The world has changed. The seemingly orchestrated public fear of vaccines, of trace residues of glyphosate in our Cheerios, of talcum powder causing cancer … has focalised pure naked fear upon pure shrouded nonsense. How did this public panic come about? Has it been due to better scientific evidence or the exploitation of science by opportunists seeking lucrative revenue streams? SlimeGate is a series of blogs demonstrating how science and scientists are being manipulated by greed, opportunity and a lack of moral integrity emanating from a more aggressive, fee-hungry toxic tort industry. This chapter (in four sections) looks at how the toxic tort lawyers are prepared to destroy the public trust in science for a seat on a private jet.
Toxic tort law firms (particularly in the United States) see scientific evidence as a mere means to exploit and extract, out of a lust for fatter fees, bonuses and privilege; out of ambition to attack the main institutions structuring our economies; out of big egos on little stages expressing the power to manipulate emotions. Turning a victim of a tragedy into an opportunity to manipulate, politicise and monetise raises ethical questions that would turn any stomach. These predatory law firms will stop at nothing to succeed, profit and perform – they extort emotion for their own opportunity and now they are extorting science and scientists. These are the Predatorts.
Disclaimer. A vast majority of those engaging in the law profession are earnest and honest in their intentions and express a passion for justice. I lectured for ten years to law students who were committed to understanding and upholding the law (my only complaint was how far too many of them dream of working for NGOs). Within the tort law field, there are those seeking to find amicable solutions, protect those who were wronged, harassed or without protection. There are, however, a significant number who actively search for opportunities, fabricate causal relationships, trawl for victims and act, not with the intent of seeking justice, but rather to harvest fees and public attention. There are also the crusaders, true believers and zealots in the legal world who feel they have the power to transform institutions according to their biased ideology. I am not sure, between the opportunists and the true-believers, which one is more dangerous, but neither tend to behave in an ethical manner.
This Predatorts Chapter (Part 2 of SlimeGate) will be divided into four sections. This first section will look at how the tort industry had to find new sources for lawsuits after the honeypot of tobacco, asbestos and lead cases dried up. Section Two examines how the Plaintiff Playbook works. Section Three demonstrates how, win or lose, the tort financial system has been geared to keep lawyers living the good life at someone else’s expense. The last section will look at the Hypocrisy of the Honeypot – who the real victims are and who is really paying the price for those private jets.
The Honeypot Crisis: Torting without Tobacco, Lead and Asbestos
In the United States, there are, quite simply, too many lawyers. The rise of the tort firms taking on big industry has done well from decades of tobacco, lead and asbestos litigation but more than two decades ago, that easy money was drying up. With tobacco lawsuits in the late 1980s to 90s, the game was easy – find a smoker with cancer, add a deceptive cigarette ad campaign from the 1960s and take the pay out to the bank. But then the 1998 Tobacco Master Settlement Agreement put that gravy train in the depot. Tobacco companies acknowledged the consequences of smoking, created a fund and were freed from the outrageous number of uncapped lawsuits. Around the same time, as asbestos and lead were regulated and removed from buildings and fuels, coupled with many producer bankruptcies, the tort firms were running out of “lucrative” victims. There were quite simply fewer companies able to pay out settlements of a volume high enough to justify law-firm timesheets.
Tort law firms like Baum Hedlund or Weitz & Luxenberg had grown fat during these halcyon days opening offices across America, but they soon needed a new source of income (car rear-enders and allergic reactions might work for strip-mall hucksters, but they could not generate the billions needed to keep celebrity lawyers liquored up). These law firms were, first and foremost, large businesses; their partners drew nice packages, counsels wanted to keep their bonuses, private jets and expense accounts. Other financial sources for tort litigation needed to be “created”.
The search for the next honeypot was not going to be passive; the money dried up in the late 1990s so finding the “next big thing” was urgent. The Predatorts were actively searching for cancers, sources, victims and cases. They hired scientists who told them what they needed to hear. Their scientists went to agencies like IARC and got the cancer labels the courts needed to hear. The Predatorts then targeted industries, went to NGOs and activist gurus to create public outrage and trawled for victims.
