WSJ Article False Witness by Lester Brinkman

[Guest guest]

Prof Brinkman's quote from the WSJ article, False Witness:

1. "according to the American College of Occupational and Environmental Medicine, current scientific evidence does not support the proposition that molds or the mycotoxins produced by molds, whether inhaled in home, school, or office environments, adversely affect human health."

2. Direct quotes from ACOEM mold statement:

"Levels of exposure in the indoor environment, dose-response data in animals, and dose-rate considerations suggest that delivery by the inhalation route of a toxic dose of mycotoxins in the indoor environment is highly unlikely at best, even for the hypothetically most vulnerable subpopulations."

"Current scientific evidence does not support the proposition that human health has been adversely affected by inhaled mycotoxins in home, school, or office environments."

3. The WSJ article, November 29, 2006:

False Witness

By LESTER BRICKMANDecember 2, 2006; Page A9

Last year, in a shot heard round the mass tort world, U.S. District Court Judge Janis Jack, presiding over 10,000 claims of silicosis -- a lung disease caused by exposure to silica (sand) dusts, issued a report documenting widespread, fraudulent medical diagnoses. The fraud was discovered when Judge Jack permitted the defendants to extensively question the doctors who had diagnosed the alleged injuries. While this sounds like standard operating procedure, most judges would not have permitted such discovery. Indeed, the fraud would never have come to light but for a courageous judge willing to, in effect, put the tort system on trial.

Judge Jack largely corroborated my own published findings of fraudulent production of medical evidence in asbestos litigation.......

Substantially the same fraudulent practices have been used in other mass tort litigations. "Fen-phen" is one example. Several law firms and about 10 echocardiogram companies which started screening businesses spent millions of dollars to set up makeshift "echo mills" in hotel rooms and elsewhere to administer echocardiograms to users of these diet drugs. Approximately a few thousand users suffered heart valve injuries, but tens of thousands responded to advertisements to find out whether they qualified for compensation........

Silicone is another example. Screenings by lawyers in silicone breast implant litigation ginned up tens of thousands of claims of connective tissue and rheumatoid diseases that were supported by the specious diagnoses of a few dozen doctors who were mostly referred by the lawyers. Cursory examinations -- sometimes in lawyers' offices doubling as examining rooms -- were done on an assembly line basis by cardiologists charging as much as $6,000 per examination and diagnosing more than 90% of the women with symptoms that would make them eligible for compensation.

However, the National Academy of Sciences' Institute of Medicine concluded that "there is no evidence that silicone breast implants contribute to an increase in autoimmune (connective tissue) diseases . . . and [there is] no link between implants and connective disease or rheumatic conditions." Nonetheless, approximately $4 billion to $5 billion has been paid by the manufacturers for connective tissue and autoimmune disease claims.

Mold litigation is still another example of a mass tort infected by fraudulent medical and scientific evidence. Mold is a ubiquitous fungus to which everyone is exposed; according to the American College of Occupational and Environmental Medicine, current scientific evidence does not support the proposition that molds or the mycotoxins produced by molds, whether inhaled in home, school, or office environments, adversely affect human health. The scientific evidence notwithstanding, mold litigation, a multibillion dollar industry, proceeds because a small number of experts paid fees of as much as $10,000 a day have regularly testified that mold causes a terrifying array of diseases from lung cancer to cirrhosis of the liver.

While there are ongoing federal investigations of silica and asbestos litigation in New York and of fen-phen litigation in Philadelphia, federal prosecutors have not indicted the doctors and scientific experts. To prove fraud in those cases will require the testimony of other doctors and scientific experts; and it may be that prosecutors are concerned that "reasonable doubt" is virtually inherent in a process that relies on a "battle of the experts" for evidence of fraud. Meanwhile, doctors and scientific experts are obviously well aware of their effective immunity from prosecution. They do not need a "get out of jail free" card because they already have a "never go to jail" card.

Part of the solution is for judges to approach mass tort litigation with a healthy skepticism when mass claims have been generated by the type of litigation screenings used in asbestos, silica, fen-phen and breast implant litigations. Integral to these litigation screenings are mass-produced medical services which are manufactured for money -- practices which flourish when courts insulate them from the extensive discovery presided over by Judge Jack.

But more is necessary to curb fraud. State and federal legislation is needed to empower prosecutors to pierce doctors' and scientific experts' effective immunity from criminal prosecution. Drafting legislation to distinguish between legitimately disputed diagnoses or theories of causation and manufacturing medical or scientific evidence for money is a daunting task. But it is one that we must undertake to preserve the integrity of the civil justice system.

