A protracted legal battle over an $11.5-million health study into whether diesel exhaust damages the lungs of miners has suddenly widened to take on
scientific peer review. Editors with at least four research publications say they have received a letter advising them against "publication or
other distribution" of data and draft documents. The warning, including a vague statement about "consequences" that could ensue if the advice is
ignored, is signed by Henry Chajet, an attorney at the Patton Boggs firm in Washington, D.C., and a lobbyist for the Mining Awareness Resource Group,
which works on behalf of the mining industry.
Chajet declined to comment, but his letter makes it clear that he seeks to persuade journals to delay publishing or distributing papers
containing results from the Diesel Exhaust in Miners Study (DEMS), a government-funded research project. His letter pointed out that a coalition of
mining industry groups are legally entitled to review data from the study before publication. Other lawyers and researchers involved in the case also
declined comment because the 2-decade-long dispute over DEMS is now under review in the U.S. Court of Appeals in New Orleans.
The diesel study, for which planning began in 1992, is run jointly by the National Institute for Occupational Safety and Health (NIOSH) and the
National Cancer Institute (NCI). It has monitored the health of more than 12,000 miners exposed to diesel exhaust in underground spaces. One goal of
the study (which controls for smoking) was to learn how many miners developed lung cancer. NIOSH currently classifies diesel exhaust as a "potential human carcinogen," but new data could prompt a revision of that
The timing of the release of DEMS data is critical because two prestigious groups, the International Agency for Research on Cancer and the U.S.
National Toxicology Program are set to review their standards on the health risks of diesel exhaust. Their decisions could have financial consequences
for many users of diesel engines, particularly in lawsuits claiming harm.
An industry coalition, including the Mining Awareness Resource Group, has long argued that DEMS was scientifically flawed. The coalition first took the
federal government to court in the 1990s arguing that the industry needed to be more involved in DEMS oversight. The case has gone through multiple
hearings (details below), resulting in a court order that requires DEMS scientists to turn over all data related to DEMS, including drafts of
scientific papers based on that data, to the mining coalition and to the U.S. House of Representatives Committee on Education and the Workforce, which
claims jurisdiction over the study. The coalition and committee have the right to review the data for 90 days prior to publication.
Editors at two U.K.-based publications—Occupational and Environmental Medicine (OEM) and The Annals of Occupational Hygiene—say they have received the letter from Chajet warning them not to publish DEMS results or even pass around drafts of papers. Science obtained a
copy of the letter, which says, in part, "We respectfully request that you and your counsel carefully consider any intent to publish these [DEMS]
papers, as well as the impact and consequences of any such publication." It continues: "[W]e provide you with advance notice of this situation in the
hope that, if you are considering publication or distribution of these papers, you will refrain from doing so, until the court orders and congressional
directions are complied with, or otherwise resolved." (Read a full copy of the letter.)
Dana Loomis, editor of OEM and an epidemiologist at the University of Nebraska Medical Center in Omaha, says, "I was completely surprised" by
the letter, especially since OEM does not have and never had any DEMS paper under consideration. "It's a vague but threatening letter, and I
think its vagueness is what makes it noteworthy," Loomis says. "It demonstrates how the legal system can be used to restrain scientific communication."
Loomis says he doubts the legal rulings would even apply to scientific journals, especially ones based in another country.
Another recipient, The Annals of Occupational Hygiene, had already published some DEMS work in October 2010—a long, four-part explanation of
DEMS's methodology. (Parts one, two, three,
and four available here. The Annals published a rebuttal from six scientists working for the mining groups a few months later,
in April 2011.)
Trevor Ogden, a retired physicist and the editor of The Annals, says his journal accepted the four papers in February 2010. Publication usually
takes 7 weeks after acceptance, but the various court actions delayed publication in this instance for months. The journal also accepted a fifth paper
in February 2011, but is still waiting for permission from DEMS to run it.
Ogden says, "Despite our attempts to be neutral on various controversies, this journal has more frequently been accused of being on the employers'
side. However, I am disgusted by the many actions being taken to delay [the DEMS] publications and prevent their being open to public examination."
Ogden added that the letter he received was sent to two other publishers as well, but they declined to be named.
Loomis says the Journal of the National Cancer Institute already has a paper outlining the main findings of DEMS. A spokesperson refused to
comment on whether JNCI had received a letter.
In skipping up and down through the court system, the legal case has stretched almost as long as DEMS and has turned multiple times on bureaucratic
minutiae. Early disputes involved whether DEMS ought to include industry representatives on a scientific oversight committee. The two sides also
disputed who exactly should have jurisdiction over DEMS. Eventually a court ruling forced DEMS to file a charter with a U.S. House committee. This
should have gone through the House Committee on Education and the Workforce. But the U.S. Department of Health and Human Services (which oversees NIOSH
and NCI) mistakenly submitted applications to a different committee. This inevitably brought new lawsuits, with accusations that DEMS was trying to
"evade transparency." DEMS personnel did file with the proper Senate committee.
Litigation about the mistaken filing went to the federal court in Lake Charles, Louisiana, where Judge Richard Haik ruled in March 2000 that DEMS had
to turn over all data to the mining groups and the House Committee on Education and Workforce. Haik in effect granted them power to stop DEMS from
publishing any results.
DEMS leaders appealed, and the U.S. Court of Appeals in New Orleans overturned much of the lower court decision in May 2001, saying that DEMS had the
right to publish. However, it affirmed that the scientists had to turn over all data and drafts to the mining coalition and to the House committee for
review, and that these reviewers must get the materials at least 90 days before publication.
The legal fracas started up again in 2010 and 2011, as The Annals prepared to publish the four methodological papers. The mining groups charged
that DEMS scientists had withheld data and not turned over drafts of papers before submitting them for peer review, violating court orders. The case
went back to Judge Haik, who once again ruled in favor of the mining groups, holding the federal government in contempt of court and reaffirming that
the DEMS scientists must turn over all data and drafts of any papers they plan to publish. The ruling also ordered the DEMS people to notify scientific
journals that the journals were not allowed to circulate any drafts they had already received. This case has since been appealed and argued before the
U.S. Court of Appeals in New Orleans; a ruling is expected soon.