Previous month:
July 2005
Next month:
September 2005

Excerpts from Judge Jack's Opinion--reflecting on the mess that results when lawyers practice medicine and doctors practice law

Judge Jack's opinion is worth reading, it is only about 99 pages until you get to the appendix. Kudos to the Point of Law blog for being on top of this.  Here are some excerpts from the opinion (everything that follows is a quote from the opinion):

Silicosis is one of the oldest recognized occupational diseases, with cases recorded as far back as the 16th century.  In the early 1930's, the Tennessee Valley Authority built the "Hawk's Nest Tunnel" through Gauley Mountain in West Virginia to build a hydroelectric facility. In order to accomplish this, the workers drilled though one mile of almost pure silica. Five thousand people worked on this project; no safety precaut ions were taken to prevent respirable--silica exposure. Approximately 1,200 workers developed silicosis, and approximately 400--600 of these workers perished fromthe disease. This is known as the "Hawk's Nest incident," and it is considered America's worst industrial disaster.

            . . . .

However, in 2002, the number of new Mississippi [*37] silicosis claims skyrocketed to approximately 10,642. In 2003 and 2004, the number of new silicosis claims in Mississippi continued to be shockingly high, at 7,228 claims in 2003 and 2,609 claims in 2004. By way of comparison, in 2002, on average, more silicosis claims were filed per day in Mississippi courts than had been filed for the entire year only two years earlier. And during 2002--2004, the 20,479 new silicosis claims in Mississippi are over five times greater than the total number of silicosis cases one would expect over the same period in the entire United States. This explosion in the number of silicosis claims in Mississippi suggests a silicosis epidemic 20 times worse than the Hawk's Nest incident. Indeed, these claims suggest perhaps the worst industrial disaster in recorded world history.

And yet, these claims do not look anything like what one would expect from an industrial disaster.

            . . . .

In short, this appears to be a phantom epidemic, unnoticed by everyone other than those enmeshed in the legal system: the defendants, who have already spent millions of dollars defending these suits; the plaintiffs, who have been told that they are suffering from an incurable, irreversible and potentially fatal disease; and the courts, who must determine whether they are being faced with the effects of an industrial disaster of unprecedented proportion----or something else entirely.

. . . .

II. Daubert Hearings/Court Depositions
A. The Need for the Hearings
Prior to turning to the evidence adduced at the hearings, it is helpful first to summarize the facts that warranted them. As the Plaintiffs' Fact Sheets came pouring into the document [*61] depository, something remarkable became apparent. As required by this Court's orders, the Fact Sheets list all of the Plaintiffs' physicians----not just the physicians who diagnosed the Plaintiffs with silicosis. In total, the more than 9,000 Plaintiffs who submitted Fact Sheets n23 listed the
names of approximately 8,000 different doctors. And yet, when it came to isolating the doctors who diagnosed Plaintiffs with silicosis, the same handful of names kept repeating. All told, the over 9,000 Plaintiffs who submitted Fact Sheets
were diagnosed with silicosis by only 12 doctors. n24 In virtually every case, these doctors were not the Plaintiffs' treating physicians, n25 did not work in the same city or even state as the Plaintiffs, and did not otherwise have any obvious connection to the Plaintiffs. Rather than being connected to the Plaintiffs, these doctors instead were affiliated with a handful of law firms and mobile x--ray screening companies.

. . . .

The twelve doctors are: Dr. Robert Altmeyer, Dr. James Ballard, Dr. Kevin Cooper, Dr. Todd Coulter, Dr. Andrew Harron, Dr. Ray Harron, Dr. Glynn Hilbun, Dr. Richard Levine, Dr. Barry Levy, Dr. George Martindale, Dr. W. Allen Oaks, and Dr. Jay Segarra. The diagnoses and underlying methodology of Dr. Altmeyer and Dr. Levine
are not discussed in this Order. By agreement of the parties (because of the relatively small number of diagnoses Dr. Altmeyer and Dr. Levine issued), neither doctor testified at the Daubert hearings/Court depositions.

. . . .

Despite this language in his reports, during his deposition Dr. Martindale admitted that he did not diagnose any Plaintiff with silicosis. He admitted that he did not speak to a single Plaintiff; he only prepared "B--readings" of Plaintiffs' chest x--rays. n28 (Martindale Dep. at 73.) Indeed, he testified that he did not even know the criteria for making a diagnosis of silicosis. (Martindale Dep. at 70.)

. . . .

