[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
THE SILICOSIS STORY:
MASS TORT SCREENING AND
THE PUBLIC HEALTH
HEARINGS
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
OF THE
COMMITTEE ON ENERGY AND
COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
MARCH 8, MARCH 31, JUNE 6, AND JULY 26, 2006
Serial No. 109-124
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/house
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COMMITTEE ON ENERGY AND COMMERCE
JOE BARTON, Texas, Chairman
RALPH M. HALL, Texas MARSHA BLACKBURN, Tennessee
MICHAEL BILIRAKIS, Florida JOHN D. DINGELL, Michigan
Vice Chairman Ranking Member
FRED UPTON, Michigan HENRY A. WAXMAN, California
CLIFF STEARNS, Florida EDWARD J. MARKEY, Massachusetts
PAUL E. GILLMOR, Ohio RICK BOUCHER, Virginia
NATHAN DEAL, Georgia EDOLPHUS TOWNS, New York
ED WHITFIELD, Kentucky FRANK PALLONE, JR., New Jersey
CHARLIE NORWOOD, Georgia SHERROD BROWN, Ohio
BARBARA CUBIN, Wyoming BART GORDON, Tennessee
JOHN SHIMKUS, Illinois BOBBY L. RUSH, Illinois
HEATHER WILSON, New Mexico ANNA G. ESHOO, California
JOHN B. SHADEGG, Arizona BART STUPAK, Michigan
CHARLES W. "CHIP" PICKERING, Mississippi ELIOT L. ENGEL, New York
Vice Chairman ALBERT R. WYNN, Maryland
VITO FOSSELLA, New York GENE GREEN, Texas
ROY BLUNT, Missouri TED STRICKLAND, Ohio
STEVE BUYER, Indiana DIANA DEGETTE, Colorado
GEORGE RADANOVICH, California LOIS CAPPS, California
CHARLES F. BASS, New Hampshire MIKE DOYLE, Pennsylvania
JOSEPH R. PITTS, Pennsylvania TOM ALLEN, Maine
MARY BONO, California JIM DAVIS, Florida
GREG WALDEN, Oregon JAN SCHAKOWSKY, Illinois
LEE TERRY, Nebraska HILDA L. SOLIS, California
MIKE FERGUSON, New Jersey CHARLES A. GONZALEZ, Texas
MIKE ROGERS, Michigan JAY INSLEE, Washington
C.L. "BUTCH" OTTER, Idaho TAMMY BALDWIN, Wisconsin
SUE MYRICK, North Carolina MIKE ROSS, Arkansas
JOHN SULLIVAN, Oklahoma
TIM MURPHY, Pennsylvania
MICHAEL C. BURGESS, Texas
BUD ALBRIGHT, Staff Director
DAVID CAVICKE, General Counsel
REID P. F. STUNTZ, Minority Staff Director and Chief Counsel
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
ED WHITFIELD, Kentucky, Chairman
CLIFF STEARNS, Florida BART STUPAK, Michigan
CHARLES W. "CHIP" PICKERING, Mississippi Ranking Member
CHARLES F. BASS, New Hampshire DIANA DEGETTE, Colorado
GREG WALDEN, Oregon JAN SCHAKOWSKY, Illinois
MIKE FERGUSON, New Jersey JAY INSLEE, Washington
MICHAEL C. BURGESS, Texas TAMMY BALDWIN, Wisconsin
MARSHA BLACKBURN, Tennessee HENRY A. WAXMAN, California
JOE BARTON, Texas JOHN D. DINGELL, Michigan
(EX OFFICIO) (EX OFFICIO)
CONTENTS
Page
Hearings held:
March 8, 2006 1
March 31, 2006 158
June 6, 2006 209
July 26, 2006 363
Testimony of:
Sherman, Edward F., The Moise F. Steeg, Jr., Professor
of Law, Tulane Law School 34
Welch, Laura, M.D., Medical Director, Center to Protect
Workers Rights 64
Goff, Robert W., Director, Division of Radiological
Health, Mississippi Department of Health 218
Morgan, Mallan G., M.D., Executive Director,
Mississippi State Board of Medical Licensure 222
Ratliff, Richard A., P.E., L.M.P., Radiation Control
Officer, Division of Regulatory Services, Texas
Department of State Health Services 231
Patrick, Donald, M.D., J.D., Executive Director, Texas
Medical Board 235
Hilbun, Glyn, M.D. 258
Altmeyer, Robert, M.D. 262
Davis, Billy, Esq., Campbell, Cherry, Harrison, Davis &
Dove 379
Manji, Abel K., Esq., The O'Quinn Law Firm 385
Gibson, Joseph V., Esq., Law Office of Joseph V.
Gibson, P.C. 389
Luckey, Alwyn H., Esq., Luckey & Mullins PLLC 394
Laminack, Richard N., Esq., Laminack, Pirtle and
Martines 404
Additional material submitted for the record:
Martindale, George, M.D., response for the record 146
Mason, Heath, Co-owner and Operator, N&M Inc.,
response for the record 151
THE SILICOSIS STORY: MASS TORT SCREENING AND
THE PUBLIC HEALTH
WEDNESDAY, MARCH 8, 2006
HOUSE OF REPRESENTATIVES,
COMMITTEE ON ENERGY AND COMMERCE,
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:05 p.m., in
Room 2123 of the Rayburn House Office Building, Hon. Ed
Whitfield (Chairman) presiding.
Members present: Representatives Stearns, Bass, Walden,
Burgess, Blackburn, Barton (ex officio), Stupak, DeGette,
Schakowsky, Inslee, and Whitfield.
Staff present: Tony Cooke, Counsel; Mark Paoletta, Chief
Counsel for Oversight and Investigations; Clayton Mattheson,
Research Analyst; Jonathan Pettibon, Legislative Clerk; David
Nelson, Minority Investigator and Economist; Jonathan Brater,
Minority Staff Assistant; and Eric Gerhlach, Minority Staff
Assistant.
MR. WHITFIELD. Okay, I want to call this hearing to order this
afternoon. This is the Subcommittee on Oversight and
Investigations for the Energy and Commerce Committee. And the
subject of today's hearing is "The Silicosis Story: Mass Tort
Screening and the Public Health."
Now today we are going to have three panels of witnesses. On
the first panel there will be two witnesses and I would ask them to
come forward at this time. First, we have Professor Edward
Sherman who is a Professor of Law at Tulane University Law
School. So we would ask him to take a seat. And then we have
Dr. Laura Welch who is the Medical Director of the Center to
Protect Workers Rights from Silver Spring, Maryland. I want to
welcome you all to this first panel. We genuinely appreciate your
taking the time to be with us today on what we consider to be a
particularly important hearing and we look forward to your
testimony.
Of course at this time the members of the subcommittee will be
giving their opening statements and I will start off and simply say
that we consider this to be a particularly important hearing because
some of the events that happened in the Federal Court in Texas
with those silicosis claims many of us consider to be really a
mockery of our justice system.
This is going to be the first of several hearings on important
public health issues raised by the practice of mass tort screening.
We are examining the manner in which doctors, plaintiff lawyers,
and medical screening companies identify large numbers of
claimants for personal injury lawsuits. This matter first came to
our attention through a June 2005 Federal Court opinion from the
Southern District of Texas in a matter captioned "In re: Silica
Product Liability Litigation." U.S. District Judge Janis Graham
Jack, a former nurse appointed by President Clinton in 1994
presided over a multi-district case involving some 10,000 claimed
diagnoses of silicosis, a largely incurable and often fatal
pulmonary disease.
In managing this enormous personal injury matter, Judge Jack
documented the fraudulent means by which plaintiff lawyers,
doctors, and screening companies manufactured claims. She then
made the determination that these diagnoses were about litigation
rather than healthcare, and were driven neither by health nor
justice, but were manufactured for money.
This is particularly troubling because it undermines our judicial
system, but it also clearly shows the lack of attention or concern
about the actual health and treatment of patients. This
subcommittee, with the cooperation of our Democratic colleagues
and staff and with the firm support of the Chairman of our full
committee, Mr. Joe Barton, in an effort to understand the larger
public health consequences of this alleged conduct, has sought to
examine the relationships, the standards, and the practices that
govern the manner in which the 10,000 plaintiffs of "In re: Silica"
were identified, diagnosed, and joined in this massive tort lawsuit.
To that end, we have so far written to doctors, screening
companies, and very recently law firms, State regulatory agencies,
and State medical boards. While most parties have been
cooperating with the subcommittee's inquiry, four doctors have
required subpoenas for their documents and several individuals
here today have also required a subpoena to secure their
appearance. And I would like to emphasize that the subcommittee
will use all means at its disposal in its pursuit of the information
and records required for this investigation. The "In re: Silica"
matter provides a case study through which we are examining
public health issues and mass tort screening. To be sure, screening
is an important tool of public health. It provides broad access to
care and vital monitoring and surveillance for many occupational
and environmental health concerns. However, the type of
screening used in this class action lawsuit simply generated
claimants to obtain settlements for the benefit of certain plaintiff
law firms. Dollars were the priority; patient health and wellbeing
were afterthoughts.
Now I would like to say to appreciate the practices, the
standards, and the ethics of this process, we want to briefly look at
some examples of one of the treating physicians, Dr. Ray Harron,
for example. Now I would point out to you that the presence of
both diseases, silicosis and asbestosis, in one individual is
extremely rare. And Dr. Harron, for example, performed an
examination of the X-rays of one patient in 1996 for the purpose of
asbestos litigation and then later in 2002 again evaluated the same
patient for the purposes of silicosis litigation. Now these two
documents show the results of these examinations. The
highlighted part of the form shows the lung damage observed by
Dr. Harron. On the right, we can see that when he looked at a
chest X-ray in the context of asbestos litigation, he found S and T
type damage in the lungs which are classic for asbestos exposure.
A few years later when Dr. Harron again looked at a chest X-ray of
this same person, now in the context of silicosis litigation, he
found P type damage in the lung classic of silicosis. So what
happened to the S and T type damage caused by the asbestos? Dr.
Harron, was this man's asbestos injury cured? Why wasn't it again
seen in the second X-ray review?
And I would also point out that Judge Jack, in her decision,
pointed out that when Dr. Harron first examined 1,807 plaintiff X-
rays for asbestos litigation, he found them all to be consistent only
with asbestos and not with silicosis. But upon reexamining those
same 1,807 MDL plaintiff X-rays for silicosis litigation, Dr.
Harron found evidence of silicosis in every case. Now this volume
and high percentage of reversal, basically 100 percent, simply
cannot be exampled as intra-reader variability which is often a
reason given for a difference of opinion on these readings.
I would also point out that we will ask some of the same
questions that I have just raised with Dr. Harron with Dr. Ballard.
And here are his reports for a woman whom he diagnosed with
asbestos in 2000, but later with silicosis in 2004 using the same
October 1999 X-ray. Ray Harron's son, Dr. Andrew Harron, when
he did his diagnosis work, had secretaries take his marks on an X-
ray form, draft the diagnosing report, stamp his signature, and then
send out the report. Dr. Andrew Harron says he never saw, never
read any of his more than 400 silicosis reports. And we would ask
Dr. Harron, is this how he continues to practice in Wisconsin
today?
There are further stunning examples of apparent disregard for
reasonable medical standards, practices, and ethics such as Dr.
Martindale's purported diagnosis of 3,617 people with silicosis in
48 days, an average of 75 reports per day. Yet we cannot lose
sight of the fact that these numbers represent real people learning
that they have a largely incurable and sometimes fatal disease, a
fact I hear was missed by the doctors, lawyers, and screening
companies here in their rush to bill what they call an inventory of
clients.
This investigation has found little to date to demonstrate real
regard or acceptance of responsibility in the mass tort screening
process for the manner in which patients learn about the results of
their screening, the way the significance and reliability of the tests
performed are presented, or the way follow up and treatment
options are discussed and pursued. The medical professions
involved here have so far all disavowed any legal or ethical duty to
the care of the patients that they have diagnosed.
At the end of the day, I suppose the ultimate question we are
presented with here is are the diagnoses generated by this process
real or are they simply to facilitate litigation? On that point, while
we have found no direct information, although Justice Jack made
some very strong conclusions, we will look at some circumstantial
data. According to the work of Dr. Laura Welch, who joins us
here today, in a sample of 9,605 metal workers with 20 years work
experience, an ILO score of 1/0 was found, and that is basically
very little found, for approximately 12 percent of the group. In the
world of mass torts, this would be the positive diagnosis, the
potential claimants. So 12 percent of the 9,605 would be found
positive. Today, I would like to compare those findings with those
of a for profit screening venture N&M, the company of our
witness, Heath Mason. While we have not yet found hard numbers
for the rate at which this company's overall generated positive
diagnoses, I will ask Mr. Mason whether the screening N&M gave
on February 15, 2002, was typical for his business. On that day in
Columbus, Mississippi, they found all 111 people screened to be
positive for silicosis, and yet the average rate of silicosis found in
Mississippi is around eight. So they looked at 111 people, they
found 111 people, a rate of 100 percent, which is very good for Mr.
Mason, considering that we understand two of his larger clients,
the law firms of Campbell, Cherry, Harrison, Davis, and Dove and
O'Quinn, Lamonick and Purdle typically paid him only for
positive diagnosis, as much as $750 for each person tagged with a
diagnosis of silicosis. Whether the success rate of February 15 was
the exception or the norm for N&M will be a telling fact.
I want to thank Chairman Barton for his continued support of
this important investigation, as well as my colleagues from across
the aisle who have backed our efforts to gather the information and
records needed to understand this issue and we look forward to the
testimony of our witnesses.
[The prepared statement of Hon. Ed Whitfield follows:]
PREPARED STATEMENT OF THE HON. ED WHITFIELD, CHAIRMAN,
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
This afternoon we convene what I believe will be just the first
of several hearings on certain important public health issues raised
by the practice of mass tort screening. We are examining the
manner in which doctors, lawyers, and medical screening
companies seek to identify large numbers of potential claimants for
personal injury lawsuits. We have been troubled, however, by the
processes we have reviewed to date. We are concerned by the
apparent lack of attention to the actual health and treatment of
patients as well as the financial incentives geared to rewarding
positive findings of disease. Ultimately, I am most concerned by
the suggestion that, with respect to mass torts, there exists some
alternate field of medicine, or pseudo-medicine, containing its own
standards, practices, and ethics.
This matter first came to our attention though a June 2005
federal court opinion from the Southern District of Texas. In a
matter captioned In Re: Silica Product Liability Litigation, U.S.
District Judge Janis Graham Jack, a former nurse appointed by
President Clinton in 1994, presided over a multi district case
involving some 10,000 claimed diagnoses of silicosis - a largely
incurable and often fatal pulmonary disease. In managing this
enormous personal injury matter, Judge Jack made the remarkable
determination that, "these diagnoses were about litigation rather
than health care" and "were driven by neither health nor justice
[but] were manufactured for money." This stunning conclusion
was backed up in a dense 249 page opinion in which Judge Jack
laid out her support for this finding in compelling detail.
This Subcommittee, with the cooperation of our Democratic
colleagues and staff, and with the firm support of the Chairman of
our full Committee, Joe Barton, in an effort to understand the
larger public health consequences of this alleged conduct, has
sought to examine the relationships, standards, and practices that
governed the manner in which the 10,000 plaintiffs in In Re: Silica
were identified, diagnosed and joined in this massive tort lawsuit.
To that end, we have so far written to doctors, screening
companies, and, very recently, to law firms, state regulatory
agencies, and state medical boards. While most parties have been
cooperating with the Subcommittee's inquiry, 4 doctors have
required subpoenas for their documents and several individuals
here today have also required a subpoena to secure their
appearance. For the avoidance of doubt, this Subcommittee will
use all reasonable means at its disposal in its pursuit of the
information and records required for this investigation.
The In Re: Silica matter provides a case study through which
we are examining public health issues in mass tort screening. To
be sure, screening is an important tool of public health; it provides
broad access to care and vital monitoring and surveillance for
many occupational and environmental health concerns. Yet the
type of screening at issue here appears to be a mechanism purely to
generate grist for the mill of litigation. And what is more, the
business practice of screening, seen here, seems to present almost
insurmountable conflicts between profit and patient health.
To appreciate the practices, standards, and ethics of this
process, it is instructive to look at examples from some of the
doctors joining us today. Let's consider first the treatment of
several patients by Dr. Ray Harron of Bridgeport, West Virginia.
Dr. Harron performed an examination of the X-rays of one patient
in 1996 for the purpose of asbestos litigation and then later, in
2002, again evaluated this same patient for the purpose of the
silicosis litigation. [1] These two documents show the results of
these examinations. The circled part of the form shows the lung
damage observed by Dr. Harron. On the right we can see that
when he looked at a chest X-ray in the context of asbestos
litigation, he found "S and T" - type damage in the lungs - classic
for asbestos exposure. A few years later when Dr. Harron again
looked at a chest X-ray of this gentleman, now in the context of
silicosis litigation, he found "P" - type damage in the lung -
classic of silicosis. What happened to "S and T" - type damage
caused by the asbestos? Dr. Harron, was this man's asbestos
injury cured? Why wasn't it again seen in the second X-ray
review?
Let's look at another patient. Dr. Harron evaluated the case of
a 71 year-old man in 2002 for asbestos based on a July 27, 2001 X-
ray and concluded he had asbestosis, as the report reads. [2] When
silicosis was the name of the game, again referring to the same
July 27, 2001 X-ray, Dr. Harron determined that this 71 year-old
man had silicosis. Are these anomalies? What about this 60 year-
old man found to have first asbestos and then silicosis using the
same July 27, 2001 X-ray? [3] Another 53 year-old man? [4] And
another? [5] And another? [6] Dr. Harron, what are the medical
standards and practices that account for such apparently
miraculous cures? I hope to find out today.
We will ask the same question of Dr. Ballard - here are his
reports for a woman whom he diagnosed with asbestosis in 2000
but later with silicosis in 2004, using the same October 1999 X-
ray. [7]
Ray Harron's son, Dr. Andrew Harron, when he did his
diagnosis work, had secretaries take his marks on an X-ray form,
draft the diagnosing report, stamp his signature, and then send out
the report. Dr. Andrew Harron says he never saw or read any of
his more than 400 silicosis reports. I will ask Dr. Harron if this is
how he continues to practice in Kenosha, Wisconsin.
There are further stunning examples of apparent disregard for
reasonable medical standards, practices, and ethics such as Dr.
Martindale's purported diagnosis of 3,617 people with silicosis in
48 days - an average of 75 reports per day. Yet we cannot lose
sight of the fact that these numbers represent real people learning
they have a largely incurable and sometimes fatal disease - a fact I
fear was missed by the doctors, lawyers, and screening companies,
here, in their rush to build what they call an "inventory" of clients.
This investigation has found little, to date, to demonstrate real
regard, or acceptance of responsibility, in the mass tort screening
process for the manner in which patients learn about the results of
their screening, the way the significance and reliability of the tests
performed are presented, or the way follow-up and treatment
options are discussed and pursued. The medical professionals
involved here have, so far, all disavowed any legal or ethical duty
to the care of the patients they have diagnosed.
At the end of the day, the ultimate question we are presented
with is: Are the diagnoses generated by this process for real? On
that point, while we have found no direct information, we might
look at some circumstantial data. According to the work of Dr.
Laura Welch, who joins us here today [8] in a sample of 9,605
Sheet Metal Workers with 20 years work experience, an ILO score
of 1/0 was found for approximately 12% of the group. In the
world of mass torts, this would be the positive diagnoses - the
potential claimants. Today, I would like to compare those findings
with those of a "for profit" screening venture, N&M, the company
of our witness Heath Mason. While we have not yet found hard
numbers for the rate at which this company overall generated
positives diagnoses, I will ask Mr. Mason whether the screening
N&M gave on February 15, 2002 was typical for his business - on
that day in Columbus, Mississippi, they found all 111 people
screened to be positive for silicosis. [9] That's a rate of 100%,
which is very good for Mr. Mason considering that, we understand,
two of his larger clients, the law firms of Campbell, Cherry,
Harrison, Davis and Dove and O'Quinn, Laminack and Pirtle,
typically paid him only for the positive diagnoses - as much as
$750 for each person tagged with a diagnosis of silicosis. Whether
the success rate of February 15 was the exception or the norm for
N&M will be a telling fact.
I want to thank Chairman Barton for his continued support of
this important investigation as well as my colleagues from across
the aisle who have backed our efforts to gather the information and
records needed to understand this issue. I also want to welcome
today's witnesses, particularly Professor Edward Sherman from
Tulane University and Dr. Laura Welch from the Center to Protect
Workers' Rights. I look forward to your testimony.
MR. WHITFIELD. And at this time, I recognize the Ranking
Member from Michigan, Mr. Stupak.
MR. STUPAK. Thank you, Mr. Chairman. I wish to
acknowledge your fairness in conducting this investigation. I
would also support the procedural steps you have taken to obtain
documents and testimony relevant to this inquiry.
The witnesses you have assembled on the first panel are likely
to provide an objective assessment of the situation from a legal and
medical perspective. My Democratic colleagues and I remain,
however, unconvinced that this investigation will contribute much
to the public health. As Dr. Welch will tell us, there are clearly
better ways to screen for occupational diseases than the methods
that were apparently employed at the direction of certain plaintiff
attorneys in the silicosis litigation consolidated in the U.S. District
Court for the Southern District of Texas as described in Judge
Jack's opinion issued last year in the case referred to "In re:
Silica."
It is truly disturbing that the individuals diagnosed as having
silicosis were apparently not informed of their condition by the
handful of physicians participating in the evaluations at the behest
of the law firms seeking clients for lawsuits. It is also disturbing
that there is some evidence that evaluations of chest X-rays, known
as B reads, may not have been conducted up to the professional
standards in that inaccurate diagnosis may, and I do say may, have
led to the filing of some lawsuits that lacked merit.
Perhaps the single most disturbing event regarding public
health issues uncovered in this inquiry is that the lawyers, rather
than the physician, are provided reports of any acute condition
such as TB or cancer identified in the screening. It is up to a
person entirely lacking in medical training to convey a serious
acute risk to the unfortunate individual. The problems, however,
can and should be addressed outside of Congress. The courts have
the power and it has been exercised in this case to remedy any
misrepresentation made in the courtroom. Defense attorneys have
the right to question evidence and experts to uncover any
misrepresentations. There is no need for Congress to impose any
additional burdens on the tort process that would only serve to
discourage legitimate screening that uncovers occupational illness
or deny workers their right to recover damages from companies
that are responsible for their disease.
Finally, Mr. Chairman, I believe that there are many targets of
this subcommittee's attention that would have a far more positive
impact on public health. I have sought repeatedly to have this
subcommittee examine the problems associated with the heating
oil price increases that directly threaten the health of my
constituents. Many of them must literally decide between heat or
medicine. We still have an open investigation into the failures of
the Food and Drug Administration to ensure the safety of our
Nation's drug supply, including Accutane, which we have had
approximately 100 deaths since the last hearing this subcommittee
held in that issue.
Not a week goes by without some report in the press regarding
yet another botched job by the FDA. Recently, members of the
Advisory Committee on Drug Safety were told that the FDA has
yet to get Pfizer to agree to studies that it believes are vital to
determine a real risk of Celebrex to public health. It is well over a
year since the subcommittee launched an investigation of the
approval of the COX-2 pain treatments, including how FDA
officials approved a label for Vioxx that understated the
cardiovascular risk of that drug. Apparently higher officials in the
Center for Drug Evaluation and Research overruled medical
officers responsible for reviewing Vioxx, yet there has been no
hearing on the FDA drug safety process that led the prescribing
community to underestimate the risk associated with Vioxx.
Recently, we learned of a public health disaster in the making
because some FDA bureaucrat operating well outside the public
view decided to permit the agribusiness conglomerates to increase
their profits by approving the use of carbon monoxide to make
dangerously old and improperly stored meat appear fresh and
appetizing. You have to wonder whether the current
administration at FDA even understands that its role is to protect
the public health, not the profits of companies that play Russian
roulette with America's health.
We also have not finished our work on the safety issues
surrounding jockeys and exercise riders that you began so well in
the fall. I am delighted that the National Institute of Occupational
Safety and Health, NIOSH, has agreed to our joint request for a
comprehensive assessment of safety conditions at race tracks
around the country. However, there is still no legislation to give
jockeys and exercise riders some input regarding the conditions
under which they risk their lives daily. The National Labor
Relations Board still refuses to extend legal protections to jockeys
that seek to organize so that jockeys can have some control over
their exceedingly hazardous working conditions.
I have supported you, Mr. Chairman, regarding the exercise of
the committee's prerogatives to obtain necessary and truthful
information every time it has been requested, yet I believe that we
were deliberately misled by testimony given by the representative
of one of the tracks at our last hearing and again in written
response we received to our questions. Of course, we still have not
received all the documents that were the subject of our subpoena to
Matrix Capital Corporation, the Gertmanian company that was a
source of funds diverted from the Jockeys Guild.
Mr. Chairman, I look forward to hearing from the witnesses
today that you have assembled. I applaud the fair manner in which
you have conducted this inquiry today. I look forward to working
with you to address some of the more pressing health issues that I
have outlined above. I will be moving in and out because I will be
on the floor today on food safety, as we do have that bill that
benefits the agribusiness but jeopardizes America's health, and I
will be on the floor fighting that and Ms. DeGette will be here
most of the day to take our functions so I will be moving in and
out, Mr. Chairman, but with that, I thank you for your time.
[The prepared statement of Hon. Bart Stupak follows:]
PREPARED STATEMENT OF THE HON. BART STUPAK, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Mr. Chairman, I join with Mr. Dingell in acknowledging the
fairness with which you have conducted this investigation, and I
also support the procedural steps you have taken to obtain
documents and testimony relevant to this inquiry. The witnesses
you have assembled on the first panel are likely to provide an
objective assessment of the situation from a legal and medical
prospective.
My Democratic colleagues and myself remain unconvinced
that this investigation will contribute much to the public health. As
Dr. Welch will tell us, there are clearly better ways to screen for
occupational diseases than were the methods apparently employed
at the direction of certain plaintiff's attorneys in the silicosis
litigation consolidated in the US District Court for the Southern
District of Texas, as described in Judge Jack's opinion issued last
year in the case referred to as: IN RE: SILICA.
It is truly disturbing that the individuals diagnosed as having
silicosis were apparently not informed of their condition by the
handful of physicians participating in the evaluations at the behest
of the law firms seeking clients for lawsuits. It is disturbing that
there is some evidence that evaluations of chest X-rays known as
"B reads" may not been conducted up to professional standards
and that inaccurate diagnoses may, and I do say may, have led to
the filing of some lawsuits that lacked merit.
Perhaps the single most disturbing event regarding public
health issues uncovered in this inquiry is that the lawyers rather
than a physician are provided reports of any acute condition, such
as TB or cancer, identified in the screening. It is then up to a
person entirely lacking in medical training to convey a serious
acute risk to the unfortunate individual.
However, these problems can and should be addressed outside
of Congress. The Courts have the power (and it has been
exercised in this case) to remedy any misrepresentation made in
the Courtroom. Defense attorneys have the right to question
evidence and experts to uncover any misrepresentations.
There is no need for Congress to impose any additional
burdens on the tort process that would only serve to discourage
legitimate screening that uncovers occupational illness or deny
workers their right to recover damages from companies that are
responsible for their disease.
Finally Mr. Chairman, it seems to me that there are many
targets of the Subcommittee's attention that would be far more
likely make a positive impact on the public health. I have sought
repeatedly to have this Subcommittee examine the problems
associated with the heating oil price increases that directly threaten
the health of my constituents. Many of them must literally decide:
heat or medicine.
We still have an open investigation into the failures of the FDA
to assure the safety of our nation's drug supply, including
Accutane. Not a week goes by when some expose or another is
reported in the public press regarding yet another botched job by
the FDA. Recently, Members of the Advisory Committee on
Drug Safety were told that the FDA has yet to get Pfizer to agree to
studies that it believes are vital to determine the real risk of
Celebrex to public health.
It is well over a year since the Subcommittee launched an
investigation of the approval of the Cox-2 pain treatments
including how FDA officials approved a label for Vioxx that
understated the cardio-vascular risks of that drug. Apparently
higher officials in CDER overruled medical officers charged with
reviewing Vioxx. Yet there has been no hearing on the FDA drug
safety process that led the prescribing community to
underestimate the risks associated with Vioxx.
Recently, we learned of a public health disaster in the making
because some FDA bureaucrat, operating well outside the public
view, decided to permit the agribusiness conglomerates to increase
their profits by approving the use of carbon monoxide to make
dangerously old and/or improperly stored meat appear fresh and
appetizing. You have to wonder whether the current
administration at FDA even understands that its role is to protect
the public health not the profits of companies that play Russian
roulette with Americans' health.
We also have not yet finished our work on the safety issues
surrounding jockeys and exercise riders that you began so well in
the fall. I am delighted that NIOSH has agreed to our joint request
for a comprehensive assessment of safety conditions at racetracks
around the country. However, there is still no legislation to give
jockeys and exercise riders some input regarding the conditions
under which they risk their lives daily.
The NLRB still refuses to extend legal protections to jockeys
that seek to organize so that jockeys can have some control over
their working conditions that are exceedingly hazardous.
I have supported you regarding the exercise of the Committee's
prerogatives to obtain necessary and truthful information every
time it has been requested. Yet I believe that we were deliberately
misled by testimony given by the representative of one of the
tracks at our last hearing and again in a written response we
received to our written questions. Of course, we still have not
received all the documents that were the subject of our subpoena to
Matrix Capital Corp., the Gertmanian company that was the source
of funds diverted from the Jockey's Guild.
Mr. Chairman, I look forward to hearing the witnesses you
have assembled for today's hearing. I applaud the fair manner in
which you have conducted this inquiry to date.
I also look forward to working with you to address some of the
more pressing public health issues that I have outlined above.
MR. WHITFIELD. Thank you, Mr. Stupak.
At this time, I recognize Mr. Bass for his opening statement.
MR. BASS. Thank you, Mr. Chairman for holding this hearing
today.
And I also want to apologize for the fact that I have a 2:30
meeting and will try to get back after that. The reason I say so is
that it is important that we all pay very close attention to what we
are about to hear today. You can be in love with the mass tort
system in this country. You can admire and respect billionaire trial
lawyers who have collected money often at times at the expense of
legitimate business activities in some cases, but you cannot defend
doctors who provide analyses based on getting $750 a shot if they
give a result that benefits the trial lawyer and nothing if they do
not. That is not medicine. That is greed. You cannot come down
on the side of these law firms that intentionally direct cases of
asbestosis to silicosis because they see the potential for the issue
being resolved to the benefit of their very clients in the asbestos
side working its way through the Congress and the Senate and they
need a new rainmaker for their business.
I would also commend to my friends who have any doubts
about the perversion of the legal process in this case to take a few
minutes to listen to the story that was carried for 20 minutes on
National Public Radio the other day in which this very issue was
explored from beginning to end. Now, NPR is not known for
being a bastion of conservatism. And the information that was
provided to the American people by that story was absolutely
devastating. It is sad that the needs and the rights of individuals
who have been hurt by occupational accidents or occupational
issues should be perverted for such total greed and avarice on the
part of individuals who are not seeking any kind of relief for their
clients, but relief for themselves and the continuation of a gravy
train that is providing them with billions of dollars and not helping
the system of justice in this country.
So I want to thank my chairman for bringing this issue to the
attention of the Congress. And I hope that regardless of where you
stand on the issue of tort law reform, or the trial bar, or any other
issue, that you understand that this goes far beyond the issues of
justice that are contemplated in real policy regarding tort law in
America and I will yield back.
MR. WHITFIELD. Thank you, Mr. Bass.
At this time, we will recognize the gentlelady from Colorado,
Ms. DeGette for her opening statement.
MS. DEGETTE. Thank you, Mr. Chairman.
I would like to add my thanks for having this important
hearing. And to say that I am sure that all of us, every single one
of us condemns any and all fraudulent or illegal activity by
attorneys, doctors, or others, and we believe that they should be
prosecuted to the fullest extent of the law and that they should be
sanctioned by the appropriate sanctioning authorities.
One thing I think, though, that we need to talk about is the very
serious issue about what do we do about physician sanctions?
Because while I think the legal system is often dealing with the
lawyers who wrongfully file claims in this matter, the same may
not be said for professional misconduct of the physicians. Now I
know that the investigations of misconduct are ongoing, but certain
circumstances in this case amply demonstrate the larger point that
State medical licensing authorities are failing in their
responsibilities to protect the public from negligent doctors. The
doctors who made the diagnoses in most of these cases were
licensed to practice medicine in six States. Last September, the
general counsel for the American Medical Association, apparently
motivated by news reports of this case, sent the opinion in the "In
re: Silica" case to the medical licensing authorities in those six
States. The AMA's letter cites specific page number references to
the judge's finding regarding the conduct of specific doctors whose
practice was regulated by these agencies.
Not one, not a single licensing authority, Mr. Chairman, even
bothered to acknowledge the communication, much less to
investigate the professional conduct of these physicians. So in my
opinion, if there is a public health problem, it is the ongoing failure
of State medical licensing authorities to police licensed physicians,
a problem that we encounter along with lawyer misconduct in
medical malpractice cases all the time. Now clearly, the individual
plaintiffs in "In re: Silica" would have been better served if the
screenings were conducted by our expert witness, Dr. Laura
Welch, or any other number of qualified and conscientious
physicians. However, using this case as justification for
preventing mass health screenings is inappropriate. In many cases,
mass screenings are the only instances in which serious health
problems are identified and some are worthy of compensation.
The true public health issue is how to improve mass screenings so
that patients are properly screened and diagnosis of any health
problem is made known to them and that is not even to discuss the
fact of fraudulent screenings which, of course, is probably illegal.
Mr. Chairman, to the extent that this case exposes holes in our
system where unfairness can creep in, it is the failure of medical
regulators. It would be a mistake and a real danger to the public
health if Congress were to fashion a remedy that either made the
screening uneconomic or otherwise limited the medical treatment
and redress of harm due to preventable occupational or
environmental exposure to poisons. And that is certainly an area I
would like to explore with our witnesses today: how we can
improve these screenings to make sure that they are ethical,
accurate, and that they help the patients.
Mr. Chairman, just one other public health issue. NIOSH,
which is the National Institute of Occupational Safety and Health,
certifies radiologists and other medical doctors who pass a rigorous
test as so-called B readers. These B readers are qualified to read
chest X-rays for evidence of occupational disease. The editorial
page of the Wall Street Journal has been campaigning for NIOSH
to take the responsibility of disciplining B readers who allegedly
misdiagnose occupational disease. I think there are two problems
with that approach. First of all, Congress specifically separated
NIOSH from OSHA and the Labor Department in the OSHA Act
so that researchers would not be regulators. NIOSH is
predominately a research entity whose main role is to develop
standards for exposure of various workplace contaminants using
data collected at the workplaces. NIOSH has no regulatory
experience and it does not have anywhere near the resources to
undertake nationwide B reader discipline. So I do not think that it
would really be appropriate to essentially create a new regulatory
agency within NIOSH.
Now Mr. Chairman, silicosis is a horrible disease. We need to
make sure that people who do get the disease have legal
protections and we also need to make sure that they are not taken
advantage of. I think we can work together. I think we can make
it happen but we need to be sensible and thoughtful about how we
do it.
MS. DEGETTE. And finally, Mr. Chairman, I would ask
unanimous consent to submit Mr. Dingell's statement for the
record and also the statements of any other Members who wish to
submit opening statements.
MR. WHITFIELD. Without objection, so ordered.
[The prepared statement of Hon. John D. Dingell follows:]
PREPARED STATEMENT OF THE HON. JOHN D. DINGELL, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
This investigation into the public health implications of the
U.S. District Court findings in the silicosis litigation raises issues
of both process and substance. With regard to process, Mr.
Chairman, thus far you and your staff have conducted this
investigation in a manner that has been quite fair. You have
apprised us of each step taken, and we have supported the use of
your authority to subpoena both documents and testimony. I see
no reason why your fairness, and our procedural support, will not
continue.
But the subject of this investigation requires going forward
with great care. We will learn today that in this particular case,
abuses have occurred that could have been avoided if the
physicians, the screening companies, and the lawyers involved had
insisted upon good medical practice in the identification of the
health effects of occupational exposure to silica. Such exposures
can and do result in the irreversible and fatal but preventable
disease of silicosis.
These apparent abuses are unsettling and worrisome. The
question before us is whether they are being addressed. In this
case, the District Court in Texas has formulated remedies to any
false claims that may have been filed. Further, I understand that a
Federal grand jury has been impaneled to review possible criminal
behavior surrounding false statements that may have been made in
connection with this case. I am not aware of allegations that the
judicial and executive branches are falling down on the job.
This Committee's concern is with the public health. I note that
only the courts and the State medical societies and bar associations
can insure that workers with silicosis and other diseases found
during mass screenings receive a timely diagnosis from a physician
bound by the ethics of a traditional doctor/patient relationship.
Any action by Congress that has the effect of directly or indirectly
limiting the access of workers to diagnostic medical exams or
redress in the courts for damage done by workplace exposure to
silica or any other toxic substances can only have an extremely
negative effect on the public health. I ask that this concern for the
public health remain the Committee's focus as the inquiry goes
forward.
MR. WHITFIELD. I might say to the gentlelady that this
subcommittee has sent letters to the regulating bodies of physicians
in 20 States on this issue just yesterday, and I do appreciate your
raising that issue, I might also just--
MS. DEGETTE. Mr. Chairman, I will look forward to hearing if
they send us letters back.
MR. WHITFIELD. Okay. I would also just comment that in this
particular case in Texas that of the over 9,000 plaintiffs who
submitted the fact sheets, they were diagnosed by only 12
physicians.
MS. DEGETTE. Right.
MR. WHITFIELD. At this time, I recognize the Chairman of the
Energy and Commerce Committee, Mr. Barton of Texas.
CHAIRMAN BARTON. Thank you, Mr. Chairman, for holding
this hearing on the public health implications of mass tort
screenings.
Today we are going to examine a troubling story that has
emerged from a mass tort before the U.S. District Court for the
Southern District of Texas related to the occupational disease of
silicosis.
Federal health statistics suggest that silicosis, a largely
incurable and often fatal lung disease, has been in decline, yet it is
somewhat perplexing that in the great State of Mississippi, a State
that epidemiology would suggest should experience perhaps eight
new silicosis cases per year, the number of new silicosis lawsuits
skyrocketed from 76 in 2001 to more than 10,500 in 2002. Why
the enormous spike in the number of silicosis claims from one
State? Was this as the District Court Judge from Texas, Janis
Graham Jack noted an industrial disaster of unprecedented
proportion or something entirely different? Like Judge Jack, I
have some questions. This might be a story of medical heroes who
identify and then treat and care for people with a deadly disease.
More likely, it is a story of medical mercenaries who allege cases
of disease for the sole purpose of legal action and great financial
gain.
The processes that went into assembling these mass silica
lawsuits are very troubling. The recruitment of potential clients by
lawyers and the rush to judgment by doctors is remarkable.
Particularly troubling is the prospect that thousands of people were
handed bogus diagnoses of this horrible disease and in many
instances made by medically unqualified lawyers, paralegals, or
screening company employees. I also have a problem with doctors
certified by the National Institute for Occupational Safety and
Health alleging using their Government credentials to produce
thousands of silicosis diagnoses for patients they never met and
probably did not care about meeting.
Today we are joined by several individuals who can tell us
what has really happened. I am told that some of these individuals
refused to help and refused to testify because after they were
confronted with the facts about what they have done, they have
decided to assert their protection under the Fifth Amendment Right
against self incrimination. Nevertheless, we have brought them
here today to ask some questions that need asking and I hope that
they choose to answer. I look forward to hearing how anybody can
justify being paid thousands of dollars, and indeed in at least one
case, millions of dollars, to diagnose people for whom they claim
no ethical or legal responsibility. I can tell you that I would be
very unhappy if a doctor I didn't know, using standards and
practices he would never use in his own medical office, took
money to conclude that I had a disease that could kill me and then
made no apparent effort to see that I was treated. We count on
doctors to first do no harm, yet every callous slight diagnosis risk
harms for the sake of money. It quickly became evident that some
of you did very well financially, but apparently did very poorly in
terms of actually helping people treat their medical diagnosis.
The questions that I have do not just involve the doctors. I am
also looking for some answers from screening companies whose
business model seems to be based solely on their ability to find
large numbers of willing patients and then link them with doctors
who had an uncanny ability to diagnose the very disease with the
greatest potential for profit. Of course lawyers and law firms
behind the silicosis litigation from the beginning also have some
serious questions to answer. I look forward to hearing their
testimony at a later hearing on this topic, but today we are going to
focus on the medical professionals.
I want to emphasize it is not this committee's intent to question
in any way a person's right to seek all legal compensation for a
real injury. Indeed, I believe by calling out the bogus claims, we
are preserving resources in assets for the truly injured men and
women. I want to shine a bright light on questionable behavior
and what it says about certain medical practices done in the name
of law.
In closing, I want to acknowledge and give accolades to my
fellow Texan, Judge Janis Graham Jack appointed by President
Clinton, I might add, for her scrupulous inquiry into this matter
that has help to eliminate the irrelevant issues for us, and I want to
thank the subcommittee Chairman and the Ranking Member for
their work to help keep us focused on this issue. I look forward to
the testimony and yield back the balance of my time.
[The prepared statement of Hon. Joe Barton follows:]
PREPARED STATEMENT OF THE HON. JOE BARTON, CHAIRMAN,
COMMITTEE ON ENERGY AND COMMERCE
Thank you, Chairman Whitfield - and thank you for holding
this hearing on the public health implications of mass tort
screenings. Today, we'll examine a troubling story that has
emerged from a mass tort before the U.S. District Court of the
Southern District of Texas related to the occupational disease of
silicosis.
Federal health statistics suggest silicosis, a largely incurable
and often fatal lung disease, has been in decline. Yet all of a
sudden, in the State of Mississippi, a state that epidemiology
suggests would experience perhaps eight new silicosis cases a year,
the number of new silicosis lawsuits skyrocketed from 76 in 2001
to more than 10,500 in 2002. Why the enormous spike in the
number of silicosis claims? Was this, as the District Court Judge
from Texas, Janis Graham Jack, noted, "an industrial disaster of
unprecedented proportion - or something else entirely"?
Like Judge Jack, I have some questions. This might be a story
of medical heroes who identify and then treat and care for people
with a deadly disease. More likely, this is a story of medical
mercenaries who allege cases of disease for the purpose of legal
action and great financial gain.
The processes that went into assembling these mass silica
lawsuits are very troubling. The recruitment of potential clients
by lawyers and the rush to judgment by doctors are remarkable.
Particularly troubling is the prospect that thousands of people
were handed bogus diagnoses of this horrible disease and, in many
instances, by medically unqualified lawyers, paralegals, or
screening company employees. I also have a problem with doctors
certified by the National Institute for Occupational Safety and
Health allegedly using their government credentials to produce
thousands of silicosis diagnoses for patients they never met and
maybe never even cared about.
Today we are joined by several individuals who can tell us
what happened. I am told that some will refuse to help because
after they were confronted with the facts about their work, they
may have decided to assert the protection of their Fifth
Amendment right against self-incrimination. Nevertheless, we
have brought them here today to ask some questions that need
asking, and I hope that they choose to answer. I look forward to
hearing how anyone can justify being paid thousands of dollars,
and indeed in one case millions of dollars, to diagnose people for
whom they claim no ethical or legal responsibility.
I can tell you that I would be very unhappy if a doctor I didn't
know, using standards and practices he would never use in his own
medical office, took money to conclude that I had a disease that
could kill me and then made no apparent effort to see that I was
treated.
We count on doctors to first, do no harm, yet every callous,
slide-show diagnosis risked harm for the sake of money. It quickly
becomes evident that some of you did very well, but little good.
The questions I have do not just involve doctors. I am also
looking for answers from screening companies, whose business
model seemed to be based solely on their ability to find large
numbers of willing patients and then link them with doctors who
had an uncanny ability to diagnose the very disease with the
greatest potential for profit.
Of course the lawyers and law firms behind the silicosis
litigation from the beginning also have some serious questions to
answer, and I look forward to hearing their testimony at a later
hearing on this topic. But today, we hear from some of the
medical professionals.
In closing, I should emphasize that it is not this Committee's
intent to question, in any way, a person's right to seek all legal
compensation for a real injury. Indeed, I believe by culling out
bogus claims, we are preserving resources and assets for the truly
injured men and women. I want to shine a bright light on
questionable behavior and what it says about certain medical
practices done in the name of the law.
Finally, I want to acknowledge my fellow Texan, Judge Janis
Graham Jack, for her scrupulous inquiry into this matter that has
helped illuminate the relevant issues for us, and I want to thank the
Subcommittee Chairman once again for keeping focus on this
issue.
I look forward to the testimony and yield back the remainder of
my time.
MR. WHITFIELD. Thank you, Mr. Chairman.
At this time, I recognize Ms. Schakowsky of Illinois for her
opening statement.
MS. SCHAKOWSKY. Thank you, Mr. Chairman.
I appreciate the opportunity to make this statement but I have
to be frank in saying that I do not really understand the purpose of
this hearing. If we truly are concerned about inquiring into the
public health consequences of occupational exposure to silicosis,
why are we not looking at the causes of this disease? Judge Jack's
opinion and as the Chairman of this full committee said, she has
scrupulously been looking into this issue. The document that
stirred up this silicosis controversy states clearly, "Although
OSHA currently has a permissible exposure limit for crystalline
silica, more than 30 percent of OSHA collected samples from 1982
through 1991 exceeded this limit. Additional studies suggest"-
this is still a quote-"additional studies suggest that the current
OSHA standard is insufficient to protect against silicosis." Judge
Jack drew that quote from a May 14, 2001 report by OSHA
published in the Federal Register.
So what we have here is an already inadequate standard that is
violated in 30 percent of the workplaces that OSHA inspects.
These are work sites where silica dust threatens the worker with a
disease that is incurable and fatal. Judge Jack has raised serious
public health issues. Why are we not focusing on those issues
where Congress has responsibility and no one else is acting? Why
are we not looking into the adequacy of screening programs and
standards? Why are we instead holding a hearing on the behavior
of a small number of trial lawyers whose actions are already being
investigated by the courts and who no one here is justifying? If we
are concerned that some workers may have been falsely diagnosed
as having silicosis, why are we not also concerned that other
workers who have been exposed are not being screened for the
disease and given access to medical care if they are ill? If we are
really concerned with the public health dimension of this problem,
we should be hearing from OSHA, and the company doctors, and
lobbyists that fight adequate standards and meaningful
enforcement. I just do not see any individuals on the witness list.
I am concerned that the publicity surrounding this case will
have the effect of minimizing the need for action to reduce
workplace injuries and disease caused by exposure to toxic
substances while encouraging restrictions on the rights of the
injured to get adequate medical care and appropriate compensation
for their suffering. Any such restrictions would be very bad public
health policy. It would give employers immunity to maintain
whatever toxic workplace environment maximizes their profits no
matter what the healthcare consequences for their workers. If we
are going to investigate the public health problems associated with
the disease of silicosis, we ought to look at the whole problem, not
just problems with specific cases that have already been identified
and apparently are being dealt with by the courts. And I yield back
the balance of my time.
Thank you, Mr. Chairman.
MR. WHITFIELD. Thank you.
At this time, I recognize Dr. Burgess of Texas for his opening.
MR. BURGESS. Thank you, Mr. Chairman.
In the interest of time, I will submit my statement for the
record and we will go on to the witnesses.
[The prepared statement of Hon. Michael Burgess follows:]
PREPARED STATEMENT OF THE HON. MICHAEL BURGESS, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Thank you Mr. Chairman, and thank you for having this
important hearing. While today we are focusing on the public
health issues related to the mass screening and diagnosis of
silicosis, I strongly believe that it is the role and responsibility of
this entire committee to address the imminent health care needs of
our nation. Mr. Chairman, thank you for bringing yet another
specific health related issue to not only this committee's attention,
but also to the public's attention.
As a physician for over twenty five years, I understand the
importance and need for an efficient and effective medical
screening process. Thousands upon thousands of lives have been
saved due to medical screening processes that were able to detect
illnesses and other serious maladies. This system relies upon
trained physicians and other medical personnel to perform reliable
diagnostic evaluations. Without this crucial element, the screening
system falls apart, thus, jeopardizing the health and welfare of the
public that was meant to be protected.
The situation before us today exemplifies the harm that can
occur when corruption and greed overtakes the system. On June
30, 2005, a Federal judge in South Texas, Judge Janis Graham
Jack, issued an opinion regarding the deplorable situation before us
today. While the case was ultimately dismissed and remanded in
part due to lack of subject-matter jurisdiction, Judge Jack noted in
her opinion serious allegations of fraud resulting from a mere12
doctors diagnosing over 10,000 cases of silicosis in Texas,
Mississippi, Georgia, and Alabama. While OSHA reported that
there has been a steady decline of silicosis, due to these few
doctors' diagnosis, Mississippi alone went from 40 cases reported
in one year to 6000 cases in the next. This would have been
considered an occupational outbreak, yet not one single person
contacted the CDC. Judge Jack summed it up best by concluding
that "these diagnoses were about litigation rather than health care"
and "were driven by neither health nor justice but were
manufactured for money."
Today, three of the twelve doctors will have the opportunity to
present their side of the story to Congress. I sincerely hope that
Dr. James Ballard, Dr. Andrew Harron, and Dr. Ray Harron will
take this opportunity and explain to the nation how they were able
to diagnosis so many patients with silicosis when 8,000 treating
doctors involved in the actual treatment of the patients did not see
this disease.
Again, Mr. Chairman, I thank you for this hearing, and I look
forward to working with you and the rest of the committee to
achieve real results for the public health and welfare of this
country.
I yield back the remainder of my time.
MR. WHITFIELD. Thank you.
At this time, I recognize the gentleman from Washington, Mr.
Inslee?
MR. INSLEE. Thank you, Mr. Chairman.
I just want to make two brief points. First, I am from
Washington State and I have got my neighbors today working in
the Puget Sound Naval Shipyard, the Washington State Ferry
System about 300 yards from my house that are exposed to
potential silicosis. And the projections are, I think I saw one
estimate of 1,204 people projected to develop this disease in the
next year. But instead of holding a hearing on how to protect my
neighbors from silicosis, here we are talking about an issue that has
been largely resolved by our judicial system. And I think the
reason that we are holding this hearing is not because of silicosis,
but because of lawyerosis, which is a disease that affects some
people in the U.S. Congress to think that everything from the
common cold to global warming is caused by trial lawyers. Now it
sounds to me like in this particular case, there were some things
that were not according to hoil. And apparently through this
judge's intensity found out that was not the case. But the judicial
system under existing rules dealt with it.
I would hope that at some point we could hold a hearing on
how to protect my neighbors and my constituents from developing
this life threatening disease rather than just relating it to this one
case.
Second, I want to note that I hope that we explore the
responsibility of the medical community to police their own. We
have had a lot of debates about litigation in this Congress and other
legislative bodies. What is very important, I think, for the medical
community to be sufficiently aggressive in policing their own. I
am told that of three of the doctors whose alleged diagnoses they
said they diagnosed this, and in fact, they had not on this terribly
non-comprehensive review that were obviously scandalous
behavior at least obvious to me from what I have heard to date. I
am told the AMA wrote the Texas Licensing Authorities and
nothing has been done about or the licensing of the effective State
legislators, nothing has been done about the licenses of these
physicians. And we ought to be examining why the medical
community has not policed its own in this particular circumstance.
So I will hope that we have a discussion from some of the
witnesses of how the medical community can help us solve the
problem of medical negligence in this country by policing bad
doctors and that is something that we need to take a look at. And I
am a great admirer of the profession, by the way, who have done
incredible things, but why these doctors have been not disciplined
to date, we ought to have a serious examination of that.
Thank you.
MR. WHITFIELD. Thank you.
At this time I recognize the gentlelady from Tennessee, Mrs.
Blackburn, for her opening statement.
MRS. BLACKBURN. Thank you, Mr. Chairman. And I really
want to thank you and the staff for putting the attention on the
issue and for the hearing we are having today.
And I think it is so appropriate that we enter some time on the
examination of the lawsuit. It is timely for us as the Senate is
looking at the asbestos trust fund, and we need to ensure that the
Federal cases will compensate true victims when it comes to
asbestosis and silicosis. We cannot allow trial lawyers to engage
in deceptive tactics that intimidate both our large and our small
companies, and intimidate them into capitulating to their demands
for enormous amounts of money. And we need to be certain that
those who are harmed by the diseases are the ones who are
compensated for those diseases. This hearing is a good first step as
we are looking into the issue. And I am looking forward to the
hearing. I am looking forward to hearing from our witnesses and
also to a time to be able to question our witnesses and continue
working on this in the future.
Thank you.
MR. WHITFIELD. Thank you.
At this time, recognize the gentleman from Florida, Mr.
Stearns.
MR. STEARNS. Thank you, Mr. Chairman. And let me just
compliment you like my colleagues have for having this hearing.
For those on the other side that are complaining about this, let me
just say that the staff had advised me that they have contacted 13
law firms and over there in the discussion inviting them to come
and so there will probably be another hearing for them. They are
welcome to come when we have all the trial lawyers come and
they can ask their questions then. Perhaps they do not think it is
appropriate today but we will have another hearing for them to do
that.
You know, in many ways, to a person who is a small business
person before I came to Congress, this represented another jackpot
for some of these trial attorneys. They looked at this and they
thought, "Well, maybe this is the next mother of all jackpots like
asbestos was, and like tobacco was" and the next big thing for
these folks. And so, you know, it is a tribute obviously as
Chairman Barton has said, that Judge Janis Graham Jack smelled a
rat in her courtroom and when the numbers did not add up, she
alerted everybody and that is why we are here today.
So this hearing is not about a class action suit or the tort
system. Men and women exposed to silica and suffering from
silicosis have every right to seek compensation and deserve their
day in court. That is true. This is about exploitation of an
occupational health system that otherwise serves to help workers
injured on the job. And we have a structure, a chain of events and
entities and public officials that all participate in identifying a
pattern, collecting reporting data, locating diagnosis, and treating
patients who are truly harmed. But it works well only if the
integrity of the system is in place. Today we will hear from some
of the individuals who unfortunately lack this integrity and put
financial gain way ahead of everything else, subjecting about ten
thousand workers in fields to these claims.
What is remarkable about the current system is that a Federal
case involving some 9,000 plaintiffs could unravel when just a
judge asks a few simple questions about the medical evidence and
practices underlying the claim. I think for all of us on the
committee it is just appalling that this would actually occur. So we
need to understand how thousands of people could have perhaps
been misdiagnosed with this terrible disease, and what is more,
how insurance coverage or other such resources perhaps owed to
sick and suffering men and women could have been potentially
misappropriated by allegedly trumped up claims. Now those are
the facts, and that is why we are here and I think it is important that
we take the time to look at this, Mr. Chairman. And I think in the
end, it would not hurt to have some of these lawyers from these
other 13 law firms come in here and explain.
And lastly, I would indicate that for people who think this is
not an important hearing, we are going to hear from witnesses who
are going to take the Fifth Amendment, and so that means they do
not want to testify, and they have every right to take the Fifth
Amendment. But I would say the fact that people will not talk
honestly about something is something that we should all be
concerned about and ask the question of why won't they testify,
why won't they tell us some of this information and I think it is a
hard job to extricate this information out and bring it to the
public's attention.
So Mr. Chairman, I look forward to the hearing.
MR. WHITFIELD. Thank you, Mr. Stearns.
That concludes the opening statements and I want to welcome
the witnesses on Panel I. I have already introduced you, but once
again I would say Professor Edward Sherman of Tulane University
Law School in New Orleans and Dr. Laura Welch who is the
Medical Director at Center to Protect Workers Rights in Silver
Spring, Maryland. So we welcome you. And as you are aware,
this committee is holding an investigative hearing and when doing
so we have had the practice of taking testimony under oath. The
Chair would advise you that under the rules of the House and the
rules of the Committee, you are entitled to be advised by legal
counsel. Do you desire to be advised by legal counsel today?
MR. SHERMAN. No.
[Witnesses sworn.]
MR. WHITFIELD. Well you are now under oath and Professor
Sherman, if you would give us your five minute opening statement.
TESTIMONY OF EDWARD F. SHERMAN, THE MOISE F. STEEG, JR., PROFESSOR OF
LAW, TULANE LAW SCHOOL; AND LAURA WELCH, M.D., MEDICAL DIRECTOR, CENTER TO
PROTECT WORKERS RIGHTS
MR. SHERMAN. Mr. Chairman.
MR. WHITFIELD. Turn your microphone on.
MR. SHERMAN. Okay, yes, thank you.
Mr. Chairman, I have been asked to address the problems with
silicosis screening and evaluation that came to light in the Texas
case; and similar problems were also addressed by the AVA Task
Force on asbestos of which I was the reporter. And so I will refer
also during my remarks to some of the recommendations that were
made by the task force since very similar issues arise as to both
asbestosis and silicosis.
Judge Jack was in an unusual position of being able to see the
big picture that many judges don't have because 10,000 cases were
transferred to her. And during the course of determining a
jurisdictional question, she took evidence and had discovery made
and came to the conclusion that this was a phantom epidemic. The
fact that huge numbers of cases were being reported out of
Mississippi over a relatively short period of time of silicosis was
really the result of manufacturing of cases done by screening
companies, lawyers, and doctors. And most important, she pointed
out the deficiencies and the manner in which the screening and
diagnosis was done, and she said that the X-rays by a small
number of doctors who did not personally examine the patients.
She said medical histories, physical examinations, and other tests
were non-existent or cursory. And this is very similar to what the
ABA Task Force found about some asbestos screening as well,
also done by screening vans and certain screening companies, that
the screenings are done by non-medical personnel, that the doctors
who actually do the diagnosis often do it on the basis of a single X-
ray without having taken medical testimony and other tests. And
so I think what we do know is that there are some very serious
problems about the methodology and the standards that are being
followed in screening and that is in asbestosis, as well as silicosis.
It does not mean that silicosis is not a serious problem. Judge
Jack pointed out that more than a million American workers
continue to be exposed to respirable silica most prevalent in
occupations such as sandblasting, mining, quarrying, and rock
drilling. But since the 1970's when OSHA standards were
adopted, the rate of silicosis has gone down considerably, not that,
in fact, those standards might not be improved but in fact they have
gone down and as she said, the phantom epidemic that we saw
from Mississippi and those cases was really the result of a
screening and diagnostic cabal as opposed to a real epidemic.
I think that the evidence and findings deduced by Judge Jack
have an importance beyond the particular cases that were before
her because those practices have to be examined in reference to
systemic problems relating to silicosis cases, to asbestos cases, and
indeed very possibly to other delayed manifestation of disease
cases. And I want to mention three proposals that the AVA Task
Force presented, and these have been given to the committee in
writing, Mr. Chairman.
First, regarding standards, the task force proposed that
screening should only be done by a qualified medical professional
licensed to perform such tests in the State in which the test is
performed and in compliance with local, State, and Federal laws
and with professional standards for physicians and other qualified
medical professions for the conduct of medical examinations. And
then second, relating to diagnosis, propose that a physician or other
qualified medical professional rendering a diagnosis based on
screening should have personally examined the patient and should
have considered all appropriate diagnostic tests and not merely X-
rays, as well as the patient's full medical history which that
individual should have taken and any other available medical
evidence. So what we are talking about are some much, much
stricter standards in an area that has been essentially standardless
up until this time.
I want to point out that the task force did point out that this
does not mean that mass screening programs are necessarily bad.
The task force said these standards would clearly not prevent the
operation of screening programs by unions or community, health,
or other non-profit organizations in order to monitor the health and
conditions of the persons whom they serve. No interest
legitimately served by medical screenings will be hindered by
these measures. These standards will, however, substantially
reduce the prospects of litigation abuse. So what we are talking
about is reducing probably the number of cases that would be filed
by the standards but also ensuring that as a public health matter
mass screenings can be conducted if they are conducted according
to these standards.
The second proposal of the AVA Task Force, Mr. Chairman,
was that courts, both State and Federal courts that have asbestos
cases before them, adopt a model case management order and that
that case management order would require the provision at a
relatively early stage in the litigation of setting out with
particularity the facts and legal grounds for the claims and the
medical condition and medical history. In fact, similar court case
management orders have been used in California courts for several
years, and have reduced the number of claims filed. And we
believe that the courts would be well to do this, and we have
attached to that report a lengthy case management order and
appendices that would indicate that.
The third proposal of the AVA Task Force, Mr. Chairman, has
to do with statute of limitations. I think we have to realize that
sometimes lawsuits are filed because of fear of the running of the
statute of limitations and fear and uncertainty, excuse me, of
people who have been exposed to conditions that may result in
asbestos or silicosis conditions. And one can imagine that a lawyer
who is concerned about this might feel that if there has been a
screening and there has been a diagnosis that the statute of
limitations will now begin to run and they have to file the suit even
though there is no present injury or no disability. The trouble is
that in our States, the standards for when a statute of limitations
begins to run are quite diverse. They vary from a discovery rule to
an actual injury rule and the proposal of the task force is that a
model statute of limitations rule be set in clear and bright line rules
so that individuals would not have to file suits which may turn out
to be meritless and clog the courts in order to keep the statute of
limitations from running.
So those are three proposals that we feel would be relevant in
both the silicosis, as well as the asbestos area and very possibly in
the area of other delayed manifestation torts.
[The prepared statement of Edward F. Sherman follows:]
PREPARED STATEMENT OF EDWARD F. SHERMAN, THE MOISE F.
STEEG, JR., PROFESSOR OF LAW, TULANE LAW SCHOOL
Written Statement of Summary of Testimony to be Given by
Professor Edward F. Sherman at the Hearing of the Oversight and
Investigations Subcommittee, House Energy and Commerce
Committee on "The Silicosis Story: Mass Tort Screening and the
Public Health," on March 8, 2006
Good Morning, Chairman Whitfield, Congressman Stupak,
Members of the Subcommittee. I am pleased to be here this
morning. I am Edward F. Sherman a professor of law at Tulane
University Law School in New Orleans, Louisiana. I was also the
Dean of Tulane University Law School from 1996 to 2001. I
previously taught at the University of Texas School of Law where
I was the Edward A. Clark Centennial Professor of Law (1977-
1996), at the University of Indiana School of Law (l969-l977) and
as a Teaching Fellow at Harvard Law School (l967-l969). Upon
graduation from Harvard Law School in l962, I clerked for a
federal district judge in the Western District of Texas and practiced
with a Texas law firm. My areas of teaching and research are
Complex Litigation, Civil Procedure, and Alternative Dispute
Resolution, and I have published casebooks on these subjects that
are used in law schools around the country. I have been on the
Members Consultative Group of the American Law Institute's
Complex Litigation and Transnational Civil Procedure Projects. I
served as Chair and Reporter for the 2001-2003 American Bar
Association's Task Force on Class Action Litigation. I was the
Reporter for the ABA's Tort Trial and Insurance Practice Section's
Task Force on Asbestos Litigation 2003-2005, which submitted
eight proposals that were adopted as ABA policy by the ABA
House of Delegates. I appear in my capacity as a law professor,
and not as a representative of the ABA, but will pass on to you
three of the proposals made by the Task Force as they relate to the
silicosis topic that were adopted by the ABA House of Delegates.
I will discuss In re Silica Products Liability Litigation and the
significance of the opinion of Judge Janis Graham Jack. Cases
involving some 10,000 plaintiffs against some 250 corporate
defendants alleging injuries from silica exposure (most having
been removed to federal court from Mississippi courts) were
transferred by the Judicial Panel on Multidistrict Litigation to
Judge Jack's federal district court in Texas for pretrial disposition.
Judge Jack ordered discovery so that factual issues relating to
whether there was subject matter jurisdiction could be determined.
Defendants deposed Dr. George Martindale, a radiologist, who
testified that he had not intended to diagnosis silicosis in the 3,617
plaintiffs that he had previously so diagnosed based solely on
reading their X-rays. Hearings were held in February, 2005
concerning the nine doctors and two screening firms that
accounted for 99% of diagnoses of silicosis.
Judge Jack entered a lengthy opinion and order on June 30,
2005. She found that most of the silicosis claims "were essentially
manufactured on an assembly line" through screening companies,
doctors, and plaintiffs' lawyers. She criticized the diagnoses based
on readings of X-rays by a small number of doctors who did not
personally examine the patients. "Medical histories, physical
examinations and other tests were nonexistent or cursory." The
doctors "repeatedly testified that they were told to look for
silicosis" and "did as they were told." In thousands of the cases,
individuals who had previously been diagnosed only with
asbestosis were now diagnosed with silicosis, although the
presence of both diseases in an individual is rare. Thus a "small
cadre of non-treating physicians, finally 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."
