Million Dollar Lungs: Insulated by greed, trial lawyers sweep aside the real asbestos victims
Macomber, Shawn
MELT JON DOLLAR ( 22 THE AMERICAN SPECTATOR March 2005 TT BEGINS WITH A SHORTNESS OF BREATH and maybe a nagging, Advil and it disappears. But for a few unlucky souls, the pain branous lining of...
...TO OVERWHELM, ONE MUST HAVE MANY, many willing plaintiffs, however...
...The problem is so complex even some analysts who typically see government as an anathema are cautiously advocating federal intervention...
...And yet, nearly every major American industry is being sued in one capacity or another with regard to asbestos exposure...
...They ignore the real aim: to ensure that the 2,000 or so people who develop malignant mesothelioma every year aren't lost in a sea of claims from people who have no impairment whatsoever...
...Asbestos litigation might be less a question of judicial process than public opinion...
...It's too expensive...
...The reality is that only the tort lawyers who brought these cases can deliver those votes, and by this point the truly sick have already served their purpose...
...widely considered to be the preeminent study of asbestos litigation fraud, spoke with TAS shortly after appearing with President Bush at the town hall meeting...
...Passing' in this sense means failing, of course...
...In the past they were willing to make do with going after the most obvious targets, which were companies that, quite frankly, deserved to be sued...
...If the study confirmed, as many of us suspect, that upwards of 90 percent of non-cancer asbestos claims are based on false medical diagnoses, a massive nationwide fraud would be laid bare," Brodsky wrote last December in the Wall Street Journal...
...Another man in the same line adds, "The lawyers said I could get $10,000 or $12,000 if the shadow is big enough, and I know just the fishing boat I'd buy with that...
...The response from the American Trial Lawyers Association was swift...
...They, too, want to be found with the `$1,000,000 lungs...
...It's the sort of pain most of us easily dismiss as the signs of a potential flu or cold...
...The vision of such an easy windfall is difficult to erase...
...Second, previous decisions have set up an overly liberal environment that favors fraud over honesty...
...As Lester Brickman writes in his Pepperdine Law Review article, the bankruptcy "posed a severe problem for plaintiff attorneys, setting off a concerted effort to find other deep pockets to supplant and supplement Manville...
...This is the horror of malignant mesothelioma, a disease which has only one known cause: Exposure to asbestos...
...Sometimes the claimant had actually never even been to the state...
...Today there are 850,000 claimants and more than 6,500 defendants...
...The group's president, Todd Smith, seethed to the Associated Press that President Bush was "on the nation's longest-running road show attacking the legal rights of millions of Americans...
...When the RAND Institute published its first study of asbestos litigation in 1983, the report posited that it might perhaps cost $38 billion...
...The President raising asbestos litigation reform as one of his three major tort reform initiatives is certainly a welcome development and will raise the visibility of the issue," Brickman said...
...When the case landed before the Fifth Circuit Court of Appeals in 1973, Judge John 26 THE AMERICAN SPECTATOR March 2005 Wisdom used his opinion to extend the doctrine of "strict product liability" to ailments traced to materials made with asbestos...
...As cancerous cells in the mem- The disease starts attacking and destroying soft tissue, ravaging nerve endings and causing severe pain...
...Fewer than 5 percent of the X-rays passed muster for asbestos-related impairment with the panel...
...They smoke cigarettes or chew tobacco right before the test...
...But you file 800 at once...
...Supreme Court Justice Stephen Breyer has mused both in written opinions and during hearings that perhaps half of asbestos claims are being filed by unimpaired individuals...
...And that's not even the worst part...
...Trial lawyers have been able to maximize these liberalizations by cherry picking states to file claims based on their leniency, otherwise known as "forum shopping...
...George Mason University law professor David Bernstein said a real amelioration of the problem might not come until the visibility of the issue has been raised substantially...
...Mark Brodsky, a senior portfolio manager at Elliott Management Corporation, has found himself inside the belly of the asbestos litigation beast several times and concurs with Brickman's assessment...
...For a single person filing a nuisance suit isn't worth it...
...They've identified other companies that have used asbestos in their manufacturing, delivery, or installation process, and just gone full bore after them...
...But even proposed bills authored by Senators Orrin Hatch and Arlen Specter creating a $140 billion federal fund to pay sufferers was described by Carlton Carl of the Association of Trial Lawyers of America as "clearly not adequate according to anybody who's looked at the issue...
...These estimations achieved some measure of vindication last summer when Academic Radiology, a peer-reviewed scientific journal of diagnostic radiology and radiological sciences, brought together an independent panel of radiologists to examine nearly 500 chest X-rays currently tagged as complainant evidence in asbestos lawsuits...
