Judges putting brakes on silicosis and asbestos litigation

Ann Knef Feb. 14, 2006, 9:39am

Federal Judge Janis Jack

Madison County Circuit Judge Dan Stack

While an aggressive national asbestos litigation firm waits for its 172 cases to pick up speed in Madison County Circuit Court, more judges around the country are putting the brakes on silicosis and asbestos lawsuits.

A federal judge and now two state judges have rebuked plaintiffs attorneys for clogging courts with phony suits. In some jurisdictions, judges are dismissing lawsuits en masse, ruling that bogus diagnoses have been produced by lawyers, doctors and X-ray screening companies.

They take an even dimmer view of "retread" claimants, ones who allege they suffer from asbestosis and silicosis--a near medical impossibility.

Earlier this month, Broward County, Fla. Circuit Judge David H. Krathen said the effect of fraudulent suits on the economic well-being of the country was "mind boggling."

He has ordered plaintiff's attorneys, who filed 111 claims the day before a state law curbing asbestos and silicosis suits took effect, to provide detailed health histories about their clients and whether they have filed prior asbestos lawsuits. Krathen also is requiring the plaintiffs to identify specific products that made them sick.

Last July, Federal Judge Janis Graham Jack of Texas, who presided over multi-district litigation involving cases filed from across the country, issued a hard-hitting report stating that the approximate 10,000 claims before her sent up "red flags of fraud."

"These diagnoses were driven by neither health nor justice," Jack wrote in a report. "They were manufactured for money."

Jack sanctioned plaintiffs' lawyers in Texas and returned thousands of cases back to Mississippi and other states.

Following Judge Jack's lead, Noxubee County, Miss. Circuit Judge James T. Kitchens' threw out 4,202 silicosis claims in December.

In the meantime, a federal grand jury in New York and a Senate panel also are investigating the possibility of fraud in silicosis and asbestos litigation.

Deluged by plaintiffs from all over the country, Madison County at one time was the busiest asbestos court anywhere. The asbestos lawsuit industry was built on claimants taking aim at an alphabet soup list of major and sometimes not-so-major U.S. corporations.

In September 2005, 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 filed in Madison County. The lawsuits were filed over a two-day period, Sept. 27-28, 2005.

Twelve of the 33 silicosis plaintiffs also filed asbestos lawsuits.

The Record interviewed eight of the plaintiffs who stated they participated in a screening in a mobile X-ray van at a union hall near Chicago in 2003. The plaintiffs, retired locomotive makers, did not know lawsuits had been filed on their behalf until a reporter told them. Some of them had never heard of Madison County. All of them live far from the venue.

They identified Respiratory Testing Services (RTS) as the screener. The company was singled out in a report by the AEI-Brookings Joint Center for Regulatory Studies in September as producing a high rate of false-positive diagnoses.

The Johns Manville Personal Injury Settlement Trust no longer accepts documents prepared by RTS, as the firm is not an "acceptable" medical source, the trust announced last year.

Until recently, the cases filed by Brent Coon & Associates in September sat motionless in Madison County.

But on Feb. 14, the first defendant to answer, Kelso Sales & Engineering, filed motions to dismiss. A hearing has been set April 26 before Madison County Circuit Judge Daniel Stack.

The 172 lung disease lawsuits that Coon brought to Madison County in would make silicosis and asbestosis interchangeable.

For 128 plaintiffs Coon filed asbestos suits that also allege silica exposure. These suits do not claim silicosis damages, but they lay a foundation for it.

In Madison County, asbestos cases are assigned to one judge who administers all cases for expediency-sake.

Stack, who has presided over the court's massive asbestos docket since 2004, has shown a willingness to dismiss meritless cases and ones that do not belong in his jurisdiction.

Stack declined to comment for this article because of pending cases.

A co-sponsor of Madison County's deferred docket, asbestos defense attorney Joe O'Hara of Schiff Hardin in Chicago, said that judges ought to be concerned about dubious cases that end up before them. They should take steps to deal with cases that are not based on legitimate medical diagnoses, he said.

O'Hara helped draft the proposal that idles cases filed by claimants who do not show signs of illness or impairment. The so-called deferred docket met with little opposition from the plaintiff's bar, he said.

"Madison County became a significant clearing house for mesothelioma cases," O'Hara said. Mesothelioma is an asbestos-related deadly disease.

Under the weight of Madison County's massive docket, the court's workers were sufficiently busy to the "point of exhaustion," he said. "It made a lot of sense to us to put aside cases of those non-impaired."

In light of allegations of fraud in asbestos and silicosis litigation, O'Hara believes further review of claims should be undertaken particularly involving "double filed" cases.

A renowned pulmonologist who specializes in a variety of end stage lung diseases asserts there is no medical explanation for the thousands of new silicosis lawsuits that are being filed in state and federal courts across the country, nor is it at all likely that these claimants also can suffer from asbestos-related diseases.

"For the last 10-20-30 years the disease has been decreasing," said David Weill, M.D., a practitioner in a large medical office and at the time of the interview was an associate professor at the University of Colorado Health Sciences Center in Denver. Workplace safety standards are responsible for the reduction in exposure, he says.

Weill, who testified before a Senate Judiciary Committee on the subject a year ago, said that from a clinical perspective the numbers of silicosis cases has declined to the point where "you can go a pretty long time period of time without ever seeing a new case."

"But on the other hand, we're seeing an explosion of lawsuits, even though all evidence of the disease" is declining, he said.

Can a person suffer from 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 Judge Janis Graham Jack ;ast year, 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."

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