Mass Tort Litigation Blog

Brickman on Fraudulent Claims

Lester Brickman (Cardozo) recently updated an article on fraudulent claims in the asbestos context on SSRN.  The title is "Disparities Between Asbestosis and Silicosis Claims Generated by Litigation Screenings and Clinical Studies." The article was published in the Cardozo Law Review in 2007.

The bottom line, according to Brickman: "The conclusion I draw from the data and evidence presented is that Judge Jack's findings with regard to the medical reports in the silica MDL applies with at least equal force to nonmalignant asbestos litigation: the medical reports are mostly manufactured for money."

ADL

Philadelphia Asbestos Verdict - $25.2 million

The Legal Intelligencer reports that after a reverse-bifurcated trial, a Philadelphia jury awarded $25.2 million in compensatory and punitive damages to compensate for malignant mesothelioma deaths. Plaintiffs in the three cases requested Kentucky law; two settled after the compensatory damage phase. According to plaintiffs’ attorneys, Kentucky law ultimately permitted the jury to award higher punitive damages than it could under Pennsylvania law. Here’s an excerpt:

His case, Baccus v. Crane Co., was brought against the Crane Co., John Crane and Yarway, a company. The defendants sought to have Kentucky law apply to the jury's findings in Baccus and the judge agreed. The jury had previously awarded $7 million in compensatory damages to Baccus and apportioned liability in the amount of 45 percent against John Crane, 35 percent against Crane Co. and 20 percent against Yarway, Shein said.

The jury, applying Kentucky law, also found Yarway and Crane Co. "grossly negligent for failure to warn of the dangers of asbestos in reckless disregard of the safety of others," Shein said. The jurors assessed $11.9 million in punitive damages against Crane Co. and $6.3 million against Yarway.

Shein said this is the first case in Philadelphia he has seen in more than 20 years in which a jury awarded punitive damages in an asbestos case. He said the standard for applying such damages in an asbestos case in Pennsylvania is "much, much higher." He said Pennsylvania usually defers the finding of punitive damages until later in the case whereas Kentucky law instructs the court to do it sooner.

The defendants, Shein said, wanted to apply Kentucky law because it uses an apportioned liability standard in which each of the defendants, even those who previously settled, are given an individual portion of liability. The Pennsylvania model is more akin to "in for a penny, in for a pound," Shein said, in which each defendant splits the damages equally.

"The thing kind of backfired on them because the jury held all of the settled defendants zero-percent responsible," he said.

The defendants that settled before the compensatory damages phase of the trial were Ingersoll Rand, THAN, IMO/DeLaval, Westinghouse, Owens Illinois and Goulds Pumps.

ECB

W.R. Grace Foots the Bill for Montana Asbestos Clean-up

Susan Gallagher of the Associated Press reports that W.R. Grace & Co. agreed to pay $250 million toward asbestos clean-up in Libby, Montana. The full story is available online; here’s a brief excerpt:

More than 215 asbestos-related deaths in Libby have been confirmed and a clinic in the community, the Center for Asbestos-Related Disease, is following about 2,000 asbestos cases, said Jon Heberling, a Kalispell lawyer with clients pursuing legal action for asbestos exposure.

"Any judgment against Grace is a good one," Gayla Benefield of Libby said Tuesday. "This is a step forward; $250 million is nothing to sneeze at considering that in 1999 they (Grace) were saying, 'We didn't cause the problem. We didn't do anything.'"

Benefield has said she suffers health effects from asbestos exposure and lost both parents to asbestos-related diseases.

The EPA's Peronard said the remaining cleanup work in Libby is likely to take three to five years.

In 2001, the government filed a lawsuit to recover costs and in 2003, the EPA won a $54 million judgment for cleanup costs incurred through Dec. 31, 2001. However, the money went unpaid during Grace's bankruptcy protection. The settlement announced Tuesday includes that 2003 judgment, the Department of Justice said.

Besides removing soil around homes and businesses, cleanup has included removing building insulation and debris containing asbestos. Peronard said cleanups have been completed at 954 properties, and 450 remain on a cleanup list. Still to be decided: what to do about some 700 properties that are in the Libby area and are contaminated but do not meet removal criteria.

ECB

Registration for Southwestern Law School Asbestos Symposium

On Friday, January 18, 2008, Southwestern Law School is hosting a symposium entitled, Perspectives on Asbestos Litigation.   Here's the press release, and brochure: Download southwestern_law_school_asbestos_symposium_brochure.pdf  For further information about the conference, see my prior posts here and here.  Attendees may register in advance by contacting the Student Affairs Office of Southwestern Law School at (213) 738-6716.  We look forward  to an engaging and informative day with a remarkable slate of speakers, and hope you will be able to join us.

BGS

W.R. Grace's Bankruptcy Trial

W.R. Grace, a company that initially registered on many civil procedure professors’ radars after its role in A Civil Action, will begin its bankruptcy trial on January 14. Amidst its creditors are a number of asbestos claimants. Peg Brickley of the Wall Street Journal reports:

If the answer from U.S. Bankruptcy Judge Judith Fitzgerald is $700 million or a little more, Grace and its shareholders are safe and on their way out of bankruptcy, with enough value to cover the asbestos-damage bill and have something left over for shareholders.

But if Judge Fitzgerald estimates asbestos liabilities at levels argued by plaintiffs' lawyers, Grace is destined to become the property of people damaged by its toxic products, and shareholders will be out in the cold.

Experts for the asbestos camp say Grace's liabilities are at least $3.7 billion. "If the asbestos experts are even close to right, then the equity in this company is severely at risk, or it will simply be wiped out," said Roger Frankel, a lawyer for asbestos creditors.

Investors are betting heavily that Grace -- bankrupt for more than six years and under criminal indictment for allegedly covering up its asbestos troubles -- will be the Chapter 11 case where phony claims are finally exposed, and "junk science" trashed.

