On the Theory Class’s Theories of Asbestos Litigation: The Disconnect Between Scholarship and Reality Lester Brickman* * Professor of Law, Benjamin N. Cardozo School of Law of Yeshiva University. I have benefited greatly from the efforts of several very talented research assistants. Sara Klein, my lead assistant, has done superb work and her efforts have been invaluable. My other research assistants, Kim Mamta Shah, Andrew Borteck, and Daniel Grusenmeyer have each made important contributions for which I am grateful. I am deeply indebted to the tireless efforts of the research librarians at Cardozo School of Law: Norma Feld, Beth Gordon, and Peter Lee as well as library director, Professor Lynn Wishart, whom I have inundated with hundreds of requests for obscure source materials. Like Sergeant Preston of the Royal Canadian Mounted Police, they have never failed to find a fugitive source. Finally, I also wish to acknowledge the contribution made by Roger Cramton. At the symposium on asbestos litigation held at the Pepperdine University School of Law, Cramton, one of the speakers, expressed the view that: on the basis of my published work and the paper I prepared for the symposium, I had provided “insufficient evidence” to prove ethical violations let alone to support my conclusion that asbestos litigation has become a malignant enterprise which mostly consists of a massive client recruitment effort that accounts for as much as ninety percent of all claims currently being generated, supported by baseless medical evidence which is not generated by good faith medical practice, but rather is primarily a function of the compensation paid, and by claimant testimony scripted by lawyers to identify exposure to certain defendants’ products. After the symposium, we had further discussion. I indicated that if I had failed to convince him on the basis of the work I had done so far, then I had more work to do. This article is the product of the effort I then undertook to meet that self-imposed burden of “sufficient evidence.” 33 TABLE OF CONTENTS I. INTRODUCTION II. EXPOSURE TO ASBESTOS CONTAINING MATERIALS: MEDICAL CONSEQUENCES III. A BRIEF HISTORY OF ASBESTOS CLAIMING IV. THE PHENOMENON OF THE UNIMPAIRED CLAIMANT A. Unimpaired Pleural Plaque Claims B. Unimpaired Asbestosis Claims V. ATTORNEY-SPONSORED ASBESTOS SCREENING A. Introduction B. How Screenings Are Conducted 1. Two Screening Enterprises: A Description in Detail C. Mass Screenings: The Percentage That Test Positive for Asbestosis D. Financial Incentives That Permeate Attorney-Sponsored Asbestos Screenings E. The National Tire Workers Litigation Project and Its Progeny VI. ADDITIONAL ANALYSIS OF THE MEDICAL EVIDENCE IN ASBESTOS CLAIMING A. Medical Evidence Produced by Asbestos Screenings Versus Medical Science B. The Sea Change in Medical Diagnoses That Resulted from the Georine Settlement C. Pulmonary Function Tests Administered in Asbestos Screenings D. The Effect of the Manville Audit on Asbestos Claiming VII. THE ROLE OF PARTY AND WITNESS TESTIMONIAL IN SPECIOUS CLAIMING A. The Nunc Pro Tunc Change in Witness Testimony with Regard to the Percentage of Manville Product at Various Work Sites B. The Baron & Budd “Script Memo” VIII. SCHOLARSHIP ABOUT ASBESTOS LITIGATION 34 [Vol. 31: 33, 2004] Disconnect Between Scholarship and Reality PEPPERDINE LAW REVIEW I. INTRODUCTION When the complete and unexpurgated history of asbestos litigation is finally written, that litigation will surely come to be considered for entry into the pantheon of such great American scandals as the Yazoo land scandals, Credit Mobilier, Teapot Dome, Billy Sol Estis, the salad oil scandals, the Savings & Loan scandals, WorldCom, and Enron. Even as that history is being written and assimilated, it has already become apparent that, for the most part, asbestos litigation has become a malignant enterprise. Despite mounting evidence of massive, specious claiming in asbestos litigation, few voices appear willing to acknowledge this reality. This article presents an analysis of that malignant enterprise; how it developed; how it came to prosper; how it is practiced; and why it has persisted. Substantial exposure to certain forms of asbestos has had deadly consequences. Thousands of industrial and construction workers have been injured and killed by unlawful exposure to asbestos in their workplaces.1 Hundreds of thousands more, assembled through an unprecedented recruitment effort by plaintiff lawyers (exceeded only by the “Uncle Sam Wants YOU” campaign launched at the outset of World War II), who have no discernable illness or impairment, have cashed in on this national tragedy.2 Still hundreds of thousands, perhaps even millions more, will undoubtedly be recruited in the foreseeable future using the same