At the next in--person status conference after Dr. Martindale's deposition, on December 17, 2004, the Court expressed concern about Dr. Martindale's withdrawal of his diagnoses, and thereafter proposed Daubert hearings/Court depositions
for all of the remaining diagnosing doctors, as well as the screening companies (such as N&M) that hired most of them. (Dec. 17, 2004 Status Conf. Trans. at 17--18, 24.) When the Court proposed these hearings, Plaintiffs' liaison counsel readily agreed. Plaintiffs' liaison counsel emphasized that the Plaintiffs' lawyers were "caught . . . by great surprise" by Dr. Martindale's testimony, and he indicated that the testimony of the other diagnosing doctors would be different. . . .
. . . .
Plaintiffs' liaison counsel also spoke repeatedly of the Plaintiffs' lawyers' "grave concerns as to how [Dr. Martindale] got flipped." (Id. at 45; see also id. at 18--20, 39.) [*77] In light of these concerns, Plaintiffs' liaison counsel asked for an order that defense counsel would not be allowed to contact any of Plaintiffs' experts without first obtaining permission of Plaintiffs' counsel. (Id. at 41, 45--46.)
. . . .
It is worth remarking why the Court conceived of the----for lack of a better phrase----"Daubert hearings/Court depositions." n33 These were the most efficient and effective way to allow the Defendants to depose the doctors (as is their
right under the Federal Rules of Civil Procedure), while providing direct Court supervision over the proceedings----which seemed advisable in light of the allegations (or at least, intimations) of misconduct made by both sides.
. . . .
Dr. Hilbun was paid $5,000 per day for performing abbreviated exams for five days of screenings in Columbus, Mississippi, on April 22--26, 2002. (Hilbun Dep. at 28--29, 32--34, 38.) Lured by what he considered [*83] to be "easy money," Dr. Cooper performed abbreviated exams in Pascagoula, Mississippi on April 15--16 and May 15, 2002. (Cooper Dep. at 22--23, 83.) . . . .
. . . .
N&M provided Dr. Hilbun and Dr. Cooper with this form----the doctors had no input in drafting it or the prepared questions they asked during the exams. (Hilbun Dep. at
35; Cooper Dep. at 23--25, 28--31.) Dr. Cooper testified that it was "easy work" because his role [*84] was exceedingly limited "compared to what I do in my normal practice." (Cooper Dep. at 83.) He stated: "not having to make a call
about anything whatsoever, not having to make a diagnosis, write a prescription, do anything like that, that's easy work." (Cooper Dep. at 83.) Both doctors emphasized that they did not diagnose any of the Plaintiffs with silicosis. (Hilbun Dep. at 19; Cooper Dep. at 20.) Indeed, both doctors testified that they had never diagnosed anyone with silicosis. (Hilbun Dep. at 19; Cooper Dep. at 114.)

