Class Action (Tel Aviv) 11278-10-19 Yehoshua Klein v. Oil Refineries Ltd. - part 7

"[...] The class action was not constituted – in essence – as a substantive right and as a cause of action.  A class action, with all its importance – and its great importance – is nothing more than a procedural tool for consolidating many claims under one roof.  Since the class action is what it is, we will find it difficult to interpret it in such a way that it will have the power – as it were, to change the rules of substance in tort law, including the rules of the causal connection and the foundations of awarding compensation" (Additional Civil Hearing 5712/01 Barazani v. Bezeq, Israeli Communications Company Ltd., IsrSC 57(6) 385, 417 (2003)).

(ibid., paragraph 4)

The Applicants' Expert Opinion and Their Testimony

111. The following will be a summary review of the three opinions on behalf of the applicants, the opinions on behalf of the respondents that directly related to the applicants' experts, and parts of the cross-examinations of the applicants' experts. This will also be done later in relation to the experts on behalf of the respondents.

Dr. Zamir Shlita - Medical Microbiologist

112. In the main opinion and the supplementary opinion [Appendices 13 and 13.1], Dr. Shlita discussed the causal connection between the air pollution of the complex of many hundreds of toxic and carcinogenic chemical pollutants emitted into the air from Haifa Bay and the surrounding area and the damage caused to the health of the residents who were exposed to it. According to him, the residents of Haifa Bay have been exposed to a large "cocktail" of severe pollutants at the same time. Therefore, according to Dr. Shlita, the harm of the pollutant to human health is both from each chemical contaminant on its own and from the synergy between the various chemical contaminants in the mixture, which significantly increases their damage.
113. According to him, the chemical pollutants cause the formation of free radicals in the body's cells. Naturally, low concentrations of free radicals are created in the human body  during respiratory processes and metabolism, even during the body's processes of fighting against pathogens and the penetration of pollutants.  When inhaled by particles, gases, aerosols and vapors, chemical pollutants penetrate the human body, and enter the respiratory system and lungs, causing the accelerated formation of free radicals.  The body itself creates additional free radicals as it works to dissolve and remove the insoluble pollutants, when due to chemical or biological contamination, excess radicals are formed.  The free radicals join and act in synergy and increase damage, including mutations.  When the concentration of pollutants increases or there is long-term exposure, excess free radicals are formed, and their damage increases.  They deplete the antioxidant stocks in the cells and damage the cell membranes, resulting in a disruption of the body's mineral and metabolic balance, and impairment of nerve, kidney, blood, urinary and immune function (see pages 2-3 of the first   discussion).
114. Because of the different variables that cause the formation of free radicals, it is not always possible to link every cancerous disease or other disease to a specific contaminant that caused it. However, the "fingerprinting" of certain contaminants is evident in prominent damage, particularly in the entry of pollutants into the respiratory tract, skin, liver, kidneys, and urinary tract. The accumulated contaminants are released slowly, even for about 20 years, and continue to be harmful, individually and all together, even without further exposure to external pollution (see page 3 in the middle).
115. The accepted working assumption is that there is no safe threshold of exposure, and theoretically, any amount of carcinogen, even the smallest one, could cause the development of a malignant disease in the future. In his opinion, Dr. Shlita details the possible damage caused by each of the main pollutants to the human body.
116. Shlita emphasized that his main opinion focuses specifically on the causal relationship, and that he is based on the assumption, based on reports from the Ministry of Environmental Protection and the Ministry of Health, as well as on the literature on the subject, that the air in the Haifa Bay area contained toxic and carcinogenic compounds. Dr. Shlita also assumes that the opinions relate only to the substances that were monitored, while according to him, most of the toxic and carcinogenic substances in the air in Haifa Bay were not monitored at all and their quantities are unknown.
117. Shlita concluded his main opinion by noting that "...Based on the diseases that have been diagnosed with high prevalence in the residents of Haifa Bay and the surrounding area, and on the results of relevant recent studies, and based on the personal knowledge and experience I have accumulated in my years of scientific work, I am of the opinion that there is a clear causal link between cancer and other serious diseases diagnosed more frequently in the residents of Haifa Bay and the surrounding area and the pollutants emitted from the factories directly into the air, or indirectly from the Kishon water that was contaminated with industrial wastewater, for decades, has largely led to the assumption that such a connection does not exist."

