An Associated Press journalist reported on an appeal from an interesting judgment, which few other journalists have followed.[1] Last week, Matthew Brown filed a report on an appeal before the Ninth Circuit challenging a judgment against a health clinic that had diagnosed supposed asbestos-related diseases among residents of Libby, Montana. The BNSF Railway (Burlington Northern Santa Fe Corporation) challenged the validity of more than 2,000 of the clinic’s diagnoses, in a qui tam action. A federal court jury in Missoula found that the Railway had carried its burden of proving that 337 of the cases were indeed false claims. The clinic’s fraud had made its patients wrongly entitled to various federally funded benefit programs. The Railway’s tenuous connection to the underlying claims was that its railroad serviced the vermiculite mine outside of town, and its trains passed through town.
According to Brown, Plaintiff BNSF claimed that the clinic had made its diagnoses of asbestos-related disease solely upon chest radiographs. The clinic apparently defended by confession and avoidance. Yes, it had made diagnoses solely upon radiographs, but its physicians claimed that they had done so in good faith, based upon guidance of federal officials. This defense seems rather dodgy given that asbestosis does not manifest as a unique radiographic pattern.
The False Claims Act case resulted in a verdict of $5.8 million in penalties and damages, with one quarter of that amount going to BNSF as the relator. The federal government had declined to prosecute the case under the Act. After judgment was entered on the verdict, CART filed for bankruptcy, but its petition was dismissed at the request of the federal government. Lawyers for the government argued that the U.S. Department of Health and Human Services was the principal funder of the clinic, as well as its primary creditor. The costs of the bankruptcy would simply fall on taxpayers, who along with the Libby-area residents, were the victims of CART’s fraud. The defendant clinic has appealed on grounds of erroneous jury instructions, according to its appellate lawyer, Tim Bechtold.
The AP story has a sub-headline claiming “[i]ndependent, fact-based, nonpartisan reporting.” Well, maybe not.
1. For some reason, Brown was coy about identifying the fraudfeasor medical clinic. The defendant in the case was the Center for Asbestos-Related Disease, Inc. (CART). Similarly, he did not identify any of the medical personnel who submitted false claims. CART had a physical presence in Libby, Montana, where W.R. Grace mined vermiculite for many years. The group has apparently filed for bankruptcy, but its website is still active. CART’s website’s landing page describes the Center as providing “advocacy, screening, care, and resources.” Notably, “advocacy” was listed first, which might not be exactly what physicians should prioritize.
2. Mr. Brown states that “[e]xposure to even a minuscule amount of asbestos can cause lung problems, according to scientists.” As Peter Woit put it, this characterization is not even wrong. Asbestos is a commercial term for six different minerals, but only in their fibrous habit. The potency for causing some diseases in humans varies by orders of magnitude among the mineral varieties. Since only god can make asbestos, and because the different varieties of asbestos are omnipresent in the natural environment, and because humans have natural defenses to inhaled minerals at levels even above “minuscule amounts,” Brown’s quote is nothing more than lawsuit industry propaganda. His statement about minuscule exposures is noteworthy for not having any identified source, although Brown used the exact phrase in an earlier article on the jury verdict.[2]
3. Mr. Brown does not provide the caption of the case he is describing, which seems like poor journalistic practice. For readers interested in the never-ending sage of fraudulent asbestos claims, the case was BNSF Railway v. Center for Asbestos Related Disease, Inc., No. CV 19-40-M-DLC (D. Mont. July 18, 2023). Some other proceedings of the case in district court are also available online. The oral argument is quite revealing in showcasing the parties’ stipulation that asbestosis cannot be diagnosed by B-readers and their interpretation of chest radiographs. The shoddy evidentiary foundations of many of the claims supported by CART are reminiscent of the fraud in In re Silica Products Liability Litigation, 398 F. Supp. 2d 563 (S.D. Tex. 2005).
4. Although Mr. Brown was reporting on the upcoming oral argument in the Ninth Circuit, he did not link to the video of that argument, which is available at the Circuit’s website. The Ninth Circuit’s docket number is 23-35507, and the case was heard on August 21, last week, by a panel of Judges Christen, Nguyen, and Hurwitz.
5. Mr. Brown provided no discussion or analysis whether CART’s defense was coherent or valid. The interested audience members can listen to the Ninth Circuit oral argument, and judge for themselves. I for one found the documented diagnostic practices “shocking and outrageous,” as Judge Clark Brown (of Boston Legal fame) used to say. By virtue of a federal statute, Libby area residents who have been diagnosed with an asbestos-related disease are eligible for various services, including Medicare, housekeeping, travel to medical appointments and disability benefits, at taxpayer expense.
[1] Matthew Brown, “Montana asbestos clinic seeks to reverse $6M in fines, penalties over false claims,” Assoc. Press News (Aug 21, 2024).
[2] Matthew Brown, “Montana health clinic must pay nearly $6 million over false asbestos claims, judge rules,” P.B.S. Newshour (July 23, 2023).