Sometime after the screenings, N&M presented both doctors with typed forms for their signature. Both doctors testified that they believed these forms were typed versions of their physical examination reports. A sample of these
N&M--prepared typed forms is attached as Exhibit 5 (Dr. Hilbun) and Exhibit 6 (Dr. Cooper). All of the forms contained the following language:
On the basis of this client's history of occupational exposure to silica and a B reading of the clients chest x--ray, then within a reasonable degree of medical certainty, [Plaintiff] has silicosis.
Exposure to silica is associated with an increased incidence of lung cancer, connective tissue [*85] diseases and autoimmune diseases. Therefore, this client should consult with his or her physician. (Exs. 5 & 6.) Both doctors testified that, contrary to the language in the typed forms, they did not see any x--rays, x--ray
reports or pulmonary function tests, and they did not diagnose any Plaintiff with silicosis. (Hilbun Dep. at 19--22, 52, 56-- 62, 84, 89--90, 94; Cooper Dep. at 19--21, 40, 47--51.) Despite the false information on the forms, Dr. Cooper personally
signed and dated 249 typed forms. (Cooper Dep. at 60.) Dr. Cooper testified that he failed to read any of the forms as he signed them, because he was "very, very busy." (Cooper Dep. at 20, 60, 66.) Dr. Hilbun testified that he never reviewed
the typed forms, but simply instructed his assistant to stamp his name on the forms. (Hilbun Dep. at 22, 61--62.) N&M then presented the signed forms to Campbell Cherry, who placed them in the document depository pursuant to this Court's
Order No. 6. . . . .
. . . .
In 1994, Heath Mason and Molly Netherland, the co--owners of N&M, and Charles Foster, the owner of RTS, were all employees of another Alabama screening company called "Pulmonary Testing Service." Mr. Foster left Pulmonary Testing Service at that time to form RTS, and Mr. Mason and Ms. Netherland formed their company two years later, after Pulmonary Testing Service went out of business. (Feb. 17, 2005 Trans. at 269; Feb. 18, 2005 Trans. at 169.) At the time he formed N&M, Mr. Mason was 21 years old; he had dropped out of junior college after only a year and had worked at Pulmonary Testing Service for less than two years. (Feb. 17, 2005 Trans. [*110] at 268.) Neither Mr. Mason nor Ms. Netherland had (or currently have) any medical training and N&M has never had a medical director. n54 (Feb. 17, 2005 Trans. at 271--72, 276.) What Mr. Mason did possess was contacts with paralegals at law firms. (Feb. 17, 2005 Trans. at 274.) Ms. Netherland had the seed money for the business and access to x--ray equipment from her husband's chiropractic office. (Feb. 17, 2005 Trans. at 271, 275.)
. . . .
If the patient who was diagnosed with silicosis signed--up with Campbell Cherry to be a plaintiff, then Campbell Cherry paid N&M $750 for screening that patient. (Feb. 17, 2005 Trans. at 301--03, 325.) If the patient was not diagnosed with silicosis or did not sign--up with Campbell Cherry, N&M was paid nothing. (Feb. 17, 2005 Trans. at 301--03, 325.) Campbell Cherry represents approximately 4,256 Plaintiffs in this MDL, meaning N&M likely was paid $3,192,000 for its Campbell Cherry work. (Feb. 17, 2005 Trans. at 363.) For each of the approximately 2,000 Plaintiffs represented by
O'Quinn, Laminack & Pirtle, N&M was paid $ [*125] 335 per positive diagnosis. (Feb. 17, 2005 Trans. at 363--64.) Because of this fee structure, Mr. Mason testified that the emphasis was on attracting as many people as possible to the screenings and creating as many positive diagnoses as possible; as he stated, "From a business standpoint of mine, you had to do large numbers." (Feb. 17, 2005 Trans. at 282.)
. . . .
Overall, N&M----a small Mississippi company operated without medical oversight----managed to generate the diagnoses for approximately 6,757 MDL Plaintiffs. To place this accomplishment in perspective, in just over two years, N&M
found 400 times more silicosis cases than the Mayo Clinic (which sees 250,000 patients a year) treated during [*132] the same period. (Feb. 18, 2005 Trans. at 230.) Furthermore, when comparing the names of the approximately 6,757
N&M--generated MDL Plaintiffs with the names in the Manville Personal Injury Settlement Trust (a trust established for asbestos claims after the Johns--Manville Corporation bankruptcy n67, at least 4,031 N&M--generated Plaintiffs have
also made asbestosis claims. (N&M Ex. 38.) The magnitude of this feat becomes evident when one considers that many pulmonologists, pathologists and B--readers go their entire careers without encountering a single patient with both silicosis
and asbestosis. See Feb. 18, 2005 Trans. at 89--90, 263--64; Friedman Ex. 2; see also Dr. David Weill, Senate Judiciary Committee Testimony, Fed. Doc't Clearinghouse at 4 (Feb. 3, 2005); Dr. Theodore Rodman, Senate Judiciary Committee Testimony, Fed. Doc't Clearinghouse at 2 (Feb. 2, 2005). Stated differently, a golfer is more likely to hit a hole--in--one than an occupational medicine specialist is to find a single case of both silicosis and asbestosis. N&M parked a van in some parking lots and found over 4,000 such cases.
. . . .
From 1995 until the present, Dr. Harron has worked exclusively for plaintiffs'
lawyers, reading x--rays and diagnosing asbestosis and silicosis for use in litigation. (Feb. 16, 2005 Trans. at 258--60.) Specifically, all of Dr. Harron's "pneumoconiosis work" has been for N&M. (Feb. 16, 2005 Trans. at 277.) From 1995 through approximately 2000, Dr. Harron's work for N&M focused on asbestosis cases. (Feb. 16, 2005 Trans. at 279.) Beginning in 2001, his focus shifted to silicosis cases. (Feb. 16, 2005 Trans. at 279--80.) Dr. Harron testified as follows about his diagnosing process:
If there's a history of exposure with some latency and then I've got an x--ray, then I can tie it together and say 'within a reasonable degree of medical certainty' this individual has whatever pneumoconiosis I think it is. And 'within a reasonable degree of medical certainty,' it is my understanding that all the lawyers on both
sides of this room agree means better than a 50 percent chance that this is what the diagnosis [*134] is. It's not a diagnosis the way a treating physician would have to make a diagnosis. . . . (Feb. 16, 2005 Trans. at 267--68.) Dr. Harron explained that based upon diagnoses "to a reasonable degree of medical certainty," he would not "put [the clients] on drugs, do radiation therapy, put radium in them, [or] refer them to a surgeon for some kind of invasive work." (Feb. 16, 2005 Trans. at 308.) Stated differently, Dr. Harron believes "it's a legal standard and not a real diagnosis." n68 (Feb. 16, 2005 Trans. at 268.)
. . . .
Just as the Defendants prepared to introduce a packet of eight more identical asbestosis/silicosis reversals by Dr. Harron, Dr. Harron stated to the Defendants' attorney, "if you're accusing me of fabricating these things, I think that's a serious charge." (Feb. 16, 2005 Trans. at 344.) When the Court responded that the Defendants seemed to be making that accusation----and defense counsel agreed----Dr. Harron asked for representation. (Feb. 16, 2005 Trans. at 344--45.) The Court ended his testimony at that point in order to allow Dr. Harron to hire an attorney. (Feb. 16, 2005 Trans. at 344--46.) . . . .
. . . .
In short, when Dr. Harron first examined 1,807 Plaintiffs' x--rays for asbestos litigation (virtually all done prior to 2000, when mass silica litigation was just a gleam in a lawyer's eye), he found them all to be consistent only with asbestosis and not with silicosis. But upon re--examining these 1,807 MDL Plaintiffs' x--rays for silica litigation, Dr. Harron found evidence of silicosis [*147] in every case. n78 This volume of reversals, according to Dr. Segarra (another Plaintiffs' expert) and Dr. Friedman, simply cannot be explained as intra--reader variability. n79 (Feb. 17, 2005 Trans. at
