Brickman Against Screening

Lester Brickman (Cardozo) has just posted an article on SSRN entitled The Use of Litigation Screenings in Mass Torts: A Formula for Fraud?”  Here is the abstract:

Lawyers obtain the “mass” for some mass tort litigations by conductingscreenings to sign-up potential litigants en masse. These “litigationscreenings” have no intended medical benefit. Screenings are mostlyheld in motels, shopping center parking lots, local union offices andlawyers’ offices. There, an occupational history is taken by personswith no medical training, a doctor may do a cursory physical exam, andmedical technicians administer tests, including X-rays, pulmonaryfunction tests, echocardiograms and blood tests. The sole purpose ofscreenings is to generate “medical” evidence of the existence of aninjury to be attributed to exposure to or ingestion of defendants’products. Usually a handful of doctors (“litigation doctors”) providethe vast majority of the thousands and tens of thousands of medicalreports prepared for that litigation.

By my count,approximately 1,500,000 potential litigants have been screened in theasbestos, silica, fen-phen (diet drugs), silicone breast implant, andwelding fume litigations. Litigation doctors found that approximately1,000,000 of those screened had the requisite condition that couldqualify for compensation, such as asbestosis, silicosis, moderatemitral or mild aortic value regurgitation or a neurological disorder. Ifurther estimate that lawyers have spent at least $500 million and asmuch as $1 billion to conduct these litigation screenings, payinglitigation doctors and screening companies well in excess of $250million, and obtaining contingency fees well in excess of $13 billion.

Onthe basis of the evidence I review in this article, I conclude thatapproximately 900,000 of the 1,000,000 claims generated were based on”diagnoses” of the type that U.S. District Court Judge Janis Jack, inthe silica MDL, found were “manufactured for money.”

Despitethe considerable evidence I review that most of the “medical” evidenceproduced by litigation screenings is at least specious, I find thatthere is no effective mechanism in the civil justice system forreliably detecting or deterring this claim generation process. Indeed,I demonstrate how the civil justice system erects significantimpediments to even exposing the specious claim generation methods usedin litigation screenings. Furthermore, I present evidence thatbankruptcy courts adjudicating asbestos related bankruptcies haveeffectively legitimized the use of these litigation screenings. I alsopresent evidence that the criminal justice system has conferredimmunity on the litigation doctors and the lawyers that hire them,granting them a special dispensation to advance specious claims.

Finally,I discuss various strategies that need to be adopted to counter thisassault on the integrity of the civil justice system.

ADL