Diagnosing For Dollars
A COURT BATTLE OVER SILICOSIS SHINES A HARSH LIGHT ON MASS MEDICAL SCREENERS--THE SAME PEOPLE WHOSE DIAGNOSES HAVE COST ASBESTOS DEFENDANTS BILLIONS.
(FORTUNE Magazine) – Severe silicosis is a ghastly disease. Caused by prolonged inhalation of tiny sand particles, it slowly scars and contracts the lungs until the victim suffocates. A sandblaster who comes down with an acute case may need a lung transplant before he's 40.
Severe asbestosis, which is caused by inhaling minute, spearlike asbestos fibers, is just as bad. It has nearly identical symptoms, and it can lead to lung cancer or mesothelioma, the dreaded, inevitably fatal cancer of the lung lining.
Perhaps the only consolation in having one of these diseases is that you almost certainly won't get the other. The massive, protracted dust exposure required to come down with either makes it extremely rare for a worker to get both, even in their mildest forms. And despite their outward similarities, the two diseases are readily distinguishable on X-rays. A panel of four eminent occupational-disease experts agreed on these points in February testimony before a Senate committee.
How, then, to account for this: Of 8,629 people diagnosed with silicosis now suing in federal court in Corpus Christi, 5,174--or 60%--are "asbestos retreads," i.e., people who have previously filed claims for asbestos-related disease.
That anomaly turns out to be just one of many in the Corpus Christi case that sorely challenge medical explanation. At a hearing in February, U.S. District Judge Janis Graham Jack characterized the evidence before her as raising "great red flags of fraud," and a federal grand jury in Manhattan is now looking into the situation, according to two people who have been subpoenaed.
The real importance of those proceedings, however, is not what they reveal about possible fraud in silica litigation but what they suggest about a possible fraud of vastly greater dimensions. It's one that may have been afflicting asbestos litigation for almost 20 years, resulting in billions of dollars of payments to claimants who weren't sick and to the attorneys who represented them. Asbestos litigation--the original mass tort--has bankrupted more than 60 companies and is expected to eventually cost defendants and their insurers more than $200 billion, of which $70 billion has already been paid.
The odor around asbestosis diagnosis has been so foul for so long that by 1999, professor Lester Brickman of the Benjamin N. Cardozo School of Law was referring to asbestos litigation as a "massively fraudulent enterprise." At the request of his defamation lawyer, Brickman says, he toned that down to "massive, specious claiming" when he published a 137-page, 526-footnote Pepperdine Law Review article on the topic. But little else was toned down in the piece; Brickman predicted that when the complete history of asbestos litigation was written, it would enter "the pantheon of such great American scandals as the Yazoo land scandals, Crédit Mobilier, Teapot Dome, Billy Sol Estes, the salad oil scandals, the savings and loan scandals, WorldCom, and Enron."
Brickman, 64, is a pugnacious, abrasive political conservative who is given to offering reporters red-meat sound bites savaging plaintiffs lawyers for alleged ethical abuses. Accordingly, he has been easy for many to brush off. But the prodigiously researched article made his views more difficult to ignore, and the evidence surfacing in Corpus Christi now takes him a giant step closer to vindication.
The chief link between the silicosis crackup in Corpus Christi and asbestos litigation is the doctors who diagnose both diseases. Of the 8,179 alleged silicotics in the Corpus Christi case for whom diagnostic information has been disclosed, a single doctor played a role in diagnosing 6,350 (78%). The busy radiologist is Ray Harron, who has, not coincidentally, also had a hand in diagnosing 52,600 asbestos claims, according to the Manville Trust--the payer of liabilities of the old Johns-Manville Corp. That's slightly more than 10% of all the claims the trust has ever received for which it has records of the diagnosing doctor.
But Harron is only the most prolific of a prolific breed. They are known as "screening" doctors, because they work with entrepreneurial screening companies that plaintiffs attorneys pay to find silicotics and asbestotics among people who do not yet realize that they are sick. FORTUNE has written about these companies before (see "The $200 Billion Miscarriage of Justice" on fortune.com), but until now it has not been possible to document either the scope of what's been going on or the astounding quantity of evidence suggesting that these operations are rife with--er--specious claiming.
