "ought to give thousands of
    corporate executives insomnia" (the key documents have been posted on
    the Internet at
    www.chemicalindustryarchives.org/dirtysecrets/vinyl/1.asp).

    The documents are of a kind that outsiders have rarely been allowed
    to see: private corporate records, including internal reports of
    meetings where corporate officials made decisions about making and
    marketing products that caused health problems for workers and the
    public. For example, the key chapter on vinyl chloride in the book is
    titled "Evidence of an Illegal Conspiracy by Industry." That phrase
    is not the authors'; it comes from a key 1973 document in the files
    of the chemical company trade group, the Manufacturing Chemists
    Association, worrying that a legal memo on concealing the vinyl
    chloride-cancer link "could be construed as evidence of an illegal
    conspiracy by industry if the information were not made public or at
    least made available to the government."

    At issue now in US district court in Jackson, Mississippi, is the
    claim by another former chemical worker that Airco and other
    companies are liable for his liver cancer because he was exposed to
    vinyl chloride monomer on the job. Markowitz is a key expert witness
    for the plaintiffs, because of the research he and Rosner published
    in Deceit and Denial. But the judge is being told that Rosner and
    Markowitz's research is "not valid," that the publisher's review
    process was "subverted" and that Rosner and Markowitz have
    "frequently and flagrantly violated" the American Historical
    Association's code of ethics.

    Those charges come from another historian enlisted by the chemical
    companies: Philip Scranton of Rutgers University, who wrote a
    forty-one-page critique of Deceit and Denial and of the ethics of the
    historians who wrote it. Scranton teaches business history at
    Rutgers-Camden, where he is University Board of Governors Professor
    of the History of Industry and Technology. He also works at the
    Hagley Museum, a museum of early-American business history at the
    "ancestral home" of the Du Pont family, as it's described on the
    official website. Scranton directs the museum's research arm, the
    Center for the History of Business, Technology and Society. He also
    testified recently for the asbestos companies in their liability
    litigation.

    Although Scranton is serving in this case as an expert witness for
    the chemical companies, he's not an expert on cancer-causing
    chemicals; he's best known for his prizewinning book on the textile
    industry in Philadelphia. In this case, he doesn't claim to be an
    expert on the postwar chemical industry; instead, he offers himself
    as an expert on Markowitz's ethics. Markowitz, in contrast, is a
    genuine expert on the central issue in the case: the question of what
    the chemical companies knew, and when they knew it.

    Scranton in his forty-one-page statement for the chemical companies
    charges that Markowitz violated "basic principles of academic
    integrity, historical accuracy, and professional responsibility" and
    engaged in "sustained and repeated violations" of the official
    "Standards" of the American Historical Association. Scranton's
    argument: Markowitz knew the names of the people reviewing his
    manuscript for the publisher and had suggested names of possible
    manuscript reviewers to the publisher. "Such practices," Scranton
    writes, "subverted confidential, objective refereeing of scholarly
    manuscripts."

    But it's a common practice of university presses to ask authors to
    suggest reviewers, often because authors know better than editors
    who the most knowledgeable experts are, especially on an obscure
    topic like vinyl chloride. There's nothing unethical about this
    practice and nothing in the AHA standards about it. It is true, as
    Scranton suggests, that university presses typically offer
    manuscript reviewers the option of keeping their report confidential
    from the authors, and that in this case the publisher revealed the
    identities of the reviewers to the authors. But that was part of a
    review process that was much more demanding than the typical case.
    Instead of the usual two or three manuscript reviewers, Rosner and
    Markowitz's manuscript had eight outside reviewers, including the
    former head of the National Cancer Institute and the former chair of
    the Centers for Disease Control's Lead Advisory Panel. And instead
    of simply forwarding the written evaluations to the authors, as is
    the usual practice, Milbank Memorial Fund, the public health
    nonprofit that co-published the book with the University of
    California Press, sponsored a two-day conference that brought
    together the reviewers, the authors and their editors to go over the
    manuscript chapter by chapter. To describe this rigorous scholarly
    process as "unethical" because it revealed the identities of the
    reviewers to the authors is absurd.

