Results matching “silicosis”

Joe Nocera nails it - PointOfLaw Forum

In today's New York Times:

Yes, there are certainly times when the court system provides the appropriate forum to address corporate wrongdoing. But just as often -- more often, in my view -- plaintiffs' lawyers gin up cases because, well, that's what they do. Like the corporations they sue, big-time plaintiffs' lawyers have a business model. Theirs requires them to constantly seek out cases that can be blown up into giant mass torts, as they're called, which can then be used to extract billions from companies.

I've seen mass torts where the actual plaintiffs get coupons while the lawyers reap millions. Mass torts where the connection between the product and the harm is illusory. Mass torts built on fraud (silicosis). Complex litigation settled for billions even when the government implies that consumers are responsible (Toyota sudden acceleration). I've also seen cases where some victims hit the jackpot with a giant jury verdict and other victims come up empty. Or where a corporation really has done harm but pays off the lawyers instead of the victims. Over the years, I've thought: There's got to be a better way.

The Lawyer as Racketeer - PointOfLaw Forum

Two Pennsylvania attorneys and a West Virginia doctor they hired to read clients' X-rays have just been found liable by a federal jury in Wheeling, WV for violating the (federal) Racketeer Influenced and Corrupt Organizations Act, and for (state-law) fraud, in connection with asbestos claims made against CSX Transportation. The jury awarded $429,240.47, which was the amount CSX said it had spent to defend the 11 claims, against Pittsburgh attorneys Robert Peirce and Louis Raimond and Bridgeport, WV radiologist Ray Harron.

Peirce had filed more than 14,000 asbestos cases against CSX. Harron had diagnosed tens of thousands of asbestos claims for the attorneys. Harron's diagnoses were first called into question in 2005 by a judge in Texas that heard cases involving the lung disease silicosis. CSX filed its lawsuit later that year, claiming Kentucky railroad worker Earl Baylor was fraudulently diagnosed with asbestosis. At the trial, CSX attorneys argued that Harron had initially found hundreds of patients clear of asbestosis, but later switched his diagnosis. It presented only 11 of those cases, likely because of statute of limitations or solvency issues.

The West Virginia verdict follows a May 2012 federal appeals court ruling upholding a $420,000 fraud verdict against two Mississippi lawyers, William Guy and Thomas Brock, for committing fraud during an asbestos lawsuit they filed in 2001.

Stop complaining about the legal job market - PointOfLaw Forum

The Above the Law blog is filled with complaints about the legal job market. It's too hard to find a high-paying job; the high-paying jobs require a lot of unpleasant unenjoyable time-consuming work. I may have had some sympathy for this a few years ago. Today, I just don't want to hear it.

I started the Center for Class Action Fairness in 2009 on a whim, with the vague goal of racking up some court experience that might let me establish a law-school clinic and sneak onto a tenure track at an advanced age, and maybe do some good in the process. Then I discovered how much I like litigation when I have autonomy and don't have to make arguments I don't believe in, and discarded the idea of writing law-review articles no one would read. Today I have two attorneys working for me, a fascinating docket, and get to argue more appellate cases every six months than I did in my entire ten-year BigLaw career. Every month, I'm presented with class action settlements where class members have legitimate objections and want to object, but my attorneys don't have the time because of other opportunities or commitments. Every month, I'm presented with still other class action settlements where class members would have legitimate objections, but no class member ever approaches me. If I were more gregarious and extroverted and proselytized for my cause better (and if I wasn't burdened with a right-wing resume that has the consumer blogs skeptical of my motives and refusing to write about me), I'd be even more utterly overwhelmed with these opportunities. I don't have a monopoly on class action objections or helping consumers and shareholders. At the risk of creating competition that cannibalizes my donors, go do what I do, maybe you'll do it better. You'll certainly make more money than me and my attorneys do if you don't handcuff yourself with a non-profit structure; this year alone, we've sacrificed hundreds of thousands of dollars of legitimate attorney-fee requests because we would have exceeded IRS limits if we asked for everything we were legally entitled to.

