Sound Science

 

 

Science and the Law
SOUND SCIENCE IN THE COURT ROOM

    Page last updated July 20th 2013        NAVIGATION BAR FOR THIS PAGE

Introduction

Reactor Accidents

Breast Implants

Molds

Storks

 

 Asbestos

Scientific Disagreements

Radionuclides in Water

Radiation at Low Doses

Electromagnetic Fields

Cancer Clusters

E MAIL

Depleted Uranium

Links

Risks


Richard Wilson's HOME PAGE

The home page has links to may other webpages on this site (blog) including links on

arsenic

human rights

ABMs

risks of human extinction.

Introduction

    This is a "working page."  It is constantly "under construction" and also constantly under destruction. It started on March 9th 2002 and received international attention within a few days. On this page we hope to have information about various issues where "junk science" has been used and must be replaced by sound science whenever possible. Please suggest additions and subtractions.

    The Atlantic Legal Foundation is dedicated to helping ensure that whenever science is used in a courtroom that it shall be sound science. On behalf of the Atlantic Legal Foundation the web master of this page requests any and all information, in ANY format but preferably electronic for ease of use, that can help us. This information can be links to other sites, references to scientific (even unscientific) data, published papers, whether peer reviewed or not, articles, comments and court cases. An example of the type of information we hope to provide can be seen on the arsenic web site at arsenic.ws.

    Even before lawsuits became so popular, the Nobel Prize-winning chemist Irving Langmuir suggested criteria to identify what he called pathological, or fraudulent, science (now called junk science).  Society should ignore claims of hazard when:
1. The maximum effect is observed by a process of barely detectable intensity, and the effect is largely independent of the
intensity of the apparent causal agent.
2. The effect remains close to the limit of detectability.
3. Claims of great measurement accuracy, or of profoundness, persist in the face of mounting evidence to the contrary.
4. Theories are put forward that fail the test of being the simplest explanation for the available information.
5. Criticisms are met by ad hoc explanations: the proponents "always have an answer -- always."

     Another more succinct criterion is: "The skeptics attack the facts, or the science, but the junk scientists resort to ad hominem attacks on the skeptics."

     The following non inclusive list of situations where society must be wary of junk science has been prepared by the Science Advisory Council of the Atlantic Legal Foundation. Please suggest additions.

    If you have a legal case involving one of these issues that could benefit from the help of the Atlantic Legal Foundation please contact the general counsel.  The Atlantic Legal Foundation has represented many distinguished amici in cases before the courts.  The most important were probably the trilogy of briefs, Daubert, Joiner, and Kumho Tire, presented to the US Supreme Court in cases establishing the role of scientific experts  and the admissibility of proffered testimony.

    In Daubert, a lady took the drug Bendectin during pregnancy and blamed her child's birth defects on the drug. In the resultant law suit, an expert proffered an unpublished "reanalysis" of previously published human statistical studies (a "meta analysis") and purported to show that it was "more likely than not" that the Bendectin caused the problems. In remanding the case the Supreme Court mentioned (on pages 593 and 594) several non-exclusive criteria by which such proffered testimony may be judged. None of the items in the list are absolutely necessary; nor is any individual item conclusive:
1. Has the theory been tested or can it be tested? In other words, is it falsifiable?
2. Has the theory been peer reviewed and published?
3. What is the known or potential risk of error?
4. Has the theory been generally accepted in the relevant scientific community?
5. Is the theory based on facts or data of a type reasonably relied upon by experts in the field?
6. Does the testimony have probative  value that is greater than, or not outweighed by, a danger of unfair prejudice, confusion of issues, or misleading the jury?

    Joiner was an engineer who had worked with transformer oil containing PCBs, and who alleged that the PCBs were the cause of his small cell lung cancer. The testimony of two supposed "expert" witnesses were rejected by the district court,  accepted by the appeal court, and finally rejected by the U.S. Supreme Court because it did not "rise above subjective belief or unsupported speculation." The Court held, inter alia, that the proffered testimony must be not only relevant but also reliable. In addition the Supreme Court emphasized that a lower court may "on its own motion or on the motion of any party" appoint an expert to serve on behalf of the court, and this expert may be selected as "agreed upon by the parties" or chosen by the court to aid in the gate keeping role. This is sometimes arranged in a preliminary panel. Such a procedure has become known as a "Daubert Hearing."

    In Kumho Tire, an automobile tire which everyone concerned agreed had a tread which was badly worn (nearly bald), exploded, and caused a crash in which a personas killed. An "expert" claimed that since he knew of no other obvious cause of the tire failure, the cause must be a manufacturing defect. His testimony was rejected by the circuit court and accepted by the court of appeals who argued that Daubert did not apply because "engineering is an art and not a science."  The U.S. Supreme Court rejected this suggestion, and argued further that the less scientific the evidence, the more the cautions that the Court had expressed in the Daubert judgment must apply.

    There are many discussions of these three important decisions.  Here I refer to a whole web site devoted to Daubert and its implications.    There is now a proposal to incorporate Daubert priciples into administrative law.      This is discussed in a whole issue of "Law and Contemporary problems."   ICTM also has a n interesting comparison of scientific and legal certainty.   However it is important to address the concerns of others who disagree.  Also the Office of Management and Budget proposes that all agencies should carry out a formal analysis of Regulatory proposals.  


    A recurring theme in many of the cases where the Atlantic Legal Foundation has submitted a brief, is that the existence of a statistical correlation between two variables does not, by itself, imply a causal connection.   This is well illustrated in an article by Dr H. Sies in Nature (volume 332 page 495; 1988) where he plots in the following figure the number of brooding storks in Germany (bottom line; open squares), and the number of new born babies (top line; closed squares), by year from 1965 to 1980. 
first figurefigure2
Then he shows in the next plot the excellent correlation between those two variables.  Any 4 year old will tell you at once that storks bring babies.  A more sophisticated 20 year old might calculate the correlation coefficient (which is well over 0.9) and note that the correlation is exceptionally good.  But he might also remind us that the data  also might suggest that babies bring storks.  If the x axis is changed to the concentration of some pollutant, and they axis to incidence of some ailment, some judges and juries might jump to a premature assignment of causality.  More mature scientists, such as those represented by the Atlantic Legal Foundation, would be more cautious.

