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Testing for Silicosis Comes Under Scrutiny in Congress By Julie Creswell Once seen as the next asbestos or tobacco for class-action lawyers, silica and the lawsuits related to it have instead become a messy legal morass for the doctors, X-ray screening companies and plaintiff law firms that have wound up as the subjects of numerous investigations. Now, Congress is getting involved. Today, four doctors and the chief executive of an X-ray screening company are scheduled to appear before a Congressional subcommittee to answer questions about how patients were screened and how it was determined they had silicosis, a disabling and often fatal lung disease that comes from inhaling silica dust. Silica is a purified sand used as a cleaning abrasive in sandblasting and in making glass, and other materials. The intensifying investigations into the validity of silicosis claims are having a spillover effect in litigation involving asbestos, and other suspected hazards, with defense lawyers looking for doctors who repeatedly turn up in diagnosing fairly rare occupational-related diseases. As a result of this new line of inquiry, several thousand silica cases have been dismissed, doctors have been subpoenaed for their records, a federal grand jury has been convened in Manhattan to investigate and lawmakers are looking into whether stricter guidelines are needed on the screening of occupational diseases. "For now, the hearings are primarily investigative, but obviously lawmakers are wondering what federal role may be taken here," said Edward F. Sherman, dean and professor of law at Tulane Law School, who is scheduled to speak at the hearings. The aggressive stances against silica and other industrial-related claims are the fallout of a decision last June by Judge Janis Graham Jack of the Federal District Court in Corpus Christi, Tex., who questioned the validity of several thousand silica claims that were before her. Because of silica's widespread use, some plaintiffs' lawyers viewed it as the source of the next big mass tort. But defendant law firms began looking into whether plaintiffs in the Texas silica lawsuit had previously filed claims against trusts set up to compensate victims injured by asbestos, a cancer-causing flame retardant. What they found was that about 65 percent of the plaintiffs in the Corpus Christi federal lawsuit had also filed claims for asbestos. While it is medically possible, it is rare for a single person to suffer injuries as a result of exposure to both asbestos and silica. For instance, in at least one case, Dr. James Ballard of Birmingham, Ala., diagnosed asbestosis in a woman in 2000, but then in 2004, looking at the same X-ray, concluded she had a silica-related disease. "Dr. Ballard's readings were entirely proper with regard to all aspects of his work," said Frederick P. Hafetz, a lawyer representing Dr. Ballard. Yet in a harshly worded decision, Judge Jack, a former nurse, declared that many of the medical findings in the silicosis lawsuit before her were worthless and that they had been "manufactured for money." She remanded the lawsuit to state courts. Since then, more than half of those 10,000 silica claims have been dismissed — most of them voluntarily by the law firms that filed them. In mid-December, a plaintiffs' law firm, Campbell Cherry Harrison Davis Dove, agreed to dismiss 4,200 cases that Judge Jack had remanded to the Mississippi state courts. A number of judges are now using Judge Jack's decision in weighing silica-related claims. In January, a judge in Broward Circuit Court in Florida became wary of the silica claims before him after concluding that a number of the doctors and screening companies involved in the Judge Jack silica claims also appeared in his cases. The judge, David H. Krathen, pledged to "ride herd" on dubious silica claims, and said the N&M screening company of Mississippi "reeks from fraud." A call to Luke Dove, the lawyer for Heath Mason, the owner and operator of N&M, was not returned. "I think silicosis is a dying mass tort," said Daniel Mulholland, a lawyer at Forman Perry Watkins Krutz & Tardy of Jackson, Miss., a lead defense law firm in the silica litigation. Others are taking even closer looks at asbestos claims. The Claims Resolution Management Corporation, which overseas asbestos claims against the insulation maker Johns Manville as well as other asbestos trusts, announced in the wake of Judge Jack's decision that it would no longer accept claims based on diagnoses and reports from the doctors and screening operations identified in her opinion. In recently updated data for federal asbestos litigation, the Manville Trust disclosed that on Nov. 21, 1994, Dr. Ray A. Harron diagnosed asbestos-related diseases in 515 people. That meant he had to read X-rays and make diagnoses at a rate of more than one a minute if he worked an eight-hour day. On June 20, 