Echo-mill diagnostic skills, on contingency is a post from Overlawyered - Chronicling the high cost of our legal system

“He said he had worked too long and too hard for a lousy $41 million” is a post from Overlawyered - Chronicling the high cost of our legal system

In April 2008, the Diet Drugs MDL district court awarded $567 million the class counsel in that case, basing the award in part on representations by class counsel about future class recovery. A year later, a plaintiff’s attorney requested the court reopen the question of the fee award because the class counsel had exaggerated those estimates. The district court refused, holding that the one-year delay in bringing the Rule 60(b) motion was not a “reasonable time.” There has been an appeal to the Third Circuit, and, today, the Center for Class Action Fairness filed an amicus brief in support of the appeal that itself provides a short overview of the history of the fen-phen MDL. Many thanks to Chris Arfaa for his generous help in filing the brief.

CCAF amicus brief in fen-phen fees case is a post from Overlawyered - Chronicling the high cost of our legal system

A former paralegal in the firm, Fonda Walters, testified in a deposition that it exaggerated the injuries of a half-dozen clients, and that their initial test results, which had showed little or no heart damage, were altered. …Walters acknowledged she was fired from the firm in connection with a dispute over a bonus she claims she was owed.

The law firm’s defense raised (inter alia) an interesting argument:

Those lawyers also have argued that the alleged altering of Fulkerson’s medical records by the Florida-based firm of Wasserman Riley & Associates also doesn’t amount to negligence because “the claimed goal of the alleged malpractice was to get her more money.”

Apparently the judge rejected that argument, though. In a second Journal-Courier report dated June 22 — the same date as the above item, but presumably subsequent to it — Wolfson reports that Fulkerson’s lawsuit “has been successfully mediated and will be dismissed, lawyers for both sides said.” Speaking to the Broward-Palm Beach (Fla.) New Times, partner Jay Wasserman called the claims of diagnosis-embellishment “absolute nonsense”:

Wasserman also says there were only about six claims filed among the many prospective clients who received the complimentary tests. “If [falsifying results] was going on, why didn’t we have a much bigger number?” Wasserman asks, adding that since the reports were produced by experts and would be part of the case, it wouldn’t be possible to fake them, even if he wanted to.

More: Ronald Miller.

Fen-phen: were client’s medical records mishandled? is a post from Overlawyered - Chronicling the high cost of our legal system

Breaking: Guilty verdict in Kentucky fen-phen criminal retrial is a post from Overlawyered - Chronicling the high cost of our legal system

The 5th U.S. Circuit Court of Appeals on Monday upheld the conviction of Vicksburg lawyer Robert Arledge, convicted of bilking the drug company Wyeth of more than $6.7 million over the diet drug Fen-Phen….

U.S. District Judge David Bramlette sentenced Arledge to six years in prison for knowingly allowing clients to make claims of about $250,000 each for health complications although they had no legitimate reason.

Seems it was a clergy scandal as well as a lawyer scandal:

Regina Reed Green of Fayette, who pleaded guilty to tax evasion involving false Fen-Phen claims, testified Arledge knew about the scheme to defraud the drug company. She said he told her every resident of 9,740-population Jefferson County would get $1 million.

“The evidence showed that when Green became concerned that she might be caught fabricating the prescriptions and expressed a desire to stop her illegal activity, she contacted (the Rev. Gregory) Warren,” the appeals court wrote. “Warren tried to convince Green to continue fabricating the prescriptions, but Green was not assuaged.”

Green testified Arledge persuaded her to continue: “And he said … I wasn’t going to get in any trouble because like (Warren) said, they were going to box all those files up, put them away, and never be seen again.”

Earlier coverage here, here, and here (via).

“Lawyer’s Conviction Affirmed for Fen-Phen Settlement Fraud” is a post from Overlawyered - Chronicling the high cost of our legal system

Lawyers obtain the “mass” for some mass tort litigations by conducting screenings to sign-up potential litigants en masse. These “litigation screenings” have no intended medical benefit. Screenings are mostly held in motels, shopping center parking lots, local union offices and lawyers’ offices. There, an occupational history is taken by persons with no medical training, a doctor may do a cursory physical exam, and medical technicians administer tests, including X-rays, pulmonary function tests, echocardiograms and blood tests. The sole purpose of screenings is to generate “medical” evidence of the existence of an injury to be attributed to exposure to or ingestion of defendants’ products. Usually a handful of doctors (“litigation doctors”) provide the vast majority of the thousands and tens of thousands of medical reports prepared for that litigation.

By my count, approximately 1,500,000 potential litigants have been screened in the asbestos, silica, fen-phen (diet drugs), silicone breast implant, and welding fume litigations. Litigation doctors found that approximately 1,000,000 of those screened had the requisite condition that could qualify for compensation, such as asbestosis, silicosis, moderate mitral or mild aortic value regurgitation or a neurological disorder. I further estimate that lawyers have spent at least $500 million and as much as $1 billion to conduct these litigation screenings, paying litigation doctors and screening companies well in excess of $250 million, and obtaining contingency fees well in excess of $13 billion.

