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After a 10-month trial run in San Francisco, a Texas-based plaintiff firm has found that sand is a poor stand-in for asbestos. McCurdy & McCurdy opened a San Francisco office in May, hoping its silicosis suits would get a better reception here than in Texas. The suits — claiming lung damage as a result of sand inhalation — are seen in some quarters as the new asbestos litigation. But now McCurdy & McCurdy is backing away. The firm’s experience in San Francisco suggests the tort won’t be the bane of corporate America. Nor, perhaps, will it be a boon to asbestos lawyers eyeing a bill in Congress that could put them out of work. A year ago, San Francisco looked like the perfect place to set up shop. “California has a lot of coastline and a lot of shipyards out there, and those shipyards do a lot of sandblasting,” said Jimmy Ross, a partner with McCurdy & McCurdy in Arlington, Texas. “We thought there was a lot of silicosis out there,” he explained, “and we weren’t able to find any significant silicosis litigation at all.” The firm went all out to change that, blanketing the region with newspaper ads and mass mailings offering free lung screenings. Ross said that netted about 1,000 plaintiffs, most of whom filed suit last year. It’s been all downhill since then, with unreceptive courts, an embattled doctor and a seething band of local asbestos lawyers — both plaintiff and defense — beating the McCurdy firm back to Texas. After just 10 months here, Ross said McCurdy is passing its silicosis cases off to another Texas lawyer and may close its local office. Silicosis suits have received heavy publicity in recent months, with investigation of a mass tort in Texas and congressional testimony calling into question thousands of diagnoses made in recent years. But locally, the McCurdy firm has quietly stirred dozens of defense lawyers into active duty, and nearly as many plaintiff lawyers into an apoplectic froth. Those lawyers have spent decades litigating asbestos cases, and take umbrage with the McCurdy firm’s screening methods and “double dipping”: At least one of the McCurdy plaintiffs has already settled an asbestos claim against the same defendant now being sued for silicosis. “One of the plaintiffs involved was one of our plaintiffs,” said Gilbert Purcell, a partner with the 60-lawyer Novato plaintiff shop Brayton Purcell. “He’s a pure asbestotic, and we let that firm know we didn’t appreciate their firm pushing asbestosis as silicosis.” Purcell and Steven Kazan, one of the country’s top asbestos lawyers, said they aren’t bringing silicosis suits, and even question their validity. “The whole thing is somewhere between shameless and shameful,” said the partner with Oakland, Calif.’s Kazan, McClain, Abrams, Fernandez, Lyons & Farrise. “I don’t know of pulmonary doctors around here who really have seen silicosis cases.” The McCurdy firm’s cases rely on diagnoses made by Dr. Ray Harron, a West Virginia radiologist also registered in California, said Michael Strimling, a Piedmont, Calif., solo who spent four months in the San Francisco McCurdy office. A screening firm called N&M was in charge of the medical exams. Lawyers in McCurdy’s San Francisco office either didn’t return calls or declined to discuss the suits. Harron and N&M have faced a slew of recent problems, most notably due to Harron’s admission to a Texas federal judge in February that he made 2,700 silicosis diagnoses on X-rays alone, without interviewing or examining patients or checking their work histories. He testified that the reports he wrote for victims were prepared by secretaries and stamped with his signature. And as part of the Texas litigation, N&M was required in March to turn over paperwork relating to tens of thousands of diagnoses for asbestos and silica disease. Harron and N&M raise questions “not only about their own integrity,” said Kazan, “but everyone else’s in the business.” The defense bar couldn’t agree more. Eliot Jubelirer, a partner with Morgenstein & Jubelirer who represents asbestos and silicosis defendants, says suits arising from screenings are often problematic. “They’re horrible for the litigation system, they’re horrible for the defendants,” he said. “They’ve spent tens of millions to settle claims where there isn’t any impairment.” As federal proceedings in Texas move forward for the 10,000 claims consolidated there, the San Francisco suits are in a sort of limbo. Judges have rejected some of the multi-plaintiff complaints and defense attorneys are waiting to see if individual cases will be filed. In one suit, filed on behalf of plaintiff Thomas Bowser, the judge has so far required four revisions of the original complaint. “We’re still disputing the sufficiency of the complaint,” said Constance Morrison, an associate with Yaron & Associates defending Todd Shipyards. Court records show that Bowser sued the shipyard over asbestos exposure in the early 1990s, when he was represented by a lawyer at Purcell’s firm. According to Strimling, all of the plaintiffs were diagnosed through screenings conducted in 2003 and 2004. Kazan and Purcell criticize such tactics, and say they fail to target the people who are actually ill. It’s not clear how Brent Coon — the Texas plaintiff lawyer who Ross said will take over the San Francisco cases — is going to proceed. Coon isn’t registered in California. Coon and a partner in his office did not return calls by press time, In the meantime, the local plaintiff lawyers say they hope the silicosis cases — and the tactics associated with them — die out before Congress passes an asbestos settlement bill. “They did a whole blanket mailing to Piedmont. There’s not a whole lot of sandblasters who retired and moved to Piedmont,” said Kazan. “So it’s kind of ridiculous.”

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