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Washington Examiner
December 19, 2005

Legal profession fails its own ethical test

Among plaintiff lawyers who specialize in abusive lawsuits, a hot new fad these days is welding rods. Lawyers claim that welders who breathe fumes from manganese, a component of welding rods, develop Parkinson's disease or a similar neurological disorder called manganism.

Many of these lawsuits have been filed in recent years, but only one has succeeded so far. In 2003, a jury awarded $1 million to a welder who said that manganese fumes caused his Parkinson's. Some 9,500 such lawsuits are now pending in state and federal courts.

Plaintiffs typically argue that manufacturers of welding rods failed to warn them of the risk of contracting Parkinson's. But with the one exception just noted, juries have rejected that argument, and for good reason: The risk hasn't been demonstrated.

Many studies have looked for a causal connection between welding and Parkinson's but found none. So plaintiff lawyers have latched onto one study, published in 2001 by neurologist Brad Racette of Washington University, which suggests a more tenuous connection.

Racette himself says his study "doesn't prove that welding causes [Parkinson's]." Rather, "Our theory is that we have identified a group of people who probably would have developed the disease eventually, but something in the welding environment caused them to develop symptoms earlier."

This unproven theory is magically transformed by some trial lawyers into an established fact. For instance, an ad in the New York Daily News flatly stated, "Welding fumes have been shown to cause Parkinson's disease."

More recently, Racette has been paid by trial lawyers to do unscientific screenings of subjects selected by the lawyers. And — surprise, surprise — he found a higher-than-normal incidence of Parkinson's among welders.

Some unscrupulous trial lawyers go much further in fabricating evidence. We've written several times in this series about silica litigation in which lawyers and doctors manufactured thousands of phony diagnoses of silicosis. Now they're trying it in welding litigation. Several thousand lawsuits were recently consolidated in a federal court in Cleveland. But it was soon discovered that the poster-boy plaintiff, Dewey Morgan, was a fake.

Morgan claimed that fumes from welding had caused neurological damage. He testified under oath that he couldn't walk without a cane or walker, drive his tractor, carry groceries or do other normal activities. But when defense investigators caught him on videotape nimbly doing all these things, he admitted that he had lied about his condition.

There's more. Half of the several thousand plaintiffs in these cases haven't been diagnosed with any disease at all. As for the others, the vast majority were diagnosed by the same doctor, who set up a heavily advertised screening process paid for by plaintiff lawyers.

Defendants, who have already spent more than $1 million answering these frivolous complaints, have asked the court to sanction plaintiff lawyers. Lawyers for the plaintiffs say they shouldn't be penalized because they responsibly investigated Morgan's claims of illness.

"He fooled me," wailed one lawyer, "he fooled my son, who is a good lawyer, and he fooled Dickie." (The latter reference is to Dickie Scruggs, a Mississippi class action specialist best known for winning fortunes in tobacco litigation.)

But this golly-gee-whiz reply is just lame. Defense counsel easily exposed the scam. Why didn't plaintiff lawyers check out the claims before they went to court?

Everyone knows why: because they are more interested in winning huge contingency fees than in righting wrongs. A November Gallup Poll asked people to rate 21 professions for their high ethical standards. You can see why only 18 percent chose lawyers.

The core problem here is a legal profession that has defaulted on its own ethical standards. The ABA Model Rules of Professional Conduct state that "a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous."

The welding litigation scam is one more in a long string of frivolous, dishonest cases that show this rule to be words without consequence.

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