Just five screening doctors account for almost 25% of all the asbestos claims ever filed with the Manville Trust, while the top 25 account for 46%. Not surprisingly, Harron and three other prominent asbestos-screening doctors read most of the plaintiffs' X-rays in the silicosis case. The doctors include James Ballard (with more than 11,000 asbestos claims presented to the Manville Trust), George Martindale (3,200 Manville claims), and Walter Allen Oaks (1,700). Ballard and Martindale did not return phone messages. Harron didn't return calls or answer a faxed letter. Oaks said, "Nobody's ever asked me to do anything improper, and I haven't done anything improper. The judge did not accuse me of fraud, and ... I'm not being investigated for fraud."
One would think that defendants would have grown suspicious of these champion diagnosers before now--and they have. Since 1986 there have been at least five elaborate efforts to measure the accuracy of litigation-related asbestosis diagnoses. The most optimistic concluded that about 66% were unfounded, while the others found about 80% to 97% to be bogus.
So where are the prosecutors? It's not that simple. The claims-generation system has always been protected from challenge by a concept known as inter-reader variability. X-ray reading turns out to be quite subjective--as much an art as a science, many say. The best-credentialed radiologists will disagree on X-ray interpretations 20% to 30% of the time, with even wider discrepancies among outliers. When such broad variance is the norm, it's very difficult to prove fraud. It would be only natural for plaintiffs lawyers to gravitate toward doctors who read at the high end of the disease-diagnosing spectrum, just as it would be for defense lawyers to gravitate toward those at the low end. Maybe that's all that's been going on, the argument goes.
Yet even this statistical rampart may now be crumbling. It suffered a severe blow last August when a peer-reviewed article was published in Academic Radiology. At the request of defense lawyers, Joseph Gitlin, a radiology professor at the Johns Hopkins School of Medicine, had six outside experts reevaluate 378 X-rays that had originally been read as consistent with asbestosis by doctors working for plaintiffs lawyers. All six--who weren't told the purpose of the study or its sponsors--agreed that 322 of the films (85%) showed no such thing. Gitlin calculated that the plaintiffs' doctors were 2,227 times more likely to see compensable asbestosis than were the outside readers.
The article has met with criticism from plaintiffs lawyers, their experts, and some academics. Weren't these outside readers likely to have been chosen for friendliness to defendants? They weren't. Gitlin disclosed their identities in November; one had previously worked for plaintiffs, two for defendants, one for both, and two for neither.
Critics also argued that Gitlin's sample might not have been representative. But almost regardless of how you slice or dice a sample of asbestosis claims, you're going to end up looking at films read overwhelmingly by the same high-volume screening doctors. Gitlin revealed last November that most of the films in his study had, indeed, initially been read by Harron, Ballard, and five other doctors collectively responsible for 59,150 Manville claims.
The critics' final protestation is that even Gitlin's results reflect only ordinary levels of inter-reader variability. But this argument--in the unlikely event that it is correct--is exceedingly telling in itself. It suggests that a single X-ray reading is worse than meaningless in the litigation context. If so, how can it be permitted to go on serving as a basis for filing lawsuits?
Between the Gitlin study and the preposterously improbable statistics emanating from the silicosis consolidation, the wheels finally appear to be coming off a very rickety cart.
The Original Sin âñ The starting point of any story about asbestos litigation must be the corporate wrongdoing that spawned it, which was archetypal. Though we do not know if they were chomping thick cigars and wearing top hats at the time, we do know from surviving correspondence that in the mid-1930s the president of Raybestos Manhattan and the general counsel of Johns-Manville Corp. plotted to suppress research showing just how dangerous asbestos dust could be to those who worked with it. As a consequence, millions of workers were exposed before scientists caught up with what was happening in the 1960s, and regulators began imposing protective measures in the 1970s. Thousands are still dying today as a result of the wrongdoing, including about 2,500 a year from mesothelioma and, by some estimates, 7,500 annually from other asbestos-linked cancers. (Though skeptics like Brickman believe that there is fraud going on with respect to cancer claims too--mainly involving paralegals inducing plaintiffs to recall specific products they allegedly were exposed to 30 years earlier--there is usually no doubt that those people are sick.)
