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In a June 30 order that could impact future mass tort litigation, a federal judge accused screening companies, doctors and plaintiffs lawyers of being willing participants in a “scheme” involving approximately 10,000 plaintiffs diagnosed with silicosis. “In a majority of cases, these diagnoses were more the creation of lawyers than of doctors,” U.S. District Judge Janis Graham Jack of Corpus Christi, Texas, wrote in her 249-page order in In Re Silica Products Liability Litigation. “[I]t is apparent that truth and justice had very little to do with these diagnoses — otherwise more effort would have been devoted to ensuring they were accurate. Instead, these diagnoses were driven neither by health nor justice; they were manufactured for money,” Jack, a former nurse, wrote in the order. Jack has presided over approximately 120 silicosis cases for pretrial matters. 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. However, Jack held that the defendants failed to meet their burden of showing that her court has subject-matter jurisdiction over most of the cases, and she remanded 90 of the cases to the Mississippi courts where they originated. About 20 of the MDL silicosis suits will remain in Jack’s court, and the judge has scheduled an Aug. 22 hearing to determine their status. Her order is a scathing rebuke of the methods used to diagnose the plaintiffs that, according to Jack, did not follow accepted procedures and often involved screening companies acting without the guidance of medical professionals. In the order, Jack noted that the number of silicosis claims filed in Mississippi jumped from 76 in 2001 to 10,642 in 2002. There appears to be a “phantom epidemic” of silicosis in Mississippi unnoticed by everyone except those enmeshed in the legal system, Jack wrote. Silicosis is a lung disease caused by inhaling sand. “I think it’s going to cause plaintiffs lawyers and doctors to rethink the manner in which they generate lawsuits,” Roy Atwood, a partner in Jones Day in Dallas, says of Jack’s order. Atwood represents North Safety Products, one of the defendants named in the suits. Richard Laminack, one of the plaintiffs lawyers involved in the suits, contends that the defendants have done “a masterful job” of attacking the doctors and plaintiffs lawyers to delay the litigation for almost two years. “That’s the real legal crime here,” contends Laminack, a partner in Houston’s O’Quinn, Laminack & Pirtle. Scott Hooper, a principal in Scott Hooper & Associates and the attorney for 600 of the plaintiffs whose claims Jack remanded to Mississippi courts, contends the defendants “wrongly removed” the cases to federal court, thereby denying justice for everyone. “The defendants believed there was a basis for federal court jurisdiction and believe still that when the facts come out fully that they will prove that there was federal jurisdiction,” Atwood says. Jack granted the defendants’ motion for sanctions against O’Quinn, Laminack, which represents about 100 plaintiffs in Alexander v. Air Liquids America Corp., the only case over which the judge found she has jurisdiction. O’Quinn, Laminack filed Alexander in Jack’s court, where the case is still pending. Overall, O’Quinn, Laminack represents more than 2,000 plaintiffs in the litigation, Jack noted in her order. Jack wrote in the order that O’Quinn, Laminack “micromanaged” the diagnostic process and “has multiplied the proceedings unreasonably and vexatiously.” The “clear motivation” for the firm’s micro-management was to “inflate the number of plaintiffs and claims,” Jack wrote. Laminack says his firm took the potential plaintiffs’ occupational and exposure histories and had Dr. Ray Harron, a radiologist, screen each person. The firm also ordered additional medical exams to ensure that the suits it filed were legitimate, he says. “It’s an undisputed fact that silicosis is the most under-diagnosed disease in America,” Laminack says. Although the exact amount of the sanctions against O’Quinn, Laminack has not been determined, Jack estimated in her order that the defendants’ expenses for a three-day Daubert hearing in February totaled (about $825,000, and calculated O’Quinn, Laminack’s share of those expenses to be $8,250. Under the U.S. Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceutical Inc., a hearing must be held to determine if an expert’s testimony is scientifically valid. Laminack says his firm is considering its options with regard to the sanctions. One of the firm’s options is to challenge Jack’s estimate of the defendants’ expenses. NEW RULE BOOK Although Jack’s findings serve only as recommendations to the Mississippi courts to which she remanded the 90 cases, several attorneys and an academician predict the judge’s order will have significant ramifications. Steve Russell, attorney for U.S. Silica Co., another defendant in the suits, says that having a large number of plaintiffs in the procedure allowed Jack to see problems that Russell says have developed in mass tort silica litigation over the past four to five years. Jack’s order will be “cited a lot” in silica and other mass tort litigation, predicts Russell, a partner in Beirne, Maynard & Parsons in Dallas. Bill Shelley of Philadelphia, an attorney who represents insurance companies in silica litigation but who is not involved in any of the cases in Jack’s court, says judges will be more wary of accepting the proposition that claims are legitimate because lawyers have lined up a large number of claimants. Mass tort litigation is still a “super highway” for handling some types of cases, says Shelley, vice chairman of Cozen O’Connor’s insurance group. “But Judge Jack’s opinion signals to silica mass torts that there’s going to be a toll booth you pass through and that toll booth is medical credibility,” he says. Lester Brickman, a professor at the Cardozo School of Law at Yeshiva University in New York City, says in an e-mail that the importance of Jack’s order and the “unprecedented discovery” she permitted is not limited to silica litigation. “The same techniques used by screening enterprises and the law firms they work for have been used to recruit litigants claiming nonmalignant asbestos-related disease,” says Brickman, whose legal specialties include tort reform and legal ethics. Laminack contends that the cart came before the horse in this litigation. “We had a Daubert hearing, for God’s sake, before we named any experts,” he says. The doctors who testified at the hearing are not experts for his clients, Laminack says. According to Jack’s order, the Daubert hearing was potentially relevant in determining her court’s jurisdiction. The defendants’ motion for sanctions against the plaintiffs lawyers — with the exception of two liaison attorneys — also necessitated the hearing, Jack wrote. Houston attorney Mike Martin, who has handled silica cases for the past 20 years but is not involved in the federal litigation, says he doesn’t expect Jack’s order to have much of an impact in Texas. What will have an impact is S.B. 15, which takes effect on Sept. 1 and sets new requirements for plaintiffs who bring personal-injury or wrongful-death suits for exposure to asbestos or silica, says Martin, a partner in Houston’s Maloney, Martin & Mitchell. The new law requires a plaintiff to file a medical criteria report and to show impairment as a result of the exposure. Notes Martin, “There’s just a whole new rule book in play here.”

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