Herzfeld & Rubin, P.C.- Publications

Products Liability Report Disputes Radiology Experts' Opinions By Michael Hoenig - New York Law Journal - Monday, September 13, 2004	Print article

Our recent columns updated developments in the area of judicial "gatekeeping," i.e., the judge's task to assure that expert testimony is not only relevant but reliable.¹ Many judges have warmed to the quest for trustworthiness of the expert's testimony, not only the opinion but also the methodology, reasoning, foundation and other predicates by which reliability is gauged in the particular discipline involved. We have discussed a growing tendency, when appropriately challenged, to probe even the trustworthiness of out-of-court writings and literature, upon which the expert may rely. Indeed, since many litigation disputes are boiling down to a kind of "trial by literature," potential shortcomings in the underlying writings would seem to be a vital subject upon which to focus. Our series on experts and "unreliable" hearsay reported on developments in that area.²

As we reported in a November 2002 column, the entire June 5, 2002, issue of the Journal of the American Medical Association (JAMA) offered numerous articles searchingly assessing whether biomedical literature, even in the most vaunted medical journals, truly met assumed standards of quality and trustworthiness.³ Incredibly, article after article described eye-popping shortcomings in the peer-review process, poor research, glossed-over disagreements by multiple authors and other appalling problems. Prestigious journals such as JAMA, The New England Journal of Medicine and Lancet were not immune from weaknesses. And this is the more elegant of the biomedical hearsay upon which experts commonly rely to forge, buttress or create opinions. What, pray tell, might be said of the many less prestigious journals or writings where inferior quality or peer review standards may apply?

Investigative Report

Now comes a new disturbing revelation seeming to call into question the sanctity of some of the medical expert testimony being rendered in a gargantuan arena of litigation. The new item is an investigative report from the Johns Hopkins Department of Radiology published in the August 2004 journal, Academic Radiology.⁴ The seemingly benign title of the Johns Hopkins investigative report, "Comparison of 'B' Readers' Interpretations of Chest Radiographs for Asbestos Related Changes," and the temperate discussion of the study's findings mask the potential effect: a churning miasma in a percolating volcano near eruption. It seems that "gatekeeping" challenges come in many forms.

Indeed, so "hot" is the potential fallout, that two physicians authored a "guest editorial" in the same issue of Academic Radiology entitled, "'B' Readers' Radiographic Interpretations in Asbestos Litigation: Is Something Rotten in the Courtroom?"⁵ The opening byline quotes from Shakespeare's Hamlet, Act 1, Scene 4, "Something is rotten in the State of Denmark." What is the significance of the Johns Hopkins investigative report? The guest editorial authors say that the report "raises considerable concern as to whether interpretations of chest radiographs rendered by B-reader radiologists acting as expert witnesses and offered as testimony in asbestos-related litigation is non-partisan and clinically accurate."⁶

The area of asbestos litigation implicated by the new study results involves pitched battles over so-called "non-manifest injuries." An overwhelming percentage of asbestos claims today involve lawsuits filed on behalf of claimants who are said to have some form of asbestos disease but who have not exhibited symptoms or illness. Many such claimants are included in mass tort, class action or consolidated proceedings. Lawyers seeking to support the claim of disease in such claimants hire radiologists who review chest radiographs for perceived abnormalities which they then opine indicate the presence of asbestos disease despite the absence of manifest injuries. These radiologists may issue expert reports or testify in depositions or trials as to their findings and opinions.

Typically, the interpreters of such radiographs are so-called "B" readers, based on a certification offered by the Public Health Service's National Institute for Occupational Safety and Health (commonly referred to as NIOSH). The "B" reader credential is specified for X-ray interpreters in regulations and also is widely accepted by lawyers and judges as a qualification for expert witnesses. It is said that approximately 700 radiologists and other physicians hold B reader certification, seemingly a relatively small number. Out of this pool, says the Johns Hopkins report, a small number of B readers "has made reputations with attorneys by consistently interpreting chest radiographs of asbestos claimants as positive in 90-100 percent of cases."⁷

Discrepancies Astounding

The Johns Hopkins radiology department investigators wanted to determine if chest X-ray interpretations alleging respiratory changes by physicians retained by plaintiffs' lawyers would be confirmed by independent consultant readers. Some 551 chest radiographs read as "positive" by plaintiffs' B readers along with 492 matching interpretive reports were made available to the authors. Six consultants in chest radiology, also certified B readers, agreed to reinterpret the radiographs independently. The film source, patient name and other identifiers on the film were masked. The six consultants' findings were recorded. The results were compared with initial readings for film quality, complete negativity, abnormalities, small opacities and statistical analysis.

