NEW YORK (Legal Newsline) - Lung cancer cases are on the rise in asbestos litigation, and one law professor says the incentive for plaintiffs attorneys is to obtain money from bankruptcy trusts set up to pay out claimants.
Lester Brickman, professor of law at the Benjamin N. Cardozo School of Law at Yeshiva University, said the 60-plus asbestos trusts, operating a system of more than $36 billion, will pay claimants who can get a doctor to prove they have asbestos damage to the linings of the lungs even if they had or have a smoking habit.
"What's happened is the trusts are paying a claimant, a smoker, who can show occupational exposure to asbestos and can get a doctor to say the lungs indicate occupational exposure," Brickman said.
Brickman said claimants don't just apply to one trust. They get money from 15 to 20 trusts, and their attorneys make money in the process.
"They can get as much as $100,000 dollars in total from these trusts," Brickman said. "Even if you don't bring any lawsuits, you can get $100,000 for an unimpaired asbestos exposure," he said.
With asbestos trusts paying out, claimants can also file a tort claim. Those lung cancer asbestos cases could always result in settlements, Brickman pointed out.
"The number of lung cancer filings in the tort system based upon asbestos exposure has no relationship to medical science," Brickman said. "It's entirely a function of the economic incentive for asbestos lawyers to file suits.
"So the trust payments are providing the seed money for the lawyers to gain recruitments."
Brickman said lung cancer asbestos claims originated as part of litigation screenings during the 1980s and 1990s. Lawyers would sponsor these screenings by sending fully equipped medical vans to factory parking lots where unions would allow members to receive free x-ray screenings, he says.
He added that most of the readings attributing lung damage to asbestos from those x-rays were bogus, though they generated about 500,000 claims of non-malignant disease. Somewhere between four and 12 percent of the screenings alleging asbestos-related injuries were true, he says.
"Because the x-rays could show lung cancer," Brickman said, "that generated lung cancer cases."
Those lung cancer cases dropped after the screenings ended in the early 2000s.
However, Brickman said lung cancer lawsuits have increased significantly recently.
One such lawsuit is Carolyn McCarthy's. A nine-term Congresswoman, McCarthy took a leave of absence from Congress while she fights her lung cancer.
In her asbestos complaint, filed in October, she claims she was exposed to asbestos fibers through her father's and brother's work clothing when she was a child, also known as third-party exposure. She also claims to have visited the two at their various work sites over the years. Both worked as boiler makers.
Third-party asbestos occurs after workers exposed to asbestos unwittingly wear their work clothing home and embed the toxic fibers into their cars. Their families are then exposed to the fibers through their clothing and their cars.
While this type of exposure has been proven before in previous cases, Brickman said the basis of McCarthy's claim is that she has found a doctor to determine that she has medical evidence to asbestos exposure through scarring in the lungs.
Brickman says that while it is possible to develop lung cancer from asbestos, approximately 90 percent of lung cancer is caused by smoking.
McCarthy, represented by the Weitz and Luxenburg law firm, filed her lawsuit against roughly 75 defendants.
Of those defendants, 25 have answered the lawsuit.
The defendants allege that McCarthy may have "significant" pre-existing conditions factoring into her illness, specifically McCarthy's lung cancer is the result of "other substances, products, medications, and drugs, including by not limited to any tobacco products."
The defendants also argued that McCarthy's injuries, if any, should be exclusively remedied with the Workers' Compensation laws in New York, and the lawsuit should not continue without involving the various bankruptcy trusts.
They claim McCarthy did not work with the asbestos-containing products and was therefore not exposed to the hazards to incur damages.
"Plaintiff never purchased, directly or indirectly, any asbestos-containing product or materials from Viking Pump, nor did Plaintiff ever receive or rely upon any representation allegedly made by Viking Pump.," one answer says.
Defendant Edison Company of New York, Inc. moved for summary judgment.
Justice Sherry Klein Heitler ordered on Nov. 12 that all claims and cross-claims against Edison be dismissed with prejudice.
Requests for interviews or statements from Weitz & Luxenburg went unanswered.
From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com
Professor says asbestos cases from smokers, like N.Y. congresswoman, on the rise
