Stan Anderson
David Setter
WASHINGTON, D. C. – Business advocates celebrated a new era in asbestos litigation at a national conference and swapped ideas for building momentum.
"Full steam ahead," crowed attorney Dave Setter of Denver at "Diagnosing for Dollars," a July 20 event at the U.S. Chamber of Commerce. "We have these folks on the run."
Timothy O'Reilly, consultant to the Chamber's Institute for Legal Reform, said, "Corporations, insurers and judges are looking at these cases differently. I can't remember a time when we have had this momentum."
"Do we need legislation or will the system heal itself?" asked attorney James Stengel of New York. "We have momentum now but we cannot maintain it without concrete plans. You need to think about a comprehensive structural approach."
Near the end of the conference, a man near the center of the room said he had heard all day that Madison County was no longer a problem because the spotlight on it had caused changes.
"I hope nobody leaves this meeting today thinking Madison County is no longer a problem," he said.
Stengel responded that a "vacation period" was going on there.
"Madison County tomorrow could go back to the way it was," he said.
After the meeting, the man near the center of the room slapped a hand over the name tag on his suit coat when a Record reporter approached. He refused to give his name. His hand moved and like magic, the name tag vanished.
"If you're from Madison County," he said, "you know why I don't want to give my name."
About 100 persons attended the event, which focused on mass X-ray screenings through which attorneys have rounded up hundreds of thousands of asbestos plaintiffs.
"The clear purpose is to generate huge fees for the lawyers and doctors," Stengel said. "It is an inherently evil process that severs the relationship of doctor and patient."
The 'sham'
Judy Pendell, senior fellow at AEI-Brookings Joint Center for Regulatory Studies, said attorneys have screened 750,000 persons. Attorneys have told 250,000 to 650,000 persons they had asbestosis when they may not have had it, she said.
"It is not likely that they reassured any of these people that the diagnosis might not be accurate," Pendall said.
Most people received diagnostic reports from attorneys, she added. "This is in very sharp contrast to medical practices."
Persons with asbestosis need information, especially on smoking, she said, adding that they need frequent flu shots and annual skin tests for tuberculosis.
Processing of X-rays by doctors for litigation rather than treatment is not consistent with the American Medical Association ethics code, Pendall said. Under the code, physicians should be above the influence of lay persons and above conflicts of interest, she said.
"Physicians should never place money ahead of the well being of patients," Pendall said.
A federal judge in Ohio reviewed 1,700 X-rays that attorneys had submitted as evidence of asbestosis and the judge found the diagnosis reliable in 75 cases, she said
"That was in 1988," Pendall said. "Why weren't we having this conference in '86 or '90? Why has this problem gone on for so long?
"It is time for organized medicine to weigh in on this issue."
Lawrence Martin, a Cleveland physician and a member of the American Thoracic Society, said the society has resisted mass screening reform since 1986.
An article on mass screening in the society's journal accepted all X-rays as valid, he said, adding that physicians who wrote the report were biased.
"One of the authors said he has treated thousands of asbestosis patients," he said. "That is impossible."
He said that in depositions, plaintiff attorneys quote the article to him.
"It is my opinion that this article was crafted specifically for this purpose," he said. "When you quote the American Thoracic Society and you quote me, it's clear there is no contest."
Academics act on an anti-capitalist, anti-corporation bias, Martin said.
The asbestos 'cure'
Kelly and Setter showed off a nearly finished data system, Beta, which they said would allow attorneys to connect information from asbestos cases all around the country.
Beta evolved from a discovery bonanza in a group of silicosis suits in federal court in Texas. Silicosis comes from inhaling rock dust or sand.
Defense attorneys found that almost 4,000 of the alleged silicosis victims in the case had been diagnosed as asbestosis sufferers from X-rays in previous litigation. In the newer X-rays, doctors had not reported a single instance of asbestosis.
"They have discovered a cure for asbestosis," Setter sarcastically said.
Calculations of breathing function depend on height, he said.
In the case of one woman, the calculation changed in four years because the height on her chart changed from 65 to 85 inches.
"Because she grew 20 inches, she is now impaired," he said.
Reform
Stengel said some states have reformed their laws on asbestos litigation, but he warned that the plaintiff bar is inventive. He said that if business destroys the financial incentives for asbestos litigation, plaintiff attorneys will bring more silicosis suits.
Lawyers could migrate, Stengel warned.
"You have Madison County cases popping up now in Delaware," he said.
Reformers, Stengel added, should focus legislative efforts on penalties for doctors who deviate from good medical practice in a diagnostic setting.
At the end of "Diagnosing for Dollars," the floor opened for questions and comments.
Attorney Mark Behrens of Washington said, "We need to make the other side look unreasonable. We are not taking away anyone's rights or denying anyone access to the courts. You have a sort of moral high ground going on."
He advised against pushing for hard core tort reform.
Stan Anderson, the Chamber's chief legal officer, agreed.
"The narrower the solution, the more likely you are to be successful," he said.
"We need to find victims on our side," Anderson said.
Presenting such victims helped motivate Congress to pass a class action reform bill this year, he said.
The Madison County Record is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.