[Update, May 31, 2013: The Pennsylvania Superior Court, reviewing the case on appeal, ordered the trial court to further explain the basis for entering nonsuit against the plaintiffs. It’s not a victory, exactly, but it’s a step in the right direction, and perhaps a prelude to reversal (or the trial judge reconsidering his opinion).]


Everyone remembers the “just one word” of advice in The Graduate: “plastics.”
Most everyone has also heard the term “junk science,” coined as a smear against plaintiff’s experts in environmental contamination cases. The purpose the “junk science” campaign was obvious: huge corporations were finally being made responsible for the massive damage they caused, and so they and their insurers needed an aggressive propaganda campaign aimed at academia and scientific research, at lobbying legislators, and at influencing potential jurors. (In case you were wondering about the real dangerous of hazardous chemical exposures, consider that just last week the American Academy of Pediatrics released a new report arguing that the Toxic Substances Control Act is nowhere nearly strong enough.)If you throw enough mud up against the wall, some of it will stick, which is why, for example, the link between cigarette smoking and cancer was successfully denied for decades after it was scientifically proven. All studies which shows that a big corporation is responsible for giving people cancer is “junk” and a “fraud,” while all “research” paid-for by those corporations, no matter how flimsy, is upheld as gospel. The tradition continues today, with a court holding last week that vinyl chloride cannot be proven to have caused brain cancer. We’ll come back to that in a moment.


Billions of dollars have been spent on plastics since The Graduate, but they have their downside, particularly in the toxins used and produced in their manufacturing. The bulk of plastics are made with vinyl chloride somewhere in the process, particularly monomer vinyl chloride, which is used to made polymers like polyvinyl chloride, which consumers better know as “PVC,” like PVC pipe.


Problem is, vinyl chloride monomer has been known for over eighty years to be a carcinogen. The first study on it in 1930 (literally performed on guniea pigs), showed that even a single dose could cause liver damage. Since the 1970s a growing body of scientific literature have specifically shown a link to cancers and tumors, particularly angiosarcoma of the liver.


Every Material Safety Data Sheet (MSDS) lists it as a carcinogen. The International Agency for Research on Cancer, National Toxicology Program, and the Occupational Safety and Health Administration (OSHA) all list vinyl chloride as a carcinogen. The Centers for Disease Control and Prevention puts vinyl chloride at #4 on its priority list of hazardous substances, just below mercury and just above polychlorinated biphenyls.


In short: it’s bad. It messes with animal DNA and cells, including those of humans. That means cancer.


But big chemical companies like Dow and Rohm & Haas don’t admit anything other than the eighty-year-old link to liver cancer. It shouldn’t be much of a stretch to say that a known carcinogen which causes liver cancer could cause other cancers, but they’ll have none of it. Leukemia? Lymphoma? Lung Cancer? Bone cancer? Brain cancer? No way, they say. Not our problem. Maybe in another fifty years they’ll admit it.


First rule of insurance defense: deny, deny, deny.


That’s the position they took in Branham v. Rohm & Haas, and it paid off:


The first case brought by Illinois residents alleging that brain tumors were caused by exposure to a toxic chemical has been thrown out of court after a Philadelphia judge found that the plaintiff’s experts did not establish causation. …

In a 49-page opinion that quoted reams of testimony by the plaintiffs’ experts, [the Philadelphia Common Pleas Court Judge] said that the plaintiffs have not produced — nor could they produce — evidence that is “legally competent” to establish causation and thus liability against Dow-owned Rohm & Haas. …


Proof in these “cancer cluster” toxic tort cases is generally done through a two-prong approach. On the one prong, a pathologist identifies the specific type of case suffered by the plaintiffs of their decedents, and on the second prong an epidemiologist compares the rates of those types of cancer in the “cancer cluster” area versus the rate across that state or across the United States.


From there it’s math, e.g., the odds of these neighbors all having the same rare brain cancer by chance are under 1-in-a-million. Thus, we can argue — and let the jury decide if we’re correct — that they had all the same cause. In this case, that purported “cause” was the nearby plastics manufacturing plant’s groundwater contamination and air exposure.