Speculators pounce on every court filing, and are paying $25 a share for the stock -- an unusually high amount for a company in bankruptcy. That is a vote of confidence for the company and the litigator spearheading Grace's hard-fought bankruptcy case, one lawyer said.

ECB

Brickman Comments on DOJ

Professor Lester Brickman (of Cardozo) commented recently in the Wall Street Journal that the Department of Justice has given doctors and lawyers a "free pass" "to commit massive tort fraud, exceeding $30 billion in the past 15 years."  Here's an excerpt:

But it now appears as if neither this U.S. Attorney's Office nor the parent Department of Justice is going to prosecute mass tort fraud. Six months ago there were signs that Justice was moving forward on some key cases involving one or more of the litigation doctors. Now, unfortunately, that activity appears to have all but ceased.

The dimensions of this fraud are stunning. An asbestos screening of 1,000 potential litigants generates about 500-600 diagnoses of asbestosis. If these same occupationally exposed workers were examined in clinical settings, approximately 30-50 would be diagnosed with asbestosis. The total take for "excess" asbestos diagnoses is more than $25 billion, of which $10 billion has gone to the lawyers. More billions for bogus claims in the diet drug (fen-phen) and silicone breast implant litigations can be added to this bill.

A comparative handful of doctors and technicians are responsible for the vast majority of bogus medical tests and diagnoses. To indict and prosecute those responsible would require testimony from other doctors that the mass-produced diagnoses cannot have been rendered in good faith.

To be sure, doctors can differ in reading X-rays or making a diagnosis. But when a doctor has been paid millions of dollars to produce 5,000 or even 50,000 diagnoses in the course of mass-tort screenings -- and when panels of experts have found the vast majority of these to be in error -- the most compelling conclusion is that the diagnoses were "manufactured for money."

Prosecutors on the federal and state level are nonetheless concerned that such a "battle of the experts" will raise reasonable doubt in the minds of juries, and so they decline to prosecute these doctors, let alone the lawyers who hired them. This decision, however, gives the doctors a special dispensation to commit fraud.

Peter Lattman responded on the Wall Street Journal's Law Blog.

ECB

Perspectives on Asbestos Litigation Symposium

As I previously mentioned, Southwestern Law School is hosting a symposium entitled, "Perspectives on Asbestos Litigation," on Friday, January 18, 2008.  Here is a copy of the brochure Download lr_perspectiveinasbestoslitigation.pdf, which lists the exceptional speakers and panels that will occur throughout the day.  Hope you can join us.  We're overjoyed at the remarkable speakers who have agreed to participate.

BGS

Judge Weinstein's Numerous Mass Torts & The "Related Case" Designation by Plaintiffs

Point of Law flags a recent story in the New York Sun -- Judge Lands at Center of a New York Legal Mystery, by Joseph Goldstein -- which chronicles the use of the "related-case" designation by plaintiff's lawyers to maneuver their cases before Judge Weinstein in the Eastern District of New York. 

I first encountered plaintiffs' use of this device as a lawyer for defendants in the Simon II tobacco case, which plaintiffs had put before Judge Weinstein as a "related case."  A court might justifiably want to keep related cases before a judge with related cases -- there's an argument that it's inefficient to educate multiple judges about the same complex factual and legal issues.  But the devil is in the details.  Take a look at the Eastern District of New York civil action cover sheet: Download js44-45.pdf .  The cover page has a section asking whether there are "RELATED CASE(S) IF ANY" and includes a line for Judge and Docket Number.  The plaintiff then has the ability to list any case and judge on the line, and then I believe the case is automatically routed to that judge. 

The problem is that there may be multiple judges in a district who have cases that are arguably related to the plaintiff's case.  The plaintiff might list whichever judge the plaintiff believes is most inclined to the plaintiff's position -- a system that biases judge selection in favor of plaintiffs.  And then as the article notes, the defendant may be held to have no standing to challenge the "related case" judge selection by plaintiffs, on the remarkable grounds that it is an administrative determination when in fact  the determination has been made not by an administrator or a judge, but by opposing counsel.  Imagine that the first judge plaintiffs get in a mass tort is one who they don't like; then when filing another case, they list no related case, and hope for another particular judge; finally, once the desired judge is obtained, then all future cases are checked as "related" to that cases before that desired judge only. 

A better system would be for plaintiffs lawyers to be informed that they are ethically bound to list every case and judge that counsel is aware the case might be reasonably considered related to.  If the "related case" box is checked, the court -- through administrators or a judge committee -- should undertake an independent review of whether any other cases and judges are implicated.  (For example, court administrators could circulate a weekly "related case" email to clerks, asking if their judges have any cases that are related.)  If several judges are involved in the cases, then the case should be randomly assigned among those judges -- unless the court makes its own decisions to centralize all cases before a single judge for administrative reasons.  Case assignment to judges is a decision that should be made by the court, not the litigants -- and certainly not only one type of litigant.

BGS

Robles Sentenced to 15 Years

Plaintiffs' mass tort lawyer Louis Robles was sentenced yesterday to the maximum 15 years for stealing settlement money from clients he represented in asbestos litigation.  Here's an excerpt from the Sun Sentinel:

A Miami attorney who admitted stealing more than $13 million from thousands of clients suffering from asbestos-related illnesses was sentenced Tuesday in Miami federal court to 15 years in prison.

Louis Robles, 59, once known as the "King of Torts," pleaded guilty in September to three counts of mail fraud, each carrying a possible five year sentence. U.S. District Judge Alan Gold, who had rejected an earlier plea agreement he thought was too lax, sentenced Robles to the maximum prison term.

Between 1989 and 2002, Robles collected more than $164 million on behalf of roughly 7,000 clients suing asbestos companies. In the mid-1990s, he began dipping directly into settlement proceeds without his clients' knowledge to fund an extravagant lifestyle, prosecutors said.

For earlier proceedings, see posts on April 19,  Sept. 17, and Sept. 24.

