VISTA, CA Bruce J. Kelman, (Kelman) and Veritiox, Inc., formerly, GlobalTox, Inc. (GlobalTox) vs. Sharon Kramer, (Kramer) and Doe’s 1 through 20, inclusive. Case # GIN 044539. Filed in the Superior Court of the State of California for the County of San Diego, May 16, 2005. Served on June 8, 2005 as is required by California Code of Civil Procedures, 425.16, registered by the defendant with the Judicial Council of the State of California as a SLAPP suit 5.
Kelman and GlobalTox allege Kramer made a libelous accusation of perjury when she wrote in a press release that Kelman ‘altered his under oath statements’. Kramer states Kelman did in fact, ‘alter his under oath statements’. The words ‘altering’ and ‘perjury’ are not synonymous. Kramer contends Kelman is simply attempting to vex and annoy for the purpose of hiding from the public, what she knows about Kelman’s and GlobalTox’s business practices. And what she knows about a paper Kelman authored, which is the Position Statement of illnesses caused by mold in an indoor environment, of the national medical policy-writing body, the American College of Occupational and Environmental Medicine (ACOEM).
Guest Commentary by Sharon Kramer, Slapped Mold Advocate
I have been falsely accused of libel by toxicologist, Bruce Kelman and the environmental risk management company of which he is a principal, GlobalTox. In the following pages, you can read the actual press release, Kelman’s under oath altered testimony, emails of ACOEM members and what GlobalTox would prefer not be known about how the ACOEM Mold Statement, came to be.
I am of the opinion that Dr. Kelman was not aware when he filed this SLAPP Suit that I have in my possession the correspondences of the ACOEM Board of Directors (BOD), ACOEM Members and GlobalTox principals from the time the ACOEM Mold Statement was being drafted in the year of 2002.
This lawsuit by Kelman and GlobalTox is a shameful attempt to intimidate myself and others. It is intended to silence us from sharing with the public, the following information:
The American College of Occupational and Environmental Medicine (ACOEM) is a paid fraternal organization comprised largely of physicians who evaluate injured workers and others on behalf of Worker’s Comp and other insurance claims issues. They, as a group, are extremely influential in determining how accepted medical practices are carried out here in the United States and in Canada.
In February of 2002, the ACOEM brought into their organization, principals of GlobalTox, Inc., for the sole purpose of writing a paper to serve as the organization’s medical understanding of illnesses caused by mold exposure in an indoor environment. After reading various emails among ACOEM members from the time when the ACOEM Mold Statement was being drafted, is my firm opinion that this maneuver was done with the specific goal of limiting the financial liability of corporations that insure others who have managed to expose innocent people to an environmental risk. These entities have strong financial ties to the ACOEM and many of it’s members.
GlobalTox is a well established and well known environmental financial risk management corporation. This company has had extreme influence into how the issue of mold is handled in this country and in Canada from a variety of different aspects. They are also well connected. One of the GlobalTox’s principals and co-author of the ACOEM Mold Statement, Bryan Hardin, is a retired Assistant Surgeon General with NIOSH/CDC. In February of 2002, Hardin, a PhD, was provided a free membership to the ACOEM as a pre-thank you for writing the ACOEM Mold Statement. It appears that the ACOEM was only physician members and that they opened their membership to PhD’s at the initiation of Hardin’s membership.
There is a third author of the ACOEM Mold Statement, Andrew Saxon. Saxon is an allergist/immunologist who also performs an extensive amount of defense expert witness testimony denying mold illnesses from an indoor environment. As well as we can ascertain, Saxon was never a member of the ACOEM, an organization that has 6000 physician members. This raises the question of why Saxon was chosen to author the ACOEM Statement as opposed to one of the physician members of the organization. What was his special talent that 6000 other physicians did not possess?
In October of 2002, a position statement (ACOEM Statement) was accepted by the ACOEM regarding illnesses caused by mold in an indoor environment. The ACOEM Statement implies it is not possible that the illnesses being reported by thousands could be caused by mold exposure in an indoor environment.
It is important to understand, this position statement by a nationally influential medical policy-writing body is founded on one single study that exposed rats to a single, high dose of mold for less than a minute’s time. This is the entire scientific premise foundation that is used to propagate the falsehood that people are not becoming ill from mold in their homes, schools or offices. The ACOEM Mold Statement was written by nationally known defense experts, whose client roster is composed largely of chemical, pharmaceutical and insurance corporations. It was then forced through an improperly biased and bypassed peer review process by the inner circle of the ACOEM. The GlobalTox principals themselves, had final edit over the ACOEM Mold Statement.
In 2003, this unscientifically founded paper was then paid for by the political think-tank, the Manhattan Institute (MI), to be made even more inflammatory (Manhattan Institute Version). It was then widely propagated with the assistance of the US Chamber of Commerce to Stakeholder industries such as the real estate, mortgage and building industries. It blatantly appears that the insidious intent of this deceptive marketing campaign was to stifle medical understanding by discrediting the sick, for purposes of winning lawsuits and limiting insurance claims of those families, office workers, teachers and children who had been made ill from mold.
It should be noted that the Manhattan Institute is now saying rat studies should not be conclusively used to establish absence or existence of human illnesses. The MI is now addressing rodent studies from the standpoint that many chemicals in our world cannot be determined as cancer causing based solely on reactions in rats.
Besides insurance industry stakeholders, the MI works closely with the chemical industry stakeholders who are disadvantaged by the scientific findings of rodent studies. The Manhattan Institute seems to be caught talking out both sides of their mouths.
What you are about to read, primarily in their own words and taken from trial testimonies, emails and public websites; is just the tip of the iceberg of what I and many others know about the lies behind the ‘Toxic Mold Issue’.
WHAT THEY DO NOT WANT THE PUBLIC TO KNOW
The preeminent document used to defeat mold victims in court and to stifle medical understanding is nothing more a sham. It is the core of an elaborate and injuriousMARKETING CAMPAIGN SPECIFICALLY DESIGNED TO DECEIVE THE AMERICAN PUBLIC
The American College of Occupational and Environmental Medicine, (ACOEM) ADVERSE HUMAN HEALTH EFFECTS FROM MOLD IN AN INDOOR ENVIRONMENT, Evidence Based Statement is: A document of SCANT SCIENTIFIC FOUNDATION.
- Authored by EXPERT DEFENSE WITNESSES.
- Legitimized by the INNER CIRCLE OF AN INFLUENTIAL MEDICAL ASSOCIATION, whose members often times EVALUATE MOLD VICTIMS ON BEHALF OF INSURERS AND EMPLOYERS.
- And promoted by STAKEHOLDER INDUSTRIES for the purpose of FINANCIAL GAIN AT THE EXPENSE OF THE LIVES OF OTHERS.
THE FALSE ACCUSATION OF LIBEL
This type of lawsuit is called a SLAPP suit, (STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION). This particular SLAPP suit is not accomplishing it?s intended goal.
The SLAPP suit stems from a press release I authored in regard to a mold/construction defect case in Oregon – Haynes vs. Adair Homes, Inc. The jury found that toxic mold had caused neurological and cognitive dysfunction in the Haynes mother and two small children.
The allegedly libelous accusation of perjury within the press release in regard to Kelman, is “ALTERED HIS UNDER OATH STATEMENTS”. READ THE PRESS RELEASE, KELMAN?S UNDER OATH TESTIMONY AND MY COMMENT ON THE MATTER. It is the SENTENCES THAT FOLLOW THE ALLEGEDLY LIBELOUS PHRASE KELMAN AND GLOBALTOX WANT KEPT HIDDEN FROM PUBLIC KNOWLEDGE.
THE PRESS RELEASE
Jury Finds “Toxic Mold” Harmed Oregon Family
“The jury also found Adair’s negligence caused illness in Mrs. Haynes and the couple’s two small children – Michael, 6, and Liam, 4. …
. . . Dr. Bruce Kelman of GlobalTox,Inc, a Washington based environmental risk management company, testified as an expert witness for the defense, as he does in mold cases throughout the country. Upon viewing documents presented by the Haynes’s attorney of Kelman’s prior testimony from a case in Arizona, Dr. Kelman altered his under oath statements on the witness stand. He admitted the Manhattan Institute, a national political think-tank, paid GlobalTox $40,000 to write a position paper regarding the health effects from mold. Although much medical research finds otherwise, the controversial piece claims that it is not plausible the types of illnesses experienced by the Haynes family and reported by thousands from across the US, could be caused by “TOXIC MOLD? exposure in homes, schools or office buildings.
In 2003, with the involvement of the US Chamber of Commerce and ex-developer, US Congressman Gary Miller (R-CA), the GlobalTox paper was disseminated to the Real Estate, Mortgage and Building Industries’ Associations. A version of the Manhattan Institute commissioned piece may also be found as a position statement on the website of a United States medical policy-writing body, the AMERICAN COLLEGE OF OCCUPATIONAL AND ENVIRONMENTAL MEDICINE.
TESTIMONY IN QUESTION, BRUCE J. KELMAN
February 18, 2005, Haynes vs. Adair Homes, Inc. Case No. CCO211573, In the Court of the State of Oregon. Beginning on page 53 to the end of Kelman’s testimony:
Questioning by Mr. Vance (V), the Haynes family attorney of Dr. Kelman (K);
(For clarification purposes, Mr. Keckle is the attorney for the defendant, Adair Homes, Inc. The Kilian case is a mold case from Arizona where Kelman and Saxon both were experts for the defendants, June 22, 2004, Kari Kilian vs. Equity Residential Trust, Case No. CIV 02-1272-PHX-FJM, US District Court, District of Arizona).
MR. VANCE: And, you’re actually one of the owners of GlobalTox, aren’t you?
BRUCE J KELMAN: One’s normally an owner of a practice, yes.
V: Yes. GlobalTox is an international corporation, isn’t that true?
K: We have offices in the US and in Canada, and we work across the US.
V: Okay. Do you have any offices?
K: I mean, I’m sorry, across the world.
V: You have offices in Europe?
K: No. We do not.
V: Okay. Now, this revision of the Colleges of Occupation and Environmental Medicines state?
K: WHAT REVISION?
V: The revision–you said that you were instrumental in writing the statement, and when later on you said you and a COUPLE OF OTHER COLLEAGUES WROTE A REVISION OF THAT STATEMENT, ISN’T THAT TRUE?
K: NO, I DID NOT SAY THAT.
K: To help you out I said there were revisions of the position statement that went on AFTER WE HAD TURNED IN THE FIRST DRAFT.
V: AND YOU PARTICIPATED IN THESE REVISIONS?
K: WELL, OF COURSE, AS ONE OF THE AUTHORS.
V: All right. And, isn’t it true that the Manhattan Institute paid GlobalTox $40,000 to make revisions in that statement?
K: THAT IS ONE OF THE MOST RIDICULOUS STATEMENTS I HAVE EVER HEARD.
V: Well, you admitted to it in the Killian deposition, sir.
K: No. I did not.
V: Your Honor, may I approach. Would you read into the record, please, the highlighted parts of pages 905 and 906 of the trial transcript in that case.
MR. KECKLE: Your Honor, I would ask that Dr. Kelman be provided the rest of the transcript under the rule of completeness. He’s only been given two pages.
JUDGE VANDYK: Do you have a copy of the transcript?
KECKLE: I do not.
V: Your Honor, I learned about Dr. Kelman just a…
JUDGE: How many pages do you have?
V: I have the entire transcript from pages ?
