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"There are two primary contexts in which junk science arises in the asbestos litigation. The first is misdiagnosis of unimpaired patients as having an asbestos-related lung or chest abnormality. This occurs when an expert claims to find a lung or chest abnormality and states that this abnormality is a manifestation of asbestosis, and the expert is wrong on one or both counts. The need for care in diagnosing asbestosis-related abnormalities is evident. Incipient or marginal asbestosis as picked up on an X-ray bears at least a superficial resemblance to more than 130 other lung inflammations.
Many of the experts who diagnose asbestos-related disease are partisan hired guns. Courts should instead insist that neutral experts, retained by the court itself, be used to determine whether plaintiffs in class action cases show signs of asbestos-related disease. Moreover, any physician who testifies regarding a diagnosis of asbestos-related disease should be properly qualified. The appropriate test is the reasonable patient test: would a reasonable person who thought he had the asbestos-related abnormality that he is claiming in litigation go to the testifying physician for a diagnosis?
The second important context in which junk science arises in the asbestos litigation is when an impaired plaintiff claims an injury that might be, but is not necessarily, related to asbestos exposure. Asbestos exposure can clearly cause lung cancer, and some scientists believe that other cancers, such as colon cancer, can also be caused by asbestos exposure. However, most instances of lung cancer have nothing to do with asbestos exposure, and even taking a generous view of the evidence, the vast majority of colon cancers and other cancers purported to be linked to asbestos have nothing to do with asbestos exposure.
The most pressing causation issue in the asbestos litigation is whether fleeting exposure to minute amounts of asbestos causes disease. Until recently, courts were much too liberal about allowing doctors, especially treating physicians, to testify with respect to causation evidence. Fortunately, beginning in the early 1990s as part of a general trend toward stricter scrutiny of expert evidence, the federal courts have started to crack down on the use of unqualified physicians who seek to testify about causation. State courts should follow their lead.
Even if experts testifying regarding causation are qualified, the testimony must, of course, meet the particular jurisdiction's reliability standards. In federal court, this means amended Rule 702, which incorporates the Daubert trilogy. State courts have a hodgepodge of standards. Some states have adopted various versions of the Daubert test, others apply various versions of the Frye general acceptance rule, and still others have idiosyncratic tests. Whatever test is used, courts should serve as gatekeepers that exclude unreliable evidence. If state courts are unwilling to do so, the legislature should step in where appropriate and adopt a state version of federal rule 702. "

"Nearly 30 years ago, the first of a series of bills to remove asbestos litigation from the tort system by creating an industry-funded mechanism to administratively pay asbestos claims was introduced into Congress. The need for a legislative fix of asbestos litigation has long been manifest. After many unsuccessful efforts to resolve the asbestos litigation crisis, the Senate is poised to take up consideration of S.852, The Fairness In Asbestos Injury Resolution Act of 2005. This essay is a preliminary effort to present some context for discussion of certain aspects of S.852 and to estimate the costs that may be incurred for resolution of personal injury asbestos claims if S.852 is enacted.
To date, over 850,000 individual claimants have filed suit against over 8,400 manufacturers, distributors installers and sellers of asbestos-containing products distributed across most of U.S. industries, as well as against owners of buildings and plants in which asbestos is present, claiming injury from exposure to asbestos. Since each plaintiff sues approximately 60-70 different defendants and bankruptcy trusts, the total number of claims probably numbers in excess of 50,000,000.
A number of factors account for the significant impetus to current consideration of legislative proposals that range from limiting compensation available in the tort system to plaintiffs whose injuries meet specified medical and exposure criteria to the creation of an administrative alternative to asbestos and exposure litigation. These factors include: the number of asbestos lawsuits; the almost $80 billion in costs already imposed; an even larger sum projected for future costs; 500,000 jobs lost or not created because of the litigation; the further financial consequences of the litigation's impact on capital markets; and the concern for the integrity of the civil justice system as most recently voiced by a federal judge presiding over the silica MDL proceeding that X-ray readers, diagnosing doctors, screening companies and lawyers were engaged in a scheme to manufacture diagnoses for money.
S.852, which is now before the Senate, is the product of an extended and extensive negotiation between a number of stakeholders, including, inter alia, businesses, insurers, labor unions, and lawyers. The bill proposes creation of a $140 billion trust ("Trust Fund") funded mostly by business and insurers, to pay claims that meet the medical and exposure criteria set out in the bill. In this essay, I examine the financial costs, in addition to the $140 billion to be paid into the Trust Fund, which may be incurred to resolve current and future personal injury claims based upon asbestos exposure.
In attempting to quantify the costs that "fixing" the asbestos litigation crisis may generate and, in particular, those costs additional to the Trust Fund, I am neither advocating adoption or rejection of S.852 or any other legislative "fix" of the massive civil justice system failure that I describe in this essay. Moreover, though I consider the costs that may be incurred in addition to the Trust Fund to be created if S.852 is enacted, I am not expressing any view as to the likelihood of the bill's passage.
To set the stage for my analysis, I first consider the benefits that can be realized by enacting legislation to create an administrative mechanism for resolution of asbestos claims in place of the tort system. I then present a brief history of asbestos litigation, including the development of an entrepreneurial model of claim generation, followed by a brief summary of legislative efforts to fix the asbestos litigation crisis. I then briefly summarize S.852's legislative history and current format. Finally, I consider the costs which contributors to the trust fund may additionally have to bear to resolve personal injury asbestos claims."

