Runaway Asbestos Litigation -- Why it's a Medical Problem

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[Note: This fully-annotated editorial provides a medical analysis of the runaway asbestos claims plaguing the nation's courts. It is authored from the perspective of a physician who has done mainly defense work, but who considers himself reasonably objective, and is beholden to neither the plaintiff nor the defense bar. The editorial's purpose is to draw attention to the medical aspects of the litigation crisis, which are all too often ignored or misunderstood. I believe such ignorance and/or misunderstanding of the medical aspects are principal contributors to the current legal crisis. Certainly anyone with an interest in this problem (doctor, lawyer, judge, journalist, legislator, economist, lay analyst) should be aware of the perspective presented herein, and the references that support it. I will welcome feedback from any interested parties. This article may be subject to frequent revision as new information is published.]

Abstract There are currently in the United States over 600,000 asbestos-disease claimants, with another 600,000 estimated in the future. Most of these claimants are not ill and have questionable radiologic changes of asbestos disease. The huge volume of these claims has bankrupted dozens of businesses, clogged the nation's courts, and delayed compensation for people ill with documented asbestos-related disease, such as mesothelioma. While these claims are an acknowledged legal dilemma, they are also a medical problem, for two reasons. First, the claimants' chest x-rays were interpreted by physicians paid to find disease, so bias is inherent in the process. Plaintiff-hired-physicians' diagnoses of asbestos-related disease seldom meet either reasonable medical standards (such as review for confounding factors) or published criteria for asbestosis. Second, organized medicine has been largely silent about this abuse of diagnostic standards. Specific recommendations are offered to improve the diagnosis of mass asbestos-disease claims.

The Legal Situation

Hardly a month goes by without a news story about runaway asbestos litigation (Berenson, 2002; Crenshaw, 2002; Girion, 2002; Glater, 2002; Hudak, 2002; Kook Sim, 2001; Parloff, 2002; Schmitt, 2001; Sherrid, 2001; Thomas, 2002). According to the RAND Institute for Civil Justice, "More than 600,000 individuals have brought claims against more than 6,000 companies nationwide through 2000, and optimistic projections suggest at least as many people will file claims in the future. The cost to U.S. businesses is estimated at $54 billion thus far and could grow by another $210 billion" (Carroll, 2002). Even though American industry substantially reduced asbestos use decades ago, and asbestos-related deaths are dropping, new claims are actually increasing. Currently more than 200,000 claims for asbestos injuries jam dockets in U.S. courts, including more than 34,000 in Cuyahoga County, which includes Cleveland (Hudak, 2002).

The vast majority of current claimants are current or retired factory, railroad and shipyard workers, solicited through union rolls or newspaper ads (Schmitt, 2001; Berenson, 2002; Girion, 2002; Hudak, 2002; Brickman, 2004). Told asbestos was in their plant or workplace years ago, they are offered a free screening chest x-ray. This chest x-ray is then interpreted by physicians certified by National Institute of Occupational Safety and Health (NIOSH) as "B-readers" (so called because they pass Part B of a test on x-ray interpretation). B-readers are hired by plaintiff attorneys specifically to find asbestos-related disease; as a result, the chest x-rays are not read blindly, but always with knowledge of some asbestos exposure and that the lawyer wants to file litigation on the worker’s behalf.


With a "certified" diagnosis in hand, and a willing claimant, lawsuits are filed, often dozens per claimant (Parloff, 2002; Berenson, 2002; Hudak, 2002; Carroll, 2002, Setter, 2003; Brickman, 2004). The sued companies can either fight the claims or settle them. Most sued companies settle without going to trial or medically challenging the alleged diagnoses (Parloff, 2002; Carroll, 2002).


An unintended consequence of quickly settling mass claims is that more and more workers and ex-workers are recruited for class action lawsuits, eventually overwhelming the ability of companies to pay the claims. To date 60 companies have claimed bankruptcy because of asbestos litigation, 22 of them in the last two years. At the same time it is widely acknowledged that most of these attorney-solicited claimants are not ill and have no demonstrable impairment from asbestos. Because so many companies that actually mined or manufactured asbestos products have gone bankrupt or out of business, plaintiff attorneys have casted a wider net for companies to sue. (Carroll, 2002)