Mr. Brickman is professor of law at the Cardozo School of Law of Yeshiva University.

4. From the UCSF Tobacco Legacy Library regarding Prof Brichman, RJReynolds Documents

http://legacy.library.ucsf.edu/cgi/getdoc?tid=mcl46a00 & fmt=pdf & ref=results

"FYI - The Manhattan Institute had a call from 60 Minutes.....the producer might want to call an academic, and he provided Lester Brichman's name."

"In response to Dan's question I said "no" neither we nor the litigation project (which technically doesn't exist!) should not reach out to 60 Minutes or we'd wind up in the story or kill it. I'm not even going to tell the cos. for fear PM [sic ] will try to do something "clever".

"Former Helms staffer will be joining the Institute in July as sr. vp of federal grant

From the Manhattan Institute website:

http://www.cardozo.yu.edu/life/summer2005/pdf/faculty_briefs.pdf

"President Bush with Prof. Lester Brickman (at left) for “A Conversation on Asbestos Litigation Reform.â€

"Lester Brickman received the 2004 Legal Reform Research Award from the US Chamber of Commerce Institute for Legal Reform."

From the PointofLaw website:

PointofLaw.com is a website sponsored by the Center for Legal Policy at the Manhattan Institute and Liability Project at the American Enterprise Institute. Focusing on America's civil justice system, the site includes original discussions featuring some of the nation's top legal scholars, an ongoing forum on liability issues, a bibliography of important books and articles, and links to topical legal news stories. Contributors:Lester Brickman is a professor of law at the N. Cardozo School of Law at Yeshiva University. His areas of expertise include administrative alternatives to mass tort litigation, asbestos litigation, and contingency fee reform. Professor Brickman has written extensively on these and other topics, he has testified at congressional hearings, and he is widely quoted in the press.

The lay translation of the ACOEM Mold Statement was shared by the Manhattan Institute with the US Chamber and affiliates in July of 2003. It ends with the sentence, “Thus the notion that ‘toxic mold’ is an insidious secret ‘killer’ as so many media reports and trial lawyers would claim is ‘Junk Science’ unsupported by actual scientific study.â€

Just one example of thousands regarding ill health and mold. It's a CDC doc.

www.otispregnancy.org/pdf/mold.pdf

Sharon Kramer

[Guest guest]

December 1, 2006

To The Editors of the Wall Street Journal and Mr. Lester Brinkman,

My name is Mrs. Sharon Kramer. I advocate for those made ill from mold exposure who are not able to obtain viable medical treatment because of much misinformation being disseminated over the matter.

The article entitled "False Witness" and authored by Mr. Lester Brinkman has a misstatement of fact that is potentially harmful to many, should it not be corrected. It is misinformation that could cause the public to be lulled into a false and dangerous sense of security regarding indoor mold exposure.

Mr. Brinkman wrote: "according to the American College of Occupational and Environmental Medicine, current scientific evidence does not support the proposition that molds or the mycotoxins produced by molds, whether inhaled in home, school, or office environments, adversely affect human health."

The American College of Occupational and Environmental Medicine makes no such claims that indoor mold exposure is harmless to human health. The area of debate within the matter, is if an indoor exposure to mycotoxins may produce toxic effects.

The actual quotes from the American College of Occupational and Environmental Medicine, Mold Statement in regard to mycotoxins are,

1. "Particular attention is given to the possible health effects of mycotoxins, which give rise to much of the concern and controversy surrounding indoor molds"

2. . "Levels of exposure in the indoor environment, dose-response data in animals, and dose-rate considerations suggest that delivery by the inhalation route of a toxic dose of mycotoxins in the indoor environment is highly unlikely at best, even for the hypothetically most vulnerable subpopulations."

3. "Current scientific evidence does not support the proposition that human health has been adversely affected by inhaled mycotoxins in home, school, or office environments."

With regard to ill health effects known from the molds themselves, the American College of Occupational and Environmental Medicine states:

1. A growing body of literature associates a variety of diagnosable respiratory illnesses (asthma, wheezing, cough, phlegm, etc.), particularly in children, with residence in damp or water-damaged homes (see reviews 3-5).

2. "Allergic and other hypersensitivity responses to indoor molds may be immunoglobulin E (IgE) or immunoglobulin G (IgG) mediated, and both types of response are associated with exposure to indoor molds."

