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Brent Coon sees the future of lung litigation, and it’s far beyond his Beaumont, Texas, headquarters. Right now, he’s hoping it’s in San Francisco. “California’s just another expansion in our drive to become a one-stop shop,” the plaintiff lawyer said recently as he prepared for his June 1 takeover of another Texas firm’s San Francisco office and caseload. Coon’s presence — and the recent filing of about 35 suits by the East Bay, Calif., plaintiff shop Gwilliam, Ivary, Chiosso, Cavalli & Brewer in conjunction with a Texas firm — are the latest signals that California is the Texans’ testing ground for silicosis lawsuits. The prospect of a move to California worries local lung lawyers. They say a Texas litigation flood — and the controversial tactics used by some silicosis lawyers — will make it difficult for attorneys representing the relatively small number of actual silicosis sufferers to pursue their cases. California suits brought by Texas law firms include several involving a doctor who has made diagnoses without personally examining patients, and a gill-net approach to screening — testing just about anyone in a random search for a speck on a lung X-ray. The move to California seems driven by Texas tort reforms and, more recently, skeptical courts that have made it harder to bring silicosis claims. The Texas lung lawyers say that’s because they’ve been garroted over the last decade by hostile legislators who’ve spoiled a onetime plaintiff haven. “It’s gotten more hostile to be a plaintiff lawyer in Texas,” said attorney Ronald Eddins. Like other plaintiff lawyers, Eddins, of Dallas asbestos firm Waters & Kraus, said legislative changes and the current Republican state government make for a bleak horizon. “They seem to want to get away from that,” said Laurel Simes, a partner at the San Francisco plaintiff firm Levin, Simes & Kaiser. “There is a trend of Texas lawyers moving in here.” “Law firms don’t just go away,” added Robert Shuttlesworth, whose Texas plaintiff firm, Williams Bailey, worked with Simes on silicosis cases. “They move their practice.” That’s why Texas firms started taking asbestos litigation out of state years ago. With Congress moving toward putting an end to asbestos litigation, plaintiff lawyers have increasingly turned toward silicosis, a disease caused by inhaling sand particles, but those cases are becoming a tougher sell, too. The final blow may be a state law that, starting in December, requires lung disease plaintiffs to show clear breathing impairments, and not just a diagnosis based on an X-ray. Between that law and the fact that federal and Texas state court cases are combined in joint proceedings that plaintiff attorneys prefer to avoid, many lawyers see greener grass on the other side of the state line. Coon, for example, took over other firms’ offices in Louisiana, Mississippi and Ohio before moving into San Francisco. Such moves went on relatively quietly until February, when federal silicosis proceedings in Texas spawned fraud allegations against Ray Harron, the doctor who told a Texas federal court in February that he didn’t personally examine thousands of people he’d diagnosed. U.S. District Judge Janis Graham Jack said Harron’s testimony was “raising great red flags of fraud.” The admissions by Harron and other lung doctors that they made thousands of silicosis diagnoses on X-rays alone, without interviewing or examining patients or checking their work histories, later led to an investigation by the New York U.S. Attorney’s Office. Harron’s admissions caught the eyes of California lawyers who realized that a set of consolidated complaints with nearly 1,000 plaintiffs filed in California had also relied on Harron’s diagnoses. Those cases, filed by Texas firm McCurdy & McCurdy, were dismissed for procedural reasons, but plaintiffs have been allowed to refile individually. McCurdy decided to withdraw from California, but Coon took over the office and refiled several of the cases in recent weeks. WHEAT FROM CHAFF The concern — among plaintiff lawyers as much as defense attorneys — is that as diagnoses by Harron and other controversial doctors show up in California courts, legitimate silicosis cases will become harder to pursue. Simes — an asbestos specialist who worked with Shuttlesworth to settle about 40 California silicosis suits in 2002 — warns that the move may be a fools-gold rush. “There’s not that much silicosis in California,” she said. That may not stop what Michael Martin, a partner with the Texas firm Maloney, Martin & Mitchell, calls the “entrepreneurial attitude” of some