Judge Jack noted that "more than a million U.S. workers
continue to be exposed to respirable silica . most prevalent in
occupations such as abrasive blasting (i.e., "sandblasting"),
mining, quarrying, and rock drilling. This continued exposure is
tragic, because while silicosis is incurable, it is also 100%
preventable." Beginning in the 1970's, OSHA implemented
regulations requiring the use of respirators and other measures to
reduce exposure, and additional measures adopted by employers
and individuals have also been effective. The Centers for Disease
Control has found that the number of U.S. workers exposed to
silica dust declined steadily since 1970, and deaths from silicosis
declined from 1157 in 1968 to 187 in 1999. Nevertheless
statistical probability suggests that there might be 1204 new
silicosis cases per year in the U.S. "However, in 2002, the number
of new Mississippi silicosis claims skyrocketed to approximately
10,642," with 7,228 in 2003 and 2,609 in 2004. Public health
officials and medical experts "were unaware of any increase in
silicosis cases in Mississippi." Judge Jack attributed this "phantom
epidemic" to screening and diagnosis practices. She proceeded to
grant a motion for sanctions against a plaintiff law firm and to
remand most of the cases to state court for further proceedings.
Judge Jack was able to make the connection between the
dramatic rise in silicosis claims and screening/diagnosis practices
because such a large number of cases had been transferred to her.
Silicosis cases are usually filed in state courts, where a single judge
does not have a large enough sample to make such a connection.
Also such cases would not normally be consolidated before a
federal MDL judge because plaintiff's lawyers typically structure
them avoid removal to federal court. Because she possessed
"jurisdiction to determine jurisdiction" as to the propriety of
removal, she had the rare opportunity to see the big picture.
The evidence and findings adduced by Judge Jack have an
importance beyond the particular cases before her. The practices
she identified reflect systemic problems which can exist in other
silicosis cases, and indeed in the closely related asbestos cases and
cases involving delayed manifestation of disease due to exposure
to conditions or products.
I would also like to comment on policies of the American Bar
Association that I have attached to my statement. The ABA's Tort
Trial and Insurance Practice Section's Task Force on Asbestos
Litigation identified many of the same defects in the screening and
diagnosing of asbestos claims by "screening vans" operated by for-
profit companies. Composed of both plaintiff and defendants'
lawyers and representatives of businesses, insurers, and unions, the
Task Force found the practices "of concern to reputable attorneys
on both sides of the docket." As indicated in its report, it
concluded that the screening and diagnosis practices were
generating cases where there is no clinical finding other than an X-
ray said to be "consistent with an asbestos-related disease." The
result can be the filing of claims by persons based on questionable
medical diagnoses and the settlement of such cases, deflecting
funds from persons with serious conditions.
ABA Proposal for Screening and Diagnosis Standards
The ABA House of Delegates adopted as policy the proposal of
the TIPS Task Force that "as authorized by an appropriate court
rule, statute, or regulation, standards be established by the states
and territories for the operation of screening vans or other forms of
mass screening for asbestos-related conditions. These standards
should be enforced, as appropriate, by federal, state and territorial
governmental agencies; by the investigation and enforcement of
bar professional ethics; by the investigation and enforcement of
medical societies' ethical standards; and by courts through
evidentiary ruling, rulings on motions for summary judgment, and
the issuance of other appropriate orders."
The standards recommended by the proposal include:
- Screenings should only be done by a qualified medical
professional licensed to perform such tests in the state in which the
test is performed and in compliance with local, state and federal
laws and with the professional standards for physicians and other
qualified medical professions for the conduct of medical
examinations.
- A physician or other qualified medical professional rendering
a diagnosis based on screening should have personally examined
the patient and considered all appropriate diagnostic tests, as well
as the patient's full medical history and any other available
medical evidence.
- Medical diagnoses based on screening tests should conform
to the applicable standard of diagnostic care that is regularly
exercised in a doctor-patient relationship.
The TIPS Task Force report noted that screening programs are
not suspect if proper standards are followed. The Task Force's
proposal stated: "These standards would clearly not prevent the
operation of screening programs by unions or community, health,
or other non-profit organizations in order to monitor the health and
conditions of the persons whom they serve. No interest
legitimately served by medical screenings will be hindered by
these measures. The standards will, however, substantially reduce
the prospects for litigation abuse." The standards, if adopted and
applied, would also assist the state and federal courts by sharply
reducing the number of claims filed, substantially easing congested
court dockets.
ABA Proposal for Model Case Management Orders
A second important deterrent to the filing and prosecution of
unmeritorious cases must be found in court procedures. This can
be accomplished through a Case Management Order requiring
early in the litigation a detailed written submission stating with
great particularity the facts and legal grounds for each claim. The
ABA adopted as policy the TIPS Task Force proposal of a Model
Case Management Order to be adopted by state and federal courts
for asbestos cases. The approximately 175 pages of standardized
discovery required by the Order would require extensive
information about the medical condition of the plaintiff and
evidentiary support for the claim and injury. I think this is an
appropriate order. It was based on California practice, which has
reduced the number of unmeritorious asbestos claims clogging the
courts. Requiring a lawyer to investigate a case thoroughly in
order to provide specific information serves to screen out meritless
cases and deter the filing and bundling of multiple cases based on
questionable screening diagnoses in hopes of a quick settlement.
ABA Proposal for Model Statute of Limitations
Finally, the ABA adopted as policy the TIPS Task Force
proposal that addressed the problem that law suits as to diseases
that have a long latency period between exposure and
manifestation (as from asbestos or silica exposure) may be filed on
the basis of fear and uncertainty of mere exposure or a weak
diagnosis in order to prevent the statute of limitations from
running. Uncertainty in certain states as to when the statute of
limitations begins to run, and, in states having a discovery
standard, as to what information will be deemed to constitute
notice of discovery, can warrant a prudent attorney to recommend
filing suit even though there is no present disability. When some
17,000 asbestos cases were filed en mass in the multidistrict
litigation transferred to the U.S. District Court for the Eastern
District of Pennsylvania, Judge Charles R. Weiner commented:
[T]hat the screening cases have been filed without a doctor-
patient medical report setting forth an asbestos related disease
has not been refuted. The basis for each filing, according to the
evidence of the moving parties, is a report to the attorney from
the screening company which states that the potential plaintiff
has an X-ray reading "consistent with" an asbestos related
disease. Because this report may set in motion the running of
any applicable statutes of limitations, a suit is then commenced
without further verification. Oftentimes these suits are brought
on behalf of individuals who are asymptomatic as to an
asbestos-related illness and may not suffer any symptoms in
the future. Filing fees are paid, service costs incurred, and
defense files are opened and processed. Substantial
transaction costs are expended and therefore unavailable for
compensation to truly ascertained asbestos victims.
The overload of asbestos cases in the courts often resulting in
serious cases not being reached, or not being subjected to serious
settlement consideration, in a timely fashion has led a number of
courts to create "pleural registries." In the early 1990's, various
courts issued orders giving priority to cancer claims or other
serious conditions, deferring other cases for trial settings or
dismissing them without prejudice. Some registries were
voluntary, like the order of Judge Moss, of the Pa. Ct. of Com. Pis.,
in a 1993 order creating a voluntary pleural registry under which
claims of asympotomatic plaintiffs "are dismissed without
prejudice, to be reopened on an expedited basis if the plaintiff
develops asbestos-related cancers." Others were mandatory,
moving such claims to an inactive list for a trial setting, or
dismissing them without prejudice, with provisions that they could
be moved onto a trial or active docket upon a motion meeting
certain criteria as to actual manifestation of disease or injury and,
in some courts, satisfying certain medical standards.
Constitutional questions based on separation of powers, due
process, equal protection, and access to courts have been raised
regarding mandatory registries, but there are no definitive
precedents. The ABA adopted as policy the TIPS Task Force
proposal for a Model Statute of Limitations for states that provides
bright line tests for determining when the statute of limitations
begins to run based on manifestation of disability or discovery of
disability, whichever later occurs. It provides that the time for the
commencement of an action shall be within two years after the
later of "the date the plaintiff first suffered disability" or "the date
the plaintiff either knew, or through the exercise of reasonable
diligence should have known, that such disability was caused or
contributed to by such exposure." This proposal is based on the
belief that, with greater certainty as to when the statute of
limitations will commence, based on actual disability or discovery
of it, there will not be an incentive for attorneys to undertake the
costs and obligations of filing cases based solely on X-ray readings
indicating only consistency with disease without manifestation of
disability.
Like the ABA, I believe that the asbestos crisis requires
multiple approaches directed at systemic conditions that have
resulted in the too-loose screening and filing of cases, the clogging
of courts by unmeritorious cases and cases filed to prevent the
statute of limitations from running, and the pressures (and
attractiveness) for defendants to settle questionable bundled cases
cheaply, which can disadvantage a plaintiff who subsequently
develops a serious disease. These principles should apply equally
to silicosis.
I again want to thank you Mr. Chairman and members of the
Subcommittee for inviting me here today and for your time. I
would be happy to answer any questions you may have.
CURRICULUM VITAE
EDWARD F. SHERMAN
Professor of Law
Tulane Law School
ADDRESS:
Tulane Law School
6329 Freret Street
New Orleans, LA 70118-5670
(504) 865-5979
PERSONAL INFORMATION:
Born: July 5, 1937, El Paso, Texas
Family: Married, two children
EDUCATION:
High School: El Paso High School, El Paso, Texas
College: Georgetown University, Washington, D.C.
A.B., Philosophy, 1959
Graduate: University of Texas at El Paso
M.A., History, 1962
M.A., English, 1967
Law School: Harvard Law School, Cambridge, Mass.
LL.B., 1962
S.J.D., 1981
LEGAL AND ACADEMIC EXPERIENCE:
Legal Aide to Governor of Nevada, 1962 (Ford Foundation
Fellowship in State & Local Government)
Law Clerk to U.S. District Judge for the Western District of
Texas, Honorable R.E. Thomason, 1963
Law Practice: Mayfield, Broaddus, MacAyeal & Perrenot, El
Paso, Texas, 1963-1965
U.S. Army, Captain, Military Police Corps, 1965-1967; U.S.
Army Reserve, Judge Advocate General's Corps, 1968-l990 (to
Lt. Colonel)
Harvard Law School, Teaching Fellow, 1967-1969
Indiana University School of Law, Bloomington, Indiana,
Professor, 1969-1977
Fulbright Lectureship (in International and Constitutional
Law), Trinity College, Dublin, Ireland, 1973-1974
American Bar Foundation Fellowship in Legal History, 1975
University of Texas School of Law, Austin, Texas
Edward Clark Centennial Professor of Law, 1977-1996
University of London, Visiting Professor, l989
Krajowa Szkola Administracji Publicznej (School of Public
Administration), Warsaw, Poland, Visiting Professor,
January-February 1995.
Institute of Comparative Law, Chuo University School of
Law, Tokyo, Japan, Visiting Professor, spring, 1995.
Tulane Law School, Dean and Professor of Law, 1996-2001;
Professor of Law, 2001-present.
University of New South Wales, Sydney, Australia, Visiting
Professor, 2002.
University of Maine School of Law, Godfrey Distinguished
Visiting Professor of Law, fall, 2003.
SUBJECTS TAUGHT:
Civil Procedure
Complex Litigation
Alternative Dispute Resolution
International Law, International Arbitration
Constitutional Law, Civil Rights, Government Liability
Law of War, Military Law, National Security Law
Jurisprudence, Law and Literature
SELECTED ACTIVITIES:
American Association of University Professors, General Counsel,
1986-1988
American Bar Association
ABA Tort Trial & Insurance Practice Section 2004 Robert B.
McKay Award
Reporter, Task Force on Asbestos Reform (2003-2005)
Chair & Reporter, Task Force on Class Action Legislation
(2001-2003)
Reporter, Task Force on Offer of Judgment Rule (1995)(TIPS).
Reporter, Summit on Civil Justice System Improvements
(l993).
Section of Litigation, Co-chair, Task Force on Federal Rules
(1996-99); Task Force on the Public Perception of the
Litigation System (1999-2001); Task Force on State of Justice
System & Federal Initiatives (l993-1996); Standing Committee
on Pro Bono & Public Service (1998-2001); Subcommittee on
Computerization, Committee on Discovery (l982-1983).
Section of Dispute Resolution, Co-chair & member,
Arbitration Committee, 1999-present
American Law Institute, l988-present
Complex Litigation Project, Members Consultative Group,
l989-1995
Transnational Civil Procedure, Members Consultative Group,
2001-present
Arbitrator
Expedited Arbitration Panel, Aluminum Co. of America and
United Steel Workers of America, 1984-1996
American Arbitration Association, Labor Law Panel, l989-
1996
International Centers for Arbitration, International Arbitrator
Panel, l993-1996; director of training, 1993-1996.
Association of American Law Schools
Chair, Section on Litigation, 1999-2000
Chair, Section on Dispute Resolution, 1995-96
Board, Section on Civil Procedure, 1994-95
Committee on Clinical Education, 1999-present
Expert Witness on Class Action Certification and Management
(cases in state and federal courts)
Law & Economics Center, summer program for law professors,
1981, advanced course, 1991
Louisiana Bar Foundation, Judicial Liason Committee, 1999-
present
Louisiana State Law Institute, 1996-2002
Louisiana State Bar Association
Board of Governors, 1997-99
Board, ADR Section, 1997-present
Committee on Codes of Lawyer and Judicial Conduct, 1999-
present
Mediator
Basic Mediation Training Course, 1985; volunteer mediator,
Travis County Dispute Resolution Center, 1985-1996; court-
appointed mediator, Texas state & federal court cases, 1985-
1996
Professor, courses in mediation and arbitration, U. of Texas
School of Law, 1986-1996; Tulane Law School, 1996-present;
Hamline Law School Summer Mediation Program, 1994;
Tulane-Humboldt Universities Intercultural
Negotiation/Mediation Summer Program, Berlin, Germany,
1999-2001.
National Institute for Military Justice, Board of Directors (2000-
present)
Texas Bar Association
Chair, Committee on Pattern Jury Instructions (Vol. I), 1982-
1994
Board & Member, Alternative Dispute Resolution Section,
1984-96
Texas Center for Public Policy Dispute Resolution, Chair of
Board, l993-1996.
Texas Civil Liberties Union, General Counsel, 1992-1996
Travis County Jail Litigation, Court-Appointed Attorney, U.S.
District Court for the Western District of Texas, 1981-1990
Travis County Dispute Resolution Center, Board and Vice-
President, 1986-1988
Texas Resource Center (for Post-Conviction Capital
Representation), Board, 1988-1993, Chair of Board, 1993-1994.
U.S. AID "Stars Project - Vietnam" on drafting new Vietnamese
Code of Civil Procedure, 2003
Who's Who in:
America
American Education
American Law
South & Southwest
International
SELECTED PUBLICATIONS:
BOOKS:
Processes of Dispute Resolution: The Role of Lawyers (with Rau
& Peppet)(Foundation Press 2002).
Civil Procedure: A Modern Approach (with Marcus &
Redish)(West Pub. Co. 1989, 4th ed. 2005).
Rau, Sherman, and Shannon's Texas ADR and Arbitration:
Statutes and Commentary (with Rau & Shannon))(Shepard's
McGraw-Hill l994, West Group 3d ed. 2000).
Complex Litigation: Cases and Materials on Advanced Civil
Procedure (with Marcus)(West Pub. Co. l985, 4th ed. 2004)
Processes of Dispute Resolution: The Role of Lawyers (with
Murray & Rau)(Foundation Press 1989, 2d ed. 1996).
Dispute Resolution: Materials for Continuing Legal Education
(with Murray and Rau)(National Institute for Dispute Resolution
l99l).
Cases and Materials on Military Law: The Scope of Military
Authority in a Democracy (with Zillman & Blaustein)(Matthew
Bender l978).
Civil Procedure (Federal and Indiana) (Josephson's Bar Review
Center of America l977).
CHAPTERS IN BOOKS:
"Mediation Training: Career Opportunities and Skill Formation for
Other Occupations," 20 ADR & The Law 69 (20th ed. 2006).
"Sources and Bibliography for Alternative Dispute Resolution, in
"Alternative Dispute Resolution Handbook 499 (State Bar of
Texas 2003).
"Class Actions," in Oxford Companion to American Law 118
(2002).
Volume 3 (Federal Rules 13 & 15), Moore's Federal Practice
(1997).
"Applications of Dispute Resolution Processes in the Israeli-
Palestinian Conflict," in The Struggle for Peace: Israelis and
Palestinians (ed. E. Fernea & M. Hocking l992)
"Local Court Rules on ADR" and "ADR References," in
Handbook of Alternative Dispute Resolution, Chap 23, Appendix
B (State Bar of Texas, A. Greenberg, ed.)(2d ed. l990).
"In-Service Conscientious Objection," in Selective Conscientious
Objection: Accommodating Conscience and Security 117 (M.
Noone, ed.)(Westview Press l989).
"Texas Tort Claims Act" (Chap. 60), in Texas Torts and Remedies
(H. Edgar & J. Sales, ed.)(Matthew Bender l987).
"Military Law," in Encyclopedia of the American Judicial System,
Vol. l (McMillan Pub. Co. l987).
"Contemporary Challenges to Traditional Limits on the Role of the
Military in American Society," in Rowe & Whelan, Military
Intervention in Democratic Societies 216 (Croom Helm l985).
"Responsiveness and Accountability in the Military," in People
Versus Government Power 226 (L. Rieselbach, ed.)(U. of Indiana
Press l975).
"Domestic Law and the Military Establishment," in Modules in
Security Studies (A. Williams & D. Tarr. ed.)(U. Press of Kansas
l974).
"Bertrand Russell and the Peace Movement: Liberal Consistency
or Radical Change," in Bertrand Russell's Philosophy 253 (G.
Nakhnikian, ed.)(Indiana U. Press l974).
"Amnesty and the Military Offender," in When Can I Come
Home? A Debate on Amnesty for Exiles, Anti-War Prisoners and
Others 92 (M. Polner, ed.)(Doubleday & Co. l972).
"The Civilianization of Military Law," in With Justice for Some 65
(B. Wasserstein & M. Green, ed.)(Beacon Press l97l).
"Justice in the Military," in Conscience and Command 21 (J. Finn,
ed.)(Random House l97l).
"Rights of Servicemen," in The Rights of Americans 621 (N.
Dorsen, ed.)(Random House Pantheon l97l).
"Military Justice and Individual Liberty," in A. Yarmolinsky, The
Military Establishment: Its Impacts on American Society (A
Twentieth Century Fund Study)(Harper & Row l97l).
SELECTED ARTICLES
"Compensation under a Trust Fund Solution to Asbestos Claims: Is
It Really Fair?," (with Wallace) 34 The Brief (ABA TIPS
Section)(2005).
"Consumer Class Actions: Who Are the Real Winners?" (Godfrey
Distinguished Professor Lecture), 56 Maine Law Review 223
(2004)
"Complex Litigation: Plagued by Concerns over Federalism,
Jurisdiction, and Fairness" (Introduction to Symposium on
Complex Litigation), 37 Akron Law Review 589 (2004).
"American Class Actions: Significant Features and Developing
Alternatives in Foreign Legal Systems," 215 Federal Rules
Decisions 130 (2003).
"Evolving Military Justice," 67 Journal of Military History 999
(July 2003).
"Courting Controversy: Class Action Practice in the United
States," 2 Legal Week Global (UK) 22 (April 2003).
"Group Litigation Under Foreign Legal Systems: Variations and
Alternatives to American Class Actions," 52 DePaul Law Review
401 (2002).
"The Disposition of Afgan War and Al Quaeda Prisoners," Tulane
Lawyer 8 (Fall/Winter 2002).
"Who, Where and How Should the Guantanamo Detainees Be
Tried?," New Orleans Times-Picayune, March 4, 2002.
"Military Commissions Aren't the Only Option," New Orleans
Times-Picayune, December 3, 2001.
"Amendments to Rule 11 Have Cut Number of Sanction Motions,"
(interview), 26 ABA Litigation News 8, July 2001.
"Class Action Practice in the Gulf South," 74 Tulane Law Review
1603 (2000).
"Implications for the Future of Legal Education in Response to
NAFTA and Growing Global Trade Relations," 47 Louisiana Bar
Journal 391 (2000).
"Response to Professionalism," 47 Louisiana Bar Journal 324
(2000).
"The Evolution of American Civil Trial Process Towards Greater
Congruence with Continental "Dossier Trial" Practice," 7 Tulane J.
of Int'l & Comparative Law 125 (1999).
"A Tribute to Professor Athanassios Yiannopoulos," 73 Tulane
Law Review 1017 (1999).
"From Loser Pays to Modified Offer of Judgment Rules:
Reconciling Incentives to Settle with Access to Justice," 76 Texas
Law Review.1863 (1998).
"Good Faith Participation in Mediation: Aspirational, Not
Mandatory," 4 Dispute Resolution Mag. (ABA Section of Dispute
Resolution) 14 (Winter 1997).
"Confidentiality in ADR Proceedings: Policy Issues Arising from
the Texas Experience," 38 South Texas Law Review 541 (1997).
"The Impact on Litigation Strategy of Integrating Alternative
Dispute Resolution into the Pretrial Process, " 15 Review of
Litigation 503 (1996), reprinted, 168 Federal Rules Decisions 75
(1996).
"Complex Litigation: Aggregating Related Cases for Unitary
Disposition," 30 Comparative Law Review 57 (Institute of
Comparative Law in Japan, Chuo University, Tokyo, 1996).
"Antisuit Injunctions and Notice of Intervention and Preclusion:
Complementary Devices to Prevent Duplicative Litigation," in
Symposium on the American Law Institute's Complex Litigation
Project, 1995 Brigham Young Law Review 925.
"Standards of Professional Conduct in Alternative Dispute
Resolution," Symposium from AALS, 1995 Journal of Dispute
Resolution 95.
"Policy Issues for State Court ADR Reform," Alternatives 142
(Nov. 1995).
"Tradition and Innovation in International Arbitration Procedure"
(with Rau), 30 Texas Int'l Law J. 89 (1995).
"A Process Model and Agenda for Civil Justice Reforms in the
States," 46 Stanford Law Review, 1553 (July l994).
"Managing Complex Litigation: Procedures and Strategies for
Lawyers and Courts," 57 Texas Bar Journal l49 (Feb. l994)(Book
Review).
"Court-Mandated Alternative Dispute Resolution: What Form of
Participation Should Be Required?" 46 S.M.U. Law Review 2079
(l993).
"Judge Jerre Williams: A Worthy Academic Career," 72 Texas
Law Review ix (Nov. l993).
"Aggregate Disposition of Related Cases: The Policy Issues," l0
Review of Litigation 23l (l99l).
"A Social Psychology of Citizens' Obligations to Authority: A
Review of Crimes of Obedience," l7 American Journal of Criminal
Law 287 (l990).
"The Immigration Laws and the 'Right to Hear' Protected by
Academic Freedom," 66 Texas Law Review l547 (l988).
"Reshaping the Lawyer's Skills for Court-Supervised Alternative
Dispute Resolution," 5l Texas Bar Journal 47 (l988).
"The Role of Religion in School Curriculum and Textbooks," 74
Academe l7 (l988).
"Class Actions and Duplicative Litigation," 62 Indiana Law
Journal 507-559 (Symposium on Class Actions)(l987).
"Prisoners' Rights" (Fifth Circuit Survey), l9 Tex. Tech Law
Review 797 (l988), l8 Tex. Tech L. Rev. 655 (l987).
"Implementing the New Preference for Broad Issues in Texas
Special Issues Practice," 4 The Advocate 2 (Oct. l985).
"Relationship Between Issues and Instructions in Texas Special
Issues Practice," Institute on Jury Submission (State Bar of Texas
l985).
"Restructuring the Trial Process in the Age of Complex
Litigation," 63 Texas Law Review 72l (l984).
"The Role of the Judge in Discovery," 3 Review of Litigation 89
(l982).
"Federal Court Discovery in the 80's - Making the Rules Work," 2
Review of Litigation 9 (l98l), reprinted in 95 Federal Rules
Decisions 245 (l982).
"Evolution of the Laws of War," ll0 USA Today 54 (May, l982).
"Traditional and Developing Concepts of Governmental Liability,"
Institute on Public Law Liability of Public Officials and
Employees (State Bar of Texas l98l).
"The Development, Discovery, and Use of Computer Support
Systems in Achieving Efficiency in Litigation," 79 Columbia Law
Review 267 (l979).
"Military Unions and the Soldier 'Employee'," Washington Post,
March 4, l978, A.l7.
"A Special Kind of Justice," 84 Yale Law Journal 373 (l974).
"Legal Inadequacies and Doctrinal Restraints in Controlling the
Military," 49 Indiana Law Journal 538 (l974).
"After Sunningdale: Is Ireland on the Mend?," The Nation 456
(April l3, l974).
"Military Justice Without Military Control," 82 Yale Law Journal
l398 (l973).
"The Military Courts and Servicemen's First Amendment Rights,"
22 Hastings Law Journal 325 (l97l).
"Congressional Proposals for Reform of Military Law," l0
American Criminal Law Review 25 (l97l).
New York Times Articles (Week in Review Section):
"Exit Black: New Chance for Nixon to Push the Court to the
Right," Sept. l9, l97l, E.4.
"Critical Look at Military Prison System," June 2l, l970, E.6.
"Military Justice is to Justice as Military Music is to Music,"
(Book Review), May 3, l970, BR.l.
"Duffy Case: Preview of the My Lai Trials?," April 5, l970,
E.2.
"My Lai: Army Blow the Lid on Its Own Cover-Up," March
22, l970, E.l.
"Pretrial Jousting Over My Lai Massacre," Feb. l, l970, E.3.
"My Lai: Some Knotty Legal Questions," Dec. 7, l969, E.3.
"The Civilianization of Military Law," 22 Maine Law Review 3
(l970).
"Judicial Review of Military Determinations and the Exhaustion of
Remedies Requirement," 55 Virginia Law Review 483 (l969),
reprinted in 48 Military Law Review 9l (l970).
"The Right to Representation by Out-of-State Attorneys in Civil
Rights Cases," 4 Harvard Civil Rights-Civil Liberties Law Review
65 (Fall l968).
"The Great Draft Debate, " New Republic 36 (May l8, l968).
"The Right to Competent Counsel in Special Courts Martial," 54
American Bar Assoc. Journal 866 (Sept. l968).
"Nevada Faces the End of the Casino Era," Atlantic ll2 (Oct. l966).
"The Use of Public Opinion Polls in Continuance and Venue
Hearings," 50 American Bar Association Journal 357 (April l964).
RESOLUTION ADOPTED BY THE
HOUSE OF DELEGATES
OF THE
AMERICAN BAR ASSOCIATION
FEBRUARY 2005
RESOLVED, That the American Bar Association recommends
that states and territories establish by statute or regulation,
standards for the operation of screening vans or other forms of
mass screening for asbestos-related conditions. These standards
should be enforced, as appropriate, by federal, state and territorial
governmental agencies and judicial bodies; by the investigation
and enforcement of bar professional ethics; and by the
investigation and enforcement of medical societies' ethical
standards. The objective of screening standards should be to
prevent medical screenings from being conducted inaccurately and
being misused, but not to prevent legitimate monitoring of health.
1. Such standards should require compliance with:
a. Federal Food and Drug Administration and other local,
territorial, state, and federal governmental laws and regulations
governing the use of medical equipment and testing devices.
b. Local, territorial, state, and federal laws and regulations.
c. Professional standards for physicians and other qualified
medical professionals concerning the conduct of medical
examinations, screening tests (including X-rays and pulmonary
function tests) and medical diagnoses such as those promulgated
by the American Medical Association and the American Thoracic
Society.
d. Such standards should be technology-neutral and based on
current medical technological advancements.
2. The reading, evaluation and reporting of such tests should be
performed by a physician or other medical professional qualified
under professional and state licensing standards, recognizing that
there may be multiple medical professionals carrying out certain
functions in the chain from screening through diagnosis.
3. The physician or other qualified and legally authorized
medical professional rendering the diagnosis shall have examined
the screened individual, either in person or through medically
accepted telemedicine or electronic practices, following a complete
history of all occupational exposures that might be relevant; and
has considered the results of all diagnostic tests performed during
the medical examination or screening, including but not limited to
pulmonary function tests and X-rays; and has considered all other
medical information concerning the patient relevant to the
diagnosis that is available to such physician or qualified and
legally authorized medical professional.
4. All pulmonary function test reports shall conform with any
guidelines or standards adopted by such state or territory pursuant
to paragraph 1.c above, and shall be accompanied by the original
tracings, and all X-ray reports shall be accompanied by the original
X-ray or X-rays, either in original form or as transmitted digitally
or in a manner judged to be reliable by qualified medical
technology experts.
5. All medical diagnoses shall be made in accordance with the
applicable standard of diagnostic care, and such diagnoses must be
communicated to the screened individual within a reasonable
period of time by the physician or other qualified and legally
authorized medical professional rendering the diagnosis.
RESOLUTION ADOPTED BY THE
HOUSE OF DELEGATES
OF THE
AMERICAN BAR ASSOCIATION
AUGUST 2005
RESOLVED, That the American Bar Association recommends
that federal, state, and territorial courts without any existing Case
Management Order governing asbestos litigation, or with an
existing Case Management Order that has proven unworkable,
utilize the Model Case Management Order, with referenced
exhibits, dated August 2005.
AMERICAN BAR ASSOCIATION
TORT TRIAL & INSURANCE PRACTICE SECTION
MODEL ASBESTOS PRE-TRIAL CASE MANAGEMENT
ORDER
AUGUST 2005
MODEL ASBESTOS PRE-TRIAL CASE MANAGEMENT
ORDER
This Asbestos Pre-Trial Case Management Order is entered in
conjunction with this Court's Asbestos Inactive Docket Order
dated _________. This Order sets forth the procedures to be
followed when a plaintiff files an asbestos-related Complaint,
whether or not said plaintiff previously has been registered on the
Registry. This Order also governs certain aspects of discovery and
pre-trial motions.
This Order applies to all pending asbestos Complaints and to
all asbestos Complaints filed after the date of this Order.
As used herein, the term "plaintiff" also refers to plaintiff's
decedent, if applicable.
IT IS HEREBY ORDERED as follows:
1. Any Complaint alleging an asbestos-related injury must
attach the following:
A. A Preliminary Fact Sheet in the form attached hereto as
Exhibit A, http://www.abanet.org/tips/atf/cmo/Exhibit
A to CMO.pdf completed in full.
B. A Physician's Report signed by a pulmonologist,
internist, occupational health physician, or pathologist
which diagnoses one or more asbestos-related
disease(s). Said physician must be actively licensed to
practice medicine and certified by the appropriate
subspecialty board in his or her applicable subspecialty.
The Physician's Report must:
i. Verify that the diagnosing doctor, or a medical
professional employed by and under the direct
supervision and control of the diagnosing doctor,
has performed all examinations or tests referenced
in the Report and conducted any referenced
interviews of plaintiff or plaintiff's representative.
ii. Set forth a reliable history of exposure, as described
in the "Diagnosis and Initial Management of
Nonmalignant Disease Related to Asbestos" by the
American Thoracic Society, Am. J. Respir. Crit.
Care Med., Vol. 170, pp. 691-715, 2004.
iii. Set forth a medical and smoking history that
includes a review of the plaintiff's relevant past and
present medical problems.
iv. Set forth all findings revealed by any hands-on
physical examination of the plaintiff.
v. Verify that an adequate latency has elapsed between
plaintiff's first exposure to asbestos and the time of
diagnosis.
vi. Verify that the doctor has diagnosed an asbestos-
related disease to a reasonable degree of medical
probability. A diagnosis of findings "consistent
with" an asbestos-related disease is not sufficient
under this Order.
vii. Verify that any X-rays, CTs and/or Pulmonary
Function Tests were administered in accordance
with all applicable state health regulations and that
any Pulmonary Function Tests were performed
using equipment, methods of calibration and
techniques that meet the criteria incorporated in the
AMA Guides to the Evaluation of Permanent
Impairment (5th Ed.) and reported as set forth in 20
CFR 404, Subpt. P, App 1, Part (A), 3.00 (E) and
(F), and the interpretative standards set forth in the
Official Statement of the American Thoracic
Society entitled "Lung Function Testing: Selection
of Reference Values And Interpretative Strategies"
as published in Am. Rev. Resp. Dis.
1991:144:1202-1218.
viii. Attach copies of all reports interpreting
Pulmonary Function Tests that have been
administered (including flow volume loops), and all
reports of X-ray and CT Scan reports, including B-
reading forms when available.
C. Authorizations in the form attached hereto as Exhibit B,
http://www.abanet.org/tips/atf/cmo/Exhibit B to
CMO.pdf executed by plaintiff or plaintiff's
representative, authorizing release of plaintiff's social
security, military, veterans, employment and medical
records.
D. Be accompanied by the current regular filing fee for
each named plaintiff (after crediting any fee previously
paid with plaintiff's application to the Inactive Docket).
2. Within thirty (30) days of the service of any Complaint
hereunder, any Defendant may file an Objection to
Complaint, which states any objections Defendant has as to
whether the above requirements for filing an asbestos-
related complaint have been met. Plaintiff shall have the
right to file a written response to the Objection within
twenty (20) days after the date of the Objection. The Court
may decide the issue on the papers so submitted, or
schedule a hearing, in its discretion, and/or impose
sanctions in accordance with applicable law if either side
has filed a document under this paragraph without
substantial justification.
3. The Clerk shall create and maintain a public file, which
shall contain Master Complaints and Master Answers
("Master Pleadings"). Attorneys representing parties in
asbestos litigation may file a Master Complaint or Master
Answer, and copies of such pleadings shall be served on all
counsel who previously filed a Master Pleading.
Thereafter, any party represented by counsel who has filed
a Master Complaint or Master Answer may file and serve
on any adverse party a Summary Pleading, and such
Summary Pleading shall have the same force and effect as
if the Master Pleading had been filed and served on the
adverse party. A Summary Pleading filed pursuant to this
General Order shall contain the following:
i. The case caption, which shall include the names of
the parties to the action, the case number, and the
name(s) of the party(ies) on whose behalf the
Summary Pleading is filed and against whom the
Summary Pleading is asserted;
ii. Notice that the Master Pleading is on file with the
Clerk of the Superior Court and the date on which it
was filed, that a copy of the Master Pleading and of
this General Order may be obtained upon request
from counsel filing the Summary Pleading, and that
designated portions of the Master Pleading are
incorporated by reference in the Summary Pleading.
The Summary Pleading shall specify those claims
or affirmative defenses contained in the Master
Pleading, which are being asserted against the party
being served.
iii. Such case-specific information as may be necessary
to satisfy applicable statutes, pleading requirements,
and this Order.
An amended Master Pleading shall not be deemed incorporated by
reference into any previously filed Summary Pleading without
further order of the court. This provision shall not limit the
substantive rights of any party, nor limit the right of any party to
challenge the sufficiency of any Master Pleading or Summary
Pleading.
4. Within sixty (60) days after filing a Complaint hereunder,
plaintiff(s) shall
A. Answer the Standard Interrogatories and Request for
Documents attached to Exhibit C
http://www.abanet.org/tips/atf/cmo/Exhibit C to
CMO.pdf (sub-parts A (1-5) and B) hereto. Said
answers shall be full and complete, and must be verified
under penalty of perjury.
B. Using the form attached hereto as Exhibit D,
http://www.abanet.org/tips/atf/cmo/Exhibit D to
CMO.pdf agree to deliver pathology in the parties'
possession (including attorneys and consultants) to
Defendants' Representative (defined below) within ten
(10) days after said Representative is designated
pursuant to paragraph 6, below, and noting whether
plaintiff objects to destructive testing of said pathology.
Any dispute over destructive testing of pathology will
be resolved by the Court upon noticed motion. In the
event there is no dispute, Defendants' Representative
shall return the pathology to plaintiff's counsel within
sixty (60) days of receipt.
C. Using the form attached hereto as Exhibit E,
http://www.abanet.org/tips/atf/cmo/Exhibit E to
CMO.pdf offer plaintiff(s) for discovery depositions
indicating each deponent's availability on no less than
three (3) dates (at least 30 and no more than ninety (90)
days after the date of the offer).
5. The court hereby adopts standard plaintiff interrogatories to
defendants, attached to Exhibit C
http://www.abanet.org/tips/atf/cmo/Exhibit C to
CMO.pdf(subparts C (1-4)), to be answered by defendant
under oath without objection except for the assertion of a
claim of privilege or as provided below.
A. Upon motion by any defendant made within seventy-
five (75) days of the effective date of this order, the
Court shall determine on a one-time basis the propriety
of an objection by such defendant that providing
answers to specific question(s) in the standard plaintiff
interrogatories to defendants would impose on such
defendant a particular burden which is not justified by
the likelihood that such answers will provide or lead to
the discovery of relevant and material evidence. When
a new defendant is served in the litigation in this
jurisdiction for the first time after the effective date of
this order, that defendant shall have ninety (90) days
following service of the complaint to move the court to
review any claim of burden it may have on the same
basis.
B. Within one-hundred twenty (120) days of the effective
date of this order, each defendant in any pending action
served with a copy of this order shall serve upon all
counsel who previously filed a Master Pleading its
answers to the standard plaintiff interrogatories to
defendants. These answers shall be deemed served in
all pending cases, and thereafter it shall be deemed that
the defendant has served the same answers in all other
subsequently served cases. If at any time a defendant
amends or provides further answers, in whole or in part,
to the standard plaintiff interrogatories to defendants, it
shall serve said amended and/or further answers on all
counsel and said amended and/or further answers shall
apply to all cases.
C. The court hereby adopts plaintiffs' standard case-
specific interrogatories to defendants (attached to
Exhibit C http://www.abanet.org/tips/atf/cmo/Exhibit C
to CMO.pdf) and a notice of service of plaintiffs'
standard case-specific interrogatories to defendants
(also attached to Exhibit C
http://www.abanet.org/tips/atf/cmo/Exhibit C to
CMO.pdf). Plaintiffs' counsel may serve such Notice at
any time after commencement of the action. Thereupon,
unless excused from the obligation to answer by order
of the Court, the defendant designated in the Notice
shall be required to answer such interrogatories within
sixty (60) days after service of the Notice, but no
sooner than one-hundred twenty (120) days after
service of the complaint upon that defendant.
D. Nothing herein shall preclude any party from
propounding additional non-duplicative discovery.
E. On the annual anniversary of the date upon which it
served its initial answers to Standard Plaintiff
Interrogatories to Defendants, each defendant shall
either (1) supplement its answers with information
subsequently discovered, inadvertently omitted, or
mistakenly stated in the initial interrogatory responses,
or (2) serve a verified statement from defendant's most
knowledgeable agent(s), officer(s) or employee(s)
stating that such individual(s) has reviewed defendant's
answers to such interrogatories and that the answers are
still true and complete."
6. Defendants are required to cooperate with each other and
with plaintiff's counsel in order to coordinate the
scheduling of depositions, testing of pathology materials,
and scheduling of Defense Medical Examinations. Within
fifteen (15) days after service of the materials specified in
subpart 4, above, defendants shall notify plaintiffs' counsel
of the defense firm which shall act as Defendants'
Representative in said case, and plaintiffs' counsel shall
work with said Defendants' Representative firm thereafter
in connection with discovery, scheduling and pathology
issues. If Defendants' Representative's firm subsequently
ceases to represent any defendants in said case, the
remaining defendants shall notify plaintiffs' counsel within
fifteen (15) days of a replacement firm as the Defendants'
Representative. The Court hereby recognizes the
applicability of the joint defense privilege to work
performed by Defendants' Representative in this regard,
and to communications among defendants concerning
matters, which are the subject of this Order.
7. Plaintiff's depositions shall proceed as follows:
A. The plaintiff's deposition may be noticed only by the
Defendants' Representative or by the plaintiff.
B. If the deposition is noticed by the Defendants'
Representative, defendants shall have 7 hours to depose
the witness on the record, absent agreement of the
parties or court order.
C. If the plaintiff notices the deposition, the plaintiff may
complete his or her direct testimony before cross-
examination is conducted by defendants. If this
procedure is used, the time for defendants' cross-
examination shall be either 7 hours on the record or
three times the amount of time used by plaintiff to
complete the direct examination, whichever is longer.
Defendants are expected to allocate the available time
among themselves and, in the event of inability to
agree, shall make a timely motion for protective order
before expiration of the time limit.
D. In the event any defendant is served after completion of
plaintiff's deposition, such late-served defendant(s)
may request that the Defendants' Representative
schedule and notice a further deposition of the plaintiff.
Said deposition shall be limited to those matters not
adequately covered in the initial deposition including
liability issues pertaining to the newly served
defendant.
8. Cases governed by this Order may be challenged by
expedited summary judgment motions, as follows:
A. A motion for summary judgment on the ground that
there is no evidence tending to show that the plaintiff
was exposed to asbestos for which the defendant is
responsible shall be deemed filed if a defendant timely
files and serves a Notice of Intent to Request Expedited
Summary Judgment. This procedure may be used
solely with respect to product, site and contractor
identification issues. The Notice of Intent to Request
Expedited Summary Judgment need not be
accompanied by any supporting papers except as
required herein.
B. A Notice of Intent to Request Expedited Summary
Judgment may be served at any time after a trial date is
set, or six months have elapsed since the
commencement of the action, whichever occurs first,
and no later than forty-five (45) days before the date set
for Expedited Summary Judgment Hearing. Such
Notice of Intent shall contain a certification by
defendant's counsel that:
i. Such attorney has reviewed, or caused to be
reviewed by another attorney or legal assistant
working under the supervision of such attorney, all
of the discovery, which has been exchanged
between the plaintiff and the moving defendant in
the action;
ii. The moving defendant has provided plaintiff with
all information in its possession, custody or control
(other than expert discovery), which it is required to
produce to plaintiff pursuant to proper discovery
demand or court order in the action; and
iii. Plaintiff's responses to discovery in the action have
not identified any competent evidence tending to
show exposure to asbestos for which the defendant
is responsible.
C. Not later than fifteen (15) days before the hearing date,
plaintiff shall file and serve a Response establishing
that there is a triable issue of fact as to whether the
plaintiff was exposed to asbestos for which the
defendant is responsible. In the event that plaintiff fails
timely to file a Response to a defendant's Notice of
Intent to Request Expedited Summary Judgment, the
action shall be dismissed without prejudice.
D. Not less than five (5) days before the hearing date, the
moving defendant may file and serve a Reply to the
plaintiff's Response to Notice of Intent to Request
Expedited Summary Judgment.
E. The Court shall have the discretion to make a ruling
based upon the submitted papers and without the need
of a hearing, and in its discretion, impose sanctions in
accordance with applicable law if either side has filed a
document under this section without substantial
justification.
F. Nothing herein shall preclude any party from bringing a
motion for summary judgment on any ground, in full
compliance with the procedures and time limitations
generally applicable to civil actions.
EXHIBIT E
TO PROTOTYPE ASBESTOR PRE-TRIAL
CASE MANAGEMENT ORDER
(See order dated ______________)
REPORT
It is hard to see or hear the word "Asbestos" without the word
"Crisis". In this context, numbers abound. $145 Billion proposed
for a federal trust fund, 600,000 lawsuits filed, 10 to 20 million
people exposed in industrial settings, 30,000 to 50,000 new
lawsuits filed a year and scores of bankruptcies. A single case may
have thousands of plaintiffs and hundreds of defendants with a
settlement value of $600,000,000.00.
As a result, the media has been focused on the efforts of the
asbestos stakeholders to resolve their differences and secure a
federal solution to a problem besetting many state and territorial
courts. A sample of that media attention has been included in this
report so you may understand why the stakeholders represented on
the TIPS Asbestos Task Force are not optimistic about a federal
solution emerging, especially as long as the federal solution does
not address stakeholder uncertainties with federal guarantees.
Recognizing that there was little that the TIPS Asbestos Task
Force could add to the negotiations over the amount and allocation
of contributions, the TIPS Asbestos Task Force has spent the last
twenty-four months developing a trilogy of recommendations to
control the flood of claims that have and are inundating our courts.
These recommendations provide a Model Case Management Order
and extensive standard discovery to address claims already filed
and a pair of recommendations approved by the HOD at the 2005
MYM to stem the filing of new claims with the courts. The first
approved Recommendation addressed the use and "abuse" of
screening vans, a critical factor in producing thousands of non-
malignant and non-disabled plaintiffs for a single case filing.
The second approved Recommendation offered a Model
Statute of Limitations governing the accrual of actions for injury,
illness or wrongful death based upon exposure to asbestos, to
address the fear and uncertainty surrounding the running of a
statute of limitations that may or may not have been triggered by
the information communicated to a person, typically after an
examination in a screening van, where there is no clinical finding
other than an X-ray "consistent with" an asbestos related disease.
Case Management Orders
In an effort to address the large number of asbestos cases filed
in their respective jurisdictions, many courts have issued case
management orders ("CMO") setting out detailed schedules and
procedures for handling such matters as docketing, discovery,
motions, case priorities, trial settings, settlement negotiations, and
trial or disposition of asbestos cases. Many of these CMOs have
led to the efficient and fair handling of asbestos litigation. On the
other hand, there exist jurisdictions in which there are no CMOs,
competing CMOs within a jurisdiction, outdated CMOs, or simply
CMOs that for one reason or another no longer function as
originally intended. The Asbestos Task Force of the Tort Trial &
Insurance Practice Section ("TIPS") believes that the existing
litigation system can be made more efficient and fairer by the
promulgation of and adherence to a comprehensive model CMO.
The TIPS Asbestos Task Force examined a large number of
pre-trial orders and CMOs, from both federal and state courts and
has attempted to distill the best features of these orders into a
model CMO. The TIPS Asbestos Task Force does not intend this
to be a replacement for existing CMOs that have been developed in
various jurisdictions through the input of the courts and counsel,
and which have proven effective. Rather, the goal is to adopt a
model CMO that can be used to more effectively and fairly
administer asbestos litigation in those jurisdictions that have not
developed a CMO or in those jurisdictions in which an existing
CMO no longer appears to be effective. TIPS submits this model
CMO as suggested guidance in such jurisdictions. It is a resource
designed by representatives of the plaintiff and defense bar and
company defendants and their insurers to facilitate the
management of asbestos litigation with the best practices drawn
from various jurisdictions across the country.
Furthermore, the TIPS Asbestos Task Force also encourages
the use of standard discovery requests by both plaintiffs and
defendants, as envisioned in the model CMO, to expedite the
timely discovery of the basic and necessary information for the
assessment and handling of the asbestos case. Proposed standard
discovery requests are referenced in the model CMO (see
http://www.abanet.org/tips/atf/cmo/cmo_home.htm). While the
TIPS Asbestos Task Force believes that these discovery requests
will be effective, it is anticipated that individual jurisdictions may
modify the requests based upon the jurisdiction's statutes, rules,
procedures, and practices. The Exhibits to the CMO and the
standard discovery requests are voluminous (almost 200 pages):
Case Specific Interrogatories to All Defendants -
http://www.abanet.org/tips/atf/cmo/Case Specific Interrogatories to
All Defendants.pdf
Case Specific Interrogatories to Friction Defendants -
http://www.abanet.org/tips/atf/cmo/Case Specific Interrogatories to
Friction Defendants.pdf
Friction Interrogatories -
http://www.abanet.org/tips/atf/cmo/Friction Interrogatories.pdf
Heir, Legal Rep Interrogatories -
http://www.abanet.org/tips/atf/cmo/Heir, Legal Rep
Interrogatories.pdf
Loss of Consortium Interrogatories -
http://www.abanet.org/tips/atf/cmo/Loss of Consortium
Interrogatories.pdf
Notice of Service - http://www.abanet.org/tips/atf/cmo/Notice of
Service.pdf
Personal Injury Interrogatory -
http://www.abanet.org/tips/atf/cmo/Personal Injury
Interrogatory.pdf
Request for Production of Documents -
http://www.abanet.org/tips/atf/cmo/Request for Production of
Documents.pdf
Standard Interrogatories to All Defendants -
http://www.abanet.org/tips/atf/cmo/Standard Interrogatories to All
Defendants.pdf
Standard Interrogatories to Friction Defendants -
http://www.abanet.org/tips/atf/cmo/Standard Interrogatories to
Friction Defendants.pdf
Wrongful Death Interrogatories -
http://www.abanet.org/tips/atf/cmo/Wrongful Death
Interrogatories.pdf
Exhibit A to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit A
to CMO.pdf
Exhibit B to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit B
to CMO.pdf
Exhibit C to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit C
to CMO.pdf
Exhibit D to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit D
to CMO.pdf
Exhibit E to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit E
to CMO.pdf
and can be reviewed on the ABA website at:
http://www.abanet.org/tips/atf/cmo/cmo_home.htm
After a review of the case management orders and standard
discovery requests adopted by various jurisdictions and a
determination that there are jurisdictions without case management
orders to control asbestos litigation or effective case management
orders, it is clear that there remains an unmet need. The model
CMO is intended to address this need. Adoption of the model
CMO by the ABA will go far in accomplishing the goal of
providing the courts with the best practices of various jurisdictions
used to effectively manage asbestos litigation.
Respectfully submitted
James K. Carroll, Chair
Tort Trial and Insurance Practice Section
August 2005
GENERAL INFORMATION FORM
Submitting Entity: Tort Trial & Insurance Practice Section
Submitted By: James K. Carroll, Chair
1. Summary of Recommendation(s).
The Association recommends that federal, state, and territorial
courts without any existing Case Management Order governing
asbestos litigation, or with an existing Case Management Order
that has proven unworkable, adopt the Model Case
Management Order dated August 2005, designed by
representatives of the plaintiff and defense bar and company
defendants and their insurers to facilitate the management of
asbestos litigation with the best practices drawn from various
jurisdictions across the country.
2. Approval by Submitting Entity.
Approved by the Council of the Tort Trial & Insurance Practice
Section on December 17, 2004.
3. Has this or a similar recommendation been submitted to the
House or Board previously?
No
4. What existing Association policies are relevant to this
recommendation and how would they be affected by its
adoption?
The medical criteria for asbestos claims adopted by the
Association at the 2003 MYM as predicates for filing asbestos
related claims would be complimented by the case
management orders in those jurisdictions adopting both.
5. What urgency exists which requires action at this meeting of
the House?
The 600,000 asbestos claim filings have significantly
burdened, delayed and disrupted the operations of State,
Federal and Territorial courts throughout the country. The
resolution proposes a means for courts to gain control of their
dockets and address the claims of the disabled claimants or
their families on a priority basis, allowing the claims of the
non-disabled or non-malignant cases to wait until disability or
malignancy emerges. The case management orders ("CMO")
set out detailed schedules and procedures for handling such
matters as docketing, discovery, motions, case priorities, trial
settings, settlement negotiations, and trial or disposition of
asbestos cases. These lead to the efficient and fair handling of
asbestos litigation and make additional judicial resources
available for other cases.
The stakeholders are in accord that these changes are needed as
soon as possible for the benefit of both the asbestos related
claims of the disabled or those with malignancies and all other
non-asbestos related claims.
6. Status of Legislation. (If applicable.)
None
7. Cost to the Association. (Both direct and indirect costs.)
None, except the indirect cost of any lobbying efforts by the
Association
8. Disclosure of Interest. (If applicable.)
The TIPS Asbestos Task Force is composed of members
representing the various stakeholders in the discussion and
negotiation of the federal solution to the asbestos crisis,
including members who have participated directly and
indirectly in the drafting of bills and testified before Congress.
They represent diverse interests in the claims settlement crisis
including general counsel and staff of insurance trade
associations, attorneys for claimants, representative of the
AFL-CIO, attorneys for defendants, and staff counsel. The
members of the TIPS Council and leadership also represent
diverse interests in the asbestos claims crisis as general counsel
and staff attorneys of insurance companies and trade
associations, attorneys for claimants, attorneys for defendants,
and staff counsel.
9. Referrals.
Simultaneously with this submission, referral is being made to:
All Sections and Divisions
10. Contact Person. (Prior to the meeting.)
Hervey P. Levin
6918 Blue Mesa Drive, Suite 115
Dallas, Texas 75252
(972) 733-3242
(972) 733-3269 (Fax)
[email protected]
11. Contact Person. (Who will present the report to the House.)
Hervey P. Levin
6918 Blue Mesa Drive, Suite 115
Dallas, Texas 75252
(972) 733-3242
(972) 733-3269 (Fax)
[email protected]
12. Links to Case Management Order exhibits;
Exhibit A to CMO -
http://www.abanet.org/tips/atf/cmo/Exhibit A to CMO.pdf
Exhibit B to CMO -
http://www.abanet.org/tips/atf/cmo/Exhibit B to CMO.pdf
Exhibit C to CMO -
http://www.abanet.org/tips/atf/cmo/Exhibit C to CMO.pdf
Exhibit D to CMO -
http://www.abanet.org/tips/atf/cmo/Exhibit D to CMO.pdf
Exhibit E to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit
E to CMO.pdf
13. Exhibit C Discovery Request;
http://www.abanet.org/tips/atf/cmo/cmo_home.htm
RESOLUTION ADOPTED BY THE
HOUSE OF DELEGATES
OF THE
AMERICAN BAR ASSOCIATION
FEBRUARY 2005
RESOLVED, That the American Bar Association recommends
that the states and territories adopt the Model Statute of
Limitations for Asbestos dated February 2005, governing the
accrual of actions for injury, illness or wrongful death based upon
exposure to asbestos.
FURTHER RESOLVED, That the Model Statute of
Limitations for Asbestos is a resource designed by representatives
of the plaintiff and defense bar and company defendants to
facilitate the management of asbestos litigation with the best
practices drawn from various jurisdictions across the country.
EXHIBIT E
TO PROTOTYPE ASBESTOR PRE-TRIAL
CASE MANAGEMENT ORDER
(See order dated ______________)
AMERICAN BAR ASSOCIATION
TORT TRIAL & INSURANCE PRACTICE SECTION
MODEL STATUTE OF LIMITATIONS
FOR ASBESTOS
(FEBRUARY 2005)
Exposure to Asbestos; Actions for injury, illness or wrongful death
(a) In any civil action for injury or illness based upon exposure to
asbestos, the time for the commencement of the action shall be the
later of the following:
(1) Within two years after the date the plaintiff first suffered
disability.
(2) Within two years after the date the plaintiff either knew, or
through the exercise of reasonable diligence should have known,
that such disability was caused or contributed to by such exposure.
(b) "Disability" as used in subdivision (a) means the loss of time
from work, as a result of such exposure, which precludes the
performance of the employee's regular occupation, or if the
plaintiff is not working, meeting the medical standards in the
"ABA Standards for Non-Malignant Asbestos-Related Disease
Claims" (dated February 2003).
(c) In an action for the wrongful death of any plaintiff's decedent,
based upon exposure to asbestos, the time for commencement of
an action shall be the later of the following:
(1) Within two years from the date of the death of the plaintiff's
decedent.
(2) Within two years from the date the plaintiff first knew, or
through the exercise of reasonable diligence should have known,
that the death was caused or contributed to by such exposure.
MR. WHITFIELD. Thank you, Professor Sherman.
And at this time, Dr. Welch, we will recognize you for five
minutes for your opening statement.
DR. WELCH. Thank you, Mr. Chairman and members of the
committee, for inviting me to be here today.
I have heard a lot. People have mentioned a lot of the things I
am going to touch on and I will try to be brief. I am a physician, as
you know, and I have been in occupational medicine practice for
over 25 years, a lot of seeing people with asbestos related disease
and some with silica. I have run a nationwide medical screening
program for sheet metal workers for 20 years. We have examined
over 18,000 people and I want to describe to you the basis for such
a screening program and some of the parameters that really should
exist for such screening programs.
Before I do, I want to reinforce what other people have said
here though. There is excess exposure to silica going on. In the
construction industry, where I have the most experience, more than
50 percent of the standards in 1999 exceeded the OSHA standard
for example. And we do not really know how many cases of
silicosis there are, but Dr. Rosenman at Michigan State did a really
elegant analysis and estimated as many as 7,000 new cases of
silicosis each year in the United States. So we do need to focus
attention on ongoing exposures and existing cases finding those
people through appropriate screening and not, in a way, throw the
baby out with the bath water. It may be that these 10,000 cases do
not have silicosis, but there are probably 10,000 other people who
do someplace else. So we need to not mix them up. So in terms of
medical screening, the principal medical screening is to find
previously unrecognized disease so that you can do something
about it. Mammography is a perfect example to find breast cancer
early, save lives, colon cancer screening. So there is a lot of
screening that goes on in the medical arena for which there are
standards and guidelines, criteria that the test has to be of a benefit
that finding the disease early is a benefit. This is written in a lot of
medical textbooks so I will not repeat it all for you, although some
of it is outlined in my testimony.
And then occupational screening programs use those same
principles, but also look at the whole population of people. So you
can do a screening program if by identifying cases you are going to
be able to identify occupations that have excess exposures, and
identify workplaces where you need remediation. And then so let
us apply those to silicosis in particular; why screen for silicosis? I
want to point out that people who have silicosis are at risk for
several other diseases. They are very high risk for getting
tuberculosis and someone with silicosis and unrecognized
tuberculosis could be a community source for tuberculosis, so
finding those cases is very important. They need medical
treatment and you can help by identifying the cases. You can help
the treating doctors separate silicosis from congestive heart failure,
or what might be the other diseases that the person has, plus
identifying people that really need attention for smoking cessation.
So there are a lot of benefits that occur to the individual if you
screen and diagnose that. So let me talk a little about these guiding
principles. I wanted to point out that there is a national
organization called the Association of Occupational Environmental
Clinics that includes at least 50 academic occupational health
clinics around the country. And in 2000, they set forth a set of
criteria to address the question of asbestos screening and as
Professor Sherman pointed out, the issues that are raised here and
by Judge Jack's opinion have been issues that people have been
aware of through asbestos screening as well. These questions are
not new questions to me and I do not think they are new to
Professor Sherman either.
So what are the principles? That screening on the basis of
chest X-ray and work history alone identifies possible cases. It is a
screening but does not provide enough information to make a firm
diagnosis. And that is the principle in general to do a
mammogram, you find something, then you are going to end up
doing a biopsy. The mammogram does not make the diagnosis, so
a screening is not a diagnostic test and there has been some mixing
up of that in this discussion I think, so screening programs have to
be followed with more detailed evaluation and then referral for
appropriate medical care.
An appropriate screening program for lung disease is X-ray,
exposure history, symptom review, spirometry, and physical
examination. The screening programs have to include actions like
smoking cessation programs, evaluation for cancers, and things in
this case like tuberculosis. And very importantly, there has to be
timely physician disclosure of the results to the patient, appropriate
medical follow up, and patient education. There is no point in
diagnosing or finding early signs of silicosis if you do not do
anything about it. And that is, I mean, that is so basic, I do not
really need to say it and I think you probably all agree with that.
But so emission of those factors that look at what you do after you
find that early diagnosis, that is why we do screening and so that is
really important. And screening programs that do not include the
notification, timely notification, follow up and investigation of
how the exposures are occurring really do not meet the standards
of care and ethical practice and occupational health.
There is a lot more in my testimony and I would be happy to
answer any other questions that you have.
[The prepared statement of Laura Welch, M.D., follows:]
PREPARED STATEMENT OF LAURA WELCH, M.D., MEDICAL
DIRECTOR, CENTER TO PROTECT WORKERS RIGHTS
Summary of testimony by Laura S. Welch, MD, FACP, FACOEM
on March 8, 2006
Medical screening is the search for previously unrecognized
disease, when finding the disease can lead to a benefit. Screening
for silicosis or asbestosis has clear benefits, including (1)
identification of occupations/industries where excess exposure
occurs, so that exposure reduction can occur; (2) implementation
of targeted smoking cessation programs; and (3) identification of
individuals at heightened risk from other occupational exposures.
In 2000, the Association of Occupational and Environmental
Clinics (AOEC) developed criteria for medical screening programs
for asbestos; these principles apply equally as well to screening for
silicosis. Omission of these important preventive aspects in the
clinical assessment of asbestos-related lung disease falls short of
the standard of care and ethical practice in occupational health.
(1) Screening on the basis of chest X-ray and work history
alone identifies possible cases but does not by itself provide
sufficient information to make a firm diagnosis, to assess
impairment or to guide patient management.
(2) An appropriate screening program for asbestos-related lung
disease includes properly chosen and interpreted chest films,
reviewed within one week of screening; a complete exposure
history; symptom review; standardized spirometry; and physical
examination.
(3) Programs should also include smoking cessation
interventions, evaluation for other malignancies and evaluation for
immunization against pneumococcal pneumonia.
(4)Timely physician disclosure of results to the patient,
appropriate medical follow-up and patient education are essential.
Qualifications: I am a physician with board certification in both
Occupational and Environmental Medicine and Internal Medicine.
I received my medical degree from the State University of New
York at Stony Brook, and have held faculty positions at the
Schools of Medicine at Albert Einstein, Yale and George
Washington Universities. Details of my education and training
are set for in my curriculum vitae
I have extensive experience in diagnosis and treatment of
asbestos-related diseases and other occupational lung diseases. I
have been in occupational medicine practice for over 20 years, and
a substantial part of my practice has always been devoted to
examination of workers exposed to respiratory hazards.
In addition, I have many years of experience in medical
surveillance programs for asbestos. Since 1987 I have been the
medical advisor to the Sheet Metal Occupational Health Institute
Trust, a joint labor-management organization within the sheet
metal industry established to provide medical examinations for
sheet metal workers exposed to asbestos and other respiratory
hazards. To date, SMOHIT has provided medical examinations to
over 30,000 sheet metal workers, and is now the largest
epidemiological database of asbestos-exposed workers in the
country. I also developed similar medical screening programs for
the Laborers National Health and Safety Fund and other
construction trades, in conjunction with the Occupational Health
Foundation. I currently serve as medical director for a Department
of Energy-funded medical screening program to provide medical
examinations for former construction workers at a number of
former atomic weapons production facilities. In each of these
programs I have designed programs to detect asbestos-related
disease, and designed algorithms for the examining physicians to
use in interpretation of the results. I have been active in efforts to
improve validity and reliability of X-ray reading to detect asbestos
related disease in the United States; this work included publication
of a paper on variability between readers' classification of X-rays
using the International Labour Organization Guide to
Classification of Pneumoconiosis, based on an analysis of results
from these screening programs.
I currently am medical director at The Center to Protect
Workers Rights, a research institute devoted to improving health
and safety in the construction industry. Because of my expertise in
medical programs for asbestos-exposed workers, I participated in a
working group with representatives from labor, industry, and
insurance companies to develop medical criteria for a bill to
establish a national trust fund for compensation of asbestos related
disease in the United States. I have also testified at hearings held
by the Senate Judiciary Committee, at the committee's request, on
various aspects of asbestos-related disease.
Attached is copy of my current curriculum vitae, which sets
forth my education, training, professional affiliations, research
activities and publications. I am testifying here today as an
individual, and not on behalf of any group or organization.
Purpose of medical screening
Medical screening is the search for previously unrecognized
disease, when finding the disease can lead to a benefit.
Mammography is a well-accepted screening test, for example,
since it has been shown to improve life expectancy for breast
cancer in those for whom a cancer is found early with screening;
the same is true for colon cancer screening, skin cancer screening,
and others. Occupational screening programs are designed to
detect work-related disease at an early stage, when treatment or
removal from exposure can improve the outcome of that disease.
Screening is only one of the important steps in prevention of
occupational disease. The first step, the primary prevention, is
reduction or elimination of hazardous exposures. The second step,
when hazardous exposures have not been eliminated, is screening;
this is called secondary prevention. Tertiary prevention is
essentially medical care and rehabilitation of disease, when it
cannot be reversed after diagnosis.
Some key principles should underlie all medical screening
programs:
The tests used should be selective, and chosen to identify a
specific disease.
There must be some effective action that can be taken if the
screening test is positive, such as removal from exposure or
medical treatment. In the occupational setting, screening
may benefit a group of workers by detection of health
effects of hazardous exposures, the benefit need not accrue
only the worker being screened in this context.
Adequate follow-up is critical, and further diagnostic tests
must be available, accessible, and acceptable to the
individual screened. In the occupational setting, follow-up
also entails action to reduce or eliminate the hazard
Individuals who have been screened should receive test
reports and interpretation of those results.
The screening tests used should have good reliability and
validity. Reliability is a measure of the consistency of the
test in repeated use. Validity is the ability of the test to
identify correctly which individuals have the disease and
which do not.
