Document Type

Article

Publication Date

2007

Abstract

In 2005, U.S. District Court Judge Janis Jack, presiding over an MDL proceeding involving 10,000 claims of silicosis, issued a 264 page opinion rejecting the reliability of thousands of medical reports generated by litigation screenings. In that report, she documented in great detail the existence of a fraudulent scheme to create bogus medical evidence that lead 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.

In this article, I consider whether hundreds of thousands of medical reports generated by asbestos screenings also have been manufactured for money. While both plaintiffs' lawyers and the litigation doctors they hire have steadfastly refused to disclose the percentage of those screened that are found to have asbestosis, I have been able to determine the percentages of positive diagnoses and to compare that to the results of a review of 80 clinical studies. Based on my research, I conclude that for every 1000 occupationally exposed workers screened, litigation screenings generate approximately 500-600 diagnoses of asbestosis. In a clinical setting, however, the number diagnosed with asbestosis would be 30-50. The excess diagnoses of asbestosis in litigation screenings produced over $25 billion in payments to claimants of which approximately $10 billion was paid to the lawyers.

I also review clinical studies in which X-rays read by litigation doctors were re-read by independent medical experts. These re-readings found error rates that ranged from 62% to 97.5%.

My review of the pandemic of nonmalignant asbestos-related disease claims which were filed in the 1990-2004 period in the tort system and with asbestos bankruptcy trusts and comparison with the number of hospitalizations primarily for asbestosis in that period shows similar disparities.

The conclusion I draw from the data and evidence presented is that Judge Jack's findings with regard to the medical reports in the silica MDL applies with at least equal force to nonmalignant asbestos litigation: the medical reports are mostly manufactured for money.

Publication Title

Cardozo Law Review

First Page

513

Volume

29

Included in

Law Commons

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