...If they find something, I get a few thousand dollars I didn't have...
...By any measure the problem—number of claims, estimated liability, legal costs, number of companies in bankruptcy, fraud, the effect on the American economy—is much worse than ever and has accelerated in its scope...
...Take from that the hefty cut trial lawyers get, usually around 25 to 50 percent, and one can almost see the "cupboard" Justice Breyer spoke of going dry...
...Asbestos litigation is utterly eviscerating these companies' productivity...
...When the publicity gets intense enough, courts might examine these claims more rigorously and be more willing to throw out the frivolous claims of unimpaired plaintiffs," Bernstein said...
...Since most claimants sue dozens of companies concurrently, this actually translates to tens of millions of new claims...
...Let's give the trial lawyers the benefit of the doubt and double the number of actually impaired complainants, putting the number of claimants who are actually ill somewhere in the neighborhood of 10,000...
...A study by the RAND Institute for Civil Justice that same year suggested that the number of unimpaired claims was closer to 90 percent...
...It is estimated this delay cost somewhere in the vicinity of 225,000 lives...
...On the federal level, Congress worsened the asbestos litigation problem tenfold in 1994 by adding Section 524(g) to the Bankruptcy Code, effectively increasing the power of trial lawyers and further disenfranchising victims...
...Often, the claimed exposure did not take place in the same state as the Clearly the system is broken and, ironically, some of the biggest obstacles to fixing it and getting victims what they truly deserve are procedural changes instituted by well-intentioned courts and legislatures...
...Regulation was strongly lobbied against by the asbestos industry for two decades beginning in the 1950s...
...They fail to exhale completely...
...With that in mind, consider: In 2003, 105,000 new asbestos plaintiffs filed claims...
...Asbestos continued to be used widely for several reasons: It was abundant, easy to mine, and had strength and durability...
...IF ASBESTOS USE, for all intents and purposes, ended more than 30 years ago, what is going on here...
...Seventy-two corncontinued on page 26 • OUNDING FATHERS ] dramatization of t Constitutional Convention of 1787...
...During a 2002 hearing, Justice Breyer 24 THE AMERICAN SPECTATOR March 2005went even further, warning that if such abuses continued "the cupboard will be dry" when "people who really get cancer come into court...
...If the court system can't handle this problem, at some point another solution is going to have to be found...
...They also know that they have a year or two at best to live, and few of those days will be pleasant...
...He believes federal judges could easily "refuse to be complicit in the scandal," if they were to so desire, by simply ordering an independent evaluation of a "statistically reliable sampling" of evidentiary medical records...
...The country as a whole suffers from these lawsuits as well...
...Trial lawyers would have one believe that the aim of asbestos litigation reform is to save evil corporations that profit off killing their employees...
...As the Wall Street Journal has editorialized, "The asbestos mess has already cost the economy more than 9/11, Enron and WorldCom put together...
...Companies the general public would never associate with asbestos, such as Pfizer and 3M, are major defendants...
...This might be one of the rare cases in my view where Congress may be justified in some taxpayer payout to victims, given the fact that the legal system has broken down," Mark Moller of the Cato Institute said...
...Now most asbestos claims are much less valid, but the liberal rules still apply...
...But finding problems has not been a problem for these doctors, even if their findings don't hold up to independent scrutiny...
...Money attracts lawyers like bees to honey," said David Bernstein, a George Mason University law professor who has written extensively on asbestos litigation...
...It is estimated this delay cost somewhere in the vicinity of 225,000 lives...
...One cigarette smoking union worker forthrightly told Schneider, "I saw the notice in the union newsletter and said, `Why not?' It's better than the lottery...
...Deserves to be read by freedom-loving audiences worldwide...
...Terry Eastland, publisher, the weekly standard SHAWN MACOMBER panies have been pushed into bankruptcy...
...Indeed, from an entrepreneurial point of view, the tort lawyers have pursued the most clever course...
...That's why you see companies with a tenuous connection to asbestos being sued and plaintiffs not deserving of checks receiving a lot of money...
...The first major asbestos litigation came in the form of Borel v. Fibreboard Paper Products Corporation in 1969...
...Additionally, defendants are afraid to mount a vigorous defense...
...BY SHAWN MACOMBER March 2005 THE AMERICAN SPECTATOR 23 MILLION DOLLAR LUNGS Once upon a time, legal experts believed the millennium would mark the twilight of asbestos litigation, not a new dawn...
...But there are no firm proposals being backed as of yet...
...When Schneider asks one of the lawyers on site who the firm plans to sue, the lawyer answers, "Anyone who made products with asbestos who hasn't gone bankrupt yet...