Out around McCullom Lake, “statistics taken from the first 23 plaintiffs indicated that nineteen had or have brain or nerve cancer, nine had or have glioblastoma multiforme, five had or have oligodendroglioma, two had or have meningioma, and one each had or has schwannoma and hemangioblastoma. Additionally, three had or have pituitary gland tumors, and one had or has cryptogenic cirrhosis.” Pretty unlikely for a village of 1,000 people.


But there was a problem at trial:


As Neugebauer was reviewing his notes and attempting to answer questions, the court directed Neugebauer to revisit his 2008 report because he testified that one of four observed cases of brain cancer that he relied upon for his analysis should not have been included, which led Neugebauer to revise his calculations for the 2008 study.


Oops. So he fixed the problem overnight, but came to the same conclusion: three of these rare brain cancers in the same area, in the same time frame, still indicated “there is strong epidemiological evidence that rates of brain cancer are elevated in the area of McCullom Lake.” The same was the conclusion in a separate 2010 analysis.


The Judge struck the testimony entirely, stating “it is as close as I have come sitting on the bench for 20-plus years to having a report that may be tantamount to fraud on the court.” Rohm & Haas’ defense lawyers piled on, arguing “plaintiff’s counsel invented the brain cancer cluster claim for the courtroom” and that Neugebauer’s analysis of the alleged brain cancer cluster was an “elaborate ruse that rested on deception, manipulation of data, and patently false assumptions.”


Strong words. The irony here, of course, is that the “fraudulent” link between vinyl chloride and brain cancer has already been demonstrated in the scientific literature, like in this metastudy, which noted “sound evidence for a causal association between VC-PVC exposure and liver cancer, as well as tumors of the brain, lung and hemolymphopoietic system,” before concluding “Our reanalysis has revealed a significantly elevated risk for all causes of death among exposed blue collar workers compared to unexposed technicians and clerks.” In other words, everyone who was exposed to vinyl chloride had higher rates of everything — liver cancer, leukemia, lymphoma, lung cancer, and brain cancer.


Work-related injury lawyers have known of these risks for a while, and they’re not a surprise to anyone familiar with the Sass / Castleman / Wallinga study, which found systematic downplaying of the risks of vinyl chloride:


When the U.S. Environmental Protection Agency (EPA) finalized its 2000 update of the toxicological effects of vinyl chloride (VC), it was concerned with two issues: the classification of VC as a carcinogen and the numerical estimate of its potency. In this commentary we describe how the U.S. EPA review of VC toxicology, which was drafted with substantial input from the chemical industry, weakened safeguards on both points. First, the assessment downplays risks from all cancer sites other than the liver. Second, the estimate of cancer potency was reduced 10-fold from values previously used for environmental decision making, a finding that reduces the cost and extent of pollution reduction and cleanup measures. We suggest that this assessment reflects discredited scientific practices and recommend that the U.S. EPA reverse its trend toward ever-increasing collaborations with the regulated industries when generating scientific reviews and risk assessments.


As they wrote,


Downplaying risk to nonliver cancer sites leaves the public and exposed workers inadequately informed of the health threat posed by exposure to VC-containing products, processes, and pollution. Medical professionals are less likely to suspect a link to VC exposures in patients with nonliver cancers, and thus causal links are more likely to be overlooked. Downplaying of nonliver cancer risks by the U.S. EPA may also have important implications in litigation of compensation cases, because claims for cancers at sites other than the liver are vigorously disputed in the courts.


So it goes here. Deny, Deny, Deny. Eventually they’ll find a judge or jury willing to listen that an expert is a “fraud” for suggesting, as research has repeatedly confirmed, that vinyl chloride causes brain cancer.


Maybe the case can be salvaged on appeal. It seems harsh to me to grant a mistrial over a numerical error in one of many expert reports; typically, such a problem turns into a great cross examination, not a compulsory nonsuit, but that’s up to the appellate court now.


One other point: part of those corporate and insurance propaganda efforts has included calling Philadelphia a “judicial hellhole,” but here we have another instance, in Philadelphia, where a plaintiff came to court with the facts, the law, and the scientific evidence on their side, but left empty-handed, before a jury could even decide the case. Now their lawyer is facing sanctions for making an argument of unquestionable scientific validity.