    Another recurring theme is the importance of understanding the scientific procedures for assigning causation.  A group of amici successfully raised this issue in both Kennedy and in Navarro.  (Kennedy Opinion)  (Navarro opinion).  There is a great confusion in some quarters between "Differential Diagnosis" - the deciding between differnt diseases which might have similar symptoms, and assignment of Causation - the assignment of a probable cause for a disease once the diagnosis has been made.    If , for example, the diagnosis is Measles, the cause is obvious:    an infection.   If cancer, the cause may be far less obvious.   Indeed most cancers have no known cause.   A recent paper describes the distinction.

Incomplete Information and context

    Providing incomolete information is often as misleading as providing bad information..  Of course the ordinary legal procedures should cope with that.  For example in a recent conference a puzzled judged asked "If there is a cancer found in a worker in a workplace and then a second cancer is found, am I not entitled to let the jury know that?"  The simple answer is of course Yes, but it must be in context.  Much medical research starts with an speculation  by an observant physician.  This is not proof.  He then publishes the interesting observation in a journal, to see whether other physicians have seen similar occurrences.  If, for example 30 physicians note that they have, this is ground for caution, but is not proof and not, by itself a reason for assigning blame.      It should be a reason for conducting a proper epidemiological study.  Even if a subsequent case-control study shows an effect, many past situations show that there can still be excellent reasons to question the resuult until a full cohort study has been performed.   If an expert witness denies or waffles about this context of  the simple statement he is clealy misleading whoever he is talking to.  Hopefully not talking to a jury.  ICTM has an interesting electronic article on speculative vs fact based evidence .

Cancer Clusters
 

    Among the most important misconceptions that is common in the lay public is that many cancer clusters exist that are evidence of environmental pollution. These misconceptions occur in legal liability cases mentioned throughout this page.    A recent web page from the Center of Disease Control emphasizes the problem. Of course cancer clusters exist, as doclusters of every kind of disease. They are certain to occur, simply because of randomness. Even unlikely ones will occur, with the expected low frequency. The common misconception is the mis-identification of a "cluster" as being non-random, the attribution of a real cluster to environmental pollution, or, most commonly, both. In what follows, we mean "non-random cluster" when we use the term "cluster." There are clusters of infectious disease, and occupational clusters of non-infectious disease, but very few purely environmental clusters of non-infectious diseases, such as cancer caused by environmental agents (that is, something present in the environment, to which everyone is exposed). The problem has been discussed by the statistician Rothman at a meeting in 1990, published in the American Journal, of Epidemiology.   Raymond Neutra a physician in Department of Public Health, State of California, at the same meeting in 1990 and Gawande (from Harvard School of Public Health) discusses this in simpler language  in the New Yorker in February 1999.
   
     It has been said that the science of epidemiology started, when Dr. Snow marked cases of cholera upon a map and found that they clustered around a particular (water) pump. Since then looking for clusters is clearly in the public mind. Clusters of infectious diseases are often found-such as the cluster of legionnaire's disease at a hotel in Philadelphia, and another cluster of the same disease in 2000 at a zoological park in Sydney, Australia. But not of cancer. Indeed, if cancer clusters existed in the environment they would be evidence for the infectious nature of cancer. One of the main reasons that we know that cancer is not usually an infectious disease is that clusters in the environment are not found.

    To have a cancer cluster one needs to have a high exposure localized to the group containing the people who get the cancer. This can occur in occupational settings but is rare in the environment where exposures are more diffuse. The clusters that have been claimed to exist are usually due to chance or to some common lifestyle factor. In 1990, Neutra suggested 8 characteristics that might enable one to distinguish real clusters from false ones (Neutra, remembering Cervantes' Don Quixote, calls the procedure distinguishing giants from windmills). The more of these characteristics a cluster shows, the more likely it would be that a multicommunity investigation would be fruitful.

    1.    There are at least 5 cases and the relative risk is very high (e.g. 20 or more).
    2.    The disease is one, like mesothelioma, for which an (almost) unique and detectable class of agents has been responsible in the past, or for which the pathophysiological mechanism is well understood.
    3.    The agent is persistent in the environment and can be measured there (there are relatively few such agents).
    4.    The agent is persistent in, or leaves a physiological response in, the bodies of those who have been exposed, and (the response) is rare in the normal population, so that it can be used as an index of exposure.
    5.    There is heterogeneity of exposure within the neighborhood so that the effect of exposure can be assessed.
    6.    The plausible route of exposure is such that subjects would be able to assess their own relevant exposure on a questionnaire or it
could be reconstructed from records.
    7.    It would be feasible to carry out a multicommunity study consisting of several similarly exposed and some unexposed communities.
    8.    The cluster represents an as-yet-uninvestigated, endemic space-time cluster. This suggests a stable, persistent problem and perhaps a persistent agent to be found in the environment.


    There are various examples of cancer clusters, although few can be explained by exposure to environmental agents; the others have not been explained. Outcroppings of erionite in a Turkish village of Karain led to a cluster of mesotheliomas in the village. Baris et al. showed that the relative risk was over 1,000! The cluster had most of these characteristics. However, the erionite was used for many purposes, some domestic,  which led to considerable exposure. A semi-occupational cluster of leukemias appeared near Sellafield in N.W. England among children of workers at the local nuclear processing plant. Yet the (measured) exposures of the parents were too small to attribute causation.   But when Kinlen found a cluster of leukemias in Glenrothes new town with no nuclear facilities the strong suggestion was made that the cause was that these leukemias are infectious.

    In the above paragraphs the word "cluster" was used to describe a small group of people closely related by something-usually geography. This is distinct from a group of people with the same ailment in a larger region. In Taiwan, for example, Chen found in 1986 that those drinking from wells in a certain area developed skin cancer and various internal cancers.  . But the number of people "at risk" was large, perhaps 20,000, although the Risk Ratio was moderate in the first studies (about 3), the statistical accuracy was adequate and the attribution of the risk was generally accepted and subsequently confirmed.

 

Claims that Electromagnetic Fields of Low Intensity cause Cancer.