The benefits of the screening program should outweigh the
costs
Asbestos and silica related disease
Silicosis is still an important occupational lung disease. Rosenman
recently estimated that there are between 3600 and 7300 newly
recognized cases a year of silicosis in the United States . At least
1.7 million U.S. workers are potentially exposed to respirable
crystalline silica . Hazardous exposures to silica, at levels likely
to result in disease, continue to occur in a range of industries and
occupations in the United States.
It is also important to remember that thousands of workers
have had, and will still develop, asbestos-related disease. In this
country, from 1940 to 1979, at least 27.5 million workers were
occupationally exposed to asbestos in shipyards, manufacturing
operations, construction work and a wide range of other industries
and occupations; 18.8 million of these had high levels of
exposure . In 1982 William Nicholson at Mt. Sinai projected that
the occupational exposures that occurred between 1940 and 1979
would result in 8,200 - 9,700 asbestos related cancer deaths
annually, peaking in 2000, and then declining but remaining
substantial for another 3 decades. Overall, the Nicholson study
projected that nearly 500,000 workers would die from asbestos
related cancers between 1967 and 2030; deaths from asbestosis are
above and beyond this number. Because of the long lag between
exposure to asbestos and the development of an asbestos related
cancer or another asbestos disease, the asbestos disease epidemic is
only now reaching a peak, and will be with us for decades to come.
Role of screening in asbestos-related and silica-related disease
Screening for asbestosis or silicosis has several clear public
health and medical benefits:
Identification of occupations and industries where excess
exposure still occurs, so that exposure reduction can occur
Implementation of smoking cessation programs. Evidence
shows that smoking cessation programs that are integrated
with assessment of toxic exposures at work are more
effective than smoking cessation programs alone
Identification of individuals at heightened risk from other
occupational exposures. For example, workers with
significant lung impairment from asbestosis or silicosis
should not be exposed to other occupational agents that will
add injury to that lung disease.
Elements of a good occupational lung disease screening program
In 2000, the Association of Occupational and Environmental
Clinics (AOEC) developed a set of criteria for medical screening
programs for asbestos; the policy in reproduced here in its entirety.
These principles apply as well to screening for silicosis. AOEC is
a leading organization in the field of occupational medicine.
The Association of Occupational and Environmental Clinics
Policy Statement on Asbestos Screening
The Association of Occupational and Environmental Clinics is
concerned that medically inadequate screening tests are being
conducted to identify cases of asbestos-related disease for legal
action. These tests do not conform to the necessary standards for
screening programs conducted for patient care and protection.
Screening is only conducted as a preliminary step in determining
the presence of asbestos-related disease. AOEC therefore
supports the following statement:
Screening on the basis of chest X-ray and work history alone
identifies possible cases but does not by itself provide sufficient
information to make a firm diagnosis, to assess impairment or to
guide patient management.
An appropriate screening program for asbestos-related lung
disease includes properly chosen and interpreted chest films,
reviewed within one week of screening; a complete exposure
history; symptom review; standardized spirometry; and physical
examination.
Programs should also include smoking cessation interventions,
evaluation for other malignancies and evaluation for immunization
against pneumococcal pneumonia.
Timely physician disclosure of results to the patient,
appropriate medical follow-up and patient education are essential.
Omission of these important preventive aspects in the clinical
assessment of asbestos-related lung disease falls short of the
standard of care and ethical practice in occupational health.
Who provides asbestos screening for exposed workers?
Given the clear benefits of screening exposed workers for
asbestos and silica-related disease, such programs should be
available. Regular monitoring of workers with significant
exposure to asbestos was recommended by the American Thoracic
Society (ATS) in its recent statement on diagnosis and initial
management of diseases related to asbestos. However, there has
been no public health infrastructure, and no employer-mandated
programs, to provide such screening. The Occupational Safety and
Health Administration does require medical monitoring of workers
who are exposed to asbestos, but this rule does not require
monitoring after the worker leaves the place of employment where
exposure occurred. Since asbestosis takes at least 20 years after
first exposure to develop, screening programs should be also be
directed at former employees. (The U.S. Navy does include
formerly exposed workers in its medical surveillance program for
asbestos, based on a recommendation from the examining doctor.)
Some construction unions, in conjunction with employers, have
developed programs for their members; these programs reach a
very small proportion of the workers at risk. The largest such
program in run by the Sheet Metal Occupational Health Institute
Trust, which has provided medical examinations to over 20,000
sheet metal workers since 1998. This program follows the
guidelines for screening programs outlined here, and can serve as a
model for future programs . In addition to finding cases of
asbestos-related disease, this program has been effective in
reducing exposures to sheet metal workers, and in reducing
smoking in the group screened.
In recognition of the lack of medical screening services for
former workers, the U.S. Department of Energy initiated a medical
screening program for former workers from the atomic weapons
complex . Universities and other public health organizations
provide medical examinations to detect health effects of remote
exposure, again following the guidelines for screening programs
described above.
As noted above, Nicholson estimated there were 18.8 million
U.S. workers with high exposures to asbestos before 1982; many
of these workers are still alive and could benefit from screening.
These workers have seen co-workers and even family members die
of asbestos-related diseases, and so they have taken opportunities
afforded them to be screened for disease; anyone would. The
challenge for those of us in public health is to assure that these
programs meet the standards set by AOEC, ATS and other
organizations.
MR. WHITFIELD. Thank you very much for your testimony.
We appreciate, as I said earlier, your being with us today.
And Dr. Welch, you are a physician, you are an expert on mass
screenings, and I am assuming you are familiar with the decision
rendered by Judge Jack in Texas in the case we are discussing
today. What is it that bothers you the most about this screening
process used in that particular case?
DR. WELCH. You know, when I give an opinion certainly
under oath on anything, I actually like to have real information,
and mostly what I know about that case is, in my mind, almost
hearsay. It is somebody else's opinion on something else so I--
MR. WHITFIELD. Have you read her decision?
DR. WELCH. I have read her decision. And I actually think
that she makes a very good case, her decision.
MR. WHITFIELD. But based on the decision that you read,
assuming that the information in there is correct as she said, what
is it about the screening process that would cause you the most
concern?
DR. WELCH. It is my understanding that that timely
notification to the individuals screened and assuring that there is
the opportunity for ongoing medical care that just was not part of
these screenings. Now if someone demonstrated to me that it was,
I would certainly feel more comfortable, but the discussion and
what came through in her opinion was that the information went
back to the attorney. And so if there was silicosis even if there was
a cancer, the screening program or the B reader or whomever
would notify the attorney. We have not heard any testimony--I
was not aware of any of what the attorney did with that, how long
it took for the worker to find out, and what discussion went on with
the worker about what to do.
MR. WHITFIELD. So the purpose of screening is to give you
advance warning so that you can take the steps to receive the
medical procedures that you need to address that and in this case
they were determining that this is a person who may have silicosis
but nothing was done about it?
DR. WELCH. That is my opinion. We may hear different
testimony here today or from the--
MR. WHITFIELD. Now if that is the case, that would be a real
violation of medical ethics, would you not say?
DR. WELCH. Right, it is a screening program, but I would not
put the word medical screening program in there.
MR. WHITFIELD. Right.
DR. WELCH. Because it is not providing any medical
evaluation and treatment after the screening.
MR. WHITFIELD. Mr. Sherman, why couldn't someone look at
the Judge Jack opinion and call it an example as some people have
today that the system is working, bad claims being tossed out.
Why can't we assume that this is only one example of bad
behavior instead of an indicator of a systemic problem with our
judicial system on class action lawsuits?
MR. SHERMAN. Well, what Judge Jack's opinion pointed out is
the lack of standards over screening and diagnosis in this area, and
without standards, we could anticipate that these kinds of situations
might arise in other places and at other times. It points up quickly
it seems to me that systemic changes need to be made in
establishing ground rules and standards for screening and
diagnosis.
MR. WHITFIELD. Now, you know, prior to this silicosis
litigation there was a lot of asbestos litigation and some of these
same doctors were involved in that. So even during the asbestos
litigation there was a total lack of any standards in making the
proper determinations. Is that correct?
MR. SHERMAN. I think in asbestos litigation there were
certainly many incidents in which screening and diagnosis was
made without adequate standards. And what happened in the
litigation system of course is the cases were bundled by lawyers
and law firms, and then were taken to settlement negotiations with
defendants. And defendants also shared a little bit of the blame
because defendants were complicit in settling these bundled mass
cases often at lower rates because they felt that they could strike a
favorable settlement. The lower in that situation may be the
individual whose case is settled at a relatively low settlement fee
and then who develops later on a serious condition, and because of
res judicata, would no longer be able to do this. So the system has
taken on a life of its own. It involves lawyers on both sides.
MR. WHITFIELD. Now, you talked about some of the proposals
of the American Bar Association. When did the American Bar
Association become concerned enough about this issue to create a
task force to try to develop some proposals?
MR. SHERMAN. The task force was created in 2003, but the
American Bar Association in earlier times has focused on other
aspects, particularly of the asbestos problem. But this particular
one was 2003.
MR. WHITFIELD. And what precipitated that?
MR. SHERMAN. The task force was especially supposed to look
at the pending legislation, the medical criteria versus the trust fund
legislation.
MR. WHITFIELD. Okay.
MR. SHERMAN. But in the process of looking at that
legislation, very interestingly, the task force became very
concerned about a number of these conditions in the present
litigation system.
MR. WHITFIELD. Well, could you compare the
recommendations made by the American Bar Association in their
February 2005 recommendation with the observations of Judge
Jack and her opinion as far as what should be done? Were they
similar? I mean is she recommending the same thing they were
recommending or do they have differences of opinion or--
MR. SHERMAN. No, I think they track very closely. She was
concerned about the fact that screening was being done without
standards, very often by individuals who had minimal--
MR. WHITFIELD. That is okay.
MR. SHERMAN. --if any, medical training. She was also
worried about the fact that very possibly in these vans the X-ray
equipment was not up to standards. But her key objections had to
deal with the diagnosis part, that diagnoses were being made on the
basis of a single X-ray, sometimes by a doctor who had not seen
the patient, who did not take the medical history, did not determine
whether additional tests should be made and did not make
determinations as to whether there were alternative explanations
for what was read on the X-ray.
MR. WHITFIELD. Now Judge Jack in this case allowed
discovery of the diagnosing doctors, and I am sure there are many
cases like this where the judge does not allow that at that particular
time. Now had she not have permitted this discovery, how would
this litigation have proceeded?
MR. SHERMAN. Well, in this case, it is an unusual case
because, in fact, she ultimately found that most of these cases were
improperly removed from state court to Federal court and she
remanded them back to state court. But in making that remand and
jurisdictional determination, she properly, I believe, felt that there
had to be a factual inquiry, and it was that factual inquiry that led
her to make that determination. One could imagine many judges,
Federal judges, for example, looking at the jurisdictional issue and
not being confronted with 10,000 cases as she was and a pattern
that she identified of abuse and therefore simply remanding the
case without going into the factual determination.
MR. WHITFIELD. Mr. Stupak, you are recognized for your 10
minutes.
MR. STUPAK. Thanks.
Professor Sherman, this was an MDL, multi-district litigation,
right? Did it ever evolve to a class action suit?
MR. SHERMAN. Yes, it was.
MR. STUPAK. There was a class action suit?
MR. SHERMAN. No, it was not a class action suit.
MR. STUPAK. Right.
MR. SHERMAN. These were individual cases transferred,
consolidated for transfer under MDL.
MR. STUPAK. So that is, I guess, sort of the first thing I wanted
to clear up, this was not a class action suit.
Secondly, the Chairman asked you about discovery and in an
MDL, both sides get to discuss, or I should say discover, what the
experts of the other side knows so they certainly would have had
time to in the MDL, multi-district litigation, do the depositions of
each other's experts. Correct?
MR. SHERMAN. Yes, or had this case gone forward and not
been remanded on the jurisdictional issue, there would have been
opportunity for full discovery.
MR. STUPAK. Sure. And when we deal with MDLs, you look
at MDLs because of the complexity of the issues involved, the
sheer volume of the evidence and things like that when you do an
MDL. Correct?
MR. SHERMAN. Yes.
MR. STUPAK. Okay. One of the points you made in your
testimony and exhibit--in fact, both of you made this, both Dr.
Welch and you. Professor, your testimony, in exhibits you have
submitted, is that although many safety standards have been put in
place to safeguard against worker's exposure to asbestos and silica,
many new cases of asbestos and silicosis are still rising, and those
who have worked in manufacturing and construction for some time
and we are just now seeing the peak of the epidemic. Could you
expand a little bit on that for me?
MR. SHERMAN. Well, in the case of silicosis, it was first
addressed in the '70s by OSHA regulations. There have since been
various regulations and standards adopted, including industry
standards and so forth, and there is no doubt that it has brought
down the incidents of silicosis. But as Dr. Welch has indicated,
there are many occupations in which the individuals are exposed to
silica that may result in those injuries. And I am certainly not in a
position to judge the adequacy of the present OSHA regulations or
other regulations. That is another matter.
MR. STUPAK. And on the asbestos cases now that are pending
yet, I just want to make sure the record is clear. There are some
meritorious claims out there. These are not all bogus cases or
cases where you have inadequate screening and plaintiffs' lawyers
just filing lawsuits. There are legitimate claims on asbestos. Is
there not?
MR. SHERMAN. Oh, absolutely. Asbestosis, as we know,
asbestosis is a condition in which a single asbestos fiber in the
lungs will stay there. It can result in pleural thickening. The plural
thickening may never result in serious disability, but the exposure
period is 40 years, and therefore, the period from exposure to the
disability may be very long and plenty of those are very serious.
MR. STUPAK. And the exposure in silicosis, is it the same,
about 40 years?
MR. SHERMAN. I am not sure about the length of time.
MR. STUPAK. Dr. Welch, could you answer?
DR. WELCH. It can be that long. I mean, the acute silicosis,
which is the easiest thing to identify, and that is sometimes what
the deaths are due to, occurs very quickly but the exposures are
very high. But what we are dealing here with more would be a
chronic silicosis, and take 20 or 30 years, probably take 10 years of
exposure, and then 20 or 30 years from first exposure.
In terms of the asbestosis cases, could I comment on that?
MR. STUPAK. Sure.
DR. WELCH. I mean, you are aware of SA 52 in the Senate.
MR. STUPAK. Right, because I was going to ask why are we
trying to get Congress through a bailout of the asbestos industry, if
you will, or this trust fund if there are no claims?
DR. WELCH. Right, and there were $100 billion worth--
MR. STUPAK. Hundreds of them, right.
DR. WELCH. --of claims. Even when you have eliminated
everybody with asbestosis that does not have severe impairment--
and mostly the cancers are what is that cost and many people think
it is not enough money. So there are certainly a lot of asbestos
claims, not as many silica claims, the exposures were not as
widespread, but it is still a medical problem we have to deal with.
And OSHA is currently looking at reducing its permissible
exposure limit. They are reevaluating that.
MR. STUPAK. I think you said we should not call this a medical
screening that occurred in this case in the silica case, right?
DR. WELCH. It did not seem like there was a lot of medicine.
It did not seem like, from my opinion it is legal case finding and so
the diagnosis is a legal report rather than a medical diagnosis, was
what it looks like to me.
MR. STUPAK. With screening and screening programs can be
beneficial, can they not?
DR. WELCH. Absolutely.
MR. STUPAK. And could you explain some of the ways in
which some medical benefit could be derived from screenings if
properly conducted and reviewed?
DR. WELCH. Well, I could use the example of our sheet metal
workers screening.
MR. STUPAK. Sure.
DR. WELCH. It started in 1986 and it is run by labor
management trust. And people associated with it will say it has
really changed the way sheet metal workers work because they are
in buildings where there is asbestos in place, and by raising
awareness through the program, identifying people who have
disease and training those people about their hazards, it has
changed the way they work. We also have really high rate of
smoking cessation for people who go through the problem and are
identified as having scarring. We get a 50 percent quit rate among
those people in addition to the sort of more subtle benefits about
diagnosis of treatment, but those are two pretty obvious ones.
MR. STUPAK. So cessation of smoking, maybe change of work
environment, maybe change or alter the medical treatment you are
currently receiving.
DR. WELCH. Right.
MR. STUPAK. Whether this would be for silicosis or asbestos,
right?
DR. WELCH. Right. In addition to which identifying groups of
people who are at risk and may need medical screening that we
have not thought about before, because looking at groups in a
screening setting allows you to better understand the pattern of
disease and patterns of exposure.
MR. STUPAK. Okay. Doctor, you also set forth in your
testimony goals of extensive screenings in occupational medicine.
Are there any significant risks or dangers to a person undergoing
untargeted mass screenings other than inconvenience?
DR. WELCH. Well, it is an issue of screening in general. If you
make a diagnosis in somebody and they don't have it, there are
some downsides to that. The person is worried, they may get
medical treatment that they do not need, they may change their job.
If you give them an occupational diagnosis, they may retire early.
I mean, there are a lot of implications of inappropriate diagnoses.
It applies with, you know, even mammography, where screening
has to be sensitive enough to find cases. So not all the positives
are going to be really positive, that is why it is appropriate to have
the right follow up and good testing that follows it. If you leave
those potential cases out there without doing that second level of
follow up, you can create a lot of worry and concern.
MR. STUPAK. Let me ask the question this way. It is not
necessarily the screening itself may not be a health risk to the
individual, but what happens with that screening when it is being
read, if you will, that is when the harms that you spoke of occurs.
DR. WELCH. That is correct.
MR. STUPAK. Okay. Would an inexperienced screener
performing basic spirometric pulmonary function tests pose a
significant risk for those being screened?
DR. WELCH. The risk would be getting the answer wrong, you
know, if--
MR. STUPAK. Not the test, but again, it is reading these
screens.
DR. WELCH. Right.
MR. STUPAK. Or the results.
DR. WELCH. Doing the test wrong is not going to hurt the
person during the test, but if they are given a diagnosis that they do
not have, or told they are normal when they are impaired, that
could have an impact on them.
MR. STUPAK. One of the things I mentioned in my opening
statement and I would ask you to elaborate on it. One of the things
I found sort of appalling was it appeared that after these screenings
the individuals, if they had something wrong with them that could
be of a more serious nature, they usually received the news, the
way I understood it, from the legal people, lawyers or paralegals,
and not from medical personnel. And that was my reading of
testimony in the case in Judge Jack's opinion. Could you explain
that a little bit more? What would be the downside of this from a
medical point of view?
DR. WELCH. Well, one sort of apparent downside is that is
going to take a long time by the time there is a screening that
occurs and the X-ray goes to somebody else and gets read, they do
a report, they get it back to the lawyer, you could be talking about
weeks and months. And if there was something that needed
immediate treatment, there would definitely be a downside in that.
Also my impression, and again, I have not done a lot of
investigation, is what the worker would get would be just a, you
know, your X-rays showed this--but no true, you are not meeting
with a doctor that is going to tell them what it means for them and
what they need to do. And so, you know, finding out that you have
silicosis without any advice about what to do about that is not
really any use to anybody in my opinion.
MR. STUPAK. Okay. Professor Sherman, if you could--and it
may not be fair to ask this question, but let me ask it this way. I
am sure that people are--was this case rather an exception to the
normal tort claims being filed in this country under an MDL or was
this sort of standard? This deceptive fraud that we sort of see that
went on here.
MR. SHERMAN. I think the level of the fraudulent practices
here was pretty extreme. I am not aware of anything as poignant
as that in one area of asbestos. I think there have been abuses in
asbestos screening, I think, and diagnosis. I think that cases have
been, over the years, asbestos cases have been settled, bundled
cases in which large numbers of people are not ill, and probably
will never become ill, and therefore are getting a windfall. But I
do not think we have quite the kind of totality of lawyers, doctors,
and screening companies in fairly small numbers working together
as we have in this case.
MR. STUPAK. And in those other cases, I think you said--and
even in this case--that both the plaintiffs' attorneys and the defense
attorneys both bear some responsibility here for this outcome.
MR. SHERMAN. Yes, they do. That is part of the way that the
system is worked.
MR. STUPAK. Thank you both for your time.
MR. BURGESS. [Presiding] We have a series of four votes on
and we are going to take a brief recess to allow that to happen. In
fact, we have got less than two minutes to make it over to the
Capitol so the committee is going to stand in recess until after
votes.
[Recess.]
MR. WHITFIELD. [Presiding] The subcommittee will come to
order. I know that some of the Members had some additional
questions for Professor Sherman and Dr. Welch and then we will
move onto the second panel. And I certainly appreciate your
patience.
At this time, I will recognize Dr. Burgess for his 10 minutes of
questioning.
MR. BURGESS. Mr. Chairman.
Professor Sherman, let me just ask you a question, if I could.
We heard comments on the other side during opening statements
how the Texas State Board of Medical Examiners had not properly
chastised, punished, investigated the doctors in question in Corpus
Christi, but it is my understanding, at least the individuals who are
on the witness list today, none of those individuals are licensed in
the State of Texas. So it would be virtually impossible then for the
Texas State Board of Medical Examiners to issue any type of
sanction against those individuals since they are not licensees of
the State. Is that correct?
MR. SHERMAN. That seems correct to me, yes.
MR. BURGESS. And even the comments to the extent that the
American Medical Association should be involved, that is actually
a professional advocacy organization and really not one that is
charged with oversight and punishment of doctors. I mean, there
are a lot of us who perhaps in the field of expert witnesses feel that
maybe that would be a good idea if the AMA could do that, but to
the best of my understanding that is not one of their core functions.
Is that correct?
MR. SHERMAN. I think that is correct.
MR. BURGESS. Dr. Welch, do you agree with that?
DR. WELCH. Well, they do set standards for professional
practice, so I think that there are some AMA guidelines that can be
used to say is this appropriate practice and some of them are quite
useful. So they do not necessarily enforce the practice, but it does
provide a measure of the standard.
MR. BURGESS. The--and I do not remember which one of you,
one of you did testify to the fact that one of the problems was lack
of standards between the screening and the diagnostics of this
particular issue. And I think it is important to point out that
individuals who have an abnormal chest X-ray with a history of
occupational exposure of so-called industrial or occupational
pneumoconiosis may be suspected, but the actual definitive
diagnosis of asbestosis or silicosis really is going to require further
investigation. Is that not correct?
DR. WELCH. The American Thoracic Society actually recently
published a guideline to the diagnosis of asbestosis, and the same
would apply for silicosis. You need evidence of structural change,
you need appropriate history, and you need to rule out more likely
causes of the findings. So you certainly need more than an X-ray
and pulmonary function tests, because you need all the detailed
medical history, medical testing, if necessary.
MR. BURGESS. How common would it be for someone to have
both diagnoses simultaneously?
DR. WELCH. Actually, we had hearings about that particular
question with SA 52, and most of the people that testified,
including myself, said it is uncommon for people to have both
asbestosis and silicosis. If you do have heavy exposures to both
things you usually end up with something called a mixed dust
pneumoconiosis, which looks like a mixed picture.
MR. BURGESS. How many have you encountered during your
professional career?
DR. WELCH. I have not seen anybody that I would say had
both asbestosis and silicosis. I have seen a mixed dust disease--
MR. BURGESS. Okay.
DR. WELCH. --but not sort of classic silicosis plus classic
asbestosis, no.
MR. BURGESS. And just for our general knowledge, what
would be required if you had someone with the abnormal chest X-
ray and the history of exposure to both? What would be required
to make the diagnosis of concomitant asbestosis and silicosis or the
mixed dust phenomenon?
DR. WELCH. Well, the mixed dust what you would have then
is you would have a diagnosis of a pneumoconiosis based on chest
X-ray findings, you know, that there is some abnormal scarring
and what the zones are and what the size and shape are can in
mixed dust can be mixed. Then you need an occupational history
to tell you what the dusts were and then you can end up--sufficient,
you know, you still have to evaluate that to see if that kind of
exposure, the work the person did, the job they did, the kind of
exposures they had sufficient to cause this injury that I am seeing
when I look at his X-ray. So it is really--
MR. BURGESS. So you would not require a pleural biopsy to
make--for that type of diagnosis?
DR. WELCH. No. Actually, you know, for occupational lung
disease biopsies are almost unheard of. You can use CAT scans,
and those are helpful, but you never really need a biopsy.
MR. BURGESS. On the issue of what, I think, Mr. Stupak was
asking, what harm can come to someone from the screening tests
themselves and you testified as to a number of things. And one of
the other issues of damage would be the inability to become
insured in the future. I would imagine that a prior diagnosis of
silicosis as a preexisting condition is going to make it terribly
difficult for someone to obtain health insurance in the future, is it
not?
DR. WELCH. Well, maybe life insurance more than health.
MR. BURGESS. Or life insurance or employment.
DR. WELCH. I have heard, you know, stories of that. It has
never been really documented but it is reasonable to presume that
would occur.
MR. BURGESS. But it certainly could be one of the unintended
consequences of a misdiagnosis of silicosis or asbestosis?
DR. WELCH. Certainly.
MR. BURGESS. And certainly that information should be
disclosed to the individual who was either diagnosed or
misdiagnosed.
DR. WELCH. That they have it, yes.
MR. BURGESS. Yes.
DR. WELCH. What the findings were, yes, absolutely.
MR. BURGESS. And I guess that is one of the things that
bothers me throughout this is the lack of disclosure to the patient.
Now in your work, Dr. Welch, with the sheet metal screenings, I
mean, would that ever happen that you would screen someone for
sheet metal disease and not tell them of the findings, either
positively or negatively?
DR. WELCH. No, because there is a standard protocol that
everybody follows. We identify a local doctor to do the
screenings, so it is usually at a local hospital or a clinic and they
tell the person when they are there. They send them a letter and
then they have a meeting a few weeks later to go over results
again, so there are three opportunities to give the results to the
individuals.
MR. BURGESS. So in general, your standard practice in your
industrial medicine practice would differ from what you have seen
described as standard practice in these cases?
DR. WELCH. Yes, but I think I tried to kind of qualify my
answer to that because I do not know. I don't really know exactly
what went on in these cases. I mean, I do not know who ordered
the X-rays or where the results went or, you know, if the attorneys
got results, what they did with them. It is not the same focus as
our sheet metal program but there is--I do not know all the details.
MR. BURGESS. Yes, apparently we do not know, either, who
ordered the tests and where the results went. Maybe we can get
that information with one of the subsequent panels. Do you have
the evidence books with you? Let me ask you to go to, do I have
Tab 14?
DR. WELCH. Yes.
MR. BURGESS. The section of the AMA's guidelines E10.03,
Patient-Physician Relationship in the Context of Work-Related and
Independent Medical Examinations, "when a physician is
responsible for performing an isolated assessment of an
individual's health or disability for an employer, business, or
insurer, if limited patient-physician relationship should be
considered to exist:" can you comment on what patient-physician
relationship is created in the context of the screenings that you
administer?
DR. WELCH. Yes, I do not know if I would even call it limited,
but the screenings that we run through the sheet-metal program, we
expect the doctors to tell the individuals what is wrong with them,
arrange for follow-up medical care, provide urgent medical care, if
it is necessary--say if somebody has really high blood pressure or
if they have something that looks like a lung cancer that needs
urgent action--and provide appropriate education. So they may not
be the person treating the lung cancer, but they have a
responsibility to the patient, the individual, to act when they get
any medical information that needs urgent action.
MR. BURGESS. Then, do you have a feeling as to the claims
made by the doctors associated with the multidistrict litigation that
they were acting as consultants for the screening companies, and
they were not bound by any ethical obligations or relationships
with the plaintiffs?
DR. WELCH. Well, I had read this statement before; I think it is
pretty good. And I think it really should apply to screening
programs that even if it is a limited physician-patient relationship,
there is a responsibility for doctors acquiring medical information
to make sure that the individual knows what that is and has the
responsibility to act on it. In addition, this outlines how sometimes
there is a potential conflict of interest if a doctor is working for a
company; it can be perceived conflict of interest when the worker
comes for an exam. We would like to have hoped that that would
not be the case, and the doctor would be acting as a doctor; but this
one also outlines the responsibilities of the doctors to state if there
is a conflict of interest and how they are handling it.
MR. BURGESS. Thank you, Dr. Welch, and Professor Sherman,
thank you for your time.
Mr. Chairman, I will yield back 38 seconds to do with as you
wish.
MR. WHITFIELD. Thank you, Dr. Burgess. And at this time, I
recognize Ms. DeGette for ten minutes.
MS. DEGETTE. Thank you very much, Mr. Chairman.
Dr. Welch, you testified as to the appropriate standards of care
and ethical practice in cases like this. I wanted to talk about that
for a minute. I think we are pretty clear--and Professor Sherman
also talked about this--that a diagnosis should never be made by a
physician without personally examining the patient. Is that
correct?
DR. WELCH. Well, there are always variations of it. I mean
certainly a pathologist makes a diagnosis of a disease.
MS. DEGETTE. Right.
DR. WELCH. But it is part of the context of the treatment and
the treating doctor--
MS. DEGETTE. Right.
DR. WELCH. --so that certainly, if they are part of a team, one
of the team has a personal relationship with the doctor if you are
making a medical diagnosis.
MS. DEGETTE. But then part of that, too, is their needs to be
some kind of physician-patient relationship so that the physician
can work with the patient to determine treatment and all of that.
Correct?
DR. WELCH. Right.
MS. DEGETTE. What would the purpose be for having the
doctors or the people who are screening these individuals for
silicosis then working with the doctors and the doctors meeting
with the patient in terms of early detection?
DR. WELCH. Well, if they are screening for it, and you find a
disease, then, when you start a screening program, you need to
know what you are going to do when you find something.
MS. DEGETTE. Right.
DR. WELCH. And what the actions are going to be, and what
recommendations you would make to the individual, their
employer, or--
MS. DEGETTE. I mean that is reason you would have that
relationship so that they could get treatment. Correct?
DR. WELCH. Right, absolutely.
MS. DEGETTE. In this case, without particularly commenting
on the facts of the case which you do not know, but assuming that
what Judge Jack said is correct, that these kinds of screenings were
going on without that essential physician-client relationship, do
you think that some of the issues the judge related could have been
cured by adequate medical screening and treatment?
DR. WELCH. Yes.
MS. DEGETTE. Now should physicians who order and
supervise these screenings also, then, assume a doctor-patient
relationship with the individuals who are the subjects in the
screening?
DR. WELCH. Yes, I think the physician that is ordering the X-
rays or pulmonary function tests has a responsibility to the patient,
the individual, to give them the results and tell them what to do
about it.
MS. DEGETTE. Is any physician who discovers an acute,
dangerous condition during a screening procedure ethically
obligated to notify the individual or that person's individual
physician?
DR. WELCH. Yes, in my opinion, yes.
MS. DEGETTE. That would be under medical ethics?
DR. WELCH. Yes.
MS. DEGETTE. And my next question, because you have had
years of experience in this area: if a physician did not follow those
standards, wouldn't you think that that would be appropriate for a
complaint to whatever governing medical board was there?
DR. WELCH. It could be. I mean I think that in these
screenings you have physicians at different levels interacting with
the individual. I think the person who is running the screening
program and doing the X-rays, if X-rays are being taken, they
should be looked at right away--
MS. DEGETTE. Right.
DR. WELCH. --because there could be an acute event. I would
not necessarily apply the same standard to a B reader who is
reading it two weeks later in a different context, but that there has
to be a physician there--
MS. DEGETTE. Right.
DR. WELCH. --to accept responsibility. And that person, if
they are not doing that, then they are not following standards.
MS. DEGETTE. And that is because then they are not following
through on their physician responsibilities to their patient.
Correct?
DR. WELCH. Correct.
MS. DEGETTE. I mean I think about if I went in for some kind
of cancer screening, and the radiologist did their work, and the
physician just never bothered to follow up with me, and then I died
of cancer--
DR. WELCH. That is malpractice.
MS. DEGETTE. That would be correct. And not only would
that be subject for a lawsuit, but it would also be subject to
sanction by the appropriate medical governing board. Correct?
DR. WELCH. Correct.
MS. DEGETTE. And I wanted to ask you, Professor Sherman,
because I am a reformed lawyer myself, and I was looking at this
ABA resolution of February 2005 on asbestos standards, which
you were talking about vis-�-vis this situation, and what it says is
that the standards should be enforced by Federal, State, and
territorial government agencies and judicial bodies. So my
question is do you think that we should have a Federal statute that
codifies these standards? I guess I am still trying to figure out why
we are having this hearing, frankly.
MR. SHERMAN. Well, traditionally the regulation of medicine
and the professions has been a matter for the States.
MS. DEGETTE. That is correct.
MR. SHERMAN. And I think that probably one starts with the
presumption that that is where it ought to be. This gets into an
interesting constitutional question, I guess, and a political question
as to whether the Federal government, in certain situations, should
step in. The proposed asbestos litigation over recent years, having
to do with a medical criteria bill and now a trust fund, is a
suggestion that that litigation is so mammoth and so affecting
interstate commerce that Federal legislation is needed.
MS. DEGETTE. Right. I understand that, but I am specifically
talking about these standards for screening that the ABA was
talking about in this resolution, and I would assume this would be
in silicosis cases. I really am with you. I think that if the Federal
government made a statute on this particular issue, it would be a
fish out of water in a way because the States, really, are the entities
that govern tort litigation. Correct?
MR. SHERMAN. And I think the ABA proposal you speak of, it
mentioned all three local, State, and Federal.
MS. DEGETTE. Right.
MR. SHERMAN. But I think the recognition was that currently
we are talking primarily about State regulation.
MS. DEGETTE. Now, have any States actually passed laws that
would require these kinds of standards? The States also regulate
medical boards, too. Right?
MR. SHERMAN. Yes.
MS. DEGETTE. So have any States adopted this particular
regulation that you know of?
MR. SHERMAN. Not that I am aware of. We have not done a
comprehensive survey to find what, if any, State regulation of
mobile screening events, for example, or mass screening is done,
but I am not aware of any.
MS. DEGETTE. Do you think that from what you know, that it
would be possible to have oversight over the legal malpractice and
the medical malpractice under existing laws? I mean if a lawyer is
fraudulently filing a lawsuit, it would seem to be not only would
they be subject to criminal prosecution, but also by enforcement by
State Bar Associations and essentially the same with the parallel
medical oversight groups.
MR. SHERMAN. Well, certainly, both professions are primarily
regulated by the States.
MS. DEGETTE. But under current law of the States--
MR. SHERMAN. Under current law--
MS. DEGETTE. --if people filed lawsuits like this, they could
be again regulated by their State entities as well as potentially
criminally prosecuted.
MR. SHERMAN. Yes.
MS. DEGETTE. Now, Dr. Welch, I wanted to ask you what you
thought about the idea of Congress making standards for workers
being screened for exposure to silica or other kinds of toxins on the
job. Do you think it is Congress's job to legislate medical
screening criteria that must be met before a toxic tort claim can be
made in court? It is sort of a variation of the same question.
DR. WELCH. Right, I mean I actually think that there are
standards for medical practice that exist that would guide
screenings in particular. And that I do not see a need to write more
legislation. As you said in the beginning, I think the appropriate
thing is to enforce existing standards. And in some cases, by just
bringing light to certain practices, the practices will stop. I am not
an expert on Federal legislation, but I don't see how it would really
add much. If what we do is we have existing standards that are not
being enforced, adding additional legislation is not going to help
that problem.
MS. DEGETTE. Right, and I mean what struck me in reading
the summaries of the silicosis opinion and then seeing some of the
media, is exactly the light that is being shown on this issue by the
media and by this Congressional hearing. I will guarantee you
there is not a defense lawyer in this country that is going to settle a
silicosis case now without doing due diligence because the light
has been shined on this issue, and I think that, combined with
tough enforcement, is really the way to go.
Thank you both.
MR. WHITFIELD. Mr. Inslee, you are recognized for ten
minutes.
MR. INSLEE. Thank you.
I have a series of letters from the American Medical
Association of September 2005 that are directed to the medical
examining boards of several States: West Virginia, Wisconsin,
Massachusetts, Alabama, and Mississippi. And these letters
basically alert the medical licensing boards of the participation in
the case that brings us here today, which basically recite the
judge's findings that several physicians had submitted
certifications without examining the plaintiffs, that they simply had
not complied with normally expected medical practice in this case.
That involved, I believe, nine physicians. Do you know whether
the medical licensing authorities of any of these States have taken
actions to sanction any of the physicians involved in this situation?
DR. WELCH. I do not know.
MR. SHERMAN. I am not aware of any.
MR. INSLEE. Would it be fair to say that you think it would be
healthy, if physicians did not act in accordance with their own
professional standards, that the licensing authorities get off the
dime and sanction these physicians if in fact they have not acted in
accordance with their own professional expectations?
DR. WELCH. I think that is appropriate if people have violated
professional standards. I agree.
MR. INSLEE. The reason I bring this up is that there is a lot of
talk about litigation and medical negligence contacts in this
country, and one of the problems that some foresee is there has not
been vigorous aggressive pursuit of that thankfully small number
of physicians who do not comply with their professional
obligations. Now, in this instance as far as I can tell, there is at
least nine of them that a Federal judge was quite directly critical of
and from my little knowledge of this situation would indicate they
violated their license. And for those who have convened this
hearing that want this issue to be investigated, I think we need to
investigate whether or not there has been a compliance with the
physician disciplinary system here. And if anyone else has
knowledge at this hearing to provide this information, I would be
particularly interested.
Dr. Welch, I wanted to ask you. I am concerned. I look at this
situation is it looks to me like a lawsuit was initiated; it was thrown
out of court by a judge. The judicial system dealt with this issue.
It found that the medical evidence was not up to the standards that
exist today in our judicial system, and that is why the lawsuit was
by and large tossed out of court. The judicial system worked.
What has not worked is reducing that 30 to 50 percent working
environments that Dr. Welch told us about that still violate existing
standards for being exposed to silicates that can cause silicosis.
And what I am interested in today is how do I protect my
constituents from silicosis from--I have seen estimates of 30 to 50
percent--of workplaces that violate existing health standards. Dr.
Welch, do you have some suggestions of what we could do to try
to protect our constituents in that regard?
DR. WELCH. Well, we could make OSHA an effective
organization, instead of requiring that everything that OSHA do be
voluntary. I thought they were a legislative agency. But making
OHSA effective would go a long way toward that. I mean if
OSHA could go and sample workplaces where there is silica
exposure occurring, and then require effective action, it would
reduce the exposures. And there are many ways to reduce
hazardous exposures, but OSHA enforcement is a very important
part of that.
MR. INSLEE. And why is that not happening now in your
estimation? That is something to me would be a no brainer that
OSHA would be doing today on behalf of the Federal government.
I do not understand that.
DR. WELCH. Well OSHA does not have enough staff. It just
simply has never had enough staff to enforce the laws that it is
authorized to enforce. In addition, new standards setting under
OSHA is almost impossible. There has not been a new health
standard--well, there was actually the chromium standard just this
last week, but that was because they were sued by public citizens.
And without a lawsuit from an outside agency, OSHA has not
issued a new health standard in 20 years. There is a lot to say
about OSHA and how it is hampered from doing its legislative job.
But a lot of it has to do with staffing and generally the bureaucratic
nature, and I think that in some ways the rest of the Government
does not support OSHA completely in its mission.
MR. INSLEE. This case, which certainly has an odor about it
from what little I know about it, is there anything in this case that
should reduce our concern with these findings that 30 or 50 percent
of these workplace environments expose our citizens to excess
silicate that should remove our concern about that?
DR. WELCH. No. I mean what my concern was, and I think I
said it in the beginning, was in some ways it is a distraction
because there are people who are overexposed and there may be
thousands of new cases of silicosis each year that are appearing
without even active screening, and this is a distraction in that it can
lead some people to believe that there is not silicosis. And the
more we focus on the fact that if you believe that the lawyers and
doctors were manufacturing cases that do not exist, the implication
that follows is there are not any cases, But that is not true; there
are cases. There are overexposures. There are cases occurring
from prior exposures that were much higher, but for silica, there
might be a possibility that current exposures are going to cause
future silicosis. And so it is really two different questions, but if
you put all your effort on one, then you are not spending much
time on the other. I mean I think the fact that there are current
cases of silicosis does not excuse any bad legal/medical practices
at all. You kind of need to address both of them. But my concern
is that somehow the implication is that anybody who files a claim
is a fraudulent case.
MR. INSLEE. Professor Sherman, I wanted to ask you about
these affidavits or certifications filed by the doctors in this case. I
used to practice trial law and did a lot of cases involving people
who had been injured, and I have to tell you from what little I
know about this particular case, it is not something that I would
have ever felt comfortable with because going into court with such
scanty medical evidence in the courts that I participated in, frankly,
would get tossed right away because they were superficial at best.
Under existing standards of law, under existing standards of
evidence, under existing rules of summary judgment, under
existing rules of directed verdicts, under this whole existing
regime, this case, from what I know about it, would have been
thrown out in any court I ever practiced in based on superficial
evidence under existing rules. And I guess the question I ask is,
under every court situation I am involved in, a case like this would
have been thrown out, why do we need new rules? This did get
thrown out under existing rules. The court acted and largely
dismissed these cases brought this to our attention. Why aren't the
existing rules sufficient? We have judges to apply them.
MR. SHERMAN. Well, I think you are absolutely right that this
evidence should not stand up under scrutiny in a court. I think
some of the expectation of the parties involved in this was that if
you can get a whole inventory of a large number of cases, and you
can join them and file them amass, that there will be an impetus to
settle those as a group without individual scrutiny of each one and
this is what I was talking about earlier, the settlement process in
which both plaintiffs' and defendants' lawyers at times have been
complicit. The reason these cases were not really thrown out, what
happened, I think, is that a number of them were dismissed after
Judge Jack brought this to light, and there were voluntary
dismissals on the recognition that they would not stand up, and that
was a courageous judge who, on a jurisdictional issue, was able
really to bring about the demise of those cases. I think that is
possible again, and one of the problems I do see, though, is the
large inventory of a large number of cases, asbestos cases, are
typical of that, in which the huge number of cases are pending.
Our courts are incapable of trying those cases individually. It
would take a hundred years to try all those cases individually, and
so there is an impetus to settle them for one reason or another.
And there is the hope, I think, of certain plaintiffs' lawyers in those
situations, that they won't have to do any more than that.
One of the grounds that was given for the ABA proposal for an
early fact sheet, or in the case management order in which lawyers
have to come forward with detailed evidence as to both exposure
and as to medical condition, is, I think that lawyers can't get an
inventory of cases simply by paying a screening company to take
an X-ray and then getting a bogus diagnosis and never have to do
anything more, and then it is almost a green mail, take those cases,
and settle them en masse without having to do anything more.
And that seems to be one value of appropriate case management
order in which you have got to present detailed individualized
evidence early on is telling the lawyer that the lawyer is going to
have to invest some time and some money. The lawyer will not do
that if it is a case that is so questionable if it is a one slat case,
many lawyers recognize that they are not prepared to do that.
They are prepared to do it if they can just bundle those cases and
settle 10,000 of them at a time, but if they know that there is going
to be this kind of individual requirement, even if they are joined
cases, there is going to be that requirement early on, and they are
going to have to spend some time and effort, that, seems to me, is a
weeding process. Good lawyers will not pursue those cases in
recognition that it is good money passed down the drain.
MR. INSLEE. And some day we will have a hearing about the
defense lawyers that somewhere in this great land have filed a
defense that was not entirely appropriate as well.
Thank you very much.
MR. WHITFIELD. Dr. Welch, I would say that I respectfully
disagree with your assertion that this hearing is a distraction. And
I think, when you take the facts of this case, and when you have
fraudulent practices and diagnoses being made without examining
witness, examining patients, or interviewing patients, and you have
these kinds of class-action lawsuits with this number of people, it
has a direct impact on public health, and this committee does have
jurisdiction over public health, and so I think it is important that
we shine the light on it. Unfortunately, our Oversight and
Investigation Subcommittee does not have the authority to
legislate, but we do have the authority to recommend legislation
we think that is necessary.
So with that, I would recognize the gentlelady from Tennessee,
Mrs. Blackburn.
MRS. BLACKBURN. Thank you, Mr. Chairman.
And thank you all for being here and allowing us to talk with
you and work through this.
Dr. Welch, I want to go back to your testimony. As we left for
our series of votes, you were talking about basically the provisions
on page 4 of your testimony which is screening and the difference
in screening and medical screening. And your comment basically
was that a physician has to conduct a diagnosis that would include
a medical screening in order to ID possible cases of silicosis. And
then you went on to state that that was step number one. Is that
correct?
DR. WELCH. The screening really is the first step in--
MRS. BLACKBURN. Right.
DR. WELCH. --reaching a diagnosis, right.
MRS. BLACKBURN. Okay. And then, if you will, you very
quickly listed two or three things that would be additional tests,
and then on page five of your testimony, you said the test used
should be selective and chosen to identify a specific disease, so
what I would like for you to do is let us go back to that part of your
testimony if you will and give me what you would consider to be
the other tests that would be necessary to supplement a screening, a
medical screening, an X-ray which would be a screening, a first
screening, a first identification and give me what those other
exams and tests would be.
DR. WELCH. It does vary by an individual, but generally, if
you are looking for an occupational lung disease, you need an
occupational history. Now sometimes the screening it takes a
general occupational history. How many years have you been in
this trade? How and what kind of tasks did you do? But a more
detailed evaluation would get more detail on that--
MRS. BLACKBURN. Okay.
DR. WELCH. --because determining that a disease is related to
exposure, you need some detail on it.
MRS. BLACKBURN. You would have to have the history and
the length of that exposure.
DR. WELCH. Right, I mean depending on the exposure and
depending on the work someone did, you need more or less detail.
If you know someone was an asbestos installer for 30 years, that is
about all you need to know.
MRS. BLACKBURN. Sure.
DR. WELCH. But other jobs you would have to get a lot more
information--
MRS. BLACKBURN. Okay.
DR. WELCH. --so depending on what you see on the X-ray, the
X-ray may stand alone or you may want some additional tests,
other views, or a CAT scan. That very much depends on what is
on the X-ray. Generally a more additional evaluation will include
pulmonary function tests. You do not absolutely need those for a
diagnosis, but you need them to determine how much impairment
there is and what kind of treatment is needed. And you need a
detailed medical history to see if there are other likely explanations
of the findings. Let us say somebody has an abnormal X-ray and
they have asbestos exposure, but they also have a bad heart. Well,
maybe the findings on the X-ray are caused by heart failure rather
than asbestos exposure. You cannot get that level of detail on an
individual on a screening, but you can get it when there is a further
diagnostic evaluation.
So that is how I see the purpose of the screenings. A lot of the
people who have gone to our sheet metal screening do not have
other serious medical conditions. And the additional evaluation is
pretty straightforward, but you get down to the individual level.
MRS. BLACKBURN. Okay.
DR. WELCH. You find out all you need to know about the
individual.
MRS. BLACKBURN. So in other words what you are saying--
and this is I think tying back into what you were speaking of as we
left--was that it would be very difficult to determine whether
someone had asbestosis or silicosis simply from an X-ray without
doing the additional tests. And part of your concern was that the
X-ray results went to the attorney, but then there did not seem to be
a trail of medical information that was given from the attorney
back to the individual.
DR. WELCH. Right. Now to be fair, we have not asked the
attorney what they did with that. And I would prefer not to have
an attorney in the middle if I am running the program because it is
medical information, give it to the person's doctor and assure that
they act on it.
MRS. BLACKBURN. Okay. Would there be any other factors
that you would add to that list that would determine if a person had
silicosis?
DR. WELCH. Well that is really the basics you would use.
MRS. BLACKBURN. That is the basics. So you can do pretty
well with those?
DR. WELCH. Yes.
MRS. BLACKBURN. That you have listed.
DR. WELCH. Sometimes you can get that information from the
screening evaluation, but usually you will get more information,
particularly about the other medical histories and other medical
conditions with a detailed evaluation.
MRS. BLACKBURN. All right, great.
Professor Sherman I have got a question that I want to ask you.
And I am trying to be considerate of the time here because you all
have been incredibly patient with us. In your testimony,
somewhere, you mentioned inter-reader variability and a concept
known as inter-reader variability, and if you would, could you talk
with me for just a moment about how that applies to trying to
prove fraud in X-ray readings.
MR. SHERMAN. Well, the concept of inter-reader variability is
that if the X-rays are read by different individuals or at different
times, sometimes in good faith, the readings could come out
slightly different. Is that what you were referring to?
MRS. BLACKBURN. Yes. So in essence, then, in your mind it
would take additional tests and supporting information such as Dr.
Welch has articulated in order to give certainty to the validity or
the dependability of a group of readings.
MR. SHERMAN. Yes. Dr. Welch can answer this better than I
can, but it seems to me that if you had a reading of no asbestosis,
and then six months later a reading of consistence with asbestosis,
you would not necessarily want to take the second one as most
recent in time. It seems to me it would raise a question of what is
at work with those two readings of variance and require further
inquiry.
MRS. BLACKBURN. Okay. You mentioned the ABA's
recommendations on asbestosis and their discovery in management
procedures and orders. Of the recommendations that are codified
in the ABA standards and conduct for lawyers, is there anything
there that you would recommend? Are they what they should be?
Is there anything you would recommend for use as we look at the
silicosis situation?
MR. SHERMAN. Well, I think all of the three proposals that I
have mentioned today are transferable to the silicosis situation, and
that is standards for screening and diagnosis, a case management
order that requires an early revelation as to specific facts as to
medical history, exposure, and so forth, and finally, a provision
that would provide for a clear line as to the statute of limitations so
that lawyers would not feel that they had, the diligent lawyers
would not feel--
MRS. BLACKBURN. You mentioned that in your testimony.
MR. SHERMAN. --that they had to file suit to clog the courts
with cases that may not go.
MRS. BLACKBURN. Okay, thank you. I yield back.
MR. WHITFIELD. Thank you, Mrs. Blackburn. At this point, if
there are no additional questions then--
MR. STUPAK. Mr. Chairman, if I might, could we have Dr.
Welch--you asked her a question about distraction, and I think she
should be given an opportunity to explain to the committee and to
the Chairman what she was talking about.
MR. WHITFIELD. Okay.
MR. STUPAK. I thought she was talking more about the
questionable lawsuits and not necessarily this hearing; although, I
would agree. I do not see a lot of public health in this aspect of the
hearing to date.
DR. WELCH. I appreciate the opportunity. I was not trying to
say that the hearing is necessarily a distraction. I was concerned
about the broader public image of whether people really are sick
from occupational lung diseases. And if there is a lot of attention
on this case, but no attention on the fact that there are people who
are sick and dying, it leaves the impression that there is no one sick
from silicosis. That is not something you can do anything about.
It is maybe something I can do something about by talking about
the people who are sick, but that is my concern about the
distraction.
MR. WHITFIELD. Well thank you for clarifying.
Professor Sherman, Dr. Welch, thank you very much for taking
your time today. We are sorry you were here all afternoon but you
are dismissed now and we will call the second panel.
On the second panel, we have Dr. James Ballard of
Birmingham, Alabama. We have Dr. Andrew Harron of Kenosha,
Wisconsin. And we have Dr. Ray Harron of Bridgeport, West
Virginia, and we want to thank you gentlemen for being here
today. Okay, would someone get these name plates in the right
place?
Okay, you gentlemen are aware that the committee is holding
an investigative hearing, and when doing so we have the practice
of taking testimony under oath. Do you have any objection to
testifying under oath?
DR. BALLARD. No.
DR. RAY HARRON. No.
DR. ANDREW HARRON. No.
MR. WHITFIELD. The Chair advises you that under the rules of
the House and the rules of the committee you are entitled to be
advised by legal counsel. Do you desire to be advised by counsel
during your testimony today?
DR. BALLARD. Yes.
DR. RAY HARRON. Yes.
DR. ANDREW HARRON. Yes.
MR. WHITFIELD. Okay. I would ask that at this time you
please identify your counsel for the record so that Dr. R. Harron,
who would be your legal counsel?
DR. RAY HARRON. Larry Goldman of New York City.
MR. WHITFIELD. Mr. Goldman of New York City, okay. You
may move forward and sit at the table with your client, Mr.
Goldman. And Mr. Goldman, will you be giving testimony today?
MR. GOLDMAN. Dr. Harron will assert his privilege.
MR. WHITFIELD. Okay. Dr. A. Harron who is your legal
counsel today?
DR. ANDREW HARRON. Mr. Judd Stone.
MR. STONE. Good afternoon, Chairman. Judd Stone on behalf
of Andy Harron.
MR. WHITFIELD. Okay, thank you. You may move forward
and sit there as well.
MR. STONE. Thank you.
MR. WHITFIELD. And Dr. Ballard, who is your legal counsel?
MR. HAFETZ. Frederick P. Hafetz, H-a-f-e-t-z.
MR. WHITFIELD. Okay.
MR. HAFETZ. And I am going to sit right next to Dr. Ballard.
MR. WHITFIELD. Thank you. Now, I would like to swear the
three of you in. Do you have any objections to being sworn in at
this time?
[Witnesses sworn.]
MR. WHITFIELD. Thank you. All right, each of you is now
under oath, and you may give your five-minute opening statement,
and we will begin with you, Dr. Harron, for your opening
statement.
TESTIMONY OF DR. JAMES BALLARD, M.D.; DR. ANDREW W. HARRON, D.O.; AND
DR RAY A. HARRON, M.D.
DR. RAY HARRON. I do not have anything to say, sir.
MR. WHITFIELD. You do not have an opening statement, okay.
Dr. A. Harron?
DR. ANDREW HARRON. Respectfully, on the advice of my
counsel, I decline to answer questions on the basis of constitutional
privilege.
MR. WHITFIELD. And Dr. Ballard?
DR. BALLARD. I do not have an opening statement.
MR. WHITFIELD. Okay. Now, this is for Dr. Ray Harron. Dr.
Harron, in my opening statement, I made some references to
diagnoses that you made in the silica multidistrict litigation for
people that you had previously diagnosed with asbestosis and those
diagnoses are in the binder in front of you at tabs three through
seven. And I would ask you today will you certify that each of
these diagnoses and all others that you made in this litigation are
accurate and made pursuant to all medical practices, standards, and
ethics?
DR. RAY HARRON. Mr. Chairman, with all due respect on the
advice of counsel, I invoke my constitutional privilege under the
Fifth Amendment and decline to answer the questions, sir.
MR. WHITFIELD. Now are you refusing to answer all of your
questions based on the right against self-incrimination afforded to
you under the Fifth Amendment of the U.S. Constitution?
DR. RAY HARRON. Yes, sir.
MR. WHITFIELD. And is it your intention to assert this right in
response to all questions that may be asked you today?
DR. RAY HARRON. Yes, Mr. Chairman.
MR. WHITFIELD. Given that if there are no further questions
from the members, I will dismiss you at this time subject to the
right of the subcommittee to recall you if necessary and at this time
you are excused.
DR. RAY HARRON. Thank you, sir.
MR. WHITFIELD. Now Dr. Andrew Harron, you have heard the
opening statements today, and you have heard me specifically
describe your practice in making diagnoses for some of the silica
matters in which you essentially handed X-ray interpretation notes
to a secretary to prepare the report, stamp your signature, and send
it out. Dr. Harron, will you certify that each of these diagnoses are
accurate and made pursuant to all medical practices, standards, and
ethics?
DR. ANDREW HARRON. Sir, respectfully, on the advice of my
counsel, I decline to answer questions on the basis of constitutional
privilege.
MR. WHITFIELD. Okay. So you are refusing to answer all of
the questions based on the right against self-incrimination afforded
to you under the Fifth Amendment of the U.S. Constitution?
DR. ANDREW HARRON. Yes, sir.
MR. WHITFIELD. And it is your intention to assert that right in
response to all questions that may be asked today?
DR. ANDREW HARRON. Yes, sir.
MR. WHITFIELD. If there are no other questions from the
members, then I will dismiss you at this time subject to the right of
the subcommittee to recall you if necessary and at this time you are
excused.
DR. ANDREW HARRON. Thank you, sir.
MR. STONE. Thank you, Mr. Chairman.
MR. WHITFIELD. Dr. Ballard, in my opening statement, I made
references to one diagnosis that you made in the silica multidistrict
litigation for a person that you had previously diagnosed with
asbestosis. This diagnosis is in the binder in front of you in Tab 8.
And Dr. Ballard, will you certify that this and each of the diagnosis
that you made in this litigation are accurate and made pursuant to
all medical practices, standards, and ethics?
DR. BALLARD. On the advice of my attorney, I refuse to
answer on the grounds of my constitutional privilege against self-
incrimination.
MR. WHITFIELD. So you are refusing to answer all of our
questions based on the right against self-incrimination afforded to
you under the Fifth Amendment of the U.S. Constitution?
DR. BALLARD. Yes.
MR. WHITFIELD. And it is your intention to assert that right on
any and all questions that we might ask you today?
DR. BALLARD. Yes.
MR. WHITFIELD. If there are no further questions from the
members, then, I would dismiss you at this time subject to the right
of the subcommittee to recall you if necessary and at this time you
are excused.
At this time, I would like to call the third panel of witnesses
and we have two members on that panel. First of all, we have Dr.
George Martindale of Mobile, Alabama, and we have Mr. Heath
Mason who is the co-owner and operator of N&M, Inc. of Moss
Point, Mississippi. I want to thank you gentlemen for being with
us today and as you are aware that the committee is holding an
investigative hearing and when doing so we have the practice of
taking testimony under oath. Do you have any objection testifying
under oath today?
DR. MARTINDALE. No, sir.
MR. MASON. No, sir.
MR. WHITFIELD. Okay. The chair would advise you that under
the rules of the House and the rules of the Committee, you are
entitled to be advised by legal counsel. Do you desire to be
advised by legal counsel during your testimony today?
MR. MASON. Yes, sir. I am represented by Mr. Luke Dove
from Jackson, Mississippi.
MR. WHITFIELD. Mr. Luke Dove, okay, thank you, Mr. Dove.
And Dr. Martindale?
DR. MARTINDALE. My legal counsel is with me, Mr. Doug
Jones from Birmingham.
MR. WHITFIELD. Mr. Doug Jones of Birmingham. And do any
of the, do any of the legal counsels intend to testify today--
MR. DOVE. No, sir.
MR. WHITFIELD. --other than give advice. Okay. Well in that
case, Mr. Mason if you and Dr. Martindale would stand up I would
like to swear you in.
[Witnesses sworn.]
MR. WHITFIELD. Thank you. At this time, both of you are
sworn in and I would ask you do you have an opening statement
that you would like to give?
TESTIMONY OF DR. GEORGE MARTINDALE, M.D.; AND HEATH MASON, CO-OWNER AND
OPERATOR, N&M, INC.
MR. MASON. No, sir, I will waive my opening statement.
MR. WHITFIELD. Dr. Martindale?
DR. MARTINDALE. I have no formal opening statement. I
would just like to say before any questions that during my
experience with this whole process beginning to end, I have
maintained that I was involved only as a B reader. I was never
involved as a diagnosing physician. I wanted to make that quite
clear. I am a practicing diagnostic radiologist who received
certification from NIOSH to be a B reader, and I considered my
activities in that very narrow spectrum. I have attempted at every
turn to cooperate throughout this whole process, and I have never
invoked Fifth Amendment rights and have been voluntary in my
appearance whenever needed.
I would just like to note that in Dr. Welch's testimony, I think
she did draw a distinction between B readers and diagnosing
physicians in that she did not hold B readers to the same standard
as far as--let me consult my notes. I believe she said that the
physician that ordered the chest X-rays, and the pulmonary
function tests, and did the history, and physical, should be
responsible for communicating the results of those tests, any
additional follow-up exams, and the overall care of the individual
examined, she specifically stated, I do not believe I would hold a B
reader who has seen the X-ray say two or three weeks later to the
same standard.
MR. WHITFIELD. Okay. Well, Dr. Martindale, thank you very
much and for stating your position and I would like to ask you a
question. On October 29, 2004, you were deposed by attorneys
representing the defendants in the "In Re: Silica" matter, and in the
deposition an attorney read to you the impression section of your
report that I believe you have which is Tab 12, if you have it there.
In the impression section of that report which states on the basis of
the medical history review which is inclusive of a significant
exposure to silica dust, physical exam, and the chest radiograph,
the diagnosis of silicosis is established within a reasonable degree
of medical certainty. After that, he asks, now, doctor that is simply
inaccurate, isn't it? And at this time, I would like to listen to your
response in that deposition, if you would play that.
[Video].
MR. WHITFIELD. That is sufficient, thank you.
Well I think you reiterated in that deposition what you have
said today that it was never your intent to make a diagnosis. Is that
correct?
DR. MARTINDALE. Yes, sir.
MR. WHITFIELD. And actually when you did that, you in effect
tossed out one third of the 10,000 claims in the multidistrict
litigation. Now, tell me how did that happen?
DR. MARTINDALE. Well, you have to go back to when I
approved the wording in that specific paragraph, and I had been a
B reader with a verbal contract with N&M Testing for--I do not
remember precisely when this happened--but some two to three
months. Mr. Mason called me, and I had been dictating reports
with an impression, in my own words that I typically used on my
reports in private practice, typically saying that this would be
consistent with a clinical diagnosis of asbestosis or silicosis. He
proposed this change and wanted to fax it to me for my viewing
and to see if I would be willing to accept it. So he did, and he
called later. I said I had read it, and that I did not really believe
that it changed basically what I was doing and the essence of what
I was trying to say. You have to understand that for the four years
of my residency and the, at that time, about 12 years of private
practice, I had never filled the role of a diagnosing physician on
any X-rays that I undertook to interpret. I was a radiographic
consultant. I would dictate a report; that report would then be sent
to the physician who did the history and physical, the whole
clinical work up, maybe the hospital kept a copy. I did not keep a
copy, and the physician who was in charge of the clinical workup
related the findings and also correlated with any clinical history
and physical findings. And so I had never been put into this
position; I never represented myself as having been trained in, nor
having any, clinical expertise in the diagnosis of pulmonary
diseases outside of their radiographic manifestations, ever. I want
to make that very clear. I had never represented myself in that
fashion.
MR. WHITFIELD. No, I am sorry. Go ahead.
DR. MARTINDALE. Add to that, that I knew, and I had been
told by Mr. Mason, Dr. Ray Harron traveled with his screening
company, and had for some time, years. He was conducting
histories and physicals on all of these patients. He was overseeing
the pulmonary function studies. He was interpreting the chest X-
ray, and I was to be the second reading on the chest X-ray. Maybe
I had tunnel vision, but I never had any reason to believe that I
could possibly be the diagnosing physician. I was basically a
consultant on films as a second reading even so that when I read
this paragraph.
MR. WHITFIELD. So Mr. Mason had led you to believe that
there was another doctor that was really examining the patient,
taking the medical--
DR. MARTINDALE. Well, he had told me that, yes.
MR. WHITFIELD. Okay. And Dr. Mason, I mean, Mr. Mason
what do you have to say about that?
MR. MASON. I agree with Dr. Martindale on the portion that
we had a doctor that saw the client before it got to him.
MR. WHITFIELD. And who was that doctor?
MR. MASON. In most instances I would say it was Dr. Harron.
Over all the instances, I probably could not say; but I would say in
the majority of the cases that Dr. Martindale saw, Dr. Harron had
performed some type of physical on those people.
MR. WHITFIELD. So why did you need Dr. Martindale?
MR. MASON. I particularly did not need him at all, sir. From
our standpoint, the lawyers contacted us and said that they needed
another doctor to diagnose these clients for them. So that--
MR. WHITFIELD. Why could they not use Dr. Harron?
MR. MASON. They just told me they had to have another
doctor. No reason as to why it was. They just said they had to
have another doctor to have, to diagnose these clients.
MR. WHITFIELD. Let me ask you some other questions, Mr.
Mason. Over the past several years, if I am correct, you have
supplied screening services in the following States: Ohio, Texas,
Louisiana, West Virginia, Alabama, California, Mississippi,
Florida, Missouri, Wisconsin, Kentucky, Hawaii, Virgin Islands,
Arkansas, Illinois, and Pennsylvania. How do you ensure that you
are conducting your operations, including the administration of
chest X-rays, on perhaps dozens of people per day in accordance
with the State medical and radiological laws?
MR. MASON. I guess I would have to go back, number one, to
all the States that you just rendered off. I do not know that,
honestly, I did work in all of those places. I would have to see
that. But from a standpoint of what did we do to ensure that we
were able to do chest X-rays in a State, you always had to contact
the State and let them know that you were coming, where you were
coming to. You had to provide them who was doing those chest
X-rays for you, and you had to provide a license that they had in
that State, and those are the things that we did.
MR. WHITFIELD. Who in your company was responsible for
ensuring compliance with those rules?
MR. MASON. You know, when you are the owner, you are as
responsible as anybody I would say, so I guess I would not say
there was one responsible or the other; but Molly Nolan did do a
good portion of our X-ray stuff for us, but overall when you are an
owner you are as responsible as the other party.