The result is tens of thousands of claimants who are not ill suing thousands of companies that, more and more, are only peripherally (often through mere acquisition) related to the old asbestos industry (WSJ, 2001). As one defense lawyer noted, "You've got people who are not sick suing people who never made the stuff" (Hudak, 2002). One consequence is that workers truly harmed by asbestos (e.g., patients with mesothelioma) are often under compensated, or suffer delayed compensation, because of the huge volume of non-ill claimants (and with questionable diagnoses) clogging the courts (Berenson, 2002; Crenshaw, 2002; Carroll, 2002[p. 85]; Hensler, 2002; Hudak, 2002; Parloff, 2002; Taylor, 2002; Thomas, 2002; Setter, 2003; Brickman 2004). 'Scam', 'swindle' and 'fraud' are just some of the terms used to characterize this unfortunate state of affairs.

The Medical Problem

The legal morass presented by mass asbestos claims will likely not be fixed without legislative action (Asbestos Alliance, 2002; Carroll, 2002; Hudak, 2002; Martin, 2002; Parloff, 2002). Yet it is also a "medical" problem, for two reasons: physician complicity, and the silence of organized medicine.

First, mass attorney-instigated claims of disease could not go forward without the complicity of physicians who have hired themselves out to plaintiff attorneys. Despite NIOSH-defined standards, B-reading for pneumoconiosis is highly subjective (Ducatman, 1988); when you are paid to read chest x-rays as abnormal, subjectivity will naturally favor excessive diagnosis.

The potential for abuse is obvious. According to one physician who has worked as a plaintiff's B-reader, more money is paid for an abnormal than normal chest x-ray reading, and in some cases chest x-rays are shopped around to other B-readers until the attorney gets the reading desired (Egilman, 2002).

Not surprisingly, blinded review of screening chest x-rays reveals that a substantial percentage are over interpreted for asbestos lung disease (Reger, 1990; Houser, 2002; Brickman, 2004). In one study of 439 tire workers designated as having an abnormal chest x-ray due to inhaled asbestos, an independent panel of three radiologists could only confirm that diagnosis in less than 4% (Reger, 1990).


Over-diagnosis has also been my experience in examining individual claimants ( Martin, 2002).

• The vast majority of chest x-rays in claimants I have examined do not meet ATS standards for diagnosis set in 1986 (ATS, 1986). In B-reader parlance, this is "1/1", which means the x-ray unequivocally manifests small opacities consistent with (but not diagnostic of) pneumoconiosis. Instead, the vast majority of screening x-rays (for which asbestosis is claimed) are read as "1/0", which means the x-ray on first impression is abnormal ("1"), but may be normal ("0").

• Defense-hired B-readers can (and usually do) read these "1/0" chest x-rays as not showing pneumoconiosis ("negative"), indicating (at least) room for disagreement. The problem is that plaintiffs' experts state "with reasonable medical certainty" that their "1/0" reading indicates asbestosis, even though "1/0" is (by NIOSH standards) equivocal. In fact, a single screening chest x-ray read as showing small opacity profusion (especially the most common "1/0") does not suffice to diagnose asbestosis, as there are multiple other causes, including smoking (Rosenberg, 1997; Weiss, 1984; Weiss, 1991; Dick, 1992, Meyer, 1997). Likewise, there are multiple causes of pleural shadows (Light, 2001), including obesity (Lee, 2001).

  Most lawsuits are generated from diagnosis based on a single chest x-ray, taken and then intepreted by a plaintiff-hired expert. As a proper method for diagnosis of any disease, including asbestos disease, this method is simply indadequate (Lawson 2001, Ross 2003). As one physician has written: "The clinical diagnosis of asbestosis in this century requires more than a chest radiograph" (Ross 2003).

• Available medical records on individual claimants often belie the diagnosis. For example, in many cases a chest CT scan, considered more sensitive than a routine chest x-ray, is negative for any asbestos disease. In other claimants multiple chest x-rays unrelated to the litigation are discovered that were never read by independent radiologists as showing any interstitial disease.

• Apart from the problems with chest x-ray interpretation, in the case of asbestosis the majority of claimants I have examined do not meet any of the other criteria published by the American Thoracic Society (ATS); these include abnormal pulmonary function tests attributable to dust inhalation, and documented history of significant asbestos exposure (American Thoracic Society, 1986). As one editorialist has pointed out, referring to criteria promulgated by the ATS: "The problem of over diagnosis, if it exists, is not any failure of these criteria, but only a failure to apply them." (Beckett, 1997)

Interestingly, claimants' own treating physicians are usually unaware of the "diagnosis" of asbestos-related disease. In fact, asbestosis, a disease now rarely seen by practicing pulmonologists, is being claimed by tens of thousands of people! For all practical purposes, for most asbestos claims today the diagnosis was borne out of a legal impetus and remains confined solely to the legal arena. For the relatively few cases that are litigated in court, the medical issues come down to a battle of physician "experts," each of whom has been hired by one side or the other. Bias can be claimed on both sides, of course, and before a lay jury one expert's B-reading may be viewed as valid - or invalid - as another's.


