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Now, defense lawyers want thousands of asbestos cases dismissed for the same reason, as NPR's Wade Goodwyn reports.
WADE GOODWYN: 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.
WATKINS: When you have people diagnosing 200 and 300 cases a day, when you have people that are charging more for positive diagnosis than negative diagnosis, 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.
WATKINS: 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 diagnosis.
GOODWYN: 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.
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.
JIM FERRARO: 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.
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: 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.
FERRARO: That would be the defense bar going way overboard, because Dr. Levine is a fine doctor, and he has not ever recanted a diagnosis that I'm aware of.
GOODWYN: Wade Goodwyn, NPR News, Dallas.
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