Posted on 05/07/2006 4:23:02 AM PDT by The_Victor
To attorneys who had earned millions from asbestos settlements, it represented the next potential windfall. But it all came undone in a haze of dust and deception.
First of two parts
In the speculative world of high-stakes lawsuits, where the right idea or the right illness can mushroom into a financial windfall, Carl Thomas was the next big thing.
Not Thomas personally, as he was neither dead nor catastrophically injured — but Thomas the blue-collar worker, the X-ray, the everyman who, because he was interchangeable with so many others, could bring large corporations to their knees.
Thomas' value lay in his claim of silicosis, an occupational lung disease caused by exposure to silica, a variant of ordinary beach sand used by industry in dozens of ways. He was a victim, or so his lawyer asserted. He and thousands just like him deserved to be compensated.
And so it began. First came a few dozen lawsuits, then a few hundred, then thousands. In the span of two years, a waning and somewhat obscure disease was transformed into monster court dockets in Mississippi, where most of the suits were filed. To the stunned corporate targets, it looked like asbestos all over again: The lawsuits threatened to take on a life of their own simply because there were so many of them.
Never mind that Thomas, a 61-year-old Pearland longshoreman, like most of the others, showed no ill effects from the alleged silicosis. Never mind that he, like the majority of them, had years earlier filed lawsuits claiming an entirely different lung ailment, asbestosis.
What mattered was that Thomas had an abnormal X-ray and a doctor offering a diagnosis. Small settlement checks from Thomas' first lawsuit came in every so often. He had no reason to think the silicosis claim wouldn't pay similar dividends.
"I think it's just attached to the asbestosis," Thomas said of his newest disease. "It's like getting one kind of cancer, and the next thing you know you've also got another cancer."
To Thomas, the idea of having both ailments makes perfect sense. He spent years inspecting cargo inside the dusty holds of arriving ships. Sometimes he was around bags of asbestos waiting to be unloaded. He figures there must have been some sand in there, too.
From a medical perspective, the chance of coming down with both — a pulmonary daily double — is remote. A thickening of the lungs' lining, which Thomas cited as evidence for his asbestosis, is not even characteristic of silicosis.
But to the handful of lawyers along the Gulf Coast who represented Thomas and clients like him, the absence of medical support was nothing to worry about. They did not need sick people, only doctors who would issue diagnoses. With a little luck, they would walk away with billions of dollars in settlements.
In 2001 and 2002, they began beating the bushes for anyone who had been employed where silica might have been used. If that meant trolling through lists of old asbestos clients like Thomas, so be it. The extent of these so-called "asbestos retreads" was not widely known. Then again, for silica litigation to pay off the way they hoped, the fewer details disclosed the better.
The result of their effort was an explosion of lawsuits the likes of which is rarely seen. Texas got its share, close to 4,000, but nothing like Mississippi. In just one year, 2002, one of the smallest states in the country went from 76 new silicosis suits to 10,642. By the end of 2004, the state's total topped 20,000.
How were so many "victims" found so quickly? The answer lies not in luck or previous medical oversight but in a well-oiled litigation machine run by an aggressive band of entrepreneurial lawyers. Operating in the shadows of the civil justice system, the machine's sole purpose is to turn people like Carl Thomas into case numbers.
It's the job of the screening company to connect with workers. It owns a mobile van, maybe several, that shows up in parking lots to conduct X-ray sessions. By the time the van arrives, thousands of potential claimants have been reached by direct mail, fliers put up in union halls and ads placed in hundreds of small-town newspapers and occasionally on television.
The X-rays are done at no cost, with the understanding that the results are given to lawyers for the purpose of litigation. The screening company receives a set fee per person tested, as does the doctor who receives the X-rays along with a brief work history of the potential client.
The goal is volume. In May 2003, Lloyd Criss, owner of defunct screening company Gulf Coast Marketing in La Marque, sent a promotional letter to lawyers that emphasized one thing.
"Our marketing efforts have brought thousands of new cases to plaintiff law firms," the letter stated. "Prior to the year 2000, Lloyd Criss was employed by the Foster and Sear law firm, and in a one-year period approximately 7,000 new cases were added to that firm's inventory."
