Silicosis litigation raising 'red flags'

Ann Knef Sep. 29, 2005, 10:26am

Ed Murnane

Lisa Rickard

Madison County's reputation as the nation's No. 1 "judicial hellhole," was earned largely for hosting the country's most massive asbestos docket.

A current federal investigation examining questionable diagnoses and the possibility of thousands of fraudulent silicosis claims made in Texas, may explain concerns over the flush of recent silicosis lawsuits brought here.

"Retreading," which refers to silicosis claimants who have previously filed suit for asbestos-related diseases, prompted U.S. District Judge Janis Graham Jack in Texas to send a stern warning last February. The judge characterized evidence showing that more than half of 8,629 silicosis claimants had also filed asbestos claims in Corpus Christi as "great red flags of fraud."

A New York federal grand jury is looking into the matter.

The new silicosis lawsuits brought by Texas litigator Brent Coon & Associates to Madison County raise some questions. Of the 33 silicosis suits filed over a two-day period (Sept. 27-28), 11 of the plaintiffs have also filed asbestos lawsuits in the Third Circuit.

According to a June report in Fortune magazine:

"Perhaps the only consolation in having one of these diseases is that you almost certainly won't get the other. The massive, protracted dust exposure required to come down with either makes it extremely rare for a worker to get both, even in their mildest forms. And despite their outward similarities, the two diseases are readily distinguishable on X-rays. A panel of four eminent occupational-disease experts agreed on these points in February testimony before a Senate committee."

In addition to the silicosis cases, the Beaumont, Texas-based law firm also brought 139 asbestos lawsuits on behalf of former state of Illinois workers to Madison County last week.

Plaintiffs filing twice

One-third of the 33 plaintiffs who filed silicosis suits in Madison County on Sep. 27 and 28 have also filed asbestos suits in Madison County Circuit Court. The 11 former state workers are:

  • Joseph Sciacca
  • Robert Perkins
  • Clarence Shaw
  • David Jiles
  • Harry Piwowar
  • Richard Koldoff
  • Donald Franzen
  • David Daniels
  • Charles Trotter
  • Edward Tipton
  • James Herbert

    Medical opinions differ

    Can a person suffer from both silicosis and asbestosis?

    In the context of high stakes litigation, it depends on who you ask.

    Washington University School of Medicine pulmonologist Peter Tuteur, M.D. says it is "certainly possible."

    "It depends," he said. "If you worked in a situation where you were exposed to asbestos and then changed jobs and were exposed to silica" it would be possible.

    "It's biologically plausible."

    But several doctors who testified before the Senate Judiciary Committee and in the federal silica multidistrict litigation in Texas earlier this year, say it would be very rare for anyone to have both silicosis and asbestosis.

    "While it is theoretically possible for one person to have both silicosis and asbestosis, it would be a clinical rarity," stated John Parker, M.D., a former fellow of pulmonary diseases at the National Institute for Occupation Safety and Health.

    As one of the medical experts who testified before U.S. District Judge Janis Graham Jack in February, Parker said he was "stunned" that just a few doctors diagnosed nearly 10,000 workers with silicosis. He stated those x-ray readers were "not being intellectually and scientifically honest."

    Pulmonologist David Weill, M.D., associate professor at the University of Colorado Health Sciences Center in Denver, was invited to testify before the senate in February. In part he stated:

    "The current rise in silicosis claims cannot be explained by medical factors. In a disease like silicosis that is dose-dependent, a reduction in exposure levels would be expected to result in a decrease in disease incidence, and this is exactly what we have seen in the clinical setting.

    "In the litigation arena, the vast majority of the alleged silicotics that I have reviewed do not involve real silicosis at all, which is not surprising because silicosis is a relatively rare disease today. Unfortunately, many of the silicosis claims are derived from the same workers who originally filed asbestos claims. However, based on characteristic chest x-ray findings and other clinical factors, it should not be difficult for a doctor to distinguish between these two conditions - genuine confusion in a purely medical setting would be rare."

    Madison County deluged with asbestos and silicosis suits

    An aggressive national asbestos litigation firm deluged Madison County Circuit Court last week with 172 lawsuits filed on behalf of injured state of Illinois workers who claim injury from exposure to asbestos and silica.

    The Beaumont, Texas firm, Brent Coon & Associates--with offices in St. Louis, Ohio, Mississippi, Louisiana and California--targeted 87 defendants in each of the 139 asbestos suits and 49 defendants in each of the 33 silicosis suits.

    Eleven of the 33 silicosis plaintiffs also filed asbestos lawsuits.

    The asbestos complainants allege that they were exposed to asbestos-containing products and/or machinery while they worked for the state. Damages are being sought for negligence, strict liability and wilful and wanton misconduct.

    Some of the asbestos defendants include American Optical Corp., Allied Minerals, Flexo Products, Lockheed Martin and U.S. Silica Company.

    The silicosis suits claim the plaintiffs were exposed to silica and silica-containing products while working in various facilities. Some of those defendants include, American Optical Corp., Allied Minerals, Flexo Products, Lockheed Martin and U.S. Silica Company.

    The U.S. Chamber of Commerce Institute for Legal Reform (ILR) was alarmed, pointing out that the recent number of filings in Madison County represents more than one-third of all 2004 asbestos filings.

    "If that doesn't raise red flags at the courthouse, I don't know what will," said Lisa Rickard, president of the ILR.

    She noted that a total of 477 asbestos lawsuits were filed last year in Madison County.

    "Not surprisingly, these claims were filed by out-of-state lawyers," she said. "(The) lawsuits were filed by a law firm based in Texas, where comprehensive legal reform legislation passed in 2003 and a federal judge recently recommended throwing out some 10,000 silicosis claims she suspected were fraudulent.

    "We implore the judges assigned to these cases to closely scrutinize the merits of each case and dismiss any that do not belong in court."

    Ed Murnane, president of the Illinois Civil Justice League, said the cases brought by plaintiffs claiming asbestos and silica exposure "at minimum are frivolous."

    "They could very well be fraudulent," said Murnane. "My understanding is that it is medically impossible to have both (diseases)."

    "The judge assigned to these cases ought to give serious consideration to some kind of sanction of the attorney who brought them."

    Coon's decision to discover new frontiers, as in Illinois, may be in part due to a tougher legal climate for plaintiffs in Texas.

    In August 2004, a Texas jury decided in favor of defendant 3M in a case brought by a sandblaster who developed silicosis, even though he wore a dust mask. Juan Rodriguez was represented by Coon.

    Plaintiff's attorney Robert Brooks Ramsey filed the suits in Madison County on behalf of Brent Coon & Associates.

    The Madison County Record is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.

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