2009/05/16
Several years ago, plaintiff lawyers specializing in asbestosis litigation began to run out of clients. It didn't take long for them to discover a new particulate lung disease, silicosis, to pin on manufacturers of grinding and sandblasting equipment, auto and machine shops, and a host of other deep pocket entities. The problem was: How to find plaintiffs with the condition?
So they set up mobile screen units in the parking lots of Walmarts, Home Depots and other heavily trafficked places and erected signs offering free chest x-rays to anyone who ever did grinding, sandblasting or anything else that might result in aerosolization of silica. A clerk in these units took a brief employment history, after which a screening chest x-ray was obtained. People subjected to this process were then told that they would soon be receiving information about their test results.
Sure enough, many such individuals eventually got letters from one of several law firms informing them they had silicosis and were entitled to a cash settlement, even though they had no symptoms of any lung disease at the time. The law firms, moreover, generously offered to represent the victims of this serious disease and take care of all the details.
Altogether, around 10,000 such silicosis cases appeared in federal courts across the land, mostly in the Deep South, centered on Mississippi, Louisiana and Texas. These personal injury claims were filed against the large companies like 3M that manufactured grinding wheels, sandpaper and related products.
Through accident or design, the cases were consolidated by the federal judiciary into the Corpus Christi courtroom of U.S. District Judge Janice Graham Jack, a Clinton appointee who at one time represented Planned Parenthood of Texas. Judge Jack, a former nurse married to a cardiologist, must have realized something was amiss when just seven doctors diagnosed all 10,000 cases of silicosis. Moreover, legal filings by defense attorneys revealed that thousands of the silicosis plaintiffs were previously involved in asbestosis litigation, thereby claiming to be suffering from both conditions. The world's medical literature, however, contained but a single confirmed case of combined asbestosis and silicosis, occurring in a Chinese worker who spent years sandblasting asbestos from old buildings without wearing a respirator or mask.
The plaintiffs' lawyers resisted efforts by the defense to depose the so-called "diagnosing doctors," the handful of radiologists and occupational medicine physicians who confirmed the disease in so many people.
Judge Jack, in one of the most remarkable events in American jurisprudence, ruled in favor of the defense, allowing the depositions to go forward. Furthermore, she ordered that the depositions be held in her courtroom, so she could rule immediately on any objections. By scheduling the depositions in her own courtroom, Judge Jack functioned more like a French prosecutorial magistrate (who questions witnesses and defendants) than a neutral American judge. Moreover, federal jurists, unlike most other judges, often question witnesses in an effort to get to the truth.
What Judge Jack learned during these depositions will be the subject of my next blog.
The consequences of her inquisition and ruling for the seven diagnosing doctors will be analyzed in the blog after that.
I'll complete the series with the lessons orthopaedic surgeons can learn from In Re: Silica Multi-District Litigation.
