WASHINGTON LEGAL FOUNDATION ATTORNEY REGISTRATION & DISCIPLINARY COMMISSION, ILLINOIS SUPREME COURT ATTORNEY-SPONSORED ASBESTOS SCREENING

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1 PETITION of the WASHINGTON LEGAL FOUNDATION to the ATTORNEY REGISTRATION & DISCIPLINARY COMMISSION, ILLINOIS SUPREME COURT Concerning ATTORNEY-SPONSORED ASBESTOS SCREENING Daniel J. Popeo David Price WASHINGTON LEGAL FOUNDATION 2009 Massachusetts Ave., N.W. Washington, D.C (202)

2 WASHINGTON LEGAL FOUNDATION 2009 MASSACHUSETTS AVE., N.W. WASHINGTON, D.C (202) James J. Grogan, Chief Counsel Attorney Registration & Disciplinary Commission Illinois Supreme Court One North Old Capitol Plaza, Suite 333 Springfield, IL Re: Attorney-Sponsored Asbestos Screening Dear Mr. Grogan: The Washington Legal Foundation (WLF) hereby petitions the Attorney Registration & Disciplinary Commission of the Illinois Supreme Court to investigate non-malignant asbestos claims that have been based on the results of attorney-sponsored screening programs. As we explain below, there is significant evidence that such claims have been contrived in large numbers in violation of the Illinois Rules of Professional Conduct. I. Interests of Petitioner Petitioner WLF is a nonprofit public interest law and policy center based in Washington, D.C., with supporters nationwide. Since its founding in 1977, WLF has engaged in litigation and advocacy to defend and promote individual rights and a reasonable and balanced civil justice system. In the area of asbestos litigation, WLF has frequently participated as an amicus in pending lawsuits to present a public interest perspective on the present crisis. For example, in In re Federal-Mogul Global, Inc, 300 F.3d 368 (3d Cir. 2002), cert. denied sub nom. DaimlerChrysler v. Official Committee Of Asbestos Claimants, 537 U.S (2003), WLF

3 Page 2 urged consolidation, in the bankruptcy court, of all asbestos cases related to asbestos claims Federal-Mogul Global (FMG), an automobile parts manufacturer forced into bankruptcy by an avalanche of asbestos lawsuits. In Norfolk & Western Railway Co. v. Ayers, 538 U.S. 135 (2003), WLF urged the Court to bar fear of cancer emotional distress damage awards in cases brought under the Federal Employers' Liability Act (FELA) based on exposure to asbestos in the absence of evidence that they have developed cancer. In Crown Cork & Seal Co. v. Ieropoli (Pa. No. 117 EM 2002), WLF filed a brief with the Pennsylvania Supreme Court urging it to uphold the constitutionality of a Pennsylvania statute that limits the liability of certain manufacturers that have been unfairly drawn into the asbestos litigation morass. Most recently, on February 6, 2004, WLF filed a brief in the Mississippi Supreme Court in 3M Company v. Johnson (Miss. No CA-1651), urging it to overturn a record $150 million asbestos product liability judgment awarded to six men, none of whom was injured. WLF argued that the award is a textbook example of the tort system run amok, with damages being freely awarded even in the absence of credible evidence of exposure to asbestos or negligence on the part of the defendants, proof that any alleged negligence caused the plaintiffs' alleged injuries, or proof that the plaintiffs suffered any damages. WLF s Legal Studies Division has published numerous papers from leading practitioners detailing the current crisis in asbestos litigation. These publications have included Frederick C. Dunbar and Denise Neumann Martin, Clearing Uninjured Plaintiffs From The Tort System: The Road To A Solution (2003); Stephen B. Kinnaird, Fear-Of-Cancer Claims After Norfolk & Western Railway v. Ayers (2003); Steve Hantler, Judges Must Play Key Role In Stemming Tide

