[Marxism] Science Consultant Pushes Back Against Unlikely Opponents
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Mon Oct 12 07:27:51 MDT 2015
(Fascinating story about shady consulting company that provides
testimony for hire in cases involving corporate polluters trying to
NY Times, Oct. 12 2015
Science Consultant Pushes Back Against Unlikely Opponents
By BARRY MEIER
Dr. Dennis Paustenbach, the head of the scientific consulting firm
ChemRisk, has long been a leading expert for companies under legal fire
for environmental practices or product safety. He and his firm have also
drawn the scrutiny of investigative journalists.
In 2005, The Wall Street Journal reported on a controversial role
ChemRisk played during the case that became the basis for the movie
“Erin Brockovich.” Seven years later, The Chicago Tribune raised
questions about a study by Dr. Paustenbach on the safety of flame
retardants. And a 2013 article by the Center for Public Integrity
examined his efforts to roll back a proposal concerning workplace safety.
Dr. Paustenbach has insisted that ChemRisk’s work is scientifically
sound and ethical, adding that plaintiffs’ lawyers have been behind the
attacks on its credibility. And until recently, the company had never
sued any publications or writers for defamation.
But the firm is now locked in a legal fight with some unlikely and
defiant opponents: two environmental activists who published an unpaid
article in The Huffington Post about ChemRisk’s work related to the
Deepwater Horizon oil spill.
“If they had not said a word and let it go, it would have slipped off
into obscurity,” said one of the authors of the article, Karen Savage, a
former middle-school math teacher who noted that the article was
initially read by only 400 people.
The lawsuit against Ms. Savage, 49, and her co-defendant, Cherri
Foytlin, 42, highlights how the Internet has blurred the line between
activists and journalists. But it also raises questions about why
ChemRisk is pursuing the case when it chose not to sue a more formidable
adversary, The Wall Street Journal, against which it raised similar
Thomas Clare, a lawyer who has long represented Dr. Paustenbach, said
the researcher was traveling and unavailable for an interview. In a
statement, ChemRisk, which is now a unit of Cardno ChemRisk, said its
goal in bringing the action was to “set the record straight and alert
anyone who chooses to publish false claims that they will be held
It also said that Ms. Foytlin and Ms. Savage had intended to write a
“hit piece,” and as long as the article remained online, its “falsehoods
will continue to do substantial harm to ChemRisk’s reputation.”
The two women appear unfazed. Without resources to hire a lawyer, they
initially represented themselves. And last year, after a New York state
court threw out ChemRisk’s original lawsuit on jurisdictional grounds,
Ms. Foytlin took to her Facebook page when the company again sued Ms.
Savage and her in Massachusetts.
“That’s cool fellas,“ wrote Ms. Foytlin, a mother of six who lives in
Rayne, La. “We’re up for Round Two. Bring it, but you betta go tell ya
Daddy that people with nothing to lose rarely do. See ya in Boston, Bruh.”
The two women are also fighting back. Pro bono lawyers who now represent
them recently filed a motion to get ChemRisk’s action dismissed under a
Massachusetts state law that protects activists from lawsuits intended
to chill advocacy on public policy issues. Such actions are known as
strategic lawsuits against public participation, or Slapp suits.
The paths of the women and ChemRisk converged not long after the 2010
explosion of the Deepwater Horizon oil rig in the Gulf of Mexico. Ms.
Savage and her four children, who live in Boston, have spent summers in
Louisiana. At the time of the BP incident, Ms. Foytlin had a part-time
job writing feature articles for her hometown newspaper, which has since
Both women said they became concerned about the potential health risks
of chemicals released by the rig’s blowout, as well as substances used
by BP to disperse the spill. Ms. Foytlin said she had taken a
BP-sponsored trip to the gulf to observe cleanup activities and returned
with a hacking cough.
“I was having trouble breathing,” she said. “My doctor thought it was
bronchitis, and that’s when I knew what people were saying about the
spill were right.”
