Attorneys being sworn in at a congressional hearing Wednesday.
H. Todd Coulter, M.D.
WASHINGTON, D.C. -- Lawyers responsible for bringing thousands of silicosis cases to state courts in Mississippi and Texas stood by the lawsuits that critics have described as "manufactured for money."
At a House committee hearing Wednesday, "The Silicosis Story: Mass Tort Screening and the Public Health," plaintiff's lawyers also denied that they put their interests before their clients' health concerns.
Members of the Committee on Energy and Subcomittee for Oversight and Investigation accused the lawyers of orchestrating dubious litigation while ignoring the long term health needs of the disadvantaged.
"This is much less about health than it is about finding grist for the litigation mill," said committee chairman Rep. Ed Whitfield (R-Ky). He said there has been little follow up effort on the mass cases involving people who are typically uneducated and have limited access to healthcare.
Lawyers subpoenaed to testify included:
Some of the attorneys deflected blame by stating their clients came to them as referrals and that they had already been diagnosed. Others refused to provide documents, citing attorney-client privilege.
Laminack said, "Our efforts as attorneys (are) to protect (clients) legal rights." He said it was a "shame" that employers and the health care system "abdicated their responsibilities," compelling injured workers to seek legal aid.
The congressional hearing was the fourth one investigating fraud in silicosis litigation. It was prompted by a blistering opinion issued last year by U.S. Judge Janis Jack of Texas who presided over federal silica multidistrict litigation. Jack characterized evidence showing that more than half of 8,629 silicosis claimants had also filed asbestos claims (retreading) in Corpus Christi as "great red flags of fraud."
Doctors, lawyers and the diagnostic screening companies they employ have come under fire for producing questionable claims.
In March, Dr. Ray A. Harron, a Bridgeport, W.Va. radiologist, his son, Dr. Andrew W. Harron of Kenosha, Wisc. and Dr. James Ballard of Birmingham, Ala. were called to testify before the congressional committee. But they refused to answer whether they would certify the accuracy of 10,000 disputed silicosis claims on grounds of self-incrimination.
At Wednesday's hearing, a silicosis diagnosing physician called to testify also refused to answer the committee's questions. H. Todd Coulter, M.D. of Ocean Springs, Miss. asserted his Fifth Amendment right to remain silent.
Partisan bickering erupted between Rep. Greg Walden (R-Ore.) and Rep. Bart Stupak (D-Mich.).
Stupak said the hearing was fair, "but that does not mean it has been unbiased." He also said that the inquiry was unnecessary and has ignored practices employed by defense lawyers.
Stupak interrupted Walden who was questioning Zadeh and Fabry about their refusal to provide the committee with documents, stating that Walden's line of questioning did not follow procedure.
Walden asked Fabry for the legal justification for withholding case files.
Fabry said the information belonged to his clients. It's "not for me to give away," he said.
"Did you ask them?" said Walden.
"No," Fabry replied.
Zadeh told Walden he did not compy with the committee's document request because the subpoena was "too broad."
Zadeh said he has 20 clients, including state court cases, and 16 million documents.
"This is a low point in the profession," said Rep. Diana DeGette, (D-Colo.), at the outset of the hearing. DeGette is an attorney.
She chided those who would "gin up" litigation and then not follow up with their clients.
"It's a sad day for the legal system," she said.
DeGette also condemned those in the medical profession who abrogated their duties by making false diagnoses.
She also suggested that neutral panels of physicians might be a better way of ensuring reliability in mass tort claims.
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 last 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 Judge Jack, 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."