April 14, 2010
Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health by David Michaels is on our nightstands right now, and we cannot shake the feeling of déjà vu. Michaels, recently confirmed as the new head of the Occupational Safety and Health Administration and Assistant Secretary of Labor, writes about the attack, deny and delay tactics developed by Big Tobacco in the 1950s that have been adopted and refined to a fare-thee-well by countless other industries. Michaels is an epidemiologist, so his dizzying catalogue of bad actors focuses on chemical health hazards – tobacco, chromium, lead, beryllium, and the like.
But what caught our attention was his exploration of how manufacturers use science – or the appearance thereof – to raise enough doubt to clog the regulatory machinery and to persuade juries and the public that their products cause no harm by countering scientific studies indicating a hazard with their own bought-and-paid-for-research showing the opposite.
As recently as the late 1990s, tobacco executives were still making public statements denying the link between cigarette smoking and cancer. We can’t help but note a striking resemblance to Toyota’s insistence that its electronics play no part in sudden unintended acceleration in its vehicles, despite numerous instances of drivers battling run-away vehicles with no floor mats and no pedal problems; or vehicle engines that continue to race at wide open throttle while in “Park;” or vehicles that exhibit this behavior right in front of Toyota techs.
But consistent denial only gets you so far. What Big Tobacco needed – and got – was the imprimatur of science to lend legitimacy to the message. Michaels describes “swarms” of consultants and scientists manufacturing “uncertainty by questioning every study, dissecting every method and disputing every conclusion.” This assault on independent research was buttressed by other industry-sponsored studies that show no link between chemicals and disease or no exposure risks.
Among the product defense firms aiding industry Michaels mentions prominently is Exponent. He describes these companies, thus:
“Their business model is straightforward. They profit by helping corporations minimize public health and environmental protection and fight claims of injury and illness. In field after field, year after year, this same handful of individuals and companies comes up again and again. The range of their work is impressive. They have on their payrolls or can bring in on a moment’s notice toxicologists, epidemiologists, biostatisticians, risk assessors the work has one overriding motivation: advocacy for the sponsor’s position in civil court, the court of public opinion and the regulatory arena.”
In its 2009 Securities and Exchange Commission 10K filing, Exponent acknowledges that it is in the business of providing science in support of litigation:
“Many of our engagements are initiated directly with large corporations or by lawyers or insurance companies, whose clients anticipate, or are engaged in, litigation related to their products, equipment or service.”
Exponent also touts its ability to hustle data in a hurry:
“Our multidisciplinary team of scientists, physicians, engineers, business and regulatory consultants brings together more than 90 different technical disciplines to solve complicated issues facing industry and government today. Our professional staff can perform in-depth scientific research and analysis, or very rapid-response evaluations to provide our clients with the critical information they need.”
By Michaels’ calculations, industry’s need for speed plus a credible defense posture equals this:
“Exponent’s scientists are prolific writers of scientific reports and papers. While some might exist, I have yet to see an Exponent study that does not support the conclusion needed by the corporation or trade association that is paying the bill.”
Exponent is a frequent opponent of the plaintiffs’ bar in automotive defect litigation. According to Exponent’s 2009 SEC filing, “transportation industry-related engagements accounted for approximately 14% of our revenues for the fiscal year ended.”
Exponent entered the Toyota SUA picture in 2010, when Toyota began to lose control of the public perception and the investigative process. From 2003 to 2009, NHTSA accepted Toyota’s claim that its electronic throttle system could not fail without the engine control module taking note, despite chronic consumer petitions for investigations. But when Dr. David Gilbert, an automotive technology professor from Southern Illinois University Carbondale, unveiled at a Congressional hearing the results of preliminary testing that merely challenged the central tenet – that fault will always be detected – that had kept further inquiry at bay, Toyota needed a quick response. (See You Don’t Tug on Superman’s Cape)
This was exactly the sort of situation called for the convergence of science-for-hire and marketing that Michaels describes in Doubt is Their Product. On one front, language attacking Dr. Gilbert’s credibility is being tested in an online survey. (See Anatomy of a Smear). On a second front, Exponent offered a veneer of independent confirmation of Toyota’s electronics system.