recruitment process. Even after 650,000 claims have already been advanced against scores of traditional defendants and thousands of peripheral defendants and at least hundreds of thousands of additional claims are certain to be brought over the remainder of the decade, the disconnect between asbestos-related injury claiming and asbestos-related injury continues apace.3 It has been almost 1. See, e.g., STEPHEN CARROLL ET AL., RAND INST. FOR CIVIL JUSTICE, ASBESTOS LITIGATION COSTS AND COMPENSATION: AN INTERIM REPORT at 16, 47 (2002) (stating that more than 225,000 deaths due to asbestos would occur from 1985 to 2009 due to exposure occurring between 1940- 1979) [hereinafter RAND REPORT]; William J. Nicholson et al., Occupational Exposure to Asbestos: Population at Risk and Projected Mortality—1980-2030, 3 AM. J. INDUS. MED. 259, 306 (1982) (noting in 1982 that roughly 8,200 people were expected to die from asbestos-related cancer annually, with that number increasing to approximately 9,700 by the year 2000). 2. See, e.g., Richard B. Schmitt, Burning Issue: How Plaintiffs’ Lawyers Have Turned Asbestos into a Court Perennial, WALL ST. J., Mar. 5, 2001, at A1 (stating that asbestos lawsuits have resulted in roughly $20 billion in damages and costs against a wide range of businesses). 3. In 2002, more than 56,000 new asbestos-related injury claims were filed, down from the 90,000 new claims filed in 2001, which was approximately triple the claiming rate of three years earlier. Roger Parloff, The $200 Billion Miscarriage of Justice, FORTUNE, Mar. 4, 2002 [hereinafter Parloff, Miscarriage]. The decrease in 2002 has been reversed. As of July 31, 2003, 51,564 claims have been filed with the Manville Trust. Telephone interview with David Austern, President, Claims Resolution Management Corporation, Manville Personal Injury Settlement Trust (Aug. 13, 2003). Certain industries have reported huge increases in filing rates, including increases of 721% in the textile industry, 296% in the pulp and paper industry, and 284% in the food and beverage industry. Id. 35 thirty years since large numbers of industrial plant and construction workers have been exposed to high levels of friable asbestos fibers in the course of their employment.4 Based upon the latency periods associated with asbestos-related diseases, rates of disease manifestation and claims based on such manifestation should have begun to significantly decline by no later than the mid 1990s.5 Proving impervious to the predictions of medical science, the litigation has not only continued to grow, but has been reinvigorated by a huge influx of newly recruited claimants, most of whom share a common characteristic: they have no discernable illness.6 As a legal phenomenon, the biggest litigation in history focuses attention on the role of courts in creating perverse litigation incentives by aggregating claims7 and by reformulating tort law and procedure to accommodate the needs of asbestos claimants thereby inadvertently creating opportunities for meritless claiming. It has also focused attention on the existence of courts in Madison County, Illinois, West Virginia, Jefferson County, Mississippi, and Beaumont, Texas, inter alia, where courts’ and plaintiff lawyers’ interests appear closely aligned. As an economic phenomenon, asbestos litigation has attained catastrophic proportions: thousands of companies named as defendants,8 nearly seventy companies bankrupted (and counting) of which one third have filed within the past three years,9 thousands of jobs lost, 4. Since 1973, there has been a “drastic reduction in asbestos usage” due in large part to fears of liability on the part of manufacturers. Hearing on Asbestos Litigation Before the Senate Comm. on the Judiciary, 107th Cong. 3 (2002) (statement of Steven Kazan) (citing STEPHEN CARROLL ET AL., RAND INSTITUTE FOR CIVIL JUSTICE, ASBESTOS LITIGATION COSTS AND COMPENSATION: AN INTERIM REPORT 12 (2002)) [hereinafter Kazan Statement]; ASBESTOS STRATEGIES, REPORT OF FINDINGS AND RECOMMENDATIONS ON THE USE AND MANAGEMENT OF ASBESTOS, GLOBAL ENV’T & TECH. FOUND. (2003); see also Alex Berenson, Panel Urges Complete Ban on Product With Asbestos, N.Y. TIMES, May 10, 2003, at C4 (noting that the “use of asbestos . has fallen drastically since the early 1970s”). Asbestos is still used in the manufacture of roofing materials, brake linings, cements and gaskets. Kazan Statement at 3. However, there is considerable evidence that the type of asbestos which is embedded in these products, chrysotile, poses much less of a health risk than the amphibole type of asbestos fiber. See Editorial, Mineral Fibres and Mesothelioma, 41 THORAX 161 (1986); A.R. Gibbs et al., Non-Occupational Malignant Mesothelioma, 90 IARC SCIENTIFIC PUBLICATIONS 219-28