But while the number of asbestos-related cancer claims over the years has generally tracked medical predictions, nonmalignant claims--the vast majority of them alleging borderline asbestosis with modest or no impairment--have swamped expectations. Cancer diagnoses are usually unambiguous and often rendered by treating physicians, but diagnoses of mild asbestosis are subjective and almost always made by screening doctors.
Here's the real outrage: The droves of nonmalignant claimants have vied with the cancer patients for the limited dollars available from defendants who are bankrupt or on the verge of it. In 1999, for instance, 77% of the Manville Trust's payouts went to nonmalignants, even though the judge supervising the trust estimated that 66% to 90% of them were unimpaired. That led the trust to institute reforms that took effect in October 2003. Because of those rules changes, claims against the trust plummeted from almost 101,000 in 2003 to just 14,600 in 2004. In 2004 also, cancer victims collectively received more of the trust's payouts than nonmalignants for the first time since 1998. Accordingly, if nonmalignant claims have been generated fraudulently, corporate treasuries have not been the only victims.
By the late 1990s, certain asbestos plaintiffs' law firms began diversifying their portfolios, seeking to convert the sleepy, if reliable, boutique practice of silicosis litigation into a mass tort. The retooling appears to have intensified in 2001, when Congress began considering legislation that might greatly diminish the value of unimpaired, nonmalignant asbestos claims, including a bill--still being debated today--to create a national asbestos trust fund. In the process of retargeting their machine, the claims generators appear to have gravely miscalculated. First, they ran into two defense lawyers with a taste for detective work and spreadsheets. Then they plowed into the plump, quick-witted, frizzy-haired Judge Jack. That one-two punch is having dire repercussions not just for the once budding silica litigation but for the asbestos litigation it had hubristically been modeled on.
Silicosis Spike âñ Declaiming in a now extinct, aristocratic accent that most of us have heard spoken only by Margaret Dumont in Marx Brothers movies, a stern woman is advising sandblasters, foundry workers, and quarrymen on how to avert a potentially fatal occupational disease. The woman is then--Secretary of Labor Frances Perkins, and she is speaking in the 1938 newsreel Stop Silicosis. John Ulizio, the CEO of U.S. Silica, plays the newsreel to illustrate that the dangers of silica, unlike asbestos, have been well known since the 1930s.
Crystalline silica (silicon dioxide) is quartz. It is the primary ingredient in sand and the second-most-common mineral in the earth's crust after feldspar. Though sand is harmless when coarse--at beaches or in children's sandboxes--it becomes dangerous when industrial processes reduce it to respirable dust.
The one in the best position to protect workers from those dangers--often the only one who really can--is the worker's employer. But under worker's compensation rules, the employer usually can't be sued. So when workers do get silicosis, they typically sue the sand suppliers, like U.S. Silica; the respirator and safety-equipment manufacturers, like 3M and Textron; and the sand-blasting equipment manufacturers, like Ingersoll-Rand. They sue mainly under failure-to-warn and design-defect theories.
In the 1970s and 1980s, while asbestos filings were growing geometrically, federal courts snuffed out two early attempts to bring analogous silicosis cases against sand suppliers, finding that the workers' direct employers--typically foundries--were at least as expert about the dangers of silica as the defendants who allegedly failed to warn. But plaintiffs refined their theories, added some new ones--an allegation, for instance, that 3M sold respirators that did not perform as claimed--and started filing their cases in more receptive state courts. By the late 1990s silica litigation was gaining traction in Texas.
The other limitation that initially kept silica litigation in check was the intrinsically more modest scope of the problem. Because the dangers of silica were well known, because fewer occupations were at risk than with asbestos, because regulators were tightening controls, and because the relevant industries were in decline, silicosis mortality rates dropped 93% from 1968 to 2002, according to the Centers for Disease Control. Except for three blips readily attributable to events at three specific foundries, U.S. Silica was sued by fewer than 60 plaintiffs per year from 1975 through 1996. But filings did begin rising in 1997, and then suddenly, since Jan. 1, 2002, some 30,000 alleged silicotics have sued Ulizio's company.
