Accuracy in Media

“Hurricane Katrina ripped the mask off of George Bush’s America,” Senator Tom Harkin recently said at his annual Steak Fry in Iowa. But his guest speaker, former Senator and Democratic Vice Presidential candidate John Edwards, has seen the mask ripped off some of his trial-lawyer buddies. Edwards, who used the Harkin event to lay the groundwork for a possible presidential run in 2008, is a trial lawyer whose profession is coming under serious scrutiny and receiving loads of bad publicity.

The national press didn’t make much of an issue of it at the time, but Edwards was accused of using junk science in some of his cases. Now it appears that the use of questionable or fraudulent data in cases filed by trial lawyers is far more widespread than previously believed.

The emerging scandal has Category 5 repercussions for the influential trial-lawyer lobby that Edwards got so much campaign cash from. Judge Janis Jack’s ruling back in July regarding some 10,000 cases before her involving claims of silicosis, an occupational lung disease, continue to reverberate across the legal landscape. As we wrote in a commentary back in August, Judge Jack sent 10,000 cases back to state court, and said in her 249-page opinion that the evidence used by the plaintiffs should be thrown out. And the case is now affecting the trust set up to compensate victims of asbestosis.

Judge Jack, a U.S. District Judge in Corpus Christi, Texas, also happens to have been a nurse, and is the wife of a medical doctor. Thus, she was able to look past the scam that was being foisted upon her, and declared that the case was “manufactured for money.” There has still been very little media coverage, other than the Wall Street Journal, and some regional papers.

Several significant developments have occurred since our last piece. As the Wall Street Journal recounted in an August 31st editorial titled, “Case of the Vanishing X-rays,” Judge Jack had told the plaintiff lawyers when she released her opinion that federal prosecutors wanted access to the documents and X-rays surrounding the “fraud.” But at a hearing in late August, Judge Jack learned that Houston attorney Scott Hooper, one of the plaintiff attorneys, had removed more than 1,300 X-rays from a court depository, after she had specifically denied his request to remove them.

She then demanded that he return them. He claimed that was impossible, but when Judge Jack ordered marshals to accompany him to retrieve them, he was able to return 1,219 out of 1,342. We’ll continue following this.

Then, while Judge Jack had sent most of the fraudulent cases back to state court, she kept one, the so-called “Alexander suit” which includes approximately 100 plaintiffs who claim to have silicosis. According to the Journal, “Judge Jack’s pretrial hearings helped discover that nearly 70% of these claimants had previously filed an asbestosis claim. Experts testifying in Judge Jack’s court had made clear that it is extremely rare for a person to have both asbestosis and silicosis.”

One of the lawyers in these cases, Richard Laminack, explained that he doubted his clients ever had asbestosis. In other words, to continue to try to make the case that the silicosis claims were real, he seemed to admit that their previous claims were probably false.

Now, a group of companies in Ohio facing a similar silicosis lawsuit are citing Judge Jack’s findings and pointing out that more than half of the 1,750 plaintiffs had previously filed asbestosis suits, and they want to know how this happened.

The next shoe to fall was found in a New York Times article from September 15. It pointed out that the Manville Personal Injury Settlement Trust, one of the oldest and largest trusts set up to compensate victims of asbestos exposure, is no longer making payments “to claimants who rely on reports by nine doctors and three X-ray screening companies.” Those nine named doctors are responsible for tens of thousands of the claims. Since 1988, the Trust has paid out $3.3 billion to settle more than 600,000 claims.  A subsidiary of the Manville Trust has been subpoenaed by federal prosecutors in New York as the investigation widens.

Deep into the story, the Times links all this to Judge Jack’s decision, which is the first time the Times has acknowledged the case since her ruling back in early July. “The creation of the list by the Manville Trust,” writes Jonathan D. Glater of the Times, “appears to be another aftershock from an unusual hearing in federal court in Corpus Christi, Tex., in February.” The aftershock is from the judge’s ruling in July, not the hearing in February.

“In the Corpus Christi proceeding,” writes Glater, “several doctors testified that they diagnosed silicosis in patients they had never met or interviewed. Some of the same doctors conducting separate examinations of the same claimants found only silicosis in one examination and only asbestos-related diseases in the other. That is not an impossible sequence of events, but it was considered unlikely that both illnesses in the same patient would not have been noted in one examination.”

While this appears to be terrible news for the trial-lawyer lobby and their knee-jerk opposition to tort-reform legislation, they are trying to spin this as proof that the courts are capable of handling even such questionable claims, and thus legislation is not necessary. That is probably wishful thinking on their part. Those seeking tort-reform legislation have never had such egregious examples of fraud and misconduct to support their case.

It’s not good news for John Edwards as he prepares a run for the presidency. He likes to talk about two Americas-the rich and poor. Perhaps he ought to address the reality of two other Americas-those who work honestly for a living and those who rip off the system through junk science and frivolous lawsuits.

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