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Lawyers for 47 asbestos defendants in the federal multidistrict asbestos litigation in Philadelphia asked the court last week to exclude the testimony of six doctors and to dismiss all claims based on their records-nearly half of an estimated 300,000 pending asbestos claims. The defense contends that the court should not accept the testimony of three doctors who asserted their Fifth Amendment privilege against self-incrimination and of three doctors who have withdrawn their own testimony from pending asbestos cases. But members of the asbestos plaintiffs’ bar said that with asbestos trust fund legislation currently before the U.S. Senate, the timing of the motion makes it feel more like a political ploy than a litigation tactic. That legislation, several years in the making, would end asbestos litigation and create a trust fund to compensate people with asbestos-related injuries. The defense is following defense counsel strategy in the federal multidistrict silica litigation in Corpus Christi, Texas. In the silica cases, U.S. District Judge Janis Graham Jack, after holding extensive evidentiary hearings, ruled last June that plaintiffs’ lawyers, doctors and screening companies had manufactured claims for money. In re Silica Products Liability Litigation, No. MDL 1553 (S.D. Texas). A ‘mirror’ image Walter G. Watkins Jr. of Forman Perry Watkins Krutz & Tardy in Jackson, Miss., who signed the asbestos defendants’ motion to dismiss the cases, said that the defense would like to apply to the federal asbestos litigation what lawyers in the same firm did in the federal silica litigation. In re Asbestos Products Liability Litigation (No. VI), No. MDL 875 (E.D. Pa.). “A lot of what happened in silica is a mirror of what happened in asbestos,” Watkins said. He added that what he anticipates happening if the court grants the motion is that “we will be able to apply it in states around the country.” Watkins said that the defense has about 35 outstanding subpoenas to challenge more doctors who diagnosed large numbers of asbestos claimants. But Steven Kazan of Kazan, McClain, Abrams, Fernandez, Lyons, Farrise & Greenwood, a national plaintiffs’ asbestos practice based in Oakland, Calif., said that the timing of the motion suggests that it may have been done “for political purposes or for legislative leverage.” “This is more about keeping the idea of medical fraud in asbestos litigation in the public eye . . . like gay marriage and burning American flags at gay weddings, or whatever all that is about. It’s hard to believe it’s going to go anywhere,” said Kazan, a member of the plaintiffs’ steering committee in the asbestos multidistrict litigation. A House of Representatives committee last week also heard testimony about asbestos and silica screening and diagnoses from two doctors and a former screening company employee. In last week’s motion, the asbestos defendants asked the court to exclude the testimony and dismiss all claims made on the basis of six doctors’ records. Dr. Ray A. Harron of Bridgeport, W.Va.; his son, Dr. Andrew W. Harron of Kenosha, Wis.; and Dr. James W. Ballard of Birmingham, Ala., have asserted their Fifth Amendment right not to incriminate themselves, since their practices came under grand jury scrutiny in the federal silica case, court records show. Dr. George H. Martindale of Mobile, Ala.; Dr. Richard B. Levine of Elkins Park, Pa.; and Dr. Jeffrey H. Bass of Pascagoula, Miss., each repudiated his diagnosis in sworn affidavits since their practices were questioned in silica and other litigation. In the wake of Jack’s opinion in the silica cases, three asbestos bankruptcy trusts suspended acceptance of claimants’ medical reports prepared by Ballard, the Harrons, Martindale, five other doctors and three screening companies. Hubert G. Taylor of Leitman, Siegal & Payne in Birmingham, Ala., who represents Ballard, said his client “has strived to and met all of the standards of professional responsibility established for radiologists and physicians.” Jed Stone of Stone & Associates in Waukegan, Ill., dismissed attacks upon his client, Andrew Harron, as politically motivated by powerful entities interested only in reducing their liability exposure. Elizabeth Johnson of the Law Offices of Lawrence S. Goldman in New York, the lawyer of record for Ray Harron, could not be reached for comment.

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