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THE UNITED STATES ASBESTOS SCREENING SCAM – REFERENCES and INTERNET SOURCES

“The tragedy of asbestos is compounded by its litigation history. A carcinogenic mineral has given rise to a malignant enterprise.”
   -- Lester Brickman, U.S. House Of Representatives Committee On The Judiciary, September 9, 2011

INTRODUCTION. Over the past 3 decades hundreds of thousands bogus asbestos claims have been generated by plaintiff attorneys, from all parts of the country. This has been made possible by a cadre of physicians, hired by the lawyers, who simply make up a diagnosis of asbestos disease when none exists. That the medical reports and resultant claims are largely bogus is not a secret, and the entire process is now often called the great 'Asbestos Screening Scam'. References in this web site provide all the details.

Lawyers (through their proxies) have for years solicited factory workers (or ex-workers) to come for free chest x-rays, such as with the ad shown here (from Reference 2008b). Next, a small cadre of plaintiff-attorney-hired physicians systematically mis-interpreted the chest x-rays in order to write bogus medical reports diagnosing asbestos disease (see Reference 2007a for a list of the most active physicians).

The medical reports are bogus because the asbestos diagnoses are not only pre-determined and boilerplate, but also because they abrogate basic rules of honest and objective diagnosis. For example: A retired factory worker develops lung cancer and in the course of diagnosis and treatment has numerous chest x-rays and several chest CT scans; not a single one of these chest x-rays or CT scans shows the slightest hint of asbestos disease. The patient's treating doctors never make an asbestos diagnosis, and the patient never voices any concern about asbestos disease. But a single chest x-ray of the patient -- taken before the lung cancer showed up -- is reviewed by a plaintiff-attorney-hired physician, who writes a report that "the diagnosis of asbestosis is established with reasonable medical certainty." This is boilerplate language and it is always the same: a diagnosis of asbestos disease "with certainty." Typical of these cases, the plaintiff-attorney-hired physician never looks at the numerous other x-rays or discusses alternative diagnoses. Yet this bogus medical report is then used to generate a cascade of asbestos claims and lawsuits for the retired factory worker, all of which must be adjudicated in court and/or administrative venues, such as Bureau of Workers' Compensation. (For analysis of how physicians game the system to write bogus medical reports, see Asbestos Scam - Analysis of Bogus Medical Reports.)

The numerous references below (some from the New York Times, Wall Street Journal and Fortune) attest that the scam is well known and documented. However unethical (2005e), the screening process has not been deemed illegal. Also, with rare exception, none of the participating physicians has been sanctioned or lost his medical license (for exception, see 2005a, 2009a). A watershed event occurred in 2005 when Federal Judge Janis Jack, ruling on silicosis screenings (a copycat of the asbestos scam: same process, same doctors) issued a scathing legal judgment (2005c, 2005d, 2006b, 2007b). Notwithstanding the publicity generated by Judge Jack's decision, and the general knowledge that the whole decades' long screening process has been one giant fraud, the phony medical reports continue to surface when ex-factory workers die or develop lung cancer or other illnesses. Not surprisingly, the medical accomplices then write new reports affirming that the cancer or death is 'due to asbestos with reasonable medical certainty'.

With heavy exposure asbestos can definitely cause lung scarring, lung cancer and death; however, confirmed cases are rare when compared against the hundreds of thousands of manufactured claims. When a legitimate diagnosis does surface among the boilerplate reports, it is remindful of the adage that 'a stopped clock is right twice a day'. (For examples of bogus and legitimate cases see Case Synopses of Actual Asbestos Claims.)

These references provide the genesis, mechanics and consequences of the asbestos screening scam. If an internet link is not provided the reference was obtained from LexisNexis, which charges a fee for legal documents. Regardless of source, all references are in the public domain. Note the descriptions used in these references: “specious medical evidence” (2003); “recruited asbestos claims” (2006a); “bogus medical evidence” (2007b); “great screening scam” (2008a); "unscrupulous physicians (2008b); “scheming to file thousands of fraudulent asbestos-liability claims” (2011a).

Lawrence Martin, M.D.
Clinical Professor of Medicine
Case Western Reserve University School of Medicine
Cleveland, Ohio

United States Asbestos Screening Scam

Legal and Medical Articles, Commentary and News Articles (in chronologic order by year published)

2002

[In this talk Professor Brickman provides a concise history of the asbestos screening scam, from its beginnings up to 2002]

2003

From pages 2-3

“On the basis of my research, I have concluded that the substantial portion of asbestos litigation--upwards of 80% of claims being made in recent years and 90% currently--mostly consists of former industrial and construction workers:

(1) recruited by an extensive network of entrepreneurial screening companies which are employed by lawyers to “screen” hundreds of thousands of potential litigants each year at local union halls, hotel and motel rooms, shopping center parking lots, and other locations throughout the country;

(2) asserting claims of injury though they have no medically cognizable injury and usually cannot demonstrate any statistically significant increased likelihood of contracting an asbestos related disease in the future;

(3) in a civil justice system that has been significantly modified to accommodate the interests of these litigants by dispensing with many evidentiary requirements and proof of proximate cause;

(4) mostly in forum-shopped jurisdictions, where judges and juries often appear aligned with the interests of plaintiff lawyers;

(5) often supported by specious medical evidence, including: (a) evidence generated by the entrepreneurial medical screening enterprises and B-readers--specially certified X-ray readers that the enterprises or plaintiff lawyers select, who often conform their findings and reports to the expectations of the plaintiff lawyers who retain them, and (b) pulmonary function tests (PFTs) which are often administered in violation of standards established by the American Thoracic Society and result in findings of impairment which would not be found if the tests were properly administered…”

2004a

[Below is the complete PubMed Abstract of this important study. Plaintiff-attorney-hired B-readers found evidence for asbestos disease in 95.9% of several hundred films. Objective radiologists from Johns Hopkins found only 4.5% were abnormal. This study is also discussed in 2008b.]

RATIONALE AND OBJECTIVES: The purpose of this study was to determine if chest radiographic interpretations by physicians retained by attorneys representing persons alleging respiratory changes from occupational exposure to asbestos would be confirmed by independent consultant readers.

