Mass Fraud in Mass Tort Litigation?

By Lester Brickman
February 03, 2007
Last year, a U.S. District Court Judge, Janis Jack, described by National Public Radio as “a bridge-playing, whiskey drinking Clinton appointee who is a former nurse,” fired a shot that is still reverberating throughout the mass tort world. Judge Jack was presiding over 10,000 claims of injury from exposure to silica dusts—claims which had been removed from state court to federal court and then assembled into an multidistrict litigation (MDL) proceeding. The genesis of this MDL was a deliberate if not brilliant strategy undertaken by the defendants. Judge Jack issued a report documenting pervasive fraud in the production of medical evidence. This fraud was discovered when Judge Jack permitted defendant manufacturers to extensively question the doctors who had diagnosed the alleged injuries and ordered the production of extensive records. While this sounds like standard operating procedure, most judges would not have permitted the extensive discovery she allowed. Indeed, this massive fraud would never have come to public attention but for a courageous judge willing to, in effect, put the tort system on trial. Judge Jack’s report highlighted a glaring defect in our civil justice system: the use of fraudulent medical diagnoses and scientifi c testimony in mass tort litigation and the lack of any eff ective mechanism to punish the fraudsters and thereby deter future instances of fraud....