As I’ve mentioned before, due to the ubiquitous presence of asbestos in certain industries all the way until the 1990s, we could see 60,000 or more new mesothelioma cases filed over the next few decades, and it seems there are still many big questions to answer through litigation. We should be talking about ways to streamline that process and, more than that, looking for ways to cure or to prevent mesothelioma.

Yet, when insurance companies and negligent corporations want to avoid responsibility for hurting someone, they try to change the subject by pointing the finger at the trial lawyers. Thus, earlier this week the Wall Street Journal had a long profile of the relationship between the lawyers who represent mesothelioma patients in their claims against the asbestos companies and the doctors who treat mesothelioma patients. In short, nobody funds mesothelioma research — not the government, not the big pharmaceutical companies, and certainly not the companies responsible for poisoning tens of thousands of workers — and thus much of the research money ends up coming from non-profits funded by mesothelioma lawyers who, having spent years watching their clients succumb to mesothelioma, felt compelled to put their own money back into improving treatments and, maybe, finding a cure.

But I bet you already knew where the Wall Street Journal was going with these  donations:

The two have forged what has become an increasingly common relationship between a subset of cancer doctors and plaintiffs’ attorneys, sharing what for each is an increasingly scarce but valuable resource: victims of mesothelioma.

It is an unusual alliance in the world of medicine that some ethics experts say blurs ethical lines. This is particularly true when doctors refer patients to attorneys who provide financial support for their medical research.

And there you go: in one fell swoop, people dying of cancer caused by just going to work are reduced a “valuable resource,” and charitable giving is turned into an implied ethical violation, and the handful of doctors capable of treating these patients have a cloud of doubt cast over them. The WSJ then had a companion article about advertising for asbestos lawsuits that relies primarily on remarks by “a provider of Internet marketing software and services” and someone who “specializes reselling domain names he has purchased,” as if either of them had a clue about how mesothelioma clients actually find lawyers.

Let’s put aside the fact that the two WSJ articles reach opposite conclusions — one says the clients are passed along by nefarious doctors, the other says clients are “caught” through blanket television and web advertising — and go back to the accusation that there’s something wrong with mesothelioma lawyers putting money, with no strings attached, into non-profits that grant research funding, and that there’s something wrong with mesothelioma doctors accepting that money to conduct research. 
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Just in time for Mesothelioma Awareness Day (which is tomorrow), yesterday the Wall Street Journal recycled the same canned attack on the Philadelphia Complex Litigation Center that the Chamber of Commerce and other special interests have been pushing for some time. (See here and here for more about the attacks on Philadelphia’s courts.)

Ashby Jones at the Wall Street Journal retreads over Judge Pamela Dembe’s remarks about out-of-state plaintiffs from early 2009, taking the Chamber of Commerce’s bait hook, line and sinker:

When the Philadelphia court system faced budget cuts in early 2009, an influential judge there invited plaintiffs to bring the court their cases — and their filing fees.

The plan backfired.

After Philadelphia Court of Common Pleas Judge Pamela Pryor Dembe told defense lawyers she wanted to “take business away from other courts” by making Philadelphia’s more attractive to lawyers, “mass-tort” filings—made up mostly of asbestos and pharmaceutical claims—skyrocketed from 550 in 2008 to nearly 2,700 last year. The surge left an already busy court system buried in lawsuits and scrambling to repair the damage.

“Buried in lawsuits and scrambling to repair the damage” of 2,700 filings sounds just terrible. As the WSJ ominously notes, “Since 2008, the backlog of asbestos and pharmaceutical cases has shot up from about 2,600 to more than 6,100 through last month.”

As Churchill said, “truth is so precious that she should always be attended by a bodyguard of lies.” Let’s unpack this supposed “surge” in filings, and figure out what’s causing the Philadelphia Complex Litigation Center to be “buried in” a “blacklog” of 6,100 lawsuits.

First, let’s look at what those 6,100 lawsuits are. You can see the numbers yourself by going to the “case list” under each type of mass tort on the CLC’s website. 2,294 of the pending cases, or more than one-third of the total, are Reglan cases. 1,843 of the pending cases, nearly one-third of the total, are Yaz / Yasmin / Ocella cases.