2002, Dr. Harron diagnosed 424 cases of asbestos-related injuries in a single day. In all, Dr. Harron wrote reports in support of 88,258 asbestos claims submitted to the Manville Trust. "The fact that a number of letters are sent out on one day does not necessarily mean that all of the diagnoses happened that day," said Lawrence Goldman, a lawyer for Dr. Harron. "Do you think Yale or Harvard makes the entire decision about its freshman class on March 10 when it sends out all of the acceptances?" Dr. Harron is expected to appear before a subcommittee of the House Energy and Commerce Committee today as is his son, Dr. Andrew Harron. Other doctors scheduled to appear are Dr. Ballard and Dr. George Martindale. Mr. Mason of the screening company N&M is also scheduled to appear. The committee is interested
in determining, among other things, whether proper state permits are
being obtained by law firms that sponsor the screening vans in
restaurant and motel parking lots that offer X-rays to look for
silicosis and other diseases. It is also interested in learning what
responsibilities the doctors who read X-rays and diagnose a
life-threatening disease have in terms of follow-up care and patient
relationships. The Tort Wars, at a Turning Point By Jonathan D. Glater For the lawyers who file lawsuits against corporations, it looked like the next big thing - the next fen-phen, asbestos or even tobacco, the mother of all jackpots. Like the lawsuits involving asbestos, the fire-retardant material that when inhaled can cause a horrible lung cancer, the new suits involved a substance that under certain circumstances could harm the lungs: silica, a purified sand used as a cleaning abrasive as well as in making glass, paint, ceramics and other materials. Silica dust, when inhaled, can lodge in the lungs, causing silicosis, a disabling and often fatal lung disease. For the companies facing litigation, it looked like a repeat nightmare. After all, settling asbestos claims - more than 700,000 have been filed over the last 30 years - has cost more than $70 billion, according to the RAND Corporation. Of that amount, RAND estimates that nearly one- third has gone to plaintiffs' lawyers. But silica cases have turned the conventional wisdom of asbestos litigation on its head. Instead of settling early, paying money into a compensation fund and using bankruptcy filings to put the liability firmly into the past, companies facing silica suits fought back - and won a crucial victory that is already being copied by other lawyers fighting class-action lawsuits. By playing courtroom hardball, forcing lawyers for claimants to produce evidence that their clients had silicosis symptoms and deserved compensation, a small group of defense lawyers may have just changed the rules of so-called mass tort litigation. Vindication of the strategy, which companies and their insurers initially viewed as very risky, came in June in the form of a harshly worded, 249-page decision by United States District Judge Janis Graham Jack in Corpus Christi, Tex. Judge Jack not only called for sanctions on one of the plaintiffs'-side law firms, but she also slammed the whole process that led to the claims landing in court in the first place. The medical findings underlying the claims, based on X-ray screenings paid for by lawyers looking for potential clients, were worthless, she wrote. "It 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," Judge Jack wrote. "These diagnoses were driven by neither health nor justice: they were manufactured for money. The record does not reveal who originally devised this scheme, but it is clear that the lawyers, doctors and screening companies were all willing participants." Although Judge Jack's decision did not end the litigation - it sent many cases back to the state courts where they had been filed - it was a landmark event, with a clear lesson for companies everywhere that are under attack by trial lawyers. "Based on that opinion, defendants really need to go back to square one and fight," said Sheila L. Birnbaum, a partner at Skadden Arps Slate Meagher & Flom in New York who defends companies against mass tort claims but was not involved in the silica cases. "This decision should be a signal." LEAD lawyers for the claimants in the silica cases did not return calls last week seeking comment for this article. For the defense team, the road to Judge Jack's decision was not easy. But enough executives were angry enough and suspicious enough about the claims that a group of companies agreed to work together and share some of the risks and costs of litigation. "I felt like the system was broken, and you could go along with the status quo and let it stay broken or you could do something about it," said Suzy McDonald, a vice president at Custom Aggregates and Grinding Inc., which was one of the defendants in the case before Judge Jack. Custom Aggregates, based in Picayune, Miss., previously