HME

Scruggs Indictment for Allegedly Attempting to Bribe a Judge in Katrina Insurance Litigation

Top plaintiffs' lawyer Dickie Scruggs, of tobacco and asbestos fame, has been indicted for alleged attempted bribing of a Mississippi state judge in connection with the distribution of fees from the Katrina insurance litigation.  As with the separate Milberg Weiss allegations about paying class representatives, the government appears to have much stronger evidence against a less-well known lawyer intermediary, who was allegedly working on behalf of the well-known plaintiffs' lawyer.  In the Katrina litigation, that intermediary is alleged to be Timothy Balducci, who was audiotaped offering the bribe and delivering the money, according to the government.  Scruggs denies the allegations.

The Wall Street Journal has details on the build up of the case in the article, How the Scruggs Case Came Together, by Ashby Jones and Peter Lattman.  In addition, an editorial in the Journal -- The Trial Bar on Trial -- celebrates the possible downfall of prominent tort lawyers who were indicted this year, including Bill Lerach, Dickie Scruggs, and others at Milberg Weiss including Melvyn Weiss. 

If true, all of these allegations suggest remarkable hubris in at least some of the top plaintiffs' lawyers.  One wonders about the effect of a lifestyle of private jets and multiple wins of multiple millions (or tens of millions) in fees.  One also wonders about the effect of high-risk, winner-take-all, contingency fee litigation.  Brash and aggressive personalities seem to thrive in such an environment -- but they too must keep in mind that lawyers ultimately serve the client (not the other way around) and that no one (especially not the lawyer) is above the law.

BGS

Perspectives on Asbestos Litigation Symposium at Southwestern Law School

On Friday, January 18, 2008, Southwestern Law School will present a symposium entitled, Perspectives on Asbestos Litigation.  Scheduled speakers and moderators include Judge Barbara Jacobs Rothstein (Federal Judicial Center, Director); Justice Helen Freedman (N.Y. Supreme Court); Deans Bryant Garth (Southwestern) and Gregory Keating (USC); Professors Ronald Aronovsky (Southwestern), Anita Bernstein (Brooklyn), Alan Calnan (Southwestern), Howard Erichson (Fordham (Visiting) & Seton Hall), James Fischer (Southwestern), Mark Geistfeld (NYU),  Michael Green (Wake Forest), Deborah Hensler (Stanford), Keith Hylton (Boston U.), Francis McGovern (Duke), Linda Mullenix (Texas), Richard Nagareda (Vanderbilt), David Owen (South Carolina), Joseph Sanders (Houston), Judy Sloan (Southwestern), and Neil Vidmar (Duke); and distinguished practitioners Marh Behrens (Shook, Hardy) and Steven Kazan (Kazan, McClain).

Professor Alan Calnan and I are serving as co-chairs for the conference, and I will also moderate a panel on Public and Private Law Perspectives.  The Southwestern University Law Review will subsequently publish an issue based on the symposium.  Hope you can join us for what promises to be an interesting and informative day.

BGS

Louis Robles Guilty Plea

Asbestos plaintiffs' lawyer Louis Robles pleaded guilty last week to three counts of mail fraud for stealing settlement money from his clients, according to this AP story on Forbes.com.  He will be sentenced on December 4 in federal court in Miami.  Robles faces up to fifteen years in prison, because each count carries a five-year term.  He is being held without bail.  Robles agreed to a plea deal in April that would have included a ten-year prison term, but Judge Alan Gold rejected it because he considered the sentence too light considering Robles' inability to pay full restitution.  Trial was set to begin last week, producing the new plea.

HME

Louis Robles Trial to Begin

Jury selection is set to begin tomorrow in the criminal trial of Miami asbestos lawyer Louis Robles, according to an article by Julie Kay on law.com, Nationally Known Mass Torts Lawyer Headed for the Trial Nobody Wants:

Jury selection is scheduled to begin Tuesday in the long-awaited federal trial of former superstar Miami attorney Louis Robles, who was charged with mail fraud in the alleged theft of $13.5 million in clients' settlement money. The trial is expected to last four weeks before U.S. District Judge Alan Gold.

Robles was disbarred in 2003 and later indicted on federal charges.  In April, Robles agreed to plead guilty and receive a ten-year prison term, but Judge Gold rejected the deal: 

Neither prosecutors nor defense attorneys wanted a trial. But Gold rejected a plea deal that called for Robles to serve 10 years in prison and recently rejected a request from Assistant Federal Public Defender Hector Flores for a 60-day continuance. 

The article notes that the defense has proposed voir dire questions to identify juror with a negative image of personal injury lawyers.

HME

Stapleton on U.S. Asbestos Doctrine

Jane Stapleton of U. Texas, always a thoughtful observer of the U.S. tort system, has posted a paper on SSRN entitled Two Causal Fictions at the Heart of U.S. Asbestos Doctrine, published in Law Quarterly Review.  Here's the abstract:

The “elephantine mass of asbestos cases... defies customary judicial administration” (Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999)) and US courts have been forced to create novel handling techniques. This Note deals with two under-appreciated but dramatic accommodations US courts have made to causation doctrine in the asbestos area which are extraordinary to foreign eyes. Both stem from the decision in Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869 (1974). First, US courts since Borel have not generally made any distinction between the causal issue in asbestosis and in mesothelioma claims: regardless of which condition has been contracted, a US asbestos plaintiff is entitled to get to the jury on the issue of factual cause merely by showing a suitable exposure to asbestos by the defendant. As applied to mesothelioma and other asbestos cancers this “substantial factor” approach rests on the radical fiction that asbestos cancers have a threshold contraction mechanism. This extraordinary fiction has gone virtually unremarked: astonishingly even the Reporters of Restatement (Third) of Torts: Products Liability sanguinely state, with no reference to Borel's case or even to asbestos, that “traditional notions of causation retain their vitality in products liability” (88 Geo.L.J. 659). Even when it is acknowledged, as in Rutherford v. Owens-Illinois, Inc. 941 P.2d 1203 (Cal. 1997), little if any rationale for its adoption is provided. Under the second fiction the cumulative asbestos disease of asbestosis is treated as if it were dose-independent and accordingly the liability of asbestos defendants is held to be in solidum. For example, in Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135 at 143 (2003) one asbestosis plaintiff had been exposed by the defendant for only three months and had worked with asbestos elsewhere as a pipe fitter for 33 years. The defendant was held liable for his total condition. This is in stark contrast to the approach of the United Kingdom: see Holtby v. Brigham & Cowan (Hull) Ltd. [2000] 3 All ER 421 (CA). The Note then speculates about the reasons for the extreme departures from orthodoxy represented by the twin asbestos fictions in the US: their creation, their apparent continuing acceptance even by beleaguered defendants, the uncertainty of their boundaries and their general neglect by academic commentators.

