Federal Judge's Ruling Could Affect Silicosis Cases
MICHELE NORRIS, Host:
This is ALL THINGS CONSIDERED from NPR News. I'm Michele Norris.
MELISSA BLOCK, Host:
And I'm Melissa Block. Now NPR's Wade Goodwyn picks up our story on the thousands of legal claims of silicosis and what happened when the cases went before a Texas federal judge.
J: it was her medical background. Before she became a judge, Jack had been a nurse. And the more she learned about the screening process, the more her alarm bells went off.
So she ordered that the depositions take place in her courtroom, and she did a lot of the questioning herself. NPR has exclusively acquired the courtroom audio. This exchange is between the judge and Heath Mason, he's the CEO of one of the Mississippi's big screening companies. Judge Jack asked him where all the people being screened were coming from.
JANIS JACK: Well, how did you get these people? How did you get these people to come?
HEATH MASON: There's lots of different ways on how clients got to us. Either, you had an arrangement with the law firm --
JACK: Well, how'd they get it, do you know?
MASON: Well, from what I know, a lot of, some of their initial silica people were their existing asbestos people.
JACK: Just re-screen them and see if they come up with silicosis.
MASON: We were set to do mass screenings. I mean, that's what we did. And from a business standpoint of mine, you had to do large numbers.
: Mason's screening company's rates for testing people positive for silicosis approached 90 percent. His staff, not doctors, took perfunctory work and medical histories. And with some of his biggest clients, it behooved Mason to have a high rate of positive X-rays, because those lawyers only paid him for positive results: $750 each. Through his lawyer, Heath Mason declined to comment.
But it was the doctors' depositions that produced the most fireworks. The country's most prolific B-reader is a doctor named Ray Harron from West Virginia. Harron has diagnosed and contributed to 88,000 asbestos claims and thousands more for silicosis. His reputation began to crumble in Judge Jack's court when defense lawyers started producing evidence of double diagnoses.
Here, Harron is asked by a defense lawyer how it was possible his asbestos diagnosis of a man named Kimball seemed to disappear eight years later, when Harron diagnosed Kimball with silicosis.
DANNY MULHOLLAND: And those scars over time are going to get worse, right?
RAY HARRON: Right.
MULHOLLAND: And as a matter of fact, you said that somebody with those fibers and scars in their lungs were gonna go to their grave with them, right?
MULHOLLAND: Not Mr. Kimball.
: The defense then displayed a later set of X-rays. In these films, Kimball now has silicosis, but his asbestosis has cleared up. Judge Jack presses Dr. Harron to explain. She asks, so now his asbestosis is gone?
HARRON: Well, I can't say that it's gone, your honor.
JACK: Well, where'd it go?
HARRON: Like I say, I don't know.
: Harron offered an explanation: perhaps the film contrasts were different. But defense lawyers have plenty of examples of Harron's double diagnoses. As they produce that evidence, the doctor's situation on the stand became precarious. He took the stand as an expert witness, but now there's the possibility that his answers could get him prosecuted for fraud. Defense lawyer Danny Mulholland moves in for the kill, but the judge stops him.
MULHOLLAND: Dr. Harron --
JACK: Nope, he wants representation.
JACK: Is that right, sir?
HARRON: Well, he's accusing me of making these things up. So I think --
JACK: I just assumed that that's sort of the bottom line.
HARRON: Wow! That's not good.
: Wow! That's not good. And with that, Dr. Harron left the stand. Under questioning, other B-reader doctors' reputations were damaged also. One withdrew hundreds of his silicosis diagnoses, saying he never meant for them to be considered actual diagnoses. By the time the depositions were over, Judge Jack was appalled: 6,800 of the 10,000 silicosis claims also had asbestos claims.
But Jack found that the chances of any one person having both diseases were about the same as a golfer making a hole in one. She said that Dr. Harron's testimony raised "great red flags of fraud." The judge wrote a 249-page ruling, throwing out the testimony of doctors, sanctioning the lawyers and discrediting the mass screenings. Her conclusion? The 10,000 silicosis claims were "manufactured for money."
But Brent Coon disagrees with much of Jack's ruling. He's a plaintiff's lawyer for some of the silicosis cases in her court.
BRENT COON: Judge Jack, she's a fine judge. But I don't think she was very sophisticated about the process. I think this was the first time she'd actually had these complex mass tort cases in her courtroom.
: Coon concedes there were problems with some of the diagnoses in the silicosis cases and says Jack properly weeded those out. But Coon says screenings help save workers' lives by alerting them to possible lung illness earlier than they might otherwise have known.
COON: She discredited some of the doctors that were involved, but I don't think it's an indictment of the entire process. The process itself is very good, the concept is very good. Whether or not it's abused from time to time is something that can be controlled and should be controlled.
: Coon says it would be an injustice to use the Mississippi cases to try to strip away workers' legal options. Judge Jack's ruling has become a rallying cry for corporate America, the editorial board of The Wall Street Journal and the U.S. Chamber of Commerce. Coon says big business wants to use the judge's opinion to create a permanent legal handicap for poisoned workers.
COON: Those companies knew for decades that those products crippled people and killed people. They knew it. We've got all the documents, all the internal memos, all the depositions that prove that. And it's a shame that now they're able to isolate a few example cases and try to turn that around.
: Without question, there are hundreds of industrial workers across the country acutely ill with silicosis. Even the defendants concede that is true. But instead of standing out, their lawsuits get lost among the thousands of claims generated from the mass screenings, clogging court dockets and delaying their opportunity for relief. Time is not on their side.
Judge Janis Jack's methods of deposition and her ruling are beginning to have an impact around the country. In Florida, a judge has ordered silica plaintiff lawyers there to produce detailed medical information on their claims. In Ohio, a state judge handling 35,000 asbestos claims and 900 silica claims is considering calling hearings to depose the doctors the same way Jack did.
And on Capitol Hill, the House Subcommittee on Commerce and Energy begins its investigation into the Mississippi lawsuits. Like a legal pebble, the opinion of the nurse who became a federal judge is sending out ripples of change across the nation's court system.
Wade Goodwyn NPR News
NORRIS: In the 1930s, silicosis was a public health menace in America, but workers' safety regulations helped drastically decrease the disease's toll on workers. Wade Goodwyn traces how silicosis once again became the target for massive litigation on our Web site, NPR.org.
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