    There have been claims since the 1970s that low intensity magnetic fields cause leukemia or brain cancer. They have constantly been refuted by scientists and others have just as constantly brought up new information.

    In 1990 it was estimated that these claims had already cost the United States a billion dollars as utility companies buried underrated power lines, and fended off lawsuits. Many lawsuits were instituted. The Atlantic Legal Foundation, representing a number of distinguished amici in each case, filed briefs, of amicus curiae in several key cases. The most crucial was before the Supreme Court of California where a Mr Covalt had  sued San Diego Power and Light Company.   The case was dismissed in this court.  Mr Ford's case in a lower California Court was rejected on appeal.  No legal case claiming an effect has ever survived appeal.   ALF believes that was largely due to its activities.

    The issues at stake are large. The physics of electromagnetic fields is one of the best established and precise of scientific studies. Cells obey all the laws of physics and chemistry. No scientist has proposed an acceptable mechanism whereby electromagnetic fields of low intensity can have an appreciable effect on a biological system. By acceptable is meant of course that it has acquired scientific acceptance in the field. Even appliers of the "Precautionary Principle" must not ignore this. Secondly the epidemiological criteria (the Hill attributes) often used in discussing epidemiological principles in the court room are not satisfied.

    A detailed comment on a draft report  by NIEHS which was close to calling ELF a carcinogen was made by the master of this web page.  The final report was improved.  The Atlantic Legal Foundation also commented .

    See also: "Electromagnetic Fields and the Law", R. Wilson and M.S. Kaufman, in Science and the Law,  National Legal Center for Public Interest, Washington, DC.

    The issue has partially opened again (but so far without lawsuits) with a report from the state of California Evaluation of the Possible Risks from Electric and Magnetic Fields (EMFs) from Power Lines, Internal Wiring, Electrical Occupations and Appliances.

    We propose to assemble a list of references, cases and published papers.

    John Moulder maintains an up to date site concerning this issue

    DOE database on measurements in various places
    CDC databases
    NIOSH procedures manual for measuring electromagnetic fields
    The Canadian Health Ministry's report on electromagnetic fields
    A report from International Agency for Research on cancer : (IARC summary of volume 80)
    Proceedings of NIOSH/DOE Workshop on "EMF Exposure Assessment and Epidemiology: Hypotheses,Metrics, and Measurements".

Breast Implants

    Breast implants can obviously cause irritation at the place that they are located it was claimed that silicone breat implants caused a variety of other diseases including cancer.   The industry was slow to address this clain which went to the courts and bankrupted the principal manufaturer.   No valid scientific proof of causation was adduced and it is now widely believed that the claims were fals.  The most complete discussion of the issue of Breast Implants is the book "Science on Trial" by Dr Marcia Angell (excerpt, speech at the National Press Club).  The Atlantic Legal Foundation has only become involved in the last 2 years with a brief before the Supreme Court of Oregon in JENNINGS.  Although in this case the Supreme Court of Oregon did not follow the advice of the amici, the case was referred back to the earlier court and amici may find another opportunity to express their views.  

       It is interesting that a special committee has recommended  (in October 2003) to the FDA  that  silicone breats implants be allowed once more.

Molds

    EPA have an excellent site:    mold basics.    Molds have been known for centuries.  We are all exposed to molds of some sort.  Anyone who worked near the Pharmacology Laboratory in Oxford University, where penicillin was discovered, in the late 1940s would have a penicillin mold.  Sugar molds are usually benign.   Most people would agree that when there is dampness in a house or apartment that it it should be remedied as soon as possible, and any mold that is produced should be cleaned up.  Building codes exist to minimize the chance that dampness occurs.  For example, in England's damp climate, a "damp course" was often placed in the walls above the ground but below the ground floor, to prevent damp rising.  There was often a space above the foundation, and below the ground floor, open to the air.  These building codes were enacted on general principles of good health and management and not because there was any specific cause and effect relationship.  Clearly a violation of building codes is an offense.  But until recently there has been no claim and no specific study of the effect of dampness on health.  In rental housing, it is clearly the landlord's responsibility to ensure that the building is in conformity with codes, and most people would accept that a tenant can legitimately complain about dampness.     The floods in New Orleans as a result of hurricane Katrin, and floods in Massachussets in Ocober 2005, emphasize the problems of mold.  Experts recommend that the buildings concerned be dried out as soon as possible - preferably within 24 hours of the receding of the flood waters.   Anyone staying around one of the flooded buildings might well want to take allergy medicines

   Less clear is what should happen, and what the landlord's responsibility should be when there is a smell but no visible sign of dampness, yet dampness with concomitant mold spores may be present between the walls.  (Of course the smell could also be a dead rat or dead cat).  These are independent of the effects of mold.  The issues, in which the Atlantic Legal Foundation are interested, are the claims of disease and or general deterioration of health as a consequence of dampness or mold.  ALF emphasize that not only is it crucial to establish causality, but also to be clear that the disease is being objectively diagnosed and not merely reported.  ALF has represented  a group of distinguished amici in a brief submitted to the Massachusetts Superior Court in a workmen's compensation case (the case of Theresa Canavan).  This case involved "multiple chemical sensitivity" or MCS.  MCS is a widely reported disease.  An important paper, with more detail in a report to the  Agency for Toxic Substances and Disease Registry (ASTDR) (report number PB96-187646) shows that 6.3% of people in a California survey reported "environmental illness" or "multiple chemical sensitivity." (MCS)     This is a "self reporting" study and merely suggests that there is a problem to be addressed.  MCS remains a disease whose characteristics are not well defined.  Yet it  is often claimed to be caused by a set of circumstances that are not well defined.  In these circumstances proof of an effect is not possible.   This problem arises again in discussion of the effects of mold.
.        
            There seems to be little doubt that there are a number of allergens associated with dampness.  Molds can be among them.  About 1990 evidence was adduced that the mold Stachybotrys chartarum is  the source of the problems.  The evidence for this is weak, and has not get stronger.  This evidence is briefly discussed in a public statement of the American College of Occupational and Environmental Medicine (ACEOM) and in more detail in a review by Kuhn and Gahnnoum in Clinical Microbiological reviews. [Abstract] [HTML] [PDF] .    Recently a paper by Croft et al. (abstract) has appeared in the Journal of Environmental Biology purporting to show that mold indeed is causally related to disease.   It is a must read for any serious student.  So also is the critique of this paper by Dr Ronald Gots, who argues that the conclusions of the paper are invalid.    A  recent paper by Shoemaker makes similar claims and Gots similarly criticizes  it.