"Asbestos litigation has given rise to over 50,000,000 claims against 8400 former producers, distributors, installers and sellers of asbestos-containing products. To date, 850,000 claimants have sought compensation, costing businesses and insurance companies over $70 billion and resulting in more than 70 bankruptcies. Over 100,000 deaths are attributable to asbestos exposure with an additional 40,000 deaths anticipated over the next 30 years. Despite the significance of the ethical issues generated by the processes of acquiring, pressing and settling the most massive litigation in history, the legal literature is substantially devoid of any such discussion. One possible reason for this paucity of coverage is that rules of ethics are rarely applied to asbestos litigation despite clear and systematic violations of those rules. In practice, it is as if each state supreme court had appended to its rules of ethics, the following exclusion: These rules shall not apply to asbestos litigation.

In this article, I undertake to discuss some of the ethical issues raised by asbestos litigation from the perspective of both plaintiffs and defendants' counsel. For example, despite the fact that the large majority of asbestos claimants have been recruited by paid agents receiving substantial sums from attorneys - in excess of $50 million - rules prohibiting such solicitation are virtually never invoked. Similarly unenforced are rules requiring that fees and expenses be reasonable.

Undoubtedly, the most complex ethical issues in asbestos litigation involve conflicts of interest. In addition to discussion of these issues, I also discuss conflicts of interest issues unique to asbestos-related bankruptcies including pre-packaged bankruptcy filings and the selection and role of the futures representative. This discussion is informed by an overview of asbestos-related bankruptcies from a law-in-action perspective, including discussion of the ethical issues generated by the unprecedented control that a small number of law firms exercise over the creation of asbestos bankruptcy trusts and the procedures for making claims against the trusts.

Conflicts of interest also abound on the defense side, especially because many defense firms represent multiple defendants with conflicting interests. These conflicts are exacerbated by recent state tort reform legislation which grants defendants the opportunity to seek to allocate substantial responsibility for any injury to other entities including other solvent corporations - even those not named as defendants in that litigation - and to trusts created in the wake of asbestos-related bankruptcies for payment of claims. This effectively requires defense counsel to switch roles and put on plaintiffs' cases against other possible responsible parties. Nonetheless, few defense firms appear to be aggressively pursuing their clients' interests in this regard. I consider a variety of the ethical issues thus generated. Other relevant tort reforms discussed that impact on conflicts of interest include those substantially limiting joint liability for noneconomic damages.

Even if Congress enacts legislation presently under consideration to create an administrative alternative that would eliminate substantially all asbestos litigation, what has thus far transpired will stand as a stark reminder of the failure of the bar and the courts to have applied rules of ethics to the most massive litigation ever."