In a legal argument, my experience and comments would no doubt be discounted as testimony of a biased witness. But it is hard to see how any objective analyst could not agree that there has to be a better way to screen for asbestos disease, one that minimizes inherent bias (on either side), and facilitates settling of legitimate claims. Otherwise you end up with 'junk science' in the courtroom (Bernstein 2004).

If the diagnosis really mattered medically, or if legal standards demanded an objective method of diagnosis, the best approach would be to have all chest x-rays read blindly. This could be accomplished by an impartial panel of B-readers paid out of a common fund, and not directly by plaintiff or defense attorneys (Martin, 2002). A percentage of x-rays sent for blind reading (perhaps 25%) should come from middle-aged men without any history of occupational dust exposure.

Agreement on equivocally abnormal chest x-rays in asbestos-exposed claimants could be followed up with a high resolution chest CT scan (Lynch, 1995), also read blindly. Radiologically-abnormal claimants (with or without a chest CT scan) could then be examined by physicians experienced with pneumoconioses (perhaps also with NIOSH certification, like chest x-ray B-readers). These clinicians would also be paid from the same common fund, and not be beholden to attorneys for either side. Only in this way can essential criteria for diagnosing asbestos disease -- abnormal chest x-ray or CT scan, requisite exposure history, exclusion of confounding factors (Lynch, 1995; Rosenberg, 1997) -- be fulfilled without undue bias. Unfortunately, mass asbestos litigation is not about making a medically-correct diagnosis, or objective assessment, but about compensating the greatest number for any past asbestos exposures, no matter how trivial or incidental (Brickman, 2004).


For these reasons -- over interpretation of chest x-ray and false assumption that any abnormal reading = asbestos disease -- the asbestos-related diagnoses rendered by plaintiff-hired physicians, in the aggregate, carry no epidemiologic validity. (A 2004 article in the medical journal Chest would seem to validate these attorney-paid-for diagnoses, since it takes them all at face value, without any objective assessment; I have written elsewhere on the internet that this Chest article is 'junk science', and should be retracted.) Only a situation where chest x-rays are read blindly, and followed up as necessary with a chest CT scan and thorough examination for confounding factors, can erase the stigma of diagnoses for hire.


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The current situation is also a medical problem because our medical organizations have been silent about the increasing abuse of diagnostic standards. I am not suggesting that any medical organization should take a legal position. However, it is most disturbing that two publications in 2004, by the American College of Chest Physicians (in journal Chest) and the American Thoracic Society (in Journal of Respiratory and Critical Care Medicine) seemed to support the asbestos scam, since they accepted its diagnoses as prima facie legitimate. Issues raised by these two articles are discussed in the following web sites:

• Medical Journal Publishes 'Junk Science' Asbestos Article

• American Thoracic Society Publishes Biased, Flawed Review of Non-Malignant Asbestos Disease



ATS and ACCP are not alone. Neither the American Medical Association (AMA), the American College of Radiology (ACR), nor any other American medical group has tackled the problem, authored an editorial, or addressed the abuse of diagnosis that is now so rampant. In 2004 a landmark article appeared that further demolishes the phony asbestos readings, and it was accompanied by an editorial hinting at widespread abuse (Gitlin, et al., and Janower & Berlin).


Lack of medical involvement in these issues has allowed the legal profession to co-opt diagnostic standards for asbestos lung disease. One result is the directly-stated or inferred assumption by journalists and non-medical analysts that the principal medical argument in mass claims is about impairment, and not about diagnosis. The assumption is that all or most asbestos claimants do have 'something asbestos-related' on chest x-ray, leaving the main argument over whether "healthy" or "unimpaired" asbestos-injured people should be compensated (Berenson, 2002; Carroll, 2002; Girion, 2002; Glater, 2002; Hudak, 2002; Kook Sim, 2001; Parloff, 2002; Schmitt, 2001; Sherrid, 2001). In the lay media, legitimacy of diagnosis or extent of chest x-ray over-interpretation may be peripherally discussed, but are never presented as central issues.


