It's time to put trial lawyers on trial

Perhaps what’s needed is a class action lawsuit against attorneys and firms that bring class action lawsuits based on misleading or fraudulent claims. We don’t know if that’s legally possible. But it would certainly advance the cause of justice.

Law firms in the past reaped huge financial awards, bankrupted companies, whipped federal regulators into a frenzy and anointed a new class of American “victims” using baseless claims about the alleged health risks of silicone breast implants. Emotional appeals and the courtroom testimony of paid medical “experts” repeatedly trumped reason and sound science, which today has debunked any tie between implants and myriad maladies with which they were supposedly linked.

It’s tempting to look back on the onslaught of implant claims as something more akin to 17th-century Salem than the modern American “justice” system. Yet eerily similar gambits are being run today.

We were disturbed, but not surprised, to read reports last week indicating that chest X-rays used as evidence to support billions of dollars in health claims against asbestos manufacturers and other companies actually indicated no such thing. An examination of 492 of the X-rays by radiologists at Johns Hopkins University showed that only 4.5 percent of them revealed abnormalities that could possibly be linked to asbestos. Yet the paid “experts” who testified in court on behalf of plaintiffs found that 96 percent of the X-rays showed asbestos-related lung damage.

What might have influenced the more dire and sensationalized diagnoses? Paid “experts” can receive between $600 and $800 per hour for their services. And plaintiffs’ lawyers aren’t paying anybody that kind of money to give their clients a clean bill of health. This seems to be a case in which medical and legal malpractice are working as allies.

The revelations were made in Academic Radiology Journal, which in an editorial called for radiologists to do more self-policing and “repair the breach” of ethics and integrity the episode represents. The American College of Radiology has an ethics code requiring that members use “extreme caution to ensure that the testimony provided is nonpartisan, scientifically correct and clinically accurate.”

But that’s obviously not enough to prevent some radiologists from hiring themselves out to the highest bidder.

“If these people gave testimony that was incorrect, they should be prosecuted,” the former head of radiology at the University of Colorado Health Sciences Center told one Denver newspaper. “There are unscrupulous people in every field, but if they hook up with unscrupulous lawyers, this could very well happen.” The doctor also said “there are physicians who become professional testifiers, who get their entire salaries from it,” and that those who typically do so are “usually very inadequate physicians.”

Asbestos claims have for decades served as cash cows for trial lawyers, thus far leading to $54 billion in settlements or awards. That’s led to the bankrupting of an estimated 80 companies and loss of 60,000 jobs. But nearly 90 percent of the roughly 600,000 Americans who have made claims are free of asbestos-related tumors, according to a Rand Corporation study.

We’re not suggesting the Johns Hopkins study should be interpreted as invalidating all asbestos-related claims. But as Congress weighs legislation aimed at capping those claims at $130 billion, it might also be a good time to launch an investigation into how trial lawyers use paid “experts” to manipulate juries.

Legislation should be brought forward that not only discourages frivolous lawsuits, but punishes the practitioners of legal and medical malpractice in the courtroom.