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The great silicosis hoax — To attorneys who had earned millions from asbestos settlements, silicosis represented the next potential windfall. But it all came undone in a haze of dust and deception. A two-part series.

Exposing the truth behind silicosis ...
To attorneys who had earned millions from asbestos settlements, it represented the next potential windfall. But it all came undone in a haze of dust and deception.
First of two parts

By MIKE TOLSON
In the speculative world of high-stakes lawsuits, where the right idea or the right illness can mushroom into a financial windfall, Carl Thomas was the next big thing.

Not Thomas personally, as he was neither dead nor catastrophically injured — but Thomas the blue-collar worker, the X-ray, the everyman who, because he was interchangeable with so many others, could bring large corporations to their knees.

Thomas' value lay in his claim of silicosis, an occupational lung disease caused by exposure to silica, a variant of ordinary beach sand used by industry in dozens of ways. He was a victim, or so his lawyer asserted. He and thousands just like him deserved to be compensated.

And so it began. First came a few dozen lawsuits, then a few hundred, then thousands. In the span of two years, a waning and somewhat obscure disease was transformed into monster court dockets in Mississippi, where most of the suits were filed. To the stunned corporate targets, it looked like asbestos all over again: The lawsuits threatened to take on a life of their own simply because there were so many of them.

Never mind that Thomas, a 61-year-old Pearland longshoreman, like most of the others, showed no ill effects from the alleged silicosis. Never mind that he, like the majority of them, had years earlier filed lawsuits claiming an entirely different lung ailment, asbestosis.

What mattered was that Thomas had an abnormal X-ray and a doctor offering a diagnosis. Small settlement checks from Thomas' first lawsuit came in every so often. He had no reason to think the silicosis claim wouldn't pay similar dividends.

"I think it's just attached to the asbestosis," Thomas said of his newest disease. "It's like getting one kind of cancer, and the next thing you know you've also got another cancer."

To Thomas, the idea of having both ailments makes perfect sense. He spent years inspecting cargo inside the dusty holds of arriving ships. Sometimes he was around bags of asbestos waiting to be unloaded. He figures there must have been some sand in there, too.

From a medical perspective, the chance of coming down with both — a pulmonary daily double — is remote. A thickening of the lungs' lining, which Thomas cited as evidence for his asbestosis, is not even characteristic of silicosis.

But to the handful of lawyers along the Gulf Coast who represented Thomas and clients like him, the absence of medical support was nothing to worry about. They did not need sick people, only doctors who would issue diagnoses. With a little luck, they would walk away with billions of dollars in settlements.

In 2001 and 2002, they began beating the bushes for anyone who had been employed where silica might have been used. If that meant trolling through lists of old asbestos clients like Thomas, so be it. The extent of these so-called "asbestos retreads" was not widely known. Then again, for silica litigation to pay off the way they hoped, the fewer details disclosed the better.

The result of their effort was an explosion of lawsuits the likes of which is rarely seen. Texas got its share, close to 4,000, but nothing like Mississippi. In just one year, 2002, one of the smallest states in the country went from 76 new silicosis suits to 10,642. By the end of 2004, the state's total topped 20,000.

How were so many "victims" found so quickly? The answer lies not in luck or previous medical oversight but in a well-oiled litigation machine run by an aggressive band of entrepreneurial lawyers. Operating in the shadows of the civil justice system, the machine's sole purpose is to turn people like Carl Thomas into case numbers.

Like the best machines, the marvel of this one is its simplicity. The law firm hires a medical screening company. The screening company hires a doctor. The two go to work, one bringing people through the front door, the other stamping them as sick. At the end of the day, a clerk at a law firm fills in a few blanks, punches a button and produces a lawsuit.

It's the job of the screening company to connect with workers. It owns a mobile van, maybe several, that shows up in parking lots to conduct X-ray sessions. By the time the van arrives, thousands of potential claimants have been reached by direct mail, fliers put up in union halls and ads placed in hundreds of small-town newspapers and occasionally on television.

