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.

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 What happened next, in the 1990s and early part of this decade, amounts in large part to the systemization of fraud, through a business model the trial lawyers developed to extract as much money as possible out of the asbestos well. As we point out in our Trial Lawyers, Inc. report, this business model “starts with marketing (recruiting plaintiffs), followed by production (eagerly screening prospective plaintiffs for purported lung impairment and usually finding it), packaging (bundling cases into a “mass” of tort claims), and sales (overwhelming courts and defendants to extract settlements).” At each stage of the process, the business exemplifies major problems with American jurisprudence. I’ll start with marketing.

Lawyers’ ability to “market” for clients is founded in the U.S. Supreme Court’s decision in Bates v. State Bar of Arizona, which determined that attorney advertising is a form of speech protected by the First Amendment. That ruling may well have been right as a matter of constitutional law, but it effectively gutted prohibitions on attorney solitication of clients and led to attorney-driven litigation. In the asbestos context, solicitation of clients became truly laughable, as ne’er-do-wells attracted potential plaintiffs to screening vans parked outside union halls or strip malls:

Heath Mason, a junior-college dropout with no legal or medical training who made $25.5 million from asbestos litigation. Mason’s role was attracting potential plaintiffs to “screening clinics” that interviewed and “tested” them, usually in trailers hauled to restaurant, shopping-center, or motel parking lots. Mason would lure passersby with attractive women he called his “lawyer girls,” such as the two young lawyers he met at an unidentified convention in Fort Lauderdale, Florida, and later persuaded to stand on a Fort Worth street corner with signs directing potential plaintiffs to an X-ray screening van in a Staples parking lot.

Today, marketing tactics are also of the sophisticated variety. As Overlawyered readers are aware, the most expensive Google ad-search terms involve “asbestos” and “mesothelioma.”

Related posts

• Asbestos: Production — the great screening scam (0)
• Safety mask litigation (0)
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• The Wall Street Journal on “Do it Yourself Tort Reform” (6)
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