Exponent, Inc., with standard rates of $95 to $800 an hour, and annual revenue in 2008 of $228 million, was given an “unlimited budget,” to delve into Toyota’s electronics. Its first rapid-response report tested Lexus and Toyota vehicles and found: “Exponent has so far been unable to induce, through electrical disturbances to the system, either unintended acceleration or behavior that might be a precursor to such an event, despite concerted efforts toward this goal.” (See Testing and Analysis of Toyota and Lexus Vehicles and Components for Concerns Related to Unintended Acceleration.)
A second Exponent report, rolled out in an elaborate press conference, more directly confronted Gilbert’s work. It found that the fault Gilbert introduced in the Accelerator Pedal Position Sensor was unlikely to occur: “For such an event to happen in the real world requires a sequence of faults that is extraordinarily unlikely. Furthermore, the individual “faults” required individually are far more likely to result in a detectable problem (for example, setting a trouble code or entering a fail-safe mode of operation), than combining in just the right manner to produce a sudden unintended acceleration (SUA)” Exponent also concluded that it could introduce faults in other manufacturers’ vehicles without a setting a trouble code.” (See Evaluation of the Gilbert Demonstration .)
Electronics experts serving as consultants to the House Committee on Energy and Commerce criticized the first Exponent report, according to a February 22 letter Committee Chair Henry Waxman and Bart Stupak, chairman of the Subcommittee on Oversight and Investigations, sent to Toyota Motor Sales President Jim Lentz. Michael Pecht, a professor of mechanical engineering at the University of Maryland, and director of the University’s Center for Advanced Life Cycle Engineering (CALCE), enumerated a number of deficiencies: a very small sample size, a focus on obvious and simple failures, the lack of a fault tree analysis or a failure modes and effects analysis (FMEA) of the myriad ways SUA could be triggered. Neil Hannemann, a highly-regarded engineer, told the Committee that the report “does not follow a scientific method” and fails to test “major categories” of potential causes of sudden unintended acceleration, including “electromagnetic interference/Radio frequency interference,” “environmental conditions,” the electronic control module (ECM), and “the software algorithms in the ECM.”
Why turn over this, what can only be described as quixotic, root cause quest to Exponent? Despite the company’s roster of 643 engineering and scientific staff, could any Exponent engineer know more about Toyota’s electronic throttle control system than its own engineers who not only designed it but wrote the Failure Modes and Effects Analysis that could provide so much insight? The Committee on Energy and Commerce complained that nowhere in the paper blizzard of 75,000 documents provided by the automaker was any indicating that Toyota had comprehensively tested or analyzed any electronic causes of sudden unintended acceleration – except for the Exponent report.
Perhaps this answer is also found in Michael’s book. In a chapter devoted to the hazards of chromium 6, a carcinogenic dust that is a byproduct of chromium processing, he details how the Chrome Coalition a trade association of chrome producers trying to stave off regulations to lower workers’ exposure limits, hired Chemrisk and Exponent. These outside consultants were introduced to the process through the coalition’s attorneys “so that materials produced by the consultants could be shielded under the attorney’s work product and attorney-client privileges.”
Another reason to do it this way is because it is remarkably effective. On the field of academic battle, Bowman & Brooke scared SIUC badly enough to shut down Gilbert’s work with Toyota accelerator pedal position sensors. And there isn’t much of a price to be paid in the public relations arena. While Rep. Bart Stupak, D-Mich., chairman of the Energy and Commerce’s Subcommittee on Oversight and Investigation, called the Exponent report “a flawed study conducted by a company retained by Toyota’s lawyers,” many news outlets reported the results of the Exponent report neutrally, without mentioning Exponent’s strong ties to industry defense litigation. The Wall Street Journal, for example, described Exponent as a “Menlo Park, Calif.-based engineering research firm.” BusinessWeek characterized it as a company that “provides scientific, medical and engineering consulting services in the U.S., Europe and China.” A few, notably the LA Times and CBS, put the hiring of Exponent into the larger context.
Manufacturing doubt ain’t cheap, but unlike the products it’s often used to defend, it works!