In a short amount of time, thousands of people who were unaware they were "sick" are deemed to be suffering from a serious lung ailment. In the case of silica, the newly minted "victims" were not sent to physicians for treatment and follow-up. But because they had signed papers allowing legal representation, they began to receive care of a different sort.
Suddenly, courthouses began to fill up with bare-bones lawsuits against hundreds of companies, thus beginning the protracted legal dance that has become the staple of mass torts. Committees of lawyers for the various parties are formed. Demands are made. A few trials are scheduled for the sickest of the plaintiffs. Settlement talks begin.
Overwhelmed by so many lawsuits that they could never try them all, the defendants have a powerful incentive to dispose of them quickly. Typically, the majority of the defendants are asked to contribute small amounts per case, from a few hundred to a few thousand dollars, so that it's cheaper to settle than fight.
Checks are cut. Most of the plaintiffs get modest sums. A handful of genuinely sick ones get six figures. And the lawyers make millions because of the sheer number of cases. Rarely does a case reach a jury trial.
Far from being the end of things, as asbestos litigation showed, the first round of lawsuits inspires law firms to look for new clients, new venues to make claims and even more defendants. More screenings take place, more lawsuits are filed, and the process starts again. For the lawyers, screeners and doctors in on the ground floor, the prospect is good for an endless stream of paydays.
And so it was with silicosis. Then a strange thing happened. The truth began to leak out.
In late 2004 and early 2005, in a federal district courtroom in Corpus Christi, far from the routine scrutiny of the national media, U.S. District Judge Janis Jack watched as a pair of Mississippi defense lawyers, Fred Krutz and Danny Mulholland, managed to expose the litigation machine and peel off layer after layer of one of the great legal hoaxes in American history.
When the hearings were done and all the briefs filed, Jack had her say. The silicosis claims before her defied all medical knowledge and logic, she concluded, and reeked of outright fraud.
"It is apparent that truth and justice had very little to do with these diagnoses," Jack wrote. "The diagnoses were manufactured on an assembly line ... manufactured for money. There is simply no (other) rational explanation."
For all its heated rhetoric, Jack's opinion had little legal force. She decided most of the cases belonged back in the Mississippi courts where the suits were first filed, so her comments were only advisory. But the moral force of her words was enormous.
In the time it took for the legal world to read all 249 scathing pages of Order No. 29, the next big thing for the plaintiff bar became the worst thing that could have happened.
The Texas plaintiff lawyers and their Mississippi associates who had ventured a small fortune in up-front expense were all but accused of being crooks. Most of the lawsuits that Jack wrote about were on a fast track to dismissal. And so widespread was the publicity that silicosis quickly became a dirty word when mentioned in the same breath as lawsuit.
"That they would file a lawsuit on the basis of (an X-ray) alone is absurd to the nth degree," said Mike Martin, a Houston plaintiff lawyer who has handled a small number of silica cases for years. "It's a tragedy for the people who are truly injured."
In real jeopardy is the original cash cow for plaintiff lawyers — asbestos lawsuits — because of increased scrutiny from judges and resistance from managers of the trust funds created by bankrupt companies to pay claims.
A three-judge panel in Ohio last month dismissed more than 4,000 asbestos suits in which the diagnosing doctors were among those discredited because of bogus silicosis claims. A number of asbestos trusts also have begun rejecting claims from those same doctors. Tens of thousands of diagnoses are involved.
Defendants disgusted by years of failure to staunch the flow of asbestos litigation, which kept increasing at a time when logic suggested it should diminish, are now on the attack.
Judges are listening.
In Pennsylvania, U.S. Bankruptcy Judge Judith Fitzgerald was shocked when lawyers from the Houston firm of O'Quinn, Laminack and Pirtle tried to get diagnoses from the discredited doctors accepted as the basis for silica claims against Mid-Valley Inc., a bankrupt subsidiary of Halliburton.