MATERIALS AND METHODS: For 551 chest radiographs read as positive for lung changes by initial "B" readers retained by plaintiffs' attorneys, 492 matching interpretative reports were made available to the authors. Six consultants in chest radiology, also B readers, agreed to re-interpret the radiographs independently without knowledge of their provenance. The film source, patient name, and other identifiers on each film were masked. The International Labor Office 1980 Classification of Chest Radiographs(ILO 80) was used with forms designed by the US National Institute of Occupational Safety and Health to record the consultants' findings. The results were compared with initial readings for film quality, complete negativity, parenchymal abnormalities,small opacities profusion, and pleural abnormalities using chi-square tests and kappa statistics.Results. Initial readers interpreted study radiographs as positive for parenchymal abnormalities (ILO small opacity profusion category of 1/0 or higher) in 95.9% of 492 cases. Six consultants classified the films as 1/0 or higher in 4.5% of 2,952 readings. Statistical tests of these and other comparable data from the study showed highly significant differences between the interpretations of the initial readers and the findings of the consultants.

CONCLUSION: The magnitude of the differences between the interpretations by initial readers and the six consultants is too great to be attributed to interobserver variability. There is no support in the literature on x-ray studies of workers exposed to asbestos and other mineral dusts for the high level of positive findings recorded by the initial readers in this report.

2004b

[This editorial accompanied the Gitlin, et al study in the previous reference. The answer to the questions -- posed in the editorial's title and in the paragraph below -- are undoubtedly ‘yes’ and 'yes'. Yet, astoundingly, this is the only medically-published editorial that even raises the specter of diagnostic fraud.]

"Multitudes of studies published over the past half century have shown up to a 30% variance in radiologic interpretations of the same chest radiographs. However, the fact is that none of these previously published studies have shown variations to the same extent as is shown in the article by Gitlin, et al...the article by Gitlin et al is disturbing, for it raises the question of whether objectivity and truthfulness among certain B-reader radiologists have been supplanted by partisanship and distortion of or departure from the truth driven by financial gain."

2004c

"Conclusions: Asbestos-induced lung disease today is characterized by low ILO scores, long latencies, greater disease magnitude in smokers, and a normal or obstructive pattern of pulmonary function abnormality."

[Sadly, though published in a reputable medical journal, this article is nothing more than "junk science." The journal's editors were too naive to recognize that the "diagnoses" came straight from the asbestos screening scam, rendering the conclusions meaningless. When I pointed this out in a well-reasoned letter to the editor, Chest's editor-in-chief refused to publish it, citing only "a backlog of letters." Even more sadly, this is not the only instance of medical journals dropping the ball in recognizing the scam (see 2005f). In fact, by its almost total silence, the academic medical community has unwittingly abetted this widespread medical fraud.]

2005a

“…The doctor, Ray A. Harron, now 73 years old, reviewed as many as 150 X-rays a day, or one every few minutes, and produced medical reports for $125 each. Some of his reports supported claims by more than 75,000 people seeking compensation for lung injury caused by inhalation of asbestos. For his work, he probably earned millions of dollars over the years…”
[Regarding Dr. Harron, see also 2007a, 2008b, 2009c, 2011a and 2011b.]

2005b

Page 3

"1. Venue Shopping. Plaintiffs filed huge numbers of asbestos lawsuits in selected state jurisdictions (Mississippi, Texas, Southern Illinois) noted for “runaway” jury verdicts.  Until recently, for example, plaintiffs could sue in Texas even though they themselves resided elsewhere, and had never been exposed to asbestos products in Texas."

"2. Mass Screenings. Labor unions, attorneys, and other persons with suspect motives caused large numbers of people to undergo X-ray examinations (at no cost), thus triggering thousands of claims by persons who had never experienced adverse symptoms."

"3. Erroneous X-ray Interpretations by Suspect B-readers. The interpretation of lung X-rays is more of an art than a science, and equally skilled B-readers can disagree as to the correct interpretation. Plaintiffs invariably selected B-readers who were prone to find asbestosis, whereas defendants tended to choose conservative B-readers. Certain pro-plaintiff B-readers were so biased that their readings were simply unreliable." (John P. Fullam, Sr. Judge, March 31, 2005).

2005c

[This Fortune article is in reference to the opinions in court by Federal Judge Janis Jack, which were published shortly after this article appeared; see 2005d.]

"At a hearing in February, U.S. District Judge Janis Graham Jack characterized the evidence before her as raising "great red flags of fraud," and a federal grand jury in Manhattan is now looking into the situation, according to two people who have been subpoenaed.

"The real importance of those proceedings, however, is not what they reveal about possible fraud in silica litigation but what they suggest about a possible fraud of vastly greater dimensions. It's one that may have been afflicting asbestos litigation for almost 20 years, resulting in billions of dollars of payments to claimants who weren't sick and to the attorneys who represented them. Asbestos litigation--the original mass tort--has bankrupted more than 60 companies and is expected to eventually cost defendants and their insurers more than $200 billion, of which $70 billion has already been paid.

"The odor around asbestosis diagnosis has been so foul for so long that by 1999, professor Lester Brickman of the Benjamin N. Cardozo School of Law was referring to asbestos litigation as a "massively fraudulent enterprise." At the request of his defamation lawyer, Brickman says, he toned that down to "massive, specious claiming" when he published a 137-page, 526-footnote Pepperdine Law Review article on the topic. But little else was toned down in the piece; Brickman predicted that when the complete history of asbestos litigation was written, it would enter "the pantheon of such great American scandals as the Yazoo land scandals, Crédit Mobilier, Teapot Dome, Billy Sol Estes, the salad oil scandals, the savings and loan scandals, WorldCom, and Enron." "

2005d

[This is the key legal decision that put a monkey wrench in the screening scams for lung disease from inhaled dusts. It was about fraudulent diagnoses of silicosis, another type of lung disease from inhaled silica, but the methods and players were the same as with the asbestos scam. Several later references refer to this landmark case.]

From page 50:

“With respect to the staggering number of silica MDL Plaintiffs who also have made asbestosis claims, the implausibility of this was discussed supra with respect to N & M, who generated in excess of 4,000 silicosis diagnoses on individuals who previously made asbestosis claims. Looking beyond just N & M cases, at least 6,000 MDL Plaintiffs previously made asbestosis claims. It bears repeating that outside of the small cadre of doctors who diagnose for screening companies, even a single case of a dual diagnosis of silicosis and asbestosis is extremely rare...