HME

Increasing Third Circuit Scrutiny of Mass Tort Settlements

Article in the ABA Journal -- Philadelphia Fee-dom: The 3rd Circuit tackles settlements that leave clients wanting, insurers burning, by Margaret Graham Tebo.  Here's an excerpt:

Much like the housing bubble, the days of huge class action settlements providing millions in attorney fees may be ready to burst, at least in one fed­eral circuit.

The Philadelphia-based 3rd U.S. Circuit Court of Appeals is starting to take a hard look at settlements that provide for huge attorney fees while leaving in­surance companies stuck with the bill—and some­times leaving plaintiffs claiming they got less than their fair share.

For years, critics say, it worked like this: Plaintiffs lawyers would file mass tort class actions—such as those for asbestos, tobacco and other products found to cause grave harm. Then, when the company allegedly responsible for damages filed for bankruptcy protection in the face of the claims, plaintiffs lawyers would settle for an amount that provided millions of dollars in attorney fees, while leaving individual claimants with a relatively small recovery. The company was then absolved of further liability and could reorganize and emerge relatively unscathed.

But recently that structure has begun to show cracks. In some instances, insurance companies—which usually pay the bulk of these settlements—have cried foul. The companies are seeking to intervene in cases where they face huge liabilities, sometimes joining forces with unhappy claimants who feel their lawyers didn’t have their best interests at heart when they agreed to the settlements.

In one case, the 3rd Circuit revived a suit last Octo­ber that had been filed by a group of asbestos workers alleging their former lead attorneys had breached their fiduciary duty in negotiating a settlement. Huber v. Taylor, 469 F.3d 67. 

BGS

Insurers Win Asbestos Ruling Against "Prepackaged" Bankruptcy

Article in the Wall Street Journal -- Insurers Win Asbestos Ruling, by Nathan Koppel.  Here's an excerpt:

Insurers scored a win Friday when a New Jersey court held they didn't have to pay asbestos-related claims that had been negotiated as part of a "prepackaged" bankruptcy.

The case, concerning the 2003 bankruptcy of Congoleum Corp., has been followed closely by combatants in the asbestos-litigation arena. Some companies that have faced asbestos liability have tried to control their exposure by filing prepackaged bankruptcies, which are negotiated ahead of a filing, potentially allowing a company to reorganize in an expedited fashion. Critics have argued that asbestos "prepacks" let plaintiffs' lawyers collect damages for dubious asbestos claims at the expense of insurers.

Congoleum is a manufacturer of flooring products. Asbestos-related injury suits against the Mercerville, N.J., company prompted it to file a prepackaged bankruptcy plan under which it agreed to pay more than $200 million in asbestos claims, Friday's ruling said.

Here's the decision: Download congoleum_asbestos_decision.pdf .  The WSJ Law Blog has a related post, Win for Asbestos Insurers, by Nathan Koppel.  Here's a link to the related post from Point of Law.

BGS

Blog Roundup

Civil Procedure Prof Blog has a post linking an article by Professor Steven Lubet on a recent Seventh Circuit opinion censuring lawyers for deposition misconduct.

Drug and Device Law Blog has a post on how the "municipal cost recovery rule" restricts government tort suits.

Food Law Prof Blog has a post about the FDA's creation of a new food protection position.

Point of Law has posts on the appeal of the Lipke evidentiary rule for asbestos cases in Illinois, and also interest by St. Louis in filing a lead paint action.

Torts Prof Blog has a post with links about the updates of labels on SSRIs.

BGS

10 Years for Louis Robles

Article in today's Daily Business Review -- Asbestos Attorney Accepts 10-Year Term in Plea Deal:

Louis Robles, a nationally prominent Miami plaintiffs attorney who was charged with stealing millions of dollars from thousands of asbestos clients nationwide, has accepted a plea deal that calls for him to serve 10 years in prison and provide full restitution to his victims.

According to sources within the U.S. Attorney's office in Miami, Robles, 59, accepted the plea deal Monday. He is scheduled to appear Friday before U.S. District Judge Alan Gold to enter a guilty plea.

...

The plea deal is the latest chapter in the spectacular fall of the class action and mass tort lawyer, who was a star in the South Florida legal community. Robles at one time had 40 lawyers on his staff and more than 12,000 class action clients around the country. He focused on asbestos cases, traveling around the country in a van with a doctor and X-ray machine, signing up clients and advertising on national television.

In 2002, the Daily Business Review was the first to report on a four-year investigation into Robles by the Florida Bar. The Bar had received numerous complaints about Robles paying clients little or nothing on their asbestos settlements, charging contingency fees of more than 50 percent and having clients pay for his airfare, food, phone bills and other costs not previously disclosed. He abruptly closed his downtown Miami office in 2002 and soon after filed for bankruptcy.

Robles was disbarred by the Florida Supreme Court in May 2003. About a year later, the Review disclosed that a federal grand jury was looking into an indictment against Robles. ...

HME

Harvard Law School, Asbestos, and April Fools

Here's an early April article in the Harvard Law Record:  Ukrainian Institute Leaks Asbestos, Students Sue.

Maybe I've lost my sense of humor.  April Fools issues of student papers are a time-honored tradition, and this piece is typically clever.  But if you know anything about mesothelioma, it's just hard to find it funny.

