David Michaels is a scientist and former government regulator. During the Clinton Administration, he served as Assistant Secretary of Energy for Environment, Safety and Health, responsible for protecting the health and safety of the workers, neighboring communities, and the environment surrounding the nation’s nuclear weapons factories. He currently directs the Project on Scientific Knowledge and Public Policy at The George Washington University School of Public Health and Health Services. His most recent book, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health explains how many of the scientists who spun science for tobacco have become practitioners in the lucrative world of product defense. Whatever the story- global warming, toxic chemicals, sugar and obesity, secondhand smoke- these scientists generate studies designed to make dangerous exposures appear harmless. Earlier today we excerpted from the introduction to the book, the excerpt below is from Michaels recommendations to reform the courts’ role in our public health system.
Courts are a repository of large amounts of information that is potentially important in public health protection. Every chapter of this book contains material that was uncovered during the discovery process in a legal proceeding: documents that prove industry campaigns to manufacture uncertainty; others that prove corporate knowledge of significant health hazards years, if not decades, before they were acknowledged; and vital scientific studies that should have been in the literature but were hidden by their corporate sponsors. It is almost always in the public’s interest to place these documents in the public domain, but defendants, who want to avoid bad publicity and the encouragement of additional lawsuits, are often willing to offer the plaintiff a more generous settlement in return for secrecy. Seduced by the larger settlements, plaintiffs and their attorneys have little incentive to oppose the practice, and judges benefit by clearing their dockets of complex, time-consuming litigation. So the deal is done, and the documents are sealed from public view, sequestered forever. The loser is society. Secrecy diminishes our ability to both identify public health and safety hazards and prevent further harm.
Protective orders and secrecy agreements have hidden critical evidence of hazards associated with dozens of materials, products, and processes: automobiles, medicines, child car seats, BB guns, toys, cigarette lighters, 
school lunch tables, water slides, and many more. No price is paid by the parties involved to the contrary, it is a win-win deal for them—while the public and regulators are left in the dark. Secrecy agreements are a nefarious practice, and the courts have the means of limiting if not eradicating them. Some do so. The judges of the U.S. District Court for the District of South Carolina have issued rules ‘‘disfavoring court-ordered secrecy in cases affecting public safety,’’ but they appear to be in the minority on the federal bench. Judges in toxic tort cases may consider this issue in approving secrecy agreements, but such consideration does not carry the day often enough.
How could the courts put some teeth into rules to discourage the sealing of important documents? Dan Givelber, former dean of the Northeastern University School of Law, and Tony Robbins, former head of NIOSH, the U.S. National Vaccine Program, and two state health departments, have coauthored an intriguing proposal. They suggest that, if harm has been caused by a hazard that was the subject of previously sealed documents, a jury could use that earlier secrecy agreement as good cause for assessing punitive damages in this later case. With such a rule in place, secrecy agreements would not be a risk-free default position; for hiding the truth, the corporation could pay a steep price the next time around.
Ending this practice will come down to the judges and the rules established for them. It is their responsibility to protect the public. They should do so.
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David Michaels is a scientist and former government regulator. During the Clinton Administration, he served as Assistant Secretary of Energy for Environment, Safety and Health, responsible for protecting the health and safety of the workers, neighboring communities, and the environment surrounding the nation’s nuclear weapons factories. He currently directs the Project on Scientific Knowledge and Public Policy at The George Washington University School of Public Health and Health Services. His most recent book, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health explains how many of the scientists who spun science for tobacco have become practitioners in the lucrative world of product defense. Whatever the story- global warming, toxic chemicals, sugar and obesity, secondhand smoke- these scientists generate studies designed to make dangerous exposures appear harmless. The excerpt below is taken from the introduction to Doubt Is Their Product.
Since 1986 every bottle of aspirin sold in the United States has included a label advising parents that consumption by children with viral illnesses greatly increases their risk of developing Reye’s syndrome, a serious illness that often involves sudden damage to the brain or liver. Before that mandatory warning was required by the Food and Drug Administration (FDA), the toll from this disease was substantial: In one year—1980—555 cases were reported, and many others quite likely occurred but went unreported because the syndrome is easily misdiagnosed. One in three diagnosed children died.