…Based upon the evidence presented, the Court agrees.  The unsound nature of the diagnoses is betrayed not only by the opportunistic transformations of asbestosis reads into silicosis reads, but also by the improbable consistencies among the silicosis reads. Reader variability is most likely to occur on profusions (Feb. 18, 2005 Trans. at 137–38), and yet this is the one area where the B-readers were implausibly consistent.  In reviewing the 6,510 B-reads produced during Plaintiffs' initial disclosures, over 92 percent of the profusions were 1/0 or 1/1, while less than 2 percent were 2/1 or greater (i.e., 2/1, 2/2, 2/3, 3/2, 3/3, or 3/+)…As recounted above with respect to Dr. Ballard and Dr. Oaks, the consistencies in profusion “defies all statistical logic and all medical and scientific evidence of what happens to the lung when it's exposed to workplace dust.” (Feb. 18, 2005 Trans. at 81–82.)  Similarly, Dr. Coulter's findings in 237 out of 237 cases that the Plaintiffs’ silicotic opacities were found in the lower lobes is “so unlikely as to not be possible.”…Finally, it is worth noting that this evidence of the unreliability of the B-reads performed for this MDL is matched by evidence of the unreliability of B-reads in asbestos litigation.  In a study published in Academic Radiology, the authors set up a blinded panel of B-readers to interpret 492 chest x-rays previously read by physicians employed by plaintiffs’ lawyers in asbestos litigation.  The plaintiffs' doctors had found that 95.9 percent of the xrays were positive for changes consistent with asbestos.  The blinded panel, however, found that only 4.5 percent of the x-rays had changes consistent with asbestosis…” (Judge Janis Jack)

2005e

Pages 911-912

"VIII. CONCLUSION

Given the massive numbers of specious claims that make up the bulk of asbestos litigation and the likelihood that a substantial portion of these specious claims are fraudulent, it may not be surprising that plaintiff lawyers who account for the bulk of these claims appear largely immune from both legal process and ethical rules. Even so, the pervasiveness of the absence of application of ethical rules to asbestos litigation and to a large extent, to asbestos bankruptcy proceedings as well, can only stand as an indictment of the courts, disciplinary authorities and indeed, the legal profession. On the defense side, the enumerated failures to seek apportionment of liability appear to be a largely underappreciated agency cost. The paucity of discussion of these phenomena in the legal literature suggests that a dense fog has descended over asbestos litigation, obscuring much of it from plain view. It remains to be seen whether piercing that fog—as I have intended to do in this article, will pave the way for others to follow. To this point, however, rules of legal ethics remain largely inapplicable to asbestos litigation—apparently a victim of the vast sums of money that are at stake."

2005f

"I had hoped that the long-awaited ATS update on diagnosis of nonmalignant asbestos diseases (1) would be thorough and point out the diagnostic abuse of mass asbestos claims. Instead, key references are omitted and some of the statements seem slanted toward supporting these claims. This is unfortunate when one considers the growing evidence that most of these claims are medically specious..."

[This letter, the first paragraph of which is quoted above, is in reference to the official 2004 American Thoracic Society Statement on Diagnosis and Initial Management of Nonmalignant Diseases Related to Asbestos (e.g., asbestosis). The long-awaited Statement was authored by a committee that had well-documented conflicts of interest, resulting in an article that lent support to the asbestos screening scam! Though ATS was and is an eminent medical organization, in this case the organization was co-opted by wholly biased, plaintiff-oriented physicians. For a detailed analysis of the ATS statement see an unpublished paper I wrote: The 2004 ATS Statement on Asbestos Disease Diagnosis: Scientific and Ethical Problems.]

2005g

[In this 2005 talk I discussed the failure of the medical community to acknowledge and criticize the scam, citing the articles in Chest (2004b) and AJRCCM (2000f).]

2006a

"Mass recruited claims caused the bankruptcy wave of asbestos defendants that began in 2000 and eventually resulted in the bankruptcy of more than 40 companies. Prior to 2000, more than half of all asbestos-related expenditures were for mass recruited non-malignant claims. Today, we know that these recruited claims were based on questionable medical diagnoses, many of which were out-right fraudulent.

"The revelation of these fraudulent diagnoses, coupled with key changes in the tort environment, has lead to the cessation of mass recruitment. As we will explain below, these mass recruited claims may eventually cost defendants, their insurers, and seriously injured asbestos claimants $50 billion..."

2006b

“On June 30, 2005, United States District Court Judge Janis Graham Jack for the Southern District of Texas, issued a 249-page Order regarding the 111 silica cases — totaling over 10,000 individual plaintiffs — before her in the federal multi-district silica litigation. That opinion (commonly referred to as “Order No. 29”), followed three days of testimony from the handful of doctors who purportedly “diagnosed” thousands of those plaintiffs with silicosis. Judge Jack condemned the mass screening process used to generate the silica claims and found that virtually every plaintiff’s diag­nosis had been “manufactured for money.”  Judge Jack ultimately concluded that the methodology used to diagnose the plaintiffs was “not sufficiently reli­able,” describing the process as “assembly line diagnosing” and “an ingenious method of grossly inflating the number of positive diagnoses.” ”

2006c

From pages 4-5:

“The second subpopulation is quite different. These are claimants who have been “diagnosed” via medically deficient procedures and may or may not have had exposure to asbestos sufficient to cause their purported symptoms or conditions.  Such claims, if forced through any meaningful evaluation, would be worthless. These “false positive” cases exist by virtue of the perverse economic incentives that are created when the huge number of claims overwhelms the adjudication process.

“In the world of asbestos, people without any existing conditions are encouraged to go through a short-form screening process by suggestions that they might receive substantial economic benefits. Marginally qualified personnel, miscalibrated testing equipment, test subjects who are subtly or otherwise informed what their test results need to be for purposes of compensation, and overarching conflicts created by economic incentives for “positive” diagnostic results coalesce to create large numbers of claims that have value only in the absence of diagnostic standards or other merits-based filters.  These claims are then bundled together and filed in jurisdictions that are viewed as offering special advantages to plaintiffs.”