As law teachers, we know the challenge presented by humor.  I confess I've often played cases for a laugh.  It keeps students engaged, focuses their attention on key points, and builds an environment that encourages participation.  And besides, it's fun.

But there's a cost to laughter that distances students from the human drama in the cases.  I've learned to be careful about deploying laughter when teaching cases that involve serious harm.  For one thing, I work on the assumption that someone among the students has personal experience with the harm.  In any large classroom, someone has lost a parent to cancer, someone has been sexually assaulted, someone has a close friend who suffered a disfiguring accident.  If I'm making light of a case, that person is silently seething.  But more importantly, I want my students to get into the mindset of lawyers who empathize with their clients (and, ideally, who empathize with their clients' adversaries as well, without losing a sense of loyalty to their own clients).

So when I see this funny Harvard Law Record article about "fears that full-fledged mesothelioma has struck members of the law school community," I have to wonder.  What were these student authors thinking when they studied asbestos cases in their law school classes?  Was the notion of massive numbers of people getting sick and dying just an abstraction?  Just a random "fact pattern" as a set-up for issues of proximate causation, product identification, class certification, and reverse auction?  Or were they thinking about a generation of workers who spent years working with an insulation fiber in power plants, naval yards, construction, and elsewhere, only to find out later that the fiber would kill many of them?  Were they thinking about the families these workers left behind?  If that's how you understand asbestos, jokes come harder.

HME

New Class Action Watch Issue by Federalist Society

As noted on Point of Law, the Federalist Society has released a new issue of Class Action Watch, which includes articles on vioxx and asbestos, among other topics.

BGS

Prof. Lester Brickman on Asbestosis Screenings

Professor Lester Brickman of Cardozo School of Law, Yeshiva University, has posted his article, Disparities Between Asbestosis and Silicosis Claims Generated by Litigation Screenings and Clinical Studies, on SSRN.  Here's the abstract:

In 2005, U.S. District Court Judge Janis Jack, presiding over an MDL proceeding involving 10,000 claims of silicosis emanating from litigation screenings, issued a 264 page opinion rejecting the reliability of thousands of medical reports generated by those screenings. Before issuing her opinion, she ordered a Daubert hearing to assess the reliability of these medical reports which had been issued by a handful of doctors. In furtherance of this unprecedented use of a Daubert hearing in a mass tort proceeding, she compelled the production of a large volume of evidence, under threat of contempt, that the screening companies and doctors would not have otherwise produced. She went on to document in great detail the existence of a fraudulent scheme to create bogus medical evidence that lead her to conclude that it is apparent that truth and justice had very little to do with these diagnoses. . . . [Indeed] it is clear that lawyers, doctors and screening companies were all willing participants in a scheme to manufacture. . . [diagnoses] for money.

Judge Jack's findings largely corroborated my own conclusions with regard to the validity of X-rays readings and diagnoses of asbestosis which I had published a year earlier. In that article, I described how an illegitimate entrepreneurial model had been devised by lawyers, doctors and screening companies to screen hundreds of thousands of potential litigants for the sole purpose of generating claims of nonmalignant injury allegedly caused by asbestos exposure and manufacturing the requisite medical reports to sustain the claims.

Judge Jack's opinion has been widely covered in the news media and is still reverberating around the mass tort world. Much less heralded is the fact that Judge Jack ordered that the X-rays and medical records generated by the unprecedented discovery be placed in a repository where it could be accessed by parties. These records are now being systematically examined.

In this article, I present some of the findings of this ongoing examination as well as other data which has recently become available which addresses the issue of whether the hundreds of thousands of medical reports generated by asbestos litigation screenings have also been manufactured for money. In particular, I present data indicating that a comparative handful of doctors selected by plaintiffs' lawyers (litigation doctors) read 50%-90% of the X-rays sent to them by plaintiffs' attorneys as positive for pulmonary fibrosis and provide findings that these readings are consistent with asbestosis. In addition, I estimate that these same doctors, as well as a small number of others, diagnose at least 80% of those with positive X-ray reads as having asbestosis within a degree of medical certainty.

To properly understand the significance of this data and estimate, I present the results of a review of over 70 clinical studies of the prevalence of fibrosis among workers occupationally exposed to asbestos. Approximately 10% of the reviewed subjects' X-rays were found positive for fibrosis. The litigation doctors' 80 percent plus diagnosis rate of those found positive for fibrosis compares with a diagnosis rate of 15% to 23.2% in clinical studies. The much lower diagnosis rate of asbestosis in clinical studies is a function of the fact there are over 100 causes of pulmonary fibrosis in addition to asbestos exposure.

I also summarize the results of six clinical studies and equivalents in which X-rays generated by litigation screenings and read as positive for fibrosis were re-read by independent medical experts. This comparison indicates that the litigation doctors' error rates range from 62% to 97.5%.

Another facet of litigation screenings is the administration of pulmonary function tests to determine the degree of lung impairment and qualify the litigant for increased compensation. Here, too, I summarize the findings in medical literature and compare that to the outcomes of the pulmonary function tests administered in litigation screenings. Based upon the data presented, I conclude that the substantial majority of lung function tests performed by litigation screening companies are maladministered in order to generate false findings of lung impairment.

I also compare the pandemic of nonmalignant asbestos-related disease claims which were filed in the 1990-2004 period in the tort system and asbestos bankruptcy trusts with the number of hospitalizations primarily for asbestosis in that period. The data on hospitalizations is compelling. In the 15 year period, 1990-2004, during which about 475,000 new claimants each filed claims against 25-75 defendants and asbestos bankruptcy trusts alleging asbestosis or other nonmalignant condition caused by asbestos exposure, a study of approximately 4,500,000 randomly selected medical records of persons discharged from hospitals indicated that a total of 57 hospitalizations were primarily due to asbestosis.

