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LAWSUIT ASSEMBLY LINE
Asbestos plaintiffs are burned by the litigation industry’s manufacturing
model.
 The
lawsuit industry’s asbestos business line has made millionaires out of
Trial Lawyers, Inc.’s leading attorneys, but it also has enriched scores
of allied marketers, doctors, and peripheral players. Take Heath Mason, a juniorcollege
dropout with no legal or medical training[81] who made
$25.5 million from asbestos litigation.[82] Mason’s
role was attracting potential plaintiffs to “screening clinics” that
interviewed and “tested” them, usually in trailers hauled to restaurant,
shopping-center, or motel parking lots. Mason would lure passersby with attractive
women he called his “lawyer girls,”[83] such
as the two young lawyers he met at an unidentified convention in Fort Lauderdale,
Florida, and later persuaded to stand on a Fort Worth street corner with signs
directing potential plaintiffs to an X-ray screening van in a Staples parking
lot.[84]
Players like Mason have been essential to the Trial Lawyers, Inc.’s asbestos
litigation assembly-line-style business model. It starts with marketing (recruiting
plaintiffs), followed by production (eagerly screening prospective plaintiffs
for purported lung impairment and usually finding it), packaging (bundling cases
into a “mass” of tort claims), and sales (overwhelming courts and
defendants to extract settlements) (see chart). The shame of the asbestos litigation
business is that the settlements have been far more rewarding for the filing
lawyers than for those victims who were truly injured.
Marketing Makes the Product
 To
make its asbestos line really grow, Trial Lawyers, Inc. needed a marketing program
more sophisticated than Heath Mason’s lawyer girls. Its seeds were planted
in 1977, only one year after pioneering lawyers such as Richard Glasser and
Ron Motley launched asbestos litigation as we know it. In that year, in the
case Bates v. State Bar of Arizona[85], the United
States Supreme Court ruled that attorney advertising was commercial speech protected
by the First Amendment to the U.S. Constitution. In one fell swoop, age-old
professional barriers against trial-lawyer solicitation were effectively eviscerated.
After Bates, trial lawyers could unabashedly troll for clients using
slick marketing techniques borrowed directly from Madison Avenue’s corporate
advertising campaigns. To build its asbestos litigation business, Trial Lawyers,
Inc. employed all the modern mass-media techniques, including saturation of
television, radio, and direct mail.[86] In more recent
times, the litigation industry has also resorted to more targeted Internet marketing:
asbestos lawyers’ ads constitute 20 of the 30 most expensive search terms
on Google, the world’s most used search engine, and the most expensive
Google AdSearch term today is “mesothelioma treatment options.”[87][
Cardozo law professor Lester Brickman, a legal ethics expert and the nation’s
foremost authority on asbestos litigation, calls the setup “the most
In 1977, the Supreme Court ruled that attorney advertising was commercial
speech protected by the First Amendment.
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extensive recruitment process since World War II, when Uncle Sam wanted you.”[88]
The Great Screening Scheme
To convert its recruits into actual plaintiffs, Trial Lawyers, Inc.—at
least in theory—had to establish that the recruits were actually ill, that
their illnesses resulted from asbestos exposure, and that that exposure resulted
from contact with the products or workplaces of the plaintiffs’ lawyers’
contemplated targets. To overcome these troublesome procedural niceties, the
litigation industry developed a low-cost screening business intended to maximize
the number of passable plaintiffs at minimum cost.
 To
facilitate this aspect of the business, law firms hired screening companies
to seek out workers who might have been exposed to asbestos. Typically, these
operations, like Heath Mason’s, were run out of parking-lot trailers or
vans; one screening outfit had its headquarters in a real-estate office located
in a shopping center near a massage parlor.[89] Despite
the humble character of these operations, the total take for such screening
firms, Professor Brickman estimates, has exceeded $100 million.[90]
Inside the trailers, screeners took “occupational exposure histories”
(which were necessary to link plaintiffs to asbestos defendants), conducted
breathing tests, and took X-rays that were later analyzed by medical specialists
known as “B readers.”[91] People with little
or no medical training ran the screening clinics: high school students or clerical
workers took patient histories, a crucial procedure in diagnosing lung disease.