        The state of California recently enacted a toxic mold protection act, mandating (without extra funds) the Department of Public Health to assemble an unpaid expert committee to recommend standards.  The problem then is to decide what is causing the problem and how to measure it. 

    A conference, sponsored by the International Center for Toxicology and Medicine, on "Mold Medicine - Mold Science" was held in Georgetown University on May 13th and 14th 2002.  Abstracts are available at the above linked pages.

    In June 2004, the US National Academy of Sciences released a report on mold. "An exhaustive review of the scientific literature made it clear to us that it can be very hard to tease apart the health effects of exposure  to mold from all the other factors that may be influencing health in the typical indoor environment," said committee chair Noreen Clark, dean,  School of Public Health, University of Michigan, Ann Arbor. "That said, we were able to find sufficient evidence that certain respiratory  problems, including symptoms in asthmatics who are sensitive to mold, are associated with exposure to mold and damp conditions. Even though the available evidence does not link mold or other factors associated with building moisture to all the serious health problems that some attribute to them, excessive indoor dampness is a widespread problem that warrants action at the local, state, and national levels."  

List of Mold Websites.

    It has been reported that there are now over 100,000 websites about mold.  We report on only a fraction of them here.

    Atlantic Legal Foundation  mold web site (www.moldscience.org)  
     American College of Occupational and Environmental Medicine (ACOEM) (evidence based statement of October 2002)

Academic Mold Sites

    "Correcting Misapplications of Science in Personal Injury Claims: A Periodic Report with Supporting Citations."
    (ICTM) new collection of electronic reports available via email/this link.
    A recent legal review can be downloaded here
    Our expert on the Science Advisory Board is Dr Ronald Gots
    Dr Gots' short paper on Mold Misinformation .
    Dr Gots has a longer paper:
           " Mold and Mold Toxins:  The Newest Toxic Tort"   8 Journal of Controversial Medical Claims  1  (2001)
    A Mold Page from Stanford University
    Kansas State University report on controlling mold

Government Mold Sites

    A congressional hearing on molds
    CDC Environmental Health Services: Water Damage
    CDC on Pulmonary problems and also in infants
    EPA   mold basics
EPA:  Healthy Indoor Air for America's Homes
    EPA:    Mold Resources
    EPA:  Mold Remediation in Schools and Commercial Buildings
    California's information page on mold
    New York City Department of Health “Guidelines on Assessment and Remediation of Fungi in Indoor Environments”
    Newark City's Fact Sheet
    state of Minnesota's report on Mold in Homes
    Minnesota Department of Health: Another report on Mold in Homes
    North Carolina's mold information page
    Report by Harriet H. Amman, PhD, DABT  Department of Health State of Washington
    Texas Department of Insurance mold page

General sites that mention Mold

:   Center for Disease Control and Prevention (CDC), National Center for Environmental Health
    American Board of Industrial Hygiene: Certified Associate Industrial Hygienist
    General Site American Indoor Air Quality Council
    National Jewish Medical and Research Center on molds
    Managing a mold invasion (by Conservation Center for Arts and Historic Artifacts)
   Toxic mold research reports by Ontario tenants.
    The Allergy Buyers Club

    We deliberately leave out sites which seem to be badly identified or seem to be nothing but advertising for lawyers.  We would be happy to list remediation options and links to clean up organizations.

Other Mold sites

  A government document on trends in drug related emergency room visits   
  The FDA official site; a warning by Dr Reder of FDA; Qand A on oxycontin from FDA
  NIH site on use and misuse of prescription drugs.
  Testimony by the head of the Drug Enforcement Agency (DEA); another DEA link
  The legal firm of Pitcoff and Riff discuss oxycontin and advertise for clients
  See also the web site of the American Enterprise Institute

Lockheed Workers

    At Lockheed aviation many people worked on the Stealth Bomber and used many epoxy materials.  The Exact composition was secret and no detailed harm was proven.  Nonetheless thousands of workers sued.  The cases were originally in one class action but were later bifurcated  and compensation was awarded to many of them.   The case in one group depended on the "expert testimony" of one person which was challenged by many distinguished scientists in a brief presented by the Atlantic Legal Foundation.   Although not specifically stated, the court in its decision agreed with the amici.   So also did the appeal court, but at the present time the matter is being appealed by the plaintiff to the Supreme Court of California.  ALF is representing a group of amici in this case supporting the decision of the lower courts.

Radionuclides  in water

    Various EPA and NRC regulations are concerned with radioactivity and the doses produced by radionuclides as pollutants.  Scientists have done a lot of work to calculate what the dose is under various circumstances.   Early calculations were too pessimistic by a factor of five.   The EPA still use the old pessimistic formula but NRC use a new formula.  This is important because the cost of unnecessary cleanup of water supplies, and costs of additional protection for Yucca mountain, run into billions of dollars.  EPA argues that to change the formula, even for new regulations, would mean changing hundreds of early regulations.  Others say "good:  change them".

    On December 7th 2000 the EPA promulgated  "National Primary Drinking Water Regulations; Radionuclides"; in the Federal Register,  (Volume 65, Number 236)] [Page 76707-76753].  This web page master had made two (very similar)"public comment(1)"  "public comment(2)" which, as usual for EPA, were not acknowledged and seemed to have no effect.  At issue are standards for radium, uranium and several beta and gamma emitters.    The regulation was challenged by a group of organizations: City of Waukesha, Nuclear Energy Institute, National Mining Association and Radiation, Science and Health Inc  with several intervenors.  The US Court of Appeals, DC circuit, number 01-1028, dismissed the case in spring 2003.   The web page master believes that the issue will certainly come up again.