4 Page 3 Of Asbestos Litigation (2003); Mark D. Plevin and Leslie A. Epley, Federal Appeals Court Urges Congressional Action On Asbestos Crisis (2002); and Richard O. Faulk, Legal Ethics And Clients' Rights: Casualties Of Asbestos Litigation? (2002). II. Background The hundreds of thousands of asbestos-based claims pending in United States courts amount to a catastrophe a catastrophe for the American economy, for workers suffering the effects of asbestos-driven corporate bankruptcies, and for those workers seriously injured by asbestos exposure who may not be able to obtain compensation thanks to the overwhelming number of illegitimate claims in the system. The RAND Corp., in a forthcoming study, has estimated that approximately 730,000 asbestos claims have been filed against some 8,400 companies, with a total payout so far of $70 billion. 1 Because the figure of $70 billion is so large as to be an abstraction, it may be helpful to put it in perspective: It is equivalent to more than seventeen Hurricane Isabels (estimated property damage: $4 billion) or twenty-eight repetitions of the Southern California wildfires of 2003 (estimated damage: $2.5 billion). 2 Estimates of the ultimate cost of all asbestos claims range from $200 to $265 billion. 3 1 See Injury Payouts Reach $70 Billion, Los Angeles Times, Feb. 7, 2004, at C-3. 2 See National Climatic Data Center, A Climatology of Extreme Weather and Climate Events 3 (2003). Available for download at 3 See RAND Institute for Civil Justice, Asbestos Litigation Costs and Compensation: An Interim Report 77 (2002) (hereinafter RAND Interim Report). Available for download at See also statement of Jennifer L. Biggs, Chairperson, Mass Torts Subcommittee, American Academy of Actuaries, to Committee on Property/Casualty Insurance, National Conference of Insurance Legislators, July 10, 2003, at 5

5 Page 4 Thirty corporations have filed for bankruptcy since 1990 as the result of asbestos litigation twenty-two of them since January 1, Among these are Armstrong World Industries (2000), Babcock & Wilcox (2000), Bethlehem Steel (2001), Combustion Engineering (2003), and Kaiser Aluminum (2002). 5 The result of these bankruptcies is that the company s stockholders (including 401(k) participants) lose their investment, the company s retirees may lose their health benefits, and payrolls are cut back. Victims of serious asbestos-related diseases legitimate claimants see their compensation cut off during the lengthy reorganization period. Moreover, as the asbestos bar seeks new defendants to take the place of bankrupted ones, an ever-greater number of companies are in the path of asbestos litigation: While early asbestos litigation was focused on asbestos and building products manufacturers such as Johns-Manville and Raybestos-Manhattan, and on shipyards where workers experienced major exposure, asbestos litigation today sweeps across nearly every U.S. industry. 6 In assessing the state of asbestos litigation, it is important to understand that there are several principal types of asbestos claims not all of which involve any actual medical impairment. A minority of claimants suffer from an asbestos-related cancers, either mesothelioma or lung cancer. These are rapidly-progressing fatal cancers. The other cases, known as non-malignant cases, involve either of two conditions that may result in impairment in severe cases, but which commonly have no medical effect at all: (hereinafter Actuaries Report). Available for download at 4 See RAND Interim Report, supra, at See Actuaries Report, supra, at See RAND Interim Report, supra, at 49.

