035: It’s Better than the Lottery

Stella Case No. 035, Originally Published: 12 February 2003

Asbestos is a natural insulating material that was commonly used in industry and buildings. It resists even open flames. Its amazing properties have been known so long that the very word “asbestos” is from the ancient Greek (for “inextinguishable or indestructible”). The Romans used asbestos as wicks for lamps since it didn’t burn. It came into heavy use in the United States thanks to the railroads — it insulated the boilers in steam locomotives, helping make the job of keeping the engines running from resembling toiling in hell.

During World War II, shipyards used plenty of it, and studies later found that 1.4 percent of dock workers later died from lung diseases. By the 1960s, it was widely realized that airborne asbestos fibers could cause severe lung problems including lung cancer or mesothelioma, a deadly cancer of the lung, heart or abdominal lining. Manufacturers started a massive switch-over to other insulating products such as fiberglass and cellulose.

Ahhhhh… did you say personal injury? Did you say big pockets (er… industry)? Step Right Up! beg ads run all over the country in magazines and newspapers, on TV and radio — ads placed by lawyers looking to cash in on the asbestos lawsuit craze by finding someone, anyone, who might have been exposed to asbestos so they can sue. Currently there are more than 300,000 asbestos-related lawsuits pending.

Insurance industry studies show that around 80 percent of the people suing have no symptoms or other signs of any disease caused by asbestos, yet about 70,000 more cases are being filed every year. About 700 law firms are actively seeking clients for asbestos-related lawsuits, many using “mobile clinics” to “screen” otherwise-healthy people by scouring medical histories or even taking x-rays in the search for any evidence they may be a “victim”.

At one screening location in Hazelwood, Mo., visited by newspaper reporters, 19 people were standing in line. Three said they had previously worked with asbestos and were there to get a free checkup. The 16 others simply admitted they thought it could be a good way to make some quick money.

A nearly-retired Boeing worker was getting a chest x-ray to look for a “shadow” in his lungs. “The lawyers said I could get $10,000 or $12,000 if the shadow is big enough,” he says. A legacy for his children? Nope: “I know just the fishing boat I’d buy with that.” Has he ever worked with asbestos? “No, but lawyers say it’s all over the place, so I was probably exposed to it.” (If the lawyers acknowledge it was “all over the place,” then how do they know any health damage was caused by his employer? Ah, well, that’s just a slightly inconvenient detail.)

Another man who worked at a Ford plant “saw the notice in the union newsletter and figured ‘Why not?’,” he said. “It’s better than the lottery. If they find something, I get a few thousand dollars I didn’t have. If they don’t find anything, I’ve just lost an afternoon.” During his interview he chain-smoked cigarettes.

“We’re here because the president of the retirees club called us and asked if we’d set up the screening,” said Randy Gori, an attorney with one of the trolling law firms. “We’re doing it as a favor,” he says.

“He said what?” demanded Claude Barnes, the president of Local 837 of the International Association of Machinists and Aerospace Workers Union, when he heard about the “favor” claim. “Hell, they called me a half-dozen times to let them set this up. I didn’t think it could do any harm and maybe some of the guys would get a little money. But it was the lawyers who wanted to do this.”

According to the lawyers, two screenings done earlier in the year found that half of the 600 men and women tested “came back positive for asbestos-related disease,” said Martin Mengarelli, Gori’s partner in the screening, a number that contrasts fairly suspiciously with the 1.4 percent found in the dock workers. So who are these lawyers going to sue? “Anyone who made products with asbestos who hasn’t gone bankrupt yet,” Mengarelli says.

Gee, would lawyers actually lie just to get their hands on huge pots of money, even at the risk of bankrupting the companies that employ their clients? On the other hand, they probably don’t want you to consider that question.

Promising to sue “anyone who made products with asbestos who hasn’t gone bankrupt yet,” Martin Mengarelli, Gori’s partner in the screening, says two screenings done earlier in the year found that half of the 600 men and women tested “came back positive for asbestos-related disease,” which doesn’t actually mean they have any illness, or will ever suffer any ill effects.

