Facing asbestos lawsuits, paper giant launched research program

More than 107,000 people die of asbestos-related diseases each year, the World Health Organization estimates. “All types of asbestos cause lung cancer, mesothelioma, cancer of the larynx and ovary, and asbestosis (fibrosis of the lungs),” it warns.

In all, 55 countries — but not the United States — have banned all forms of the mineral.

Big business is still pushing back.

“Unfortunately,” said John Dement, a professor at the Duke University School of Medicine who has studied the lung-ravaging effects of asbestos for 40 years, “litigation-driven research has really corrupted a lot of the science by presenting unbalanced information.”

Tobacco playbook revised

The model for Georgia-Pacific’s plan to lock away the details of scientific studies in its lawyers’ offices had been developed decades earlier by the tobacco industry.

Cigarette manufacturers Brown and Williamson Tobacco Corp. and British American Tobacco Co., among others, were “very concerned about the threat of products liability lawsuits,” researchers wrote in the Journal of the American Medical Association in 1995, and took steps to “avoid the discovery of documents that might be useful to a plaintiff …. These steps included efforts to control the language of scientific discourse on issues related to smoking and health [and] to bring all potentially damaging internal scientific documents under attorney work product and attorney-client privilege.”

The so-called crime-fraud exception to attorney-client privilege played a key role in the $6.6 billion settlement of Minnesota v. Philip Morris et al., in 1998. The case, one of several brought by state attorneys general attempting to recoup public funds spent on smoking-related illnesses, accused the tobacco companies of deceptive marketing and suppression of science. The Minnesota settlement was reached shortly after the judge ordered the defendants to release some 40,000 documents over which they’d claimed privilege.

In April 2005, Georgia-Pacific, which would be acquired by Koch Industries for $21 billion later that year, hired John Childs as its chief litigation counsel. Childs had been in private practice in Chicago and Minneapolis and decided to “repot” himself in Atlanta, he told the publication Corporate Counsel in 2008. “My role,” Childs said, “was to develop and design an in-house defense to the asbestos litigation.”

On Aug. 22, 2005, Childs sent a letter to Stewart Holm, then Georgia-Pacific’s director of toxicology and chemical management, who had been with the company since 1992. The letter confirmed that Holm had been “specially employed … to perform expert consulting services in connection with pending and anticipated litigation concerning alleged exposure to asbestos.”

Holm’s duties, Childs explained, would be “separate and distinct from your duties as a regular employee of GP, and your work will be directed solely by GP’s in-house counsel.” Holm was to mark all his notes, memoranda and reports “PRIVILEGED AND CONFIDENTIAL—PREPARED AT DIRECTION OF COUNSEL IN ANTICIPATION OF LITIGATION.”

In a court filing, Georgia-Pacific said there was nothing improper about the arrangement. “It is simply sound practice to insure that an in-house consulting expert is aware of the protections available under the law and his duty to maintain the confidentiality of litigation-related work,” the company said.

Holm, who’d done no previous work on asbestos, set about designing a research strategy. He began by reviewing the medical literature. “I found virtually no material whatsoever on worker exposure to joint compound resulting in disease,” he testified in a 2011 deposition.

Now chief scientist for the American Forest & Paper Association, Holm declined an interview request, as did Childs.

At Childs’s behest, Holm conceived a plan that required outside help to implement.

In January 2006, Georgia-Pacific contracted with David Bernstein, an American-born toxicologist based in Switzerland, to oversee animal tests. It also hired the consulting firms Exponent and Environ to gauge the accuracy of decades-old studies, like those done by Mt. Sinai, showing high fiber counts associated with the sanding and sweeping of joint compound.

The consultants were known for their litigation defense work. Exponent and Environ — paid $3.3 million and $1.5 million, respectively, by Georgia-Pacific — specialized in exposure reconstruction in product-liability lawsuits. Exponent scientists, for example, had been retained by automakers in litigation with mesothelioma victims who claimed they’d gotten sick after being exposed to asbestos during brake work. The scientists’ position: grinding or otherwise tinkering with brakes couldn’t produce enough fiber-laden dust to cause disease.

