TOXICS
INFORMATION PROJECT (TIP)
P.O. Box
40572, Providence, RI 02940
Tel.
401-351-9193, E-Mail: TIP@toxicsinfo.org
Website: www.toxicsinfo.org
(Lighting
the Way to Less Toxic Living)
“CANCER,
CHEMICALS & HISTORY”
by
JON WIENER February 7, 2005
The Nation
http://www.thenation.com/doc.mhtml?i=20050207&s=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.