MR. WHITFIELD. And you were retained by these law firms,
certain law firms to do these mass screenings. Is that correct?
MR. MASON. Yes, sir. We were contacted by different law
firms to do a screen in different areas, yes, sir.
MR. WHITFIELD. Could you give us the name of a couple of
those law firms or--
MR. MASON. Oh, Lord, sir, it was a lot.
MR. WHITFIELD. Okay. One other question, and then my time
has expired. But who was prescribing the X-rays in each of your
screenings?
MR. MASON. It was different. It is according to the State that
you are in. Did the State have a priority, have a--
MR. WHITFIELD. For the ones that Dr. Martindale looked at.
MR. MASON. There, again, I do not know. I do not remember
exactly the ones that Dr. Martindale has read and from where we
did them. But as far as a prescription for a chest X-ray goes, if a
State did not have the procedure set up for what they called a
healing arch screen, then, if we were there for the lawyers, they
would provide us with an X-ray prescription from whatever doctor
it is that they had agreed would prescribe the X-rays, for us to take
the X-rays for them and provide them with those X-rays.
MR. WHITFIELD. So the lawyers would provide that to you?
MR. MASON. Yes, sir.
MR. WHITFIELD. Okay. My time has expired. I will recognize
the gentleman from Michigan.
MR. STUPAK. Thank you.
Mr. Mason so it is your testimony that the patients would come
with a prescription then from a doctor?
MR. MASON. Sir, I am sorry. I was looking for you.
MR. STUPAK. Okay. Is it your testimony then that a patient
would come to be screened by you or by your company? They
would have a prescription from a doctor?
MR. MASON. If they were not in a State where we qualified for
a healing art screen.
MR. STUPAK. Okay. If they did not?
MR. MASON. Yes, sir.
MR. STUPAK. Okay. And when you took these X-rays in the
State, you had to be or the person taking the chest X-ray had to be
licensed by that State?
MR. MASON. Yes, sir.
MR. STUPAK. Okay. So would you usually get someone from
that State? Let us say you are up in Pennsylvania. Would you get
someone from Pennsylvania to come and work for your company
then to take these X-rays?
MR. MASON. No, sir. We tried to keep the same X-ray techs
because the technique for these films were particular. It was not in
a hospital setting.
MR. STUPAK. Okay.
MR. MASON. So what we did was we would have them go take
the exam or receive the exam from the State that we were trying to
go to previously, and let them take that exam ahead of time.
MR. STUPAK. So there is no question here that your X-ray
screenings, whatever you want to call them, were taken according
to the standards of the State in which they were conducted?
MR. MASON. Yes, sir.
MR. STUPAK. Okay. Dr. Martindale if I may. I am looking at
Tab 11 in the book there which is your letter, I believe to Billy
Davis.
DR. MARTINDALE. Yes, sir.
MR. STUPAK. I am at the second paragraph. It says in 2001,
2002, one year, you were hired by N&M, Inc., an industrial testing
company to review X-rays of workers "who I was told had been
clinically diagnosed." Who told you that, sir?
DR. MARTINDALE. Heath Mason.
MR. STUPAK. Okay. And then goes on to say, next sentence,
"I was told that Dr. Harron." Again, who told you that? Mr.
Mason?
DR. MARTINDALE. Mr. Mason.
MR. STUPAK. Okay. It says "I was told that Dr. Harron was a
specialist in the field and that he performed a medical and
occupational history, physical exam, pulmonary function tests, and
chest X-ray on each patient, and that each case I would be asked to
review involved a positive diagnosis by him." Did you have Dr.
Harron's reports for any of these when you made--
DR. MARTINDALE. I was mailed the X-rays.
MR. STUPAK. Correct.
DR. MARTINDALE. Chest X-rays.
MR. STUPAK. Correct.
DR. MARTINDALE. And initially, that was all I was mailed, the
chest X-ray which came in a jacket, but the outside of the jacket
had Dr. Harron's handwritten--
MR. STUPAK. Notes.
DR. MARTINDALE. --which is in the aisle of shorthand that was
essentially chest X-ray interpretation.
MR. STUPAK. Okay. So you really did not have any of these
other tests to look at then like a physical, the occupational history.
You did not have the physical exam, the pulmonary function test in
front of you?
DR. MARTINDALE. At the start of my reading for them?
MR. STUPAK. Right, correct.
DR. MARTINDALE. No, sir.
MR. STUPAK. Okay.
DR. MARTINDALE. That came a little bit later.
MR. STUPAK. That came later. Okay, it goes on, "It was
explained to me that the B reader was needed to validate the
finding of the examining physician. It was explained to me again
by Mr. Mason." Is that yes?
DR. MARTINDALE. Yes, sir.
MR. STUPAK. Okay. I am going down to the next paragraph,
third paragraph: "A portion of my reads were reported as negative,
but most were consistent with the diagnosis. I was not made aware
of any individual who had also been diagnosed with a similar lung
disease, either asbestosis or silicosis." You were not informed
that, but did you ask these patients. Or you never saw a patient?
DR. MARTINDALE. I never had any contact at all with the
patients. If I could just make one point--
MR. STUPAK. Sure.
DR. MARTINDALE. --about the clip that was shown. This is
why in that impression, when I looked at it and approved it, I want
you to understand the perspective of which I was viewing the
paragraph, never having any contact with any of these people,
having the whole workup done by someone else, I had been told I
was the second interpretation of a chest X-ray. When I read that
the diagnosis of silicosis is established, I had been told a diagnosis
existed, and I assumed that the diagnosis was Dr. Harron's
diagnosis.
MR. STUPAK. Sure. So if you were told that Dr. Harron had
already diagnosed them as silicosis, you were there to validate it,
and you validated it through reading this X-ray, if you will?
DR. MARTINDALE. Right. I really felt I was more validating
his chest X-ray findings and then linking those to his diagnosis.
MR. STUPAK. So anything else that Dr. Harron may have
concluded from that patient, you were not really concerned about;
you were just to read this X-ray.
DR. MARTINDALE. Yes, sir.
MR. STUPAK. Okay. Could the examining physician make his
diagnosis without your reading?
DR. MARTINDALE. Yes, sir. I do not believe that he required a
second read. As it was explained to me when I began reading
these films, the second read really was, in instances, becoming
more prevalent, that for settlement of cases they were requiring a
second opinion on the chest X-ray--
MR. STUPAK. Okay.
DR. MARTINDALE. --not on the diagnosis.
MR. STUPAK. Okay. Were you hired by Mr. Mason's
company then?
DR. MARTINDALE. Mr. Mason. I had a verbal contract with
Mr. Mason, yes, sir.
MR. STUPAK. Okay. And is there an examination or
certification you have to take to be a B reader?
DR. MARTINDALE. Yes, I believe that someone on the
committee referred to the NIOSH exam--
MR. STUPAK. Right.
DR. MARTINDALE. --as being very rigorous. It is. I am here to
tell you very rigorous, and I think I have referenced in my letter
that it is so difficult that people such as myself, after four years of
medical school, four years of residency, and variable years of
training, two thirds in many years do not even pass the test, and it
only takes a 50 percent to pass the test.
MR. STUPAK. This NIOSH test, once you take it, do you have
to get re-licensed every--
DR. MARTINDALE. You are licensed, initially, for four years.
At the end of that period of time, you can go back and get another
recertification for four years.
MR. STUPAK. Have you ever gone for recertification?
DR. MARTINDALE. No, sir, my entire experience in B-reading
films was from April of 2001 to June of 2002. I read only films for
N&M; I did not read anyone else's films.
MR. STUPAK. Well, as you sit here today, do you have any
reason to believe that if you look back at these same films, the
results differ significantly from what you reported?
DR. MARTINDALE. No, sir. I do not believe the results of my
interpretation of the chest X-ray would.
MR. STUPAK. Okay. When you were given these B reads or
these films to read were you under the impression that each of the
X-rays came from an individual who had been given an initial
clinical diagnosis of silicosis?
DR. MARTINDALE. Yes, sir.
MR. STUPAK. Okay. Do you think that, despite the fact that
you, personally, did not have a doctor-patient relationship with
individuals whose X-rays you were receiving, an individual found
to have possibly a serious pulmonary disease, such as silicosis,
asbestosis, or fibrosis or cancer, would receive a certified letter
from a healthcare professional indicating this to the patient?
DR. MARTINDALE. What I was told initially when I first
verbally contracted, and we were discussing some of the
ramifications of it, since asbestosis does have a significant increase
incident of having carcinoma and things--
MR. STUPAK. Correct.
DR. MARTINDALE. --if my ILO form and my report included
anything referencing the possibility of cancer or, i.e., any other
significant life threatening illness, that individual would receive
from N&M Testing a certified letter notifying them of that. That is
what I was told by Mr. Mason.
MR. STUPAK. Okay. Let me ask you this, did you know if Mr.
Mason ever had a stack of blank medical forms pre-signed by Dr.
Harron?
DR. MARTINDALE. No, sir, I would not know.
MR. STUPAK. Okay. If a physical examination and B read
indicated a good possibility of silicosis or other pulmonary disease,
was anyone responsible for providing this information to the
people being screened? I mean other than the certified letter, did
you have any responsibility to pick up a phone and call someone?
Maybe not the patient, but Mr. Mason or someone?
DR. MARTINDALE. I would just answer that by saying that
every report went back to Mr. Mason, and Mr. Mason processed
every report. I would also just go back and reference Dr. Welch
again when she said that she felt the physician who ordered the
chest X-ray, the pulmonary function test, had done the history and
physical on the individual, they bore the responsibility of notifying
the patient of any significant disease and the results of those tests.
MR. STUPAK. Okay. So you did not?
DR. MARTINDALE. So, no, sir, I felt no obligation. I would
only add to that that again in my professional career and private
practice--
MR. STUPAK. Sure.
DR. MARTINDALE. When I interpret X-rays, I do not inform
the patient either. There are times I do biopsies. I know the
patient has cancer before they leave the room, but it is not my
position to do that, not my place to do that.
MR. STUPAK. Sure, I understand that. I just sort of got the
impression sitting here all afternoon that there are sort of these
tight groups here of people working together and maybe different
ones are doing it. Did you have any reason to doubt the diagnosis
of Dr. Harron?
DR. MARTINDALE. No.
MR. STUPAK. Okay. Did you receive a lesser payment or no
payment if a B read you made was not positive? Did you get a
different fee for positive or negative?
DR. MARTINDALE. No, sir, I got $35 whether it was positive or
whether it was negative.
MR. STUPAK. Okay. Did you have any reason to believe or
suspect that Mr. Mason or his firm was not acting in good faith?
DR. MARTINDALE. No, sir.
MR. STUPAK. The time is up. Mr. Chairman, thank you.
MR. WHITFIELD. At this time, I recognize Dr. Burgess.
MR. BURGESS. Thank you, Mr. Chairman.
Mr. Mason, if I am reading this right in the evidence book that
we have under Tab 1 on the sign-in sheet from February 15 of
2002, there were 111 people screened that day. Is that correct?
MR. MASON. If we are looking at the, this is Tab 1, you mean?
MR. BURGESS. Yes.
MR. MASON. This is not a sign-in sheet, sir. This is a report
for the lawyers at the end of the day on who is positive and who is
negative. This is not a total of who was screened and who was not
screened.
MR. BURGESS. Okay. So everyone on this sheet was reported
positive?
MR. MASON. Yes, sir. This is a list of people that were
positive that day, but there might have been 160 people that came
through the door, and they are just not listed. The rest of these
people are not listed on the sheet.
MR. BURGESS. And it was reported elsewhere--I think on
NPR--that there were days that there were 90-plus positives on
these sheets. Is that unusual?
MR. MASON. No, sir.
MR. BURGESS. Well, after someone would test as or screen as
positive, what was your role then? Did you help them find legal
representation or had that already been prearranged?
MR. MASON. We are going to have to be much more specific
because there are 50 different ways that that can come about. I
mean you will have to be specific to a client and tell me exactly
how he contacted me or did the lawyer send him to me. I mean
there are numbers of different ways to answer that question all
according to the client.
MR. BURGESS. Well, generally, how would the screenings be
set up? Who would bring the patients to you?
MR. MASON. Generally, there was a number of different ways
that that happened as well.
MR. BURGESS. Would you just set up in a Wal-Mart parking
lot and say come be screened?
MR. MASON. Well, I would not particularly say a Wal-Mart
parking lot, no, sir. But, you know, again, you are asking me to be
way too broad on exactly how we set up our screens when there
were too many numbers of ways we did.
MR. BURGESS. Well, would patients ever be sent to you by
someone to be screened? Let us say Dr. Harron would send you
patients to be screened?
MR. MASON. No.
MR. BURGESS. Well, how would N&M initially help a firm
select potential silicosis plaintiffs?
MR. MASON. There, again, there is numbers of different ways
that that can happen. It is according to what law firm you are
asking me about.
MR. BURGESS. Say Campbell Cherry.
MR. MASON. Campbell Cherry would want us to initiate their
work history information. They would give us a criteria of what
they wanted or what they would accept as reasonable exposure to
silica. They would give us, basically, the years that they wanted,
like they had to start by 1978 and have at least two years of
exposure and they would have to be signed to their exposure and
say hey, I have been exposed to silica, and this is where I was
exposed, and I was exposed there for this amount of years. That
was the criteria from Campbell Cherry, basically.
MR. BURGESS. What were your company's goals for
organizing those screenings, like the number of people attending?
MR. MASON. We did not really have any. I mean there, again,
it is according to what screen we are trying to do. I mean,
basically, it is just hard to say; it is according to the screen.
MR. BURGESS. Well, what kind of strategy would you follow
for organizing a screening? I mean do you--
MR. MASON. From whom?
MR. BURGESS. Just from say Campbell Cherry.
MR. MASON. What we would do is we would accept the calls
from people that they thought were exposed to silica. We would
screen those people over the telephone. We would see if they met
the criteria that Campbell Cherry had passed down to us. If they
did, especially in silica, we had to forward that information to
Campbell Cherry. They had to approve the list of people that we
thought were exposed, and then we would set those screens up for
them by contacting the client and telling them this is where the
screen is going to be; this is when you need to be there. And it was
our responsibility to make sure the person was there and that we
had took the best work history that we could get from the client.
MR. BURGESS. Okay. So you took a work history. Did you
take a medical history as well?
MR. MASON. No, sir. Basically, we asked them whether they
smoked cigarettes or not. Over the years, I would have to have
what we consider our A sheet to tell you exactly what it was that
we did. Dr. Harron basically took their brief medical history when
he talked to them.
MR. BURGESS. So if a medical history was taken it was taken
by a physician, not by one of your employees?
MR. MASON. All we did, basically, from our staff's standpoint
was, ask them whether they smoked cigarettes or not, mainly their
history, their address. And basically Dr. Harron spoke with them
about the medical things that he thought was important for the
case.
MR. BURGESS. Did you retain files on the patients that you
screened for the asbestos litigation?
MR. MASON. Yes, sir. We have deposited all of those into
Corpus Christi. I assume it is called the depository.
MR. BURGESS. Okay. And the same for the silicosis litigation?
MR. MASON. Yes, sir. Basically, I voluntarily sent every file
that we ever did in our life to Corpus Christi when I was in front of
Judge Jack.
MR. BURGESS. Now, do you yourself have any specific
medical background or training?
MR. MASON. No, sir.
MR. BURGESS. Has your company, N&M, ever had a medical
director or been under the supervision of a licensed physician?
MR. MASON. No, sir.
MR. BURGESS. Now your staff asks screening questions in
order to determine which patients were most likely to have an
occupational exposure to silica, and only those patients were X-
rayed. Who drafted the questions that were used in the screening
process?
MR. MASON. You know, by the time that silica got there, we
were fairly well adept to how to ask people about their exposure. I
mean we had been in the asbestos field as well. So in the
beginning, silica was new for us, so we sort of went by the client
saying that he was exposed to silica and where he was exposed at,
and pretty much there was not a question list. That was pretty
much it.
MR. BURGESS. Well, did you ever had a law firm review the
questions that you asked the patients during the screening process?
MR. MASON. I am sorry?
MR. BURGESS. Did you ever have a law firm review the
questions that you ask during the screening process?
MR. MASON. No, sir.
MR. BURGESS. What type of dollars are we talking about for
one of these mass screenings? And would you make money doing
this?
MR. MASON. Well, sir, I was a businessman. I hope to make
money, yes, sir.
MR. BURGESS. So can you give me an idea of what kind of
money?
MR. MASON. It is according to what we are talking about.
When? How? I mean there are numbers of different ways to make
money.
MR. BURGESS. Do we have available any of the financials for
N&M? Would we have access to that information?
MR. MASON. Yes, I am sure you could have access to it. I do
not know that we have produced it in other depositions that we
have been in or other court cases. There is numbers of--
MR. BURGESS. Well, you pay taxes?
MR. MASON. Oh, no, sir, I do not have any problems with that.
MR. BURGESS. So did you make a million dollars that year or--
MR. MASON. No, sir, I never made a million dollars.
MR. BURGESS. A hundred thousand dollars?
MR. MASON. Yes, sir, I am sure I made $100,000.
MR. BURGESS. Okay, so we have narrowed it down.
MR. MASON. Yes, sir. I made between one hundred and a
million.
MR. BURGESS. Were you paid regardless of the diagnosis
regardless of the findings?
MR. MASON. Sir?
MR. BURGESS. Were you paid regardless of the findings?
Were you--
MR. MASON. In what application?
MR. BURGESS. Dr. Martindale testified that he was paid $35
for reading the film whether it was positive or negative.
MR. MASON. I mean you are going to have to be more specific
on what screen we are talking about.
MR. BURGESS. Did Campbell Cherry Law Firm only pay you
for positives?
MR. MASON. Yes, sir.
MR. BURGESS. How much did they pay you?
MR. MASON. It was different amounts. So you are going to
have to be specific on when.
MR. BURGESS. For a positive test in January of 2001.
MR. MASON. I have no idea.
MR. BURGESS. Okay. Were there any firms that paid you only
for positives and not for negatives?
MR. MASON. Yes.
MR. BURGESS. Which specifically?
MR. MASON. Which firms?
MR. BURGESS. Yes, which firms?
MR. MASON. Lord, I have no idea. I mean, there is a lot, and
there is also firms that paid me for both.
MR. BURGESS. Well, what about the O'Quinn Firm? Does that
ring a bell to you?
MR. MASON. Yes, I am very familiar with the O'Quinn firm.
Yes, sir.
MR. BURGESS. Would they pay you for positives?
MR. MASON. Here, again, we are not in the same scenario.
O'Quinn would hire us to come in to do their chest X-rays, which
means we got paid for every chest X-ray we did. Then, O'Quinn
would hire us to come in and do their pulmonary functions and
physicals, and we got paid for every pulmonary function and
physical that we did.
MR. BURGESS. Was the payment different if the chest X-ray,
pulmonary function, and physical were consistent with a diagnosis
of either asbestosis or silicosis?
MR. MASON. No, sir.
MR. BURGESS. Mr. Chairman, I see my time has expired. I
will yield back.
MR. WHITFIELD. Okay, at this time recognize Ms. DeGette.
MS. DEGETTE. Thank you, Mr. Chairman
Dr. Martindale, you are a trained physician. Is that correct?
DR. MARTINDALE. Yes.
MS. DEGETTE. And can you tell me what kind of education
and medical training that requires? Where did you go to college?
Where did you go to medical school? Where did you do your
residency and internship?
DR. MARTINDALE. Yes, I went to undergraduate school to
college at the University of Tennessee in Knoxville.
MS. DEGETTE. Great.
DR. MARTINDALE. And medical school at the University of--
MS. DEGETTE. That is four years, right?
DR. MARTINDALE. Four years, of medical school at the
University of Tennessee in Memphis, the Health Sciences, and
four years of diagnostic radiology training at the University of
Virginia in Charlottesville, Virginia.
MS. DEGETTE. And you are a radiologist by trade?
DR. MARTINDALE. I am a diagnostic radiologist.
MS. DEGETTE. And how long have you been practicing?
DR. MARTINDALE. Sixteen-and-a-half years.
MS. DEGETTE. Sixteen-and-a-half years. And in your 16-1/2
years in practice, the vast majority of the diagnostic radiology that
you do is for physicians who refer your patients to you and then
you give the reports back. Correct?
DR. MARTINDALE. Virtually 100 percent, yes.
MS. DEGETTE. And in fact, the only time that you did not have
that type of relationship was in the situation we are talking about
now? Correct?
DR. MARTINDALE. Correct. I would only qualify that in that I
considered Ray Harron to be a diagnosing physician.
MS. DEGETTE. Right, but you were not hired by him.
DR. MARTINDALE. Right, correct.
MS. DEGETTE. You were hired by Mr. Mason's private
company--
DR. MARTINDALE. Correct.
MS. DEGETTE. --which is not a physician, correct?
DR. MARTINDALE. Correct.
MS. DEGETTE. And you were hired to perform a review of
these X-rays. Correct?
DR. MARTINDALE. Correct.
MS. DEGETTE. And you send your results back to Mr. Mason,
correct?
DR. MARTINDALE. Correct.
MS. DEGETTE. And Mr. Mason was he the one, or his
company the one, that provided you with the language that you
included in each one of your 3,617 reports as to the diagnosis?
DR. MARTINDALE. Yes.
MS. DEGETTE. Okay. So he gave you that language to sign,
correct?
DR. MARTINDALE. Yes.
MS. DEGETTE. Now, you testified earlier today and also in
your deposition that, really, you felt that it was your job to give a
second opinion. You said, "I did not see my role in making a
diagnosis of silicosis. I see my role as interpreting the chest X-ray,
producing and ILO based on the chest X-ray." Correct?
DR. MARTINDALE. Yes.
MS. DEGETTE. But Dr. Martindale, on 3,617 forms you stated,
and you signed "on the basis of the medical history review which
is inclusive of a significant occupational exposure to silica dust
physical exam and the chest radiograph, the diagnosis of silicosis
is established within a reasonable degree of medical certainty."
Correct?
DR. MARTINDALE. Yes.
MS. DEGETTE. Now, Doctor, you said before today, when you
agreed to do that, you did not understand what it meant. Is that
right?
DR. MARTINDALE. No, I said that when I read that paragraph, I
had never been in that position.
MS. DEGETTE. Okay.
DR. MARTINDALE. Yes, ma'am. But it was--
MS. DEGETTE. But did you understand that in that paragraph
you are signing something that says that you are confirming a
diagnosis of silicosis. Did you understand that part?
DR. MARTINDALE. What--
MS. DEGETTE. Because that is what it says?
DR. MARTINDALE. Well, what I understood from my
perspective was I was told when I signed off on that paragraph that
this language was needed to better link my chest X-ray reading
with the diagnosis.
MS. DEGETTE. Okay. But you are a physician, right?
DR. MARTINDALE. Yes, ma'am.
MS. DEGETTE. You know what it means to make a diagnosis
of something. Correct?
DR. MARTINDALE. Yes, ma'am.
MS. DEGETTE. In fact, I assume you have diagnosed problems
before, right?
DR. MARTINDALE. Yes.
MS. DEGETTE. But this does not say I am confirming the chest
X-ray.
DR. MARTINDALE. Not a clinical diagnosis.
MS. DEGETTE. It says the "diagnosis of silicosis is established
within." You are certifying; you are establishing a diagnosis of
silicosis. Correct? Doesn't it--
DR. MARTINDALE. What I was trying--
MS. DEGETTE. Go ahead.
DR. MARTINDALE. What I believe that paragraph to say, and
my intent, was the diagnosis I was not interpreting taking on as my
diagnosis or a diagnosis. The films came with a diagnosis. I was
told a diagnosis already existed, and I was saying these findings
would be consistent or in keeping within a reasonable degree of
medical certainty the diagnosis of Dr. Harron is the way that I was
interpreting it.
MS. DEGETTE. Okay. It does not say that does it in that
statement that you signed 3,617 forms does it?
DR. MARTINDALE. No, ma'am, and--
MS. DEGETTE. No. Now, Mr. Mason, let me ask you did you
write that language that you gave to Dr. Martindale?
MR. MASON. No, ma'am.
MS. DEGETTE. Who wrote that language?
MR. MASON. That came to me from the Campbell Cherry Law
Firm.
MS. DEGETTE. The lawyers wrote that language?
MR. MASON. Yes, ma'am.
MS. DEGETTE. And did you tell Dr. Martindale he had to
include that in the forms?
MR. MASON. No, ma'am, I sent it there for his approval. I did
not say it had to be there. I said this is what the lawyers are saying
they have to have--
MS. DEGETTE. And is that true, Dr. Martindale? Did you feel
like you had an option to maybe put the words I am confirming Dr.
Harron's review of the X-rays or something like that? Did you feel
like you had leeway to edit that up?
DR. MARTINDALE. I do not think we ever discussed editing it.
When I read that from my perspective, I did not see that it was
putting the diagnosis on me. I believe from my perspective, and
my intent was, that it was describing Dr. Harron's. I understand
now in retrospect in having the--
MS. DEGETTE. Okay. Let me ask you a question from my
perspective. Let us say I was a lawyer, and let us say I was
practicing personal injury law, and let us say Dr. Harron gave me a
diagnosis of silicosis. What I need, as a lawyer, is I need a second
opinion from a trained medical doctor confirming the diagnosis.
This is what you did. Correct? You confirmed; you gave a second
opinion; and you said this is inclusive of a significant occupational
exposure to silica dust, physical exam, and the chest radiograph,
the diagnosis of silicosis is established within a reasonable degree
of medical certainty.
DR. MARTINDALE. Ms. DeGette--
MS. DEGETTE. It does not say anything about Dr. Harron.
DR. MARTINDALE. Ms. DeGette, I was told that this was a
paragraph. I was told it was from attorneys that they needed for
better legal wording, legalese, to link my chest X-ray findings with
the diagnosis. But I never was told, I never was aware, that I was
would be changing my role from a B reader, which I had already
agreed to the diagnosing physician. It was never discussed ever
and I would--
MS. DEGETTE. Well, let me ask you this. Do you think this
language is consistent with a B reader now? Now do you think
that?
DR. MARTINDALE. I think that in retrospect, I can understand
how you can read that and have a different perspective on it than I
did. And if I had my choice, I would not word it the same way
today.
MS. DEGETTE. Well, I bet that is true.
DR. MARTINDALE. All I can do is emphasize that I did not
have that perspective or that intent at the time that I reviewed it.
MS. DEGETTE. Now did you ever, on these 3,617 reviews that
you did, find a finding that was inconsistent with Dr. Harron's
diagnosis?
DR. MARTINDALE. Yes.
MS. DEGETTE. How many times?
DR. MARTINDALE. I could estimate it would be a guess.
MS. DEGETTE. Okay.
DR. MARTINDALE. Maybe over 400 probably.
MS. DEGETTE. Okay, over 400. And you sent those back to
Mr. Mason as well?
DR. MARTINDALE. Yes.
MS. DEGETTE. Now, Mr. Mason, let me ask you this: Dr.
Harron was hired by you. Is that correct?
MR. MASON. Yes, ma'am.
MS. DEGETTE. And did Dr. Harron perform actual physicals
on all of these patients?
MR. MASON. Not on all of them, no, ma'am.
MS. DEGETTE. How many of the patients did he perform
physicians on?
MR. MASON. I am sorry from my end, from the MDL,
standpoint I would not know.
MS. DEGETTE. Okay. So basically what happened is the
lawyers hired you to have a diagnosis made. Correct? Did the
lawyers give you the names of the patients?
MR. MASON. No, ma'am. I mean there is--
MS. DEGETTE. Tell me how it worked.
MR. MASON. There is numbers of different events that we are
talking about. Sometimes it would not be on our part at all for a
doctor to make a diagnosis, it would just be our portion to come
there and do our chest X-rays. The lawyers had their chest X-rays
and they were diagnosed by--
MS. DEGETTE. No, yes, I am talking about these cases, the
silicosis cases.
MR. MASON. So am I.
MS. DEGETTE. Okay. So sometimes they came from all
different sources?
MR. MASON. Yes, ma'am.
MS. DEGETTE. Okay. And then you sent them to Dr. Harron?
MR. MASON. No, ma'am.
MS. DEGETTE. Okay.
MR. MASON. I mean again, there are numbers of different
ways that different law firms that we had agreed with different law
firms. I mean if we just did a chest X-ray on someone, we sent it
to the law firm. The law firm picked whatever doctor they wanted
to use and I do not know that that was Dr. Harron that they used
for that.
MS. DEGETTE. So you would have no idea if once you got
these results back from Dr. Harron, Dr. Martindale--
MR. MASON. We did not get the results.
MS. DEGETTE. Let me finish my question,
MR. MASON. I am sorry.
MS. DEGETTE. Oh, you did not get the results? Where did the
results go, directly to the lawyers?
MR. MASON. Yes, ma'am.
MS. DEGETTE. So when Dr. Martindale did his little
certification, when he reviewed the X-rays and did his
certifications, he did not send that information back to you?
MR. MASON. Okay, that is a totally different subject we are
talking about now; that is a different scenario. If we were using
Dr. Martindale, then the X-rays came from me. But in other
lawyer situations, Dr. Martindale was not used in those situations,
so that--
MS. DEGETTE. Well I am talking about in Dr. Martindale's
situation.
MR. MASON. Okay. In Dr. Martindale's situation, you asked
me. What you are trying to get from me?
MS. DEGETTE. Yes. You hired Dr. Martindale to review Dr.
Harron's findings. Correct?
MR. MASON. Right, yes, ma'am.
MS. DEGETTE. He then filled out the certification. He sent it
back to you. Correct?
MR. MASON. Yes, ma'am.
MS. DEGETTE. And you sent it to the lawyers. Correct?
MR. MASON. Yes, ma'am.
MS. DEGETTE. You would have no idea if those results, or Dr.
Harron's results, ever made it to the patient. Is that correct?
MR. MASON. The only thing that I would know about the
patients would be if Dr. Martindale said that he had possible
cancer, we would send them a certified letter in the mail, and let
them know immediately when we got the results back.
MS. DEGETTE. What if it said as they all, as 3,600 and some
said that they had a diagnosis of silicosis? Did you send the
patient a certified letter at that point?
MR. MASON. We did not have to. Dr. Harron had told them
the same day that we were there that they had silicosis. There was
no delay.
MS. DEGETTE. And did you see Dr. Harron tell them that?
MR. MASON. No, ma'am. I mean that was not my job.
MS. DEGETTE. Right.
MR. MASON. But I mean we told them the same day, because
we had to tell them that they had something so that they would go
to the lawyers.
MS. DEGETTE. Mr. Chairman, I have a lot more questions, but
we have got a vote on. You have been very generous.
MR. WHITFIELD. Well, we do have a series of votes, so we are
not going to be coming back, but I wanted to just ask a couple
more questions.
Mr. Mason what percent of your revenue was generated from
doing work for law firms?
MR. MASON. Ninety-nine percent.
MR. WHITFIELD. So basically that was your business, doing
for law firms?
MR. MASON. Yes, sir.
MR. WHITFIELD. And there was not anyone in your business
that had any legal training, per se. You did not have legal training?
MR. MASON. No, sir.
MR. WHITFIELD. Referring to the case in Texas before Judge
Jack--I think there was the law firm of Campbell Cherry--there was
the Quinn firm involved in that as well. In those cases, did they
contact you, and did you ever have any law firms contact you and
say we want you. We want to give you information regarding
people who have, or who are diagnosed with asbestosis, and we
want to see now if they have silicosis?
MR. MASON. Yes, sir.
MR. WHITFIELD. Which law firms were those?
MR. MASON. Campbell Cherry sent us their inventory. They
sent out a letter to their entire inventory with our 800-number on it,
and asked us if we would ask the clients that they had if they ever
had exposure to silica as well.
MR. WHITFIELD. Okay.
MR. MASON. And that is what we did.
MR. WHITFIELD. So these were people that they had already
recovered money for asbestosis.
MR. MASON. I really do not know. I just know that they sent
us an inventory.
MR. WHITFIELD. Now were you aware that it is extremely rare
that someone would have both of these diseases?
MR. MASON. I had no knowledge of that.
MR. WHITFIELD. Okay. That was not of interest to you. But
when you contracted with the Cherry firm, the O'Quinn firm, you
were reimbursed only for positives or for positives and negatives
from those two firms?
MR. MASON. I was on the O'Quinn side; we were paid for
every client.
MR. WHITFIELD. Every client?
MR. MASON. In most instances because of the fact that they
started with the chest X-ray, and we got paid for every chest X-ray.
MR. WHITFIELD. Okay.
MR. MASON. They got their results.
MR. WHITFIELD. Okay.
MR. MASON. Then we come back and did their breathing tests
and their physicals, and we got paid for every one of those. So
from the O'Quinn side on the majority end of it, we got paid for
everybody the same fee whether they were positive or negative.
We did not know whether they were positive or negative. From
the Campbell end of it, you only got paid for the people that were
positive.
MR. WHITFIELD. Okay. And did both firms tell you which
doctor to use as your primary physician?
MR. MASON. No, sir, they never told us which one to use, but
they always wanted to approve the doctor that you were using.
MR. WHITFIELD. So you would select the doctor?
MR. MASON. I would find a doctor that met their qualifications
and they would approve whatever doctor they wanted me to use.
MR. WHITFIELD. And what were the qualifications on the
Campbell firm or the Cherry firm and the O'Quinn firm?
MR. MASON. Just about every firm had the same qualification
basically. You had to be a NIOSH B reader. That was basically
the thing. There was not very many so it was--
MR. WHITFIELD. So just like Mr. Martindale here; he is a
NIOSH B reader, but he does not do diagnosis per se. How were
you introduced to Dr. Harron?
MR. MASON. Dr. Harron worked for another testing group
which I was affiliated with before I owned the testing group that I
am with now.
MR. WHITFIELD. And so he had good reviews from them and
so you asked him if he would do some diagnosing for you?
MR. MASON. Yes, sir. Dr. Harron had a very good reputation.
MR. WHITFIELD. In what way?
MR. MASON. Just in the business period.
MR. WHITFIELD. In what business?
MR. MASON. In the business of asbestos.
MR. WHITFIELD. A good reputation in what way?
MR. MASON. I mean just as far as the people go. As far as he
had a reputation as far as nobody had a problem with him being
your B reader.
MR. WHITFIELD. Among what groups of people?
MR. MASON. Any.
MR. WHITFIELD. And then you said 99 percent of your
revenues came from law firms so are we talking about he had a
good reputation with law firms?
MR. MASON. No, I am talking about in general. I mean I did
not work with people I did not think had a good reputation just as a
good person. We are not talking about--
MR. WHITFIELD. But obviously the law firms were paying
you. Correct?
MR. MASON. Sure.
MR. WHITFIELD. And so I am assuming that if they did not
feel comfortable with him, then, they would have probably have
said something to you about that.
MR. MASON. I will say again the lawyers had to approve every
doctor that you use.
MR. WHITFIELD. Okay, okay, okay, well yes, Mr. Stupak.
MR. STUPAK. Let me make because this is going to bother me.
The only public health aspect I have heard in this hearing is
notification of patients after these X-rays. Dr. Martindale, you
indicated there were about 400 patients you saw negative readings
on?
DR. MARTINDALE. Yes, sir.
MR. STUPAK. But they were referred to as being a positive
reading. Correct? When you had to do the read they were
indicated that--
DR. MARTINDALE. Yes, they had been read previously as
positive, yes.
MR. STUPAK. As positive. Who would have notified those
patients in that in fact that your reading was negative?
DR. MARTINDALE. I assume Mr. Mason. That is where the
reports went back to.
MR. STUPAK. Would you have done that then Mr. Mason,
reported to those 400 or would they go back to the law firms?
MR. MASON. No, we would not.
MR. STUPAK. And so if anyone did it, would it have been the
law firms?
MR. MASON. Yes, sir.
MR. STUPAK. And we do not know to this day if those people
were ever notified that after being told they were positive that they
are now negative?
MR. MASON. No, sir, we would not know that.
MR. STUPAK. Nothing further.
Thank you, Mr. Chairman, we have got limited time before we
have to go vote here.
MR. WHITFIELD. All right, Dr. Martindale, do you know the
criteria for diagnosing silicosis?
DR. MARTINDALE. The clinical criteria for diagnosing?
MR. WHITFIELD. Yes.
DR. MARTINDALE. No, sir, and I was very forthright in my
deposition that as saying that I did not think I needed to in support
of my--
MR. WHITFIELD. Did you tell Mr. Mason that when he retained
you?
MR. MASON. I never felt like I was being placed in the
position of diagnosing asbestosis or silicosis. I was only doing
what I had been certified by NIOSH to do.
MR. WHITFIELD. So Mr. Mason, what did you think Dr.
Martindale was doing? Was he diagnosing? You hired him; what
was he doing?
MR. MASON. In the silica aspect or the asbestos aspect?
MR. WHITFIELD. The silica aspect.
MR. MASON. In the silica aspect, once I contacted Dr.
Martindale to review the diagnosing paragraph, is what we called
it, we assumed that he was diagnosing those people.
MR. WHITFIELD. So you assumed he was diagnosing, and he
was assuming he was not diagnosing?
MR. MASON. Apparently, yes, sir.
MR. WHITFIELD. Did you ever talk to him about that or--
MR. MASON. I did not feel as I needed to. He reviewed the
paragraph, and he okayed the paragraph.
MR. WHITFIELD. Okay. Well, that concludes this hearing. We
have a number of votes. I want to thank all of you for being here.
We will keep the record open for an appropriate number of days
for any additional exhibits or information in our opening
statements. In addition to that, we will, may very well be back in
contact with some of you for additional information but thank you
for being here today and thank you for your presence and this
hearing is adjourned.
[Whereupon, at 6:09 p.m., the Subcommittee was adjourned.]
RESPONSE FOR THE RECORD OF GEORGE MARTINDALE, M.D.
RESPONSE FOR THE RECORD OF HEATH MASON, CO-OWNER AND
OPERATOR, N&M, INC.
THE SILICOSIS STORY: MASS TORT SCREENING AND THE PUBLIC HEALTH
FRIDAY, MARCH 31, 2006
HOUSE OF REPRESENTATIVES,
COMMITTEE ON ENERGY AND COMMERCE,
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:07 a.m., in
Room 2123 of the Rayburn House Office Building, Hon. Ed
Whitfield [Chairman] presiding.
Members present: Representatives Whitfield, Ferguson,
Burgess, Blackburn, Barton (ex officio), Stupak, and Inslee.
Staff Present: Mark Paoletta, Chief Counsel for Oversight and
Investigations; Alan Slobodin, Deputy Chief Counsel for Oversight
and Investigations; Anthony Cooke, Counsel; Peter Spencer,
Professional Staff Member; Michael Abraham, Legislative Clerk;
David Nelson, Minority Investigator and Economist; Jessica
McNiece, Minority Research Analyst; and Jonathan Brater,
Minority Staff Assistant.
MR. WHITFIELD. I will call this hearing to order.
This is an ongoing hearing regarding the Silicosis Story: Mass
Tort Screening and the Public Health.
This morning, we convene the second day of hearings on the
important public issues raised by the practice of mass tort
screening. Today we have with us representatives from two law
firms that have refused to respond to our requests for records and
information on furtherance of this important investigation. These
firms are the law offices of Jim Zadeh of Forth Worth, Texas, and
the Williams Bailey Law Firm of Houston, Texas.
Fortunately, of the 13 law firms to which we have sent requests
letters, these two have been the only ones so far that have refused
to respond and cooperate with the investigation. This hearing
today, among other things, will emphasize how serious the
committee takes this investigation. What is more, this hearing
demonstrates the resolve of the committee to protect its
prerogatives to investigate fully the matters in its jurisdiction.
Accordingly, I would like to thank certainly the Chairman of
the full committee, Mr. Joe Barton, our colleagues in the Minority,
particularly John Dingell and Mr. Stupak, for their support. We all
share this common ground on matters of Congress's rights and
fundamental obligations to investigate, ask questions, and gather
evidence to inform our legislative considerations.
Let me start today by giving at least one example of why we
sent letters to law firms in this investigation. Last week,
Republican and Democratic committee staff had the opportunity to
speak with some plaintiffs in the silicosis lawsuits at issue here.
Now, while none of the plaintiffs we spoke to were represented by
the two firms appearing before us today, their stories plainly
demonstrate one of the particularly troubling aspects of the
silicosis class action process. The first is the story of a 72-year-old
man from Mississippi who was a plaintiff in the Federal lawsuit in
Texas. This man became involved in the legal process after
responding to a newspaper advertisement, and also one he saw on
television, and he reported to a local hotel to receive a chest X-ray.
According to this man, he was first diagnosed with asbestosis
by Dr. Ray Harron, and then at a later time, received a letter from a
lawyer telling him he also had silicosis. And we know that it is
extremely rare that anyone would have both asbestosis and
silicosis. But the diagnosing doctor for the silicosis also was the
same doctor, Dr. Ray Harron.
Now, I would remind you that Dr. Ray Harron appeared before
this committee several weeks ago; and when asked whether his
silicosis diagnoses were accurate and made pursuant to all medical
practices standards and ethics, he took the Fifth Amendment,
protection against self-incrimination. And then the Mississippi
man recalled that the letter from the lawyer informing him that he
had silicosis included no information about the illness or where he
might find treatment or any offer of assistance.
Is this the practice of your law firm as well? And I might say
that this 72-year-old man's story gets worse, because at the time
our staff spoke to him last week, he did not know that there was
any question about his diagnosis of silicosis. If on March 8, Dr.
Harron pled the Fifth Amendment when asked about that
diagnosis, why has this 72-year-old man not been informed of it?
Why is he still living in fear of this disease? And what is more, let
us not forget that this man also believes he has asbestosis based on
the diagnosis from the same doctor.
Now, we want further investigation to fully understand the
information given to us in these brief interviews with the plaintiffs
I mentioned today. These stories are the reasons we have included
law firms in this inquiry, because we want to find out the process
that is being used in manufacturing these lawsuits. Our
investigation must know all sides, or we are left with a remarkably
troubling picture.
For example, we would like to know from Mr. Zadeh and the
Williams Bailey Law Firm how they treat matters of diagnosis in
their firms? How do they identify potential claimants in their law
firms? How are medical patients and the public health protected in
their law firm?
But among the most troubling aspects of this whole
investigation has been the degree to which it appears that lawyers
seem to manufacture the class action lawsuits. The lawyers find
the doctors, the lawyers find the patients, the lawyers act as
intermediaries in coordinating diagnosis and presentation of vital
health information to clients.
You might ask then, who are the doctors? Some have
suggested to us that doctors do not even regard the work that they
do for these lawyers as the practice of medicine.
Now, turning to the matter that sparked this inquiry, the Texas
multi-district litigation. The disturbing conduct of the doctors and
lawyers is shown in very stark terms. Mr. Zadeh, for example,
who appears today before this committee, represented to the
Federal court in this case that a doctor, Richard Levine, was the
doctor that diagnosed many of his clients with the disease of
silicosis. The positive diagnosis of that physician was the reason
his client appeared before the court seeking relief. Our staff talked
to Dr. Levine and his lawyer, and we have an e-mail and we will
speak with Mr. Zadeh about this from an attorney for Dr. Levine,
which seems to suggest that Dr. Levine never intended his
diagnosis, or his work, to be treated as a diagnosis. In fact, he said,
I didn't diagnose anyone.
You might recall that this was the same testimony of Dr.
George Martindale, who claims he never diagnosed anyone with
silicosis. Indeed, he did not know the criteria for diagnosing
silicosis, and yet was represented to the Federal court as being the
diagnosing doctor for thousands of plaintiffs in the action.
What were these doctors actually doing? How were these
lawyers representing the work of these doctors to the court and,
more importantly, to their clients? That is at the heart of this
investigation, and the reason we have asked the attorneys involved
in the "In Re: Silica" MDL, to give us information and records to
get a clear understanding of the way this process works. That,
gentlemen, is why you are here today, and that is the kind of
information that we are seeking from you.
At this time, I recognize the gentleman from Michigan, Mr.
Stupak.
[The prepared statement of Hon. Ed Whitfield follows:]
PREPARED STATEMENT OF THE HON. ED WHITFIELD, CHAIRMAN,
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
This morning we convene the second day of hearings on the
important public health issues raised by the practice of mass tort
screening.
Today we have with us representatives from two law firms that
have refused to respond to our requests for records and information
in furtherance of this important investigation. These firms are the
Law Offices of Jim Zedah, of Fort Worth, Texas, and the Williams
Bailey Firm, of Houston, Texas. Fortunately, of the 13 law firms
to which we sent such request letters, these two have been the only
ones, so far, that have refused to respond and cooperate with this
investigation.
This hearing today, among other things, will emphasize how
serious this Committee takes this investigation. What is more, this
hearing demonstrates the resolve of this Committee to protect its
prerogatives to investigate fully the matters in its jurisdiction.
Accordingly, I would like to thank my colleagues in the Minority,
particularly Mr. Dingell and Mr. Stupak, for their support and
guidance on such matters. While we may have different
perspectives on some matters of policy - I believe we share broad
common ground on matters of Congress's rights and fundamental
obligations to investigate, ask questions, and gather evidence to
inform our legislative considerations.
Let me start today by giving a couple examples of why we sent
letters to law firms in this investigation.
Last week, Republican and Democratic Committee staff had
the opportunity to speak with some plaintiffs in the silicosis law
suits at issue here. While none of the plaintiffs we spoke with
were represented by the two firms appearing before us today, their
stories plainly demonstrate the reasons for this inquiry - in very
stark and troubling terms.
The first is the story of a 72 year-old man from Mississippi
who was a plaintiff in the federal lawsuit in Texas. This man
became involved in this legal process after responding to an
advertisement he saw on television and reporting to a local hotel to
receive a chest X-ray. According to this man, he was first
diagnosed with asbestosis by Dr. Ray Harron and, then at some
time later, received a letter from a lawyer telling him he also had
silicosis. The diagnosing doctor again - Ray Harron. Now recall
that Dr. Ray Harron appeared before this Committee several weeks
ago and, when asked whether his silicosis diagnoses were accurate
and made pursuant to all medical practices, standards and ethics -
he took advantage of his Fifth Amendment protections against self-
incrimination.
The Mississippi man recalled that the letter from the lawyer
informing him that he had silicosis, included no specific
information about the illnesses or where he might find treatment in
his area. I want to ask Mr. Zedah and Mr. Fabry today: Why
would this man learn about a diagnosis of a potentially deadly
disease from a lawyer? Is this the practice of your firms as well?
But this 72 year-old man's story gets worse: as of the time our staff
spoke to him last week, he did not know that there was any
question about his diagnosis of silicosis. If on March 8, Dr.
Harron pled the Fifth Amendment when asked about his silicosis
diagnoses - why has this 72 year-old man been living in fear of
having this disease? What is more, let us not forget that this man
also believes he has asbestosis based on a diagnosis from Dr.
Harron.
And as another example, consider the story of a 54 year-old
sandblaster from Mississippi who was told in a letter from a lawyer
several years ago that he had a diagnosis of silicosis. Again, from
Dr. Ray Harron. And again, the lawyer offered no information
about the disease or even doctors in his area where he might seek
treatment. Not surprisingly, this man had also been told some time
earlier that he also had asbestosis (again thanks to Dr. Harron).
This Mississippi man has never sought treatment for either of these
diseases. Perhaps it's a good thing that he has not received any
additional medical procedures for his silicosis because he says he
has recently received another letter telling him that there was now
a question about his diagnosis and that he should follow up with
his doctor. But, unfortunately, this 54 year-old laborer does not
have a doctor or the money to pay for follow-up. The lawyers
were apparently ready with a free exam and diagnosis in the first
instance, when there was a potential lawsuit to be made.
I think this man has a right to ask: where are the lawyers now?
The lawyers told him in a letter that a doctor diagnosed him with a
potentially deadly disease but now these lawyers seem to have
abandoned him. I would point out that this is why, in the real
world of medicine, doctors - not lawyers - give diagnoses. And
finally, again, I would ask what should this man know about the
asbestosis diagnosis he had also received from Dr. Ray Harron?
Among the information uncovered in the course of our inquiry,
these stories present the human face, and perhaps human tragedy,
of the matters we are addressing. Further investigation is needed
to understand fully the information given to us in the brief
interviews with the plaintiffs I mention today. These stories are
the reason we have included law firms in this inquiry. These
stories are the reason we will not accept dismissive refusals by
these parties to answer questions. Our investigation must know all
sides or we are left with a remarkably troubling picture. For
example, I would like to know from Mr. Zedah and the Williams
Bailey firm how they treat matters of diagnoses in their firms.
How do they identify potential claimants? How are medicine,
patients, and the public health protected?
To Mr. Zedah, Mr. Fabry, and all the people at your respective
firms, this is why we sent you and 11 other law firms letters on
February 17. I hope today you can help us better understand what
is happening here. I look forward to your testimony.
MR. STUPAK. Mr. Chairman, once again, the Democrats are
called upon to support you and our Majority colleagues in
protecting the integrity of the investigatory process of the
subcommittee. The witnesses subpoenaed before this
subcommittee today have challenged the committee by
withholding their cooperation. The Democratic leadership of this
committee believe that it is completely proper to force subpoenas
to have been issued in this instance. When defending the
committee's prerogatives, you have our support.
However, Mr. Chairman, we believe that the prerogatives
should be defended whenever they are challenged. If we are
subpoenaing a witness because they defy our request for
documents and testimony being necessary to carry out our
oversight responsibilities, then all persons that defy the
committee's legitimate request should be compelled to respond.
I raise again the behavior of Rosemary Williams, the general
manager of Mountaineer Racetrack. Last November, she testified
before this subcommittee. I believe that she clearly gave
misleading testimony. Further, I believe her response to certain of
our written follow-up questions were equally disingenuous. Her
counsel has informed us that she will not extend any further
voluntary cooperation to this committee. Yet another case is the
apparent willful withholding of documents responsive to a
committee subpoena by Wayne Gertmenian, the former self-styled
CEO of the Jockeys Guild.
The new management is cooperating fully with the documents
subpoenaed to the Guild itself; however, Mr. Gertmenian remains
in defiance of this subcommittee's subpoenas of documents
relating to his personal consulting firm Matrix Capital.
As you know, the Secretary of Health and Human Services has
been withholding documents critical in the investigation into major
misbehavior at one of the National Institutes of Health. Mr.
Dingell and I joined you and Chairman Barton requesting
information regarding this matter last June. While just this week,
it appears that sufficient documents may have been produced to
allow our inquiry to proceed, the Department is still obstructing
our inquiry regarding employee interviews. Contrary to an
agreement reached by the Department and the Majority two years
ago, HHS is insisting on sitting in with at least one key witness.
Mr. Chairman, we understand responsibilities of the Chair, and
the Chair should, could and, can, and that title permits you a great
deal of latitude in deciding how to protect the integrity of our
process. However, we Democrats supported you in the inquiries
into the problems at NIH and the very serious problems
surrounding the health care for the jockeys and exercise riders at
race tracks. We merely ask that you approach the defiance we
have encountered at HHS and Mountaineer with the same
determination you have shown in the silicosis matter.
Finally, as I said in my statement at the first silicosis hearing
earlier this month, I believe that the problems identified in these
silicosis hearings are best addressed by the courts. The courts have
the power and it has been exercised in this case to remedy any
misrepresentations made in the courtroom. States can and should
investigate improper legal conduct and take appropriate action
when improper conduct is found, for it is the State who licenses
these professionals, not the United States Congress.
Mr. Chairman, with all due respect, you mentioned the
lawyers. I would submit lawyers are doing their job, even if you
may not agree with how the lawyers did their job. And I would,
once again, remind this subcommittee that for the last 5 years, we
have been trying to do further follow-up work on Accutane, which
we have had 250 more suicides since our last -- initial inquiry, I
should say. That is one a week, and yet we continue to do nothing
about it.
So what I am asking for, we are willing to stand with you and
protect the integrity and the investigative process of this
committee, but if we are going to do this, then we have to do it
evenhandedly for all matters that come before this committee.
And, with that, I would yield back the balance of my time.
MR. WHITFIELD. Thank you, Mr. Stupak. And at this time, I
recognize the Chairman of the full committee, Mr. Barton of
Texas.
CHAIRMAN BARTON. Thank you, Mr. Chairman. Are Mr.
Zadeh and Mr. Fabry in the room? Which one is Mr. Zadeh? And
who is Mr. Fabry? Thank you. You all can sit down. You didn't
have to stand up.
I want you all to listen to this before we get started, because we
might, or we can, save everybody a lot of trouble.
This hearing today in the subcommittee is very similar to a
situation that we had 8 years ago when I was subcommittee
Chairman. The situation then dealt with a real estate project in
Washington called the Portals, and there was a disagreement about
the means used to get the contract with the Government, the FCC,
for that project.
Your counsel, Mr. Stan Brand, represented a gentleman named
Franklin Haney, and your counsel counseled Mr. Haney to defy
subpoena of this subcommittee, and Mr. Haney did. And he did
until we were preparing to take the contempt citation to the floor of
the House, and Mr. Haney did finally comply with the document
request. The Minority then strongly disagreed with the policies
and the reasons for the investigation, but they supported the
Majority in the procedure to get the documents and to get the
information.
Now, we may have a similar situation here. I don't know yet
whether the Minority disagrees with the policy implications, but I
do know that the Minority agrees with the Majority about the
procedures. And that is what this hearing today is about, is the
procedures.
I want to read a statement that was made back in 1998 by a
member of the subcommittee, Chris Cox, who is now the
Chairman of the Securities and Exchange Commission. This is
what Mr. Cox had to say then. I quote: "Having myself sat
through the last meeting of the subcommittee and listening to Mr.
Haney's lawyer talk, Mr. Stan Brand, it is very clear to me, at least,
that the purpose of the legal approach that he is taking is to delay
and to stall and to obstruct. The legal arguments that have been
raised against producing lawfully requested documents are
extraordinarily specious, and it was made plain to the committee
that if Mr. Brand could think of a stratagem to avoid production, he
would use it."
Mr. Brand lost that fight. And if he encourages you two
gentlemen to take the same kind of a fight today, he and you are
going to lose today. It is that simple.
I don't know what your law firms have to gain by this strategy.
We had 13 law firms that we subpoenaed documents from; 11 of
them have complied, and most of those had much more
involvement in the case than the plaintiffs that you represent today.
We have got the cameras here, we have got the microphones here,
you are about to be sworn in and give testimony under oath.
You will answer the questions of the committee today, or you
are going to return next week on April the 4th at 4:00 p.m. at
another hearing that we have already scheduled just for you two to
consider a motion to hold you in contempt of Congress. I don't see
any sense in that. I think you ought to cooperate today, whatever
the documents are, whatever the facts are, you know, put them on
the table, and then we will have an honest policy debate and
investigation about where those facts lead us.
It is kind of strange to me to even be having this type of a
hearing because you are both attorneys, and I think I am correct
that you are both attorneys from the same State that I live in, the
great State of Texas. I think you have got one final opportunity to
cooperate with the committee in our investigation. Any challenges
to the prerogatives of this committee and the Congress will be met
with decisive action. Your counsel today seems to specialize in
enjoying putting his clients on the brink of contempt. I don't know
why that is, but I can tell you this: The Energy and Commerce
Committee, for over 200 years, has always won the procedural
battle to get documents that it requests in these types of
investigations, and it is going to win this one. So you can do it the
easy way or the hard way. It is up to you folks.
You have got full rights under the Constitution to use all the
privileges that the Constitution confers on citizens of the United
States of America, but that does not mean that you can hold
yourself above the Congress of the United States when we are
conducting an investigation.
With that, I yield back.
[The prepared statement of Hon. Joe Barton follows:]
PREPARED STATEMENT OF THE HON. JOE BARTON, CHAIRMAN,
COMMITTEE ON ENERGY AND COMMERCE
Thank you, Chairman Whitfield - and thank you for holding
this second day of hearings on the public health implications of
mass tort screenings.
On February 17, 2006, I joined Mr. Whitfield on a letter to 13
law firms involved in the federal silicosis matter in Corpus
Christi, Texas seeking important records and information for our
investigation. These 13 letters are in addition to more than 40
other letters to doctors, screening companies, State regulators and
State medical boards gathering other relevant material. A total of
55 requests for information have been sent since August 2, 2005
pursuant to this investigation, and only two groups have refused
to respond and cooperate. The first consisted of the three doctors
who appeared before the Committee recently and asserted their
5th Amendment rights against self-incrimination. The second
group of reluctant witnesses comes before us today: the Houston,
Texas law firm of Williams Bailey; and the Fort Worth, Texas,
law firm of Jim Zedah.
Response to a letter sent by this Committee is voluntary.
Parties have the right to say no, but sometimes they have a
responsibility to say yes. In this case we are investigating the
mass diagnoses of men and women who are said to be suffering
from a potentially lethal and largely incurable disease, with little
apparent care for their medical well-being by the doctors,
screening companies and lawyers who said they were sick. The
doctors, screeners and lawyers only concern seems to have been
achieving the high profit that a positive diagnosis might generate.
An honest diagnosis of silicosis is a matter of life and death, not
profit and loss. And we, the Committee on Energy and
Commerce, have an obvious responsibility not to take "No" for
an answer from people who don't seem to recognize the
difference. Such is the case today, and the law firms of Williams
Bailey and Jim Zedah do not appear here willingly or happy to
explain themselves, but under subpoena.
I have not heard anyone stand up to defend the callous
conduct of the doctors, screeners and lawyers that was explored
in the June 2005 opinion of Judge Janis Graham Jack. I expect
that the Williams Bailey and Zedah law firms don't think that it is
something worth a second thought, much less something
Congress should be investigating. I, however, am eager to hear
how Williams Bailey and the Zedah firm will defend and explain
the conduct at issue in the Judge Jack opinion.
All of us have been very disturbed by the way men and
woman were drawn into the silicosis lawsuits, and by the
consistent disregard for them as fellow human beings. I hope to
learn more today about why and how that happened, and I
promise that our Committee will continue to pursue this matter
wherever it leads.
I look forward to the testimony and yield back the remainder
of my time.
MR. WHITFIELD. Thank you, Mr. Chairman. And at this time,
I recognize the gentleman from Washington, Mr. Inslee.
MR. INSLEE. I think that there is strong bipartisan support for
supporting the ability of Congress to conduct investigations and
oversight, and we think it is a very, very important part of
American democracy, and I think you will see that exhibited today
in this committee. But I want to say something that is parallel to
that, and that is that the U.S. Congress has done a pathetic,
ineffective, incompetent job of its oversight responsibilities of
some other things going on in this country, including massive
abuses of democracy by the Executive Branch of the United States.
We are here arguing about this subpoena, and it will be
supported today on a bipartisan basis; but at the same time, we
have had a total lack of oversight over the Executive Branch,
including the Executive Branch that started a war based on
information that turned out to be false. And yesterday, I was
reading about a memo that was apparently given to the President
advising him that the aluminum tubes that he based a war on, in
fact, were meant for conventional weapons, not for atomic
weapons, and he didn't tell us the truth about this according to the
information.
We ought to issue some subpoenas to those folks. We ought to
be talking on a bipartisan basis about having subpoenas for Mr.
Rove to come down here and explain to us what information was
given to the President of the United States before this war started,
about whether, in fact, he leveled with us about the intelligence
information that has led to the death of 2,500 people. And then let
us have some bipartisan support for the investigatory and oversight
authority of the Congress of the United States.
And I say this because I think it is important for Congress to be
an effective member of checks and balances in this society, and we
are not doing it right now. So I want to speak forcefully for the
ability of Congress to be an effective investigatory group. We are
going to do this today; I wish we would do it tomorrow involving
the Executive Branch of the United States.
I do want to ask one question, Mr. Chairman, if I can, a
procedural issue.
MR. WHITFIELD. Yes, sir.
MR. INSLEE. Do we have some mechanism for protecting the
attorney/client privilege in this situation? Is there any possibility?
I don't think we should intrude on attorney/client privilege
information. Will that be protected in some sense?
MR. WHITFIELD. Well, I feel quite confident that that will be
protected. Both witnesses today are also represented by legal
counsel, and can certainly invoke any legal objections that they
may have.
MR. INSLEE. But I am referring to the relationship between the
lawyer, the law firm, and their client of that information. Will that
be subject to an attorney/client protection?
MR. WHITFIELD. Yes, it will.
MR. INSLEE. Thank you. I appreciate that. I want to yield to
Mr. Stupak.
MR. STUPAK. I thank the gentleman for yielding. As I said in
my opening, we will stand with you on the process and procedure,
but I feel compelled to say a few things about the Portals case
because I painfully sat through those hearings for some time,
myself, and Mr. Klink. And true, Mr. Haney was a witness and
true, Mr. Haney, we had to take a little extra effort to get him to
comply, but they did comply. Mr. Haney's attorney actually, I
thought, did a wonderful job for him as the whole so-called
investigation fizzled out, because the investigation was based not
on policy matters, it was based strictly on politics. In fact, if you
go back and look at the hearing, I probably referred to the hearings
as a kangaroo court, because it was based on politics, and not on
policy that affected this country.
There was a lot of publicity back then when the then-majority
put out the so-called smoking gun to infer then the Vice President,
Mr. Al Gore, had done something wrong. And when we had the
hearings, there never was a smoking gun. There was nothing there.
And when we put out things like that before a hearing, it certainly
turns a hearing that should be based on policy into politics.
So let's put the politics aside. Let's do the committee's
prerogative. These people are here, they have exercised all their
legal rights, and I expect them to fully utilize their legal rights
when they appear before this committee, and we should not cast
aspersions upon them because they may be exercising their legal
rights or they don't respond as soon as they want them to. That is
their right as Americans. We should respect it, we should protect
it. And let's move forward with the policy issues before this
committee. Thank you.
MR. WHITFIELD. Dr. Burgess, you are recognized for your
opening statement.
MR. BURGESS. Mr. Chairman, in the interest of time, I will
submit for the record but waive the opening statement.
MR. WHITFIELD. Mr. Ferguson, you are recognized.
MR. FERGUSON. Thank you, Mr. Chairman. I will also submit
for the record. But I will just note that I am fully supportive of
your comments, the comments of the full committee Chairman.
And the suggestion that this hearing may end up like some past
situation that may or may not have been characterized by some as a
kangaroo court I think does take away from the fact that these are
very serious questions that have been raised. The only reason that
we are having this hearing today is because we have not received
the cooperation that we have requested as others have cooperated
as they have been requested. And the reason that a hearing is
scheduled next week is to have some assurance that we will get the
cooperation that we have asked for today.
So we should not seek to -- we may or may not agree with the
substance of this case, and I am pleased that this is a bipartisan
effort to exercise the jurisdiction of this committee and the
subcommittee. But we should not for a second suggest that we
would be here today except for the fact that we were not getting
the cooperation that we have sought. And, with that, I would yield
back.
MR. WHITFIELD. Thank you. At this time the gentlelady from
Tennessee, Ms. Blackburn, is recognized.
MRS. BLACKBURN. I will submit mine for the record. Thank
you, Mr. Chairman.
[Additional statements received for the record follow:]
PREPARED STATEMENT OF HON. CLIFF STEARNS, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Thank you Chairman Whitfield for holding this hearing and
shining a light on the unscrupulous practices perpetuated by some
rogue physicians and medical screening companies. It imperative
that we gather all the information on these practices in order to
craft oversight procedures to ensure that patients undergoing
medical screenings get accurate diagnoses, and it is our duty as
members of the Oversight and Investigations subcommittee to
exercise our mandate to protect the public's interests.
I was appalled by the information we learned in the hearing we
held on this issue on March 7th. Thanks to the diligent efforts of
Judge Janis Graham Jack, medical evidence gathered by these
dubious screening companies was discovered lacking in any
medical basis of reliability. For the 10,000 plaintiffs involved in
the "In Re: Silica" matter, only 12 doctors were responsible for
almost all of the silicosis diagnoses. In almost every case, none of
these doctors treated, met, or physically examined the patients.
While these 12 doctors made all 10,000 silicosis diagnoses
involved in the case, there were some 8,000 treating doctors
involved in the actual treatment of the patients, who subsequently
did not see this disease! Dr. Martindale conducted all 3,617 of his
reviews in 48 days, averaging 75 reports per day. To put this rate
into context, one doctor, for a silicosis diagnosis in a single-
plaintiff lawsuit, apart from the Multi-District Litigation, took 17.6
hours on top of his assistant's 46 hours. Dr. Ray Harron, who was
involved in the diagnosis of approximately 6,350 plaintiffs in "In
Re: Silica," diagnosed more than 1,800 patients with silicosis
whom he had-coincidentally-- previously diagnosed with
asbestosis. Dr. Harron was also the diagnosing doctor for 53,724
of the 499,766 claims before the John Mansville asbestos trust, for
which there was physician information. He also provided
supporting medical reports in another 22,500 claims before the
trust. These examples barely scratch the surface of the
questionable nature of the diagnoses in this suit.
