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Rufus

I'll admit that I was surprised as you were at the Times' take that corporate defendants and their insurers don't fight. That's certainly not been the case from where I've been sitting on the defense side for 12 years. So we're in agreement there. But what about the fact that the fighting by the corporate defendants in the silica cases has turned up strong evidence of fraud by the plaintiffs lawyers and their doctors? No comment on that aspect of the case? Hmmm ... I seem to recall Wyeth having some success going after doctors who certified diet drug "victims" as having cardiac problems without the appropriate exams or indicia of such problems. Whatever.

Ted

Actually, in asbestos cases, many defendants have long since stopped fighting, and just settle every claim brought to them. The plaintiff brings a suit against a hundred defendants, makes a guaranteed profit off of the first eighty or ninety settlements, and uses that money to finance the lottery ticket against any holdouts who are willing to risk defending themselves in court. This model is what encouraged the original problems in mass screening, and it is clear that the silicosis plaintiffs attempted to repeat that model.

Wyeth didn't have success exposing fraud until after they capitulated and agreed to a global settlement, at which point the fraud was so pervasive and evident that it was impossible for a judge to ignore.

Evan

Rufus--I'm opposed to any doctor or lawyer committing fraud and agree with John Day:

If a doctor knowingly gave an improper diagnosis to a claimant in an effort to help that claimant get compensation the doctor needs to be punished. To the extent that a lawyer participated in any wrongdoing he or she needs to be punished.

As to further specifics about the silicosis litigation, I can't comment, since I've never done any silicosis litigation.

As for fen-phen, the incident you allude to took place within the settlement fund; I opted all my clients out of the settlement and pursued their claims individually. Some pursued claims for a deadly heart-lung disease called PPH, a part of the diet-drug litigation (and a public health crisis) that the press hasn't covered for some reason. PPH claims can't be faked. Many other clients had heart valve damage; all of these had independent echocardiograms from doctors they selected themselves.

As for the settlement fund, it represented only a very small percentage of the overall settlements, and only a subset of settlement fund claims were questioned; the questioned claims, in other words, were a very small percentage of the totality of the diet-drug litigation. And I believe the question of whether some claims weren't valid is still up in the air.

Evan

Ted: If what you are saying about asbestos is correct, then the writer should have limited his statements to asbestos and silicosis.

As for diet drugs, you have your facts wrong. The doctors who were questioned were involved in claims submitted to the settlement fund that didn't even exist until after the so-called "global settlement," which wasn't really a global settlement because so many claimants opted out of it. And as I said in my comment to Rufus, it wasn't "pervasive."

Ted

From the American Lawyer: "Auditors had by then reviewed 4,600 claims, and had disqualified almost two-thirds of them." Also: "Consider the findings of a 2004 audit conducted by a panel of cardiologists led by Dr. Joseph Kisslo of Duke University in the fen-phen class action. Hired by class counsel to review 926 claims that had already passed the trust audit process, Kisslo and his colleagues spent hours analyzing echocardiograms. About 70 percent of them, Kisslo's group concluded, should not have been approved by auditors." Sounds pretty pervasive to me.

Tom

My understanding of the asbestos litigation is that many of the manufacturers have decided to pay litigants that don't exhibit any form of injury. People are paid an amount of money just because they were exposed to asbestos and could later develop asbestosis or mesothelioma. The reason companies do this is simple... risk management. Companies can pay a claimant a relatively small amount of money now rather than a potentially large amount of money later. If a manufacturer settles with a claimant today and then 20 years from now that claimant gets diagnosed with mesothelioma, that claimant will not be able to file suit. It's unfortunate that the companies have decided to pay masses of people now instead of paying the handful of people that become injured. In my opinion the companies never should have paid these non-injury claims and only focused on fighting the injury claims. Now many of these companies have filed for bankruptcy. Corporate America is crying for tort reform to remove the liability from these companies and make them financally sound employers once again, but these companies have no one to blame but themselves. They should have fought these claims from the beginning.

Evan

Ted: We must have a different definition of "pervasive." You are writing about claims within the settlement fund without regard to the fact that most settlements were paid outside the settlement fund. The post you link to at Point of Law is flawed for the same reason. Meanwhile, the American Lawyer article you cite is full of holes because not once does it mention PPH.

Ted

Evan:

You've done PPH cases, and I haven't, so you're ahead of the curve on this, but my understanding is that there are no studies that demonstrate an association between Pondimin use and an increased risk of PPH several years after cessation of use. The only evidence you cited in your June 1 post is an assertion in the preamble in a House bill that never got out of subcommittee (the same assertion is omitted in S. 2922, the Senate version of the bill). There wasn't even a report associated with the bill. I know people who can get language introduced into a preamble of an unsuccessful bill in the House, but I wouldn't then cite that language as evidence of anything other than an insignificant display of the power of that lobbyist.

