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Silicosis Cases At Risk After Daubert Hearing; Asbestos Litigation Could Be Affected

Mealey Publications
Feb. 22, 2005

CORPUS CHRISTI, Texas -- The silicosis cases of thousands of plaintiffs in the federal silica multidistrict litigation may be on the verge of collapse after three days of Daubert hearings revealed what the presiding judge called "great red flags of fraud" in their diagnoses (In re: Silica Products Liability Litigation, No. 03md01553, S.D. Texas).
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The outcome of the hearings, which wrapped up Feb. 18, could have major implications not just in silicosis litigation but also in asbestos and other mass tort proceedings.

In December, U.S. Judge Janis Graham Jack of the Southern District of Texas called for a three-day hearing under Daubert v. Merrill Dow Pharmaceuticals (509 U.S. 579 [1993]) to look into the validity of the silicosis findings of several of the plaintiffs' experts, directing all of the plaintiffs' experts and key defense witnesses to appear in her courtroom. Judge Jack ordered the hearing after plaintiffs' expert Dr. George Martindale said in depositions that he never intended for his more than 3,700 B-read reports to indicate that he had diagnosed any plaintiff with silicosis. Other B-readers have since followed suit, backing away from their silicosis findings.

The plaintiffs' experts - Drs. Barry Levy, Ray Harron, Jay Segarra, Allen Oats, Todd Coulter, James Ballard, Andrew Harron and Harvey Richey and representatives of screening companies N&M and RTS - and defense experts Drs. Gary Friedman and John Parker were questioned by attorneys and the judge in roughly eight hours of testimony each day.

Testimony came to a temporary halt early Feb. 16, when Harron, the second doctor to take the stand, believed he was facing criminal allegations of fraud. Harron had testified that he read the plaintiffs' X-rays but allowed his secretary to format his notes into diagnosis letters and stamp them with his signature without his reviewing or approving them before they were sent back to the plaintiffs' attorneys. Although he received permission to return to court with his attorney, he did not retake the stand after both sides indicated they had no more questions.

Plaintiffs' attorneys maintain that the diagnoses were reached by radiologists certified by the federal government to read such X-rays and that the radiologists verified that the plaintiffs have lung injuries consistent with silicosis. One attorney suggested that defense attorneys were using the hearing to attempt to deny injured workers justice.

On Thursday, the plaintiffs' attorneys offered to set up an independent panel of doctors to review all of their clients' X-rays to eliminate any improper diagnoses - a proposal originally made by the defendants in December - but Judge Jack said she thought it might be too late for that.

At the conclusion of Friday's testimony, Judge Jack scheduled a sanctions hearing for March 14. Although it is conceivable that she could grant requests from the defendants for dismissal of the cases as sanctions, a source told Mealey Publications that such a dismissal was unlikely, particularly because the judge has yet to resolve questions regarding her jurisdiction over the cases.

After the sanctions hearing, Judge Jack said she expects to remand the cases with an advisory opinion detailing what happened at the Daubert hearing.

Any eventual ruling by the judge could have major repercussions in asbestos litigation as well; several of the same B-readers who found evidence of silicosis had found asbestosis in some of the same plaintiffs in prior asbestos litigation. Some diagnoses were mutually exclusive: signs of asbestosis but no silica exposure previously, evidence of silicosis but no asbestos presence now.

"This is extremely serious," Judge Jack said during Thursday's proceedings. "The allegation is clear fraud. You can't sugarcoat that."

Copyright 2005, LexisNexis, Division of Reed Elsevier Inc. All Rights Reserved.

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