TCS Daily

Asbestos Exposed

By Dana Joel Gattuso - March 9, 2004 12:00 AM

"Hundreds of thousands (of industrial and construction workers), assembled through an unprecedented recruitment effort by plaintiff lawyers...have no discernable illness or impairment..."

-- Lester Brickman, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University, in Pepperdine Law Review, December 2003.

Asbestos litigation is in crisis. Fueled by powerful trial attorneys rewriting the books on tort law, some 730,000 asbestos claims have been filed to date, and most are made by healthy, unimpaired individuals. Worse, the flood of unmerited claims has bankrupted so many defendant companies that legitimate victims suffering from asbestos exposure have been squeezed out, unable to collect compensation that is rightfully theirs.

Meanwhile, asbestos lawsuits -- the most expensive type of litigation in U.S. history, according to numbers released last month by the RAND Corporation -- are taking their toll on the U.S. economy, costing businesses a whopping $70 billion and bankrupting 66-plus companies. Nobel laureate Joseph Stiglitz estimates asbestos lawsuits have killed close to 60,000 jobs.

Asbestos was used most widely in the U.S. for fire prevention and insulation during World War II and, to a lesser extent, throughout the 1950s and 1960s. Many workers exposed to the tiny fibers suffered from real and often fatal injury from severe scarring of the lungs or cancer. Many companies taken to court were rightfully found responsible and held culpable.

Most manufacturers stopped producing asbestos by the early 1970s as the dangers from its usage were more commonly understood, and asbestos-related cancer rates have been falling steadily since the early 1990s. But as the once-plentiful pool of defendants gradually diminished, plaintiff attorneys began to get creative. As a result of some fancy footwork reinventing the rules on asbestos litigation, the number of claims has skyrocketed, from 21,000 in 1982 to 730,000 in 2002; similarly, litigation and compensation costs rose from a billion dollars in 1982 to $70 billion by 2002.

Called "special asbestos law" by some legal scholars, standards of proof for culpability and causation have now become so relaxed that hundreds of thousands of claimants are winning thousands of dollars in damages without having to prove injury. For example, plaintiffs routinely are winning by showing merely that their employer used asbestos products, not that they were actually exposed to the substance. Also, standards for which medical records can be used as evidence are so loose that they need not show the claimant is ill, only that injury could occur.

Legal experts have known about these perversities for close to a decade. Back in 1997, Supreme Court Justice Stephen Breyer wrote in an opinion that "Up to half of asbestos claims are now being filed by people who have little or no physical impairment."

But now there is alarming evidence that through the development of this "special" tort law, standards and rules of litigation have become so lenient that as many as 90 percent of all asbestos claimants are without injury. In the most recent issue of the Pepperdine Law Review, Yeshiva University law professor and leading asbestos litigation scholar Lester Brickman provides an eye-opening account of unethical activity and even widespread fraud among plaintiff attorneys in: recruiting industry workers en masse ("Find out if YOU have MILLION-DOLLAR LUNGS" was the bait of one ad), colluding with medical screening companies, and even fabricating claimants' depositions.

According to Brickman, plaintiff attorneys routinely hire screeners who manipulate plaintiffs' medical reports and administer pulmonary medical tests through methods that violate medical standards, including those established by the American Thoracic Society. Another disturbingly common approach is for trial attorneys to coach claimants to give inaccurate statements on the amount of exposure they had to asbestos and on their health condition.

Most disturbing are Mr. Brickman's documented descriptions of plaintiff attorneys colluding with doctors and falsifying medical testimony to give the impression a claimant has asbestosis when no such medical evidence exists. Brickman contends that in some cases, attorneys pay tens of millions of dollars a year to a pool of 40 to 50 doctors who knowingly misrepresent the medical evidence.

Legal experts have pleaded for over a decade for major asbestos litigation reform to end what Supreme Court Justice Ruth Bader Ginsburg has called the "elephantine mass" of asbestos cases. Congress has introduced much needed reform legislation numerous times over the past decade, but the powerful trial attorneys, aligned with organized labor, have stopped legislation from passing every time. But if the rules now governing asbestos litigation have become so perverse that such widespread corruption can exist to the extent Mr. Brickman describes, we well may need reform a lot more desperately than we even imagined.

Dana Joel Gattuso, a senior fellow with The National Center for Public Policy Research in Washington, D.C., recently wrote for TCS about an endangered Marines act.


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