Ulizio is a blunt, rumpled former litigator who prefers the title "president" to "CEO," considering the latter too highfalutin for someone who runs a bunch of sand mines. He's cynical about the lawsuits. "It's not about people getting sick," he says. "It's about a legal business model. You get a mass of cases. You aggregate them. You file them in an adverse jurisdiction. And then you make a demand. You cause the system to break down by numbers. The defendants look at it on a case-by-case basis, and as to the run-of-the-mill individual case, it's cheaper for me to settle than to pay my lawyers."
Few of Ulizio's views are shared by Mike Martin, a Houston plaintiffs lawyer who has been bringing cases for seriously injured silicotics since 1985. But Martin too is suspicious about the flood of putative silicotics who began suing in the late 1990s. "The problem I see," he says, "is with legitimate silicosis victims who are getting drowned out in a pool of questionable claims.... What happened with some plaintiffs lawyers," Martin continues, "is they started taking the square peg of asbestos litigation and trying to force it into the round hole of silica litigation." And the key means of doing so, he maintains, was the adoption of the screening operations.
"Crossing the Rubicon" âñ Between Jan. 1, 2002, and Aug. 31, 2004--the last day before a tort reform measure took effect in that state--20,466 people diagnosed with silicosis sued in the then famously pro-plaintiff Mississippi state courts. The number was suspicious on its face. Mississippi is not rich in foundries or quarries. It ranks 38th in the nation in silicosis mortality rates, according to the National Institute for Occupational Safety and Health (NIOSH), having recorded an average of about 1.3 silicosis deaths a year over the previous decade. Even assuming that there are many more nonfatal cases and that silicosis is underdiagnosed, and even taking into account that about half the plaintiffs were from Alabama (which averages 3.9 silicosis deaths a year), it was hard to come up with a medical explanation for 20,466 silicotics.
Fred Krutz and Daniel Mulholland, of Foreman Perry Watkins Krutz & Tardy in Jackson, Miss., represent more than 30 defendants in those cases. In 2003 they "removed" to federal court cases involving nearly 10,000 plaintiffs--a procedure available to defendants who believe there are bases for federal jurisdiction. A federal judicial panel consolidated those cases before Judge Jack for pretrial proceedings. The group is known as the federal MDL case, for "multidistrict litigation."
In April 2004 the plaintiffs' lead counsel presented the defendants with a letter demanding $1 billion to settle the cases. He suggested that the price was a bargain, because "litigating the Silica MDL will collectively cost the defendants more than $1,500,000,000" in pretrial expenses alone.
When the offer was rejected, the discovery process went forward. But by then that process had taken a fateful turn against the plaintiffs. In February 2004, Judge Jack had granted an unusually detailed level of scrutiny concerning the screening doctors. Such discovery is not common, Mulholland explains, because parties are typically allowed to depose only the witnesses that the other side plans to call at trial, and plaintiffs lawyers often choose not to call their screening doctors at trial. But Judge Jack ruled that if a screening doctor's diagnosis was the basis for filing the suit, then information about it should be discoverable. "That was a real big deal," says Mulholland.
Indeed it was. In April the plaintiffs began turning over the details of their silicosis diagnoses. That information included the plaintiffs' Social Security numbers, which enabled Mulholland and Krutz to track down the plaintiffs' earlier asbestosis diagnoses from the Manville Trust. That's how they learned that 60% were asbestos retreads.
An animated, stocky, personable man who used to teach computer programming, Mulholland had the documents loaded into a data-management program, affixed searchable "electronic sticky notes" to key passages, and soon had 85 gigabytes of information at his fingertips, he says. He took this arsenal to court in a small external hard drive and then used his laptop to spew out searches and sortings on the ten-foot screen in Judge Jack's well-wired, modern courtroom. (Plaintiffs lawyers in the case have not challenged the accuracy of the Foreman Perry data.)
Using his litigative GameBoy, Mulholland unearthed many of the most damning facts in the case, including a phenomenon concerning the asbestos retreads, which he dubbed the "crossing of the Rubicon." The Rubicon here is Dec. 31, 2000--the approximate date when the N&M testing service, a key screener in these cases, began looking for silicosis instead of asbestosis. Of the 3,730 putative dual-disease sufferers who had been examined before that date, 3,691 (99%) had been told that their X-rays showed only feathery-shaped shadows consistent with asbestosis but not with silicosis. Yet when those plaintiffs were examined again after Dec. 31, 2000, 3,715 (99.6%) had X-rays supposedly showing rounded, silicosis-style shadows too.
