The Mass Torts Blog, another defense lawyer blog brought to you from our friends at Dechert, posts on Labor Day about medical screening in mass tort cases. The allegations are basically that plaintiffs’ product liability lawyers are committing fraud when screening clients. Read the post for yourself and tell me that is not a fair summary of what the post alleges.
It would be nice to have a more moderated voice coming from Dechert, a fantastic international law firm, as opposed to the the defense lawyer version of Ann Coulter. But if what the Mass Tort Blog is saying is correct – that a large number of plaintiffs who accepted settlements in the asbestos, silica, fen-phen, silicone breast implant, and welding fume litigations were fradulent, manufactured claims – where were the defense lawyers to protect the defendants from this fraud?
Obviously, it was easy to make this determination, as Cardozo Law School Professor Lester Brickman had done in his study, which was relied upon in the Mass Torts Blog post. Were defense medical examinations a condition of settlement? Did they just blindly trust the plaintiffs’ lawyers? If this really is the case, shouldn’t we infer that all of the defense lawyers who defended these cases committed legal malpractice?
Before a posse of drug and medical device companies form to file a lawsuit against all of these defense lawyers for legal malpractice (including, ironically, Dechert) for failure to properly defend their clients, let me save them: this contention is nonsense. The reality is that the defense lawyers sized up these cases, reviewed medical records, and made the appropriate decisions as to who should be included or excluded. The notion – that defense lawyers allow systems to exist where they just have to trust, without safeguard, the plaintiffs’ lawyers and the doctors they hire to evaluate cases – lacks any foundation, notwithstanding Professor Brickman’s 177 page polemic.
By the way, I wonder what Professor Brinkman’s null hypothesis was coming into this article. Does his CV give it away at all? Jury consultant David Ball suggests not presenting a case with the language of an advocate in an opening statement until you have earned the confidence of jury. On page 14 of his 177 page paper, Professor Brinkman says, “Thus, screenings coined money as surely as if the lawyers had access to the government printing press.”
I don’t think Professor Brinkman has read David Ball.