TEXAS SILICOSIS RULING BECOMES RALLYING CRY FOR TORT REFORMERS . . . NPR's Wade Goodwyn has put together an interesting report on the Texas silicosis litigation and the claim by U.S. District Judge Janis Jack that silicosis claims were being "manufactured for money." The transcript is here: "Silicosis Ruling Could Revamp Legal Landscape."

Not surprisingly, the tort reformers have been all over the story since Judge Jack issued her ruling last June. You certainly can't blame them. In the NPR piece, however, plaintiffs' lawyer Brent Coon warns against using the incident to curtail the rights of all workers:

Coon says it would be an injustice to use the Mississippi cases to try to strip away workers' legal options. Judge Jack's ruling has become a rallying cry for corporate America, the editorial board of The Wall Street Journal and the U.S. Chamber of Commerce. Coon says big business wants to use the judge's opinion to create a permanent legal handicap for poisoned workers.

"Those companies knew for decades that those products crippled people and killed people. They knew it," Coon says. "We've got all the documents, all the internal memo, all the depositions that prove that. And it's a shame that now they're able to isolate a few example cases and try to turn that around."

While Coon is right, it's a message that's likely to get lost in the noise generated by what even Coon concedes "were problems with some of the diagnoses in the silicosis cases." It's something all mass-tort lawyers should bear in mind.

Comments

[Ted]

It takes some chutzpah to refer to the thousands of fraudulent diagnoses that made up the vast majority of silicosis claims and call it a "few example cases."

The full Judge Jack opinion is on the Liability Project website.

[Matt]

Ted,

Do you guys have the Sumner Simpson documents there too?

[Ted]

And your argument is that because Sumner Simpson, who worked for a company since driven into bankruptcy, wrote a memo to an attorney for another company, also since driven into bankruptcy, that seventy years later plaintiffs' attorneys are entitled to lie on behalf of uninjured plaintiffs in litigation against entirely unrelated companies for an entirely unrelated disease? About as plausible as many other plaintiffs' attorneys' theories, but you'll have to do better than that with me.

[Matt]

No, I was just asking if you had the documents there. I would think that a respected resource on the law, and particularly mass torts, like the Liability Project, would have not only one opinion by one judge in one District Court, but some of the most important documents in the history of mass tort litigation for the public to peruse.

Maybe I was mistaken. Maybe you're just advocating for your clients over there after all. Sorry for painting you in an informative, rather than an advocating, light.

[Ted]

We don't have any excerpts from Charles Dickens, either. Both are interesting historically, but irrelevant to current public-policy debates. That Johns Manville may have done something wrong seventy years ago doesn't explain why Peerless Pump is being sued today. But the Baron & Budd memo does.

Point of Law is the only blog I've seen that's actually linked to the Dodgeball Vioxx documents, as opposed to a number of corporation-bashing websites that simply characterize them and ask the readers to trust their characterization. My AEI working paper on the Vioxx litigation also gave the URL for the Dodgeball Vioxx documents.

[Matt]

Good comparison. Dickens to some of the most important documents in mass tort litigation history.

Your clients are certainly getting plenty of bang for their buck!! Keep up the good work.

[Ted]

Again, the key word there is history. I deal with the here and now.

It's typical of Matt to distract from the real issue—the deep corruption that is standard practice in the mass tort bar—with an irrelevant ad hominem smear that he already knows is a lie, because he's been corrected on it multiple times. If this is the level of comments that Evan thinks is appropriate on his site, I'll try to do a better job of keeping my promise to myself not to waste time here.

[Matt]

Ted,

I'm sorry I offended you by giving the Liability Project a lot of credibility in its study of mass torts. Also, if I smeared you, I apologize. That wasn't my intent. I always thought lawyers were supposed to do a good job for their clients. I was trying to compliment you.

Please don't take your ball and go home.

[Matt]

Ted, off topic question. This is the last line of your Wikipedia entry: "In his past life he was a crusader against Fraternities at Brandeis University, and a follower and minion of Kibo"

What's that all about?

[Evan]

Ted: I'm pretty sure you can take care of yourself. But as far as ad hominem smears go, what about your own, namely, "the deep corruption that is standard practice in the mass tort bar"? As a card-carrying member of the mass-tort bar, I happen to know your claim is way over the top. On the other hand, when you say things like that I really don't take them seriously, and thus don't take offense (usually). I suppose that others might read such generalizations and take them as gospel, but so, there's not much I can do about it.

Anyway, I hope you don't decide to quit "wasting time" here--you have a welcome way of livening things up that's much appreciated.

[mythago]

what about your own, namely, "the deep corruption that is standard practice in the mass tort bar"?

I was going to say, I just got my irony detector recalibrated, and then Ted blows it all to hell.

Having spent yet another week dealing with defendants lying under oath, withholding court-ordered discovery because it's 'too burdensome', and implying that they'll file for bankruptcy if I don't let them weasel out of a case with clear liability, I have to wonder which side of the mass-tort bar Ted is blasting here.

[Ted]

When over 80% of silicosis cases in the MDL turn out to have no scientific basis, and when plaintiffs' lawyers admit that they'll have to dismiss 80% of asbestos cases in Georgia because they can't meet newly-imposed minimal medical-criteria standards, it's fair to say that there's a deep-rooted corruption that isn't the exception to the rule.

If mythago's adversary is really violating a court discovery order, they'll suffer fairly disproportionate consequences, so he should be thrilled. I was stunned at the number of cases I worked on where the other side had essentially abandoned the merits and was litigating in hopes of winning by provoking a violation of a court discovery order.

In response to Matt's query, I attended Brandeis University, and was elected to student government on, inter alia, a platform of opposition to fraternity discrimination. The Tau Epsilon Delta t-shirts printed for charity are perhaps a collectors' item now. I wouldn't characterize the second part of the sentence as accurate, but that's par for the course on Wikipedia.

[mythago]

If mythago's adversary is really violating a court discovery order, they'll suffer fairly disproportionate consequences

You slay me with your humor!

it's fair to say that there's a deep-rooted corruption that isn't the exception to the rule

No, Ted, it isn't. It's convenient, and satisfying, I guess, but it's not exactly accurate to refer to "the mass tort bar" as all one corrupt conspiracy (admittedly, we don't have the Templars involved) because some group of lawyers apparently tried a scam on the backs of genuinely injured people.

But if we're going to cast aspersions based on 'deep-roooted corruption', I guess Exxon and W.R. Grace make every asbestos-case defendant tainted with the same ugly brush, eh?

[mythago]

By the way, I thought I'd follow up on my earlier sarcasm. In a hearing on a motion today, the court decided a defendant's perjury--claiming it had produced required discovery when it hadn't, and we had informed them they hadn't--was "de minimis". No, I hadn't heard of "de minimis" perjury before, either.

I'm not surprised anymore when judges do this sort of thing.