Lawyers Seek Dismissal of Asbestos Lawsuits

Thousands of lawsuits against major companies have been dismissed over potentially fraudulent medical diagnoses of the lung disease silicosis. Now defense lawyers want thousands of asbestos cases dismissed for the same reason.

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Over the last year, courts of have dismissed thousands of lawsuits involved silicosis, a lung disease. The lawsuits were thrown out because of potentially fraudulent diagnoses.

Now, defense lawyers want thousands of asbestos cases dismissed for the same reason, as NPR's Wade Goodwyn reports.

WADE GOODWYN reporting:

For decades, asbestos defendants like Johns-Manville, General Electric, and Union Carbide have paid out billions of dollars in judgments and settlements to victims of asbestos poisoning. The willingness of asbestos defendants to settle mass tort claims instead of fighting in court resulted in the springing up of a cottage industry in lung disease litigation. Since the early '90s, companies that screen for lung disease have generated more than 500,000 of the 730,000 claims of asbestosis.

Mr. W.G. WATKINS (Attorney for Asbestos Defendants): When you have people diagnosing 200 and 300 cases a day, when you have people that are charging more for positive diagnoses than negative diagnoses, when you have the screening companies advertising or marketing their skill at getting a 80 to 90 percent positive rate on screenings - that just doesn't add up to anything but fraud.

GOODWYN: W.G. Watkins represents 46 asbestos defendants in cases around the country. Watkins says that in Ohio, judges recently threw out 35,000 asbestos cases because the diagnosing doctors refused to answer the court's questions on the grounds that it might incriminate them.

Mr. WATKINS: It is hornbook law that if you have a case, you must have causation in order to prevail in the case. It is clear that you can't have causation if the doctor who provides that causation testimony says I will not testify on the grounds that it may tend to incriminate me.

I've been doing this for 28 years now, and I have never had a doctor in a civil case assert a Fifth Amendment privilege when asked about diagnoses.

GOODWYN: Six doctors, all x-ray reading specialists call B-readers, have either taken the Fifth or disavowed their previous diagnoses. These six doctors alone are responsible for an estimated 140,000 asbestos claims.

Last month, Watkins asked a federal court in Philadelphia, where the federal asbestos cases have been consolidated, to dismiss all the claims based on these six plaintiff doctors' diagnoses.

Mr. WATKINS: We want the fraudulent doctors to be found to be frauds, and as a result, to exclude their testimony.

GOODWYN: But while the recent silica and asbestos rulings have the plaintiffs on the defensive, that does not mean they're in full retreat by any means.

Mr. JIM FERRARO (Asbestos Attorney, Florida): You know what? I'm tired of the defendants, you know, just not wanting to pay.

GOODWYN: Jim Ferraro has been an asbestos litigator for more than two decades.

Mr. FERRARO: You know, it's not just the nonmalignant cases they don't want to pay. They don't want to pay the malignancies, either. And they'll go in there, and they'll say start saying it's idiopathetic, it was caused by talc. I mean, its typical defense tactics where they just try to like hide the ball and avoid paying money.

GOODWYN: Ferraro concedes that the cases based on the three plaintiff doctors who were taking the fifth are most likely going to have to be abandoned. But Ferraro defends those cases that are based on the work of doctors who now say they never meant their x-ray reports to be considered true diagnoses.

Take Dr. Richard Levine, a B-reader responsible for more than 13,000 asbestos cases. Previously in depositions, Levine claimed he was making diagnoses. Here's an example of Dr. Levine's phrasings that can be found in many of his x-ray reports.

Quote, "There is bi-lateral pleural thickening and bi-lateral interstitial fibrosis. The combination of findings indicates previous occupational exposure to asbestos dust and is diagnostic of asbestosis."

That wording makes it seem that Dr. Levine is making a diagnoses of asbestosis. While these kinds of doctor's reports might have been unquestioned in the past, the legal landscape has now changed. And in a court affidavit two months ago, Dr. Levine backpedaled.

Quote, "My findings are intended to serve as a triage function, enabling the person sending the x-ray to me to obtain my radiological impression," Levine wrote. "Any person who purports to rely on my B-read or my report as a diagnoses of asbestosis or silicosis is wrong, and does so without my permission."

Dr. Levine and his lawyer declined to comment, but plaintiff lawyer Jim Ferraro says the attacks on Richard Levine's work are out of bounds.

Mr. FERRARO: That would be the defense bar going way overboard, because Dr. Levine is a fine doctor, and he has not ever recanted a diagnoses that I'm aware of.

GOODWYN: Ferraro says Levine is not actually disavowing his reports, he's just saying they weren't meant to be considered stand-alone diagnoses.

What is clear is that these doctors' reports and the hundreds of thousands of pending asbestos cases in state and federal courts around the country are under ever-increasing scrutiny.

Wade Goodwyn, NPR News, Dallas.

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