15; Feb. 18, 2005 Trans. at 298.) . . . .
. . . .
In summary, the following is clear: the reliability of Dr. Levy's diagnoses are dependant upon the reliability of the B--readers (primarily Dr. Ballard); [*168] Dr. Levy worked at a break--neck pace which apparently led to some errors; and his exposure and medical histories were not taken by medically--trained people and were below the standard set by his writings and his "protocol." Finally, it is clear that Dr. Levy had an agenda: diagnose silicosis and nothing else. . . .
. . . .
It is clear that Dr. Levy saw his role with respect to these cases as beginning and ending with litigation. In one of his published articles, Dr. Levy advises a diagnosing physician to inform appropriate entities of the diagnosis for the good of
other workers and of society: If a work--related illness is diagnosed, the physician can play a critical role in [*169] developing and implementing preventative measures such as educating or advising the patient, reporting the case with the patient's permission to the employer and/or the union if one exists, contacting an appropriate governmental agency if the situation dictates the need, instituting substitutions for or measures to engineer out of work place hazard and conducting further research on the problem. (Feb. 16, 2005 Trans. at 221.) Dr. Levy made this recommendation to physicians who diagnose a single work--related illness. In this MDL, Dr. Levy diagnosed 1,389 cases of silicosis. (Defs.' Resp. PTO 27, MDL 03--1553 Docket Entry 1826, Ex. C.2.) Yet despite the fact that Dr. Levy has provided consulting services to NIOSH, OSHA, the CDC, the Environmental Protection Agency, and the World Health Organization----and therefore would know the proper people to call if he felt it was appropriate----he chose to notify no one but the lawyers who paid his bills . . . .
. . . .
All told, during eleven days of screenings, Dr. Coulter saw approximately 600 people, approximately half of whom he diagnosed with silicosis. n91 (Feb. 17, 2005 Trans. at 75.) By contrast, after ten years of operating his own high--volume clinic, n92 Dr. Coulter has diagnosed approximately six people with silicosis. (Feb. 17, 2005 Trans. at 69.) Dr. Coulter testified that he spent up to 15 minutes with each of the clients----although it is difficult to believe this was common, since given the volume of people he saw (between 50 and 60 a day), he would have had to work 15--hour days with no breaks. . . . .
. . . .
As discussed above, on a number of different levels, the claims in this MDL defy all medical [*183] knowledge and logic. The United States has enjoyed a steady 30--year decline in silicosis rates and mortality. And yet Mississippi, a State ranked only 43rd in the U.S. in silicosis mortality, recently experienced a crush of new silicosis lawsuits, many of which are now before this Court. As Dr. Friedman testified, there simply is no rational medical explanation for the number of alleged diagnoses of silicosis in this MDL. (Feb. 18, 2005 Trans. at 221.) That, however, does not mean there is no
explanation at all for the cases.
If searching for an explanation in the legal field, one might focus on the fact that most of the cases were filed just prior to the effective dates of a series of recent legislative "tort reform" measures in Mississippi. One might also focus on the decline in asbestosis lawsuits, leaving a network of plaintiffs' lawyers and screening companies scouting for a new means of support. (Feb. 17, 2005 Trans. [*173] at 98.)
. . . .
The unsound nature of the diagnoses is betrayed not only by the opportunistic transformations of asbestosis reads into silicosis reads, but also by the improbable consistencies among the silicosis reads. Reader variability is most likely to
occur on profusions (Feb. 18, 2005 Trans. at 137--38), and yet this is the one area where the B--readers were implausibly [*211] consistent. In reviewing the 6,510 B--reads produced during Plaintiffs' initial disclosures, over 92 percent of the
profusions were 1/0 or 1/1, while less than 2 percent were 2/1 or greater (i.e., 2/1, 2/2, 2/3, 3/2, 3/3, or 3/+). (Defendants' Motion to Exclude Plaintiffs' Experts, MDL 03--1553 Docket Entry 1149, at 13.) As recounted above with respect to Dr.
Ballard and Dr. Oaks, the consistencies in profusion "defies all statistical logic and all medical and scientific evidence of what happens to the lung when it's exposed to workplace dust." (Feb. 18, 2005 Trans. at 81--82.) Similarly, Dr. Coulter's
findings in 237 out of 237 cases that the Plaintiffs' silicotic opacities were found in the lower lobes is "so unlikely as to not be possible." (Feb. 18, 2005 Trans. at 90.)
Finally, it is worth noting that this evidence of the unreliability of the B--reads performed for this MDL is matched by evidence of the unreliability of B--reads in asbestos litigation. In a study published in Academic Radiology, the authors
set up a blinded panel of B--readers to interpret 492 chest x--rays previously read by physicians employed by plaintiffs' lawyers in asbestos litigation. The plaintiffs' doctors had [*212] found that 95.9 percent of the x--rays were positive for changes consistent with asbestos. The blinded panel, however, found that only 4.5 percent of the x--rays had changes consistent with asbestosis. n111 See also Carl B. Rubin & Laura Ringenbach, The Use of Court Experts in Asbestos Litigation, 137 F.R.D. 35, 39, 45 (1991) (recounting that in 65 asbestos cases before U.S. District Judge Carl C. Rubin,
court--appointed medical experts found no radiographic evidence of any asbestos--related condition in 42 cases).
. . . .
A review of all of the submitted Fact Sheets is telling. In the approximately 9,083 Fact Sheets submitted in this MDL as of the date of the Daubert hearings, approximately 8,000 treating doctors are named. (Feb. 18, 2005 Trans. at 257.)
But when it comes to the doctors who diagnosed these Plaintiffs with silicosis, 12 names appear. (Feb. 18, 2005 Trans. at 259.) Twelve doctors diagnosed all 9,083 Plaintiffs. This small cadre of non--treating physicians, financially beholden
to lawyers and screening companies rather than to patients, managed to notice a disease missed by approximately 8,000 other physicians----most of whom had the significant advantage of speaking to, examining, and treating the Plaintiffs.
One possible explanation is the fact that in every case involving a screening company, the diagnoses were essentially [*223] manufactured on an assembly line. The steps in the diagnosing process were divided among a number of different people, not all of whom were qualified and none of whom assumed overall responsibility and oversight for the entire process. Thus, in many cases, a different person performed each of the following steps: taking the occupational history, performing the physical exam, reading the x--ray, analyzing the pulmonary function tests, taking the medical history, and finally, making a diagnosis. The people performing the steps were so compartmentalized that often they did not know the others' identities, let alone whether they were qualified and were performing their assigned tasks correctly. Hence, for example, Dr. Levy issued 1,389 diagnoses for Plaintiffs he had never met, by relying totally on cursory work and exposure "histories" taken by untrained receptionists he had never met (and whom he was deluded into believing were physicians who spent 90 minutes with each Plaintiff), B--read reports by doctors he had never met (and without even glancing at the x--rays), and cursory "physicals" and "medical histories" performed by other doctors he had never met. Most stunningly,
this assembly [*224] line structure allowed Dr. Martindale to reconcile his acquiescence in false diagnosing language.