    Scranton also objects to what he calls "overgeneralization" in Deceit
    and Denial. For example, the authors use the term "industry." But,
    Scranton argues, there were only individual companies. Rosner and
    Markowitz in their response show that the companies formed a trade
    organization that claimed to speak for "the industry." And Scranton
    accuses Markowitz of ethical violations for incomplete and selective
    quotation and one-sided advocacy. However, Scranton violates
    precisely what he says are the ethical principles he is defending;
    Scranton's essay is much more incomplete and selective, and is
    completely one-sided in its defense of the chemical industry.

    Could Scranton be right that Markowitz violated the AHA Statement on
    Standards in his research? I asked the vice president for research of
    the AHA, Roy Rosenzweig, Distinguished Professor of History at George
    Mason University. "I've read the AHA Statement on Standards," he
    says. "I see nothing in Markowitz and Rosner's book that's a
    violation of the AHA Standards. In my opinion, the book represents
    the highest standards of the history profession. Scranton should be
    embarrassed to make the claim that there's an ethical violation
    here--as opposed to the claim that he disagrees with their
    interpretation."

    The rest of Scranton's argument has a lot in common with the
    arguments made by the tobacco and lead companies and their attorneys
    in those historic liability lawsuits, arguments that have been
    identified by Stanford historian Robert Proctor, writing in The
    Lancet, one of the leading medical journals in the world. The generic
    arguments go something like this: Although historians have found
    evidence that industries were aware of the danger posed by their
    products, that evidence was not definitive; because they had "no
    proof," they had no obligation to act to protect the health of
    workers or the public; standards of corporate morality and openness
    have become stronger only recently, so it's "unfair" to apply today's
    standards to past conduct; and of course there's always the argument
    that the historians who claim to have found evidence of corporate
    misconduct are "biased."

    When I asked Scranton by e-mail if he would be willing to talk about
    his deposition, he replied, "These are matters for a court to address
    and are not yet issues for public debate." Of course, nothing is more
    public than a court case--but he told the Newark Star-Ledger he
    "regretted" that Rosner and Markowitz were making the issue public.
    Columbia historian Elizabeth Blackmar, one of the manuscript
    reviewers who were subpoenaed by the chemical companies, said, "I
    respect Scranton's work as a historian, so I was sorry he had turned
    himself into a hired gun this way."

    If it's unprecedented for companies to go after historians in the way
    Rosner and Markowitz have been attacked, it's also apparently
    unprecedented to subpoena and depose the peer reviewers who
    recommended that a university press publish a book. The Blackmar
    subpoena--"my first," she says--read: "You are commanded to appear"
    in US district court, and to "produce and permit inspection and
    copying" of all the material used in preparing the evaluation of the
    book manuscript, including "any original written, typewritten,
    handwritten, printed or recorded material...now or at any time in
    your possession, custody or control," including all e-mail.

    Academics aren't used to being "commanded" to do anything, and are
    unlikely to have attorneys of their own to accompany them to
    depositions. In this case, since the book was co-published by the
    Milbank Fund, the fund provided the subpoenaed historians with
    attorneys from Milbank, Tweed, the blue-chip Wall Street global legal
    powerhouse. At the depositions, each historian faced attorneys for
    fifteen different chemical companies. One of the key questions was
    whether those who recommended the book for publication had checked
    the footnotes. That would have been a big job: Deceit and Denial has
    more than 1,200 footnotes, many citing more than one source. The
    prevailing practice at university presses is that manuscript
    reviewers are not expected to check footnotes; Lynne Withey, director
    of the University of California Press, asked, "How could you expect
    people to do that?" In fact, the documents in Rosner and Markowitz's
    footnotes were checked thoroughly before publication by attorneys for
    both PBS and HBO: PBS ran a Bill Moyers documentary in 2001 on cancer
    caused by chemicals in consumer products, based on Rosner and
    Markowitz's research; and HBO ran an award-winning documentary in
    2002, Blue Vinyl, based on some of the same research.

