Wednesday, December 16, 2009
I am putting together a post of mass tort articles (loosely defined) published in 2009. Gentle readers, if you wrote an article that wasn't mentioned on the blog or that was mentioned and you want to remind me of or you have articles to nominate, please send me an email with your nomination.
Thank you in advance! ADL
Tuesday, December 15, 2009
Today's Wall Street Journal has an article on increases in Black Lung Disease, Black Lung on Rise in Mines, Reversing Trend, by Kris Maher. Black Lung claims are covered by a federal Black Lung program, which provides an administrative mechanism for compensation, funded by a tax on coal. What's interesting is that the rise in claims occurs despite improving technology, which would be expected to decrease health problems. Thus, the article explores possible causes, such as longer workshifts or more productive machinery that might produce more dust. If machinery is the culprit, it's possible that individual mining companies might have had an incentive to prioritize powerful machinery over safe machinery, if the costs of worker illness are spread throughout the entire industry via a coal tax. (Remedy: return to a system of individual tort claims against mining companies, or at least some administrative/tax penalty for companies with higher Black Lung claims.)
But one other possibility for the rise in Black Lung needs to at least be considered and explored: fraud. Recent events with silicosis are similar: historically falling disease rates in tandem with improving technology, followed by an odd spike in supposed disease incidence. In a now-storied Daubert inquiry, Judge Janis Jack, who herself had a background in nursing, inquired into the basis of expert testimony and diagnosis and uncovered biased and unreliable procedures that may amount to fraud; her discoveries effectively ended what appeared to be a new mass tort. See NPR, Silicosis Ruling Could Revamp Legal Landscape. Concerns of fraud and abuse should be even greater in the context of an administrative program that lacks the adversarial scrutiny of formal litigation. And the Black Lung program has historically been plagued by such problems. A 1989 article in the West Virginia Law Review, authored by a former Department of Labor counsel and a private practitioner, concluded,
[T]he program has been plagued by fraud and abuse. There have been investigations, and indictments, and convictions of agency personnel, claimant's representatives, and medical care providers. The program has been infected by an undercurrent of “petty corruption.” If anything, the program is the most often cited example of why Congress should leave occupational disease compensation to the individual states.
Allen R. Prunty & Mark E. Solomons, The Federal Black Lung Program: Its Evolution and Current Issues, 91 W. Va. L. Rev. 665, 734 (1989).