Out of the Race

This is a very long post, but it's a complicated subject. It was also the subject of the lead editorial in the dead tree edition of The Wall Street Journal on July 14, 2005.

In the "suspicions confirmed" department:

A Texas federal judge has sanctioned one of the nation's best-known plaintiffs' tort lawfirms in a 249-page (double-spaced, typed) order issued in a huge multi-district-litigation case involving silicosis. Judge Janis Graham Jack, a former nurse, stopped just short of accusing the plaintiffs' counsel of fraud in connection with the 111 lawsuits involving more than 10,000 plaintiffs.

As noted in the "Background" section of the order, silicosis is a relatively rare lung disease caused by inhalation of silica dust. Those who suffer from it have usually been exposed on a daily basis to silica dust over long periods of time, exceeding 5 years if the exposure is high, and longer at lower exposures. An acute form can develop after exposures of a few months to extremely high concentrations of silica dust.

To quote from the order:

Silicosis is one of the oldest recognized occupational
diseases, with cases recorded as far back as the 16th century. In
the early 1930’s, the Tennessee Valley Authority built the “Hawk’s
Nest Tunnel” through Gauley Mountain in West Virginia to build a
hydroelectric facility. In order to accomplish this, the workers
drilled though one mile of almost pure silica. Five thousand
people worked on this project; no safety precautions were taken to
prevent respirable-silica exposure. Approximately 1,200 workers developed silicosis, and approximately 400-600 of these workers
perished from the disease. This is known as the “Hawk’s Nest
incident,” and it is considered America’s worst industrial
disaster.

The judge noted that the expected incidence of silicosis for the United States would be in the neighborhood of 1,200 new cases each year. The number of silicosis claims in Mississippi alone exceeded 10,000 in 2002. Quoting again from the order:

This explosion in the number of silicosis claims in
Mississippi suggests a silicosis epidemic 20 times worse than the
Hawk’s Nest incident. Indeed, these claims suggest perhaps the
worst industrial disaster in recorded world history.
And yet, these claims do not look anything like what one would
expect from an industrial disaster. One would expect an industrial
disaster to look like the Hawk’s Nest incident: presenting cases of
acute silicosis (with relatively brief incubation periods),
emanating from a single worksite or geographic area with an
extremely high concentration of silica. To the contrary, virtually
all of these silicosis claims are for chronic or classic silicosis
(with incubation periods in excess of 15 years). The claims do not
involve a single worksite or area, but instead represent hundreds
of worksites scattered throughout the state of Mississippi, a state
whose silicosis mortality rate is among the lowest in the nation.
Moreover, given the sheer volume of claims–-each supported by
a silicosis diagnosis from a physician–-one would expect the CDC or
NIOSH to be involved, examining and responding to this enormous
epidemic. One would expect local health departments and physician
groups to be mobilized. One would expect a flurry of articles and
attention from the media, such as what occurred in 2003 with SARS.10
But none of these things have happened. There has been no
response from OSHA, the CDC, NIOSH or the American Medical
Association to this sudden, unprecedented onslaught of silicosis
cases. By contrast, the CDC and NIOSH issued an outbreak alert in
1988 for 10 cases of silicosis in Ector County, Texas, and for a
single death from acute silicosis in Ohio in 1992. (Feb. 18, 2005
Trans. at 234.) The OSHA field office in Jackson, Mississippi has
had no reports of any silica problems in recent years and has had
no requests for any silica-related investigations. (Feb. 18, 2005
Trans. at 237.) Officials from the Mississippi State Department of
Health, the Mississippi Medical Association, the Mississippi Board
of Licensure, and the University of Mississippi Medical School all
were unaware of any increase in silicosis cases in Mississippi.
(Feb. 18, 2005 Trans. at 237-41.) Likewise, Mississippi’s apparent
silicosis epidemic has been greeted with silence by the media, the
public, Congress and the scientific communities.

After 20 months of proceedings, Judge Jack smelled a rat. It turned out that 99% of the claimants in the case had been diagnosed by the same 12 doctors!

What had happened was that the plaintiffs' law firms had set up a silicosis diagnosis assembly line and solicited people to be screened and added to the list of plaintiffs. Many of these people were in the law firms' "inventory" of plaintiffs in asbestos cases that the firms had prosecuted, notwithstanding that it is extraordinarily rare for one patient to have both asbestosis and silicosis, according to testimony from doctors in the case.

I have long suspected shenanigans such as this in connection with many of the mass tort cases, e.g., asbestos and silicone breast implants, to name two. Now we have documentation in a case, which has a "script" very similar to the asbestos cases.

I would hope that the appropriate medical and legal licensing agencies will take note of the evidence cited in Judge Jack's order, and act appropriately, but sadly, I doubt that they will.

