Honest silicosis claimant 'torpedoed' by own attorney, Jack says

By Steve Korris | Oct 26, 2007


U.S. District Judge Janis Jack found an honest silicosis suit among 10,000 phony ones, but attorneys for the honest plaintiff torpedoed his case and no other silicosis attorney would take him for a client.

Clark Kirkland of Gray Court, S.C., wound up settling claims against 3M and Ingersoll-Rand in 2006 at federal court in Atlanta, acting "pro se" – for himself.

Kirkland told the court he sent letters to 15 silicosis attorneys in several states. He told the court that 12 attorneys responded and all declined to represent him.

Jack, a federal judge in Texas, had transferred his suit from Corpus Christi to Atlanta in 2005, singling him out from about 10,000 cases that briefly landed in her court.

Jack held the cases long enough to find that doctors and lawyers created what she called a "phantom epidemic," defying all medical science and statistical probability.

She signed an order exposing the fraud but did not dismiss the suits. She sent most of them back to Mississippi state courts where they had started.

Thousands of the suits remain open.

No one has taken any action against the doctors whose diagnoses she rejected.

No one has taken any action against the attorneys, beyond an $8,250 sanction that Jack imposed on one plaintiff firm.

Kirkland's attorneys, Michael Martin of Houston and Scott Monge of Dunwoody, Ga., stooped as low as any.

Kirkland and wife Sharon Kirkland retained Martin in 2002. Martin filed suit in a Georgia state court in 2003 but dismissed it six days later.

The Kirklands sued in another Georgia court in 2004, with Monge and Martin as counsel.

3M removed the case to U. S. District Court in Atlanta and then moved to stay the federal case pending transfer to the Judicial Panel on Multi District Litigation.

The panel accepted the case in November 2004 and assigned it to Jack.

Kirkland sent Jack a letter, accusing Martin of misconduct. Among other things he alleged that Martin failed to file suit within the statute of limitations. He sent 3M a similar letter.

3M moved to depose Kirkland, and Jack decided she would grant the deposition and preside over it.

Martin and Monge moved to withdraw as Kirkland's counsel, but Jack denied the motions and ordered them to represent Kirkland at his deposition.

Six days before the deposition, without Kirkland's knowledge or consent, Martin moved to dismiss 3M.

On deposition day, Feb. 16, 2005, Martin showed up with an attorney of his own.

Monge did not show up at all.

At the time, Kirkland faced surgery in a month for removal of his left lung.

Martin told Jack that in light of the motion to dismiss 3M, the deposition should not go forward.

Jack said she had not ruled on the motion and the deposition would proceed.

Martin said he wished to withdraw as Kirkland's counsel.

Jack said he could not. She said Kirkland needed representation because 3M would attack his case.

After Kirkland answered 3M's questions, Martin rose to question him.

At that point, as Jack would write in her order, "Mr. Martin succumbed to the urge to torpedo his client's case."

Martin and Kirkland argued about the statute of limitations. Martin tried to persuade Jack that Kirkland's suit was time barred in 2001.

Jack told Martin that unless he had something helpful to his client, the deposition would end. Martin said nothing.

After the hearing Jack granted Martin's motion to withdraw.

She could have kept Kirkland's suit but she sent it back to federal court in Atlanta.

In an order she signed in June 2005 she wrote, "…despite his being genuinely sick, despite his having two attorneys of record, and despite his being in a courtroom full of lawyers, he had no one to represent his interests."

"Should Mr. Monge be permitted to withdraw, plaintiffs, both Georgia residents, would be left to proceed pro se," she wrote. "Requiring pro se litigants to prosecute a case in a court over a thousand miles from their residence would be a significant imposition ..."

In August 2005, Kirkland protested to the court that Monge continued trying to withdraw as his counsel and refused to notify him of filings.

Monge replied that he "was not hired because of any experience dealing with silicosis claims, has no contractual relationship with Kirkland and has never met Kirkland."

Monge wrote, "During the course of this litigation, it became apparent that Kirkland believed his claims were frivolous."

In September 2005, U.S. District Judge Thomas Thrash gave Kirkland 20 days to retain counsel or proceed pro se.

When Kirkland did not respond, Thrash dismissed the suit.

In November 2005, Kirkland asked Thrash to reconsider, explaining that letters in search of counsel had received no positive response.

Kirkland argued effectively in his own behalf, for in 2006 Thrash set aside the order dismissing the suit.

Kirkland then settled with 3M and Ingersoll-Rand.

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