Today business is still good for these large tort firms, however, their greed and desperation have left a trail of carnage across communities. These torts have contributed largely to the explosion of useless irrational fear about chemicals, vaccines, processed food, talcum powder, pesticides and coffee, lost public trust in regulators, the food chain and labels, and the destruction of certain businesses and ways of life.
Fabricating Jury-Friendly Risks
Today the American tort money machine is being fuelled on cancers from chemical exposures. At the moment, glyphosate, talcum powder and benzene are filling the honeypot. There are thousands of personal damage cases brought against industry for cancers allegedly caused by companies like Bayer (ex-Monsanto): 8700+ cases on glyphosate; J&J: 9000+ cases on talcum powder; and a seemingly unlimited number of cases of cancer allegedly caused from various forms and levels of benzene exposure.
- In all three cases, the science does not support the claims.
- In all three cases, the claims have been fabricated by scientists involved in the thousands of toxic tort lawsuits against industry.
- In all three cases, IARC has been the source of the cancer association and the scientific litigation consultant link.
This is not a coincidence … this is a scandal.
Over the last two decades, public perception of risks (particularly cancer risks) have grown to a level of irrationality never before imagined. I cut my teeth on risk while working for the chemical industry in the 1990s – this was a new field then and I could count the active risk specialists on one hand. The spontaneous explosion of risk issues in the 1990s did not happen by accident or by some alignment of the stars. More and more, I have begun to question how much some of these risk crises were born and bred for the courtroom by hungry lawyers willing to fabricate public fear for a Christmas bonus. From acrylamide to power lines, from vaccines to dioxins, bad science generating irrational public fear was percolating in American courtrooms.
How much has the concept of risk been affected by the focus on litigation and causality? Find a cancer and identify the cause; take the source of the cause (preferably a product from a much maligned multinational) to court; then compensate handsomely. When researchers concluded that about two-thirds of cancers simply came down to bad luck, the epidemiologists screamed murder. Epidemiologists are “cause-finders” but perhaps they are cursed by their prejudice that every cancer has a cause. Lawyers, for obvious reason then simplify the equation: every cancer has a cause and every victim should be compensated.
The courtroom has become the stage where risks are voted on. Lucas Bergkamp wrote how recent tort drama is changing how risks are perceived, then giving the activists the lead in determining how they are regulated. The courtroom is not a reputable bastion for scientific debate or reliable conclusions. A jury in Tennessee deliberated for nine minutes in 1925 before finding John Scopes guilty of teaching evolution. What worries me is how the courtroom would be more welcoming to a hazard-based approach where causality is more “nuanced”.
Measles, Mumps and Litigation
The most famous case of Predatort behaviour was when a lawyer bent on suing the pharmaceutical industry had funded Andrew Wakefield’s dishonest research attempting to link autism to the measles, mumps, rubella (MMR) triple jab vaccine.
Two years before Andrew Wakefield published his controversial findings in 1998 linking the MMR triple jab to autism, he was paid over £400,000 from the homeopath lawyer, Richard Barr (via the Legal Services Commission), seeking a firm scientific foundation to sue vaccine manufacturers. Barr had been representing parents with side effects from vaccines since 1992. It is quite clear that Barr’s funding of Wakefield’s junk science led to a decline in UK vaccination rates from 95% before his Lancet publication in 1998 to 78% in the early 2000s. Despite the number of tragic deaths and long-term illnesses from unvaccinated children over the last two decades, no lawsuits have ever been brought upon Richard Barr. Sadly, too few journalists today are doing the investigative work that Brian Deer had done back in the early 2000s to expose the tort connection to Wakefield’s fraud.