Judge Dembe’s remarks about making the Philadelphia mass torts center so efficient that parties preferred it over other courts (a laudable goal; notice how Judge Dembe’s remarks were made to defense lawyers) were in March 2009. Check those case lists again and you can see when the lawsuits started piling up. The Yaz / Yasmin lawsuits against Bayer in Philadelphia state court began in July 2009, but fewer than twenty had been filed until October 2009. That uptick had nothing to do with Judge Dembe: it had to do with the August 14, 2009 issue of the British Medical Journal, which published two studies (here and here) showing Yaz and Yasmin had twice the blood clotting risk of comparable hormonal contraceptives. Similarly, only two Reglan cases were filed against Wyeth and Teva before October 2009, when they started coming in quickly — because in February 2009, the FDA had mandated a “black box” warning on Reglan for the possibility of tardive dyskinesia.

Following so far? Reglan and Yaz — cases primarily against Bayer USA and Wyeth, both Pennsylvania companies (Wyeth is literally in Philadelphia) — together account for just over two-thirds of the overall Philadelphia mass torts cases. Both of these mass torts were prompted not by anything Judge Dembe said, but by the public revelation that the drugs were far more dangerous that the pharmaceutical companies had said. 
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Last week the Pennsylvania Supreme Court decided Betz v. Pneumo Abex et al. (opinion here), a ‘friction products’ — i.e., brake pads — asbestos exposure case, ruling against the plaintiff. I had previously discussed the case briefly here. Drug and Device Law has already covered the opinion, as has Nathan A. Schachtman, and I (naturally) disagree with much of what they conclude.

A month ago I wrote about the difference between scientific evidence and the scientific method, and the Betz case is a great example of many of the issues — some legal, some political — that arise when science is brought into a civil case. Here are the facts:

In February 2005, Charles Simikian commenced a product liability action against Allied Signal, Inc., Ford Motor Company (“collectively Appellants”), and others, asserting causes of action grounded on multiple theories including strict liability. Mr. Simikian alleged that, throughout a forty-four year career as an automotive mechanic, his exposure to asbestos-containing friction products, such as brake linings, caused his mesothelioma.

Stepping out of the legal world and into the medical world: after a doctor tells someone they have mesothelioma, the next thing the doctor does is ask when the patient worked around asbestos. In the medical community, although the specific mechanism still isn’t understood, there’s no disagreement that mesothelioma only really has one cause in practice: asbestos exposure. Thus, mesothelioma after 44 years working around brakes, which we know incorporate chrysotile asbestos, and no other significant exposure to any other source of asbestos, provides more than enough for many doctors (I would say “most,” but I don’t know of any surveys to back that up) to infer that the mesothelioma was caused by the exposure to the brake pads. Such doctors would include the plaintiff’s expert, a pathologist. There’s similarly no doubt at the EPA or at OSHA that brake pads expose workers to asbestos, which is why there are specific guidelines for their handling.

But there’s a question that’s half-practical, half-political: how much proof does an injured person need to show that a particular company hurt them before that person will be legally entitled to compensation?

Here, there are two main issues to consider. First, there’s the medical or scientific — I write “or,” because the medical and scientific communities will give you different answers — question of whether low-dose exposure to asbestos (particularly chrysotile asbestos, which isn’t as carcinogenic as most other types of hydrous magnesium silicate asbestos, like crocidolite asbestos) causes mesothelioma or asbestosis. Second, there’s the difficulty of proving the relationship between each defendant and the plaintiff’s mesothelioma: think of how many different manufacturers of brake products a person encounters when working for 44 years as an automotive mechanic. The plaintiff’s complaint unsurprisingly had to name nearly two dozen defendants, from General Motors, to Daimler Chrysler, to Ford, to Napa Auto Parts, to Pneumo Abex, successor of American Brake Shoe and Foundry, founded 1902.

A plaintiff doesn’t have to prove how much exposure was due to which brake manufacturer, but they do have to prove that each defendant they intend to hold liable was a substantial factor in causing their injuries. See, e.g., Summers v. Certainteed Corp., 997 A.2d 1152, 1164-1165 (Pa. 2010)(“While asbestos litigation implicates concepts of strict liability rather than negligence, the requirements of proving substantial-factor causation remain the same.”) Whether or not a particular defendant’s conduct was a “substantial factor” in injuring a plaintiff is ordinarily a jury question, though courts can dismiss cases if they find that no reasonable jury would find the defendant’s conduct was a “substantial factor.”

So how do you prove that each defendant’s asbestos use was a “substantial factor” in causing the disease?
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Just when I was going to write a substantive post about a recent New Jersey Supreme Court opinion, the leading propagandist for the Fortune 500, the U.S. Chamber of Commerce, came in and released a new report about online advertising by trial lawyers. Tort reform and lawyer marketing in one article? I can’t miss that. (An aside: don’t kid yourself that the U.S. Chamber of Commerce cares the slightest bit about small business. The Chamber is the most anti-free-market lobbying group in the country, an organization dedicated to ensuring the biggest corporations in the country stay that way, squashing small businesses and regular people alike.)

