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Lester Brickman

Mass tort roundup

by Walter Olson on July 16, 2014

  • New Hampshire lottery: after Granite State’s MTBE contamination suits pays off big, Vermont files its own [WLF Legal Pulse]
  • Supreme Court declines to review various cases arising from Florida’s Engle tobacco litigation [Lyle Denniston, SCOTUSBlog, earlier] “U.S. Supreme Court Rejects Fen-Phen Lawyers’ Appeal of $42M Kentucky Verdict” [Insurance Journal, earlier]
  • In action against five drug firms over opioid marketing, California’s Santa Clara County partners with law firms Robinson Calcagnie, Cohen Milstein, and Hagens Berman, marking at least the tenth time the county has teamed up with outside law firms to file suits [Legal NewsLine; earlier on Chicago's involvement in painkiller suit]
  • Lester Brickman on fraud in mesothelioma litigation [SSRN] “Plaintiff Lawyer Offers Inside Look At `Institutionalized Fraud’ At Asbestos Trusts” [Daniel Fisher]
  • “‘Light’ cigarette case vs Huck’s continues after 9 years; Two current judges had been plaintiff’s counsel” [Madison Record, ABA Journal]
  • “If honesty in the judicial system means anything, it means proceeding with candor before the tribunal, which plaintiffs’ counsel did not do during the removal proceedings.” [dissent in Peter Angelos Cashmere Bouquet asbestos case, Legal NewsLine]
  • Report on products liability and the driverless car [John Villasenor, Brookings, earlier]

October 2 roundup

by Walter Olson on October 2, 2012

  • CFPB hopes to fix regulation that has prevented stay-home moms from getting credit [Bloomberg Business Week, earlier]
  • Uncertified class action: “Federal judge orders cost-shifting for fishing expedition” [PoL] Ted Frank objects to $10 million fee in “cosmetic” Johnson & Johnson settlement [Daniel Fisher, PoL]
  • “Accused of Providing Blank Arrest Warrants to Police, Georgia Magistrate Resigns” [ABA Journal]
  • Lester Brickman, Peter Schuck in new podcast on Brickman’s book Lawyer Barons [Federalist Society]
  • “Wright and Ginsburg on Behavioral Law & Economics” [NW Law Review and SSRN via Adler]
  • “17th injury claim in 12 years got Chicago cop her disability deal” [Sun-Times]
  • “Injured while working for the Empire? Call Lando Calrissian.” Law firm ad parody [YouTube]

September 16 roundup

by Walter Olson on September 16, 2011

  • House Judiciary holds hearing on asbestos-claim fraud and abuse, with Prof. Brickman headlining [Main Justice, Legal NewsLine, WSJ law blog, PoL, Brickman testimony]
  • Endangered species habitat in Nevada: “Elko County wants end to 15-year-old trout case” [AP]
  • “Why is the Eastern District of Texas home to so many patent trolls?” [Ted Frank/PoL, more] Tech giants say multi-defendant patent suits place them at disadvantage [WSJ Law Blog] Plus: “Patent company has big case, no office” [John O'Brien, Legal NewsLine]
  • Lawsuit settlement and the lizard brain [Popehat]
  • “U.S. Commission on Civil Rights Looks Into Eminent Domain Abuses” [Kanner, Somin] U.K.: “Squatters could be good for us all, says judge in empty homes ruling” [Telegraph]
  • Madison mob silences Roger Clegg at news conference where he releases new study of UW race bias [ABA Journal, Althouse]
  • Life in Australia: “Another motorized-beer-cooler DUI” [Lowering the Bar]