On the basis of the evidence I review in this article, I conclude that approximately 900,000 of the 1,000,000 claims generated were based on “diagnoses” of the type that U.S. District Court Judge Janis Jack, in the silica MDL, found were “manufactured for money.”

Despite the considerable evidence I review that most of the “medical” evidence produced by litigation screenings is at least specious, I find that there is no effective mechanism in the civil justice system for reliably detecting or deterring this claim generation process. Indeed, I demonstrate how the civil justice system erects significant impediments to even exposing the specious claim generation methods used in litigation screenings. Furthermore, I present evidence that bankruptcy courts adjudicating asbestos related bankruptcies have effectively legitimized the use of these litigation screenings. I also present evidence that the criminal justice system has conferred immunity on the litigation doctors and the lawyers that hire them, granting them a special dispensation to advance specious claims.

Finally, I discuss various strategies that need to be adopted to counter this assault on the integrity of the civil justice system.

“The Use of Litigation Screenings in Mass Torts: A Formula for Fraud?” is a post from Overlawyered - Chronicling the high cost of our legal system

The firm claims that Mr. Spielberg defamed the firm when he wrote to the office of the Manhattan district attorney asking prosecutors to open an investigation into what Mr. Spielberg alleges is the firm’s mishandling of earlier litigation involving the diet drug fen-phen.

The lawsuit also claims that Mr. Spielberg slandered the firm in conversations he had with a New York Times reporter, Anthony DePalma, who wrote a lengthy article about the involvement of a name partner at the firm, Paul Napoli, in the fen-phen litigation.

Yet, Mr. DePalma’s article doesn’t quote Mr. Spielberg or mention him at all. Napoli Bern is representing the vast majority of thousands of ground zero workers in their suits alleging that the city failed to protect them from toxins at the site that have caused respiratory and other illnesses. …

“They don’t want me to be able to talk to the press or law enforcement,” Mr. Spielberg said of the suit against him.

(Joseph Goldstein, “Seeking To Cut Off Criticism, Law Firm Sues Former Client”, New York Sun, Jun. 6).

Napoli Bern sues disgruntled client is a post from Overlawyered - Chronicling the high cost of our legal system

Little noted: while the attorneys stole at least $65 million from their clients, it’s very likely that they stole at least that much from Wyeth in getting a class certification in a personal injury case:

On the stand, [Bamberger] played the country judge who was in over his head in his first class-action lawsuit. But the evidence painted a shabbier picture.

It showed a judge who boasted about having the heaviest caseload in the state – perhaps because he was a plaintiffs’ judge, hand-picked by the fen-phen lawyers to take their side. On tape in his courtroom, Bamberger ranted about being “embarrassed” by low jury awards in Northern Kentucky.

At another taped hearing, Bamberger badgered the drug company’s attorney and pushed the plaintiffs’ case. He gave his local lawyer friends the class-action status they wanted, multiplying the liability jackpot.

Bamberger admitted that top class-action judges “said I shouldn’t be doing this, that it was not a class action.”

(Peter Bronson, “Even fen-phen horse has its own lawyer”, Cincinnati Enquirer, Jun. 1). Bronson also has more details on the bullying and buyout of an objecting plaintiff and appears to be the first print media to note that Bamberger has fingered Stan Chesley as being just as involved in the scam as the three Kentucky lawyers in the dock.

The WSJ Law Blog reports that the trial was delayed for a day due to health problems with defendant Melbourne Mills, who claims that the entire scam happened while he was hospitalized for alcoholism.

Separately, on Friday, legal assistant Rebecca Phipps testified that William Gallion told her to destroy documents; she denies claims that she threatened plaintiffs with jail for disclosing settlement terms. (Andrew Wolfson, “Diet-drug case witness says lawyer wanted documents destroyed”, Louisville Courier-Journal, May 31).

Two American Home Products defense attorneys refuted the plaintiffs’ attorneys claims that they were saving money in the $200 million settlement to handle future claims; AHP paid additional moneys to new claimants. One of the plaintiffs has testified that the firm told her to lie about where she got her settlement money from. (Andrew Wolfson, “Key diet-drug witness expected,” Louisville Courier-Journal, May 31).

What sort of straws are the criminal defense attorneys clutching at? “Phipps also acknowledged that she had exaggerated her role in the case when she asked the presiding judge to put her on the board of a charitable fund to which $20 million in settlement funds were transferred. [Gallion’s lawyer, O. Hale] Almand suggested that she lied so she could get $5,000 a month in director’s fees, as the lawyers were getting, but she said it was not about the money.” Aside from the humor of the “not about the money” claim, it’s interesting that the criminal defense attorneys are trying to discredit witnesses by indicating that they also wanted to steal money from clients for themselves.

Another victim in the Kentucky fen-phen settlement fraud is a post from Overlawyered - Chronicling the high cost of our legal system

Kentucky Fund for Healthy Living is a post from Overlawyered - Chronicling the high cost of our legal system