Even the RAND Institute for Civil Justice, a prestigious group that has long written dispassionately about asbestos litigation, has failed to clearly focus the medical issues. In one section of their lengthy Interim Report, the RAND authors comment on a study by the Manville Trust to the effect that “approximately 50% [of chest x-rays] failed independent B-reader review.” Continuing in the very next paragraph, the authors write: "Several more recent studies have found fractions of unimpaired claimants ranging from two-thirds to up to 90% of all current claimants. Because most of these studies were commissioned by defendants and because the issue is central to the asbestos litigation controversy, their findings are hotly contested" (Carroll, 2002).


That is the extent of mention about possible erroneous diagnosis of these mass claims, and even that discussion seems to confuse 'over-diagnosis' with 'unimpaired claimants'. (No peer-reviewed medical literature is cited in this section. Also, though the authors conducted 60 lengthy interviews to prepare their report, none was apparently with physicians.) If RAND's experts seem unaware of the full extent of over- and mis-diagnosis in these claims, one can expect no better from the journalism profession - or the lay public in general.


My point is that the absence of peer-reviewed comment and analysis by the medical establishment (ATS, ACCP, AMA, ACR, et. al.), as opposed to a few isolated medical articles (Dick, 1992; Ducatman, 1988; Egilman, 2002; Meyer, 1997; Reger, 1990; Rosenberg, 1997; Weiss, 1984; Weiss, 1991), has made methodology of diagnosis in these mass claims almost a non-issue, when it should be a major one. To underscore that point, the RAND Institute estimates that “at best, only about half the final number of claims has come forward” (Carroll 2002). The medical profession needs to enter the fray and at least make clear some standards for diagnosis.


While researching this article I learned that an ATS panel is meeting to produce an updated Statement on non-malignant asbestos diseases, due out in mid-2003 (Malanga, 2002). This is long overdue, but the effort should not preclude other organizations from also addressing the issues. In my opinion, any official statement should accomplish the following: 1) discuss the origin and original purpose of the B-reading program, and the current use and abuse of the screening chest x-ray in diagnosing pneumoconiosis; 2) advocate blinded chest x-ray interpretation in mass screenings for asbestos disease; 3) address the role of high resolution chest CT scanning in the diagnosis; 4) provide a state of the art review of extant literature on diagnosis, including the 1986 ATS and 1997 Helsinki papers; 5) make specific recommendations for medically-sound diagnosis of asbestosis and asbestos pleural disease; and, not least, 6) reveal each author’s conflict of interest, if any, regarding personal involvement with asbestos litigation. Let’s hope that the highly charged, litigious nature of asbestos diagnoses does not thwart fulfilling these recommendations.

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References

American Thoracic Society. The diagnosis of nonmalignant diseases related to asbestos. Am Rev Resp Dis 1986; 134:363-368.


Asbestos Alliance. Experts Speak Out: The Asbestos Problem
www.asbestossolution.org/experts.html


Asbestos, asbestosis, and cancer: The Helsinki criteria for diagnosis and attribution. Scand J Work and Envir Health 1997;23:311-16.


Beckett WS. Diagnosis of asbestosis: Primum non nocere (editorial). Chest 1997;111:1427-1428.


Berenson A. A surge in asbestos suits, many by healthy plaintiffs. New York Times, April 10, 2002; page A1.


Bernstein DB. Keeping junk science out of asbestos litigation. Pepperdine Law Review, Volume 31, No. 1, 2004; 11-28.


Brickman L: On the Theory Class's Theories of asbestos litigation: Disconnect between scholarship and reality. Pepperdine Law Review, Volume 31, No. 1, 2004; 33-170.


Carroll S, Hensler D, Abrahamse A, Gross J, White M, Ashwood S, Sloss E. Asbestos Litigation Costs and Compensation: An Interim Report. RAND Corp, Santa Monica, CA, 2002.
www.RAND.org/publications/DB/DB397


Crenshaw AB. For asbestos victims, compensation remains elusive. Washington Post, September 25, 2002; page E01.


Dick JA, Morgan WK, Muir DF, Reger RB, Sargent N. The significance of irregular opacities on the chest roentgenogram. Chest 1992;102:251-260.


