|The Silicosis Sheriff|
|Wall Street Journal Thursday, July 14, 2005|
|If the criminal investigation of class-action
titan Milberg Weiss is anything to go by, prosecutors may finally be
starting to hold the trial bar accountable for its legal abuses. Another
good sign is that a separate federal grand jury, this one in New York, is
investigating the ringleaders of the latest tort scam, silicosis.
Much of the credit for pointing the grand jury toward this corruption goes to Texas federal Judge Janis Graham Jack, who last month put the brakes on the silicosis machine with an extraordinary 249-page decision. Judge Jack not only blasted nearly every one of the 10,000 silicosis claims in front of her court, she documented the fraudulent means by which lawyers, doctors and screening companies had manufactured the claims. "These diagnoses were about litigation rather than health care," wrote Judge Jack. "These diagnoses were manufactured for money."
Perfectly said, and we only wish the fearless judge had been around to render a similar verdict back when the asbestos blob got rolling. It was that juggernaut, largely blessed by the courts, that first allowed trial lawyers to co-opt doctors to create millions of phony claims and extort billions out of corporate defendants. Encouraged by this success, the trial bar revved up the same machinery for silicosis, an occupational lung disease that can be fatal but has been in decline for decades.
It was the fact of this decline that got Judge Jack's attention. A former nurse, she couldn't understand how a disease that causes on average fewer than 200 deaths annually in the U.S. had suddenly resulted in more than 20,000 claims from Mississippi and surrounding states. To get to the bottom of the suits against some 250 companies, the Clinton appointee held 20 months of pretrial proceedings. What she found was a gigantic attempted swindle.
Her first discovery was that, of the more than 9,000 plaintiffs who supplied more information about their "disease," 99% had been diagnosed with silicosis by the same nine doctors. These physicians had been retained by law firms or by "screening companies" that do mass X-rays on behalf of law firms searching for plaintiffs. When these physicians were deposed, they all but admitted they took their orders from the lawyers and screening firms.
Which explains why none of them took a medical history, while others never even saw their patients. One doctor signed blank forms for the screening company and let his secretary fill out the diagnoses. Yet another performed 1,239 diagnostic evaluations in 72 hours -- less than four minutes apiece. Dr. George Martindale, who diagnosed 3,617 patients with silicosis, admitted that he didn't even know the criteria for diagnosing the disease and had simply included in each of his reports a paragraph provided by the screening company.
Another shocker was that more than 65% of the silica plaintiffs had previously been plaintiffs in an asbestos suit, even though it is close to clinically impossible to have both asbestosis and silicosis. Digging deeper, the judge found that many of the same doctors had ginned up the same patients for both asbestos and silicosis cases. One doctor, Ray Harron, received nearly $5 million from 1996-2004 from a leading screening company, N&M, and has supplied thousands of silicosis diagnoses, and at least 52,000 asbestos-related diagnoses.
Representatives from N&M admitted in court that they had no medical training and that their company has never had a medical director. They confirmed that law firms often set the criteria for the silicosis screening process, and that the screening companies were paid by the volume of people who ultimately joined a lawsuit. As N&M owner Heath Mason testified, his business depended on doing "large numbers."
Judge Jack reserved her most severe criticism for the lawyers, noting that statistics alone should have shown that their case defied "all medical knowledge and logic," and that by bringing it regardless they had exhibited a "reckless disregard of the duty owed to the court." She required the Houston firm of O'Quinn, Laminack & Pirtle to pay the defendants' $825,000 in legal fees, and ordered sanctions. She also made clear she was on to the tort bar's tactics, noting that the "clear motivation" was "to inflate the number of plaintiffs and overwhelm the defendants and the judicial system."
Judge Jack did not shy away from the word "fraud" in her courtroom, and clearly someone at the Justice Department has been paying attention. A Manhattan grand jury is now investigating at least one of the screening companies, and subpoenas have gone out to at least two of the doctors involved.
Which shows how large a public service Judge Jack has performed. She could easily have followed other judges and accepted these mass claims at face value. Instead, she dug into the individual claims and found the corruption underneath. In doing so, she has not only stalled the entire silicosis scam, she's opened the door to probing millions of asbestos claims that have come before. The lawyers could attempt to retry their dismissed claims in state court, though amid a grand jury probe they might prefer that this whole issue go away.
Over the years, too many judges have allowed tort lawyers to hijack their courtrooms to perpetrate legal fraud. Judge Jack is showing what good comes when judges truly care about justice.