Finally, I examine the possibility that the litigation doctors have predetermined signature percentages of positive X-ray readings and diagnoses. Bearing on this is the detailed evidence I present of the concerted refusal of the litigation doctors to provide records of all of their X-ray readings and diagnoses in response to subpoenas and court orders - records that would enable calculation of their percent positives that could be smoking gun evidence of fraud. This may account for the fact that four doctors and two screening company principals have invoked the Fifth Amendment and refused to testify about their diagnoses or produce their screening records.

The conclusion I draw from the data and evidence presented is that Judge Jack's findings with regard to the medical reports in the silica MDL applies with at least equal force to nonmalignant asbestos litigation: the medical reports are mostly manufactured for money.

BGS

Walter Olson on Government's Responsibility for Harmful Products

Walter Olson has an interesting article in Reason magazine -- Dangerous When in Power: Does government protect us from hazardous products, or does it put us in harm's way?  Here's an excerpt:

Asbestos exposure has been a genuine public health calamity, having caused much death and disability among exposed workers. Much of the early journalistic coverage, taking its lead from Paul Brodeur's early series in The New Yorker, has treated the episode as a case study in the callousness of private enterprise, which is said to have exposed workers to the lethal mineral for decades until at last brought to heel by the efforts of public-health activists, government regulators, and trial lawyers. That's consistent with the wider conventional view, which treats hazardous products as a sort of standing reproach to capitalism: Businesses foist such products on us in search of profit, the narrative goes, while government protects us from them. And there is much in the asbestos debacle that does reflect discredit on private companies' actions.

Yet the government, our alleged protector, has done much at all levels to promote products later assailed as needlessly unsafe, from tobacco to lead paint, from cheap handguns to Agent Orange. Often the state is at least as aware of the risks as the businesses that distribute the product, and in at least as good a position to control or prevent them. But-shaped and propelled by the incentives provided by our litigation system-our process of organized blame hardly ever puts the government in the dock.

BGS

Being a Minor Defendant in a Mass Tort

It stinks to be a minor defendant in a mass tort.  Not that it's so great to be a major defendant, but at least that feels more straightforward.  Last night, someone left this interesting comment to a post on the WSJ Law Blog:

As the owner of a small business, I can tell you first hand how unfair some state courts have been towards defendants of asbestos lawsuits.

Even though we never had anything to do with asbestos, a few years our firm got named in its first asbestos lawsuit. Before long, we had been sued in several different states, all in places where we had no employees. The typical lawsuit would name from 80 to 150 other defendant companies, but not include any details why we were responsible.

The most frustrating part has been the unwillingness of the courts to dismiss these unwarranted lawsuits in any reasonable time fashion. In the few cases where the court has heard our motion, the dismissal was near automatic. But in most cases, the courts have been unwilling to schedule a hearing.

If our example is typical, it would make a person wonder how they could ever get justice out of our courts.

From the perspective of someone who teaches litigation procedure, it's easy to get complacent about the assumptions built into much of modern U.S. civil procedure:  notice pleading, liberal discovery, vigorous summary judgment.  We look at pleadings that identify numerous potential defendants and feel that all's well that ends well.  As long as there is a non-frivolous basis for the allegations, then we figure that the massive pleading is proper, and if the system functions properly, claims that ultimately prove non-meritorious will be weeded out on motions to dismiss, summary judgment, or at trial.  I've taught this story to first-year civil procedure students many times.  But it's useful to be reminded (and to remind our students) that for the litigants, the process can be painful and costly even when it functions largely according to plan.

Here's a litigant who's been named in complaints that "do not include any details why we were responsible" (notice pleading), who's been listed with "80 to 150 other defendant companies" (permissive party joinder), who's been sued in "several different states, all in places where we had no employees" (long-arm jurisdiction), who's found courts slow at scheduling hearings on pretrial motions (the nature of complex litigation, perhaps MDL or statewide coordinated proceedings), and who eventually achieved "near automatic" dismissals.  My students could state why that's an example of the procedural system functioning properly, and why this litigant should be pleased to emerge victorious.  But try explaining that to the small business owner who doesn't understand how he or she has gotten dragged into this morass, who's paying legal fees and losing sleep, and who just wants to get back to business.

HME

Asbestos Plaintiffs' Firm Barred From Court

Yesterday's WSJ Law Blog commented on last week's decision by Ohio Judge Harry Hanna to bar the Brayton Purcell law firm from appearing in his court, putting it in the broader context of a shift in favor of defendants in asbestos litigation:

In the latest setback for plaintiffs’ attorneys involved in large-scale asbestos litigation, an Ohio state court judge barred a California law firm from appearing in his court after finding that its lawyers had lied and obstructed the discovery process in a case involving an asbestos claim. ...

The ruling is one of a number in the past several years that have gone against asbestos plaintiffs, including several in Mississippi, for years regarded as a plaintiff-friendly state. Other states have erected legislative hurdles, making asbestos claims more difficult to win.

The case involved a mesothelioma wrongful death claim against Lorillard based on exposure to asbestos contained in Kent cigarette filters in the 1950s.  The judge, while condemning the plaintiffs' lawyer, did not dismiss the case, finding that the decedent's family had done nothing wrong.

HME

9/11 Cleanup

Article in the New York Times -- 9/11 Cleanup to Resume, E.P.A. Says, by Anthony DePalma:

More than five years after contaminated dust from the World Trade Center seeped into apartments and offices throughout Lower Manhattan, the federal Environmental Protection Agency announced plansyesterday to start a final indoor cleanup program next month, despite widespread criticism that the program is seriously flawed.

Agency officials said residents and owners of commercial buildings below Canal Street would have 60 days to sign up for the voluntary program, which will test for asbestos, lead, vitreous fibers and harmful soot that may have come from the collapse of the trade center.

If any one of the contaminants is found, the space will be professionally cleaned at no cost to the resident or owner.

The new program is almost identical to one that was rejected in November 2005 as inadequate by the agency’s advisory panel of experts as well as by community groups, labor unions and the city’s Congressional delegation. The City Council passed a resolution condemning that program, calling it “technically and scientifically flawed.”