The “study,” technically done by the “Institute for Legal Reform,” is called The Plaintiffs’ Bar Goes Digital. I’m still unclear what the point of the research was, so I’ll just quote their press release:

The plaintiffs’ bar contributes to the commercialization of the legal profession by using a sophisticated and complex combination of paid search advertising and high organic search optimization of websites to generate site traffic – all with the goal of collecting the personal contact information of potential plaintiffs.

Plaintiffs’ firms are devoting millions of dollars to the creation and maintenance of websites, Facebook pages, Twitter handles, blogs and YouTube channels. By measuring Google advertising spends on 125 keywords during a 45-day period and then extrapolating to a 12-month period, we estimate firms will spend more than $50 million on Google keyword advertising alone. To put that in perspective, the Obama for America campaign – often held up as a pioneer in digital advertising – spent $16 million total in online advertising in 2008.

Initially, those numbers are due primarily to three outliers. The report says that Danziger & De Llano, The Lanier Law Firm, and Sokolove Law account for half of that $50 million. No surprise to see Sokolove there; he’s one of the pioneers of attorney advertising.

Let’s put those numbers into some real perspective. Last year the U.S. Chamber of Commence spent over $66 million lobbying representatives. In 2010, it was $132 million. In 2009, $144 million. Since 2006, they’ve spent far more money lobbying than any two other lobbying companies combined. Of course, a quick peek at those top 20 lobbying companies of the past decade shows many asbestos defendants, like General Electric or Northrop Grumman, also paying millions to lobbyists, too.

More perspective? Online healthcare and pharmaceutical marketing is over $1 billion a year. In the wake of the Deepwater Horizon oil spill, BP was buying $3.59 million in AdWords related to the spill every month. Standard search engine marketing tools show that companies like Expedia and Amazon each spend $7-8 million annually on AdWords.

If the point of the study was to portray the plaintiffs’ bar as an unstoppable juggernaut beating up on poor little billion-dollar industries, I’m afraid they’ll need to go back to the drawing board. 
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One of my main purposes of writing this blog is to dispel the myths that surround trial lawyers and personal injury law.  There’s a myth, for example, that every time some sort of chemical exposure or defective product might be more dangerous than suspected, trial lawyers and work injury lawyers fabricate tens of thousands of fraudulent claims and then extract millions of dollars from poor, helpless corporations that somehow cannot defend themselves.

Consider this silliness from a law professor invited to speak before Congress:

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 which have been created with the assets of the companies that were bankrupted by asbestos litigation.

It doesn’t work that way.  Consider the recent developments in the Asbestos Multi-District Litigation (MDL) — including, by the way, the summary dismissal, without trial, of every case where plaintiffs’ didn’t promptly produce a detailed medical report along with authenticated x-rays.

Asbestos exposure is “a tale of danger known about in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s.” Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997)(quoting United States Judicial Conference Ad Hoc Committee on Asbestos Litigation). From an engineering standpoint, asbestos is an astonishingly useful product; it’s flame-resistant, provides exceptional insulation, and can mined in quarries throughout North America. It’s not surprising that it was used in virtually everything made from the 1940s to the early 1980s, from the Navy ships that fought World War II to the limited-print first-edition of Fahrenheit 451.

That, unfortunately, meant that three full generations of workers in the construction or heavy machinery industries were heavily exposed to asbestos, particularly if they were in the industry before the mid-1980s, when asbestos use declined in advance of the EPA’s ban in most products in 1989.  As I wrote about a couple months ago, even if you never worked in any of those industries, there is so much asbestos floating around in our world that a biopsy of your lungs would already show millions of asbestos fibers and tens of thousands of asbestos bodies. If you were directly exposed, the numbers are far higher. There’s only so much a person’s lungs can take before the odds start shifting in favor of cancer.

But mesothelioma isn’t like an ordinary injury: no one develops mesothelioma overnight. Indeed, people rarely develop it within the first decade after being exposed to asbestos, and the average patient develops it an astonishing 32 years after their initial exposure. It’s no surprise that exposure in the 1940s and 1950s created a wave of symptoms and initial cancer diagnoses in the 1960s, then deaths and lawsuits beginning only in the 1970s.