Larry Sartin, the national director for occupational disease programs for the Paper, Allied-Industrial, Chemical & Energy Workers union, says one law firm alone screened more than 10,000 possibly exposed workers in 2001. “We used to get settlement[s] pretty quick,” he says, “but now with 25 or so companies bankrupt, it can take three or four years” to find a company with both some sort of liability and some sort of money.

Despite the heavy case load, the screenings have actually slowed down recently because so many companies who used asbestos have filed for bankruptcy. They include Johns Manville, W.R. Grace, Federal Mogul, Pittsburgh Corning and U.S. Gypsum. Lawyers are now looking toward “second tier” companies — smaller manufacturers who haven’t gone bankrupt yet.

So the fishing for victims is far from over. “I was tested positive and I haven’t felt bad,” said Union president Barnes. “I don’t have a breathing problem.” Yet he has already received two settlement checks, for a total of $600 (what was left after the attorneys took their cut, which is typically one-quarter to one-half the payment). He says he doesn’t know how much he’ll get over time, but “I’m guessing a few thousand dollars if I’m lucky.”

And he’s only one of 300,000 people lining up at the rapidly draining cash trough.

In exchange for the hundreds or several thousands of dollars of settlement payments, Barnes and others have given up the right to sue — even if they get lung cancer or mesothelioma, which can cost $300,000 to $500,000 to treat. “We’re gambling that we never get sick,” Barnes said. “We were gambling when we took that test.”

“Critics of screening say law firms do it just to bring in business,” says Will Miller, a partner of the law firm that ran the Hazelwood screenings. “In reality, that may be correct.” Then, he quickly adds, “but people are often helped by the results of the screenings.” (Oh yeah: they’re doing it as a “favor,” remember?) He said in addition to finding possible cases of asbestos-related disease in the hundreds and hundreds of people his firm screened, “we also identified 32 cases of lung cancer, one case of mesothelioma and 20 cases of nonasbestos-related cancer.”

Perhaps they offered to help them sue someone too — anyone that’s not already been bankrupted.

Certainly many workers have terrible diseases after being exposed to asbestos. Some were likely even the victims of uncaring employers who didn’t pay attention to the dangers, or didn’t provide proper safety equipment. Those men and women are the true victims, the ones who should be asking for compensation. But with a quarter-million people — the 80 percent having no symptoms of anything — in line too, bankrupting their former employers with frivolous claims, what’s the chance that the real victims will get their due?

You know that answer. Meanwhile, those without any sign of disease are literally stealing air from those who do.

Sources

• “Asbestos Lawsuits Anger Critics,” St. Louis Post-Dispatch, 9 February 2003.
• “Asbestos Has Been Used Since Ancient Times,” AsbestosNetwork.com (an “educational” web site sponsored by the Brayton-Purcell law firm, which works on asbestos cases), undated.

Update

Congress moved to limit asbestos legal cases, but it’s not only a matter of “too little, too late” since so many companies were forced out of business, it’s also a great example of a Band-Aid. Prohibit the whackamole lawyers from trolling for asbestos “victims”? No problem: they’ll pop up on other issues, such as suing fast food restaurants for “forcing” obese people to eat junk food. The solution for outrageous abuse isn’t to make that particular flavor of case illegal; the solution must be systemic.

Meanwhile, a team at Johns Hopkins University reviewed the actual x-rays used in court to win money in asbestos cases. Experienced radiologists who had no stake in the outcome found that only 4.5 percent of the 492 chest x-rays found “something wrong” with the patient. “Medical experts” hired by attorneys who reviewed the same x-rays had found 96 percent of the x-rays showed signs of illness. When it published the study, the medical journal Academic Radiology editorialized that it was time to “repair the breech” in the integrity of the profession, pointing out that the code of ethics of the American College of Radiology calls for members to exercise “extreme caution to ensure that the testimony provided is nonpartisan, scientifically correct and clinically accurate.”

So how is it that radiologists hired by lawyers found 20-25 times the level of illness than a panel of disinterested reviewers? Follow the money: medical expert witnesses earn $600-800 per hour to testify at trials, and there’s no trial if an “expert” doesn’t swear he found signs of illness.