Just by random chance, dozens of former fen-phen users would naturally get PPH in the years after the drug was withdrawn; moreover, since other anorexic drugs have the risk of causing PPH, and many fen-phen users switched to those other drugs that did have warnings, many PPH plaintiffs have no reason to be suing Wyeth. But I'm open to the possibility that there are scientific peer-reviewed studies that I'm not aware of that account for these factors.

Evan

Ted: You're right about the weakness in my linked post on the latency issue. Actually, there's good evidence that someone can develop PPH for at least 10 years and perhaps more after taking fenfluramine or Redux. Since I'm still filing those cases, however, I don't want to get into the evidence in public on this weblog. If you or anyone else has a burning desire for more details, I might share them via email.

It means you can have the last word on PPH in this thread.

Junior Mint

"In violent times you shouldn't have to sell your soul."
--Tears for Fears

mythago

Actually, in asbestos cases, many defendants have long since stopped fighting, and just settle every claim brought to them.

Could you please list these defendants? It would save me a whole lot of time if we could sue them, instead of all these other asbestos defendants, who seem to have figured out the whole "putting up a fight" long ago.

My understanding of the asbestos litigation is that many of the manufacturers have decided to pay litigants that don't exhibit any form of injury. People are paid an amount of money just because they were exposed to asbestos and could later develop asbestosis or mesothelioma.

Again, gosh, I want to move to this alternate universe. It would make my job much easier if I didn't have to show my clients were really ill, or if defendants just paid whenever I called them up and said our clients worked with their stuff.

In California, at least, defendants do not pay money to plaintiffs who are uninjured. They do not pay plaintiffs who say they have breathing problems unless there is some medical evidence (such as CT scans or a pulmonary function test) showing injury. How much they pay depends on how strong the evidence is that the plaintiff worked with their asbestos products, and how ill the plaintiff is.

Richard

Evan, If you bother to look up the study which started the fen fen feeding frenzy it was only 12 patients. Well last time I checked the people who are now being tried and put in jail in Mississippi (soon to be some of your legal brethern) were and are convicted of fraud in the landmark settlement which led to the extorted settlement. I know you would not have any surreal echo's and the 'experts' you hire surely would not do so for a higher fee of a payable claim would they?

Richard

Mythago, I point to case in Holmes county MS where a jury of your 'peers' awarded 150 million to 6 plaintiffs alledgeing exposure to asbestos even though they had no injury or disease but the jury in one of Dickie Scruggs 'magic jurisdictions' wanted these pourrr people to have money, and I quote 'in case they get sick later'. They were led by a prominate ambulance chaser in MS. They continued to sue the only hold out who did not settle after the verdict and the lone defendant won in the state supreme court because of a lack of medical evidence. The fear of extortion is real but the cost are passed on to everyone all the while the ambulance chaser got a new Bently to drive to the courtroom. So take your Mythago and go find a fool or two to believe your really in it to represtent the little guy. And don't act like you do not know about the 'alternate universe of Dickies magic jurisdiction'are because I am sure you have been to the holy land of trial lawyers in Madison Ill and the 'special places' in MS where injury is just a church donation away from a verdict in your favor.

Cato

In addition to the Times, the American people are getting their information about mass tort litigation from the party in power. The website over at the Ministry of Propaganda (http://www.gop.org) doesn't make it seem like corporate America needs to go on the defensive at all - they already have it taken care of for them:

The President supports curbing lawsuit abuse with needed medical liability reform by:

Securing the ability of injured patients to get quick, unlimited compensation for their "economic losses," including the loss of ability to provide unpaid services like care for children or parents.

Ensuring recoveries for non-economic damages do not exceed a reasonable amount ($250,000).

Reserving punitive damages for egregious cases where they are justified, and limiting damages to reasonable amounts.

Providing for payments of judgments over time rather than in a single lump sum, to ensure that appropriate payments are made when patients need them.

Ensuring that old cases cannot be brought to court years after an event; and

Providing that defendants pay judgments in proportion to their fault.

The President's agenda also includes providing victims of asbestos-related diseases a fair system and a long-term solution. The current system may leave little or no funds to pay current and future asbestos victims, is costly to administer (future transaction costs are estimated at between $145 and $210 billion), will impose large, indirect costs on the economy, and has driven exposed defendants, including small businesses, into bankruptcy. The President has stressed the need for reform and commended Congress for aggressively working on this problem, but more work needs to be done to pass legislation for the President to sign that provides a fair and permanent solution.

Ted

Mythago: this is why you should read Point of Law, which has documented the means by which billions of dollars of asbestos cases have gotten settled in Madison County back in the days when its judge wasn't enforcing venue rules.

Professional Cynic

Ted, I followed your link and scrolled back some four months to find material on Madison County, and found that you still haven't responded to mythago. You're not using your FRCP11 alter ego here. Aren't you embarrased when you do this type of thing with your real name attached?

