RAND Institute for Civil Justice report on the abuse of medical diagnostic practices in mass tort litigation: lessons learned from the "phantom" silica epidemic that may deter litigation screening abuse.

AuthorBehrens, Mark A.

In June 2005, United States District Court Judge Janis Graham Jack of the Southern District of Texas issued a landmark opinion declaring that all but one of ten thousand cases aggregated for pretrial purposes under Multidistrict Litigation ("MDL") 1553 were based on "fatally unreliable" diagnoses. (1) Judge Jack found that the claims "were driven by neither health nor justice: they were manufactured for money." (2) The broad media reporting of Judge Jack's findings sparked criminal and congressional inquiries in which the suspect doctors "took the Fifth." (3)

The RAND Institute for Civil Justice recently issued a report that carefully examines the MDL 1553 litigation to identify lessons that can be learned about the civil justice system's ability to detect and address abusive medical diagnostic practices in mass personal injury litigation. (4)

  1. SILICA LITIGATION: BACKGROUND AND MDL 1553

    1. Knowledge and Regulation

      Silica--quartz in its most common form--is a ubiquitous mineral that covers beaches and fills children's sandboxes. (5) In its natural form, silica is not especially harmful. When fragmented into tiny particles, however, silica can be dangerous if inhaled in excess of certain levels for a prolonged period. Plaintiffs in silica cases assert that they suffer from a disease--primarily silicosis, or scarring of the lungs--as a result of exposure to silica dust through their occupations in various industries. RAND notes: "Workers in many industries, including mining, quarrying, construction, glass, cement, abrasives, ceramics, and iron and steel mills, can be exposed to silica." (6)

      The risks of silica exposure have been well-known for a long time. For instance, as far back as 1949, the United States Supreme Court noted: "It is a matter of common knowledge that it is injurious to the lungs and dangerous to the health to work in silica dust." (7)

      The Federal Occupational Safety & Health Administration ("OSHA") has regulated workplace silica exposure since the early 1970s. (8) Today, OSHA provides detailed regulations requiring employers to protect employees from overexposure to silica through the enforcement of permissible exposure limits ("PELs") for occupational exposure to airborne silica (9) and the OSHA Hazard Communications Standard. (10) States also have acted to protect workers from overexposure. For instance, many states set threshold levels for silica dust in the workplace, (11) prohibit minors from working with silica refractory products, (12) and offer other worker protections. (13)

      The Centers for Disease Control & Prevention ("CDC") and the National Institute for Occupational Safety & Health ("NIOSH") have reported that nationwide silicosis deaths declined sharply, from 1,157 in 1968, to 448 in 1980, to 308 in 1990, to 187 in 1999, to 148 in 2002--a 93% decline in overall mortality. (14) Similarly, a 2005 study by OSHA staff found "a downward trend in the airborne silica exposure levels" from 1988-2003. (15) RAND found that "[b]etween 1995 and 2004, silicosis-related deaths were generally stable or decreasing in all states." (16)

      For years, silica litigation generally reflected this public health success. The litigation was stable with only a low number of people pursuing silica claims in any given year. (17)

    2. A Spike in Silica Claims

      "[P]laintiffs' lawyers filed an unprecedented number of silica cases from 2002 to 2004--a total of 20,479 cases in Mississippi alone--an amount 'five times greater than one would expect over the same period in the entire United States." (18) The drastic rise in claims against U.S. Silica, a leading supplier, exemplified this surge. In 1998, U.S. Silica was named in 198 silicosis claims; the number of claims jumped to 1,356 in 2001 before soaring to 5,277 in 2002 and skyrocketing to 19,865 in 2003. (19) Nearly two-thirds of the claims filed against U.S. Silica between 2001 and 2003 were filed in Mississippi state courts; most of the other cases were filed in Texas state courts. (20)

      Other defendants experienced a similar pattern: "Before 2002, one respirator manufacturer had about 200 silicosis claims filed against it each year. Between 2002 and 2004, 29,000 silicosis claims were filed--a 5000% increase in claims filed." (21)

      If legitimate, this spike would have suggested "perhaps the worst industrial disaster in recorded world history." (22) Within two years, however, the litigation was essentially over. According to RAND, "[t]he proceeding in Judge Jack's court exposed gross abuses in the diagnosing of silica-related injuries, and, due in large part to her findings, the litigation collapsed." (23)

    3. Judge Jack: The Phantom Epidemic

      MDL 1553 began in September 2003 when over ten thousand individual silicosis claims that primarily originated in Mississippi state court were removed to federal court and centralized for pretrial purposes before Judge Jack. (24)

