Posted on 02/02/2005 12:52:58 AM PST by neverdem
Companies battling lawsuits brought by people claiming injuries caused by exposure to asbestos or silica have long contended that they are the victims of fraud.
The companies finally have evidence that their concerns may be real. Thousands of people who have said they were injured by one potentially lethal material are apparently double-dipping - now asserting separately that they were injured by the other.
More than half the plaintiffs in a federal lawsuit in Texas seeking compensation for exposure to silica - used in making glass, paint, ceramics and other materials - previously filed claims against a trust set up to compensate those injured by asbestos, a cancer-causing flame retardant.
Jared S. Garelick, a lawyer at the Claims Resolution Management Corporation, a trust that processes asbestos-related claims, says the discovery of the other suits came after defense lawyers in the Texas case provided a list of plaintiffs to the trust. It ran the names of 8,629 plaintiffs through its database and found that 5,174 had already filed asbestos claims, probably recovering money.
"That's huge," said Nathan A. Schachtman, a defense lawyer at the firm of McCarter & English in Philadelphia who has defended companies in both asbestos and silica cases. "It's a big problem, not just for the courts," he said, "because it's difficult to get the information" about where plaintiffs have filed claims previously.
The evidence of seemingly duplicate injury claims is expected to emerge at a Senate Judiciary Committee hearing this morning on proposed legislation on asbestos liability.
The evidence will almost certainly be used by companies to ask for greater protection from silica-related lawsuits, while labor advocates will argue that blocking such suits may harm people filing legitimate cases. The evidence could also complicate efforts to enact a law that would remove asbestos claims from the courts.
According to prepared testimony by Lester Brickman, a law professor at the Cardozo School of Law of Yeshiva University, who will appear at today's hearing, "As with asbestos, the tragedy of silica exposure is being transformed into an enormous money-making machine in which baseless claims predominate."
Labor advocates are evidently worried that Congress will not treat the asbestos and silica matters as separate issues.
Dr. Laura Welch, medical director at the A.F.L.-C.I.O.'s Center to Protect Workers' Rights in Silver Spring, Md., who will also testify today, said that legislation dealing with asbestos should not be expanded to limit the right to sue as a result of exposure to other, unrelated substances.
"We don't want to derail what could be an important compensation bill for asbestos disease," she said. "If there are bad claims for silicosis, they should deal with that head-on."
But any legislative solution to asbestos-related injury that does not deal with the possibility of a wave of silica lawsuits does not go far enough, said Michael E. Baroody, executive vice president of the National Association of Manufacturers and chairman of the Asbestos Alliance Steering Committee, a coalition of companies and associations. "It is certainly our hope," he said, "that the legislation would contain language that would make that clear and preclude that sort of back-door return to the courts."
The hearing is to take place as the Bush administration is pushing for changes in the civil justice system, for example by limiting the amount of damages that plaintiffs in civil suits can be awarded. Evidence that claims filed against companies that made, supplied or worked with silica may be dubious can presumably bolster the administration's position.
It is possible that a person could suffer from exposure to both asbestos and silica. But such a high number of duplicate cases is implausible, Mr. Schachtman, the corporate defense lawyer, said. Asbestos litigants who also say they were injured by silica, he said, will have to claim "that they didn't know that they had an injury from silica but they already knew they had a lung injury" from asbestos. That is a difficult argument, he said.
A legislative solution to the problem of asbestos liability is complicated by the fact that some people may indeed have been harmed by both substances, as Judge Edward R. Becker of the United States Court of Appeals for the Third Circuit pointed out last month, saying, "That's a tough nut we've got to deal with."
And there is recent evidence, unrelated to the problem of duplicate claims, that unsupported - even fraudulent - claims are a serious problem. In the lawsuit under way in Corpus Christi, Tex., doctors who had signed documents saying that plaintiffs in the case suffered from silicosis backed away from those conclusions when questioned under oath late last year.
One doctor, George Martindale, a radiologist in Mobile, Ala., who reviewed about 3,500 X-rays of potential silica claimants, said he never realized that his findings would be used as the primary basis for lawsuits.
"I never thought I was going to be the diagnosing physician," Dr. Martindale said in a telephone interview yesterday, adding that he thought he was only reviewing another doctor's findings of silicosis. "I thought I was a second read on these films."
The federal district judge presiding over the silica class action, Janis Graham Jack, characterized the situation as a "fraudulent problem" and has ordered that all the doctors whose diagnoses support claims testify in her court later this month.
The targets of silica lawsuits have asserted for years that the cases against them are part of a frivolous, money-making scheme for lawyers looking for an alternative to asbestos litigation. Hundreds of thousands of people have filed asbestos claims. That dwarfs the number of people contending that they were hurt by exposure to silica, where reliable figures are hard to come by but so far have been in the tens of thousands.
Lawyers defending the companies note that the number of deaths caused by silicosis has fallen steadily for decades - to fewer than 200 in 1999 from about 500 in 1980 - but the number of suits based on contentions of harm from the disease has risen sharply, with about 10,000 claimants in the Corpus Christi case alone.
Typical.
Tar and feathers are too good for the average plaintiff's lawyer. Horsewhipping in the street is more like it.
-ccm
I'd give tar and feathers a shot, at least at first.
FReepmail me if you want on or off my health and science ping list.
I'm sorry, I have to fire Company for violating the No Weapons policy at our Company.
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