WSJ Article False Witness by Lester Brinkman

[Guest guest]

Prof Brinkman's quote from the WSJ article, False Witness:

1. " according to the American College of Occupational and Environmental

Medicine, current scientific evidence does not support the proposition that

molds or the mycotoxins produced by molds, whether inhaled in home, school, or

office environments, adversely affect human health. "

2. Direct quotes from ACOEM mold statement:

" Levels of exposure in the indoor environment, dose-response data in

animals, and dose-rate considerations suggest that delivery by the inhalation

route

of a toxic dose of mycotoxins in the indoor environment is highly unlikely

at best, even for the hypothetically most vulnerable subpopulations. "

" Current scientific evidence does not support the proposition that human

health has been adversely affected by inhaled mycotoxins in home, school, or

office environments. "

3. The WSJ article, November 29, 2006:

False Witness

By LESTER BRICKMAN

December 2, 2006; Page A9

Last year, in a shot heard round the mass tort world, U.S. District Court

Judge Janis Jack, presiding over 10,000 claims of silicosis -- a lung disease

caused by exposure to silica (sand) dusts, issued a report documenting

widespread, fraudulent medical diagnoses. The fraud was discovered when Judge

Jack

permitted the defendants to extensively question the doctors who had diagnosed

the alleged injuries. While this sounds like standard operating procedure,

most judges would not have permitted such discovery. Indeed, the fraud would

never have come to light but for a courageous judge willing to, in effect,

put the tort system on trial.

Judge Jack largely corroborated my own published findings of fraudulent

production of medical evidence in asbestos litigation.......

Substantially the same fraudulent practices have been used in other mass

tort litigations. " Fen-phen " is one example. Several law firms and about 10

echocardiogram companies which started screening businesses spent millions of

dollars to set up makeshift " echo mills " in hotel rooms and elsewhere to

administer echocardiograms to users of these diet drugs. Approximately a few

thousand users suffered heart valve injuries, but tens of thousands responded

to

advertisements to find out whether they qualified for compensation........

Silicone is another example. Screenings by lawyers in silicone breast

implant litigation ginned up tens of thousands of claims of connective tissue

and

rheumatoid diseases that were supported by the specious diagnoses of a few

dozen doctors who were mostly referred by the lawyers. Cursory examinations --

sometimes in lawyers' offices doubling as examining rooms -- were done on an

assembly line basis by cardiologists charging as much as $6,000 per

examination and diagnosing more than 90% of the women with symptoms that would

make

them eligible for compensation.

However, the National Academy of Sciences' Institute of Medicine concluded

that " there is no evidence that silicone breast implants contribute to an

increase in autoimmune (connective tissue) diseases . . . and [there is] no

link

between implants and connective disease or rheumatic conditions. "

Nonetheless, approximately $4 billion to $5 billion has been paid by the

manufacturers

for connective tissue and autoimmune disease claims.

Mold litigation is still another example of a mass tort infected by

fraudulent medical and scientific evidence. Mold is a ubiquitous fungus to

which

everyone is exposed; according to the American College of Occupational and

Environmental Medicine, current scientific evidence does not support the

proposition that molds or the mycotoxins produced by molds, whether inhaled in

home,

school, or office environments, adversely affect human health. The scientific

evidence notwithstanding, mold litigation, a multibillion dollar industry,

proceeds because a small number of experts paid fees of as much as $10,000 a

day have regularly testified that mold causes a terrifying array of diseases

from lung cancer to cirrhosis of the liver.

While there are ongoing federal investigations of silica and asbestos

litigation in New York and of fen-phen litigation in Philadelphia, federal

prosecutors have not indicted the doctors and scientific experts. To prove

fraud in

those cases will require the testimony of other doctors and scientific

experts; and it may be that prosecutors are concerned that " reasonable doubt "

is

virtually inherent in a process that relies on a " battle of the experts " for

evidence of fraud. Meanwhile, doctors and scientific experts are obviously well

aware of their effective immunity from prosecution. They do not need a " get

out of jail free " card because they already have a " never go to jail " card.

Part of the solution is for judges to approach mass tort litigation with a

healthy skepticism when mass claims have been generated by the type of

litigation screenings used in asbestos, silica, fen-phen and breast implant

litigations. Integral to these litigation screenings are mass-produced medical

services which are manufactured for money -- practices which flourish when

courts

insulate them from the extensive discovery presided over by Judge Jack.

But more is necessary to curb fraud. State and federal legislation is needed

to empower prosecutors to pierce doctors' and scientific experts' effective

immunity from criminal prosecution. Drafting legislation to distinguish

between legitimately disputed diagnoses or theories of causation and

manufacturing

medical or scientific evidence for money is a daunting task. But it is one

that we must undertake to preserve the integrity of the civil justice system.

Mr. Brickman is professor of law at the Cardozo School of Law of Yeshiva

University.

4. From the UCSF Tobacco Legacy Library regarding Prof Brichman, RJReynolds

Documents

_http://legacy.library.ucsf.edu/cgi/getdoc?tid=mcl46a00 & fmt=pdf & ref=results_

(http://legacy.library.ucsf.edu/cgi/getdoc?tid=mcl46a00 & fmt=pdf & ref=results)

" FYI - The Manhattan Institute had a call from 60 Minutes.....the producer

might want to call an academic, and he provided Lester Brichman's name. "

" In response to Dan's question I said " no " neither we nor the litigation

project (which technically doesn't exist!) should not reach out to 60 Minutes

or

we'd wind up in the story or kill it. I'm not even going to tell the cos.

for fear PM [sic ] will try to do something " clever " .

" Former Helms staffer will be joining the Institute in July as sr. vp of

federal grant

From the Manhattan Institute website:

_http://www.cardozo.yu.edu/life/summer2005/pdf/faculty_briefs.pdf_

(http://www.cardozo.yu.edu/life/summer2005/pdf/faculty_briefs.pdf)

" President Bush with Prof. Lester Brickman (at left) for “A Conversation on

Asbestos Litigation Reform.â€

" Lester Brickman received the 2004 Legal Reform Research Award from the US

Chamber of Commerce Institute for Legal Reform. "

From the PointofLaw website:

PointofLaw.com

is a website sponsored by the Center for Legal Policy at the _Manhattan

Institute_ (http://www.manhattan-institute.org/) and _Liability Project_

(http://www.aei.org/research/projectID.23/project.asp) at the American

Enterprise

Institute. Focusing on America's civil justice system, the site includes

original discussions featuring some of the nation's top legal scholars, an

ongoing

forum on liability issues, a bibliography of important books and articles,

and links to topical legal news stories. Contributors:Lester Brickman is a

professor of law at the N. Cardozo School of Law at Yeshiva

University. His areas of expertise include administrative alternatives to mass

tort

litigation, asbestos litigation, and contingency fee reform. Professor Brickman

has written extensively on these and other topics, he has testified at

congressional hearings, and he is widely quoted in the press.

(http://www.otispregnancy.org/pdf/mold.pdf)

The lay translation of the ACOEM Mold Statement was shared by the Manhattan

Institute with the US Chamber and affiliates in July of 2003. It ends with

the sentence, “Thus the notion that ‘toxic mold’ is an insidious secret

‘

killer’ as so many media reports and trial lawyers would claim is ‘Junk

Science’

unsupported by actual scientific study.â€

Just one example of thousands regarding ill health and mold. It's a CDC doc.

_www.otispregnancy.org/pdf/mold.pdf_

(http://www.otispregnancy.org/pdf/mold.pdf)

Sharon Kramer