Fluorine Lawyers and Government Dentists "A Very Worthwhile Contribution" Although big corporations have long used the U.S. government's medical assurances about fluoride safety to defend themselves in fluoride-pollution cases, no collaboration between industry and the federal promotion of fluoride has ever been acknowledged. However, Robert Kehoe s papers show precisely such collusion, detailing how the fluoride research of the National Institute of Dental Research, ostensibly conducted to prove water fluoridation "safe," was covertly performed in concert with industry, which was aware that the medical data would help their Fluorine Lawyers battle American pollution victims and workers in court. THE REYNOLDS METALS Company employed a legal strategy during the Martin case that would become a staple in American courtrooms. Five years had elapsed since the Federal Security Agency administrator, Oscar Ewing, the former Alcoa lawyer, had endorsed public water fluoridation on behalf of the Public Health Service, which was under the FSA's jurisdiction. During the 1955 Martin trial in Portland, Reynolds reminded the court of fluoride's "beneficial" effects. Fluoride was being added to toothpaste, and 15,000,000 Americans now consumed more fluoride through their drinking water than the Martins had been exposed to, Reynolds's attorneys said. "This court has thus found to be "poisonous' an amount of fluorine FLUORINE LAWYERS AND GOVERNMENT DENTISTS 177 which scientific and judicial opinion has unanimously found harmless, Reynolds s lawyers argued. The only thing not explained is how the Martins could have suffered injury from something harmless to the rest of mankind," they added) Robert Kehoe also understood how public water fluoridation helped industry. His endorsement was featured in the profluorida-tion booklet, Our Children's Teeth. That booklet was simultaneously distributed to New York parents and to the judges on the Martin Appeals Court.' "The question of the public safety of fluoridation is non-existent from the viewpoint of medical science," he assured parents and judges alike.' Privately, however, Kehoe was not so sure. "It is possible that cer tain insidious and now unknown effects are induced by the absorption of fluorides in comparatively small amounts over long periods of time," he had told industry in 1956. 4 And in 1962 Kehoe told Reynolds s medical director, James McMillan, that there remained "a basic question concerning the non-specific effects of prolonged exposure to apparently harmless quantities of fluoride ( this by the way is the thing on which George Waldbott bases his entire campaign against fluoridation). 5 Kehoe and his Kettering Laboratory continued to soldier for water fluoridation during the 1950s and 1960s, assailing fluorida-tion critics as windbags and windmills. Kettering toxicologists Francis Heyroth and Edward Largent were prominent members of National Academy of Sciences panels that endorsed fluoridation. And in 1963 the Kettering Laboratory published an influential bibliography of the medical literature favoring fluoridation, entitled The Role of Fluoride in Public Health: The Soundness of Fluoridation in Communal Water Supplies. Kehoe saw how fluoride safety studies performed by government dental researchers helped his industry patrons in court. Farmers and workers would have a much harder time successfully suing corporations for fluoride pollution if the U.S. Public Health Service had performed its own studies and then vouched for the chemical's safety. "The results of such [dental] investigations are highly advanta geous," Kehoe explained to the corporations sponsoring his fluoride work at Kettering, in that the problem [of proving fluoride safe] exists outside of industry, thereby involving situations in which the 178 CHAPTER FOURTEEN economic factors tend to be of different type and significance than those which are often alleged to be active in the industrial world, and often involving investigators who are not subject to accusations of bias based on industrial associations.' Kehoe approached the Public Health Service in April 1952 on behalf of the industries sponsoring his fluoride research, to ask that the health agency perform additional fluoride safety studies.' I was requested by the group [of industries], for whom I have acted as a spokesperson and chairman, in the consideration of this work, to approach your division of the U.S. Public Health Service, with the idea of determining whether or not an investigation of that type might not be conduced by the Service, Kehoe wrote to Dr. Seward Miller.' Government proved cooperative. The top medical investigator at the National Institute of Dental Research, Dr. Nicholas Leone, was especially helpful. In August 1955, for example, during the Martin trial, the public servant Dr. Leone spoke with a senior attorney for Reynolds, Tobin Lennon, who also was a member of the Fluorine Lawyers Committee, directing Lennon to a federal safety study on fluoride