Bernstein, who declined to comment for this article, had directed asbestos inhalation experiments on rats for Union Carbide and a Brazilian mining company. The tests, he reported, had shown that fibers found in chrysotile, the only type of asbestos sold in recent years, were cleared quickly by the rats’ lungs and therefore unlikely to cause cancer.

Bernstein, who had been a tobacco industry consultant before turning to asbestos, discussed his “biopersistence” theory in a 2007 trial. There are two families of asbestos, he explained: chrysotile and amphiboles. Under the microscope, chrysotile fibers look like flimsy, rolled sheets of paper; amphibole fibers like solid rods. “The work I’ve done shows that [chrysotile] rapidly disintegrates in the lung, goes away, whereas the amphibole fibers persist and stay and cause disease,” Bernstein said.

His findings have been welcomed not only by asbestos defendants, including Georgia-Pacific, but also by producers seeking to maintain or expand sales in developing countries, as the Center for Public Integrity reported in 2010.

By 2007, the Georgia-Pacific research program, approved by Childs, was in full swing. The first step was to try to re-create both wet and dry asbestos-containing joint compound since, Holm said in his deposition, no usable amounts of actual product could be located.

The re-created compound was applied to wallboard, allowed to dry and then sanded. The dust was shipped to a laboratory near Geneva, where Bernstein supervised a series of rat experiments. Lab workers wore “moon suits” to protect themselves from asbestos fibers.

In a pilot study, the rats were divided into three groups of 14 and confined in tubes for five days, six hours a day. The control group breathed filtered air. The second group breathed chrysotile fibers, the third a mixture of chrysotile and aerosolized joint compound particles.

The rats were killed after exposure and their lungs and pleural tissue were examined. The “chrysotile exposed lungs had the same appearance as the filtered-air controls,” Bernstein and his co-investigators reported. No obvious lung damage, in Bernstein’s view, translated to little or no cancer risk.

In a later experiment, one group of rats inhaled re-created Ready-Mix containing chrysotile. Another group inhaled amosite asbestos, part of the amphibole family. The rats exposed to chrysotile showed “no pathology in either the lung or the pleural cavity,” Holm testified in his deposition. Those that breathed amosite showed “both inflammation as well as fibrosis in the lung, and showed inflammation also in the pleura.”

In field and chamber studies, Exponent and Environ researchers tried to determine if intense worker dust exposures reported in the 1970s had been overstated.

Exponent scientists prepared and analyzed airborne samples of re-created joint compound using what they described as more modern methods than were available decades ago. Samples prepared with the older technique yielded fiber counts “significantly greater” than those prepared with the newer one, they reported.

The implication: conditions for drywall workers in the 1970s may not have been as dire as the Mt. Sinai team indicated. An Exponent vice president, Angela Meyer, declined to comment on the firm’s work for Georgia-Pacific.

Environ was hired to develop and validate models predicting breathing-zone concentrations of dust, Fred Boelter, a Chicago-based principal with the firm, said in a telephone interview. Such exposure estimates couldn’t be made from data found in the 1970s-era literature and constituted an “important, missing piece of the puzzle,” he said.

Environ’s work “helped address questions about where the exposures occurred historically so we can answer questions today about disease or claimed injury,” Boelter said, adding that “I don’t really care whether I’m working for one side or the other” in litigation.

Asked whether Environ had been chosen to generate pre-determined results and infuse them into the scientific literature, Boelter said: “I can tell you that motivation would fall on deaf ears in my case and was not the motivation that influenced what we sought to publish. Nobody had ever done what we had done, and that filled a gap within the literature.”

The goal, he said, is to protect workers from hazards. “Bad science does not protect anybody,” he said.

Company research into scientific journals

The Georgia-Pacific consultants began publishing their findings in peer-reviewed journals in 2008. Jerry Kristal, a lawyer with New York-based plaintiff’s firm Weitz & Luxenberg, noticed that Holm, the Georgia-Pacific toxicologist, was listed as a co-author on the first paper, in Inhalation Toxicology.

