On the Applicability of the Silica MDL Proceeding to Asbestos Litigation

In previous published writings on asbestos litigation, I discussed how the litigation underwent a radical shift in the mid-1980s from the traditional model of an injured person seeking a lawyer to an entrepreneurial model under which plaintiffs' lawyers and their agents actively recruited hundreds of thousands of potential litigants who could claim workplace exposure to asbestos containing products. I concluded that a substantial percentage of the nonmalignant claimants thus recruited had no disease caused by asbestos exposure as recognized by medical science and no loss of lung function. Recently, in a multi-district litigation involving approximately 10,000 silicosis claims, U.S. District Court Judge Janis Jack has issued findings with regard to silica litigation that largely track those that I had published with respect to asbestos litigation. Because silica litigation involves the same modus operandi as entrepreneurially generated nonmalignant asbestos litigation, the same screening enterprises, doctors, and law firms, it is reasonable to conclude that Judge Jack's findings apply with equal force to asbestos litigation. In this article, I discuss the significance of Judge Jack's findings. I begin by briefly reviewing the elements of the entrepreneurial model of nonmalignant asbestos litigation including screenings, bogus medical evidence created by a comparative handful of X-ray readers and doctors, the use of entrepreneurial witness preparation techniques to implant false memories, the mass filings of claims in a small number of jurisdictions with the intent and effect of overwhelming these courts' dockets, the judicial response of aggregating the claims in order to move them through the judicial system, the perverse effects of these aggregations, and the consequent defense strategies which included inventory settlements totaling billions of dollars though most of the claimants had no actual asbestos-related injury. I then consider the role of the comparative handful of specially certified doctors who are largely responsible for the production of specious medical evidence for hundreds of thousands of claimants. I discuss why certain doctors and screening companies refuse to produce evidence of their rate of positives that is, the percent of those they screen that they find positive for an asbestos-related disease because that could be smoking gun evidence of fraud. I then discuss how the silica MDL proceeding came about - a carefully planned strategy devised by defense lawyers who had been thwarted in prior attempts to compel doctors to provide discovery with respect to their thousands of diagnoses in other cases. By assembling a critical mass of 10,000 cases, defendants were able to precipitate a Daubert hearing. The strategy devised by defendants succeeded to a remarkable degree. In part, however, success was due to a stroke of luck. The MDL was assigned to U.S. District Court Judge Janis Jack, a former nurse who was married to a doctor. Relying on her knowledge of proper medical procedure, she quickly assessed that the process of generating medical evidence was not only medically improper but intendedly fraudulent. She held that the lawyers, doctors and screening companies were all willing participants . . . in a scheme to manufacture diagnosis for money. Despite the massive evidence of fraud that was documented, most judges presiding over the silica MDL would probably not have permitted the discovery that Judge Jack allowed. Finally, I discuss the impact that Judge Jacks' findings are having on asbestos litigation and, more broadly, on mass tort litigation.