Ivy League schools have been discriminating against Asian-Americans for years; affirmative action programs produce illegal racial discrimination and entitlement to attorneys' fees in places other than New Haven; the Obama administration is engaging in any number of lawless counterproductive activities that could be stopped by litigation; there's a potential opportunity to profitably advocate on behalf of mass-tort clients victimized by their attorneys. Mad at your law school? Find a friendly tenured law professor and bring an antitrust class action against the AALS. Sue telemarketers that violate the TCPA: be the one who takes down those bastards at Card Services. Go, find clients, toil in obscurity and poverty for a few years, come out millionaires.

And these are just some of the things I would do if I didn't have to sleep or if there were 144 hours in the day or I could clone myself five or six times. And it drives me nuts because nobody's doing them!

Even if all you're looking for is money, the plaintiffs' mass-tort bar charges their clients 35-40% of recovery and flies around in Gulfstream jets. Be the one to charge clients 20-30% and settle for flying in first class.

On the defense side, does BigLaw really add enough value to justify $2M PPP partners—who make that money after the overhead of expensive offices in the middle of the city? Perhaps in mass-tort cases mobilizing hundreds of attorneys, but there's lots of other low-hanging litigation fruit for the picking. You don't need to be physically near the courthouse; everything's electronically filed these days. Get together with three of your law school friends, find a loft on the cheap side of town, bill lower rates for fewer hours, and make more money, or at least "enough" money to enjoy your newfound leisure and autonomy.

Your career ideas don't have to be my ideas. You went to law school for a reason; find a cause you love, and advocate for it, and, to the extent it's not entirely crazy, the money will follow; even if it doesn't, you'll be happier. Tikkun olam, even if your goals aren't mine. (From July 1, 2011, to June 30, 2012, class action settlement objectors won a grand total of seven federal appeals. I won four of those cases. If you're a regular reader of mine, you know more about this area of the law than I did when I started. How many other areas of the law are there that have gotten corrupted and could be meaningfully moved in the right direction with a little effort? Go find them.)

Want to know a secret that will help you even if you stick around in (or decide to go into) BigLaw? The law is big. Really big. Too big for anyone to learn completely. There are millionaire lawyers who barely understand civil procedure, but they hire someone who sort of does or fake their way through it. Pick an area of the law and learn it thoroughly, thinking hard and skeptically about it. There's no barrier to entry to reading cases and law review articles. Just by doing that, you'll become one of the top fifty attorneys in that area, and the other 49 are earning good livings. If it's a minor area of the law (like, say, class action settlement objections), and you put a couple of thousand hours into learning it and thinking about ways to make it better, you'll become one of the top five attorneys in that area before you know it.

But stop whining. The minute you become a member of the bar, you're a member of a cartel that permits extraordinary rents. And with 21st-century technology, you don't need a lot of help to make it out on your own.

O'Quinn silicosis clients sue - PointOfLaw Forum

I was the first to report when John O'Quinn's breast-implant clients successfully sued his firm for tens of millions of dollars of improper overbilling. [April 2007; June 2007; July 2007; Olson follow-up December 2009]

Now a group of O'Quinn's silicosis mass-tort clients allege similar overbilling and double-billing, including the pass-along to clients of referral fees paid to medical testing companies; document destruction and coverup is also alleged. A former O'Quinn partner denies everything, and claims a state probate court already rejected the allegations. [Alison Frankel @ Reuters]

Garance Franke-Ruta has a rule regarding married politicians' affairs: paraphrased, it's "It's never two. It's either one, or many." It would seem probable that the same principle is true for mass-tort lawyers: why would an attorney who skims tens of millions of dollars of recovery from breast-implant clients suddenly turn ethical and fastidious when it comes to similarly situated silicosis clients? And if the silicosis allegations are true, perhaps fen-phen and asbestos clients of O'Quinn's might want to look at their bills a bit more carefully? Another question that comes to mind is whether O'Quinn was especially aggressive when it comes to mass-tort billing, or whether other mass-tort settlements from other attorneys have similar skimming. Every once in a while there's a news story that suggests this could be a fruitful line of inquiry. Dickie Scruggs was reckless enough to attempt to bribe judges to get an upper hand in fee-splitting disputes with fellow attorneys; is it possible that he also took advantage of less-sophisticated clients in easier-to-hide ways? And the thing that has surprised me most in my work with the Center for Class Action Fairness is how the Ted Frank of five years ago wasn't cynical enough in anticipating the ways class action counsel unfairly treat their clients. Scrutinizing the recovery of mass-tort settlement plaintiffs seems like it would be a potentially profitable niche for entrepreneurial attorneys. Though, in general, the legal system protects its own.