"I can't imagine why, as lawyers, you would be going forward with anything that these doctors submitted," Fitzgerald said during a February hearing. "I absolutely will not, under any circumstances, give (them) one iota of credence."
In Florida, Circuit Judge David Krathern has vowed to "ride herd" on more than 100 pending silicosis claims in his court. "Look at all the companies that are represented by all the lawyers in this room, all the money that is being spent on this litigation," he said in a recent hearing. "It's mind-boggling the effect that it has on our economic well-being in this country. They are not legitimate cases.
"I'm offended, and I've practiced law for 30 years," he said.
Another unexpected ally is Congress. Inspired by Judge Jack's findings, a committee of the U.S. House of Representatives is looking into both the screening operations that provided the fodder for the lawsuits and more than a dozen law firms that paid them to do it.
"This is a story of medical mercenaries who allege cases of disease for the purpose of legal action and great financial gain," said U.S. Rep. Joe Barton, R-Ennis, at a March 8 hearing by the House Subcommittee on Oversight and Investigations.
Three physicians who figured prominently in the rise of silicosis lawsuits were subpoenaed to appear before the subcommittee but refused to testify, citing their Fifth Amendment protection.
Two of them, Ray Harron and James Ballard, also were responsible for more than 62,000 asbestos diagnoses used by claimants demanding compensation from the Manville Trust, a fund set up by the bankrupt asbestos manufacturer Johns-Manville Corp.
They are among nine doctors whose diagnoses Manville no longer will accept. Harron and Ballard didn't return calls from the Houston Chronicle seeking comment.
Five years ago, however, there was a certain inevitable logic behind it.
Asbestos litigation was still a reliable moneymaker, but its future was dodgy. Congress was being pressured to come up with a national compensation fund for victims, which would minimize the lawyers' roles.
And some key states, including Texas, were on the verge of passing tort reform measures that would restrict the courtroom to people who could prove not only exposure to asbestos but some sort of illness or impairment because of it.
Plaintiff lawyers began to look around for a promising replacement. Silica seemed like a reasonable choice, one mineral for another.
It was widely used by industry for its abrasive qualities. Millions of workers had been exposed to it.
And the injuries they could suffer by inhaling the fine particles were similar in some ways to those suffered by asbestos victims.
"The reason they went to silica is because if they had focused on anything else, such as pharmaceutical or automobile cases, they literally would have had to reinvent themselves," said Mark Behrens, a defense attorney who also serves as general counsel to the Coalition for Litigation Justice, a consortium of asbestos and silica defendants. "They saw silica as an alternative fuel for the same litigation machine."
Had it not been for Krutz and Mulholland, the Mississippi defense lawyers whose corporate clients suddenly were inundated, the whole scheme might have panned out.
"We knew there was no medical explanation for this — it wasn't real," Krutz said. "We had to figure out what was causing the flood. And we had to stop it."
Oh, wait......that would be scoliosis. Nevermind.
Krutz and Mulholland deserve a medal -- for having the guts to get their clients to fight back.
It's encouraging to see that their work has had a ripple effect on the litigation mafia.
Every day you turn on the TV and another lawyer is advertiing for clients o come outof the bushs to sue for anything and everything. Tort Lawyers are the scum of the earth and add big bucks to the cost of almost everything produced. We have one of these shysters from the carolina's whoawants to be president --John Edwards. He should be in jail not running for President.
"Oh, wait......that would be scoliosis"
More, precisely, Peyronie's (AKA Clinton's) Disease.
How about a suit aginst tort lawyers for adding cost to every product we buy?
This isn't new, when a plasterer filed for retirement the union sent them to the union attorney and they filed a comp claim for not only asbestososis but silicacosis against every employer that they had ever worked for.
I received hundreds of them and don't know of one that was really sick or died form either one.
Both are pure garbage and lawyer diseases.
I worked in the environmental claims dept. for a major insurer back in the 80's during the first wave of silicosis claims. We cut the checks on behalf of the companies the were being sued.
Wah vwas happening on the Texas Gulf Coast then, and as later as the article shows, was nothing short of organized crime perpetuated by the plaintiffs bar in Texas.
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