that Leone had recently concluded in Texas. No record could be found of anyone from this U.S. government agency ever helping the Martin family. Leone s study had examined people living in two Texas towns, where there were different amounts of natural fluoride in the water supply. The town of Bartlett had between 6 and 8 parts per million in its water, while nearby Cameron had 0.4 ppm. Dr. Leone had given both towns a clean bill of health, reporting in 1953 that no harmful significant differences were seen in the two populations. Although George Waldbott and others had vigorously attacked the study's scientific method and conclusions, the so-called Bartlett Cameron Study became, along with Harold Hodges Newburgh study, a lynch-pin of the government's case for water fluoridation — medical "proof" that adding fluoride to water would be harmless.' As the Martin trial hung in the balance, the governments Dr. Leone burned up the long-distance telephone lines to Oregon, answering questions from Reynolds's attorney Lennon on the findings of the Bartlett Cameron study. Dr. Capps had testified on Paul Martins behalf that fluoride had injured his clients liver, so Reynolds s lawyer wanted information about fluorides effects on such soft tissues." FLUORINE LAWYERS AND GOVERNMENT DENTISTS 179 Although the Bartlett Cameron study had not examined soft tissue, such data would soon be at hand, Leone reassured industry. New government-funded studies were in the pipeline. And they spelled good news for the Fluorine Lawyers. In the spring of 1957, as corporate America awaited the Martin Appeals Court verdict, Alcoa s Dr. Dudley Irwin traveled from Pittsburgh to the sparkling new campus of the National Institutes of Health in Bethesda, Maryland, to meet directly with Dr. Leone and discuss the current status of the fluoride problem." Irwin was the medical coordinator for the Fluorine Lawyers Committee. Dr. Leone laid out the plans for the new fluoride safety studies that the federal dental agency was then readying. The two men then discussed how those studies could be presented to best suit our purpose," according to a March 5, 1957, letter Leone sent to Irwin to thank him for his visit. In particular Leone gave the Alcoa doctor details of a human autopsy study then being conducted in Provo, Utah, in which soft tissues were being analyzed. Leone was serving as a consultant to the Utah study, he wrote, and he had personally designed the autopsy protocol.' The interests of the Provo group, Leone explained in his letter, relate directly to atmospheric pollution of fluorides and its effects on humans. As you know, it has been proven beyond a question of a doubt that similar conditions have an effect upon animals. Irwin paid close attention. Provo was the site of perhaps the most serious litigation problem then facing the Fluorine Lawyers. Since World War II, when a mighty steel plant had been located in the Utah County valley, near the city of Provo — far from any threat from Japa nese bombers — local farmers had been in an uproar over pollution that they claimed had decimated their cattle. By 1957 the Columbia-Geneva Division of U.S. Steel had settled 880 damage claims totaling $4,450,234 with farmers in Utah County. An additional 305 claims for a further $25,000,000 were filed against the company. 13 Nicholas Leone s researchers, working on a PHS grant, were studying the soft tissues and bones of Utah County residents, he told Irwin. Inmates of a mental institution close by comprise the study material," he added. The Bethesda meeting between Alcoa s fluoride doctor and the government scientist went well. They made plans for a future 180 CHAPTER FOURTEEN rendezvous. In view of the vast amount of material soon to be avail -able for publication, Leone concluded in his letter to Irwin, we are all very enthused about a group presentation at some carefully selected meeting in the near future. I believe we discussed that briefly while you were here and I hope that you have had opportunity to give further thought to the type of meeting that would best suit our purpose. A one-shot presentation and publication in a single issue or monograph should be of more value than publication in a number of publications.... Again, it was a pleasure seeing you and I hope we have the opportunity for further discussions in the near future. Best personal regards. Sincerely Nicholas C. Leone, M.D. Chief, Medical Investigations, National Institute of Dental Research.' The government scientist enclosed a gift, a copy of a science-fiction novel called The Pallid Giant by Pierrepont B. Noyes. Alcoa s doctor was jubilant at the letter. The government studies would show no harm from fluoride, he had learned (almost certainly from Leone himself). Irwin immediately contacted the Fluorine Lawyers Committee boss, Frank Seamans in Pittsburgh, forwarding to him a copy of the letter he had received from the NIDRs Dr. Leone. Thrilled at the news from Washington, Alcoa s top doctor explained to Seamans, in a letter dated March 13, 1957, exactly how the nations water fluoridation program, and accompanying health studies, might help American industry: These clinical investigations pertain to basic studies of individuals residing in areas where the fluoride content of the drinking water varies from 0.04 ppm F. to 8.o ppm F. You will appreciate that this range of fluoride exposure brackets the range in which a number of us are interested. I have reason to believe the results of these investigations will show no evidence of deleterious effects due to fluoride absorption. The publication of these results will be a very worthwhile contribution," wrote Irwin. 