Dr. Martindale testified:

My interpretation of the whole process was that a physician was taking a good occupational history, a medical history, performing a physical exam, and either he or someone else was overseeing the pulmonary function tests, and there was an interpretation of the chest x--ray at the time all of this was done, and these patients
were screened for people who appeared as if they had clinical diagnoses of asbestosis or silicosis and the chest x--ray supported that diagnosis.

(Martindale Dep. at 65--66; see also id. at 102 ("I assumed that the physician who did the physical, did the history, took the occupational exposure would be making the diagnosis.").) Because he believed some other physician had taken all
of the proper diagnosing steps, he apparently felt he would cause no harm if he failed to do so himself. . . .
. . . .
What the Court is criticizing is the idea that when doctors step into a courtroom, they can abandon the methodology they practice in the clinic. Dr. Friedman, who devotes a substantial amount of time consulting and testifying for plaintiffs, testified that there should be no distinction between a medical diagnosis and a "legal diagnosis." (Feb. 18,
2005 Trans. at 283.) . . . .
. . . .
It is also readily apparent that the failure of the challenged doctors to observe the same standards for a "legal diagnosis" as they do for a "medical diagnosis" renders their diagnoses in this litigation inadmissible under Rule 702. As both the Supreme Court and the Fifth Circuit have directed: "The district court's responsibility 'is to make certain that an expert ... employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" Skidmore v. Precision Printing & Pkg., Inc., 188 F.3d 606, 618 (5th Cir. 1999) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 143 L. Ed. 2d 238, 119 S. Ct. 1167 (1999)).

