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Silicosis Claims Split the Plaintiffs Bar

The so-called phantom epidemic of silicosis has become a hot potato for the plaintiffs bar.

Silica exposure was once hailed as "the next big mass tort." But in June federal district court Judge Janis Graham Jack of Corpus Christi, Texas, eviscerated the attorneys representing individuals with silicosis claims, accusing them of intentionally manufacturing a mass tort in federal multidistrict litigation.

According to Jack, the lawyers engaged in mass screening of potential plaintiffs, paying screening companies only for positive diagnoses, and creating a "phantom epidemic" of silicosis. She singled out one plaintiffs firm, Houston-based O'Quinn, Laminack & Pirtle, and ordered it to pay $8,250 in sanctions for its "reckless disregard."

In the wake of her ruling, defense attorneys representing clients such as Textron Inc. and U.S. Silica Co. are celebrating, while plaintiffs’attorneys are pointing the finger at each other.

In reviewing the 10,000-plus cases, Jack decided she lacked jurisdiction over most and sent them back to the state court in Mississippi, where they were originally filed. But she continues to oversee some of the cases, including dozens of so-called retreads, which include plaintiffs who previously claimed to have become ill from asbestos exposure.

Suffering from both asbestosis and silicosis is, statistically speaking, nearly impossible. Yet, more than 4,000 silica plaintiffs had previously filed asbestosis claims, most in Mississippi. Many of the plaintiffs were diagnosed by the same doctor.

So who prepared those asbestos claims in the first place? The answer was provided by the courtroom's overhead projector. There, a spreadsheet prepared by Mulholland listed the names of plaintiffs and the lawyers who represented them in previous asbestos claims.

The list, a who's-who of the Mississippi plaintiffs bar, includes its dean, Richard Scruggs, whose Scruggs Law Firm is based in Oxford, Miss. Scruggs, who has a house in hurricane-torn Pascagoula, Miss., did not return calls for comment.

Other names hit closer to Laminack's home. Ryan Foster, a solo practitioner in Houston, represented at least three plaintiffs on O'Quinn Laminack's retread list, according to defense documents. Foster -- who rents space in the same Houston office building as O'Quinn Laminack -- received referrals of asbestos cases from the firm, according to an O'Quinn Laminack affidavit, Foster did not return calls for comment.

Judge Jack isn't taking Laminack's words lightly. She has ordered defense lawyers to notify state courts that they may have received fraudulent asbestos claims. "My guess is, some judges will open up [their files], and some judges will do nothing," says Atwood, who is gearing up for the next round in the ongoing silica war: asbestos déjà vu.

Source:  The American Lawyer, reporter:  Carolyn Kolker, 
October 13, 2005