Today, less than a handful of Reye’s syndrome cases are reported each year—a public health triumph, surely, but a bittersweet one because a untold number of children died or were disabled while the aspirin manufacturers delayed the FDA’s regulation by arguing that the science establishing the aspirin link was incomplete, uncertain, and unclear. The industry raised seventeen specific ‘‘flaws’’ in the studies and insisted that more reliable ones were needed. The medical community knew of the danger, thanks to an alert issued by the Centers for Disease Control (CDC), but parents were kept in the dark. Despite a federal advisory committee’s concurrence with the CDC’s conclusions about the link with aspirin, the industry even issued a public service announcement claiming ‘‘We do know that no medication has been proven to cause Reyes’’ (emphasis in the original). This campaign and the dilatory procedures of the White House’s Office of Management and Budget delayed a public education program for two years and mandatory labels for two more. Only litigation by Public Citizen’s Health Research Group forced the recalcitrant Reagan Administration to act. Thousands of lives have now been saved—but only after hundreds had been lost.
Of course, the aspirin manufacturers did not invent the strategy of preventing or postponing the regulation of hazardous products by questioning the science that reveals the hazards in the first place. I call this strategy ‘‘manufacturing uncertainty’’; individual companies—and entire industries—have been practicing it for decades. Without a doubt, Big Tobacco has manufactured more uncertainty over a longer period and more effectively than any other industry. The title of this book comes from a phrase unwisely committed to paper by a cigarette executive: ‘‘Doubt is our product since it is the best means of competing with the ‘body of fact’ that exists in the minds of the general public. It is also the means of establishing a controversy’’ (emphasis added).
There you have it: the proverbial smoking gun. Big Tobacco, left now without a stitch of credibility or public esteem, has finally abandoned its strategy, but it showed the way. The practices it perfected are alive and well and ubiquitous today. We see this growing trend that disingenuously demands proof over precaution in the realm of public health. In field after field, year after year, conclusions that might support regulation are always disputed. Animal data are deemed not relevant, human data not representative, and exposure data not reliable. Whatever the story—global warming, sugar and obesity, secondhand smoke—scientists in what I call the ‘‘product defense industry’’ prepare for the release of unfavorable studies even before the studies are published. Public relations experts feed these for-hire scientists contrarian sound bites that play well with reporters, who are mired in the trap of believing there must be two sides to every story. Maybe there are two sides—and maybe one has been bought and paid for.
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As it happens, I have had the opportunity to witness what is going on at close range. In the Clinton administration, I served as Assistant Secretary for Environment, Safety, and Health in the Department of Energy (DOE), the chief safety officer for the nation’s nuclear weapons facilities. I ran the process through which we issued a strong new rule to prevent chronic beryllium disease, a debilitating and sometimes fatal lung disease prevalent among nuclear weapons workers. The industry’s hired guns acknowledged that the current exposure standard for beryllium is not protective for employees. Nevertheless, they claimed, it should not be lowered by any amount until we know with certainty what the exact final number should be.
As a worker, how would you like to be on the receiving end of this logic?
Christie Todd Whitman, the first head of the Environmental Protection Agency under the second President Bush, once said, ‘‘The absence of certainty is not an excuse to do nothing.’’ But it is. Quite simply, the regulatory agencies in Washington, D.C., are intimidated and outgunned— and quiescent. While it is true that industry’s uncertainty campaigns exert their influence regardless of the party in power in the nation’s capital, I believe it is fair to say that, in the administration of President George W. Bush, corporate interests successfully infiltrated the federal government from top to bottom and shaped government science policies to their desires as never before. In October 2002 I was the first author of an editorial in Science that alerted the scientific community to the replacement of national experts in pediatric lead poisoning with lead industry consultants on the Pertinent advisory committee. Other such attempts to stack advisory panels with individuals chosen for their commitment to a cause—rather than for their expertise—abound.
Industry has learned that debating the science is much easier and more effective than debating the policy. Take global warming, for example. The vast majority of climate scientists believe there is adequate evidence of global warming to justify immediate intervention to reduce the human contribution. They understand that waiting for absolute certainty is far riskier—and potentially far more expensive—than acting responsibly now to control the causes of climate change. Opponents of action, led by the fossil fuels industry, delayed this policy debate by challenging the science with a classic uncertainty campaign. I need cite only a cynical memo that Republican political consultant Frank Luntz delivered to his clients in early 2003. In ‘‘Winning the Global Warming Debate,’’ Luntz wrote the following: ‘‘Voters believe that there is no consensus about global warming within the scientific community. Should the public come to believe that the scientific issues are settled, their views about global warming will change accordingly. Therefore, you need to continue to make the lack of scientific certainty a primary issue in the debate. . . . The scientific debate is closing [against us] but not yet closed. There is still a window of opportunity to challenge the science’’ (emphasis in original).
Sound familiar? In reality, there is a great deal of consensus among climate scientists about climate change, but Luntz understood that his clients can oppose (and delay) regulation without being branded as antienvironmental by simply manufacturing uncertainty.
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