Around the web, October 14 - PointOfLaw Forum

  • Second Circuit takes issue with attorney ethics in informal aggregate settlement. [Johnson v. Nextel; Torts Prof]
  • Former silicosis clients sue their indicted lawyer, though it's hard to see how they're the victims in his scheme to defraud an insurance company through kickbacks to the claims adjusters. [Texas Lawyer/law.com]
  • Legal trap doors for New Jersey builders. This sort of statutory authority for litigation is appalling: it merely transfers wealth from builders and their customers to attorneys without any consumer protection whatsoever. [OL]

  • Thank Wal-Mart for your new bank fee. [Instapundit link roundup; relatedly me earlier @ NY Post]
  • "California's Kafkaesque Rent Control Laws" [Epstein @ Hoover]

  • Al Davis, litigant. [ATL]

The late plaintiffs' attorney John O'Quinn was dinged for $35 million for overcharging breast implant plaintiffs. Now, 187 former clients of O'Quinn are suing over overcharging and failing to distribute settlement proceeds in silicosis litigation. [Texas Lawyer]

The case was brought in Texas state court, but one presumes that O'Quinn had the same mandatory arbitration clause with these clients that he did with his breast implant clients. As we've covered in the past, even trial lawyers claiming mandatory arbitration clauses are unconscionable have mandatory arbitration clauses with their clients, but the hypocrisy goes unnoted in press coverage of the arbitration issue.

Around the web, February 17 - PointOfLaw Forum

  • Texas asbestos and silicosis reform a success. [LNL; TCJL]
  • Elsewhere in Texas, Governor Perry proposes loser pays and making access to justice easier for smaller cases. [TCJL]
  • Extensive tort reform in Wisconsin undoes some bad Wisconsin Supreme Court decisions, caps punitive damages. [Sachse]
  • Multi-billion dollar judgment in Ecuador in Chevron lawsuit. Chevron has a webpage detailing its response to and summarizing the various collateral litigations, including a Hague international arbitration temporarily prohibiting international enforcement of the judgement.

  • "Climate Policy by Judicial Fiat: How Global Warming Lawsuits Subvert the Democratic Process" [Heritage]
  • Insider trading and the Sentencing Guidelines. [Ribstein]
  • Why is Obama meeting with a group that launders Chinese money? [Carney @ Examiner]
  • DOJ/DHS operation shuts down over 83,000 web sites for no reason. [Blackman]

Around the web, November 25 - PointOfLaw Forum

Happy Thanksgiving!

  • Prosecution of silicosis attorney who bribed insurance company officials to settle cases proceeds without "honest services" claims. [law.com; United States v. Hoeffner (5th Cir. 2010)]
  • Taxpayers pay government to sue itself in environmental cases. [Ciano @ Daily Caller]
  • Ribstein vs. Bainbridge on insider trading. [WSJ Law Blog]
  • The new issue of Journal of Tort Law focuses on Richard Epstein.
  • "Consider, too, the possibility that [San Francisco's anti-circumcision proposal] might drive those seeking circumcisions into the hands of back-alley mohels, sometimes charging outrageous fees and operating in circumstances that, because unregulated, might be much more dangerous to the patient." [Horwitz @ Prawfsblawg]
  • Google gives a $6 million bonus to an engineer; Gawker's sources suggest it was because she was female. Gawker doesn't ask: does this create a Title VII class action claim from male engineers? [Gawker]
  • As the government spends money fighting obesity, it is also spending money to open an IHOP in the yuppie Columbia Heights neighborhood in Washington, DC. [Freddoso @ DC Examiner]

"U.S. Says Holocaust Fund Was Defrauded" - PointOfLaw Forum

Virtually every mass tort and mass-tort administered compensation fund is the victim of systematic fraud and attempted fraud promoted by attorneys—and apparently a German fund for Holocaust survivors is no different. Or different only in that federal prosecutors are taking action. Still no prosecutions, or even sanctions, for lawyers in the silicosis mass tort fraud.

