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Although U.S. District Judge Janis Graham Jack questions her authority to award monetary sanctions against some of the attorneys for almost 10,000 plaintiffs involved in silicosis suits, Jack didn’t mince words at a March 14 hearing about her views on how the cases have been conducted. “I feel like I have sanctioned the conduct from the bench, and I intend to do it in writing,” Jack told lawyers who packed her Corpus Christi, Texas, courtroom for a hearing on the defendants’ motions for sanctions. Jack, who presides over pretrial matters in In Re: Silica Products Liability Litigation, said she would issue a roughly 100-page order in late April, which she will send to the courts where the suits originated. The plaintiffs, who come from eight states including Texas, originally filed most of the suits in Mississippi state courts, but the defendants removed the cases to federal courts. Acting on the defendants’ motion, the Judicial Panel on Multidistrict Litigation consolidated the suits in September 2003 and assigned Jack to oversee pretrial discovery. Roy Atwood, a defense attorney for Textron Inc. and a partner in Jones Day in Dallas, says in an interview that Jack has questions about her authority to sanction plaintiffs lawyers in the litigation, because some of the alleged conduct at issue occurred before the MDL panel assigned the suits to her. Jack clearly has authority to sanction lawyers for conduct that violated her orders, he says. In June 2004, the defendants moved to strike the plaintiffs’ diagnoses, alleging in their motion that “not a single plaintiff in the MDL has submitted anything which qualifies as a diagnosis, much less a diagnosis of silicosis.” The defendants alleged in the motion to strike that too few doctors diagnosed the plaintiffs in too short of a time for the doctors’ reports to be considered diagnoses. According to the motion, Dr. George H. Martindale, a Mobile, Ala., radiologist, produced 3,617 diagnoses in just 48 days in the first half of 2002. Martindale testified in an October 2004 deposition that he had not made the diagnoses to which his signature was attached. Martindale and two other doctors who diagnosed plaintiffs involved in the litigation subsequently withdrew their diagnoses. Jack never acted on the motion to strike, which is pending before her court. After the three doctors withdrew their diagnoses, Jack ordered a hearing in February to determine whether other doctors and a company that screened thousands of the plaintiffs for silicosis used reliable techniques. Jack, a former nurse, heard the testimony over a three-day period. According to a transcript of the Feb. 17 hearing, Jack commented that she saw the testimony of one doctor as “raising great red flags of fraud.” On Feb. 16, according to a transcript, Dr. Ray Harron, a West Virginia radiologist, testified that he didn’t personally interview some 2,700 of the claimants, conduct physical exams on them or check their work records and that he had secretaries prepare the reports on the diagnoses and stamp his name on the reports, which he never edited. Harron also testified that he had diagnosed some claimants as positive for asbestosis and later diagnosed them as positive for silicosis. When Jack asked the doctor whether the silicosis is gone from those claimants, the doctor replied, “I don’t know,” according to the transcript of the Feb. 16 testimony. Harron did not return a telephone call seeking comment before press time on March 17. The defendants allege in the motions for sanctions that some “plaintiffs’ attorneys attempted to ‘hide the ball’ regarding their clients’ asbestos diagnoses” by not disclosing the dual diagnoses of asbestosis and silicosis. To offset their costs for the February hearing, the more than 100 defendants in the litigation are seeking $1.1 million in sanctions from plaintiffs’ attorneys who filed the majority of the suits, defense attorney Daniel Mulholland of Jacksonville, Miss., told Jack at the March 14 hearing. Mulholland is an associate with Forman Perry Watkins Krutz & Tardy, which represents approximately 30 defendants in the suits. Mikal Watts, a principal in the Watts Law Firm in Corpus Christi and a liaison counsel for the plaintiffs, says in an interview that he doesn’t think Jack will sanction any plaintiffs attorneys involved in the silica suits. Fred Krutz, a partner in Forman Perry and chairman of the defendants’ steering committee that oversees the MDL litigation, says in an interview that the defendants would like to be repaid for their expenses for the February hearing but that monetary sanctions aren’t the main goal. “We wanted to stop the mass screenings,” Krutz says. Krutz says the defendants also want to make sure that the claims of plaintiffs who don’t have a “real diagnosis, but instead have a litigation doctor’s diagnosis” are dismissed from the litigation. During the March 14 hearing, J.A. “Tony” Canales, a defense attorney for 3M Co., urged Jack to condemn the methodology that “creates a facade of a diagnosis.” Jack’s order will have national implications, said Canales, a partner in Corpus Christi’s Canales & Minonson. Watts told Jack he doesn’t think that the defendants really want monetary sanctions against the plaintiffs’ lawyers. “What they’re asking for is a written order in the form of an advisory opinion that they can take across separation of