Today, our panel includes attorneys from two of the thirteen
law firms involved in the mass tort screenings that were employed
in the federal case of In Re: Silica Products Liability Litigation,
MDL Docket No. 1553 (S.D. Texas). In hopes of learning more
about the medical screening process involved in this case, the
committee has subpoenaed these firms to gather specific
information regarding the manner in which these firms identified
people as potential claimants in the silicosis lawsuits and how they
addressed clients' health matters. I hope that these witnesses will
join the other thirteen law firms in compliance with this request
and cooperate fully with this committee. Particularly, I will be
interested in hearing from the panel what role their firms played in
selecting the doctors who issued the diagnoses, and the criteria, if
any, they used in these diagnoses. I believe it will also be
enlightening to discuss what prior business relationship, if any,
existed between the law firms, the doctors and/or the screening
companies.
I look forward to hearing from the witnesses on these important
issues.
Thank you.
MR. WHITFIELD. Thank you. I think that concludes the
opening statements. So at this time I would call Mr. Zadeh and
Mr. Fabry to the witness stand, please.
Now, you gentlemen are aware that the committee is holding
an investigative hearing, and when doing so we do take testimony
under oath. Do you have any objection to testifying under oath
this morning?
MR. ZEDAH. No, sir.
MR. FABRY. No.
MR. WHITFIELD. The Chair would also advise you that, under
the rules of the House and the rules of the committee, you are
entitled to be advised by counsel about your constitutional rights.
Do you desire to be advised by counsel during your testimony
today?
MR. FABRY. Yes, I do.
MR. ZEDAH. Yes.
MR. WHITFIELD. In that case, Mr. Fabry, would you please
identify your legal counsel.
MR. FABRY. Mr. Brand.
MR. WHITFIELD. What is his full name?
MR. FABRY. Stan Brand.
MR. WHITFIELD. And which one is Mr. Brand? Thank you.
And Mr. Zadeh, who is your legal counsel?
MR. ZEDAH. Mr. Stan Brand.
MR. WHITFIELD. So both of you are represented by Mr.
Brand?
MR. ZEDAH. Yes.
MR. WHITFIELD. Okay. All right. Then if you two gentlemen
would stand up, I would like to swear you in.
[Witnesses sworn.]
MR. WHITFIELD. Thank you very much. Each of you are now
under oath, and if you have any opening statement that you would
like to give, I would recognize you for that purpose. Mr. Zedah.
MR. ZEDAH. None.
MR. WHITFIELD. Mr. Fabry.
MR. FABRY. No. But thank you for the opportunity.
MR. WHITFIELD. Okay. I would ask both of you, Mr. Zadeh
and Mr. Fabry, you were subpoenaed to come today with the
records from your respective firms as set forth in the attachment to
the March 23rd, 2006 subpoena. We were advised that the
subpoena issued to you would be applied to all the records in the
custody and control of your respective firms. Have you come
today with the records subpoenaed?
MR. ZEDAH. No, Your Honor -- no, Mr. Chairman, I have not.
We are in the process of gathering those records, though, and we
do intend on producing those records to the committee subject to
any privileges, such as the privilege that Mr. Inslee had brought
forward.
MR. WHITFIELD. Mr. Fabry?
MR. FABRY. For the record, it's pronounced Fabry. And I did
bring all the records that we were able to locate since receiving the
subpoena.
MR. WHITFIELD. You did bring all the records?
MR. FABRY. Yes, sir.
MR. WHITFIELD. And have you presented them to the -- you
all presented them? Okay.
I would say that the underlying record requests were
transmitted to your respective firms in our letter of February 17,
2006, a full 6 weeks ago. And you are in the process of gathering
all the material, and do you expect to deliver that by April the 4th,
Mr. Zadeh?
MR. ZEDAH. I don't know if we can do it by April 4th. It is a
very big project that you have all asked.
MR. WHITFIELD. Okay. Well, I want to thank you for
providing the information that you have provided, Mr. Fabry.
And, Mr. Zadeh, we look forward to getting your testimony. And I
would like to now go on and ask some specific questions to both of
you.
First of all, I would like to begin by asking you both a broad
question about the matters discussed by Judge Janice Graham Jack
in her June 2005 opinion.
Mr. Fabry, I understand the William Bailey firm joined the
Federal lawsuit late and was not specifically included in the
conduct described in the opinion, but I would still like for you to
comment. Can either of you direct me to any part of the Judge
Janice Graham Jack opinion that is wrong on its facts?
MR. FABRY. It is a very long opinion that covers a wide range
of issues. I would be very uncomfortable trying to discuss that off
the top of my head. I have read the opinion; I have not memorized
it. If there is a specific area of concern of the Chairman, I would
be happy to address that.
MR. WHITFIELD. But you have read the opinion. And was
there anything in the opinion that jumped out at you as being
wrong in any -- you know, you read opinions, legal opinions or
memos; and if there is something that is -- you have been involved
in this case, and you are quite familiar with all the procedures and
the facts of the case. Was there anything about the opinion that
jumped out to you glaringly that appeared to be wrong?
MR. FABRY. I don't have any personal information factually
about the issues addressed there. As you said, we were a
latecomer; our case was brought in late. In fact, the one case was
subject to a stay order while Judge Jack was conducting her
investigation. So from a perspective of personal knowledge,
factual information, I have no basis to comment one way or the
other.
MR. WHITFIELD. Okay.
Mr. Zadeh, I want to show you an e-mail exchange that you
had with an attorney representing Dr. Levine, and ask you to
comment on that, if you would. I think it is the second exhibit in
your binder. But on December 9, 2004, Dr. Levine's attorney
wrote to you and said: What is important for your plaintiffs is that
their diagnosis are not based on Dr. Levine's B reads; rather, that
the reads are merely an indicator that can only be verified by a full
examination conducted by and for the doctor who will testify.
It seems to me that, based on what his lawyer wrote here, Dr.
Levine did not intend to give a diagnosis to your clients. And we
do have a document from the court file in which it looks like that
Dr. Levine, in the Maxine Woods case, was listed as the
diagnosing physician for a number of those plaintiffs. I was
wondering if you would be able to explain that apparent conflict to
us.
MR. ZEDAH. Sure, Mr. Chairman. Dr. Levine is my B reader,
or one of my B readers. He goes ahead and looks at the X-rays and
gives an indication as to whether they are negative or whether they
are consistent with silicosis.
At that point, we then have the client go see another doctor for
a full pulmonary examination. That doctor then does the diagnosis
of silicosis.
In the situation of the MDL, we were told to put down the doctors
that had examined or had anything to do with silicosis with respect
to those plaintiffs, and we went ahead and put Maxine or put the
people in Maxine Woods down as doctors who had looked at X-
rays for that particular plaintiff.
MR. WHITFIELD. Now, is a B read a diagnosis?
MR. ZEDAH. I am not a physician; but my understanding is
that a B read is not a complete diagnosis, but a portion of the
diagnosis.
MR. WHITFIELD. But in this e-mail that you had sent to Bruce
Thrau on December 7, 2004, it says that Dr. Levine is listed as a
diagnosing physician on 12 of the plaintiffs.
MR. ZEDAH. He is a portion of the diagnosis. And so when
Judge Jack tells me to put down every doctor, I would err on the
side of putting the doctor in the disclosure as opposed to not,
because then it would look like I was hiding something.
MR. WHITFIELD. But the truth of the matter is that Dr. Levine
is not a diagnosing physician for this matter. Is that correct?
MR. ZEDAH. That is correct, Mr. Chairman.
MR. WHITFIELD. Now, in the State of Mississippi, your
original lawsuit, was it filed in Mississippi or was it another State?
MR. ZEDAH. It was filed in Washington County, Mississippi.
MR. WHITFIELD. In Mississippi. In Mississippi, is it true that a
B read alone does present a cause of action, a positive B read?
MR. ZEDAH. I think that is a matter of opinion right now. I
don't think that there is an answer. There is one side of the
argument that somebody who has a positive B read has some sort
of injury to their lung; and, because they have some sort of injury
to their lung, even though it is not considered to be silicosis, that is
considered to be a cause of action.
The other line of thought is that a B read alone is not enough to
constitute silicosis, and therefore it is not a cause of action. So
there is are two lines of thought on that.
MR. WHITFIELD. The plaintiffs that you represented, they
came to you through advertisements in the newspaper or radio, I
assume?
MR. ZEDAH. Are we talking about the plaintiffs in the MDL?
MR. WHITFIELD. Yes.
MR. ZEDAH. Okay. Those plaintiffs came to me, if I recall
correctly, from three sources. One source is word of mouth,
existing clients are referring clients to me; a second source would
be from referring attorneys, attorneys who have existing cases and
want me to handle those cases; and then the third would be through
advertisements.
MR. WHITFIELD. And what about your firm, Mr. Fabry?
MR. FABRY. Essentially the same. We get cases by referral, by
word of mouth, referral from other attorneys, referrals from prior
clients. I think very little from actually any advertising.
MR. WHITFIELD. Now, then would you refer clients to a
particular location for an X-ray? And is that what you would
normally do? Is that your normal practice?
MR. FABRY. It would depend on the individual, sir. Some
people call me specifically because they have had a diagnosis, and
it wouldn't require a further examination. Some people are
referred to me by an attorney who has already begun the process;
perhaps there is a B read that indicates silicosis. Another
possibility would be someone who is contacting me because they
have a long history of exposure and are concerned.
MR. WHITFIELD. And how many plaintiffs did you have in the
MDL lawsuit?
MR. FABRY. Five.
MR. WHITFIELD. And you had?
MR. ZEDAH. Approximately 20.
MR. WHITFIELD. 20. So compared to the other firms, you all
are relatively small firm compared to the thousands that were
involved. When a B read came back, did your firms have a policy
of paying the B readers, whether it was positive or negative? Did
you pay them just for their service, or did you pay only for positive
readings?
MR. FABRY. The payments were always for service provided.
It was not a contingent payment on results, if that's the question.
MR. ZEDAH. That's the same answer for me.
MR. WHITFIELD. So it is for the service, and it was not based
on a positive or negative reading, either one.
MR. FABRY. That's correct, sir.
MR. ZEDAH. That's correct, Mr. Chairman.
MR. WHITFIELD. Now, let me ask this question. Mr. Zadeh,
would you briefly describe your understanding of the status of the
MDL lawsuit today?
MR. ZEDAH. I had what I understand to be the last case that
was removed from State court to Judge Jack's court; and then I
believe about two months ago it was remanded back for lack of
jurisdiction. My understanding is Judge Jack has no pending cases
in front of her right now. But that is just my understanding.
MR. WHITFIELD. But your case was remanded?
MR. ZEDAH. The one case I did have was remanded back to
State court. Yes.
MR. WHITFIELD. And what is the posture now that it has been
remanded?
MR. ZEDAH. I don't mean to laugh. The Mississippi Supreme
Court seems to come down with a new opinion every month as to
how we handle these cases. There is a new decision that came out
called Canadian National in which, if they are in the improper
venue, are dismissed. At that point, they have a year to refile. I
am not sure whether that case has been formally dismissed or not,
but I believe that's the process.
MR. WHITFIELD. Okay. Well, my time is expiring. But before
I conclude my questions, Mr. Zadeh, you are going to make every
effort to present these documents to us by April the 4th; and we will
maintain contact with either you or your attorney, Mr. Brand, to
make sure we do that. And then you basically have provided the
information that we requested, and our legal counsel is working
with you now. Is that right, Mr. Fabry?
MR. FABRY. That's correct. And if we find any additional
responsive documents, we will produce those.
MR. WHITFIELD. Thank you very much. Mr. Stupak.
MR. STUPAK. Thank you.
Gentlemen, if you can explain to the panel of the committee
what an MDL is, it might be helpful. The last hearing when I was
referring to it as class actions, and I think we got that corrected, it
was an MDL. Can you explain what an MDL, multi-district
litigation, is, Mr. Zadeh?
MR. ZEDAH. Multi-district litigation, there is both Federal and
State. There is both Federal and State MDLs. But an MDL, in
essence, is -- there's a panel called The Joint Panel on
Multi-District Litigation who gets a motion from typically the
defendants to consolidate all Federal cases throughout the country.
And then if the JPMDL grants that motion, they then choose a
court to send all these cases to in one consolidated proceeding.
And so there is that for the Federal. And then some States,
including the great State of Texas, has a State MDL in which it is a
similar procedure with State court cases.
MR. STUPAK. In this case here, this was a Federal multi-district
litigation MDL. Correct?
MR. ZEDAH. Yes.
MR. STUPAK. And it was assigned to Judge Jack?
MR. ZEDAH. Yes.
MR. STUPAK. And Judge Jack has dismissed these cases?
MR. ZEDAH. She has remanded the cases back to State court.
They are not dismissed, they are remanded.
MR. STUPAK. In the remand, before Judge Jack remanded it,
was there any kind of finding by the court of any possible liability?
MR. ZEDAH. Possible liability against the defendants?
MR. STUPAK. Just that there is a question of liability here that
should be tried before the proper court. Some cases, I understand,
were outright dismissed, but there are others, I take it like your
case pending before the State court, there is a question of at least
there's enough evidence to go to a jury or fact-finder as to liability.
MR. ZEDAH. Judge Jack did not make any such decision. The
main decision is she didn't have jurisdiction, so she didn't have the
power to make any decisions.
MR. STUPAK. So the question of liability or possible liability
still has not been determined? Judge Jack based hers strictly on
procedural grounds or legal limitations that she did not have
jurisdiction over these cases?
MR. ZEDAH. Yes.
MR. STUPAK. Okay. Do either one of you witnesses here
today, have you ever made a medical decision in these cases, in
your cases that you are personally handling, a medical decision?
MR. FABRY. No.
MR. ZEDAH. I don't have a medical license, so, no.
MR. STUPAK. And the license for doctors are done by a
Federal or State agencies?
MR. ZEDAH. I believe so. I don't know.
MR. FABRY. To the best of my knowledge. Yes, sir.
MR. STUPAK. How about for attorneys? Who licenses the
attorneys, the Federal government, or the State in which you are
admitted to practice law?
MR. FABRY. I have been licensed by the State of South
Carolina, the bar there, and the State of Texas, the bar there.
MR. STUPAK. Mr. Zedah.
MR. ZEDAH. The State of Texas and the State of Mississippi
for me.
MR. STUPAK. There has been discussions in these hearings,
our second hearing here now, about B readers. Did either one of
you select the B readers in these MDL cases? Mr. Zadeh?
MR. ZEDAH. In the 20 MDL cases? In my 20 plaintiffs?
MR. STUPAK. In your 20 plaintiffs.
MR. ZEDAH. I don't know if "select" is the word. I was told
that these B readers were B readers that would accept these cases,
and then they would read them and send them back. I don't know
if that means I selected them or not.
MR. STUPAK. So B readers were already being used in the
silicosis cases before your cases came in? Because the Chairman
said you were both late into these matters. Cases had already been
filed before you filed your cases. Is that correct?
MR. ZEDAH. That's correct.
MR. STUPAK. Mr. Fabry, I think you said you had five cases.
Was it the same circumstances, those B readers were already being
used in other cases related to the silicosis issue?
MR. FABRY. I guess that is a maybe a two-part answer. As to
the five cases, the five individual plaintiffs in the Federal silica
MDL, I am not actually sure of the status of the B reader. Those
individuals had full pulmonary examinations by a pulmonologist,
which, in my mind, diminishes the importance of the B reader. So
I am not sure. B readers are routinely used in silicosis and other
occupational disease litigation.
MR. STUPAK. I guess what I am trying to get at here is there
has been inferences that the B readers were selected by legal firms
to do the B reading because they would get a favorable reading,
and there was some suggestion that if you got a favorable reading
you got extra compensation. So I guess my question was to just
simply -- I heard you say through the testimony thus far that these
cases were going before your 15 cases were presented, Mr. Zadeh,
and before your five cases were presented. So I want to know if
you helped to select these so-called B readers, or did you use the B
readers that were already being used in the other cases pending
before this MDL? That is what I am trying to ask.
MR. ZEDAH. In my case, they had already been used by other
attorneys in the past.
MR. STUPAK. Mr. Fabry?
MR. FABRY. I am still not sure I understood the question
completely. My clients from Missouri, the five who ended up in
the MDL, had a full diagnosis, and had met with a pulmonary
doctor before those cases were ever transferred to the MDL. Does
that answer your question?
MR. STUPAK. Yes.
MR. FABRY. Thank you.
MR. STUPAK. Mr. Zadeh, I think you might have said. You
need two doctors before you made a determination of silicosis or
asbestosis?
MR. ZEDAH. Some people use the same doctor. Our policy is
not to use the --
MR. STUPAK. By your policy, your law firm's policy?
MR. ZEDAH. My law firm's policy is that one person do the B
read, and then later, have another person do a full pulmonary
examination. I am not -- I believe that's -- in these 20 cases, I
believe that happened, and that's typically our policy.
MR. STUPAK. Okay. A similar policy, Mr. Fabry? Or do you
have a different policy in your law firm?
MR. FABRY. I wouldn't say we have a policy. I view these
from an evidentiary perspective. And the evidence that I need to
prove the case at trial, in my opinion, is a full pulmonary
examination, whether or not a B read actually occurs. One of the
doctors that I have used probably on the majority of my cases is
Dr. Gary Friedman, who is not currently a B reader, and therefore
would not be able to, although he is familiar with the standards,
wouldn't be able to fill out the form as a B reader, but does make
the diagnosis.
MR. STUPAK. And then, Mr. Fabry, in your cases, then did you
have a pulmonary examination for your five cases, these five
individuals?
MR. FABRY. Yes, sir.
MR. STUPAK. Let me ask you each this question. If one B
reader gave you a result that did not indicate an occupational
disease, would you ever send the same X-ray to another B reader?
Mr. Zadeh? Or I should say in these 15 cases that you are --
MR. ZEDAH. I couldn't tell you if we did it in these cases or
not.
MR. STUPAK. Mr. Fabry?
MR. FABRY. I don't think so.
MR. STUPAK. Okay.
MR. FABRY. I don't know of instances like that.
MR. STUPAK. I have no further questions, Mr. Chairman.
MR. WHITFIELD. At this time, I recognize the full committee
Chairman, Mr. Barton.
CHAIRMAN BARTON. Thank you. First of all, I want to thank
you two gentlemen for being here, and I want to thank you for
testifying that you are going to comply with the subpoena.
The subpoena that each of you received last week indicated
that we wanted you to be here in person this morning. You have
done that. And the second thing, we wanted each of you to
produce the things identified in the attached schedule touching on
matters of inquiry committed to the committee or subcommittee,
and you are not to depart from it without leave of said
subcommittee or committee. Now, it is my understanding that, Mr.
Fabry, that the envelope of documents that you turned over, you
are saying is the complete document file for the matters under
investigation. Is that correct?
MR. FABRY. Complete as to what we could find since
receiving the subpoena. Yes, sir.
CHAIRMAN BARTON. I want to --
MR. FABRY. And, in fairness, I do believe that, if it is not
complete, it is close to complete.
CHAIRMAN BARTON. I want to read what the attachment to the
subpoena says. Now, the attachment to the subpoena is identical to
a letter that your law firms received back in February. And in
terms of documents to comply with the subpoena: Produce all
records related to any services, analysis, reviews, consulting, or
diagnosis involving in any way the issue of silicosis and related to
any of the following persons or entities: Heath Mason, N&M;
Charlie Foster, RTS; Jeffrey Guise, Occupational Diagnostics;
David M. Miller, Inner Visions; Robert Altmire, MD; James
Ballard, MD; Kevin Cooper, MD, MPH; Todd Colter, MD;
Andrew W. Harron, DO; Ray A. Harron, MD; Glenn Hillburn,
MD; Richard B. Levine, MD; Barry S. Levy, MD MPH PC;
George Martindale, MD; W. Allen Oaks, MD; or J.T. Segara, MD;
produce all written policies and procedures of your firm related to
the information regularly given by your firm to a client or
prospective client on the meaning or reliability of any tests or
findings indicating that they have silicosis.
So, Mr. Fabry, you are saying that you have either fully
complied or to the best of your knowledge almost fully complied
with this. Is that correct?
MR. FABRY. Yes, sir.
CHAIRMAN BARTON. And Mr. Zadeh, you are saying that you
have not complied but you intend to comply. Is that correct?
MR. ZEDAH. Yes, sir.
CHAIRMAN BARTON. Could you instruct me and the rest of the
committee when you intend to comply?
MR. ZEDAH. With all respect, sir, here is the issue we have.
As part of my job as a lawyer, I've collected a lot of information
over a lot of time with respect to silica, including transcripts from
the MDL, and briefing from the MDL. As broad as this subpoena
reads, I need to look through all of that information. That is 250
gigabytes of information. When we convert it, that is over a
conversion that we did using something on the Internet, is around
16 million pages. I personally haven't even looked through all
those pages. This is a congressional subpoena, which I take very
seriously.
CHAIRMAN BARTON. I take it very seriously, too. I signed it.
MR. ZEDAH. Yes, sir. And if I miss something and that is
determined to be in my possession, that complies with the
subpoena, I am in contempt of that subpoena. And so I have to
look through 16 million pages of documents to make sure that I
fully comply.
CHAIRMAN BARTON. Well, my guess is, and it is a guess, that
there are probably, at most, a couple hundred that are truly
relevant, and I bet you know where they are. I have a feeling that
you have subtitles and set subtitles of files that it would be fairly
easy to get your hand on the most pertinent documents.
MR. ZEDAH. Yes, sir. It is the 80/20 rule. 80 percent of them I
can get to you, and am working on getting to you.
CHAIRMAN BARTON. Why don't we get that 80 percent. And
then I bet, with good-faith effort on your part, the staff on both
sides can work on the other 15,999,000 pages, probably work
something out that will say you are complying.
MR. ZEDAH. That would be great.
CHAIRMAN BARTON. What is your game plan to get with the
staff to make arrangements to get those 80 percent of the
documents that you think you can get? You are going to do that
today?
MR. ZEDAH. I will rely on counsel, and I will work with the
committee.
CHAIRMAN BARTON. Well, I've instructed the staff that -- I
agree with what Mr. Stupak said, you got the right to every
constitutional guarantee under law. We are not trying to prevent
you from exercising your constitutional rights. But we also have
an obligation to the Constitution as an investigatory committee
empowered to protect the people of the United States to move
forward. And I want to hear from the staff today what the true
deadline is for you complying to the best of your ability, and I
want it to be fairly soon. Do you think you could have some
documents by next Tuesday?
MR. ZEDAH. Three days?
CHAIRMAN BARTON. Yes, sir. Because if you can't, you are
going to have to come back here and testify under oath again why
you haven't found them.
MR. ZEDAH. Sure. No, as long as I have an understanding that
I don't have to look through 16 million pages by Monday.
CHAIRMAN BARTON. You know, we're reasonable. I wouldn't
want to spend my weekend looking through 16 million pages,
either. I understand that.
MR. ZEDAH. I just don't want to be seen as being incomplete,
and on Tuesday, if I don't give you something on Tuesday, you
come back and hold me in contempt.
CHAIRMAN BARTON. Well, so far the record is, you have 16
million pages, the committee staff has zero. That's a little
unbalanced. And I am not a silicosis lawyer, I am not even a
lawyer, so I can't make a value judgment on how many documents
would be reasonable. Mr. Zadeh, it looked to me like Mr. Fabry
turned over looked to me like several dozen documents. It didn't
look to me to even be a hundred pages. So you got the first letter
back in February; it's now March 31st. I just don't want to belabor
this, but I would strongly encourage you to let the Minority and
Majority staff know at the end of this hearing what your intention
is in terms of volume of documents before next Tuesday. And if it
is zero, you will have to come back here and tell us why it is zero.
MR. ZEDAH. That is not my intention.
CHAIRMAN BARTON. If it is not zero, and it looks like it's
reasonable, hopefully you won't have to come back again and we
can do it, just read the documents, and then do whatever we need
to do in terms of correspondence. And there's some other
questions in the letters that we would like for you to give some
written responses to. I don't think that will be a problem. Do you?
Just questions in the letter that you are supposed to reply in writing
to?
MR. ZEDAH. I am available here to answer any questions that
you have.
CHAIRMAN BARTON. Okay. Well, my general question to both
of you is how your law firms became involved in these particular
cases in the beginning, just generically. Do you all specialize in
these types of cases? Did you have plaintiffs that came to you?
Did you seek them out? Did other lawyers doing these cases seek
your firms out? How did you get involved? Mr. Zedah.
MR. ZEDAH. We had three groups that were in this. One group
was referrals from existing clients, one is referrals from attorneys,
and one group was through advertisement.
CHAIRMAN BARTON. Does your firm specialize in this type of
a case?
MR. ZEDAH. I do other types of work, but this is the majority
of my work.
CHAIRMAN BARTON. Mr. Fabry?
MR. FABRY. I can't answer for how the Williams Bailey firm
first began handling silicosis cases. I began handling silicosis
cases for the firm in 2001, and took over responsibility for existing
cases at that time.
CHAIRMAN BARTON. So you don't have any knowledge how
the firm got involved in the beginning?
MR. FABRY. No, sir, I don't.
CHAIRMAN BARTON. What's the status of your clients now in
these cases? Are these active cases? Have you all suspended the
case given what happened in the court? Or are you all trying to
move forward with them?
MR. ZEDAH. Four of the people that I represented out of the 20
are dead. They died waiting for it to get back. It is in the position
right now where they have to be dismissed based on that Canadian
National order that I referred to that the Supreme Court of
Mississippi came up with last month, and then have 1 year to
refile.
CHAIRMAN BARTON. Mr. Fabry, are you referring specifically
to the five plaintiffs.
MR. FABRY. Yes. Those cases were transferred by Judge Jack
back to the Eastern District of Missouri, and the court there
transferred the cases to the Western District of Missouri. I believe
we received a scheduling order from that court within the last
couple of weeks.
CHAIRMAN BARTON. So it is an active case.
MR. FABRY. Yes, sir, it is.
CHAIRMAN BARTON. Last question. My time has expired. Did
any one of you gentlemen ever meet in person any of the
plaintiffs?
MR. FABRY. Yes, every one of them.
CHAIRMAN BARTON. You did.
MR. ZEDAH. I have met with some of them.
CHAIRMAN BARTON. Thank you, Mr. Chairman.
MR. WHITFIELD. Thank you. At this time I recognize Dr.
Burgess for 5 minutes.
MR. BURGESS. Thank you, Mr. Chairman. I don't know that I
will use all my time. I would just like to know -- and I do
appreciate the delivery of records this morning. I think that is an
important step in solving this problem.
MR. ZEDAH. Mr. Burgess, I don't mean to interrupt. I don't
know that -- I have met several of my plaintiffs, but I don't know
whether I have met the 20 plaintiffs that Mr. Barton was talking
about, and I'm under oath and I want to make sure that that's
completely clear. I apologize.
MR. BURGESS. Very well.
Can I ask both of you if one of your doctors reading X-rays
comes across a diagnosis that is not silicosis and not an industrial
pneumoconiosis, but perhaps something else -- tuberculosis, chest
mass -- what happens then? Would that doctor call the patient up,
would that doctor tell you that there was an abnormality found on a
chest X-ray that wasn't asbestosis or silicosis, or was the patient
just simply uninformed about that?
MR. ZEDAH. In some of the cases -- let me answer your
question direct. For example, Doctor Levine would sometimes put
a reference to a mass in his B read result and would say something
to the effect of refer it to his personal physician as soon as
possible.
At that point generally, I'm not going to get into specific
attorney-client communications, but generally I would pick up the
phone personally and contact that person.
MR. BURGESS. So the committee can be comfortable that there
is no one that you are aware of that would be out there with an
undiagnosed chest condition that was picked up on a B read by one
of your doctors.
MR. ZEDAH. We make every effort to make sure that doesn't
happen.
MR. BURGESS. To close the loop then, if you didn't get a letter
back from their primary physician saying oh, my gosh, thank you
for bringing this to my attention and we have taken care of it, if
you didn't get such a letter, what time frame might elapse, or when
would you make that call back to make sure that that patient had in
fact been taken care of?
MR. ZEDAH. We do send the report to the client. In addition,
after the B read we do have a pulmonary examination. So at that
point they have a consultation with the doctor.
MR. BURGESS. So none of the patients that came through your
office would just simply receive the diagnosis of silicosis with no
further instruction or therapy.
MR. ZEDAH. Of the 20 plaintiffs that we had in litigation,
generally that is true. What I'm thinking in my mind is we had
some people that had lung cancer that may have passed away
before they got a full pulmonary exam, but they had treating
physicians.
MR. BURGESS. In the entire multi-district litigation in Corpus
Christi, how many plaintiffs were involved in that litigation?
MR. ZEDAH. Approximately 10,000, but I don't know for sure.
MR. BURGESS. Of that, your representation was of 20 of those
individuals?
MR. ZEDAH. Yes, sir.
MR. BURGESS. The last screening advertisement that we saw,
how many people do you think you evaluated, to guess, to those 20
that you eventually took as clients?
MR. ZEDAH. As I said, some of them were word-of-mouth
referrals, some of them were referrals from other sources, and then
some were through advisement. I have no idea how to answer that.
MR. BURGESS. Will that appear in the information that you
provide the Chairman, how many patients went through those
screening days that you held? Is there any way to know that? Did
you have a sign-in sheet?
MR. ZEDAH. I did not, no.
MR. BURGESS. Just for the record, do you remember the
screening companies that you used?
MR. ZEDAH. The ones that my law firm personally used, there
was Gulf Coast Marketing and UM Mobile X-Ray is the ones that I
know of. There may have been others, but I don't know.
If I may, the screening company, are you talking about people
that originally took the X-rays?
MR. BURGESS. Correct.
MR. ZEDAH. Yes.
MR. BURGESS. Mr. Fabry, can I ask you along the same lines,
what would have happened if a patient had an unexpected finding
on a chest X-ray or B read, what procedures did your office have to
follow up for that patient?
MR. FABRY. I want to be very sensitive to attorney-client
privilege and answer unequivocally that information is always
provided to the individuals.
MR. BURGESS. Okay. Would your office undertake to deliver
that information personally, or would it go back to the radiologist
who read the film? What sort of path did that travel?
MR. FABRY. Again, being very sensitive to attorney-client
privilege, if we receive medical information, the medical
information is given to the individuals. Good or bad. Let me add,
for many of these folks, when you're talking about someone who is
actually having an examination, the doctor would communicate
that directly at the time of the examination.
MR. BURGESS. So the doctor would communicate that. So the
doctor would be involved in the transmission of the information?
MR. FABRY. The doctor is doing the examination, full
pulmonary examination, and I'm not there in the room, but my
understanding from the doctors and the testimony that has been
given by my clients at their depositions, and based on the reports
written by the doctors, all give me great comfort that whatever the
findings are, those are communicated by the doctor to the
individual.
MR. BURGESS. So let me ask both of you this question -- we'll
stay with you Mr. Fabry, but I want to get Mr. Zadeh's response --
at no time did anyone in your firms look at a film and render a
diagnosis and communicate that to a patient?
MR. FABRY. We rendered no diagnosis within our office. No
lawyers. I do not.
MR. ZEDAH. I don't have a radiologist in my office. We don't
look at films in my office.
MR. BURGESS. So there would be no reason for this committee
to be worried that the law offices were acting as a conduit for
information between the radiologist and the patients. The law
firms were not in any way interposing themselves between the
patient and the radiologist.
MR. FABRY. That is a very different question. We're certainly
not interposing ourselves. If medical information is provided to
me, again, being very careful about how that's communicated, if
there is a report, the report is given to the client. Because of
attorney-client privilege I don't want to discuss what sort of
commentary might go along with that.
MR. BURGESS. Mr. Fabry, we saw an advertisement for -- I
think you have as one of your documents there the newspaper ad
for screening. Does your firm engage in that practice as well?
That would be this asbestos and silica dust screening, Exhibit No.
3.
MR. FABRY. Again, a difficult question. I don't recall
advertising for screenings. It's not something that I have
personally been involved in. To say that we've never advertised or
never advertised the availability to represent people with silicosis, I
don't think I could go that far.
MR. BURGESS. If your firm paid for an X-ray study to be done
and B read, would it have paid a different rate depending upon the
diagnosis? Would you have paid more for a positive diagnosis or
less for a negative diagnosis?
MR. FABRY. Absolutely not.
MR. BURGESS. Mr. Zadeh, let me ask you the question along
the same lines. You stated that there were two companies that you
did use. Without violating attorney-client privilege, can you tell us
the contractual arrangement with those firms? Was it a flat rate?
MR. ZEDAH. Flat.
MR. BURGESS. And at no time would additional moneys have
been paid for a positive diagnosis.
MR. ZEDAH. That's correct.
MR. BURGESS. Mr. Fabry, at the risk of being repetitious, did
you ever pay for a positive diagnosis from any of the screening
companies that you may have used?
MR. FABRY. I'm not sure I understand the question.
MR. BURGESS. Would there have been a situation where a
screening company was paid for a positive diagnosis but not paid
for a negative diagnosis?
MR. FABRY. I understand. I believe that's the same question
asked a minute ago. All providers are paid for the service
provided. It is not contingent upon results. Does that answer the
question?
MR. BURGESS. Yes. Thank you both.
Thank you, Mr. Chairman.
MR. WHITFIELD. At this time I recognize Mrs. Blackburn from
Tennessee.
MRS. BLACKBURN. Thank you, Mr. Chairman, and I want to
thank the two of you for being here and for talking with us about
this, because I think it is something that deserves our attention, and
is an item that should be of concern to us.
I want to stay on the same train of thought that Dr. Burgess was
just moving along with and look at the ways that your law firms
identify and find people. We have had another hearing, we have
talked about the B readers, we've talked about the physicians, and
the diagnosis process.
And, Mr. Fabry, I want to come to you. I am not a lawyer, I
am not a physician, I am pretty much what you would call an
average consumer. When I see these things that have the tinge of
abuse, sometimes it just kind makes you a little angry and causes
great concern, especially when you think there may be people that
have been preyed upon or have been dealt with unfairly. I guess
part of that is being a mom and part of that is having great concern
for the people that I represent.
I went to your Web site, Mr. Fabry, and pulled down a client
profile of a client of yours that is on that Web site. I found it so
interesting. This client profile is of a Mr. and Mrs. Howell. Are
you familiar with that?
MR. FABRY. Yes.
MRS. BLACKBURN. Great. Now, Mr. Howell is called Sonny
to his friends, right? And it seems that he worked for 45 years for
a company and in '94 he was diagnosed with silicosis. So why
don't you describe for me how your law firm became involved
with Mr. Howell and this diagnosis, and how the Howells came to
the attention of your law firm.
MR. FABRY. I believe that Mr. Howell and his case is one of
the cases I assumed responsibility for in 2001.
MRS. BLACKBURN. So you assumed responsibility for that
case.
MR. FABRY. Yes.
MRS. BLACKBURN. How many total cases do you have?
MR. FABRY. Currently? I represent 29 individuals.
MRS. BLACKBURN. Twenty-nine. At the height of pursuing
this, how many did you have?
MR. FABRY. What do you mean by the "height of pursuing
this"?
MRS. BLACKBURN. Well, seems like you aggressively pursued,
went after this business. It says on here, WB continues to pursue
silicosis cases all over the U.S. How many, total, did you or your
firm have?
MR. FABRY. You have got a number of different parts there.
I'm still not sure I'm following your question.
MRS. BLACKBURN. I speak pretty plain English. How many
cases have you got?
MR. FABRY. Nine lawsuits, 29 plaintiffs.
MRS. BLACKBURN. Go ahead and tell me how the Howells
came to your attention.
MR. FABRY. Again, I believe that the Howells were clients of
the firm when I began working on silicosis cases for the firm in
2001.
MRS. BLACKBURN. Okay. So they were already there.
MR. FABRY. That is the best of my recollection, yes.
MRS. BLACKBURN. Now, why don't you talk a little bit about
how you pursue these cases; since you say you pursue them all
over the U.S., how do you pursue them? Do you primarily use
advertising in different States, do you use different methods, do
you work with physicians in some States, do you work with B
readers in some States, do you just do advertisements such as the
one that Dr. Burgess saw, do you go on TV, do you go on radio?
Exactly how do you pursue these?
MR. FABRY. Respectfully, I think you have a
misunderstanding of how the word "pursue" is used. When we file
a case, we actively pursue the case for the client. I believe that is
what's intended.
MRS. BLACKBURN. Okay. Then how do you find your people?
MR. FABRY. Some people find us, sometimes other lawyers.
MRS. BLACKBURN. How does that link take place?
MR. FABRY. They may visit our Web site. Mr. Howell may
run into one of his friends, hypothetically, and say "you might
want to call Mr. Fabry." Another lawyer --
MRS. BLACKBURN. So you're saying primarily it's word of
mouth.
MR. FABRY. Primarily, yes.
MRS. BLACKBURN. Thank you. I yield back.
MR. WHITFIELD. Thank you. I would ask each of you, do
either of you or your firms, do either of your firms have or have
you had clients who have been diagnosed specifically with silicosis
by Drs. Ray Harron or James Ballard?
MR. FABRY. Not to my knowledge.
MR. ZEDAH. Dr. Ballard is a B reader. Whether or not you call
that a diagnosis or not; we had the discussion in the beginning.
MR. WHITFIELD. Then as a B reader. Have you used him as a
B reader?
MR. ZEDAH. I have used him and I have used Dr. Harron.
MR. WHITFIELD. Let me ask, Mr. Fabry, we have your
documents here, which we appreciate you presenting. You had
indicated, I believe, in replying to Chairman Barton's comments,
that this represents 95 percent of the documents. Is that the case,
or do you expect that there will be more documents coming? Are
you still looking?
MR. FABRY. I don't believe I said they were 90 or 95 percent.
I said that I am comfortable that that represents the majority of
what would be responsive to the subpoena. There may be other
areas and we're continuing to look. But simply looking at the
subpoena and based on my memories of doctors we worked with,
we were able to target those documents.
MR. WHITFIELD. We appreciate that. Speaking for both of
you, I would ask you to make a concerted effort by 5 o'clock
Monday to get the documents to us -- our attorneys will be
discussing this with your attorneys -- a good-faith effort, because,
as you know, we do have your return under this subpoena and we
have a scheduled date for you to return on April 4th at 4:00 p.m.
And in the discussion that you have had with me, Mr. Zadeh, and
the Chairman, we recognize the material that you have is quite a
lot of material. As the Chairman also stressed, it is usually known
that most of this material can be found rather quickly for the areas
that we want. We would ask that your attorney and our attorney
continue to discuss about this, and we are going to have you
scheduled to return on Tuesday, April 4th, assuming that there will
be some documents coming before then and that won't be
necessary.
Also, I would ask you that with respect to any documents
withheld, that you provide a privilege log for those documents that
are going to be withheld.
Of course I want to move, and, without objection this
document book here will be placed into the record and we will
keep the record open pending the reception of these additional
materials that we expect.
[The information follows:]
MR. WHITFIELD. Like I said, Mr. Zadeh, we expect you to be
back here Tuesday, April 4th at 4:00 p.m. under the subpoena, but
anticipate that documents will be coming in before then. So with
that --
MR. STUPAK. Mr. Chairman, before you adjourn this hearing,
a question or two, if I may.
MR. WHITFIELD. Yes.
MR. STUPAK. Thank you.
Our jurisdiction in this matter here is really public policy and
it's the health concerns we have, and I think Mr. Burgess certainly
is doing a good job of bringing out our jurisdiction here on the
public policy issue; because the concern was by the members of
the committee is if there was -- when you testified a B reader saw a
mass and how were patients notified -- and I think, Mr. Zadeh, you
indicated that an attorney would pick up a phone and inform the
client to contact his personal physician or a report was sent to that
client and later there was a full pulmonary examination.
Could you tell me, and the question that is still bothering some
of us: Was there delay, did it move fairly quickly? What is your
responsibility if there is notification that there is something else or
there may be a more serious disease discovered through these B
readers. How would you handle that? And give me, if you can, a
general time frame. I know each case is different.
MR. ZEDAH. We would typically get a B read result back --
again, I'm generally speaking, they are different -- but get it back
in 2 to 3 weeks. We would review them, typically, the day they
came in, and I would make those phone calls, typically, if I was in
the office that day.
MR. STUPAK. Would there have been any patients -- and I
think you indicated earlier you had one or two who passed away --
but if anything came in -- this was your primary responsibility,
these cases in your law firm?
MR. ZEDAH. Yes, sir.
MR. STUPAK. So there was no delay between you getting that
information to a client?
MR. ZEDAH. No, that was my priority. My priority was if that
came in, I wanted that highlighted and I wanted that on my desk.
MR. STUPAK. Mr. Fabry, same procedure, B reader. If you'd
see anything, what was your procedure, how would you notify
clients, and what was the time frame?
MR. FABRY. Fortunately, I have never been faced with a
situation in a silicosis case where a B read came in with a mass. I
agree with Mr. Zadeh's policy; I would make a phone call if such
an event occurred. We have a general policy that no more than 3
days will pass from the arrival of a report in the office to
forwarding that report to the client.
MR. STUPAK. Okay. No further questions, Mr. Chairman.
MR. WHITFIELD. Mr. Burgess.
MR. BURGESS. Thank you, Mr. Chairman. If I could just take
a minute or two of the committee's time before we finish up. I
resisted the urge to pontificate, but I really can't help myself at this
point. These are patients who by their very nature are very
high-risk patients, so the presence of a chest mass, whether it be
from a smoking-related disease or other industrial pneumoconiosis,
this is a real possibility, not just an abstract line of questioning. I
suspect that there was concomitant or unexpected disease found in
a number of these patients, and I hope they were informed in a
timely fashion.
I am concerned because I guess the status of the multi-district
litigation now is Judge Jack threw the case out; is that correct?
MR. ZEDAH. No, that is not correct. She stated she did not
have jurisdiction, which means she had no power to make any
ruling over the cases at all, so she sent them back to the Mississippi
State courts or Federal courts.
MR. BURGESS. Silicosis is a serious disease and results in
serious disability for those who have it. And the unintended
consequence of what has happened with this case is that people
with a legitimate claim and legitimate disease who have suffered,
whose families have suffered, now are likely not to be able to get
the redress that they sought. Several cases are likely to leave us
before this case is eventually had. We have added probably years
to the process of getting any type of help or compensation to the
people who have actually been injured, and I think that's a
travesty.
I was extremely uncomfortable here, 2 weeks, when we heard
Dr. Martindale's deposition. Here's an individual that from all
appearances is well trained, well spoken, well credentialed. Had I
been interviewing him on my hospital credentials committee I
would have probably hired him, he was so well versed in his
subject; and his career, of course, is in shambles and the 36 people
he read films for are likely not to be able to get compensation if
they deserve it, or industry was unjustly penalized because he
misread the films and admitted under oath here in this committee
that he didn't know what the diagnostic criteria for silicosis was.
I'm just absolutely astounded by the behavior of two of this
country's great professions in this litigation. And who gets hurt in
the process is the patient. The patients who had legitimate disease,
who sought legitimate redress of their grievances through the legal
system, who sought help for their health-related problem through
the medical system. I couldn't leave this committee room, and,
Mr. Chairman, I thank you for giving me the time, without getting
that off my chest.
This really points out the worst of both of our professions and I
hope this committee will get to the bottom of this and get this
straightened out, but it is just unconscionable this type of activity
would have occurred.
I'll yield back.
MR. WHITFIELD. Thank you, Dr. Burgess.
We'll now bring the hearing to a conclusion, but I want to
remind Mr. Zadeh and Mr. Fabry they remain under subpoena for
the records requested, and you are commanded to appear at another
hearing of this subcommittee next Tuesday, April 4th, to make
production pursuant to the subpoena. We recognize, Mr. Fabry,
that you have already presented some documents and you're going
to continue to look; and, Mr. Zadeh, you're going to continue to
make some productions, and our attorneys will remain in touch
with you. But both of you remain under subpoena. And with that,
this hearing will recommence on Tuesday.
[Whereupon, at 11:30 a.m., the subcommittee was adjourned.]
THE SILICOSIS STORY: MASS TORT SCREENING AND
THE PUBLIC HEALTH
TUESDAY, JUNE 6, 2006
HOUSE OF REPRESENTATIVES,
COMMITTEE ON ENERGY AND COMMERCE,
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS,
Washington, DC.
The committee met, pursuant to notice at 2:05 p.m., in Room
2123 of the Rayburn House Office Building, Hon. Ed Whitfield
(Chairman) presiding.
Members present: Representatives Pickering, Burgess,
Blackburn, Stupak, and Whitfield.
Staff present: Tony Cooke, Counsel; Andrew Snowdon,
Counsel; Mark Paoletta, Chief Counsel for Oversight and
Investigations; Clayton Mattheson, Research Analyst; Jonathan
Pettibon, Legislative Clerk; David Nelson, Minority
Investigator/Economist; Jonathan Brater, Minority Staff Assistant;
and Jessica McNiece, Minority Research Assistant.
MR. WHITFIELD. I would like to call the hearing to order this
afternoon. The subject matter is the silicosis story, mass tort
screening and the public health, and it is our third day of hearings
on this subject matter. I might add that this investigation began as
a result of a decision made by Federal Judge Jack on June 30,
2005, in a district court in Texas regarding multi-district litigation
involving silicone, and in her decision, she spent a lot of time
talking about law firms, medical screening firms, and physicians
and their working together to generate these lawsuits. In that
situation they generated diagnoses of 10,000 patients regarding
silicosis, but I think we need to be reminded on what Judge Jack
concluded as a result of the evidence that she heard and listened to
in that case. She concluded that these diagnoses were about
litigation and not healthcare. They were driven by neither health
nor justice but were manufactured for money. And we continue to
gather and review documents and information from the 55 letters
sent to doctors, screening companies, State medical boards, law
firms, and State health departments involved in this matter.
To date we have held two hearings where we have heard
remarkable testimony. We heard one doctor credited with 3,600
diagnoses of silicosis explain that he never meant to diagnose
anyone, and in fact, did not know the criteria for diagnosing
silicosis. We heard one screening company tell us that they were
paid only when they produced a positive diagnosis of silicosis for
one law firm, but they didn't receive anything when they had a
negative. We also heard three doctors credited with a combined
total of over 1,800 diagnoses of silicosis take advantage of their
Fifth Amendment rights when asked if their diagnoses were
accurate and made pursuant to medical practices, standards, and
ethics.
Today promises to be an equally illuminating day in the
committee's inquiry. Today we will examine a fundamental
question: Where were the regulatory and medical protections and
safeguards for the public health in this process of mass tort
screening? To that end, we are joined this afternoon by the
medical boards and State radiation regulators of Mississippi and
Texas. We are also joined by three screening companies: N&M of
Moss Point, Mississippi; RTS, Inc., of Mobile, Alabama; and
Occupational Diagnostics of Ocean Springs, Mississippi.
Appearing today with each of these three screening companies,
respectively, is also one doctor who worked with them.
Among the most basic responsibilities of a government in
terms of public health are to protect citizens from unnecessary
dangers in the practice of medicine and further to make certain that
citizens receive care under a set of medical standards and ethics
that ensure good medicine and accountability.
These are two basic standards that we should apply today as we
examine mass tort screening practices. First, let us keep
consideration of the public from unnecessary risk or dangers in
medicine. Radiation in the form of diagnostic testing such as X-
rays is an important medical tool, but it comes with real dangers.
Most States, such as Mississippi and Texas, have strict rules to
make certain that exposure to radiation occurs only for sound
medical reasons and under the supervision of certain licensed
medical professionals.
We will hear today from these States about their regulations
establishing these important health safeguards and we will also
hear from N&M, RTS, and Occupational Diagnostics, the
screening companies, about what steps, if any, they took to be
certain that they operated in a proper procedure. I would repeat
that thousands of men's and women's X-rays must meet these rules
and we must ensure that proper medical supervision was used to
oversee this important yet dangerous diagnostic tool.
Second, with respect to safeguards ensured through medical
standards and ethics, we will speak to witnesses from the medical
boards of Mississippi and Texas. In particular, we will learn about
what constitutes the practice of medicine in those States, what
establishes the vital doctor-patient relationships, and what duties
and obligations doctors have to patients as a result of that
relationship. We must not forget the protection of public health is
built upon ethical and legal frameworks in medicine that set forth
standards and practices, ensure accountability by healthcare
providers and, if necessary, assign liability. If 10,000 people
involved in lawsuits in Texas have been told that a doctor has
found they have silicosis, those patients must be confident of that
opinion and they must be confident that it was not offered lightly
or without some accountability for its accuracy. These are all vital
public health questions and I want to welcome all of our witnesses
today, particularly those from the Mississippi Department of
Health and Texas Department of State Health Services. We look
forward to your testimony. At this time I would like to recognize
the gentleman from Michigan, Mr. Stupak.
[The prepared statement of the Hon. Ed Whitfield follows:]
PREPARED STATEMENT OF THE HON. ED WHITFIELD, CHAIRMAN,
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
This afternoon we convene the third day of hearings on the
important public health issues raised by the practice of mass tort
screening.
Our investigation, begun in August 2005, continues to gather
and review documents and information from the 55 letters sent to
doctors, screening companies, state medical boards, law firms and
state health departments involved in this matter. To date, we have
also held two hearings where we have heard some remarkable
testimony: we heard one doctor, credited with 3600 diagnoses of
silicosis, explain that he never meant to diagnose anyone and, in
fact, did not know the criteria for diagnosing silicosis; we heard
one screening company tell us that they were paid only when they
produced positive diagnoses of silicosis for one law firm, but
nothing for a negative; and we also heard three doctors, credited
with a combined total of over 1800 diagnoses of silicosis, take
advantage of their Fifth Amendment rights when asked if their
diagnoses were accurate and made pursuant to medical practices,
standards, and ethics. Today promises to be an equally
illuminating day in the Committee's inquiry.
Today we will examine a fundamental question: Where were
the regulatory and medical protections and safeguards for the
public health in this process of mass tort screening?
To that end, we are joined this afternoon by the medical boards
and state radiation regulators of Mississippi and Texas. We are
also joined by three screening companies: N&M, of Moss Point,
Mississippi; RTS, Inc. of Mobile, Alabama; and Occupational
Diagnostics of Ocean Springs, Mississippi. And appearing today
with each of these screening companies, respectively, is also one
doctor who worked with them.
Among the most basic responsibilities of a government, in
terms of public health, are to protect citizens from unnecessary
dangers in the practice of medicine and, further, to make certain
that citizens receive care under a set of medical standards and
ethics that ensure good medicine and accountability. These are
two basic standards that we should apply today as we examine
certain mass tort screening practices.
First, let us consider the protection of the public from
unnecessary risks or dangers in medicine. Radiation, in the form
of diagnostic testing such as x-rays, is an important medical tool -
but it comes with some real dangers. Most states, such as
Mississippi and Texas, have strict rules to make certain that
exposure to radiation occurs only for sound medical reasons and
under the supervision of certain licensed medical professionals.
We will hear today from these States about their regulations
establishing these important health safeguards - and we will also
learn from N&M, RTS, and Occupational Diagnostics about the
steps and procedures they took to be certain that the manner in
which they exposed thousands - and I repeat, thousands - of men
and women to x-rays met these rules and ensured that proper
medical supervision oversaw the use of this important, yet
dangerous, diagnostic tool.
Second, with respect to safeguards ensured through medical
standards and ethics, we will speak to witnesses from the medical
boards of Mississippi and Texas. In particular, we will learn about
what constitutes the practice of medicine in those States, what
establishes the vital doctor-patient relationship, and what duties
and obligations doctors have to patients as a result of this
relationship. We must not forget the protection of public health is
built upon ethical and legal frameworks in medicine that set forth
standards and practices, ensure accountability by health care
providers, and, if necessary, assign liability. If 10,000 people
involved in lawsuits in Texas have been told that a doctor has
found they have silicosis, these patients must be confident this
opinion was not offered lightly or without some accountability for
its accuracy.
These are all vital public health questions.
I want to welcome each of our witnesses and particularly those
from the Mississippi Department of Health and Texas Department
of State Health Services. I look forward to your testimony.
MR. STUPAK. Thank you, Mr. Chairman.
This is now our third hearing to explore the issues involved in
the litigation of silicosis cases. While I acknowledge the fairness
in which you have conducted this investigation, my Democratic
colleagues and I remain unconvinced that this investigation will
lead to any legislative effort by this committee that would
contribute to public health. Nevertheless, this hearing raises
questions about whether State oversight of the medical profession
and X-ray operators adequately protects the silicosis victims. I
expect today's testimony to be enlightening.
The medical profession is primarily regulated at the State level
and is primarily regulated by boards made up of their peers.
However, bad doctors rarely seem to lose their license to practice
medicine. This hearing will examine medical board systems and
how they handle doctors. Last September the American Medical
Association took the unusual step of referring doctors named in the
silica case to nine State medical societies for examination. Today
we will have testimony of the medical board in Mississippi. I hope
to learn what, if any, disciplinary action or investigation these two
boards undertook to respond to the AMA referral. We will also
have an opportunity to examine the regulation of the screening
company in Mississippi. I want to know if the States have devoted
sufficient resources and implemented sufficient deterrent penalties
to assure that proper procedures to protect patients are adhered to
by these for-hire mobile X-ray operators.
Mr. Chairman, I must say a word regarding the future of these
hearings. To date virtually no issue raised by these hearings is
amenable to Congressional remedy. The responsibility rests with
either the State regulatory agencies or the courts to assist the
patients identified in the mass screenings receive the appropriate
care. I understand that this committee will hear from lawyers in
the coming weeks. However, as I have said numerous times, I
don't believe this hearing is necessary as the courts and State bar
associations exist to address the improprieties such as those
suggested by Judge Jack in the silica proceedings.
Again, Mr. Chairman, it seems to me that there are many
targets of the subcommittee's attention that would be far more
likely to make a positive impact on public health. We still have an
open investigation into the fairness of the FDA to assure the safety
of our Nation's prescription drug supply including, but not limited
to, Accutane.
In fact, Mr. Chairman, if I may, let me read an e-mail I
received yesterday. Unfortunately, I receive too many of these e-
mails. It is dated Sunday, June 4: "Congressman Stupak, we just
buried my son, 17 years old, this past Friday, June 2. On May 18,
2006, my daughter and I came home in the evening to find a note
on the kitchen table telling us that he was dead and in heaven. My
daughter, who is 15, found the note, and before I had to chance to
react, she was already running to her brother's room where she
found him shot in the face. He had taken my husband's shotgun
and shot himself. He was not depressed and he did not drink or
take drugs. This was very out of character for him. He was put on
Accutane by a dermatologist which is 70 miles away from where
we live. The doctor told us on March 27, 2006, the very first time
he had ever met my son, that he was a candidate for Accutane. He
did not try anything else first and he assured us that Accutane was
safe. I had never heard anything about this medication before that
day. I did not have any reason to disagree with him. He was only
on the medication for six weeks. All of his friends are in shock
right now because this was not like him. He was a very loving and
giving son. It just grieves us to know that you tried to take the
medicine off the market but to no avail. My son died May 29,
2006, at 2:50 p.m. A friend of ours found a lot of things on the
website about Accutane. This is where we found your name. My
son will never be brought back to us but I do not want another
family to go through the last two weeks that we have been
through."
As you know, Mr. Chairman, I have tried numerous times to
release the committee report that was done in May of 2003 on
Accutane, yet this committee continues to suppress the information
that should be made public. Yet we have hearings like today that
really I can't find any public health issue in it but other than maybe
to try to embarrass the trial bar. For over 2 years now I have asked
the Chairman and the Chairman has assured me there would be
hearings and still none comes forth. The American people
certainly have a right to know about our hearings on Accutane.
The Accutane report of May 2003 should be released because there
is public information that could help people like this so we don't
receive e-mails like this.
Mr. Chairman, we also should examine a GAO report recently
published on the quality of CMS's communications on Part D
benefit. Posing as seniors and individuals helping a senior,
investigators for the Government Accountability Office placed 500
calls to a 1-800 Medicare number and found that about one-third
resulted in faulty information or none at all. When asked what
drug plans were most appropriate and least expensive for an
individual, customer service representatives got the answer right
41 percent of the time. The committee's resources would be better
served investigating issues such as these, as the lack of accurate
information for our seniors grappling with this confusing new
program.
The available hearing days left in this Congress are few. I
suggest that it is well past the time we focus on our issues that are
the priority for the health and welfare of the American people.
With that, Mr. Chairman, I would yield back the balance of my
time.
MR. WHITFIELD. Thank you very much, Mr. Stupak.
[Additional statements submitted for the record follows:]
PREPARED STATEMENT OF THE HON. JOE BARTON, CHAIRMAN,
COMMITTEE ON ENERGY AND COMMERCE
Thank you, Chairman Whitfield, and let me thank you and Mr.
Stupak for pursuing this important investigation into the public
health implications of mass tort screenings.
One of the bottom-line questions for me in this inquiry has
always been this one: How on earth can 10,000 people have been
possibly misdiagnosed with an often fatal and largely incurable
disease? What do you suppose would be happening if the tables
were turned and plaintiffs' lawyers were not involved in generating
all these diagnoses? I suspect that we might be looking at
thousands of lawsuits screaming medical negligence, malpractice,
and emotional distress.
But the plaintiffs' bar was involved, so we've had to sort this
situation out ourselves.
Today the Committee will ask where, in all these mass
screenings, were the regulatory and medical protections for
patients? Where were the safeguards that protect people from
being exposed to doses of radiation without appropriate medical
supervision? And where were the medical ethics that create
doctor-patient relationships and dictate the responsibilities of
doctors to the patients they diagnose?
When we dug into the facts, we found doctors, screening
companies and lawyers all standing in a circle, each one pointing
to the next as the responsible party. It appears everyone here
wanted to take advantage of the litigation value of a so-called
"diagnosis," but no one wanted to be accountable for the medical
significance of the diagnosis. As Judge Jack wrote in her opinion,
"By dividing the diagnosing process among multiple people, most
of whom had no medical training and none of whom had full
knowledge of the entire process, no one was able to take full
responsibility over the accuracy of the process."
This Committee's investigation is beginning to corroborate the
Judge's opinion on that point. However, what concerns me is
whether these divisions in the diagnosing process were not an
accident but rather a matter of the right hand being willfully
ignorant of what the left was doing. That is to say, were the
doctors, the screeners, and lawyers purposefully turning a blind
eye to possible lapses in medical standards, practices, and ethics so
they could not be held accountable? Let me just give one brief
example of this blind eye.
A common theme emerging in this Committee's investigation
is that, with minor exceptions, there seems to have been an
apparent "misunderstanding" between the doctors, lawyers, and
screeners about whether the doctors' opinions in this case were
actual medical diagnoses. Where there was pretty straightforward
diagnosing language in two sets of reports, the doctors have
claimed that someone apparently slipped the language into the
reports and they were too busy to notice it when they were signed.
What's going on here?
This is not a misunderstanding about some minor point in a
report. It's a misunderstanding about whether a person does, or
does not have, a deadly disease. This is stunning and remarkable.
Between the doctors who have taken the Fifth before this
Committee and the doctors who now claim they never meant to
diagnose anyone, I count as many as 5,000 people whose diagnosis
is now questionable or unsupported. Can this be right? How can
this happen? Chairman Whitfield, this matter alone underscores
the importance of this investigation.
I want to again thank Chairman Whitfield for his work on this
issue and for holding this third day of hearings. I look forward to
the testimony and yield back the remainder of my time.
PREPARED STATEMENT OF THE HON. MICHAEL BURGESS, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Thank you Mr. Chairman, and thank you for your continued
leadership into the investigation of this important public health
issue. While today we continue to address the potential problems
associated with mass screening and the diagnosis of illnesses, I
strongly believe that it is the role and responsibility of this entire
committee to address the imminent health care needs of our
nation. We must not abdicate our responsibility to the American
public to actively pursue public health concerns. Thank you, Mr.
Chairman for recognizing this vital role of our committee and
investigating such a serious issue.
I have been licensed to practice medicine in the State of Texas
since 1977. Through my over twenty years in medical practice, I
learned to fully appreciate the importance and need for an efficient
and effective medical screening process. Thousands upon
thousands of lives have been saved due to medical screening
processes that were able to detect illnesses and other serious
maladies. This system relies upon trained physicians and other
medical personnel to perform reliable diagnostic evaluations.
Without this crucial element, the screening system falls apart, thus,
jeopardizing the health and welfare of the public that was meant to
be protected. The medical community, including physicians and
medical boards, must recognize this essential function.
One of the first lessons that a medical student learns is that the
doctor/patient relationship is sacred. For a doctor to truly help the
patient, the patient must have full faith and trust in the doctor.
Once the relationship has been established, the doctor owes a
fiduciary duty to the patient, and must exercise a high standard of
care towards the patient. This relationship is a cornerstone of the
medical community, and cannot be easily disregarded. The
situation before us today exemplifies the harm that can occur when
patients believe that the relationship has been established but the
doctor abandons his duty.
Today, I look forward to examining my homestate's rules and
regulations involving mass health screenings in Texas. I would
like to especially welcome Mr. Richard Ratliff of the Texas
Department of State Health Services, and Dr. Donald Patrick of the
Texas Medical Board. Gentlemen, thank you for traveling from
Austin today to address this important issue. I look forward to
entering into a lively discussion with each of you.
While I am appreciative of these witnesses coming before us
today, I would also like to take a moment to express my extreme
dissatisfaction regarding the absence of two witnesses on the
second panel-Mr. Heath Mason of N&M, Inc., and Dr. Todd
Coulter. While they chose not to appear before Congress today, I
have full faith that the Chairman will continue to explore all legal
means to obtain their testimony.
Again, Mr. Chairman, I thank you for this hearing, and I look
forward to working with you and the rest of the committee to
achieve real results for the public health and welfare of this
country.
I yield back the remainder of my time.
MR. WHITFIELD. At this time I would like to call the first
panel up to the witness table, please. On the first panel we have Mr.
Robert Goff, who is the Director of Division of Radiological
Health, the Mississippi Department of Health. We have Dr.
Mallan Morgan, who is Executive Director of the Mississippi State
Board of Medical Licensure. We have Mr. Richard Ratliff, who is
the Radiation Control Officer for the Division of Regulatory
Services, the Texas Department of State Health Services; and we
have Dr. Donald Patrick, Executive Director of the Texas Medical
Board, who also happens to be a lawyer as well. I want to
welcome the four of you gentlemen and we appreciate very much
your being here.
You are aware that the committee is holding an investigative
hearing and when doing so we have the practice of taking
testimony under oath. Do any of you have any objection to
testifying under oath today? As you may or may not know, under
the rules of the House and the rules of the committee, you are
entitled to be advised by legal counsel. Do any of you desire to be
advised by legal counsel this afternoon. Yes, sir?
DR. PATRICK. This is Mari Robinson sitting behind me.
MR. WHITFIELD. Would you identify your counsel again? I
didn't catch the name.
DR. PATRICK. Mari, M-a-r-i, Robinson.
MR. WHITFIELD. Mari Robinson?
DR. PATRICK. Correct.
MR. WHITFIELD. And Mari, is that you? Okay. Thank you.
Now, she will not be testifying but is here to give you advice.
Okay.
[Witnesses sworn]
MR. WHITFIELD. Thank you. You are now under oath. You
may sit down and give your 5 minute opening statement. Mr.
Goff, we can just start with you, so you are recognized for 5
minutes.
STATEMENTS OF ROBERT W. GOFF, DIRECTOR, DIVISION OF RADIOLOGICAL HEALTH,
MISSISSIPPI DEPARTMENT OF HEALTH; MALLAN G. MORGAN, M.D., EXECUTIVE DIRECTOR,
MISSISSIPPI STATE BOARD OF MEDICAL LICENSURE; RICHARD A. RATLIFF, P.E.,
L.M.P., RADIATION CONTROL OFFICER, DIVISION OF REGULATORY SERVICES, TEXAS
DEPARTMENT OF STATE HEALTH SERVICES; AND DONALD PATRICK, M.D., J.D.,
EXECUTIVE DIRECTOR, TEXAS MEDICAL BOARD
MR. GOFF. Good afternoon, Congressman Whitfield.
MR. WHITFIELD. Be sure and turn your microphone on as well.
MR. GOFF. Good afternoon, Congressman Whitfield and
members of the committee. The Mississippi regulations for--
MR. WHITFIELD. If you could hold just one minute. I am
sorry. We still seem to be having a little difficulty.