“If these people gave testimony that was incorrect, they should be prosecuted,” said Dr. Michael Manco-Johnson, former head of radiology at the University of Colorado Health Sciences Center. “There are unscrupulous people in every field, but if they hook up with unscrupulous lawyers, this could very well happen.” He adds that “there are physicians who become professional testifiers, who get their entire salaries from it. They’re usually very inadequate physicians, not very good at what they do, who can’t make it practicing radiology.” Those who lie in court, he says, are somewhere from “unethical to immoral.”

Those choking to death from real lung diseases, but can’t collect from bankrupt companies, would tend to agree.

Update Source: “Asbestos X-rays Rechecked; Study Casts Doubt on Medical Experts’ Courtroom Testimony,” Denver Rocky Mountain News, 5 August 2004

My 2020 Thoughts on the Case

I still see plenty of ads online from lawyers trolling for mesothelioma victims. Indeed, just because that word is used on this page I wouldn’t be at all surprised to see such ads show up on this page. It got so bad that even today, including the word “mesothelioma” in an email is enough to get the message marked as spam in many systems, especially at corporations (law firms usually excluded…).

Letters

Last week’s essay and letters on lawyer ethics brought a huge response. At the end, I asked attorneys to respond to my question, “what can be done to improve this [ethics and misconduct] process and make the profession more accountable? (Or provide a good argument as to why it doesn’t need to be more accountable.)”

Not one wrote to argue that such accountability isn’t needed. Indeed, they went the other way. And trust me: this is just a sampling of the mail!

Allan in Michigan: “I’ve been a lawyer for 30 years. Early on, I resolved to take the ethical rules that govern us seriously, and to hold other lawyers to the same standards. Here’s a couple samples of what it got me. I came across one case where a client lost a worker’s compensation claim because his lawyer failed to file a brief during a two year period; I filed a grievance against the lawyer, which the Attorney Grievance Administrator dismissed on grounds that the lawyer had fallen ill (he had a stroke). I responded, noting that (a) the lawyer had a partner, who under the rules had an obligation to see that the firm took care of all its clients while one lawyer was disabled and (b) all lawyers have an obligation to make arrangements for someone to cover for them if they do become disabled or die (if nothing else, simply by bringing the fact to the attention of any tribunal where something is pending, and to the client’s attention, so new counsel can be substituted to protect the client’s interests). That got me nowhere, so I filed a complaint for mandamus against the Grievance Administrator with the State Supreme Court, at my own expense. The GA responded, calling me an ‘officious intermeddler’ (demonstrating to all 30,000 lawyers in my state that the way to practice law is to indulge in personal attacks on the opposition), and the Supreme Court dismissed my complaint. So the client stayed screwed and his lawyer walked away unscathed.

“In another case it came to my attention that a law firm had charged its client about 40% of the settlement it got for him; my state has a rule limiting the contingency fee to 33.3%, so I filed a grievance. The firm responded, saying that its client had not complained (the client really did not realize how badly he’d been ripped off by his lawyers; not only did they take 40%, but they hired their own expert to overestimate the present value of a settlement being paid over time and took 40% of that amount up front). The GA again dismissed the grievance, as though the failure of the client to complain meant that the rule did not apply.

Another time I caught a lawyer filing a ‘secret’ brief; he refused to serve a copy on the opposing lawyer. When I filed a grievance, charging the miscreant with violating the rule prohibiting ex parte communications, he responded that he was following a practice from 40 years earlier, as though lawyers have no obligation to stay current with changes in how things are done. The GA again dismissed the grievance. I served a full decade on my state bar’s ethics committee, only to watch the members constantly strive to find rationales for interpreting the rules to assure that any opportunity for profit could be pursued, until I couldn’t stand it any more.

