In this issue...
Asbestos Tests Wrong
Legislative Alerts
Legal Fees Overturned
TLR
Asbestos Tests Wrong
The respected journal Academic Radiology recently published a revealing new study confirming what is widely known in legal and medical communities: that diagnoses by doctors commissioned by plaintiffs’ lawyers to conduct mass screenings in asbestos litigation are wrong almost all of the time. The purpose of the study was to determine if x-ray interpretations by physicians retained by plaintiffs’ attorneys would be confirmed by independent x-ray readers.
The authors of the study had access to 492 interpretive reports of radiographs made by doctors hired by plaintiffs’ attorneys. Six additional doctors were given the reports and radiographs, to make an independent interpretation of the x-rays. These doctors were “B readers,” certified in the reading and interpretation of x-rays. They were not told why they were being asked to make the interpretations, so as not to prejudice their work in any way.
The plaintiff-lawyer doctors had interpreted the radiographs as positive for parenchymal abnormalities—a reading consistent with exposure to asbestos—in 95.9% of the 492 cases. By contrast, the six independent doctors made positive readings in only 4.5% of the readings. In other words, doctors hired by plaintiffs’ lawyers found positive readings in 472 out of the 492 screened persons. Independent B readers, however, found abnormalities in only 22 out of the same 492 screened persons! This study, which is consistent with similar ones done by the Rand Institute and others, illustrates what United States Senator John Kyl has labeled, in plain language, as “fraud.”
The mass screenings produced by doctors hired by plaintiffs’ lawyers have caused tens of thousands of claims to be made on behalf of persons who are not sick, and who are not suffering from any asbestos-related illness. Many knowledgeable observers believe that only 10 to 15% of the asbestos claims on file today are for persons who actually have physical impairments that can be linked to asbestos. There are a few extremely affluent law firms—several located in Texas—which, according to Professor Deborah Hensler of Stanford Law School, “represent many people who currently have pleural plaques, but are not disabled.”
When a lawyer files a claim on behalf of a person who is not sick, and settles that claim at a time when the claimant does not have any discernable ailment, then the claimant is stuck with that compensation, often quite small. If the claimant later develops a real asbestos disease, he is barred from seeking additional compensation (unless he develops a malignancy). Another problem is that when defendants are forced to pay out money to persons who are not ill or impaired, truly sick persons lose out, because the funds available for compensation are reduced by amounts paid to the non-sick. The situation is so outrageous that many plaintiff lawyers who represent only truly sick clients are speaking out. Steven Kazan has observed that asbestos litigation “has nothing to do with health anymore, and everything to do with lawyers taking advantage of economic opportunity.” Matthew Bergman has stated that “the genuinely sick and dying are often deprived of adequate compensation, as more and more funds are diverted into settlements of the non-impaired claims.”
The asbestos litigation crisis in America—and in Texas, which is home to perhaps as many as 40% of all asbestos claims—is huge, and rising. Through 2003, there have been over 700,000 claims filed—110,000 in 2003 alone. The cost of this litigation so far is over $70 billion, and estimates are that final costs will exceed $250 billion. Most of the payments made by defendants go to litigants’ lawyer fees and other transaction costs, leaving claimants with less than fifty percent of the total payout. There are an estimated 8,000 defendants being sued for asbestos related matters, including corporate giants such as Pfizer and Ford Motor Company, as well as small businesses, such as a foundry in East Texas which has had over sixty claims filed against it, although it does not believe any of the claimants were ever employed by it. There have also been over 70 asbestos-related bankruptcies by American companies, one cost of which has been the loss of more than 60,000 American jobs. Employees of bankrupt companies, even those who continue to be employed, often lose their health care and pension benefits.
The time is long overdue for Texas to put a stop to these abuses. TLR proposes that the Texas Legislature adopt sound medical criteria for determining when a person has a physical impairment caused by asbestos. Once that person meets the criteria (which are well established in medical literature), he can pursue his claim—but not before. The statute of limitations for asbestos-related claims would be amended and clarified to assure that when a person meets the medical criteria, he or she will be able to pursue a claim in court. The TLR proposal contains other provisions which would bring fairness and clear thinking to asbestos litigation. Senator Kyle Janek carried similar legislation last session, and is expected to sponsor asbestos reform legislation in 2005, as is Civil Practices Chairman Joe Nixon in the House.
Legislative Alert
Texans for Lawsuit Reform communicates on a regular basis with its supporters throughout Texas, sharing news articles of interest, research, and legislative plans. While many supporters read every word, some have told us that in the rush of daily life, there is just not enough time to digest all the information about lawsuit abuse—and solutions—that TLR regularly sends out.
“It’s the first question I ask when I talk with supporters,” said Ken Hoagland, TLR’s Director of Communications. “Is it too much, too little, or just the right amount? Usually people tell me it is about right.”
“We work hard to keep our 12,000 supporters up to date on trends, new areas of litigation abuse, and political news. During the legislative sessions, we are constantly working to share the latest developments in committees, and on the floor of the House and Senate,” said Richard Weekley, TLR CEO and founder.
