One of National Public Radio's premier programs, "All Things Considered," recently aired a critical examination of the outbreak of silicosis litigation in the U.S.
Following are transcripts of "Silicosis Ruling Could Revamp Legal Landscape," aired on March 6.
"In a packed Texas courtroom last year, a federal judge accused doctors and lawyers of legal and medical fraud.
Silicosis is a deadly lung disease that industrial workers get from inhaling crystalline silica in foundries, mines, quarries and shipyards. Over the last few years, plaintiff lawyers aggressively advertised for silicosis victims, inviting them to mass medical screenings. As a result, state and federal courts were inundated with tens of thousands of silicosis claims.
But the lawsuits hit a major roadblock in Corpus Christi, Texas, when a judge warned a testifying doctor that he might want to get a lawyer before he said anything further. U.S. District Judge Janis Jack ruled that thousands of silicosis claims had been manufactured for money. Her ruling is having an impact on hundreds of thousands of asbestos and silica claims across the country.
A Sudden Avalanche of Litigation
Clean white sand -- the nemesis of golfers, the delight of young children -- goes into paint and glass and a thousand other products you'd both guess and wouldn't. But it can also kill you. Microscopic bits lodge in the most delicate and vulnerable places in your lungs and cause a terrible disease called silicosis. The disease is irreversible and progresses even when exposure stops. Beginning in the 1930s, silicosis cut a nasty gouge out of America's working class. In one notorious case, at least 764 workers died of the disease during the construction of Hawk's Nest Tunnel in West Virginia in the early '30s.
It took half a century, but government regulations eventually began to reduce the incidence of silicosis in the 1970s. So it was quite a surprise to John Ulizio, the CEO of U.S. Silica, when Fed Ex began pulling up to his company's building every day in the winter of 2002.
"The Fed Ex man started to show up with all of these lawsuits," Ulizio recalls. "In November of 2002, and running for a couple months after that date, we were inundated with over 20,000 new claims, by new people, almost all of which were in Mississippi, claiming that they had silicosis."
This was a disaster, maybe the end of U.S. Silica, the largest manufacturer of sand in the country. Were there going to be 20,000 more lawsuits in the next quarter? What in the world was happening in Mississippi?
"We kind of scratched our heads and figured, 'What the heck's going on down there?'" Ulizio says. "We kind of knew, almost as a matter of course, that they weren't real cases. Because, if you look at the federal CDC data on silicosis, there was no indication in the disease prevalence data that there was all of a sudden an epidemic of silicosis."
A Hidden Epidemic or Reaction to Tort Reform?
It was unprecedented. Suddenly, more silicosis cases were filed on single days in Mississippi than had previously been filed in an entire year. If true, it was evidence of one of the worst industrial disasters in American history. Yet no Mississippi public health officials were ever alerted, and no public health warnings ever issued. What was going on? The reason for this sudden legal activity was new tort reform laws that were being drawn up in the U.S. Senate and had already passed in Mississippi. Before the new laws kicked in, plaintiff lawyers rushed to file their cases. In the fertile ground of Mississippi's industrial Gulf Coast, lawyers began advertising for potential silica plaintiffs.
One television ad features a screen with the words "Silica Testing" in large type. Then a list of occupations begins to scroll: sandblasters, industrial painters, shipyard workers, brick masons, plumbers -- 19 different professions that qualified someone as a potential silicosis victim.
Delford Zarse, a plumber in the twilight of his career, says the ads were enough to make him pursue a silicosis claim. "I was talking to some guy who'd done this, and he said he'd collected quite a bit of money, and I see these ads in the paper, so I signed up," he says.
Before there were mass screenings for silicosis, there were mass screenings for asbestosis: That's how it all started. At first, the screenings targeted professions where workers were likely to have been exposed. But then, some plaintiff lawyers began going from town to town, advertising to and screening the general population. Turnout was good and thousands of new claims were generated this way -- including Zarse's claim. He says he's not sick, but he has been a plumber for 40 years. He went to an asbestos screening and was examined by a specially trained doctor hired by the lawyers. A few weeks later, Zarse got a letter: His X-ray had come back positive.