 

Radiation at Low Dose


    There are several situations arise where radiation exposure is at low intensity and consequently the doses are small.  The cases in the above two examples are two of them.  An interesting, even fascination, scientific disagreement arises.  Is there linearity and the risk remain finite (but small) at low doses? Does the risk go to zero below a threshold dose?  Does it matter?  This web site manager has an annotated set of references on the subject primarily for scientists. Professor Ed. Calabrese has been active in raising the  issue  in  proper scientific fora.    He has a newsletter - Biological Effects of Low Level Exposures He has also held  several conferences on non-linearity in biological systems - whether stimulated by radiation or by other insults such as chemical carcinogens.  The most recent was held in Amherst, MA, June 11-13 2002.  One is being held in a few days on May 28th to 30th 2003.  These illuminate the issue.  At the June 2002 conference this web page master presented evidence that the situation is complex.  Depending upon the tumor site the same chemical can increase or decrease tumors.   His slides are available here.

   Meanwhile in Kennedy a group of distinguished amici argue that in many situations it does not matter. In this case, exposure was so low, even under extreme postulates, that the risk was negligible in either case. This argument was accepted by the appeals court which reversed a decision by a three man panel of the same court.  In another case, a group of distinguished amici point out that the radionuclides (mainly radioactive iodine) emitted at Hanford nuclear reactor (mostly during 1945) produced doses that were  too low to cause any effect that is measurable by the best epidemiology.  In no group of people was it shown to be "more likely than not" that their thyroid problems were caused by this radiation.  A three man panel of the appeals court held that this decision of the district court was improper and remanded it.  The amici agreed with the district court that plaintiffs would have to surmount this hurdle before a case could be made and requested the court of appeals review the district court decision en banc.  The full appeals court declined to review the case, and the case is now back with he district court.

    A very important issue is the compensation being paid to former DOE and other workers who may have been exposed to radiation during cold war activities.  The issue is the Probability of Causation when a cancer has arisen which could have been caused by radiation if the dose is high enough.   The procedures for deciding whether and to whom  to award compensation are generous to the worker.  They reward ignorance. 91% of lung cancers become compensable, an unbelievably high figure.  100% are compensable when the cigarette smoking status is unknown!  When there is no information about the primary cancer again, most of the applicants are compensated.   Indeed Ignorance is Bliss!   While it may be proper to give generous compensation, it is grossly improper and dangerous to claim that it is being done in a scientifically defensible manner.   The statement by Ms Elaine Chou of the Department of Labor that "Many of these workers developed cancer and other serious diseases because they were exposed to radiation ....  in the course of doing their jobs. should NOT be taken to imply that there is scientific proof of that statement.    

    ALF scientists expect to monitor the situation to ensure that the procedure is not extended to areas beyond those specifically authorized by Congress.

Depleted Uranium

    On 17th January 2003, the European Parliament called for a moratorium on the use of depleted uranium (DU) munitions by EU and NATO members citing the "Precautionary Principle."   This will have profound public and legal implications in which ALF will, no doubt, become involved.  No legal situations have yet arisen but if they do, ALF will probably wish to become involved.   On this section of the "sound science" web page I discuss with links and references some of the issues involved.

    The name uranium is given to chemical element 92 and exists in two common "isotopic" forms with different atomic weights, U235 and U238. U235 easily undergoes nuclear fission and is used for nuclear fuel - either for bombs, or for nuclear electric power stations.  After removal of much of the Uranium 235, Depleted Uranium (DU) has much less commercial value than the original chemical.   About 200,000 tons of DU are easily available world wide.  At one time uranium was used in denture ceramics. The fluorescence increased the whiteness.  This has now been phased out, but the exposure to the wearer was small.    (0.05 mRem or 0.5 microSv per year, about 1/4000 of the annual background dose).  There are other industrial uses.   Depleted Uranium was also used as a counterweight for some aircraft and was involved in two aircraft crashes (and subsequent fires).  In one crash an Israeli Cargo jet crashed into houses in Amsterdam and in another a Korean Air Cargo plane at Stansted UK.  In each case it was estimated that the fire was not hot enough for a long enough period, to evaporate enough DU to be a health hazard.

    DU is available in metal form which is dense and hard.  DU is almost twice as dense as lead and has the ability to self-sharpen on impact with armor, thus making it ideally suited for use as a kinetic energy anti-armor penetrator.    The US and UK military have used DU for armor piecing shells because of these unique properties.  Throughout the world concerns have been expressed that the military use of DU, which started in the Gulf war of 1990-1991 (which the UN joined in 1991) could lead to illnesses among servicemen and civilians.  There are dozens of websites that express this concern and I list a couple - almost at random (site 1;  site 2;).   Most, if not all, of them fail to make a proper showing of a hazard.    There is the nebulous "Gulf War Syndrome" which has not been associated statistically with DU.  The studies that claim otherwise all suffer from the logical fallacy that showed that Storks bring Babies.

    Depleted Uranium, being the same chemical element as natural Uranium, has the same chemical properties and the same chemical toxicity.   Any radiological hazard of Depleted Uranium will be less than that of natural uranium (for the same  amount absorbed in tissue) because the major radioactive emissions from natural uranium come from the isotope U235 which is present in smaller quantity in Depleted Uranium.   It is well known that a block of uranium metal produces a very small hazard.   For example, in 1945-1950,  Professor Sir Francis Simon of Oxford University, used a large block of uranium on his desk as a paper weight.  This webmaster copied him with a small chunk.  One of the first Atomic Energy Commissioners, Professor Robert Bacher, told this webmaster that in 1945 he handled with his bare hands every piece of metal in the Los Alamos store room.  Those which were warm were plutonium, those which were cool were uranium.  But since DU is used, by the military, whereas natural uranium is too expensive to be so used, there are exposure scenarios that are unique to Depleted Uranium.  As used by the military, armor piercing shells evaporate and produce easily inhalable particulates and  aerosols.   It is this that causes the concern.   But no concern was expressed when the US military entered Iraq in 2003.   It was public knowledge that there were drums containing chemically pure (natural) uranium oxide in the Iraqi Atomic Energy Laboratory at Tuwaitha.   The UN inspectors had been withdrawn, the Iraqis failed to turn up for work, and the US military did not bother to enter the laboratory.  Local villagers poured the black oxide on the ground and used the new shiny cans for carrying water.  No consequent deaths were reported.   There was a report of the European Commission, but that is no longer available at this address. ( European Commission Report http://europa.eu.int/comm/environment/radprot)

The Royal Society of the United Kingdom commissioned a report in the year 2000.  This is available at a a page on their website, as well as a call to the occupying powers to report on where they used DU in Iraq.  If this link fails go to the main page of the Royal Society and search.