For those workers who were examined for the first time after Dec. 31, 2000, on the other hand, screening doctors now regularly saw both types of shadows from the get-go. In 331 such cases, for instance, screener Ray Harron issued separate asbestosis and silicosis diagnoses based on one reading of one X-ray, with neither report referring to the other. Mulholland calls these "the Harron twofers."
In late October the depositions began--as did the fireworks. The first doctor deposed was George Martindale, who had diagnosed 3,617 people in the MDL. But when questioned, Martindale recanted them all, saying he'd thought he was just offering a second opinion about X-rays that had already been read as positive by Harron. (An X-ray reading is not, standing alone, a diagnosis. A diagnosis is made on the basis of both an X-ray reading and a medical and occupational history.)
The next two doctors deposed also recanted. Each said that the diagnostic language in their reports had been added by the screening company's typists without their knowledge. One said he'd allowed his signature to be stamped on the reports without reading them. The other acknowledged signing them but said he hadn't read them because he had been "very, very busy."
The recantations got Judge Jack's attention. A Clinton appointee, Jack was once a registered nurse and is married to a cardiologist. She is given to dry understatement, delivered in the Texan lilt she acquired growing up in Fort Worth. "I'm very distressed about this Martindale business," she told the lawyers in December. "That's such a fraudulent problem. It is. I mean, you can't label it too many different ways." She ordered the remaining diagnosers and screeners to be deposed in her presence at a hearing in February 2005. There, the rest of the pieces of the jigsaw puzzle began to get filled in. The grand jury will have to fill in the rest.
Lawyers Changing Gears âñ In a sense, the narrative of the silicosis MDL begins around June 1996, when a screening company called N&M sprang up in Pascagoula, Miss. N&M provided about 4,000 diagnosed silicotics to one law firm in the MDL case, while shooting X-rays or doing lung-function tests on another 2,500 plaintiffs for other firms.
N&M is run by Molly Netherland and C. Heath Mason, veterans of the so-called Pitts Group, a prodigiously busy cluster of screening operations that had shut their doors in 1996 after being sued for civil racketeering by Owens Corning, a frequent target of asbestos litigation. Owens Corning alleged that the Pitts group was systematically falsifying pulmonary-function tests. When deposed, the owners and two lab technicians invoked their Fifth Amendment privileges against self-incrimination. (The case settled in 1999 with the defendants paying almost $3 million.)
Just weeks after the Pitts Group shut down, Mason, who had managed screenings for it, and Netherland, the wife of a chiropractor, who had run its X-ray operation, launched N&M. Neither had any medical training, so in early 1997 they contracted with Harron to read X-rays for them. For six years, using Harron and other screening doctors, the company thrived.
In 2001, when Congress began debating asbestos reform bills, asbestos screening dried up, Mason testified, and lawyers had him turn to silica testing for the first time. Asked at a July 2003 deposition how the asbestos bills affected his business, Mason said, "It gets lawyers to have to change gears on what they think is going to work."
In January 2002, Mason got a call from Campbell Cherry Harrison Davis Dove, a plaintiffs firm based in Waco, Texas, and Jackson, Miss., he testified. (Campbell Cherry lawyers did not return repeated calls). Campbell Cherry had used N&M before for its asbestos work. Now it wanted Mason to canvas its "existing inventory" of asbestos clients to see if any had also been exposed to silica.
"What you run into," Mason explained at the hearing, "is you have a ton of people who call--I mean, multitudes of thousands of people want to be screened for silica." So N&M had "four girls" take their calls--clerical workers--and determine, according to Mason, if their exposures seemed sufficient to have the disease. If so, they'd get an appointment to be screened.
His clerical staff evidently became astoundingly skillful at this task. On Feb. 15, 2002, for instance, N&M screened 111 workers in Columbus, Miss., and found that all 111 had silicosis. On other days it saw 85% to 95% positives. "I prided myself in not testing negative," Mason testified, "because ... we tried harder and harder to weed out the negatives" over the phone. That made good business sense, too, since Campbell Cherry was paying him $750 for each positive diagnosis but nothing for the negatives.
