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Litigation Tactics
or Dirty Tricks?
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Former U.S.
Attorney General Thornburgh (right) explains:
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 “The
plaintiffs’ lawyers . . . had turned America’s tort
system into a business. The formula was easy: Publicly
threaten a lawsuit to put downward pressure on a
company’s stock price, then use the legal system to
coerce the beleaguered corporation into a large
settlement. The pattern brought a windfall, and
unburdened by lengthy court battles, the plaintiffs’
attorneys could execute a quick turnaround ... The game
became so established that the Association of Trial
Lawyers of America now offers courses in how to sue
particular companies.”
(KRC:
Hantler, "Seven Myths", p. 23, as quoting Dick
Thornburgh, "Just Say No to Tort Blackmail", Wall Street
Journal, Jan. 21, 2002, p. A12)
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Following their
success in the tobacco litigation, plaintiffs’ counsel began
targeting whole industries: Dickie Scruggs, chief architect
of the tobacco settlement, lead the charge against the
healthcare industry filing suit against one managed care
company causing it to lose $12 billion of shareholder value
in a single day. Scruggs told the analysts that he would run
the companies out of business unless they met his demands.
Despite his threats, he denied complaints from his targets
that his tactics amounted to legal extortion.
(KRC:
Olson, The Rule of Lawyers, p. 81 and 82)
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“Increasingly,
mass tort litigation was following a fully entrepreneurial
model: Big law firms would identify an industry they wanted
to sue, and then find and sign up the right clients to do
so….To find likely cases, some lawyers comb through
mass-market commercial agreements in search of slipups in
the fine print, often highly technical. Others piggyback on
government enforcement actions.”
(KRC:
Olson, The Rule of Lawyers, p. 85 and 86)
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Fear of
runaway-size verdicts is one reason even a long-shot suit is
apt to be bought off with a settlement if a judge has
consented to certify it as a class action. (Scruggs, for
one, has boasted that his favored strategy to force a
settlement is to ‘[r]aise the stakes so high that neither
side can afford to lose.’”
(KRC:
Olson, The Rule of Lawyers, p. 87)
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Playing Fast and Loose
With "Facts"
From
www.TrialLawyersInc.com,
"Lawsuit Industry Updates" email transmitted August
1, 2005
Several
years ago, the plaintiffs bar began to file
thousands of lawsuits on behalf of plaintiffs who
were allegedly suffering from silicosis, a lung
disease brought about by exposure to silica, a
substance touted by the plaintiffs bar as the “new
asbestos”. After a radiologist, who had been
retained and paid by the trial bar, acknowledged
that he should not have signed his name to thousands
of silicosis diagnoses, Texas District Court Judge
Janis Jack ordered hearings to determine whether
false diagnoses had been used in the mass silicosis
case before her. The findings were startling:
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A
Texas doctor admitted "he diagnosed more than
800 patients during a 72-hour period ...
spend[ing] no more than a few minutes reviewing
X-rays and writing a report for each patient."
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A
Mississippi doctor revealed his equipment -
owned by a Century 21 real estate agent - and
his office - a van in a Sizzler restaurant
parking lot.
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Another
doctor admitted he never interviewed, examined,
or checked the work records of some 2,700
claimants - people who received diagnoses
letters stamped with his signature. Oh, and many
of them were people the same doctor had earlier
diagnosed with asbestosis.
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The
head of the screening company that "diagnosed"
6,500 plaintiffs was a junior college dropout
that taught himself how to run an X-ray machine
and take medical histories.
Doctors
were withdrawing their diagnoses or denying that the
letters with signatures on them were theirs. A
physician who helped develop the international
standards for diagnosing silicosis said the
diagnoses were “stunning and not scientifically
plausible”.
An angry
Judge Jack said she saw “great red flags of fraud”
and scheduled a sanctions hearing where she took the
lawyers to task. Calling all of the evidence
inherently unreliable, she said "It is apparent that
truth and justice had very little to do with these
diagnoses. [T]hey were manufactured for money. [T]he
clear motivation... was to inflate the number of
plaintiffs and overwhelm the defendants and the
judicial system. This is apparently done in hopes of
extracting mass nuisance-value settlements..."
Although
the judge’s sanctions were limited because she
lacked jurisdiction over most of the claims, a
federal grand jury was convened last month to
investigate some of the most prominent attorneys
involved in the silicosis litigation.
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