“I’ve got a few dozen more like these over the years, yet every year I have to endure reading the disciplinary bodies’ annual reports, patting themselves on the back for doing a great job by processing X-thousand grievances (of which they dismiss 99.9%) with self-congratulatory efficiency. And more and more I encounter lawyers who are willing to lie, cheat, and steal to win a case in litigation, and judges who let them get away with it (or even abet them), more and more I’m realizing the truth of the old saw that the way to greet a person who finished last in their law school class is ‘Good morning, Your Honor.’ As a profession, we deserve every rotten sentiment that bedevils us, because we have set up mechanisms designed to protect lawyers as though we are all fraternity brothers covering up for one another so we don’t end up in trouble for a panty raid, instead of acting like professionals who owe a sacred duty to the public to weed the nogoodniks out of our ranks. Most attorneys are honest and ethical, but collectively we have done nothing to correct the abuses of the system except band together to formulate empty phrases and to piously proclaim how dedicated we are to the public weal, when what we really mean is that if we can profit from it, it must be good public policy. Your Stella Awards at least make me feel that my years of Sisyphusian labor may finally end as others come to help me push that bloody stone up the hill.”

Wow! Contrast that with a former lawyer’s comments:

Doug in Oregon: “In Oregon, the lawyer disciplinary process is very public and visible. Each case is written about in the monthly bar publication. If the lawyer is found guilty of a violation, their name is published, along with a description of their conduct that warranted the finding, as well as the punishment. If they are not guilty, their name is not used. Also, it is possible to find out if a lawyer has been disciplined for ethics violations because it is public record. Compare this with physicians who, at least in this state, keep disciplinary matters secret. How many people work in occupations where relatively minor ethical breaches result in no income for three, four, or six months?”

Doug’s last intrigued me, so I asked him for an example. He replied:

“A lawyer was negotiating a lease-option agreement on behalf of himself and his business partners. The opposing party had a very capable lawyer. The parties repeatedly argued over a particular clause in the contract and it went back and forth many times as to how the language would read. Finally, when the opposing party signed the contract in the accused lawyer’s office; he read, and then initialed that particular change which was written in the manner in which the accused lawyer wanted it. Later, when he decided the clause he had initialed when he signed the contract did not suit his interests, he claimed the accused lawyer told him that he did not need to consult with his own attorney regarding that clause. This opposing party was a very wealthy and savvy real estate investor. He had consulted with his attorney many times over the negotiation of the contract. After the contract was signed (and read by this opposing party’s attorney), nothing was said about the clause. But, some years later, when it proved unfavorable to the opposing party, and he claimed the accused lawyer told him he didn’t need to talk with his attorney, the attorney was suspended from the practice of law for 2 or 3 months. It seemed to me that even if the lawyer did make the statement, it would be hard to believe that this savvy multi-millionaire real estate investor would have given it any credence. I thought in that case that the bar bent waaayyy over backwards to try and prove that they weren’t favoring one of their own. My only point is that the burden in Oregon seems to be on lawyers to prove they didn’t do something wrong. Nevertheless, I suspect that Oregonians are just as derogatory about lawyers as people in any other state.”

Randy, a non-practicing attorney in Washington: “The first step has to be communication, and I think your letter helps. Second, let me draw your attention to a thoughtful article, ‘Money and Ethics: the Young Lawyer’s Conundrum’ in the Washington State Bar News, January 2000 . It starts ‘…I tell the students I teach, they will probably begin to practice law unethically in at least some respect within their first year or two in practice. This happens to most young lawyers. It happened to me, and it will happen to my students, unless they do something about it.’ Third, the public probably does not know, but should find out and take advantage of the ‘Lawyer’s Fund’ that is established in every U.S. state to help repay money lost by a lawyer’s client by a lawyer’s dishonest actions. Sound incredible? Look at  [my state’s version of this program]. How many professions make their members contribute to a fund to pay for the bad deeds of members of the profession? Last, I think that as long as there is conflict between humans, the choices will be to resolve them either by violence or by law. Law is better. But as long as conflict is resolved by law, someone is going to have to represent those people who aren’t experts in the law. These are lawyers; some will be devils and some will be saints, same as anywhere else. Usually the lawyer on your side will be a saint and the other side’s lawyer will be a devil. (Of course, there are some scum-sucking dogs who should be grateful to be merely shot. Some of them are slick enough not to get caught, but some slip up enough to be disciplined, sometimes losing their licenses.)”