Having clerical workers prepare a one-page medical and occupational history isn't how doctors typically proceed. Many regard the taking of an extensive history as crucial in diagnosing occupational disease. That's because the shadows consistent with asbestosis or silicosis might also be consistent with scarring caused by other dusts (coal, beryllium, cotton), fungal diseases, lupus, rheumatoid arthritis, congestive heart disease, metastatic cancers, certain drugs, old cases of tuberculosis or fractured ribs, or according to some doctors, even smoking, obesity, or old age.
Be that as it may, N&M and many other screeners in the MDL case were extremely successful in finding silicosis--even among those whose earlier X-ray readings had reported only the feathery shadows characteristic of asbestosis. One screening doctor in the case, Ballard--who acknowledged making $500,000 a year in 2000 and 2001 from reading X-rays for litigation--did suggest an innocent explanation for this "crossing of the Rubicon" phenomenon, however. When looking for asbestosis, Ballard explained, he might have focused on the lower lobes of the lungs, where asbestos scarring usually occurs. There, he might have seen mainly feathery shadows. But when looking for silicosis, he continued, he may have focused on the upper lobes, where you typically see silicosis scarring; there, perhaps, the rounded shadows were more prominent.
So maybe that's what happened--3,691 times.
Harron Takes the Stand âñ Ray Harron, now 73, took the witness stand on Feb. 16. He is an experienced witness, having given "about 50" depositions in his career. That career stretches back to 1961, when he set up a radiology practice in Bridgeport, W.Va., in the Appalachian foothills about 80 miles south of Pittsburgh. Because of the mining, chemical plants, and glass factories in the region, he saw a good deal of lung disease caused by coal, silica, and asbestos. He has estimated that he's read 800,000 X-rays.
In 1995, Harron retired from "real medicine," as he puts it in depositions. His exclusive source of earned income since then has been reading X-rays as a consultant, mainly for plaintiffs attorneys or screening firms. He does the readings at his office in Harron Square--a two-building office park he owns on the main strip through Bridgeport--at his home nearby, or at another home in La Marque, Texas, on the Gulf Coast. He also participates in screenings in hotel conference rooms in Mississippi, Texas, California, and other states. On those occasions, he's paid $125 per diagnosis, sometimes with a $10,000-per-day minimum. In his heyday in 1996, he spent more than 200 days at screenings in Mississippi, probably generating more than 10,000 reports that year alone, he has acknowledged. Of the 52,600 claims based on Harron X-ray readings that the Manville Trust has received, most have presumably been filed against dozens of other defendants too. Since plaintiffs attorneys estimate that the average nonmalignant asbestos claim fetches about $60,000 in aggregate payouts, Harron's diagnoses might have cost defendants more than $3 billion over the years, of which more than $1 billion would have gone to plaintiffs attorneys as fees.
Harron has been hard to pin down in depositions, because he claims to keep no records. He also claims to have no idea how much money he makes, having entrusted his finances to an accountant. Judging from transcripts and videotapes of those depositions, Harron is smart, confident, even arrogant in those settings. "I'm a film reader, not a publisher," he tells a defense lawyer who asks if he's ever written articles in his field. "I'm a worker," he adds.
Whenever a defense lawyer politely refers to the people he examines as "patients," Harron abruptly cuts him off. "They're not patients," he'll say, flatly. It's an important point. If they were patients he'd be required to keep records, and he'd also be on the hook for malpractice. It's a lesson he learned early. In July 1995, Harron allegedly noticed a cancer on a worker's X-ray and notified the attorney who hired him but not the worker with the disease. The lawyer never forwarded the message, so the worker didn't find out about the cancer until his own doctor picked it up a year later. Seven months after that the man was dead, and his estate sued Harron for malpractice. A federal appeals court ruled for Harron, though, finding that there was, indeed, no doctor- patient relationship. Harron evidently likes everyone to be clear on that point.
Harron is adamant that he calls films just as he sees them. "It's an insulting question," he responds to a lawyer who asks him if he is paid the same whether the diagnosis is positive or negative. "You're asking me basically if I'm prostituting myself, and I don't. I get paid the same no matter what I say. And if you don't pay me, I'll sue you."