The disparate results were astounding. The B readers retained on behalf of plaintiffs reached "positive" findings, i.e., they found abnormalities or other signs of respiratory changes, in nearly 96 percent of 492 cases. The six consultants, on the other hand, classified the films as indicating positive changes in only 4.5 percent of 2,952 readings. In other words, the 492 cases presenting radiographs were read by each of the six consultant B readers yielding the 2,952 total investigative readings. The multiple independent readers checking the very same films disagreed with the litigation consultants in more than 90 percent of the cases that any respiratory changes were present.

The Johns Hopkins report in its synopsis at the outset of the article concludes that "[t]he magnitude of the differences between the interpretations by initial readers and the six consultants is too great to be attributed to interobserver variability." In fact, there is no support in the literature on X-ray studies of workers exposed to asbestos and other mineral dusts for the high level of positive findings recorded by the initial readers.⁸

The conclusion at the end of the article seems similarly peaceful in tone. Yet it presages a monster of an expert reliability issue. The authors state: "Reinterpretation by six independent consultants of chest radiographs read initially by B readers selected by plaintiffs' counsel failed to confirm the conclusions of the initial readers. Whereas the initial readers interpreted 95.9 percent of the chest X-rays as positive for parenchymal abnormalities — small opacities profusion category 1/0 or higher (ILO 80) - the consultants interpreted the same set of cases as positive in only 4.5 percent. Comparisons of other pertinent data from the reports showed similar significant differences between the interpretations of the initial readers and those of the independent consultants."⁹

Opinions Questioned

These findings seem to strongly confirm some of Benjamin N. Cardozo School of Law Professor Lester Brickman's conclusions in his copious law review article on the asbestos litigation mess. Published in the 2004 Pepperdine Law Review with the title, "On the Theory Class's Theories of Asbestos Litigation: The Disconnect Between Scholarship and Reality," Professor Brickman boldly suggested that "B-readers and other medical experts are misdiagnosing claimants in order to generate substantial profits." While X-ray readings and medical diagnoses do involve quite subjective judgments, since we are dealing in the aggregate with tens of thousands of X-ray readings, the huge and consistent discrepancies between "neutral" readers and those profiting from their litigation findings cannot be attributed to "inter-reader variability."¹⁰ Professor Brickman calls the non-manifest injury plaintiffs "unimpaired claimants." Lawyers maintain a "near inexhaustible supply" of such claimants by using mass screenings to identify thousands of workers who are then diagnosed to have asbestos-related lung conditions. He says, "the crux of the asbestos litigation crisis is the unimpaired claimant." ¹¹

The "guest editorialists" reviewing the Johns Hopkins study are alarmed. Citing ethical imperatives, they say the well-researched findings raise serious questions: do the radiographic interpretations rendered by the initial B readers constitute testimony that is correct, accurate and truthful? Are the discrepancies with the independent readers the result of simple differences of opinion among professional colleagues, or do they represent opinions that are without foundation and devoid of truth? Despite the possible murkiness of assessing such readings, the new study is considered "disturbing." It sounds an alarm that should reverberate in many institutions. Especially, say the authors, the radiology community should find out whether something is, or is not, rotten in the courtrooms of this nation.¹²

Michael Hoenig is a member of Herzfeld & Rubin.

Endnotes:________________________________________________________________________________________________________

1. Hoenig, "Evaluating the Experts: Reliability, Qualifications and Methodology," New York Law Journal, Aug. 9, 2004, p. 3; "'Gatekeeping' of Experts: The New 'Compurgators'," New York Law Journal, July 12, 2004, p. 3; "Expert Reliability Issues," NYLJ, June 14, 2004. p. 3

2. Hoenig, "Experts' Reliance on 'Unreliable' Hearsay," NYLJ, Nov. 12, 2002, p. 3; See also our columns in the NYLJ on Experts and Professionally Reliable Hearsay dated, respectively, April 11, June 18, July 8 and Aug. 12, 2002, each article commencing at p. 3.

3. Hoenig, "Experts' Reliance on 'Unreliable' Hearsay," Nov. 12, 2002, p. 3.

4. J. N. Gitlin, L.L. Cook, O.W. Linton and E. Garrett-Mayer, "Comparison of 'B' Readers' Interpretations of Chest Radiographs for Asbestos Related Changes," 11 Acad. Radiol., No. 8, pp. 843-856 (Aug. 2004).

5. By Drs. M.L. Janower and L. Berlin, 11 Acad. Radiol., No. 8, pp. 841-842 (Aug. 2004).

6. See note 5 at 841.

7. Gitlin, et al., supra n. 4, 11 Acad. Radiol., at p. 844 (citing Jones, Draft report of Commission on Asbestos Litigation, American Bar Association, Feb. 2003).

8. Gitlin, et al., supra n. 4, at p. 843.

9. See note 8 at 855.

10. L. Brickman, On the Theory Class's Theories of Asbestos Litigation: The Disconnect Between Scholarship and Reality, 31 Pepperdine L. Rev. 33, 42 (2004).

11. See note 10 at 59.

12. Janower and Berlin, supra n. 5 at 841-842.