JUDGE: All right. Hand him the transcript.
V: –I’d be happy to give it to him, Your Honor.
JUDGE: All right.
V: Would you read into the record the highlighted portions of that transcript, sir?
K: “And, that new version that you did for the Manhattan Institute, your company, GlobalTox got paid $40,000. Correct. ‘YES, THE COMPANY WAS PAID $40,000 FOR IT.?
V: Thank you. So, you participated in WRITING the study, your company was PAID very handsomely for it, and then you go out and you TESTIFY around the country LEGITIMIZING the study that you wrote. ISN?T THAT A CONFLICT OF INTEREST, SIR?
K: Sir, that is a COMPLETE LIE.
V: Well, you?re vouching for your own self (inaudible). You write a study and you say, “And, it’s an accurate study.”
K: WE WERE NOT PAID FOR THAT. In fact, the sequence was in February of 2002, Dr. Brian Harden, and (inaudible) surgeon general that works with me, was asked by American College of Occupational and Environmental Medicine to DRAFT a position statement for consideration by the college. He contacted Dr. Andrew Saxton, who is the head of immunology at UC–clinical immunology at UCLA and myself, because he felt he couldn’t do that by himself. The position statement was published on the web in October of 2002. In April of 2003 I was contacted by the Manhattan Institute and asked to write a LAY VERSION of what the had said in the ACOEM paper–I’m sorry, the American College of Occupational and Environmental Medicine position statement. When I was initially contacted I said, “NO.” For the amount of effort it takes to WRITE A PAPER I can do another scientific publication. They then came back a few weeks later and said, “If we compensate you for your time, will you write the paper?” And, at that point, I said, “YES, as a group.” The published version of the ACOEM paper came out in the Journal of Environmental and Occupational Medicine in May. And, then sometime after that, I think it was in July, this LAY TRANSLATION came out. THEY?RE TWO DIFFERENT PAPERS, two different activities. The–we would have never been contacted to do a translation of a DOCUMENT THAT HAD ALREADY BEEN PREPARED, IF IT HADN’T ALREADY BEEN PREPARED.
V: Well, your testimony just a second ago that you read into the records, you stated in that other case, you said, “Yes. GlobalTox was paid $40,000 by the Manhattan Institute to write a new version of the ACOEM paper.” Isn’t that true, sir?
K: I just said, we were asked to do a lay translation, cuz the ACOEM paper is meant for physicians, and it was not accessible to the general public.
V: I have no further questions for him.
JUDGE: All right. Mr. Keckle, can you forgo any redirect with this witness and he can be excused?
Mr. KECKLE: I can, Your Honor.
JUDGE: I’M SURE HE’S GONNA APPRECIATE THAT. All right. Thank you, Dr. Kelman.
(END OF DR. KELMAN’S TESTIMONY)
MY DECLARATION EMAILS OF ACOEM MEMBERS
Within the prior sentences, Kelman testified “We were not paid for that”, not clarifying which version he was discussing. There was no question asked of him at that time. He went on to say GlobalTox was paid for the ‘lay translation’ of the ACOEM Statement. He then ALTERED to say “They’re two different papers, two different activities.” He then FLIPPED BACK by saying, “We would have never been contacted to do a translation of a document that had already been prepared, if it hadn’t already been prepared.” By this statement he verified they were NOT TWO DIFFERENT PAPERS, MERELY TWO VERSIONS OF SAME PAPER. AND THAT IS WHAT THIS LAWSUIT IS REALLY ALL ABOUT.
The rambling attempted explanation of the two papers’ relationship coupled with the filing of this lawsuit intended to silence me, have merely spotlighted Kelman’s strong desire to have the ACOEM Statement and the Manhattan Institute Version portrayed as two separate works by esteemed scientists.
In reality, they are authored by Kelman and Hardin, the principals of a corporation called GlobalTox, Inc. – a corporation that generates much income denouncing the illnesses of families, office workers, teachers and children with the purpose of limiting the financial liability of others. ONE PAPER IS AN EDIT OF THE OTHER AND BOTH ARE USED TOGETHER TO PROPAGATE BIASED THOUGHT BASED ON A SCANT SCIENTIFIC FOUNDATION.
In the Haynes case, when questioned about the ACOEM peer review process by the attorney for Adair Homes and prior to Vance’s questioning, Kelman described the ACOEM peer review process by stating, “We.., the American College of Occupational and Environmental Medicine has divided effects into three areas, and this is in their positions statement. And, I THINK IT’S IMPORTANT TO UNDERSTAND THE PHYSICIAN STATEMENT, ALTHOUGH I SAID I WAS ONE OF THE AUTHORS I ONLY BEGAN THE PROCESS .”
“So, I and two other authors were asked to put the report, the statement, together, but then went to a committee of scientific affairs. This committee on scientific affairs has twenty some physicians in it, they review it, they sent it out to many more physicians, went to the board of directors, they reviewed it. I WAS TOLD BY THE HEAD OF THAT COMMITTEE THAT SOMEWHERE IN THE ORDER OF ONE HUNDRED VERY CRITICAL PHYSICIANS REVIEWED THAT PAPER. So, by the time it gets to the end of the process, the COLLEGE ADOPTS IT AS THEIR POSITION STATEMENT.”
In his Kilian trial testimony, Kelman describes the peer review process of the ACOEM Statement by saying “For the American College of Occupational and Environmental Medicine, I’ve been told that MORE THAN 100 PHYSICIANS looked at this, and MOST OF THEM CRITICALLY REVIEWED IT. Then at that point it goes back to the Council on Scientific Affairs, and I BELIEVE THE PROCESS THEN IS THAT THE COUNCIL RECOMMENDS to college council that – or the directors of the college of medicine that the statement be accepted. So at that point it’s been extensively reviewed and although it has been written by someone, it?s then the position of the College of Medicine.” IN FACT, THIS IS PROBABLY THE MOST EXTENSIVE REVIEWED PEER REVIEW PUBLICATION I HAVE EVER DONE.
An email was sent from GlobalTox principal and co-author of the ACOEM Statement, Bryan Hardin to Jonathan Borak, CHAIR OF THE COMMITTEE ON SCIENTIFIC AFFAIRS for the ACOEM, dated April 22, 2003. This is SIX MONTH AFTER the ACOEM Statement was officially accepted by the ACOEM-BOD. Kelman’s coauthor and coworker asked Borak, “Can you give an idea HOW MANY PEOPLE WERE INVOLVED IN THE REVIEWS?”
Borak’s response to Hardin was “I DO NOT KNOW how many because I do not know how many reviewed the MS” (mold statement), “and agreed, but did not respond. Also, I have not maintained any of the files or emails. It was CERTAINLY MORE THAN A DOZEN: there is more than that on the Board alone.”
There is an email authored by Dr. Jonathan Borak, CHAIR OF THE COUNCIL OF SCIENTIFIC AFFAIRS of the ACOEM and dated June 26, 2002. This email, along with numerous others, is demonstrative of much of the politics and biased peer review that went into the acceptance of the ACOEM, ‘Evidence Based’ Statement regarding illnesses caused by mold exposure. Borak quoted one doctor in this email as saying “Strongly agree with the need to change tone and would start at the first paragraph, which READS LIKE A DEFENSE REPORT FOR LITIGATION.”
An email was sent by on June 14, 2002, stating “The Hardin el al paper looks reasonable to me; with the noted planned edits” the document should be acceptable. Regards, Paul J. Brownson, M.D. THE DOW CHEMICAL COMPANY”
In an email authored by Marianne Dreger, DIRECTOR OF COMMUNICATIONS for the ACOEM and also dated June 14, 2002, Dreger states, “Modification of the ‘tone’ in the discussion of ‘generalized mold sensitivity’ on page 3 because of the concern about possible misinterpretation of ‘buzz words’ and phrases such as ‘belief system’, adherents may claim, ‘supposed hypersensitivity’, and ‘alleged disorder’. PLEASE NOTE, ONLY THE TONE, NOT THE CONTENT WILL BE MODIFIED.
As demonstrated in a response email authored by Borak, he state, “Please do not cite or refer to this document until after the Board of Directors has the opportunity to vote 10/27. As you appreciate, this is as CONTROVERISIAL AND LITIGIOUS SUBJECT as any in our field. It would be a potential embarrassment and pain to both the College and the authors if it were cited before completion and adoption.”
Borak was replying to an email authored by Douglas Swift and sent on October 4, 2002. Swift’s email is INDICATIVE OF WHY many of members of the ACOEM were quite anxious for the acceptance of the Mold Statement by the ACOEM Board of Directors. In his email, Swift asked the question of Borak, “I’M GIVING A TALK TO A GROUP OF INSURANCE CLIENTS. IS IT QUOTABLE AND IF SO, HOW SHOULD I REFERENCE IT”
In the Haynes case, Kelman describes a peer review process as, “..Peer review means that the person who reviewed the article has no relationship to the person who wrote it. The person who wrote it doesn’t know review means that the person who reviewed the article has no relationship to the person who wrote it. The person who wrote it doesn’t know whose doing the reviewing. THAT’S REALLY IMPORTANT, because otherwise the reviewers don’t feel free to severely criticize the article. I mean, I’m not gonna criticize my friend’s article, particularly if I know that he knows that I review it…”
Within the ACOEM Statement’s background information is an ILLUMINATING EMAIL authored by BORAK. This email is demonstrative of the clearly understood detrimental ramifications the ACOEM’s acceptance of the GlobalTox Mold Statement would impose on those suffering from serious mold illnesses. It also demonstrates the unethical biases on the part of those who are influential in determining health care practices here in the US and in Canada. The email was dated, September 6, 2002. The recipients were DEAN GROVE, Past President of the ACOEM, BARRY EISENBERG, Executive Director, ACOEM, TIM KEY, Past President of the ACOEM and EDWARD BERNACKI, Past President of the ACOEM. MARIANNE DREGER is the Communications Director of the ACOEM.
In the above referenced email, Borak stated, “I have received several sets of comments that find the current version, much revised, to STILL BE A DEFENSE ARGUMENT. On the other hand, BRYAN HARDIN and his COLLEAGUES are NOT WILLING TO FURTHER DILUTE THE PAPER.” He goes on to say, “I do not want this to go to the BOD and then be rejected. That would be an IMPORTANT VIOLATION OF BRYAN – I have assured him that if we do not use it he can freely make whatever other use he might want to make.” Borak wrote, “If we ‘OFFICIALLY’ REJECT IT, then we turn his EFFORTS INTO GARBAGE.”
This email demonstrates that it was understood by those in the inner circle of decision makers of the ACOEM that the conclusion to “not officially reject” an admittedly biased defense paper would have future value to the principals of GlobalTox by PROVIDING LEGITIMACY to their defense argument. Borak’s above referenced sentences illustrate this future value for the principals of GlobalTox was given consideration in the PURPORTED ‘UNBIASED’ decision to accept the document as the ACOEM Statement.
By referencing the ACOEM Statement as a ‘DEFENSE ARGUMENT’, with BIASED CONSIDERATION being given to it?s KNOWN EXPERT DEFENSE WITNESS AUTHORS, indicates that the INNER CIRCLE OF THE ACOEM WAS WELL AWARE THAT THE FUTURE VALUE OF LEGITIMIZING THIS WORK WOULD BE IT’S USE IN THE COURTS TO WIN LAWSUITS AGAINST FAMILIES, OFFICE WORKERS, TEACHERS AND CHILDREN WHO HAVE BEEN MAKE PHYSICALLY ILL AFTER AND EXCESSIVE EXPOSURE TO MOLD.
