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Manhattan grand jury investigating lawsuits
By LYNN BREZOSKY / Associated Press
05/19/2005 - An Alabama doctor who withdrew about 3,700 diagnoses for the lung ailment silicosis has been subpoenaed by a New York City grand jury investigating possible criminal wrongdoing in potentially lucrative silicosis lawsuits.
Dr. George Martindale, of Mobile, Ala., was asked to provide documents for a grand jury investigation, said Rick Courtney, an Alabama lawyer who helped him answer the subpoena. He said he knew of one other doctor from Mobile who had been subpoenaed.
Hundreds of lawsuits from several states for exposure to silicosis were consolidated in a Corpus Christi federal court. Silicosis is a lung scarring disease caused by inhaling quartz dust, usually from work sites. Acute silicosis can cause symptoms similar to chronic bronchitis and emphysema such as coughs, fever, and weight loss.
During hearings this year, U.S. District Judge Janis Graham Jack told lawyers she sensed "red flags of fraud" and demanded that doctors working for plaintiffs explain some of the 10,000 diagnoses of silicosis after Martindale said he'd made diagnoses without seeing the patients or being knowledgeable about the lung disorder. He said he thought he was just giving a second opinion, and later withdrew the diagnoses.
Doctors testified they were hired by "screening companies" that took trailers with mobile X-Ray machines to parking lots and sent people with positive diagnoses to lawyers.
Fred Krutz, an attorney who represents several of the defendants, including Humble Sand & Gravel Co. of Pennsylvania and Bermuda-based Ingersoll-Rand Co. Ltd., said that doctors and at least one screening company, N&M Inc. of Pascagoula, Miss., had been subpoenaed.
"Somebody is the target of that investigation and the subpoenas are being issued to many of the doctors and N&M who testified and were involved" in the federal cases in Texas, he said.
Martindale was not called to testify before the New York grand jury, Courtney said. "They said they considered him one of the good guys and just wanted the documents," he said.
Herbert Hadad, spokesman for the U.S. Attorney for the Southern District of New York, said he could not confirm or deny the existence of a grand jury investigation.
Amy E. Millard, a former Manhattan federal prosecutor, said New York could have been chosen for the grand jury investigation because prosecutors there are well-versed in white-collar crime cases.
"If you look at the Enron example, the Justice Department created a task force to handle the case in Houston — it was made predominantly of assistant U.S. attorneys from New York," said Millard, who said she had no first-hand knowledge of any grand jury investigation.
But prosecutors must have some geographic connection to a case. The Manville Personal Injury Settlement Trust, set up by the Johns Manville Corporation to compensate victims of asbestos exposure, has offices in New York.
Defense attorneys sent Manville a list of plaintiffs claiming they suffered from silicosis and Manville found that more than 60 percent of them had already collected damages for asbestosis. In many cases, they were diagnosed for both ailments by the same doctor.
Dr. Gary Friedman, a Texas doctor who teaches medical students to detect occupational lung diseases, testified that the 10,000 cases found in two years would represent the "single largest outbreak of silicosis in medical history" after 70 years of disease numbers declining. Hundreds of workers in West Virginia died of the disease in the 1930s.
Craig Cherry, a Waco-based attorney who represents a number of the plaintiffs, declined to comment on the New York investigation.
Judge may sway other silicosis suits
Jack's order gives fodder for dismissals
By Neal Falgoust Caller-Times
July 6, 2005 Daniel Mulholland, an attorney representing dozens of industrial and manufacturing clients in silicosis litigation, said Tuesday he plans to use a ruling by U.S. District Judge Janis Graham Jack as a foundation in Mississippi state courts to ask that those claims be dismissed.
Jack, who has been presiding over pretrial testimony in 111 silicosis cases with more than 10,000 clients, signed an order on Thursday criticizing much of the medical evidence used to make those claims. Though she had jurisdiction over just one of the cases, her ruling could affect the 110 other cases because they involve medical diagnoses from many of the same doctors.
Jack said those diagnoses were "more about litigation rather than healthcare."
"These diagnoses were driven neither by health nor justice: They were manufactured for money," she wrote.
Representatives of the plaintiffs did not return calls.
The silicosis cases landed in Jack's court after being filed in state and federal district courts around the country. Defense attorneys asked to have them all moved to the federal system, and they were consolidated in Jack's court for pretrial proceedings.
During a three-day hearing in February, defense attorneys began an assault on the methods doctors used to diagnose the plaintiffs in the cases, who were claiming to have suffered from silicosis, a potentially fatal lung disease cause by long-term exposure to crystalline silica dust. That dust is found in sandblasting, concrete demolition and the production of paint and fiberglass.
The disease can be diagnosed through a lung X-ray, a physical examination and a review of a patient's work history.
But the defense attorneys reported uncovering a pattern in which plaintiff lawyers partnered with doctors and screening companies to farm clients for lawsuits. The doctors routinely diagnosed hundreds of patients in a single day, and in some cases, one of the doctors allowed his secretary to write and sign the diagnoses without his review, officials contended.
One of the screening companies used a portable X-ray set up in the parking lot of a Sizzler restaurant to diagnose plaintiffs.
Of the 111 cases in her court, Jack sent 90 back to state courts in Mississippi for further proceedings. Mulholland said Tuesday that defense attorneys will be asking the Mississippi Supreme Court to consolidate those cases for pretrial purposes.
"Whether or not this relief is granted, we will seek dismissals based on Judge Jack's order," he said.
An Aug. 22 hearing will be held in Jack's Corpus Christi courtroom to determine how the remaining cases will be handled.
In the one case she had jurisdiction over, Jack ruled that the testimony from the doctors was unreliable and could not be used as evidence. That case also will be the subject of the Aug. 22 hearing to determine how it will proceed.
William Shelley, vice chairman of the National Insurance Litigation Department at the Cozen O'Connor law firm in Philadelphia, said Jack's ruling will draw national attention and will likely be used to push for reform of mass tort litigation.
Shelley said Jack's findings also set a standard for other judges who find themselves overseeing similar cases in which screening companies and plaintiff attorneys assemble clients for massive lawsuits.
"This is the first case where a judge has really looked in close detail at this screening process," he said. "She ferreted out the abuses used in these mass screenings."
Contact Neal Falgoust at 886-4334 or falgoustn@caller.com
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