BGS

WSJ on Double-Dipping in Asbestos Trusts

Interesting commentary in the Wall Street Journal detailing alleged fraudulent double-dipping in multiple absestos trusts -- Trusts Busted: The seamy underside of asbestos litigation, by Kimberly A. Strassel.  Here's an excerpt:

Harry Kananian died in the year 2000 of mesothelioma--a cancer almost always caused by asbestos. But the legacy that may survive him is the role he is posthumously playing in exposing evidence of asbestos litigation fraud.

In early 2000, the Ohio resident met with the law firm of Early, Ludwick, Sweeney & Strauss to see about collecting compensation from special trusts set up by companies to deal with asbestos liabilities. So the law firm filed a claim to one trust, saying Kananian had worked in a World War II shipyard and was exposed to insulation containing asbestos. It also filed a claim to another trust saying he had been a shipyard welder. A third claim, to another trust, said he'd unloaded asbestos off ships in Japan. And a fourth claim said that he'd worked with "tools of asbestos" before the war. Meanwhile, a second law firm, Brayton Purcell, submitted two more claims to two further trusts, with still different stories. The two firms swept up as much as $700,000 for Kananian and his estate from trusts and settlements.

In the legal trade, this is known as "double dipping"--the process by which lawyers file claims at many different bankruptcy trusts on behalf of a single plaintiff. Each trust is told a different story about how the client got sick, and the plaintiff collects from all of them. Of course, the lawyers collect too. This practice may well have remained unexposed had not Brayton Purcell decided to cash in on Kananian one more time. It sued Lorillard Tobacco, this time claiming its client had become sick from smoking Kent cigarettes, whose filters contained asbestos for several years in the 1950s. That suit has now exploded on Brayton, exposing one of the asbestos bar's more lucrative cash cows.

In Cleveland, Judge Harry Hanna of the Cuyahoga County Court of Common Pleas has been asked to rule on a motion to disqualify Brayton from the suit and bar it from practicing in Ohio. The firm stands accused by Lorillard of lying to the court, defrauding asbestos trust funds and obstructing discovery. Those accusations come via a raft of internal emails and documents, most if which are referred to in the court record, that tell a story of two law firms using contradictory stories to rake in money from bankruptcy trusts, then potentially trying to cover it up. All parties are under a gag order from the judge. Last week, Brayton Purcell, amazingly, requested to withdraw itself from the case.

BGS

Fewer asbestos lawsuits in Madison County

According to this report in the Belleville News Democrat -- Asbestos lawsuits drop third year in a row -- filings of asbestos-related lawsuits have declined dramatically in Madison County, Illinois.  The number dropped from 953 in 2003, to 477 in 2004, to 375 in 2005; and to 287 so far this year.  Madison County is often regarded as a magnet jurisdiction for mass tort plaintiffs.  The president of the Illinois Civil Justice League, a tort-reform organization, offered two reasons for the drop:  judges who are making it harder for out-of-state plaintiffs to file in Madison County, and the fact that potential asbestos defendants are running out of money.  A plaintiffs' lawyer offered a third explanation, that with time, there are simply fewer asbestos cases to be found.

HME

NY Sun Editorial on Mass Torts

Today's NY Sun editorializes on the FDA's recent decision to permit cosmetic use of silicone gel breast implants.  The editorial -- Now They Tell Us -- links breast implants to asbestos and Vioxx, suggesting that the entire mass tort litigation system is out of whack:

The Food and Drug Administration recently lifted its 14-year ban on the use of silicone breast implants for cosmetic purposes, saying that even though the devices are unlikely to last a lifetime — surgeons will need to warn patients of the likelihood of future surgeries — there is no scientific evidence that leaking silicone implants cause cancer or other serious illnesses. So where does Dow Corning go to get its $3.2 billion back?

That's the amount the erstwhile silicone implant manufacturer paid out from the jaws of bankruptcy court in 1998 to settle 170,000 lawsuits filed over its supposedly faulty implants. ...

Indeed, silicone implants join asbestos and Vioxx in the pantheon of products that have been the subject of some of the most irrational litigation in history. Women whose silicone implants had ruptured and leaked couldn't actually prove that their implants had caused the illnesses they were suffering. The majority of today's asbestos plaintiffs can't prove they're suffering any illness at all. And Vioxx's alleged victims can't point to any actual proof that the arthritis drug's cardiac risk is greater than that posed by over-the-counter painkillers. Yet overeager lawyers were happy to sue, and the courts have been only too happy to oblige. Trial lawyers are currently trying to eviscerate Merck, Vioxx's manufacturer.

Merck has elected to fight each Vioxx suit individually, and that strategy seems to be working, but it's hard to fault Dow Corning or asbestos manufacturers for settling the suits against them instead of taking them to trial. The FDA's latest announcement does, however, highlight the broader dangers of leaving the out-of-control liability system unreformed. With the benefit of hindsight it is even clearer than it was before that the only crime Dow Corning committed was selling what was then a perfectly legal product that turns out to be safe. For that transgression, the company was allowed to be eaten alive by the trial bar. Dow Corning managed to survive. Others haven't been so lucky. Congress needs to decide how many more companies will suffer Dow Corning's fate before lawmakers deliver much needed legal reforms.

It's hard to argue with the editorial's 20-20 hindsight on the breast implant litigation, but I question whether it's fair to throw asbestos and Vioxx into the same bucket.  The wisdom of "much needed legal reforms" depends on what legal reforms you're talking about, which depends mightily on what problem you're trying to address.

The breast implant litigation is the most egregious example of liability in the face of strong scientific evidence casting doubt on general causation.  The scientific community largely rejected the claim that silicone gel breast implants caused autoimmune disease or other systemic disorders.  Bendectin and Agent Orange come to mind as other major mass torts where plaintiffs' general causation case was questionable, but neither of those reached the scale of the breast implant litigation.  It's worth remembering that the settlement class action in the breast implants case came after Judge Sam Pointer, overseeing the MDL, appointed a National Science Panel to report on whether breast implants caused the alleged harms.  Without the court-appointed scientific experts, the defendants' exposure surely would have been larger.  Even so, there's power in the editorial's rhetorical question:  "So where does Dow Corning go to get its $3.2 million back?"  The problem of litigation outpacing science is a serious issue in mass torts.  But the editorial gets sloppy, I think, in suggesting that the lessons of the breast implant litigation extend to mass torts generally, rather than to the particular problems of scientific evidence and general causation.

