Mass Screenings: A Lesson from Asbestos Litigation

April 2005
Drug & Medical Device Newsletter, Spring 2005

A lot of mass tort law in the United States has evolved from asbestos litigation since the early 1980s.  There are many problems for the defense bar that come directly from those early cases.  One of the biggest problems is the low threshold standard of proof needed to bundle low or no injury cases with cases where injury clearly occurred.

Various studies estimate that between two-thirds and nine-tenths of asbestos claimants were unimpaired and that many claims are fraudulent.1  Nonetheless, these claimants meet the threshold criteria for bringing a legitimate claim.  Anyone who has x-rays that show scarring or thickening of the pleural lining of the lungs—regardless of the possible reasons, and regardless of any impairment—present a claim that courts will recognize.  The lack of a solid connection between the product and a proximate cause of harm, and in some instances, the lack of harm at all, has not caused any pause to the claims being advanced.  Savvy plaintiff attorneys bundle the weakest claims (from their perspective) with one or two actual injuries in order to obtain settlement amounts across the entire bundle, rather than risk sizeable punitive damages or run away juries who are looking at the facts from the one or two actual-injury cases and multiplying it across the entire bundle.

To create these “bundles” of claimants, plaintiff attorneys used mass screenings of potential claimants, luring them with the promise of a payoff for even slight exposure to asbestos.  In a recent study, plaintiff-hired mass-screening radiologists found evidence of possible asbestos-related abnormalities in 95.9% of the cases presented.2  But when independent radiologists at Johns Hopkins University reinterpreted the same x-rays, they found abnormalities in just 4.5% of the cases.3  The main problem for asbestos defendants is the combination of the high threat of punitive damages and the bundling of cases has led them to settle most of these cases without any independent evaluation of the x-rays, because an independent evaluation no longer justifies the costs when the risk is so high.  There has been some call for courts to dismiss outright any claims provided through mass screening of x-rays, due to their demonstrated unreliability.4

This has a direct correlation to current diet drug opt-out cases where echocardiogram “mills” are set up in order to find as many plaintiffs as possible who meet the low threshold criteria of “injury” that might be related to diet drugs.  The vast majority of opt-out plaintiffs have had little or no symptoms from any heart-related problem.  But plaintiff attorneys hire specific cardiologists to take and read echocardiograms in mass screenings.  Plaintiffs will fly across the country, to be screened by doctors they have never met before, and importantly, that their primary care physicians have never met.  These doctors will have no history on these patients and will spend only enough time to get an image—sometimes as little as fifteen minutes—in order to get a photo to meet the threshold and place a claim.

For example,5 a woman who used diet drugs for two months had an echocardiogram taken at the time with only some diastolic dysfunction.  Two years later, another echocardiogram shows two moderately leaking valves. The perfect opt-out plaintiff.  On a message board, she wrote, “If I haven’t taken fen-phen in two years, how can my echo change so much so quickly?”  An independent doctor at the Cleveland Clinic told her that it was “highly unlikely” that fen-phen contributed to the current problem. “Phen-fen almost always just causes problems with one valve and leaves waxy deposits on the affected valves which can be seen with echocardiography.”

Regardless, she meets the threshold to make a claim even without any other evidence of valve damage and even with a temporal problem between ingesting the drug and the alleged valve problems.  It suggests a higher threshold should be used for mass echocardiograms taken by “echo mills.”  It also suggests that a vigorous defense can be mounted to attack echo mills on their procedures and findings, and also on their credibility.

In diet drug opt-out cases, unlike the asbestos case scenario where there is a significant threat of punitive damages multiplied across a bundle of claimants, there are no punitive damages.  Therefore, there is a greater incentive to examine the “echo mills” in great detail and formulate strategies to discredit their threshold findings at the inception of cases in motion practice, once the cases are released from the MDL.  If the cases lose their opt-out status by losing the readings from the “echo mills,” these plaintiffs do not get to bring their case at all, under the prior rulings in the diet drug MDL litigation.

Therefore, it is important to use the mass screening information from asbestos as a guide in similar mass screening contexts, such as the diet drug MDL litigation.  Studies may well show that the mass screening techniques used by “echo mills” are not competent to formulate valid opinions about the condition of heart valves and whether any problem with a heart valve could have been caused by diet drug ingestion.

It could save millions of dollars to reduce the number of cases in the early stages of such litigation, and it could be one way to demonstrate for trial courts the dangers of mass tort litigation where plaintiff attorneys are permitted to run amok with less than adequate expert opinions due to the volume of cases and the threat of punitive damages.

[1] Michelle J. White, “Asbestos and the Future of Mass Torts,” Journal of Economic Perspectives, Vol. 18:2, Spring 2004, at p.8.
[2] Mark A. Behrens and Phil S. Goldberg, “Study Points To Abuse,” National Law Journal, Nov. 1, 2004, at p.19.
[3] Id.
[4] Id.
[5] Facts and comments taken directly from http://www.medhelp.org/forums/cardio/archive/654.html.

Practices

Top