 The links to the "Post Conflict" Reports of the United Nations Environment Program (UNEP) on:
Bosnia and Herzegovina
Serbia and Montenegro
seem not to work.   But I find on the IAEA site the:
Final Kosovo Report

IAEA report on Kuwait and the Gulf war is also available
UNEP is holding a meeting during the first week of April 2005 in Amman Jordan, to begin their post conflict report on DU in Iraq.
Report of US Department of Defense
NATO has a list of communications and reports
Rand Corporation study on effects of the Gulf war (Volume 7) “A review of the Scientific Literature as it pertains to Gulf War Illnesses,” Naomi H. Harley, Ernest C. Foulkes, Lee H. Hilborne, Arlene Hudson, and C. Ross Anthony,  Depleted Uranium report MR-1018/7-OSD.
A whole issue of J.Environmental Radioactivity, volume 64 discusses DU;   I especially note a review article "Properties, use and health effects of depleted uranium" J. Environmental Radioactivity, 64:93-112 (2003)
International Atomic Energy Agency page on Depleted Uranium:
The International Nuclear Information System (INIS) run by IAEA
INIS search engine with several thousand references on DU:
US Office of the Special Assistant for Gulf War Illnesses (OSAGWI) DU library

    These reports all seem to agree that the widespread claims that DU has increased leukemia and other diseases among the veterans and the local population are groundless.  A few personnel inside a struck military vehicle struck by a shell, who miraculously survived the more ordinary hazard of war, might ingest enough material to cause chemical toxicity effects on the kidneys.  There does not seem to be enough inhalation exposure to the evaporated material for the alpha particles to cause observable increases in lung cancer.  Nonetheless reports, such as the attached by Dr Al-Azzawi.  continue to appear that claim widespread effects on public health in southern Iraq which are attributed to depleted uranium.

    Nonetheless, on 24th January 2003, the European Parliament called for a moratorium on the manufacture and use of depleted uranium (DU) munitions citing the "Precautionary Principle" - a somewhat vague term which nonetheless is the official foundation of their environmental policy.  They claimed that NATO’s use of such weapons during the war in Yugoslavia would have "long-term effects on health and quality of life in South-East Europe, affecting future generations".    This recent statement of the EU parliament, if not revoked,  will have profound public consequences.  No legal situations have yet arisen but if they do, scientists should become involved.   The decision by EU  seems to violate their own warnings about use of the precautionary principle: “Before the precautionary principle is invoked, the scientific data relevant to the risks must first be evaluated. However, one factor logically and chronologically precedes this evaluation, namely identification of the potentially negative effects of a phenomenon. To understand these effects more thoroughly it is necessary to conduct a scientific examination. The decision to conduct this examination without awaiting additional information is bound up with a less theoretical and more concrete perception of the risk.” 

Knee-jerk reactions by prosecutors can increase pain

    Society must be wary of  overly protecting those determined to destroy themselves such as drug addicts.   This arises in the civil and criminal legal processes against those manufacturing and pres cribing Oxycontin - a drug specifically designed to release  slowly  the opiate pain killer oxy-codone.   There seem to be no indication of problems if it is used as prescribed.   As I edit this page I myself am taking oxycodone to relieve pain after minor surgery.  BUT the pills can be ground up and eleiminating  the slow release feature.   Then drug addicts can use them to get a high, and perhaps kill themselves.  How far should society go to prevent this?   This is discussed in the New York Times Magazine of January 17th 2007.   Dr Sally Satel also published the following comments in the Wall Street Journal:

    "It is a bad time to be in pain. Last week, the maker of OxyContin, a high-strength narcotic analgesic, agreed to pay $635 million.  "The typical "Oxy" abuser is not a pain patient taking medication as prescribed, but rather a committed substance abuser."   The problem isn't OxyContin, but its misuse by people abetting a desire to get high. ion to settle charges of "misbranding" brought by the United States Attorney for the Western District of Virginia. "Scores died as a result of OxyContin abuse and an even greater number of people became addicted," said U.S. Attorney John Brownlee. The drug company, Purdue Frederick, admits that its sales force underplayed the abuse potential of OxyContin. And, yes, the company should have acted more quickly to clamp down on overpromotion and to issue strong warnings in the face of overdose deaths.   But the real public-health damage here comes from the pitched campaign conducted by zealous prosecutors and public-interest advocates to demonize the drug itself. This is tragic because OxyContin has been a godsend for millions of patients with searing, unremitting pain from chronic back problems, rheumatoid arthritis, neurological disorders and other dire afflictions." " Doctors already wary of scrutiny by the Drug Enforcement Administration will become even more skittish about giving adequate doses of OxyContin or prescribing it at all." "Unlike its opioid cousins, such as morphine or codeine which wear off in four to six hours, OxyContin is slow-release and lasts up to 12 hours. Longer action means steadier blood levels, an important feature when pain is constant and severe."  "In 2001 the NY Times Magazine  described how addicts--not severe, chronic pain patients--ground an intact pill into quick-acting pharmaceutical grade opiate. It takes five seconds to effect the transformation--and not much longer to create an addict.


Two films of court cases where science was ignored


    Two court cases had sufficient general interest that major popular films were made.    These films clearly influence  public perception.  The first was about a leukemia cluster in Woburn, MA a suburb of Boston.   It was claimed by the plaintiffs that this was due to a small spill of either trichloroethyelene (TCE) or percholoroethylene (PCE) released either by Beatrice Foods or by a WR Grace company factory.  Many organizations got into the act:  EPA, USGS, and consultants.  But most of the expert testimony was about an isolated part of the problem: “who put the small  contamination there?”  This is illustrated by a subsequent instructional discussion.  Although TCE has been shown to cause cancer in laboratory mice, it has never been shown to cause any cancer in people.   The estimated exposures were far too small to cause leukemia and it was unclear that the exposure was enough in advance of the effect.  The measured TCE concentrations, admittedly many years after the alleged exposure, were 100 times smaller than in a town in Pennsylvania that had no leukemia cluster.    These simple facts got lost in the legal arguments.   Nonetheless both the book by Jonathan Harr “A Civil Action”,  and the film make excellent entertainment.