Kristal, who’d been trying asbestos cases since 1987, already knew of Bernstein’s animal experiments on chrysotile, which had yielded good results for industry. Kristal served notice on Georgia-Pacific to depose Holm and produce documents underlying the joint compound studies.

The Holm deposition took place in Atlanta over three days in June 2011. Here, details of the secret research program were revealed.

Under Kristal’s questioning, Holm acknowledged that the preferred method of testing fibers for carcinogenicity in humans is a two-year animal inhalation study — not a five-day study of the sort overseen by Bernstein in Switzerland. Although the two-year test was endorsed by an expert government panel — of which Bernstein was a member — in the mid-1990s, Bernstein decided with the company’s blessing that the five-day test would be “predictive of causing disease,” Holm said.

He declined, on advice of his lawyer, to say why the longer study wasn’t done.

Holm and Kristal debated whether proper disclosure had been made in the journal articles. The first paper on Bernstein’s animal work, for example, said the research had been “sponsored by a grant” from Georgia-Pacific. In fact, Holm admitted, Bernstein was under contract with the company — initially for 350 and later for 400 Swiss francs an hour — and ultimately was paid the equivalent of $850,000.

There was no indication in the first paper and the three that followed, moreover, that Bernstein had testified as an expert witness for Georgia-Pacific in 2007. This led to a clarification, submitted by Holm to Inhalation Toxicology in October 2011, and a public apology from the journal’s publisher. Holm’s clarification stated that the studies described in the articles had been commissioned by the company in response to joint compound litigation.

One of Bernstein’s papers, Kristal learned, was twice rejected by the journal Toxicological Sciences. A reviewer wrote, “The report will be helpful for those wanting to use or sell the commercial product (if such people still exist); otherwise, there is little new information provided by the paper.”

Outside the legal arena, scientists were picking away at Bernstein’s biopersistence theory, which holds that chrysotile fibers are removed so quickly from the lungs that they can’t cause cancer.

David Egilman, editor-in-chief of the International Journal of Occupational and Environmental Health and a consultant for asbestos plaintiffs, wrote in 2011 that “the key question is not how long the fibers remain in the target organ, but rather, do the fibers persist long enough to induce the disease (e.g., induction of mutations when cancer is the outcome of interest)? The answer to this question is clearly yes.”

In an interview, Dement, of Duke, said it’s wrong to assume that cancer must be presaged by fibrosis, or scarring, of the lung, which Bernstein said he hadn’t found in the rats. It’s possible that chrysotile is less potent than amphiboles for production of mesothelioma, as Bernstein contends, but this doesn’t mean chrysotile is safe, said Dement, who has testified for plaintiffs in asbestos cases. There doesn’t appear to be any meaningful difference between the two in terms of causing lung cancer, he said.

In the late 1980s and early 1990s, while performing animal inhalation tests on man-made fibers for the North American Insulation Manufacturers Association, Bernstein and other investigators needed a “positive control” — a substance likely to produce harmful effects.

Their choice: chrysotile, which, according to a 1993 paper, triggered pulmonary fibrosis in the rats as well as mesothelioma and “significant increases in lung tumors.”

Nonetheless, Bernstein maintains today that white asbestos is all but harmless if used under controlled conditions. After the Georgia-Pacific project, he was paid about $200,000 by the International Chrysotile Association, a trade group for asbestos producers, to revisit the issue, the group’s treasurer testified in a 2013 deposition.

His conclusion, which the association shared with skeptical health authorities, was published in Critical Reviews in Toxicology in January. While “heavy and prolonged exposure to chrysotile can produce lung cancer,” Bernstein and his co-authors wrote, “low exposures … do not present a detectable risk to health.”

Legal push to unveil secret research

The discovery battle stemming from the Georgia-Pacific research program began in April 2011, when plaintiff’s lawyer Kristal sought a broad range of documents in connection with the upcoming Stewart Holm deposition. Georgia-Pacific produced some but withheld others, claiming they were privileged. Kristal pressed to get everything.

