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Doctors headed to court
Lawyers call the diagnoses wrong
By Neal Falgoust Caller-Times
February 16, 2005 - A major legal battle between industry groups and workers claiming to have been sickened by exposure to silica dust could reach a critical point this week in a local federal courtroom.
U.S. District Judge Janis Graham Jack has ordered several doctors responsible for diagnosing nearly 10,000 patients to appear in court for depositions after industry lawyers raised concerns that those diagnoses were fraudulent.
Jack will hear testimony from those doctors during the next three days to determine whether the workers' claims should go to trial or be thrown out of court.
Those depositions could prove crucial not only in the pending legal action but also in a broader political arena where industry groups are fighting to limit their liability in large asbestos and silica lawsuits.
"This is what we've been talking about all along," said Connie Scott, executive director of the Bay Area Citizens Against Lawsuit Abuse. "There is a problem, and it needs to be fixed."
At issue during the next three days will be the validity of nearly 10,000 evaluations made by doctors of patients recruited by silicosis screening companies. One of those companies, N&M Inc., of Pascagoula, Miss., is accused in court documents of inserting false language into the reports of one doctor who reviewed about 3,500 patient X-rays.
Kathryn Snapka, a member of the steering committee that represents the plaintiff workers, said all of the doctors were government certified and qualified to diagnose silicosis. She said the industry lawyers are attempting to mischaracterize the role of the screening company and the doctors in an attempt to deny the workers justice.
Daniel Mulholland, an industry lawyer, said that if Jack accepts the defense premise that the diagnoses were fraudulent, her ruling could set a nationwide standard in other class action cases, especially those involving asbestos claims. Some studies have found that 60 percent of the patients who filed silicosis claims previously filed asbestos claims, and the methods to diagnose those asbestos patients were similar to methods used in the silicosis case.
Because of the possible sweeping effect, Mulholland said national attention would be focused on what happens in Jack's Corpus Christi courtroom this week.
Protection lacking
Silicosis is a lung inflammation caused by exposure to silica dust. Crystalline silica, more commonly called quartz, is used in sandblasting, concrete demolition and the production of paint and fiberglass. The disease typically is diagnosed through the use of lung X-rays, a physical examination and a review of a patient's work history.
Thousands of workers claim they were injured by inhaling the dust and that the companies knew about the dangers of the dust but still allowed them to work without proper protection.
Dozens of industry groups are defending themselves in the litigation, including 3M Company, Lockheed Martin, Vulcan Materials and U.S. Silica.
Defense attorneys began raising questions about the validity of the workers' claims after an October 2004 deposition in which Dr. George Martindale, a Mobile, Ala., radiologist, withdrew his diagnoses of some 3,500 patients.
In that deposition Martindale said he thought he was providing only a second opinion on X-rays that had been confirmed by other doctors to show signs of silicosis.
"If another physician hadn't established a diagnosis of silicosis I would withdraw that," he said, according to court documents. "I would say that I am personally not making a diagnosis of asbestosis or silicosis."
N&M paid him $35 for each X-ray he read, according to Martindale's deposition.
After that deposition, industry lawyers raised questions about all of the diagnoses and asked that some of the claims be dismissed.
In legal papers, industry lawyers argue that Martindale's readings were improperly disguised as full diagnoses when N&M inserted fraudulent language into the doctor's report.
"Dr. Martindale ultimately acquiesced in and approved false diagnosis language, even though clinical diagnoses of silicosis were not something that he did or was trained to do," according to a motion made by the defendants.
"Dr. Martindale's testimony is a rare expose of the scheme by which screening companies such as N&M Inc., complicit physicians and others manufactured thousands of silicosis claims for litigation," according to the defense motion.
Many concerns
Snapka said the defense strategy is "an attempt to deny the plaintiffs' efforts to obtain justice."
Jack has ordered all of the doctors involved in the case to give depositions before she makes a ruling on whether those claims should proceed to trial.
Although it is common for lawyers to challenge the validity of opposing expert testimony, some local judges said it is rare for a federal judge to step in and order depositions of this magnitude and under these circumstances. Some said Jack's action shows there are serious questions that must be answered.
In fact, Jack herself has raised the possibility of fraud.
"It's clear this Martindale business is fraudulent," she said, according to a transcript of a Dec. 17 hearing in her court. "We can't paint it too many different ways."
Plaintiff's attorney Mikal Watts told Jack he also had concerns about Martindale's deposition.
"I will tell the court that with respect to the Martindale issue, it came as a great surprise to the member of our team that used him," Watts said. "We don't think it is indicative of what you're going to see with respect to the others."
Contact Neal Falgoust at 886-4334 or falgoustn@caller.com
More Delays on OSHA's Latest Agenda
By Katherine Torres
May 15, 2007 - OSHA's latest semiannual regulatory agenda, published in the April 30 Federal Register, includes predictable delays for long-awaited standards such as crystalline silica and occupational exposure to beryllium, to name a few.
Crystalline silica – a compound that workers in construction, maritime and general industry are routinely exposed to – has been cited as the cause of silicosis, which is a disabling, if not fatal, disease. The standard has been on OSHA's regulatory agenda for years, but it has not moved past the pre-rule stage. Previously slated for April, OSHA's latest agenda indicates that a complete peer review of health effects and risk assessment will be done by September.
Occupational exposure to beryllium also has been on OSHA's plate for some time now. Since 2001, OSHA has been in the process of gathering data through an official request for information in order to determine an appropriate course of action for addressing work-related hazards to beryllium. The agency, in its previous regulatory agenda, had indicated that the a SBREFA (Small Business Regulatory Enforcement and Fairness Act) panel would complete its report by March. The standard has been postponed to September.
OSHA Promised to Churn Out PPE Standard by November
Another hot topic on the agenda has been the employer-payment-for-PPE standard. The agenda notes that an interim final rule had been scheduled for April. However, in response to a lawsuit filed in January by AFL-CIO and the United Food and Commercial Workers Union, the Department of Labor promised that OSHA by November will issue a final rule on the standard. (For more read Chao: “OSHA Will Issue PPE Rule by November.”)
Ever since the United Nations adopted the Globally Harmonized System of Classification and Labeling of Chemicals (GHS) in 2003, several nations as well as the European Union have been preparing proposals for adoption of GHS. OSHA admits that “U.S. manufacturers, employers and employees will be at a disadvantage in the event that our system of hazard communication is not compliant with the GHS.” The agency has indicated that it will submit a complete peer review of economic analysis by August.
In 1993, OSHA issued a rule to protect workers from the hazards associated with working in confined spaces (storage tanks, sewers, silos, etc.) but the rule did not cover construction workers. As part of a settlement agreement with the United Steelworkers of America, OSHA agreed to propose a rule to protect workers employed on construction sites. According to the agency's latest agenda, an advanced notice of proposed rulemaking for confined spaces on construction sites has been scheduled for August – as opposed to February, as it was noted in the previous agenda.
Other items on the regulatory agenda, which are slated for final action, include:
* Updating OSHA standards based on national consensus standards – direct final rule, June.
* Vertical tandem lifts for longshoring and marine terminals – December.
* Electric power transmission and distribution; electrical protective equipment – June 2008
* Revision and update of Subpart S – electrical standards – final action, effective August.
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