The X-rays are done at no cost, with the understanding that the results are given to lawyers for the purpose of litigation. The screening company receives a set fee per person tested, as does the doctor who receives the X-rays along with a brief work history of the potential client.

The goal is volume. In May 2003, Lloyd Criss, owner of defunct screening company Gulf Coast Marketing in La Marque, sent a promotional letter to lawyers that emphasized one thing.

"Our marketing efforts have brought thousands of new cases to plaintiff law firms," the letter stated. "Prior to the year 2000, Lloyd Criss was employed by the Foster and Sear law firm, and in a one-year period approximately 7,000 new cases were added to that firm's inventory."

When the screeners are done, the pressure is on the doctors to keep the numbers up. Most of them have worked with the same lawyers for years; few, if any, even have a regular medical practice. The X-rays are read quickly, sometimes more than 100 in a day. A large number are found to be slightly abnormal.

In a short amount of time, thousands of people who were unaware they were "sick" are deemed to be suffering from a serious lung ailment. In the case of silica, the newly minted "victims" were not sent to physicians for treatment and follow-up. But because they had signed papers allowing legal representation, they began to receive care of a different sort.

Suddenly, courthouses began to fill up with bare-bones lawsuits against hundreds of companies, thus beginning the protracted legal dance that has become the staple of mass torts. Committees of lawyers for the various parties are formed. Demands are made. A few trials are scheduled for the sickest of the plaintiffs. Settlement talks begin.

Overwhelmed by so many lawsuits that they could never try them all, the defendants have a powerful incentive to dispose of them quickly. Typically, the majority of the defendants are asked to contribute small amounts per case, from a few hundred to a few thousand dollars, so that it's cheaper to settle than fight.

Checks are cut. Most of the plaintiffs get modest sums. A handful of genuinely sick ones get six figures. And the lawyers make millions because of the sheer number of cases. Rarely does a case reach a jury trial.

Far from being the end of things, as asbestos litigation showed, the first round of lawsuits inspires law firms to look for new clients, new venues to make claims and even more defendants. More screenings take place, more lawsuits are filed, and the process starts again. For the lawyers, screeners and doctors in on the ground floor, the prospect is good for an endless stream of paydays.

And so it was with silicosis. Then a strange thing happened. The truth began to leak out.

In late 2004 and early 2005, in a federal district courtroom in Corpus Christi, far from the routine scrutiny of the national media, U.S. District Judge Janis Jack watched as a pair of Mississippi defense lawyers, Fred Krutz and Danny Mulholland, managed to expose the litigation machine and peel off layer after layer of one of the great legal hoaxes in American history.

When the hearings were done and all the briefs filed, Jack had her say. The silicosis claims before her defied all medical knowledge and logic, she concluded, and reeked of outright fraud.

"It is apparent that truth and justice had very little to do with these diagnoses," Jack wrote. "The diagnoses were manufactured on an assembly line ... manufactured for money. There is simply no (other) rational explanation."

For all its heated rhetoric, Jack's opinion had little legal force. She decided most of the cases belonged back in the Mississippi courts where the suits were first filed, so her comments were only advisory. But the moral force of her words was enormous.

In the time it took for the legal world to read all 249 scathing pages of Order No. 29, the next big thing for the plaintiff bar became the worst thing that could have happened.

The Texas plaintiff lawyers and their Mississippi associates who had ventured a small fortune in up-front expense were all but accused of being crooks. Most of the lawsuits that Jack wrote about were on a fast track to dismissal. And so widespread was the publicity that silicosis quickly became a dirty word when mentioned in the same breath as lawsuit.

"That they would file a lawsuit on the basis of (an X-ray) alone is absurd to the nth degree," said Mike Martin, a Houston plaintiff lawyer who has handled a small number of silica cases for years. "It's a tragedy for the people who are truly injured."

