The Furor over Junk Science: The Perspective of a Plaintiff’s Attorney

by Raphael Metzger, Esq.

As a toxic tort attorney who represents injured plaintiffs, I have become accustomed to defense attorneys and experts calling the evidence that I present on behalf of my clients “junk science.”  It doesn’t really matter whether the scientific methodologies on which my experts rely have been well studied and proven to be scientifically valid according to recognized scientific criteria.  It doesn’t matter that the causal association between the toxic agent and my client’s disease has been proven by multiple consistent statistically significant epidemiologic studies.  It doesn’t even matter that my client has a signature injury that has only been reported to be caused by the toxic agent to which he was exposed and that his exposure was greater than that established by several large-scale epidemiologic studies as being causative.  All the evidence that I offer is just “junk science.”

Although I try to accept only meritorious cases and engage well-qualified and credible scientific experts to prove them, I wonder whether all my efforts and thousands of hours spent studying the scientific literature are in vain? Is all the evidence that I present on behalf of my clients necessarily junk science?

For a while I feared that I had lost all perspective and was suffering from a mild case of paranoia from overexposure to the “junk science” chorus sung by toxic tort defense attorneys and experts.  Then I visited Steven Milloy’s Website “junkscience” and realized that my paranoia was not unfounded.  On Steven Milloy’s website I found a most interesting definition of junk science:

“Junk science” is bad science used by: personal injury lawyers to shakedown deep pocket businesses; the “food police” and environmental Chicken Littles to fuel wacky social agendas; power-drunk regulators; cut-throat businesses to attack competitors; and slick politicians and overly ambitious scientists to gain personal fame and fortune.”

I finally understood.  The scientific evidence that I use must be junk science, because I am a “personal injury lawyer” and therefore I must be out to “shakedown deep pocket businesses” on behalf of my venal clients, who are dying from leukemia, liver disease, kidney failure, and fatal lung diseases.

I found it interesting that according to Mr. Malloy, junk science is only used by personal injury lawyers, not defense attorneys.  I also found it interesting that according to Mr. Malloy, junk science isn’t used by chemical companies to defeat meritorious toxic injury claims, but only to attack competitors.

Since I now understand that I am a purveyor of junk science by virtue of my status as a venal personal injury lawyer, I thought I would comment on some of the “good science” that chemical companies and defense attorneys have used in recent cases.

First, is the case of John M. Stiner v. A.P. Green Industries Inc. No. 1998-1666 (N.Y. Sup. Erie Co.).  This was a wrongful death case, in which the decedent, Chester Kucinski, died of mesothelioma.  Mesothelioma is a cancer of the lining of the mesothelial tissue (peritoneum, pleura, pericardium).  It is an exceedingly rare and rapidly fatal cancer that has been clearly and consistently associated with asbestos exposure in epidemiologic studies.  It has an extraordinary lengthy latency period of between 20 and 50 years. Mr. Kucinski in fact had an occupational history of asbestos exposure, having worked at Bethlehem Steel in 1955.  One of the defendants in the case was Owens-Illinois, a major asbestos manufacturer, that has suffered many adverse judgments for causing asbestos-exposed workers to suffer and die from mesothelioma.  Since its customary defenses hadn’t worked very well, Owens-Illinois designated two experts to testify that SV-40 virus had been found in Mr. Kucinski and that this virus was a possible cause of his mesothelioma.  SV-40 is an abbreviation for Simian Vacuolating Virus No. 40, a small double stranded, circular DNA virus that originated in rhesus monkeys.  In 1960, the SV-40 virus was found in polio vaccine produced with monkey cells.  Some researchers claim that the genetic footprints of the virus are found in tumors removed from patients who have cancers, including mesotheliomas.  It was based on this evidence that the Owens-Illinois’ experts sought to offer testimony that Mr. Kucinski’s mesothelioma might have been caused by SV-40 virus.

Now, by definition, this evidence was good science, because it wasn’t being offered by a personal injury lawyer to shakedown a deep pocket company.  Therefore, the trial judge’s exclusion of this evidence can only be explained by his failure to appreciate the difference between good science and junk science.

Strangely, the trial judge considered the defense experts’ testimony legally inadequate because the experts were unable to testify to a medical certainty or even to a reasonable degree of medical probability that SV-40 Virus caused Mr. Kucinski’s mesothelioma.  Apparently, the trial judge from New York State was of the view that an expert’s opinion regarding the cause of a disease should only be admissible if the expert is able to render his opinion to a reasonable degree of medical probability.   What a novel idea.

The trial judge reasoned that the Frye Rule precluded admission of the proposed testimony that SV-40 Virus was a possible alternative cause of Mr. Kucinski’s mesothelioma.  After reviewing the proposed testimony and the scientific literature, the trial judge found that “there is no general acceptance in the scientific community for the conclusion that SV-40 virus causes human mesothelioma.  There is simply no proof that the association between SV-40 and mesothelioma, as found in some studies, proves a cause and effect link between the two.”

Apparently, the trial judge failed to appreciate that the SV-40 theory was good science, because it wasn’t being offered by a personal injury lawyer to shakedown a deep pocket business, but was rather being offered by a defense attorney defending an asbestos manufacturer against the predation of a venal plaintiffs’ attorney who absurdly claimed that the defendant’s asbestos caused Mr. Kucinski’s mesothelioma and death.  Some judges just don’t understand the difference between good science and junk science.