These lawyers are stealth and quick to sue anyone who comes near them and their little game (Brian Deer was made well-aware of that). In researching this report, it was very difficult to discover how law firms fund scientists. Client-attorney privilege means the lawyers, by design, are not transparent. They prefer if those working with them (from the scientists to the NGOs) are not forthcoming with the details of their agreements, disclosure of contracts or access to emails. In Brussels, many law firms used client-attorney privilege to justify their exclusion from the Transparency Register.
The multitude of law firms covertly coordinating with each other and their consultants, scientists and activists to create a public outrage worthy of jury pay outs are akin to flotillas of greed that pass in the night. There are too few people bold enough to shine a light on these public perception pirate vessels. Since Brian Deer’s exposé on Wakefield, how many other public fear campaigns designed by and for these Predatorts have gone unnoticed?
Common sense though should wake us up to the reality of big tort money. When scientists fight for funding for hundreds of thousands of dollars, when NGOs fundraise for donations in the hundreds, we should not underestimate their alternatives. How much influence can ethically-challenged individuals from an opportunistic-driven tort industry with millions of dollars to secretly splash around have on a hungry, greedy, passionate group of zealots? The recent class action suit against J&J awarding $4.7 billion dollars to 22 women claiming cancer from talcum powder creates a potential war-chest to develop whatever science and public fear campaign these “magical” Predatorts see fit.
But these lawyers needed a playbook! Buying bent scientists and hungry activist groups was the easy part. How would they turn that small investment into large capital gains?
The Plaintiff Playbook
Suing Big Tobacco has taught the Predatorts many effective strategies for other cancer litigation lines. Over the last decade, they have developed a Plaintiff Playbook that has increased their success rates, leading to lucrative settlements, public outrage to emotionalise jury deliberations and wider public awareness to more easily attract further potential clients and angry jurors.
In 2012, a group of activists, lawyers and academics held a conference in La Jolla, California to consider the next steps in litigation politics. The meeting, organised by anti-industry campaigner, Naomi Oreskes, along with campaigners from the Union for Concerned Scientists and the Climate Accountability Institute, looked at means to take the strategy that succeeded against Big Tobacco and apply it to other industries (in this case, the petroleum industry). The war against tobacco was not won in the public domain, nor via policies or prohibitive taxes or public understanding; tobacco was defeated through the courts (via decades of incessant litigation that hurt the industry’s bottom line and shareholder confidence).
Tobacconisation involves using all means possible to denormalise an industry, create public outrage and then use the courts to sue the corporations involved. The participants in this two day conference (mostly heads of law firms, law professors and legal counsels for large NGOs) concluded the tobacco litigation strategy could also work in shutting down the petroleum industry by creating a causal link in the courts between oil companies and climate change, ie, make Big Oil pay in the same way Big Tobacco did. Since La Jolla, the playbook has been extended to other industries.
The shared outrage of these lawyers and activists gave them the confidence to present their rather ruthless litigation strategy in a 35-page report, meticulously showing how to extract “justice” for the planet while making the law firms a tidy sum. Calling it a “legal strategy workshop”, La Jolla delineates the playbook for how plaintiffs can win against industry.
The key element to the Plaintiff Playbook is to work with both NGOs and the scientific community to ensure the public (potential jurors) are the ones demanding justice. The scientists need to create a clear causal relationship between the perpetrator and the victim (between the oil company and the planet, the pesticide producer and the victim’s cancer …). The NGOs need to relentlessly work on public perception creating a sense of moral outrage against the corporate perpetrator and a fear of the industrial consequences (via activist campaigns, policy change and media manipulation). If both axes in the Plaintiff Playbook (scientists and NGOs) do their job efficiently, no jury in the world would be sympathetic to facts, rationality or justice.
The La Jolla strategists took several interesting lines of attack. They recognised that getting internal documents is key to winning cases (tobacco cases were unwinnable for four decades until internal documents were released in discovery – p 8); the La Jolla group openly admitted that they could not win cases against the tobacco industry on the science, but rather on the morality of the companies:
“In the end, however, the documents proved crucial in helping to shift the focus of litigation away from a battle of the experts over the science of disease causation and toward an investigation of the industry’s conduct.” Page 8.