THE PURPOSES BEHIND THE SLAPP SUIT
- To intimidate me and others from speaking out. Others are threateningly referenced in this case as defendants, John Does 1-20.
- To hide from the public the true relationship between the courtrooms; GlobalTox; the US Chamber of Commerce Stakeholder affiliates; ex-developer, Congressman Gary Miller; the ACOEM Statement and the Manhattan Institute Version.
- To continue to deceive the Courts by masquerading a widely marketed defense argument as a scientific position -unbiased, extensively peer reviewed and fully endorsed by a nationally respected learned body of 6,000 physicians.
- To financially punish me for speaking out by forcing me to defend myself.
- To occupy my time fighting a lawsuit so I have no time to assist mold victims.
- To discount my words and demean my reputation as one who would make libelous statements.
- To stifle my voice by discouraging those who may be easily intimidated from associating with me.
- To allow GlobalTox and their associates to continue their work on behalf of commercial stakeholders with minimal scrutiny.
- To keep the public and clinicians uninformed of the serious mold illnesses people are experiencing for the purpose of limiting the financial liabilities of others
A SHAKEY FOUNDATION
There are 83 references listed on the ACOEM Statement references pages. In Kilian, when questioned specifically about some of those references Kelman said “WELL, JUST BECAUSE WE USE THE REFERENCES DOESN’T MEAN THAT WE?RE REFERRING TO THEM AS LEGITIMATE, USEFUL REFERENCES.”
Kelman was also asked in the Kilian case about some of the studies addressing causation of illness by mold/toxins, but not used as a reference in the ACOEM Statement. His commentary of the various studies are shown in the Kilian deposition pages 931 through 939 (P 931:16 through P.939:24).
Within another portion of his Kilian testimony, Kelman stated, “We’re limited in the fact-based statement to a – I don’t remember what the page limitation is, but it’s supposed to be a concise document. It’s not meant to be an encyclopedic examination. So we attempted to use our–the professional judgment BETWEEN THE THREE OF US TO PICK OUT THOSE STUDIES WHICH WERE MOST REPRESENTATIVE OF THE STATEMENT.”
In the Kilian case, it is shown that the widely distributed, ACOEM dose response theory of people not becoming ill from indoor mold exposure, is based on the GlobalTox principals’ MATHEMATICAL EXTRAPOLATIONS OF ONE, SINGLE, HIGH DOSE EXPOSURE IN RATS…..
In the Kilian case, Kelman stated that rats studied by Dr. Rao, was “the one that WE MODELED FOR THE SINGLE-DOSE STUDY.” The Rao study was based on rats being blasted with a massive amount of mold for a minute amount of time as is shown in Exhibit. ..
In the Kilian case, Kelman indicated in his testimony that the ACOEM STATEMENT WAS SUPPORTED BY THE INSTITUTE OF MEDICINE, Damp Indoor Spaces Report (IOM Report), published in May, 2004. Regarding the IOM Report, Kelman was asked “And are there conclusions drawn by the authors and researcher of Exhibit 90, the National Academy of Science Institute of Medicine publication, that are consistent with the positions that – and the position paper that you published with Dr. Saxon for the American College of Occupational and Environmental Medicine?” Kelman answered, “THEY’RE CERTAINLY CONSISTENT. I think this is broader.”
From the Haynes case, the following is Kelman’s under oath testimony, when asked the question by the defense counsel for Adair Homes, “Based on the studies that you have done, the literature that you have discussed, and your experience and training, have you formed AN OPINION BASED ON REASONABLE SCIENTIFIC PROBABILITY OR CERTAINTY AS TO WHETHER OR NOT THERE WAS ENOUGH MYCOTOXIN in the home to have caused any illness to Mrs. Haynes, Michael Haynes, or Liam Haynes?” Kelman’s answer was “YES.” The attorney went on: “And, what is that opinion, doctor?” Kelman answered, “THERE COULD NOT BE. I mean, the differences between the maximum dose that we could come up with and the level at which WE SEE EFFECTS for a broad range of mycotoxins is just too great.”
In the Kilian case, Kelman defines critical review by saying “A critical review looks at the experimental design, whether the conclusions are supported by the data, WHETHER THE DATA HAS BEEN COLLECTED IN THE WAY THAT ALLOWS EXTRAPOLATIONS OF PEOPLE, BECAUSE WE?RE PRIMARILY INTERESTED IN PEOPLE.”
The ACOEM Statement ends with the catch phrase, “CURRENT SCIENTIFIC EVIDENCE DOES NOT SUPPORT….” This phrase could be equally applied by the Institute of Medicine regarding the ACOEM Statement.
The summary page of Chapter 4 of the IOM Report states “Except for a few studies on cancer, TOXICOLOGIC STUDIES OF MYCOTOXINS ARE ACUTE OR SHORT-TERM STUDIES THAT USE HIGH EXPOSURE CONCENTRATIONS TO REVEAL IMMEDIATE EFFECTS IN SMALL POPULATIONS OF ANIMALS. Chronic studies that use LOWER EXPOSURE CONCENTRATIONS AND APPROXIMATE HUMAN EXPOSURE MORE CLOSELY HAVE NOT BEEN DONE except for a small number of cancer studies.”
In light of this information, the following statement would then be a more accurate summary of the IOM Report Committee’s conclusions, “CURRENT SCIENTIFIC EVIDENCE DOES NOT SUPPORT THE USE OF ACUTE, HIGH EXPOSURE RAT STUDIES TO CONCLUSIVELY ESTABLISH THE ABSENCE OF ADVERSE HUMAN HEALTH EFFECTS FROM INHALED MYCOTOXINS IN HOMES, SCHOOLS OR OFFICE ENVIRONMENTS.”
In an email dated June 17, 2002 and authored by ACOEM peer reviewer, Dr. Dorsett Smith (Smith), he asks the question, “In this paragraph there should be more emphasis on ‘THE DOSE MAKES THE POISON’. Toxicity is a term that is frequently used by the authors but needs to be defined further;TOXIC TO WHO!! ‘MOUSE OR MAN’??
The American Council on Science and Health (ACSH) has also weighed in on rodent studies being used to conclusively determine whether dose does or does not make the poison in humans. In a paper entitled “RATTY TEST RATIONALE” and authored by Elizabeth Whelan, founder of the ACSH, Dr. Whelan vehemently denounces the scientific standpoint of using rat studies to conclusively determine human illness. She is quoted as saying “LET’S END RODENT TERRORISM BEFORE IT FURTHER DEVASTATES OUR ECONOMY AND WAY OF LIFE.”
“RATTY TEST RATIONALE? OR RATIONALE OF THE RATTY”
ACSH Carcinogens Breakfast at MANHATTAN INSTITUTE
The Center for MEDICAL PROGRESS at the MANHATTAN INSTITUTE invites you to a breakfast forum
Wednesday, March 16, 2005; 8:30 am – 10:00 am
With: Elizabeth Whelan, Sc.D., M.P.H., M.S.
President and Founder, American Council on Science and Health
On: ACSH’s book America’s War on “Carcinogens”: Reassessing the Use of Animal Tests to Predict Human Cancer Risk (American Council on Science and Health, 2005)
The following are two of the SCIENTIFIC ADVISORS FOR ACSH:
Ronald W. Brecher, Ph.D., C.Chem., DABT
GLOBALTOX INTERNATIONAL CONSULTANTS, INC.
RONALD E. GOTS, M.D., Ph.D., International Center for Toxicology and Medicine
Apparently, the PRINCIPLES of Scientific Foundation Sometimes May Vary, Depending on the Financial Outcome for Those Involved.
The Manhattan Institute was promoting ‘Ratty Test Rationale’ as valid science, to industry stakeholders, when it came to establishing lack of human illness from mycotoxin exposure in homes, schools and offices.
The Growing Hazard of Mold Litigation
July 17, 2003 U.S. Chamber of Commerce Washington, D.C.
Rep. Gary G. Miller (R-CA)
The U.S. Chamber Institute for Legal Reform, partnering with the Center for Legal Policy of the Manhattan Institute, commissioned two papers that take a close look at mold litigation and the science of mold. The first, by Cliff Hutchinson and Robert Powell, two experienced litigators with Hughes and Luce in Dallas and Austin, provides a legal perspective on mold claims. The second, written by a team of scientists led by Dr. Bryan Hardin, former Deputy Director of NIOSH and former Assistant Surgeon General in the Public Health Service, “addresses the scientific evidence or ‘lack thereof ‘ that forms the foundation of these claims.”
A Seminar was given in May of 2002; a FULL FIVE MONTHS PRIOR to the ACOEM Board of Directors’ acceptance of the ACOEM Statement that established the medical policy-writing body’s position on illnesses caused by mold in an indoor environment…
This Atlantic Legal Foundation paper documents some of those who are NATIONALLY KNOWN EXPERT DEFENSE WITNESSES, presenting at the seminar on the subject together. The Seminar was sponsored by ICTM, International Center for Toxicology and Medicine. DR. RON GOTS (Gots) is the principal in ICTM. It was a small group of presenters, some of whom were DR. EMIL BARDANA, (Bardana); DR. PAUL LEES-HALEY (Lees-Haley); Gots and GLOBALTOX principals, KELMAN and ROBBINS.
Background information regarding some of Kelman’s co-presenters, attached hereto as Exhibit 24 is evidence of GOTS BEING INVESTIGATED BY DATELINE NBC for insurance injury claim denials.
Attached as Exhibit 25 is a true and correct copy of a newspaper article from a case in Oregon regarding denial of mold related worker’s comp claims of teachers and CENTERING ON THE INVOLVEMENT OF BARDANA.
Attached as Exhibit 26 is a true and correct copy of a published, peer reviewed abstract DENOUNCING LEES-HALEY?S SYSTEM OF DIAGNOSING MALINGERERS as unscientifically skewed toward a finding of malingering.
Also attached as Exhibit 27 is a true and correct copy of an email from ACOEM MEMBER, GOTS, strongly praising the ACOEM Statement.
THE SCIENCE OF MARKETING
The ACOEM Statement has been cleverly worded to imply to those without in-depth knowledge of the matter, including physicians, that there is no evidence of prior healthy people becoming ill from mold exposure. The catch phrase conclusion sentence that is used over and over again, states, “CURRENT SCIENTIFIC EVIDENCE DOES NOT SUPPORT THE PROPOSITION THAT HUMAN HEALTH HAS BEEN ADVERSELY AFFECTED BY INHALED MYOTOXINS IN HOMES, SCHOOLS OR OFFICE ENVIRONMENTS”.
THE CALCULATED MARKETING SPINS of this one little sentence have had tremendous negative impacts on our society. The sentence has been used to DENY LEGITIMATE ILLNESS, MISGUIDE MOLD REMEDIATION EFFORTS, STIFLE MEDICAL UNDERSTANDING AND WIN COURT CASES BASED ON IRRELEVANT, YET ACCEPTED INFORMATION. It has been parlayed as a MANTRA by the Manhattan Institute, the US Chamber of Commerce and their affiliate stakeholder industries for the purpose of limiting financial liability.
By using the word “MYCOTOXINS” instead of the word “MOLD”, and strategically placing it as the final sentence, FINAL WORD, it accomplished the insidious goal of the INTENDED IMPLICATION: MOLD DOES NOT MAKE ONE SICK.