Glorified clerks composed the diagnoses and “signed” them with rubber
stamps.
Many of the asbestos screening doctors have disavowed diagnoses under
oath or invoked their Fifth Amendment right against self-incrimination.
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Tellingly, asbestos screening companies used only 4–6 percent of the nation’s
limited number of B readers to handle hundreds of thousands of analyses,[92]
and all the screeners chosen seemed to find positive results with suspicious
frequency.[93] Just how suspicious? In 2004, Johns Hopkins
radiologists looked at a sample of screening-clinic X-rays; whereas the lawyers’
B readers had identified lung abnormalities in 95.9 percent of 492 cases, independent
readers hired by the Hopkins researchers found abnormalities in only 4.5 percent
of the same cases (see graph at top).[94] After the B readers
checked off a diagnosis form, they forwarded it to the screening company, which
prepared what appeared to be individualized diagnosis letters, signed with a
rubber stamp, that its nominal authors
hardly ever saw.
 The
volume of claims that some of the unscrupulous physicians processed is mind-boggling:
beginning in the early 1990s, one doctor diagnosed more than 88,000 patients,
performing as many as 150 readings a day.[95] When later
required to testify about them under oath, many of the screening doctors disavowed
them or invoked their Fifth Amendment right against selfincrimination. [96]
The difference in economic value between the accurate clinical diagnoses and
those from the most prolific screening doctors is striking—the lawyers’
inventoried claims are worth $30–$50 million more per 1,000 patients examined.[97]
Settling for Less
That Trial Lawyers, Inc.’s dubious screening practices could generate
valuable legal claims is a powerful indictment of some American courts’
handling of scientific evidence. Still, the lawyers may not have fared so well
had they been forced to litigate each individual claim in the forum where each
plaintiff lived or had worked. Key to the lawyers’ strategy was bundling
thousands of claims—to the point of overwhelming courts’ ability to
handle the volume of claims filed—and filing their mass of claims in favorable
forums. By packaging their cases in plaintiff-friendly places such as Mississippi,
West Virginia, Texas, and Madison County, Illinois, Trial Lawyers, Inc. was
in a position to extract millions of dollars more per claim in any ultimate
trial (see graph at bottom).
Even were such trials to occur in a fair jurisdiction, defendants often confronted
long odds of success. Just as Trial Lawyers, Inc. constructed the screening
process to virtually ensure diagnosis of injury, litigation industry attorneys
often left little to chance in preparing for trials that would occur. Notoriously,
the giant asbestos plaintiffs’ firm Baron & Budd prepared a memorandum,
ultimately discovered by defense attorneys, that coached plaintiffs on their
testimony. Among other things, the memo urged plaintiffs “to maintain that
you NEVER saw any labels on asbestos products that said WARNING or DANGER.”[98]
Little wonder defendants almost always settled asbestos cases (between 1993
and 2001, only 1,598 out of hundreds of thousands of asbestos claimants received
jury verdicts).[99]
Settlement, of course, was Trial Lawyers, Inc.’s ultimate goal. Without
having to invest the time and money in going to trial, where they risked losing,
lawyers could collect and move on to the next batch of plaintiffs. Facing thousands
of cases in “hellhole” jurisdictions—with no reimbursement for
legal fees, even on the off chance that they were victorious—defendants
were forced to capitulate.
