Third in a three-part series
- Part 1: Toxic Science: Fiddling Facts For Profit & Legal Leverage
- Part 2: How-To Skew Experiment Design To Produce Predictable Results
- Sidebar: Hoodwinking Whole Foods, Stonewalling Thermos
Note: Eastman Chemical is also the manufacturer of MCHM, the chemical in the huge West Virginia river pollution incident. The company has been accused of inadequate testing of that chemical and deliberately downplaying its toxicity in official documents. For more, see: MCHM could be more toxic than reported, new study says.
In the second part of this series, we looked at how Eastman executives embarked on a strategy of misinformation based around testing only those parts of the finished Tritan plastic that would not exhibit estrogenic action (EA) while making sure not to test the components they knew would exhibit EA.
The goal was to promote the EA-free components as if they were the complete plastic. Simultaneously an order went out to Eastman execs that, “we need to do everything possible to convince the customer NOT to do EA testing.”
That article closes out with an article in a peer-reviewed journal looking at the unethical implications of using such “selective presentations,” (half-truths).
By Lewis Perdue
While Eastman Chemical scrambled to create science that backed up its marketing claims, PlastiPure/CertiChem continued to hammer away at customers with the kind of data that Eastman did not have: a peer-reviewed paper published in a top-tier scientific journal.
Eastman Pays Scientific Hired Guns To Write A Derogatory Comment Letter
Without any peer-reviewed scientists to counter the PlastiPure/CertiChem paper in Environmental Health Perspectives, Eastman began shopping around for scientists it could pay to disparage the peer-reviewed PlastiPure/CertiChem paper.
As discussed in “How To Separate Good Science From Sketchy Tales,” as soon as a peer-reviewed paper is published, it’s open for scrutiny by the entire scientific community.
An important part of that scrutiny are comment letters that often point out flaws in design, or perhaps note that data has been hand-picked to exclude items that run counter to the published conclusion.
Based on these letters and comments, papers are sometimes amended, corrected or — in the extreme — retracted entirely.
Eastman Firm About Hiding Its Role
In the case of the PlastiPure/CertiChem paper, Eastman didn’t want the public, the scientific community, its customers or the courts to know it was pulling the strings from behind the scene.
So, on March 21, 2011, Eastman exec James Deyo emailed Marc Schurger at SPI – a plastics industry trade and lobbying association looking for scientists he could hire to write a comment letter slamming the PlastiPure/CertiChem paper in Environmental Health Perspectives.
“I am looking for the names of people who would be appropriate to criticize the journal for publishing this type of marketing science,” Deyo wrote.
Schurger replied positively, and noted that they should bring in the American Chemical Council (ACC – another trade with a lobbying operation).
On April 8, ACC’s Becker emailed SPI’s Schurger and Eastman’s Deyo that he had located two people who, for $15,000, would write the letter Eastman required. The email noted,that the letter would be a joint project of SPI and ACC with the fee being split 50-50 between the two trade groups. Eastman was, and is, a major member of both SPI and ACC.
According to the University of California San Francisco’s Truth Tobacco Industry Documents (formerly known as Legacy Tobacco Documents Library, Borgert — mentioned in the email above — was a “Confidential Consultant” to the R. J. Reynolds Tobacco company during the time that A. Wallace Hayes was that company’s main scientist in charge of obscuring the science behind the dangers of tobacco. More about Hayes, below.
Eastman’s Covert Proxy Attack Offers It Deniability
Taking the responsibility for the letter out of Eastman’s hands allowed it to say (technically) that it didn’t hire the writers or pay them.
The lead author on the hit-piece letter, Chris Borgert, is a former RJ Reynolds tobacco company science consultant who founded his own science-for-hire consulting company, Applied Pharmacology and Toxicology.
He has a record of being skeptical of mainstream science including arguments against tobacco health risks. His role as an important legal consultant is verified in a number of documents such as this one: to help RJ Reynolds in a lawsuit.
Significantly, Borgert’s memo was sealed by the court, barring any sort of public examination of the evidence or the merits. This is a tactic extensively used by tobacco companies defending themselves against health-related lawsuits.
Equally significant is Eastman’s success in having most of its filings kept secret in its lawsuit against PlastiPure/CertiChem. In the cases of both Eastman and the tobacco companies, keeping the facts secret in a court case allows them great leeway to spin the facts however they wish without fear of being contradicted by the evidence.
Borgert And Kelce’s Letter For Eastman Is Published, No Disclosure Made Of Conflicts Of Interest
Borgert and Kelce’s letter as covert proxies for Eastman — “In Vitro Detection of Estrogen Activity in Plastic Products Using a Sensitive Bioassay: Failure to Acknowledge Limitations” — was published by Environmental Health Perspectives.