It was a less combative Harron who took the stand before Judge Jack. Questioned by Mulholland, he was forced to admit that he paid almost no attention to occupational histories when he diagnosed workers. "The only things that are of any importance to me," he had said in an earlier deposition, which he reaffirmed at the hearing, "are that the guy claims that he was exposed to asbestos or silica or whatever, and signs that he was exposed to it.... If they put down the companies and his job title and all that, I'll try to include that in the report, just to flesh it out a little, but it's of no significance to me whether he was a welder or a pipe fitter. The important thing is that he was exposed, for me."
Next, Mulholland delved into the unseemly mechanics of assembly-line diagnosis. When Harron diagnosed silicosis, he admitted, he didn't actually write a report to that effect--or even dictate one. Instead, he filled out a standard X-ray classification form--writing symbols like "1/0" and checking boxes marked with letters like "t" and "p," which indicate the size, shape, and frequency of the shadows but don't necessarily translate into "silicosis." In a sense, the actual diagnosis was made by his typists, who gleaned it from the symbols and the patient's history. The typist then wrote up a narrative report using templates, stamped Harron's name on it, and sent it back to N&M without Harron's ever reading it. "Oh, this is not good," was Judge Jack's only comment.
Mulholland then showed Harron one of the 331 "Harron twofers," where he had issued separate reports for one worker based on one reading of one X-ray, one diagnosing asbestosis and the other silicosis. Harron said the reports were written months apart and he must have been presented with differing work histories each time.
Then Mulholland showed Harron instances in which he had read someone's X-ray as showing only asbestosis-shaped shadows back in the 1990s, but then read it as showing only silicosis-shaped shadows in 2001 or 2002. Had the irreversible asbestosis healed itself by the time of the second reading?
"So people are making pilgrimages to this man now," commented Judge Jack, to courtroom laughter.
Harron said the discrepancy might be due to "intra-reader variability," or to the films' having been shot differently each time, which can result in highlighting different lobes of the lung and therefore different scars.
"If you're accusing me of fabricating these things, I think that's a serious charge," Harron added.
"I think that's what he's doing," Judge Jack observed. Harron then asked to see a lawyer, and Judge Jack halted the examination to let him to do so. Though Harron returned the next day represented by counsel, neither side chose to question him further.
The Screening Dilemma âñ Judge Jack is expected to rule in the silicosis consolidation by mid-June. The defense lawyers have asked her to sanction several of the plaintiffs' firms, and at a hearing in March she indicated she'd love to. "I can sanction all the plaintiffs' lawyers to go to those doctors for the rest of their lives," she joked. But Jack also admitted she wasn't sure she had the power to sanction anybody, because she is likely to rule that in the final analysis, she lacks federal jurisdiction over nearly all the cases. Still, she promised an "extremely detailed" order describing what went on before her in an obvious effort to alert the state judges to whom the cases will return.
It may be too late for the revelations of the silicosis consolidation to remedy all the past abuses in asbestos litigation. So many horses left that barn so long ago, and the specter of inter-reader variability will still vex attempts to prove intentional wrongdoing. But the lessons of the silicosis consolidation extend beyond the asbestos scandals. A March 2005 cover story in The American Lawyer reports how the multibillion-dollar settlement of the fen-phen diet pill litigation in 2000 has been undermined by a deluge of low-level claimants identified by attorney-sponsored "echo mills"--i.e., echocardiogram screenings. A recent audit of more than 900 claims by a panel of outside cardiologists found that almost 70% should never have been paid.
Apologists for attorney-sponsored screenings say they benefit workers who can't afford to pay for their own medical examinations. But phony medicine is not a good substitute for real medicine, even for poor people.
The problems posed by attorney-sponsored screening are tricky. Since conscientiously performed surveillance screening is a good thing, it would be hard to fashion legislation that would ban only what should be banned. Enhanced transparency and vigilance seem to offer a safer solution, but in mass torts the need for streamlined claims processing always seems to trump time-consuming efforts to audit, with fraud coming out the winner.
Yet some action is required. Today, on the subways in Manhattan, ads from a group of Texas law firms tell New Yorkers how to get screened for something called welder's disease. Which might be fine and good. But it should also spur corporate defendants, insurers, judges, and possibly legislators to update that wise old saying: Fool me once, shame on you. Fool me 52,600 times, shame on me.