Although older silica cases are threatened by a taint that will not soon go away and new ones face serious skepticism, the ripple effects of Jack's ruling are much bigger than that.

In real jeopardy is the original cash cow for plaintiff lawyers — asbestos lawsuits — because of increased scrutiny from judges and resistance from managers of the trust funds created by bankrupt companies to pay claims.

A three-judge panel in Ohio last month dismissed more than 4,000 asbestos suits in which the diagnosing doctors were among those discredited because of bogus silicosis claims. A number of asbestos trusts also have begun rejecting claims from those same doctors. Tens of thousands of diagnoses are involved.

Defendants disgusted by years of failure to staunch the flow of asbestos litigation, which kept increasing at a time when logic suggested it should diminish, are now on the attack.

Judges are listening.

In Pennsylvania, U.S. Bankruptcy Judge Judith Fitzgerald was shocked when lawyers from the Houston firm of O'Quinn, Laminack and Pirtle tried to get diagnoses from the discredited doctors accepted as the basis for silica claims against Mid-Valley Inc., a bankrupt subsidiary of Halliburton.

"I can't imagine why, as lawyers, you would be going forward with anything that these doctors submitted," Fitzgerald said during a February hearing. "I absolutely will not, under any circumstances, give (them) one iota of credence."

In Florida, Circuit Judge David Krathern has vowed to "ride herd" on more than 100 pending silicosis claims in his court. "Look at all the companies that are represented by all the lawyers in this room, all the money that is being spent on this litigation," he said in a recent hearing. "It's mind-boggling the effect that it has on our economic well-being in this country. They are not legitimate cases.

"I'm offended, and I've practiced law for 30 years," he said.

Meanwhile, the defendants' crusade against the doctors who issued diagnoses in bulk keeps mounting. It could get a significant boost from the U.S. Attorney's Office in the Southern District of New York, which is investigating the silicosis screeners and physicians for possible criminal acts.

Another unexpected ally is Congress. Inspired by Judge Jack's findings, a committee of the U.S. House of Representatives is looking into both the screening operations that provided the fodder for the lawsuits and more than a dozen law firms that paid them to do it.

"This is a story of medical mercenaries who allege cases of disease for the purpose of legal action and great financial gain," said U.S. Rep. Joe Barton, R-Ennis, at a March 8 hearing by the House Subcommittee on Oversight and Investigations.

Three physicians who figured prominently in the rise of silicosis lawsuits were subpoenaed to appear before the subcommittee but refused to testify, citing their Fifth Amendment protection.

Two of them, Ray Harron and James Ballard, also were responsible for more than 62,000 asbestos diagnoses used by claimants demanding compensation from the Manville Trust, a fund set up by the bankrupt asbestos manufacturer Johns-Manville Corp.

They are among nine doctors whose diagnoses Manville no longer will accept. Harron and Ballard didn't return calls from the Houston Chronicle seeking comment.

In hindsight, the silicosis gambit appears ill-conceived at best and brazenly cynical at worst. Rarely does any manner of litigation backfire so badly.

Five years ago, however, there was a certain inevitable logic behind it.

Asbestos litigation was still a reliable moneymaker, but its future was dodgy. Congress was being pressured to come up with a national compensation fund for victims, which would minimize the lawyers' roles.

And some key states, including Texas, were on the verge of passing tort reform measures that would restrict the courtroom to people who could prove not only exposure to asbestos but some sort of illness or impairment because of it.

Plaintiff lawyers began to look around for a promising replacement. Silica seemed like a reasonable choice, one mineral for another.

It was widely used by industry for its abrasive qualities. Millions of workers had been exposed to it.

And the injuries they could suffer by inhaling the fine particles were similar in some ways to those suffered by asbestos victims.

