PHILADELPHIA – Ford Motor Company and Volkswagen aim to find out whether American taxpayers or plaintiff lawyers run the National Cancer Institute (NCI).
The car makers seek to depose asbestos expert Dr. Arthur Frank of Philadelphia, who in July boasted under oath about his power over the institute's website.
As a federal government agency, NCI receives its funds from the U.S. Congress.
In a July 21 deposition for five asbestos suits in Madison County, Frank gave credit to himself and lawyer Christian Hartley for changes on the NCI website.
Frank said he became aware of changes through Hartley, got information from Hartley and offered to call NCI.
"I was unhappy with the new changes just as I was unhappy with the last language and thought that this might be an opportunity, given that we now had a new (presidential) administration and perhaps a more honest administration, that this might be a time to intercede to see that a more accurate set of statements got made," Frank said.
Ford and VW rushed a transcript to a national forum, serving a deposition notice in multi district proceedings in Philadelphia involving more than a million asbestos claims.
Frank moved on Aug. 5 to quash the notice.
His lawyer, John O'Riordan of Philadelphia, claimed attorney client privilege for communications between Frank and Hartley.
"As a result of the legal counsel and advice Dr. Frank received from Mr. Hartley, he was successful in persuading NCI to correct its misstatements and to change certain of the safety information on its website regarding asbestos and cancer so as to reflect the most current and accurate scientific information available," O'Riordan wrote.
Ford lawyer Sharon Caffrey of Philadelphia answered on Aug. 17 that Ford sought relevant and vital information on lobbying.
The information "could show that Dr. Frank has crossed the line from expert to advocate," Caffrey wrote.
It could discredit and disqualify him as an asbestos expert, she wrote.
She wrote that attorney client privilege didn't apply because Hartley wasn't Frank's lawyer.
"Mr. Hartley's law office is located in South Carolina," Caffrey wrote.
"He does not practice law in Pennsylvania where Dr. Frank works," she wrote.
Frank is chairman of environmental and occupational health at Drexel University in Philadelphia.
He said he charges $400 an hour for expert services and Drexel deposits the proceeds in an account with a balance of more than $1 million.
He testified that he billed about $380,000 last year.
At $400 an hour, that equals about 950 hours – half a year's work.
Drexel's dean of public health, Marla Gold, said in an interview on Aug. 21 that Frank has been consistent with a policy on how often faculty can consult.
Gold said faculty at some schools pocket consulting fees and people are shocked to learn that Frank doesn't.
"He chooses to keep zero," she said.
"In Arthur's case it's somewhat benevolent. That's unusual," she said.
She said she approves spending from the account for purposes like hiring faculty, paying memberships, heating, ventilating and air conditioning.
Frank introduced the subject of the NCI website in a July 16 deposition for a Delaware state court, and Ford lawyer Robert Krause followed up five days later.
In a deposition for the Madison County cases Frank didn't claim that he and Hartley changed the website, as his lawyer would argue later.
As he explained it, they prevented a change.
First, Krause asked him if he disagreed with information the institute posted in 2007 about asbestos exposure of auto mechanics.
"Not with all of it, just the last sentence with reference #10 by Laden," Frank said.
He said he understood that the site was undergoing revision.
Krause asked how he became aware and Frank said Hartley shared it with him.
Krause asked if Hartley asked him to contact NCI and Frank said, "I offered."
Frank said he told Hartley he would call the website manager, Dr. Manrow.
Krause asked how he knew the name and Frank said Hartley gave it to him.
Krause asked how he got a copy of the proposed language and Frank said either Hartley gave it to him or told him how to find it on the website.
Krause asked what he didn't like and Frank said it was misleading.
Krause asked about his conversation with Manrow and Frank said, "The gist of it was, he was uninformed about asbestos."
Frank said Manrow told him he could write to the director or contact him.
Krause asked if he contacted Hartley, and Frank said they discussed points that might go into a letter.
Krause said, "What was that discussion?"
Frank said, "I believe that has been considered privileged."
Krause read from Frank's letter to the director that, "This paper is unreliable."
Krause said, "You are referring to the Laden paper?"
Frank said yes, and Krause asked who wrote it.
Frank said, "Francine Laden, Miers Stanford and I forgot the third or fourth one."
Krause asked if Stanford was chairman of epidemiology at Harvard medical school.
Frank said, "Yes and a former resident at Mount Sinai when I was director of the residency program and he should have known better."
Krause asked who Laden was and Frank said, "She's a young assistant professor in that department."
National Cancer Institute spokesman Mike Miller said the website has not changed since Frank sent the letter.
He said experts review all website changes.
"It's not just one person," he said.
The dispute over Frank's deposition remains pending before U.S. District Judge Eduardo Robreno.
The U.S. Judicial Panel on Multi District Litigation appointed Robreno last year to run pretrial proceedings in tens of thousands of asbestos suits.