Cancer, Chemicals and History

[Guest guest]

http://www.thenation.com/doc.mhtml?i=20050207 & s=wiener

 

Cancer, Chemicals and History

 

by JON WIENER

 

[from the February 7, 2005 issue]

 

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.