On the Theory Class's Theories of Asbestos Litigation: The Disconnect Between Scholarship and Reality
Yeshiva University - Benjamin N. Cardozo School of Law
Pepperdine Law Review, Vol. 31, No. 33, 2004
More than 100,000 new asbestos claims were filed in 2003, the most ever in one year. Asbestos litigation thus continues to thrive even though 80-90% of claimants have no illness recognized by medical science, let alone suffer any lung impairment. To explain how this disconnect between medical science and tort litigation has come about, I cover the following subjects:
1) medical consequences of exposure to asbestos-containing materials;
2) the phenomenon of the unimpaired claimant;
3) medical evidence with regard to the incidence of asbestosis;
4) the effect on asbestos litigation of the failure of the Manville Trust audit to be approved;
5) the causes and effects of seemingly orchestrated changes in party and witness testimony with regard to the identification of asbestos-containing products at work sites; and
6) the Baron & Budd "script memo."
The core of the article is an empirical analysis of attorney-sponsored asbestos screenings which account for approximately 90% of claims being generated. On the basis of that empirical research, I conclude that asbestos litigation today largely consists of former industrial and construction workers:
(1) recruited by an extensive network of entrepreneurial screening companies which are employed by lawyers to "screen" hundreds of thousands of potential litigants each year at local union halls, hotel and motel rooms, shopping center parking lots, and other locations throughout the country;
(2) asserting claims of injury though they have no medically cognizable injury and cannot demonstrate any statistically significant increased likelihood of contracting an asbestos-related disease in the future;
(3) in a civil justice system that has been significantly modified to accommodate the interests of these litigants by dispensing with many evidentiary requirements and proof of proximate cause;
(4) mostly in forum-shopped jurisdictions, where judges and juries often appear aligned with the interests of plaintiff lawyers;
(5) often supported by specious medical evidence, including: (a) evidence generated by the entrepreneurial medical screening enterprises and B-readers - specially certified x-ray readers that the enterprises or plaintiff lawyers select, who fail to exercise good faith medical judgment but instead conform their findings and reports to the expectations of the plaintiff lawyers who retained them, and (b) pulmonary function tests which are often administered in knowing violation of standards established by the American Thoracic Society and result in findings of impairment which would not be found if the tests were properly administered; and
(6) who frequently testify according to scripts prepared by their lawyers which include misstatements with regard to: (a) identifications of and relative quantities of asbestos-containing products that they came in contact with at work sites, (b) the information printed on the containers in which the products were sold, and (c) their own physical impairments.
It is beyond cavil that asbestos litigation thus represents a massive civil justice system failure. Because of the awesome power of the asbestos plaintiffs' bar, the issues posed by this failure appear impervious to resolution by civil justice reform. Realistically, the only fora in which the issues of the mass production of bogus medical evidence and scripted client and witness testimony can be addressed is through an investigatory grand jury process.
A review of the scholarly literature indicates a substantial degree of indifference to the causes of this civil justice system failure. Many of the published articles on asbestos litigation focus on transactional costs and ways in which the flow of money from defendants to plaintiffs and their lawyers can be expeditiously and efficiently prioritized and routed. The failure to acknowledge, let along analyze, the overriding reality of specious claiming and meritless claims demonstrates a disconnect between the scholarship and the reality of the litigation that is nearly as wide as the disconnect between rates of disease claiming and actual disease manifestation. In this article, I set forth some tentative explanations of this phenomenon.
Number of Pages in PDF File: 138
Keywords: Asbestos, civil justice system, asbestos litigation, mass screening, pulmonary function tests
Date posted: February 1, 2004