firms. Seeking high volume, easy-to-settle suits, such firms look for cases through untargeted screenings. “They just screen for the sake of screening, just like there are abuses in any system,” he said. Martin currently represents a Southern California man who had a double lung transplant as a result of silica exposure, and said untargeted screenings for silica disease — where firms blanket an area with advertisements and test whoever shows up — create a controversy that is damaging to legitimate cases. According to records provided by Daniel Mulholland, a Mississippi lawyer with Forman Perry Watkins Krutz & Tardy who’s leading defense efforts in the federal silicosis litigation, the McCurdy firm spent more than $1 million on screenings for potential California plaintiffs in 2003 and 2004. And it wasn’t the only Texas firm screening in California at the time. A local defense lawyer said that in 2003, the Texas plaintiff firm Danziger & DeLlano held silicosis and asbestosis screenings at the Alameda Building & Construction Trades Council building. (Partner Paul Danziger abruptly hung up the phone when asked about silicosis, and didn’t return subsequent phone calls.) It may be the success of suits widely recognized as legitimate that is attracting filings some lawyers say are dubious. Many in the defense and plaintiff bars point to the suits filed in 2000 and 2001 by Simes — in conjunction with the Texas plaintiff firm Williams Bailey — as an example of success. Simes’ team sued safety equipment makers on behalf of 41 former diatomaceous-earth miners from Lompoc, Calif. All of those cases have since settled. Suits like Simes’ generate little controversy because they target populations with a known history of silica exposure. “My men were very sick, and some of them have died since we filed suit,” Simes said. And defense attorneys had a hard time challenging the cases because Gary Friedman, a Texas doctor who testifies for defendants as well as plaintiffs, examined and diagnosed the workers. More recently, the Gwilliam firm filed about three dozen suits in Alameda County, Calif., that derived from similarly targeted testing. The Gwilliam cases are refilings of a single consolidated case filed last year. Fisher, the Texas lawyer leading that litigation, said a painters union requested that the firm test some California workers. “Out of 400 or 500 screenings, we had 35 cases,” Fisher said. “I don’t know how much more responsible we can get than that.” Defense lawyers say that this is a reasonable rate of diagnosis among workers with a history of silica exposure but point out that Dominic Gaziano, the West Virginia doctor who made those diagnoses, has raised concerns in other litigation. “It appears that he used a lot of the practices that were criticized” in Texas, said Roy Atwood, a partner in Jones Day’s Dallas office who encountered Gaziano in an Ohio case. “He admitted to being in screenings where the medical history and exposure history were taken by people without medical training.” Gwilliam partner Steven Cavalli is listed as the lead lawyer on the complaints, but he said most of the work has been done by Guy Fisher, a partner with the Texas firm Provost Umphrey. Fisher said the cases are not part of an effort to escape Texas courts. “These cases weren’t filed because of any tort reform that happened in any other state,” he said. But that doesn’t mean other lawyers won’t ride into town, he added. “There might be other firms hoping to capitalize on whatever success we have.” FOLLOWING THE MONEY Clean or questionable, a lot of the recent filings come from lawyers straight out of the Lone Star state, said Gary Nevolo, a San Francisco solo who represents asbestos and silicosis defendants. He saw little silicosis litigation until recently. “It seems that the silicosis cases that are filed have their origins with the Texas law firms,” he said, especially the ones with multiple plaintiffs. Along with McCurdy, Coon and Provost, a host of other Texas firms have been active throughout the state, partnering with local lawyers and seeking new clients. The screenings — rare to California before the Texans arrived — are certain to continue, as California, barring major tort reforms, remains a destination of choice for plaintiff lawyers. “They go where they’re treated well by the courts,” said Eliot Jubelirer, a partner with the San Francisco defense firm Morgenstein & Jubelirer. Texas plaintiff attorney Shuttlesworth was more specific. “If California has good product liability laws, we may focus on helping California plaintiffs,” he said.

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