15 The obliging government dental researcher, Dr. Leone, wanted to share the good news — with a restricted group of industry friends, Dr. Irwin told Alcoa s lawyer. Dr. Leone has given me his permission to supply copies of this letter to you for distribution to your group of "fluorine lawyers' on a confidential basis," he wrote Seamans. Any jubilation in the ranks of the Fluorine Lawyers Committee, however, quickly turned to fresh panic. The following month, on FLUORINE LAWYERS AND GOVERNMENT DENTISTS 181 April 24, 1957, Judges Denman, Pope, and Chambers of the Federal Appeals Court for the 9th Circuit in San Francisco upheld the lower District court ruling in the Martin trial. Their verdict was that Reynolds Metals was guilty of negligence and of poisoning the Martins with fluoride. In a gesture even more frightening for industry, Judge Denman cited a legal principle known as absolute liability. It meant that industry was responsible for resulting injury, whether accidentally caused or not. "The manufacturer must learn of dangers that lurk in his processes and his products, wrote Judge Denman in his opinion upholding the District Court. It was the duty of the one in the position of the defendant to know of the dangers incident to the aluminum reduction process," the opinion added. 16 Frantic, industry scrambled back to the courts. The entire 9th Circuit Appeals court en banc (all judges on the Appeals bench, not just a three-person panel) now confronted a stunning spectacle, as six top U.S. corporations paraded before them, pleading for relief. Alcoa, Monsanto, Kaiser Aluminum, Harvey Aluminum, the Olin Mathieson Chemical Corporation, and a division of the Food Machinery and Chemical Corporation, each joined Reynolds in attacking the Martin verdict, filing an impassioned amicus curiae friends of the court brief. One hundred thousand workers were employed in the U.S. aluminum industry alone, industry told the court, while seven aluminum smelters in the Northwest were located in inhabited areas similar to the Troutdale plant. Judge Denman s ruling had impossibly tightened the screws on the economy and jeopardized the nations cold war military strength, the corporations argued. The necessity of a strong aluminum industry to national defense is known to all," their appeal noted. Judge Denman had reached out and with one swift stroke branded the aluminum industry and all industries involving the use of fluorides, ultrahazardous," it added. The industry attorneys warned of "the tremendous impact of this decision," and argued that "if Judge Denman's opinion placing absolute liability on these industries is to stand, the financial handicap so imposed may well impair their financial stability. ' As industry s lawyers scrambled back to the courts, the governments Dr. Nicholas Leone (from the National Institutes of Health) hurried for an emergency meeting with industry officials 182 CHAPTER FOURTEEN at the Kettering Laboratory. He was accompanied by no less than the Director of the National Institute of Dental Research, Dr. Francis Arnold. On May 20, 1957-a month after the Martin verdict — the public servants met for a relatively confidential discussion of the issues with Dr. Kehoe and a Medical Advisory Committee of officials from the industrial corporations sponsoring the Kettering Laboratory s fluoride research. (This Medical Advisory Committee had been established on behalf of the Fluorine Lawyers Committee by Alcoa attorney Frank Seamans.)" Alcoa's Dudley Irwin opened the meeting. He began by reiterating news of the Martin verdict. The U.S. dental investigators and the company officials reviewed the "weakness" of industry's position, according to notes taken by Dr. Kehoe. The group then discussed "the Martin case in relation to the community problems of air pollution, water pollution and food contamination and the position occupied by industry in creating a new environment characterized by potential hazard to the public health, according to Kehoe. Industry was vulnerable, Kehoe emphasized to the dental researchers. He summarized the Kettering investigation of the Alcoa plant at Massena, New York, where fluoride had disabled workers. (The results of this study had — and still have — never been published.) There was a need, Kehoe told the NIDR's Nicholas Leone and Francis Arnold, "for research of a basic type to establish the facts on which medical opinion can be based so that irresponsible medical testimony will be discouraged." The government men took their cue. Drs. Leone and Arnold again laid out for industry the several pending studies the NIDR was con -ducting. The science was ostensibly being performed to demonstrate to the public the safety of water fluoridation, yet for the anxious men at the Kettering Laboratory that spring day, there was a clear understanding that such medical studies could help polluters. 