- “Why Do Employers Use FICO Scores?” Maybe one reason is that government places off limits so many of the other ways they might evaluate job applicants [McArdle, Coyote]
- Michael Fumento on $671 million verdict against nursing home in California [Forbes]
- Ted Frank is looking for a pro bono economics expert [CCAF]
- Lester Brickman, “Anatomy of an Aggregate Settlement: The Triumph of Temptation Over Ethics” [Phillips Petroleum explosion; SSRN via Legal Ethics Forum]
- Ice cream trucks return to Niskayuna, N.Y. 34 years after a panic-occasioned ban [Free-Range Kids, Mangu-Ward]
- Galloping trend toward “whistleblower” enactments: this time lawmakers are rushing one on oil workers [Smith/ShopFloor, more, earlier]
- Class action lawsuit filed against Trident Xtra Care gum, marketed as good for one’s teeth [Hoffman/ConcurOp; compare Russell Jackson on Wrigley’s settlement of a class action over Eclipse chewing gum]
- EEOC officials urge employers to ban foul language and swearing in workplace [seven years ago at Overlawyered]
- Saying fashion model broke his very fancy umbrella, N.Y. restaurant owner Nello Balan sues her for $1 million, but instead gets fined $500 for wasting court’s time [AP/FoxNews.com, NY Times]
- Spokesman for Chesapeake, Va. schools says its OK for high school marching band to perform at Disney World, so long as they don’t ride any rides [Virginian-Pilot]
- More on Chicago parking tickets: revenue-hungry Mayor Daley rebuffed in plan to boot cars after only two tickets [Sun-Times, Tribune]
- Too old, in their 50s, to be raising kids? [Houston Chronicle via ABA Journal].
- Britain’s stringent libel laws and welcome mat for “libel tourism” draw criticism from the U.N. (of all places) [Guardian]
- Beaumont, Tex.: “Parents sue other driver, bar for daughter’s DUI death” [SE Texas Record, more, more]
- “Three pony rule”: $600,000 a year is needlessly high for child support, even if mom has costly tastes [N.J.L.J., Unfiltered Minds]
- Advocacy groups push to require health insurers and taxpayers to pay for kids’ weight-loss camps [NY Times]
- Lester Brickman: those fraud-rife mass screening operations may account for 90 percent of mass tort claims [PoL]
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.