In 2018, a federal dismissed a lawsuit filed by Cynthia and Robert Madej, Ohio residents who claimed that Cynthia was so sensitive to chemicals that repaving of a gravel road near her home could cause her serious physical harm or even death. Local residents and the county engineer (Jeff Maiden) were concerned for many years that driving on the road was unsafe because it would cause clouds of dust so thick that drivers could not see see whether there were cars in front of them. Residents also complained that potholes were injuring tires, the road was subject to frequent flooding, and the dust was a health hazard and caused frequent clogging of nearby heating and air-conditioning filters. Maiden believed that the best way to fix the road was to use a method called “chip and seal.” The Madejs expressed concern and asked the him to find an alternative way to control the dust. When he said that was not practical, they sued him in their county court to stop the chip-and-seal repair [1]. The suit complaint was accompanied by an affidavit from Cynthia’s local physician, Barbara Singer, D.O., which stated:
Exposures, even in small amounts, to numerous volatile organic compounds found in petrochemical products like tar (e.g. anthracene, benzene, and phenols), many of which outgas for months are dangerous and even life-threatening for Cynthia. Potential impacts include: difficulty breathing, heart attack, paralysis, migraines, neurologic stress and damage. Avoiding exposure is crucial. Cynthia is unable to relocate from her home due to the severity and breadth of her sensitivities and the specialized living environment she requires. If Cynthia’s road has a chip and seal or asphalt surface (or other surfacing that contains volatile organic compounds or toxins to which she is sensitive) especially while she is already in a weakened state from her anemia condition, weight loss, and cardiometabolic decompensation it is my opinion . . . that she will suffer serious physical harm or possible death [2].
During the hearing on the preliminary injunction:
- Mrs. Madej and her husband testified that (a) she slept in a small glass-lined room, with an old recliner being the only furniture she feels her health can tolerate, (b) in winter, the only heat source in the room is a string of incandescent light bulbs, augmented on extremely cold nights by the addition of glass bottles filled with hot filtered water, (c) they pay $8 per bar for the only soap she can tolerate, (d) in order to enter their home after a trip to town, Robert must take off his clothes, wipe down his body with alcohol, and take a shower during which he applies baking powder and other products.
- Dr. Singer, testified that (a) Mrs. Madej had been diagnosed 15 years previously with multiple chemical sensitivity and would likely suffer severe physical injury or death if the road project moved forward [3].
The evidence presented also included a letter from Alan Lieberman, M.D., who had been treating Mrs. Madej’s supposed MCS monthly since 2006. The letter stated:
To Whom It May Concern:
Cynthia Madej has been under my care for the past 15 years for severe chemical sensitivity from toxic chemical exposure that has resulted in her being legally disabled since 1997. Because of her sensitivities, she can be placed in a life-threatening situation by even minimal exposures to many common materials and chemicals, particularly those originating from petrochemicals. Examples of some of the concerning chemicals include: herbicides/fertilizers, pesticides, petroleum products such as tar and blacktop, oil, fuels: exhaust, paints, varnishes, polyurethanes, and smoke/combustion bi-products.
Work to maintain roads and/or to clear vegetation poses a hazardous situation for this patient. Exposures cause her a wide variety of symptoms (migraines, shortness of breath, dizziness, heart racing) and could create a life-threatening situation (respiratory or heart failure, paralysis).
Avoidance of exposures is essential for Cynthia. She cannot relocate from her residence to avoid exposure, even for short periods, because she requires specialized living conditions that cannot be easily replicated. Remaining indoors with the windows closed does not provide adequate protection against chemical stressors because of the level of her sensitivity. At this time, avoidance is the only viable protection.
To avoid risk to my patient, it is strongly advised that activities be avoided within 1 mile of her residence. It is also strongly advised that Cynthia is contacted prior to a minimum of 3 days before initiating any road construction or maintenance activity within 1 mile of her residence.
The diagnosis of multiple chemical sensitivity—also referred to as MCS, chemical sensitivity, and environmental illness—is not recognized by the scientific mainstream [4] and has generally fared poorly in court [5]. But the county court judge granted the preliminary injunction, saying:
While there may be some cause to doubt the diagnosis, it is undisputed that Mrs. Madej is a very sick woman. The question of what is causing her symptoms is one for medical science. The Court is limited to deciding this Motion based only upon the facts in evidence before it, and the only medical testimony offered at hearing is that Mrs. Madej is likely to suffer serious injury or death if the project moves forward at the present time. In the absence of contrary medical opinion, the Court is not willing to disregard Dr. Singer’s testimony outright [6].
In 2016, the defendant moved the case to federal court and the Madej’s filed an amended complaint [7].
