The Four Dog Defense

It's a well known strategy they say. But how well known is it if the world's biggest encyclopedia doesn't even have an entry? It goes like this. Say you're the owner of a dog who's just bitten someone. If you're a chuff, churl or cretin -- or you may say, your average defensive citizen -- you deny it via the so called "Four Dog Defense". Here's how one lawyer explained it to the St. Petersburg Times in 1997 1:

  1. First of all, I don't have a dog.
  2. And if I had a dog, it doesn't bite.
  3. And if I had a dog and it did bite, then it didn't bite you.
  4. And if I had a dog and it did bite, and it bit you, then you provoked the dog."

The St. Petersburg Times article wasn't actually about a dog, but about the landmark tobacco cases. And the tobacco industry played it something like this, as you may know (I'm ad-libbing here):

  1. Smoking definitely doesn't cause cancer, there's no evidence it causes cancer.
  2. There's no consensus on the evidence; smoking may cause cancer but second hand smoke definitely doesn't.
  3. Mice may get cancer but mice are not humans, cigarettes are not additive.
  4. People choose to smoke -- and who are we to impose on people's constitutional rights? - etc.

Four Dogs Launched a Thousand Ways

"Four Dogs Defense" might to you sound more like a Kung Fu movie, but once introduced, you'll recognize it more often then you'd like. Some people describe the Four Dog Defense as a trial lawyer's adage, but the tobacco industry used it for decades to successfully deflect charges that cigarettes cause cancer. Despite volumes of documents proving of their deception in the form of the tobacco papers, the same companies today mount the same defense, albeit with diminishing success.

You might also be familiar with this strategy not only because of tobacco, but asbestos, lead, bisphenol A or any number of chemicals or "benign" products (sugar, alcohol, etc.) currently on the market.

The Natural Resources Defense Council (NRDC) used the "Four Dog Defense" to frame their recent investigation: "The Delay Game: How the Chemical Industry Ducks Regulation of the Most Toxic Substances". The report compellingly describes tactics the industries used to stall regulation. It focuses on three chemicals, trichloroethylene (TCE), formaldehyde, and styrene, which have been on the market for decades despite proof they cause morbidity and mortality.

NRDC describes how vested industries spend millions of dollars demanding the EPA conduct new science reviews, how the industries demand "independent" assessments and hire "independent" scientists to do favorable studies; and how they dispatch lobbyists to "influence" politicians and the EPA. Thus, toxic chemicals like formaldehyde, lead, atrazine, TCE stay on the market thanks to a collection of vested interests preventing the EPA from acting on well established science.

Of course for every move that industry makes to stall the EPA - demanding studies, suing, producing biased studies, and publicizing contrarian views aimed to confuse and stall regulation - the EPA and tax payers pay mightily to defend science. Circularly and ironically, taxpayers who already paid for the research to make their living environment healthy, then pay for defense when industry and lobbyists to attack that very science. The taxpayer pay for these attacks on science and the EPA (that the Tea Party and GOP so dearly want to abolish), both with our money and our health.

The TCE Story

This four dog defense strategy has kept trichloroethylene (TCE) on the market for decades. TCE is a solvent used for metal degreasing, commonly for cleaning airplane parts. It's also used in household items such as paint removers, glues, correction fluid, electronic equipment cleaners, rug cleaners, and adhesives. TCE is linked with leukemia, cancers, developmental defects, and problems with the male reproductive system, the immune system, liver, kidney and nervous systems.

TCE is found in hundreds of Super Fund sites, places like like Lawrence Livermore National Laboratory, and military bases. Many of these sites are not giant dumps some other place in America but right in our communities. When a new housing development gets built in the vicinity of some high stature physics lab in an expensive suburb, for instance, the EPA describes how TCE can contaminate air that gets into homes and water. TCE leaches from the soil into water supplies, evaporates into the air, and poisons humans by any means of ingestion.

And what happens when homeowner's get sick? The four dog defense continues. The effects of TCE on human health were detailed in Jonathan Harr's 1996 non-fiction book A Civil Action.

A Civil Action

As Harr recounts, a large number of people began to die in Woburn, Massachusetts, in what public health officials identified as a leukemia cluster. Three companies, including W.R. Grace and a tannery owned by Beatrice Foods, dumped TCE onto land and it leached into the water supply. During discovery before the trial, companies' defense lawyers deposed the plaintiffs, grilling them on the details of their daily lives. As Harr describes in his book, the lawyers produced exhaustive inventories of products used in each plaintiff's house, what they ate, drank, cleaned with...

"five hundred brand-name household products -- cleaning agents and detergents, rug shampoos, cosmetics, nail-polish removers, insect repellents, paints, lawn fertilizers, cold remedies, cough syrups, herbal teas, coffee, even peanut butter."

