In our first such Trial Lawyers, Inc. Update, we've decided to focus on the scandalous behavior of the silicosis line of business, operating as part of the lawsuit industry behemoth, which has been recently highlighted in the editorial pages of The Wall Street Journal and has received regular coverage on the Center for Legal Policy's PointOfLaw.com forum for the past year or so. The sordid ordeal was recently brought to the public's full attention by U.S. District Judge Janis Graham Jack's 249-page opinion taking on the trial lawyers who brought the suits and exposing how they manufactured evidence without regard to the truth.
The whole ordeal is worth a review, as a great example of how the tactics of Trial Lawyers, Inc. only serve to dilute compensation to true victims, enrich its own pockets, and cheapen the principles of justice and the scientific process.
Though the foundations of the sandcastle began even earlier, The New York Times in 2003 exposed a growth in silicosis plaintiff-advertising among Texas and Mississippi law firms, and the accompanying struggle of insurance companies to fight them. Insurance companies were right to be concerned. One company cited a 1,200% increase in silicosis claims over the previous year, despite the reduction in silica health problems over the same period. Insurance companies cried "the next asbestos"; Trial Lawyers, Inc., predictably, declared they were zeroing in on another potentially lethal substance.
They were zeroing in on something, all right. Silica, which is mostly highly purified quartz (or, for the lay person, sand), is used to make glass, fiberglass, paints, and ceramics. In other words, it is ubiquitous enough to make an ideal mass-tort target. Repeated inhalation of silica dust (usually by mining or metal foundry workers) can cause permanent lung scarring, i.e., silicosis, which makes it difficult to breathe. Thousands of lawsuits began to pour in, most premised on poor warnings of the dangers (though U.S. Silica, the leading defendant, said it had already "warned up and down the wazoo").
Mississippi soon outpaced the rest of the country in silica litigation, with more than 17,000 plaintiffs suing U.S. Silica (a leading producer of silica sand) for allegedly giving them incurable lung disease. Even overlooking the fact that less than one percent of these plaintiffs were actually from Mississippi (we'll save the arguments against forum shopping for another day), far more sinister things were in store for the Mississippi justice system:
[One silica plaintiff,] 62-year-old Noah Myers Bufkin of Lucedale, said he was diagnosed in a mass screening as having silicosis, although he can't say for sure he has any symptoms... The same screening company diagnosed him as having asbestosis seven or eight years ago, he said. He estimates he has received about $10,000 from that suit... He doesn't know of any symptoms he's suffering from silicosis or asbestosis. "I'm saving up in case I do have a problem," he said. "For a poor fella like me, every little bit helps."
Noah was not the only double-dipper. Out of 8,629 plaintiffs claiming injury from exposure to silica, 5,174—that's 60%—had filed claims seeking (and probably receiving) recovery for injury from exposure to asbestos. (Incidentally, it is technically possible to have both diseases, but every medical expert on both sides says it would be extremely rare.)
The shenanigans throughout the south - soon dubbed "the screening hub of the universe"—finally blew open in a silicosis trial in Corpus Christi, Texas in late 2004. At an October deposition a radiologist testified - to the dismay of the Trial Lawyers, Inc. sponsors who had paid him $35/screening—that he shouldn't have signed his name to silicosis diagnoses that were subsequently used as the medical basis for each of" 3,617 claims of silicosis. After Texas U.S. District Judge Janis Jack ordered hearings to determine whether false diagnoses had been used in the mass silicosis case before her, the sandcastle walls began to crumble and the hired-gun doctors began to jump ship left and right:
- A Texas doctor admitted "he diagnosed more than 800 patients during a 72-hour period . . . spend[ing] no more than a few minutes reviewing X-rays and writing a report for each patient."
- A Mississippi doctor revealed his equipment—owned by a Century 21 real estate agent—and his office—a van in a Sizzler restaurant parking lot.
- Another doctor admitted he never interviewed, examined, or checked the work records of some 2,700 claimants - people who received diagnoses letters stamped with his signature. Oh, and many of them were people the same doctor had earlier diagnosed with asbestosis.
- The head of the screening company that "diagnosed" 6,500 plaintiffs was a junior college dropout that taught himself how to run an X-ray machine and take medical histories.
Physicians were withdrawing their diagnoses as fast as they swore "to tell the whole truth"; others just flat-out denied that letters with their signatures were even theirs. The scandalously hackish nature of the so-called diagnoses soon became veryapparent. In the words of a physician who helped develop the international standards for diagnosing silicosis, the diagnoses were "stunning and not scientifically plausible." The infuriated judge said she saw "great red flags of fraud," and scheduled a sanctions hearing.
Judge Jack called all of the evidence inherently unreliable. "It is apparent that truth and justice had very little to do with these diagnoses," she said. "[T]hey were manufactured for money." Identifying a key strategy of Trial Lawyers, Inc., the judge said "the clear motivation... was to inflate the number of plaintiffs and overwhelm the defendants and the judicial system. This is apparently done in hopes of extracting mass nuisance-value settlements..."
Unfortunately, because the judge had no jurisdiction over the vast majority of state-court claims, sanctions were limited to about $8,000 (although she mused that she was tempted to "sanction all the Plaintiff's lawyers to go to those doctors for the rest of their lives"). However, this month a separate federal grand jury, this time in New York, is also investigating the ringleaders of the Trial Lawyers, Inc. Silicosis Division.
All doctors are not hacks, and silicosis is a real disease that still kills several hundred people per year. Hopefully the federal grand jury, as Judge Jack powerfully did earlier this year, can help expose the damage Trial Lawyers, Inc. does to true victims, to the insurance industry, to medical reliability, to the justice system, and subsequently, to each of us.