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A recent opinion by the federal judge presiding over multidistrict silica litigation in Corpus Christi, Texas, has punched a hole in what had been shaping up as the Next Big Thing in mass tort litigation. The question now is if the hole is big enough to sink it entirely. The defense bar has welcomed what is in essence U.S. District Judge Janis Graham Jack’s advisory opinion to the remand courts to take a close look at silica cases for bogus claims — something it says should have happened in asbestos litigation. In re Silica Products Liability Litigation, No. 03md1553 (S.D. Texas). Plaintiffs lawyers, however, say their whole bar should not be tarred by some colleagues’ mistakes. Jack sent the bulk of the cases — 90 cases totaling about 10,000 plaintiffs-back to state courts in 19 Mississippi counties, finding that she did not have subject-matter jurisdiction. The judge also had harsh words for the dozen doctors “affiliated with a handful of law firms and mobile X-ray screening companies” who diagnosed silicosis in more than 9,000 plaintiffs. “If nothing else, this MDL [multidistrict litigation] illustrates the mess that results when lawyers practice medicine and doctors practice law,” Jack said. She threw out two doctors’ entire testimony in a case over which she retained jurisdiction and recommended a $825,000 sanction against O’Quinn, Laminack & Pirtle, a Houston firm that filed the 100-plaintiff case Alexander v. Air Liquide America Corp., No. 03cv533 (S.D. Texas). Richard N. Laminack of O’Quinn, Laminack & Pirtle could not be reached for comment. William P. Shelley, vice chairman of Philadelphia-based Cozen O’Connor’s national insurance litigation department, which represents insurers in mass tort litigation, said Jack’s opinion is “plainly not” restricted to silica litigation, nor “viewed by defendants or their insurers as being an isolated incident.” The silica MDL is the first case involving mass tort claims “where the court got into really substantial detail to understand the underbelly of the claims process � instead of just throwing up [its] hands and saying why don’t you people just settle these cases,” Shelley said. And rather than creating case management schemes to handle mass tort claims, “courts should make plaintiffs show up with threshold proof-medical information to provide them bona fides in terms of the legitimacy of claims — before they start down the road of establishing systems to resolve them,” he said. But Joseph Rice, a name partner in Motley Rice of Mt. Pleasant, S.C., a national mass tort plaintiffs’ practice, said he has no involvement in nor specific knowledge of the case, but that any problems with the silica MDL should not automatically attach to all silica — and, by extension, asbestos — litigation. Rice said it is his “general understanding” that the defense “coordinated an effort” to select plaintiffs whom screeners had diagnosed with both asbestosis and silicosis. “They had a hearing and the scope of the hearing went way beyond what anyone expected going in, which caught witnesses unprepared in unknown territory,” Rice said. “It’s unfortunate that some attorneys in this litigation made some mistakes they shouldn’t have made,” Rice said, but to say that these mistakes impugn 20 years of asbestos litigation “is just unjustified.” $1 BILLION ‘CHEAP’ Lester Brickman, a professor at the Benjamin N. Cardozo School of Law of Yeshiva University, pointed out that at an early stage in the silica litigation “one of the plaintiffs lawyers said he would settle the cases for $1 billion and that would be cheap at the price. “But for Judge Jack’s opinion and the extensive discovery she allowed — I would say ‘unprecedented’ — it would not be out of the question that these claims could have generated hundreds of millions of dollars in settlements.” Jack had ruled early in the case that the defense was entitled to information about screening doctors’ diagnoses if they had provided the basis for filing suit. Her most recent ruling concerned only the reliability of the medical evidence using the analysis of Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993), to determine whether the evidence was admissible under Federal Rule of Evidence 702. However, Jack’s opinion, which is full of comments indicating that most of the claims appeared to be “manufactured for money,” is to Brickman’s mind “like saying these claims are fraudulent.”

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