    The second was about traces of chromium in the well water of a few residents of Hinkley, a small California town on the Nevada border, where the power company, Pacific Gas and Electric Company (PG&E)  had used chromic acid to clean the coolant system.    As was common at the time they put the waste water into unlined ponds on the site  and some chromium had reached the water supply.  Interestingly environmental engineers at Harvard University's Divison of Engineering and Applied Physics had protested the procedure of using unlined ponds as early as 1960 but their advice was not heeded either by industry or its regulators.   There was a small exposure in the drinking water of about 20 families,  and PG&E laid themselves open to a lawsuit,   (Anderson, et al v Pacific Gas & Electric in San Bernardino Superior Court file BCV 00300) by what was called a cover up.    They informed the state but not the residents and bought up 3/4 of the neighboring houses in an effort to avoid public concern.   As its chief executive stated  "P.G.&E. did not respond to the groundwater problem as openly, quickly, or thoroughly as it should have. . . . It is clear, in retrospect, that our company should have handled some things differently."  Clearly P.G and E was at fault in not ensuring that there would be no leak.  But  there is no evidence that anyone was hurt thereby.  Any car driver exceeding the speed limit is clearly violating the law, and there are appropriate sanctions for this, (and even perhaps praise for the whistle blower) but they do not include paying damages to all pedestrians that happen to be in the neighborhood of the offending car.  

    Hexavalent
chromium, when inhaled by workers in chromium plating plants,  has caused lung cancer in the past,  but according to the Iris website of EPA  "No data were located in the available literature that suggested that it is carcinogenic by the oral route of exposure" at any dose.   The International Agency for Research on Cancer (IARC), a UN body, stated likewise in "IARC Monographs on the Evaluation of Carcinogenic Risks to Humans Volume 49 (1990)"  and also notes that even animal data do not indicate a large risk by ingestion either.  More recently data have been published that show that ingestion of small amounts of chromium do not influence the natural chromium levels in the body.    (Finley, B.L., Keger, B.D. Katona M.W Gargas, M.L. Corbett, G. C., and Paustenbach D.J., (1997) “Human Ingestion of Chromium VI in Drinking Water: Pharmokinetics Following Repeated Exposure: Toxicology Applied Pharmacology 142:151-159)   From a scientific point of view that should have been the end of the discussion. 

    648 people sued for some billions of dollars in a class action and blamed  the small exposure for dozens of symptoms, ranging from nose bleeds to breast cancer, Hodgkin's disease, miscarriages and spinal deterioration.  There was not even a statistical association such as that of figures 1 and 2.  Rather than face the uncertainty of a jury trial,  Pacific Gas & Electric Company decided to accept arbitration..  The result was the largest verdict in a tort case in California history - $333 million.   Going to arbitration seems to be a major error on the part of PG & E.  There was no possibility of an appeal, and no opportunity for the nation’s scientists to express their opinion in an amicus brief.   Julie Roberts played Erin Brockovitch in the excellent movie and won an academy award.  The New York Times got the issue right.  In its movie review they praised the film but pointed out the faulty science.   In contrast to the NY Times,    Harvard University School of Public Health awarded Erin Brockovich-Ellis the Julius Richmond award for her environmental activism notwithstanding the absence of any scientific basis.   Since I (Richard Wilson) wrote most of the above in 2000, I have become intimately involved with the world's largest man-made environmental catastrophe - the arsenic poisoning in Bangladesh where perhaps a million people will suffer and die.  The $330 million would be enough to provide pure water for all the 30 million or so overexposed Bangladeshis  - but they are only poor Bangaldeshis and not the "sufferers" of Hinkley.   I cannot help wondering whether America will ever put its priorities into saving lives rather than redistributing wealth.

Asbestos


    Asbestos is the name given to a group of naturally occurring minerals   Asbestos was widely used starting in the late 19th century as a fire retardant.  Indeed the very name came from the Greek "will not burn".   It is now given by general unstated consent to a group of materials that are regulated in commerce.   Each chemical exits in two forms:  fibrous (asbestiform) and non fibrous.   The fibrous form can produce toxic lung damage, asbestosis,  lung cancer, and for some asbestos types, mesothelioma.   The  group has two subgroups that are distinguishable under electron microscopy.  One causes amphiboles,  the other, serpentine asebtos does not cause amphiboles.   Amphibole asbestos was widely used in the shipyards and navies of the second world war.    Chrysotile, a form of serpentine asbestos, has more recently been used in buildings although all types are now either banned or avoided as much as possible in commerce.   

    In 1986 The US Environmental Protection Agency issued guidelines for risk assessment in which it was explicitly assumed that all asbestiform types had the same potency for causing  cancer regardless of chemical type.   These guidelines  have been widely used to guide regulations, and in court cases used for claiming damages and in other public documents.   In the intervening 18 years much information has surfaced that shows that the assumption of equality does not hold, expecially for mesothelioma. In 2003 the  U.S. E.P.A. acknowledged that the potencies can be different: “For mesothelioma the best estimate of the coefficient (potency) for chrysotile is only 0.0013 times that for amphibole and the possibility that pure chrysotile is non-potent for causing mesothelioma cannot be ruled out by the epidemiology data.”

    Many scientists, public policy analysts and the courts have been slow to grasp the implications of this newer evidence.   For example mesothelioma has a latency of 40+ years, and anyone contracting mesothelioma may have been exposed 40 or more years before but wants to blame someone now.   Among men there is evidence that male mesothelioma incidence in the USA has quadrupled since 1940, and that is usually attributed to asbestos exposure - probably to amphibole asbestos exposure before 1970.   Yet often a victim, searching for a deep pocket and unable to sue the US navy,  blames a manufacturer of chrysotile.    Assuming the above (EPA) statement of the science is correct, chrysotile would not normlly even be considered a partial cause of mesothelioma.   The Tlantc Legal Foundation has submitted a brief of amicus curiae in such a case to the California Appeals Court and is petioning the California Supreme Court to review the case.   On the other hand, as I have pointed out in a paper involving amphiboles,  a person exposed to amphibole asbestos at the iron mines on Lake Superior  has a larger risk for mesothelioma than suggested by the 1986 calculation which was based on an average of all asbestos types.
                   
