Asbestos Claims Decline, but Questions Rise
By JONATHAN D. GLATER
Published: April 6, 2005
The wave of asbestos litigation that led to loud calls for legislation appears to have passed at least for now.
The number of claims filed against one of the biggest and oldest trusts set up to compensate victims of asbestos fell last year to its lowest level in more than a decade. And recent court proceedings have uncovered highly questionable practices by some of the doctors whose diagnoses allowed some asbestos claimants to collect.
The drop in claims against the Manville Personal Injury Settlement Trust, which lawyers said was a reliable indicator of a decline in asbestos claims over all, comes as some divisions have emerged among businesses over legislation that would set up a compensation system for claimants outside the court system.
A number of large insurance companies now say they no longer support legislation that would create such a huge federal trust fund.
But manufacturers and other businesses say change in the legal system is still necessary. Some of their arguments have been borne out in Federal District Court in Corpus Christi, Tex., where last month several doctors testified that they diagnosed silicosis in patients they had never met or interviewed. Silicosis is a respiratory disease caused by exposure to silica, which is used in making glass, paint, ceramics and other materials.
Some of the same doctors diagnosed both silicosis and asbestos-related diseases in claimants, so their testimony may cast doubt on claims, many of them already paid, that were filed in the past over asbestos-related disease.
Evidence was entered in the Texas court that some doctors had little training in how to interpret X-rays to find signs of the illness and they reached their conclusions after spending just minutes looking at an X-ray. Some doctors backed away from their
conclusions. One of them, Ray A. Harron, interrupted his own testimony to ask for a lawyer.
Questions about Dr. Harron’s diagnoses may undermine his prior diagnoses that more than 50,000 Manville trust claimants suffered from asbestosis. Diagnoses by Dr. Harron and four others together accounted for more than 20 percent of the total claims for which the trust has information on the identity of the diagnosing doctor, according to the trust.
“People have been assuming for quite some time that there was probably fraud out there in these mass screenings, that is, looking for disease in people that had no symptoms,” said Fred Krutz, a lawyer with Forman Perry Watkins Krutz & Tardy in Jackson, Miss. His firm is representing 30 companies that are defendants in the silica litigation.
But some lawyers representing people suffering from serious illness contend that the developments in Corpus Christi are evidence that the legal system can handle questionable claims and weed them out without new legislation.
“This is a classic example of the courts dealing with potential abuses in the system in an effective way,” said Peter Kraus, a lawyer with Waters & Kraus in Dallas who represents people with cancer caused by asbestos exposure. “What the defendants are trying to do is use this as a poster child for tort reform.”
The judge overseeing the silica litigation, Janis Graham Jack, is expected to send the various cases before her back to state courts sometime in the next few months, along with a recommendation on whether penalties should be imposed.
The details of the diagnoses underlying some silica claimants are striking. Some of the same doctors who diagnosed silicosis in claimants had previously found asbestosis – another disease, which doctors said was typically characterized by different scarring of a different part of the lungs in the people they examined.
Dr. Harron, who identified silicosis in a patient previously evaluated as suffering from asbestosis, was asked where the first illness went. He responded, “I don’t know.”
Another doctor, Barry S. Levy, an adjunct professor at Tufts University Medical School in Boston, testified in the Texas proceeding that he did not interview patients or collect any information on their personal histories to diagnose their condition. He concluded that hundreds of patients whose X-rays he reviewed suffered from silicosis, though in some cases he could offer no explanation of how a particular person was exposed to silica.
In another instance, Judge Jack wanted to know how a plaintiff who had been a schoolteacher for 27 years could have been exposed to silica. “They were sandblasting for 27 years in this elementary-school classroom?” she asked.
Dr. Harron abruptly cut off his own testimony after asking whether defense lawyers were accusing him of fraud. He decided he needed his own lawyer to represent him.
“If you’re accusing me of fabricating these things, I think that’s a serious charge,” Dr. Harron said.
The judge responded, “I think that’s what he’s doing.”
Attempts to reach Dr. Harron last week and yesterday were unsuccessful.
One of the contentious issues raised by the diagnoses of both asbestosis and silicosis is just how common it is to exhibit symptoms of both illnesses. Some doctors and all defense lawyers say such unfortunate people are rare, but labor advocates and plaintiff lawyers say that if someone is exposed to both materials, asbestos and silica, in the workplace at the same time or at different workplaces at different times, that person may well suffer both diseases.
“When you look at the kinds of workplaces where that is likely to happen or where you would have multiple exposures, in foundries would be one,” said Peg Seminario, director of safety and health for the A.F.L.-C.I.O. in Washington. “Probably in some of the steel industry,” or in shipyards, she added.
But Dr. Gary Friedman, who practices at the Texas Lung Institute in Houston, said that within those environments there were only a handful of trades that would expose people to levels of asbestos and silica that could result in both types of diseases.
“It’s exceedingly rare to find both diseases present simultaneously, such as is frequently claimed in litigation,” said Dr. Friedman, who testified on behalf of defendants in the Corpus Christi proceedings but who has testified for asbestos claimants in the past.
Supporters of a new law to provide for compensation to victims of asbestos, taking claims out of courts, argue that the huge number of asbestos claims filed – more than 600,000 so far – need to be dealt with in some more efficient and more fair way, even if the number of claims is falling. According to the Manville trust, in 2004 just 14,571 claims were filed against it, down from 91,640 in 2003. The last time the number of claims came in under 15,000 was in 1993.
“It could be a one-time thing,” Lisa Rickard, president of the Institute for Legal Reform at the U.S. Chamber of Commerce, said of the decline, adding that the trust had changed some of its criteria in recent years and that change could have affected the number of claimants.
Legislation to cope with asbestos claims is still needed, she said. “The situation is such that there are still a lot of cases all over the country. Those cases are going to continue,” she said. But others worry that any asbestos legislation might make it harder for people with both illnesses to recover fair compensation.
Senator Arlen Specter, Republican of Pennsylvania and chairman of the Senate Judiciary Committee, is expected to propose legislation as early as this week.
In a letter to senators, the A.F.L.-C.I.O. wrote in February that “we believe that the present legislation is and should remain an asbestos bill, and that it should in no way limit the legitimate tort claims of victims who have silicosis or other nonasbestos diseases.”
Some insurance companies have objected to the size of the $140 billion fund that could be created to compensate asbestos victims, and that could complicate efforts to pass a bill.
Questions about the validity of the silicosis claims raise obvious concerns about the conduct of doctors and lawyers backing them, but also raise deeper questions of how defense lawyers could have failed to spot, let alone do anything about, the apparent use of bogus claims before now.
“The explanation is that there wasn’t a huge incentive on the defense lawyers to do the spadework the way that, in ‘Double Indemnity,’ the insurance investigator does the spadework to make sure that the insurance company is not being ripped off,” said Anthony Sebok, a law professor at Brooklyn Law School. “It is extremely expensive to the client to do that work, and the client isn’t going to want to do that without a very strong argument from the lawyers.”
In the silica litigation, a big enough number of defendants faced thousands of claimants, so it became cost-effective to investigate the doctors, said Mr. Krutz, the defense lawyer. “It was always suspicious, but why it wasn’t proved sooner was this really was the first time that we had enough cases in one court,” he said.
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Reprinted with Permission.