The journal editors were never informed of the conflicts of interest or the that the authors had been head-hunted and paid to write the letter.
The Eastman proxy letter led to a published response from PlastiPure/CertiChem (“Estrogen Activity in Plastic Products: Yang et al. Respond”)
The letter and response, not coincidentally, foreshadowed legal arguments and experts later found in Eastman’s lawsuit.
Eastman Raises The Stakes, Designs and Secretly Pays For A Proxy Scientific Paper
An examination of the lawsuit Eastman eventually filed against PlastiPure/CertiChem shows that the letter that Deyo was soliciting, and the poster study were key parts of the evidence that Eastman was creating for the jury.
But at this point, they still lacked the peer-reviewed the crown-jewel in their legal and marketing science campaign.
That had to be fixed. A study had to be created.
But, as the documents below illustrate that the company knew that to have maximum impact and credibility, they would have to conceal their involvement with it just as they had with the comment letter to Environmental Health Perspectives.
11:34 a.m., March 26, 2012 – Eastman Discusses Hired Gun For Paper
The effort began on March 26, 2012 when Emmett O’Brien, a senior chemist, with Eastman Chemical wrote James Deyo and other corporate execs to say that they needed to find a way to publish the data that Ceetox had previously developed for the poster.
O’Brien asks if Eastman is “willing to pay 10k to have Tom Osimitz [the proposed third-party writer of the monomer paper]…. I would think 10k is worth getting Tom to publish the work.”
Osimitz is a contract “hired-gun” who founded the science-for-hire consulting firm called Science Strategies.
O’Brien’s email is sent at 11:34 a.m., and by the end of the work day — 4:24 p.m., the Eastman execs conclude that:
- they should pay Osimitz,
- Eastman should hide its role and,
- the paper should hide any conflicts of interest by Osimitz or Scientific Strategies.
Eastman’s proxy paper strategy timeline shaped up like this:
12:18 p.m., March 26, 2012 – Third Party Brings Credibility
Eastman exec Peter Miller asks about mentions of Eastman and concludes that a third party brings credibility.
1:06 p.m., March 26, 2012 – No Eastman Mention & Hide Conflicts Of Interest
Senior Chemist Emmett O’Brien notes the benefits resulting from “no Eastman author, nor mention of Eastman. It is also stated in the paper that there is no conflict of interest by the lab. The fact that Eastman sponsored the research was disclosed to the editors but not mentioned in the paper.”
The last part of that sentence — written in past tense — hints (but does not prove) that O’Brien may have already had a conversation with a journal editor who has agreed to the terms.
The paper would eventually be published without conflict of interest statements.
The lack of disclosure would ignite an intense court hearing in which Eastman lawyers would repeatedly beg the judge to keep the jury in the dark about it. More about that below.
2:23 p.m., March 26, 2012 – No Eastman Mention Means More Credibility
2:51 p.m., March 26, 2012 – Hired Gun Approved
4:24 p.m., March 26, 2012 – “Stretch Till Things Break”
Eastman’s James Deyo, Senior Toxicologist, writes to Osimitz, giving him the go-ahead on ghost-writing the monomer paper and describing how the experiments are to be designed. Previous data will be re-cycled and reorganized.
With regard to data and experiment design, Deyo says that, “We can stretch until things break.”
The image, below, is the only image of the poster in question that could be found online or in court records. Its existence seems to have been scrubbed. This image also appears in article 2 of this series. It is repeated here for context. Click image to enlarge.
A Graph Of The Hired-Gun/Eastman Ecosystem
This graphical link charts some of the ecosystem links among the hired guns, organizations and Eastman executives.
Osimitz Study/Paper – Like The Poster – Was Not An Actual Test Of Tritan Plastic
Just like the poster it imitated for methods, design, and data, the Osimitz study that Deyo and other Eastman personnel designed and micromanaged down to the small details is half a study. It looks just at the Tritan monomers Eastman knew would be free of EA and previous “Oh shit!” moments as described in Predictable Outcomes: How-To Skew Experiment Design To Produce Predictable Results.
Eastman’s proxy paper by Osimitz: “Lack of androgenicity and estrogenicity of the three monomers used in Eastman’s Tritan™ copolyesters was published in the June 2012 issue of Food and Chemical Toxicology.
“Eastman Tritan™ copolyester, a novel plastic from Eastman…”
Significantly, the first sentence of the Osmitz proxy paper echoed Eastman’s legal and marketing actions that have created the misleading impression that Tritan applied to the finished plastic rather than just three monomers.
