Hearings Probe Fraud In Silicosis Lawsuits

Testimony given over the past two years in congressional hearings indicates there has been widespread fraud in silicosis personal injury lawsuits. The hearings convened this year by the House Energy & Commerce Subcommittee on Oversight & Investigations have uncovered some of the most compelling evidence that legal and medical fraud has occurred. They indicate that nearly all the cases alleging silicosis from exposure to silica filed in the past few years are fraudulent. And by extension, a large number of the cases brought for asbestos exposures appear invalid as well, because many of the plaintiffs claiming injury from silicosis had earlier filed suit alleging injury from asbestosis. Medical experts agree that it is extremely rare for an individual to develop both diseases.

Taken together, the fraudulent silicosis lawsuits could be one of the largest incidents of legal and medical fraud in U.S. history. The defendants are some 250 companies that do sandblasting, mining, plumbing, quarrying rocks, or anything that involves exposure to silica. The plaintiffs want billions of dollars for medical expenses and compensation for pain and suffering.

Allegations of fraud in the silicosis cases have a long, somewhat convoluted history. Early indications that many silicosis lawsuits might be based on invalid diagnoses were presented to the Senate Judiciary Committee in February 2005 (C&EN, Feb. 21, 2005, page 30). But a compelling case for fraud wasn't made until June 2005, when a Texas judge revealed the results of her 20-month investigation of thousands of silicosis lawsuits.

That discovery effort began in September 2003, when lawsuits involving about 10,000 plaintiffs alleging injury from silica exposure against about 250 corporate defendants were transferred by the Judicial Panel on Multidistrict Litigation to the federal district court in Corpus Christi, Texas, for pretrial disposition. Suspecting foul play, the court's judge, Janis Graham Jack, ordered discovery on the cases. During this process, Jack ordered the plaintiffs to submit individual fact sheets describing when, where, and how they were exposed to silica dust and to provide detailed medical information about each silica-related injury.

In February 2005, Jack held a series of pretrial hearings, where the nine doctors and two screening firms involved in 99% of the diagnoses of silicosis testified. The doctors repeatedly testified they were told to look for silicosis and "did as they were told." For example, George H. Martindale, a radiologist, said that he had not really intended to diagnose silicosis in 3,167 plaintiffs. However, he had signed reports claiming the plaintiffs had silicosis on the basis of only reading their X-rays. Medical experts agree that a proper diagnosis of silicosis includes a careful work history to determine exposure to silica, a physical examination, and a review of imaging studies and other diagnostic tests.

In June of last year, Judge Jack issued a lengthy opinion and remanded most of the cases to state courts for further proceedings. In her 249-page decision, she wrote that most of the silicosis claims "were essentially manufactured on an assembly line" by screening companies, doctors, and plaintiffs' lawyers. Screening companies advertised on TV and in print, offering free X-rays to anyone who had worked in occupations, such as sandblasting or pipe fitting, where there was some exposure to silica. Often, the X-rays were administered in mobile vans in parking lots of Wal-Mart stores and Sizzler restaurants.

The diagnoses, she noted, were based on X-ray readings performed by a small number of doctors. Each of them was affiliated with a law firm or mobile screening company, and in virtually every case, they were not the patients' treating physicians. The doctors based their diagnoses solely on X-ray readings for almost all the patients. In addition, more than two-thirds of the individuals who were diagnosed with silicosis—many thousands of patients—had previously been diagnosed with asbestosis. On the basis of all these data, Jack recommended that the evidence submitted by the silicosis plaintiffs be thrown out.

The so-called retreads—silicosis plaintiffs who had been asbestosis plaintiffs a few years back—were discovered in a novel way. After obtaining the medical and exposure histories of the silicosis claimants, Jack turned them over to the defense lawyers. They ran the Social Security numbers of the silicosis patients through the largest data bank of asbestosis victims and found that about 6,800 of the 10,000 silicosis plaintiffs had previously claimed injury from asbestos.

In her decision to send the cases back to state courts, Jack, who had worked as a nurse before her appointment as judge, included background on what led to her suspicions about the silicosis lawsuits. According to figures from the National Institute of Occupational Safety & Health, "one would anticipate approximately eight new silicosis cases per year in Mississippi," she wrote.

In 2000, 40 plaintiffs filed silicosis claims in Mississippi courts, and in 2001, there were 76. These numbers are higher than expected, but not out of the range of possibility, she explained. But in 2002, the number of cases filed shot up to 10,642; in 2003, there were 7,228 claims; and in 2004, there were 2,609. For the entire 2002-04 period, the number of Mississippi claims was five times what would be expected in the U.S. as a whole, she wrote. Only a huge industrial disaster involving silica could produce such a high rate of silicosis, and no such disaster has occurred in Mississippi. Instead, the Mississippi plaintiffs had some minor exposure to silica at hundreds of work sites scattered throughout the state. "In short, this [Mississippi outbreak] appears to be a phantom epidemic, unnoticed by everyone other than those enmeshed in the legal system," she concluded. "On a number of different levels, the claims in this [litigation] defy medical knowledge and logic," she wrote.