MR. GOFF. Good afternoon. The Mississippi regulations for
control of radiation have provisions which address healing arts
screening. These provisions were adopted from the Suggested
State Regs, which were developed by the Conference of Radiation
Control Program Directors, which is a professional organization
made up of radiation programs. Many States use the very same
regulations.
The purpose of the healing arts screening is to allow screening
of individuals for certain health indications without the
requirement that the physician write a specific and individual order
for each person. The screening program must be conducted under
the authorization of a physician licensed in accordance with the
Mississippi statutes. During the past few years we cited and we
have investigated four companies with mobile X-ray units that
were conducting healing screenings without the agency's approval.
Other information from other sources has indicated that other
companies may have also entered the State without our knowledge.
Currently, there are only two screening programs approved in
Mississippi at two universities for bone density studies. There are
no programs approved for silicosis. The Mississippi Department
has identified areas in our review process of applications for
healing arts screening that need to be improved as well as revisions
of the regulations for clarification of screening programs. I would
be more than happy to answer any questions you have today.
[The prepared statement of Robert W. Goff follows:]
PREPARED STATEMENT OF ROBERT W. GOFF, DIRECTOR, DIVISION
OF RADIOLOGICAL HEALTH, MISSISSIPPI DEPARTMENT OF HEALTH
The Mississippi Radiation Law of 1976, Sections 45-14-1 thru
45-14-69 of the Mississippi Code of 1972, annotated established
the Mississippi Department of Health as the state agency to
administer a state-wide radiation program and to promulgate
regulations for the use of sources of radiation, Sections 45-58-1
through 41-58-5, of the Mississippi Code of 1972 and the
Mississippi Department of Health's "Regulations Governing
Registration of Medical Radiation Technologists", established the
requirements for radiological technologists in 1997.
The Mississippi Regulations for Control of Radiation (MRCR)
has provisions which address healing arts screening. These
specific provisions were adopted from the Suggested State
Regulations, which were developed by the Conference of
Radiation Control Program Directors, Inc. to promote uniform
radiation protection regulations among the states.
The purpose of healing arts screening was to allow screening of
individuals for certain health indications without the requirement
that the physician write a specific and individual order for each
person. However, a screening program must still be conducted
under the authorization of a physician licensed in accordance with
the Mississippi statutes.
In order to conduct a health screening program, a company
must submit the required information as listed in Appendix B of
Section F of the Mississippi Regulations for Control of Radiation
in letter form requesting approval, signed by an officer of the
company or management given the authority to do so. A health
screening program must not be initiated without approval of the
Agency.
A review of the records indicates that the Mississippi
Department of Health has conducted four investigations of
companies with mobile x-ray units for conducting health screening
without the Agency's approval. All companies were cited for
failure to comply with the regulations. Three of the four companies
terminated their activities within the state of Mississippi. The
fourth company submitted a screening program which was later
approved.
With the exception of two health screening programs approved
for bone density studies at two universities, no health screening
programs using sources of radiation are currently approved .
The Mississippi Department of Health has implemented certain
procedural changes in the review of applications and issuing
registrations for screening programs. The Division Director
reviews all applications for health screening programs in
consultation with the medical members of the Radiation Advisory
Council. Only those applications associated with a medical or
educational institution and conducting a specific medical study will
be considered. All applications will require, in addition to an
officer or management signature, the medical director's signature.
The registration for screening programs will contain specific
conditions that identifies the program has been approved under the
medical director and that the registrant must notify the Agency if
any information becomes invalid or outdated. In addition to
placing specific conditions on registrations approved for health
screening, all mobile x-rays units registrations will have a
condition that clearly states that the registrant is not authorized for
healing arts screening and that the unit must be used only under the
authorization of a physician licensed in accordance with
Mississippi statutes.
The staff is currently working on revising Section F, "X-rays
in the Healing Arts" of the Mississippi regulations to clarify the
healing arts screening requirements. The CRCPD Healing Arts
Working Group is also revising the Suggest State Regulations on
healing arts screening.
Although, the steps taken above will certainly improved the
regulation of screening programs in Mississippi, there will still be
those companies that will conduct illegal health screening
programs without the knowledge of Mississippi Department of
Health .
MR. WHITFIELD. Thank you, Mr. Goff. At this time Dr.
Morgan, who is the executive director of the Mississippi State
Board of Medical Licensure, you may give your opening
statement, Dr. Morgan.
DR. MORGAN. Congressman Whitfield, the Mississippi State
Board of Medical Licensure would like to thank you for the
invitation and opportunity to testify before this subcommittee on
the matter of silicosis screening that took place in several States,
including Mississippi.
By way of background, through both statutory and regulatory
enactments, the board licenses physicians, osteopaths, and
podiatrists in the State of Mississippi. As with any regulatory
agency, regulations are adopted from time to time to address
certain needs implementing the Board's overall policy to protect
the public and ensure the administration of proper medical care.
During 2002 the Board received a number of inquires from various
entities offering unreferred diagnostic screening in the State of
Mississippi. Unreferred screens are those performed without a
physician's order. Mobile diagnostic laboratories operated by for-
profit entities were traveling throughout the State and offering a
number of diagnostic modalities including sonograms and in some
cases X-rays. The Board was not aware at the time of any mobile
screening being conducted for the identification of plaintiffs in
mass tort litigation. In response, the Board adopted a policy on
July 18, 2002, subsequently amended on January 15, 2003, thus
advising the public as to the Board's position as to unreferred
diagnostic screening tests. The policy reads as follows: "It is the
opinion of the Mississippi State Board of Medical Licensure that
any medical act that results in a written or documented medical
opinion, order, or recommendation that potentially effects the
subsequent diagnosis or treatment of a patient constitutes the
practice of medicine in this State. Further, any physician who
renders such a medical opinion, order, or recommendation assumes
a doctor/patient relationship with the patient and is responsible for
continuity of care with that patient. Failure to provide this
continuity of care will be deemed to be unprofessional conduct.
The obligation to ensure continuity of care does not apply in those
instances where the physician rendering the medical opinion,
order, or recommendation has been called in by another treating
physician solely for consultative purposes."
During the Board's inquiry, it was determined that patients
were being solicited through various advertisements to seek
without a prior doctor's order diagnostic modalities in order to
determine if any disease or abnormalities were present. The results
of the screens were transmitted to out-of-state physicians who
rendered diagnoses. The Board was concerned as to whether or
not, one, proper medical and family histories were being taken to
rule out contraindications including but not limited to the
overexposure of radiation due to frequent utilization of X-rays;
two, the manner in which the abnormalities were being
communicated to the patient; three, assurances that patients with
abnormal screenings were being referred for timely and proper
medical intervention; four, whether or not the physicians rendering
the diagnoses were properly trained and/or credentialed; and
number five, the method by which the Board could hold
accountable those physicians rendering such diagnoses.
By virtue of the adoption of this policy on unreferred
diagnostic screening tests, the Board requires all out-of-State
physicians to be licensed in the State of Mississippi, thus
accountable to our Board. Further, the Board determined that in
those cases where X-rays were part of the modality offered, an
individual or standing order for such an X-ray must be made by a
Mississippi-licensed physician. Where the result resulted in the
identification of an abnormality, the mobile facility must make
reasonable efforts in writing to communicate with the patient and
see that the patient is properly referred to a treating physician for
needed medical care.
Subsequent to adoption of the above policy, the Board has been
advised that certain members of the Plaintiffs' Bar have employed
the services of physicians to conduct diagnostic screening for the
purpose of identifying potential plaintiffs in silicosis and other
mass tort reform--excuse me--tort litigation. On August 29, 2005,
the Board was contacted by the Mississippi State Medical
Association advising the Board that four Mississippi physicians
had been subpoenaed to appear before the Energy and Commerce
Committee. The Board of Trustees of the AMA requested that this
Board investigate the involvement of the four named physicians.
On September 8, 2005, the Executive Committee of the Board
discussed the request and elected to defer any investigation until
the Federal investigation had been completed. The Board, being
not only a licensure agency but also a law enforcement agency
under the Mississippi Uniform Controlled Substances Act, has in
the past been requested by both Federal and State law enforcement
agencies to assist the investigation of certain licensees. In this
context, Federal and State authorities have expressed preference
that the Board not conduct independent investigations or hearings
until after their investigation has been completed. Such requests
for abeyance are based on the language set forth in Mississippi
Code Annotated 73-25-27, in part: "At such hearing, Licentiate
may appear by counsel and personally in his own behalf. Any
person sworn and examined as a witness in such hearings shall not
be held to answer criminally nor shall any papers or documents
produced by such witness be competent evidence and any criminal
proceedings against such witness other than for perjury in
delivering his evidence."
It was the opinion of our Attorney General's office that any
hearings conducted by the Board, wherein the physician may
testify or introduce papers on his or her behalf, could not be used
against that physician in the State or Federal case. In response, the
Board placed such matters in abeyance.
We point out the above facts, not by way of excuse but to
explain the background for the Board's December 8, 2005,
decision not to pursue the independent investigation of the four
physicians until conclusion of the Federal inquiry. Based on our
discussions with Mr. Cooke, Counsel for House of
Representatives, Committee on Energy and Commerce, we now
have a greater understanding of the nature of the Federal inquiry,
in other words, not criminal. The Board fully intends to continue
to conduct an exhaustive investigation in response to the
information from the AMA and MSMA. This includes evidentiary
use of the opinion rendered by The Honorable Janis Graham Jack,
depositions of all the Mississippi licensees and the numerous
patient history and diagnoses forms bearing the signatures of
Mississippi licenses. In so doing, we may be calling upon you and
the Committee staff for assistance and/or further information.
The Board takes its responsibility to protect the public very
seriously and fully intends to conduct the investigation as
expeditiously as possible. In this regard, we are advised by our
complaint counsel that any testimony before this committee will be
that of the undersigned only and does not represent nor should be
construed by the committee and others as expressing any opinion
as to the guilt or innocence of the four named physicians. A
license to practice medicine is a valuable property right. It cannot
be denied or revoked without adequate due process of law, in other
words, notice of charges and an opportunity for a hearing before an
objective and non-biased decision maker.
Again, we thank you for your assistance.
[The prepared statement of Mallan G. Morgan, M.D. follows:]
PREPARED STATEMENT OF MALLAN G. MORGAN, M.D., EXECUTIVE
DIRECTOR, MISSISSIPPI STATE BOARD OF MEDICAL LICENSURE
MR. WHITFIELD. Thank you, Dr. Morgan. At this time I
would recognize Mr. Richard Ratliff, who is the Radiation Control
Officer for the Texas Department of State Health Services. You
are recognized, Mr. Ratliff.
MR. RATLIFF. Good afternoon, Congressman Whitfield and
members of the subcommittee. I am Richard Ratliff. I am with the
Department of State Health Services.
MR. WHITFIELD. Do you have your microphone on?
MR. RATLIFF. It shows that it is on. Yes, there we go.
I am Richard Ratliff with the Department of State Health
Services. In Texas we have a State statute that allows the
department to regulate all sources of radiation which includes
radioactive material, X-rays, and lasers. We have specific rules
and require that physicians prescribe each X-ray procedure. We
have developed rules specifically for several types of screening
and they are similar to Mississippi, only for bone densitometry,
which is a fairly simply process, for mammography, which is real
popular, and for heart CT. In each case, the radiation applicant for
the X-ray registration must submit specific requirements so they
have a physician on staff, what procedures they will follow, and
how they will complete the diagnosis.
We have never authorized screening in our terminology for
silicosis, and as we started through, in 1999 one of our State
representatives had contacted us and had multiple newspaper
articles advertising free X-rays so our inspector and--in Texas we
have like 11 health regions. They went to the specific sites and we
did find five separate companies that were doing X-ray screening
and they were not authorized and so we have at that point advised
them they could not continue. One of them had to paid a $10,000
penalty. Three others paid smaller penalties and had notices of
violation. All the companies have gone out of Texas now.
After looking at what has happened here, you know, we have
16,000 X-ray registrars in Texas. We have five companies, and so
we look at risk, but still if they are not following the rules, they
would now go forward with even stricter and severe penalties. We
then have determined that we will not allow any company to do
any out-of-State X-ray unless they notify us every time they come
into the State. Historically, they had a condition on their
registration that we could request and within 24 hours they would
bring their records to the State but this has brought the fact that we
really need to have a condition that any time they come to the State
they have to notify us and give us an opportunity to inspect them.
Like I said, none of the companies are continuing in business in
Texas. They have all ceased. Two of the ones that were doing
screening were medical facilities but somehow got connected with
separate law firms. Once they realized what they were doing was
screening, they stopped and they are just doing their regular
practice of medicine now. I would be willing to answer any
questions.
[The prepared statement of Richard A. Ratliff follows:]
PREPARED STATEMENT OF RICHARD A. RATLIFF, P.E., L.M.P.,
RADIATION CONTROL OFFICER, DIVISION OF REGULATORY
SERVICES, TEXAS DEPARTMENT OF STATE HEALTH SERVICES
Good afternoon, Congressman Whitfield and members of the
Subcommittee. I am pleased to be here today to discuss the
radiation regulatory requirements for medical x-ray users in Texas
and answer your questions on specific findings concerning x-ray
screening investigations conducted by the Texas Department of
State Health Services (DSHS).
Texas Health and Safety Code, Title 2, Subtitle D, Chapter 401
(Texas Radiation Control Act) provides for regulation of sources
of radiation to ensure protection of the occupational and public
health and safety and the environment. The Texas Radiation
Control Act mandates that a person may not use a source of
radiation unless that person has a registration from DSHS and it
directs DSHS to adopt rules and guidelines that provide for
registration of sources of radiation.
DSHS has adopted rules specific to healing arts screening in
Title 25, Texas Administrative Code (TAC), 289.226 and 227.
The rules define healing arts screening, require persons performing
healing arts screening to be registered with DSHS prior to
initiating the screening program, and requires specific information
to be submitted with an application for healing arts screening.
These DSHS rules define healing arts screening as "The testing
of asymptomatic human beings using radiation machines for the
detection or evaluation of health indications when such tests are
not specifically and individually ordered by a licensed practitioner
of the healing arts legally authorized to prescribe such x-ray tests
for the purpose of diagnosis or treatment."
Specific application information includes the diseases or
conditions for which the x-ray examinations are to be used in
diagnoses, a detailed description of the x-ray examinations
proposed in the screening program, a description of the population
to be examined in the screening program (age, sex, physical
condition) and an evaluation of any known alternate methods not
involving ionizing radiation that could achieve the goals of the
screening program and why these methods are not used instead.
An application for healing arts shall be signed by a licensed
practitioner. The application must also be signed by the radiation
safety officer. Additionally, the qualifications of the individual
who will be supervising the operations and the name and address
of the practitioner who will interpret the radiographs must be
submitted with the application. A condition is added to the
certificate that ties the registrant to commitments made in the
application.
A licensed practitioner of the healing arts, licensed in Texas, is
required to direct/oversee the operation of radiation machines.
Individuals who operate radiation equipment must meet the
appropriate credentialing requirements in accordance with the
Medical Technologist Certification Act, Texas Occupations Code,
Chapter 601.
DSHS does not require a licensed practitioner to be present/on
site when a company conducts healing arts screening. However, a
practitioner licensed to practice in Texas must be designated to
direct and oversee the operation of the radiation machines and to
interpret all x-ray films.
An application for authorization to conduct healing arts
screening must include the submission of procedures to be used in
advising the individuals screened, and their private practitioners of
the healing arts, of the results of screening procedures and any
further medical needs indicated.
DSHS to date has only authorized healing arts screening for
three diagnostic x-ray procedures: mammography, bone
densitometry, and heart computed tomography (CT).
In 1999 DSHS began investigations into complaints concerning
unauthorized x-ray healing arts screening of individuals for
possible illness due to asbestos or silicosis. The DSHS
investigators revealed that seven entities had x-rayed individuals
after interviewing them for exposure to silica in the workplace.
Only one of the seven companies had licensed physicians
providing each person x-rayed with an individual prescription and
thus was not performing screening x-rays as defined by rule. Five
of the other six companies were not authorized to perform x-ray
screening procedures.
One company had submitted an application for registration,
which was denied after it failed to submit verification that a
physician would oversee the operation of the x-ray registration and
provide each person x-rayed an individual prescription for the x-
ray. Five of the companies were from outside the state of Texas.
One company paid a $10,000.00 administrative penalty for
violations of DSHS rules and three others were issued notices of
violation.
Currently none of the seven companies are performing x-ray
screening in Texas. Only two medical facilities are still performing
x-ray procedures in Texas. The following table summarizes the
Texas DSHS' investigations. All future out of state x-ray
registrants will be required to notify the Texas Department of State
Health Services each time they do x-ray exams in Texas to assure
compliance with all regulatory requirements. Thank you for
requesting my testimony on this issue today. I will be happy to
answer any questions.
MR. WHITFIELD. Thank you, Mr. Ratliff. At this time Dr.
Patrick, who is the Executive Director of the Texas Medical Board,
we welcome your testimony.
DR. PATRICK. Mr. Chairman and Congressmen, thank you
very much for allowing us to be here today.
I am Donald Patrick. I am the executive director of the Texas
Medical Board. I represent the State agency that licenses and
regulates Texas physicians. Currently more than 55,000
physicians hold Texas licenses. We investigate complaints and the
Board takes disciplinary action when appropriate. This last year
we had over 500 disciplinary hearings, took 304 disciplinary
actions including 70 actions against physicians who are no longer
practicing because of that action.
I would like to comment on several broad issues that are being
considered by your committee. The first is the definition of the
practice of medicine. The Texas Medical Practice Act defines the
practice of medicine as "the diagnosis, treatment or offer to treat a
disease, disorder, deformity, or injury by any method by a person
who either publicly professes to be a physician or who charges for
their services." It is 151.002(a)(13) of the Texas Occupations
Code.
Diagnosing a disease is clearly within the definition of the
practice of medicine. The Medical Practice Act requires anyone
who practices medicine in Texas or on patients in Texas to be
licensed by the Texas Medical Board. The legislature has deemed
that practicing medicine without a license in Texas is a felony, so
whenever we hear of an individual practicing medicine without a
license, we refer them to law enforcement activity either locally or
statewide.
The second issue I want to address is diagnosis. What
constitutes a diagnosis? The commonly understood definition of
diagnosis is stated in medical dictionaries. It is a determination of
the nature of a disease and the art of distinguishing between one
disease and another. I suggest that diagnosis is properly made after
considering a patient's history, performing a physical examination,
and reviewing imaging studies and other diagnostic tests.
The history may be either oral or written and the physician
commonly uses a form for past history and occupational history as
a questionnaire completed by the patient or a trained office
assistant. Ideally, the physician personally takes the present illness
and review of systems history information and family history. The
delegation of this responsibility to others does create risk of error
that every physician recognizes.
The physical examination may be complete or focused. For
any lung ailment, a physical examination should include vital
signs, observation of the patient's breathing, palpation of the chest
wall for abnormal adventitious rubs and symmetrical chest rising
and falling, percussion to detect increased or decreased resonance,
listening to the heart and lungs for equality of volume, and
character of sounds including rales, rhonchi, and wheezes. Also,
clubbing of the fingers and cyanosis is also noted. The next step is
to get a chest X-ray and pulmonary function tests as indicated.
Based on all this information, the physician arrives at a
diagnosis. This is the proper procedure for making a diagnosis. It
does not mean, however, that making a diagnosis with less than the
history, physical examination, and imaging and diagnostic studies,
if indicated, is not failing to make a diagnosis. It is just doing it
poorly. The determination of the nature of a disease by reviewing
only an X-ray may be a medically incomplete diagnosis but it is a
diagnosis, nevertheless.
Another issue raised in your committee's inquiry is the doctor-
patient relationship. More specific to your inquiry is the question:
What duty does a physician have to inform a patient of a
diagnosis? We believe that a physician has a duty to inform
patients of diagnoses reached by that physician unless there is a
clear, signed release by that patient that explicitly states that the
patient acknowledges that there is no doctor-patient relationship
established. Such a release is common for independent reviews in
workers' compensation cases. These releases are also common in
cases in which an expert witness examines a plaintiff for an
attorney in a medical malpractice case. The doctor-patient
relationship is implied unless there is an express disclaimer signed
by the patient.
I will be glad to respond to any questions that you may have,
Mr. Chairman and Congressmen.
[The prepared statement of Donald Patrick, M.D., J.D.,
follows:]
PREPARED STATEMENT OF DONALD PATRICK, EXECUTIVE
DIRECTOR, TEXAS MEDICAL BOARD
EXECUTIVE SUMMARY
The practice of medicine is the diagnosis, treatment or offer
to treat a disease, disorder, deformity, or injury by any
method by a person who either publicly professes to be a
physician or who charges for the services.
Diagnosis is the determination of the nature of a disease --
the art of distinguishing one disease from another
A diagnosis is properly made after considering a patient's
history, performing a physical examination, and reviewing
imaging studies and other diagnostic tests.
The determination of the nature of a disease by reviewing
only an X-ray may be a medically incomplete diagnosis, but
it is a diagnosis, nonetheless.
I am Dr. Donald Patrick, and as Executive Director of the
Texas Medical Board, I represent the state agency that licenses and
regulates Texas physicians. Currently, more than 55,000
physicians hold Texas licenses. We investigate complaints and the
board takes disciplinary actions when appropriate. Last year, the
Texas Medical Board took 304 disciplinary actions against
licensed Texas physicians.
I would like to comment on several broad issues that are being
considered by your committee. The first is the definition of the
practice of medicine. The Texas Medical Practice Act defines the
practice of medicine as the diagnosis, treatment, or offer to treat a
disease, disorder, deformity, or injury by any method by a person
who either publicly professes to be a physician or who charges for
the services. [see 151.002(a)(13), Texas Occupations Code]
Diagnosing a disease is clearly within the definition of the
practice of medicine. The Medical Practice Act requires anyone
who practices medicine in Texas or on patients in Texas to be
licensed by the Texas Medical Board.
This raises the second issue that I want to address: What
constitutes a diagnosis? The commonly understood definition of
diagnosis, as stated in medical dictionaries, is the determination of
the nature of a disease and the art of distinguishing one disease
from another [see Stedman's Medical Dictionary and Dorland's
Illustrated Medical Dictionary]. I suggest that diagnosis is
properly made after considering a patient's history, performing a
physical examination, and reviewing imaging studies and other
diagnostic tests.
The history may be either oral or written and physicians
commonly use a form for past history and occupational history as a
questionnaire completed by the patient or a trained office assistant.
Ideally, the physician personally takes the present illnesses and
review of systems history information. The delegation of this
responsibility creates risks of error that every physician recognizes
(or should recognize).
The physical examination may be complete or focused. For
any lung ailment, a physical examination should include vital
signs; observation of the patient's breathing; palpation of the chest
wall for abnormal adventious rubs and symmetrical chest rising
and falling; percussion to detect increased or decreased resonance;
and listening to the heart and lungs for equality of volume and
character of sounds, including r�les, rhonchi, or wheezes.
The next step is to get a chest X-ray and pulmonary function
tests, as indicated.
Based on all of this information, the physician arrives at a
diagnosis. This is the proper procedure for making a diagnosis. It
does not mean, however, that making a diagnosis with less than the
history, physical examination, and imaging and diagnostic studies,
if indicated, is not failing to make a diagnosis - it is just doing it
improperly. The determination of the nature of a disease by
reviewing only an X-ray may be a medically incomplete diagnosis,
but it is a diagnosis, nonetheless.
Another issue raised in your committee's inquiry is the doctor-
patient relationship. More specific to your inquiry is the question:
What duty does a physician have to inform a patient of a
diagnosis? We believe that a physician has a duty to inform
patients of diagnoses reached by that physician unless there is a
clear, signed release by the patient that explicitly states that the
patient acknowledges there is no doctor-patient relationship. Such
a release is common for "independent reviews" in workers'
compensation cases. These releases are also common in cases in
which an expert witness examines a plaintiff for an attorney in a
medical malpractice case. The doctor-patient relationship is
implied unless there is an express disclaimer signed by the patient.
I will be glad to try to respond to any questions you may have.
MR. WHITFIELD. Dr. Patrick, thank you very much, and I
thank all of you for your testimony. I would like to ask this first
series of questions to Mr. Goff and Mr. Ratliff to get your
responses, please. To make sure I understand this correctly, there
are a number of steps that have to be in place before legal X-rays
can be taken in Mississippi and Texas. First you have to have an
X-ray machine that is properly registered or licensed. Is that
correct?
MR. GOFF. That is correct.
MR. WHITFIELD. All right. Then you have to have a technician
that is licensed to operate the machine. Is that correct?
MR. GOFF. That is correct.
MR. RATLIFF. Correct.
MR. WHITFIELD. Now, once you have those two things, an X-
ray can be legally taken of a person in both States in only one of
two ways. First, a medical practitioner who is licensed in your
State can specifically and individually order the X-ray for a
patient, so that is one way, correct?
MR. GOFF. Yes.
MR. WHITFIELD. All right. The second way is under this
healing arts screening application and approval, then they can do it
that way as well. Is that correct?
MR. GOFF. That is correct.
MR. RATLIFF. Yes. In Texas, like I said, it is really limited to
just a few procedures.
MR. WHITFIELD. And in Texas, you have never had a healing
arts application approved for silica?
MR. RATLIFF. No. In fact, we had one that come through that
we actually denied because they would never submit physician
qualifications and physician oversight documents.
MR. WHITFIELD. Now, what about in Mississippi? Have you
had a healing arts process approved in Mississippi?
MR. GOFF. Yes, we have.
MR. WHITFIELD. And who submitted that application? Do you
remember?
MR. GOFF. N&M I believe submitted one and--
MR. WHITFIELD. N&M, and did you approve that?
MR. GOFF. Yes, that was approved. Initially they were
conducting it without one and they were later approved in January
of 2003.
MR. WHITFIELD. Now, I would ask both of you, have either
one of you administered a penalty for anyone conducting a
screening without the proper license for screening arts?
MR. GOFF. No, we haven't. We don't have civil penalties in
the State of Mississippi. We have criminal penalties. We have to
prove willful violation.
MR. WHITFIELD. Okay. So you only have criminal penalties in
Mississippi?
MR. GOFF. That is correct. We do have administrative
penalties that we can have for cost of investigation and that sort of
thing. We have the opportunity to deny or revoke a registration.
MR. WHITFIELD. Okay. But in Texas, you have civil
penalties?
MR. RATLIFF. Yes, Congressman. We have civil and
administrative. In one case, a company, U.S. X-ray from
Chesapeake, Ohio, we ordered them to cease and desist operations
when we found them operating and assessed a $10,000
administrative penalty, which they paid.
MR. WHITFIELD. Okay. Now, as we conducted our hearings,
one of the things that we discovered, for example, RTS from
Mobile, Alabama, wrote to our committee and they said
specifically we were never told by anyone that an individual could
not request their own X-ray; throughout our years of conducting
business, we believed that an individual could request their own X-
ray for silicosis screenings. Is that true in Mississippi? Can an
individual request the X-ray?
MR. GOFF. The X-ray has to be conducted under a physician's
order or either under a screening program authorized by a
physician.
MR. WHITFIELD. Okay. And what about Texas?
MR. RATLIFF. Yes, Congressman, you have to have a
physician prescription. In fact, we had a company, Respiratory
Testing Services, if that is the same one, the one that applied for a
registration for screening, which was denied and they were told up
front that they could not do screening for silicosis. They had to
have a process where a physician looked at each person and wrote
a specific prescription.
MR. WHITFIELD. So it is a little surprising to me that
companies who are involved in this business would think that these
could be self-prescribed, and I take it you would agree with that?
MR. RATLIFF. I would agree.
MR. WHITFIELD. Now, on Tab 9, do you all have an exhibit
book on your table there? If you all wouldn't mind looking at Tab
9 in your binder, and I just wanted to ask you this question. In Tab
9, there is a document which is signed by Dr. Jay Segara, M.D.,
who practices in Ocean Springs, Mississippi, and in that document,
he writes a standing order for prescription for X-rays to be taken in
Texas, Alabama, Louisiana, and Mississippi. I would ask both of
you, is this type of blanket prescription allowed in either of your
States?
MR. GOFF. No. In our regulations it says specifically
individually ordered, and in my opinion, this would not be
individually ordered.
MR. RATLIFF. And I agree. This appears that it is a blanket
authorization and the technologist is actually writing the
prescription, filling in the data, so it wouldn't be valid.
MR. WHITFIELD. Now, I would like to order that this exhibit
book be placed into the record--I think you all have copies of it--
since you are testifying from that. Okay. So blanket orders are not
allowed either. So if there is a doctor's order, must there be a
writing made or note taken of who the doctor is that is responsible
for the X-ray such as in the instance of a doctor in a large hospital
who calls the X-ray department and says I am sending down a
patient, take this type of X-ray. There is a note in the chart that
reflects the ordering physician. Is that correct?
MR. RATLIFF. Yes, in Texas it is. In fact, the doctor can do a
standing order for the technician to take the X-rays but there is an
individual prescription for the X-ray.
MR. WHITFIELD. But those recordkeeping requirements are
also applicable to mobile X-ray screening?
MR. GOFF. Our regulations don't specifically say that.
MR. WHITFIELD. Does not?
MR. GOFF. No.
MR. WHITFIELD. So it would be possible that they could do it
the way Mr. Ratliff said they couldn't do it in Texas?
MR. GOFF. Which is? Clarify, please.
MR. WHITFIELD. Well, if a doctor just says I am sending down
a patient, take this type of X-ray, he just makes a phone call down
to the mobile unit and says this X-ray, is that allowable?
MR. GOFF. He should have some record where he wrote a
specific order for that.
MR. WHITFIELD. Okay. All right. Now, Mr. Ratliff, I just
want to just ask you a few questions about two companies with us
here today: N&M Screening Company and RTS Screening
Company. According to the information we have, N&M did 6,757
diagnoses in Texas and RTS, 1,444 diagnoses in Texas. First of
all, I would like to ask you, has your State ever approved a healing
arts screening application by N&M or RTS?
MR. RATLIFF. No.
MR. WHITFIELD. Okay. Now, if you would look at Tab 3 in
your binder, and at Tab 3, did RTS ever have a license to operate
an X-ray machine in the State of Texas?
MR. RATLIFF. They had a certificate of registration but it did
not allow screening.
MR. WHITFIELD. They had a certificate of registration?
MR. RATLIFF. Right.
MR. WHITFIELD. Now, what does that mean?
MR. RATLIFF. That is equivalent to a license. In X-ray, we
have registration and we license radioactive materials.
MR. WHITFIELD. But they never had a license?
MR. RATLIFF. Never had a license and their permit expired by
failure to pay their fee this past year.
MR. WHITFIELD. Now, in Tab 3 around page 4, you do have to
have a license a Texas doctor signed as a supervising physician on
these applications as the one who would be responsible for it,
correct?
MR. RATLIFF. Yes, Congressman.
MR. WHITFIELD. And on page 6 in Tab 3 in a fax, RTS leaves
the impression in this fax to me to say that the supervising doctor
will be Dr. Robert Altmeyer. Down toward the bottom of the
page, it says--it is sort of difficult to read it but--well, first off on
paragraph 11 of page 1, in the petition it says, "As a licensed
practitioner, I do hereby affirm that I am associated with this
applicant and provide supervision to non-practitioners
administering radiation to human beings or animals" and of course
no one signed that so there is no licensed physician, but on page 6
they appear to be saying that a Dr. Robert Altmeyer would be the
one that would be responsible for these X-rays. It is my
understanding from discussion with people in your office and
others that Dr. Robert Altmeyer has never been licensed in the
State of Texas. Do you know if that is true or not? Dr. Patrick.
DR. PATRICK. I am sorry. I wasn't asked to--but we can--
MR. WHITFIELD. Okay. Mr. Ratliff?
MR. RATLIFF. Didn't know and in fact we questioned that and
then we never got a response and that is why the application then
was denied.
MR. WHITFIELD. Okay. So you did question it and you never
had a response so you denied it?
MR. RATLIFF. Right.
MR. WHITFIELD. Now, in your testimony, I believe you talked
about five or six screening companies operating in Texas, actually
taking X-rays, never had a license to do so. Is that correct?
MR. RATLIFF. Yes, Congressman.
MR. WHITFIELD. And would you be able to name those five or
six that never had a license to operate in Texas?
MR. RATLIFF. Yes. The ones we have are RGL Medical
Services from Park City, Utah, but they were found by our
inspectors and issued a notice of violation and they left the State,
and sent a letter acknowledging they were in violation. And then
we had a Respiratory Testing Services, Mobile, Alabama, had
applied. We never found them doing it but their registration was
denied because they wouldn't provide the data. Then U.S. X-ray
from Chesapeake, Ohio, was found multiple times doing X-ray.
One inspector found them in one part of the State and the next day
another inspector. They were issued a cease-and-desist order and
then they paid a $10,000 penalty. And then N&M Testing from
Moss Point, Mississippi, had their registration expire. We had an
attorney from one of the law firms when our investigation was
doing some investigations in Dallas sent us their brochure showing
they were doing screening and the inspector never could catch
them. They left the site.
MR. WHITFIELD. Well, I see my time has expired so Mr.
Stupak, I will recognize you for your time.
MR. STUPAK. Thank you. Mr. Ratliff, if I may, if we can just
go to Exhibit #3 that the chairman was asking you about and on
page 1 there he indicated on part--this is Exhibit 3, page 1, number
11 was unsigned and then he goes to page 6 and mentions a Dr.
Altmeyer. Because Dr. Altmeyer's signature appeared on that
form, does that mean Dr. Altmeyer was in Texas practicing
medicine?
MR. RATLIFF. No, our X-ray registration staff would have
checked to see was he licensed to do business in Texas. Then
when we did the inspection we would have verified that he was
actually supervising. When we asked these questions, we never
got a response.
MR. STUPAK. And he could have signed that in Mississippi or
any other State?
MR. RATLIFF. He has to be a physician licensed in Texas.
MR. STUPAK. Sure, but he could be licensed in Michigan,
Washington, D.C., he could still sign this form, right?
MR. RATLIFF. Yes, if he was licensed in Texas, yes.
MR. STUPAK. That violation comes in if a patient takes this
form or an X-ray company takes this form and goes to Texas and
then tries to take the X-ray, correct?
MR. RATLIFF. Yes, and what happened here, they never got a
registration so they weren't authorized to do it anyway.
MR. STUPAK. Sure. Okay. Dr. Morgan, if I may, last
September a Michael Mavis, the Executive Vice President and
CEO of the American Medical Association, referred to the
Mississippi State Board of Medical Licensure the names of Dr.
Glyn Hilbun, Dr. Todd Coulter, and Dr. Kevin Cooper for
investigation based on the findings of Judge Jack. Did the Board
receive the AMA letter?
DR. MORGAN. Yes, they did.
MR. STUPAK. Has investigation or any action been taken based
on that letter?
DR. MORGAN. A minimal investigation. As I mentioned
earlier, the Board in Mississippi has been under the impression in
the past that not only the State authorities but also Federal have
asked us that when they have an ongoing criminal investigation, to
hold off on our investigation until there is a result thereof. We
thought there was going to be an investigation judging by Judge
Jack's opinion and we were never told anything any different until
Mr. Cooke came along and we got this information that apparently
there is no Federal investigation. We thought there was one. So
we have obviously stepped up our investigations. It is of interest
to know perhaps that there has been a food-basket turnover in the
Mississippi Board. We were approved for seven investigators last
summer. We had three which included the chief investigator and
two investigators. I myself have been at the Board only six months
now so I was not there during the September meeting. I can only
go by what the record shows.
MR. STUPAK. So as far as we know, no investigation has been
undertaken of these three individuals that--
DR. MORGAN. No, that is not true. An investigation is
undergoing and--
MR. STUPAK. It is now undergoing?
DR. MORGAN. Is now undergoing. An investigation of some
of these individuals has taken place already but not a full-fledged
investigation. None of them have been called before the Board at
this point.
MR. STUPAK. When you thought there was going to be other
investigation, did your Board communicate to the AMA that you
were going to defer your inquiry until these other investigations,
State or Federal, were complete?
DR. MORGAN. I note that it is in our minutes that we were
going to delay any in-depth investigation until the Federal
investigation was completed, but now whether or not they
communicated that to the AMA, I don't know.
MR. STUPAK. In your testimony, a statement by the
Mississippi State Board of Medical Licensure that, and I quote
now: "Any medical act that results in a written or documented
medical opinion, order, or recommendation that potentially effects
the subsequent diagnosis or treatment of a patient constitutes the
practice of medicine." Would you consider a B reader diagnosing
silicosis on the basis of an X-ray that as being the practice of
medicine under this definition?
DR. MORGAN. Under that definition, yes.
MR. STUPAK. What if the B reader does not have any other
relevant information such as occupational history and is under the
impression that he is only confirming another doctor's diagnosis?
Would such an activity accompanied by a statement such as, and I
quote again, "This patient's X-ray shows symptoms consistent
with a positive diagnosis of silicosis," would that constitute the
practice of medicine in Mississippi?
DR. MORGAN. In my opinion, yes.
MR. STUPAK. The statement goes on to state that a physician
who issues a medical opinion as defined above "assumes a doctor-
patient relationship with the patient and is responsible for
continuity of care of that patient" and that failure to do so would
constitute "unprofessional conduct." In the event that a physician
looked at hundreds of these X-rays and issued diagnosis without
ensuring the continuity of care of these patients, could this
constitute instances--more than one obviously--of unprofessional
conduct then?
DR. MORGAN. Obviously it is for my Board to make that
decision. However, in my opinion, yes, definitely.
MR. STUPAK. Based upon the scenario I laid out, what action
could your Board take?
DR. MORGAN. The only action that--we do not have any
criminal authority--so all we can do is either suspend or revoke
their license, or perhaps just bring them in for a reprimand if it was
something less obvious.
MR. STUPAK. Sure. Now, in Texas you could take the license,
right, if you found it would be--you could take their license plus
you have criminal authority, Dr. Patrick?
DR. PATRICK. Yes, sir. If they were licensed in the State of
Texas, then we would have jurisdiction over them and we could
have a wide range of sanctions that we could take against them.
Most likely what would be more than administrative penalty would
be more serious than that, I would guess, but again, I am not the
Board making that decision.
MR. STUPAK. If we go to--if you could take a look at, Dr.
Patrick, number three, Exhibit #3 that the Chairman had pointed
you, and let us say this is Dr. Altmeyer, which was Exhibit #3,
page 6 where he signed his form, and let us say he was licensed in
the State of Michigan and he gave this form to one of these X-ray
technician companies or one of these X-rays companies and they
came to Texas and took chest X-rays looking for silicosis. You
would have no action against that doctor because he is licensed in
Michigan. You can only take action if they are licensed or actually
physically practice medicine in the State of Texas, right?
DR. PATRICK. It would just refer him to law enforcement but
your assumption is right that we have no jurisdiction over him.
MR. STUPAK. Refer him to law enforcement in Michigan or in
Texas then?
DR. PATRICK. In Texas.
MR. STUPAK. But if he never practiced or was never physically
present in Texas or signed these forms in Texas, what would be the
grounds of a criminal referral then?
DR. PATRICK. Well, without his signature on this document
authorizing X-rays to be taken in Texas, those X-rays could not
have been taken in Texas.
MR. STUPAK. But would your action be against the X-ray
company that took the X-ray or would it be some doctor in
Michigan who happened to sign a form that was then utilized in
Texas?
DR. PATRICK. I admit that it has ramifications that I haven't
thought through.
MR. STUPAK. Well, I am just trying to think this out here a
little bit. That is all. Like I said, we have had three hearings on
this and everyone is a little different so I am trying to tie it all
together if I can. Would you say that most doctors who consider
providing a diagnosis on an X-ray would consider that practicing
medicine?
DR. PATRICK. Yes.
MR. STUPAK. Are you familiar with what we call B readers?
DR. PATRICK. Yes.
MR. STUPAK. Do you think B readers take that same advice or
would reach that same conclusion?
DR. PATRICK. They are providing a diagnosis.
MR. STUPAK. You indicated that the Texas Medical Board
took action I think on 300 and some cases.
DR. PATRICK. This last year, yes.
MR. STUPAK. Against Texas physicians. What were they?
Were they for things like this or were they for much more serious
things? I am not trying to get anyone's--I don't want any names or
anything. I am just trying to get some understanding of the depth
of the action that would be taken like in Texas.
DR. PATRICK. Wide range of actions all the way from not
doing their continuing medical education, which would be an
administrative thing, all the way up to multiple episodes of
violation of standard of care and harming patients, in which we
would revoke their license.
MR. STUPAK. How about criminal action? Any criminal action
then?
DR. PATRICK. We have no criminal action capability but we
would refer it--
MR. STUPAK. Refer it.
DR. PATRICK. --to the appropriate--
MR. STUPAK. Of these 300 and some, were some referred to
law enforcement for further--
DR. PATRICK. Yes.
MR. STUPAK. Would you say that a company doctor evaluating
an employee is subject to the same regulatory professional and
ethical standard that the Board's policy specifies as a physician
doing consulting work for a screening company?
DR. PATRICK. I think it depends on the facts, and I don't have
enough fact from what you just said to me to come up with a
conclusion. If he is seeing a patient for the purpose of a diagnosis,
treatment, or an offer to treat, then it is clear under our statute that
he is practicing medicine.
MR. STUPAK. The reason why I asked the question, some of
these hearings we have had, we have had company doctors look at
the medical evidence and say there is no silicosis here. Then you
have these B readers or something and they say well, yes, there is.
So I am trying to figure out how the ethics and the professional
standards in the practice of medicine should be the same whether
you are a company doctor or a B reader, right?
DR. PATRICK. Oh, I didn't understand your question.
MR. STUPAK. Maybe my explanation is better now. That is
what I am trying to drive at.
DR. PATRICK. So we have someone who is operating for the
defense, on the side of the defense in a silicosis-type tort litigation
and he looks at the same X-ray and says there is no silicosis here,
therefore making a diagnosis that there is not silicosis. I think that
is a diagnosis that is not silicosis.
MR. STUPAK. But the same professional, legal, and ethical
standards would apply to both those cases though?
DR. PATRICK. I have not run into that particular scenario and I
can see where it has some subtleties to it but I also see where that
is applying a form of a diagnosis. If you say yes or no, sometimes
there is more leeway if you are saying no rather than making a
diagnosis but if you say yes and make a diagnosis, then that clearly
is silicosis. You say no, there is no silicosis, that is a diagnosis.
MR. STUPAK. I know my time is over, but if I say based upon
the evidence I can't make a determination, that is not a diagnosis?
That is not practicing medicine?
DR. PATRICK. Well, that is--
MR. STUPAK. You don't get yourself in a pickle.
DR. PATRICK. --borderline.
MR. STUPAK. Thanks. Thank you, Mr. Chairman.
MR. WHITFIELD. Thank you. At this time I recognize Mrs.
Blackburn from Tennessee.
MRS. BLACKBURN. Thank you, Mr. Chairman, and I want to
thank each of you for taking the time to be here and talk with us
today.
As some of my colleagues have said and mentioned, this is not
the first hearing that we have had on this and we are continuing to
work through the issue. We do recognize, certainly recognize that
if the licensure boards and the ethics committees were pursuing an
aggressive approach to cracking down on the behavior that
surfaced in Judge Jack's case that we would not be here having this
hearing today and we would not be having this discussion, and
since the situation is substantially impacting interstate commerce
and if the State boards are not going to perform their oversight
duties, then Congress may have to step in to solve the problem
through adoption of some Federal uniform diagnostic procedures
so that leads us to trying to figure out exactly what the best course
or the better course of action will be.
Dr. Morgan, I want to start with you for my questions, please,
sir, and I am going to the letter, the May 30 letter that you sent to
Chairman Whitfield, and on page 2 of that letter you go into
talking about a Board policy and in this you are--and I am quoting
from your letter: "It is the opinion of the Mississippi State Board
of Medical Licensure that any medical act that results in a written
or documented medical opinion, order, or recommendation that
potentially effects a subsequent diagnosis or treatment of a patient
constitutes the practice of medicine in this State." What I would
like for you to do, if you will, please, sir, is to provide us with a
definition of a medical opinion, of an order and then of a
recommendation and how you separate these three.
DR. MORGAN. Well, starting with a medical order, it would
simply be either a written order on a chart at a hospital or on a
prescription pad requesting a chest X-ray, for instance. That would
be the order. It is signed by the physician. In the case of a
screening company, I think the Board will allow the screening
company to do chest X-rays if a physician has taken the authority
and the responsibility for that screening company's X-rays and
readings, generally a radiologist. It would be assumed that that
individual would be on site or be immediately available, readily
available in case there was any problem, and would then be
reading the X-rays. Now, the diagnosis would be depending on the
language. If you have the language saying diagnosis silicosis, then
obviously that is a diagnosis. If the reading says something along
the lines of this chest X-ray is consistent with silicosis, that may be
a different legal question, but if you say, as I think most of these
did, a reasonable degree of medical certainty, I think was the
wording they used, if they use that particular phrase then they are
making a diagnosis that that is what that chest X-ray showed. And
then from there the appropriate steps should have been that,
number one, they should refer the patient to their treating
physician, their family physician. They should probably have
notified the Department of Health, which to my knowledge neither
of these things took place. But that would be the proper thing
unless of course the ordering physician was the family physician
for that particular patient in which case he should undertake the
treatment of whatever diagnosis he made.
MRS. BLACKBURN. Okay. So I heard you use the words
"assume" and "assumption" a couple of times. It doesn't mean
that--
DR. MORGAN. Yeah, I know what that means.
MRS. BLACKBURN. --the physician was present but I thank you
for that. Okay. So then taking that as being your definition, the
Board's definition of medical opinion, order, or recommendation,
then if a medical professional subjects an individual to an invasive
or potentially dangerous medical procedure or procedures but lacks
the knowledge about the patient's condition or does not have a
medical opinion, order, or recommendation to conduct the
procedure, do you think that that would violate medical ethics?
DR. MORGAN. That was rather complicated actually depending
on which portion of that question. Could I have it in pieces,
please, ma'am?
MRS. BLACKBURN. You can break it up however you want it.
DR. MORGAN. Well, I don't have it written down in front of
me so I would have to ask you to repeat it.
MRS. BLACKBURN. All right. We will go at it again. If a
medical professional subjects a patient, an individual to an invasive
or potentially dangerous medical procedure or procedures, but
lacks knowledge about the patient's condition, let us say you have
got some acting on assumption, as you said, or does not have a
medical opinion, order, or recommendation to conduct that
procedure, then would that violate medical ethics?
DR. MORGAN. It would probably be considered malpractice.
MRS. BLACKBURN. Okay.
DR. MORGAN. It would for sure be, in my estimation, it would
be unethical. But the second part of the question would be a
different story because that individual could actually order the test
himself if he was a physician licensed in Mississippi or whatever
State where he was ordering or delivering the test so he could be
licensed to do that but once he renders a diagnosis or subjects
somebody to a potentially dangerous procedure, then it is expected
that he know something about the patient, enough to be sure that
he is being safe in his treatment of the patient.
MRS. BLACKBURN. All right. Dr. Patrick, I want to come to
you if I may, please, sir. I know that you are also an attorney, and
if a doctor knows that he or she will be giving a patient an
incomplete medical diagnosis of a disease but could perform a
simple, routine exam to confirm it and does not do so, are they
guilty of medical malpractice in your opinion?
DR. PATRICK. Well, I think there probably is a presumption
that activity could result in a malpractice action and probably a
judgment against the physician, yes.
MRS. BLACKBURN. There are some great articles that have
dealt with some of this and as we have dug into this issue, I have
enjoyed reading a couple of things out of Academic Radiology and
the Pepperdine Law Review and I am sure you are familiar with
some of these, and they have stated that the use of just an X-ray for
diagnosis constitutes unreliable expert testimony since the
diagnosis is inherently unreliable. Would you agree with that?
DR. PATRICK. There may be certain isolated situations where a
particular X-ray finding could be so pathonomonic of that
particular disease that nothing else could be it but right now I can't
raise one up in my brain to give you an example of that.
MRS. BLACKBURN. Okay. You know, those articles that I
mentioned, also they claim that the way these mass tort screenings
are used like the ones in Judge Jack's case violate medical ethics
and the model rules of professional conduct. Would you agree
with that?
DR. PATRICK. I am sorry. Would you--
MRS. BLACKBURN. I am talking about the articles that I had
referenced. They claim that the way the mass tort screenings are
used like the ones in the case that we are here discussing today,
that those actions violate medical ethics and the model rules of
professional conduct and I am just asking if you would agree or
disagree with that.
DR. PATRICK. There were many instances of professional
conduct that I read in Judge Jack's opinion that appeared to mirror
just exactly what you are saying.
MRS. BLACKBURN. Okay. Thank you. I yield back, Mr.
Chairman.
MR. WHITFIELD. Thank you, Mrs. Blackburn. Mr. Pickering,
you may recognize Mr. Goff and Dr. Morgan since you are from
Mississippi but you are recognized for your question.
MR. PICKERING. Mr. Chairman, thank you. Dr. Morgan, Mr.
Goff, welcome to Washington. I wish it was a different subject but
I do appreciate you coming today. I just have a few questions so
that I can--as we understand right, appropriate, and ethical medical
practices. But in this particular case in trying to determine whether
a physician has a responsibility in a case where a screening
company appears to have committed fraud, then the physician is
not responsible for the medical care if there has been fraud in the
underlying assignments are then in the documents that describe the
physicals. My point is this: If we are looking at physician
responsibility and a physician is assigned simply to do physicals,
nothing else, but then later it appears that somehow those general
physicals were then turned into some type of diagnosis or
verification of silicosis without his knowledge, then that physician
should not be responsible for the continuing care of a verification
or of, in this case, a fraudulent case of silicosis assignment. I wish
I had asked that more clearly and succinctly, but do you understand
my question?
DR. MORGAN. Which one of us are you asking?
MR. PICKERING. Let me start with you, Dr. Morgan.
DR. MORGAN. I was afraid that is what you would say. It is a
rather complicated situation. If the physician just does a history
and physical and records that without any impression, without any
diagnosis--
MR. PICKERING. Without any responsibility of--not being
asked to give the diagnosis of silicosis, just being assigned the
responsibility of a general physical.
DR. MORGAN. If he is asked to just do a history and a physical
and report his findings without any diagnosis and he does not make
any diagnosis, then I would not think that he would be responsible
for continuation of care. I mean, we do this all the time for young
people for athletic physicals at the schools and that sort of thing
and we don't assume care for those people. We do a history and
physical and generally without making a diagnosis. If something
shows up, we sent that kid on to their family doctor. So that would
be a situation where you do a physical and take a history but not be
responsible for anything beyond just--past that point. If you find
something, you send them to somebody who can take care of them.
MR. PICKERING. So whoever made the diagnosis would be
responsible for the continuing care responsibility or whoever
fraudulently doctored reports would be criminally responsible. Is
that--
DR. MORGAN. In my opinion.
MR. PICKERING. In your opinion?
DR. MORGAN. I don't know how the Board would vote on that
but in my opinion, that is correct.
MR. PICKERING. Thank you, Dr. Morgan. Dr. Goff, do you
have anything else you would like to add?
MR. GOFF. No.
MR. PICKERING. Thank you. Mr. Chairman, that is all.
MR. WHITFIELD. Thank you, Mr. Pickering. At this time I will
recognize I guess the only physician we have on our committee,
Dr. Burgess of Texas.
MR. BURGESS. Thank you, Mr. Chairman. Thank you for
holding this hearing. Can I ask unanimous consent that my
opening statement be made part of the record?
MR. WHITFIELD. Without objection--
MR. BURGESS. Because it was a good opening statement and I
hate it that I wasn't here to give it, and I do want to welcome Dr.
Patrick and Mr. Ratliff to our hearing from my home State of
Texas. Dr. Patrick, and for the benefit of the gentleman from
Michigan, you have done a great job as head of the Texas State
Board of Medical Examiners to put a lot of information up online
and make it very transparent to Texas consumers and for that I
thank you.
But in your oversight of thousands of doctors in Texas, how
did this occur? Is this something that the Texas State Board of
Medical Examiners should have picked up at some point along the
line?
DR. PATRICK. Our statute assigns us to work on the basis of
complaints. We are a complaint-based organization. If a
complaint comes in, then we investigate it. If it does not, then we
do not.
MR. BURGESS. I guess, Mr. Ratliff, a similar question to you.
Do you think your regulatory agency in Texas did a good job as far
as protecting patients from what appears to be a fairly predatory, if
not a fraudulent practice?
MR. RATLIFF. I think so, because once we found each of these
companies we either ordered them to cease and desist operations or
on the one case we thought were possibly legal but if they were
doing screening we said they had to stop and so we stopped the
practice.
MR. BURGESS. Now, in Texas, would it fall to the Texas
Department of Health--would someone have to report--I mean, a
diagnosis of silicosis is fairly rare in and of itself even with all the
dust we have out in west Texas so would someone be required to
report that? Is that a reportable illness? The gentleman from
Mississippi indicated it would be in his State. Is it in Texas?
MR. RATLIFF. Not that I know of because my group just does
the radiation aspect of it, but we would regulate the companies
who would do the X-rays to make the findings.
MR. BURGESS. Let me pick up on some stuff that the
gentleman from Michigan was asking about the B reader rendering
a diagnosis. Dr. Patrick, how is this different from someone
rendering, say, a second opinion for an insurance company? If
someone was to come to me saying my doctor has recommended a
surgery, I am coming to you to see if you concur with that, would
that establish a doctor-patient relationship between myself and that
patient or was I simply there to say yes or no to the other doctor's
diagnosis and then we both part company and go on about our
business?
DR. PATRICK. At that point you typically give that patient your
opinion about what you think should be done so you have
established a doctor-patient relationship. You have done the
history, the physical examination, seen the films, and you have
given an opinion to the patient and then the patient can take your
opinion and do what they wish with it. They may say well, if you
think surgery shouldn't be done, I won't have it done; if you think
it should be done, perhaps I will have it done by somebody else
other than the person that sent it or whatever. So there are many
ramifications of that relationship but typically your responsibility
to that the patient is to tell them what your diagnosis is somewhere
typically right away. That is normally what you would do.
MR. BURGESS. And is your concern with what we are dealing
with here is that patients were not informed of their diagnoses?
DR. PATRICK. Right.
MR. BURGESS. Just along the same lines of the Texas Medical
Practice Act and you referenced that someone would be in
violation of that if they were from another State, does that same
hold true to, say, a medical director? If I tell a patient they need
surgery, in order to get that cleared by the insurance company I
have got to dial 1-800 Minnesota, talk to a medical director, say
she doesn't meet our criteria for that surgery, surgery is denied. Is
that person practicing medicine outside of the--do they need a
Texas license to be able to deny that surgery?
DR. PATRICK. That is our position.
MR. BURGESS. And do you enforce that?
DR. PATRICK. We are in the process of working through the
rules on that but you can imagine the stakeholders that we have
involved in that and the bloodletting in those discussions.
MR. BURGESS. I can't even begin to imagine. Well, that is
interesting. I didn't realize that. The other question I would ask is,
of course this all came to light--a Federal judge saying oh, my
gosh, there is a virtual epidemic of silicosis cases in this country, it
almost seems like a sand bomb must have been dropped
somewhere. Why is it that a federal judge had to come to that
conclusion and say whoa, wait a minute, this isn't right; we are
seeing thousands of diagnoses that we never see under the normal
circumstance. It seems to me that someone in the medical
community should have caught that and that the medical
community should have been on top of this. Am I just being too
harsh on Texas doctors?
DR. PATRICK. Well, as I understand it, these--the X-rays were
they come into a Texas doctor, they would come in in bulk to his
office, who would look at them and give a diagnosis, send them
back. If there was a screening unit that came in, my understanding
is that it is a tractor-trailer, 18-wheeler with all the accoutrements
of an X-ray machine and perhaps a doctor's office, they go to Wal-
Mart. They don't go to the hospital. And why nobody saw that
and reported that to us, I don't know, but we didn't get a whiff of
it.
MR. BURGESS. Do you feel in general that would be a good
way to deliver medical care, diagnostic or therapeutic?
DR. PATRICK. No, I don't.
MR. BURGESS. Are there other instances where that is
happening in our State?
DR. PATRICK. There are, for example, other prescription
medical devices such as Dopplers, sonograms. Those are two I can
think of right now where they are screening in our State and we are
in the process of developing rules for that. Again, it is the same
very complicated sort of interaction trying to come up with the
right rules.
MR. BURGESS. Again, I just have to say, you have done such a
great job of bringing the regulation of Texas medicine to the
people and I just wonder if there is a place for some type of public
services announcement or advertisement about this type of practice
because I think you and I would agree, this is unusual, it is odd, it
doesn't seem to lend itself to credible diagnosis and treatment, and
you would have to ask yourself if the patients of Texas are being
well served by that type of activity. I don't know, just a thought.
The fact that this had to come to light by a Federal judge when it
was happening under our noses collectively in Texas is to be
distasteful and I am glad the judge caught it, but I would feel much
better about this whole investigation if Texas doctors had taken the
lead on this. I guess the only other question I want to ask is, if--
you made reference to a batch of X-rays that might come to a
physician. Now, if that physician is in another State, pick West
Virginia, for example, and those X-rays have been taken all over
the country, now, that doctor is still practicing medicine in West
Virginia where presumably he or she is licensed so that is not a
violation of any statute, is it, if they are asked to render an opinion
on an X-ray that happens to have been taken at Fort Worth and
then brought to their office in West Virginia to read?
DR. PATRICK. In Texas we have a telemedicine license that
you have to apply for. It costs the same as a regular license and
there is a whole list of qualifications and things that you can do,
and if you do have a telemedicine license from another State, then
you can review X-rays from Texas and render an opinion.
MR. BURGESS. In my mind, though, telemedicine implies a
real time sort of event. This patient is in the office, they are having
an X-ray made, that film then is digitally transferred to West
Virginia and read, but if a law firm, for example, has a thousand
patients that they want to pursue this multidistrict litigation, the X-
rays have been taken all over the country and they take a packet of
those X-rays up to a doctor in another State. Is that doctor
prevented from reading those X-rays because they have not been
taken in his home State?
DR. PATRICK. It is the rendering of an opinion to a Texas
patient is the problem, as I see it.
MR. BURGESS. Well, I must say in this case, in our review of
this case, I have never known radiologists to be a group of people
who will take a definitive stand. Usually their reports are full of all
types of subjective tenses and "might be" and "could relate." I
have never known a radiologist to be so forthright and say this X-
ray shows silicosis. Perhaps during my practice lifetime I wasn't
blessed with radiologists who are so self-assured. Well, I thank
you for taking the trip all the way up here to Washington and being
part of this panel today. I think you have been enormously helpful.
MR. WHITFIELD. Dr. Burgess, thank you very much. I would
like to ask a couple of additional questions to Dr. Patrick. Dr.
Patrick, on page 10 of the exhibit book on Tab 10, there is an
asbestosis medical examination under the name of Robert
Altmeyer, M.D., pulmonary medicine, and under the history--do
you have it there?
DR. PATRICK. Yes, sir, I do.
MR. WHITFIELD. Under the history it says, "This patient is a
male whom I examined in Texas on June 23, 2003, at the request
of the law firm of--" so and so and so and so. And then on the
under impressions on page 2, he says, "Based on the above data, it
is my opinion with a reasonable degree of medical certainty that
this man has simple silicosis." Now, if you look at that, I mean,
that phrase "with a reasonable degree of medical certainty" would
certainly appear to be a diagnosis if a physician said that, correct?
DR. PATRICK. Yes.
MR. WHITFIELD. And the fact that the person was examined in
Texas, if you are not licensed in Texas, then that would be
practicing without a license. Is that correct?
DR. PATRICK. This might fall under the periodic examination
statutes that we have. I am looking for it. She is going to find that
for me.
MR. WHITFIELD. Okay. Well, I will tell you, while we are
waiting for her--
DR. PATRICK. It is an unusual little crack.
MR. WHITFIELD. You do have an exemption for a periodic?
DR. PATRICK. Yes.
MR. WHITFIELD. Okay. We can talk about that in a minute.
Mr. Ratliff, in your testimony you specifically say that Respiratory
Testing Services of Mobile, Alabama, that their request to obtain a
license to operate in Texas was denied, primarily because they
didn't have a verification that a physician would provide each
individual with a prescription for an X-ray.
MR. RATLIFF. Yes.
MR. WHITFIELD. If you would look under Tab 13 in the same
book, there is an invoice from Respiratory Testing Services dated
June 23, 2003, which was just a few months after they made their
application and this is an invoice to the law firm of Provost and
Umphrey in Beaumont, Texas. In this invoice which is in the
amount of $50,000, it gives three days in which they made X-rays
in Tyler, Texas. Now, if they are doing that without a license to
operate, then that would be a violation of your rules and
regulations. Is that correct?
MR. RATLIFF. Yes, and in fact, they were specifically told in
writing they couldn't do any screening unless they made all these
requirements so they were on notice by us.
MR. WHITFIELD. So would you have the authority to fine them
based on this invoice showing that they were doing this in Texas
on those days?
MR. RATLIFF. We would refer it to our general counsel but I
think this would be something that they could look at, and if so, we
could proceed.
MR. WHITFIELD. But they would have to be in Texas in order
to be fined or do you have authority to--
MR. RATLIFF. Just in Texas. We have authority in Texas.
MR. WHITFIELD. Okay.
MR. RATLIFF. We denied their registration application so we
didn't give them permission to do anything, so now there is no
permission but I have to check with our attorneys just to see--I
don't think we have any jurisdiction outside the State.
MR. WHITFIELD. But you have civil and criminal penalties?
MR. RATLIFF. Civil, criminal, yes.
MR. WHITFIELD. Okay. Thank you. Dr. Patrick?
DR. PATRICK. The episodic consultation is intended for a
Texas physician like one who lives in Texarkana to take care of a
patient in Arkansas. It is not intended for someone in another State
to come into Texas. So I had episodic consultation on my brain
but I had the facts reversed.
MR. WHITFIELD. Okay. So it would not apply in this
situation?
DR. PATRICK. That is correct.
MR. WHITFIELD. Now, one other question, Dr. Morgan, I
would like to ask you if I can find it here. This committee in
investigating this had a number of encounters, I will say, with Dr.
H. Todd Coulter of Ocean Springs, Mississippi. Are you aware of
Dr. H. Todd Coulter of Ocean Springs, Mississippi?
DR. MORGAN. I know Dr. Coulter.
MR. WHITFIELD. Well, we wrote to medical boards in 21
States in March of this year about issues that we are discussing
here today and while not all the States felt they could release all
information they had about individual doctors and disciplinary
matters, Dr. Coulter from Ocean Springs by far had the most
extensive personal file that we have received, and after reviewing
the documentation from your office files as best we could
understand the files. It seems that Dr. Coulter was the subject of
numerous complaints for professional misconduct between 1999 to
2005 including a DEA investigator in 1999 reported that Dr.
Coulter was prescribing known drug abusers large quantities of
controlled substances. In 2001, your agency and the MS Bureau of
Narcotics visited Dr. Coulter's office investigating reports that
patients were getting prescriptions filled at multiple pharmacies,
several on the same day, and getting new prescriptions when they
already had prescriptions. In 2002, the Board of Pharmacy was
concerned that Dr. Coulter was writing notes on his prescriptions
directing patients to specific pharmacies. In 2002, Ocean Springs
Hospital reported that the hospital administration was concerned
about Dr. Coulter prescribing OxyContin to a patient with a history
for drug abuse and no real medical justification other than
headaches, and I could go on and on but I guess my question is, is
he subject to any disciplinary hearings at this time with your State
licensure board?
DR. MORGAN. I am not sure how to answer that. I was told
not to say anything about impending actions against any one of our
physicians.
MR. WHITFIELD. Okay.
DR. MORGAN. I am not going to take the Fifth. I can tell you
that you probably got that information probably from one of our
files, which would suggest that he is under investigation at the
present time, and your question is the same question--as I
mentioned before, I have only been there for six months on the
Board so your question is the same question that I asked our
investigator and I can tell you that I was told by him that the
investigation is underway.
MR. WHITFIELD. Well, you know he has been one of the
physicians involved in contracts with these screening firms and so
forth and I appreciate your remarks about that. Anyone else have
anything? Well, in that case, I want to thank you very much for
your testimony today. We genuinely appreciate your time coming
up here and we thank you for your cooperation, and with that--yes,
sir, Dr. Morgan?
DR. MORGAN. Could I ask one question, please, sir?
MR. WHITFIELD. Yes, sir.