Jim Copland

For a very in-depth look at the pervasive abuse of medical screening in asbestos cases, see Lester Brickman's lengthy article, On the Theory Class's Theories of Asbestos Litigation: The Disconnect Between Scholarship and Reality: http://www.pointoflaw.com/articles/archives/000041.php.

Eric Parker

In the interest of fair disclosure -- I am a Boston trial lawyer, who concentrates in plaintiff-oriented cases, primarily those involving medical malpractice, product liability and other tort claims. The NY Times piece (The Tort Wars, at a Turning Point) is yet another example of how the press loves to fan flames -- any flames -- regardless of which side of the tort reform issue they are writing about. Conflict between doctors and lawyers makes for good reading and sells newspapers. What remains conspicuously absent from most of the pieces I come across is any mention of the insurance company's role in perpetuating needless litigation. If I had a buck for every instance that a defense attorney in one of my cases said to me: “hey -- I agree with you, but they don't want to settle the case", I could probably retire.

Ted

A better link on Madison County, asbestos, and Point of Law.

Wikipedia is an open-source site, where edits of articles (including edits of articles about individual users) can only occur by consensus, so I'm not sure what the anonymous critic is complaining about or why his or her grievance is on this page, given the extensive procedures available on Wikipedia to address wrongdoing if any occurred. But I'm not ashamed of anything I've written about tort reform in the last ten years, nor has the anonymous critic identified anything inaccurate about anything I've written.

TO

Tom wrote:

"People are paid an amount of money just because they were exposed to asbestos and could later develop asbestosis or mesothelioma"

Unfortunately, and in a decision I believe was short sighted, some asbestos defendants sued their insurers and argued that "exposure" to asbestos equals "bodily injury" within the meaning of general liability policiies. They did so to tap into multiple, consecutively issued insurance policies going back years and years.

Guess what? They won! But did they? Not only was the ability to argue insufficinet exposure to asbestos greatly diminished, they created a huge pot of money (billions) for plaintiffs to pursue. It was not surprising that some in the plaintiffs bar would manufacturer claims of exposure to get to the honey pot.

Next, once these defendants held the extra hammer of extra contractual liability over the heads of insurers for failing to settle within policy limits, it is no wonder meritless asbestos claims were paid by the thousands.


Aaron

Eric, I read the article you linked. I was hoping that after such an audacious beginning ("When the complete and unexpurgated history of asbestos litigation is finally written, that litigation will surely come to be considered for entry into the pantheon of such great American scandals as the Yazoo land scandals, Credit Mobilier, Teapot Dome, Billy Sol Estis, the salad oil scandals, the Savings & Loan scandals, WorldCom, and Enron") that I would find something more definitive. When an author instead qualifies his claims of world-class scandal with disclaimers like this - "In many instances, the evidence I present is circumstantial. Again, the burden will be on the reader to weigh the evidence. ... Various conclusions can be drawn from this evidence ranging from the effects of fading memories to pure happenstance to orchestration of testimony by plaintiff lawyers. ... The evidence with regard to causation is circumstantial to be sure, but whether it is as compelling as Friday’s footprints is for the reader to decide." - I can't help but feel a bit let down.

That said, would it surprise me if some doctors are in effect "selling" their opinions, whether by overt agreement, tacit understanding, or out of their own personal belief that they would lose a lucrative referral stream if they didn't reliably deliver opinions which favored their employer? Not at all. How many defense IME reports do you have to read before you can recognize doctor names and IME "clinic" addresses where that type of report is the norm instead of the exception? Once a doctor decides that his opinion is for sale, isn't it a matter of finding the highest bidder, plaintiff or defendant?

Ted

Aaron raises an important point: for-hire experts' opinions on both sides can be criticized as "for sale" (though I have yet to see any defense experts set up a van and have unqualified people x-ray hundreds of people a day and then have their secretaries issue the diagnoses).

It's a good argument for court-appointed panels of neutral experts. Will he join me in seeking this tort reform?

Aaron

Ted, I won't blindly sign on to anything. Nor, I would presume, would the insurance defense firms which keep IME mills in business, or the plaintiff's firms which ostensibly hire the x-ray vans you describe. How would these panels work? How would experts be selected for panels? How would they be selected for any particular case? How would the experts be compensated? Wouldn't they substantially raise the cost of a lot of litigation, particularly for a plaintiff whose medical evidence is coming from treaters and not from experts? Would this be only for medical issues, or would this proposal extend to all litigation involving experts? Would it also include criminal litigation - which would be a huge boon to indigent defendants, and a huge cost to counties which presently rely heavily upon "in house" experts from police departments and police crime labs?

Ted

All good questions deserving further scrutiny. I pass along the website AAAS told me about for your perusal.

mobar

Thanks to Professional Cynic for the link to the Talk page of Wikipedia's tort reform page. The exchanges between FRCP11 and Whitfield Larrabee are hysterical.

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