The whiff of deception created a jury (and public) perception of conspiracy. This strategy was clearly understood with how the law firms and USRTK played the Monsanto Papers. There was no real scientific argument on the link between glyphosate and cancer, but the tort law firms tried to establish that Monsanto had behaved badly and, hence, cannot be trusted. If they cannot be trusted, then anything they say about the science should be called into question. La Jolla recommended expanding the internal document depository at the University of California at San Francisco (which we now see housing the Monsanto Papers).
Every litigator looks at how to sway a jury. The La Jolla workshop looked intensely on how to manipulate public perception to ensure juries would move, inextricably, against industry.
“To what extent would greater public (including judge and jury) acceptance of the causal relationships of climate impacts to fossil fuel production and/or emissions enhance the prospects for success? What types of non-litigation public pressure might enhance their prospects for success?” (p 33)
It is very clear that the use of NGOs, activist gurus and scientists are essential in ensuring litigation success. If you can have the public convinced of a causal relationship, then anyone sitting on a jury will already have a pre-conceived decision in mind.
The key to winning in the courtroom is to win in the court of public opinion.
Putting Pay to La Jolla
Do not underestimate the influence of the 2012 La Jolla workshop. It is not just the rising number of beach-front property owners suing oil companies for losses after a storm. It is actually quite frightening to see how this network of NGOs and law firms then expanded into placing their lawyers as “special investigators” into state district attorney offices, who then conspired to screw industry at the highest levels.
In early 2016, a group of the lawyers and NGOs (see attendee list) who had attended the La Jolla workshop met (ironically) in the Rockefeller Family Fund offices in New York to plan ExxonMobil’s demise by a thousand cuts. Their intended goal was to develop a legal strategy to “delegitimize” ExxonMobil as a political actor, “force officials to disassociate themselves from Exxon”, create “scandal” through lawsuits and get state prosecutors to obtain internal documents from ExxonMobil through judicial discovery.
This New York meeting of law firms and NGOs created a “war room” with a rapid response team to direct coordinated social media and media campaigns, set up activist front groups, coordinate (buy) scientists and develop a wide range of legal weaponry to put ExxonMobil out of business. As a reminder, this is a meeting of tort lawyers strategising on how to sue a company out of existence. The NGOs in the room were merely their pawns … useful idiots with hate in abundance to jump through the Predatorts’ hoops.
Two months before the Rockefeller Family Fund meeting, the New York State District Attorney subpoenaed ExxonMobil for documents that could indict them for racketeering (in attempting to withhold evidence to shareholders that their product was contributing to climate change). One of the speakers in both La Jolla and New York, Matt Pawa, was actively behind the New York District Attorney’s move; his law firm was a pioneer in anti-industry global warming litigation. Since then, similar charges have been made across other districts and states in the US.
It is understood that law firms suing the oil companies for global warming (on behalf of the “people”?) will be receiving around 23% of the settlements … 23% on billions of dollars would plant a lot of trees to reduce climate change (… but I suspect these law firms would buy a few more private jets instead). ExxonMobil is hitting back, deposing all of the participants at the La Jolla conference. In learning how to convert algae into energy, ExxonMobil knows a thing or two about slime.
The Road from La Jolla to San Francisco
The first trial against Monsanto’s Roundup product in San Francisco, awarding Dewayne Johnson $289 million dollars, should not surprise many. The Plaintiff Playbook was executed perfectly. The moral outrage against Monsanto was at its zenith; the public fear about the cancer risks from a minute exposure to glyphosate had become a media obsession; scientists from Lyon to Austin were pumping out uncertainty about the safety of glyphosate while undermining trust in the regulatory risk assessors; NGOs were publishing reports, studies, campaigns and books at a rate that seems inconceivable without significant financial support; and the tort lawyers were the heroes – media darlings standing up to pure evil. Everybody took a bow as the jury was filled with vengeance.
The next section in this serialised chapter on Predatorts will look at the specifics of the Plaintiff Playbook.