The 2004 Asbestos Statement is being used (or abused) to support plaintiff claims

Lawrence Martin, M.D., FACP, FCCP

For background information see Asbestos Diagnosis: ATS Official Statement 2004 -- a Flawed & Biased Statement

It was predictable. The 2004 ATS Statement on diagnosis of nonmalignant asbestos disease is being used (or abused) by plaintiff attorneys to support questionable asbestos claims. As I warned in the above web site, the ATS article is crafted with many unsupported, undocumented and simply incorrect 'one-liners' -- ripe for attorneys to quote in support of medically invalid claims. And for any experts who might wish to dispute the scientific merit of these one-liners, plaintiff attorneys are ready to bludgeon them with the heavy imprimatur of "ATS".

Below is my own encounter with this tactic, from a video deposition that took place May 2005. The claimant in this case is 74 years old and has a history of severe congestive heart failure and mitral valve surgery in the mid 1990s, and also a history of heavy smoking. His attorney-generated asbestosis claim was based on a single chest x-ray read as "1/0" by a screening B-reader, who never saw the patient and had no medical history. Subsequently, a chest CT scan showed no asbestosis, and two B-readers for the defense read the chest x-ray as showing no asbestosis. Prior to filing the civil lawsuit, the claim was denied by the Ohio Bureau of Workers's Compensation, whose independent physician wrote: "the medical evidence does not support...diagnosis of asbestosis."

I had examined the claimant and reviewed all the records, and likewise concluded there was no evidence to support an asbestosis diagnosis. In this passage the plaintiff attorney is cross examining me after my testimony for the defense. (Minor corrections or clarifications are in brackets).

Q.      Correct me if I'm wrong. The American Thoracic Society is a preeminent organization that deals with multiple issues involving diseases involving the chest, correct?

A.     Yes.

Q.     And, Doctor, [the defense attorney] asked you if you’re up to date on your research and reading. Do you remember that?

A.     Yes.

Q.     So I have to imagine and infer that you’re familiar with the document that was published by the American Thoracic Society entitled “Diagnosis and Initial Management of Nonmalignant Diseases Related to Asbestos”?

A.     Yes

Q.     Okay. And Doctor, isn’t it true that that paper says that a 1/0 finding is a definitive finding of abnormalities consistent with asbestosis?

A.     No, it’s not true.

Q.     Okay. That – you don’t believe that?

A.     No. No, I don’t believe it’s true that it says that.

Q.     Okay. Do you –- are you aware that the B-reading folks, NIOSH, consider a 1/0 a finding consistent with asbestosis?

A.     No, you’re confused. The B-reading folks and the American Journal of Respiratory Disease article that you have in your hand states very clearly that you cannot diagnose asbestosis based on a single chest x-ray.

Q.     You and I agree on that. But, Doctor, I want you to assume, an occupational exposure to asbestos and an adequate latency period and also a finding of 1/0, assuming those facts, that would be a findings consistent with asbestosis, correct?

A.     That would be consistent with many different diseases, of which asbestosis is one of them.

Q.     Okay. But you and I can agree that that’s an abnormal chest x-ray?

A.     That would be consistent with many different diseases, of which asbestosis is one of them.

Q.     Okay. You mentioned that a 1/0 can be consistent with smoking, correct?

A.     Yes.

Q.     Okay. Doctor, are you aware – again, I’ll quote back to that ATS article that was published in 2004 entitled Diagnosis and Initial Management of Nonmalignant Diseases Related to Asbestos. You read that one, right?

A.     Yes.

Q.     Are you aware of the statement that shows that – that states “Some studies suggest that smokers without dust exposure may show occasional irregular radiographical opacities on chest film; but if so, the profusion is rarely as high as 1/0. Smoking alone, therefore, does not result in a chest film with the characteristics of asbestosis.” Are you aware of that statement, first of all?

A.     Yes.

Q.     And do you disagree with that statement?

A.     It’s incorrect.

Q.     Okay. You disagree with that statement?

A.     No. It’s incorrect.

Q.     Okay. Do you dispute that that statement was made by the American Thoracic Society?

A.     The statement is incorrect as it stands.

Q.     Okay.

A.     Provably so. And I can quote the same journal to show you it’s incorrect.

Q.     That’s your opinion, Doctor.

A.      No. It’s not an opinion.

Q.     Well, let me hand it to you. Right there.

A.     But you’ve given me – not giving me the whole information.

Q.     Well -–

A.     You’re not giving me the letters that were written in response to this article that appeared the following month. [Actually, the letters appeared 7 months after the ATS statement.]

Q.     Okay.

A.     Do you have those?

Q.     No, I just have what was published in the –

A.     Four letters were published in the medical journal, this journal, the following month, which dispute that statement and quotes specific references showing this statement is not correct.

Q.     Well, what you’re saying is, is that some doctors, including yourself, have written letters saying that you disagree with what that organization says, correct?

A.      This organization published this article and did not quote the entire medical literature relevant to this problem. There are four letters published in the journal the following month disputing this and other statements of this article which must be read to put this in the context. Any you have chosen to ignore those letters.

Q.     Doctor, isn’t that the full statement of the board of directors of the American Thoracic Society, yes or no?

A.     This is a statement which has been disputed with subsequent letters, and this journal – that this journal published disputing this statement in regards to the item that you must mentioned.

Q.     Right. Doctor, I want to be clear. I want the jury to understand. This article is the full article that was published by the board of directors of the American Thoracic Society, correct?

A.      It was published by a committee of the American Thoracic Society, that's correct.

Q.      Thank you.

Comment: In a scientific dispute, ATS is the 800 lb. gorilla. The chance of a single physician prevailing against ATS in a courtroom, before a lay jury, is between slim and none. The plaintiff's attorney knows this, and couldn't care less that the ATS one-liners are disputed, that the ATS article is scientifically flawed and authored by a wholly biased committee, or even that AJRCCM published four strong rebuttal letters. Before the jury, using selective quotes, a plaintiff attorney can make it seem that ATS has all but diagnosed his claimant with asbestosis!

If anyone has other experiences with plaintiff lawyers using (or abusing) the ATS Statement in a deposition, please let me know, and I will post them on this site. Although all depositions are public documents, I recommend leaving out names of participants for the sake or privacy.

Posted June 2005
Lawrence Martin, M.D., FACP, FCCP