Around the web, October 28 - PointOfLaw Forum

  • "Foreclosures on the rocks" [OL]
  • Vaccines and the Supreme Court. [Fumento]
  • Ninth Circuit panel on Arizona immigration includes Judge Paez, whom we've seen before. [Politico]
  • John Berlau repeats my warning about Dodd-Frank and free checking. [WSJ]
  • California court sides with attorneys against SLAPP victims. [Cal. Attorney's Fees blog; Moore v. Kaufman]
  • Similarly, panelists at a Chamber of Commerce event lament that attorneys have yet to be sanctioned in the silicosis fraud case of years and years ago now. [BLT]
  • A Florida town notorious for insurance fraud has government shenanigans going on still. [St. P. Times]
  • Democrats' double-standard on anonymous election speech. [Hayward @ NRO]

Silicosis mass tort fraud update - PointOfLaw Forum

There are between 5,122-5,831 individuals with silicosis claims in a consolidated mass tort litigation in Harris County, Texas. But in 2005, the Texas legislature passed a law requiring such claimants to provide medical evidence of a "minimum level of impairment."

The results? Only 54 of the over 5000 plaintiffs even attempted to meet the standard—and only 21 of those 54 actually did so. [Legal Newsline]

In other words, over 99% of the lawsuits brought were meritless, but without tort reform, the lawyers would have overwhelmed defendants and effectively stole from the innocent in the resulting settlements. And with such a guaranteed cash cow, there would be more than 5000 plaintiffs: new suits dried up once standards were established.

But don't count on any of the trial lawyers involved being brought to justice for their attempted fraud on the court.

OSHA, NLRB nominees -- no hearings, maybe debate - PointOfLaw Forum

The Senate Committee on Health, Education, Labor and Pensions is going straight to an executive session Wednesday to mark-up President Obama's nominees for the National Labor Relations Board, the Legal Services Corporation and, astonishingly, the Assistant Secretary of Labor for Occupational Safety and Health, i.e., the head of OSHA.

That means that none of these nominees will have to submit themselves to the Senate hearing process, i.e., being sworn into to testify before the Senate about their views on their executive branch responsibilities.

This absence of accountability is especially inexplicable in the case of David Michaels, the OSHA nominee. We've written about Michaels' writings and philosophy, which invariably regard business as a bad actor. Too, Michaels is a critic of the Daubert standard, which attempts to limit the introduction of junk science into court proceedings. As The Washington Times wrote in a Sunday editorial, "Occupational hazard":

Mr. Michaels devoted a whole chapter in his tendentious book "Doubt Is Their Product" to the idea that Daubert created "social imbalance" away from the interests of plaintiffs and their lawyers. Elsewhere, he co-wrote a paper of the exact same name as the book chapter in which the authors claim Daubert "has led to unreasonable legal demands of scientific certainty."

However, contra Mr. Michaels, scientific certainty can be the essential difference between getting a case right or wrong. For example, the Daubert ruling's insistence on sound science directly helped U.S. District Judge Janis Jack of Texas blow the whistle on thousands of false claims for the lung disease silicosis in which radiologists admitted to having "diagnosed" as many as 800 asbestosis cases in just 72 hours -- a physical impossibility.

Yet as it now stands, the HELP Committee will not explore this area with Michaels in a public hearing. After some discussion -- we hope -- there will just be a vote tomorrow and his nomination will go to the floor.

Well, at least we have his responses to Sen. Johnny Isaakson's questions for the record. But it's the nature of candidate responses that they are carefully written in conjunction with the White House to avoid all controversy, and Michaels are no different. Senator Isaakson is interested in combustible dust standards -- understandably so -- and we appreciate his inquiries about OSHA proposing new ergonomics standards.

We'll put the entire question and response about Daubert in the extended entry. That's apparently as close to accountability as the public is going to get.

UPDATE (4:40 p.m.): Matt Madia, regulatory policy analyst at OMBWatch -- an organization that supports an expanded regulatory state -- strenuously disagrees with the criticisms of Michaels' record and writings. Nevertheless, at the group's blog, Madia writes: "While it may be politically expedient, bypassing the hearing is a mistake, in my opinion. OSHA is a major regulatory agency, and the leaders of such agencies should, as a rule of thumb, go before the Senate committee of jurisdiction to explain their views and qualifications."