"I also determine that there is a very high probability that the residents' long-term exposure to pollutants in the Haifa Bay is  the dominant cause of cancer and other serious diseases that were reported by the Ministry of Health and summarized in this opinion, and other serious diseases, some of which will be diagnosed in the future" (ibid., page 3 below and page 4 above).

118. As we will recall, our matter does not concern those who have already fallen ill. The expert did not specify what those "serious diseases" would be diagnosed and when, in the future.
119. Shlita adds and notes in his first opinion "...Many pollutants reached the air from the Kishon water, which was constantly contaminated with industrial wastewater, which contains a combination of many toxic and carcinogenic pollutants and high concentrations in the water. From the water, many pollutants came into the air with steam, sprays, and toxic and carcinogenic gases... Therefore, each of them had a separate impact from the pollutants in the air from Haifa Bay and the surrounding area... synergistically on the formation of cancers and other serious diseases..." (ibid., p. 4 above).
120. According to Dr. Shlita, the common harm of all chemical pollutants is that they are all "...Causes the formation of free radicals in the body's cells. Any chemical contaminant that penetrates the body. Causes the formation of a large addition of free radicals. Most free radicals exist for a very short time" (ibid., p. 16).

And later on, "...Certain carcinogens damage cellular defense mechanisms: Free radicals cause the cellular reserves of antioxidants to be  wasted, in order to neutralize them, especially in the immune system, severely impairing their function.  In this way, the immune system's ability to resist destroying cells that have undergone mutations and cancerous metastases decreases... The error correction system in DNA is also damaged by free radicals." (ibid., pages 17 below and 18 above) (see also page 31 in the middle).

121. According to Dr. Shlita, "...The common denominator of all pollutants [which he listed in his opinion] is that they immediately begin to cause damage, they cause the body's cells to produce free radicals... Oxidation damage and damage to the respiratory tract and lungs, digestive systems, blood... All of these have DNA damages that cause mutations. And some of the cells lose control of the divisions, and unsupervised divisions begin, i.e., cancer. Although liver cells remove some of the toxic compounds... With the help of a free radical connection... However, in the process of dissolving, additional free radicals are created  that increase the damage" (ibid., p. 30 in the middle) [see also the issue of "Free Radicals," pp. 31 in the middle and bottom, and 42-43].
122. According to Shlita, he notes that there is also damage from the pollutant mixtures, and not only damage from each pollutant separately. According to him, in summary, the studies he presented in his opinion show that there are interactions, including synergy between various chemical contaminants. He claimed, among other things, that "...The pollution in Kishon water is found in a cocktail composed of many pollutants that interact with each other and their effect on each other may be increased by synergism..." (See pages in detail 55-57 in his opinion).
123. In his supplementary opinion (Appendix 1), Dr. Shlita referred to some of the expert opinions on behalf of the respondents. According to Dr. Shlita, Prof. Friedman also wrote an opinion in the fishermen's lawsuit, where he was the only expert out of twenty who ruled out the contamination of the Kishon waters. Prof. Friedman did not specifically refer to any of the air pollutants in Haifa Bay, he did not read the official reports presented by Dr. Shlita, and he denies the existence of pollutants in the air in Haifa Bay and the fact that chemical pollutants cause the creation of excess free radicals.  While Prof. Friedman denies the damage caused by free radicals, he does recognize the damage caused by cigarette smoke, but the damage caused by cigarette smoke is that it leads to the formation of free radicals in the body's cells, and therefore Prof. Friedman contradicts himself.
124. According to him, Friedman argues that even if there are minor damages in the sequence of DNA bases, the repair mechanisms correct most of the mutations that are created, thus admitting that the repair is not perfect, and that there are mutations that remain and accumulate. Similarly, Prof. Friedman claims that free radicals are natural and normal products that are beneficial to processes in the living cell, but hides the fact that this is the case only in very low concentrations, and that even in these concentrations they accelerate aging and old age. In addition, Prof. Friedman rejects articles and studies even though they have been published in professional scientific journals.
125. According to him, the assertion by Dr. Libiki and Dr. Rodriguez that the air in Haifa Bay is no more polluted than the air in other cities in Israel and other countries is unfounded, which ignores, among other things, the flaws in air pollution monitoring, when among other things, the monitoring did not include or only partially included most of the toxic pollutants. According to him, Libiki and Dr. Rodriguez make a  baseless claim that each chemical contaminant should be treated separately, and that  there are no interactions and synergies between the pollutants, thus ignoring the reports of the US Federal Environmental Protection Agency, according to which the various pollutants should be treated only as a mixture because of the interactions between them, and each pollutant should not be treated separately.