Another reader points out how different things are in different states:

Wayne in South Carolina: “In South Carolina, the bar association handles complaints against lawyers, their findings, and most disciplinary actions in secret. It is illegal for a person who has lodged a complaint to make any public statements concerning his complaint or its outcome. Rather than enhancing the reputation of the legal profession, this secrecy adds to the public’s distrust, at least as far as I am concerned.”

Paul, an attorney in California: “How to improve the disciplinary system? Better funding/more resources! My understanding is that the present system in California is funded primarily by the bar dues paid to the State Bar by practicing attorneys, with almost 80% of the State Bar’s funds devoted to discipline. In other words, each practicing attorney pays hundreds of dollars each year to help the State Bar pay the costs of ‘policing its own.’ Based on my experience, however, the resources available are not enough, as I have seen legitimate complaints take years to work their way through the process, and many are never successfully resolved. Although there can be no dispute that this is one of the State Bar’s most important functions, I expect there would be resistance among practicing attorneys to a request that they pay an even higher ‘tax’ to support expansion of the disciplinary system (the ‘bad apples’ would be opposed for obvious reasons, and the ‘good apples’ would likely resent paying even more to clean up messes they didn’t make).”

In a P.S., Paul added: “I enjoy your newsletters a great deal, and was recently pleased and surprised to learn that my 14-year-old daughter is a subscriber as well (for which I can not take credit — she found you all on her own). Thanks for continuing to focus attention on and foster discussion of these important issues.”

I certainly couldn’t do it without the incredible feedback from readers. It heartens me that so many attorneys are here contributing; it shows that there are a lot of them out there who want things to be better. That’s a great start!

Other readers think the problem is more fundamental:

Felix in California: “Self policing doesn’t work for ANYBODY. It’s long been recognized that civilian police oversight committees do a much better job than internal affairs divisions. Why should anyone expect lawyers to do a good job of investigating lawyers? The very fact that some reprimands are handled privately is a pretty good indication to me that they would rather cover up than eliminate problems. Police are my favorite example. Most are good people, but why do they refuse to rat out the bad ones? They call it camaraderie, justifying it by saying they depend on each other to cover each other in dangerous situations. Lawyers get a double dose of deserved contempt because they also write the laws. There is an incredible conflict of interest going on when the lawyers write the very laws in which they find loopholes and ambiguity to contest cases. Then they say only professionals should write laws because the legal system is too complex for laymen. Hogwash! Normal people understand what normal words mean, and do not need ten times as many words, all more complicated and nebulous, to know what a law means. Fraud is fraud. Why do we need so many laws making very specific kinds of fraud illegal? Certainly you may need to be a bit more specific, but when laws try to identify every possible kind of fraud with a separate law for each, then you open up loopholes and ambiguity. What we need is to get the lawyers out of the lawmaking business, and not let ANY organization police itself.”

Several readers wrote to simply answer, essentially, that following ethical rules is “the right thing to do!” Last….

Kathryn, an attorney in Illinois: “I think a lot of the comments about Jeff’s letter misread or misunderstood his last line. Jeff did not say that HE intended to act unethically, merely that, if everybody thinks lawyers are unethical anyway, where is the incentive to try to stop OTHER LAWYERS from acting unethically. It is easy to retreat into our own practices, where we only occasionally come up against unethical lawyers. Lawyers also may have a second problem reporting an ethics violation: our responsibility is to our client, to represent them as best we can. Often, a bad lawyer will more quickly restore a client’s stolen property or restore a bigger amount if there is an agreement that he not be reported. Even if there is not such an agreement, we certainly don’t want to report him until we have gotten back everything we can! The Supreme Court in this state has responded by making it a violation of professional ethics NOT to report a violation. Which sometimes leaves us trying to figure out how to best represent our client and also report the bad guys.”

Which pretty much goes to prove there usually isn’t a simple answer to any of these problems, as I’ve been saying again and again.

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