The asbestos litigation machine hit a major obstacle last week thanks to a ruling in Michigan by Wayne County Circuit Judge Robert Colombo. Judge Colombo threw out medical evidence and expert testimony from Dr. Michael Kelly, a Lansing internist and occupational medicine doctor who has diagnosed thousands of patients with asbestos-related ailments.

Acting on a motion by the company, Sure Seal, Colombo’s ruling affects puts into doubt 2,131 asbestos lawsuits on his docket. As reported the Detroit Free Press, it could also have national ramifications, according to asbestos expert Lester Brickman, a law professor at the Benjamin N. Cardozo Law School at Yeshiva University in New York: “It is the first time in the history of the biggest litigation ever that a judge has excluded the diagnoses of a physician on the basis that they did not meet the standards of reliability set by the U.S. Supreme Court for expert testimony.” An earlier Detroit Free Press article covers the arguments, “Asbestos diagnoses defended.”

The Wall Street Journal editorialists also examined the Wayne County litigation involving the asbestos-diagnosing Dr. in a November 10 editorial, “Michigan Malpractice”:

Of the 91 asbestos cases Judge Colombo was set to oversee this month, Dr. Kelly provided a diagnosis in 80. In addition to giving the judge a broad picture of Dr. Kelly’s work, defense attorneys also retained two respected pulmonologists to review specific cases. Jack Parker, who spent years at the Centers for Disease Control, provided the court with a blind study in which independent X-ray readers found an abnormality in only one of 68 (1.5%) X-rays that Dr. Kelly read. Dr. Kelly had found abnormalities in 88% of those X-rays.Judge Colombo, who has been the state’s asbestos judge since the early 1990s, initially balked at diving into this medical evidence — suggesting he preferred a quick and easy settlement. But in the face of evidence that up to 90% of the cases in front of him were fraudulent, he ultimately relented and last week agreed to a hearing on Dr. Kelly. At which point something astonishing happened. Within 24-hours of the judge’s decision, the plaintiffs attorneys voluntarily pulled all but one of the suits. They clearly have no interest in subjecting their “doctor,” and his methods, to judicial scrutiny.

The asbestos litigation machine has long depended on things like mass diagnoses and a few favored doctors to stack up absurd legal claims.

Sometimes, the machine even invents them. The American Justice Partnership’s latest issue of “Legal Shakedowns and Scandals” examines the case of Dr. Oscar Frye, who diagnosed a West Virginia employee of CSX with asbestosis.

The phantom Dr. Frye seems to be the concoction of Chambers, who submitted the fraudulent medical report to his lawyers.5 The attorneys failed to verify the authenticity of the report before filing suit against CSX.

The personal injury firm that filed the Chambers case, Robert Peirce & Associates, reacted to the allegations by claiming no knowledge of the fraudulent acts and by withdrawing from its representation of Chambers.

Highly recommended on this topic: The Manhattan Institute’s “Trial Lawyers Inc. Asbestos” report, “A Report on the Asbestos Litigation Industry, 2008.”

Yes, the asbestos litigation machine has bankrupted scores of companies. But it’s important to remember that all the scams, false diagnoses, billing excesses and plain fraud do a profound disservice to those who have suffered from illness and even death from real cases of asbestos exposure.

Walter Olson of the Manhattan Institute has taken note in the past of the work of Cardozo law professor Lester Brickman on mass screenings used by trial lawyers to “identify” victims of asbestosis, silicosis and similar ailments. At Point of Law today, Olson directs us to a new paper from Brickman, “The Use of Litigation Screenings in Mass Torts: A Formula for Fraud?” From the abstract:

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.”

And what do you know? The Google ads associated with the paper kick up items like:

Malpractice Lawyer Expert

Mesothelioma Lawsuits

Mesothelioma Center

We’ve got a post up over at Point of Law.com on a U.S. Supreme Court decision that drew little national attention this week, its denial of certiorari to W.R. Grace appealing the criminal prosecution of the company and six of its executives in an asbestos case. (The court’s docket in W.R. Grace v. United States is here.) The NAM had filed an amicus brief in the case with the American Chemistry Council and National Association of Criminal Defense Lawyers. Our case summary is here, and the amicus brief is here.

Which reminds us of this excellent paper at the Washington Legal Foundation, “Federal Erosion of Business Civil Liberties,” and the WLF’s related project, “Criminalization of Free Enterprise - Business Civil Liberties Program.”