How Lawyers Defend Asbestos Companies

It is our mission as lung cancer and mesothelioma lawyers to make sure our clients understand the legal process. Asbestos litigation is complex, but we take great pride in how comfortable our clients are asking questions about any topic related to their case. In this post, we want to shed light on an issue that is rarely discussed but is extremely important in understanding lung cancer, mesothelioma, and asbestos exposure lawsuits: the scientists who defend asbestos in court.

This post was inspired by an investigative series by VICE News and the Center for Public Integrity. “Science for Sale” addresses the enormous and ever-increasing influence corporations have on scientific and medical research. The first part of this series describes a corporate defense lawyer who invented a scientific theory to help his clients escape asbestos liability. All he needed was a scientist to publish the theory to give it validity in court.

This defense lawyer worked for Tucker Ellis & West (“Tucker Ellis”), a firm that defends asbestos manufacturers and other companies responsible for asbestos exposure. In 2008, Tucker Ellis was up against a wall: asbestos is the only known, proven cause of mesothelioma. This made defending asbestos companies against mesothelioma claims difficult, as nothing else could be blamed for the victim’s aggressive, fatal, debilitating cancer.

The lawyer, Even Nelson, had an idea. Tobacco is highly associated with lung cancer; since three-fourths of mesotheliomas begin in the lining of the lungs, tobacco seemed like an easy scapegoat. Nelson imagined a theory linking cigarettes to mesothelioma. He just needed a scientist to work with him. He emailed an accomplished doctorate of physics and expert in inhalation toxicology, Peter Valberg.

Mesothelioma is extremely rare; about 3,000 Americans are diagnosed each year. It begins in the lining of internal organs, called the mesothelium, not the lungs themselves. Decades of extensive, comprehensive, international data shows that smoking by itself does not cause or even increase the risk of mesothelioma. At least 80% of mesothelioma patients have known documented asbestos exposure, most often through their occupation. Further, there is no safe level of asbestos exposure. Even the most minor exposures have led to mesothelioma development.

Science Takes the Bait

Peter Valberg agreed to help Nelson publish his theory. He agreed to write one of three articles and submit them for review in medical journals, at a 10% discounted price, no less. Valberg also agreed to be an expert witness in Tucker Ellis’ defense against mesothelioma lawsuits.

Academics like Valberg need money to conduct their research; ideally, that money would come from non-partisan third parties, like the government, that holds no stake in the outcome. The National Institutes of Health funds research through grants, but its budget has been steadily decreasing while the cost of medical technology increases. This leaves researchers at a loss.

Big Business sees this as an opportunity. Corporations like Pfizer and Coca-Cola invest heavily in scientific research, but only research that favors their products, no matter how fuzzy or simply false it turns out to be. Asbestos companies, Big Tobacco, name almost any corporate interest, it does the same. Tucker Ellis, acting in the interest of its asbestos clients and thus itself, funded Valberg.

Valberg is a principle at Gradient, which is a scientific consulting firm known for assisting corporations that use substances like lead, arsenic and asbestos. Gradient scientists assert these substances are harmless at “small levels,” despite overwhelming evidence to the contrary.

Scientific consulting firms like Gradient are truly “the epitome of rented white coats,” according to a Simon Fraser University professor who conducts lead research.

The Problem with Peer-Reviewed Journals

Medical and scientific journals like the New England Journal of Medicine operate in this way: researchers submit their studies to an independent panel of experts in the specific field. These “peers” review the work, (ideally) carefully combing through to catch any scientific inaccuracies, bias, faults, irrelevant findings, or unreliable information. They comment and then recommend for or against publication.

This is the gold standard of science; it is the last hurdle to proving theories and findings, and the only way researchers get funding, publication, and prestige. The industry claims this peer-review process weeds out problematic research, improves the quality of accepted papers, and ensures research is trustworthy. The problem is no one knows how well this process works, or if it works at all.

Journal editors and publishers, in fact, have publically stated that peer review is not designed and cannot catch many serious problems. Like ethics issues. And fraud. Peer reviewers do not even check all data and calculations for accuracy. It is an easily abused practice prone to bias and deception. Which is how we get to Valberg and Nelson’s study.

