Judge Finds Lawyers Behaving Badly: Ann Woolner
Aug. 19 (Bloomberg) -- Mississippi lawyers noticed something odd as they took up the task of defending two dozen companies accused of inflicting a deadly lung disease on thousands of workers.
``We knew from Day One that there was simply no medical explanation for 20,000 plaintiffs to file silicosis cases in Mississippi over an 18-month period,' says Jackson, Mississippi, lawyer Fred Krutz. Another red flag was that ``most of the diagnoses came from a handful of doctors.'
Caused by inhaling microscopic particles of sand dust, silicosis swells the lungs and can suffocate a sufferer. Sandblasters and metal workers are especially vulnerable, but because it's easily preventable, silicosis is rare.
Normally, Mississippi might expect eight cases in a year, according to government statistics and research studies.
So what's new about corporate defense attorneys' accusing plaintiffs' lawyers of concocting a ridiculous lawsuit?
In this case, they proved it.
``These diagnoses were driven by neither health nor justice,' U.S. District Judge Janis Graham Jack, a former nurse, wrote in a June 30 court order. ``They were manufactured for money.'
10,000 Plaintiffs
From her court in Corpus Christi, Texas, Jack has been overseeing pretrial issues in 111 silicosis cases filed mostly in Mississippi and also in Texas and other states. The cases represent more than 10,000 plaintiffs suing some 250 companies, with another 10,000 silicosis cases pending in Mississippi courts, Krutz says. His firm represents 28 companies, mostly sand, gravel and equipment companies. Few are publicly traded, but among them is Ingersoll-Rand Co., which is.
The first key to exposing what happened, Krutz says, was bringing enough cases before a single judge so that all the pieces of the ``fraud puzzle,' as he put it, would be on the same table at the same time.
What made the difference was new case law that allowed that to happen, the judge's willingness to allow the defense to look behind the diagnoses and a specially designed computer program to analyze data, Krutz says.
The result was Jack's 249-page order, which describes how a cast of plaintiffs' lawyers, nine physicians and two patient- screening firms staffed with non-medical personnel churned out mostly bogus silicosis diagnoses with stunning speed, bulking up lawsuits with thousands of plaintiffs.
Like a boulder landing in a tiny lake, Jack's order could transform the landscape or merely make a big splash.
Not Now
What's clear is that it's a public relations disaster for the plaintiffs' bar at a time when it is already on the defense. Trial lawyers remain a favorite target of conservative politicians, from the president on down.
The U.S. Chamber of Commerce has been building a database that it says detects fraud-like patterns in asbestos and silicosis cases. Congress is planning on holding hearings into what happened in Jack's courtroom.
What were these lawyers thinking?
The judge has said she'll fine the Houston firm O'Quinn, Laminack & Pirtle, led by attorney John O'Quinn, which represents about 2,000 silicosis plaintiffs. It's likely more firms will get punished.
Federal prosecutors in Manhattan have launched an investigation to see whether crimes were committed, whether by lawyers or doctors or screeners, according to court documents.
Plaintiffs' Lawyer
Richard Laminack, an attorney with O'Quinn Laminack, didn't return a phone call seeking comment on Jack's order or whether an appeal is planned. He was quoted last month by Texas Lawyer, a legal newspaper, as saying his firm was considering options.
No one can read Jack's order and not be outraged by the conduct it describes. Those who committed it should get their law or medical licenses lifted, their fortunes fined and, if they knowingly committed fraud, their freedom interrupted.
As the silicosis cases head toward their doom, Krutz predicts more cases falling apart when evidence of similar conduct comes out, especially in asbestos litigation.
``This is a not the end of it,' says Krutz, a partner in Forman Perry Watkins Krutz & Tardy. ``This is the beginning of it.'
The big question is whether such conduct is widespread, and whether existing laws are sufficient to root it out.
How Much Is Too Much
``There are hundreds of thousands of civil cases that are resolved through the civil justice system each year,' says Frederick Baron, a Dallas mass tort lawyer, and a partner at Baron & Budd. ``Is there fraud? Absolutely. Is it more than 2 or 3 percent? Unlikely.'
There's no need to change rules based on those few, Baron says. Jack's ruling shows the system works, not that it's broken.
And it's not as if the corporate defense bar or its clients have spotless records for disclosing the dangers of their products or coughing up documents under court order. This spring, for example, a judge determined that Morgan Stanley had been ``grossly negligent' in withholding evidence in a major civil suit brought by New York financier Ronald Perelman. Morgan Stanley fired its lawyers at the silk stocking Chicago firm of Kirkland & Ellis.
``Anyone who abuses the legal system ought to be held accountable. Period. No exceptions,' says Carlton Carl, a spokesman for Association of Trial Lawyers of America.
Even if no laws change, no doctor is indicted and no one gets dragged to a congressional hearing because of Jack's order, ``I predict to you it will change the way mass tort litigation is defended in the future,' Krutz says.
He says judges in mass tort cases will let defense lawyers say, as Krutz does, ``Let's stop the litigation train right now and check the passengers to see if they've got a ticket. Do you have a reliable diagnosis, whether for silicosis or asbestosis or whatever it is, from a credible doctor?'
And now lawyers know how to get the data to answer that question.
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