Controversial issues on which good scientists disagree.

     The Atlantic Legal Foundation does not wish to enter into issues on which there is legitimate scientific disagreement even when they have a major impact on public policy.  However, the Atlantic Legal Foundation has an important role to play to ensure that the scientific discussion remains legitimate and is not misused.  Issues so far include:

Anti-ballistic Missile Systems

      This is an extraordinarily serious issue.   Claims have been made by no less than the President of the United States that Americans can be protected by an Anti-Ballistic Missile system (ABM).   Bethe and Garwin in 1968 wrote in Scientific Amercan claiming that it is false    Richard Wilson wrote an article about the recent proposal for a system in Poland and the Czech republic, and an article by the late "Pief" Panofsky appeared in the San Francisco Chronicle just after he died.   The danger is that the people of the world will be persuaded erroneously that there is a technical solution to a problem that demands the best diplomacy of which the world is capable. 

Corn Based Ethanol

    For 30 years corn distributors such as Archer-Daniels-Midland have suggested that ethanol be used instead of gasoline to reduce imports and reduce carbon-dioxide caused climate change.   While they were lobbying outside the House of Representatives 30 years ago this webmaster was testifying to a committe inside that almost as much carbon dioxide  is emitted in pesticide manufacture and other agricultural activities as the carbon in the gasoline it would save.   The uncertainty of the calculation has improved,  but the conclusion is the same as discussed by Michael McElroy Michael McElroy reported on this in the Harvard Magazine in November 2007.  Reports by Julia King on low carbon cars released by the UK Government in 2008,  Part I , and  Part II, agree.   Nonetheless the corn growers persuaded the US government to subsidize corn based ethanol. Fortunately this error is slowly being realized in the world.   The same argument does not apply to the same extent to cellulose based ethanol, but in 2008 it is not yet economically viable.

Arsenic

     Arsenic in US drinking water is at low enough levels that conventional epidemiology shows no statistically signifiant increase in adverse effect.   But arsenic might be present at low levels and the usual rule, mandated by Congress, is to be careful.  See for example the web site arsenic.ws (which is a shortcut to page or set of pages on this site).   This set of pages summarizes all the work about arsenic including the dilemma faced by the US regulators.

Global climate change:   

    Although a Nobel Peace Prize was awarded in 2007 for advertising that the climate is changing, there remain some scientists who disagree.   Here we merely link to the 10+ year old report The Intergovernmental Program on Climate Change (IPCC3) (the"official view")
IPCC3 working group 1, IPCC3 working group 2,  IPCC 3 working group 3,  
and the more recent (2006) report which overcomes some of the problems of the earlier study.
 
IPCC 4 working group 1,  IPCC4 Working group 2    IPCC4 working group III  
There is a discussion group of skeptics about climate change
and a report of skeptics in March 2008
Center for the Study of Carbon Dioxide and Global Change.
 

Particulate air pollution

at low levels.  Is there a threshold below which particulate levels do no harm?  This is discussed in the book by Wilson and Spengler , and especially in Chapter 9 by Evans

Cosmic Risks

  
Good scientists have good imagainations and can imagine circumstances where a mistep can cause enormous damage to the world.   Thus it was in summer 1945 that some scientists wondered whether the high temperature of anuclear explosion might combine oxygen and nitrogen and literally ignite the atmosphere.   After much consideration, they decided that it would not and the exlosions took place.

    As scientists prepare the Large hadron Collider (LHC) in CERN, Geneva for operation others have wondered whether a disaster might occur.   For example could they produce small black holes to absorb all the matter in the solar system?   The official answere is no, but some scientists filed suit in Hawaii, to block the operation of the LHC.    Two Nobel Laureatesand this webmaster have filed a brief of amicus curiae in this case.   The Hawii court dismissed the case for klack of legal jurisdiction.

Your favorite

 

    Please bring to our attention any other important issue.

Appeal

    These pages cost money.  Taking cases cost money.  Any contribution to these costs, big or small, should be sent to the treasurer of the Atlantic Legal Foundation, Steven Harmelin Esq., at Dilworth Paxon LlP, 1735 Market St.32nd floor, Philadelphia, PA 19103-7395.    Gifts of appreciated securities are welcome.

LINKS

Atlantic Legal Foundation main page
Atlantic Legal Foundation Mold web page (www.moldscience.org)
Annapolis Center for Science and Public Policy
Harvard Center for Risk Analysis tries to be balanced
"Correcting Misapplications of Science in Personal Injury Claims: A Periodic Report with Supporting Citations."
(ICTM) new collection of electronic reports available via email/this link.
American Council on Science and Health (ACSH) studies and issues reports on science issues related to health
ACSH  has a new "blog" or weblog page
The George C. Marshall Institute is committed to investigating the facts behind global climate change, and problems       surrounding the politicization of science in this area
The Competitive Enterprise Institute often has useful articles.
Junk Science  (run by Steven Milloy) is a deliberately provocative site which raises a flag when the authors feel that the science is incorrect
Medical quackery  is exposed in  "Quack Watch" by Steven Barrett, MD
Michael Fumento writes about incorrect or exaggerated newspaper articles on health
Tech Central Station is a web site that complains about many things - including a lawsuit against MacDonald's for encouraging Obesity.
The Union of Concerned Scientists best known for their activities opposing nuclear power, tries to raise a cautious approach to many scientific issues
Wilson and Crouch book on Risk Benefit Analysis

Richard Wilson (webmaster) has a HOME PAGE (http://physics.harvard.edu/~wilson) where many other pages may be found

NAVIGATION BAR FOR THIS PAGE

Introduction

Electromagnetic Fields

Breast Implants

Molds

Asbestos

            Risks

Scientific Disagreements

Radionuclides in Water

Radiation at Low Doses

 

Cancer Clusters

E MAIL

Depleted Uranium

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