Thoughts on litigation financing - PointOfLaw Forum

I'd like to opine briefly on the notion of litigation financing, which our editor referenced this morning, eliciting a very thoughtful reply from Larry Ribstein.

Walter has generally been a critic of the erosion of traditional restrictions on maintenance and champerty, dating back to his wonderful discussion of contingency fees in The Litigation Explosion (the chapter is available here). Like Walter, Lester Brickman, and others, I'm generally troubled by the perverse effects contigency fees can generate (for more, see my discussion with Alex Tabarrok here), though I wouldn't go so far as to eliminate such arrangements entirely, even assuming such were politically feasible.

In his post, Larry notes that we should distinguish among types of litigation and that outside funding helps to "eliminate the potential conflict of interest between a corporate client with diversified investors and a risk-averse lawyer who may have an incentive to settle cases that could be productively litigated," excellent points that shouldn't be ignored. I also think Larry is largely correct in stating that legal-system problems would best be remedied "directly by rules constraining improper litigation practices [than] indirectly by constraining firms' ability to pursue the litigation."

The question remains, however, to what degree "outside litigation financing might increase the amount of socially inefficient litigation." As Walter perhaps would, I would tend to believe that the answer could be, "significantly."

In her December paper on loser pays, my colleague Marie Gryphon describes how our current system of litigation encourages what she calls "abusive litigation." She defines "abusive lawsuits" as those that have "have little legal merit, regardless of the magnitude of the recovery sought." Abusive suits in turn break down into "lottery suits" -- those that combine "low legal merit and very high stakes" -- and "nuisance suits" -- those that combine "modest stakes and little legal merit."

Lottery suits include class action and birth-defect litigation: the stakes are so high that such suits have a substantial settlement value, even if the probability of ultimate success is very low. By reducing barriers to entry, outside litigation financing would probably encourage more such suits.

What I'd worry about even more, though, are nuisance suits, which consist primarily of small-value "shakedown suits" and mass-tort "manufactured suits." As a theoretical matter, the existence of such suits at all is a bit of a puzzle, as Marie explains in her paper. The mass-tort context is perhaps easiest to see. If a lawyer has a portfolio of some cases -- say, asbestos claims -- that are valid, but others that are bunk, he can collect on the bunk cases precisely because it is too expensive for a corporate defendant to litigate each case through to final judgment, since his costs are never reimbursed under the American Rule. Outside financing improves the lot of legitimate plaintiffs in mass-tort situations precisely because it would get rid of risk aversion that leads plaintiffs' lawyers to settle such claims on the cheap; but for the same reason it improves the credible threat presented by manufactured claims and thus increases their settlement value. So the total cost of such litigation rises. How one might view this problem depends on how one views such litigation, but the evidence from asbestos, silicosis, and Fen-Phen suggests that the ratio of bad to good cases is actually quite high.

So where are we left? If we limited large-award contingency fees and adopted loser-pays principles, there's much to be said for outside litigation financing. Indeed, Marie's proposal itself calls for eliminating maintenance and champerty barriers to outside insurance, an important access need for a loser-pays reform. (In separate conversations, Tony Sebok has expressed to me a tentative embrace of loser pays combined with outside financing.) Absent such reforms, however, I share Walter's worry about the real-world consequences that outside litigation financing brings.

We've discussed Lester Brickman's important work on rampant fraud and misdiagnosis in asbestos, silicosis and fen-phen mass screenings, and now the Cardozo lawprof is out with an SSRN paper entitled "The Use of Litigation Screenings in Mass Torts: A Formula for Fraud?" with some sobering estimates of the scope of the problem. Abstract:

Lawyers obtain the "mass" for some mass tort litigations by conducting screenings to sign-up potential litigants en masse. These "litigation screenings" have no intended medical benefit. Screenings are mostly held in motels, shopping center parking lots, local union offices and lawyers' offices. There, an occupational history is taken by persons with no medical training, a doctor may do a cursory physical exam, and medical technicians administer tests, including X-rays, pulmonary function tests, echocardiograms and blood tests. The sole purpose of screenings is to generate "medical" evidence of the existence of an injury to be attributed to exposure to or ingestion of defendants' products. Usually a handful of doctors ("litigation doctors") provide the vast majority of the thousands and tens of thousands of medical reports prepared for that litigation.