The losers were not only defendant companies and their employees and shareholders
but also those Trial Lawyers, Inc. plaintiffs who had been genuinely hurt and
harbored potentially legitimate claims. With bundles of clients and lax ethical
oversight, lawyers pitched their own plaintiffs’ futures like used cars,
offering 40 percent off for immediate settlements—a $600 million “savings”[100]—or
even a once-in-a-lifetime steal of up to $1 billion off.[101]
A grotesque example of these tactics emerged in silicosis litigation, which,
as we will see, is asbestos litigation’s cousin. On April 16, 2004, lawyer
Joseph Gibson sent a fax to 47 defendants: settle 9,000 silicosis cases now
for $900 million, or, in so many words, we’ll saddle you with $1.5 billion
in pretrial costs, then mow you down before juries at a cost of tens to hundreds
of millions of dollars per case.[102] Plaintiffs without
current symptoms would get $30,000 but forfeit all future rights. Any who developed
silicosis would face long, torturous deaths with no additional resources for
end-of-life care. Defense attorney Dave Setter said that he had heard these
kinds of bullying tactics before but never presented so brazenly. He commented,
“It was so bold and arrogant that it was beyond me why they did it.”[103]
It appears “they did it” for the money, not for their clients, whom
the lawyers seemed happy to ignore in favor of fast and lucrative settlements.
Indeed, plaintiffs’ contact with lawyers in asbestos litigation generally
has been limited to signing one set of forms to hire the lawyers and certify
information and a second set to approve a settlement.
One such plaintiff, Leroy Trotter, went through the lawyers’ assembly
line in 1992 and received asbestos settlement payments. To maintain “inventory,”
the firm kept his name on file, and a decade later Trotter was diagnosed, by
new doctors, with silicosis (but no evidence of asbestosis). When Trotter’s
suit was filed against more than a dozen companies in 2006, he had actually
been dead for three and a half months. According to his own lawyer, “We
had no idea that he was [dead].”[104] The tragicomic
case of Leroy Trotter, however, was but one of many asbestos “retreads”
that formed the core of the trial bar’s burgeoning silicosis docket; and
the unraveling of that sordid tale would begin to give public exposure to the
inner workings of Trial Lawyers, Inc.’s asbestos litigation machine.
JUDICIAL INNOVATIONS MISS THE MARK
 Trial
Lawyers, Inc.’s asbestos business relies on overwhelming courts with
so many asbestos claim filings that judges see no way to process the cases
before them. Unable to rely on traditional case-management processes,
judges have experimented small awards to many undeserving claimants, or
“bouquet” or “bifurcated” trials that are inherently
unfair to defendants.
In bouquet trials, individual plaintiffs are selected as stand-ins for
large groups of those similarly situated, resulting in a “bouquet”
of cases that can be managed at trial and that serve as the basis for
subsequent settlement.[105] Bifurcated found liable
will probably settle in preference to risking an exorbitant judgment.
In practice, bouquet and bifurcated trials have ended up with plaintiffs
winning damage awards significantly higher than in traditional suits.
Specifically, bouquet bifurcated trials yielded an extra $651,000 in damages
for the plaintiff.[106] Judges’ efforts to streamline
their dockets, then, have further increased defendants’ pressure
to settle.
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81. See In Re: Silica Products Liability Litigation, MDL
No. 1553, (S.D. Tex. Feb. 17, 2005) (Transcript of Direct Testimony of Heath
Mason, Daubert Hearing, at 274-75) (PACER accession number 2:03-md-1553).
82. See N&M Inc. Sales by Customer Detail, at 27. When the company
shut down, the records were seized by Forman Perry Watkins Krutz & Tardy.
A copy of the company’s basic Quick Books financial history was provided
to the author from the law firm’s files.
83. Transcript, supra note 81, at 274.
84. See Texas Department of Health, Complaint No. 1685 (June 24, 2002).
The description of the initial complaint comes from the Complaint/Technical
Assistance Request form found at page 6; the remainder from the investigator’s
narrative report at pages 2-5.
85. 433 U.S. 350.
86. Cf. Lester Brickman, Ethical Issues in Asbestos Litigation,
33 Hofstra L. Rev. 833, 833-34 (2005); Lester Brickman, On the Applicability
of the Silica MDL Proceeding to Asbestos Litigation, 12 Conn. Ins. L.J.
10 (2006) [hereinafter “Applicability”]; Patrick M. Hanlon & Anne
Smetak, Asbestos Changes, 62 N.Y.U. Ann. Surv. Am. Law 525, 593 (2007).