sold silica to the oil and shipbuilding industries and has been hit with thousands of silicosis claims from people contending that they had worked with silica provided by the company. According to the National Institute of Occupational Safety and Health, the number of deaths caused by silicosis has fallen steadily for decades, to 187 in 1999 from 1,157 in 1968. The trend in lawsuits, though, has followed a different path. In Mississippi alone, according to an internal database kept by Forman Perry Watkins Krutz & Tardy, a 120-lawyer firm in Jackson that coordinated the defense of about 30 companies facing silicosis claims, there were 226 claims in 1999, 40 in 2000, 76 in 2001 and more than 10,000 in 2002 - the year before a change in state law governing civil lawsuits took effect. The first thing that the defense lawyers sought was to have the cases transferred to federal court from state court. Mississippi state courts had a reputation for treating corporate defendants in class-action cases harshly, not just by imposing huge jury verdicts, but also by allowing certain procedural moves that favored plaintiffs' lawyers - like permitting them to combine thousands of claims by people in the state with those of people outside the state. Combining claims is a powerful tactic for plaintiffs' lawyers, said Fred Krutz, a lawyer at Forman Perry. "The strategy was, you would get a bellwether plaintiff, a plaintiff with a really good case, and join them with 100 lousy plaintiffs, file one lawsuit and then hold the defendants over a barrel," he said. If a company refused to settle the weak claims, he said, a plaintiffs' lawyer could refuse to settle the strong claim. But Mr. Krutz and his colleagues had a plan to turn the sheer volume of claims to their advantage, by putting them all into one courthouse, before one judge. Once they had the cases transferred to federal court, they submitted a motion to have the claims consolidated. The motion was granted in early fall of 2003, and roughly 10,000 silica claims ended up before Judge Jack, a nurse-turned-lawyer who was nominated to the bench by President Bill Clinton in 1993. "If we could get thousands of plaintiffs in one court and have one judge get information on all of them," Mr. Krutz said, "you could put the puzzle together." Not all the companies that his firm ended up representing fully endorsed the strategy. Some insurance company executives, for example, worried that fighting claims would just increase the size of an eventual settlement. Ms. McDonald of Custom Aggregates recalled difficult conversations about the best way to cope with the thousands of claims the company suddenly found itself facing by the end of 2002. "Historically, insurance companies have offered relatively small settlements to make these claims go away," said Ms. McDonald, the daughter of the company's owner, referring to past industry practices. "My thinking was, if you offer a couple of thousand dollars and you've got 20,000 people suing you, that takes care of those 20,000, but the lawyers are going to say, 'Hey, let's go sign up another 20,000.' It just never goes away." With roughly 10,000 silica claims in one courtroom in Corpus Christi by the end of 2003, the next step was to persuade Judge Jack to let the defendants gather information on the basis of each claim. On Feb. 5, 2004, she did exactly that, giving each plaintiff two months to fill out a form indicating his or her employment history, illness and the names of doctors seen. The claimants were also asked to provide their Social Security numbers on the forms. This information turned out to be crucial. Forman Perry kept a database of people who had filed asbestos claims; the database was built over years of representing companies battling asbestos litigation. And as they loaded the information from the silica claimants' forms, lawyers found that some of these claimants had also filed asbestos claims. "They would show up in our internal information system as asbestos victims," recalled Daniel J. Mulholland, a lawyer at Forman Perry who worked with Mr. Krutz. The question was: Could these people have had both diseases? That would be possible, and certified "B readers" - people trained to read X-rays to evaluate signs of asbestosis, silicosis or other lung-related diseases - could reach different conclusions. One solution would be to hire independent experts to review the X-rays of each silica claimant who had already filed an asbestos claim and thus figure out if the person had both silicosis and asbestosis, just one of them or neither. Mr. Mulholland pulled the medical records from the asbestos claims and noticed something else: in hundreds of cases, the same doctor who had diagnosed asbestosis in a claimant went on to diagnose silicosis in the same person a few years later. Although not impossible, it is highly unlikely that someone developed signs of a second disease in the period between