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ORDER IN THE COURT
A Texas judge blows the lid off Trial Lawyers, Inc.'s secret asbestos litigation
scam.
Fortune magazine noted that by 1999, “the odor around asbestosis
diagnosis had been so foul for so long” that it was being called “a
massively fraudulent enterprise” in law journals.[107]
But while professors such as Lester Brickman documented abuses, few acted on
them—until February 2005, when U.S. District Court Judge Janis Graham Jack
presided over an extraordinary three-day hearing in Corpus Christi, Texas, in
a 10,000-claim multidistrict-litigation docket[108] involving
silicosis “victims.”
How did silicosis plaintiffs unwittingly manage to unmask the asbestos scam?
The Jackson, Mississippi, law firm Forman Perry Watkins Krutz & Tardy, after
three decades of asbestos litigation defense work, was now facing a new flood
of silicosis claims. Software developed by Forman Perry’s computer consultant
discovered that thousands of the new silicosis claimants were asbestos “retreads”—i.e.,
they had previously been plaintiffs seeking compensation for asbestosis and
were now “double-dipping” in hopes of recovery for silica-induced
lung impairment. Since the likelihood that these individuals were seriously
impaired by exposure to both asbestos and silica particles was very low,[109]
Forman Perry began to investigate.
Judge Jack’s own growing concerns led her to allow discovery and comparative
analysis of past medical records of asbestosis and current records of silicosis
with the hope of determining the underlying reliability of screening-clinic
X-rays, breathing tests, and diagnoses by physicians at the heart of each plaintiff
’s claim. The process triggered testimony in open court and cross-examination
of doctors and screeners—something almost unheard of in mass proceedings
and yet so obviously called for.[110] Indeed, the evidence
adduced in Judge Jack’s hearings blew the lid off this Trial Lawyers, Inc.
assembly-line scam.
Silicosis Lawsuits More than Suspicious
Mass silicosis lawsuits are much more recent than those seeking recovery for
asbestosis. In 2003, a New York Times story exposed a flood of new advertising
for silicosis plaintiffs by Texas and Mississippi law firms.[111]
One insurance company cited a 1,200-percent increase in silicosis claims over
the previous year, despite the reduction in silica health problems over the
same period.[112]
EXPLORING AN EARTH SHAKING RULING
Professor
Lester Brickman (center) invites questions from a nationwide audience
after U.S. District Court Judge Janis Graham Jack gave an off-the-record
briefing at the Benjamin N. Cardozo School of Law. Adam Liptak (left),
national legal reporter for the New York Times, helped moderate
the March 2007 session. Judge Jack’s handling of a consolidated silicosis
case in Corpus Christi brought widespread scrutiny of litigation fraud
in asbestos and silicosis cases.
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Like asbestos, the mineral silica can be dangerous to the lungs: repeated inhalation
of silica dust, usually by mining or metal foundry workers, can cause silicosis,
which results in permanent scarring. The use of silica in the manufacture of
glass, fiberglass, paints, and ceramics has exposed an even larger population,
so that silica, like asbestos, is pervasive enough to be an alluring mass-tort
target.
Forman Perry discovered almost by accident that many silica litigants had previously
been asbestos litigants. It did so in the course of employing a computer consulting
company to turn paper documents into digital documents. The Forman Perry employees
using the system found that it refused to accept the names of a great many silicosis
claimants. The reason was that a protocol to guard against data contamination
prevented the same name from being entered twice. Those same names, it was soon
discovered, had been entered five years earlier as asbestosis claimants.
The scars that asbestos causes look like threads, while the scars that silica
causes look like BBs. So, noted Forman Perry attorney Daniel J. Mulholland,
“[I]f I find a plaintiff regarding whom a doctor said, ‘I see threads,’
but then he later says, ‘I’ve now looked at a different X-ray and
I see no threads, but I see BBs,’ I know something is up.”[113]
Mulholland said that he and others “started raising hell with Judge Jack
about the fact that these people were asbestos retreads [who had] had an asbestos
claim [and] now were trying to double-dip and come back in and assert a silica
claim.”[114] Judge Jack ordered the plaintiffs’
lawyers to turn over medical records to Forman Perry, who subjected them to
further computer analysis.
Judicial Proceedings Unmask the Game
Judge Janis Graham Jack's 2005 order exposed claims that "defy all medical knowledge and logic."
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The litigation industry’s scam further unraveled on October 29, 2004.