3. Individuals with allergic airway disease should take steps to minimize their exposure to molds and other airborne allergens, eg, animal dander, dust mites, pollens. For these individuals, it is prudent to take feasible steps that reduce exposure to aeroallergens and to remediate sources of indoor mold amplification

4. If evaluation of the occupational environment fails to disclose the source of antigens, exposures in the home, school, or office should be investigated. Once identified, the source of the mold or other inhaled foreign antigens should be remediated.

The following is the link to the American College of Occupational and Environmental Medicine document.

Evidence Based Statement | Adverse Human Health Effects Associated with Molds in the Indoor Environment

As one can clearly see, Mr. Brinkman's statement of "according to the American College of Occupational and Environmental Medicine, current scientific evidence does not support the proposition that molds or the mycotoxins produced by molds, whether inhaled in home, school, or office environments, adversely affect human health." is a false statement in need of correction.

I do agree wholeheartedly with Mr. Brinkman's evaluation of "But more is necessary to curb fraud. State and federal legislation is needed to empower prosecutors to pierce doctors' and scientific experts' effective immunity from criminal prosecution. Drafting legislation to distinguish between legitimately disputed diagnoses or theories of causation and manufacturing medical or scientific evidence for money is a daunting task. But it is one that we must undertake to preserve the integrity of the civil justice system.".

And I find that it would have been appropriate in an article entitled "False Witness" that takes the position there is much fraud on the plaintiff side in environmental litigation, Mr. Brinkman and the Wall Street Journal should have disclosed to the readers, Mr. Brinkman's long history and close affiliation with the defense side of toxic tort litigation. It should have been disclosed to the reader of the author's close affiliation with the Manhattan Institute. The Manhattan Institute has played a significant part in much of the misinformation being propagated over the mold issue.

Below are links that illustrate Mr. Brinkman's long history with the defense side of toxic tort litigation.

From the UCSF Tobacco Legacy Library regarding Mr. Brichman, RJ Reynolds Documents

http://legacy.library.ucsf.edu/cgi/getdoc?tid=mcl46a00 & fmt=pdf & ref=results

"FYI - The Manhattan Institute had a call from 60 Minutes.....the producer might want to call an academic, and he provided Lester Brichman's name."

"In response to Dan's question I said "no" neither we nor the litigation project (which technically doesn't exist!) should not reach out to 60 Minutes or we'd wind up in the story or kill it. I'm not even going to tell the cos. for fear PM [sic ] will try to do something "clever".

"Former Helms staffer will be joining the Institute in July as sr. vp of federal grant

From the Manhattan Institute website:

http://www.cardozo.yu.edu/life/summer2005/pdf/faculty_briefs.pdf

"President Bush with Prof. Lester Brickman (at left) for “A Conversation on Asbestos Litigation Reform.â€

"Lester Brickman received the 2004 Legal Reform Research Award from the US Chamber of Commerce Institute for Legal Reform."

From the PointofLaw website:

PointofLaw.com is a website sponsored by the Center for Legal Policy at the Manhattan Institute and Liability Project at the American Enterprise Institute. Focusing on America's civil justice system, the site includes original discussions featuring some of the nation's top legal scholars, an ongoing forum on liability issues, a bibliography of important books and articles, and links to topical legal news stories. Contributors:Lester Brickman is a professor of law at the N. Cardozo School of Law at Yeshiva University. His areas of expertise include administrative alternatives to mass tort litigation, asbestos litigation, and contingency fee reform. Professor Brickman has written extensively on these and other topics, he has testified at congressional hearings, and he is widely quoted in the press.

Attached is a document illustrating the US Chamber and Manhattan Institute involvement in the mold issue.

Additional example of the known dangers of mold exposure, the Center for Disease Control on the subject:

www.otispregnancy.org/pdf/mold.pdf

I thank the Wall Street Journal and Mr. Brinkman, in advance for correcting the false statement of "according to the American College of Occupational and Environmental Medicine, current scientific evidence does not support the proposition that molds or the mycotoxins produced by molds, whether inhaled in home, school, or office environments, adversely affect human health." in the article ironically entitled "False Witness".

Sincerely,

Mrs. Sharon Kramer

(I didn't even bother going into the fact that the ACOEM mold statement, human toxicity section, is also based on an erroneous foundation. The errors and potential motivation for the errors were already relevant in the article. Or what the term "independent medical exam really means.) How do these people sleep at night?