Report: Mass litigation screenings costing up to $40 billion

Ann Knef Sep. 19, 2008, 9:32am



A legal expert who calls mass litigation screenings "an entrepreneurial response to highly profitable opportunities" estimates the cost of "specious" tort claims to be at least $40 billion.

Lester Brickman, professor of law at Benjamin N.Cardozo School of Law, states in a new report that lawyers have spent "at least $500 million and perhaps as much as $1 billion" on litigation screenings in the past several decades.

In the report -- "The Use of Litigation Screenings in Mass Torts: A Formula for Fraud?" -- Brickman estimates that 1.5 million potential litigants have participated in litigation screenings for asbestos, silica, silicone breast implants, fen-phen and welding fumes.

Of those, he said, approximately one million of those screened "had the requisite condition conferring a right of compensation."

"On the basis of the evidence I have examined, I estimate that approximately 900,000 of these claims were based on diagnoses that were 'manufactured for money,'" Brickman wrote.

He estimates that litigation doctors who produced medical reports for the screened litigants and the screening companies that they worked for have been paid "well in excess of $250 million."

He estimates lawyer fees to be in excess of $13 billion.

"Litigation screenings, an 'entrepreneurial' response to highly profitable opportunities that arise in certain mass tort litigations should not be confused with medical screenings," Brickman wrote. "Litigation screenings have no intended health benefits. The sole objective of such screenings is to identify litigants and generate the medical reports that will qualify the litigants for compensation."

"Each of the providers who profit from the screening -- paralegals, litigation doctors, medical technicians (taking X-rays, administering echocardiograms or pulmonary function tests), the owners and employees of the screening companies, and the lawyers who have contracted for the screenings -- are motivated by substantial and even enormous financial incentives," he wrote.

Brickman claims defendants in mass tort litigation lack an effective means of challenging screening doctors' reliability because courts do not allow discovery of data -- for instance whether litigants underwent thorough physical exams -- which would enable the most effective challenges.

"...[D]efendants need to have access to the medical records of the hundreds or thousands of other similar claimants diagnosed by that litigation doctor ... But this access is precisely what defendants are denied.

In the report, Brickman also points to failures in the justice system and reasons "for the persistence of the phenomenon of prosecution-less mass tort fraud."

"...[O]ne would expect that those who profit from this process, most especially the doctors who have been paid hundreds of millions of dollars for their medical reports and services, would face at least civil if not criminal sanctions," Brickman wrote.

"With rare exception, this has not occurred. Both the criminal and civil justice systems appear largely incapable of detecting or deterring, let alone sanctioning, the actions of medical and scientific experts who, in exchange for hundreds of millions of dollars in fees, provide specious if not fraudulent medical reports and testimony in support of mass tort claims. Lawyers are even more insulated from sanctions than are the experts they hire as part of a scheme to manufacture diagnoses for money."

Ed Murnane, president of the Illinois Civil Justice League, reacted to the report saying doctors who would abuse principles of medical care are "even lower on the ladder of professionalism" than "greedy trial lawyers."

"Doctors who hire out for fees to provide questionable reports and diagnoses for patients they have never seen or examined in the past are as much a part of the litigation abuse problem as are the greedy trial lawyers who hire them," Murnane said.

"I'm not sure how many Illinois-licensed physicians are engaged in these practices but it may be time for us to investigate and publicize those physicians who have formed partnerships with trial lawyers."

Madison County has long been a court system that welcomes toxic tort plaintiffs from all over. At one time it was the busiest asbestos court in the nation, but then Madison County Circuit Judge Daniel Stack took over the docket in late 2004. He declared that he would transfer cases that did not belong in his court.

Asbestos cases had been on the decline since Stack replaced Judge Nicholas Byron, until recently. Following a three-year decline, the number of asbestos complaints, most of which are from out-of-state plaintiffs, began increasing in Madison County last year.

In 2007, there were 455 new cases filed in Madison County. As of Sept. 17, there have been 411 new asbestos suits filed in Madison County in 2008.

Asbestos cases peaked in Madison County in 2003 when there were 953 new suits. Cases in recent years:

2004: 473
2005: 389
2006: 325
2007: 455

A Madison County plaintiff's attorney said new cases are increasing in Madison County and nationwide because of lawyers' marketing efforts.

In an interview last month, Stack said he has been told that doctors are saying cancer of the esophagus and lungs are also caused by asbestos fibers.

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