"The reason they went to silica is because if they had focused on anything else, such as pharmaceutical or automobile cases, they literally would have had to reinvent themselves," said Mark Behrens, a defense attorney who also serves as general counsel to the Coalition for Litigation Justice, a consortium of asbestos and silica defendants. "They saw silica as an alternative fuel for the same litigation machine."

Had it not been for Krutz and Mulholland, the Mississippi defense lawyers whose corporate clients suddenly were inundated, the whole scheme might have panned out.

"We knew there was no medical explanation for this — it wasn't real," Krutz said. "We had to figure out what was causing the flood. And we had to stop it."

In the spring of 2001, an Alabama radiologist named George Martindale heard about a simple way to pick up extra income, one X-ray at a time.

The work was not hard, and it wasn't quite like regular medicine, with a patient waiting in a nearby room. All he had to do was pass a test and become a certified "B-reader," so designated by the federal government. That would give him the credibility needed to interpret X-rays en masse for the purpose of litigation.

After that, it was a relatively routine matter to get hooked up with a medical testing company. They worked for law firms in need of doctors to confirm that their clients suffered from silicosis, a serious and occasionally fatal occupational lung disease.

Not for a minute did Martindale imagine that his spare-time gig would place him at the heart of a major legal scandal. What may have seemed like routine consulting work was in fact part of a scheme that sought to turn paint-by-numbers diagnoses and fill-in-the-blanks lawsuits into a billion-dollar payoff.

"I thought I'd try it and see what it was all about," Martindale said later in a deposition. "I thought that, you know, it would be something that could supplement my income."

Martindale did not know much about silicosis. It had seldom crossed his path. He said he wasn't even aware that the lawyers who were looking for B-readers had dreams of it becoming the next big mass tort.

The work was not exactly a quick path to riches. Because Martindale was new and only providing a second read, his fee was a modest $35 per X-ray. What made it worth doing was volume. He soon passed 1,000. Then 2,000. Then 3,000. He only had to spend a few minutes at most with each one. In little more than a year, he made more than $125,000 being a long-distance litigation doctor.

The doctors, a dozen or so from across the nation, were pivotal players. Without them to provide a positive finding of silicosis, all the thousands of people brought in for testing by the medical screening companies were useless.

For his role in the affair, Martindale today finds himself fighting subpoenas, giving depositions, hoping that a government criminal probe bypasses him and trying to rescue his medical reputation.

One of four doctors called before a Congressional subcommittee investigating silicosis litigation — and the only one willing to testify — Martindale tried to minimize his involvement.

"I never held myself out or represented myself as having any expertise in diagnosing pulmonary illnesses except for their radiographic manifestations," Martindale told the committee.

Asked why he had agreed to sign his name to language on thousands of claim forms explicitly confirming a diagnosis of silicosis, Martindale said that the screening company he worked for and the lawyers who were paying them asked him to.

"I was told this was a paragraph from attorneys to provide a better link of my reading to the diagnosis," he said.

How seriously Martindale took his task as an independent reader is an open question. He later denied being a rubber stamp. But almost in the same breath he admitted that he was inclined to read the X-rays as positive. Why? Because he had been told that another physician, Ray Harron, had done so.

He knew that Harron, who had an office in Houston but did most of his work from his home in Bridgeport, W.Va., had a lot more experience at this than he did, having spent years involved with asbestos lawsuits. Presumably he had spent time with the patients and knew much more about them. Apparently, Martindale was not aware that Harron had not seen any of the patients for whom he had issued diagnoses or devoted any more time looking at the X-rays than Martindale had. Neither Harron nor Martindale returned calls from the Houston Chronicle.

With the help of Martindale, Harron and a dozen or so other physicians, lawyers were able to produce about 20,000 lawsuits, half of them in one year. Some rummaged through old asbestos cases and recycle them in the new litigation.

This final tactic would be their undoing.

Fred Krutz and Danny Mulholland were veterans of the asbestos wars. The two knew almost instantly that these silicosis suits had the potential to be a smaller version of the same.

