Posts Tagged ‘silicosis’

Asbestos: Production — the great screening scam

Once plaintiffs’ lawyers attracted potential asbestos plaintiffs, they had to convert them into actual plaintiffs. This “production” process is at the heart of the overall asbestos litigation scam. As noted, the screenings typically occurred in vans or trailers in parking lots. The procedures inside were laughable:

Inside the trailers, screeners took “occupational exposure histories” (which were necessary to link plaintiffs to asbestos defendants), conducted breathing tests, and took X-rays that were later analyzed by medical specialists known as “B readers.” People with little or no medical training ran the screening clinics: high school students or clerical workers took patient histories, a crucial procedure in diagnosing lung disease. Glorified clerks composed the diagnoses and “signed” them with rubber stamps.

The evidence is overwhelming that these screenings were largely shams designed to identify as many individuals as possible as “impaired” with asbestos-related injury. The plaintiffs’ lawyers only employed 4 to 6 percent of the nation’s certified B-readers. Some were employed in staggering mass-production fashion: one doctor diagnosed some 88,000 patients, conducting 150 asbestos X-ray readings per day. Unsurprisingly, many of the doctors who were most employed by the asbestos litigation machine later disavowed their diagnoses under oath or pleaded their Fifth Amendment-right against self-incrimination.

Just how stacked were the screenings in favor of finding a positive diagnosis of injury? A study employing independent readers conducted by Johns Hopkins researchers looked at 492 X-rays processed by the screening clinics and found lung impairment in 4.5 percent of cases; the lawyers’ B-readers had identified asbestos-related injury in 95.9 percent of the exact same films.

While the fraud involved in asbestos screenings was fairly well known among those in the know, and had been documented extensively by Professor Lester Brickman (see, e.g., here), the real public break in exposing the fraud came in federal court in 2005, when Texas judge Janis Graham Jack documented on the record massive fraud in the silicosis cases before her court. Regular readers of Overlawyered and Point of Law are familiar with Judge Jack’s basic findings (see here), so I’ll only go over the high points. (Interested readers can refer to the pertinent section of the Trial Lawyers, Inc.: Asbestos report for more detail.)

In essence, Judge Jack discovered (through the diligent work of the defendant’s law firm) that most of the silicosis claims before here were filed on behalf of individuals who had already been paid for asbestosis. While medically possible, mutual occurrence of both diseases is highly unlikely; and the medical diagnosis of X-ray readings makes distinguishing between the 2 injuries rather easy, as “scars that asbestos causes look like threads, while the scars that silica causes look like BBs.” Dr. George Martindale, a doctor who had processed thousands of claims before Judge Jack, admitted that the language in his “reports” that formed the basis for the litigation came from the lawyers and screening companies, and he denied that they were actual diagnoses. Judge Jack held full hearings under the rules established by Daubert v. Merrell Dow Pharmaceuticals and its progeny, and issued a comprehensive — and withering — 249-page decision:

These diagnoses were about litigation rather than health care. And yet that statement, while true, overestimates the motives of the people who engineered them…. [T]ruth and justice had very little to do with these diagnoses. Instead, these diagnoses were driven by neither health nor justice; they were manufactured for money. The record is not clear who originally devised this scheme, but it is clear that the lawyers, doctors and screening companies were all willing participants.

Since Judge Jack’s ruling, other scandals involving mass asbestos screenings have emerged, which I’ll document in due course. The key take-away from a broad litigation context is just how much difficulty U.S. courts have in dealing with complex medical evidence. Federal courts have improved significantly since Peter Huber wrote Galileo’s Revenge, in no small part due to Daubert and the cases that followed, but many state courts lack the procedural protections — or competence — that their federal brethren possess in handling these issues. Indeed, had Judge Jack not been a former nurse, she herself may not have been able to interpret the fraud before her. In mass tort cases, of course, handling the scientific evidence becomes all but impossible, as I’ll discuss next.

Asbestos: Part Deux

With Walter occupied on a deadline and Ted on the road, I’m happy to be back to wrap up my discussion of developments in asbestos litigation, as summarized in the Manhattan Institute’s recently released Trial Lawyers, Inc.: Asbestos report. As I noted last month, asbestos has an ancient history, and in the early part of the last century, it was deemed a “magic mineral”; its flame-retardant properties protected American naval vessels and schoolhouses from fire. (See here.) Unfortunately, asbestos exposure ultimately proved deadly, the plaintiffs’ lawyers pounced, and the American asbestos industry largely went bankrupt by the early 1980s. (See here.) The trusts created to pay out claimants from these bankrupt entities became a big business unto themselves, swamped with claimants and unable fairly or efficiently to process the claims. (See here.)

