The Case of the Class-Action Capers

DN Staff

July 17, 2006

4 Min Read
The Case of the Class-Action Capers

The previous column discussed how the Daubert Supreme Court decision led to higher standards for scientific testimony and to a diminution in the amount of junk science admitted as testimony. In addition, a recent act of Congress moved much of the class-action litigation from state to federal courts, where the standards of justice are thought to be higher.

Newspapers report on multi-billion dollar settlements of class-actions against one or a group of defendant companies. One might think the offended parties would get a tangible return for their injuries. Such is often not the case as I learned years ago in a case involving airline reservations. I spent a couple of days putting together my travel records, hoping to get a free ticket. I was instead rewarded with a pile of mostly useless chits giving me discounts on future tickets. The lawyers, of course, got large amounts of real money.

But there is some poetic justice. In one class-action suit the victorious attorney put much of his nine figure fee into a male ego trip-purchase of a storied major league baseball team. Under the lawyers ownership, the team is a bunch of well-paid underachievers incapable of reaching the playoffs, which is needed to turn a profit. In addition, the local fans hate the lawyer for not fielding a championship team.

'Rocked Up' Claims?

Asbestosis and silicosis are dreaded, debilitating diseases. I worked with molybdenum ore miners who had silicosis, who were "rocked up" as they put it. They coughed and spit constantly. Most smoked heavily in the belief that the cigarette tar would somehow coat the angular silica particles and make them more tolerable.

Certainly many have been injured by these diseases, but the number of asbestosis claims is approaching 1 million. I cannot imagine anywhere near 1 million people being harmed by asbestos. I worked with the stuff many years ago and have suffered no ill-effects. But in every case, x-rays were found by doctors to show asbestosis. The asbestos suit payouts bankrupted more than 70 companies.

Then trial lawyers seized on silicosis as a new cause for class-action law suits and began suing firms who produced silica products. The number at present is approaching 100,000.

Accusations of junk science have been hurled at forensic work for both asbestosis and silicosis suits. Even so, the asbestos defendants seemed resigned to issue a near endless succession of settlement checks.

Expert Without a Clue

Then the worm turned. Some 10,000 silica claims were grouped together according to federal law and placed before a federal judge in Texas. Defense attorneys used the grouping to obtain the social security numbers of the silicosis plaintiffs which they compared to those for asbestosis. They found more than half the silicosis litigants also filed claims for asbestosis. The probability that someone suffering from one disease also has the other is minuscule.

Often the same doctor read the same x-ray. The initial diagnosis was for asbestosis, with no mention of silicosis, and the second reading found silicosis, with no mention of asbestosis. All this was too much for the federal judge who asked the expert, "What happened to the first illness?" The response was, "I don't know." Judges have since applied such terms as "worthless," "fraudulent problem" and claims were "manufactured for money" to asbestosis and silicosis forensic testimony. These developments have caused some asbestos defendants to stop paying claims or to demand further justification.

One doctor signed off on more than 100,000 diagnoses of asbestosis and others on more than 10,000. This amount of x-ray reading boggles the mind. It is possible technicians helped with the reading, which is acceptable if the senior person directly supervises the work.

Unfortunately for the radiologists, Congress got interested in the scandal and proceeded to hold hearings. Three of the doctors appeared, but only after being subpoenaed. All three declined to testify to avoid self-incrimination. They are also facing a criminal grand jury where they may be forced to testify.

These actions on asbestosis and silicosis claims are evidence the recent federal legislation and Supreme Court decisions are having the desired effect. Pulling the silicosis cases out of the various state courts and putting them in a single federal court made the social security number check possible. Having a very astute presiding jurist was a huge piece of luck for the defense. It is likely Daubert encouraged the judge to be as inquisitive as she was.

The Wall Street Journal has good coverage of developments in asbestosis and silicosis litigation.

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