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The mass tort plaintiffs’ bar has faced an accelerated succession of challenges to silica cases since last summer, when a federal judge in Texas questioned the legitimacy of 10,000 cases originally filed in Mississippi and other states. U.S. District Judge Janis Graham Jack’s view that most of the silica claims — all of which she remanded to state court –were “manufactured for money” by plaintiffs lawyers, doctors and screening companies has inspired prosecutorial and legislative interest in silica, asbestos and fen-phen mass torts. More than half the cases Jack remanded already have been dismissed. Recently, the Jackson, Miss.-based plaintiffs firm Campbell Cherry Harrison Davis Dove consented to dismiss 4,202 of its silica cases remanded to Mississippi state court — 3,860 Alabama plaintiffs, 300 Mississippi plaintiffs and the remainder from other states, with other plaintiffs firms reportedly following suit. In addition, Jack’s comments in In re Silica Products Liability Litigation, No. 03md1553 (S.D. Texas), have renewed efforts by traditional asbestos defendants to audit bankruptcy claims and refuse to accept claims originating from sources identified as questionable in discovery. A federal grand jury in New York and two Congressional committees are looking into plaintiffs’ conduct in silica litigation, and federal prosecutors also are reportedly investigating three asbestos plaintiffs firms involved in the bankruptcy case of G-I Holdings Inc., an asbestos defendant holding company. Claims Resolution Management Corp. — which administers claims against insulation maker Johns Manville Corp. — and two other asbestos settlement trusts announced that they were suspending the acceptance of asbestos claims based on reports prepared by doctors and screening facilities identified in Jack’s opinion. MEDICAL CRITERIA HURDLES An avalanche of cases filed by as yet unimpaired workers inspired Ohio, Georgia, Florida and Texas to pass medical criteria laws that require asbestos claimants to show actual impairment before they sue. Similar legislation is pending in Pennsylvania. An Ohio judge recently heard lawyers for asbestos defendant Owens-Illinois Inc., argue that Ohio’s new law should apply to pending claims filed by Baron & Budd of Dallas. In re All Baron & Budd Asbestos Cases, Special Docket 073958 (Cuyahoga Co., Ohio, Ct. C.P.). Fred Krutz of Forman Perry Watkins Krutz & Tardy of Jackson, a lead defense lawyer in the federal silica multidistrict litigation (MDL), said that the defense bar is using Jack’s opinion to “sort of tar and feather” the plaintiffs’ bar in mass-screened cases around the country. “We want to export what we did in Corpus Christi” to the federal asbestos MDL in Philadelphia, Krutz said, adding that defense lawyers already have applied Jack’s analysis in motions to dismiss mass tort cases elsewhere. U.S. Silica Co. of Berkeley Springs, W.Va., and 16 other silica defendants had asked Judge Norman Ackerman in Philadelphia to dismiss all 58 silica cases pending on the court’s special silica docket. In re Silica PCCP, March Term 2003 No. 0001 (Philadelphia Co., Pa., Ct. C.P.) Citing Jack’s order, Nathan R. Schachtman of Newark, N.J.-based McCarter & English’s Philadelphia office, a lawyer for U.S. Silica in the Philadelphia case, told the court that “plaintiffs counsel chose to build its Pennsylvania silica practice on the same ‘assembly line’ model for diagnoses” that Jack condemned. In reviewing a large number of cases together, “Judge Jack was able to ascertain a pattern of overreaching,” Schachtman said. “The lessons of Judge Jack’s courtroom is we’ve got to do that.” The Philadelphia cases were filed by Provost Umphrey of Beaumont, Texas, which had silica cases before Jack. If U.S. Silica does not succeed in this motion, Schachtman said he will file motions challenging the science behind the claims. Jill S. Chatelain of Provost Umphrey, the lead plaintiffs lawyer in the Philadelphia state court cases, would say only that “the response is due Jan. 3, and we’re working on it.” Frederick M. Baron, a principal of Baron & Budd, a national plaintiffs mass tort practice, said that the defense bar is “using Judge Jack’s opinion as a battle cry to see if they can influence public opinion” in a concerted effort to avoid liability by attacking “the entire system that gives injured people the ability to access justice.”

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