There are several common types of fraud in asbestos claims including injury exaggeration, injury fabrication, obstacle avoidance, wholly manufactured claims, and over-subscription.
Video Types of fraud in asbestos claims
Definitions
Injury exaggeration
Injury exaggeration is often referred to as "padding" a claim or, more rarely, "medical build-up." It consists of filing an otherwise valid claim that exaggerates the seriousness, length of time, and or costs associated with an injury. Researchers have difficulty studying injury exaggeration as it is very difficult to quantify it in a reliable way. Yet, researchers have still been able to determine that injury exaggeration imposes substantial costs.
Injury fabrication
injury fabrication is the filing of a claim for a pre-existing or non-existent injury after suffering from a bona fide accident or exposure to asbestos due to the fault of the defendant.
Obstacle avoidance
Obstacle avoiders are those who might have a real injury suffered due to an at-fault defendant but due to technical obstacles in the law falsify the nature of their injuries or manufacture legal documents in order to circumvent these barriers. Lying about the timing of the onset of symptoms is a very common form of obstacle avoidance fraud used to defeat statutes of limitations. Researchers have been unable to generate accurate estimates on the mount of obstacle avoidance fraud in asbestos claims or any other subject area.
Wholly manufactured claims
A wholly manufactured claim is one that is for compensation that the plaintiff or attorney knows there is no entitlement to. Examples include making an asbestos bankruptcy trust claim for asbestosis when the claimant has no injury and was never exposed to asbestos. Injuring yourself intentionally and then filing a false claim is another very common form of wholly manufactured claim. These types of claims are considered quite rare.
Oversubscription
Oversubscription is almost always related to mass torts and in the asbestos context, bankruptcy trusts. Oversubscription can come in the form of misdiagnosis, defendant manipulation, or double dipping. Defendant manipulation is the filing of claims against defendants that are not in reality the tortfeasor. Double dipping is the practice of filing claims against multiple tortfeasors without informing them of all the claims pending in order to get the maximum possible payout from each source. It is very common in asbestos litigation for plaintiffs to commit this kind of fraud by suing solvent companies while making no statements about possible exposure to asbestos exposure from non-solvent, collecting a judgement from that suit, and then filing confidential claims with the bankruptcy trusts covering products made by insolvent tortfeasors.
Maps Types of fraud in asbestos claims
Examples
Silica
Double dipping related to silica, a form of oversubscription, has been a huge problem in asbestos claims. At least 6,000 claimants fraudulently sought funds from both silica and asbestos manufacturers at the same time. Silicosis and asbestosis are due to different sources of exposure, look entirely different on x-rays and scans, and are almost never found in the same individual.
Bankruptcy trusts
Plaintiffs attorneys routinely delay filing claims against asbestos bankruptcy trusts in order to facilitate lawsuits against solvent defendants. This is done because such claims would necessarily dilute the liability of solvent defendants. Plaintiffs attorneys also routinely delay production of claim forms until the very last moment possible in order to prevent defendants from gather counter evidence and develop affirmative defenses. In recognition of the prejudice this exposes defendants to courts often extend or reopen discovery when the failure to produce trust claims is exposed. In Edwards production of claim forms was delayed until two weeks before trial. In Warfield production was delayed until the night before the trial. In Stoeckler the defendants discovered that the plaintiff did not disclose trust claims only three days after the start of the trial.
It is often argued that the undisclosed claims are not material because they were only "deferral claims" filed to toll the statute of limitations against trusts for which no liability has yet been discovered. In Barnes & Crisafi the court determined that no such distinction could be made. Plaintiffs will also often say they don't know about claims filed by other law firms. In Stoeckler, the plaintiff's lawyer denied any knowledge of multiple past trust claims. In response to such arguments judges will often adopt mandatory disclosure obligations for bankruptcy trust claims.
Baron & Budd memo
According to Forbes, "The Terrell memo, considered by some to be a "cheat sheet," purportedly reveals how Baron & Budd attorneys coached up clients on how to identify asbestos products and exposures that they might not actually remember and might never have been exposed to in the first place."
The Baron & Budd memorandum entitled "Preparing for Your Deposition" provides a textbook perfect example of lawyers and plaintiffs engaging in oversubscription through defendant manipulation. The document started a fierce controversy after it was inadvertently given to a defense attorney. The memo urges clients to remember contact with asbestos from only solvent manufacturers.
The memo asked clients: "Do NOT mention product names that are not listed on your Work History Sheets. The defense attorneys will jump at a chance to blame your asbestos exposure on companies that were not sued in your case."; "You must be able to pronounce the product names correctly and know WHICH products are pipecovering, WHICH are insulating cements and WHICH are plastic cements, for instance. Many of the product names sound very similar to each other but they might be different products entirely! Have a family member quiz you until you know ALL the product names listed on your Work History Sheets by heart." "You may be asked how you are able to recall so many product names. The best answer is to say that you recall seeing the names on the containers or on the product itself. The more you thought about it, the more you remembered!"; "Keep in mind that these [defense] attorneys are very young and WERE NOT PRESENT at the jobsites you worked at. They have NO RECORDS to tell them what products were used on a particular job, even if they act like they do."
Garlock
Garlock provides another example of oversubscription through defendant manipulation. In the Garlock bankruptcy Judge Hodges found numerous instances of plaintiff counsel improperly withholding production of trust claims. Garlock was allowed to conduct discovery regarding fifteen plaintiffs represented by five different law firms; Garlock found failure to produce in each and every case. Plaintiffs produced 32 claims but failed to produce another 284 claims.
In January 2014, Garlock attorneys filed suit against four prominent asbsestos law firms for conspiracy, fraud and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO); only the first page of the complaints were filed publicly, with the remainder filed under seal to protect confidential information about previous asbestos lawsuits. Since then, several other mesothelioma cases have used this opinion to alter or beg reconsideration for discovery in civil tort action.
References
Source of the article : Wikipedia
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