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Memo from David Egilman:
James Paustenbach and Brush Wellman


Mar 25, 2001

Corporate influence on American Conference of Governmental Industrial Hygienists TLV* guidelines: Beryllium TLV

[The Conference defines TLV (Threshold Limit Value) as "The concentration to which workers can be exposed for a short period of time without suffering from irritation, chronic or irreversible tissue damage, or narcosis of sufficient degree to increase the likelihood of accidental injury, impair self-rescue or materially reduce work efficiency." (Ed.)]

I have often submitted material to this list-serve indicating the corrupt nature of the process by which the Conference sets TLVs. As a result of this corrupt process and the resultant TLVs, many workers have died. We now have a unique opportunity to intervene in this process and stave off further deaths and injuries.

In approximately December 1998, Brush Wellman retained the services of James Paustenbach as a litigation consultant to help defend law suits by injured workers exposed to beryllium. While serving as a litigation consultant to Brush Wellman, Dr. Paustenbach organized a Brush Wellman-Conference sponsored joint conference on the Beryllium TLV in 1999. Dr. Paustenbach may have informed Dr. Wagner of the Conference of a consulting relationship when he called him to set up the conference but did not reveal his status as a litigation consultant in personal injury cases related to CBD filed by workers against Brush Wellman.

As a result of this conference the Conference withdrew its proposal to lower the TLV for beryllium. Dr. Paustenbach's work with the Conference was related to his litigation consulting. Dr. Paustenbach's company, Exponent (in which he is a stockholder), was paid over 1.5 million dollars by Brush Wellman or its insurance carrier for work which includes the forthcoming publication of 4 papers in "Applied Environmental and Occupational Hygiene." These papers support Brush Wellman's positions in the underlying lawsuits and they were funded as a defense cost in defending the litigation. Dr. Paustenbach has requested a further 1 million dollars in funding from Brush to continue his work in influencing the beryllium TLV.

At the conference, Dr. Paustenbach did not inform the Conference meeting participants of his or Exponent's litigation related consulting or income. During his two-day deposition in the case of Ballinger et al v. Brush Wellman on March 20 and 21, 2001 by plaintiff's counsel on this matter, Dr. Paustenbach called his staff to have them inform the journal of his connections to Brush Wellman. Dr. Paustenbach testified that the Conference has no tradition for disclosure of possible conflicts of interest.

In this Dr. Paustenbach is correct. We must change this if workers and not companies are to be protected by TLVs. I serve as a consultant to the plaintiffs in the Ballinger case and in seven others. Below is Dr. Paustenbach's sworn testimony from October 2000 in a Brush Wellman lawsuit.

David Egilman MD, MPH
759 Granite Street
Braintree, Ma 02184
781-848-1950 Ext 15
fax 425-699-7033

Paustenbach Sworn Testimony, October 2000 (in part):

Q. Okay. Are there any other articles, reports, papers, letters, opinions that you've written regarding beryllium that you haven't already mentioned?

A. In the spirit of trying to get this resolved, there have been papers, if you will, presented at scientific meetings over the last couple years that might fit under the umbrella of your question.

Q. Are those listed on your CV?

A. I believe they are.

Q. About how many such papers are we talking about?

A. More than five and less than 15.

Q. All right. Would you identify them for me from your CV?

A. How do you wish to identify them?

Q. If they're numbered, tell me the number. If not, read me the title.

A. It was presented in Orlando, Florida at the American Industrial Health Conference. The title was "Alveolar-deposited airborne particles of beryllium as a predictor of the prevalence of disease in a beryllium processing facility." The second paper presented at the same conference was called "Biomonitoring for beryllium in workers of a beryllium processing facility." The third paper presented at the same conference, "Chronic beryllium disease and beryllium sensitization at a beryllium mine and extraction facility." The next paper at the same conference, "The role of extrapulmonary exposure pathways in the prevalence of chronic beryllium disease and beryllium sensitization." Prior to that, at the Society of Toxicology meeting, I presented a paper called "Consideration of alternate exposure pathways in the possible relation to prevalence of chronic beryllium disease."

Q. Is that all?

A. To the best of my knowledge, yes.

Q. Dr. Paustenbach, would you just show me which page on your CV you were reading from.

A. Yes. Page 36 and 37.

Q. All right, thank you. There were, I'm gathering, four papers that you presented in Orlando, Florida. Correct?

A. That one of us presented. I don't recall that I presented any of them. I believe I'm an author on all of them, but I don't recall if I presented them.

Q. Do you recall actually presenting as speaker any of them?

A. (Witness peruses document.) I don't believe I presented any of these four papers. Now, I've answered the question previously, but for the sake of completeness, you do know I gave the paper that you've read, that you have a copy of, at the ACGIH conference. I did not list that, since I assumed you already knew about it.

Q. Okay. Fine. That's fine.

A. That one I gave, myself.

Q. All right. Have these papers been published in a collection of papers of this conference?

A. Not yet.

Q. Is that expected to happen soon? Do you know?

A. It's expected that they would appear sometime before June of 2001.

Q. In which journal?

A. "Applied Environmental and Occupational Hygiene."

Q. With respect to those four papers, did you have funding for them?

A. I think our firm received funding to help prepare the papers.

Q. That's Exponent?

A. Yes, sir.

Q. And who funded those papers?

A. Well, I'm not entirely certain.

Q. Do you have a general idea?

A. I would suspect that it would be Brush Wellman or its insurance carriers.

Q. Has any of the work that you've done been funded by Brush Wellman's insurance carriers?

A. I don't know.

Q. Why do you suspect that these papers may have been funded by Brush Wellman's insurance carriers?

A. Simply because of my professional history in the business.

Q. Could you explain to me what it is about your professional history that leads you to believe or suspect that these papers were funded by Brush Wellman's insurance carriers?

A. Quite often in tort work there is a claim to the insurance carrier, asking them for funding to pay for lawyers and expert witnesses and their associated bills. I assume that they have insurance, and I assume that they will ask for some sort of compensation at the end.

Q. In the past have you received funding from insurance carriers to prepare papers?

A. Well, it sounds -- the way you're wording it is a bit of a pejorative. One does research and then -- provided by someone, and if you can receive some support to support your time to write the publication up, that can sometimes be paid for by the company or its carrier. One never knows at the end of the day who's paid for it.