Osmitz’s first sentence reads:
“Eastman Tritan™ copolyester, a novel plastic from Eastman….” [emphasis added].
Even SPI, the plastics industry trade association says that monomers are resins, constituents of plastics, not the plastic itself.
To be plastic, the monomers have to be made into polymers — created in a polymerization process that links monomers together in long chemical strings.
According to SPI: Definitions of Resins — “When units of a single monomer are hooked together, the resulting plastic is a homopolymer, such as polyethylene, which is made from the ethylene monomer. When more than one monomer is included in the process, for example, ethylene and propylene, the resulting plastic is a copolymer.”
The three monomers in Tritan are copolymers that are combined with other ingredients to make finished plastic item.
As previously confirmed in this article series, all Tritan plastic products tested so far have tested positive for EA by both PlastiPure/CertiChem and other labs not connected to either party in the lawsuit.
Monomer Vs Plastic: Technical Distinctions Easily Confused By Non-Scientists
To a layperson on a jury the fact that monomers are distinct from finished plastics is easily confused, especially when a key trial witness like Osimitz refers to the monomers as plastic.
The same semantic device has been employed in Eastman’s marketing and advertising.
Also ubiquitous on the web:
Failure To Disclose Conflicts Of Interest In Osimitz Study A Major Source of Eastman Embarrassment
The 1:06 p.m., March 26, 2012 email from Eastman toxicologist Emmett O’Brien made it clear from the beginning that Eastman’s role would be hidden and that no conflict of interest would be declared in the article. The further statement in that email: “The fact that Eastman sponsored the research was disclosed to the editors but not mentioned in the paper,” seems to imply collusion with the editor involved.
Whether agreeing to exclude or forgetting to include the conflict of interest disclosures is a massive ethical error on the part of the journal. An addendum was added more than a year later — but only after after the Osimitz paper was used as a key piece of evidence in the Eastman lawsuit against PlastiPure/CertiChem.
There is no hard proof that A. Wallace Hayes — the Founder and Editor-in-Chief of Food and Chemical Toxicology, agreed to conceal the conflict of interest statements.
However, two sources formerly associated with Food and Chemical Toxicology insist that many of the journal staff feels that the chemical industry has been unfairly treated by other journals. As a result, “favors have been done,” said one source.
“Getting a scientific paper published is usually a long, time-consuming and highly uncertain process,” said the other source. “O’Brien was wired in. That’s how he was so certain that we’d publish the Osimitz paper and that the conflicts would accidentally be left off.”
Both sources said they the paper was not reviewed by anyone outside the journal.
We emailed Hayes for comment via the journal’s email system on July 9, 2014. On July 14, we received this reply from Tom Reller, Vice President, Global Corporate Relations, Elsevier which now publishes Food and Chemical Toxicology:
“Dear Lewis, on behalf of the Food and Chemical Toxicology journal, we’ve checked with the EiC [Editor in Chief – Hayes] and can assure you no agreement ever existed. In fact the COI was published last December  . http://www.sciencedirect.com/science/article/pii/S0278691513006273
[NOTE: In the light of emails and other court evidence presented in this series of articles, it must be noted that the belated “disclosure” fails to address most of the conflicts of interest involved.]
“In regard to the two people you’ve interviewed to suggest some sort of agreement did exist, there must be a miscommunication or misunderstanding.
“If you care to provide their names I’d be glad to help us sort it out.
“And also it’s not clear to us which court documents indicate an agreement existed either, perhaps you could send me the specific language you are referring to.”
We responded that day with the information that we were not able to reveal the names of our sources. We also sent to Reller the information and documents in this email.
We await a reply.
We also emailed Hayes July 14 at his personal address for comment. No reply has been received.
If replies to either of those emails are received, they will be added here.
Hayes: A Previous Record Of Promoting Questionable Scientific Studies
By way of historical and scientific context, it is significant to know that A. Wallace Hayes has a background heavy with his previous involvement in one of the world’s most unethical and deadly industries: tobacco.
As a long-time, top scientific executive with the R.J. Reynolds tobacco company Hayes played a key industry role in smothering science concerning the health effects of tobacco while assisting efforts to make that product seem harmless.
His work in that vein demonstrates a willingness to disregard science he personally disagrees with and to support that which is beneficial to corporate interest regardless of health effects.
The following biographical excerpt from a 2001 R.J. Reynolds document maintained by the University of California, San Francisco’s Truth Tobacco Industry Documents (formerly known as Legacy Tobacco Documents Library) offers some context:
“Dr . A . Wallace Hayes is vice president – biochemical/biobehavioral research of R .J . Reynolds Tobacco Co ., a subsidiary of RJR Nabisco, Inc.