The editorial points out that much recent asbestos litigation involves uninjured plaintiffs (and could have added that the claims are against third-tier defendants rather than against the major producers of asbestos-containing products, all of whom were bankrupted by the litigation).  But the problems of exposure-only plaintiffs, latent disease, and substitute defendants differ from the problems of scientific evidence and general causation.  The legal reforms to address the former set of problems (e.g., pleural registries, tort law on exposure-only claims and medical monitoring, and reforms of joint-and-several liability) differ dramatically from reforms to address the latter (e.g., court-appointed experts, jury reforms, phased trials, and preemption defenses).

It's too early to judge the Vioxx litigation, but at this point it seems that the most difficult problems there involve individual causation rather than general causation.  If that's correct, then again, there's a huge difference in how the legal system ought to respond.  In the absence of general causation, a defendant should face zero liability.  When there's proof of general causation and a basis for liability, but individual causation remains difficult to establish, then liability serves the policies of deterrence and disgorgement, and the real problems are allocation and the extent to which tort compensation must be individualized.

In other words, to criticize the breast implant litigation is easy.  To lump it with asbestos and Vioxx, and to demand "much needed legal reforms" as if it were obvious what those reforms should be, is a lot harder.

HME

Settlement of California asbestos blasting case

Article in today's Sacramento Bee -- Asbestos Dust Case Settled in El Dorado -- concerning a settlement between prosecutors and developers accused of creating public health hazards by blasting hillsides containing naturally occurring asbestos:

Prosecutors have reached a $350,000 settlement with a pair of El Dorado Hills developers and a construction contractor accused of numerous public health offenses in blasting open hillsides that bear a particularly toxic form of asbestos.

Angelo K. Tsakopoulos and Larry Gualco, whose companies form West Valley LLC, and DeSilva Gates Construction of Dublin were accused of but not formally charged with 47 violations of air and water pollution laws based on documented observations by local environmental enforcers, according to Deputy District Attorney Gloria Mas.

The most serious allegations concern the thick dust clouds from explosions in areas the county had designated as known or likely to contain naturally occurring asbestos, Marcella McTaggart, head of the El Dorado County Air Quality Management District, said after signing the settlement Friday.

In other words, decades after manufacturers stopped using asbestos for fire-proofing and insulation, asbestos-related litigation continues for a variety of reasons, including not only disease latency and the continuing presence of asbestos fibers in older products and buildings, but also because the mineral asbestos lurks in hillsides as a naturally occurring potential hazard.

HME

Australian Asbestos Compensation Fund Delayed

Article in the Melbourne Herald Sun -- James Hardie Deadline Extended -- concerning an extension of time for James Hardie Industries to fund a compensation plan (Final Funding Agreement) to meet its asbestos compensation obligations pursuant to a December 2005 agreement and legislation:

THE NSW [New South Wales] government has extended until November 14 the deadline for James Hardie to finalise the funding deal relating to its compensation obligations for victims of its asbestos products.

The previous deadline expired yesterday with the building products company still to reach an agreement with the Australian Taxation Office over the status of the compensation fund.

The deal was thrown into doubt after a tax office ruling in June this year that the fund, worth up to $4.5 billion over 40 years, could not be treated as a charity for tax purposes.

HME

Asbestos Litigation in the 21st Century

ALI-ABA is hosting a conference on Asbestos Litigation in the 21st Century on Nov. 30-Dec. 1 in New Orleans.  The program features law professors Deborah Hensler and Lester Brickman along with an impressive cast of asbestos plaintiffs' lawyers, defense lawyers, judges, and experts.

HME

W.R. Grace Must Pay Asbestos Costs

Article in today's Los Angeles Times -- Firm Must Pay Asbestos Costs, by Sam Howe Verhovek:

    The Supreme Court on Tuesday let stand lower court rulings that require W.R. Grace & Co.
    to pay a $54.5-million federal bill for asbestos cleanup in a Montana mining town described
    by federal regulators as one of the nation's most contaminated Superfund sites.

    The court rejected Grace's appeal of a decision in favor of the Environmental Protection
    Agency, which sued Grace five years ago to recover the cleanup costs at a vermiculite
    mine in the town of Libby.

    The government is also pursuing a criminal case involving several former executives or
    managers of the mining company for allegedly concealing health risks at the mine.

The New York Times article, High Court Won't Consider Asbestos Case, from the Associated Press, quotes the Ninth Circuit opinion:

     ''The situation confronting the EPA in Libby is truly extraordinary,'' the appeals court wrote
    in its opinion in December. ''We cannot escape the fact that people are sick and dying as
    a result of this continuing exposure.''

BGS

Experts Excluded In Asbestos Case, After Defendants DaimlerChrysler And Volkswagen Win Bid For Frye Hearing

Article from Mealey's Publications -- Experts Excluded In Asbestos Case, After Defendants DaimlerChrysler And Volkswagen Win Bid For Frye Hearing:

    Two plaintiffs’ experts in asbestos friction products litigation did not rely on
    generally accepted methods in concluding that every exposure to asbestos products
    is a proximate cause of asbestos-related disease, a judge said Aug. 17 in excluding
    the testimony (Re: Toxic Substances Cases>AD 03-319, Pa. Comm. Pls., Allegheny Co.).

    Defendants DaimlerChrysler Corp. and Volkswagen of America filed a motion for a
    Frye hearing. Allegheny County Common Pleas Judge Robert J. Colville ordered a
    handful of representative cases to be selected for purposes of the hearing. Drs. David
    Laman and John Maddox submitted non-case-specific expert reports.