Trial by Fury, by Ronald Rychlak

The Wall Street Journal editorializes today (subscription required) on a rare bit of good news from the world of tort law:

If the criminal investigation of class-action titan Milberg Weiss is anything to go by, prosecutors may finally be starting to hold the trial bar accountable for its legal abuses. Another good sign is that a separate federal grand jury, this one in New York, is investigating the ringleaders of the latest tort scam, silicosis.

Much of the credit for pointing the grand jury toward this corruption goes to Texas federal Judge Janis Graham Jack, who last month put the brakes on the silicosis machine with an extraordinary 249-page decision. Judge Jack not only blasted nearly every one of the 10,000 silicosis claims in front of her court, she documented the fraudulent means by which lawyers, doctors and screening companies had manufactured the claims. “These diagnoses were about litigation rather than health care,” wrote Judge Jack. “These diagnoses were manufactured for money.”

The facts of this case would be comical if they didn’t represent a gigantic effort to pervert the legal system into a cash cow for unscrupulous lawyers:

A former nurse, [Judge Jack] couldn’t understand how a disease that causes on average fewer than 200 deaths annually in the U.S. had suddenly resulted in more than 20,000 claims from Mississippi and surrounding states. To get to the bottom of the suits against some 250 companies, the Clinton appointee held 20 months of pretrial proceedings. What she found was a gigantic attempted swindle.

Her first discovery was that, of the more than 9,000 plaintiffs who supplied more information about their “disease,” 99% had been diagnosed with silicosis by the same nine doctors. These physicians had been retained by law firms or by “screening companies” that do mass X-rays on behalf of law firms searching for plaintiffs. When these physicians were deposed, they all but admitted they took their orders from the lawyers and screening firms…

…Another shocker was that more than 65% of the silica plaintiffs had previously been plaintiffs in an asbestos suit, even though it is close to clinically impossible to have both asbestosis and silicosis. Digging deeper, the judge found that many of the same doctors had ginned up the same patients for both asbestos and silicosis cases. One doctor, Ray Harron, received nearly $5 million from 1996-2004 from a leading screening company, N&M, and has supplied thousands of silicosis diagnoses, and at least 52,000 asbestos-related diagnoses.

Representatives from N&M admitted in court that they had no medical training and that their company has never had a medical director. They confirmed that law firms often set the criteria for the silicosis screening process, and that the screening companies were paid by the volume of people who ultimately joined a lawsuit. As N&M owner Heath Mason testified, his business depended on doing “large numbers.”

Thankfully, in this case a conscientious judge stopped the fraud in its tracks, and now a Manhattan grand jury is examining the conduct of the individuals who so recklessly tried to abuse the system. That investigation will be worth keeping an eye on.

Be sure to visit Acton.org’s special section on tort reform, where you will find a wealth of resources dealing with the important legal, societal, and moral issues that arise from the abuse of tort law, including the most recent addition to Acton’s Christian Social Teaching series: Trial by Fury: Restoring the Common Good in Tort Litigation.