If nothing else, this MDL illustrates the mess that results when lawyers practice medicine and doctors practice law. In almost all of these cases, one vital requirement for the diagnosis of silicosis----the taking of occupational histories----was performed absent medical oversight by the lawyers [*228] or their agents or contractors. More generally, the lawyers determined first what disease they would search for and then what criteria would be used for diagnosing that disease. The lawyers controlled what information reached the diagnosing physicians, stymying the physician's normal ability to ask targeted follow--up questions and perform follow--up exams. n115 The lawyers also controlled what information reached the patients, stymying the patient's normal ability to learn from a medical professional details about their diagnosis, their prognosis, and what, if any, follow--up care they should receive. Indeed, a lawyer from the Plaintiffs' firm of Barton & Williams summarized the problem most succinctly when he argued that the doctors' B--reads of his clients are attorney work product. n116 (Feb. 18, 2005 Trans. at 9--11.) In the majority of cases, these diagnoses are more the creation of lawyers than of doctors. . . .
. . . .
Conversely, virtually all of the challenged diagnosing doctors seemed to be under the impression they were practicing law rather than medicine. They referred to the Plaintiffs as "clients" rather than "patients", and they utilized shockingly relaxed standards of diagnosing that they would never have employed on themselves, their families or their patients in their clinical practices. Almost uniformly, they phrased their diagnoses with the legal incantation "reasonable degree of medical certainty" or "reasonable degree of medical probability." Dr. Harron summarized it best: "It's a legal standard and not a real diagnosis." n117 (Feb. 16, 2005 Trans. at 268.) And, finally, despite diagnosing a serious and completely preventable disease at unprecedented rates, not a single doctor even bothered to lift a telephone and notify any governmental agency, union, employer, hospital or even media outlet, all of whom conceivably could have taken steps to ensure recognition of currently--undiagnosed silicosis cases and to prevent future cases from developing. One can imagine the outcry that would have resulted had these doctors kept silent after diagnosing thousands of new cases of avian flu or [*230] mad-- cow disease. Had these doctors been acting as doctors----and had they genuinely believed their diagnoses were legitimate---- they would have taken this simple and humane step. . . .

Instead, these diagnoses were about litigation rather than health care. And yet this statement, while true, overestimates the motives of the people who engineered them. The word "litigation" implies (or should imply) the search for truth and the quest for justice. But it is apparent that truth and justice had very little to do with these diagnoses----otherwise more effort would have been devoted [*231] to ensuring they were accurate. Instead, these diagnoses were driven by neither health nor justice: they were manufactured for money. The record does not reveal who originally devised this scheme, but it is clear that the lawyers, doctors and screening companies were all willing participants. And if the lawyers turned a blind eye to the mechanics of the scheme, each lawyer had to know that Mississippi was not experiencing the worst outbreak of silicosis in recorded history. Each lawyer had to know that he or she was filing at least some claims that falsely alleged silicosis. The fact that some claims are likely legitimate, and the fact that the lawyers could not precisely identify which
claims were false, cannot absolve them of responsibility for these mass misdiagnoses which they have dumped into the judicial system. . . .
. . . .
Many of the effects of the mass misdiagnoses are obvious, but they nonetheless should be noted. Limited judicial resources are consumed weeding out meritless claims, costing the judiciary, costing other litigants whose suits are delayed, and ultimately costing the public, who pays for a judicial system that is supposed to move [*232] with some degree of speed and efficiency.

Defendant companies pay significant costs litigating meritless claims. And what harms these companies also harms the companies' shareholders, current employees, and ability to create jobs in the future. And, potentially, every meritless claim that is settled takes money away from Plaintiffs whose claims have merit. And
not only are those with meritorious claims denied just compensation, they are potentially denied full and meaningful access to the courts. As is apparent simply by a reading of this Order, it is difficult for a court to devote attention to a single case when it is part of a wave of 10,000 other cases----many of which are meritless.

