"Asbestos litigation has become a malignant enterprise which mostly consists of a massive client-recruitment effort that accounts for as much as 90 percent of all claims currently being generated, supported by baseless medical evidence which is not generated by good-faith medical practice, but rather is primarily a function of the compensation paid, and by claimant testimony scripted by lawyers to identify exposure to certain defendants’ products."
So says law professor Lester Brickman, the leading scholarly critic of the 50,000 to 100,000 asbestos-related injury claims being filed each year by people who, 90 percent of the time, Brickman says, "have no discernable illness or impairment." Rather, they and their lawyers "have cashed in on this national tragedy" by filing claims based on "specious medical evidence."
These disturbing contentions come in a 137-page article to be published this month in The Pepperdine Law Review. They suggest at least the possibility of ongoing corruption of the civil justice system on a staggering scale by powerful plaintiffs lawyers, with the help of complaisant judges — many of whom are politically indebted to the lawyers — while the U.S. Supreme Court primly averts its eyes.
Brickman’s view is disputed by most of the plaintiffs bar. The evidence that he cites has largely been ignored by the courts and other academics. And those who profit from asbestos lawsuits will be quick to point out that Brickman, a professor at the Cardozo Law School of Yeshiva University, has done paid consulting work for asbestos defendants.
But Brickman’s empirical research is so massive, his scholarship so meticulous, and his 526 footnotes so crammed with compelling evidence, that his article — together with the work of a handful of investigative reporters — should shift the burden of proof in public debate to those who defend the legitimacy of the asbestos-claims industry.
This is not to disparage the claims of the many thousands of workers who have been injured and killed by lung diseases caused by inhaling large quantities of asbestos dust over long periods of time in their workplaces. Almost all of these injuries originated before 1973, when use of asbestos in its most dangerous forms was widely discontinued. Some victims have suffered from lung cancer or mesothelioma, a virulent, asbestos-induced cancer that kills about 2,000 people a year. Most have had asbestosis, a nonmalignant scarring of lung tissue that can cause shortness of breath ranging from almost undetectable to very severe. Two big manufacturers of asbestos who conspired to suppress information about its dangers were deservedly held liable and driven into bankruptcy long ago — joined more recently by dozens of other companies that were far less culpable, if they were culpable at all.
The current asbestos-litigation crisis is rooted in well-intentioned efforts by judges to rewrite legal rules to compensate asbestos victims despite the absence of proof as to who caused their illnesses. Courts created a body of "special asbestos law," as Brickman calls it, under which claimants, without proving that they have suffered any real harm, can win tens of thousands of dollars or more from multiple defendants.
In many jurisdictions, claimants can win by proving just that they worked near asbestos-containing products; that their chest X-rays, in the opinion of experts hired by plaintiffs’ lawyers, are "consistent with" asbestosis (even though that does not prove actual illness or injury); and that pulmonary function tests show reduced lung capacity (which is easily faked). Courts have also severely bent procedural rules to aggregate thousands of dissimilar claims into gigantic lawsuits that coerce defendants to settle by making it impossible to defend against bogus claims. And they have subjected to unlimited liability corporate purchasers of companies that had long since stopped using asbestos.
The inevitable consequence has been to open the floodgates to what Brickman calls "massive specious claiming" by plaintiffs with no real injuries. No longer is the norm for people with illnesses possibly caused by asbestos to seek medical care and then perhaps legal counsel. Rather, since the 1980s, law firms and attorney-sponsored screening companies have signed up hundreds of thousands of current and former workers who typically have no symptoms of impairment. The recruiters solicit by word of mouth and advertising. ("Find out if YOU have MILLION-DOLLAR LUNGS!" was the pitch used in one mass Internet mailing.) Screening companies deploy trailer trucks equipped to provide free X-rays and pulmonary tests. Among the perverse workings of this asbestos litigation industry:
* While "almost no new actual cases of asbestosis have manifested in the past 10 years" — because few people have inhaled harmful quantities of asbestos since 1973 — the number of asbestosis legal claims has continued to soar. Ninety percent of current claimants, Brickman asserts, have no real evidence that their lungs are any worse than those of much of the U.S. adult male population of similar age.
* More than 475,000 "meritless asbestos claims" have won an average of at least $60,000 each from defendants so far, Brickman estimates, for a total of more than $28.5 billion in unwarranted recoveries — and counting. More than $10 billion of this has gone to plaintiffs’ lawyers. This is on top of the many billions in legitimate awards. The litigation has driven nearly 70 companies into bankruptcy, costing more than 50,000 employees their jobs and eliminating an estimated 500,000 more jobs that would otherwise have been created.
* The evidence suggests strongly that "a cadre of plaintiffs’ doctors … regularly and systematically misdiagnose asbestos-related conditions" for profit, Brickman asserts. He details "huge and consistent discrepancies" between these doctors’ X-ray readings and those of neutral doctors. The mass screening enterprises typically find the tests of 40 to 65 percent or more of those screened to be "consistent with asbestosis," Brickman estimates. Neutral doctors diagnose asbestosis in fewer than 5 percent of people with similar histories of exposure.
* The screening companies "realize tens of millions of dollars of repeat business from finding evidence of asbestosis." Some charge lawyers much more for claimants whose tests are "consistent with asbestosis" than for others; many generate huge numbers of false positives by using substandard X-ray equipment and rushing through pulmonary tests in as little as three to 15 minutes, despite an expert consensus that it takes at least 45 minutes to separate false positives from cases of real impairment. There is evidence of widespread fraud in pulmonary testing.
* Many claimants testify according to law firm scripts that coach them to fabricate nonexistent impairments; to "create memories irrespective of the underlying facts" as to which asbestos-containing products they saw in their workplaces more than 30 years ago; and to deny seeing warning labels, whether they saw them or not. Over the years, as asbestos lawyers have sued more than 6,000 companies in their search for still-solvent deep pockets, their clients’ testimony as to which asbestos-containing products they saw at specific work sites during specific periods has changed markedly. This pattern suggests that the testimony "has been orchestrated by plaintiff lawyers" to maximize recoveries against still-solvent companies, Brickman writes.
* Plaintiffs’ lawyers have become fabulously wealthy by charging contingent fees as high as 40 percent, plus litigation expenses, even for mass-produced claims that take as little as 10 minutes of paralegal time to prepare. Brickman estimates that these fees bring lawyers several thousand dollars per hour of actual work done.
* Forum-shopping lawyers have filed most of the hundreds of thousands of claims generated over the past 15 years in a handful of jurisdictions in Texas, Mississippi, West Virginia, and Illinois. "What I call the ‘magic jurisdiction,’ " billionaire plaintiffs lawyer Dickie Scruggs of Mississippi once explained with stunning candor (as quoted in The Wall Street Journal), is "where the judiciary is elected with verdict money. The trial lawyers have established relationships with the judges…. They’ve got large populations of voters who are in on the deal…. It’s almost impossible to get a fair trial if you’re a defendant in some of these places, [no] matter what the evidence or the law is."
Traditional civil justice reform and the current congressional push to orchestrate a grand asbestos settlement, Brickman argues, have little chance of overcoming the awesome power of some plaintiffs’ lawyers to coerce settlements, bankrupt defendants, and intimidate critics. Nor will many judges or scholars confront "the possibility that the civil justice system has been corrupted." The only way to expose the asbestos litigation industry’s inner workings, he says, would be a sweeping grand jury investigation. Good idea.