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In a bold and unprecedented move that could drastically alter the nature of asbestos litigation, a coalition of 47 companies last week asked a federal judge to dismiss tens of thousands of pending cases, alleging that the vast majority of them are premised on flawed or fraudulent medical diagnoses. In the motion, defense lawyers say they are targeting claims that stem from “mass medical screening enterprises” which, they say, have clogged the courts with thousands of bogus asbestos claims. The motion was filed before U.S. District Judge James T. Giles, who is presiding over a case known as MDL 875, the name for the multidistrict litigation in which all pending federal asbestos claims were consolidated. In the motion, the asbestos defendants are asking Giles to do two things. First, they want the judge to exclude all expert testimony from six doctors who the companies say either have taken the Fifth Amendment against self-incrimination when asked to testify about their methods or have disavowed diagnoses attributed to them. According to court papers, a federal grand jury in the Southern District of New York is currently looking into asbestos doctors and screening companies. Since the probe began, some of the doctors have begun invoking the Fifth Amendment when asked to testify. The brief says that since 2002, the six doctors have authored more than 140,000 medical reports for asbestos claimants. The second request is that Giles “dismiss without prejudice all nonmalignant cases” in MDL 875 “subject to reinstatement upon production by plaintiffs … of diagnosing documents by a doctor other than the six doctors.” The motion was filed by a team of lawyers from Forman Perry Watkins Krutz & Tardy in Jackson, Miss., led by attorney Walter G. Watkins Jr. Among the defendants joining in the motion are some of the most prominent in asbestos litigation, including CertainTeed Corp.; Owens-Illinois Inc.; General Electric Co.; Ingersoll-Rand Co.; Union Carbide Corp.; and Amchem Products Inc. Watkins argues in the motion that MDL is so infected with fraudulent claims that the only solution is to dismiss all suspicious claims while allowing any plaintiff to refile if he or she can meet a standard for validity. “Asbestos litigation has long been plagued with rumors of corruption with no aspect of the litigation more in question than mass medical screening enterprises,” the brief says. “The diagnoses of asbestos plaintiffs by screening doctors and screening companies have fueled the filing of hundreds of thousands of meritless asbestos claims throughout the United States.” The motion cites heavily from the findings of a 2005 study by the RAND Institute for Civil Justice that said out of the approximately 730,000 asbestos plaintiffs’ claims filed in the past 30 years, more than 500,000 were filed after the formation of screening companies in the early 1990s. The RAND study estimated that more than 90 percent of all pending asbestos claims are screened nonmalignant plaintiffs. “Though this litigation has been in the courts for decades, most of the costs lie in the future if these baseless claims are allowed to continue,” the motion says. According to the RAND study, $70 billion was spent on asbestos litigation through 2002, and an additional $130 billion to $195 billion is predicted to be spent in the future. In last week’s motion, defense lawyers argued that the recent spike in asbestos claims is a direct result of the screening processes used to find new plaintiffs. “There is a gaping disconnect between the number of asbestos claims filed and the incidence of actual asbestos illness in the population of mass tort plaintiffs,” the motion says. “This great divide is the direct and absolute result of ‘medical’ screenings, which are simply massive recruitment programs established for the sole purpose of finding potential litigants in an effort to tap into the perceived multibillion-dollar asset pools controlled by defendants and insurance companies involved in the litigation.” According to the brief, mass asbestos screenings “all function in the same basic manner.” Typically, the brief says, a plaintiffs lawyer “initiates an asbestos screening by hiring a screening company and placing an advertisement in a local newspaper.” The ad directs potential plaintiffs to arrange for an appointment to have chest X-rays taken, the brief says. “These potential litigants then travel to a hotel, motel, union hall, parking lot, or some other equally unsuitable site, and have chest X-rays shot in an assembly-line process using equipment brought in on a mobile van or truck,” the brief says. Upon completion of the X-rays, the brief says, the films are typically turned over for review and analysis to a reader who is certified by the National Institute for Occupational Safety and Health and selected by the plaintiff lawyer or the screening company. The process, the brief says, is rife with problems that lead to a high percentage of fraudulent diagnoses. “Unlike in legitimate medical screenings where the recording of patient information such as current medications, age, race, medical history, and exposure history is crucial to prevent errors in the interpretation of X-rays, the asbestos screening companies typically hire persons who lack any qualifications or training to gather this vital information,” the brief says. “Moreover, the screening companies and screening doctors are often compensated for their medical expertise and interpretation only if there is a positive finding of asbestosis,” the brief says. Since 1986, the brief says, numerous studies have been conducted to measure the accuracy of litigation-related asbestosis screenings and their resulting diagnoses. “The most optimistic concluded that about 66 percent of the positive findings by litigation doctors and screening companies were unfounded, while other studies found upwards of 80 percent to 97 percent of the screening doctors’ positive diagnoses to be bogus,” the brief says. But lawyers for two of the doctors named in the brief said last week’s motion was an attempt to intimidate doctors. Jed Stone, who represents Andrew W. Harron, defended him as a talented radiologist and said there is no evidence that he has ever misread an X-ray. “It’s an attack on a good doctor who does good work in order to protect someone’s financial interests,” Stone said. “It really is almost shameful.” The brief notes that Harron is one of the doctors who has invoked his Fifth Amendment right not to testify when asked if he followed proper diagnostic methods when screening for asbestosis. But Stone said Harron was simply concerned about the direction of the New York federal grand jury, and that his action was not an admission of guilt. “It is true that before the Congress of the United States and in depositions, Dr. Harron has exercised constitutional privilege,” Stone said. “He has done that because it is a time-honored tool to make sure his rights are protected.” Attorney Lawrence S. Goldman, who represents Ray A. Harron (Andrew Harron’s father) and another of the six doctors named in the motion, said the asbestos industry is using the doctors as scapegoats. Goldman said the asbestos defendants are trying “to intimidate doctors who have made legitimate diagnoses on behalf of people who do not have the same power as multinational companies with tens of millions or hundreds of millions of dollars in their war chests.” But the asbestos defendants argue in their brief that the testimony of all six doctors must now be rejected by the courts because each of them has either invoked the Fifth Amendment — which allows for an “adverse inference” �– or filed a sworn affidavit saying they have never made a diagnoses of an asbestos-related disease. As a result, the brief says, all six have been “conclusively discredited as doctors able to render a diagnosis of asbestosis worthy of serving as the basis for any plaintiff’s cause of action.” The Associated Press contributed to this report.

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