I echo the WSJ in shouting hurrah for Judge Jack -- unless this kind of gross unethical behavior by lawyers is stopped, the public's esteem for the legal profession and the courts will continue until the whole system is seen as nothing more than a bad joke. And that would be tragic for our whole society.

For those of you who are still interested, some telling excerpts from Judge Jack's order follow (the numbers in parentheses are the page numbers of the .pdf file linked above)

***
As discussed above, on a number of different levels, the
claims in this MDL defy all medical knowledge and logic. The
United States has enjoyed a steady 30-year decline in silicosis
rates and mortality. And yet Mississippi, a State ranked only 43rd
in the U.S. in silicosis mortality, recently experienced a crush of
new silicosis lawsuits, many of which are now before this Court.
As Dr. Friedman testified, there simply is no rational medical
explanation for the number of alleged diagnoses of silicosis in
this MDL. (Feb. 18, 2005 Trans. at 221.) That, however, does not
mean there is no explanation at all for the cases.
If searching for an explanation in the legal field, one might
focus on the fact that most of the cases were filed just prior to
the effective dates of a series of recent legislative “tort reform”
measures in Mississippi. One might also focus on the decline in
asbestosis lawsuits, leaving a network of plaintiffs’ lawyers and
screening companies scouting for a new means of support. (116)

***

A review of all of the submitted Fact Sheets is telling. In
the approximately 9,083 Fact Sheets submitted in this MDL as of the
date of the Daubert hearings, approximately 8,000 treating doctors
are named. (Feb. 18, 2005 Trans. at 257.) But when it comes to
the doctors who diagnosed these Plaintiffs with silicosis, 12 names
appear. (Feb. 18, 2005 Trans. at 259.) Twelve doctors diagnosed
all 9,083 Plaintiffs. This small cadre of non-treating physicians,
financially beholden to lawyers and screening companies rather than
to patients, managed to notice a disease missed by approximately
8,000 other physicians–-most of whom had the significant advantage
of speaking to, examining, and treating the Plaintiffs. (144)

***

Instead, these diagnoses were about litigation rather than health care. And yet this statement, while true, overestimates the motives of the people who engineered them. The word “litigation” implies (or should imply) the search for truth and the quest for justice. But it is apparent that truth and justice had very little to do with these diagnoses–-otherwise more effort would have been devoted to ensuring they were accurate. Instead, these diagnoses were driven by neither health nor justice: they were manufactured for money. The record does not reveal who originally devised this scheme, but it is clear that the lawyers, doctors and screening companies were all willing participants. And if the lawyers turned a blind eye to the mechanics of the scheme, each lawyer had to know that Mississippi was not experiencing the worst outbreak of silicosis in recorded history. Each lawyer had to know that he or she was filing at least some claims that falsely alleged silicosis. The fact that some claims are likely legitimate, and the fact that the lawyers could not precisely identify which claims were false, cannot absolve them of responsibility for these mass misdiagnoses which they have dumped into the judicial system. (150-151)

***
It is important to emphasize that this is not a normal circumstance where a plaintiff’s expert is disqualified after a Daubert hearing. Simply proffering an expert who fails Daubert is not enough to warrant sanctions. But requiring a court and the defendants to undergo a Daubert hearing when the plaintiff has no reasonable basis to believe that the expert can pass muster under Daubert can result in plaintiff’s counsel being liable for the defendant’s Daubert hearing fees and expenses. (Citation omitted.) Here, O’Quinn should have realized its diagnoses were fatally unreliable based upon the statistics referenced above, as well as the Martindale, Hilbun and Cooper depositions. This is especially true because O’Quinn itself provided the inadequate occupational and exposure histories underlying the purported diagnoses. Once O’Quinn donned a lab coat and injected itself into the diagnostic process, it is reasonable to charge them with knowledge both of what is required for a medically-acceptable diagnosis, [fn.179] and of how far their diagnoses strayed from that standard.
Moreover, the clear motivation for O’Quinn’s micro-management of the diagnostic process was to inflate the number of Plaintiffs and claims in order to overwhelm the Defendants and the judicial system. This is apparently done in hopes of extracting mass nuisance-value settlements because the Defendants and the judicial system are financially incapable of examining the merits of each individual claim in the usual manner. (237-238)

***

The Court does not doubt that complying with discovery orders
related to thousands of Plaintiffs can be an overwhelming
undertaking. But the reason it is overwhelming is that Plaintiffs’
counsel, and the screening companies and physicians they employ,
have taken steps to inflate the number of silicosis claims beyond
the true number of people with silicosis. In other words, at the
root of the unwieldy nature of this MDL, including the difficulty
in responding fully to discovery, is the fact that Plaintiffs’
counsel such as O’Quinn filed scores of claims without a reliable
basis for believing that their clients had a compensable injury, thereby “multipl[ying] the proceedings ... unreasonably and
vexatiously.” 28 U.S.C. § 1927. (241-242)

Credit: Instapundit for pointing to the linked article.