By differentiating homes, schools, and offices from all other environments, under the GUISE OF CONCLUSIVE DOSE RESPONSE RAT STUDIES, IT ELIMINATED ALL SIGNIFICANCE OF VAST MEDICAL RESEARCH that was known about fungal diseases. It established that all prior research of illness caused by fungi would ONLY APPLY TO EVERYWHERE ELSE on the entire planet except homes, schools, and offices.
An example of how this DIFFERENTIATION OF ENVIRONMENTS IS MISUSED would be: A farmer and a teacher could both exhibit the exact same serious neurological and cognitive dysfunctions indicative of TYPE III HYPERSENSITIVITY or TOXICITY after an abnormal exposure to mold and/or toxins. The FARMER WOULD BE TREATED with antifungal and/or toxin eliminating measures. The TEACHER WOULD BE LABELED UNSTABLE AND WOULD BE MISTREATED with antidepressants. Attached hereto as Exhibit 9 is a true and correct copy of a national defense law firm, Gordon and Rees’ interpretation of how to use the ACOEM Statement in court to defeat legitimate mold injuries. Attached as Exhibit 10 is a true and correct copy of a definition from the Encyclopedia Britannica of Type III hypersensitivity (farmer’s lung).
THE MARKETING OF UMMM ‘SCIENCE’
Kari Kilian vs. Equity Residential Trust, et al., CIV 02-1272-PHX-FJM, United States District Court of the District of Arizona Testimony of Bruce J. Kelman (K) June 22, 2004. Attorney for Ms. Kilian is Mr. Langerman (L) Pg 904, line 12
L: SO THE ANSWER IS, ACCORDING TO THE NATIONAL ACADEMY OF SCIENCE REPORT, STACHYBOTRYS PRODUCES IMMUNOSUPPRESSIVE MYCOTOXINS, CORRECT?
K: WELL, ACTUALLY, THE ANSWER TO THAT IS OF COURSE.
L: You mentioned that after the American College of Occupational and Environmental Medicine published the position paper, that you were approached by the Manhattan Institute to rework or reword your research, correct?
K: I would characterize it–I mean, they literally asked for a lay translation of that article.
L: But–Which you eventually did, correct?
L: Most of it is almost word for word the same, correct?
K: I–The translation is the same as the original article?
L: Well, translation is an interesting word. They’re both in English, correct?
L: So shall we call it the Manhattan Institute version versus the ACOEM version rather than a translation? The words are substantially similar, correct?
K: WELL, THE MEANING CERTAINLY IS.
L: And the words are substantially similar, correct?
K: We tried to not include the technical terms, in, unless we absolutely had to, in the Manhattan Institute, so I wouldn’t characterize it as substantially the same.
L: In fact, some of the language from the Manhattan Institute version was the more argumentative language that was rejected during the peer review process at ACOEM, correct?
L: Are you sure of that, sir?
L: So if we held the drafts from the ACOEM up to the Manhattan Institute, we wouldn’t find any sentences that had been removed from ACOEM that now appear in the Manhattan Institute version?
K: There may have been some. If there were, there certainly weren’t very many.
L: And that new version that you did for the Manhattan Institute, your company, GlobalTox, got paid $40,000, correct?
K: YES. THE COMPANY WAS PAID $40,000 FOR IT.
PORTIONS OF MY DECLARATION:
Prior to this incident, I had never been involved in a lawsuit.
Trying to educate myself and better understand the various aspects of the mold issue, I began to do research. What I found were families, teachers, and office workers from all over the U.S., whose LIVES WERE BEING DEVASTATED. Yet, they were not able to find any regulatory or medical assistance. No one seemed to understand how to properly handle the mold itself. The GOVERNMENT AGENCIES WERE NOT ADDRESSING the issue.
The PHYSICIANS WERE NOT TRAINED in treating the illnesses. Most did not even acknowledge mold exposure from an indoor environment could cause serious illness.
As a result, PEOPLE WHO WERE VERY SICK AND FORCED FROM THEIR HOMES, SCHOOLS AND OFFICES, WERE NOT ABLE TO FIND VIABLE MEDICAL TREATMENT. Instead, they were having their SANITY AND INTEGRITY QUESTIONED for stating they were sick from mold. This, while their lives were being turned upside down and THEY FEARED FOR THEIR FUTURE AND THAT OF THEIR CHILDREN?
In the summer of 2003, there was a meeting at my real estate office. Based on information provided by the Association of Realtors, the company manager said there was a new study out that claimed mold in homes does not cause illness. The source of this information was a paper called “MOLDY CLAIMS: THE JUNK SCIENCE OF ?TOXIC MOLD?. It was also AUTHORED BY KELMAN AND HARDIN and ended with the catch phrase. “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.”
“Moldy Claims: The Junk Science of ‘Toxic Mold”, was a result of the Manhattan Institute’s payment of $40,000 to GlobalTox. Kelman refers to the document as a “TRANSLATION” or “LAYMAN’S VERSION” of the ACOEM Statement. Attached collectively hereto as Exhibit 14 are true and correct copies of documents from the US Chamber of Commerce and building industry websites. They, along with the National Association of Realtor (NAR) websites are demonstrative, that in the summer of 2003, the MANHATTAN INSTITUTE VERSION WAS DISSEMINATED TO REALTORS AND OTHER STAKEHOLDER INDUSTRIES.
The effort to mass disseminate the GlobalTox defense argument was done with the assistance of the US Chamber of Commerce and the Manhattan Institute. The well organized and well funded effort to distribute the Manhattan Institute Version was endorsed by EX-DEVELOPER, US CONGRESSMAN, GARY MILLER, (R-CA), who at that time, also sat on the US CONGRESSIONAL SCIENCE COMMITTEE.
Not only were people being physically damaged by the ACOEM Statement itself, by MY FELLOW REALTORS WERE BEING LEFT OPEN for possible liability from the misrepresentation of mold related illnesses as it was stated in the Manhattan Institute Version. This meant the FAMILES THEY REPRESENTED WERE BEING LEFT OPEN TO HARM.
It became blatantly obvious that there was resistance to having physicians trained and the public informed about the health risks of indoor mold exposure. The perverted logic being, IF THE PHYSICIANS AND THE PUBLIC WERE NOT INFORMED, THEN THE FINANCIAL LIABILITY OF THOSE WHO HAD NEGLIGENTLY MANAGED TO EXPOSE OTHERS TO AN ENVIRONMENTAL RISK WOULD BE GREATLY REDUCED. If one could not prove they were ill from mold exposure, then they also could not collect for the health damages they had suffered as a result of a negligent exposure.
CONTENTION IN OUR COURTROOMS AND FEAR OF FINANCIAL LIABILITY over the mold issue WAS STIFLING THE MEDICAL of the matter. People who had never even seen the inside of a courtroom were affected and not able to find proper medical help because of the contention.
THE STIFLING OF MEDICAL UNDERSTANDING OF MOLD RELATED ILLNESSES FOR THE PURPOSE OF WINNING COURT CASES AND LIMITING LIABILITY WAS ACTUALLY CAUSING THE MASS IGNORANCE AND SKEPTICISM THAT WAS RESPONSIBLE FOR THE LAWSUITS AND UNTREATED ILLNESSES IN THE FIRST PLAC
In the Kilian case, Kelman stated that the meaning of the ACOEM Statement and the Manhattan Institute Version are the same. “MOLDY CLAIMS, TRIAL LAWYERS, MEDIA AND JUNK SCIENCE” IS QUITE A DIFFERENT SCENARIO THAN A SIMPLE LAY TRANSLATION OF A SCIENTIFIC PAPER THAT KELMAN TESTIFIES TO UNDER OATH.
My degree is in marketing. I have been professionally and corporately trained in marketing and sales. I have 25 years of experience in marketing and sales. As such and if called to witness, I am qualified to state, that in my opinion:
THE ACOEM STATEMENT AND THE MANHATTAN INSTITUTE VERSION, BOTH AUTHORED BY KELMAN/GLOBALTOX, ARE NOTHING MORE THAN THE CORE AND THE VEHICLE OF AN ELABORATE AND INJURIOUS MARKETING CAMPAIGN DESIGNED TO DECEIVE THE AMERICAN PUBLIC.
PRINCIPALS & TEACHERS
It was found that the ACOEM Statement was being used by the principals of GlobalTox, to direct mold remediation efforts around the country. Attached as Exhibit 20 is a true and correct copy of a promo for a Webcast of GlobalTox principals, Hardin and Coreen Robbins, CIH, (Robbins) providing education through the American Industrial Hygiene Association. The gist of this presentation is to teach industrial hygienists how to use the ACOEM Statement while performing environmental risk assessments, with the goal of limiting financial liability for builders, suppliers, landlords, real estate agents, mortgagors, financiers, insurers and those who control the maintenance of privately and publicly owned buildings. There is also a legal section in this presentation, demonstrating a concern for future litigation and notably addressing financial aspects over people?s health and safety.
The manner in which GlobalTox endorses environmental risk assessment based on financial liability risk as opposed to health risk has served to NATIONAL FEAR, CONTENTION, CONFUSION AND DAMAGE over the issue. The Seattle schools are indicative of much of the controversy over proper environmental risk assessments and remediation efforts. Schools are facing this challenge all over the country. Attached Exhibit 37 is a true and correct copy of a commentary I authored and is displayed on the School Mold Help website. It compares two schools: one assessed with the children being given the highest priority and one assessed by GlobalTox, which was designed to falsely placate health fears while destroying evidence of causation for those who had been made ill from the environment. Respectively attached as Exhibits 34, 35 and 36 are true and correct copies of: a news article, a letter to parents and a parental ToxLaw posting concerning Nathan Hale High School in Seattle, Washington.
Friday, July 8, 2005
By DEBORAH BACH
Parents at a West Seattle elementary school have filed petitions with district officials in hopes of blocking the involuntary transfer of an award-winning math teacher. Robert Femiano was accused of harassment by his principal after asking questions about his school’s budget. The teacher also recently alerted state investigators to a mold infestation at the school, after the district failed to address the problem. Holding signs reading, “We Love Our Whistleblower — Go Get Your Own” and, “Don’t Shoot the Messenger,” a half-dozen Arbor Heights parents protested the planned transfer at Wednesday night’s School Board meeting. One of them, Angie Anderson, said parents were “furious” to learn about Femiano’s transfer, reportedly set for the upcoming school year. “He should be rewarded for his efforts, not forced out of the neighborhood school he has been working to improve for 14 years,” she said.
Another parent, Jennifer Beard, said the board must tell Superintendent Raj Manhas, who listened to the delegation silently, “not to allow principals to intimidate their teachers.” A frequent and impassioned speaker at School Board meetings, Femiano, 51, lobbied the district for months to address problems with a leaky pipe and mold at his school. After hearing students in his wing of the school complaining of mysterious headaches, colds and other ailments, Femiano and several other teachers filed a complaint in April with the Department of Labor and Industries, which has opened an investigation.
Femiano, a first- and second-grade teacher who received a presidential award for elementary mathematics in 2002, believes the reasons for his transfer date back to June 2004, when he began asking questions about how Principal Carol Coram was spending the school’s budget. Femiano said he asked the Seattle Education Association, the union representing district teachers, for a copy of the budget. A week later, Femiano said, his principal charged him with harassment. Femiano said he is being transferred in the fall to Sanislo Elementary, where he previously taught.
The move, he told the board, “constitutes retaliation.” District spokeswoman Patti Spencer said several weeks ago that the transfer was not retaliatory.