diagnoses, and it would be reasonable to expect a doctor reviewing the X-rays to note signs of both diseases if they were present. The doctors did not do that; Mr. Mulholland concluded that they were "flip flops." "I was able to document 400 examples of that just based on our firm's files," Mr. Mulholland said, but he needed more data to find out whether more silica claimants had previously filed asbestos claims. "The next question was: How do I get more of the asbestos reference points?" There is one institution that may have more data on asbestos claims than any other, and that is the Manville Personal Injury Settlement Trust. It was set up in 1988 to pay people who brought asbestos claims against Johns Manville, the building materials company now owned by Berkshire Hathaway. Since it was created, the Manville Trust has paid out $3.3 billion to resolve 655,096 claims. Perhaps, Mr. Mulholland thought, the trust could provide a list of the Social Security numbers of claimants it had paid, and then Forman Perry could compare them with the Social Security numbers of silica claimants. Executives at the companies battling the silica claims, many of them students of asbestos litigation, were skittish about putting all of their eggs into one courtroom. Working through the National Industrial Sand Association, a trade group, they tried "to expose these lawsuits for what they are: a manufactured legal epidemic, not a medical epidemic," said Mark Ellis, president of the association, in a statement. One marketing firm, Charles Ryan Associates of Charleston, W. Va., proposed a two-year campaign that would try to expose potential fraud in silica claims while also "telling the positive story of a better life through responsible uses of sand," according to a document it prepared for the industry group. The association eventually gave the job to another company, Porter Novelli. IN the end, it would be depositions, not press releases, that would prove most effective. Armed with the evidence of multiple claims by the same person, first seeking compensation for an asbestos-related injury and then for a silica-related injury, Mr. Krutz and Mr. Mulholland asked Judge Jack if they could question one of the doctors, George H. Martindale, of Mobile, Ala. Dr. Martindale had diagnosed more than 3,600 people with silicosis, according to court documents, and Mr. Mulholland had found that some of them had previously submitted asbestos claims. The deposition, on Oct. 29, 2004, went better than the defense lawyers could have hoped. At one point, Mr. Mulholland asked: "Would it be fair to say that this appears to state a clinical diagnosis of silicosis when, in fact, that's not what you did?" Dr. Martindale answered: "Correct." Under the questioning, Dr. Martindale said he never talked to any of the claimants whose X-rays he read, either to learn their work histories or to notify them if he determined that they suffered from silicosis. Pushing further, Mr. Mulholland asked Dr. Martindale whether he stood by the diagnoses. Dr. Martindale responded, "If another physician hadn't established a diagnosis of silicosis/asbestosis, I would withdraw that. I would - I would say that I am personally not making a diagnosis of asbestosis or silicosis." Dr. Martindale could not be reached for comment. The deposition opened the door to questioning the other doctors whose diagnoses supported nearly all of the silica claims in the federal proceeding in Corpus Christi. It also appeared to irritate Judge Jack. At a hearing last December, she said the doctor's withdrawal of a diagnosis was "a fraudulent problem," so she scheduled an unusual three-day hearing in February at which lawyers would be able to question all the doctors whose diagnoses supported the silica claims. In January, the claimant information from the Manville Trust started to arrive, prompting a frenzy to load the data into Forman Perry's database. Mr. Mulholland remembered sitting in his office on the last Sunday of the month, working with the data and coming to realize that more than half of the claimants in the silica litigation had previously filed asbestos claims with the trust. "I was just blown away," Mr. Mulholland said. He had the critical evidence to challenge the diagnosing doctors. The hearing was a watershed. Several doctors on the witness stand withdrew their diagnoses and said they had never interviewed the people whose X-rays, or in some cases just reports on their X-rays, they had analyzed. In some cases, doctors could not explain how they diagnosed asbestosis in a claimant at one time and silicosis at a later date, even when looking at the same X- ray. It was a rare courtroom moment, one usually reserved for novels or movies. Mr. Mulholland recalled that when he asked one doctor about two differing diagnoses based on the same X-ray, the doctor, Ray A. Harron, explained the discrepancy by saying he made the diagnoses on "widely