The goal-oriented lawyers are relentless:

"Do you eat peanut butter?" one of Facher's young associates asked Anne Anderson.
"No," said Anne.
"Did you ever eat peanut butter?"
"I guess everybody living has probably tried it," replied Anne.
"Do your kids eat peanut butter?"
"Well, the same jar has been sitting there an awfully long time, so I guess we don't eat much"
"What kind is it, plain or chunky?"
"Plain, smooth," said Anne."
"You made your children peanut butter sandwiches?"
"They ate some, when they were small"
"When you say, 'some,' could you quantify that?" One or two sandwiches a week for the children?"

Peanut butter can contain aflatoxin, a carcinogen.

As Harr writes, Jan Schlichtmann, lawyer for the plaintiffs, knows that the defendant's lawyers are trying to dilute the evidence in order to develop uncertainty about the origin of the cancers. When at 5:00PM, he requests that the defense lawyers to end their deposition, they ignore him and continue their questioning.

"Do you eat bacon?...(Bacon contains dimethylnitrosamine, a carcinogen.) How often? How many slices? Do you fry it or bake it? Do you have Teflon pans (Teflon is made of a resin containing acrylonitrile, a carcinogen.) How often do you use them? Do you chew sugarless gum? (Saccharin, a carcinogen in mice.) How often? Do you pump your own gas?..."

It continues with each plaintiff, over the next three weeks -- do you bathe, shower, wear deodorant, own a cats, have plastic shower curtains, drink beer, smoke? Each activity or product contains certain carcinogens, passes on certain risks...

While the pre-trial "discovery" of "A Civil Action" drags on, people continue drinking TCE polluted water and breath TCE polluted air.

"Roland Gamache was dying of leukemia by the time his second deposition began. Neither he nor his wife could admit this to each other. But the lawyers all knew. In early October, Gamache did not have strength enough to get out of bed...."

And while these leukemia victims answer inquiries by lawyers working on behalf of TCE dumpers, somewhere else in the world, in another room, at another polished bird's eye maple conference table, lawyers for a different chemical or product question different plaintiffs about their possible exposure to solvents -- have you ever glued anything (glues contain can TCE)? Walked by the old Naval base in the next block?

In the end the Woburn case didn't repair the TCE victims, nor did it motivate universal action on TCE. But law schools use the book as a case study to instruct future lawyers prosecuting (as well as defending) the makers of toxic chemicals. As you can imagine then, with this sort of defense fully proven to work, people injured from environmental toxicants have a difficult time getting remedy from the courts.

The Doggy-Dog World of Politicians

Given the tenacity and success of the four dog defense, it was against great odds that after decades years of stalling, not only by industry and lawyers, but by politicians, White House administrations, and the Department of Defense and Department of Energy, the EPA released its final IRIS assessment of TCE last week.

The EPA's last assessment of TCE came in 1987, almost a quarter of a century ago. In 2001 the EPA calculated that based on research to that date, TCE was 5-65 times as toxic as previously thought, especially to children. It can be found in 761 Superfund sites. Since the Department of Defense and Department of Energy would be responsible for cleaning up many of the sites, the agencies fought vigorously to prevent EPA action. OMB reports that DOD action against the rule cost taxpayers a million dollars.

The EPA's path to updating the Toxic Substance Control Act (TSCA) was tortuous, likewise for the the EPA's completion of the IRIS assessments for the backlog of chemicals with suspected or proven health affects. The EPA is struggling to overcome a failed strategy of depending on industry to produce safety profiles of chemicals, which hasn't adequately safeguarded our health. (Acronym Required started reporting this here in 2005, decades into the battle 2). But progress is hindered - as you can see, industry mounts gargantuan hurdles against the EPA.

Even once people are somewhat convinced that a chemical such as bisphenol A is toxic, lobbyists for industry deploy the four dog defense. This is long after the media loses interest, long after the public tires of hearing about it, long after the environmental groups start in on their next agenda, and long after most politicians drop the issue (now that they're not getting calls from their constituents).

As we speak, politicians that we (you) voted for, "working in our interest" actively fight against the EPA's IRIS assessments and against EPA moves to strengthen TSCA. Their most successful claim against regulating chemicals that cause the loss of life and impede people's ability to work? That the "stringent" rules will "cost jobs". Politicians are lawyers after all, so they know the four dog defense perhaps better than any of us.

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1 "Can This Man Tame Tobacco?" David Barstow St. Petersburg Times April 7, 1997

2 Acronym Required wrote about TSCA in of posts a couple of posts about Teflon in 2005; in a few posts on Europe's REACH, for instance The EU on Chemicals: More Strife Across the Pond?; a here and in many posts about bisphenol-A.

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