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    Post: Wall Street Journal "False Witness"

    Posted by Sharon Kramer on 12/03/06


    "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"

    Wall Street Journal
    False Witness
    By LESTER BRICKMAN
    December 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....

    Independent medical doctors find that upwards of 90% of the
    findings of disease are in error. The doctors refuse to
    produce subpoenaed records of all of their X-ray readings
    or diagnoses done for the lawyers because that could
    be "smoking gun" evidence of fraud....

    Substantially the same fraudulent practices have been used
    in other mass tort litigations. "Fen-phen" is one example...

    A prominent Duke cardiologist and a panel of medical
    experts reviewed 968 sets of echocardiograms that had
    passed an audit procedure instituted when it became
    apparent that thousands of bogus claims were being paid
    millions of dollars....

    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...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."...


    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.....

    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.


    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 exposureis
    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 Phillip Morris] 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.

    "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 Benjamin 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



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