A Supreme Court vacancy has forced the Senate Judiciary Committee to delay other business, including a bill that would create a trust fund to compensate victims of asbestos-related illness. In the meantime, trial lawyers continue the feeding frenzy that this bill could halt.
New light was recently shed on their brazen scam by Lester Brickman, a law professor at the Cardozo School of Law at Yeshiva University. Writing in the Hofstra Law Review, Brickman details ethical lapses of a plaintiff's bar run amok. Grab a sick bag and we'll give you an overview.
Through 2004, about 845,000 people had filed claims in asbestos cases, with 60 to 70 defendants named in each case. About 90 percent of claimants are unimpaired by any illness. How, then, do they become litigants? Most are recruited through advertising and massive, assembly-line screening operations designed solely to collect evidence for asbestos lawsuits.
To attract class-action prospects, trial lawyers run hard-sell ads in mass media, send out reams of letters and maintain shrill Internet sites. Milliondollarlungs.com, for example, opens with this measured pitch: "Find out if YOU have MILLION DOLLAR LUNGS! If you worked with or around asbestos prior to the year 1972, you could be entitled to millions of dollars ... yet you might not know it."
There are now 15 attorney-sponsored screening outfits trolling the country in tractor-trailer rigs with X-ray equipment. Most are run by people with no medical qualifications to administer medical diagnostic tests. Often operating without a state license, they set up shop at union halls and in mall parking lots to offer free screening.
Chest X-rays often are read the way gypsies read palms. A physician at Brown University, who has testified for plaintiffs, recently wrote in a medical journal, "I was amazed to discover that in some of the screenings, the worker's X-ray had been 'shopped around' to as many as six radiologists until a slightly positive reading was reported."
To make good on claims, witnesses must be able to identify the products they were exposed to decades earlier. To help witnesses "refresh" their memories before testifying, plaintiff law firms provide picture books of asbestos products.
Here Brickman notes fishy trends in testimony. After an asbestos company goes bankrupt, its products fade from the memory banks of witnesses, while products of solvent companies are clearly recalled. These memory shifts always seem to go in the direction that maximizes plaintiff recovery.
Before Johns Manville went bankrupt, for example, workers from the Philadelphia Navy Yard identified under oath the asbestos products they were exposed to. Eighty percent were made by Manville. A few months after the company's bankruptcy, witness memories in Navy Yard cases underwent a sea-change, reducing Manville's product share to 30 percent or less.
This circumstantial evidence of witness-coaching is supported by direct evidence. In his 2003 book "The Rule of Lawyers," Walter Olson of the Manhattan Institute examines the Texas law firm of Baron & Budd, asbestos specialists. Olson quotes from a 20-page memo that one of the firm's paralegals wrote and gave to hundreds of asbestos clients before they testified. A few of its pointers:
- "It is important to maintain that you NEVER saw any labels on asbestos products that said 'WARNING' or 'DANGER.'"
- "Remember to say you saw the NAMES on the BAGS."
- "Do NOT mention product names that are not listed on your Work History Sheets. The defense attorneys will jump at a chance to blame your asbestos exposure on companies that were not sued in your case."
- "Be CONFIDENT that you saw just as much of one brand as all the others. All the manufacturers sued in your case should share the blame equally!"
Such is the noble art of asbestos litigation as practiced by jet-set plaintiff firms. "It is ... beyond cavil," Brickman concludes, "that the quantum of specious claiming in asbestos litigation constitutes a massive civil justice system failure."
And like a polluted Old Man River, it just keeps rolling along.