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Diagnosis: fraud

When roughly 10,000 silica claims landed in her courtroom, a no-nonsense federal judge in Texas created a watershed moment in the tort wars.

If liability lawsuits are a threat to corporate health, then a Texas federal judge has provided at least one powerful dose of medicine. When and if a class-action case gets to court, take nothing for granted.

That is precisely how U.S. District Judge Janis Graham Jack, a Clinton appointee, proceeded with roughly 10,000 claims of silicosis that landed in her courtroom. She got a whiff of scandal, demanded answers, threatened contempt, and issued a ruling that has rocked the legal world. In a case in which lawyers claimed their clients suffered from exposure to silica, a purified sand that can cause lung cancer, she wrote bluntly:

"It is apparent that truth and justice had very little to do with these diagnoses - otherwise more effort would have been devoted to ensuring they were accurate. These diagnoses were driven by neither health nor justice: They were manufactured for money."

Jack sent the cases, amassed for her review, back to state courts. But the 249-page decision she rendered in June is still creating ripples. Her opinion used the word "fraud," in one form or another, 46 times. And the description fits.

Silica has been feared in corporate circles as the next asbestos, a fire-retardant material that can produce lung cancer and already has led to some 700,000 claims for roughly $70-billion. But with silica legal claims, as the New York Times reports, defense lawyers decided to turn the tables. They asked for cases to be consolidated. Then they discovered some disturbing patterns.

A handful of doctors had provided nearly all the diagnoses. In most cases, they never saw the patient or the medical history. George Martindale, one doctor who diagnosed 3,617 people with silicosis, was forced in court to admit he had no medical grounds for such a claim.

Worse, defense lawyers discovered that roughly 70 percent of the people diagnosed with silicosis had previously submitted claims for asbestosis - a virtually impossible clinical scenario. Worse still, many of them were diagnosed by the same doctors. One such doctor, Ray A. Harron, answered, almost comically, that his diagnoses were made on "widely separated dates."

In August, Judge Jack lit into the plaintiffs' lawyers, producing an extraordinary exchange with Richard Laminack. Asked how he could explain the dual diagnoses, Laminack replied: "I think the explanation on a lot of the cases is the asbestosis diagnosis is wrong." Jack snapped back: "Well, that would be a shame, wouldn't it, that your clients made fraudulent claims in asbestosis and now those same people . . . are trying to make another . . . claim here."

The findings in Jack's court have led to legal sanctions, federal prosecution, congressional investigation, and a review of asbestosis claims that were made by the same doctors. The case is also being cited by proponents of legal tort reform as Exhibit A in the types of courtroom fraud they face. It is indeed that. But it is also an example of how the legal system ought to work, how enterprising defense attorneys and a no-nonsense judge can get to the truth.

[Last modified October 12, 2005, 00:19:18]