Then there is the toll taken on the misdiagnosed Plaintiffs. If these Plaintiffs truly have abnormal x--rays, then the radiographic findings may be caused by a number of conditions other than silicosis. And when the diagnosing doctors fail to exclude these other conditions, it leaves the Plaintiffs at risk of having treatable conditions go undiagnosed and untreated. In the case of the Plaintiffs who are healthy, at least some of them can be expected to have taken their diagnoses seriously. They can [*233] be expected to have reported the diagnoses when applying for health insurance and life insurance----potentially resulting in higher premiums or even the denial of coverage altogether. They can be expected to report the diagnoses to their employers and to the Social Security Administration. And they can be expected to report the
diagnoses of this incurable disease to their families and friends. These people have been told that they have a life--threatening condition: but they are not told by a doctor; they are told by a lawyer----apparently in most cases through the mail. In most cases, they never saw the doctor who diagnosed them. And in most cases, they never had the opportunity to ask the diagnosing doctor questions about the diagnosis and
what it means. When dealing with this MDL and its 10,000 Plaintiffs, it is easy to forget that "statistics are human beings with the tears wiped off." (Feb. 18, 2005 Trans. at 252 (quoting Dr. Irving Selikoff).) But it should not be forgotten that a
misdiagnosis potentially imposes an emotional cost on the Plaintiff and the Plaintiff's family that no court can calculate.
. . . .
Not only does a false diagnosis detract from the person who has silicosis, but it potentially harms future silicosis prevention. There is a risk that governmental entities, employers and the public will learn of this bevy of misdiagnoses and fail to take the steps that need to be taken to further prevent worker exposure to respirable silica. It is evident from the testimony before this Court, as well as studies by NIOSH and others, that silicosis is a continuing tragedy in our country. Those suffering the
effects of the disease do not need an inflated number of [*235] claims to lend gravitas to their situation. Their tragedy stands on its own.
. . . .
Defendants' Motions for Sanctions will be GRANTED as to Alexander. The law firm of O'Quinn, Laminack & Pirtle ("O'Quinn") has multiplied the proceedings unreasonably and vexatiously, and will be required to satisfy personally Alexander's proportionate share (i.e., one percent) of Defendants' reasonably incurred costs, expenses and attorneys' fees for the Daubert hearings conducted on February 16--18, 2005. The Court does not yet fix the amount of this sanction. Instead, within seven days from the date of this Order, O'Quinn must file a statement with the Court either admitting or denying the Court's estimate of $825,000 as the total amount of fees, costs and expenses Defendants reasonably incurred due to the three--day Daubert hearings. Should O'Quinn deny the $825,000 figure, the Court first will allow Defendants
to prove their actual fees, expenses and costs for the Daubert hearings, and then will allow O'Quinn to challenge those amounts and their reasonableness; finally, the Court will sanction O'Quinn for [*367] Alexander's proportionate share of the actual fees, expenses and costs Defendants reasonably incurred. Regardless of whether O'Quinn admits or denies the $825,000 figure, the amount of the sanction will be set in a later order.

Critical Article about AIG in Washington Post

The Washington Post recently slammed AIG based on allegations about certain claims handling practices.  One passage caught my eye:

Robert Cook, a supervisor from 1978 to 1985, said that under an AIG "check-retention policy," checks owed insureds, vendors and others were simply locked in a safe until payees complained. Cook said AIG created an internal form to keep track of complaints. Even then, Cook said, he had to cajole the regional manager, Robert C. Davidson, with special "buzzwords" to convey the urgency of the complaint.

One has to wonder why 20 year-old events are being resurfaced in this article. 

I've heard rumors about this sort of "check retention" practice, but those rumors weren't about AIG, but an unrelated company.

The insurance  business is tough and competitive, and in my brief career I've seen large insurers like The Home Insurance Company, Aetna, and Reliance go out of business.  And that's the other side of the issue.  People want their claims paid promptly and in full,  but more importantly they also want their insurer to still be in business if and when, down the road, a large claim needs to be paid.  As the Post reporter pointed out:

But AIG has long stood out. Five times as large as its nearest competitor, it is also the industry's most successful and influential company. AIG shares have returned a stunning 4,800 percent over the past three decades, far better than its peers and five times better than the Dow Jones industrial average. Its many innovations -- from new products to claims handling -- have been widely imitated, insurance brokers and competitors say.

Later:  Jonathan G. Stein, who is a personal injury attorney in California who has worked as an insurance adjuster, condemns practices like this.  Mr. Stein's California Personal Injury and Insurance Blog is well worth visiting.

Continue reading "Critical Article about AIG in Washington Post" »

Named Driver Exclusion Is Void In Commercial Auto Policies

In Zelinski v. Townsend, the Maryland Court of Special Appeals said that the named driver exclusion is void in a commercial auto policy. 

Interestingly, Harleysville, which was the insurer, had filed a declaratory judgment action in the U.S. District Court for the District of Maryland, to establish that it had no duty to defend or indemnify, based on the named driver exclusion.  The declaratory judgment action resulted in a finding that Harleysville was relieved of any obligation to defend or indemnify claims arising out of the accident in question.  However, the claimants in the underlying tort action were not made a party to the declaratory judgment action.

Meanwhile, in the underlying tort suit, there was a three day jury trial which resulted in a $6 million verdict.  The tort claimants then had a writ of garnishment issued against Harleysville Ins. Co.

Harleysville moved to dismiss the writ of garnishment, on the grounds that it had already received a judgment stating that it had no duty to defend or indemnify that claim.  The trial court granted Harleysville's motion.