Zarse had 12 claims. Checks sometimes showed up in the mail, minus 40 percent for his lawyer. He got $11,000. Zarse smokes two packs of cigarettes a day and says he almost never gets sick. He has mixed emotions now about his lawsuit. On the one hand, he likes the money he got. "Anybody gives you money for nothing, you're crazy if you don't take it," Zarse says. But his conscience bothers him, too. "I think it's a rip-off of the companies," he says.
Screening Machine Shifts Course
The mass screenings are the heart of the controversy.
"Most of these people didn't go to their doctor first and get a diagnosis of silicosis, then go find a lawyer. They went to a screening and got a lawyer first," says Fred Kurtz. He's a Mississippi lawyer representing the defendants: sand producers, respirator and mask makers, and equipment manufacturers. In response to the flood of lawsuits, these companies went to their Republican allies in Congress for relief. Sen. Orrin Hatch (R-UT) began drafting new legislation that, if passed, would put plaintiff lawyers out of the asbestos business for good. And that unhappy prospect inspired some plaintiff firms to switch horses midstream. Instead of asbestos litigation, they'd concentrate more on silica lawsuits. Defense lawyer Danny Mulholland says in Mississippi, the well-oiled screening machine never missed a beat.
"It was the same plaintiffs' lawyers involved, the same doctors involved, the same screening companies -- in many instances, the same plaintiffs," says Mulholland. "What you saw was a shift in diagnosis from asbestosis to silicosis. "
All of a sudden, silicosis claims in Mississippi began going through the roof. And the heart of these lawsuits is the diagnoses of the doctors hired by the lawyers. It is these so-called litigation doctors who are at the center of the controversy.
The 'Litigation Doctors'
Dr. Jay Segarra is a pulmonologist, which means he specializes in lung disease. He says he spent the first 15 years of his medical career serving his country in the Air Force. He fell into X-ray reading in Biloxi, Miss., in 1991 after his discharge. The work started slowly but then really picked up steam in the mid-'90s. Doctors like Segarra are X-ray reading specialists called "B-readers." There are just a few hundred across the country, but the most prolific are responsible for a stunning number of lawsuits. For example, Segarra has diagnosed 29,000 claims of asbestosis. Defense lawyers say he's made thousands of silicosis diagnoses, too.
"Yes, I may have diagnosed that many cases -- and I don't know if I have or not," Segarra says. "But they don't know how many that I've looked at and haven't found any disease."
Reading lung X-rays for evidence of asbestosis or silicosis is not a perfect science. In some cases, an X-ray one doctor might read as positive, a different doctor might read as negative. Segarra says that in spite of his prodigious numbers, his diagnoses have always been done in good faith.
"I'm certainly not a schemer at all," Segarra says. "But am I opportunistic? I suppose I am. But everybody is."
Segarra estimates he has made about $10 million doing this work. When called to testify, he parries cross-examinations with skill. But the Mississippi lawsuits have brought an unusually intense scrutiny. That's because the silicosis defendants decided to fight. The cases were assigned to a federal judge who ordered that the medical and exposure history on every one of the 10,000 silicosis claims be turned over to the defense lawyers. That was unprecedented: Usually the court investigates only a sample of the claims. Armed with that information, the defense lawyers also did something surprising. Defense lawyer Mullholland says they ran the silicosis plaintiffs' social security numbers through the nation's largest asbestos databank.
"If you only knew about John Doe who was diagnosed on February 15th you might know everything there is to know about John Doe," Mulholland says. "But the complexion of that information changes when you know there were 110 people who walked through the same door, on the same day, to the same doctor that John Doe did."
It was a eureka moment. It turned out that 68 percent of the 10,000 claimants had previously filed asbestos claims. Pulmonary experts say the number of people known to have developed both silicosis and asbestosis is infinitesimally small. But here were thousands of victims with both diseases. When Segarra is presented with evidence that he has diagnosed the same person with asbestosis one time and then silicosis the next, he says he's not surprised.
"I have looked at thousands of X-rays and made thousands of diagnosis," Segarra says. "If I did not have at least one person like this, then there's something wrong.
"The nature of the science itself is imprecise. You cannot get around that."
