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5th Circuit

Judge Janis Graham Jack smelled a rat--actually nearly 10,000 rats.

As she presided over a multidistrict silica litigation involving approximately 10,000 plaintiffs, she became aware of an attempted fleecing taking place in her Texas court.

The plaintiffs filed cases in state courts across Mississippi, Texas and other states, claiming their exposure to sand particles caused them to develop a lung disease called silicosis. More than 250 defendants, which included 3M Co. and North Safety Products, consolidated the cases into a federal MDL before Judge Jack on Sept. 4, 2003.

Defense attorneys discovered that one doctor, George Martindale, had diagnosed more than one-third of the plaintiffs. On Oct. 29, 2004, defense attorneys deposed Martindale. Their deposition revealed a mass screening process that resembled an assembly line. Plaintiffs' attorneys paid a company to screen people in trailers parked in commercial lots, including a Sizzler restaurant. A screening company X-rayed thousands of people, sometimes without the presence of a medical professional. Martindale simply evaluated

X-rays--he never personally examined one of the 3,617 plaintiffs he diagnosed. After questioning, Martindale withdrew all of his diagnoses.

Judge Jack then ordered the rest of the diagnosing doctors to take the stand in a Daubert hearing. With their testimony and that of the screening companies who contracted the doctors, Judge Jack unraveled a web of deceit that otherwise could have cost defendants millions, if not billions of dollars in damages.

In a lengthy June 30 opinion, Judge Jack gave the plaintiffs' lawyers, doctors and medical screening companies a verbal lashing. Finding lack of jurisdiction, she remanded the majority of the cases back to state courts, recommending that they dismiss the expert testimony and sanction the plaintiffs' attorneys. She wrote, "[The diagnoses] were driven by neither health nor justice: they were manufactured for money."

This MDL drove home what defense attorneys have known for a long time: that there is massive abuse in asbestos and silica litigation. Some jurisdictions have wised up to this, thanks in part to the MDL. Other jurisdictions are joining the drive to raise the standards for medical evidence and curb abuse of mass toxic tort litigation.

Bad Medicine

In response to the highly publicized abuses prevalent in the silica MDL, Texas officials are taking steps to curb such acts of fraud. Taking a tip from Ohio, which in 2004 had the foresight to become the first state to pass medical-criteria legislation incorporating silica, Texas made big strides in tightening its requirements for medical evidence in order to clear the courts of meritless litigation.

Texas politicians devised Senate Bill 15, a medical-criteria bill that closely parallels those recently passed in Georgia and Florida. The bill, which went into effect Sept. 1, calls for several dramatic changes to the Lone Star state's former system.

"Judge Jack's findings really helped bring [SB 15] home," says Mark Behrens, a partner at Shook, Hardy & Bacon in Washington, D.C., and counsel for the Coalition for Litigation Justice, a group of insurers that press for asbestos and silica reform in the courts. "She documented for the first time in extreme detail that fraud and misdiagnosis are sort of a pattern throughout this type of litigation."

The new rules make it harder for plaintiffs to bring toxic tort claims and raise the bar on the evidence they can use to prove their claims. First, plaintiffs must prove they have an actual impairment. To do this, they need a report from a board-certified physician. It also prohibits physicians from relying on medical information obtained in violation of regulations or through a venue that would require the claimant to retain the services of the law firm sponsoring the venue. This marks a dramatic change from Texas' typical perception of medical professionalism.

"The 5th Circuit has basically said that a doctor is a doctor and so a medical doctor can basically testify about anything," says Roy Atwood, counsel for the defense in the silica MDL and a partner at Jones Day in Dallas. "The standard in the 5th Circuit when it comes to medical evidence has been pretty low."

In addition, all claimants must undergo a physical examination, a rigorous and detailed medical history, pulmonary function testing, an X-ray and obtain a doctor's opinion that the impairment was not caused by anything other than the claimed toxin.

The bill tackles the judicial congestion caused by the filing of large class actions, prohibiting joinder of claimants for trial. The final major provision of SB 15 extends the statute of limitations to two years after receiving a proper diagnosis from a doctor. This ensures that those who presently don't show signs of impairment will still be able to file a claim if they do in the future. This not only benefits the truly injured, but also the court system. Formerly, the state's statute of limitations caused a flood of filings by unimpaired claimants who were eager to meet the deadline.

Court Initiatives

Legislation may not be the only recourse corporations see as a result of the MDL. The courts have established controls too, and could continue to become more stringent.

For more than a decade Massachusetts, Chicago and Baltimore have used inactive dockets to slow the influx of claims from unimpaired plaintiffs. Inactive dockets allow courts to prioritize their caseloads by acting as a sort of holding pen for the claims of people who exhibit no impairing injuries from their exposure to asbestos or other toxins. The goal is to prioritize claims with merit and hope that the unimpaired claims are, for the most part, never heard. Behrens speculates that in light of Judge Jack's findings, more courts will initiate this inactive docket technique in toxic tort litigation. Some other courts only hear claims where the plaintiff exhibits impairment.

"[Courts in Arizona, Delaware, Maine and Pennsylvania have established that] unimpaired claimants do not have a legally compensable claim as a matter of substantive law," Behrens says. This too may become a trend.

The most direct influence that the silica MDL may have on the future of tort reform is an increased scrutiny of medical evidence and practices. The days of shepherding plaintiffs en masse through screening trailers at the Sizzler are over. More and more courts are excluding any medical evidence involving mass screenings, even in the absence of legislation requiring them to do so. Also, the MDL's Daubert hearing may serve as a model for judges in future asbestos or silica cases to ensure only sound medical evidence is admitted.

"[The courts] may be more likely to do what Judge Jack did, which is to look at these cases and say, 'I am going to apply rigorous examination to the testimony of these experts to make sure that the methodology that they used is based on sound medical practice and that the conclusions that they reach are reliable,'" Behrens says.

Technology Editor

Keith Ecker

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