Robert Convicted of Intimidation
In July 2017, The Athens News reported that Robert Madej had pleaded guilty to third-degree felony intimidation. The report noted:
- The sheriff’s affidavit used to obtain search warrants said that Robert had been captured on video leaving a bible at the Maiden’s office.
- An assistant engineer found pictures in his driveway that depicted Maiden with cross hairs (such as those from a riflescope) over his head and several small holes in the photo that could have been made with a BB gun.
- Robert was sentenced to five years probation and ordered to undergo a mental health evaluation, surrender several guns, and have no further contact with Maiden’s office or family except as needed for the lawsuit. [8].
Depositions of Plaintiffs’ Experts
As the federal case unfolded, the Madej’s indicated that they planned to use Dr. Singer, Dr. Lieberman, and John Molot, M.D. as their medical experts., Lieberman, who operates The Center for Occupational & Environmental Medicine in Charleston, South Carolina, has been involved in many legal proceedings in which patients claimed to be hypersensitive to environmental chemicals. Molot’s Web site describes his practice as “focused . . . on environmental medicine, evaluating and treating patients with environmentally linked conditions, such as fibromyalgia, myalgic encephalomyelitis/chronic fatigue syndrome, and multiple chemical sensitivity.” [9] Singer was deposed in 2017. Lieberman and Molot were deposed in 2018.
- Records in the case indicate that Mrs. Madej visited Lieberman’s office only once in 1999 where she was seen by one of his associates and that from 2006 onward Lieberman talked with her by phone approximately on a monthly basis. During his deposition, Lieberman stated that (a) ) the only testing he performed during Mrs. Madej’s single in-person visit consisted of placing a substance he described as “petroleum derived ethanol” under her tongue, (b) he did not test whether she was sensitive to any type of asphalt, (c) he had not tested her for sensitivity to any of the other chemicals mentioned in his letter but simply took her word that exposure to them made her ill, (d) there is no safe exposure to any pollutant for someone as sensitive as Mrs. Madej, and (e) the one mile restriction was arbitrary and not based on any evidence obtained since his initial visit [10].
- Singer testified that she did not have expert knowledge of MCS and had not attempted to do any confirmatory tests but had merely relied Mrs. Madej’s statements and a letter from Dr. Lieberman. When asked how she knew that paving of the road would cause trouble for Mrs. Madej, she replied “Because she had the diagnosis of multiple chemical sensitivity from Dr. Lieberman.” [11]
- When Molot was asked how he could determine that a patient is sensitive to specific chemicals and control for other variables that might cause symptoms, he replied: “. . . Patients make their observations on, ‘I smelled this and it makes me sick.’ And that’s all we have.” When asked whether it was possible to test what chemicals the patient is allergic to, he replied, “No.” He further stated that (a) during a couple of hours he spent with her, she did not display sensitivity to anything, (b) his opinions about her sensitivity to asphalt was based on the clinical notes and records from other doctors, (c) MCS is a biological response that is not-life-threatening, and (d) it was highly unlikely that Mrs Madej would die if exposed to the chemicals used for road sealing [12].
Taken together, the depositions indicated that Mrs. Madej was never tested for any chemical that would be involved in the proposed road repair and the doctors’ opinions were based entirely on what she said to them.
Examination by Dr. Robert Baratz
In 2018, Robert S. Baratz, M.D., D.D.S., Ph.D. interviewed and tested Mrs. Madej over a three-day period by exposing her to preparations that contained components of asphalt, other substances that she claimed would cause symptoms, and other materials, such as glass, that were inert and could not possibly cause allergic symptoms. During the testing, the preparations were kept behind a screen so that she could not tell what she was exposed to. Her responses were inconsistent. When exposed to the substances related to her lawsuit, she sometimes reacted and sometimes did not. When exposed to inert materials, she sometimes reacted and at other times did not. The testing proved conclusively that her reactivity was not based on detecting specific ingredients and that she has no sensitivity to asphalt or petroleum based products. Dr. Baratz concluded:
If Ms. Madej is sensitive to chip seal or any substances therein from a distance of a mile, to the extent of having paralysis, or having a life-threatening or serious episode, she would have displayed such symptoms to the materials based upon my exposures. Instead, she displayed no differentiating of symptoms between inert and allegedly triggering substances. . . .
Ms. Madej’s alleged sensitivities have no basis in objective scientific evidence. Ms. Madej cannot categorize her sensitivities into any distinct chemicals, agents, or in any other way. Nor do the alleged triggers she identifies fit into any patter of toxicological agents, allergens or groups of agents. Her symptoms are non-objective and cannot be measured by scientific means in an objective fashion. Nor are they apparently life-threatening, or of a severity which would require medical attention [13].
Case Dismissed
In June 2018, Maiden’s attorneys filed motions to exclude expert testimony of Dr. Singer, Lieberman, and Molot. The motions asserted that their opinions were not based on sound methodology, were speculative, and were not reliable because, among other things:
- Lieberman’s conclusions were not supported by any reliability methodology, as he had not seen the patient in over 19 years, and did not perform a differential diagnosis [14].