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July 29 roundup

by Walter Olson on July 29, 2011

  • Don’t: “Lawyer Disbarred for Verbal Aggression to Pay $9.8M Fine for Hiding Cash Overseas” [Weiss, ABA Journal]
  • Loser-pays might help: “Dropped malpractice lawsuits cost legal system time and money” [Liz Kowalczyk, Boston Globe]
  • “Kim Kardashian and the Problem With ‘Celebrity Likeness’ Lawsuits” [Atlantic Wire]
  • Kim Strassel on the Franken-spun Jamie Leigh Jones case [WSJ]
  • Peggy Little interviews Prof. Lester Brickman (Lawyer Barons) on new Federalist Society podcast;
  • Worse than Wisconsin? “Weaponizing” recusal at the Michigan Supreme Court [Jeff Hadden, Detroit News]
  • New York legislature requires warning labels for sippy cups [NYDN]

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In the new issue of the Federalist Society’s Engage, Margaret Little reviews Lester Brickman’s Lawyer Barons: What Their Contingency Fees Really Cost America, one of the most important new books on tort law in years (review, PDF). Excerpt:

No scholar has studied the role of the contingency fee in America more comprehensively than Professor Lester Brickman. He has now published a definitive book that examines the historic, economic, and political legacy of this American means of financing the always elusive quest for justice. …

Litigation, while public in name, takes place out of the public eye. … the defense bar is up to its elbows in preserving these arrangements because of the mirror image benefits they derive from the expansion and complexity of tort liability.

April 6 roundup

by Walter Olson on April 6, 2011

  • Lack of defect poses problem for plaintiff: Toyota prevails in first acceleration case [NLJ]
  • Australia: writer Andrew Bolt on trial for alleged racially disparaging columns [Herald Sun, Crikey, The Age]
  • “Attorneys Put Themselves Before Consumers in Class Action over Faulty Computer Chip” [CJAC, Frank/CCAF on NVidia case]
  • Ruling by Federal Circuit is thinning out rush of patent marking cases [Qualters, NLJ, earlier]
  • Podcast: Lester Brickman and “Lawyer Barons” [PoL, earlier here and here]
  • “Are class actions unconstitutional?” [Lahav, Mass Tort Lit, on Martin Redish book]
  • “Free speech belongs on campuses too” [Ilya Shapiro, Cato, on Widener case, with kind mention of Schools for Misrule]
  • King Canute turns attention to dry land: states mull bills to forbid use of distressed properties as appraisal comps [Funnell]

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March 15 roundup

by Walter Olson on March 15, 2011

  • “A conversation with class action objector Ted Frank” [American Lawyer]
  • Reviews of new Lester Brickman book Lawyer Barons [Dan Fisher/Forbes, Russell Jackson] Plus: interview at TortsProf; comments from Columbia legal ethicist William Simon [Legal Ethics Forum]
  • “Collective Bargaining for States But Not for Uncle Sam” [Adler] Examples of how Wisconsin public-sector unionism has worked in practice [Perry] Wisconsin cop union: nice business you got there, shame if anything were to happen to it [Sykes, WTMJ] “Union ‘rights’ that aren’t” [Jeff Jacoby, Boston Globe]
  • “Minnesota House Considering Significant Consumer Class Action Reform Measures” [Karlsgodt]
  • 10,000 lawyers at DoD? Rumsfeld complains military overlawyered [Althouse via Instapundit]
  • “Are Meritless Claims More Prevalent in Copyright?” [Boyden, Prawfs]
  • Claim: availability of punitive damages reduces rate of truck accidents. Really? [Curt Cutting]
  • Now with improved federalism: “The Return of the Lawsuit Abuse Reduction Act” [Carter Wood, more, earlier here].

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February 7 roundup

by Walter Olson on February 7, 2011

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In a preview of his much anticipated new book, Cardozo lawprof Lester Brickman examines contentions that caseload statistics do not bear out fears of a litigation explosion, and says these claims depend on severe undercounting of both cases and costs [TortsProf, PoL]

August 2 roundup

by Walter Olson on August 2, 2010

  • “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]

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September 15 roundup

by Walter Olson on September 15, 2008

  • 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]

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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.