2006d

"CSX last year turned the legal tables on its nemesis -- Pittsburgh-based plaintiffs firm Peirce, Raimond & Coulter -- filing a lawsuit against it and an employee alleging fraud, misrepresentation and negligence. The tale is a modern tort classic. It begins early 2000, when CSX employee Ricky May learned that the Peirce firm was going to conduct an asbestos "screening" in June...Enter Robert Gilkison, a former CSX employee. According to the lawsuit, the Peirce firm occasionally hires retired rail emplyees as "runners," or people who round up former colleagues for lawsuits. The suit alleges that, faced with Mr. May's unfortunate good health, Mr. Gilkison sugested that Mr. May get someone who had previously tested positive for asbestosis to impersonate him at the June exam.

"Mr May then recruited Danny Jayne -- a CSX employee who'd been "diagnoed" with asbestos in 1999 - to sit for his June X-ray. Mr. Gilkison is alleged to have facilitated all this, allowing Mr. May to compete the necessary forms but then walking Mr. Jayne throught the exam. Mr. Jayne later received a settlement of $7000 from CSX, while Mr. May received $8000. Turncoat employees, mass screenings, medical impersonations -- this is already the stuff of bad thrillers, but it gets worse...Suspecting foul play, CSX did some investigting and had a doctor verify that the May and Jayne X-rays were in fact of the same man..."

[This WSJ editiorial provides background for a case of asbsetos screening fraud that is still winding its way through the courts; see 2011a and 2011c.]

2007a

"In connection with the W.R. Grace bankruptcy, I have evaluated the reports and diagnostic practices of various doctors who have submitted medical records or reports in support of Grace Claimants.  I have also evaluated the methodologies of these physicians and the screening companies who employed them.  I also reviewed deposition transcripts, court documents and other materials.

"The doctors I have evaluated were:  Dr. James Ballard, Dr. Kevin Cooper, Dr. Todd Coulter, Dr. Andrew Harron, Dr. Glyn Hilbun, Dr. Richard Kuebler, Dr. Larry Mitchell, Dr. Barry Levy, Dr. George Martindale, Dr. Gregory Nayden, Dr. Walter Allen Oaks, Dr. Robert Altmeyer, Dr. Jeffrey Bass, Dr. Richard Levine, Dr. Jay Segarra,  Dr. Dominic Gaziano, Dr. Alvin Schonfeld, Dr. Leo Castiglioni, Dr. Phillip Lucas,  Dr. Robert Mezey, Dr. James Krainson, Dr. Paul Venizelos and  Dr. Robert Von McGee…These doctors purport to diagnose asbestos-related disease, or issue reports which function as diagnosing reports, in a litigation context…A number of asbestos Trusts have concluded that many of these doctors are unreliable or unqualified and have ceased accepting their medical reports or conclusions in support  of claims…Many of these doctors have begun to distance themselves from their diagnoses and opinions…Many of these doctors used improper or scientifically unsound methods and practices…There are doctors who have worked extensively with companies who performed mass screenings for occupational lung disease injuries in a litigation context…Below is a discussion of these doctors, their affiliations with screening companies and their practices and methodologies."

2007b

Pages 514-517

“In 2005, U.S. District Court Judge Janis Jack, presiding over a multi-district litigation involving 10,000 claims of injury from exposure to silica dust that were generated by litigation screenings, issued a 263 page opinion rejecting the validity of thousands of medical reports generated by those screenings...

“In her opinion,Judge Jack documented in great detail the existence of a fraudulent scheme to create bogus medical evidence that led her to conclude that “it is apparent that truth and justice had very little to do with these diagnoses. . . . [Indeed] it is clear that lawyers, doctors and screening companies were all willing participants” in a scheme to “manufacture . . . [diagnoses] for money.”

Pages 518-522

"The core of the “entrepreneurial” model of nonmalignant asbestos litigation that I described is an unprecedented-in-scale litigant recruitment effort: the litigation screening. Entrepreneurial screening companies have been hired by lawyers to seek out persons with occupational exposure to dusts such as those containing crystalline silica or asbestos. Mobile X-ray vans are brought to local union halls, motels, or strip mall parking lots, where X-rays are taken on an assembly line rate of one every five to ten minutes. In addition to the X-rays, most screening companies also administer pulmonary function tests (PFTs) to determine lung impairment for the sole purpose of generating evidence for litigation purposes.

"The sole object of these screenings is to generate medical reports to be used to support claims of asbestosis, a scarring of the lung tissue caused by exposure to asbestos. In the 1988-2006 period, well over 90% of the approximately 585,000 nonmalignant claims for compensation filed with the Manville Trust were generated by these litigation screenings."

[Dr. Brickman's next 2 paragraphs precisely describe the bogus nature of these plaintiff-attorney-hired medical reports.]

"To read the hundreds of thousands of chest X-rays and pulmonary function tests generated by the litigation screenings and to produce the massive numbers of medical reports needed to advance the scheme, plaintiffs’ lawyers and the screening companies have hired a small number of doctors who share one common characteristic: their apparent willingness to enter into business transactions with lawyers and screening companies for the sale of tens of thousands of X-ray readings and diagnoses in exchange for the payment of millions of dollars. These X-ray readers, usually radiologists and pulmonologists, have been certified by the National Institute for Occupational Safety and Health (NIOSH) as B Readers, which is an indication of special competence in reading chest X-rays and classifying them on the International Labour Organization (ILO) scale. A small number of B-Readers, perhaps 4-6% of all certified B Readers, are most frequently selected by plaintiffs’ lawyers to read most of the hundreds of thousands of X-ray films generated by screenings. These B Readers grade most of these X-rays as 1/0 on the ILO scale and describe their findings of radiographic evidence of fibrosis as “consistent with asbestosis.” Along with a small number of other doctors, they diagnose the vast majority of litigants thus found to have lung profusions of 1/0 or greater as having mild asbestosis (or silicosis—if that is the purpose of the screening, or both asbestos and silicosis.) These B Readers and other doctors, numbering approximately twenty-five, have accounted for a dramatically disproportionate percentage of the total number of X-ray readings and medical reports that have been submitted as evidence in support of nonmalignant asbestos personal injury claims. Indeed, the reliance on a small number of B Readers and diagnosing doctors is a defining characteristic of the “entrepreneurial” model.