powers and go lobby the [Texas] Legislature,” Watts said. Bills currently before the Legislature would curtail asbestos and silica litigation in Texas. “This is not the forum for that to happen.” Richard Laminack, a partner in Houston’s O’Quinn, Laminack & Pirtle, which represents about 21 percent of the plaintiffs in the litigation, says in an interview that the defendants’ strategy is to attack the plaintiffs’ lawyers. “Nobody has ever brought one shred of evidence in any courtroom anywhere that these clients don’t have silicosis,” Laminack says. But Mulholland told Jack during the March 14 hearing that while Jack is a real federal judge hearing the litigation in a real federal courtroom, the suits “are simply not real.” EXTREMELY RARE Neither of the two motions for sanctions filed separately by 3M Co. and by A-Bec Industries and other defendants specifies which plaintiffs attorneys the defendants want Jack to sanction. According to a footnote in the motion filed by A-Bec Industries, the defendants aren’t seeking monetary sanctions against Watts and the plaintiffs’ other liaison counsel, Kathryn Snapka, a partner in Corpus Christi’s Snapka & Turman. At the March 14 hearing, Jack sought clarification from the defendants’ lawyers about which firms the motions focused on. Mulholland told Jack that the Waco, Texas, firm of Campbell Cherry Harrison Davis Dove represents about 40 percent of the plaintiffs in these suits. Mulholland said Campbell Cherry did not provide information about which of their clients have been diagnosed with asbestosis in addition to silicosis until recently, although Jack ordered all plaintiffs’ lawyers to provide such information in June 2004. “We weren’t trying to keep this information from anybody,” Billy Davis, a partner in Campbell Cherry, told Jack. “When we understood that we were ordered to present this information … we furnished it.” But Jack questioned why Campbell Cherry did not have its plaintiffs list asbestosis on their original affidavits for the silicosis litigation when the firm was representing those plaintiffs in asbestos litigation. Jack said that more than 40 percent of Campbell Cherry’s clients had been diagnosed with asbestosis before they were diagnosed with silicosis. Jack said it would be extremely rare for people to have asbestosis and then have silicosis. “The medical doctors that testified from both sides said it was … extremely unusual, so unusual apparently that your doctors didn’t take notice of it when they diagnosed silicosis,” Jack told Davis. A number of doctors who testified at a Feb. 2 U.S. Senate Judiciary Committee hearing on asbestos litigation reform said that a person rarely suffers from silicosis and asbestosis. According to a transcript of the Feb. 2 hearing, Dr. Paul Epstein, a clinical professor of medicine at the University of Pennsylvania, testified, “It’s my professional opinion that the dual occurrences of asbestosis and silicosis is a clinical rarity.” Epstein’s specialty areas include pulmonary diseases. “Asbestosis and silicosis really are different diseases, and they’re separable from each other based on the history of exposure, the chest X-ray and pulmonary function test,” Dr. Laura Welch testified, according to the transcript. Welch is the medical director for the Center to Protect Workers’ Rights, an institute affiliated with the building and construction trades of the AFL-CIO. Jack said the plaintiffs’ affidavits that Campbell Cherry filed showed they had heart conditions, kidney stones and gall bladder problems. “Why wouldn’t you list a terminal illness such as asbestosis?” the judge asked Davis. Davis did not return two telephone calls seeking comment before press time. Mulholland said at the hearing that O’Quinn, Laminack and its Jackson, Miss., co-counsel, Grenfell, Sledge & Stevens, disclosed information on 331 of their 800 clients who have dual diagnoses for asbestosis and silicosis. Laminack says in an interview that his firm doesn’t handle asbestos suits. “If any of our clients ever had an asbestos case in the past, it’s something we’re not aware of,” he says. A spokesperson for Grenfell, Sledge refers a phone call seeking comment to Laminack. Mulholland said the Mississippi firms of Barton & Williams and the Law Offices of Alwyn Luckey represent about 15 percent of the plaintiffs and mentioned the firms of Foxworth & Casano of Gulfport, Miss., and Scott Hooper & Associates in Houston. Those firms used diagnoses from doctors whose testimony at the February hearing raised questions about their methodology, Mulholland said. In a response to the defendants’ motion for sanctions, Scott Hooper and his co-counsel, Robert G. Taylor II and Gerald Maples, argued that there is no evidence that they engaged in any of the conduct that the defendants alleged is sanctionable. Alwyn Luckey, Skip Lynch, an attorney with Barton & Williams, and John Foxworth, a partner in Foxworth & Casano, did not return one telephone call each to their offices seeking comment before press time. In a memorandum that Watts filed in opposition to the defendants’ motions for sanctions, the plaintiffs argued that neither they nor their counsel have acted in bad faith in filing the claims or at any time in the MDL proceeding. “[T]he defendants have absolutely no evidence to substantiate any such alleged conduct,” the plaintiffs argued in the memorandum.

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