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Plaintiffs involved in silica litigation have suffered a series of setbacks that, defense lawyers assert, have not only changed the landscape for that tort, but may have broad ramifications for other mass torts. Over the past four months, a half-dozen doctors who examined the X-rays of thousands of silica plaintiffs, and in some instances diagnosed disease, backed off from all or some of their findings. Defense lawyers called some of the claims these doctors signed off on “fraudulent,” and so did the federal judge presiding over the silica multidistrict litigation in Texas. Recent testimony in the MDL, coupled with a Senate Judiciary Committee hearing earlier this month, have also raised questions about the long-awaited asbestos bill that is supposed to offer a global settlement for plaintiffs, and a final resolution for companies besieged by claims. The defense lawyers in the silica litigation say that the defects they have identified in their cases may also implicate many asbestos claims. The reason, they explained, is that the way plaintiffs are diagnosed with asbestosis, a lung disease caused by exposure to asbestos, is virtually identical to the way plaintiffs are diagnosed with silicosis, a lung disease caused by exposure to silica, a crystalline compound in quartz and sand that is used to manufacture a multitude of products including glass and concrete. “Same methodology, same screening companies, same B-readers,” said defense lawyer Roy Atwood. The so-called B-readers are the doctors — usually radiologists or pulmonologists — hired to review the X-rays. Atwood, a partner in Jones Day’s Dallas office, said that the criticism of the silica claims can also be made of many asbestos claims. One of the most explosive revelations that has emerged from the litigation is that at least half of the approximately 10,000 plaintiffs in the silica MDL had previously filed asbestos claims. This is particularly troubling, Atwood and others said, because experts agree that, while it is possible an individual can suffer from the different lung diseases caused by the two substances, the likelihood is very small. The most recent fireworks occurred on Feb. 16, 17 and 18 — the dates on which Judge Janis Graham Jack, who presides over In Re Silica Products Liability Litigation, MDL No. 1553 (S.D. Texas), had ordered plaintiffs lawyers and their experts to appear for wide-ranging Daubert hearings and in-court depositions. Some of the most telling examinations were conducted not by defense lawyers but by the judge herself, whose questions were sometimes angry and often penetrating. THE MEANING OF ‘DIAGNOSIS’ One expert who came under fire was Dr. Ray Harron of West Virginia, who reviewed many of the X-rays. Toward the end of his testimony during the first day of hearings, the judge jousted with him over his definition of “diagnosis,” which he said meant only that the person was “more likely than not” to be suffering from the disease. He qualified it further by adding: “to a reasonable degree of medical certainty.” “Is that a proper way to diagnose a disease?” asked Jack, who was once a nurse. “Or are you just doing a legal diagnosis? “I would never go to a doctor,” she continued, “if he said to me, ‘I’m diagnosing you with tuberculosis within a reasonable degree of medical certainty.’ I’d say, ‘What are you talking about?’ “ A few minutes later, defense lawyer Daniel Mulholland questioned Harron about plaintiffs whom he diagnosed first with asbestosis and later silicosis. Mulholland asked the radiologist why he no longer found evidence of the first disease when he reviewed the second X-ray. As the lawyer bore in, the witness said he wanted to have a lawyer present before he continued. “He’s accusing me of making these things up,” Harron said by way of explanation. “Is that fair?” Jack asked Mulholland. “Yes, your Honor,” replied Mulholland, whose firm, Forman Perry Watkins Krutz & Tardy in Jackson, Miss., represents 30 defendant companies. “Wow,” said Harron. “That’s not good.” “I’m not sure if this is criminal or quasi-criminal,” said Jack. “It’s not for me to say, but if he has any indication that he’s concerned, he is entitled to have representation.” Harron’s testimony ended there. Other testimony focused on the number of X-rays that doctors read. On some days, according to the doctors’ billing records, they reviewed so many that they had only minutes to devote to each. “You shouldn’t be diagnosing silicosis in less time than it takes to boil an egg,” Mulholland’s partner, Fred Krutz, said in an interview. Also in the defense lawyers’ crosshairs were the screening companies — most notably N&M Inc. — that administered the X-rays and pulled together the doctors’ reports. According to the testimony of several doctors, sometimes N&M added diagnoses to those reports that the doctors never saw. “The vast majority of the silicosis cases are the creatures of screeners and B-readers,” Krutz asserted. “They are not epidemiological; they are opportunistic. “It will be interesting to see what some of the asbestosis and silicosis defendants who have paid out settlements on the basis of medical information from some of these same doctors are going to do,” he continued. He wonders if they will try to recover some of those payments. Last week, days after the hearings, defense lawyers filed a motion seeking $1.1 million in sanctions from the plaintiffs lawyers for “knowingly submitting and advocating bogus diagnoses.” The sum is to cover the costs of the hearings, Krutz said, and the defendants specifically reserved their right to bring additional claims against “all parties, attorneys, doctors, screeners and other persons involved in plaintiffs’ attorneys’ fraud.” The sanctions hearing is set for March 14, and Jack is expected to rule from the bench, or shortly thereafter. But there’s another ruling that’s expected at the end of March that is also eagerly awaited. She has signaled to the lawyers that she believes the defendants lack the diversity necessary to justify the removal to federal court. Therefore, she is inclined to remand the cases back to state courts. If she does, she has promised to write a lengthy analysis that she hopes will guide the judges who receive them. The hearings were only the latest success enjoyed by mass tort defendants. Last August, an article in the peer-reviewed journal Academic Radiology reported the results of a study on the accuracy of B-readers’ interpretations of X-rays used in asbestos litigation. The reviewers hired by plaintiffs’ lawyers had found that 96 percent of the images showed significant abnormalities. Independent reviewers hired by the study’s authors found that less than 5 percent of the images demonstrated abnormalities. These results, said an accompanying editorial, raised “considerable concern” as to whether the interpretations offered as expert testimony were “nonpartisan and clinically accurate.” Then, in October, when lawyers involved in the silica MDL were taking depositions from their own B-readers, George Martindale, a radiologist in Mobile, Ala., startled lawyers on both sides when he admitted he wasn’t comfortable with the diagnoses attributed to him. He thought he was only confirming the diagnoses of another radiologist, he testified, and didn’t feel qualified to diagnose silicosis on his own, even though thousands of his reports said that he had. The fallout: Martindale withdrew his diagnoses for more than 3,500 plaintiffs, and Jack set the stage for this month’s hearings to examine the methodology of the screeners and the other B-readers. If all this has a vaguely familiar ring, it is in many ways a reprise of a scandal uncovered in the fen-phen MDL in 2003. In that case, there were allegations about a screening agency that administered echocardiograms to plaintiffs at such a volume that it was dubbed an “echo mill.” There was an angry judge overseeing the fen-phen settlement who was concerned about fraud, and a cardiologist who was accused of reading thousands of images in a few minutes apiece. Messages seeking comment were left with six plaintiffs’ lawyers. The only one who called back was Mike Martin of Houston’s Maloney, Martin & Mitchell. He has only one case in the MDL, Martin said, and his client was diagnosed in a VA hospital rather than a mass screening. He doesn’t use mass screenings or file thousands of claims, he said. “You don’t just get an X-ray and file a lawsuit. That’s not the way you do it. It never has been.” You need a full examination, an X-ray and a medical history — all from a qualified pulmonologist, he said. He’s surprised by the number of cases in the MDL, he added, because silicosis is on the decline. But he is also concerned about protecting the rights of legitimate victims. He referred to his testimony at a Senate Judiciary Committee hearing on Feb. 2, when he expressed his misgivings about a draft of the asbestos bill. “The language requires that a non-asbestos claimant make a prima facie showing that he does not suffer any impairment from an asbestos related illness before he can avoid preemption,” Martin wrote in a prepared statement. “This burden is unnecessary and exclusionary. If a Plaintiff has not filed a lawsuit for asbestos and is not claiming injury from asbestos exposure, it seems nonsensical that he must plead and prove a negative in order to proceed with litigation.” At a meeting of the committee last month, Michael Forscey, a partner at Washington’s Forscey & Stinson, spoke on behalf of the Association of Trial Lawyers of America (which did not respond to an e-mail seeking comment). In addressing the issues in his written testimony, he commented on the so-called mixed-dust cases-injuries that result from exposure to both asbestos and silica. “There is no evidence,” he wrote, “that mixed dust cases burden the courts, are not fairly resolved, or require federal intervention. This legislation should not address these cases.” Forscey did not respond to a telephone message, so it could not be learned if recent events have changed his mind. REVELATIONS CONFIRM IMPRESSIONS Not everyone agrees with his assessment. Lester Brickman, a professor at Yeshiva University’s Cardozo School of Law, also testified on Feb. 2 and addressed the silica question at length. The dual diagnoses, he wrote in his prepared testimony, has been a relatively recent phenomenon. Its goal, he wrote, is “to keep the asbestos-litigation gravy train alive and in many cases require some companies to pay the same individuals twice for the same injuries. It is incumbent on this Committee to report out a bill that will foreclose this double indemnity.” Jan Amundson said that for those who have been working on the asbestos trust fund legislation for years, the silica revelations were hardly a shock. Rather, they “reinforce” the problems they’ve seen in asbestos claims, said Amundson, general counsel of the National Association of Manufacturers and chairwoman of the coalition of companies and trade associations known as the Asbestos Alliance. The silica MDL has helped bring fraud into the open, she said. And that may help ensure that it doesn’t infect an asbestos fund. A fund must prohibit double dipping, she said, but it must not in any way inhibit legitimate claims — whether they involve asbestos or silica. She believes the final bill will accomplish both purposes, she added, and does not expect the silica dustup to alter it.

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