According to Dr. Shlita, the data regarding the increased morbidity and mortality in Haifa Bay testify in themselves to the causal relationship between pollutants and morbidity and mortality, and that there are pollutants that have not been monitored at the monitoring stations.

126. Shlita also noted that the three experts ignored a report by the Ministry of Environmental Protection that was hidden from the public and a report by BAZAN on a serious leak of toxic and carcinogenic substances that occurred in 2015.
127. The respondents submitted four opinions against Dr. Shlita's opinion – the first by Eitan Friedman, an expert in internal medicine and medical genetics with a specialization in oncogenetics, the second by Dr. Shari Libiki, an expert in the analysis of air monitoring data, the third by  Dr. Julie Goodman, an expert in the field of epidemiology and toxicology, and the fourth by  Dr. Joseph Rodrigues, an expert in the field of toxicology.  Chemical and public health risk assessment.

The Respondents' Experts' Criticism of Dr. Zamir Shlita's Opinion in a Nutshell

128. According to Friedman, in his main and supplementary opinion, Dr. Shlita's theory, according to which exposure to pollutants creates a load of free radicals, which is the main cause and the dominant cause of cancer and other diseases, is a theory that is not accepted in the scientific world, is simplistic, inaccurate, and is not supported by any objective scientific evidence.
129. Free radicals are natural and normal products of many processes in the human body during daily activities including eating, drinking, and exercising. Free radicals are not accepted as a factor of clinical importance for diseases in general and cancer in particular. There is no evidence of a causal link between high levels of free radicals or their activities and the cancerous process.  On the contrary, free radicals also have an anti-cancer effect.
130. In his opinion, Dr. Shlita does not present any scientific proof that any addition of free radicals in those who live in the Haifa Bay area contributes in any way to any harm of any clinical significance among the plaintiffs. It also does not present any scientific proof that exposure to air in Haifa Bay changes the level of free radicals beyond the body's ability to cope with it or to levels that may cause any health damage. The alleged exposure has and has no causal connection to causing any of the applicants' current or future clinical symptoms.
131. There is no scientific, research, or medical evidence to support the hypothesis that exposure to a "cocktail" loaded in the air in Haifa Bay is associated with a continuous load of free radicals and causes a negative health effect or health damage in any clinical sense. Just as there may be synergism, so it is possible that there is an antagonistic effect between the substances, that is, an interaction that offsets the effect of the substance from one another.
132. There is no basis for the claim that there is no safe threshold of exposure, and a one-time exposure to a minimal concentration of the various substances that exist in the air or in Haifa Bay is sufficient to establish a causal relationship. Estrogen and alcohol are both defined as certain carcinogens, and it is clear that cancer cannot always be attributed to these substances, regardless of the extent of exposure.
133. Friedman notes that Dr. Shlita does not have medical training and that he does not have the expertise required to give an opinion on most of the issues he discusses in his opinion. Dr. Shlita does not have any work dealing with the subject of the claim. Contrary to Shlita's claim that he published 56 scientific publications in the scientific press, a search of his articles yielded only nine articles, the last of which was from 1992.
134. Liviki's opinions deal mainly with the description of the air quality in the Haifa Bay area and the determination that there is no abnormal air pollution in the area, and they will be presented in detail below. As part of her opinion, Dr. Livki also criticizes Dr. Shlita's opinion.  Thus, according to her, contrary to Dr. Shlita's claim, the monitoring in the Haifa Bay area is quite comprehensive and complete, no evidence was presented to support Dr. Shlita's statements regarding poor monitoring, and no claim was made regarding any specific pollutant that it was not properly monitored.
135. According to her, Dr. Shlita is wrong when he places emphasis on emissions data and not on air monitoring as it reaches the residents. Monitoring the air using the monitoring system, especially in Haifa, which has a large number of monitors in residential areas, is the best way to measure the population's exposure to air pollutants. The measurement using the monitors of the monitoring system also negates the theory that there was a severe leakage of toxic substances in double the amount of regular pollution.  If there had been such a leak, it would have been discovered by the monitors.
136. It is claimed that Dr. Shlita focuses on the possibility of a synergistic effect but ignores the possibility of an antagonistic effect. In addition, contrary to Dr. Shlita's claim, due to the many uncertainties and limitations related to the effects of chemical mixtures on human health in the long term, the directive in the United States is to treat chemical ingredients separately. There is no evidence for any sweeping statement that supports the synergy of air pollutant mixtures.