...In the aggregate, where we are dealing with tens of thousands of X-ray readings, the possibility that huge and consistent discrepancies between the interpretations of neutral X-ray readers not concerned about the future flow of revenue and X-ray readers who read thousands and tens of thousands of X-rays and who realize tens of millions of dollars in repeat business from finding evidence of asbestosis or pleural plaques, can be explained as mere 'intrareading variability' recedes to near zero," Brickman writes in his Pepperdine article...
...They file thousands of suits at once, and the tort lawyers all share information because what a company pays out to one tort attorney it has to pay out to all tort attorneys...
...These workers know to get money they have to pass the pulmonary impairment test," Brickman explained...
...It's not fair to those who are getting sued, and it's not fair for those who justly deserve compensation," Bush declared at one "town hall" event...
...A few of the claims, Lester Brickman said, can be explained away as part of the "nocebo effect," an offshoot of the "placebo effect" wherein workers are scared into believing they are really sick and begin to feel symptoms that simply aren't there...
...In February 2003, Andrew Schneider of the St...
...Clarence Borel brought suit against eleven asbestos manufacturers and won a ruling that recognized their responsibility to warn employees of asbestos hazards...
...Cram-down provisions, which allow a judge to approve a deal even if a creditor dissents, so long as everyone has been treated fairly and equitably, are meant to keep everyone honest...
...After all, raising the ire of the tort lawyers may mean never getting out of bankruptcy and never getting a settlement completed...
...Sound too farfetched to be true...
...1 Shawn Macomber is a reporter for The American Spectator...
...They just open up the file in their word processor and type in new names...
...One of the main problems with asbestos litigation is that in the early 80s, when there were a lot of plaintiffs who were quite obviously injured, many states adopted special rules for asbestos litigation that were much more liberal with regard to analysis and causation," Bernstein said...
...stem from exposure to asbestos fibers, nor did they provide adequate protection for them," Stephen J. Carroll wrote in the 2002 RAND study...
...As long as the courts require so little actual evidence, the problem of asbestos litigation will continue to get worse...
...If at all plausible, most companies would save money just paying even baseless claims off at $500 or even $2,000 apiece...
...There are many thousands of claimants now hoping to get on the asbestos bandwagon...
...Some asbestos manufacturers that were aware of the dangers of exposure to asbestos did not warn their employees of the risks of injury that Regulation was strongly lobbied against by the asbestos industry for two decades beginning in the 1950s...
...Now it is much murkier...
...524(g) also requires a company in reorganization due to asbestos litigation to hand over a majority of its stock to the trust that pays the claims, putting company management at the whim of tort lawyers...
...It's probably no surprise to anyone that the savvy attorneys running this scam are many of the architects of the tobacco lawsuits...
...Since trial lawyers are not looking to compromise, one shouldn't expect Democrats to eagerly sign on, either...
...As Mark Brodsky points out in the Wall Street Journal, "Management thus faces an obvious conflict of interest between their professional aspirations and their fiduciary duty to challenge dubious asbestos claims and act as honest brokers...
...a disruption that could eventually cost the American economy more than 400,000 additional jobs...
...Even when you add in other cancers potentially connected to asbestos, that number remains consistently below 15 percent...
...From here on out it's about volume...
...Its fire resistance also made asbestos popular with construction and insurance companies...
...There are many thousands of claimants now hoping to get on the asbestos bandwagon...
...March 2005 THE AMERICAN SPECTATOR 27 SHAWN MACOMBER CLEARLY THE SYSTEM is broken and, ironically, some of the biggest obstacles to fixing it and getting victims what they truly deserve are procedural changes instituted by well-intentioned courts and legislatures...
...In 1982 there were 21,000 claimants and 300 defendants, three of whom had gone into bankruptcy...
...Nevertheless, many restrictions on use of and exposure to asbestos were presented as part of OSHA in 1970...
...Lawyers have done this by setting up a series of "mass screenings" in union halls, shopping centers, basically wherever they can park their mobile X-ray unit and entice people with promises of getting a cut of settlement money...
...While Brickman acknowledges medical experts "can and do differ" in their interpretations, he feels the discrepancies are far too great when it comes to asbestos...
...They 'cooperate' with the administrators of the test in order to fail it...
...Otherwise, a single creditor could hold up an entire bankruptcy deal by demanding 300 cents on the dollar...
...aching pain in the chest or back...
...In fact, the entire rubric of asbestos litigation has shifted from "traditional industries," i.e., trades where high-level exposures occurred, to "non-traditional" industries where individuals were exposed in one way or another to asbestos, but not at anywhere near the levels the original plaintiffs of 20 or 30 years ago were...