“Hayes joined Reynolds Tobacco in 1984 as director of biochemical/
biobehavioral research and development and as corporate toxicologist for RJR Nabisco, Inc .
“He was promoted to a group director at Reynolds Tobacco in 1985, and to his current position in September 1987 .”
The full document is here: https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/#id=jpnh0078
Hayes has tried in recent years to whitewash his substantial tobacco legacy. Numerous, more recent biographies omit his tobacco company heritage.
Hayes Documents Loom Large in University Tobacco Archive
Because of his world wide prominence as part of R.J. Reynolds Tobacco and his ability to alter science to the benefits of tobacco, a search for Hayes on the UC San Francisco tobacco archive site returns more than 5,200 documents.
An Exemplar: Hayes Memo Killing A Secondhand-Smoke Study
Typical of his efforts to kill research into tobacco’s health effects is this letter ordering the German subsidiary to kill a proposed study on secondhand smoke (known as Environmental Tobacco Smoke, ETS).
In addition, Borgert — Eastman’s lead hired-gun author of the letter trashing the PlastiPure study — also served as an R.J. Reynolds consultant in the effort to debunk the health effects of ETS. Given Hayes’ position as the top scientific executive at R.J. Reynolds, Borgert’s work there probably had the approval of Hayes.
Conflict Of Interest Concealment Of Great Concern To Journals, Courts, and Scientific Credibilty
Credible peer-reviewed scientific journals require a statement by all the study authors to disclosure of conflicts of interest when the article appears.
That is a key reason that the failure of Osimitz and his co-authors to declare their conflicts of interest was so serious.
At a fundamental level as relates to Hayes and Osimitz, the failure (along with a possible agreement) to omit conflicts of interest violated the ethics rules of Food and Chemical Toxicology which says, among other things:
“Food and Chemical Toxicology follows the ICMJE recommendations regarding conflict of interest disclosures. All authors are required to report the following information with each submission:
- “All third-party financial support for the work in the submitted manuscript.
- “All financial relationships with any entities that could be viewed as relevant to the general area of the submitted manuscript.
- “All sources of revenue with relevance to the submitted work who made payments to you, or to your institution on your behalf, in the 36 months prior to submission.
- Any other interactions with the sponsor of outside of the submitted work should also be reported.
- Any relevant patents or copyrights (planned, pending, or issued).
- Any other relationships or affiliations that may be perceived by readers to have influenced, or give the appearance of potentially influencing, what you wrote in the submitted work.
“As a general guideline, it is usually better to disclose a relationship than not. This information will be acknowledged at publication in a Transparency Document.”
Clearly, a review of emails and other court evidence above indicates that this paper violated five of the six requirements.
An incomplete disclosure was finally published online a year later — September 5, 2013: Addendum to “Lack of androgenicity and estrogenicity of the three monomers used in Eastman’s Tritan™ copolyesters.
That disclosure failed to describe Eastman’s covert, financial and detailed complicity in:
- paying the chief investigator a personal fee,
- controlling the most minute details of the study,
- demanding anonymity and,
- dictating the study’s conclusions.
Even if that belated transparency had been acknowledged, the addendum came after the trial was over and the credibility of key evidence had been concealed from the jury. Finally, the addendum offered no explanation for its initial absence or the delay in finally publishing it.
Keeping Ethics Violations Away From The Jury
Keeping the conflicts of interest a secret was vital because the Osimitz paper served as a centerpiece of Eastman’s lawsuit against PlastiPure/CertiChem.
And because of its pivotal role in the lawsuit, the absence of a conflict of interest statement became a heated — and sometimes humorous — exchange at the bench as Eastman’s lawyers practically begged the judge to keep the jury from learning about the ethical violations.
Eastman’s lawyers continually professed to the judge their amazement about why the conflict of interest was not included. No one asked Hayes or subpoenaed him to answer the question.
However, the Eastman email thread referenced above — and which the attorneys had read — explained the reasons for the secrecy very well.
This is especially true of Senior Chemist Emmett O’Brien’s 1:06 p.m. email describing the arrangement with the publication.
We emailed Wallace Hayes, the founder and editor-in-chief asking for comment on the deal, but received no reply.
Court Transcript On The Missing Conflict Statement Informative, Often Amusing
The following excerpts from a Court Transcript offer a sense of the discussion that took place before the judge but out of earshot of the jury.
Pages 5 & 6
THE COURT: Well, you’ve had an article.