Jane Westergaard-Nimocks, the district’s human resources director, declined to confirm yesterday whether Femiano will be transferred, if the district is responding to his allegations and if the alleged harassment is being investigated. “I can’t talk about it,” she said. “It’s a personnel issue.”
WHAT IS THE ACOEM? HOW DID THIS MOLD STATEMENT COME TO BE?
TESTIMONY OF BRUCE J. KELMAN
Mr. Vance is the Haynes’ family attorney. Pg.45, Line 12,
Haynes vs. Adair Homes, Case No. CCV0211573.
MARKETING CAMPAIGN SPECIFICALLY DESIGNED TO DECEIVE THE AMERICAN PUBLIC
V: Thank you. And, you mentioned–what was it the American Congress of Occupational and Environmental Medicine?
K: No. It’s the American College of Occupational and Environmental Medicine.
V: American College. Now, this isn’t a university, is it?
K: No. This is a professional college.
V: Well, it’s more of a trade association, isn’t it? It’s a group, it’s an association of doctors and people that study certain things?
K: Yes. No. Actually, IT?’S A LEARNED BODY. So, calling it a trade association is ridiculous.
V: Well, I just went to the website and they call themselves an association. And, that’s why–and you can go to their website and you can look them up and you can see (inaudible) there an association, correct?
K: Well, they are an association. There’s lots of different associations.
V: Well, I understand that, but I’m talking about this particular college. It’s not a university–.
K: You used the word trade association. It’s not a trade association. –it’s not a university and it’s not an educational institution. IT’S MORE OF A GROUP OF PEOPLE. It’s certainly a learned body, yes.
V: Well, and I’m not arguing with you, sir. I’m just saying it’s a group of people rather than an educational institution…
TESTIMONY OF BRUCE J. KELMAN (K), Haynes vs. Adair Homes, Oregon, February 18, 2005. Mr. Vance (V) is the attorney for the Haynes’ family.
V: I’m sorry, Dr. Kelman. But, you’re not a medical doctor. You were straight up about that. You said, that “I’m not a medical doctor.” Right?
K: That’s correct.
V: You studied at the University of Illinois and you took some courses on veterinarian– –the veterinarian medicine, what do they call that? Veterinary science?
K: Well, the general category is in the veterinary science area. The research I conducted was within the veterinary school, because they’re the only ones — I did my experimentation on animals, and they’re the only ones that were qualified to handle animals.
V: SO, YOU DIDN’T ACHIEVE A DEGREE AS A VETERINARIAN THEN?
K: No. That wasn’t my intent of studying at the–at the time. I was interested in research.
V: Yes; Okay. I UNDERSTAND.
K: And, the veterinarian degree is a clinical degree.
V: And, now what you do is you work for drug companies and you try to analyze their drugs and help them with getting those drugs approved by the Food and Drug Administration, isn’t that correct?
K: That’s one of a broad range of –of activities. There’s a certain number of tests, certain prescribed amount of testing that has to be done by drugs before the FDA will even consider them for release.
V: But, among your clientele, you would include pharmaceutical companies.
(PAGE 42, LINE 11)
V: And, then you help WRITE A REPORT OF SOME NATURE?
(PAGE 48, LINE 2)
V: Okay. 6,000. Now, membership in that group is not restricted to doctors or PhDs is it?
K: The last I heard it was, but it’s possible if they had (inaudible) yes, the process is the committee on scientific affairs puts it together, it’s reviewed by the board of directors and THOSE PHYSICIANS THAT THEY FEEL WILL GIVE IT USUALLY THE MOST ?THE GREATEST CRITICISM. And, of course, you couldn’t possible deal with 6,000 comments.
V: No. But, you could have–make it a little bit more democratic than 100 out of 6,000 members, couldn’t you? I mean, let’s–don’t you think that’s fair to be a little more democratic than that? Dr. (inaudible) I would draw the question–Dr. Eckheart Yohanning (phoenetic), do you know who he is?
K: Oh, yes.
(PAGE 51, LINE 11)
V: All right. So, it doesn?t surprise you to learn that he’s called it in a speech in Boston, “Undemocratic and not objective”?
K: Well, I guess I would have trouble with the characterization from Dr. Yohanning of “unobjective”. I’d say CRITICAL REVIEW BY 100 CRITICAL, VERY CRITICAL PHYSICIANS is quite objective, and I would also have to say that normally when one picks a learned body, you don’t do it democratically. You pick the people that have the BEST SCIENTIFIC CREDENTIALS AND THE BEST KNOWLEDGE OF THE AREA.
TESTIMONY OF BRUCE J. KELMAN (K) from the trial of Kilian vs. Equity Residential Trust, Arizona, JUNE, 2004. Mr. Langerman (L) is the attorney for Ms. Kilian.
KILIAN, PAGE 856, LINE 21
L: Let me interrupt you. When you say it’s a college of medicine, do you mean to infer that it is a professional affiliation that is available primarily to physicians, medical doctors?
K: The American College of Occupational and Environmental Medicine was originally an association of physicians, and ABOUT TWO YEARS AGO THEY OPENED THE MEMBERSHIP UP TO A FEW PhD?s WHO HAD EXPERTISE in affiliated areas, and toxicology is one of the areas.
(Page 921, Line 10)
L: Dr. Kelman, you informed us earlier that you have done some laboratory research; is that correct?
L: NONE OF THE LABORATORY RESEARCH THAT YOU HAVE DONE INVOLVES MOLD OR MYCOTOXINS, correct?
K: Aside recently from growing some, no.
L: No, it’s not correct, or yes, it is correct?
K: Oh, I’m sorry. ASIDE FROM GROWING SOME, I HAVE NOT DONE RESEARCH on animals.
The GlobalTox authored paper was sent out to 101 of the 6000 ACOEM members for review. This number is less than 2% of the total membership of an association of which many of it’s physician members perform medical examinations of injured workers and/or mold victims on behalf of insurers and employers. As demonstrated in an August 9, 2002 email authored by Dr. Harbut (Harbut), many of those who were not selected to participate in the peer review process of the ACOEM Statement, raised serious, grave concerns of the reason, logic and conflicts within the Statement. Two of the authors of the Statement were not even physicians, licensed to treat people suffering from mold illnesses. Kelman did not even complete veterinarian school. Attached collectively as Exhibit 34 are true and correct copies of documentation of the number of peer reviewers, documentation of the function of the ACOEM and their physicians, and an email authored by Harbut, August 9, 2002.
As shown previously, although the draft was sent out to 101 for peer review, most who were selected to be allowed to give input appear to have chosen not to participate in the peer review of the ACOEM Mold Statement. (Borak’s response to Hardin was “I DO NOT KNOW how many because I do not know how many reviewed the MS” (mold statement), “and agreed, but did not respond. Also, I have not maintained any of the files or emails. It was CERTAINLY MORE THAN A DOZEN: there is more than that on the Board alone.”)
A PORTION OF A SPEECH BEFORE THE BOSTON CITY COUNCIL, DECEMBER 9, 2004; BY PHYSICIAN AND ACOEM MEMBER, DR. ECKERT JOHANNING
“I feel I am qualified to speak on the subject because I am an occupation physician and I have worked in research and have worked several government agencies such as EPA, CDC, and HUD. I have been involved with this issue for the past 15 years in NYC. We had had several symposiums and have brought scientists together 5 times who will be more than willing to collaborate our findings, which have already been published.
I know the Washington office of the Budget Management did a study of the structure and situations of schools and concluded that a third of the schools have serious Indoor Air Quality problems and that many of these are related to water intrusion. The press picked up on this issue many years ago, much more than the medical community I’m sad to say, and probably got the word out…
I have seen over the last couple of years ORGANIZED EFFORTS BY THE INSURANCE INDUSTRY AND THEIR ADVOCATES to defuse the issue and recently a report and some papers have come out on the issue saying we don’t see a connection. I am a member of the American College of Occupational and Environmental Medicine. They state they have a SO-CALLED PAPER THAT CONCLUDES THAT WE DON’T THINK THE EVIDENCE THAT CONNECTS MOLD in particular, mold to adverse health effects. If you go and look how this paper was generated you will realize, and I have legal documents to prove this, that this wasn’t an objective, free discussion within our membership. But rather a PAPER THAT WAS PUSHED THROUGH IN SUCH A SECRET MANNER, WAS PUSHED THROUGH THE COMMITTEE in order to use that as a statement against doctors who think that there is a problem….
An email that was authored by Bryan Hardin and dated August 16, 2002, was sent to Jonathan Borak, Chair of the Committee of Scientific Affairs of the ACOEM and overseer of the peer review process. The follow email shows that the GlobalTox author, Hardin, had input into who would and would not be permitted to provide ‘unbiased’ peer review of the paper he, himself, was authoring. HARDIN STATES THAT THOSE WHO DID NOT AGREE WITH THE ‘POINT OF VIEW OF THE DRAFT POSITION PAPER’ SHOULD NOT BE PERMITTED TO REVIEW IT. In the email, Hardin writes, “…Finally, WE ALSO WOULD OBJECT TO INVOLVING Drs. Hodgson or Dearborn or others outside the normal ACOEM process for position papers. So far as we can ascertain, they have no standing in the ACOEM, e.g., as members of Board, the House of Delegates, etc. We have welcomed the thorough, impartial, and scientifically rigorous peer review to date, but would think it inappropriate to add ad hoc REVIEWERS WHO ARE HIGHLY VISIBLE ADVOCATES FOR A POINT OF VIEW THE DRAFT POSITION PAPER ANALYZES AND FINDS LACKING?”
A MOLD SEMINAR
There was a Seminar was given in May of 2002; a FULL FIVE MONTHS PRIOR to the ACOEM Board of Directors’ acceptance of the ACOEM Statement that established the medical policy-writing body’s position on illnesses caused by mold in an indoor environment. These Seminar presenters are nationally well known advocates for the ACOEM Mold Statement. They are also NATIONALLY KNOWN EXPERT DEFENSE WITNESSES. The Seminar was sponsored by ICTM, International Center for Toxicology and Medicine. DR. RON GOTS (Gots) is the principal in ICTM. It was a small group of presenters, some of whom were DR. EMIL BARDANA, (Bardana); DR. PAUL LEES-HALEY (Lees-Haley); Gots and GLOBALTOX principals, KELMAN and ROBBINS.
Background information regarding some of Kelman’s co-presenters, attached hereto as Exhibit 24 is evidence of GOTS BEING INVESTIGATED BY DATELINE NBC for insurance injury claim denials.
Attached as Exhibit 25 is a true and correct copy of a newspaper article from a case in Oregon regarding denial of mold related worker’s comp claims of teachers and CENTERING ON THE INVOLVEMENT OF BARDANA. There is also a webcast of this on the Portland KATU2 website.
Attached as Exhibit 26 is a true and correct copy of a published, peer reviewed abstract DENOUNCING LEES-HALEY?S SYSTEM OF DIAGNOSING MALINGERERS as unscientifically skewed toward a finding of malingering.
Also attached as Exhibit 27 is a true and correct copy of an email from ACOEM MEMBER, GOTS, strongly praising the ACOEM Statement.
A FEW POSTING FROM THE CHATBOARD, TOXLAW INDICATE OF WHAT THE ACOEM INFLUENCES
POSTED BY SHARON ON 7/10/05
(Discussing an article and post I found in the Insurance Journal)
Some California Doctors Leaving Workers’ Comp System
Features – February 21, 2005
Francis Pecoraro is trading a San Francisco Bay area medical practice that mainly serves injured workers for one in Wilmington, N.C., that he believes will be friendlier to doctors and doctors’ …
Subject: ACOEM Guidelines
Posted On The Insurance Journal: July 6, 2005, 3:06 pm CDT
Posted By: Robert P.
