Experts: Madison County asbestos not directly affected by alleged fraud, but system adversely affected

The Madison County Record Feb. 19, 2009, 11:34am




Legal professionals in Madison County said on Wednesday a Mississippi lawsuit that sheds light on potentially fraudulent mass screenings in asbestos litigation does not have direct ties to their asbestos docket.

But schemes to add thousands of people not suffering directly from asbestos-related disease had an adverse effect on the entire asbestos tort system -- and sharply contributed to the amount of money paid by businesses in lawsuit settlements -- according to various reports, most notably an exhaustive study by Lester Brickman. Brickman is a leading expert in asbestos litigation and a professor at the Cardozo School of Law.

A lawsuit brought by National Services Industries against X-Ray company N&M Inc. in Mississippi alleges the company conspired with West Virginia radiologist Ray Harron and his son Andrew Harron to falsify medical records starting in 1995. Harron's clients turned up in cases across the country, particularly where aggregate filings were encouraged.

But its impact in Illinois is relatively minimal, according to legal professionals.

"I'm unaware of Harron being behind cases in Madison County," one local defense attorney who did not wish to be named said on Wednesday. "But that doesn't mean he was not. Madison (County) did, in fact, have a big spike in cases in the early part of this decade."

Mark Behrens, a Washington, D.C.-based attorney who specializes in tort reform, said Madison County cases most often differed from the types of cases fueled by false medical screening.

"I have not heard of Harron in the context of Madison County," he said. "Madison County mostly gets mesothelioma cases, and Harron has been mostly generating junk cases."

The Mississippi lawsuit claims that NSI paid millions in settlement claims on the basis of medical information provided by the Harrons. The medical screening company spent more than $1.5 million in marketing to attract clients, even though the thousands screened were not given proper medical treatment, the suit alleges.

Instead, non-trained staff gave X-Rays and breathing tests, which were signed by Ray Harron's secretaries at his direction. N&M then charged law firms for the results, earning the company millions of dollars in referral fees. Lawyers would use the bogus medical claims to seek settlements for asbestos-related charges.

The use of mass medical screenings was most popular in Texas before it passed tort reform laws, and led to hundreds of thousands of plaintiffs being aggregated into blanket settlement deals with defendants, many of whom were forced into bankruptcy.

Madison County Judge Daniel Stack said in an earlier interview that Madison County had insulated itself from many of these abuses. The court was among the first to create an inactive docket, which takes all plaintiffs who haven't become sick off the active docket roles.

Also, most of the asbestos-related cases in Madison County stemmed from a single plaintiff, not an aggregate list of thousands of plaintiffs as was once common place in other asbestos dockets like Texas.

Texas became famous for its mass screening, a practice that Brickman said directly led to thousands of claims made by people who were not truly sick. The end result, according to U.S. Sen. Jon Kyl (R-Ariz.) is, "asbestos-injury legal claims have skyrocketed during a period when rates of actual asbestos injury have declined sharply."

Kyl, a member of the Senate Committee on The Judiciary Concerning the Fairness in Asbestos Injury Resolution Act of 2003, wrote, "This phenomenon – of asbestos claims brought by people who are not sick – is quantified in several sources."

But Madison County – while beset with some of its own problems – avoided the glut of mass screening cases, Stack said.

"Perhaps in the initial stages 20 years ago law firms brought in people in massive screenings," Judge Stack said earlier this fall. "But we never really have had an inference by anyone on either side that those were like those fraudulent cases they had in other places.

"To tell you the truth the lawyers around here don't want to mess around with those cases, there are really too many sick to waste time with those who aren't," he said.

Cook County defense attorney Anthony Goldner said Illinois as a whole mostly avoided the cases dredged up through mass screenings.

"I have only seen a report from Harron in one or two alleged asbestotic cases in Vermillion and Macon Counties in Illinois," he said.

But the Madison County defense attorney said all asbestos dockets suffer from the abuses of mass medical screenings, even if indirectly.

"It is a fact that asbestos claims spiked dramatically in the late 1990s and into the early 2000s."

A report written by Behrens along with Victor Schwartz and Kimberly Sandner documents how the county earned a reputation as "Mad County," which gave the entire state a "black eye."

The authors document how the number of asbestos filings in Madison County surged from just 65 cases in 1996 to 953 in 2003. Many of those cases came from people with no connection to Madison County. The search for a favorable venue for plaintiffs indirectly ties the county's docket to the greater problems affecting courts in other states.

For instance, as companies were forced into bankruptcy, the trusts that were established required 75 percent of claimants to agree on a settlement, according to Section 524 of the code. The code did not establish directly who the claimants were or if they'd be weighted equally, the Madison defense attorney said.

"It turned out that he who has the most claimants wins regardless of the claims, which was the impetus for mass screenings and the likes of Harron and folks like him," he said. "It just snowballed."

The attorney said that time, even in Madison County, was "just mayhem. The whole thing spiraled out of control."

The impact is felt in another way, according to the defense attorney. Namely, it is hard to rewrite history, especially when it comes to court settlements.

"The big picture is the mass filers have now gone to the trusts. They are sitting back and waiting," he said.

A recent study showed that asbestos bankruptcy trusts have roughly $40 billion to pay plaintiffs as they emerge from the bankruptcy courts. Though the practice of mass screening may have fallen out of favor, the payouts continue.

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