"We knew it wasn't true," Krutz said of the claim of rampant silicosis among Gulf Coast industries. "If it were, it would constitute the biggest silicosis outbreak in history. From 1990-99, Mississippi ranked 43rd in recorded deaths from silicosis. How can you have 1.9 deaths a year and also have all these thousands of cases? That's why we call it 'liticosis' instead of silicosis."

He and Mulholland persuaded more than two dozen of the sued companies they represented to fight. Maybe it was a long shot, but they felt if they could pull together enough cases to examine in depth, they could do something they had never been able to do with asbestos — expose the dubious screening operations and doctors who issued diagnoses by the hundreds, in some cases thousands, without ever seeing a patient.

That meant they had to get the lawsuits out of all the county courthouses where they had been filed across Mississippi and away from judges not known for aggressively scrutinizing novel plaintiff actions.

The defendants' first big break came in September 2003 when a panel of federal judges agreed to round up more than 10,000 cases and transfer them, at least temporarily, to the Corpus Christi courtroom of U.S. District Judge Janis Jack, a one-time nurse who had been appointed to the bench by Bill Clinton in 1994.

A second break came a few months later. In a ruling that would prove crucial, Jack allowed wide-reaching discovery, which in turn gave Mullholland and Krutz access to hundreds of thousands of documents, including the "fact sheets" plaintiff attorneys put together to summarize each client's claim.

Then, in February 2004, Jack went a step further and ruled that X-rays alone would not be enough to keep the lawsuits alive. Each plaintiff would have to have a diagnosis from a physician, but they had little time to produce them.

The lawyers could do little more than offer the form-letter diagnoses that never were intended to withstand serious scrutiny. That was a potential problem because the doctors behind them were now subject to deposition, at which their potentially embarrassing methods might be exposed. One doctor, for example, later admitted he had simply signed a large stack of medical report forms without reading what was on them.

For all these setbacks, the silica lawyers still were confident enough to send out a two-page letter to their defense counterparts in April 2004 offering to settle — for $1.5 billion. Authored by Joe Gibson, then a lawyer with the Houston powerhouse of O'Quinn, Laminack & Pirtle, the letter estimated the value of an average case at $100,000. His figure was "based on traditional values" — shorthand for what defendants often paid in asbestos suits.

But Mulholland felt certain that the doctors involved in the litigation could not withstand serious scrutiny. Most of them were mass tort docs, guys who signed off on stacks of diagnoses at a time to help bolster lawsuits but never had to testify before a jury regarding an individual case.

Late in the summer of 2004, as Mulholland made plans for taking depositions from the doctors involved in the litigation, he decided to lead off with Martindale, the newcomer. Among his reasons was the simplest: He had read the most X-rays in the least amount of time — about 3,700 in about 40 days.

For such diagnoses to be valid was not simply unlikely. It was all but impossible.

Martindale might not have been happy to talk, but he was more than willing.

When the deposition date finally arrived, Oct. 29, 2004, Campbell Cherry, the Waco law firm that had paid Martindale for his readings, was ready for the worst. It already knew from private conversations what Mulholland suspected: the doctor would disavow the purported diagnoses that bore his signature.

"I can't diagnose silicosis on the basis of (an) X-ray," Martindale told Mulholland at the deposition. "I was looking at it as if a clinical diagnosis had already been established by somebody. I was under the impression that these people had been evaluated. ... I was using those (X-ray readings) to support that diagnosis made by someone else."

That was it. Push had come to shove, and Martindale had yielded. There was no "somebody," only other doctors doing exactly what he had done. The entire foundation for silicosis lawsuits began to crumble.

When Krutz and Mulholland presented Martindale's recantation to Jack, she hit the roof. She said the doctor's admissions raised "red flags of fraud" concerning the whole silicosis enterprise. She also ordered each of the doctors to show up for a special hearing in her court in February 2005 to testify about their diagnoses and methods.