After Jack published her decision in June 2005, the House Committee on Energy & Commerce and its Oversight & Investigations Subcommittee spent 10 months looking into the public health issues arising from the decision. Committee Chair Joe Barton (R-Texas) and subcommittee Chair Ed Whitfield (R-Ky.) sent 55 letters to doctors, law firms, screening companies, state regulators, and state medical boards asking for further information.

The Oversight & Investigations Subcommittee has held three hearings on the silicosis issue. On March 8, it heard testimony from several key doctors, experts on the medical and legal aspects of mass screening, and Heath Mason, co-owner of a Mississippi-based screening company called N&M.

At the hearing, three doctors who were responsible for a total of 1,800 silicosis diagnoses were asked whether their work complied with all applicable medical practices, standards, and ethics. They all refused to answer, invoking the Fifth Amendment against self-incrimination.

A fourth physician, Martindale, whose name had been signed on about 3,600 silicosis diagnoses, testified that he did not mean to diagnose any patients and, in fact, did not know the proper criteria for making such a diagnosis. Mason said his screening company, N&M, which performed chest X-rays to detect silicosis, was paid by at least one law firm only for positive diagnoses.

On March 31, the second day of hearings convened by the subcommittee, two Texas lawyers, Jamshyd M. Zadah and John R. Febry, who had represented silicosis plaintiffs, refused to give any testimony, invoking the Fifth Amendment.

At the hearing on June 8, Glyn R. Hilbun, a physician involved in silicosis diagnoses, told the subcommittee that he performed short physical exams on patients in Mississippi and signed forms provided by the N&M screening company. "I never gave an opinion or rendered a diagnosis on any of the patients," he said. About one month later, the typed physical exams were returned to him for a second signature, and he asked his office manager to stamp his signature on the forms. At a much later date, he said, he reviewed the forms and found that "someone had typed in three sentences without my knowledge, which indicated I had made a diagnosis of silicosis."

Mallan G. Morgan, executive director of the Mississippi State Board of Medical Licensure, testified that all diagnostic screening tests involving X-rays must be supervised by a physician in Mississippi. Also, X-rays cannot be administered unless an order is made by a Mississippi-licensed physician. Furthermore, if an abnormality is discovered in a patient, the mobile facility must communicate with the patient and see that he or she is referred to a treating physician for proper care. Previous testimony presented to the subcommittee indicates that in many silicosis cases, the mobile screening unit used for the X-rays violated one or more of these rules. The state board is currently conducting an investigation, Morgan said.

The director of radiological health at the Mississippi Department of Health testified that three out of four of the mobile X-ray screening units operating in the state had not complied with state regulations.

As at the previous hearing, several witnesses, including the owners of two screening companies, invoked the Fifth Amendment and refused to testify. In addition, N&M co-owner Mason and Todd Coulter, a physician who diagnosed many silicosis cases, couldn't be found by federal marshals who tried to serve them with subpoenas.

In March, the Association of Trial Lawyers of America applauded the congressional hearings. In a letter to Rep. Whitfield, ATLA President Ken Suggs wrote: "ATLA condemns fraudulent activity by any plaintiff or defense attorney or witness and believes those found guilty should be prosecuted to the fullest extent of the law." Suggs asked to work with the committee to develop appropriate measures to ensure that only reliable expert witness testimony is entered into court records. He also said the measures must make protecting real silicosis victims the primary goal. He asserted that the Occupational Safety & Health Administration has not yet developed an appropriate standard to protect workers from silicosis.

The cases in Jack's court have now been returned to state courts, most in Mississippi. Technically, Mississippi state judges do not have to abide by Jack's opinion. But because so much fraud has been established, both in the hearings Jack convened and in the House investigation, it is unlikely that plaintiffs will win many of these cases. In fact, plaintiffs' lawyers have voluntarily dismissed two-thirds of them. Defense lawyers say that Jack's decision will be cited frequently in future litigation.

The silicosis cases also mark a change in corporate litigation strategy. Previously, when companies that made or used asbestos were faced with personal injury lawsuits involving hundreds or thousands of plaintiffs, they settled out of court, paying each claimant a few hundred or a few thousand dollars. They believed it was cheaper to do that than to defend each case individually. But when corporations were faced with thousands of silicosis lawsuits, they banded together and decided to fight rather than settle.

Although the Energy & Commerce Committee may consider new legislation to prevent specious silica lawsuits, the precedent set by Jack's decision may be enough to forestall large-scale abuses in the future. Already, changes have occurred. In Philadelphia on June 8, a judge dismissed asbestos cases involving more than 100,000 plaintiffs against 46 asbestos defendants. The judge will allow a case to be refiled only if the plaintiff's lawyer can find a credible doctor to testify. Six of the physicians involved in the silicosis cases were also involved in the asbestos lawsuits.