DR. MORGAN. Well, actually two questions. Number one, will
we be given a summary of what takes place on this committee so
we will know what you all come up with? And the other question
would be, I have not heard about--we will discipline those
physicians who we can prove did something that they should not
do. My question is, going back through history we see the history
of asbestosis. Some of these patients were diagnosed as asbestosis
and then again as silicosis. We see Phen-Phen and we see
Propulcid and now some of the NSAIDs, the nonsteroidal anti-
inflammatory drugs. It seems like the legal profession has gone
crazy by continuously filing new suits where they involve
admittedly what appear to be some bad doctors, and my question
really is, are we doing anything to investigate the attorneys and
those who seem to be involved in these questionable suits?
MR. WHITFIELD. Well, I can tell you that this Committee on
Oversight and Investigations has had representatives of some of
the law firms with us. We are going to have another hearing in
which we are just going to be dealing with them. As you know,
there has been a lot of legislation, some of which has passed the
House on tort reform and malpractice reform. As you also
probably know, the Department of Justice is now filing charges
against one of the largest class-action law firms in New York City
and I think has indicted two of their main partners because they
were allegedly paying money for people to sign on as plaintiffs in
those class-action lawsuits, and as Mrs. Blackburn mentioned in
her remarks, we are also looking at the possibility of whether or
not there needs to be some Federal standard or not relating to mass
medical screenings, and we do have a website that you could have
access to that almost on a daily basis says what the committee is
doing, but as you well know, it is a very complicated process and
we are exploring all avenues to address this issue in every way that
we can.
DR. MORGAN. Thank you.
MR. WHITFIELD. Thank you. The first panel is dismissed.
Now, at this time I would like to call up the second panel, and on
the second panel we have Heath Mason with N&M, Inc.; Dr. Glyn
Hilbun from Moss Point, Mississippi; Charles Foster and Charlie
Brooke Brazell with RTS, Inc. of Mobile, Alabama; Dr. Robert
Altmeyer of Wheeling, West Virginia; Jeffery Guice with
Occupational Diagnostics out of Ocean Springs, Mississippi; and
Dr. Todd Coulter of Ocean Springs, Mississippi. Now, if everyone
on that panel would come forward.
Before we proceed any further, I would like to note the absence
of Health Mason of N&M, Inc. from Moss Point, Mississippi, and
Dr. Todd Coulter from Ocean Springs, Mississippi. The
committee had invited these two witnesses to testify today but both
refused, citing other obligations. The committee did subsequently
issue subpoenas to command their attendance and although both
men are represented by counsel, with whom our staff has been
speaking to at some length, neither Mr. Mason nor Dr. Coulter
authorized their counsel to accept service of the subpoena. The
U.S. Marshal Service has sought to make personal service on these
two individuals but has been unsuccessful. Dr. Coulter's conduct
unfortunately is not new to the committee. When this investigation
began with a letter in August 2005, Dr. Coulter refused to speak
with our staff, he hung up the phone on staff, and in one
particularly remarkable exchange, said that the way things were
done in Mississippi was through subpoenas. Accordingly, we tried
to accommodate him with a subpoena for his records on November
3, 2005, and served him with a subpoena through the U.S. Marshal
Service. Nevertheless, when staff contacted Dr. Coulter on
November 21, 2005, about his overdue response to the subpoena,
he responded that he did not even look at it. Ultimately the
committee received a one-page response from Dr. Coulter stating
that he had no records for the almost 237 people that he diagnosed
with silicosis. We also issued a subpoena for Dr. Coulter's
attendance here today, but as I noted, his attorney was not
authorized to accept service on his behalf. Dr. Coulter has truly
distinguished himself before the committee in his disregard for the
legal process and I would like to state that we do intend to continue
our pursuit of Dr. Coulter and we do intend to have him testify
before this committee at some point in time.
Now, with that, I want to thank all of you for being here today
to assist us in this investigation. At this time I would like to call all
of you before the Chair and you recognize that we are holding an
investigatory hearing and when doing so it is the practice of this
committee to take testimony under oath. Do any of you have any
difficulty testifying under oath today? Okay. The Chair then
advises you that under the rules of the House and the rules of the
committee, you are entitled to be advised by legal counsel. Do any
of you desire to be advised by counsel during your testimony
today? Mr. Guice?
MR. GUICE. Yes.
MR. WHITFIELD. And who is your legal counsel?
MR. GUICE. Mark Shamwell.
MR. WHITFIELD. Mark Shamwell. Okay. Thank you. And
Mr. Foster?
MR. FOSTER. Don Foster.
MR. WHITFIELD. Don Foster? Okay. So Don Foster will be
legal counsel for Mr. Foster. Anyone else here wanting to have
legal counsel today? Okay.
[Witnesses sworn]
MR. WHITFIELD. Thanks very much. You are now under oath,
and Dr. Hilbun, I will recognize you for your 5 minute opening
statement.
STATEMENTS OF GLYN HILBUN, M.D.; CHARLES E. FOSTER, RTS, INC.; CHARLIE
BROOKE BRAZELL, RTS, INC.; JEFFERY GUICE, d/b/a OCCUPATIONAL
DIAGNOSTICS; AND ROBERT ALTMEYER, M.D.
DR. HILBUN. Good afternoon, Chairman Whitfield, and
members of the committee. My name is Dr. Glyn R. Hilbun. I
have been a practicing physician for the past 40 years on the
Mississippi Gulf Coast.
Before I begin my formal remarks, I would like to make a brief
comment regarding the recent disaster on the Gulf Coast. As a
resident of Jackson County, Mississippi, who sustained major
property damage from Hurricane Katrina, I would like to thank the
members of the Energy and Commerce Committee for their efforts
on behalf of everyone from the Gulf Coast. We have begun a long
process of rebuilding and will continue to need support of
Congress. We will build back better than before.
Now I would like to make a brief statement regarding the
matter before this committee. Approximately 4 years ago I was
hired by N&M Incorporated to do physical examinations on
patients that were suspected of testing positive for silicosis. I
traveled to Columbus, Mississippi, to a location designated by the
testing company where I spent approximately 5 days performing
these examinations. I performed a short physical examination and
signed the forms that were provided by the company. I never gave
an opinion nor rendered a diagnosis on any of these patients. I saw
no pulmonary function studies, no X-ray reports. I only performed
a physical examination and signed each form and immediately
returned to my private practice in general surgery. I was
compensated $5,000 per day plus lodging. Approximately one
month later I was in surgery when my office manager called
stating that someone from N&M, Incorporated wanted the typed
physical examinations that I had previously performed to be re-
signed. My response was that my office manager stamped them,
that I had previously signed them. I assumed they had retyped the
original ones I had signed. To my dismay, someone had typed in
three sentences without my knowledge which indicated that I had
made the diagnosis of silicosis. This was brought to my attention
after being asked to give a deposition in this matter. The original
forms that I had signed had no such wording and I testified to this
in my deposition.
In conclusion, I want to state to this committee that in my 40
years of practice, I have never made a diagnosis of silicosis, never
tested anyone for silicosis, and I never owned or had access to any
equipment used in testing of silicosis.
Thank you, and I would be happy to answer any of your
questions.
[The prepared statement of Glyn Hilbun, M.D. follows:]
PREPARED STATEMENT OF GLYN HILBUN, M.D.
Good afternoon Chairman Whitfield, and members of the
Committee. My name is Glyn R. Hilbun, M.D. I have been a
practicing physician for the past forty years on the Mississippi Gulf
Coast. Before I begin my formal remarks, I would like to make a
brief comment regarding the recent disaster on the Gulf Coast. As
a resident of Jackson County, Mississippi, who sustained major
property damages from Hurricane Katrina, I want to thank the
Members of the Energy and Commerce Committee for their efforts
on behalf of everyone from the Gulf Coast. We have begun the
long process of rebuilding and with the continued support of
Congress, we will build back better than before.
Now I would like to make a brief statement regarding the
matter before this Committee. Approximately two years ago, I was
hired by N&M Incorporated to do physical examinations on
patients that were suspected of testing positive for silicosis. I
traveled to Columbus, Mississippi to a location designated by the
testing company where I spent approximately five days performing
the examinations. I performed a short physical examination and
signed the forms that were provided by the company. I never gave
an opinion or rendered a diagnosis on any of the patients. I saw no
pulmonary function studies or x-ray reports. I only performed a
physical examination and signed each form, and immediately
returned to my private practice of general surgery. I was
compensated five thousand dollars ($5.000.00) per day plus
lodging.
Approximately one month later, I was in surgery when my
office manager called stating that someone from N&M
Incorporated wanted the "typed" physical exams that I had
previously performed to be resigned. My response was for my
office manager to stamp them as I had previously signed them. I
assumed that they had retyped the originals. To my dismay,
someone had typed in three sentences without my knowledge
which indicated that I had made the diagnosis of silicosis. This was
first brought to my attention after being asked to give a deposition
in this matter. The original forms that I had signed had no such
wording and I testified to this in my deposition.
In conclusion, I want to state to this Committee that in my forty
years of practice, I have never made a diagnosis of silicosis, never
tested anybody for silicosis, and have never owned or had access to
any equipment used in testing of silicosis.
Thank you and I will be happy to answer any questions that
you may have.
MR. WHITFIELD. Thank you, Dr. Hilbun. Mr. Foster, do you
have an opening statement?
MR. FOSTER. No, sir.
MR. WHITFIELD. Ms. Brazell, do you have an opening
statement?
MS. BRAZELL. Hello. I am Charlie Brook Brazell. On behalf
of myself, I would like to thank you for allowing me the
opportunity to address your issues of concern today.
I have worked in the capacity of road manager since the latter
part of 2002 at Respiratory Testing Services and have enjoyed that
position while meeting the backbone of America. I am not nor
have I ever been in a position of ownership with regards to RTS
but I do believe, however, that RTS has offered a valuable service
to a people who would have otherwise never received its type of
service. We rest assured knowing that RTS has always been
topnotch with regards to its employees and procedures. RTS has
always had highly qualified and certified doctors which can be
verified by the resumes that have been submitted. With regards to
the technicians for X-ray and PFT, they are properly certified as
well.
I firmly believe that RTS has always been above the standard
with regards to the screening industry. I feel that we certainly
measure exceptionally well next to other screening companies.
Again, I appreciate the chance of allowing me to address your
concerns.
MR. WHITFIELD. Thank you, Ms. Brazell. Mr. Guice, do you
have an opening statement?
MR. GUICE. I have no statement.
MR. WHITFIELD. Dr. Altmeyer?
DR. ALTMEYER. Yes, sir.
MR. WHITFIELD. You are recognized.
DR. ALTMEYER. Mr. Chairman and members of the
committee, my name is Robert Altmeyer. I am a pulmonologist
from West Virginia. I have been invited by you to appear here
today.
By way of introduction, I have been practicing pulmonary
medicine in West Virginia for 25 years. I am certified by the
American Board of Internal Medicine in internal medicine and
pulmonary medicine and I am certified by the National Institute for
Occupational Safety and Health as a B reader. My practice is
limited to pulmonary medicine. On a daily basis I see patients in
local hospitals and in my office with occupation-related and non-
occupation-related lung diseases. I am currently the only lung
specialist in my area in West Virginia who sees patients for free if
they have no insurance or other method of payment. For the past
several years I have been listed in "Best Doctors" in the United
States as outlined on my CV. For the past 25 years I have also
been involved in the medicolegal aspects of occupationally related
lung disease. I have served as a consultant both for plaintiff
attorneys and for defense attorneys. The vast majority of my time,
however, is spent in the active practice of clinical pulmonary
medicine in West Virginia.
I would now like to comment on the steps necessary to make a
diagnosis of silicosis. First and most important is the fact that a
diagnosis of silicosis cannot be made on the basis of a chest X-ray
alone. In my 25 years of practice in pulmonary medicine, to my
knowledge I have not diagnosed silicosis on the basis of a chest X-
ray alone. The diagnosis of silicosis requires knowledge of silica
dust exposure coupled with a physical examination and a medical
history that excludes other more likely causes of the densities on
the X-rays. Infectious diseases, cancer, sarcoidosis, and many
other illnesses can mimic silicosis on an X-ray. A chest X-ray
consistent with silicosis is not a partial diagnosis but rather one of
the components that when combined with an appropriate history
and physical leads to an actual diagnosis of silicosis.
According to NIOSH protocol, if a chest X-ray shows
sufficient changes to be consistent with occupational
pneumoconiosis, then on the B reading report form, box 2A is
checked. This box does not indicate that the findings are
diagnostic of pneumoconiosis but rather are consistent with
pneumoconiosis. This is an important distinction. Apparently
there may be some confusion regarding this point among some
attorneys.
I would now like to outline my connection with the Federal
Silica MDL in Corpus Christi, Texas. In about the year 2002, I
was requested by a law firm to review chest X-rays as a B reader.
I reviewed these X-rays, approximately 250 of them, in my office
over an approximately 4-month period of time in West Virginia. I
felt that of the approximately 250, that 50 were consistent with
silicosis. Of these, approximately 35 were in the Texas MDL. I
did not make diagnoses of silicosis. My office staff can find only
B readings on these individuals and not examinations. However,
for a number of these B readings, apparently I was listed as the
silicosis diagnosing physician. This is not correct. In my reports I
clearly stated that the X-rays were consistent with silicosis. I know
of no complete examinations with diagnoses of silicosis that I
authored in this MDL. However, we were unable to find two
charts so there is some slight hesitation. We just can't find two of
them.
I was not requested to appear in any hearings in the Texas
Silica MDL. I was not asked to appear at the Daubert hearings
before Judge Jack. In her order she stated, "The diagnoses and
underlying methodology of Dr. Altmeyer and Dr. Levine are not
discussed in this Order. By agreement of the parties (because of
the relatively small number of diagnoses Dr. Altmeyer and Dr.
Levine issued), neither doctor testified at the Daubert
hearings/Court depositions." Again, to the best of my knowledge I
only performed B readings and did not make diagnoses of silicosis
on any of the individuals in the MDL. I was not criticized by
Judge Jack and I believe I have not engaged in any of the activities
like the ones that she was critical of in her order.
Over the years when performing a B reading, if I saw anything
potentially dangerous to a patient such as masses or nodules, this
was noted very clearly on my narrative report of the B reading and
also on the B reading form in the comment section. My office staff
would contact the law firm or ordering physician by phone to let
them know of the abnormality so that the individual could have
follow-up in a timely fashion. This protocol provided a triple
check to ensure that the person had appropriate follow-up by his
treating physician.
I have been involved in on-site screening for silicosis. When
present at screenings and if I felt a chest X-ray was consistent with
silicosis, then I would examine the patient. The examination
consisted of confirming the occupational and medical history. I
would accomplish this by actually dictating the patient's report on
a small tape recorder in the patient's presence at the time of the
exam so that he or she could make any additions, corrections, or
deletions. This methodology was to obtain the most accurate
information possible. Then a physical examination directed at the
cardiopulmonary system was done. This included auscultation, or
listening to the lungs, inspection of the chest, percussion of the
chest, listening to the heart, looking for clubbing and cyanosis of
the fingers, looking for supraclavicular adenopathy, or lymph
nodes above the breast bones, and checking for edema as well as a
general inspection of the patient.
Therefore, the individual would know precisely what was in his
report. If there was any concern about a nodule, for example, on
the X-ray, I would show this to the patient myself. It was my
practice not only to tell the patient of any significant abnormalities
but also to give written notification to the patient at that time.
Often after the dictation, the individual would ask me about his
report and I would answer fully. My concern is and always has
been to make sure that the individual understands the results of his
testing so that he can have follow-up by his own doctor.
Whenever I made a diagnosis of significant lung disease, I
informed the individual and advised follow-up by the personal
treating physician. It has been my understanding that without
making specific recommendations regarding treatment or
prescribing medications that a doctor-patient relationship was not
established by this procedure and I was acting more as a
consultant, not a treating physician. Nonetheless, I have always
strove to protect the patient's health in these screenings. I believe
that my B readings are accurate as are any of the diagnoses which I
have made. Because of my understanding of a lack of doctor-
patient relationship, I believe that I was able to perform
examinations in States in which I didn't have a license. It
subsequently several years ago came to my attention that this was
probably not accurate. As soon as I realized that there was any
potential problem with performing these examinations in a State in
which I did not have a license, I stopped doing them.
Thank you.
[The prepared statement of Robert Altmeyer, M.D. follows:]
PREPARED STATEMENT OF ROBERT ALTMEYER, M.D.
My name is Robert Altmeyer. I am a pulmonologist from West
Virginia. I have been invited by the chairman, Mr. Whitfield to
appear here today. By way of introduction, I have been practicing
pulmonary medicine in West Virginia for the past 25 years. I am
certified by the American Board of Internal Medicine in Internal
Medicine and Pulmonary Medicine and am certified by the
National Institute for Occupational Safety and Health as a B
Reader. My practice is limited to pulmonary medicine. On a daily
basis, I see patients in local hospitals and in my office with
occupationally related and non-occupationally related lung
diseases. I am currently the only lung specialist in my area in West
Virginia who sees patients for free if they have no insurance or
other method of payment. For the past several years I had been
listed in "Best Doctors" in the United States, as outlined on my
curriculum vitae.
Over the past 25 years I have been also involved in the medico
legal aspects of occupationally related lung disease. I have served
as a consultant both for plaintiff attorneys and for defense
attorneys. The vast majority of my time, however, is spent in the
active practice of clinical pulmonary medicine in West Virginia.
I would now like to comment on the steps necessary to make a
diagnosis of silicosis. First and most important is the fact that a
diagnosis of silicosis cannot be made on the basis of a chest x-ray
alone. In my twenty five years of practicing Pulmonary Medicine,
to my knowledge, I have not diagnosed silicosis on the basis of a
chest x-ray alone. The diagnosis of silicosis requires knowledge of
silica dust exposure, coupled with a physical examination and
medical history that excludes other more likely causes of the
densities found by chest x-ray. Infectious diseases, cancer,
sarcoidosis, drugs and other factors can mimic silicosis on a chest
x-ray. A chest x-ray consistent with silicosis is not a partial
diagnosis, but rather one of the components, that when combined
with an appropriate history and physical, leads to an actual
diagnosis of silicosis.
According to NIOSH protocol, if a chest x-ray shows sufficient
changes to be consistent with occupational pneumoconiosis, then
box 2A is checked. This box does not indicate that the findings are
diagnostic of pneumoconiosis but rather are consistent with
pneumoconiosis. This is an important distinction. Apparently
there may be some confusion regarding this point among some
attorneys. However, if they are
sophisticated enough to request a B reading, it is my opinion they
should be aware of this fact.
I now would like to outline my connection with the Federal
Silica MDL in Corpus Christi, Texas. I was requested by a law
firm to review chest x-rays as a B reader. Of several hundred chest
x-rays, I felt that approximately 50 were consistent with silicosis.
Of these, approximately 35 were in this MDL. I did not make
diagnoses of silicosis. My office staff can find only B readings on
these individuals and not examinations. However, for a number of
these B Readings, apparently I was listed as the silicosis
diagnosing physician. This is not correct. In my reports, I clearly
stated that the x-ray was consistent with silicosis. I know of no
complete examinations with diagnoses of silicosis, that I authored,
in this MDL. However, there are two records we cannot locate.
I was not requested to appear in any hearings in the Texas
Silica MDL. I was not asked to appear at the Daubert hearings
before Judge Jack. In her order she stated that "The diagnoses and
and underlying methodology of Dr. Altmeyer and Dr. Levine are
not discussed in this Order. By agreement of the parties (because
of the relatively small number of diagnoses Dr. Altmeyer and Dr.
Levine issued), neither doctor testified at the Daubert
hearings/Court depositions." Again, I would point out that I
performed B readings and did not make silicosis diagnoses, to my
knowledge, on any of these individuals in the MDL. I was not
criticized by Judge Jack and I have not engaged in any activities
like the ones described by Judge Jack.
Over the years, when performing a B Reading, if I saw
anything potentially dangerous to the patient such as masses or
nodules, this was noted very clearly on my narrative report of the
B reading and also in the " comment " section of the actual B
Reading form.. My office would contact the law firm or ordering
entity telephonically to let them know of the abnormality so that
the individual could have follow-up in a timely fashion. This
protocol provided a triple check to ensure that the person had
appropriate follow up by his treating physician.
I have been involved in on-site screening for silicosis. When
present at screenings, and if I felt that a chest x-ray was consistent
with silicosis, then I would examine the person. This examination
consisted of confirming the occupational and medical history. I
would accomplish this by dictating the individual's report in his or
her presence so that he or she could make any additions,
corrections or deletions. This methodology was to obtain the most
accurate information possible. Then a physical examination
directed at the cardiopulmonary system was done. This included
auscultation or listening to the lungs, inspection of the chest,
percussion of the chest, auscultation the heart, inspection for
clubbing and cyanosis of the digits, checking for supraclavicular
adenopathy (lymph nodes above the collar bones), checking for
peripheral edema (swelling of the legs) and a general assessment
by inspection of the person.
Therefore, the individual would know precisely what was in his
report. If there was any concern about a nodule, for example, on
the x-ray, I would show this to him. It was my practice not only to
tell the person of any significant abnormalities, but also to give a
written notification to the patient. Often, after the dictation, the
individual would ask me questions about his report, which I would
answer fully. My concern is and always has been to make sure that
the individual understands the results of his testing so that he can
have follow-up by his personal physician. Whenever I made a
diagnosis of any significant lung disease, I informed the individual
and advised followup by the personal treating physician. It has
been my understanding that without making specific
recommendations regarding treatment or prescribing medications,
that a doctor-patient relationship was not established by this
procedure and that, I was acting more as as a consultant and not a
treating physician. Nonetheless, I have always strove to protect the
patients' health in these screenings. I believe my B Readings are
accurate as are any diagnoses which I have made. I would be glad
to answer any questions you have.
Robert B. Altmeyer, M.D.
MR. WHITFIELD. Thank you, Dr. Altmeyer. Mr. Foster, you
are the owner and operator of Respiratory Testing Services, Inc.,
RTS as we have referred to it today. Can you tell me with
certainty that your company in each of the States where it
conducted screenings complied with applicable Federal, State, and
local law and regulation concerning the administration of
diagnostic tests such as X-rays?
MR. FOSTER. With all due respect, sir, to this honorable
subcommittee, on the advice of counsel I decline to answer the
questions and assert my Fifth Amendment privileges against self-
incrimination.
MR. WHITFIELD. Now, Mr. Foster, are you refusing to answer
all of our questions based on the right against self-incrimination
offered to you under the Fifth Amendment of the U.S.
Constitution?
MR. FOSTER. Yes, sir.
MR. WHITFIELD. And it is your intention to assert this right in
response to every further question that we might have today?
MR. FOSTER. Yes, sir.
MR. WHITFIELD. Well, given that, if there are no further
questions from the members, I will dismiss you at this time subject
to the right of the Chair to recall you and remind you that you
remain under the subpoena, so at this time you are excused.
MR. FOSTER. Thank you, sir.
MR. WHITFIELD. Mr. Guice, as the owner and operator of
Occupational Diagnostics, Inc., can you tell me with certainty that
your company in each of the States where it conducted screenings
complied with applicable Federal, State, and local law and
regulation concerning the administration of diagnostic tests such as
X-rays?
MR. GUICE. On the advice of counsel, I invoke my Fifth
Amendment privilege against self-incrimination.
MR. WHITFIELD. So you are refusing to answer all of our
questions based on this right against self-incrimination afforded to
you under the Fifth Amendment of the U.S. Constitution?
MR. GUICE. Yes.
MR. WHITFIELD. And it is your intention to assert that right for
any questions we may have today?
MR. GUICE. Yes.
MR. WHITFIELD. Given that, if there are no further questions
from the committee, I will dismiss you at this time subject to the
right of recall by the Chair and remind that you remain under our
subpoena subject to the subpoena, and at this time you are excused.
MR. GUICE. Thank you.
MR. WHITFIELD. Now, Ms. Brazell--is it Brazell?
MS. BRAZELL. Yes, sir, it is Brazell.
MR. WHITFIELD. What is your title at RTS?
MS. BRAZELL. I was road manager.
MR. WHITFIELD. Road manager?
MS. BRAZELL. Yes, sir.
MR. WHITFIELD. And what is your position today?
MS. BRAZELL. Well, RTS is no longer really in business.
MR. WHITFIELD. Oh, you are no longer in business?
MS. BRAZELL. We are not conducting business.
MR. WHITFIELD. When did you go out of business?
MS. BRAZELL. It would be 2005.
MR. WHITFIELD. Were you with them at that time?
MS. BRAZELL. Yes, sir.
MR. WHITFIELD. Now, at that time you were contracting with
law firms to do screenings and provide names to the law firm of
those who had positive screenings. Is that correct?
MS. BRAZELL. I am sorry. Can you say that again?
MR. WHITFIELD. I said, it was your contract with law firms or
agreement with law firms that you would do screenings and
provide names to the law firms of those people who had positive
readings for silicosis?
MS. BRAZELL. Yes.
MR. WHITFIELD. Is that correct?
MS. BRAZELL. That is correct, sir.
MR. WHITFIELD. And how many doctors were hired by your
firm to help with this project?
MS. BRAZELL. I can't answer that accurately. There were
several.
MR. WHITFIELD. Was Dr. Altmeyer one of your physicians?
MS. BRAZELL. Yes, sir.
MR. WHITFIELD. Okay. And when you hired these physicians,
what did you ask them to do?
MS. BRAZELL. I did not hire the physicians.
MR. WHITFIELD. Well, what was your understanding as to why
they were hired?
MS. BRAZELL. To read X-rays.
MR. WHITFIELD. And to--
MS. BRAZELL. See the patient if needed.
MR. WHITFIELD. Did you expect them to give diagnoses?
MS. BRAZELL. Yes, sir.
MR. WHITFIELD. And so when they were retained, that was
understood. Is that correct?
MS. BRAZELL. Yes, sir.
MR. WHITFIELD. Now, Dr. Altmeyer, you have indicated in
your testimony that that was not your understanding, that you were
simply a B reader. Is that true?
DR. ALTMEYER. No, at times I would read X-rays as a B
reader. I was on site at some silicosis readings in which if the X-
ray was consistent with silicosis, then RTS would perform a
pulmonary function test, a chest X-ray. I mean perform pulmonary
function studies and then I would examine the patient and perform
a history, a physical examination, interpretation of the pulmonary
function test and a B reading and issue a report. If the X-ray was
negative in terms that it was not consistent with silicosis, then that
would be it. It would just be the end of my report.
MR. WHITFIELD. So in some instances you were diagnosing
silicosis and in other instances you were not?
DR. ALTMEYER. That is correct.
MR. WHITFIELD. Now, you may have heard earlier when I was
discussing with the first panel that you were in Texas on behalf of
RTS examining patients in the State of Texas on June 23, 24, and
25 of 2003. Were you licensed to practice medicine in Texas?
DR. ALTMEYER. No, sir.
MR. WHITFIELD. And did you consider what you were doing
there on those three days to be the practice of medicine?
DR. ALTMEYER. I didn't feel that it was the practice of
medicine. The reason in my thinking was at that point in time was
I didn't believe that there was a doctor-patient relationship and I
couldn't understand how you could be practicing medicine without
a doctor-patient relationship. Now, maybe I would think different
of that now because now I know more than I did then at that point
in time. When I learned that this may be the practice of medicine,
I stopped it.
MR. WHITFIELD. So what you were actually doing in Texas? I
mean, were you examining these patients? Were you taking
medical histories?
DR. ALTMEYER. What I would do, if the X-ray was consistent
with pneumoconiosis, then a pulmonary function test was
performed and then I would do a history and physical examination
on the patient and combine that with the chest X-ray and the
pulmonary function test into a report.
MR. WHITFIELD. And you would submit that report to RTS?
DR. ALTMEYER. Yes.
MR. WHITFIELD. And in that report did you have some
diagnosis?
DR. ALTMEYER. Yes. If the X-ray was negative, then my
report would say not consistent with pneumoconiosis. If the X-ray
was positive--or consistent with and that led to the performance of
a history and physical examination and after that history and
physical examination I believed that the densities on the X-rays
were due to silicosis or asbestosis, then I would so state.
MR. WHITFIELD. Well, you know, in the forms that you
submitted to RTS, it does use the phrase "with reasonable medical
certainty I do believe that this patient has silicosis" and at least Dr.
Morgan and Dr. Patrick, as head of the medical licensure in
Mississippi and Texas, both stated, that if you are using those
terms, that that is a diagnosis and that certainly is the practice of
medicine.
DR. ALTMEYER. I know that now.
MR. WHITFIELD. Well, Dr. Hilbun, in your testimony you had
indicated that you frequently were quite busy and that they would
call and ask for these reports and that you had examined many,
many patients but that you were not aware that you were making a
diagnosis of any of those patients. Is that correct?
DR. HILBUN. I never made a diagnosis of silicosis.
MR. WHITFIELD. So that was never your intent to do that?
DR. HILBUN. No, I was just hired to do a physical. I never
expressed any opinion.
MR. WHITFIELD. All right. And you were hired by N&M
Screening Company?
DR. HILBUN. Yes, sir.
MR. WHITFIELD. And is that Mr. Heath, is he the President of
that group, or do you know?
DR. HILBUN. It was Mason.
MR. WHITFIELD. Yex, Heath Mason.
DR. HILBUN. I don't know if he was the President or not but he
was one of them.
MR. WHITFIELD. He is the one that you worked with. But if
you look at Tab 7, this is a form with your name on it and it talks
about--we have redacted information, the names of the patients and
so forth--but in the summary it says, "On the basis of this client's
history of occupational exposure to silica and a B reading of the
client's chest X-rays, then within a reasonable degree of medical
certainty, this person has silicosis," and it has your signature on the
bottom, but your position is that you did not understand that that
was there or maybe you didn't sign this or what happened?
DR. HILBUN. That is correct. Those three sentences are not
even in my vocabulary. I have never heard of them. I hand-signed
the physical examination. These are stamped, which is my stamp,
and I didn't read it, but I did not place those three sentences in
there and then sign it.
MR. WHITFIELD. So Ms. Brazell, I don't think Dr. Hilbun
worked with you all but did you as a matter of practice change
these documents submitted to you by the physicians?
MS. BRAZELL. Absolutely not.
MR. WHITFIELD. I see my time has expired. Mr. Stupak.
DR. ALTMEYER. Mr. Whitfield, I just want to maybe correct
something that didn't--to clarify it. I made diagnoses of silicosis in
some cases but to my knowledge, not in this specific MDL.
MR. WHITFIELD. Okay. Thank you.
MR. STUPAK. Dr. Hilbun, let us pick up where the Chairman
left off on Exhibit 7. You are saying the last three lines there--do
you have that book there? You have a book there. You can take a
look at Exhibit #7.
DR. HILBUN. This one?
MR. STUPAK. Yes. Go to #7 there, Exhibit 7. So those last
three lines where it says "summary," you are saying that is not
your statement?
DR. HILBUN. No, sir. That is not my statement.
MR. STUPAK. How about the rest of the stuff on the form? Is
that your statement? Like the history there that the individual
smoked one or two cigars--
DR. HILBUN. Most of the history was already on the little form
I had when I signed it.
MR. STUPAK. Okay.
DR. HILBUN. You know, I was presented with that.
MR. STUPAK. But that is your signature on the bottom?
DR. HILBUN. Right. That is a stamped signature, yes, sir.
MR. STUPAK. So you didn't sign it?
DR. HILBUN. No, sir.
MR. STUPAK. You stamped it?
DR. HILBUN. Stamped it.
MR. STUPAK. Before you stamped, was there anything under
"summary"?
DR. HILBUN. There was no such wording as "summary" on the
original physical that I signed.
MR. STUPAK. So where would this form stop then? After X-
ray?
DR. HILBUN. Sir?
MR. STUPAK. Well, where would the form stop before you put
your stamp on there? Under X-ray?
DR. HILBUN. Right. No, I didn't even do the X-ray. I don't
even know a thing about X-ray.
MR. STUPAK. What did you stamp then with your stamp?
DR. HILBUN. It says, "Breath sounds normal, no ankle edema,
clubbing, yes, cyanosis, no, cancer"--that is a history--"enlarged
heart, no." That's the physical examination.
MR. STUPAK. Okay.
DR. HILBUN. That is what I signed.
MR. STUPAK. So all you did was--so you only signed a form
that just had examination on it? It didn't have X-ray on it, didn't
have the summary on it?
DR. HILBUN. I never saw an X-ray. I couldn't put down X-
ray. No, I didn't see one.
MR. STUPAK. Okay. But did the report that you stamped have
X-ray on it? The report that you stamped, did it have summary on
it?
DR. HILBUN. No.
MR. STUPAK. How did this stuff magically appear then? Any
idea? I mean, it is all lined up pretty good. I mean, everything
seems pretty consistent there.
DR. HILBUN. All I can say is, this is not the form that I
originally signed when I did the physical.
MR. STUPAK. Okay. You said you gave no medical opinion,
you just examined, right?
DR. HILBUN. Right.
MR. STUPAK. What was the purpose of the exam?
DR. HILBUN. I was hired to do a physical examination.
MR. STUPAK. When you do a physical examination as a
medical doctor, don't you come to some opinions as to that
patient?
DR. HILBUN. No. It is like a football physical or Army
physical.
MR. STUPAK. No, I don't know. Explain to me.
DR. HILBUN. Well, I am not there to give a diagnosis: I am
there to do a physical examination.
MR. STUPAK. But based upon your examination, your physical
examination, someone must rely upon that examination, right? I
mean, you just didn't volunteer in Mississippi one day to go down
and do some examinations. Someone asked you to do
examinations for a reason, right?
DR. HILBUN. Well, I knew why I was going to--
MR. STUPAK. What was your understanding of why you were
going there?
DR. HILBUN. It was silicosis testing. They were testing for
silicosis.
MR. STUPAK. And then based upon your examination, physical
examination, someone was going to make some determination
whether this person had silicosis or not, right?
DR. HILBUN. I don't know of any way you can make a
diagnosis of silicosis on a physical examination.
MR. STUPAK. Okay. You indicated in your testimony, you
said that "approximately a month later I was in surgery when my
office manager called stating someone from N&M, Incorporated
wanted the typed physical exams I had previously performed to be
re-signed." Do you remember that?
DR. HILBUN. Yes.
MR. STUPAK. "So my response was for my office manager to
stamp them as I had previously signed them. I assumed that they
had retyped the originals." So in other words, you did sign
originals?
DR. HILBUN. I signed the original one.
MR. STUPAK. Okay.
DR. HILBUN. Okay.
MR. STUPAK. And then to your dismay, "someone had typed in
the three sentences without my knowledge."
DR. HILBUN. Right.
MR. STUPAK. Okay. And that was brought to your attention
during a deposition. Did you ever learn who typed in these three
lines?
DR. HILBUN. No, sir.
MR. STUPAK. Did you make any discovery or make any
attempt to discover who typed them in?
DR. HILBUN. No, sir.
MR. STUPAK. Had this ever happened to you before as a
medical doctor?
DR. HILBUN. No, sir.
MR. STUPAK. Wouldn't you be concerned that people are
typing in--
DR. HILBUN. Yes, sir.
MR. STUPAK. So what have you done about it?
DR. HILBUN. That is why I am here.
MR. STUPAK. That is why you are here?
DR. HILBUN. Yes, sir.
MR. STUPAK. To clear the record, or what?
DR. HILBUN. Yes, sir.
MR. STUPAK. Well, I would think if someone rendered a legal
opinion for me being an attorney or for you as a medical doctor,
you would try to find out who did it. Who paid you for all this
work? N&M, Incorporated?
DR. HILBUN. That was the company that paid me, yes, sir.
MR. STUPAK. Did you ever ask N&M what happened, how
come you got three more lines on your report that--
DR. HILBUN. I never had any more contact with N&M after the
litigation started, and that is when I found out that these lines had
been added.
MR. STUPAK. So you never contacted N&M? You have to
answer yes or no, sir.
DR. HILBUN. Didn't know anything about it.
MR. STUPAK. You stated in your testimony that your office
manager stamped the physical exams at your order and that it
wasn't until you went to your deposition you found out that they
were changed. How about your medical office manager there? Do
they have any medical training?
DR. HILBUN. Just mostly from years of experience.
MR. STUPAK. Pardon?
DR. HILBUN. Just OJT.
MR. STUPAK. Okay. Would he or she have been qualified to
notice any changes of a medical significance on a report?
DR. HILBUN. Probably so, yes, sir.
MR. STUPAK. Well, did they say anything to you?
DR. HILBUN. No.
MR. STUPAK. All right. I am sure glad you came and cleared
this up. Dr. Altmeyer, if I may, on form 10 there--do you want to
look at Tab 10 there? This is a form that the Chairman had
referred to earlier. This is the asbestos medical examination. Did
you find it there?
DR. ALTMEYER. Yes.
MR. STUPAK. So you said you were surprised to learn that you
were listed as the examining doctor?
DR. ALTMEYER. Not on this one.
MR. STUPAK. Okay.
DR. ALTMEYER. What happened was, there is a list of silica
diagnosing doctors and B reading doctors from the Texas MDL,
and what I did was, I went down the list and tried to find my name
anywhere that it was listed as what they call it on the list, the S
doctor. I assume that meant the silicosis diagnosing doctor, and
we tried to find all reports that we could on those and we found
about, I believe, 35.
MR. STUPAK. Would this be one of the 35 because on page 2
under impression "based on the above opinion it is my opinion
with a reasonable degree of medical certainty that this man has
simple silicosis." Would this be one of those S files?
DR. ALTMEYER. I don't know without knowing the name of
the individual.
MR. STUPAK. Well, is this a report you would have done then?
Would you have given an opinion with a reasonable degree of
medical certainty as to whether a patient had or did not have
silicosis?
DR. ALTMEYER. Yes.
MR. STUPAK. And that rendering a medical opinion, that is
practicing medicine, right?
DR. ALTMEYER. That is what I understand now in the State of
Texas. At the time I didn't think so.
MR. STUPAK. Well, even if you were in West Virginia, if you
were going to give an opinion with a reasonable degree of medical
certainty--
DR. ALTMEYER. I am sorry. I think I misunderstood. Could
you repeat your question?
MR. STUPAK. Sure. When you put on this report here "with a
reasonable degree of medical certainty" that this man has simple
silicosis, that is a medical opinion, right?
DR. ALTMEYER. That is
MR. STUPAK. And you don't dispute the originality of this
report, do you, this three-page report?
DR. ALTMEYER. No, I don't.
MR. STUPAK. And of the 50 cases or so, 35 of them had
silicosis, you thought?
DR. ALTMEYER. They were chest X-rays consistent with--
MR. STUPAK. Silicosis?
DR. ALTMEYER. Silicosis.
MR. STUPAK. But once you got the chest X-ray, then you went
and--
DR. ALTMEYER. Many times I have seen patients who have
chest X-rays that look like occupational pneumoconiosis.
MR. STUPAK. Sure.
DR. ALTMEYER. And then after I examine them, I find out they
have rheumatoid arthritis, for example, which can cause changes
on an X-ray very similar to pneumoconiosis, asbestosis, for
example. I saw somebody--
MR. STUPAK. Sure, but you wouldn't just take a look at the X-
ray, you would also--if you thought it was silicosis, you would get
occupational history, smoking history, medical history?
DR. ALTMEYER. Of course.
MR. STUPAK. Okay. So it sounds like a pretty thorough exam
then.
DR. ALTMEYER. What I try to do before a diagnosis of
occupational pneumoconiosis is in my mind confirm that they have
had occupational exposure to a dust of sufficient--
MR. STUPAK. To reinforce your diagnosis?
DR. ALTMEYER. --quality and quantity and then I make a
physical examination. Sometimes the physical examination puts
the diagnosis into doubt.
MR. STUPAK. Sure.
DR. ALTMEYER. I had a lady who had metastatic thyroid
cancer to her lungs with multiple small nodules that looked just
like silicosis but it wasn't silicosis but you wouldn't know that
without doing a--
MR. STUPAK. Well, this individual here with a simple case of
silicosis, after you saw this person, did you ever follow up with
them, urging them to get treatment or anything like this or would
you just follow up with the law firms?
DR. ALTMEYER. In my report, I indicated I advised him to
have periodic X-rays and follow-up examination by his personal
physician.
MR. STUPAK. Was he referred to you by his personal
physician?
DR. ALTMEYER. No.
MR. STUPAK. My time has expired. Thank you, Mr.
Chairman.
MR. WHITFIELD. Thank you, Mr. Stupak. At this time I
recognize the gentleman from Mississippi, Mr. Pickering.
MR. PICKERING. Dr. Altmeyer, you are a pulmonologist?
DR. ALTMEYER. Yes, sir.
MR. PICKERING. So your specialty, you would be qualified,
you would have an expertise, you would have experience in
diagnosing silicosis. Is that correct?
DR. ALTMEYER. Occupational pneumoconiosis has been a
large part of my professional life going back to 1978 when I started
training. Where I trained, the emphasis of research was on
occupational pneumoconiosis and that is how I got into this whole
part of medicine to begin with.
MR. PICKERING. Thank you, Dr. Altmeyer. For the gentleman
from Michigan, if I can help clarify, I know that from his earlier
questions he was unsure if he had a clear understanding--let me if I
can try to bring some clarity. You have I think in these types of
cases, you would have a radiologist who would take the X-rays,
you would have a pulmonologist like Dr. Altmeyer who could
make a diagnosis through his qualifications and experience. The
screening company went to Dr. Hilbun to simply ask for the
physical examination to give general physical health
characteristics. They did not ask him to take the X-ray, examine
the X-ray, or to make a diagnosis of silicosis. He was simply
given very--with his background as a general surgeon who has
never had any expertise or experience in silicosis, he was not
expected to nor was he asked to make any diagnosis nor would he
be qualified to give a diagnosis of silicosis. But with his general
practice he is very qualified to give a physical and that is what he
was asked to do. That is what he did, and I think it is significant to
remember that there were two other folks today that avoided
subpoenas. We have had two people take the Fifth Amendment
today. Dr. Hilbun traveled all the way from the coast after losing
his home on the coast, having serious illnesses in his family, to
testify on a voluntary basis. So I think it is very significant that Dr.
Hilbun in both his deposition and in the hearing today tried to
expose what really happened and the fraud that took place. And so
let me just clarify for the record for Dr. Hilbun. Thank you very
much.
MR. WHITFIELD. Thank you. At this time I recognize Dr.
Burgess for his 10 minutes.
MR. BURGESS. Well, Dr. Hilbun, then if I may ask you, do you
feel that you have been the victim of some type of fraud by the
N&M Company?
DR. HILBUN. Yes, sir.
MR. BURGESS. Just so I understand it correctly and
completely, you had sort of a check-off sheet that you did as you
did the physical exam?
DR. HILBUN. Correct.
MR. BURGESS. And then someone came to your office with a
stack of typed reports which is why they look so nice and regular
and all lined up as was pointed out previously. You were not in
the office and simply directed someone to sign those charts in your
absence?
DR. HILBUN. That is correct. I assumed they were the same as
the originals.
MR. BURGESS. Yeah, I don't think you will ever do that again,
will you?
DR. HILBUN. Well, it is just what you get in the habit of doing.
MR. BURGESS. And I understand that. You said you were paid
$5,000 a day when you were doing these exams?
DR. HILBUN. Yes, sir.
MR. BURGESS. And how many exams would you do during the
course of the day?
DR. HILBUN. I would say--I didn't count them but I would say
80, maybe 100. I mean, I don't know. I would say around 80.
MR. BURGESS. So you would see a lot of people?
DR. HILBUN. Oh, they would just run through like, you know--
MR. BURGESS. Dr. Altmeyer, let me ask you just a couple of
questions, and we may not take the whole time today. Everything
that you present to us, your written testimony, and I thank you for
that, it was succinct, it was to the point, it was very complete. It
was much more careful than most of the things that I write, quite
honestly, and yet you didn't realize that doing a physical exam or
rendering a diagnosis in Texas when you didn't have a license was
outside the scope and practice of Texas medicine? I guess like Mr.
Stupak, I do ask for a yes or no. I am sorry.
DR. ALTMEYER. At the time that I was doing it, honestly I
didn't think I was practicing medicine, and after what I have heard
today, the testimony today and over the past couple years when I
tried to gain more knowledge about what is a doctor-patient
relationship, what is the responsibility of a doctor, et cetera. Then
I have come to learn that that is in Texas practicing medicine if
you make a diagnosis. Now, I never advised any treatment. See, I
always thought if you didn't advise treatment other than follow-up
by your own doctor, get chest X-rays by your own doctor, I often
would tell them to stop smoking and I didn't give any medicine, I
thought that was not practicing medicine. And that is why I did it.
Of course, if I would have known, if I would have in my heart
thought that that was the practice of medicine back when I was
doing it, there is no way I would have done it.
MR. BURGESS. Well, what was it specifically what Dr. Patrick
or Dr. Morgan testified to today that made you realize that this was
in fact the practice of medicine?
DR. ALTMEYER. Well, I think he said if you make a diagnosis,
if you actually make a diagnosis. If you, say, make a diagnosis of
silicosis even if you don't give medicine or recommend treatment
or something else, that apparently is enough to trigger.
MR. BURGESS. Yes, I would think so. I mean, if when I was
practicing, if someone had asked me to sit down and write down
the definition, I don't know that I could have done that, but just
like Justice Potter Stewart, I would have known it if I had seen it,
and this looks like an awful lot like practicing even from that
vantage point. Under the smoking history on this physical exam
report we have under Tab 10, you report "has never smoked
tobacco." If the patient had smoked tobacco, what would your line
there have looked like?
DR. ALTMEYER. If the patient had--
MR. BURGESS. This is under the asbestosis medical exam on
Tab 10.
DR. ALTMEYER. If he had smoked tobacco, what would it have
said under smoking history?
MR. BURGESS. Well, yeah. How would that line have read?
DR. ALTMEYER. What I try to do is, I try to as accurately as I
can calculate pack-years, which is the number of packs per day
times the number of years, and if I can get the history, I would like
to know when they started and when they stopped because the risk
of developing lung cancer from smoking does go down after one
stops smoking so if there is any question about cancer or
something, one can use what is known about the effect of smoking
cessation on decreasing the risk of lung cancer. So in other words,
if somebody has 30 pack-years and they are still smoking--
MR. BURGESS. Right. You would have attempted to quantify
it?
DR. ALTMEYER. Yes, certainly.
MR. BURGESS. Now, under the occupational history, the line is
there "from 1994 until 2003, worked as an assembler with direct
exposure to asbestos transite, cloth, gloves, gaskets and valve
packing, and fire brick," so that is a fairly substantial exposure,
nine-year exposure to asbestos. The next line though, "He also
worked around sandblasting," and yet the primary diagnosis is
silicosis. I guess I am just a little bit troubled that you didn't try to
quantify the silica exposure as well as you would have the tobacco
exposure or even the asbestos exposure.
DR. ALTMEYER. I would prefer also to have more-extensive
history and the reason why though the diagnosis was silicosis was
because the type of opacities were consistent radiographically with
silicosis and not asbestosis. They were Q/Q, which are small,
rounded opacities whereas asbestosis typically causes irregular
line-line opacities at least starting in the lower lung bases.
MR. BURGESS. But based on what you have recorded here, I
mean, the silica exposure could have been as transient as walking
by the sandblasting booth once a week versus immersed in it for
his total employment time.
DR. ALTMEYER. Although I don't have a specific silica
exposure, I doubt that because in all of these things I try to put in
my mind when I am talking to somebody. Does this person have
enough exposure to cause the diagnosis that I am subsequently
going to make?
MR. BURGESS. And I guess when I was reading this, that was
my question too. Everything else you have been so careful and so
painstakingly consistent about things and yet the one key element
of the patient's history--
DR. ALTMEYER. Yeah, I agree with you. I wish it was more
extensive but I can say that at the time I was doing this that I had to
convince myself in my own mind's eye that there was enough
silica exposure to have caused small, rounded opacities on a chest
X-ray. Now, would it have been better to write more down? Yes.
MR. BURGESS. But at no time did any of the law firms
involved ask you to try to make the diagnosis of silicosis?
DR. ALTMEYER. No. If a law firm ever tried to convince me or
coerce me to make a diagnosis of occupational pneumoconiosis, I
would have been out the door in a heartbeat.
MR. BURGESS. Let me just ask one last general question of
both our physicians because one of the things as a doctor sitting up
here that kind of bugs me is, it is like no one is taking
responsibility for the patients that were involved here, and there
may have been some things that were added to reports or there may
have been some things that were done erroneously whether it was
intentional or not, do you know, are you aware of any efforts that
have been made to contact the patients involved and set the record
straight as to the fact that you were in fact their treating physician
at that point or set the record straight that there has been now a
report generated that is different from the report that you would
have signed the day they left the clinic in Mississippi? Dr. Hilbun,
I will go to you first but I do want an answer from both doctors.
DR. HILBUN. I really don't have any way of just performing a
physical examination, I didn't feel there was a doctor-patient
relationship.
MR. BURGESS. Right. I don't meant to interrupt but my time is
short, but now you see that a report has been generated over your
signature under a patient's name and that person is going to have a
hard time getting life insurance. They may not be employable.
Are you aware of any efforts made to contact these individuals and
set the record straight on your behalf or on their behalf?
DR. HILBUN. No, sir. I don't have any records of any of the
patients, you know.
MR. BURGESS. So it would be your opinion that it would be
the law firm that would be involved that would be--or N&M, the
screening company, that would be responsible for that?
DR. HILBUN. Yes, sir.
MR. BURGESS. What about you, Dr. Altmeyer? Have any
efforts to go back and correct the record on behalf of the patients?
DR. ALTMEYER. I believe that my B readings are accurate on
anybody I have done B readings. I believe strongly that the
diagnoses of this disease which I have made through the whole
process are accurate. To my knowledge, I have never told
anybody that they had silicosis that I didn't believe had it. I
believe that my diagnoses when I did make them are accurate.
MR. BURGESS. So this patient that we have here under Tab 10,
the report would read the same had they come into your office in
West Virginia?
DR. ALTMEYER. Absolutely. The same methodology that I use
in my office is what I use when I see people. I ask them the same
questions over and over and over again. If somebody comes into
my office for a non-occupational reason, they have something, I
may not get into the occupational history as deeply as if they are
coming in because they may have occupational asthma or they
think they have silicosis or asbestosis. But my way of examining
them--the questions, the smoking history, the pertinent review of
systems--is the same that I have always done.
MR. BURGESS. But if this had been a West Virginia patient
that we are reading about under Tab 10, you would have a way of
knowing whether or not they did those things that you
recommended for follow-up as far as going to see their personal
physician for routine X-rays? There would be some method to
ensure that your orders or requests were complied with. If the
patient is in Texas and you don't ever go back, it is virtually
impossible to know whether or not those recommendations were
complied with.
DR. ALTMEYER. Even in West Virginia, if somebody comes in
to see me for asthma and I find that they--I see a skin lesion or
something like that, I tell them, that could be skin cancer on your
shoulder, you need to see your own doctor, don't blow me off, take
it seriously. Now, that patient may never come back to see me
again and honestly, you are a doctor --
MR. BURGESS. Yeah, but if you saw a big, bad, black mole on
someone, you would say let me help you make that decision, let
me help you make that appointment--
DR. ALTMEYER. And we often do make an appointment. It is
almost a matter of degree. If it is a big black one up there and I am
the lung doctor. We spend a lot of time in my office trying to get
family doctors for patients, dermatologists. It takes three months to
see a dermatologist--
MR. BURGESS. But would you have done that in Texas being
there for three days?
DR. ALTMEYER. If I saw something on a patient's shoulder
that looked like cancer, I certainly would have told them that they
have cancer and I also would give written notification of that,
which I did routinely, to take to their own doctor.
MR. BURGESS. Let me just ask one more time to get it on the
record. Did any law firm ever give you specific exposure criteria
that you were to record?
DR. ALTMEYER. No.
MR. BURGESS. Thank you, Mr. Chairman. You have been
generous.
MR. WHITFIELD. Thank you. I just have a couple more brief
questions. Dr. Hilbun, when you were employed by N&M or
under contract with N&M, did you ever prescribe the X-rays for
the people who came in to have the X-rays?
DR. HILBUN. No, sir.
MR. WHITFIELD. And Dr. Altmeyer, did you ever prescribe the
X-rays for the people who came in while you were working with
RTS?
DR. ALTMEYER. Up until today, I would have said no but there
is this one form in here that looks like I did and there may have
been one time when I did.
MR. WHITFIELD. Which form was that?
DR. ALTMEYER. I think that is number--it was something at the
beginning you were asking. I don't recognize it but--
MR. WHITFIELD. Number 5? You don't remember that?
DR. ALTMEYER. I really don't recall that but that is my
signature and so there may have been one time when I did it.
MR. WHITFIELD. Okay. But you were not aware that that was
something you normally did?
DR. ALTMEYER. I don't normally do that and I am very
surprised to see that.
MR. WHITFIELD. Okay. Were you ever asked to prescribe by
RTS and refused to do so?
DR. ALTMEYER. Yes.
MR. WHITFIELD. Now, Ms. Brazell, you have heard and we
have heard the testimony of the gentleman from the Texas
regulatory body that a license was never issued to RTS to conduct
these X-rays in Texas, and yet you probably also saw the invoice
that RTS submitted to the law firm of Provost and Umphrey in
Beaumont, Texas, in the amount of $50,150 for the days of June
23, 24, and 25, which was like two and a half months after you had
submitted an application to be approved to take X-rays in Texas.
MS. BRAZELL. Where is that invoice?
MR. WHITFIELD. Tab 13. But, it looks very clear that you all
were never licensed to do this in Texas. It was a violation of Texas
rules and regulations and you all ignored that. Is that your
conclusion that you come from having looked at this invoice that
was sent out for tests in June 23, 24, and 25?
MS. BRAZELL. By the invoice, it looks like we were in Texas.
MR. WHITFIELD. Were you the road manager at that time?
MS. BRAZELL. I can't specifically say that yes or no.
MR. WHITFIELD. Were you ever in Texas yourself taking X-
rays with RTS?
MS. BRAZELL. I would say yes.
MR. WHITFIELD. And did you know that you were not licensed
to do so?
MS. BRAZELL. No, sir.
MR. WHITFIELD. And who would have known that?
MS. BRAZELL. In order to take X-rays, that would--
MR. WHITFIELD. Yes, I mean who is the head of the company?
MS. BRAZELL. Well, in order to know if we were licensed to
take X-rays in a particular State, that would have been our X-ray
technician to know if we were licensed or not.
MR. WHITFIELD. Well, I would think the president of the
company would probably want to know that.
MS. BRAZELL. I can't answer for him.
MR. WHITFIELD. Well, I think it is quite obvious you were not
licensed to do so, you were doing so, you had a contract with law
firms and you were paid to provide them with positive readings.
I would also note that we want to keep this record open for 30
days. We want to move into the record the binder of documents
from our March 8, 2006, hearing, and we would also like to
include into the record the opening statements from anyone for
today.
MR. BURGESS. Mr. Chairman, if I may just ask one follow-up
question of Ms. Brazell on the issue of the licensing of the X-ray
equipment. In Texas, it is my understanding that you do have to
have a designated radiation safety officer in order to have that
license so I assume you did not have that radiation safety officer as
part of your road trip?
MS. BRAZELL. I am not aware of anything of that title.
MR. BURGESS. Was there a physician involved in the taking of
the X-rays or was there a physician involved in the site?
MS. BRAZELL. Yes, sir. We always traveled with a physician.
MR. BURGESS. My understanding is that the physician
involved can--in fact, that would be reason for loss of licensure.
We could ask our friend from Texas if that is correct, but I know
when we got radiology equipment in our office, we very much had
to comply with those things. So that is again another reason why it
is important that these State jurisdictions be followed because there
are rules that are in place for a very good reason.
MS. BRAZELL. Yes, sir.
MR. BURGESS. Dr. Altmeyer, let me ask you one other
question. In your regular practice you said it would be unusual for
you to see a patient with silicosis? Did I understand that correctly?
DR. ALTMEYER. No, I do see patients with silicosis. I am in
the area of the country where we have coal mines, foundries, steel
mills, et cetera. I would say that the number of silicosis cases
which I have seen since I went in practice in just purely pulmonary
medicine in 1981 is decreasing and not only that, the profusion or
the number of densities by the B reading scale has gone down, I
think. I think any of the new patients which I may be seeing tend
to have milder disease than patients who I saw when I first went
into practice.
MR. BURGESS. Well, then did it strike you as odd that you had
50 cases in Texas where we don't have the same kind of mining
activity? We strip-mine in Texas, we don't go down into the
ground.
DR. ALTMEYER. Well, of the cases in this MDL, those were B
readings. They may subsequently turn out to be silicosis or not
turn out to be silicosis. I mean, like I have tried to emphasize, you
can't make a diagnosis of silicosis.
MR. BURGESS. I am just concerned that no one, besides Judge
Jack, ever blew the whistle that there was an epidemic of silicosis.
Thank you, Mr. Chairman.
MR. WHITFIELD. Thank you. And so without objection, the
record will be open for 30 days. The March 8, 2006, documents
from that hearing will be inserted and the binder from this hearing
and the opening statement, and with that, the hearing is concluded.
Thank you.
[The information follows:]
[Whereupon, at 4:35 p.m., the subcommittee was adjourned.]
THE SILICOSIS STORY: MASS TORT SCREENING AND
THE PUBLIC HEALTH
WEDNESDAY, JULY 26, 2006
HOUSE OF REPRESENTATIVES,
COMMITTEE ON ENERGY AND COMMERCE,
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS,
Washington, DC.
The subcommittee met, pursuant to call, at 2:06 p.m., in Room
2123 of the Rayburn House Office Building, Hon. Ed Whitfield
(Chairman) presiding.
Members present: Representatives Pickering, Bass, Walden,
Burgess, Blackburn, Barton (ex officio), Stupak, DeGette, and
Inslee.
Staff present: Mark Paoletta, Chief Counsel for Oversight and
Investigations; Alan Slobodin, Deputy Chief Counsel for Oversight
and Investigations; Andrew Snowdon, Counsel; Clayton Matheson,
Research Assistant; John Halliwell, Policy Coordinator; Ryan
Ambrose, Legislative Clerk; David Nelson, Minority
Investigator/Economist; and Jonathan Brater, Minority Staff
Assistant.
MR. WHITFIELD. This hearing will come to order. I want to
thank all the witnesses for being with us today. This afternoon we
convene the fourth day of hearings on public health issues raised
by the practices of mass tort screenings. Today's hearing will
focus of the role and conduct of various law firms in the Federal
silicosis multi-district litigation entitled "In re: Silica Products
Liability Litigation."
The evidence gathered by the committee in the form of records,
interviews, and sworn testimony reveals that law firms, including
at least some of those today appearing before us, orchestrated mass
silicosis screenings largely because the asbestos well was running
dry. These screenings were much less about medical care than
they were about finding grist for the litigation mill.
Campbell, Cherry, for instance, sent letters to 18,000 to 20,000
of its existing asbestos clients, inviting them to be screened for
silicosis, even though most experts agree that it would be rare for
one individual to have both diseases.
The suspect nature of these mass tort claims can be seen in the
comments of the lawyers themselves. Remarkably, when asked
during a hearing in the silicosis MDL last year, why such a high
percentage of his silicosis clients also had prior asbestos diagnoses,
Richard Laminack of the O'Quinn firm responded that he doubted
the validity of the prior asbestos claims. "I think the explanation
on a lot of these cases is the asbestosis diagnosis is wrong."
Unfortunately for Mr. Laminack, at least several of these dubious
asbestos diagnoses were issued by Dr. Ray Harron, the same
doctor who issued the silicosis diagnosis. I wonder what Mr.
Laminack would say about these silicosis diagnoses a few years
down the road when they somehow conflicted with the newest
mass tort disease.
To quote Judge Jack's scathing opinion in the silicosis MDL,
"And if the lawyers turned a blind eye to the mechanics of the
scheme, each lawyer had to know that Mississippi was not
experiencing the worst outbreak of silicosis in recorded history."
Each lawyer had to know that he or she was filing at least some
claims that falsely alleged silicosis. And yet, once the lawyers got
the ball rolling they abdicated responsibility for the health and
welfare of those being tested. The lawyers did very little to ensure
that the screening companies or doctors were properly licensed,
and as we heard during our last hearing, a large number of
screenings conducted by N&M and RTS, two of the major players
in the silicosis MDL, violated State laws and regulations.
Moreover, most of the lawyers apparently made little, if any, effort
to follow up with their clients, many of whom were relatively
uneducated and had limited access to doctors, to ensure that they
were getting appropriate medical care. One of the real tragedies of
litigation based on mass tort screenings is that those who are truly
sick can get lost in the shuffle.
Intent on generating hundreds, if not thousands of plaintiffs,
screening doctors and lawyers often do not give adequate attention
to those that need it the most. While some firms, such as Luckey
and Mullins, seem to have demonstrated genuine concern for those
they were representing, this appears to have been the exception
rather than the rule.
This investigation has utilized the silicosis MDL in the
Southern District of Texas as a case study; however, the problems
of mass tort screenings are by no means limited to one case or one
State, or even one disease. Even after Judge Jack's opinion and the
committee's investigation, silicosis cases continued to proliferate,
many even involving the same doctors and screening companies
whose conduct had been so thoroughly discredited.
I am familiar with several cases, for example, in Illinois and
West Virginia, and I would like to read a passage from a report
prepared several years ago by former U.S. Attorney General
Griffin Bell. "Many cases supported only with X-ray
interpretations are generated through mass litigation screenings
and mobile X-ray vans. The purpose of these screenings often is to
generate lawsuits, not to provide screened claimants with medical
treatment or advice. These mass screenings often are not attended
or supervised by a physician, nor do the physicians typically
prescribe the X-rays for claimants or report the screening results to
the claimant. Many screened workers never even speak with a
doctor, much less meet one in person, or benefit from a physical
examination." While Judge Bell was actually referring to conduct
in asbestos litigation, he does parallel with what went on in this
silicosis MDL. As with asbestosis, silicosis litigation will
ultimately run its course. But unless some meaningful changes are
made, we will undoubtedly be confronted down the road with the
same abuses in the context of a different disease.
One proposal put forth by Judge Bell that I would like to
explore today is the use of neutral independent physician panels to
review X-rays and make proper medical diagnoses. Such panels
would go a long way toward producing accurate diagnoses,
weeding out frivolous claims, and preventing mass tort litigation
from devolving into a battle of experts.
I want to thank all of the witnesses here today, particularly Mr.
Laminack, who is making a valiant effort to participate by video
teleconferencing under difficult circumstances. I also want to
emphasize that this committee has unfinished business with Heath
Mason and he is sorely mistaken if he thinks he can continue to
avoid service.
[The prepared statement of Hon. Ed Whitfield follows:]
PREPARED STATEMENT OF THE HON. ED WHITFIELD, CHAIRMAN,
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
This afternoon we convene the fourth day of hearings on the
important public health issues raised by the practice of mass tort
screening. Today's hearing will focus on the role and conduct of
several law firms in the federal silicosis multi-district litigation,
entitled In Re: Silica Products Liability Litigation.
The evidence gathered by this Committee, in the form of
records, interviews, and sworn testimony, reveals that law firms,
including at least some of those before us today, orchestrated mass
silicosis screenings largely because the asbestos well was running
dry. These screenings were much less about medical care than
they were about finding grist for the litigation mill.
Campbell Cherry, for instance, sent letters to 18,000 to 20,000
of its existing asbestos clients inviting them to be screened for
silicosis, even though most experts agree that it would be rare for
one individual to have both diseases.
The suspect nature of these mass tort claims can be seen in the
comments of the lawyers themselves. Remarkably, when asked
during a hearing in the silicosis MDL last year why such a high
percentage of his silicosis clients also had prior asbestos diagnoses,
Richard Laminack of the O'Quinn firm responded that he doubted
the validity of the prior asbestos claims: "I think the explanation
on a lot of these cases is the asbestosis diagnosis is wrong."
Unfortunately for Mr. Laminack, at least several of these dubious
asbestos diagnoses were issued by Dr. Ray Harron -- the same
doctor who issued the silicosis diagnoses. I wonder what Mr.
Laminack would say about these silicosis diagnoses a few years
down the road if they somehow conflicted with the newest mass
tort disease?
To quote Judge Jack's scathing opinion in the silicosis MDL:
"And if the lawyers turned a blind eye to the mechanics of the
scheme, each lawyer had to know that Mississippi was not
experiencing the worst outbreak of silicosis in recorded history.
Each lawyer had to know that he or she was filing at least some
claims that falsely alleged silicosis."
And yet once the lawyers got the proverbial ball rolling, they
abdicated responsibility for the health and welfare of those being
tested. The lawyers did very little to ensure that the screening
companies or doctors were properly licensed, and, as we heard
during our last hearing, a large number of screenings conducted by
N&M and RTS -- two of the major players in the silicosis MDL --
violated various state laws and regulations.
