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A U.S. House panel that has been investigating thousands of silicosis claims — claims that were based on diagnoses that a federal judge in Texas questioned last year — is turning its attention to the conduct of the lawyers who filed many of those suits. On Feb. 17, the House Energy and Commerce Committee sent letters addressed to the managing partners at 13 firms — including seven in Texas — to request detailed information on the firms’ dealings with the doctors and medical screening companies that diagnosed plaintiffs in the suits with silicosis, a lung-scarring disease caused by inhaling silica dust. However, the congressional committee’s request for information isn’t the only problem facing one of the Texas firms. Defendants in two silicosis suits filed in Mississippi are seeking $330,000 in sanctions against Waco’s Campbell, Cherry, Harrison, Davis & Dove for its alleged pursuit of “baseless” claims filed on behalf of about 4,200 plaintiffs against more than 130 companies. The firm filed the suits in 2003. In December 2005, the defendants in Prince, et al. v. Pearl River Sand & Gravel Co. Inc., et al. and Baldwin, et al. v. Graco Enterprises Inc., et al. filed the motions for sanctions against Campbell, Cherry in the Circuit Court of Noxubee County, Miss. In briefs filed Feb. 21 in Prince and Baldwin, the defendants allege that Campbell, Cherry filed the suits without substantial justification. “Indeed, it is hard to imagine a worse example of a frivolous filing or counsel more in need of sanctioning,” the defendants allege in their briefs in Prince and Baldwin. Daniel Mulholland, an associate with the Jackson, Miss., firm of Forman Perry Watkins Krutz & Tardy, which filed the motions for sanctions on behalf of the defendants, says the circuit court has not yet set a hearing on the motions. Ridgeland, Miss., attorney Robert G. Anderson, who is defending Campbell, Cherry against the sanctions motions, says it’s the firm’s position that it didn’t do anything improper and that it had probable cause for filing the suits. “We believe these motions are without merit,” says Anderson, managing attorney at McCumber, Inclan, Daniels, Valdez, Buntz & Ferrera. The sanctions motions and the congressional committee’s investigation stem from U.S. District Judge Janis Graham Jack’s findings in the federal multidistrict litigation on silica. Jack, a judge in the Corpus Christi division of the Southern District of Texas, presided over pretrial matters related to about 120 silicosis suits involving some 10,000 plaintiffs — including the approximately 4,200 plaintiffs that Campbell, Cherry represented. The federal Judicial Panel on Multidistrict Litigation consolidated the suits — most of them from Mississippi — in 2003 and assigned Jack to oversee pretrial discovery and other matters. In her June 2005 order in In Re: Silica Litigation, Jack accused doctors, screening companies and the plaintiffs’ lawyers of being involved in a “scheme” involving the diagnoses of the plaintiffs. “In a majority of cases, these diagnoses were more the creation of lawyers than of doctors,” Jack wrote in the order. Jack remanded a majority of the cases that she was overseeing to state courts in Mississippi. Campbell, Cherry asserts in its reply brief to the sanctions motions that neither Jack nor the defendants in Prince and Baldwin identified a single plaintiff who does not suffer from silicosis. The firm further maintains in the brief that neither Jack nor the defendants identified a plaintiff whom Campbell, Cherry had no reasonable basis to believe had silicosis. Besides Campbell, Cherry, the House Energy and Commerce Committee sent letters to O’Quinn, Laminack & Pirtle, Scott Hooper & Associates and the Williams Bailey Law Firm, all of Houston; the Law Office of Jim Zadeh in Fort Worth; and Snapka, Turman & Waterhouse and the Watts Law Firm, both in Corpus Christi. According to the letters, the committee has been investigating the silicosis claims since August 2005. As noted in the letters, the committee previously sent letters to 16 doctors and screening companies to obtain information about their roles in diagnosing thousands of people with silicosis in support of the personal-injury suits. Now the committee wants to know more about the firms’ involvement in the silicosis diagnoses. U.S. Rep. Joe Barton, R-Texas, chairman of the House Energy and Commerce Committee, and U.S. Rep. E. Whitfield, R-Kentucky, chairman of the Oversight and Investigations Subcommittee, expressed concern about the silicosis suits in the Feb. 17 letters to the firms. The two lawmakers wrote in the letters: “We are concerned that there appears to be no meaningful doctor-patient relationship established by the screening process at issue. This raises a troubling health issue when the screening process identifies serious medical conditions but the medical professionals involved disavow responsibility for informing the patient of the finding, explaining its significance