 What happened next, in the 1990s and early part of this decade, amounts in large part to the systemization of fraud, through a business model the trial lawyers developed to extract as much money as possible out of the asbestos well. As we point out in our Trial Lawyers, Inc. report, this business model “starts with marketing (recruiting plaintiffs), followed by production (eagerly screening prospective plaintiffs for purported lung impairment and usually finding it), packaging (bundling cases into a “mass” of tort claims), and sales (overwhelming courts and defendants to extract settlements).” At each stage of the process, the business exemplifies major problems with American jurisprudence. I’ll start with marketing.

Lawyers’ ability to “market” for clients is founded in the U.S. Supreme Court’s decision in Bates v. State Bar of Arizona, which determined that attorney advertising is a form of speech protected by the First Amendment. That ruling may well have been right as a matter of constitutional law, but it effectively gutted prohibitions on attorney solitication of clients and led to attorney-driven litigation. In the asbestos context, solicitation of clients became truly laughable, as ne’er-do-wells attracted potential plaintiffs to screening vans parked outside union halls or strip malls:

Heath Mason, a junior-college dropout with no legal or medical training who made $25.5 million from asbestos litigation. Mason’s role was attracting potential plaintiffs to “screening clinics” that interviewed and “tested” them, usually in trailers hauled to restaurant, shopping-center, or motel parking lots. Mason would lure passersby with attractive women he called his “lawyer girls,” such as the two young lawyers he met at an unidentified convention in Fort Lauderdale, Florida, and later persuaded to stand on a Fort Worth street corner with signs directing potential plaintiffs to an X-ray screening van in a Staples parking lot.

Today, marketing tactics are also of the sophisticated variety. As Overlawyered readers are aware, the most expensive Google ad-search terms involve “asbestos” and “mesothelioma.”

Client-chasing roundup

  • Screening firm hired by Beaumont, Tex.’s Provost Umphrey to do mass silicosis x-rays at Pennsylvania hotels is fined $80,500 for breaking various state rules, like the one requiring that a medical professional be on hand [Childs]
  • Milberg Weiss’s special way of obtaining perfectly pliant clients — that is to say by bribing them under the table — harmed other class members by increasing fees but not settlement sums, suggests a new study by St. John’s lawprof Michael Perino for Ted’s project at AEI [Carter Wood @ PoL]
  • Time for Texas to join many other states in requiring lawyers to inform clients when practicing without professional liability insurance [SE Texas Record; earlier here, here and here]
  • Lawyers, in concert with their public pension fund allies, jockey for control of securities case against Bear Stearns [Gerstein/NY Sun]
  • Another court, this time in California, rules that a screw maker can’t sue a law firm on the claim that its solicitation of potential claimants wrongly portrayed the company’s products as defective; amicus brief from state trial lawyers group and Sen. Sheila Kuehl says relevant provisions of state’s “SLAPP” law were “meant to protect plaintiffs groups, not companies” [The Recorder via ABA Journal; earlier case from Tennessee]
  • Most lucrative Google AdSense words still dominated by asbestos and other personal injury practice, the top terms being “mesothelioma treatment options” ($69.10 per click, and the point of obtaining the click is not to provide treatment options), “mesothelioma risk” ($66.46), and “personal injury lawyer michigan” ($65.85) [CyberWyre via NAM “Shop Floor”; more here, here, etc.]

“Why Doctors Are Heading for Texas”

Tort reform, of course, resulting in substantially lower medical malpractice premiums and expenses, and an influx of 7000 doctors, including into many underserved regions. One indirect benefit: with less money spent on medical malpractice lawyers, self-insuring hospitals can spend more on doctors and on medical practice:

Take Christus Health, a nonprofit Catholic health system across the state. Thanks to tort reform, over the past four years Christus saved $100 million that it otherwise would have spent fending off bogus lawsuits or paying higher insurance premiums. Every dollar saved was reinvested in helping poor patients.

Also of relevance: the amusing results when Texas added evidentiary standards of medical harm to their asbestos and silicosis docket. Suddenly, over 99% of the cases went away because so few suing plaintiffs had a doctor willing to certify harm. (Joseph Nixon, WSJ, May 17). Related: POL Nov. 6, 2006 and POL Nov. 7, 2006, where I debate Texas law professor Charles Silver on these issues. Suffice it to say that the last year and a half has provided more support for my position than his.

Update: more data at Texas Medical Association website.

