We have no creativity.

Professor Lester Brickman, of Cardozo School of Law, posted on SSRN his article about mass torts. Brickman asks a provocative question in his title: “The Use of Litigation Screenings in Mass Torts: A Formula for Fraud?”

If we were answering that question, we would have just written: “Yes.”

But that wouldn’t have been long enough to publish in a scholarly journal.

That’s probably why Brickman’s in academia and we’re toiling away in private practice.

Anyway, Brickman includes these sentences in his abstract at SSRN:

“By my count, approximately 1,500,000 potential litigants have been screened in the asbestos, silica, fen-phen (diet drugs), silicone breast implant, and welding fume litigations. Litigation doctors found that approximately 1,000,000 of those screened had the requisite condition that could qualify for compensation, such as asbestosis, silicosis, moderate mitral or mild aortic value regurgitation or a neurological disorder. I further estimate that lawyers have spent at least $500 million and as much as $1 billion to conduct these litigation screenings, paying litigation doctors and screening companies well in excess of $250 million, and obtaining contingency fees well in excess of $13 billion.

On the basis of the evidence I review in this article, I conclude that approximately 900,000 of the 1,000,000 claims generated were based on ‘diagnoses’ of the type that U.S. District Court Judge Janis Jack, in the silica MDL, found were ‘manufactured for money.'”

Okay, you got us. We may not be creative, but we understand when we’re duty-bound to flip through an academic piece and post a quick summary on the blog.

So we did. And we really liked what we read.

Brickman accurately notes that there’s a ton of literature about the use of junk science to try to prove “general causation” in mass torts. But Brickman is among the first to examine the use of a different type of junk science — litigation screenings — to try to prove “specific causation” in mass torts.

To make his point, Brickman trots through in great detail, and with all the usual footnotes, the mass tort screenings that plaintiffs’ counsel undertook in the asbestos, silica, silicone breast implants, fen-phen, and welding rod cases. He reviews the evidence that those litigation screenings “have been designed to and did generate specious if not fraudulent claims.” Article at 11. Brickman then deplores the fact that “those who profit from this process, most especially the doctors who have been paid hundreds of millions of dollars for their medical reports and services,” have faced neither civil nor criminal sanctions. Id.

It’s awfully hard for practicing lawyers to plow through 177 pages of scholarship as recreational reading. But this wouldn’t necessarily be recreational. If you’re ever trying to show a court that litigation screenings are prone to generate inaccurate diagnoses, Brickman’s article would be a great place to start your research. Brickman has the goods on the screenings that took place in each of the mass torts that he puts in his sights.

Brickman also proposes some solutions to the problems posed by mass litigation screenings. Some of his proposed solutions could be implemented unilaterally by judges (such as allowing “defendants to discover all of the medical reports prepared by a litigation doctor for other screened claimants if that doctor prepared a medical report for a litigant before the court,” whether or not the doctor is an expert). Id. at 163. Other of his proposed solutions — such as expanding the rights of defendants to remove individual cases in mass torts, which would permit aggregation (and analysis) of all of a screening doctor’s cases before a single judge — would require new laws to be passed, which is a dicier proposition.

But we’ll take the article for what it does achieve, whether or not it prompts reform. This is a great resource for lawyers trying to expose the evil underbelly of the litigation screening process.