"...Based on the evidence I examined, I concluded that the majority of the hundreds of thousands of medical reports generated by the litigation screenings were not the product of good faith medical practice; rather they were produced in the course of business transactions involving the sale of X-ray readings and diagnoses for tens of millions of dollars in fees. I opined that the vast majority of those diagnosed with asbestosis would not have been found to have an asbestos related disease if they were examined in a clinical setting by doctors without a financial stake in the litigation."

Pages 588-591

“A review of the evidence emerging from a search of the files in the depository created by Judge Jack for documentary evidence obtained during the course of discovery in the silica MDL, as well as other evidence, permits an assessment of the reliability of X-rays readings and diagnoses of asbestosis and silicosis generated in the course of litigation screenings. Litigation screenings have accounted for substantially all of the 585,000 nonmalignant claims filed with the Manville Trust between 1988 and 2006. Under the illegitimate “entrepreneurial” model, a comparative handful of doctors, numbering approximately 25, have accounted for the majority of the hundreds of thousands of medical reports generated by litigation screenings.

“Perhaps the single most important finding presented is the rate of positive readings of X-rays by these litigation doctors. On the basis of the evidence reviewed in this Article, I estimate that the litigation doctors read 50%-90% of the X-rays generated by litigation screenings as indicating radiographic evidence of fibrosis graded 1/0 or higher on the ILO scale, which they find are “consistent with asbestosis.” In addition, I estimate that 80% or more of this group are then diagnosed with asbestosis “within a reasonable degree of medical certainty.” Because “failed” X-rays and diagnoses are reread and by other litigation doctors, it is likely that the actual rates of positive X-ray readings and diagnoses are higher...

“…The evidence reviewed in this Article indicates that Judge Jack’s findings with respect to silica litigation, applies with at least equal force to nonmalignant asbestos litigation: the diagnoses are mostly manufactured for money.”

2007c

[In his testimony Prof. Brickman discusses how the asbestos scam machinery is also being used to generate phony silicosis claims.]

2007d

[Another news article about unethical physicians involved in the asbestos and silicosis screening scams.]

2007e

"Asbestos litigation also poses special costs due to fraud and abuse. The clearest examples come from lawyer-sponsored screening programs that recruit tens of thousands of mostly bogus asbestosis and other non-cancer claims. On September 12, 2005, the Manville Trust announced that it would no longer accept medical reports from nine doctors and four screening facilities involved in a massive alleged fraud pending completion of grand jury and congressional investigations, and several other trusts have followed Manville's lead. One of those doctors, Ray Harron of West Virginia, is reported to have read the xrays of more than 75,000 claimants since the early 1990s, accounting for approximately ten percent of all the claims ever filed.

"This kind of fraud is only the most obvious. Some lawyers representing plaintiffs have engaged in dubious practices to improve the testimony of their clients; such practices are particularly important in asbestos cases because of the long latency of asbestos diseases and the difficulty in establishing responsibility for (or even the existence of) long-ago exposures. 16 Even setting aside fraud and abuse, it is unreasonable to compensate hundreds of thousands of people exposed to asbestos, who may have physical markers of exposure, but who have no current impairment from a disease caused by asbestos exposure. Providing compensation to the “worried well” raises troublesome public policy questions in all mass tort settings. Whether or not it can be justified when there is enough money to satisfy all claims, the case *532 for compensating the unimpaired seems very weak if it results in limiting or preventing compensation to people with serious diseases.

"...In this article, we examine the twists and turns of asbestos litigation over the years and analyze the various attempts--and failures--to meet the challenge of compensating victims of asbestos exposure. In our view, a federal administrative compensation system, however unlikely, is in principle superior to the tort system, even with the reforms that have taken place the last three years."

2008a

“The evidence is overwhelming that these screenings were largely shams designed to identify as many individuals as possible as “impaired” with asbestos-related injury.  The plaintiffs’ lawyers only employed 4 to 6 percent of the nation’s certified B-readers.  Some were employed in staggering mass-production fashion: one doctor diagnosed some 88,000 patients, conducting 150 asbestos X-ray readings per day.  Unsurprisingly, many of the doctors who were most employed by the asbestos litigation machine later disavowed their diagnoses under oath or pleaded their Fifth Amendment-right against self-incrimination. Just how stacked were the screenings in favor of finding a positive diagnosis of injury? A study employing independent readers conducted by Johns Hopkins researchers looked at 492 X-rays processed by the screening clinics and found lung impairment in 4.5 percent of cases; the lawyers’ B-readers had identified asbestos-related injury in 95.9 percent of the exact same films.”

2008b

[This comprehensive, multi-page web site provides a detailed history and analysis of the asbestos screening scam. Especially helpful are several graphics, such as the ones shown here. With almost 300 references, this web site is highly recommended as the place to begin if you are just learning about the screening scam.]

"...This report describes Trial Lawyers, Inc.’s asbestos litigation business line in...detail. A flame retardant originally thought to be a “magic mineral,” asbestos ended up causing the death of thousands of individuals; likewise, litigation that originally sought redress for the truly injured metastasized into a big business that in too many cases recruited sham victims to beef up the plaintiffs’ bar’s bottom line.

"The business model underlying such abusive litigation uses sophisticated marketing to attract thousands of claimants, generates cases with flimsy medical diagnoses, and packages claims together to overwhelm defendants and courts. Ultimately, the attorneys bully besieged defendants into settlements that enrich Trial Lawyers, Inc., while leaving genuinely injured claimants high and dry.

"The overall cost of asbestos litigation is staggering, totaling over $70 billion in direct losses (see graph below) and bankrupting 80 companies. Of that $70 billion, fully $40 billion has gone to lawyers. And as those bankruptcies have moved corporate defendants out of Trial Lawyers, Inc.’s crosshairs, asbestos lawyers have targeted companies with ever more tenuous ties to asbestos’s manufacture. Ironically, then, much of modern asbestos litigation has involved the filing of lawsuits by individuals who aren’t sick against companies that never made the product alleged to have caused their sickness. Asbestos litigation today is thus exceptionally costly, extremely inefficient, and unfair to defendants and legitimate plaintiffs alike.