Given the magnitude of the exposure and damages, the litigation grew to proportions never before seen by the federal courts, prompting the judicial panel on multi-district litigation to consolidate as many cases as possible into the Eastern District of Pennsylvania (EDPA) in 1991, where, over time, an astounding 191,822 asbestos cases have been filed.  And that’s where we pick up the story.
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[Update, December 2012: Daniel Fisher at Forbes links to this post in his article about a new bill pending in Ohio that would require asbestos trust claimants to disclose payments made by other trust. I give him credit for linking to my criticism (and, correspondingly, I’m linking back to his), though I continue to believe claims of widespread asbestos trust fraud are overblown, for the same reasons argued below.]

Asbestos use in a wide variety of products, and all new products, has been banned for more twenty years, and yet asbestos litigation continues to be a multi-billion dollar business because asbestos was used everywhere and remains all around us. Even if you were never exposed to asbestos as part of your work, you still have “millions of [asbestos] fibers and tens of thousands of asbestos bodies” in your lungs. The difference between an average person and an asbestos plaintiff is often just one thing: a diagnosis of mesothelioma. (For any die-hard tort reformers out there who doubt that link, consider this 2011 study identifying the specific way asbestos alters proteins in mesothelial cells. If someone has mesothelioma, it’s virtually guaranteed it was caused by asbestos exposure.)

By coincidence, two separate articles yesterday touched upon a subject that has kept injury lawyers (both plaintiffs’ and defense) interested for more than a generation: figuring out which asbestos exposure caused a particular person’s mesothelioma and thus who, if anyone, is responsible.

At Corporate Counsel:

The Government Accountability Office released a new report on Wednesday analyzing asbestos injury trusts, shining some light on a multi-billion-dollar system of plaintiff claims and payouts that operates largely in secret.

The report, Asbestos Injury Compensation: The Role and Administration of Asbestos Trusts [PDF], reviewed 52 asbestos-related bankruptcy trusts that “have paid about 3.3 million claims valued at about $17.5 billion.”

The GAO found that while the majority of the trusts made general data available, very few provide detailed information about their activities without being directed to by a court of law: “Most asbestos trusts we reviewed publish for public review annual financial reports and generally include total number of claims received and paid.  Other information in the possession of a trust, such as an individual’s exposure to asbestos, is generally not available to outside parties but may be obtained, for example, in the course of litigation pursuant to a court-ordered subpoena.”

More on that in a moment. The Legal Intelligencer reported on arguments before the Pennsylvania Supreme Court in Betz v. Pneumo Abex:

The [appeal] follows an Allegheny County judge’s decision to grant a global Frye motion on behalf of several friction-based product defendants, subsequently granting summary judgment in their favor. …

According to the defense, one expert’s testimony was a “bad science” assertion that summed up to this: If a lot of asbestos can cause harm, so too can a little.

The expert under scrutiny, Dr. John C. Maddox, had relied upon an analysis the defense said gave unsupported weight to “each and every breath” one takes of asbestos. Under such an approach, they said, Maddox opined every breath one takes of friction-based products can contribute to developing mesothelioma.

Let’s start by going back to that GAO report. As if on cue, Daniel Fisher at Forbes and the U.S. Chamber of Commerce both chimed in to hurl unfounded attacks at trial lawyers, like:

“It is becoming clear that rather than acting to prevent abusive claims, the asbestos trusts are effectively encouraging fraud by inhibiting claims information sharing between the trusts and the tort system. We hope that Congress’s growing attention to this important issue will ensure that the trusts operate in a manner fair to asbestos victims and job-creating businesses, not plaintiffs’ lawyers and fraudulent claimants.”

It’s part of an attack on trial lawyers in general, who asbestos defendants have started suing to intimidate them out of taking asbestos cases. Fisher helped get this “asbestos claim fraud” ball rolling years ago, with assertions like:

Even as states crack down on frivolous lawsuits by people with no symptoms at all, trusts established by bankrupt asbestos manufacturers are paying tens of thousands of claims each year based on inflated or downright false stories of how people were exposed to their products.

Shocking. Tens of thousands of inflated or false claims?

There’s just one problem with this theory, as Corporate Counsel pointed out:
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As Rich Lord reported at the Pittsburgh Post-Gazette:

The quarry has turned on the hunter in a West Virginia courtroom, and now one of the nation’s biggest transportation companies is locked in a bitter fight with one of Pittsburgh’s most prominent trial law firms.