The ACOEM is a biased, obtuse, and twisted organization and everyone in this business who has had any dealings with them knows this. Most of the physicians that govern ‘independent evaluations’ or follow-ups are criminals and would sell their mothers for the right price. Something needs to change before it is too late because this is a VERY FLAWED SYSTEM with all of the money going into the wrong pockets.
POSTED BY SERENA ON 7/11/05
CWCI Wants No Other Guidelines Before ACOEM
An insurance industry group is urging the California Division of Workers’ Compensation to change draft medical utilization review regulations to make sure that any treatment guidelines other than those written by the American College of Occupational and Environmental Medicine “measure up to the standard of scientific reliability.”
Given that GlobalTox (provider of ‘professional’ defense expert witnesses) managed to get the ACOEM to publish their biased report claiming that indoor mold can’t do to people what it’s done to so many of us, why am I not surprised that the insurance industry favors ACOEM for setting the “standard of care” in Worker’s Comp cases?
Hmmm…or that ACOEM touts the Chubb Insurance Group as their business partner? DOES ANYONE DOUBT WHAT THIS WOULD ULTIMATELY MEAN TO CALIFORNIA WORKERS EXPOSED TO MOLD IN THEIR WORKPLACE?
POSTED BY SHARON ON 7/12/05
Re: CWCI Wants No Other Guidelines Before ACOEM
Read this. By following the ACOEM Guidelines here in California, workers are not being properly treated. OUR DOCTORS ARE LEAVING THE STATE because of this situation. They can’t treat their patients. People are committing suicide because they are in chronic pain, can get no treatment and are treated like dirt. But, the good news is….the ACOEM’s Insurance Company Clients are happy. The ACOEM is not an organization that is here for the good of the public. They appear to be front men for the insurance industry.
House of Horrors
?We are witnessing a HORRIFIC SUICIDE OUTBREAK. among California?s … Dr. Sylvain said that ?the care allowed by the ACOEM guidelines is inadequate for …?
Posted by Douglas R. Haney on 7/08/05
LATEST ENVIRONMENTAL HEALTH NEWS- DOUG HANEY
Litigation Update: Mold Talk Lands Psychologist in Mental Hospital
Post: PLACER CO. CPS “Mold” Civil Rights Litigation” – Doug Haney
A Placer County, California litigation case I assisted in authoring (“Complaint for Violation of the Federal Civil Rights Act, and State Law Tort Claims” Case #205-CV00771 FCD DAD) with my good friend, Herman Franck, Esq. (SB# 123476) of Sacramento is being reviewed at the Federal Court Building in Sacramento. This is a case involving Ms. Kirsten Fisher, the mother of two girls, and a woman with years of experience as a professional counselor (holding a BA in Psychology from Sacramento State University, and two terms short of her Masters Degree), whose CHILDREN WERE TAKEN AWAY FROM HER BY PLACER COUNTY SOCIAL WORKERS FOR COMPLAINING TO HER FAMILY DOCTOR ABOUT HER DAUGHTER?S EXPOSURES TO WHAT SHE BELIEVED WERE PATHOGENIC MOLDS.
To summarize, on or about March 23, 2004 Ms. Fisher visited my office on another matter concerning micro fungi exposures. In reviewing the documents she presented during our meeting, Ms. Fisher alleged that when she took her children to her family doctor, Mark Knoble, M.D., that instead of thoroughly examining her daughters for their presumed mold exposures, he contacted Placer County Child and Adult Crisis & Emergency Services (ACCESS) about her apparent behavior in obsessing about mold exposures. Within a day or two Ms. Fisher?s children were ordered into county custody, and Ms. Fisher was forcibly admitted into the Heritage Oaks (Psychiatric) Hospital located in Sacramento by police. Upon leaving the hospital after a battery of psychiatric tests that confirmed only “generalized anxiety disorder”, Ms. Fisher was to spend the next 2 “months apart from her children enduring supervised visitation with her children and harsh monitoring controls set up by Children Protective Services.” Ms. Fisher showed me a document, which I still have in my position titled, “Placer County Systems of Care: Unified Services Plan” which states, “MOTHER WILL NOT OBSESS ABOUT ‘MOLD’ ISSUES THAT RISK THE MINORS’ SAFETY.” Further stating, “Mother will report to landlord immediately any sign of mold,” and “MOTHER WILL DISCONTINUE ANY TOPICS OF OF ‘MOLD ISSUES’ WITH THE MINORS,” and “MOTHER WILL REFRAIN FROM ANY DISCUSSIONS OF ?MOLD TO OTHER ADULTS IN FROM OF THE MINORS.”
All of this, in writing, a total violation of Ms. Fisher?s and her children?s federal Constitutional Rights. After hearing this, I became upset and was given permission to call Ms. Fisher’s social worker who, would not speak with me without consent of Ms. Fisher. So, I handed the telephone to Ms. Fisher for said consent. While Ms. Fisher spoke with her social worker, I directly heard the social worker state to Ms. Fisher, “If you decide to pursue this you know what it will mean,” in a very loud voice. This brought Ms. Fisher to tears of course, and the rest is history.
This case is being brought to the Federal Court not just as a case against Placer County, but for the fact that it clearly represents how lightly medical doctors and public officials are taking a very serious condition relating to human health and safety and turning it on victims. We are making great strides and I will continue to bring you information about cases I am selecting which will, I hope, eventually bring ‘Mold Litigation’ away from the Justice System and front and center into the Proper and Effective Medical Treatment arena. I do not subscribe to the vast number of cases in the court system, but I understand fully what has to be accomplished until people who choose to ignore the health implications move past ‘ignorance’. Micro fungi can and do KILL humans! They are first and foremost ancient (nearly two billion year old) ‘decomposers’ designed by nature to ‘DECAY’ and ‘KILL’, especially – humans! Don?t give me this absolute ‘CRAP’ that inhaling molds does not cause severe illness in anything other than an immune compromised person!!! That is absolute ‘CRAP’!
Don’t tell me what I as a trained scientific observer have personally witnessed in the past six years. Remember, I also used to be a skeptic about such exposures too! In some instances along the ‘learning curve’ I might have made mistakes and have expressed things I now understand differently, but what I explain now written by scientists others is factually-based and ?peer reviewed? in major scientific journals. And I currently have been making very few mistakes. So, after consulting as an expert in environmental health in two death cases involving pathogenic micro fungi exposures: Daniel Black 54, Houston, TX (2002) and a 16-month old baby, Seniff (2003), I am fed up with ‘CRAP and want to ‘WAKE SOCIETY UP TO THE FACT’ that regardless of what people from GlobalTox, Inc., or Ron Gots, M.D., or Andrew Saxton, M.D., and others who testify otherwise might have opinions on, exposures to pathogenic micro fungi can and do have the ability to kill a human being first by weakening human cellular functions and then by gradually destroying human cells. MS. FISHER HAD A PERFECT RIGHT TO BE VERY CONCERNED. AS SHOULD WE ALL!
A POST ON TOXLAW 7/9/05 BY ERIK JOHNSON, MOLD WARRIOR.
(The article below was included in the post.)
Answers Prove Elusive in Mold-Linked Deaths
By Mark Moran, MPH; WebMD Medical News
July 26, 2000 (Cleveland) — In 1994, a dark fungus gained notoriety as an apparent cause of a frightening condition striking a number of Cleveland infants, some of whom died. Six years later, opinions remain divided about stachybotrys chartarum. Some see it as simply the most publicized of a host of indoor molds affecting human health. Others view it primarily as an insurance liability disaster in the making for countless homes and office buildings with water damage.
But to others, it is a potent symbol of the difficulty of linking environmental exposure and human disease — and of formulating public policy in the face of scientific uncertainty. Local and national public health leaders agree the controversy has obscured the overwhelming consensus among scientists that mold and water-damaged housing are threats to human health. But they are almost as unanimous that the connection between stachybotrys and the malady that struck the infants, called pulmonary hemosiderosis, is far less conclusive.
“No one has ever claimed causation,” says Dorr Dearborn, MD, PhD, associate chief of the pediatric pulmonary division at Rainbow Babies and Children’s Hospital of the University Hospitals of Cleveland. It was Dearborn who originally alerted the CDC about a rash of infants with what appeared to be pulmonary hemosiderosis, a condition in which victims cough up blood from their lungs.
In response to his call, the CDC sent a team of researchers to the city to assess the situation. The result was a “case-control” study in which measures of stachybotrys in homes of infants with the disease were compared to those without it. The study suggested a link between the mold and the disease, reporting 10 cases of what appeared to be pulmonary hemosiderosis associated with stachybotrys chartarum in the home. But last year, the CDC released a new report that suggested shortcomings in the original study. The report called into question the small size of the study, the way mold calculations were done, and the diagnosis of pulmonary hemosiderosis, which the CDC says is not a disease but a condition that accompanies a host of ailments.
The agency’s conclusion: Scientific evidence is insufficient to link stachybotrys chartarum to pulmonary hemosiderosis. Dearborn, who was one of the investigators in the case-control study, defends the study and says more cases of pulmonary hemosiderosis locally and nationwide have been reported in conjunction with stachybotrys. Over the past seven years, there have been 45 cases of pulmonary hemorrhage in young infants and 16 deaths, he says. Dearborn acknowledges that the study was too small, but says it was the CDC that stopped the trial before it could gather enough data to make a more convincing case. Tom Sinks, PhD, a CDC epidemiologist, says that when the agency responds to an urgent request for an investigation, its mission is to rapidly assess a situation, not to do long-term research. “We do not have the luxury in these situations to do the most exquisite type of research,” he tells WebMD. “Our purpose is not to start something we can’t finish.” Sinks says the CDC recognizes the link between mold and human health, and urges people to take preventive action when there is water damage in the home. But regarding a connection between stachybotrys and hemosiderosis, the evidence is too weak to justify policymaking, he says. That conclusion generated controversy about the way the CDC handled the case.
Ruth Etzel, MD, an epidemiologist formerly with the CDC who headed the original study, says the agency’s review of the work is “dead wrong” and that the CDC has sought to bury the connection between mold and disease. “Normally, when a new idea is presented, you do more work and test it further in other places,” says Etzel, who says she left the CDC as a result of the controversy and is now director of the division of epidemiology and risk assessment at the food safety and inspection service of the USDA. “What happened here was that instead of moving forward, a decision was made to put a stop to our work.” She says the current scientific consensus on the dangerous health effects of mold stems largely from the Cleveland study. “Previously, most physicians thought of mold as quite innocuous,” she tells WebMD. “We were able to focus on mold in a way that the medical world had never done before.”
Both Dearborn and Etzel acknowledge that showing an association is not the same as saying the mold caused the deaths. “You can’t prove causation from epidemiologic studies,” Dearborn says. “All you can do is show that there is a correlation.” Dearborn says stachybotrys may have played a role in the deaths of the Cleveland infants along with other factors, such as second-hand smoke or underlying genetic problems.