...Since only 10 to 20 percent of claimants are actually impaired, the sick in the current arrangement have no real power...
...Louis Post Dispatch wrote a fascinating account of his visit to one such mass screening...
...They fail to inhale completely...
...Most estimates predict there will be more than two million new claims over the next decade...
...The circumstances were similar to today's Ira a country in chaos— et problems were the same how to give power to majority while protoetr We are publishing a s Arabic edition of this exciting new pla American rwr tie w William Tucker...
...But for a few unlucky souls, the pain branous lining of the lungs silently multiply, the Advil is use- less and it becomes apparent something is terribly wrong...
...Nevertheless, that still leaves a relative handful of suffering people splitting settlements with 90,000 unimpaired individuals...
...By 1982, the company at the heart of the litigation, the Johns-Manville Corporation, was facing 16,000 lawsuits and declared bankruptcy...
...I wouldn't go so far as to say the tide is turning...
...THE DANGER INHERENT IN ASBESTOS has been recognized, at least to some degree, since the 1930s...
...A single such study might transform asbestos litigation in this country...
...All they have to do to get the "free" check-up is sign a retainer pledging themselves to work with the lawyer setting the whole thing up, should any problems be found...
...Thus, those truly suffering from asbestos-related diseases are victimized twice: Once by the disease itself, and then again by trial lawyers and a broken system...
...In the victim's final days, pain-killing narcotics are administered directly to the spinal canal via a catheter...
...Fin ou how you can help to ute this play throughout the Arab world...
...Just to respond to a case costs a company hundreds of dollars," Bernstein continued...
...28 THE AMERICAN SPECTATOR March 2005 BUT 524(g) GIVES ASBESTOS claimants an absolute veto over a plan, requiring a 75 percent majority to cut a deal...
...The epidemiology is quite clear, and most of these workers know perfectly well that there is no medical or scientific expectation that they will ever develop an illness," Brickman said...
...Most settlements include a payment schedule allowing those with a more serious illness, or any illness at all, to get paid a higher percentage of the settlement...
...In January, President George W. Bush began grouping asbestos litigation in with his class action and medical liability reform proposals...
...Nobel laureate economist Joseph Stiglitz argues that this has already stripped away 60,000 jobs and $200 million in wages...
...One such mobile screener, Most Health Services, Inc., has processed 400,000 screenings in every state...
...Yeshiva University law professor Lester Brickman, who last year in the Pepperdine Law Review published what is DANGE CONTAINS ASBESTOS FEZ AVOID CREATING DUST CANCER AND LUNG.,..Fyl,,.Sf Insulated by greed, trial lawyers sweep aside the real asbestos victims...
...In the absence of courts enforcing medical standards, the only risk to tort lawyers is what they pay for the photocopies...
...Not coincidentally, mesothelioma claims have fallen to a mere 4 percent of all claims...
...The same strategy is on display here: Overwhelm a company from all directions with dozens upon dozens of lawsuits and basically make it cost more to defend than settle...
...A couple of returns, persists, and spreads...
...The majority MILLION DOLLAR LUNGS of the claims, however, are simple fraud...
...It's not difficult to find others that have done more than 100,000...
...A brilliant portrayal...
...In 1989 the EPA went even further, attempting to ban all asbestos use entirely, a move that was overturned by the Fifth Circuit Court of Appeals...
...If they don't find anything, I've just lost an afternoon...
...And this breeds more of the same...
...8,000...
...Now, several years after Supreme Court Justice David Souter famously termed asbestos litigation an "elephantine mass," it is reaching critical mass...
...There has to be a way for them to continue contributing to the economy while providing some compensation...
...Brickman said he wasn't counting the trial lawyers out quite yet...
...The reason these unimpaired are able to lodge successful complaints is twofold: First, companies are settling because they cannot afford to fight...
...By 2002 the cost had risen to $70 billion with a potential total revised to $265 billion...
...Through this haze, they are expected to say goodbye to their loved ones...
...They, too, want to be found with the '$1,000,000 lungs...
...There have been some cases in which individuals chewed on asbestos before the exam, although doing so has no effect whatsoever...
...Here's how it works: Typically during the bankruptcy process, a deal is cut somewhere along the way and the case is over...
...Usually by this time, victims are aware that this monster inside them is malignant mesothelioma, one of the ghastliest forms of cancer...
...Once upon a time, legal experts believed the millennium would mark the twilight of asbestos litigation, not a new dawn...
...filing...
...Today, asbestos is used in car brake linings and not much else...
Vol. 38 • March 2005 • No. 2
