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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 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."

"[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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