"In addition, asbestos litigation has threatened the very integrity of the legal system itself. As recently noted by Chief Judge Dennis Jacobs of the Second Circuit U.S. Court of Appeals, judges in asbestos litigation have all too often processed massive caseloads “without regard to whether the claims themselves are based on fraud, corrupt experts, perjury, and other things that would be deplored and persecuted by the legal profession if done within other commercial fields.” "

..."Tellingly, asbestos screening companies used only 4–6 percent of the nation’s limited number of B readers to handle hundreds of thousands of analyses, and all the screeners chosen seemed to find positive results with suspicious frequency. Just how suspicious? In 2004, Johns Hopkins radiologists looked at a sample of screening-clinic X-rays; whereas the lawyers’ B readers had identified lung abnormalities in 95.9 percent of 492 cases, independent readers hired by the Hopkins researchers found abnormalities in only 4.5 percent of the same cases (see graph below; the abstract of this 2004 paper is quoted in Reference 2004). After the B readers checked off a diagnosis form, they forwarded it to the screening company, which prepared what appeared to be individualized diagnosis letters, signed with a rubber stamp, that its nominal authors hardly ever saw.

"The volume of claims that some of the unscrupulous physicians processed is mind-boggling: beginning in the early 1990s, one doctor diagnosed more than 88,000 patients, performing as many as 150 readings a day. When later required to testify about them under oath, many of the screening doctors disavowed them or invoked their Fifth Amendment right against selfincrimination. The difference in economic value between the accurate clinical diagnoses and those from the most prolific screening doctors is striking—the lawyers’ inventoried claims are worth $30–$50 million more per 1,000 patients examined."

2009a

"It is going on four years since a Texas judge blew the whistle on widespread silicosis fraud, exposing a ring of doctors and lawyers who ginned up phony litigation to reap jackpot payouts.  So where's the enforcement follow-up?

That's an especially apt question given news that New York's State Board for Professional Medical Conduct has finally revoked the license of Dr. Ray Harron.  He was among the doctors who Texas Judge Janis Graham Jack showed had fraudulently diagnosed thousands of plaintiffs with silicosis, a rare lung disease. These doctors were later called to testify in Congress, where many, including Dr. Harron, took the Fifth Amendment.

Dr.Harron has since lost his medical licenses in California, New Mexico, Texas, Florida, North Carolina and Mississippi. This is progress, though hardly sufficient. Among the questions Congress asked state departments of health during the silicosis hearings were why those bodies hadn't moved to shut down these doctors and their mobile X-ray vans at the time they were committing medical malpractice.

New York is belatedly joining the queue, and its order stripping Dr.Harron of his license is particularly noteworthy. After outlining his unethical actions, and citing other medical boards that had denied him a new license, it summarized:  “[Dr. Harron] was part of an operation to find plaintiffs with silicosis whether or not they really had silicosis. This is perpetrating a fraud on the courts.” "

2009b

From pages 722-724:

“An American Bar Association Commission on Asbestos Litigation confirmed that claims filed by the nonsick generally arose from for-profit screening companies whose sole purpose was to identify large numbers of people with minimal X-ray changes consistent with asbestos exposure.  The Commission, with the help of the American Medical Association, consulted prominent occupational-medicine and pulmonary-disease physicians to craft legal standards for asbestos-related impairment.  The Commission found: “Some X-ray readers spend only minutes to make these findings, but are paid hundreds of thousands of dollars—in some cases, millions—in the aggregate by the litigation screening companies due to the volume of films read.”  The Commission also reported that litigation screening companies were finding X-ray evidence that was consistent with asbestos exposure at a “startlingly high” rate, often exceeding 50% and sometimes reaching 90%.

“Shortly thereafter, researchers at Johns Hopkins University compared the X-ray interpretations of B Readers employed by plaintiffs’ counsel with the subsequent interpretations of six independent B Readers who had no knowledge of the X-rays’ origins.10 The study found that, while B Readers hired by plaintiffs claimed asbestos-related lung abnormalities in almost 96% of the X-rays, the independent B Readers found abnormalities in less than 5% of the same X-rays—a difference the researchers said was “too great to be attributed to inter-observer variability.”

2009c

[The unraveling of the silicosis scam shed light on the long-standing asbestos screening scam, since the players and diagnostic processes were the same]

“Litigation over injuries due to the inhalation of respirable silica dust in the workplace skyrocketed beginning in 2001, raising concerns that silica litigation would become a mass tort with similarities to the asbestos litigation that had occurred in the previous 30 years. However, the silica litigation collapsed soon after the discovery of numerous abuses in the procedures used to diagnose the injuries.

The uncovering of grossly inadequate diagnostic practices was a significant success for the tort system in handling a mass tort. However, there is no guarantee that similar practices would be uncovered should they be used in the future. This report reviews the court proceedings that led to the uncovering of abusive diagnostic practices in silica litigation. The insights are then used to identify several areas in which changes in litigation practices and procedures could increase the likelihood that similar diagnostic practices would be uncovered in the future or prevented from occurring in the first place.

...We base our analysis on data and knowledge gained in previous RAND research on asbestos and other mass toxic tort litigation, a detailed review of the proceedings before Judge Jack, data on silica-related claims from a major defendant in the silica litigation, and interviews with 43 individuals who have been involved in various aspects of silica litigation or mass torts more generally.

...A sequence of events occurred in Judge Jack’s court that led to the exposure of gross deficiencies in the diagnoses underlying the silica claims in front of her. In January 2004, Judge Jack issued a discovery order that required each plaintiff to submit a sworn fact sheet specifying the plaintiff’s diagnosis and pertinent medical and diagnostic information, as well as the results of B-reads of chest x-rays. The fact sheets revealed that more than 9,000 plaintiffs were diagnosed by only 12 doctors and that a substantial fraction of the plaintiffs in the silica multidistrict litigation (MDL) had earlier filed claims for asbestos-related injuries.

...The impact of the ruling also spread to asbestos litigation. For example, the Manville Trust, one of the major trusts set up by the courts to pay asbestos claims, saw a major decline in claims and announced that it would no longer accept medical reports in support of asbestos claims from most of the doctors and testing facilities behind the diagnoses in the cases considered by Judge Jack. One of the doctors suspended by Manville, Ray Harron, had submitted documents in support of at least 53,724 of the approximately 680,000 claims that the Manville Trust had received through 2005.

