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On the mass tort superhighway.

Plaintiffs' lawyers who think that they can cruise questionable claims down the "mass tort superhighway" to payment will now encounter toll booths, if not sobriety cheeks, thanks to a ruling by U.S. District Judge Janis Graham Jack, who presides over the federal silica multidistrict litigation.

Least prevalent in places like Mississippi and Texas, silicosis has declined for decades. So, how could it be that over a two-year period, tens of thousands of silicosis claims suddenly were filed in these two states?

The answer, Judge Jack concluded, is there is no silicosis epidemic. Instead, an epidemic of plaintiffs' lawyers, "medical screening" firms and complicit doctors "diagnosing for dollars" drives spurious claims on a massive scale. In June, Judge Jack unleashed a scathing 249-page opinion revealing the unseemly underbelly of the mass tort "claiming" industry.

Only a handful of doctors diagnosed more than 9,000 MDL plaintiffs with silicosis. None were the claimants' regular physicians. One doctor, Ray Harron, was involved with a staggering 6,350 plaintiff's, while Dr. George Martindale "diagnosed" 3,617 plaintiffs. Both were employed by medical screening company N&M, which paid them per diagnosis.

Under oath, Martindale denied diagnosing any silicosis plaintiffs, and didn't even know the medical criteria for a diagnosis. Confronted with his diagnosing reports, Martindale testified that N&M prepared the documents and literally rubber-stamped his signature on them without his knowledge. When accused of fabricating diagnoses, Harron declined to continue testifying and asked for a lawyer.

Further, thousands of N&M-generated silicosis plaintiffs were former asbestosis claimants. Judge Jack found the odds of a doctor seeing a patient with both asbestosis and silicosis akin to hitting a hole in one.

Those who have been touting silica litigation as "the next asbestos" appear to be sorely mistaken, as silica defendants have seized upon Judge Jack's rulings as potent ammunition to defeat bogus claims. In addition, an ongoing federal grand jury probe into medical screening companies, including N&M, suggests that criminal indictments may be in the offing.

Not only may this ruling aid in nipping the growing silica "crisis" in the bud, it will also help strike a blow against abusive claiming practices in the asbestos arena and beyond. As Martindale testified, he began diagnosing large numbers of silicosis claims after N&M directed him to stop looking for asbestosis and to look for silicosis instead. Harron is reportedly responsible for more than 50,000 now-questionable asbestosis "diagnoses" over the past 10 years.

Judge Jack's approach also provides a road map for courts to follow in combating spurious mass tort claims. She allowed defendants broad latitude in conducting discovery of the medical screening companies and diagnosing doctors. The defendants could analyze large amounts of information and reveal statistical patterns that were scientifically indefensible and smacked of fraud. They also convinced Judge Jack that the entire process was hopelessly tainted by doctors who, for a quick payday, were willing to rent their names and reputations to claim-manufacturing operations run out of a truck parked in a shopping-center lot.

The beauty of Judge Jack's principled approach is that it is replicable in any mass tort claims situation. Hopefully, more courts will roll up their sleeves and, like Judge Jack, seriously evaluate the claims' legitimacy upfront. In the face of Judge Jack's findings, no court should assume that a claim is valid based merely on the filing of a complaint.

BILL SHELLEY serves as vice chair of the national insurance litigation department at the law firm of Cozen O'Connor and Jacob C, Cohn as member. Both have represented insurers in silica and asbestos-related matters.
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Title Annotation:THE LAW
Author:Shelley, Bill
Publication:Risk & Insurance
Date:Oct 15, 2005
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