6 Page 5 Asbestosis, a scarring of the walls of the air sacs within the lungs, can interfere with breathing in extreme cases; such cases, which are the outcome of heavy asbestos exposure, have become rare as victims of heavy industrial asbestos exposure have died. Pleural conditions involve changes on the pleural tissues that line the outside of the lung and the chest wall. They do not affect breathing or cause any other medical impairment except in very rare cases. 7 These non-malignant cases may thus involve an injury that consists of a physiological change that can be seen on an X-ray by a specialist, but which has no effect at all on the claimant s health or functioning. There may be an injury, in other words, only by virtue of an X- ray reader having determined there is an injury. Non-malignant claims are estimated to make up some 90 percent of all asbestos cases. 8 The flooding of the civil justice system with these cases is the source of the continuing growth of asbestos litigation and the resulting stress on defendants assets. 9 III. Reports of Fraud and Misrepresentation in Attorney-Sponsored Asbestos Screening While attempts have been made to address the asbestos litigation crisis through procedural devices such as mass class action settlements, it has become clear that the crisis in its 7 See RAND Interim Report, supra, at 17-18; Actuaries Report, supra, at 3, 6-7; statement of Steven Kazan, Hearing on Asbestos Litigation before the Committee on the Judiciary, U.S. Senate, Sept. 25, 2002, at 3-7 (hereinafter Kazan statement). Available for download at 8 See RAND Interim Report, supra, at 20, 64; Actuaries Report, supra, at 4; Kazan statement, supra, at 14; In re Joint Eastern and Southern Districts Asbestos Litigation, 237 F. Supp. 297, 314 (E.D.N.Y. 2002).

7 Page 6 current form has been fueled in large measure by improper recruitment of claimants specifically, those who have no impairment. As explained below, the alleged incidence of this improper recruitment in Illinois warrants investigation by the Attorney Registration & Disciplinary Commission. The effect of this situation on innocent victims of asbestos exposure has been highlighted by a plaintiffs attorney in congressional testimony: The current asbestos situation is a tragedy for our clients. We see people every day who are very seriously ill. Many have only a few months to live. It used to be that I could tell a man dying of mesothelioma that I could make sure his family would be taken care of. That statement was worth a lot to my clients, and it was true. Today, I often cannot say that any more. And the reason is that other plaintiffs attorneys are filing tens of thousands of claims every year for people who have absolutely nothing wrong with them. This bankrupts defendants who are then not there when it comes time to seek compensation for cancer victims and their families and it drains the assets of the trusts established to pay the claims of these companies after they reorganize in bankruptcy. 10 These claims frequently originate with mass X-ray screenings organized by plaintiffs attorneys. The attorneys contract with screening companies that set up a trailer near a place of industrial employment or a union hall. There, workers are offered a free chest X-ray if they sign a contract agreeing to a contingency fee should the attorneys obtain an asbestos recovery. Physicians known as B-readers, also hired by the attorneys or the screening companies, then evaluate the X-rays. An estimated 90 percent of non-malignant claims come from these screenings See RAND Interim Report, supra, at Kazan statement, supra, at See Kazan statement, supra, at 10-11, 20; David E. Bernstein, Keeping Junk Science Out of Asbestos Litigation, 31 Pepperdine L. Rev. 11, (2003); Lester Brickman, On the Theory Class s Theories of Asbestos Litigation:

8 Page 7 Because the X-ray results must be interpreted by professionals, there is both an opportunity and a motive for unscrupulous plaintiffs attorneys to engage compliant experts who will find evidence of asbestosis or pleural conditions whether it is there or not. Substantial evidence exists that this possibility has come to pass on a very large scale. As the U.S. District Court for the Eastern District of New York has noted, Claimants today are diagnosed largely through plaintiff-lawyer arranged mass screening programs targeting possibly asbestos-exposed workers and attraction of potential claimants through the mass media. The programs rely almost solely on chest X-rays and pro-plaintiff readers to identify the injured. 12 Early indications of misconduct in this process came to light as early as 1990, when the U.S. District Court for the District of Kansas addressed a fraud claim brought by an asbestos defendant against plaintiffs attorneys based on a mass screening process that generated 6,000 asbestos claims. The trial judge termed the claims process a professional farce and stated that it appears this unusual, distasteful, and disappointing case emanates from the attorneys greed, which has clouded their professional judgment, i.e., their indifference as to whether any of the 6,000 claims meet professional standards or not. 13 The practice would prove not to be unusual, however. In 1995, the Manville Trust (the trust formed to settle asbestos personal injury claims against Johns-Manville Corp.) created a program to spot-check a random sample of plaintiffs X-rays. The Trust retained independent B- The Disconnect Between Scholarship and Reality?, 31 Pepperdine L. Rev. 33, (2003); Roger C. Cramton, Lawyer Ethics on the Lunar Landscape of Asbestos Litigation, 31 Pepperdine L. Rev. 175, (2003). 12 In re Joint Eastern and Southern Districts Asbestos Litigation, 237 F. Supp. 297, 309 (E.D.N.Y. 2002) (Weinstein and Lifland, J.). 13 Raymark Industries, Inc. v. Stemple, 1990 U.S. Dist. LEXIS 6710, 6, (D. Kan. 1990).