- Lieberman admitted admitted that he was unable to identify with any degree of certainty what is causing issues for Mrs. Madej [14]
- Singer failed to test Mrs. Madej for any of the substances involved in the lawsuit and relied solely on a letter from Lieberman [14].
- Molot failed to test Mrs. Madej for any of the substances involved in the lawsuit and admitted that he could not justify any basis for the one-mile restriction [15].
Maiden’s attorneys also moved for summary judgment based on the following points:
- MCS is not recognized as a valid medical condition.
- Mrs. Madej’s proposed experts had not demonstrated and cannot demonstrate that she is sensitive to chip seal or any other chemicals used to repair the county’s roads.
- Mrs. Madej cannot base her claims on her own testimony that she suffers from a heightened sensitivity to chip seal.
In October 2018, the judge ruled that the opinions of Drs. Lieberman, and Molot were “not reliable” and excluded them from further consideration. Since this meant that Mrs. Madej could not provide expert medical support for her claim that asphalt would endanger her health, the judge then dismissed her case [17].
The defense was skillfully handled by the law firm of Isaac, Wiles, Burkholder & Teetor, LLC.
In 2020, a federal appeals court upheld the lower court’s dismissal, noting that multiple chemical sensitivity “is a controversial diagnosis that has been excluded under Daubert as unsupported by sound scientific reasoning or methodology” and that Madej’s own experts acknowledged that the diagnosis remained unrecognized by the American Medical Association and the World Health Organization’s International Classification of Diseases [18]. The U.DS. Supreme Court subsequently denied a petition to hear the case.
Despite all this, in 2022, Ms. Madej asked the court to issue a temporary restraining order and preliminary injunction to block further use of chip seal near her home. The defendants’ memorandum in opposition to this motion argued that she had no right to re-litigate what is essentially the same case and that the construction delays due to the original suit had already cost local taxpayers hundreds of thousands of dollars [19]. The judge denied the motion for a temporary retraining order.
References
- Plaintiff’s first amended complaint. Cynthia and Robert Madej vs Athens County Engineer Jeff Maiden. Athens County Court of Common Pleas No. 15CT179, Sept 18, 2015.
- Singer B. Affidavit. Sept 15, 2015.
- Transcript of hearing. Cynthia and Robert Madej vs Athens County Engineer Jeff Maiden, Athens County Court of Common Pleas Case No. 15CT179, Sept 21, 2018.
- Barrett S. Multiple chemical sensitivity: A spurious diagnosis. Quackwatch, Nov 23, 2016.
- Barrett S. Adverse court rulings related to clinical ecology theories and methodology. Quackwatch, Oct 27, 2018.
- Preliminary injunction. Cynthia and Robert Madej vs Athens County Engineer Jeff Maiden, Athens County Court of Common Pleas Case No. 15CT179, Sept 23, 2018.
- Third amended complaint. Cynthia and Robert Madej vs Athens County Engineer Jeff Maiden. Case No. 2:16-cv-658. U.S. District Court for the Southern District of Ohio, Eastern Division, filed Oct 18, 2016.
- Dewitt D. Co-plaintiff in suit against county engineer pleads guilty: Dutch Creek Road man convicted of felony intimidation against Engineer Maiden. The Athens News, July 9, 2017.
- About John Molot. John Molot MD environmental medicine Web suite, accessed Oct 24, 2018.
- Deposition of Alan Lieberman, M.D., April 16, 2018.
- Deposition of John M. Molot, M.D., April 24, 2018.
- Deposition of Barbara Singer, D.O., Sept 15, 2017.
- Baratz RS. Report and opinions of Dr. Robert Baratz, October 2017.
- Motion in limine . . . to exclude testimony of plaintiffs’ expert physician Dr. John Molot. Madej v. Athens County Engineer, filed June 6, 2018.
- Motion in limine . . . to exclude testimony of plaintiffs’ treating physicians Dr. Barbara Singer and Dr. Allan Lieberman. Madej v. Athens County Engineer, filed June 6, 2018.
- Defendant Athens County Engineer’s motion for summary judgment. Madej v. Athens County Engineer, filed June 7, 2018.
- Opinion and order. Madej v. Athens County Engineer, Oct 17, 2018.
- Opinion. Madej v. Maiden. U.S. Court of Appeals for the Sixth Circuit, No 18-4132, 951 F.3d 364 (6th Cir. 2020), Decided Feb 24, 2020
- Defendants’ motion in opposition to plaintiffs’ motion for temporary restraining order and preliminary injunction. Athens County Court of Common Pleas, Case No. 22CI0122, filed Aug 5, 2022.