Mulholland wanted more ammunition. The one thing he felt would do them in was evidence that they had previously diagnosed large numbers of the same plaintiffs for asbestosis.

Given the medical rarity of one person suffering lung disease from both silica and asbestos, any doctor would have a hard time explaining away that incongruity.

But how many were there? Mulholland already had cross-checked some of the plaintiffs in the portion of the Mississippi cases in Judge Jack's court against his firm's asbestos records and found numerous duplicates.

"That whetted my appetite enough to know that I had to get more," he said. "And that's why I went to Manville."

Two weeks before the hearing, Mulholland received 50,000 documents from the Manville Trust, the nation's largest asbestos trust fund and the one with the most comprehensive record of claims available.

A round-the-clock scanning, data entry and cross-referencing effort confirmed what he and Krutz had suspected all along. A majority of the silicosis claimants already had been to court as asbestos claimants.

"I wanted to get the doctors at their own game," Mulholland said. "They had already staked out their position on an asbestos claim. Let's see what they have to say. We didn't have just 10 cases, we had thousands of them."

Mulholland was able to determine that at least 65 to 70 percent of the 10,000-plus cases in Jack's court also had been asbestos plaintiffs.

The February hearing quickly turned into a massacre. One doctor after another followed Martindale's lead and backed away from supporting the diagnoses bearing their names.

The coup de gras came during Harron's testimony. Unable to offer a reasonable explanation for reading X-rays one way for two of his asbestos plaintiffs, then reading different X-rays on the same people another way for silicosis, Harron quit talking and asked for a lawyer.

"If you're accusing me of fabricating these things," Harron said, "I think that's a serious charge. And ... "

"I think that's what he's doing," Jack interrupted.

"He is? Well, your honor, I'd like to have representation," Harron said.

Before sending most of the cases back to Mississippi for final disposition Jack denounced the lawyers and the doctors with words so harsh that they marked the beginning of the end for frivolous silicosis claims.

"This small cadre of nontreating physicians, financially beholden to lawyers and screening companies rather than to patients, managed to notice a disease missed by approximately 8,000 other physicians — most of whom had the significant advantage of speaking to, examining and treating the plaintiffs," Jack wrote in a blistering 249-page opinion. "In the majority of cases, these diagnoses are more the creation of lawyers than doctors. Conversely, virtually all of the ... diagnosing doctors seemed to be under the impression they were practicing law rather than medicine."

Jack's opinion was not news to those who have been involved in asbestos litigation, but many predict its impact will be lasting and profound.

"She lifted a great big rock with a very large flashlight in her hand, and nobody looks very good," said Steve Kazan, a San Francisco plaintiff lawyer long critical of lawyer-sponsored medical screening. "When you see all these bugs scurry for cover, it makes you think there's a real mess out there."

The great silicosis hoax is by, Dow Chemical and Corning's lies not by the; attorney's that tried to obtained settlements for the persons harmed. All Breast Implant victims are part Of this hoax and continued lies by, both Dow's to try to keep from paying, us. Many of, our attorney's have spent more than they'll ever recover in the great; Dow hoax On asbestos and breast Implants! We have silica in our lungs, brain an every organ in Our bodies. Silicone is not inert, it causes cancer an other diseases. When we find a silicone knowledgeable hysician, we pass his name around to sisters And brothers. The asbestos attorney's did the same. If one person lies it doesn't mean the thousands of, others suffering from, asbestos silicosis aren't extremely ill. This is more bias PR bought by, Dow just like the burston Marcello slop! Judge Jack, wasn't informed worth a flip on breast implants; or asbestos litigation! I believe bias, Judge Jack was removed from, hearing further cases on silicosis and breast Implant litigation with good reason. Don't bother to read it. Write the Houston Chronicle for there failure to post an un bias article concerning the, hoax on breast implants; asbestos by, Dow Chemical the liars!