Ducatman AM, Yang WN, Forman SA. 'B-Readers' and asbestos medical surveillance. Journal of Occupational Medicine 1988; 30:644-647.


Egilman D. Asbestos screenings. Amer J Indust Med 2002;42:163.


Gitlin JN, Cook LL, Linton OW, Garrett-Mayer E. Comparison of “B” readers’ interpretations of chest radiographs for asbestos related changes. Academic Radiology 2004;11:843-856. (See also Editorial by Janower & Berlin, below)


Girion L. Asbestos suits become more widespread. Los Angeles Times, September 26, 2002.;


Glater JD. Defending a United Detroit on Asbestos. New York Times, November 3, 2002.


Hensler DR. As time goes by: Asbestos litigation after Amchem and Ortiz. Texas Law Review 2002;80:1899-1924.


Houser PG: Affadavit in Manville Personal Injury Settlement Trust Medical Audit Procedures Litigation, 98 Civ. 5693, March 13, 1999, p. 9; quoted in Carroll S, Hensler D, Abrahamse A, Gross J, White M, Ashwood S, Sloss E. Asbestos Litigation Costs and Compensation: An Interim Report. RAND Corp, Santa Monica, CA, 2002.
www.RAND.org/publications/DB/DB397; page 20.


Hudak S, Hagan JF. Asbestos litigation overwhelms courts. Cleveland Plain Dealer, November 5, 2002.


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Janower ML, Berlin L. "B" Readers' Radiographic interpretations in asbestos litigation: Is something rotten in the courtroom? Academic Radiology 2004;11:841-842.




Kook Sim Q. Asbestos claims continue to mount: Did broker of settlements unwittingly encourage more plaintiff’s suits? Wall Street Journal, February 7, 2001; page B1.


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Lee YC, Runnion CK, Pang SC, de Klerk NH, Musk AW. Increased body mass index is related to apparent circumscribed pleural thickening on plain chest radiographs. Am J Ind Med 2001 39:112-6.


Light RW. Pleural Diseases, fourth edition, 2001. Lippincott, Williams & Wilkins, Baltimore.


Lynch DA. CT for asbestosis: value and limitations. Amer J Roentgen 1995;164:69-71.


Malanga, Elisha, American Thoracic Society. Personal communication, November 11, 2002.


Martin L, 2002: Asbestos Lung Disease: A Primer for Patients, Physicians and Lawyers www.lakesidepress.com/Asbestos/asbestos/questions.htm


Meyer JD, Islam SS, Ducatman AM, McCunney RJ. Prevalence of small lung opacities in populations unexposed to dusts. A literature analysis. Chest 1997;111: 404-10.


Parloff R. The $200 billion miscarriage of justice. Fortune, March 4, 2002; 145:154-8.


Reger RB, Cole WS, Sargent EN, Wheeler PS. Cases of alleged asbestos-related disease: a radiologic re-evaluation. J Occup Med 1990;32:1088-90.


Rosenberg D. Asbestosis: A Realistic Perspective (editorial). Chest 1997;111:1424-26.


Ross RM. The clinical diagnosis of asbestosis in this century requires more than a chest radiograph. Chest 2003;124:1120-28.


Schmitt RB. Burning issue: How plaintiffs' lawyers have turned asbestos into a court perennial. Wall Street Journal, March 5, 2001; page A1.


Setter DM, Young KE, Kalish AL. Asbestos: Why we have to defend against screened cases. Mealey's Litigation Report, November 12, 2003;18:1-16.


Sherrid P. Looking for some million dollar lungs. U.S. News & World Report, December 17, 2001.


Taylor S, Jr. Greedy lawyers cheat real asbestos victims. The Atlantic Online.
www.theatlantic.com/politics/nj/taylor2002/-10-01.htm


Thomas L. Floor of asbestos lawsuits from people who aren't sick threatens to dry up funds. Pittsburgh Post-Gazette, November 3, 2002.


Wall Street Journal: The Job Eating Asbestos Blob (editorial). Wall Street Journal, January 23, 2002.


Weiss W. Cigarette smoking, asbestos and small irregular opacities. Am Rev Resp Dis 1984;130:293-301.


Weiss W. Cigarette smoking and small irregular opacities. Br J Indust Med 1991; 48:841-844.

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Copyright © 2002, 2003, 2004,

Lawrence Martin, M.D., FACP, FCCP


9000 Mentor Avenue
Mentor, OH 44060
440-974-4442

Revised November 20, 2004.

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