Dr. George Martindale—whose reports formed the basis for 3,617 pending
silicosis cases—admitted that the language he had used had come from a
law firm and screening company.[115] What appeared to be
custom diagnoses were actually form letters typed dozens or hundreds of miles
away. Asked under oath if he thought he was “rendering a diagnosis”
with those documents, Dr. Martindale replied, “No, sir.”[116]
Dr. Martindale explained, “I had no medical relationship with the patient,
and N&M [Screening] owned the X-ray, owned the report.”[117]
Judge Jack’s reaction to the October deposition was withering. “I’m
really disturbed about this Martindale business. That’s such a fraudulent
problem. You can’t label it too many different ways,” she said, while
pondering her next step at a December status conference. “There’s
no use pussyfooting around this issue.”[118] Judge
Jack tried to spare the plaintiffs further grief after Martindale’s shocking
admissions: “I said to them, ‘Check with your doctors. Make sure they
are square.’ And it turned out you continued to depose, and three more
said the same thing.”[119]
 So
in February 2005, Judge Jack held full hearings to determine the credibility
of the medical evidence being offered to support the silicosis claims, under
the standards adopted by the United States Supreme Court in Daubert v. Merrell
Dow Pharmaceuticals.[120] The proceedings took 24 hours,
spread over three days, and filled 1,123 pages of transcript. Seven doctors
and two screening-company owners testified, each damaging the alleged victims’
cases more than the previous witness.[121]
Mulholland sought sanctions. He cited almost $1 million in unneeded costs for
the grueling February exercise: “Your honor, there is something very wrong
here. This is a real courtroom. You are a real federal judge. But these lawsuits
are simply not real.”[122]
Judge Jack Documents the Abuse
In June 2005, Judge Jack issued a 249-page order, exposing the cesspool in
excruciating detail and noting that “[t]he claims in this [case] defy all
medical knowledge and logic.”[123]
Judge Jack was unsparing in her assessment: “These diagnoses were about
litigation rather than health care. And yet that statement, while true, overestimates
the motives of the people who engineered them…. [T]ruth and justice had
very little to do with these diagnoses. Instead, these diagnoses were driven
by neither health nor justice; they were manufactured for money. The record
is not clear who originally devised this scheme, but it is clear that the lawyers,
doctors and screening companies were all willing participants.”[124]
Ultimately, Judge Jack sanctioned one law firm $8,250 and sent about 10,000
silicosis cases to the trash bin.[125] Far more important,
she shed light on Trial Lawyers, Inc.’s asbestos litigation business model
and wiped away the credibility of those doctors and screeners who had maintained
an inventory[126] of questionable victims for years.
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107. Roger Parloff, Diagnosing for Dollars, Fortune, June
18, 2005, at 98.
108. In Re: Silica Products Liability Litigation, MDL No. 1553 (S.D. Tex.).
109. See Dr. David Weill, Senate Judiciary Committee Testimony,
Fed. Doc’t Clearinghouse at 4 (Feb. 3, 2005) (“Although asbestosis
and silicosis are different diseases that look different on x-ray films, it
is theoretically possible for one person to have both diseases. A person could
be exposed to both silica and asbestos in sufficient quantities to cause either
disease, but it would be extremely unusual for one person in a working lifetime
to have sufficient exposure to both types of dust to cause both diseases. In
my clinical experience in the United States, I have never seen a case like this
and colleagues who saw patients in periods where exposure levels were much higher
have difficulty recalling an individual worker who had both asbestosis and silicosis.
Even in China, where I saw workers with jobs involving high exposure to asbestos
and silica (such as sandblasting off asbestos insulation), I did not see anyone
or review chest radiographs of anyone who had both silicosis and asbestosis.”).
110. See Brickman, supra note 91, at 516-17 n.4.
111. Jonathan D. Glater, Suits on Silica Being Compared to Asbestos Cases,
N.Y. Times, Sept. 6, 2003, at C1.
112. See id. (“One large insurer now faces 30,000 silica cases,
up from about 2,500 a year ago, said a spokesman for the coalition of insurance
companies. . . . ‘I just don’t think that we’re seeing an epidemic
of silicosis,’ Mr. Glenn said, noting that according to the National Institute
for Occupational Safety and Health—the government agency where Mr. Glenn
used to work—fatalities are declining.”).
113. Recorded interview with Daniel J. Mulholland, Attorney, Forman, Perry,
Watkins, Krutz & Tardy, Jackson, Miss., at the office of the firm, Monday,
Sept. 25, 2006.
114. Id.66. See id.
115. MDL 1553 (Oct. 29, 2004) (Dr. George H. Martindale Dep. at 64-66).
116.
Id. at 64.
117. Id. at 73.
118. MDL 1553 (Dec. 17, 2004) (Tr. Status Conf. at 17).
119. MDL 1553 (March 14, 2005 ) (Mot. Hr’g at 15).
120. Black’s Law Dictionary defines the Daubert test as: “A method
that federal district courts use to determine whether expert testimony is admissible
under Federal Rule of Evidence 702, which generally requires that expert testimony
consist of scientific, technical or other specialized knowledge that will assist
the fact-finder in understanding the evidence or determining a fact in issue.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
Similar scrutiny must be applied to nonscientific expert testimony. Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999). Variations of the Daubert
test are applied in the trial courts of most states.”
121. See the Daubert hearing transcripts, all three days, based on times
recorded by court reporter, index of witnesses, and page counts.
122. MDL 1553 (March 14, 2005) (Mot. Hr’g at 9).
123. MDL 1553 (June 30, 2005) (Order No. 29 at 116).
124. MDL 1553 (Order No. 29 at 150).
125. Id. at 244-47.
126. Those making money from asbestosis cases and transforming them into silicosis
regularly use the word “inventory,” as though plaintiffs were commodities.
See, e.g., MDL 1553 (Feb. 17, 2005) (Testimony of Heath Mason, Day 2
of Daubert Hearings, at 286, 368).
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