and discussing follow-up and treatment options.” One of the questions posed in the committee’s letters to the firms is: “Have you ever informed a client or prospective client for the first time, of any tests or findings indicating they had silicosis?” “It is hard to imagine circumstances where leaving such tasks to lawyers could be considered acceptable medical practice or serving the interests of public health. The health benefit of even a competent screening may well be negated by the lack of medical follow-up,” Barton and Whitfield wrote in the letters. Scott A. Hooper, principal in Scott Hooper & Associates, says his firm did not use a medical screening company. Hooper, who served as Texas counsel for about 600 plaintiffs in six suits that were in Jack’s court, says a National Institute for Occupational Safety and Health-certified B-reader — a physician who reads X-rays for lung diseases, such as asbestosis or silicosis — diagnosed those plaintiffs. But Hooper is concerned about the House committee’s focus on whether experts whom lawyers retain in litigation have a physician-patient relationship. If such a relationship is created, then all experts who review medical records of litigants, including doctors who serve as experts in medical-malpractice suits, would be held to have a physician-patient relationship, he says. Steve Russell, a partner in Beirne, Maynard & Parsons in Dallas, says proponents of S.B. 15 — the asbestos and silica reform measure that the Texas Legislature passed in 2005 — had discussed including a provision in the bill that would have required a physician to verify a physician-patient relationship existed if a doctor examined a patient for litigation purposes. But the Legislature did not include that provision in the bill, says Russell, who defends companies in silica-related litigation. In 1999, the 4th U.S. Circuit Court of Appeals held in Adams v. Harron, et al. that a woman had no cause of action against two physicians hired by a firm to examine X-rays of potential plaintiffs in asbestos litigation. According to the 4th Circuit’s unpublished opinion in Adams, one of the doctors did not diagnose the man with cancer after reading his X-rays, and the other physician notified the firm that the man might have cancer and should see his family doctor, but the firm didn’t give the information to the man, who later died of lung cancer. The 4th Circuit held that the widow could not maintain an action for medical malpractice against the doctors because there was no physician-patient relationship. Russell says he believes there is a physician-patient relationship when a doctor examines a person and makes a diagnosis for litigation purposes. But he says the relationship issue is a legal question that the House committee should look at as part of its investigation. Roy Atwood, another lawyer who defends companies in silica suits, applauds the committee’s decision to direct firms to answer questions about their arrangements with doctors and screening companies. “I think they need to get to the bottom of what is truly going on here,” says Atwood, a partner in Jones Day in Dallas. The committee set a March 3 deadline for the firms to respond to its questions. One attorney says the scope of the committee’s request is so broad that his firm may not be able to fulfill it within the time provided. “If I devoted all of my time for the next two weeks solely to this request, I don’t believe I could find all the information they’ve requested,” says John Fabry, as associate with the Williams Bailey Law Firm in Houston. Fabry, who represents five plaintiffs in a silicosis suit that Jack transferred to the U.S. District Court for the Eastern District of Missouri, also says his firm is researching its responsibilities with reference to the request to determine if responding creates conflicts with the firm’s duty to its clients regarding confidentiality and attorney-client privilege. Kevin Schweers, spokesman for the committee, says the committee can use its subpoena power to require firms to provide information. Schweers says the committee previously issued subpoenas to four doctors who refused to respond to the committee’s inquiry. Mikal Watts, principal in the Watts Law Firm, says the committee may have erred when it sent letters to his firm and to Snapka, Turman & Waterhouse. “Neither of our firms was involved in the recruitment of the cases or the evaluation of the cases,” Watts says. “We were simply liaison counsel appointed by Judge Jack.” Representatives for Campbell, Cherry, Harrison, Davis & Dove, O’Quinn, Laminack & Pirtle, the Law Office of Jim Zadeh and Snapka, Turman & Waterhouse each did not return two telephone calls before presstime Feb. 23. The committee also sent letters to state health officers in Texas, Mississippi, Alabama, Florida, Pennsylvania and Ohio, seeking information about state regulations for diagnostic testing conducted without a licensed physician’s prior authorization.

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