Defense lawyers call these cases "retreads" -- people with previous asbestos claims who are later reinvented as silicosis victims, or vice versa. We showed Segarra one of his retreads -- two reports, nine months apart, on the same man. The first time, Segarra diagnosed the man as having silicosis. The second time he said the man had asbestosis. And in his second report, he wrote that he found no evidence of silicosis. Segarra didn't realize he was diagnosing the same man twice. Plaintiff lawyers send him thousands of X-rays a year. But what did this plaintiff have --silicosis, asbestosis, both or neither?
"It's impossible for me to say, all the factors that went into these two diagnoses being different," Segarra says. "You can certainly pick out single cases which don't look good, like this one: I've made a total different X-ray diagnosis from one point to the other. But what you will not find is a systematic switch over a large number of cases. You will not find that in my files."
Defense lawyers say they have evidence that Segarra made scores of mistakes like this. Other B-readers made these mistakes, too: One doctor has thousands of these so-called retreads. For 15 years, these mass screenings have provided plaintiff lawyers, defense lawyers, doctors and screening company executives a handsome living. But it all started to come to apart when a federal judge in Corpus Christi was randomly assigned thousands of the silicosis claims from Mississippi.
A Judge with a Nurse's Instincts
U.S. District Judge Janis Jack is a bridge-playing, whiskey-drinking Clinton appointee in Texas. But it wasn't Jack's politics that defined her approach to these silicosis cases: it was her medical background. Before she became a judge, Jack had been a nurse. The more she learned about the screening process, the more her alarm bells went off. So she ordered that depositions take place in her courtroom, and she did a lot of the questioning herself. NPR has exclusively acquired the courtroom audio. In one exchange between the judge and Heath Mason, CEO of N&M, one of Mississippi's big screening companies, Jack asked him where all the people being screened were coming from. "From what I know, a lot of, some of their initial silica people were their existing asbestos people," Mason told her, saying the patients were re-screened for silicosis.
"We were set to do mass screenings," Mason said in court. "I mean, that's what we did. And from a business standpoint of mine, we 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 for each. Through his lawyer, Mason declined to comment for this story.
From Expert Witness to Possible Defendant
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 is responsible for at least 88,000 legal claims. His reputation began to crumble in Jack's court when defense lawyers started producing evidence of double diagnoses. In one courtroom exchange, excerpted below, a defense lawyer asked Harron how it was possible that his asbestos diagnosis of a man named Kimball seemed to disappear eight years later, when Harron diagnosed Kimball with silicosis.
LAWYER: "And those scars over time, are going to get worse, right?"
LAWYER: "And as a matter of fact, you said that somebody with those fibers and scars in their lungs are gonna go to their grave with them, right?"
LAWYER: "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 pressed Harron to explain. She asked, "So now his asbestosis is gone?"
HARRON: "Well, I can't say that it's gone, your honor."
JUDGE 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 produced the evidence, the doctor's situation on the stand became precarious. He took the stand as an expert witness, but it became clear that his answers could result in his prosecution for fraud. At one point, the judge stopped defense lawyer Mulholland from questioning Harron, suggesting that the doctor should stop talking and obtain legal representation.
Under questioning, the reputations of other B-reader doctors 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 to find that 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 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."
A Ruling with Far-Reaching Implications
Brent Coon disagrees with much of Jack's ruling. He's a plaintiff's lawyer for some of the silicosis cases in her court. "Judge Jack, she's a fine judge," Coon says. "But I don't think she's 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.
"She discredited some of the doctors involved, but I don't think it's an indictment of the entire process," Coon says. "The process 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.
"Those companies knew for decades that those products crippled people and killed people. They knew it," Coon says. "We've got all the documents, all the internal memo, 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 float along, jumbled together with thousands of claims generated from mass screenings, clogging court dockets and delaying their opportunity for relief. Time is not on their side.
Judge Jack's methods of deposition and her ruling are beginning to have an impact around the country. In Florida, a judge has ordered silicosis plaintiff lawyers to produce detailed medical information on their claims. In Ohio, a state court handling 35,000 asbestos claims and 900 silica claims is considering calling hearings to depose the doctors the same way Jack did. And on Capital Hill, the House Subcommittee on Commerce and Energy begins its investigation into the Mississippi lawsuits. Like a little legal pebble, the opinion of the nurse who became a federal judge is sending out ripples of change across the nation's court system."