All of the information sent to supporters is relevant to our goal of restoring litigation to its appropriate role in our society, but the single most important communication we send is the Legislative Alert,” said TLR President Dick Trabulsi. “If TLR supporters read nothing else, the e-mails, faxes and mail we send containing Legislative Alerts should be considered ‘must read’ communications,” Trabulsi said.
“The Legislative Alert is really where the rubber meets the road, because it is a call to action for supporters to make their voices heard to our elected representatives,” said Hoagland. Typically a Legislative Alert will contain information about a vote pending on important reform legislation, along with contact numbers for the legislators.
“Time after time, we have found that it is the voice of the informed citizen that makes the difference when a bill is stuck in committee, when there are unwarranted delay tactics on the floor of either chamber, or when our opponents have tried to twist arms in the hallways of the State Capitol,” said Weekley.
TLR supporter communications have been credited in past legislative sessions with breaking logjams and moving critically needed bills to the floor of the House and Senate. “Although we do extensive research, employ a talented legislative and legal team, and present compelling evidence in hearings on the need for reform, it is often the voice of the constituent that tips the balance in favor of legislative reform,” said Trabulsi.
“We are a grassroots army of letter writers,” declared Hoagland. “It is inspiring to witness the democratic process working when citizens make their wishes known to their elected officials. It is exactly the process our Founding Fathers envisioned and it remains today the most powerful single element for winning real reform,” he said.
Outrageous Legal Fees Overturned
One area of law that consistently attracts abusive practices is the appointment and payment of “ guardians ad litem.” Often when there is a suit for personal injury, and one of the plaintiffs is a mentally incompetent person or a minor, the judge will appoint a lawyer to represent that person to make sure the lawsuit adequately deals with their interests, apart from, say, those of the minor’s parents. While the concept is basically sound, it is subject to abuse. Sometimes a judge will appoint a friend or political ally as ad litem counsel, rewarding the counsel significant, and sometimes largely unearned fees.
In a recent article by Mary Alice Robbins in Texas Lawyer, the reporter discusses an ad litem fee case decided by the San Antonio Court of Appeals (4th Circuit). Goodyear Dunlop Tires North America Ltd. vs. Gamez, et al. concerned trial judge Raul Vasquez’s award of almost $400,000 in ad litem fees to six Laredo attorneys, whom he had appointed as counsel for the children of migrant farm workers killed or injured in a van rollover in Arizona. The bills for the lawyers apparently included charges for sleeping, and for working more than 24 hours in a day.
In a 3-0 decision, the Court of Appeals directed the trial judge to recalculate his award of fees to the attorneys, to conform to the appeals court’s decision. Justice Sarah Duncan wrote a concurring opinion “to express my shock and outrage at the billing practices exhibited in this case by these ad litems.” She went on to inquire, “How could any lawyer defend billing for more than 24 hours in a day...two to four hours to review a standard one page deposition notice...or five hours for sleeping?” The appellate court noted that one of the ad litem counsels did not even attend the settlement conference, “the very activity that was clearly within his guardian ad litem role.” One of the lawyers charged 65 hours for two associates, one of whom was unlicensed, to prepare for, telephonically attend, and summarize every deposition in the case at $150 per hour. Another attorney billed for an associate’s time preparing for and traveling to a deposition in McAllen that was cancelled, and not relevant to her minor client.
Fortunately, there were Texas judges on the appellate bench who noticed and were able to stop the abuse of discretion by a Texas trial judge and the six attorneys to whom he awarded outrageous fees in the Goodyear case. The Texas Supreme Court is currently considering proposed Rule 173, which will clarify a guardian ad litem’s role in civil suits for damages. According to Texas Lawyer, “The proposed rule would prohibit an ad litem from participating in discovery, court proceedings, or trial, except for mediation, unless ordered by the trial court to do so for ‘sufficient reasons shown.’” Texans For Lawsuit Reform will encourage the Supreme Court to adopt strong rules regulating the ad litem practice, to prevent the kinds of abuses revealed in the Goodyear case.
TLR Administrative Staff
Glenda Hovey and Kristie Vazquez work tirelessly, often behind the scenes, to make sure that Texans for Lawsuit Reform's operations run smoothly. Glenda and Kristie, in our Houston office, manage a broad range of TLR logistic and support activities. They maintain the TLR website (tortreform.com) and computer data bases, are critical to our mail program, are responsible for corporate files, and work with our accountants and insurance agents. They also assist with the whole range of activities at TLR, especially with our communications to supporters and the public at large. Glenda and Kristie are dedicated, accomplished, and joyful people. “I love my job. It's very challenging and keeps me hopping, but that's why I love working at TLR,” observes Glenda. Kristie comments, “It is a pleasure to work with the TLR team, because they are very genuine and truly care about the people of Texas.” Glenda and Kristie are two important reasons why TLR is succeeding in its efforts to create a fair and balanced civil justice system in Texas.
