Collapse of Silica Litigation Suggests Ways to Improve Justice System
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Lessons learned from the collapse of silica litigation suggest ways to make it easier to uncover abusive medical diagnostic practices in mass personal-injury litigation in the future, according to a RAND study.
By 2001, growing numbers of workers were claiming to have suffered lung damage from inhaling silica dust on the job — so many, in fact, that silica began to be feared as the next asbestos. In 2003, more than 10,000 claims were aggregated in the Southern District of Texas before U.S. District Court Judge Janis Graham Jack. The proceedings uncovered gross abuses in the diagnosis of injuries, and Judge Jack’s scathing opinion, published in 2005, was an important contributor to the collapse of the litigation.
The proceedings uncovered gross abuses in the diagnosis of injuries.
A number of defense actions were key to the litigation’s collapse, notably the defendants’ success in aggregating cases from Texas and Mississippi state courts into a federal court in front of a single judge. Doing so enabled the judge to see that a small number of doctors accounted for nearly all the diagnoses. The creation of a large database of silica and asbestos claims ultimately revealed that large numbers of silica plaintiffs had also previously filed asbestos claims.
Active case management by Judge Jack played another key role. By allowing the diagnosing doctors to be deposed in her presence, she was able to uncover many irregularities in diagnostic practices.
Finally, some unique characteristics of the case itself proved to be important. These included the fact that litigation already existed in the closely related area of asbestos. But unlike with asbestos, there was no signature, terminal, silica-related disease, the absence of which mitigated the defendants’ concerns about cases coming to trial and about threats by plaintiffs’ attorneys to target defendants who did not settle.
“Silica litigation collapsed because of a combination of actions by defense attorneys, decisions by the judge, and some special features of the litigation itself,” said Lloyd Dixon, a RAND senior economist and a study author.
Beyond showing that the tort system can discover abusive medical diagnostic practices, the study also identified changes that could increase the likelihood that such practices could be uncovered in future mass personal-injury litigation (see the table).
Changes That Could Help Uncover Abuses in Mass Personal-Injury Litigation
| Broad Improvements Targeted | Specific Changes Suggested |
| Improve judicial practices and procedures. |
Require a diagnosis and supporting medical records to be submitted at the time the case is filed. Require parties to present evidence that diagnoses are based on reasonable medical standards early in the case. Provide federal judges a set of recommended practices for mass personal-injury cases. For pretrial purposes, enhance the mechanisms for aggregating information across claims. |
| Consider more-serious sanctions against the plaintiffs’ bar. | Impose penalties for improper attorney conduct — penalties that will deter objectionable behavior rather than merely recover the excess defense costs directly associated with the behavior. |
| Pay closer attention to the performance of the defense bar. | Develop a way to chronicle and to evaluate dishonest tactics by defense attorneys in mass personal-injury litigation — tactics such as “churning” a claim merely to generate fees (with the ultimate goal of settling cases without any concerted effort to challenge suspicious diagnoses). |
“The pros and cons of the suggested changes warrant further examination and should be evaluated, given experiences in other large-scale personal-injury litigation,” Dixon said. “In particular, it is important to consider what impact such changes could have on the ability of truly injured parties to pursue remedies in the civil justice system.” 
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