Mesothelioma and Tobacco Smoke

Nelson hired Gradient and Valberg to conduct research on his theory: that radiation from tobacco smoke could cause mesothelioma. Gradient does not perform any human or animal studies, however. It merely researches studies on a certain topic, criticizing the work of others. This technique is similar to the way Big Tobacco tries to discredit scientists and medical researchers in its own litigation tactics.

Gradient aims to discredit genuine research with funding from its clients, companies like the American Petroleum Institute and the American Chemistry Council. It routinely attends government hearings on whether to classify a chemical as toxic, purposefully stalling regulatory action for its corporate clients. Unfortunately, this technique has been quite successful. Over the last three decades, the EPA has been able to analyze and classify only 570 chemicals. There are more than 80,000 chemicals available for commercial use.

This is a large part of the reason the European Union, Canada, and nearly every other industrialized country is so much better about protecting their citizens from toxic chemicals. The assessments that scientific consulting firms like Gradient are paid so well to delay are necessary before any regulation can be passed. Chemicals like arsenic and formaldehyde are still under review. In 2015, the EPA was unable to complete a single review.

This is how and why asbestos is still imported into the U.S. and used in hundreds of products today. More than 50 countries – including the entire European Union and nearly all industrialized nations – have banned asbestos completely. When asbestos was officially classified as a cancer-causing substance in the 1960s, the United States moved to ban it completely. We succeeded in this in 1989, when the EPA issued a regulation that would end all importation, processing, manufacturing and distribution of asbestos-containing products.

The asbestos industry poured hundreds of millions of dollars into fighting this regulation. Two years later, in 1991, their lawsuit against the EPA succeeded, and the asbestos ban was overturned (Corrosion Proof Fittings v. Environmental Protection Agency). Thus, hundreds of uses of asbestos are legal today.

Gradient Fighting Mesothelioma Patients

For 14 years, Pam Collins worked at the G.E. lightbulb plant in Bellevue, Ohio, wearing gloves made of asbestos every day. At the age of 63, she was diagnosed with mesothelioma. She had her right lung removed and her son and mother moved in with her. Weighing 98 pounds, she needed help just to stand in the shower, and ultimately went into a nursing home.

Collins filed a lawsuit against the company that made the asbestos gloves. In its defense, Valberg testified that Collins’ use of asbestos gloves “did not cause or contribute to her developing pleural mesothelioma,” and in fact, her exposure to tobacco smoke was the culprit. The asbestos gloves company had hired Tucker Ellis as its defense lawyers.

This was the first time anyone ever linked smoking to mesothelioma. It was 2009, and Valberg had just published the first report Tucker Ellis paid him to write. Collins’ lawyer deposed Valberg under oath, asking why he wrote the report and why Tucker Ellis paid him to do so.

A few days later, another mesothelioma victim filed a lawsuit against asbestos companies. The defense hired Tucker Ellis, which had another doctor testify that radiation, not asbestos, caused his mesothelioma. That doctor cited Valberg’s report. Aware of their relationship, the victim’s lawyer subpoenaed all records between Valberg and Tucker Ellis. There were 498 pages of emails between them.

Asbestos Victims Pay the Price

When an entire industry depends on one particular substance, the legality of that substance is critical to its survival. There is a global asbestos industry that employs millions of people and affects many other markets. The industry and medical and scientific experts have known about the danger of asbestos since the early 1900s; the first asbestos lawsuits were filed against Johns-Manville in 1932. When it became clear asbestos irrefutably caused cancer, the industry began suppressing this information, which is continues to do to this day.

The asbestos industry has formed research programs, paid scientific consulting firms, and hired doctors and researchers to further suppress and discredit what has already been proven. The industry depends on it, so it pours an incredible amount of money into this. Not for the advancement of medicine or knowledge, only to bolster their case in court, to defeat private citizens exposed to asbestos on-the-job, decades after the industry knew of its fatal danger.

The medical problems of mesothelioma, asbestosis, and lung cancer, are not centered, then, on public safety or on the advancement of human understanding. They are centered on the liability of the asbestos industry.

Our mesothelioma lawyers have been fighting against the asbestos industry on behalf of cancer victims for 30 years. We have intimate knowledge of the nature of asbestos-related illnesses, exposures, and legal tactics of defense teams. If you would like more information on mesothelioma, lung cancer, or asbestos, contact our firm. We represent clients nationwide, and work on a contingency fee basis, so our clients never pay anything out-of-pocket.

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