Plaintiffs lawyers who filed silicosis suits on behalf of thousands of clients got their turn before a U.S. House panel investigating the controversy over the mass screening process that led to the filing of many of those cases.

Among the issues covered during the July 26 hearing before the House Energy and Commerce Subcommittee were allegations that one Houston firm that has claimed not to be involved in asbestosis litigation financed another firm involved in that practice and that a Waco firm paid a screening company only for X-rays showing that the person screened had positive signs of silicosis.

One line of questioning focused on the now-defunct O'Quinn, Laminack & Pirtle's repeated denials that the firm never represented clients in asbestosis suits. According to testimony at the hearing, O'Quinn Laminack financed a separate firm to handle the asbestosis claims and collected referral fees from that separate firm when the claims were successful.

Two attorneys for defendants sued by plaintiffs with silicosis claims contend that O'Quinn Laminack did not disclose to a federal judge overseeing pretrial matters in the silica litigation that it had a financial interest in a another firm that represented plaintiffs with asbestosis claims.

Richard Laminack, a former partner in O'Quinn Laminack, told the committee, "I've never represented anybody in an asbestos case."

During questioning by U.S. Rep. Greg Walden, R-Ore., Laminack testified that O'Quinn Laminack had a financial relationship with Foster & Harssema, which handled asbestosis suits.

"Had you a sort of joint venture referral agreement with the other firm?" Walden asked.

"Correct," responded Laminack, who testified via videoconference.

"Was there remuneration in that agreement?" Walden quizzed.

"Well, we got paid a referral fee -- if that's what you're asking -- if the case was successful," Laminack said.

The exchange between Walden and Laminack, now a partner in Laminack, Pirtle & Martines in Houston, occurred during the subcommittee's fourth hearing on silicosis litigation -- hearings it began holding last year after U.S. District Judge Janis Graham Jack's June 30, 2005, order in In Re: Silica Products Liability Litigation.

Two Democrats on the subcommittee -- U.S. Rep. Bart Stupak, D-Mich., and U.S. Rep. Diana DeGette, D-Colo. -- questioned the purpose of the panel's investigation. Stupak said the hearing has been fair, "but that does not mean it has been unbiased."

Jack, of Corpus Christi, presided over about 120 silicosis suits that the federal Judicial Panel on Multidistrict Litigation consolidated in September 2003 and assigned to her for pretrial matters. She concluded in her opinion in In Re: Silica that the silicosis diagnoses of some 10,000 plaintiffs were "manufactured for money."

Jack remanded most of the cases to state courts in Mississippi, where the suits had originated, after criticizing the mass screening process that resulted in thousands of plaintiffs being diagnosed with silicosis.

Roy Atwood, a partner in Jones Day in Dallas who represents Rhode Island-based North Safety Products, one of the defendants in the silica litigation in the federal MDL, says defense lawyers involved in those cases believed that O'Quinn Laminack was funding a firm to handle asbestos claims for clients who also had silicosis claims, but defense lawyers had been unable to prove it.

Daniel J. Mulholland, an attorney who represents a number of defendants in silica litigation, says it's inconsistent to argue a client has asbestosis and then to argue that the same client has silicosis. If the claims are inconsistent and the same lawyers are arguing both claims, "that's a problem," says Mulholland, an associate with Forman Perry Watkins Krutz & Tardy in Jackson, Miss.

Defendants in the federal MDL sought sanctions against O'Quinn Laminack in 2005. In a supplemental motion for sanctions filed with Jack, the defendants argued that the judge should sanction O'Quinn Laminack for the firm's alleged "failure to produce the asbestosis diagnoses reports of [O'Quinn Laminack's] 331 MDL plaintiffs and for dodging responsibility for that failure by feigning non-involvement in those plaintffs' asbestosis claims."

In its March 2005 response opposing the sanctions, O'Quinn Laminack contended that it "typically does not represent its silicosis clients in an asbestos case" and "typically does not have possession of any records relating to the asbestos claims sent to other firms."

"If in fact O'Quinn Laminack had a financial interest in the asbestos cases and they were responsible for setting up the other firm, it's less than full disclosure to represent to Judge Jack that they have not handled asbestos cases and had no involvement in asbestos cases," Atwood says.

Jack ultimately sanctioned O'Quinn Laminack $8,250 in the silica MDL. The judge wrote in the sanctions order that O'Quinn Laminack "micromanaged" the diagnostic process and "has multiplied the proceedings unreasonably and vexatiously."

Other plaintiffs lawyers who testified before the subcommittee were Billy Davis, a partner in Waco's Campbell Cherry Harrison Davis Dove; Abel K. Manji, an associate with Houston's O'Quinn Law Firm; Houston solo Joseph V. Gibson, a former associate with O'Quinn Laminack; Jamshyd M. Zadeh, principal in the Law Office of Jim Zadeh in Fort Worth; John Fabry, an associate with Williams Bailey in Houston; and Steven W. Mullins and Alwyn H. Luckey, partners in Luckey & Mullins in Ocean Springs, Miss.

'NOTHING HIDDEN'

During his questioning of Laminack, Walden referred to two letters written by Dr. Ray A. Harron, a Bridgeport, W.Va., radiologist who diagnosed many of the 2,100 silicosis plaintiffs represented by O'Quinn Laminack.

