Class Action (Tel Aviv) 11278-10-19 Yehoshua Klein v. Oil Refineries Ltd. - part 132

(pp. 1964-1965).

Discussion and Decision

5. After considering the arguments of the parties and examining the testimonies that came before me and the above documents written by Grotto, I have come to the conclusion that these documents do not have the power to assist the Applicants in lifting the burden imposed on them in this application, and they do not in the circumstances tip the scales in their favor.
6. First of all, it should be noted that in view of all that has been determined above with regard to the weight and validity of the expert opinions on behalf of the Applicants, Dr. Shlita and Prof. Lin, in the absence of expert support for the Applicants' claim of the existence of excess morbidity and the required causal connection,  Prof  .  Grotto's documents in themselves – Appendices 4 and 4.1  – do not assist in lifting the burden and in proving the claim that the Applicants need proof, at the required evidentiary level as explained at length above.
7. In chapter 8 of the position paper [Appendix 1], entitled "Epidemiological Studies", Prof. Grotto reviewed 7 Sources/References - Nos. 41-47. Source 42 is the Health Survey in the Context of Air Pollutant Emissions from the Refinery Complex (2007), conducted by Prof. Rennert, a survey that Prof. Grotto describes as a survey "...which was carried out under the direction of the Ministry of Health and funded by BAZAN" (ibid., p. 27 above).  Prof. Rennert was  questioned about this survey by  the applicants' counsel (see paragraph 329 above).
8. In summary, it should be stated that Rennert in his aforementioned 66-page opinion (Appendix 21 to the Respondents' appendices) found and wrote, inter alia, and in summary that:
9. The concluding chapter states that "exposures from the refinery compound were found to be weakly related to various types of morbidity.  Exposure to NOX was  not found to be associated with any morbidity, exposure to SOX  was found to be associated with hospitalization and referral to the emergency room for cardiac and respiratory reasons with a very low relative risk of between 1.01 and 1.5.  Exposure to PM from the refinery complex was found in only 15 of the 30 subdistricts participating in the study.  In these sub-districts, exposure was found to be related to hospitalization and referral to the emergency room for respiratory and cardiac reasons, usually with low risk estimates that sometimes reached twice the risk" (ibid., p. 23).
10. In the "Discussion" chapter, it was stated, among other things, that the study examined "the effects of air pollution from the refinery complex and other sources on various morbidity characteristics in the Haifa district."  It was noted that the Haifa district is characterized by a high level of industrialization, and various reports raised the concern that "...The residents of the district suffer from an excess of morbidity from various diseases," and various bodies  raised the possibility that "...The increase in morbidity, if it really exists, is the result of air pollution emanating from industrial plants in the region."

• It was noted, inter alia, that the study is problematic "due to the inability to control at the individual level the presence of various factors related to morbidity (such as smoking habits) and unrelated to the issue of industrial air pollution", that this is an elderly population with unique demographic characteristics, a high percentage of immigrants, a large Arab population, and that "...These demographic parameters have a significant impact on the probability of heart disease, respiratory and cancer morbidity."

1. The report states, among other things, that "...In a preliminary examination of morbidity rates in the city of Haifa itself, it was found that most of the differences in morbidity were the demographic and socioeconomic indices examined" (ibid., p. 31).
2. It goes on to say that "...The associations between contamination in the three pollutants examined from the source of the refinery complex and the incidence of cancer in general or specific cancers were marginal" (ibid., p. 32 above).
3. The concluding chapter states, among other things, that "...In examining the long-term effects, it was found that  the component of air pollution by SO2 from the refinery complex, although it well meets the average annual exposure standard, had a small explanatory effect on emergency room visits and cardiac and respiratory hospitalizations.  Exposure to particles also had a small explanatory effect... The intensity of the effect was low in epidemiological terms.  NOX levels  from the refinery complex were not found to have an effect... In examining the short-term effects, it was found that NOx from all sources in the area and particles on sandstorm days, but not SO2, had an effect on immediate hospitalization rates.  From a practical point of view, it is important to draw attention.... For days when there is a great load of particles resulting from storms over which we have no control" (ibid., p. 33a).

[See also: pages 8-10 of the exhibit 42/6]

9. While I have taken into consideration the testimony of Prof. Rennert and in relation to the circumstances of conducting this survey, as emerges from his testimony [see , for example, paragraph 329 above], the findings of Prof. Rennert as someone who personally conducted the survey himself and was professionally entrusted with it, are preferable, in my opinion, to Prof. Grotto's position paper and what is stated therein.
10. Needless to say, Prof. Grotto did not conduct the aforementioned epidemiological studies [or any of the other studies mentioned throughout the position paper] and did not even participate in their editing. The authors of the studies did not testify before the court.  As stated above, Appendix 1 reflects Prof. Grotto's professional work in the interpretation of the  various studies/articles, the circumstances of which were edited and their professional credibility were not proven before the court.  I did not find in the circumstances of the case, and in view of what is supposed to be done, a review and analysis of the various articles mentioned in the position paper to examine their professional and research validity [see in this regard in detail: paragraphs 179-265 of the Respondents' summaries].
11. It should be noted that in the Kishon case above, it was ruled in relation to "epidemiological research", while mentioning the Krishov ruling, inter alia:

Because even epidemiological studies do not necessarily prove a causal relationship, but rather statistical circumstantial evidence.  "The language of epidemiology is the language of statistics, of prevalence, of probabilities, regarding the connection between a certain substance and a particular disease in groups of people" (Krishov, v. 23).  Excess morbidity is therefore a necessary but not sufficient condition for proving a causal relationship, and a distinction must be made between association and causation.  The epidemiologic-statistical research should be examined according to the accepted criteria mentioned in the judgment of Justice Naor in the Krishov case (paragraph 44 of the judgment), known as the Hill's Guidelines, and I will quote the following words:

1. 1. Temporal relationship - Does the disease appear after exposure?
2. strength of the association - What is the degree of contact (the degree of increased risk of those exposed to the disease)?
3. dose-response relationship - Does the tendency to get sick increase as the dose increases?
4. replication of the findings - Did repeating the study, and in different populations, yield similar results? It should be noted that similar results mean that the research method is consistent, but not necessarily correct - take, for example, consistent but erroneous scales, which always show the same erroneous weight ("Reference Guide on Statistics", pp. 102-103). 
5. biological plausibility (coherence with existing knowledge) - Is the relationship that has been found consistent with what is known in the biological field?
6. consideration of alternative explanations - Have other possible factors been examined?
7. cessation of exposure - Does the tendency to get sick decrease with the cessation of exposure?
8. specificity of the association - Has there been a connection between exposure and one disease (as opposed to many different diseases)?
9. consistency with other knowledge - Is the relationship found consistent with other information? (ibid., para. 35)
10. A perusal of the position paper in its entirety, or in part relating to the aforementioned chapter 8, shows that  what is stated therein does not assist the applicants to meet the burden imposed on them as detailed above, in proving an excess of morbidity in Haifa Bay that originated from the respondents, and all the more so in proving the required causal connection.  Thus, Grotto also explained  in relation to the position paper that it reflects his interpretive position, and he agreed, as detailed in paragraph 402 above, inter alia, that "...In environmental health studies, it is very difficult to arrive at optimal analyses" (see his testimony on page 964, lines 5-11).
11. In the position paper, it was stated in a manner that cannot be interpreted as supporting the Applicants' version, and especially with regard to the question of causal connection, inter alia, that "...Summary and presentation of morbidity data by different spatial geographic units...does not allow determining the reason for the presence of excess morbidity in the area, but indicates that there is a need to conduct a dedicated study in which it will be possible to examine the variables that explain this excess (after adjusting for individual variables)." (ibid., p. 34 below). Later it was stated, among other things, that "...In order to assess the impact of air pollution on the population in different areas of the Haifa district, an epidemiological research plan should be prepared and implemented to examine the associations between different components and different levels of air pollution within the Haifa area and the incidence of various diseases in subpopulations and different areas.  These studies should be based on individual data as much as possible and not on ecological research using acceptable, well-established and reliable epidemiological research systems, such as case-control and cohort study..." (ibid., p. 35 below).
12. Grotto admitted in his interrogation that smoking in general and the "smoking changes" of a person in particular have a detrimental effect on his health. ACCORDING TO HIM, THE DOSE RESPONSE EFFECT IS PRESENT IN SOME CARCINOGENS, AND CERTAINLY IN SMOKING.  The position paper did not find that the phenomenon of smoking (as an independent cause of morbidity) received appropriate attention, isolation, separation and weighting, from the alleged phenomenon of polluted air emitted from the various factories that causes excess morbidity.  [See also the addition of the sections 152-154 for the respondents' summaries].
13. Similarly, the phenomenon of air pollution from transportation in the Haifa area has not  been addressed and its impact on morbidity has not been addressed, as distinct from the polluted air that is claimed to have been emitted from the factories.  Grotto confirmed that he knows that apart from  pollution from industry "...that there is pollution from transportation in Haifa."  According to him, he even knows "...That electricity generation also causes morbidity and cancer."  Prof. Grotto was presented with the fact that there was an emission of pollutants from ships in the port, and he replied "...There are also many sources of pollution that people are exposed."  All of these factors of morbidity  were  not adequately  addressed in the aforementioned documents (Appendices 4 and 4.1), in a manner that would prove as necessary even at this stage of the hearing, that it was the respondents-factories that caused the excess morbidity, and all the more so that the aforementioned documents did not have the power to assist in proving the causal connection required for the various types, and even while complying with the Hill rules detailed above (see also Prof. Rennert's testimony  at page 1899).
14. At the end of the discussion in this chapter, we will also turn to the executive summary that appears in Appendix 1, in which a number of recommendations are presented, among other things, to continue to act to reduce air pollution in Haifa Bay, while formulating a plan that will address, among other things, the following aspects:
15. An action plan to reduce air pollution from all sources (industry, transportation, electricity generation).
16. Expanding epidemiological knowledge through conducting studies at an individual level, including receiving up-to-date data on morbidity in Haifa Bay.
17. A review of these recommendations shows, inter alia, that it is not possible to reach the conclusion required by the applicants regarding the  existence of excess morbidity in Haifa Bay, whose sole source  is the factories, and all the more  so that it is  not possible to conclude from it the existence of a potential and specific factual causal connection.  between the claimed air pollution (originating from the respondents) and (excess) morbidity.
18. The recommendations also emphasize the failures in the position paper, which, among other things, did not take into account the pollution originating from transportation (land and sea) and electricity generation, as well as the required epidemiological foundation that the authors did not have, when they did not have data on the personal level of morbidity in Haifa Bay.
19. We should also mention here, on the eve of the conclusion of the discussion on this point, that in Prof. Grotto's position paper (Appendix 1), it was noted, inter alia, in the chapter "Summary and Recommendations" that: "... The outline of exposure in Haifa is a unique mixture of industrial and transportation pollution that does not exist anywhere else in the country, and some of which has not been measured at all. As of today, there is no way to predict with certainty, based on the available scientific literature, how the combination of these substances affects the health of the population in the region, even though each individual substance is measured below the value of the environment" (ibid., p. 38 in the middle).

 Additional Material Failures Faced by Applicants in Proving Their Application