...The federal court’s actions and the consequences of those actions clearly demonstrate that the tort system has the capacity to identify questionable claims in a mass-tort setting. However, one should not be too satisfied with the performance of the tort system in this regard. First, the diagnostic practices were attempted in the first place, and considerable time and expense were spent in exposing them. Second, the tort system does not appear to have been nearly so effective in the largest mass tort to date—asbestos litigation. For example, it is reasonable to suspect that many of the asbestos claims based on Harron’s reports relied on similar procedures used in silica litigation. There is thus no guarantee that similar practices would be discovered should they be used in the future. A number of factors worked in favor of uncovering diagnostic abuses in the silica litigation, and, absent the fortuitous alignment of these factors, litigation based on abusive diagnostic practices might have continued…”

2009d

[One notable problem with proposed "solutions" to the asbestos litigation crisis is the false assumption that most of the claims are legitimate, that although the claimants are not sick, they do have something in their chest x-ray to indicate a lurking asbestos condition. This is implied in the Fairness Act that was considered by Congress a few years ago (but did not pass), and which is the subject of this law review article. In fact, based on my experience and that of others (see Gitlin, et. al.), the vast majority of plaintiff-attorney-generated diagnoses are bogus, simply made up. I estimate that 90+% of the claims have no medical basis whatsoever: no asbestosis, no asbestos pleural disease, not even a history of friable asbestos exposure. Thus any "fair" adjudication plan has to start from scratch, with objective certifcation of each individual claim. No claim generated by the screening scam's participants should even be considered. Instead, every claim should go before an impartial panel of physicians, who read chest x-rays in a blinded fashion. For more on this idea, see "Is there a solution to the asbestos-litigation problem?," one of the questions found at my Q&A web site Asbestos Primer for Patients, Physicians and Lawyers.]

"In response to the unique characteristics of asbestos litigation, courts developed “special asbestos law” to facilitate the management of asbestos dockets. Special asbestos law, however, tipped the scale of justice in favor of plaintiffs by compelling defendant companies to settle mass quantities of claims at one time. As plaintiffs' firms responded opportunistically to their success by developing screening measures to recruit hundreds of thousands of claimants, asbestos litigation reached crisis status. On numerous occasions, the Supreme Court of the United States, recognizing that the judiciary was incapable of managing asbestos dockets, called for an administrative solution.

"As Congress began to consider an administrative solution, however, the plaintiffs' asbestos bar shifted focus due to fear that their investment in unimpaired asbestos claimants would become lost upon the enactment of legislation. Because silica shares numerous characteristics with asbestos, plaintiffs' firms directed their screening companies to recruit silicosis claimants. 6 But when the Judicial Panel on Multidistrict Litigation aggregated thousands of silicosis claims in the United States District Court for the Southern District of Texas, a historical opinion followed. United States District Court Judge Janis Graham Jack found that almost all of the 10,000 silicosis diagnoses in her courtroom had been fraudulently manufactured. Although her opinion dealt with silica litigation, Judge Jack's findings significantly affect asbestos reform. By conducting Daubert hearings and court depositions that exposed the prevalence of fraud in silica litigation, Judge Jack exposed the prevalence of fraud in asbestos litigation as well. As a result, it is reasonable to conclude that the number of asbestos claims compensated through the tort system was greatly inflated due to fraud.

"Despite this watershed event, the Fairness in Asbestos Injury Resolution Act (“FAIR Act”)--Congress's attempt to enact an administrative solution to asbestos litigation--failed in the Senate in 2006. One of the main reasons why the FAIR Act collapsed was because its drafters were concerned about their ability to predict the number of claims that would be filed with the administrative fund. Using the tort system and asbestos trust funds as a guide, the Congressional Budget Office concluded that the fund would need approximately $140 billion to pay all future legitimate asbestos claims. Many feared that this estimate was too low; thus, the FAIR Act failed because it was unable to provide defendant companies and their insurers with certainty about their asbestos-related expenditures.

"The Congressional Budget Office, as well as the senators who supported the FAIR Act, erred by failing to fully appreciate Judge Jack's findings regarding the prevalence of fraud in asbestos litigation. By failing to accord her opinion its deserved significance, the Senate did not realize that the tort model they were relying on to predict claims had a grossly inflated number of asbestos claims due to fraud. As a result, the concern that $140 billion would be insufficient to compensate all future claimants was unfounded. Because of Judge Jack's findings and their implications, the FAIR Act should not have collapsed out of fear that the administrative system would receive too many claims. In fact, Judge Jack's opinion should have reassured Congress that such a solution was more necessary than ever...
[The following 3 points, each discusssed in this law review article, emphasize that there are far fewer legitimate claims than are supposed in the legislative solutions. If in fact only truly legitimate claims were considered -- as adjudged by an objective panel of physicians -- the 'administrative fund' would be more than sufficient. ]

"1. The Number of Legitimate Asbestos Claims Is Probably Inflated Because Most Claims in the Tort System Were Generated Through Mass Screenings...

"2. The Prevalence of Retreaded Asbestosis Claims in the Silica MDL Indicates that Fraudulent Diagnoses Are Not Limited to Silica Litigation...

"3. Since Judge Jack Handed Down Her Opinion in the Silica MDL, Others Have Revealed Additional Fraudulent Practices in Asbestos Litigation..."

2010

[This law review article presents a detailed discussion of the above RAND Report, including RAND’s Recommendations for reform: Changes to Judicial Practices and Procedures (page 535) and Changes to Conduct of Plaintiff and Defense Bars (page 537). The article concludes:]

“RAND’s latest report makes an important contribution with regard to identifying and addressing the potential for abusive diagnostic procedures in mass torts. If RAND’s recommendations are followed by policymakers and courts, then abuses such as those uncovered in MDL 1533 may be less likely to occur in the future.”

2011a

[An appeal by CSX that had been dismissed by a lower court, was re-instated by the US Court of Appeals. For background see 2006d. Part of the Appeal Court's opinion is quoted in 2011b.]