Referring to a letter Harron sent to Foster & Harssema confirming that an individual has asbestosis and a separate letter Harron sent to O'Quinn Laminack confirming an individual has silicosis, Walden said, "It appears in each instance Dr. Harron is diagnosing the same individual with asbestosis and silicosis, based upon the same X-ray." Walden asked why all the asbestosis letters went to Foster & Harssema and all the silicosis letters went to O'Quinn Laminack.

Laminack said he had instructed his staff that when a client had dual diagnoses for silicosis and asbestosis the staff was to refer the asbestosis part of the case to Foster & Harssema. He testified that each of Harron's letters was part of a package of documents that contained all the details of the dual diagnoses.

"If the implication is that someone was trying to hide the fact [of the dual diagnoses], that's simply not true," Laminack told the subcommittee.

Laminack testified that O'Quinn Laminack had financed the start-up of Foster & Harssema several years ago.

According to a 2001 Texas secretary of state document, Foster & Harssema and John M. O'Quinn & Associates had their offices in the same building in Houston, although on different floors.

A 2003 Texas franchise tax report lists Ryan Foster as the managing member and director of what was then called the Foster Law Firm. The report lists Laminack and Tom Pirtle, another former partner in O'Quinn Laminack and current partner in Laminack, Pirtle & Martines, each as a nonmember manager and director of the Foster Law Firm.

In a 2005 Texas franchise tax report on a firm then called Ryan A. Foster & Associates, Foster is listed as the managing member and a director and John O'Quinn, now of the O'Quinn Law Firm, and Laminack are listed as managers and directors.

Laminack testified that it was his understanding the Foster firm was set up in that way to prevent Foster from spending or borrowing without O'Quinn's approval.

"I got elected to be one of the managers to assure that the vote was always 2-1," Laminack said.

Laminack says in an interview that he introduced Foster and Michael Harssema to O'Quinn, so they could ask for a loan to start their firm. He says Foster and Harssema had handled asbestos cases in the past.

But Laminack says it's silly to think that O'Quinn Laminack tried to hide the fact that some of its clients filed both silicosis and asbestosis suits, because, in many cases, the claims were against the same defendants.

"There's nothing hidden," he says.

O'Quinn, Pirtle and Foster did not return telephone calls to their offices seeking comment before press time on July 27. Harssema could not be located for comment.

A SMOKESCREEN?

U.S. Rep. Ed Whitfield, R-Ky., chairman of the subcommittee, questioned Davis about why Campbell Cherry sent letters to between 18,000 and 20,000 of its previous asbestosis clients, inviting them to be screened for silicosis. Whitfield said the information he has indicates it is extremely rare for a person to have both asbestosis and silicosis.

"We disagree that it's extremely rare," Davis said, adding that some medical experts have said that people can develop both diseases by working in a number of industries.

Whitfield also asked Davis whether Campbell Cherry paid its screening company only for positive diagnoses of silicosis.

Davis testified that his firm paid the screening company if an individual's occupational history showed two years of exposure to silica prior to 1980; if the individual had a positive X-ray for silicosis, underwent a medical exam and obtained a diagnosis; and if that individual signed up to be a Campbell Cherry client. If the person went through that entire process but did not ask for Campbell Cherry's representation or the firm refused to represent that person, Campbell Cherry did not pay the screening fee, he said.

At one point during the subcommittee's hearing, U.S. Rep. Joe Barton, R-Texas, chairman of the full House Energy and Commerce Committee, chided the plaintiffs lawyers for refusing the committee staff's repeated requests to interview their clients in the silica litigation.

Barton said the committee wanted to question clients as to whether a doctor was present during their screenings and whether anyone discussed with them how to obtain follow-up treatment once they were diagnosed with silicosis.

Barton said that while "the O'Quinn firm" has made some effort to facilitate such interviews, the rest of the firms have not, instead invoking the attorney-client privilege. Barton said lawyers have the right under the U.S. Constitution to invoke privilege. But he added, "It sure looks like a smokescreen to me."

Walden later asked Fabry to state his legal justification for withholding silica litigation documents that the committee had subpoenaed. Fabry and Zadeh have asserted privilege in withholding the documents.

Fabry said the privilege belongs to his clients, and it's his obligation to assert that privilege on his clients' behalf. "It's not for me to give it away," he said.

"Did you ask them?" Walden asked.

"No," Fabry replied.

Zadeh said he did not comply with the request for documents because the subpoena was "pretty broad." Zadeh said he had 16 million documents from his silica cases.

In a related development, a Mississippi judge recently denied a motion for sanctions that defendants in the silica cases filed against Campbell Cherry, based on Jack's findings in the federal MDL.

In orders filed July 17, Circuit Court of Noxubee County Judge Lee Howard denied the defendants' motions in Baldwin, et al. v. Graco Enterprises Inc., et al. and Prince, et al. v. Pearl River Sand & Gravel Co. Inc., et al.

"The court finds that the claims [Campbell Cherry] filed in this lawsuit were not brought without substantial justification or for delay or harassment, and thus sanctions are not warranted under the Mississippi Accountability Act," Howard wrote in the orders.

Steve McConnico, Campbell Cherry's attorney and a partner in Austin's Scott, Douglass & McConnico, says Campbell Cherry "told their story to a Mississippi court, and the court found in their favor."

But Mulholland, who represents the defendants who filed the sanctions motion, says of Howard's order, "We respectfully disagree with it and intend to appeal."

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