The exact relationship between the mold and those other factors is unknown, he says. “This is a difficult game at any time in history,” says David Miller, PhD, a biochemist at Carlton University in Ottawa, Canada, and an expert on fungal toxins. “You can’t have a cut-and-dried scientific discussion without having all the facts. With regard to stachybotrys, we don’t have all the facts.” Miller illustrates the problem by recalling aflatoxin, a mold that grows on crops, now known to be a potent carcinogen. “In the early 1970s when the FDA made a decision to regulate the substance, the epidemiologic studies showing it was a human carcinogen were very weak,” Miller says. “Everyone agreed it was weak, but it was the best anyone could do.” It wasn’t until the early 1990s that the FDA decision was proven well-founded, when the ability to measure aflatoxin in the blood was refined and the substance was shown to be one of the most potent carcinogens known, Miller says.
Stu Greenberg, executive director of Environmental Health Watch, a local environmental advocacy group, says that in the Cleveland case, the scientific complexities of risk assessment were obscured by the drama of dying babies. “It raises the question for public health leaders, ‘how do you take action in the absence of solid data?'” Greenberg says. He cites the “precautionary principle” to suggest that heightened concern was probably warranted. “When there is a potential risk to human life, you can’t wait for the body count,” Greenberg says. “You have to take prudent action, even though you may not be certain.” In wake of the original report, the Cuyahoga County Board of Health and the Cleveland Department of Public Health initiated an expensive program designed to find and remove stachybotrys from the homes of newborns in east Cleveland. Terry Allan, MPH, the Cuyahoga County board’s director of community health services, tells WebMD the program has had only limited success. The difficulty of reaching inner-city populations and entering homes to fix water damage is similar, he says, to that confronting public health leaders trying to improve vaccination rates in medically underserved areas.
He defends the effort despite the fact that no one has proved the mold made babies sick. “How long does it take to discover causality?” Allan asks. “Do you ever get that definitive study? Not very often. At some point, public health leaders have to make a decision based on what they know today.” Allan says the stachybotrys prevention effort is continuing, but will be folded into a larger project looking at all kinds of mold and moisture in low-income housing.
This year the Cuyahoga County Board of Health received $3.1 million from the U.S. Department of Housing and Urban Development to track mold and moisture in low-income homes, to determine their relationship to disease, and to make repairs. Meanwhile, the link between stachybotrys chartarum and pulmonary hemosiderosis awaits further research. Dearborn says he is conducting studies on the effects of airborne stachybotrys spores on animals.
He believes the Cleveland babies may have served as “canaries in the coal mine” — that is, indicators of something foul in Cleveland’s inner-city environment. “They are telling us that our inner city is not a healthy environment,” he says, “and that indoor pollution problems may be a very significant player in the increase in inner-city childhood asthma.”
POSTED BY FF ON 7/11/05:
Ms. Sharon Kramer:
Reading your posts and other responses following the lawsuit in which you identify yourself as a defendant, I would like to thank you for continuing to post on this subject. As this board is devoted to “black mold,” and the magnitude of mold problems is well recognized, black mold is obviously a public health threat. As such, I hope CA (venue?) law will allow continued disclosure.
A key topic has been the validity of science and expert testimony, on both sides. Your situation is one needed in assessing that validity. I hope the information/updates continue, and certainly, this is an option open to either side.
POSTED BY SHARON ON 7/11/05
Thank you. And I do sincerely appreciate the host of ToxLaw allowing me to continue to post information that is extracted from a legal, public document along with the words of Dr. Kelman and various websites that are also in the public domain.
This SICK CYCLE HAS TO STOP. People are being made gravely ill and their lives are being unnecessarily ruined, while others are receiving bad advice on how to limit financial liability over the matter.
Ultimately, because of this bad advice, those who are concerned about financial liability end up paying out much more. The bad advice serves to further the damage for those who have been made ill, which in turn, then costs everyone. This means OUR SOCIETY AS A WHOLE IS PAYING DEARLY IN THE LOST HEALTH OF OUR NATION?S CHILDREN AND IN THE RESULTANT ECONOMIC BURDEN THIS IMPOSES ON OUR NATION?S ECONOMY.
The only ones profiting and living well off of this SICK, PERVERSE AND INSIDIOUS SCENERIO are the ones who are responsible for giving the bad advice in the first place.
EMAILS OF THE ACOEM
The following are quotes from an email authored by Borak, dated February 27, 2002 and sent to Bryan Hardin of GlobalTox. What this email shows is that GlobalTox was specifically brought into the organization of 6000 Occupational and Environmental physicians, who frequently evaluate injured workers on behalf of Workers’ Compensation Insurance and perform IMEs (Independent Medical Exams) in mold litigation lawsuits. GLOBALTOX WAS SPECIFICALLY BROUGHT INTO THE AMERICAN COLLEGE OF OCCUPATIONAL AND ENVIRONMENTAL MEDICINE TO WRITE A POSITION STATEMENT REGARDING MOLD ILLNESSES.
Given the fact that it is now and was then in early 2002, well known within the legal profession that GlobalTox denies the existence of serious mold illnesses in courtrooms throughout the United States, it is highly plausible for one to assume that GlobalTox was brought into the ACOEM to write a Mold Statement with the insidious intended goal of limiting the financial liability of some at the expense of the health and lives of families, office workers, teachers and CHILDREN who had been made ill by excessive exposure to mold.
In Borak’s February 27, 2002 email to Hardin, he states, “I had several conversations with Dean Grove, ACOEM President, and Barry Eisenberg, ACOEM Executive Director, and both are enthusiastic about your willingness to be involved with and contribute to the ACOEM.
The following is a suggested way that we could put these pieces together:
ACOEM will enroll you as an Associate Member (the catogory for PhD’s, as contrasted to MDs) at NO COST FOR THE FIRST YEAR. THAT WILL BE AN ADVANCE ‘THANK YOU’ FOR YOUR CONTRIBUTION, SPECIFICALLY THE PREPARATION OF A SCIENTIFIC POSITION PAPER ON THE SUBJECT OF MOLD, INDOOR AIR QUALITY AND HEALTH?
..That POSITION PAPER WOULD BE PREPARD BY YOU AND YOUR GLOBALTOX COLLEAGUES. We ask that you and/or Dr. Kelman be listed as the first authors, as you two will be the ACOEM members on the authorship list. We would be delighted if the other authors would consider joining ACOEM, be we won’t insist on that. Unfortunately, the College policies limit the number of free membership that can be awarded, so we can only provide that to you?
“Finally, WHEN ALL HAS BEEN DONE, it is my great hope that you will continue your membership in the ACOEM and that the Board and the Executive Director can call upon you from time to time for advice, suggestions and guidance. You have a unique and valuable perspective on the totality of occupational and environmental health. It would be of great value to ACOEM if you will share your knowledge and wisdom with us.”
The following email was authored by Borak, dated June 16, 2002 and sent to Phillip Harber, M.D.. Dr. Harber is one of many honorable members of the ACOEM. Harber had been questioning the GlobalTox scenario. This emal was also, blind copied to DEAN GROVE, Edward Bernacki, John Holland, Tim Key, Pamela Hymel, Marianne Dreger and Bryan Hardin:
…Background: This past February, Dean Grove (as President) asked me (as Chair of CSA to develop a position statement on indoor mold. With Dean’s agreement, I approached Bryan Hardin–former Deputy Director of NIOSH–to develop such a statement. In return for his efforts, Dean and Barry approved the granting of a one-year courtesy membership to Bryan, who was not then a member (although his co-author, BRUCE KELMAN, WAS A DUES-PAYING MEMBER).
Since then, I HAVE BEEN APPROACHED BY OTHERS who heard (from Dean Grove) that this was an issue to be addressed by ACOEM. One sent written info, the others expressed interest. NOBODY WHO INITIATED CONTACT ON THE ISSUE HAS BEEN INVOLVED IN ITS DEVELOPMENT??
In an email authored by Borak and dated September 6, 2002, Borak states:
“As this was an EFFORT THAT YOU, DEAN, ASKED ME TO INITIATE I thought that you might have a good idea about what might be done”.
I HAVE SOME QUESTIONS?
In Kelman’s testimony in the Kilian case, June, 2004, he stated the ACOEM only opened membership to PhD?s approximately two years earlier. This project was started in February, 2002. Kelman and Hardin are PhDs. At what point did Kelman become a ‘dues-paying member’ of the ACOEM?
WHY WAS KELMAN CHOSEN TO WORK ON THIS PROJECT? He testified in the Kilian case, he had no prior laboratory experience with mold. He also testified that his expertise was writing reports for pharmaceutical companies to get drugs passed by the FDA.
WHY WAS HARDIN, A PHD, BROUGHT INTO THE ORGANIZATION AND EVEN PROVIDED A FREE MEMBERSHIP, YET SOME WHO WERE PHYSICIAN MEMBERS AND HAD YEARS OF EXPERIENCE TREATING AND RESEARCHING HUMAN ENVIRONMENTAL ILLNESSES, NOT ASKED OR EVEN PERMITTED TO PARTICIPATE IN THE ‘PEER REVIEW PROCESS’?
WHAT IS HARDIN?S SPECIAL ?KNOWLEDGE AND WISDOM? THAT THE ACOEM CHAIR OF THE SCIENTIFIC COMMITTEE FELT HE COULD LEARN FROM?
WHY WAS SAXON, an allergist/immunologist physician who was not even a member of the ACOEM, chosen to co-author this paper? There are 6000 physician members of the ACOEM. What talent did Saxon, who is also a known expert witness for the defense, possess that 6000 other physicians did not?
WHO DID DEAN GROVE COMMUNICATE WITH EARLY ON TO INITIATE THIS ACOEM MOLD POSITION PAPER, THAT WERE ?NOT INVOLVED? IN IT?S DEVELOPMENT?
COULD THEY POSSIBLY BE STAKEHOLDER LOBBYISTS?
MOLDING THE LIVES OF MANY
The ACOEM Statement was leaked to the medical community on approximately OCTOBER 27, 2002. This date is the same date the paper was accepted by the ACOEM Board of Directors to be the position statement of the esteemed ACOEM. This leak went out through the Duke University, occ-env-med-L, which is the environmental medical community’s internet chatboard. It was only on the chatboard for a minute period of time before the host of the board was asked by Dreger of the ACOEM to retract the post. Even with just minute posting time, it still caused quite a stir and scurrying on the part of the inner circle of the ACOEM.
The reason being, the ACOEM STATEMENT WAS STILL IN ROUGH DRAFT FORM ON OCTOBER 27, 2002, THE DATE OF IT’S ACCEPTANCE BY THE BOARD MEMBERS OF THE ACOEM. Attached collectively as Exhibit 36 are true and correct copies of the following emails, demonstrative of the scurrying and confusion the situation caused:
Email, Dr Sudakin, (who also works in the expert testimony field) dated November 8, 2002: Sudakin is apologizing for posting the rough draft on the Duke chat board.
Email, Bryan Hardin of GlobalTox, November 7, 2002: Hardin is apologizing to Dreger for being “a nag along the way, but WAS GETTING NERVOUS THAT THE ACOEM BOARD MIGHT BE GETTING COLD FEET AND BACK AWAY. I’m much relieved to find it posted. Thank you again.”
Email, Dr. Hodgson, dated November 5, 2002: DR. HODGSON IS QUESTIONING whether the authors’ paper was based on “not just what we believe…”
Email, Dr. Harbut, dated November 4, 2002: Harbut is asking, “DO YOU KNOW IF THE AUTHORS HAVE ANY POTENTIAL CONFLICT OF INTEREST, SUCH AS HAVING BEEN RETAINED AS EXPERT WITNESSES BY ANY ATTORNEYS??