February 11 roundup

November 28 roundup

All-medical edition:

  • Shocker for New York docs: possible assessment of $50K apiece to make up losses at nonprofit med-mal insurer [White Plains Journal-News Chamber reprint]
  • Dr. Ray Harron, a central figure in furor over mass asbestos and silicosis screenings, seems rather hard to locate at the moment, though he does have a lawyer speaking on his behalf [NY Times, WV Record]
  • Another push to raise the threshold of liability for emergency room care in Arizona [AZ Business Gazette]
  • End run around Roe? Some state legislatures attaching sweeping new tort liabilities to the provision of abortions [Childs]
  • Three nominees for worst-founded medical lawsuit, lamentably unsourced [Medical Justice]
  • Spokane psychiatrist shouldn’t have engaged in romantic (though not sexually consummated) dalliance with forty-ish patient; that much is clear. But should she now get cash? [AP/Seattle Times]
  • “Baby falls to floor during home delivery, mom sues hospital for too-early discharge” [SE Texas Record]
  • A sensitive subject: malpractice and doctors’ suicides [KevinMD, a while back]
  • “If the ‘loser pays’ system is so bad, why do most other countries keep it around instead of switching over to an ‘Americanized’ system of tort law?” [WhiteCoat Rants]
  • Hospital, ambulance service among those sued after fatal crash of NFL’s Derrick Thomas [seven years ago on Overlawyered]

New at Point of Law

Among things you’ve missed if you haven’t been keeping up with our sister site: law firm tells silicosis clients that “unfortunately” they’ve checked out healthy and don’t have the disease after all; American Express pays $3 million, and class action objectors go away; Harvard’s Larry Tribe apologizes to the widow of the late Prof. Bernard Siegan; French consumerist vows not to replicate U.S. folly on class actions; Madison County, Ill. courts due for upgrade to heckhole status?; Hillary bashes Obama for supporting class action reform; Deborah La Fetra concludes her week of guestblogging on premises liability, negligent security and other matters; and much, much more.

The Wall Street Journal on “Do it Yourself Tort Reform”

In today’s Journal, an article by the people behind Medical Justice:

In 2002, we launched Medical Justice, a membership-based organization designed to complement tort reform and to head off frivolous lawsuits. ….

Our service has two principal components. First, we look at the quality of so-called expert-witness testimony. Behind every frivolous lawsuit there is an “expert” — usually a physician skilled in testifying before juries and often compensated to the tune of $10,000 dollars a day. Put bluntly, many of these “experts” are frauds, as this newspaper has repeatedly shown in cases regarding asbestosis and silicosis claims….

Medical Justice’s second tool is a patient-physician contract. That contract states that in a legitimate dispute, both sides will utilize only those experts who belong to such societies and who strictly follow their code of ethics. This limits the list to reputable and accountable physician experts, thus precluding the use of hired guns or medical “witnesses having other rational explanations” — better known by their acronym.

Does it work? Yes. After five years of collecting data, we know that Medical Justice plan members are sued at a rate of under just 2% a year. The average doctor is sued at a rate of 8%-12% per year. And the company is top heavy with physicians in “high-risk” specialties.

Private law saves the day? Perhaps — but how long before the plaintiffs’ bar fights back with legislation?

July 6 roundup

  • How to handle illegal alien’s slip-fall suit against supermarket? With some delicacy: jury told only that plaintiff “couldn’t legally work in this country” [Oroville, Calif., Mercury-Register]

  • Sorry, docs: “I hate doctors” beats out “I hate lawyers” as a Google search result [Bioethics Discussion Blog via KevinMD]

  • Virginia adopts harrowingly punitive schedule of traffic fines. Its sponsor: lawmaker whose day job is defending motorists [Washington Post; NRO “The Corner”; Ribstein; our earlier report]

  • A businessman in London is suing Google for “publishing” (by indexing) allegedly defamatory material, and, boy, will the Internet ever be a different place if he wins [Independent (U.K.), Volokh]

  • Federal indictment charges Houston injury lawyer secretly paid $3 million to two Hartford Insurance claims adjusters in connection with $34 million in silicosis settlements [PoL]

  • Mississippi high court rules invalid former AG Mike Moore’s slush-fund diversion of $20 million/year in tobacco settlement money to evade legislative oversight [Sun-Herald, Bader; also this PoL roundup]

  • More RIAA-suit horrors, this time from Washington state [Seattle P-I] Prospects for a counterattack? [Pasquale, Concurring Opinions]

  • California Assembly votes to require pet owners to sterilize mixed-breed dogs and cats, while UK animal rights authority mulls rights for invertebrates [Mangu-Ward and Bailey, Reason]

  • Here come the tainted-Chinese-export suits, with many American defendants on the hook [Parloff, Fortune] Plus: car with the “E COLI” license plate may be driving lawyer to work [WSJ Law Blog]

  • Gimme those antiquities: Peru vs. Yale on Machu Picchu relics [Zincavage]

  • Dick Schaap med-mal case evokes shifting theories from celebrated lawyer Tom Moore [two years ago at Overlawyered]