After years of feeling like they were being railroaded by asbestosis lawsuits, lawyers for CSX Transportation in 2005 sued Robert Peirce & Associates, accusing it of fraud and negligence in the massive cases it brought. The Jacksonville-based corporation lost a 2009 trial, but in court filings in recent weeks it detailed a new theory — that the Peirce firm is a racketeering-influenced corrupt organization that has committed wire fraud and mail fraud in its pursuit of claimants and settlements. …

Prominent advocates for both the plaintiffs’ bar and defense bar said they could not think of another case in which a corporation that endured mass litigation retaliated by turning the RICO statute against its tormentor. They disagreed on the significance of the development.

“The requirements [to prove RICO] are significant and pretty hard to meet under most circumstances,” said Christopher Placitella, a prominent litigator and writer on asbestosis law with the Philadelphia-based plaintiffs’ firm Cohen Placitella & Roth. “You really have to have a unique set of facts” including a conspiracy, multiple criminal acts and a resulting loss of property.

As a result, other plaintiffs’ firms aren’t likely to be chilled by one RICO case, he said.

This isn’t entirely breaking news; six months ago the Fourth Circuit reinstated the case over statute of limitations defenses, reported about here by the anti-consumer folks at Forbes. The full complaint is new, though.

‘Suing trial lawyers for bringing successful mass torts cases’ is something of a fad these days. On the verge of losing litigation they asked be transferred to Ecuador, Chevron has sued the lawyers for the Lago Agrio Ecuadorian plaintiffs alleging RICO violations in the form of judicial tampering. Last year, Illinois Central Railroad won a verdict against two plaintiffs’ attorneys in Mississippi, alleging fraud in the pursuit of two asbestos cases by way of the plaintiffs’ lawyers failure to notify the railroad that the plaintiffs had participated in a prior asbestos-related case. (The lawyers’ brief on appeal is available here if you have ECF/PACER access.)

I don’t fault the reporter for knowing about it, but I do indeed know of another, just like the new CSX lawsuit against Robert Peirce, in which:

  • a large corporation did something bad that harmed a lot of people,
  • a particular plaintiffs’ law firm developed a specialty in those claims,
  • the plaintiffs’ firm got so good at their niche that they were consistently making a lot of money, and, armed with just the right discovery, legal theories, and experts, were able to negotiate premium settlement,
  • then, after a few cases didn’t win, the large corporation turned around and sued the trial lawyers under RICO allegations, alleging the whole thing was a scheme to defraud the corporation, etc.

I expect to see more of these claims in the future. Consider the denture cream zinc poisoning litigation; GlaxoSmithKline settled the vast majority of Super Poligrip claims, but Proctor and Gamble is fighting the Fixodent cases (pardon the expression) tooth and nail. It wouldn’t surprise me if P&G turned around on some of the losing claims and sued the plaintiffs’ firms — many of whom settled hundreds, some thousands of those cases successfully — claiming the whole thing was a fraud on the court. The whole point is to empty the pockets of the lawyers successful in particular niches and to intimidate plaintiffs’ lawyers, deterring them from filing suits, meritorious or not.

To understand the CSX versus Robert Peirce case, you need to know little about the mass torts world. There are four main types of mass tort lawyers:

  1. referral lawyers who find cases (typically through advertising) and refer them to litigators,
  2. whales, the well-capitalized firms that put up the millions of dollars in expenses necessary to pursue these cases and the trial lawyers who control the litigation, including both the discovery and the trial itself (they are often the ones listed as lead counsel or plaintiffs’ liaison counsel), and
  3. syndicate lawyers who don’t put up any money but provide sheer time and energy into litigating these cases for a portion of the attorneys’ fees at the end (this is why you sometimes see the ironic situation of a solo practitioner who practices “complex litigation” out of their home office – they do indeed practice in the area, in that they’re constantly writing briefs or discussing strategy or arguing at hearings, but they are not the ones taking calls from clients, setting clients up with physicians, paying expert fees, etc.).
  4. backers, i.e. well-capitalized firms helping to fund the litigation but who aren’t taking an active role in the litigation.

(Other than “referral lawyers,” I made those terms up.) MDL litigation like the denture cream myelopathy lawsuits can involve all four, but asbestos lawsuits tend to only really involve #1 and #3.

Using that terminology I just made up above, Robert Peirce is a whale. He funds and litigates the cases himself. Assuming a whale starts with cases that are solid enough — trust me, genuine mesothelioma cases are quite solid on liability and damages — then, as an economic matter, the whale has two ways to increase their revenue and profitability. First, they can try bringing in more cases directly and thus avoid paying referral fees and, second, they can minimize the extraordinary costs of litigation, such as by using healthcare providers or other medical services willing to provide a bulk discount.
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