9 Page 8 readers. Each X-ray in the spot-check program was examined by two B-readers, and was flagged as a false claim only if both B-readers separately determined that they saw no sign of even lowlevel effects. Approximately 50 percent of the X-rays in the audit failed the review. 14 Just ten B- readers accounted for 60 percent of all asbestos claims filed against the Trust that year. 15 Anecdotal evidence of misconduct has continued to appear. A former employee of a screening company testified that the company tested 15,000 20,000 claimants during his tenure there, of whom 70 percent were determined to be positive for asbestosis or pleural conditions. A doctor who had evaluated the X-rays of 14,000 individuals for two screening companies testified in 2002 that he had found asbestosis in every one of those claimants. Other doctors have testified to positive yield rates in the range of 60 to 90 percent. 16 The court overseeing all asbestos cases in federal courts, the U.S. District Court for the Eastern District of Pennsylvania, has dismissed without prejudice all cases initiated through a mass screening, noting that the filing of mass screening cases is tantamount to a race to the courthouse and has the effect of depleting funds, some already stretched to the limit, which would otherwise be available for compensation to deserving plaintiffs. 17 It appears that the practice continues to run rampant in state court litigation, however, and begs for enforcement of ethics rules by the Attorney Registration & Disciplinary Commission, as further detailed in the following section. 14 See RAND Interim Report, supra, at See Brickman, supra, at 92 n See Kazan statement, supra, at 21 n.60; Brickman, supra, at n.164.

10 Page 9 IV. Attorney Responsibilities Violated by Improper Asbestos Screening The corrupt evidence forming the basis of thousands of asbestos claims is within the disciplinary authority of this body. Rule 3.3(a) of the Illinois Rules of Professional Conduct provides that a lawyer shall not knowingly... offer evidence that the lawyer knows to be false. Rule 3.3(a) also provides that a lawyer in an adjudicative proceeding who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. In addition, Rule 8.4 provides that it is professional misconduct for a lawyer to, inter alia, engage in conduct involving dishonesty, fraud, deceit or misrepresentation or engage in conduct that is prejudicial to the administration of justice. The definitional section of the Rules states that a person's knowledge of falsity or fraudulence may be inferred from circumstances. There can be no question but that the practitioners filing these asbestos claims based on mass screenings, with X-rays interpreted by compliant doctors, are fully aware of the false and fraudulent character of the claims. Everyone involved from the screening companies to the B- readers to the attorneys themselves knows that the entire purpose of the exercise is to generate large numbers of positive readings whether the claimants are actually impaired or not. The effect has been a scheme to enrich unimpaired claimants and their attorneys at expense of shareholders and seriously ill victims of asbestos exposure. 17 In re Asbestos Products Liability Litigation, 2002 U.S. Dist. LEXIS 16590, 2-3 (E.D. Pa. 2002).

11 Page 10 CONCLUSION The Washington Legal Foundation respectfully requests that the Illinois Attorney Registration & Disciplinary Commission initiate an investigation into the practice of mass asbestos screenings and bring disciplinary proceedings where warranted. Respectfully submitted, Daniel J. Popeo David Price WASHINGTON LEGAL FOUNDATION 2009 Massachusetts Ave., N.W. Washington, D.C (202)

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