Email, Bryan Hardin, dated November 5, 2002: Stating, ” MY REACTION TO THIS REQUEST IS TO SAY THAT HE WHO DEMANDS TO SEE A CONFLICT OF INTEREST STATEMENT SHOULD OFFER HIS FIRST.?
Email, BERNACKI, PRESIDENT OF THE ACOEM AT THE TIME And dated November 8, 2002, Stating, “Because of that interest, this evidence-based paper underwent strenuous and extensive peer-review, and a “Conflict of Interest” statement was obtained from the authors of the paper.
Attached collectively as Exhibit 37 are true and correct copies of three emails from HARDIN, SAXON AND KELMAN respectively and dated NOVEMBER 5, 2002. This was ONE FULL WEEK AFTER THE BOARD?S ACCEPTANCE of the Rough Draft ACOEM Statement, and WELL AFTER THE completion of the supposedly unbiased and extensive PEER REVIEW PROCESS. What these emails indicate is that, NOT THE ACOEM BOARD of Directors, NOT ONE-HUNDRED-ONE critical peer reviewers, but the known defense experts authors of the original paper themselves:
HARDIN, KELMAN AND SAXON WERE THE ONES WHO HAD FINAL EDIT over the ACOEM Statement.
In Hardin’s November 5th email he stated, “I’VE PROOFED THE DRAFT ON THE WEB PAGE AND HAVE THE FOLLOWING EDITS: “This statement was then followed by twelve edits made by Hardin on November 5, 2002.
Saxon’s November 5th email stated, “I HAVE PROOFED THE PAPER AND HAVE ONE ALTERATION.”
Kelman’s November 5th, 2002 email stated, “I HAVE NO FURTHER EDITS BEYOND THOSE OF MY CO-AUTHORS. In light of the current developments, I urge you to POST THE CORRECTED VERSION TOMORROW (Wed) If you possibly can. The level of noise and misquotation is reaching a deafening level out here on the west coast!”
SLAPPED INTO SUBMISSION? NO!!!!
I have been sued for libel by toxicologist, Bruce Kelman (Kelman), and the environmental risk management corporation of which he is a principal, GlobalTox, Inc. (GlobalTox). The false accusation of libel stems from a press release that I authored in March of 2005, regarding a lawsuit filed by the Haynes’ family against their builder, Adair Homes,…It is a construction defect/mold case. The press release was place on PR Web, a free internet press release site. I paid $300 to have assistance with the formatting and to have the press release expedited. To date, it has been read by no less than 1800 media journalists and 142,000 people from the PR Web site alone…
The phrase that Kelman and GlobalTox allege is a libelous accusation of perjury on my part is “altered his under oath statement”. The phrase was used within the sentence, “Upon viewing documents presented by the Haynes’ attorney of Kelman’s prior testimony from a case in Arizona, Dr. Kelman altered his under oath statement on the witness stand.” GlobalTox was not even referenced in the allegedly libelous sentence. Kelman obviously did “alter his under oath statements” as displayed in the attached Exhibit.
During Kelman’s testimony, questions turned to money that the Manhattan Institute, a national political think-tank, had paid Kelman’s company, GlobalTox, for a broadly marketed version (Manhattan Institute Version) of a paper he had co-authored, along with another principal of GlobalTox, Bryan Hardin (Hardin).
The original paper was written for the American College of Occupational and Environmental Medicine (ACOEM), a national medical policy-writing body. The third coauthor, Andrew Saxon, also does expert witness testimony for the defense but is not a principal of GlobalTox.
The Manhattan Institute Version is an edit of this original paper that is entitled “Adverse Human Health Effects from Mold in an Indoor Environment, Evidence Based Statement” (ACOEM Statement). Attached hereto as Exhibit 6 is a true and correct copy of the ACOEM Statement. Attached as Exhibit 7 is a true and correct copy of the Manhattan Institute Version.
During Kelman’s testimony in the Haynes case, when the payment from the Manhattan Institute was brought into question, the interaction between Mr. Vance (Vance), the Haynes’ family attorney, and Kelman, took on a more confrontational tone. At one point, Kelman stated, “Sir that is a complete lie.” In response to the question, “….So you participated in writing the study, your company was paid very handsomely for it, and then you go out and you testify around the country legitimizing the study that you wrote. ISN’T THAT A CONFLICT OF INTEREST, SIR??
Prior to the Manhattan Institute money question, the line of questioning was of revisions made to the ACOEM Statement before it’s publication. Kelman and Hardin both were involved in the pre-publication edits of the ACOEM Statement. Vance switched from questioning about the ACOEM Statement itself, to ask about the Manhattan Institute Version.
When originally asked the question by Vance, “All right. And, isn’t it true that the Manhattan Institute paid GlobalTox $40,000 to make revisions in that statement” Kelman replied “That is one of the most ridiculous statements I have ever heard.” Vance then referenced the case from Arizona, Killian vs Equity Residential Trust, et al., Case No. CIV 02-1272-PHX-FJM, United States District Court for the District of Arizona (Kilian), and said, “Well you admitted to it in the Killian deposition, sir.” Kelman replied, “No I did not.”
Thereafter, the Kilian trial transcript was admitted into the record allowing the line of questioning to continue. Kelman was then asked by Vance, “Would you read into the record the highlighted portions of that transcript, sir?” Kelman read from the Kilian transcript, “And that new version that you did for the Manhattan Institute, your company, GlobalTox got paid $40,000, Correct? “Yes, the company was paid $40,000 for it.” Attached hereto….
In the above referenced exchange, the direct question was asked of Kelman if the Manhattan Institute had paid GlobalTox for revisions to the ACOEM Statement. Kelman replied with an INDIGNANT AND FALSE DENIAL. If Kelman was confused as to whether Vance was asking about the ACOEM Statement or the Manhattan Institute Version, yet was INTENDING TO BE FORTHRIGHT in his testimony, a more appropriate answer may have been, “Yes, GlobalTox was paid $40,000 for a revision of the ACOEM Statement, but that was much later.”
KELMAN CHOSE NOT TO CLARIFY the payment from the Manhattan Institute at that time in his testimony. Only after the Kilian transcript was permitted into the court record, which allowed the line of questioning to continue, did he attempt to explain the relationship between the ACOEM Statement and the Manhattan Institute Version.
In his attempted explanation, Kelman ALTERED back and forth in describing the relationship of the two papers…
Regarding the on-going case of Haynes vs. Adair Homes, I truthfully stated the sequence of events of Kelman’s testimony as I understood them at the time, and still understand them to be. I STAND BY ALL SENTENCES WRITTEN IN THE PRESS RELEASE authored by me including, “Upon viewing documents presented by the Haynes’ attorney of Kelman’s prior testimony from a case in Arizona, Dr. Kelman altered his under oath statements on the witness stand.”
Kelman did in fact, “alter his under oath statements”. Whether an altered under oath testimony constitutes perjury would be a matter OUR COURTS WOULD NEED TO EXAMINE AND LEGALLY DECIDE. I am not qualified to make such a determination. NOR DID I IN THE PRESS RELEASE I AUTHORED.
WE NEED OUR PHYSICIANS TRAINED & THE PUBLIC INFORMED
In conclusion, I would like to share a letter authored by a mother whose lives will forever be impacted because NO ONE told them that mold can be extremely hazardous to one’s health.
Thank you so much for running Jeff Manning?s article on Broken Homes in the Sunday edition, and the subsequent stories. I and my family were part of Sunday’s story. Jeff was a pleasure to talk to and, in my opinion, did an amazing job sifting through a boatload of information to present a succinct and balanced version of the dilemma that exists between builders and consumers.
But there is so much more to say.
In the last two years our story has been told several places, including Consumer Reports (Jan. 2004), KATU, KPTV, KOIN and KGW, and an earlier story by the Oregonian. As a result, the stories show up in internet searches regarding mold and housing defects, and people from all over Oregon, as well as the country, have contacted me to tell me their stories as well as ask for my help finding professionals with solutions to their health problems. I’ve heard so many sad stories that some days I can’t answer my phone. I do NOT find it comforting to learn that we are not alone.
It is wrong that people who have been exposed to mold can’t go to their local doctors and receive appropriate help. Over and over I hear from people who are symptomatic and are put on antibiotics… another mold. Many are told that they are imagining things. The industrial hygienist who testified against us, called it hysteria. I believe it’s an epidemic in this country, and the experts for the defense are well paid to say it isn’t.
You have two camps: the mold victims who are sick and who frequently have lost their homes, and you have the building and insurance industries, who have everything to gain by keeping this under wraps and who have deep enough pockets to do so. Does that raise any red flags for anyone? Isolated, ill and destitute vs. well organized and well funded. It?s a miracle that we’ve managed to get as much information out as we have against those odds.
Dr. Emil Bardana, one of the leading mold naysayers, is quoted in Jeff’s article. He says, “The scientific evidence in the journals has been totally inadequate to establish a causal relationship between the mold found in homes and the adverse effects that are being alleged today.” He didn’t say there IS no relationship. He?s simply saying the published science doesn’t support it, a statement I and the qualified doctors I’ve spoken with, disagree with.
(Check out www.mold-help.org for links to thousands of studies that support a correlation between mold exposure and health problems.)
I’m convinced of the danger of mold. I’ve lived it. I’ve watched my kids suffer because of it. I watched one child stop talking. I watched the other claw at his own face and call himself stupid out of frustration over lost skills. I don’t need any literature. But let’s assume for a moment Bardana is correct that there is no scientific evidence. Are we really willing to risk our children’s brains til every bit of evidence is in? Bardana and his colleagues gambled my boys brains on their lack of evidence and my kids lost.
Acknowledging the truth about mold will cost money… I understand that. To borrow a phrase, how much is your child’s brain worth?
Here’s the part that should scare us all. My children’s symptoms look like autism. They are both in special classrooms, and Oregon is obligated by law to see that they are educated to the age of 21. I read recently that educational services for an autistic child will total $2 million. If I, my medical experts, and the parents of the other children with symptoms like mine who were mold poisoned are right, and th exponential rise in diagnosed autism in the northwest is partly related to self-composting houses, WE’RE ALREADY PAYING FOR IT. Your tax dollars and mine will pay for my children to receive $4 million dollars in services.
So here’s an idea… let’s hold builders accountable for substandard work.
Outlaw binding arbitration that is intimidating, expensive, and loaded in favor of builders, giving them no incentive to build properly. See that inspectors protect us as they are paid to do.
Obligate builders to insure themselves properly, as is currently required by law, but not enforced.
Establish record keeping that flushes out the individuals who operate without ethics, and prevent them from dissolving companies and re-forming under new names.
If the Homebuilders’ Association is sincere about solving these defect problems, they should NOT circle the wagons around the bad builders who are responsible for driving up liability insurance for them all. They should establish ethics WITHIN their industry, if not to do what’s right, at least to lower their liability.
Oregon needs to hold public hearings on these issues. As someone recently told me, Task forces are the mechanism that governments use to shove things under the table. Have a few meetings, invite the press, have technically ignorant legislatures & lobbyists there to promise the world, plan the next golf game and decide who’s turn it is to buy dinner. I’m not surprised the Homebuilders’ Association suggested it. I’m sure they already have the taskforce members picked out.
I encourage all victims of shoddy building practices and all mold victims to visit the HADD website and register their complaint. Then contact your politicians to pressure them into holding public hearings. The financial cost of this problem is affecting us all. And I’ve seen the human cost – it’s immeasurable.
Sincerely, Renee Haynes
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