On the Theory Class's Theories of Asbestos Litigation: The Disconnect Between Scholarship and Reality

Abstract

Irrespective of the conclusion a reader reaches as to the existence of "perversions of truth," it is beyond cavil that there has been a massive civil justice system failure with regard to asbestos litigation. Given the unique nature of asbestos claiming and its enormity, a na'fve reader might expect to find some discussion of this massive civil justice system failure in the scholarly literature. But a review of those writings, in particular the theories of the litigation advanced by the theory class, indicates instead a primary focus on how transactional costs can be reduced. That is, ways in which the flow of money from defendants to plaintiffs and their lawyers can be more expeditiously and efficiently prioritized and routed. The failure to either acknowledge or 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. I propose to offer some tentative explanations of this phenomenon.

To do so, I will first briefly examine the etiology of asbestos-related diseases and the history of asbestos claiming, including a discussion of the modifications to tort claiming wrought by courts in response to the asbestos litigation crisis and the phenomenon of the unimpaired claimant and their role in asbestos litigation. I then present a detailed discussion of attorneysponsored asbestos screenings largely based upon the deposition testimony of owners of the screening enterprises and the doctors and technicians they employ, including analysis of how the screenings are conducted, the financial incentives that pervade the screening process and heavily influence the outcomes generated, and the evidence regarding the number of persons screened who are found "positive" for asbestosis on the basis of X-ray readings and impaired on the basis of performance on pulmonary function tests.

Following that I compare the medical data produced by medical science with the medical evidence produced by screening enterprises, including a discussion of how the medical data produced by screenings was tectonically shifted in response to litigation needs. I then carefully scrutinize the tremendous adjuvant effect on specious claiming of the failure of the Manville Trust to put a medical audit procedure into effect. Following that, I discuss evidence showing that some witness and party testimony is heavily influenced by lawyers' efforts to create memories irrespective of the underlying facts. Finally, I conclude with some brief almost-theories, heuristic notions, about why the theory class's theories about asbestos litigation largely ignore the phenomenon of the large and unprecedented scale of the specious claiming that characterizes asbestos litigation today.