The next case I would like to discuss is a case out of Virginia litigated by Dean Hartley, a friend of mine.  The name of the case is Lavendar v. Bayer Corp. No. 93-C-226K. (W. Va. Cir. Marshall County, VA).  In this case John Lavendar developed Acute Myelogenous Leukemia (“AML”), from which he died.  In a wrongful death action, Mr. Lavendar’s wife claimed that his AML was caused by his occupational exposure to benzene.  Benzene is, of course, a Group I carcinogen and is generally recognized as being a cause of certain types of leukemia.  Most benzene-leukemia cases are defended on the basis that there are several different types of leukemia, but epidemiologic studies only establish that benzene causes one particular type of leukemia.  The problem facing the defendants in the Lavendar case was that Mr. Lavendar had AML, which is the one type of leukemia that all experts agree has been associated with benzene exposure in multiple epidemiologic studies. Since Mr. Lavendar had been chronically exposed to benzene in his work and developed the very type of leukemia that is clearly caused by benzene, the defendants in the case needed another defense.

The defendants designated two experts to testify that benzene causes only two major structural chromosomal abnormalities and that because Mr. Lavendar didn’t have either of the two chromosomal marker injuries, his AML couldn’t have been caused by benzene.  These defense experts were not slouches.  One of them, Harvey Golomb, is the Chief of Hematology at the University of Chicago, and the other, Richard Irons, is a toxicologist at the University of Colorado who has studied and published regarding the hematotoxic toxic effects of chemicals for many years.  Both of these experts testified under oath that the only major structural chromosomal abnormalities induced by benzene are loss of the long arm or the whole of Chromosomes 5 and 7.

Wow!  That’s conclusive evidence by two of the country’s leading researchers in the field of hematology.  It just had to be true.  That should have ended poor Mrs. Lavendar’s case.  But my friend, Dean Hartley, didn’t realize that only plaintiffs’ attorneys use junk science and that only defense attorneys can exclude junk science by making a Daubert motion.  So Dean filed a Daubert motion.  He submitted affidavits from an epidemiologist who had studied chromosomal abnormalities in benzene-exposed workers and a toxicologist who had formerly worked for a major oil company.  These experts explained that neither Dr. Golomb nor Dr. Irons had ever published an article to prove their hypothesis that the only major structural chromosomal abnormalities caused by exposure to benzene are damage to Chromosomes 5 and 7.  The hypothesis and its proof had never been subjected to the sunlight of peer review. No epidemiologic study had been conducted to prove the hypothesis. Lastly, while deletion of part or the whole of Chromosomes 5 and 7 had certainly been observed in benzene-exposed workers, they were not the only chromosomal abnormalities that had been observed.  Both of the Plaintiffs’ experts opined that the hypothesis was unproven and did not appear to even be supported by the existing data.  The defense experts defended their opinion on the basis that  it was consistent with many epidemiologic studies of cancer patients who were given chemotherapy drugs who later developed AML with evident damage to Chromosomes 5 and 7.

Apparently, the trial judge didn’t know that it is only plaintiffs’ attorneys who use junk science and that only defense attorneys can bring Daubert motions to exclude junk science.  The trial judge determined that the opinion of the defense experts that the only major structural chromosomal abnormalities caused by benzene are injuries to Chromosomes 5 and 7 was a mere unproven hypothesis that hadn’t been published by the defense experts or anyone else and that the defense experts’ reliance on chemotherapy-induced chromosomal abnormalities was an insufficient basis upon which to base their conclusion.  The judge wrote:

Dr. Golomb’s extrapolation is beyond the current available scientific knowledge in this field; the best that can be said of the data on chromosome aberrations and benzene is that it is inconclusive. . . . Dr. Golomb’s attempt to analogize or extrapolate data from the chemotherapy-induced leukemia arena to opine, definitively, on the merits of Mr. Lavender’s benzene-induced leukemia is not based upon any validated scientific methodology and is, therefore, not scientific knowledge.

The judge added that Dr. Golomb’s theory is contrary to the published literature and contains a significant “analytical gap” in assuming a relationship between chemotherapy-induced chromosomal abnormalities and those caused by benzene exposure.  Lastly, the judge added, “Like Dr. Golomb, Dr. Irons’ assertion is nothing more than an untested, unsupported hypothesis cloaked in the aura of scientific knowledge.”  So the trial judge granted the Plaintiffs’ Daubert motion and excluded the testimony of the defense experts.

There is a sequel to this case that I would like to share with you.  A few months after I learned of the Lavendar decision, I received a cytogenetics report for one of my leukemia clients who had been occupationally exposed to benzene.  The report documented the loss of the long arm of his chromosome 7.  I shouted for joy. This was the Holy Grail in benzene-AML cases.  I knew that the attorney defending the case used both Dr. Golomb and Dr. Irons as experts in the cases he defended.  Surely he would appreciate the significance of the chromosome report and recommend a substantial settlement to his client and their insurers.  I called him up and told him that my client had the loss of the long arm of Chromosome 7 and that according to his own experts, that was conclusive of the issue of medical causation.  Unfazed, he casually replied: “Oh, that Chromosome 5 and 7 business is just so much junk science.”

Raphael Metzger is the principal of the MetzgerLaw Group, a Professional Law Corporation.  His practice is concentrated on occupational cancer, lung disease and organ failure cases.  The firm’s offices are located in Long Beach, California.

This article was presented at the 8th Annual Meeting of the Toxic Torts and Environmental law Committee of the American Bar Association, which was held at the Sheraton Torrey Pines in La Jolla, California, March 11-13, 1999.