87. See http://www.cwire.org/highest-paying-search-terms/
(last visited January 28, 2008); see also
http://www.overlawyered.com/2006/03/search_engine_index.html.
88. Recorded telephone interview with Lester Brickman, Oct. 10, 2006.
89. MDL No. 1553 (June 30, 2005) (Order No. 29, at 108). The author visited
the site in Ocean Springs, Mississippi and photographed the office and massage
parlor, although he screening clinic has closed.
90. E-mail to the author Oct. 15, 2006.
91. See Lester Brickman, Disparities between Asbestosis and Silicosis
Claims Generated by Litigation Screenings and Clinical Studies, 29 Cardozo
L. Rev. 513, 519-21 (2007). The physicians, mostly radiologists and pulmonologists,
are certified by the National Institute for Occupational Safety and Health for
their special expertise in reading and classifying chest X-rays using the International
Labour Organization scale.
92. The total universe of certified B readers is extremely small. See
id. at 520 n.16 (citing NIOSH data showing that in the last decade the total
peaked at 627 in 1998, falling to just 387 in 2005).
93. See Applicability, supra note 86, at 9-13.
94. See Joseph N. Gitlin et al., Comparison of “B” Readers’
Interpretations of Chest Radiographs for Asbestos Related Changes, 11 Acad.
Radiol. 243 (2004).
95. See Jonathan D. Glater, Reading X-Rays In Asbestos Suits Enriched
Doctor, N.Y. Times, Nov. 29, 2005, at A1.
96. MDL 1553 (Order 29); news releases dated March 9, 2006, and June 7, 2006,
from the Oversight and Investigations Subcommittee of the House Committee on
Energy and entirely of recipients and their fax numbers and the numbered page
1 is actually the second sheet while page 2 is the third sheet).
97. See Brickman, supra note 91, at Abstract, available at http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=970993 (“I have been able to determine that for every
1,000 occupationally exposed workers screened, litigation screenings generated
approximately 500-600 diagnoses of asbestosis. In a clinical setting, however,
the number diagnosed with asbestosis would be 40-50.”). In a telephone conversation
with the author, Brickman noted that during the period of the screenings the
value of each asbestosis claim would be about $100,000, which produces the figure
of $30 million to $50 million in excess claim value per 1,000 occupationally
exposed workers.
98. See Walter Olson, Creative Deposition, 34 Civ. Just. Memo.
(Manhattan Inst. Center for Legal Pol’y, May 1998), available at
http://www.manhattan-institute.org/html/cjm_34.htm; Walter Olson, Thanks
for the Memories, ReasonOnline, June 1998, http://reason.com/9806/col.olson.shtml;
Parloff, supra note 68, at 154.The firm has vigorously contested claims, with
some success, that the memo was illegal or improper.
99. Stephen J. Carroll et al., Asbestos Litigation Costs and Compensation:
An Interim Report, at 56 (Rand Inst. for Civ. Just., 2002), available at
http://www.rand.org/publications/DB/DB397/DB397.pdf.
100. MDL 1553 (April 16, 2004) (Letter to defense attorneys from Joseph Gibson
of Quinn, Laminack & Pirtle) (on file with author).
101. Gibson letter, supra note 100, at 2 (of the three page document, page one
consists entirely of recipients and their fax numbers and the numbered page
1 is actually the second sheet while page 2 is the third sheet).
102. See id.
103. Second telephone interview, Dave Setter, Oct. 2, 2006.
104. The story is recounted in more detail in John M. Wylie II, The $40 Billion
Scam, Reader’s Digest 80 (Jan. 2007). The case is Trotter v. Pulsoman,
No. 06-cv-619 (S.D. Miss.). Trotter’s widow was allowed as a substitute
plaintiff on behalf of his estate. The case was closed December 12, 2007, after
months in which the cases against all the defendants were dismissed. The dismissals
of the cases as to the two primary defendants were with prejudice. All the dismissals
required the parties to pay their own legal fees. The case generated 222 filings,
some of which are dozens of pages long.
105. See White, supra note 57, at 366-67.
106. See id. at 393 tab. 7.
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