Asbestosis: The Scam That Refuses to Die

Recently, a patient came to my office and asked me what I knew about asbestosis. His union had asked him to be tested for asbestosis. He had no symptoms of any illness. I told him that in my opinion the overwhelming majority of cases diagnosed with asbestosis were fraudulent. I told him further that I had written articles about asbestosis fraud and gave him a copy of my book which contained these articles. He seemed to be receptive to my comments. Nevertheless he decided to get tested for asbestosis.

A couple of months later he came to my office and showed me the report of his chest x-ray contained in a letter from a local physician to an out of town attorney. The x-ray was read as showing bilateral pulmonary interstitial fibrosis. The letter also stated that given the patient’s occupational history the patient “has asbestosis.” The reader of the x ray was not a radiologist.

Five months later I ordered a chest x-ray on the patient as part of a workup for an unrelated medical problem. An excellent board certified radiologist interpreted the new chest x-ray as negative. I showed the report to the patient and reassured him that he did not have asbestosis. I also told him the new chest x-ray confirmed my suspicion that his previous chest x-ray report was likely part of a scam by mass tort lawyers to extort money from asbestosis trust funds.

The definitive article exposing fraud in the diagnosis of asbestosis was by Gitlin et al. of Johns Hopkins School of Medicine. In this study published in 2004 films read by plaintiffs’ radiologists were compared to the readings of the same films by independent radiologists. The plaintiffs’ radiologists read 95.9% of the films positive for abnormalities that were compensable for pulmonary asbestosis. The independent radiologists who were unaware of the readings by the plaintiffs’ radiologists read the same set of films as positive in only 4.5% of cases.¹

A couple of examples of massive fraud perpetrated by doctors reading films for asbestosis attorneys highlight how expert witnesses can abuse the legal process and undermine the search for truth and justice. One doctor, Ray Harron, personally diagnosed 51,048 asbestos claims. He diagnosed a record number of 515 people in one day, which amounts to one diagnosis per minute. Another doctor, Ray Segarra, a pulmonologist diagnosed 29,000 claims of asbestosis. He estimates that he has made about $10 million doing this work. When questioned on National Public Radio about his readings of chest x-rays, Segarra replied, “I’m certainly not a schemer at all…but am I an opportunistic? I suppose I am. But everybody is.”²

Litigation has now changed from the traditional model of an injured person seeking a lawyer to an entrepreneurial model where lawyers recruit clients without known disease. Of the 850,000 asbestos claimants who brought suit against 8,400 different defendants it is estimated that about 600,000 were recruited by mass screenings.³

Even though the asbestosis and silicosis scams have been widely publicized plaintiff lawyers are not deterred. They continue to heavily advertise on television and in other media. Now they are enlisting unions in order to gain more plaintiffs. They continue to use “hired gun” expert witnesses instead of reputable independent physicians. Both sides know these cases are almost always non-meritorious like my patient’s. Both sides also know that most cases settle because it usually costs more to defend these suits than to settle. The lawyers and doctors who engage in asbestosis fraud obviously have no shame.

Because of one courageous judge, Janis Jack, a former nurse who exposed massive and brazen fraud in silicosis and asbestosis litigation, some insurers and manufacturers are finally fighting back. A major mass tort asbestosis plaintiff law firm is run by Peter Angelos, owner of the Baltimore Orioles major league baseball team. Recent revelations show that 70% of the 13,000 plaintiffs he represented in mass filings had been diagnosed with asbestosis by just five doctors. One doctor diagnosed 50% of the cases. He also happened to work as a team doctor for the Baltimore Orioles. His partner also diagnosed many of the plaintiffs. More than 1,500 of the claimants were duplicates.⁴ The average payout to “patients” in a mass tort filing is between three and five thousand dollars. The law firm’s take is about forty percent of the award and the payouts can be in the tens of millions of dollars.

A few years ago I told a prominent medical malpractice defense attorney that mainly because of false expert witness testimony our legal system was corrupt. He flew into a rage. He said that he would not defend a doctor in a malpractice suit who held such views. He implied that our legal system was fair and just and was the best method ever invented to determine the truth. The few examples cited above are just the tip of the iceberg and illustrate how wrong he is.

An Asbestos Silver Lining

Could Sheldon Silver’s arrest help clean up the New York tort racket?

Reprinted with permission by the Wall Street Journal

The corruption charges against former New York Assembly Speaker Sheldon Silver have exposed the rotten links between politicians and trial lawyers, and that attention is bearing fruit. Witness the clarifying drama in New York’s asbestos court. Manhattan Administrative Justice Peter Moulton recently held an unprecedented “town hall meeting” to hear complaints from dozens of defense attorneys who say New York’s asbestos docket has been rigged to favor one tort firm: Weitz & Luxenberg, the same powerhouse asbestos firm that benefited from an association with Mr. Silver.

According to the federal complaint, Mr. Silver is alleged to have directed state funds to the practice of a New York asbestos doctor, who gave Mr. Silver the names of mesothelioma patients to serve as plaintiffs. Mr. Silver passed these names to Weitz & Luxenberg, receiving $3.2 million for his referrals. Weitz & Luxenberg wasn’t charged and denies wrongdoing, yet the case has cast a spotlight on the extraordinary relationship between the firm and the court that deals with asbestos cases—the New York Consolidated Asbestos Litigation docket. Until recently, the chief judge of NYCAL was Sherry Klein Heitler, who rose through the judicial ranks during Mr. Silver’s political tenure.

When Justice Heitler retired last month, more than half of the cases in the asbestos docket were Weitz & Luxenberg’s. In four years the firm won $273.5 million of the $313.5 million (87% of the total) awarded in 15 mesothelioma verdicts—$190 million in 2014.

Justice Heitler also made a highly controversial ruling last year—at the request of the favored firm—to reverse a 20-year policy against allowing punitive damages in asbestos cases. The judge reached the mandatory retirement age of 70 last year but was kept on into 2015. Not long after the Silver scandal broke, the court announced she was finally stepping down as head of NYCAL. The mess thus lands with her successor, Justice Moulton, who has a reputation as a straight-shooter. Some 45 firms representing 200 asbestos defendants have filed a motion to halt all asbestos proceedings for 60 days, in order to investigate and repair the rigged NYCAL system.

The defense lawyers pointed out in a separate letter to Justice Moulton how at odds NYCAL is with reforms in other prominent asbestos dockets. NYCAL allows firms like Weitz & Luxenberg to consolidate cases, putting enormous pressure on defendants to settle, or risk huge judgments. Justice Heitler’s punitive damage order has heightened that pressure on defendants to roll over or face what the letter calls “astronomical verdicts.”

With any luck Justice Moulton will grant the stay and use this moment as an opportunity to adopt reforms that begin to clean up NYCAL’s asbestos racket. Some 300 corporate asbestos defendants are mired in New York litigation. Reform would address the source of Mr. Silver’s alleged corruption—the asbestos tort racket.

Biography

Arthur H. Gale, MD, MSMA member since 1976, is a Missouri Medicine Contributing Editor. He practices Internal Medicine in St. Louis.

Contact: agalemd@yahoo.com