    What's the point of deposing manuscript reviewers for university
    presses? Blanche Wiesen Cook, Distinguished Professor of History at
    the Graduate Center of the City University of New York, former vice
    president for research of the AHA, award-winning biographer of
    Eleanor Roosevelt and one of the historians who were deposed, called
    it "harassment to silence independent research" and an effort to
    create "a chilling effect on folks who tell the truth."

    What's it like to be deposed in this situation? Markowitz's
    deposition lasted five and a half days. He said, "You face fifteen or
    sixteen lawyers, none of whom like you, and all of whom are trying to
    trick you." Cook's deposition took only an hour, but it was "an hour
    of battering and legal tricks, and the goal was to trip you up and
    get you confused," she said. "They kept asking me how long I had
    known Gerry Markowitz. I said, 'Are you asking if I had an affair?'
    They said, 'No, why are you asking that?' I said, 'Where I come from,
    that's the implication of your question.' They said, 'Where do you
    come from?'" This seems pretty far from the question of vinyl
    chloride and cancer.

    Scholars like Cook and Blackmar who review manuscripts for university
    presses don't do it for the money--UC Press typically provides $300
    in free books or $150 in cash--but rather out of a sense of
    obligation and duty; they certainly don't expect to have to defend
    their recommendation under oath in the face of hostile questioning
    from a dozen corporate lawyers. Should UC Press have done more to
    protect its manuscript reviewers and its review process? Should it
    have resisted the subpoena for the reviewers' names and information?
    UC Press director Withey says that if this had been the typical
    manuscript where the reviewers had been promised confidentiality, "I
    would not have revealed names of reviewers. That would have gotten us
    into a sticky situation, I'm sure." William Forbath, Lloyd Bentsen
    Professor of Law at the University of Texas, says any effort to
    resist a subpoena for reviewers' names and information would have
    been "in vain." If the information in question is relevant to the
    case, he says, "there is no general privacy privilege outside of the
    attorney-client privilege, the spousal privilege, the doctor-patient
    privilege and the priest-penitent privilege--that exhausts it. The
    publisher promises its manuscript readers confidentiality, but that
    doesn't count for squat in the context of a legal proceeding."

    Rosner and Markowitz are part of a larger trend in which historians
    are appearing in court more often as expert witnesses. One reason is
    the growing number of cases in which companies are being accused of
    wrongdoing based on evidence that workers and consumers are suffering
    illness and disability because they were exposed to asbestos, lead,
    silica or other chemicals. In every case, the exposure began decades
    ago, and thus in every case, the central legal question is a
    historical one: When did the companies first learn of the health
    dangers posed by their products? At what point in the past can they
    be held responsible?

    A second reason is a consequence of the failure of governmental
    regulatory agencies to act. Now, in an era of Republican domination,
    the Occupational Safety and Health Administration and the
    Environmental Protection Agency, originally created to protect the
    health of workers and the public, tend to be industry-dominated. As a
    result, the courts have become, in the words of Rosner and Markowitz,
    "one of the last venues where workers and communities might find some
    form of justice."

    In the past, each side in corporate liability cases has presented
    experts who debated the evidence in the corporate documents. This
    case marks a new departure, because the strategy of the chemical
    companies is to charge the plaintiff's expert with unethical conduct.
    Will this ploy succeed? The logic of the argument is dubious: So what
    if some of the manuscript reviewers for Deceit and Denial knew the
    authors? What ought to decide the case are the facts about what the
    chemical companies knew about cancer and when they knew it. On the
    other hand, juries don't know much about publishing history books.
    It's possible that a jury could be convinced that something was wrong
    with a book whose manuscript reviewers didn't check footnotes, and
    with a publisher that did not maintain strict confidentiality in the
    manuscript review process.

    Most of these corporate liability cases are settled before going to a
    jury, but the willingness of the companies to settle is based on
    their estimate of the persuasiveness of the witnesses against them
    and their guesses about the jury. This case, originally scheduled to
    go to trial in February, has been rescheduled for September.


This article can be found on the web at:

< http://www.thenation.com/doc.mhtml?i=20050207&s=wiener >
[requires subscription]


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