The matter went before Special Master Laraine Pacheco, who handled discovery disputes and pretrial settlement conferences in the New York City asbestos litigation. On June 15, 2011, Pacheco recommended that the trial judge, Sherry Klein Heitler, hold an in camera review of internal communications and raw data underlying studies identified on a “privilege log” by Georgia-Pacific.

The company moved to vacate the recommendation. Heitler denied the motion.

“Georgia-Pacific cannot use its experts’ conclusions as a sword while at the same time attempting to shield the public from information which affects the veracity of its experts’ conclusions,” the judge wrote in her decision on Dec. 7, 2011.

Heitler noted that a Georgia-Pacific lawyer, Mary McLemore, had offered input on some, and possibly all, of the 13 published articles. “The court is concerned that Georgia-Pacific’s attorney would be involved in any discussions concerning the content of these purportedly objective scientific studies by Georgia-Pacific’s consulting experts,” she wrote.

Georgia-Pacific continued to resist. In a brief filed with the appeals court on Nov. 8, 2012, it called Kristal’s fraud allegations “baseless” and accused him of embarking on a “boundless fishing expedition.

“There is no rule anywhere that would preclude a lawyer from reviewing, commenting on, or discussing the research of her scientific consultants,” outside lawyers for Georgia-Pacific wrote. “Nor is there anything untoward about the fact that such research was eventually published in the scientific literature. … Publication in the scientific literature subjects work-product studies to the scrutiny of the independent scientific community, a process helpful to judges, juries, and the search for scientific truth.”

Writing for the plaintiffs on Dec. 10, Weitz & Luxenberg lawyer Alani Golanski alleged that Georgia-Pacific had attempted to “seed” the literature with papers spawned by “methodologically skewed, litigation-driven research.”

The company hired a “small army of pre-screened defense consultants,” whose disclosures in their publications failed to note the major roles “special employee” Holm and lawyer McLemore had played in the shaping of the studies, Golanski wrote. Bernstein’s characterization of his hourly contract as a “grant,” he wrote, was intended to “perpetuate a fraud upon the public.”

On June 6 of this year, the appeals court sided with Heitler in a 5-0 decision. Despite Holm’s and McLemore’s “extensive participation” in their development, “none of the [published] articles disclosed that [Georgia-Pacific’s] in-house counsel had reviewed the manuscripts before they were submitted for publication,” the court found. “Two articles falsely stated that ‘[Georgia-Pacific] did not participate in the design of the study, analysis of the data, or preparation of the manuscript.’ ”

Holm’s clarification to Inhalation Toxicology in October 2011 “failed to acknowledge its in-house counsel’s participation and did not make clear” that Bernstein had testified as an expert witness for Georgia-Pacific prior to publication of his first joint compound paper in 2008, the court said. “The foregoing constitutes a sufficient factual basis for a finding that the relevant communications could have been in furtherance of a fraud.”

Jonathan Ruckdeschel, a lawyer from Ellicott City, Md., who has sued Georgia-Pacific in Maryland and Florida on behalf of asbestos victims, called the court’s ruling “incredibly rare. In my 16 years of practicing law, I have never seen a court enter an order like this.”

The decision prompted an editorial this month in the Annals of Occupational Hygiene, which published two of the Exponent papers funded by Georgia-Pacific. “While these revelations do not in any way prove that the data used in the two Annals papers were fraudulent or that the authors’ conclusions were not legitimately based on the data, they do challenge the principles of free and open scientific inquiry,” chief editor Noah Seixas wrote, noting that the journal was reviewing its conflict-of-interest policies for authors.

Thus far, Georgia-Pacific hasn’t used any of the 13 published articles in the New York asbestos litigation, nor has it asked any of the authors to testify about them.

The extent of the company’s asbestos liabilities no longer can be found in Securities and Exchange Commission filings; Georgia-Pacific was taken private after being acquired by Koch Industries almost eight years ago. Spokesman Guest declined to say how many cases are pending.

Ultimately, Georgia-Pacific may be forced to share everything with the New York plaintiffs. Should that happen, its effort to “deny the undeniable,” as Ruckdeschel put it, could come into sharper focus.

The appeals court “ordered that the rock be lifted up,” he said, “so we can see the true extent of the manipulation of science.”