19 The conference concluded with plans for an ambitious strategy to shape the national scientific debate on fluoride by hosting "conferences, symposia," compiling new medical research "for dissemination or publication," and arranging working sessions "to decide what to do and in what sequence," according to Kehoe' s notes. FLUORINE LAWYERS AND GOVERNMENT DENTISTS 183 On June 5, 1958, the full Appeals Court in the Martin case gave some ground. It upheld the verdict that the Martins had been poisoned and that Reynolds was negligent, but it withdrew the earlier opinion that the legal theory of absolute liability applied. The final decision was still distressing, the Fluorine Lawyers Committee head, Frank Seamans, wrote to Kehoe in a melancholy note eight days later. In an enclosed legal summary of the ruling, dated June 12, 1958, he concluded that the verdict will doubtless have great significance in the further development of the fluorine problem." 20 There was, however, a solitary ray of sunshine: perhaps the rollback of the absolute liability verdict would help industry in the coming decades. We can now argue that the Martin case went off on its own particular facts and that it is not a ruling that an aluminum smelter is liable for damage regardless of negligence," Seamans wrote. 21 Seamans believed that it was the visit and testimony of the English expert, Donald Hunter, that had delivered the knockout blow. The English doctor had left a perhaps disfiguring scar upon corporate America. "The court quoted from the testimony of Dr. Hunter," Seamans wrote to Kehoe, "and said that his testimony was worthy of credit and, in fact, outstanding. These quotations from the testimony of Dr. Hunter about the effects of fluorine on human beings are very unfortunate and may serve to give such claims a push. Kehoe was bitter about the whole affair. "I have rarely found myself in a more embarrassing situation than I was in the Martin case," he told one of Reynolds's other witnesses. And he complained to a friend, Philip Drinker of Harvard s School of Public Health, about the cleverness and histrionic character of Donald Hunters testimony. 22 The professor commiserated. Hunters exhibition was cheap cockney showmanship at a pretty low point, Drinker said. " Numerous friends in England have told me he was for sale and he certainly sold himself for this," he added. Dr. Kehoe would have his revenge. In the days after the Martin verdict worried industry its officials turned again to his Kettering Laboratory for help. Industry stood on a precipice. The danger was clear — and so was the solution. A powerful new scientific orthodoxy must be forged to defeat workers and farmers like Paul Martin and remove the threat from independently minded medical experts such as Donald Hunter and Richard Capps. Buried Science, Buried Workers THE IMPLICATIONS OF the Martin verdict were frightening. Like that Oregon farming family who had been poisoned by Reyn-olds s fluoride, tens of thousands of U.S. citizens breathed fluoride fumes from nearby steel, aluminum, and coal-fired power plants. A million more would soon live within eight kilometers of eleven hydrogen fluoride manufacturing plants.' And hundreds of thousands of American men and women inhaled fluoride dust and gases each day at work.' Industry's response to the Martin verdict was explained by Robert Kehoe to the medical director of the Tennessee Valley Authority (TV A) in January 1956. You will remember our recent talk about the concern of representatives of the aluminum and steel companies, over the outcome of the Reynolds Metals suit, Kehoe wrote to Dr. O. M. Derryberry on January 9, 1956. That concern included "perturbation of certain of the sponsors over the medico-legal situation," he wrote. "A group was assembled for a meeting with me early in December," Kehoe told Derryberry, "out of which came their request that ... I advise them concerning a program of investigation which might be enlarged in scope and accelerated in tempo so as to provide them with adequate ammunition for handling similar situations, as well as those that might arise from apprehension among their employees. " ; Kehoe's goal was to "bring to an end the litigation which threatens to occupy the time, attention, and economy of industry without benefit to the health and welfare of their employees or the public," he told his sponsors.' BURIED SCIENCE, BURIED WORKERS 185
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