separated dates." When Dr. Harron was asked about another case of a person who first received a diagnosis of one disease, and then of the other, Judge Jack interrupted the questioning to ask what happened to the first illness. "Well," she said, "where did it go?" Dr. Harron responded, "Like I say, I don't know." Shortly after that, Dr. Harron cut his testimony short, citing the need to retain his own lawyer. He did not return calls seeking comment on the silica proceedings. In a deposition last year, Dr. Harron said he charged up to $125 for each case he reviewed; the amount was not affected by his diagnosis. If he had to travel to make a diagnosis, he said he might set a minimum fee to cover his travel costs and his time. Diagnoses from Dr. Harron and one other doctor accounted for about 90 percent of the silica diagnoses, and they had previously diagnosed thousands of people - some of them the same people - with asbestosis. If their claims rested on shaky ground, then the defense team had successfully undermined all the claims their clients faced. "I've been in a lot of courtrooms and had some good days and some bad days," Mr. Krutz said, recalling the three days of hearings. "That might be the most dramatic thing I've heard in court." After word spread of what happened at the hearing in February, he and Mr. Mulholland became celebrities - at least in the legal world. Mr. Krutz spoke at a symposium organized by the Brookings Institution. Mr. Mulholland addressed lawmakers in Texas and Florida, and both men were featured in newspaper articles, on the radio and on television. Aftershocks from the February hearing are still spreading. The Manville Trust has barred payment of claims based on diagnoses by any of nine doctors involved in the silica litigation. One of those doctors, Dr. Harron, was responsible for 53,724 asbestos claims, more than any other doctor and nearly 8 percent of the 691,910 asbestos claims that the trust has received, according to the trust. Many of those were paid long ago. FEDERAL prosecutors in New York have opened an investigation into the claims and have issued subpoenas for documents to the Manville Trust, to a screening company that took X-rays of silica claimants and to others whose identities are still unknown. (A spokeswoman for the United States attorney's office declined to comment on the investigation.) And in asbestos lawsuits that are still being heard, defense lawyers for companies or their insurers are using the Corpus Christi revelations to attack settlement agreements to compensate claimants. Last month, lawyers for W. R. Grace & Company, a building materials maker that is in Chapter 11 bankruptcy proceedings because of asbestos claims against it, asked a Delaware bankruptcy court to let them investigate the lawyers involved in filing those claims. Grace's lawyers cited Judge Jack's decision. At some level, the outcome of the silica litigation raises the question of why defense lawyers were not more successful in challenging the validity of claims in the past. While lawyers point to the cost of investigating and challenging claims, it is also true that defense and bankruptcy lawyers have earned a lot of money handling claims the way they have been handled, paying off plaintiffs through years of Chapter 11 proceedings. And it is also true that there are people who have been made sick by their exposure to asbestos and silica. Lawyers who represent people suffering from chronic and often incurable cancers as a result of exposure to either substance now worry that companies will try to avoid making payments even to deserving, genuinely sick claimants. Companies could try to persuade a court to disallow claims or could seek legislation to block claims, in either case arguing that there was no way to cope with potential fraud. "There's no question that the defendants will definitely use it as their big public relations push, probably this fall and into next year, as a rationale for the asbestos bill," said Peter A. Kraus, a lawyer at Waters & Kraus in Dallas, referring to draft legislation, currently working its way through Congress, that is intended to limit asbestos-related litigation. Mr. Kraus's clients all suffer from a cancer caused by exposure to asbestos. "We're certainly concerned about them using that as the Trojan horse to wipe out dust disease litigation." The problem, as Judge Jack observed in her decision this summer, is that all this legal maneuvering has done next to nothing to get compensation to people who are actually sick as a result of exposure to silica - and there are such people. "Silicosis is a continuing tragedy in our country," Judge Jack wrote. "Those suffering the effects of the disease do not need an inflated number of claims to lend gravitas to their situation. Their tragedy stands on its own."
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A Feast
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