“The U.S. Court of Appeals for the Fourth Circuit in Richmond this week reinstated a lawsuit filed against a group of lawyers and doctors accused of scheming to file thousands of fraudulent asbestos-liability claims in courts throughout the country.  The decision in CSX Transportation, Inc. v. Gilkison was a victory for the Washington Legal Foundation (WLF), which filed a brief urging reinstatement. WLF argued that the trial court threw out the lawsuit based on a far-too-narrow understanding of the applicable statute of limitations. The appeals court agreed with WLF that the limitations period should not be deemed to have started running until after the plaintiff had at least some reason to suspect that the lawyers and doctors were engaging in fraud.  “WLF is concerned by mounting evidence that much of the money awarded as damages in asbestos liability cases has been paid to uninjured claimants, and that many of those payments were facilitated by the fraudulent conduct of lawyers and doctors who knew full well that their clients had suffered no asbestos-related injuries,” said WLF Chief Counsel Richard Samp following the court decision. “Courts will continue to be deluged by spurious asbestos liability claims unless and until they permit companies victimized by such claims to seek compensation from the responsible lawyers and doctors. WLF was concerned that the trial court decision – by adopting an inappropriately narrow understanding of limitations rules governing federal and state causes of action – would prevent meritorious claims against lawyers and doctors from going forward,” Samp said. 

”The case involves a Pittsburgh law firm, Peirce, Raimon & Coulter, PC (the “Peirce Firm”), and a West Virginia radiologist, Ray Harron, who teamed up to file thousands of lawsuits on behalf of seemingly healthy individuals who claimed to be suffering from asbestosis. The Peirce Firm obtained its clients by conducting mass x-ray screenings of current and former railroad employees; the screenings were performed by an unlicensed technician who intentionally shot poor quality x-rays. Then Dr. Harron diagnosed asbestosis on virtually every one of the thousands of lung x-ray he read, despite the fact that he never spoke to any of the employees (to ascertain what, if any, history they had of exposure to asbestos) and despite extensive studies suggesting that no more than one to three percent of railroad workers develop asbestosis. The Peirce Firm relied exclusively on Harron for its x-ray readings because it knew he could be relied on to consistently report “positive” findings. The firm filed thousands of suits on behalf of the workers, without taking additional steps to establish a good-faith basis for making its claims…” (See also next Reference.)

2011b

[This is the Appeals Court’s written opinion of case discussed above. Below are a few excerpts.]

"In its first amended complaint (hereinafter “complaint”), CSX alleges that the defendants—a law firm, certain attorneys, an investigator, and a medical expert, all employed by the law firm— “embarked upon a calculated and deliberate strategy to participate in and to conduct the affairs of the Peirce firm through a pattern and practice of unlawful conduct, including bribery, fraud, conspiracy, and racketeering,” (J.A. 145), by “orchestrat[ing] a scheme to inundate CSX and other entities with thousands of asbestosis cases without regard to their merit." (J.A. 142)

"In order to perpetrate this alleged scheme, CSX contends “the lawyer defendants gained access to potential clients through unlawful means, [and] retained clients and procured medical diagnoses for them through intentionally unreliable mass screenings.” (J.A. 145-46). CSX charges that the screenings were unreliable, in part, because “[t]he lawyer defendants . . . deliberately hired unreliable doctors such as . . . Harron to read’ the x-rays for signs of asbestosis.” (J.A. 148). In the complaint, CSX averred that, Harron “agreed to read unusually high numbers of x-rays with reckless or deliberate disregard for CSX alleges that the defendants—a law firm, certain attorneys, an investigator, and a medical expert, all employed by the law firm—“embarked upon a calculated and deliberate strategy to participate in and to conduct the affairs of the Peirce firm through a pattern and practice of unlawful conduct, including bribery, fraud, conspiracy, and racketeering,” (J.A. 145), by “orchestrat[ing] a scheme to inundate CSX and other entities with thousands of asbestosis cases without regard to their true content with the full knowledge that the lawyer defendants intended to file personal injury claims based on his diagnoses.” (J.A. 163). Ultimately, CSX alleges that defendants used this scheme to “fabricate and prosecute asbestosis claims with no basis in fact.” (J.A. 146).

...CSX offers three contentions for reversal of the grant of summary judgment:

First, the positive x-ray reading resulted from an unreliable screening mechanism designed by the lawyer defendants to generate false positives. Second, the lawyer defendants failed to conduct a reasonable inquiry before filing suit, and thus failed to uncover medical records in their own files that effectively ruled out asbestosis. Third, the only evidence that Baylor had been exposed to asbestos while working for CSX was a questionnaire that Baylor himself confirmed was fabricated.

...we vacate the district court’s grant of summary judgment to the defendants on the Baylor claim. Accordingly, this case is remanded to the district court for further proceedings in accordance with this opinion."

2011c

[If a Nobel Prize was ever awarded for academic legal service, it should go to Professor Brickman. For over a decade he has worked -- through law review articles, speeches and Congresstionl testimony -- to expose the massive legal and medical fraud perpetrated in the name of asbestos screenings.]

"The tragedy of asbestos is compounded by its litigation history. A carcinogenic mineral has given rise to a malignant enterprise. When in the distant future, we look back at asbestos litigation, we will surely include it among the great scandals in our history along with the Yazoo land frauds, Credit Mobilier, Teapot Dome, the Savings and Loan debacles, WorldCom, Enron and the vast Ponzi schemes that have recently unfolded. In nine published articles on asbestos litigation, I have documented the existence of a massively fraudulent enterprise involving the creation of literally hundreds of thousands of bogus medical reports. These reports have been used to extract billions of dollars in settlements from defendants in the tort system and from asbestos bankruptcy trusts ("trusts") which have been created with the assets of the companies that were bankrupted by asbestos litigation.

"There has been a complete and total failure by state and federal law enforcement agencies to prosecute the doctors who have received tens of millions of dollars for preparing these reports, let alone the lawyers who hired them precisely because of their willingness to provide these diagnoses. This failure is not due to a lack of credible evidence...

"...Effectively, what law enforcement agencies have done by their inaction is grant lawyers and the medical personnel they hire a special dispensation to commit fraud on a massive scale in certain mass tort litigations (including the asbestos, silica, fen-phen, silicone breast implants and welding fume litigations.)."

Analysis of Bogus Medical Reports || Asbestos Lung Disease: A Primer for Patients, Physicians and Lawyers || Index of Dr. Martin's Asbestos Disease Web Sites || Lakesidepress home page

Web site initially posted December 10, 2011. Last update February 7, 2012.