On appeal, the Court of Special Appeals found that the trial court erred in dismissing the writ of garnishment, stating as follows:

It is well settled that, in a declaratory judgment action
initiated by an insurance company that seeks to be “relieved of
any duty to defend or indemnify” its insured against claims
arising out of an accident caused by the insured’s negligence,
the insured is not in privity with a victim of the insured’s
negligence. Therefore, because appellants were not parties to
the federal declaratory judgment action, there is no merit in the argument that the writ of garnishment was properly quashed on the ground of either res judicata or collateral estoppel.

The opinion does not give any details about the timing of these events, but it seems to be a very strange result , assuming that the judgment in the DJ action was handed down before the judgment in the underlying tort action.  Without doing any legal research, here is my seat of the pants view: 

Maryland is not a direct action state, and a third party tort claimant cannot bring suit directly against a tortfeasor's insurer until the claimant has received a judgment and it has gone unsatisfied.  Therefore, it seems to me that the claimants had no rights to, or interest in, the Harleysville policy until they had secured a judgment, and that they were not necessary parties to the DJ action. 

Further, after Harleysville had obtained a judgment in the DJ action that it had no obligation to defend or indemnify Townsend, the at-fault driver, he then had no right or interest in the Harleysville policy, and the claimants by taking a judgment against Townsend could not accede to rights to the policy greater than the rights that Townsend had. 

Or, to put it another way, the claimants cannot file a writ of garnishment against nonexistent insurance coverage.  A writ of garnishment can only attach property rights of the judgment debtor as they exist at the time the judgment is entered, and Townsend had no rights in that policy.

Instead of going through that kind of analysis, the Court simply rejects the notion that the federal court's judgment had a res judicata or collateral estoppel effect against the claimants.  I think that is missing the real issue.

Now, it may be that the trial court granted the motion to dismiss the writ of garnishment on res judicata or collateral estoppel grounds, although the opinion does not say that directly.  Further, it may be that the Court of Special Appeals regarded the motion to dismiss as a motion for summary judgment, because extraneous matters were considered, and that it could not affirm on grounds other than those considered by the trial court -- although the opinion does not say that either. Alternatively, it may be that the judgment in the DJ action was entered subsequent in time to the verdict in the underlying tort action -- but as I already pointed out, the opinion does not disclose the timing of these events either.

In the Maryland Daily Record, dated July 13, the lead counsel for the tort claimants is quoted as saying that "The most important part of this case in the long run is the very first part of the decision", which is what is discussed above.   That may be true, if it were possible to figure out what the Court of Special Appeals really decided here.   

I think in practice the decision will be easily distinguished.

Harleysville has a difficult decision to make as far as whether to file a petition for cert. to the Court of Appeals on this.  On one hand, they prevailed in a DJ action concerning coverage, and it must really stick in their craw to have that result disregarded by the Court of Special Appeals in such an offhand manner.  On the other hand, the Court of Special Appeals persuasively shows that the limited driver exclusion is void in a commercial motor vehicle policy.  Harleysville would be in the position of arguing to the Court of Appeals that the federal court's judgment should be determinative of the coverage question, even though it was (perhaps) wrongly decided and against the public policy of Maryland.  The result could be an even worse precedent.

Maryland Court of Appeals Holds That Failure To Renew Motion for Judgment At Close of All of the Evidence Nullifies A Party's Right to File a Motion for JNOV Following An Adverse Jury Verdict

In General Motors Corp. v. Seay, No. 66, Sept. Term 2004, the Court of Appeals of Maryland held that the terms of Maryland Rule 2-532(a) are mandatory and unambiguous.  Under that rule, a party may move for judgment notwithstanding the verdict ONLY if that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion.  Thus, verdicts totaling $500,000.00 were reinstated.

Failure to renew the motion for judgment at the close of all of the evidence nullifies a party's right to file a motion for JNOV following an adverse jury verdict.

The problem was that although during the trial, GM made a motion for judgment at the close of the plaintiff's case-in-chief, and again at the close of its own case, it did not renew the motion following the presentation of rebuttal testimony by the plaintiff.

The Court of Appeals noted that the federal circuits are split regarding whether a motion or renewal of a motion for judgment at the close of all the evidence is a mere technicality or a prerequisite to a post-trial motion for judgment.

The Court remanded the case to the trial court, for resolution of plaintiff's undecided claim for punitive damages.  (However, one must wonder what chance the plaintiff has for punitive damages, where the trial court already granted a motion for JNOV.)

Continue reading "Maryland Court of Appeals Holds That Failure To Renew Motion for Judgment At Close of All of the Evidence Nullifies A Party's Right to File a Motion for JNOV Following An Adverse Jury Verdict" »