137. Goodman also deals mainly with the issue of air pollution in the Haifa Bay area, and she also relates, among other things, to Dr. Shlita's opinion. Thus, according to her, Dr. Shlita provides very few references to support his views, and it seems that he selectively selected articles that supported his views and ignored much literature on the subject.
138. According to her, Dr. Shlita did not discuss the relevant exposures to the residents of Haifa Bay – he mentions studies in which the exposure was occupational, i.e., of people working in the environment of pollutants, where the proportion of pollutants is much higher than that found in the surrounding air; and refers to studies on toxicity, where the exposure is also much higher. It also does not specify the levels of exposure required for a health effect, nor does it compare the concentrations of substances in Haifa compared to the exposure guidelines set by the regulators.
139. Shlita's claim of lack of threshold ignores the safety factors that are understood in all regulatory standards that also take into account sensitive subpopulations.
140. Shlita's free radical claim was made without examining whether the residents of Haifa Bay had increased levels of free radicals and did not provide the amount of free radicals required to cause cancer. In addition, the very claim that exposure to contaminants at any concentration creates free radicals that cause DNA damage and inevitably cause cancer and other diseases is not accepted in the scientific community.  Studies on the causes of disease also include reference to the role of free radicals, yet the rate of exposure that can cause the disease has been determined, and it has not been determined that every exposure causes the disease.  In addition, Dr. Shlita ignores other factors that cause diseases such as lifestyle and health, inactivity, overweight and genetics, as well as the fact that the body has the ability to repair the damage caused by free radicals.
141. In Dr. Goodman's opinion of December 14, 2023 (which was submitted in place of Rodrix's opinion), the main and supplementary opinion, it was argued in relation to Dr. Shlita's opinion that the sources he referred to in order to substantiate the claim of excess morbidity do not claim a causal link between environmental pollution and excess morbidity. Similarly, when he referred to the study of Cook et al. and allegedly detailed the list of known diseases caused by free radicals, he omitted the researchers' conclusion that the mere presence of the damage is not proof of a causal connection.
142. As for the synergy claim, such effects are rare, and may not even occur at low levels of exposure. Therefore, it can be assumed that synergy exists for a particular mixture only when there is reliable scientific documentation for it.
143. Regarding the claim of a lack of a threshold for exposure, extensive research literature documents that a certain minimum level of exposure to the chemical is required for its toxic properties to be manifested. The threshold no-threshold thesis is not considered accepted by the scientific community, and since it is only an unproven theory, it is not considered valid proof of the causation of diseases even among its proponents.
144. Regarding the claim of deficiencies in monitoring , and therefore incomplete data, it was argued, inter alia, that evidence of deviation from regulatory standards is insufficient to prove that there may be harmful effects on exposed individuals, because the regulatory standards are developed with large safety intervals to ensure the protection of the most sensitive members of the population.
145. According to her, Dr. Shlita's claim that "the facts I quoted in my opinion about the increased morbidity and mortality among the residents of the Gulf are proof of the causal link between the pollutants and the increased morbidity and mortality among the residents of Haifa Bay" is a circular claim that assumes what is sought, and ignores other potential causes of pollution. There is no scientific basis to support the claim that increased morbidity and mortality in Haifa can only be caused by the emission of pollutants from the respondents.
146. Shlita made no attempt to determine general causation for specific contaminants or specific health effects. Nor has it been able to link specific individual exposures to their health effects, and has made no attempt to differentiate pollutant emissions from different sources.
147. In addition, Dr. Shlita did not provide evidence that as long as there are pollutants in the air, the respondents either produced or released them, or the required extent of exposure and the actual levels of exposure of the residents to the polluting substances.

Testimony of Dr. Zamir Shlita

148. In his cross-examination, Dr. Shlita was asked about the manner in which his opinion was prepared, and he answered as follows:

Q:      ...  One last thing I want to ask you.  Look, you said and I wrote down in my hand what you said, that you quote a lot of things, you read things, you see things, But you actually said it's not in my area of expertise, but it's in my field of reading.  You read a lot of material.  If I summarize all of your opinions, After all, you're not an expert on free radicals, you're not an expert in epidemiology.  You are not an expert in causal relationships in diseases from infection, Even though you linked them in your review.  You are making your own assumptions, something that is your expertise, does not appear in your review.  You collected all kinds of copy and paste that you said earlier from this and other places, Equiwiki, Reports, But in your expertise you have no contribution to matters that..