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Washington Examiner
November 22, 2005

One judge starts draining fetid legal swamp

What a difference a principled judge can make. On Aug. 24 this editorial series reported on Judge Janis Graham Jack of the U.S. District Court in Corpus Christi, Texas.

Defendants had referred lawsuits from some 10,000 silicosis plaintiffs to her court, seeking to have them combined for trial. As it turned out, Jack didn't have jurisdiction, so she returned most of the cases to the state courts where they originated, mainly in Mississippi. But not before dredging up a swamp of corruption on the plaintiffs' side.

A handful of doctors had "diagnosed" thousands of cases of silicosis without seeing any patients or reading any medical histories. X-ray screening had been done by tin-pot companies run by people with no medical training.

Jack documented all this corruption in a searing, 249-page opinion. "The record does not reveal who originally devised this scheme," she wrote, "but it is clear that the lawyers, doctors and screening companies were all willing participants." Her opinion has since been changing the legal landscape nationwide. A few updates on this ongoing saga:

Just days after Jack's June ruling, a group of companies facing silicosis lawsuits in Ohio cited it to challenge plaintiffs' claims. They noted that more than half of the 1,750 plaintiffs had previously filed asbestosis suits. Experts had testified in Jack's court that contracting both silicosis and asbestosis is all but medically unheard of. Far more likely, plaintiff lawyers were recycling asbestosis claimants in silicosis cases.

In Madison County, Ill., a "magic jurisdiction" named 2004 Judicial Hellhole No.1 by the American Tort Reform Association, the number of asbestos lawsuits recently skyrocketed. In one week in September, the court was deluged with 172 suits for asbestosis and silicosis. Out of 33 plaintiffs claiming silicosis, one-third had also filed asbestos claims.

The National Law Journal reports that a Madison County judge responded by moving claims from unimpaired workers to "inactive dockets." Illinois has also passed laws requiring claimants to show some actual impairment when suing for asbestos exposure; the new laws also allow claims only from state residents, to stop venue-shopping by lawyers and plaintiffs from afar.

But frivolous litigation is a movable feast, and when it comes to venues, plaintiff lawyers love to shop. Delaware seems to be a current favorite. That state averages about 95 asbestosis lawsuits a year. Between July 1 and Oct. 13, 96 cases were filed in Wilmington.

But Jack's ruling has put a powerful new weapon in defense lawyers' hands. BusinessWeek reports that a federal judge in Pittsburgh "has indicated she will allow USG to send questionnaires to 1,000 of 150,000 asbestos plaintiffs to test the reliability of their medical diagnoses."

In a Philadelphia asbestos lawsuit, a federal judge is allowing defense lawyers to subpoena doctors and screening companies who diagnosed 150,000 to 200,000 plaintiffs. The defense cited Jack's opinion to support their motion.

In Cleveland, a federal court is allowing defense attorneys to use questionnaires to probe suspicious claims in silica and asbestos suits. Like the scheme uncovered by Judge Jack in Texas, a majority of the 1,100 Cleveland plaintiffs were diagnosed by a single physician, defense attorneys say.

The Manville Trust, created in 1988 to compensate people harmed by asbestos, has now barred payments to claimants who relied on nine doctors and three screening companies. Need we add that all are luminaries of Jack's proceedings?

Meanwhile, inspired by Jack's discoveries, a House subcommittee has begun investigating medical screeners and doctors in mass tort cases. In particular, the committee has subpoenaed four of the doctors who provided lawyers with thousands of dubious silicosis diagnoses in the Texas cases.

And finally, Senate Majority Leader Bill Frist has made asbestos reform a priority for January. The FAIR (Fairness in Asbestos Injury Resolution) Act would create a $140 billion fund to compensate asbestos victims — and effectively end the litigation jamboree that has paid out $70 billion to some 730,000 claimants, 90 percent of whom had no impairment.

Little by little, the fetid tide of lawsuit abuse is beginning to turn, and no small credit goes to the persistence of Judge Janis Jack. She was just doing her job, but old King Canute surely would have been impressed by the results.

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