In 2011, ChemRisk published a study that found no link between the
volatile chemicals released by the explosion and the health problems
that cleanup workers reported. ChemRisk described its study as
“independent,” but Ms. Savage had her doubts, which intensified after
she read an account in The Wall Street Journal about the firm’s role in
a lawsuit indelibly associated with Erin Brockovich, a clerk at a
California law firm who pushed the case forward.
In that episode, a utility, PG&E, was sued over chromium leaking into a
town’s water supplies. During those proceedings, it emerged that a 1987
study published by a scientist in China, Zhang JianDong, had found high
rates of cancer among residents of villages there who drank
PG&E hired ChemRisk to examine the data underlying Dr. Zhang’s report.
What followed has long been the subject of controversy.
In 1997, Dr. Zhang published a second study in which he appeared to
retract his earlier finding of a link between chromium-polluted drinking
water and cancer. But in 2005, The Wall Street Journal reported that
court papers indicated that ChemRisk had “conceived, drafted, edited and
submitted” that research to scientific publications without disclosing
its role in it. ChemRisk also paid Dr. Zhang $2,000 for his “research
assistance” on the study, the newspaper reported.
ChemRisk has insisted that it did nothing wrong and that Dr. Zhang
signed off on the report. But the professional journal that published
the study retracted it.
In 2013, Ms. Foytlin and Ms. Savage, who met before a protest march by
Gulf Coast activists from New Orleans to Washington, contributed an
article to The Huffington Post about ChemRisk and its Deepwater Horizon
In it, they charged that ChemRisk had a “long, and on at least one
occasion fraudulent, history of defending big polluters,” a reference to
their interpretation of The Journal’s article about the “Erin
A spokesman for Dr. Paustenbach immediately asked The Huffington Post to
retract the article. The website referred the complaint to Ms. Foytlin,
who posted a note on her Facebook page in which she told ChemRisk to
“kiss my derriere.”
ChemRisk then filed its defamation lawsuit. But the company, while suing
Ms. Foytlin and Ms. Savage, apparently opted not to file a similar
action against a more experienced opponent, The Wall Street Journal.
Responding to questions from The New York Times, ChemRisk initially
issued a statement saying that it had not sued the newspaper because it
believed that The Journal’s decision to publish several letters to the
editor had “set the record straight.”
But the company revised that stance after a Times reporter informed it
that a review of correspondence showed that ChemRisk had apparently
demanded that The Journal, long after publishing those letters, retract
or correct its article.
“If we had known that we’d still be dealing with the damaging falsehoods
in The Wall Street Journal article nearly 11 years after it was printed,
we definitely would have sued The Journal in 2005,” Mr. Clare, the
firm’s lawyer, said in a statement.
ChemRisk’s letters to The Journal a decade ago also indicate that it
made nearly identical claims about the economic and reputational damage
it had suffered from the newspaper’s article as the ones it is now
making in its lawsuit against Ms. Foytlin and Ms. Savage.
“The financial and professional impact of this story has now directly
resulted in the loss of millions of dollars in revenues for our
organization and this cannot be tolerated,” Dr. Paustenbach wrote The
Journal in 2006. “A retraction or correction of the record must occur.”
At a hearing scheduled for this week, a judge in Massachusetts is
expected to hear arguments about whether Ms. Foytlin and Ms. Savage
qualify for protection under the state’s anti-Slapp statute. And that
question may hinge on whether the women acted as journalists or as
activists seeking to influence public policy.
In court papers, ChemRisk has argued that the state law does not apply
to the women because, among other reasons, its protections are limited
to those participating directly in public policy decisions, like matters
before a town council.
Ms. Savage, who is studying journalism part time at the City University
of New York, said that she and Ms. Foytlin rejected an earlier offer
from ChemRisk to drop the case if they retracted the article and issued
an apology over social media. Their stance is unlikely to change.
“Just the idea that they think they can get anything from me,” Ms.
Foytlin said. “I have a mortgage, a 1999 Suburban and I have six kids.”
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