MR. HARRISON [Eastman Attorney]: Yes, sir.
THE COURT: A publication.
MR. HARRISON: Yes, sir.
THE COURT: Apparently there was a draft of it and then, a final publication and it’s published.
MR. HARRISON: Exactly. And the published article, there’s no problem with it, your Honor.
THE COURT: Well, but your problem is who paid for it. That they’re going to say you paid for it; therefore, there’s no validity to it. [emphasis added]
MR. HARRISON: Yes, sir. [emphasis added]
THE COURT: Okay.
MR. HARRISON: And I just — all we want —
THE COURT: We see that all the time.
MR. HARRISON: Well, of course. But we see that in the context of our rules, our evidence, and we can handle that here.
It’s hard for us to handle, though, if it’s a press release to the United States that Eastman hid the fact that it funded the study. Eastman had no control over what that paper ultimately said. That’s the problem, your Honor.
We shouldn’t be put to the task of having to defend out in the public arena something like this. [emphasis added].
Transcript Page 5
Eastman attorneys continue insist that the proper disclosures were given to the journal editor and, somehow omitted.
No mention was made at this point of the Emmett O’Brien, March 26, 2010, 1:06 p.m. email mentioning an agreement that the editor would be informed but no conflict disclosures would be printed.
MR. HARRISON: For instance, with the journal there are statements by the five authors that they were funded by Eastman in participating and writing the paper. Those have never been made public, and, for whatever reason, the scientific journal that published the paper did not make any mention [emphasis added] that Eastman funded the study.
[Eastman attorneys keep pressing for the lack of disclosure to be kept from the jury.]
THE COURT: It’s not the Court’s inclination. What I’m telling you is everything that’s sealed is because y’all asked it. If you’re going to complain about it, I’ll release it.
I think everything ought to be in the public, anyway.
But you can’t file a lawsuit, suing for millions of dollars, and then, come in and say, there may be something that they can find and they’re going to say something ugly. [Emphasis added]
People say things ugly all the time, and if they say it erroneously, then you’ve got a cause of action against them. If they say it legally, you don’t have a cause of action against them.
[After considerable continued legal wrangling, the judge runs out of patience]
THE COURT: So why don’t you select something that you want me to declassify for them and y’all stop bothering me, and I’ll declassify one for each side until we have a trial? Let’s make it weekly.
I’d like to get y’all to bother me every week about what’s going to be in the press, as if a single juror is ever going to hear it, why the competitor market might be that type of thing.
The entire session transcript is here: Court Transcript-Eastman Begs To Keep Disclosure Conflict Secret
Does Concealment Of Eastman’s Role In The Osimitz Paper Constitute Ghostwriting?
Court documents have been clear that Eastman’s Deyo controlled most aspects of the study behind the Osimitz paper — from designing the experiment, selecting materials, methods and specifying information sources.
His relationship to Osimitz was remarkably similar to a practice — ghostwritten studies — that are so common in the medical field that an increasing number of voices are calling for legal penalties to stop the it.
This peer-reviewed journal paper even calls for criminal penalties: Legal Remedies for Medical Ghostwriting: Imposing Fraud Liability on Guest Authors of Ghostwritten Articles
Are There Fraud Implications Of Using Ghostwriting In Court?
The Legal Remedies for Medical Ghostwriting journal article explained why ghostwritten journal articles subvert the legal process:
“In the legal setting, peer-reviewed articles are credible sources of evidence that may be used in lawsuits to support claims about safety and effectiveness, and hence to determine liability .
“Industry-controlled publications that are prepared by ghostwriters or that use guest authors may distort perceptions about current knowledge concerning a product’s safety and effectiveness.
“For legal purposes, publication in peer-reviewed journals is one of the criteria that help to make a scientific theory or method admissible as evidence, according to the standards set out by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals .
“By facilitating publication in peer-reviewed journals, guest authorship creates the impression that standards of academic independence and integrity have been satisfied even when they have not, and makes it more likely that the research will be treated as legally admissible even when this is inappropriate.”
The footnotes link to references in the original paper which makes for informative reading as applies to the Eastman v. Plastipure/CertiChem case.
- Hired Gun Scientists: Insight: Science for hire – Trial over plastic exposes disclosure deficit — published by Reuters, July 18, 2013
- Excellent Trial Summary: Impure Plastic? — published July 8, 2013 by the academic publication, Inside Higher Ed.
- Lawsuit Not As Conclusive As Eastman Represents — Eastman Ekes Out Equivocal Lawsuit Win, Judge Says Verdict Not Necessarily Based On Trial Evidence