      As a trained nurse, Judge Jack appreciated that the surge in claims defied medical explanation. She observed: "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." (25) Instead, Judge Jack offered two theories as to why there was a sudden increase in silica claims: (1) plaintiffs' attorneys sought to beat the effective date of major civil justice reform legislation in Mississippi; and (2) asbestos plaintiffs' attorneys wanted to diversify their litigation portfolios. (26)

      The events in MDL 1553 that would lead to the exposure of "gross deficiencies in the diagnoses underlying the silica claims" were spurred by the review of fact sheets submitted by the plaintiffs. (27) Early in the litigation, Judge Jack ordered that each plaintiff submit "a sworn fact sheet specifying [his or her] diagnosis and [all] pertinent medical and diagnostic information, as well as the results of B-reads of chest x-rays." (28) A plaintiffs claim was dismissed if he or she failed to submit a fact sheet. (29) The fact sheets revealed several suspicious patterns.

      First, in almost all cases, the fact sheets showed that the diagnosis supplied by the plaintiffs treating physician was not the basis for the plaintiffs claim. (30) According to Judge Jack:

      In virtually every case, these doctors were not the Plaintiffs' treating physicians, did not work in the same city or ... state as the Plaintiffs, and did not otherwise have any ... connection to the Plaintiffs. Rather than being connected to the Plaintiffs, these doctors instead were affiliated with a handful of law firms and mobile x-ray screening companies. (31) Second, "although almost all the plaintiffs had different treating physicians, a very small number of B-readers accounted for almost all of the plaintiffs' B-reads and diagnoses." (32) Over nine thousand plaintiffs returned fact sheets, and they listed roughly eight thousand different doctors. (33) "Remarkably, however, only twelve doctors diagnosed more than 9,000 plaintiffs with silicosis." (34)

      Third, the defense attorneys recognized that some of the B-readers who figured prominently in the silica litigation had been involved in asbestos litigation. (35)

      Armed with information from the fact sheets, the defendants began deposing a few of the diagnosing doctors in late 2004. Dr. George Martindale "testified that he had not intended to diagnose these individuals with silicosis and withdrew his diagnoses." (36) Dr. Martindale claimed that "he assumed that he was simply confirming a diagnosis made by each plaintiffs personal physician, although no such diagnoses were ever made." (37) Additionally, he "purportedly diagnosed 3,617 MDL plaintiffs with silicosis while retained by the screening company N&M." (38) According to Judge Jack, "[t]hese 3,617 diagnoses were issued on only 48 days, at an average rate of 75 diagnoses per day." (39)

      The defendants subsequently deposed Glyn Hilburn and Kevin Cooper, two other screening doctors, "who had been listed as the diagnosing doctors on 471 and 255 plaintiff fact sheets, respectively." (40) "Both doctors essentially echoed Martindale's testimony," (41) emphasizing "that they did not diagnose any of the Plaintiffs with silicosis. Indeed, both doctors testified that they had never diagnosed anyone with silicosis." (42) They claimed "that N&M had inserted the diagnosis-of-silicosis language into their reports without their knowledge." (43)

      Soon thereafter, in February 2005, at Daubert hearings before Judge Jack, it was established that N&M "helped generate approximately 6,757 claims in th[e] MDL, while [another screening firm,] RTS ... helped generate at least 1,444 claims." (44) N&M generated these 6,500-plus claims in just ninety-nine screening days. (45) As the court noted, "[t]o place this achievement in perspective, in just over two years, N&M found 400 times more silicosis cases than the Mayo Clinic (which sees 250,000 patients a year) treated during the same period." (46) Furthermore, at least 4,031 N&M-generated plaintiffs had previously filed asbestosis claims with the Manville Personal Injury Settlement Trust, although "a golfer is more likely to hit a hole-in-one than an occupational medicine specialist is to find a single case of both silicosis and asbestosis." (47) "N&M was paid by the hiring law firm only for positive diagnoses. Payment was contingent on a positive diagnosis and the potential plaintiff signing with the law firm." (48)

      The most prolific MDL diagnosing physician, Dr. Ray Harron, was involved in the diagnosis of approximately 6,350 of the silica MDL plaintiffs in just ninety-nine days, and was listed as the diagnosing physician for approximately 2,600 plaintiffs. (49) "He seemed at a loss to explain how permanent signs of asbestosis he'd diagnosed disappeared years later when he diagnosed the same workers with silicosis." (50) His testimony "abruptly ended when the Court granted his...

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