By my count, approximately 1,500,000 potential litigants have been screened in the asbestos, silica, fen-phen (diet drugs), silicone breast implant, and welding fume litigations. Litigation doctors found that approximately 1,000,000 of those screened had the requisite condition that could qualify for compensation, such as asbestosis, silicosis, moderate mitral or mild aortic value regurgitation or a neurological disorder. I further estimate that lawyers have spent at least $500 million and as much as $1 billion to conduct these litigation screenings, paying litigation doctors and screening companies well in excess of $250 million, and obtaining contingency fees well in excess of $13 billion.

On the basis of the evidence I review in this article, I conclude that approximately 900,000 of the 1,000,000 claims generated were based on "diagnoses" of the type that U.S. District Court Judge Janis Jack, in the silica MDL, found were "manufactured for money."

Around the web, February 7 - PointOfLaw Forum

  • This Saturday Duke Law hosts a conference, "The New European Choice-of-Law Revolution"; field "in crisis in the U.S." but "thriving in Europe" [info; note paper by PoL contributor Larry Ribstein]
  • Medical coincidence? Thirty-three Brent Coon clients who worked at or near a Chicagoland locomotive factory filed simultaneous asbestosis and silicosis claims [MC Record]
  • Suggested Mississippi bumper sticker: "Real Lawyers Don't Bribe Judges" [Rossmiller]
  • Marie Gryphon's post on the question of why contingency fees are so uniform draws much attention [Beck & Herrmann, Robinette @ TortsProf, Steir @ Mass Tort Lit, Blawgletter]
  • Wisconsin high court joins trend toward rejecting "attractive advertising" suits blaming marketing for underage drinking [Rebecca Schwartz, Shook Hardy & Bacon, for WLF -- PDF]
  • West Virginia courts defended in a study by two professors from that state [State Journal]

An impressive lineup produced by the Tulane Law Review includes Russ Herman (Vioxx PSC), Judges Carol Higbee and Eldon Fallon (Vioxx), and Judge Janis Jack (silicosis). Other impressive figures speaking include, but are not limited to, Judge Lee Rosenthal, the indicted Dickie Scruggs, and law bloggers Alexandra Lahav and Mark Herrmann. (via Scheuerman)

"DOJ's Free Pass for Tort Fraud" - PointOfLaw Forum

In a scathing WSJ op-ed -- subscriber-only at the moment -- Cardozo lawprof and friend of this site Lester Brickman assails the U.S. Department of Justice for its apparent unwillingness to pursue signs of fraud in mass asbestos and silicosis litigation. Discussion: Cliff Hutchinson (applauding the article), Esoteric Appeal (taking the interesting view that it isn't fraud for a "party trying to prove their case" to tailor a diagnosis to fit). Plus: related Examiner editorial.

More background on U.S. District Judge (and civil justice reform celebrity) Janis Jack, from the Chamber-backed Southeast Texas Record. P.S. And the related Madison County Record (tale of how Judge Jack "found an honest silicosis suit among 10,000 phony ones, but attorneys for the honest plaintiff torpedoed his case and no other silicosis attorney would take him for a client.")

Update: Houston lawyer's payments to insurance adjuster - PointOfLaw Forum

Back in July Michael posted about the indictment of Texas attorney Warren Todd Hoeffner and two former employees of Hartford Insurance on charges that Hoeffner paid $3 million to the adjusters, and bought them BMWs, in connection with settlements of silicosis suits that grossed $34 million for his clients and brought more than $5 million in fees for himself. Hoeffner has now filed an answer and cross-claim (PDF) which lays out his side of the story. The WSJ law blog summarizes some of the high points of the answer, which depicts Hoeffner as himself the victim of extortion by the Hartford and its employees.

"Defendants See a Case of Diagnosing for Dollars" - PointOfLaw Forum

Adam Liptak's latest Sidebar column reviews the case of an asbestos plaintiffs' lawyers' doctor who should know better, as he testified in the Judge Jack silicosis proceedings. I have uploaded the motion to exclude Dr. Segarra's testimony.

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