Saturday, December 2, 2006
Interesting op-ed in today's Wall Street Journal -- False Witness, by Professor Lester Brickman of Cardozo School of Law of Yeshiva University. Professor Brickman discusses the influential opinion by Judge Janis Jack in the silicosis litigation, documenting widespread fraudulent medical diagnoses in mass screenings set up by plaintiffs' counsel to locate injured plaintiffs. Professor Brickman then mentions similar problems in the litigations involving Fen-Phen, silicone breast implants, mold, and asbestos. Professor Brickman's favored solution is for courts to greet claims generated from mass screenings with "healthy skepticism" and stop "insulat[ing] them from . . . extensive discovery," and for prosecutors to more aggressively pursue criminal prosecution of experts for fraud.
The record of mass screenings set forth by Professor Brickman does indeed indicate the need for full, vigorous discovery through our adversary system. I would argue, however, that ideally the skepticism of judges should be based on the evidence of bias in the mass screening put before them, rather than a predetermined judicial mindset waiting to see fraud -- which itself would seem to constitute bias.
Moreover, bringing to the courts plaintiffs truly injured by defendants' conduct is essential to effectuating the tort system's goals of corrective justice, deterrence, and compensation. That plaintiffs' counsel would fund screenings in a search for such truly injured plaintiffs assists the tort system, so long as the screenings are done under procedures that withstand review for scientific rigor and avoidance of bias.
The issue of the use of mass screenings in litigation is a rich topic deserving of the great attention that Judge Jack's silicosis opinion has brought. In this op-ed piece and also in a recent law review article, Professor Brickman justifiably and interestingly widens a conversation that should continue to expand and include comment from all sides of the ongoing mass tort debate.