"More than 100,000 new asbestos claims were filed in 2003, the most ever in one year. Asbestos litigation thus continues to thrive even though 80-90% of claimants have no illness recognized by medical science, let alone suffer any lung impairment. To explain how this disconnect between medical science and tort litigation has come about, I cover the following subjects:

1) medical consequences of exposure to asbestos-containing materials;
2) the phenomenon of the unimpaired claimant;
3) medical evidence with regard to the incidence of asbestosis;
4) the effect on asbestos litigation of the failure of the Manville Trust audit to be approved;
5) the causes and effects of seemingly orchestrated changes in party and witness testimony with regard to the identification of asbestos-containing products at work sites; and
6) the Baron & Budd "script memo."

The core of the article is an empirical analysis of attorney-sponsored asbestos screenings which account for approximately 90% of claims being generated. On the basis of that empirical research, I conclude that asbestos litigation today largely consists of former industrial and construction workers:
(1) recruited by an extensive network of entrepreneurial screening companies which are employed by lawyers to "screen" hundreds of thousands of potential litigants each year at local union halls, hotel and motel rooms, shopping center parking lots, and other locations throughout the country;
(2) asserting claims of injury though they have no medically cognizable injury and cannot demonstrate any statistically significant increased likelihood of contracting an asbestos-related disease in the future;
(3) in a civil justice system that has been significantly modified to accommodate the interests of these litigants by dispensing with many evidentiary requirements and proof of proximate cause;
(4) mostly in forum-shopped jurisdictions, where judges and juries often appear aligned with the interests of plaintiff lawyers;
(5) often supported by specious medical evidence, including: (a) evidence generated by the entrepreneurial medical screening enterprises and B-readers - specially certified x-ray readers that the enterprises or plaintiff lawyers select, who fail to exercise good faith medical judgment but instead conform their findings and reports to the expectations of the plaintiff lawyers who retained them, and (b) pulmonary function tests which are often administered in knowing violation of standards established by the American Thoracic Society and result in findings of impairment which would not be found if the tests were properly administered; and
(6) who frequently testify according to scripts prepared by their lawyers which include misstatements with regard to: (a) identifications of and relative quantities of asbestos-containing products that they came in contact with at work sites, (b) the information printed on the containers in which the products were sold, and (c) their own physical impairments.
It is beyond cavil that asbestos litigation thus represents a massive civil justice system failure. Because of the awesome power of the asbestos plaintiffs' bar, the issues posed by this failure appear impervious to resolution by civil justice reform. Realistically, the only fora in which the issues of the mass production of bogus medical evidence and scripted client and witness testimony can be addressed is through an investigatory grand jury process.
A review of the scholarly literature indicates a substantial degree of indifference to the causes of this civil justice system failure. Many of the published articles on asbestos litigation focus on transactional costs and ways in which the flow of money from defendants to plaintiffs and their lawyers can be expeditiously and efficiently prioritized and routed. The failure to acknowledge, let along analyze, the overriding reality of specious claiming and meritless claims demonstrates a disconnect between the scholarship and the reality of the litigation that is nearly as wide as the disconnect between rates of disease claiming and actual disease manifestation. In this article, I set forth some tentative explanations of this phenomenon. "

"The parties to the Aarhus Convention recently established a new Rapid Response Mechanism for environmental defenders. This article analyses this mechanism and its guarantees for environmental defenders, with a specific focus on the protection of diverse forms of climate activism. The Convention's Compliance Committee has taken a broad approach towards the definition of ‘environmental defenders' protected by Article 3(8) of the Convention. This definition includes persons who engage in demonstrations or rallies connected to environmental issues, even if there is no immediate link to the rights provided by the Aarhus Convention. In some cases, direct actions and acts of civil disobedience may fall under Article 3(8) of the Convention. Where environmental defenders suffer harmful acts such as penalization, harassment or persecution either by State authorities or private parties, the State concerned must produce evidence to show that these harmful acts were not a response to the civic engagement of the environmental defenders concerned. If environmental defenders are victims of harmful acts in the sense of Article 3(8) of the Aarhus Convention, they may address the Special Rapporteur who can swiftly issue protection measures. This could be especially relevant for detained persons, persons under police supervision or activists who undergo systematic harassment by the police or private security forces. In these cases, the Special Rapporteur may intervene and use their unique position on the international plane to ensure that environmental defenders do not suffer due to their engagement for the environment."