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Asbestos Litigation Far From Over

May 07, 2008

By James R. Copland

They’re baaack! Trial-lawyer-driven asbestos mass screenings, thought to be in the dustbin of history after Texas Judge Janis Graham Jack uncovered far-reaching fraud in the enterprise in 2005, have recently reappeared.

These screenings are designed to generate hundreds or thousands of plaintiffs diagnosed with lung injuries for the purpose of asbestos litigation, the trial bar’s longest-running and most lucrative mass tort.

Historically, such screenings were often no more than a sham. Form diagnoses filled out by high-school dropouts were rubber-stamped by doctors, often at a rate of over 100 per day.

These doctors would find astronomically and implausibly high levels of asbestos-related lung disease: In a Johns Hopkins study, neutral radiologists observed X-rays and saw lung impairments traceable to asbestos exposure in 4.5 percent of cases, though lawyer-hired doctors had identified asbestos injury in 95.9 percent of the same films.

After Jack uncovered this fraud Congress held hearings, and asbestos-related legal filings plummeted. New claims of asbestos-related nonmalignant injuries fell from 70,412 in 2002 to only 2,596 in 2007, a decline of over 96 percent. State tort reforms also played a major role in this decline: The fastest drop-offs in filings occurred in former magnet jurisdictions such as Texas, Mississippi and Ohio.

But Trial Lawyers Inc. is nothing if not resourceful, and tales of the asbestos tort bar’s death were premature. Firms began shifting lawsuits out of their formerly friendly locales and into alternative plaintiff-friendly jurisdictions; Texas asbestos law powerhouse Baron & Budd, for example, began shuffling its caseload to California.

The list of target defendants, 8,400 strong, also keeps growing. None of the new targets actually made asbestos; as noted by uber-lawyer Dickie Scruggs — recently convicted for bribing a judge — asbestos litigation today is really just “the endless search for a solvent bystander.”

The tort bar has also discovered it can generate surplus revenues from legitimately injured victims through outright deceit. There’s little transparency among the $17 billion in bankruptcy trusts that are the remnants of the 80 companies decimated by asbestos litigation, and the plaintiffs’ bar has been suing on behalf of the same claimants in different courts and with different trusts, advancing conflicting claims of liability.

One local judge in Ohio discovered lawyers had alleged, in different forums, that a plaintiff had been exposed to asbestos on a World War II naval vessel, in shipyards, in a factory as a teenager and from filters in 1950s-era cigarettes.

Now, as prosecutors have failed to act to punish the frauds already uncovered by Judge Jack, lawyers have decided that it was worth trying to draw more water from the mass-screening well.

In the last six months, the Texas law firm Nix Patterson & Roach has held two mass screenings in the now-more-mass-tort-friendly neighboring state of Oklahoma. Like the asbestos screenings of old, the screenings attracted potential plaintiffs with newspaper, broadcast and direct-mail advertising.

It’s too soon to know whether the new screenings are as medically shoddy as their forebears; Nix Patterson’s public relations spokesperson insists the screening “decision [is] made without any input from an attorney.”

Still, forms obtained at one of the Oklahoma screening sites make clear that anyone diagnosed is bound to sign over legal rights to the law firm sponsoring the screening. Clients must allow aggregate settlement of their claims, which inevitably shortchanges truly injured victims; the law firm can drop the client for any reason; and the client is on the hook for the firm’s expenses, even if he is unwillingly dropped by the firm. The new asbestos screenings thus share a common trait with their forebears: They’re all about the lawyers.

The lawyer-beholden Congress is unlikely to act to fix asbestos litigation anytime soon, but states can still try to prevent such lawsuit abuse. Adopting medical standards of evidence can eliminate bogus claims, reforming venue rules can block lawyers from shopping their cases to lowest-common-denominator jurisdictions, repealing several liability would protect companies with minimal ties to asbestos from shouldering the load of its legal costs, and mandating transparency can ensure that asbestos claimants are not double-dipping among the bankruptcy trusts in multiple jurisdictions.

One thing’s certain: Absent reform, asbestos litigation abuse is here to stay.

Original Source:



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