Moreover, most of the lawyers apparently made little, if any,
effort to follow up with their clients -- many of whom were
relatively uneducated and had limited access to doctors -- to ensure
that they were getting appropriate medical care. One of the real
tragedies of litigation based on mass tort screenings is that those
who are truly sick can get lost in the shuffle. Intent on generating
hundreds, if not thousands, of plaintiffs, screening doctors and
lawyers often don't give adequate attention to those who need it
the most. While some firms, such as Luckey & Mullins, seem to
have demonstrated genuine concern for those they were
representing, this appears to have been the exception rather than
the rule.
This investigation has utilized the silicosis MDL in the
Southern District of Texas as a case study. However, the problems
of mass tort screenings are by no means limited to one case, or one
state, or even one disease. Even after Judge Jack's opinion and the
Committee's investigation, silicosis cases continue to proliferate,
many even involving the same doctors and screening companies
whose conduct has been so thoroughly discredited. I am
particularly familiar with several cases in Illinois and West
Virginia.
I would like to read a passage from a report prepared several
years ago by former United States Attorney General Griffin Bell:
Many [ ] cases supported only with X-ray interpretations are
generated through mass litigation screenings in mobile x-ray
vans. The purpose of these screenings often is to generate
lawsuits, not to provide screened claimants with medical
treatment or advice. These mass screenings often are not
attended or supervised by a physician, nor do the physicians
typically prescribe the X-rays for claimants or report the
screening results to the claimant. Many screened workers
never even speak with a doctor, much less meet one in person
or benefit from a physical examination."
While Judge Bell was actually referring to conduct in asbestos
litigation, the parallels to what went on in the silicosis MDL are
striking. As with asbestos, silicosis litigation will ultimately run its
course, but unless some meaningful changes are made, we will
undoubtedly be confronted down the road with the same abuses in
the context of a different disease. At the very least, I hope that
Judge Jack's opinion, and this Committee's investigation, will
encourage other judges around the country, both state and federal,
to give their mass tort dockets greater scrutiny.
One proposal put forth by Judge Bell that I would like to
explore today is the use of neutral, independent physician panels to
review x-rays and make proper medical diagnoses. Such panels
would go a long way towards producing accurate diagnoses,
weeding out frivolous claims, and preventing mass tort litigation
from devolving into a battle of experts.
I would like to thank all of the witnesses here today,
particularly Mr. Laminack, who is making a valiant effort to
participate via video teleconference under difficult circumstances.
I also want to emphasize that this Committee has some unfinished
business with Heath Mason, and if he thinks that he can continue
to avoid service, he is sorely mistaken.
With that, I yield to the Ranking Member of this
Subcommittee, Mr. Stupak.
MR. WHITFIELD. With that, I would like to yield to the
Ranking Member of the subcommittee, Mr. Stupak of Michigan.
MR. STUPAK. Thank you, Mr. Chairman, and first of all, I
would like to enter into the record the statement of the Honorable
John Dingell.
MR. WHITFIELD. Without objection.
[The prepared statement of Hon. John D. Dingell follows:]
PREPARED STATEMENT OF THE HON. JOHN D. DINGELL, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
This Subcommittee has spent much time on this narrow public
health issue, yet other major public health issues also require our
attention. So I join the rest of my Democratic colleagues in
questioning whether this investigation is the best use of the
Subcommittee's limited time and resources. You, however, have
conducted this inquiry with fairness and we have supported each of
the procedural steps that you and Chairman Barton have taken to
acquire the documents and testimony necessary to this
investigation.
It is the responsibility of the Chair to protect the rights of the
Congress to acquire the information necessary to promulgation of
just and effective laws and the oversight of their proper
administration. With that, responsibility comes a certain amount
of discretion regarding the conduct of inquires such as the one we
are engaged in today. If documents are needed, then the
Committee should have them.
Among the prerogatives of the Chair is the discretion to decide
what documents and testimony are necessary. This discretion
includes whether or not to honor a claim of attorney/client
privilege, a privilege that may apply in courts of law but not
automatically in Congress.
If the subjects of our inquiries find our requests are truly
burdensome or problematic then those concerns should be
addressed. However, making overly imaginative claims of
privilege, refusing to discuss those claims, providing inadequate
privilege logs and/or failing to conduct adequate searches suggests
that someone is choosing to pick a fight.
Mr. Chairman, you have the discretion as to how you and
Chairman Barton want to proceed. And you will have my support
in upholding the right of the Committee obtain information needed
to conduct a proper inquiry.
MR. STUPAK. Thank you, Mr. Chairman. Thankfully and
hopefully this will be our last hearing on the silicosis issue. I
understand that we still have a person dodging our subpoena and I
am sure we will deal with that in due time.
As this series of hearings draws to a close, I have four
observations I believe my fellow Democrats share. The first is that
this inquiry has been conducted fairly, as is your usual practice,
Mr. Chairman. Accordingly, you have had our support on all
procedural issues.
The second is that these hearings were unnecessary and
consumed a lot of time and resources that would have been better
expended on the issues that trouble Americans and that lend
themselves to a legislative solution. I will return to this point
shortly.
Thirdly, whereas this investigation was conducted fairly, that
does not mean it was unbiased. While the problems with the silica
litigation uncovered by Judge Jack spoke to possible mischief on
the plaintiff's side, her opinion in this investigation ignored equally
troubling behavior on the defense bar, the expert B readers used by
the defendants, breaches in both legal and medical ethics by
professionals in the pay of the insurance companies, and producers
of asbestosis and silica products.
Finally, and perhaps most importantly, this inquiry into the
public health consequences of silica litigation has never attempted
to look at the human health costs of occupational exposure to silica
dust. This inquiry, the jurisdictional basis of which is the impact
on public health, has never even been raised or ever raised a
question of the toxic effects of silica exposure, much less examine
whether silica exposure is adequately regulated.
Mr. Chairman, you mentioned the Honorable Griffin Bell,
former Judge and Attorney General of the United States. Let me
also quote from Judge Bell. "And who writes for a legal think tank
dominated by corporate lawyers has acknowledged that the Courts
retained the power to correct any procedural injustices in mass
torts litigation." Judge Bell is incorrect in his dismissal of the
usefulness of mass tort screening. Dr. Laura Welch, in our first
hearing, one of our first witnesses, told us how mass medical
screenings ought to be done. None of the problems that Judge Jack
discovered and that have been laid out in these hearings would
have occurred if the silica screeners had employed the testing
model Dr. Welch employed while overseeing the testing of
115,000 sheet metal workers. Judge Bell also notes, and I quote,
"The risk of exaggerated claims of asbestos disease by plaintiff
physicians or understated claims of disease by defendant
physicians have been sufficiently documented in the Manvel and
Attire Workers Medical Audits to warn concern about the
objectivity of paid medical experts in asbestos litigation." Judge
Bell argues that if the courts were truly interested in dealing with
the problematic testimony given in cases like asbestos, they would
make use of neutral physician panels to review the X-rays and
make proper medical diagnoses.
Mr. Chairman, we have heard no testimony, nor has the
Majority made any request for documents relating to the B readers
of defense experts. We have taken the plaintiff's bar to task for
doctors that do not feel an obligation to the patients that they test
for litigation purposes; however, no one from the defense bar has
been called to account for the failure of their experts to
acknowledge disease where it is, in fact, present. Nor has the
Majority inquired of the company's doctors that report findings to
the company but not to the workers, their patients. Of course, if
medical doctors make diagnoses based on personal financial
interest rather than the well-being of patients, the State Medical
Boards should take appropriate disciplinary action.
Mr. Chairman, I ask that the portion of OSHA's current
regulatory agenda relating to silica exposure be placed in the
record. This is the Administration's analysis of occupational
exposure to silica, and here is what the Bush Administration says,
and I quote, "The seriousness of the health hazards associated with
silica exposure is demonstrated by the fatalities and disabling
illnesses that continue to occur. Between 1990 and 1996, 200 to
300 deaths per year are known to have occurred where silicosis
was identified on death certificates as the underlying or
contributing cause of death. It is likely that many more cases have
occurred where silicosis went undetected." The Administration
goes on to assert that silica has been responsible for increased risk
of TB, cancer, renal and autoimmune disease, as well as non-
malignant respiratory diseases, i.e., silicosis, and that workers
continue to be exposed to a level of silica far in excess of current
exposure limits.
After noting the inadequacy of the current standard in
measurement techniques, the Bush Administration goes on to make
a preliminary determination that "Workers are exposed to
significant risk of silicosis and other serious disease, and that
rulemaking is needed to substantially reduce that risk." Yet, the
Administration has let 5-� years pass without undertaking any
rulemaking, just as this committee has had four days of hearings
into public health problems associated with silica litigation, but has
chosen not to explore the public health risks associated with actual
exposure of people to silica.
Mr. Chairman, I repeat my annoyance with these silicosis
hearings. I believe it is past time to move beyond this issue. There
are many targets of this subcommittee's attention that would be far
more likely to make a positive impact on public health.
Thank you, Mr. Chairman.
MR. WHITFIELD. Thank you, Mr. Stupak.
At this time, I recognize Mrs. Blackburn of Tennessee.
MRS. BLACKBURN. Thank you, Mr. Chairman. I want to thank
you for your continuing work on the hearings, and I want to thank
all of our witnesses for being here with us today.
As you can see, we are all learning a good bit about silicosis
and asbestosis through this series of hearings, and from the
information that I have heard at some of these hearings, I believe
that we, unfortunately, have some lawyers and some doctors who
are or have chosen to engage in some unethical and possibly liable
behavior through conducting the type of mass tort screenings that
this committee has been examining.
It is the type of actions that I have just mentioned that are
driving up the cost of medical malpractice insurance and
healthcare, and many of the doctors in my State and across this
Nation are very concerned about how this impacts their professions
and their businesses. We have constituents who are quite
concerned about how it impacts their access to healthcare and the
delivery of healthcare in their areas.
Today's witnesses are going to testify to their conduct in the
silicosis litigation, and I am looking forward to hearing the
responses and then how they are going to address the situation, and
the questions that we have for each of you.
But I found some very disconcerting circumstances in the
MDL case. First, it appears that one law firm only paid for
positive diagnoses and expected the medical screening company to
pay the doctors for negative test results. This looks a lot like an
incentive to create litigation, and that is of concern.
Second, from the testimony given to this committee, many
lawyers that are appearing before the committee state, and I am
quoting, "understandings" between them and the medical screening
companies on use of qualified physicians. I want to know how the
lawyers came to these, and again I quote, "understandings."
Also, I want the lawyers to expound to this committee on the
rules of professional conduct. The rule for misconduct seems to
apply to many of the attorneys in this case, especially in the use of
unreliable testimony to deceive the court and their clients. The
doctors who testified before this committee in June said that many
of the doctors involved in the MDL case violated medical ethics
and that there is significant evidence for malpractice. Some of
them were also lawyers, and stated that the procedures in the cases
violated the attorney ethics rules. I want to know what the
witnesses think of these testimonies, and how it affects these cases.
Mr. Chairman, again, I thank you for your diligence. I thank
the staff for their work on the issue. I thank you for the hearing
today, and I am going to yield back the balance of my time so that
we can move to the witnesses.
MR. WHITFIELD. Thank you, Mrs. Blackburn.
At this time, I recognize the gentleman from Washington, Mr.
Inslee.
MR. INSLEE. Just briefly, I would just say that it has been my
experience that this Congress typically is just interested in one side
of the story, and I think that has been the case in this series of
hearings in the respect that our litigation system is not perfect, but
I think it would be interesting to look at some of the issues
regarding some of the defense practices associated with some of
these mass torts, as well as on the plaintiff's side. I think we
would find interesting issues on both sides, but that is not the way
this Congress works.
I also note that there may be two things, health and money, and
we are talking about money here rather than health, which is also
the way this Congress works, which is instead of having hearings
about increased neurological effects of mercury caused by coming
out of the use of coal, particulate matter coming out of the use of
diesels, silicosis caused by exposure to silicon, instead of trying to
deal with issues that actually help Americans' health, that is not the
way this Congress works. We will deal with other issues. I think
it is very regrettable, because we have a situation right now, it is
not just workers exposed to silicosis, it is workers and non-workers
and retired people exposed to all types of toxins. The way this
Congress works is to expose Americans to more toxins: more
arsenic in our water, more silt in our air, more mercury in our fish,
because the way this Congress works is it deals with money, not
health. These hearings in part are a continuation of that tradition.
And while I think there are some legitimate issues that need
inquiry in this situation involving mass tort litigation, I also believe
it is a dereliction of our committee's responsibilities not to deal
with the defense aspects of how to handle these cases where there
are all kinds of legitimate issues, nor to deal with the health
ramifications of the toxins that are being put in our air because the
way this Congress works is to protect the industries that are putting
them in the air.
So as always, I look forward to this hearing, and the chair has
always acted fairly to both sides during these hearings, and I
commend his work in that regard, but I think it is disappointing
that we have not taken the other part of our responsibilities
seriously. Thank you.
MR. WHITFIELD. Thank you.
At this time, I recognize the Chairman of Energy and
Commerce Committee, Mr. Barton of Texas.
CHAIRMAN BARTON. Thank you, Mr. Chairman. I appreciate
you holding this hearing. Although the subject matter is serious
and somewhat complicated, I welcome our witnesses, most of
whom come from my home State of Texas, and one of whom
comes from the town I was born in, Waco, Texas, Mr. Davis. We
welcome you before the committee.
This is our fourth hearing on the public health implications of
mass tort screenings. Today, we are finally going to get to
examine the role of a key set of players in this issue, the attorneys
who orchestrated the X-ray screenings of tens of thousands of
people, apparently in their search for profitable clients to fuel a
silicosis litigation machine. I look forward to hearing what they
have to say, especially what, if anything, they have done to
actually help the people who they searched out to become
diagnosed with a fatal disease through these screenings that they
sponsored. I am very interested to hear if the firms have done
anything to help their clients, many of whom are not highly
educated and have limited access to regular medical care, to get
any kind of follow-up care at all once they were diagnosed as
having silicosis, which is a very serious disease. I fear the answer
is going to be they haven't done anything. If they have, we have
not been able to determine that in our staff investigation. It sure
appears that once the clients signed on to the bottom line, they
became just a part of that particular lawsuit's inventory. That is
really a shame if that is realy what has happened.
I want to mention an issue that gives me great concern, in
addition to what I just said. We had hoped to have a number of
individuals here today who actually have been diagnosed through
these screening processes as having silicosis. We wanted to hear
from them firsthand what they experienced, what they were told,
how they felt about it, what is being done to help them in the
present. Unfortunately, the law firms before us that represent most
of those folks haven't been real helpful in making that happen.
They have refused repeated requests from the staff for interviews
with the plaintiffs on the grounds of attorney/client privilege. To
be fair, one of the law firms, the O'Quinn firm, did make some
effort to facilitate a few interviews, but the rest of the law firms
have not. The firms declined to even ask their clients if they would
be willing to talk to us and perhaps waive attorney/client privilege.
We have made it clear at the staff level that there are numerous
questions which would be posed without treading on any
privileged information. An example of a question that we would
hope to ask some of the plaintiffs was, was there really a doctor
present at the screening? Who took your work history? How did
you first learn that you might have silicosis? Did anyone present
discuss with you where and how to obtain follow-up medical
treatment? Those aren't privileged information, those are just
basic questions. These questions are critical for understanding
how the process unfolds, and whether patient interests were put
first.
The law firms before us don't want their clients to answer
questions like that, so they have invoked an attorney/client
privilege, which is their right under the Constitution. It sure looks
like a smokescreen to me, though. I find the prospect particularly
repugnant given that this is a public health issue and because so
many others with knowledge of these practices in this investigation
have asserted their Fifth Amendment right against self-
incrimination and declined to testify. Using a highly, in my
opinion, dubious application of attorney/client privilege to hide the
truth doesn't serve the client's interest, and it certainly doesn't
serve the public's interest to know.
Mr. Chairman, at the end of the day, we have been seeking to
ensure that the patients' interests are put back at the center of the
mass screening process. Silicosis is a dangerous disease. People
that really have the disease deserve to be treated in a
compassionate and humane fashion. This is not only a matter of
protecting public health, it is a matter of fairness to those with a
pressing need for medical care, as well as those with legitimate
claims for redress of their grievances in court. It doesn't appear to
me that the law firms before us today have served that purpose
very well.
With that, Mr. Chairman, I yield back.
[The prepared statement of Hon. Joe Barton follows:]
PREPARED STATEMENT OF THE HON. JOE BARTON, CHAIRMAN,
COMMITTEE ON ENERGY AND COMMERCE
Thank you, Chairman Whitfield for this fourth hearing on the
public health implications of mass tort screenings. Today we will
finally examine the role of a key set of players in this troubling
case study: the attorneys who orchestrated x-ray screenings of tens
of thousands of people in their search for profitable clients to fuel
the silicosis litigation machine.
I look forward to learning what these law firms did to help
those people who had been diagnosed with a fatal disease through
screenings that they sponsored. Specifically, I want to hear what
the firms did to ensure that their clients -- many of whom were not
highly educated and had limited access to regular medical care --
received appropriate follow-up care. I fear that the answer is that
they did nothing. It looks like once clients signed on the bottom
line, they stopped being sick people and became just part of the
firm's "inventory." That's the ultimate shame in a business that
invented ways to be shameful.
I would also like to mention an issue in this investigation that
gives me great concern. We had hoped to have several individuals
here today who actually went through the screening process so that
we could hear first-hand what they experienced, what they were
told, and how they felt about it. Unfortunately, the law firms
representing these folks must have thought that wasn't helpful to
their cause. They refused repeated requests from the staff for
interviews with the plaintiffs on the grounds of attorney-client
privilege. To be fair, the O'Quinn firm did make some effort to
facilitate a few such interviews, but Campbell Cherry and others
did not.
These firms declined even to ask their clients if they would be
willing to waive attorney-client privilege. Furthermore, we made
it clear that there were numerous relevant questions that could be
posed without treading on privileged information, such as: (1)
"was a doctor present at the screening?" (2) "who took your work
history?" (3) "how did you first learn that you might have
silicosis?" and (4) "did anyone discuss with you where and how to
obtain follow-up medical treatment?" These questions are critical
for understanding how this process unfolded and whether patient
interests were put first. Evidently, the law firms don't want their
clients to talk.
These firms are misusing the attorney-client privilege as a
smokescreen to protect themselves. I find this prospect
particularly repugnant given the public health issues involved here
and because so many others with knowledge of these practices
have asserted their Fifth Amendment rights against self-
incrimination and declined to testify. Using a highly dubious
application of attorney-client privilege to hide an ugly truth doesn't
serve the clients' interests, and certainly does not serve the public
interest.
Mr. Chairman, at the end of the day, we have been seeking to
ensure that patients' interests are put back at the center of the mass
screening process. This not only is a matter of protecting public
health, it is also a matter of fairness to those who have a pressing
need for medical care, as well as those with legitimate claims for
redress of their grievances in court.
MR. WHITFIELD. Thank you, Mr. Chairman.
At this time, I recognize Ms. DeGette of Colorado.
MS. DEGETTE. Thank you, Mr. Chairman. I share Mr.
Stupak's confusion about exactly why this committee has spent so
many hours on this issue of the silicosis suits. I, too, think it is a
terrible thing what happened in these cases, and the thing I worry
the most about is some of these patients who had a positive
diagnosis, and at least according to our prior hearings on this issue,
had no follow-up to let them know that there was a diagnosis that
they had a fatal disease. I would be interested to hear about that
from the panel.
The thing that perplexes me is--and I think this was sort of a
low point in a profession that I called myself a proud member of
for 15 years when I practiced law in Denver. I clearly, like
everyone else on this panel, do not think people should be ginning
up lawsuits just for litigation. I don't think doctors should be
screening patients without actually ever seeing them or knowing
their health history. I don't think lawyers should be filing lawsuits
and then not following up with their clients. The thing that
perplexes me is it seems to me that the judicial process worked in
this case because Judge Jack was able to take a look at these
approximately 10,000 claims and say that really there was no
bonafide lawsuit here. So I think that the system worked, and I am
not really sure what kind of public policy reason there would be to
have all of these hearings. I don't see the Oversight and
Investigations Committee of the U.S. Congress as the uber legal or
medical ethics panel, and I think these issues will be and are being
resolved in other venues.
So as I say, it was a sad day for the legal system and for the
patients. I think it is a shame on the medical profession for some
of these doctors who were making these diagnoses in the way they
were, and I think a lot of people abrogated their duties to their
clients and to their patients. But having said that, I really don't
know what the long-term impact of these hearings will be.
And at that, I will yield back.
MR. WHITFIELD. Thank you, Ms. DeGette.
At this time, I recognize Dr. Burgess of Texas.
MR. BURGESS. Thank you, Mr. Chairman. I appreciate the
continued hearings into what I consider a very important matter.
The Chairman already has alluded to it. This is the most troubling
aspect; this is the very human aspect, the failure to follow-up, the
failure to ensure continuity of care. Well, today we continue to
address the serious allegations concerning silicosis and the mass
tort screenings. Our past hearings have focused on doctors and
mass screening companies. Today, we will look at the attorneys
that were involved. It was Judge Jack who mentioned, and I quote,
"These diagnoses were about litigation rather than healthcare."
She further went on to say "They were driven by neither health nor
justice, but were manufactured for money."
While the legal cases were about money, let me remind you
that you, the plaintiffs attorneys, you are supposed to be looking
out for the little guy. That is what we always hear. That is whose
side you are on. Let us talk for just a minute on what true silicosis
medical cases are all about. Silicosis is a serious occupational
hazard. The most recent edition of Harrison's Principles of
Internal Medicine describes the disease as one which may become
rapidly fatal in less than 2 years.
This isn't just about taking a snapshot and getting an X-ray that
has an abnormality that we can then walk away from. What
happens to these abnormalities over time? Well, recall from our
previous testimony from the doctors, the chest X-ray is taken and it
may show some rather typical calcifications of hyler nodes, but
then Harrison's goes on to say this nodular fibrosis may be
progressive in the absence of further exposure. That is, the guy
doesn't work in the sandblasting factory anymore. You don't tell
that he has got the disease. He is not working there anymore. He
thinks it is over, because after all, he had an X-ray, someone
looked at it, and didn't recommend any further therapy.
Harrison's goes on to say "These masses can become quite large
and are characteristic of progressive passive fibrosis. Significant
functional impairment with both restrictive and obstructive
components may be associated with this form of silicosis. In the
late stages of the disease, ventilatory failure may develop." I think
we would all agree, that is a serious projectory that some of these
patients may have been set upon, and I will again ask the questions
that were asked by our Chairman. Were these patients referred to a
specialist? Were they referred back to their primary doctor? Were
they followed in any way? How were they treated?
Well, we have a panel of lawyers here today, and counselors, I
think you understand that silicosis is a very serious and real
ailment. To fund the mass screenings and the diagnoses of cases
without any follow-up for these patients is the personification of
unethical behavior. As an attorney, you have a fiduciary duty to
your client, and surely, this extends to ensuring that your clients
that were diagnosed in these mass tort screenings are seeking
appropriate medical treatment.
Many of you are from my home State of Texas. In Texas, you
took an oath of office when you began your practice of law, and
when you took that oath to practice in Texas, you solemnly swore
to discharge your duties to your clients to the best of your abilities.
How can this not include making certain that your clients were
getting treatment for such a serious disease, a disease that you paid
to diagnose for them?
Mr. Chairman, I look forward to hearing the answers to these
serious questions. Once again, thank you for holding this hearing.
In the interest of time, I will yield back.
MR. WHITFIELD. Thank you, Dr. Burgess.
I think that concludes the opening statements, so at this point, I
would like to introduce the first panel. On the first panel, we have
Mr. Billy Davis with Campbell, Cherry, Harrison, Davis, & Dove
Law Firm out of Waco, Texas; we have Mr. Abel Manji with the
O'Quinn Law Firm in Houston, Texas; we have Mr. Joseph
Gibson, the Law Office of Joseph Gibson in Houston, Texas; we
have Mr. Jim Zadeh with the Zadeh Law Firm in Fort Worth,
Texas; we have Mr. John Fabry with the Williams Bailey Law
Firm in Houston, Texas; we have Mr. Steven Mullins with Luckey
and Mullins in Ocean Spring, Mississippi; and then we have Mr.
Alwyn Luckey with Luckey and Mullins in Ocean Springs,
Mississippi; and then we have Mr. Richard Laminack with
Laminack, Pirtle, and Martines of Houston, Texas, who is with us
by video teleconference. As I stated in my opening statement, Dr.
Laminack, we genuinely appreciate your being with us today and
realize that you are at a health center at M.D. Anderson, I believe.
So as you know, this is an Oversight and Investigations
Subcommittee hearing, and it is our policy to take testimony under
oath. I would ask any of you if you have any objection or
difficulty testifying under oath. You also, under the Rules of the
House and rules of this committee are entitled to legal counsel. Do
any of you have legal counsel with you today? Okay. Mr. Davis,
would you introduce your legal counsel?
MR. DAVIS. Mr. Brown.
MR. WHITFIELD. Mr. Brown, thank you. And Mr. Gibson, did
you--
MR. GIBSON. Mr. Steve Gordon.
MR. WHITFIELD. Mr. Steve Gordon, thank you. Mr. Manji,
did you?
MR. MANJI. Yes, I have Patrick Bonz.
MR. WHITFIELD. Pat Bonz, okay. Thank you. Mr. Zadeh?
MR. ZADEH. Stan Brown and Andy Herman.
MR. WHITFIELD. Stan Brown, okay. Mr. Fabry?
MR. FABRY. Stanley Brown and Andrew Herman, and for the
record, my name is pronounced Fabry, Mr. Chairman.
MR. WHITFIELD. Thank you. I always have difficulty with
names. Thank you.
MR. FABRY. Thank you.
MR. WHITFIELD. Mr. Mullins?
MR. MULLINS. No.
MR. WHITFIELD. Mr. Luckey?
MR. LUCKEY. No, we are not represented by counsel.
MR. WHITFIELD. All right. And Mr. Laminack, I am assuming
that you do not have legal counsel either. Is that correct?
MR. LAMINACK. It is not correct. I am represented by Pat
Bonz, Mr. Chairman.
MR. WHITFIELD. Pat Bonz, okay.
Well, at this time I would ask the members of the panel, the
ones who will be giving the openings statements if you would rise
and raise your right hand. I would like to swear you in.
[Witnesses sworn]
MR. WHITFIELD. Thank you very much. All of you are under
oath now, and so at this time I would recognize Mr. Davis for his
opening statement.
TESTIMONIES OF BILLY DAVIS, ESQ., CAMPBELL, CHERRY, HARRISON, DAVIS & DOVE;
ABEL K. MANJI, ESQ., THE O'QUINN LAW FIRM; JOSEPH V. GIBSON, ESQ., LAW
OFFICE OF JOSEPH V. GIBSON, P.C.; ALWYN H. LUCKEY, ESQ., LUCKEY & MULLINS
PLLC; AND RICHARD N. LAMINACK, LAMINACK, PIRTLE, AND MARTINES
MR. DAVIS. Good afternoon, Chairman Whitfield, Ranking
Member Stupak, and members of this subcommittee. My name is
Billy Davis and I am a shareholder in the law firm of Campbell,
Cherry, Harrison, Davis, & Dove, and I am here today testifying
on behalf of their firm.
In 2000 and 2001, some of our firm's previous and current
clients, including asbestos clients, began contacting our firm,
asking if we were representing individuals in silica litigation. In
response to inquiries from many of our clients, the firm sent a
letter to many of its current and former clients concerning silica
exposure and silicosis. The firm notified its clients to call N&M,
an experienced Mississippi medical screening company, to set up a
medical screening if they felt like they had a silica claim. It was
up to the individual to determine if he had been exposed to silica
and wanted to be tested. If so, that individual would engage N&M
to perform the medical screening. It was then up to the doctors
hired by N&M to determine if the individual had a silica-related
injury. Generally only after that happened did our firm accept
representation of the individual for a silica claim and advance that
client's costs to N&M for the medical screen.
For substantially all of our firm's clients, our firm had a
reasonable basis for believing that its plaintiffs had a bonafide
claim for silicosis before it ever accepted them as silica clients, and
before suit was filed on their behalf.
First, our firm required that its potential clients have at least 2
years of occupational exposure prior to 1980. N&M established
that the firm's potential clients met this exposure even before they
came to the medical screen, and then again at the medical screen.
Second, after the requisite silica exposure history was verified,
N&M's qualified technicians performed a new chest X-ray on each
potential client. The X-ray was then read onsite by a NIOSH-
certified B-reader physician hired by N&M to determine if the X-
ray showed radiographic changes consistent with silicosis.
Third, if the NIOSH-certified B-reader physician found the X-
ray showed radiographic changes consistent with silicosis, a
qualified physician onsite, hired by N&M, would take a medical
history and perform a target physical examination. Based on the
exposure history, the X-ray findings, the medical history, and the
physical exam, the NIOSH-certified B-reader physician hired by
N&M would make a diagnosis. If the diagnosis was silicosis, the
doctor would communicate that to the potential client in person at
the screen.
Fourth, potential clients diagnosed with silicosis were sent to
perform pulmonary function tests administered by N&M's
qualified technicians.
Generally, all of these steps occurred before the potential client
ever met with any representative of our firm and before they
became a silica client of our firm. As a general rule, the firm did
not file suit for these clients until our firm had received a second
positive X-ray finding and a second diagnosis of silicosis for the
potential client. For substantially all of the firm's silicosis clients,
the firm required N&M to obtain a second positive X-ray reading
from a NIOSH-certified B-reader physician and a second diagnosis
of silicosis by a second qualified physician. This conservative
practice of having two diagnoses for each client before filing suit
has been used by our firm in its asbestos litigation long before it
started representing silica complainants.
Medical experts recognize that individuals may contract both
asbestosis and silicosis. Some of the industries that NIOSH has
recognized as having both asbestos and silica exposure include
abrasive blasting, foundry work, drywall hanging, automotive
repair, construction, and pottery. Many of our firm's asbestos
clients worked in industries in which they were exposed to both
silica and asbestos, or worked in different industries in which they
were exposed to asbestos in one industry and silica in another.
Less than one out of five of our firm's asbestos clients were
diagnosed with silicosis, but those individuals were diagnosed by
two separate doctors.
This fact in no way supports an inference that these clients do
not have silicosis or that our firm's representation of these
individuals is improper. We believe that our firm required and
relied upon more extensive criteria to screen for silicosis than did
others. For substantially all of our firm's silica plaintiffs, prior to
the filing of silica claims, the firm had evidence of at least 2 years
occupational exposure to silica, current X-rays read positive as
consistent with silicosis by two NIOSH-certified B-reader
physicians, medical history and physical exam taken by qualified
physician, diagnosis of silicosis by two qualified physicians, and
an onsite communication of the diagnosis to the client by one of
the diagnosing physicians. Every diagnosing doctor relied upon by
our firm has testified that they stand behind their silicosis diagnosis
of our firm's silica plaintiffs, except for Dr. George Martindale;
however, Dr. Martindale has testified before you that he stands
behind his X-ray readings of our silica plaintiffs that show
radiographic changes consistent with silicosis.
The firm's reliance on the screening company and the X-ray
readings, physical exams, and diagnoses of silicosis by the
qualified physicians hired by the screening company was and
continues to be reasonable. The firm believes that the silicosis
diagnoses of its clients are real, and that the claims that it brought
on behalf of the silica clients are valid, legal claims.
Thank you.
[The prepared statement of Billy Davis follows:]
PREPARED STATEMENT OF BILLY DAVIS, ESQ., CAMPBELL,
CHERRY, HARRISON, DAVIS & DOVE
1. For substantially all of the firm's silica plaintiffs, the following
criteria was satisfied prior to each plaintiff becoming a silica client
of the firm and prior to such plaintiff's case being filed:
A. Evidence of occupational exposure to silica for at least
2 years prior to 1980 was provided by the plaintiff;
B. Current chest x-rays taken of the plaintiff;
C. Positive x-ray finding consistent with silicosis by a
NIOSH certified B-reader;
D. Medical history taken and physical exam of the
plaintiff by a qualified physician;
E. Diagnosis of silicosis by a qualified physician
communicated in person to the plaintiff;
F. A pulmonary function test on the plaintiff to determine
degree of lung impairment;
G. Second positive x-ray finding consistent with silicosis
by a second NIOSH certified B-reader; and
H. Second diagnosis of silicosis by a second qualified
physician.
2. The firm advanced the testing costs only for individuals
satisfying this criteria and that the law firm accepted as a client.
3. Many of the firm's clients worked in industries recognized by
the government as having both asbestos and silica exposure. Less
than 1 out of 5 of the firm's asbestos clients were diagnosed with
silicosis and represented by the firm. These clients had 2
diagnoses of silicosis. Asbestosis and silicosis are not mutually
exclusive.
4. Physicians relied upon by the firm that diagnosed the firm's
silica plaintiffs stand behind their diagnoses except for Dr. George
Martindale who still stands behind his x-ray readings that show
radiographic findings consistent with silicosis.
5. Silicosis diagnoses of the firm's silica plaintiffs are real, and the
plaintiffs' claims are valid, legal claims.
I. Background.
Good morning, Chairman Whitfield, Congressman Stupak,
Members of the Subcommittee. My name is Billy H. Davis, Jr.
and I am a shareholder in the law firm of Campbell~Cherry~
Harrison~Davis~Dove, P. C. ("CCHDD"). The firm consists of
seven lawyers and 27 staff members, with offices in Waco, Texas
and Jackson, Mississippi. The firm engages primarily in a
plaintiff's civil practice with a focus in the area of personal injury
law.
The attorneys and staff of the firm are dedicated to providing
quality legal services to individuals and businesses needlessly
harmed by the conduct of others. We are committed to the
preservation of the right of every citizen to a trial by jury, as
guaranteed by the Seventh Amendment to the United States
Constitution. We believe that every citizen should have equal
access to the courts of our judicial system.
I am testifying here today on behalf of the firm.
II. CCHDD's Entry into Silica Litigation.
The firm has represented Plaintiffs in various types of personal
injury litigation including injuries caused by asbestosis, silicosis,
pharmaceutical products, automotive products, and trucking and
automobile accidents.
In 2000 and 2001, some of the firm's previous and current
clients, including asbestos clients, began contacting the firm asking
if the firm was representing individuals in silica litigation. At that
time the firm was not, but it was aware of the increase in silica
litigation that had begun earlier and knew that many of its asbestos
clients had worked in trades and industries in which they may have
also been exposed to silica. In response to inquiries from many of
its clients, the firm sent a letter to many of its current and former
clients concerning silica exposure and silicosis. The firm notified
its clients to call N&M, Inc., an experienced Mississippi medical
screening company, to set up a medical screening if they felt they
had a silica claim. The firm understood that N&M would test
anyone, including our clients, who called them and had appropriate
silica exposure. It was up to the individual to determine if he had
been exposed to silica and wanted to be tested. If so, that
individual would engage N&M to perform the medical screening.
It was then up to the doctors to determine if the individual had a
silica related injury. Generally, only after that happened, did our
firm accept the representation of the individual for a silica claim,
and advance that client's cost to N&M for the medical screening.
The law firm filed two actions in Noxubee County, Mississippi
in 2002. These actions were filed in Mississippi because the
overwhelming majority of the firm's silica Plaintiffs was located in
the southeastern United States and the Mississippi joinder and
procedural rules applicable at that time made Mississippi an
attractive forum in which to file these actions. Since that time, due
to changes in Mississippi procedural law, applied retroactively by
the courts, many of the Plaintiffs claims in these actions have been
voluntarily dismissed. Their dismissals have nothing to do with
the merits of their claims, but rather, are based on a retroactive
change in Mississippi procedural rules making Mississippi an
improper forum for these Plaintiffs to bring suit.
The firm exercised due diligence in filing and prosecuting
silica claims and believes that the silicosis claims it filed are valid,
legal claims.
III. The Silicosis Claims Filed By CCHDD Are Valid.
A. Prior to filing suit, CCHDD established criteria to ensure
that its clients had bona fide claims for silicosis. CCHDD
was reasonable in relying on that process.
For substantially all of its silica clients, the firm had a
reasonable basis for believing that its plaintiffs had a bona fide
claim for silicosis before it ever accepted them as silica clients and
before suit was filed on their behalf. Specifically, the firm
established conservative criteria to screen persons it might
represent. The conservative criteria were to ensure that individuals
had bona fide diagnoses of silicosis before the firm accepted them
as silica clients.
The conservative criteria defined by the firm included the
following:
First, the firm required that its potential clients have at least
two years of occupational exposure to silica prior to 1980. N&M
established that the firm's potential clients met such exposure
criteria even before they came to the medical screening, and then
again at the medical screening. This initial screening for exposure
helped eliminate from the medical screening process individuals
who could not have been diagnosed with silicosis due to a lack of
silica exposure.
Second, after the requisite silica exposure history was verified,
N&M's qualified technicians performed a chest x-ray on each
potential client. The x-ray was then read on site by a NIOSH
certified B-reader physician, hired by N&M, to determine if the x-
ray showed radiographic changes consistent with silicosis.
Third, if the NIOSH certified B-reader physician found the x-
ray showed radiographic changes consistent with silicosis, a
qualified physician on site, hired by N&M, would take a medical
history and perform a target physical examination. Based on the
exposure history, x-ray findings, medical history and physical
exam, the NIOSH certified B-reader physician hired by N&M, Inc.
would make a diagnosis. If the diagnosis was silicosis, the doctor
would communicate that to the potential client, in person, at the
screening.
Fourth, potential clients diagnosed with silicosis were sent to
perform pulmonary function tests administered by N&M's
qualified technicians. These tests helped to determine the degree
of lung impairment for each potential client.
Generally, all of the above mentioned steps occurred before the
potential client ever met with any representative of the firm, and
before they became a silica client of the firm.
Following this screening process performed by N&M, and the
physicians hired by N&M, if a potential client had a positive
silicosis diagnosis, and satisfied all of the above criteria and
requested the law firm to represent him or her, the potential client
signed a contract of representation with the firm. However, as a
general rule, the firm did not file suit until receiving a second
positive x-ray finding and a second diagnosis of silicosis for the
potential client. For substantially all of the firm's silicosis clients,
the firm required N&M to obtain a second positive x-ray reading
from a NIOSH certified B-reader physician, and a second
diagnosis of silicosis by a second qualified physician. This was
generally done within 4-6 weeks after the initial diagnosis and
prior to the filing of a silica case on behalf of the client. This
conservative practice of having two diagnoses for each client
before filing suit had been used by the firm in its asbestos litigation
long before it began representing silica plaintiffs.
B. CCHDD was diligent in utilizing the screening company.
The company that tested the firm's clients was an experienced
Mississippi medical screening company. In addition, N&M's
testing equipment was inspected and certified by the State of
Mississippi. Moreover, the on-site physicians and technicians on
our firm's cases, who were selected, hired and paid by N&M to
screen potential clients for silicosis were licensed by the State of
Mississippi. The firm had used N&M before, and reasonably
relied upon the medical screening performed by N&M for potential
clients.
C. CCHDD was diligent in relying on the screening company
doctors' silicosis diagnoses.
The firm was also reasonable in relying on the medical doctors
hired by N&M for x-ray reads, physical exams, and silicosis
diagnoses. Importantly, all of the firm's clients were diagnosed
with silicosis by NIOSH certified physicians. While the firm
advanced medical screening costs to N&M only for testing of
individuals diagnosed with silicosis who satisfied the above criteria
and that the firm accepted as a client, it was and is the firm's
understanding that N&M paid its physicians the same dollar
amount for every x-ray read, and for every physical exam
performed, and for every diagnosis made, regardless of whether
the individuals were diagnosed with silicosis whether or not they
became clients of the firm. Accordingly, the physicians who read
the x-rays, or performed the physical exams or who ultimately
made the silicosis diagnoses for all of the firm's clients were not
biased by the firm's method of compensation to N&M.
IV. Asbestosis and Silicosis are not Mutually Exclusive and there
are many Industries in which there is Both Silica and
Asbestos Exposure.
Medical experts recognize that individuals may contract both
asbestosis and silicosis. Some of the industries that the government
(NIOSH) has recognized as having both asbestos and silica
exposure include: (1) abrasive blasting; (2) foundry work; (3) dry
wall hanging; (4) automotive repair; (5) construction; and (6)
pottery. Many of the firm's clients diagnosed with both silicosis
and asbestosis worked in one or more of these industries.
Notably, only a small percentage of the firm's asbestos clients
were ultimately diagnosed with silicosis. Specifically, out of
approximately 20,000 firm asbestos clients, only approximately
3,500 were subsequently diagnosed with silicosis and represented
by the firm. Moreover, approximately 700 of the firm's silica
clients were not asbestos clients of the firm. Many of the firm's
asbestos clients worked in industries in which they were exposed
to both silica and asbestos or worked in different industries in
which they were exposed to asbestos in one industry and silica in
another. Less than 1 out of 5 of the firm's asbestos clients was
diagnosed with silicosis, and by 2 separate doctors. This fact in no
way supports an inference that these clients do not have silicosis or
that the firm's representation of these individuals is improper.
V . Summary.
We believe that our firm required and relied upon more
extensive criteria to screen for silicosis than did others. For
substantially all of its silica plaintiffs, prior to the filing of silica
claims, the firm had evidence of at least 2 years occupational
exposure to silica, current x-rays read positive as consistent with
silicosis by two NIOSH certified B-reader physicians, medical
history and physical exam taken by a qualified physician, diagnosis
of silicosis by two qualified physicians, and an on-site
communication of the diagnosis to the client by one of the
diagnosing physicians. Every diagnosing doctor relied upon by the
firm has testified that they stand behind their silicosis diagnoses of
our firm's silica plaintiffs, except for Dr. George Martindale.
However, Dr. Martindale has testified before you that he stands
behind his x-ray readings of our silica plaintiffs that show
radiographic changes consistent with silicosis. The firm's reliance
on the screening company and the x-ray readings, physical exams,
and diagnoses of silicosis by the qualified physicians hired by the
screening company was and continues to be reasonable. The firm
believes that the silicosis diagnoses of its clients are real and that
the claims it brought on behalf of its silica plaintiffs are valid, legal
claims.
MR. WHITFIELD. Thank you. Mr. Manji, you are recognized
for 5 minutes.
MR. MANJI. Chairman Whitfield, Ranking Member Stupak,
and members of the subcommittee, my name is Abel Manji and I
am currently an attorney with The O'Quinn Law Firm located in
Houston, Texas, formerly known as O'Quinn, Laminack, and
Pirtle. I am testifying today as a representative of The O'Quinn
Law Firm. I must state at the outset that while I am here on behalf
of the O'Quinn firm, my direct and personal knowledge of a
number of the issues raised in the subcommittee's investigation is
limited, as I first joined the firm in May of 2005, one month prior
to Judge Janis Jack's 2005 opinion and order. It was at that time I
took over the firm's silica cases.
With that said, I am, however, familiar with the documents
produced to the subcommittee. With these constraints, I will
certainly attempt to answer your questions to the best of my ability
and knowledge.
Mr. Chairman, prior to addressing some of the public health
issues that the subcommittee has raised regarding silicosis, I would
like to thank you and the subcommittee staff for its continued
cooperation in accommodating the O'Quinn firm. As a result of
the sheer volume and logistical challenges connected with
reviewing hundreds of separate case files, the subcommittee agreed
that it made sense for our firm to provide copies of a representative
sample of 30 randomly selected client files equally drawn from its
Mississippi and Texas silicosis case portfolios, all the while
respecting accepted categories of privilege. Again, we appreciate
these accommodations.
Additionally, Mr. Chairman, I would like to briefly give the
subcommittee an overview of my professional experience. I have
been an attorney for the past 13 years. In that time period, I have
handled hundreds of cases, both criminal and civil litigation. I
have represented defendants as well as plaintiffs.
I think it is important to remember that silicosis is a devastating
and incurable disease and that accurate exposure statistics are not
available, as the Federal agency charged with compiling that data,
OSHA, has not reevaluated the silica exposure standards in over a
decade. This is striking, and from my experience, handling
workers' injury claims due to silica exposure, I am confident that
such exposure is more widespread than people think. Silicosis is a
real disease that has killed and will continue to kill hundreds, if not
thousands, of hardworking men and women for years to come.
I understand that the subcommittee has focused extensively on
Judge Jack's opinion and the concerns raised about screening
companies, doctors, and lawyers. It is important to note, however,
the O'Quinn firm responded to Judge Jack's opinion by no longer
using the screening companies and B-readers questioned by the
court and had its clients X-rays reevaluated by different doctors.
At this point, Mr. Chairman, I would like to briefly discuss a
few very important points as they relate to The O'Quinn Law Firm
and its silicosis practice. First, to the best of my knowledge and at
no time since I arrived at The O'Quinn Law Firm, did it engage in
the practice of rethreading old asbestos cases into new silicosis
cases. In fact, the O'Quinn firm did not have an asbestos docket.
When an asbestos case did come to the firm, these cases were
immediately referred to another law firm that handled asbestos
claims.
Second, the overwhelming majority, as much as 98 percent, of
the O'Quinn firm's silicosis cases came to it by referrals from
other law firms. Between its seasoned litigators and experience at
handling complex toxic tort litigations, smaller firms often referred
such cases to O'Quinn for prosecution.
Third, because so many of its silicosis cases were referred from
other law firms, the O'Quinn firm relied heavily upon the
informational gathering process that occurred before the referral.
This process is done to determine if the individual has a legal claim
of silicosis or mixed stats, not to obtain medical treatment. To that
end, it is important to remember that this process was never
intended to substitute for a more in-depth medical evaluation or
treatment; rather, the primary purpose of this early detection
process is to protect the legal rights of persons whose ability to
obtain relief can be completely shut out by statutes of limitations.
Fourth, pursuant to testimony already received by the
subcommittee, the O'Quinn firm paid for all services rendered to
it, regardless of whether the results were positive or negative.
Fifth, the O'Quinn firm has a policy of notifying and
reminding all of its clients about the importance of consulting their
personal physicians if the client was found to have positive
medical readings for silicosis and other ailments. These
communications were done in letters and phone calls.
Sixth, in its silicosis cases, as in all cases, the O'Quinn firm
relies on the representations of all parties with whom it is engaged,
including the screening companies, the physicians, referring
attorneys, and clients that the O'Quinn firm represented and
currently represents.
With that, I would like to thank you for your consideration and
I look forward to answering any questions the members of the
subcommittee may have.
[The prepared statement of Abel K. Manji follows:]
PREPARED STATEMENT OF ABEL K. MANJI, ESQ., THE O'QUINN
LAW FIRM
Chairman Whitfield, Ranking Member Stupak, and Members
of the
Subcommittee, my name is Abel Manji and I am currently an
attorney with the O'Quinn Law Firm located in Houston, Texas
formerly known as O'QuinnLaminack and Pirtle. I am testifllng
today as a representative of the O'Quinn Law Firm. However, it is
important that I state at the outset, that while I am here
representing the O'Quinn firm, my direct and personal knowledge
of a number of the issues raised by the Subcommittee in its
investigation is limited, as I first joined O'Quinn, Laminack, and
Pirtle in May of 2005 - one month prior to Judge Janis Jack's June
2005 Opinion and Order. It was at that time I took over the Firm's
remaining silica cases. With that said, I am, however, familiar
with the documents produced to the Subcommittee, almost all of
which precede my arrival and subsequent practice at the Firm.
With these constraints, I will certainly attempt to answer your
questions to the best of my ability and knowledge.
Mr. Chairman, prior to addressing some of the public health
issues that the Subcommittee has raised regarding silicosis and the
findings and actions of Judge Jack, I'd like to thank you and the
Subcommittee staff for its continued cooperation in
accommodating the O'Quinn firm. As a result of the sheer volume
and logistical challenges connected with reviewing over three
thousand one hundred separate case files in connection with the
Subcommittee's inquiry, the Subcommittee agreed that it made
sense for our firm to provide copies of a representative sample of
thirty (30) randomly-selected client files, equally drawn from its
Mississippi and Texas silicosis case portfolios - all the while
respecting accepted categories of privilege. The O'Quinn firm
cooperated with the Subcommittee in providing these case files
and other documents. Again, we appreciate these
accommodations.
Additionally Mr. Chairman, I would like to briefly give the
Subcommittee an overview of my trial experience. I have been a
trial attorney for the last 13 years. In that time period I have
litigated hundreds of cases to successful conclusion. I am
experienced in both criminal and civil litigation, and I have
represented defendants as well as plaintiffs. My experience also
includes personal injury and toxic tort litigation.
I think it is important to remember that silicosis is a devastating
and incurable disease, and that accurate exposure statistics are not
available as the federal agency charged with compiling that data,
the Occupational Health and Safety Administration, has not
reevaluated its silica exposure standards in over decade. This is
striking, and from my experience in handling workers injury
claims due to silica exposure, I am confident that such exposure is
much more widespread than people think. In fact, I believe the
Department of Labor in the 1990s suggested that silicosis is one of
the most underreported and diagnosed occupational diseases in the
United States. Silicosis is a real disease that has killed and will
continue to kill hundreds, if not thousands of hardworking men and
women for years to come, and as an attorney it is my job to help
those men and women, should they choose, to seek a measure of
justice for an illness that is 100% preventable.
I understand that the Subcommittee has focused extensively on
Judge Jack's opinion in the multidistrict litigation that was pending
in the Federal District Court in Corpus Christi, Texas, and
especially the concerns raised in that opinion about screening
companies, doctors, and lawyers. I think it is important to point
out that the O'Quinn firm responded to Judge Jack's opinion by no
longer using those screening companies and B readers, and by
having clients re-examined by different doctors. As a result, many
of those clients still have active, pending silicosis claims today.
At this point Mr. Chairman, I would like to use the remainder
of my statement to briefly discuss and convey a few very important
points as they relate to the O'Quinn law firm and its silicosis
practice.
First - to the best of my knowledge, and at no time since I
arrived at the O'Quinn law firm, did it engage in the practice of
"re-treading" old asbestos cases into new silicosis cases. In fact,
the O'Quinn firm never had an asbestos docket. Rather, when an
asbestos case did come to the Firm, these cases were immediately
referred to another law firm that handled asbestos claims. While I
cannot speak for other law firms, the O'Quinn firm did not
knowingly engage in re-treading any asbestos cases.
Second - the overwhelming majority, as much as 98% of the
O'Quinn firm's silicosis cases - came to it by referrals from other
law firms. The O'Quinn firm does not advertise to attract silicosis
cases, nor does the O'Quinn firm "hunt" for silicosis cases. Rather,
the O'Quinn firm has, and continues to be, recognized as one of the
premier plaintiff trial firms in the country. Between its seasoned
litigators and experience in handling complex toxic tort litigation,
smaller firms often refer such cases to O'Quinn for prosecution.
This is how the O'Quinn firm became involved in the silicosis
cases that were before Judge Jack.
Third - because so many of its silicosis cases were referred
from other law firms, the O'Quinn firm relied heavily upon the
referring attorney(s) and the initial screening process that occurred
before the referral. The "screening process" is done to determine if
an individual has a "legal" claim of silicosis or mixed dust, not to
obtain medical treatment for clients. The Subcommittee has heard
testimony regarding this distinction and I look forward to
answering any questions you may have about it.
To that end, it is important to remember that the screening
process was never intended to substitute for a more in-depth
medical evaluations or treatment, and that one of the primary
purposes of doing early screenings is to protect the rights of
persons suffering from an occupational disease - ordinary people
whose ability to obtain relief can be completely shut out by statutes
of limitation.
Fourth - pursuant to testimony already received by the
Subcommittee, the O'Quinn firm paid for all services rendered to it
regardless of result. This is a direct reference to the
Subcommittee's inquiry regarding the "screening process" and the
payment of law firms to screening companies for positive
screening results only. I can't speak to what other law firms may
have done, but the O'Quinn firm paid the same fees to screening
companies, regardless of whether the results were negative or
positive.
Fifth - the O'Quinn firm has a policy of notifying and
reminding all of its clients about the importance of consulting their
personal physicians if the client was found to have positive
medical readings for silicosis or other aliments. These
communications were done in letters and phone calls. Some of
those letters were provided to the Subcommittee in the documents
the O'Quinn firm submitted to the Subcommittee.
Sixth - at all times, the O'Quinn firm relies on the
representations of all parties with whom it communicates about
these silicosis cases. This includes the screening companies,
physicians, referring attorneys, and clients that the O'Quinn firm
represented and currently represents. My understanding is that the
O'Quinn firm was not aware of the concerns raised in Judge Jack's
opinion until the hearing in her courtroom. I was personally
involved in making sure that all of Judge Jack's concerns were
addressed; and I firmly believe that we have done that to the best
of our ability.
The O'Quinn firm is very interested in securing recovery for
people who suffer from occupational diseases like silicosis, but
like this Subcommittee and Judge Jack, the Firm has no interest in
pursuing claims that have no merit, or claims that fail to meet
whatever standards are set by the courts or the government.
With that, I would like to thank you for your consideration; and
I look forward to answering any questions you and Members of the
Subcommittee may have.
MR. WHITFIELD. Thank you very much. Mr. Gibson, you are
recognized for 5 minutes.
MR. GIBSON. Thank you. Mr. Chairman, members of the
subcommittee, ladies and gentlemen, my name is Joseph Gibson
and I am an attorney in private practice in Houston, Texas. I was
previously employed at the law firm of O'Quinn, Laminack, and
Pirtle, one of the law firms in the silicosis litigation that is the
subject of the hearing today.
I appreciate the opportunity to appear before this committee
today to address as best I can questions surrounding the silicosis
litigation, including my involvement and that of my former
employer.
First, I would like to say that silicosis is a real and terrible
disease. Litigation related to silicosis is not new. It has been
around since the mid-1980s in Texas. The litigation has resulted in
millions of dollars being paid in settlement to people suffering
from silicosis, many of whom are very sick. There are a number of
other people who suffer from this disease as a result of
overexposure to silica on their jobs and who deserve
compensation. Dr. Laura Welch, one of the initial witnesses
before the subcommittee, pointed out that silicosis is a real public
health problem, and there may be thousands of new cases of
silicosis that appear each year, even without active screening.
I am 35 years old. I graduated from law school in 1998. I
spent a year at a law firm in Houston and then joined the O'Quinn
firm. I was initially hired as a staff attorney and subsequently
became an associate at the firm. I have never been a partner and
my compensation was not tied to the money that was made on the
cases I handled. As a lawyer with the O'Quinn firm, I was
assigned to work on the silicosis cases being handled by the firm. I
was pleased to represent the people I thought deserved help, and I
have no interest in manufacturing claims for undeserving persons.
I reported to two partners in the firm, Rick Laminack and Tom
Pirtle. The two of them, primarily Mr. Laminack, were in charge
of everything I worked on, including the firm's silicosis docket.
My role was to assist them and manage the cases on a daily basis.
This was entirely appropriate, given my status as a junior attorney
at the firm.
At the time I worked at the O'Quinn firm, I had no trial
experience of my own. My responsibilities included getting
silicosis cases set for trial, getting case management orders in
place, drafting and sending discovery requests, gathering
documents and preparing outlines and exhibits for depositions of
defense witnesses, and taking some depositions. Part of my duties
also included coordinating communications among the principal
law firms involved in the silicosis litigation and between those
firms in the MDL court, hence my title as lead counsel for the
plaintiff's firms. These communications were primarily
administrative and logistical in nature.
While I was pleased to be assigned with this responsibility and
to play this role, my title did not signify that I was in charge of the
plaintiff's side of the litigation. As you can see, each principal
plaintiff's firms were responsible for the prosecution of their
claims.
An issue has arisen about the competence or integrity about the
diagnoses made by certain of the doctors whom the plaintiffs'
firms employed in these cases. They were part of the MDL
litigation before Judge Jack. Some of these doctors, such as Dr.
George Martindale, were never employed by the O'Quinn firm.
The O'Quinn firm used several different doctors in connection
with its cases. The work of some of them was not questioned by
Judge Jack. Substantial questions were raised by Judge Jack about
the work of one doctor, Dr. Ray Harron, who had the X-rays
and/or made diagnoses in many of the cases handled not only by
the O'Quinn firm, but also by other plaintiffs' firms, both inside
and outside of the MDL.
I was not involved in the original selection of Dr. Harron, and
as far as I know, nobody else from the O'Quinn firm was either.
Instead, we inherited Dr. Harron with a number of the cases that
were additionally referred to the firm. Evidently, Dr. Harron was
brought into the cases through the screening company N&M, Inc.,
that was employed by the referring law firm. Dr. Harron had the
requisite credentials to perform the X-ray diagnostic work. He had
been a certified B-reader for many years. I met him on a number
of occasions and he appeared to be competent in his work. He also
had a great deal of litigation experience and he had testified on a
number of occasions, which also appeared to be an asset.
Shortly before the February 2005 court hearing before Judge
Jack, I learned that Dr. Harron had been engaged by another firm
to review over 4,000 of its X-rays from its previous asbestosis
cases and had diagnosed the presence of silicosis as well. This
caused me significant concern and I promptly reported this to
Richard Laminack. He directed me to bring Dr. Harron in for a
face-to-face meeting. I did so and Mr. Laminack spoke to Dr.
Harron at length. Dr. Harron assured us that he stood by the
results of all of his work. At the end of the meeting, Mr. Laminack
decided that we could go forward with him.
I was very surprised and upset by Dr. Harron's testimony at the
hearing, where it developed that his very large number of dual
diagnoses of asbestosis and silicosis in the same individuals was
highly questionable and gave the appearance that his diagnosis
changed to suit the convenience of the case. This testimony made
me wish we had dug deeper. We would have never knowingly
trusted the fate of our clients and our cases to what now appear to
be unreliable diagnoses.
Finally, I would note that many of the silicosis cases before
Judge Jack came from Mississippi and were remanded by her to
the Mississippi State courts. After being remanded, 12 of the 73
defendants in the case sought to have sanctions imposed on the
O'Quinn firm for having filed these cases in the first place. The
Mississippi court refused to impose sanctions. It found that the
O'Quinn firm had relied in good faith on accepted patient
screening practices for mass tort cases to locate potential plaintiffs
and develop the silicosis litigation.
At this point, I am prepared to answer, to the best of my ability,
any questions the subcommittee may have.
[The prepared statement of Joseph V. Gibson follows:]
PREPARED STATEMENT OF JOSEPH V. GIBSON, ESQ., LAW OFFICE
OF JOSEPH V. GIBSON, P.C.
Mr. Chairman, Members of the Committee, Ladies and
Gentlemen:
Good morning. My name is Joseph Gibson, and I am an
attorney in private practice in Houston, Texas. I was previously
employed at the law firm of O'Quinn, Laminack & Pirtle, one of
the law firms in the silicosis litigation that is subject of the
hearings today.
I appreciate the opportunity to appear before the Committee
today to address, as best I can, questions surrounding the silicosis
litigation, including my involvement and that of my former
employer.
First, I'd like to say that silicosis is a real and terrible disease.
Litigation related to silicosis is not new; it's been around since the
mid-1980s in Texas. This litigation has resulted in millions of
dollars being paid in settlement to people suffering from silicosis,
many of whom are very sick.
There are a number of other people who suffer from this
disease as a result of overexposure to silica on their jobs and who
deserve compensation. Dr. Laura Welch, one of the initial
witnesses before this Subcommittee, pointed out that silicosis is a
real public health problem and there may be thousands of new
cases of silicosis that appear each year even without active
screening.
I am 35 years old. I graduated from law school in 1998. I
spent a year at another law firm in Houston and then joined the
firm of O'Quinn, Laminack & Pirtle (the "O'Quinn firm"). I was
hired as a staff attorney and subsequently became an associate at
the firm. I was never a partner. My compensation was not tied to
the money that was made on the cases I handled.
As a young lawyer with the O'Quinn firm, I was assigned to
work on the silicosis cases being handled by the firm. I was
pleased to represent people I thought deserved help. I had no
interest in manufacturing claims for undeserving persons.
I reported to two of the partners in the firm, Rick Laminack
and Tom Pirtle. The two of them, primarily Mr. Laminack, were
in charge of everything I worked on, including the firm's silicosis
docket. My role was to assist them and manage the cases on a day-
to-day basis. This was entirely appropriate given my status as a
junior attorney in the firm. At the time I was working at the
O'Quinn firm, I had no trial experience of my own.
My responsibilities included getting silicosis cases set for trial,
getting case management orders in place, drafting and sending
discovery requests, gathering documents and preparing outlines
and exhibits for depositions of defense witnesses and taking some
depositions. I primarily took secondary depositions and helped
prepare Tom Pirtle for primary depositions, such as corporate
representatives. I also negotiated settlements in some of the cases.
Part of my duties included coordinating communications
among the principal law firms involved in the silicosis litigation
and between those firms and the multi-district litigation ("MDL")
court, hence my title as "lead counsel" for the plaintiffs' firms.
These communications were primarily administrative and logistical
in nature. While I was pleased to be assigned this responsibility
and to play this role, my title certainly did not signify that I was in
charge of the plaintiffs' side of the litigation. Each of the principal
plaintiffs' firms was responsible for the prosecution of its claims.
An issue has arisen about competence and/or integrity of the
diagnoses made by certain of the doctors whom the plaintiffs' firms
employed in the cases that were part of the MDL litigation before
Judge Jack. Some of these doctors, such as Dr. George
Martindale, were never employed by the O'Quinn firm.
The O'Quinn firm used several different doctors in connection
with its cases. The work of some of them was not questioned by
Judge Jack. Substantial questions were raised by Judge Jack about
the work of one doctor, Dr. Ray Harron, who read the x-rays
and/or made diagnoses in many of the cases handled not only by
the O'Quinn firm but also by other plaintiffs' law firms both inside
and outside of the MDL.
I was not involved in the original selection of Dr. Harron and,
so far as I know, neither was anyone else at the O'Quinn firm.
Instead, we inherited Dr. Harron with a number of the cases that
were referred to the firm. Evidently, Dr. Harron was brought into
the cases through a screening company, N & M, Inc., that was
employed by the referring law firm. Dr. Harron had the requisite
credentials to perform the x-ray diagnostic work - he had been a
certified B-reader for many years. I met him on a number of
occasions and he appeared to me to be competent at his work. He
also had a great deal of litigation experience and had testified on a
number of occasions, which also appeared to be an asset.
Shortly before the February 2005 court hearing before Judge
Jack, I learned that Dr. Harron had been engaged by another firm
to review over 4,000 of the x-rays from its previous asbestosis
cases and had diagnosed the presence of silicosis as well. This
caused me significant concern and I promptly reported this
development to Rick Laminack. He directed me to bring in Dr.
Harron for a face-to-face meeting. I did so and Mr. Laminack
spoke to Dr. Harron at some length. Dr. Harron assured us that he
stood by the results of all his work. At the end of the meeting, Mr.
Laminack decided that he was satisfied with Dr. Harron's answers
and that we should go forward with him.
I was very surprised and upset by Dr. Harron's testimony at the
hearing, where it developed that his very large number of dual
diagnoses of asbestosis and silicosis in the same individuals was
highly questionable and gave the appearance that his diagnoses
changed to suit the convenience of the case. This testimony made
me wish that we had dug deeper and discovered these problems
before the hearing. We would never have knowingly trusted the
fate of our clients and our cases to what now appear to be
unreliable diagnoses.
Finally, I note that many of the silicosis cases before Judge
Jack came from Mississippi and were remanded by her to the
Mississippi state courts. After being remanded, 12 of the 73
defendants sought to have sanctions imposed on the O'Quinn firm
for having filed these cases in the first place. The Mississippi
court refused to impose sanctions. It found that the O'Quinn firm
had relied in good faith on accepted patient screening practices for
mass tort cases to locate potential plaintiffs and develop the
silicosis litigation.
At this point, I am prepared to answer, to the best of my ability,
any questions the Subcommittee may have.
MR. WHITFIELD. Thank you very much. Mr. Zadeh, you are
recognized for 5 minutes.
MR. ZADEH. No opening statement, Mr. Chairman.
MR. WHITFIELD. Mr. Fabry.
MR. FABRY. No opening statement, thank you.
MR. WHITFIELD. Mr. Mullins.
MR. MULLINS. Mr. Luckey will be making our opening
statement.
MR. WHITFIELD. Mr. Luckey.
MR. LUCKEY. Thank you, Mr. Chairman. My name is Alwyn
Luckey. I am here on behalf of the law firm of Luckey and
Mullins. This is my law partner, Mr. Steve Mullins. I am also
here on behalf of the firm of Barton and Williams of Pascagoula,
Mississippi. Together, we joint ventured representation of silica
clients. Each of our firms are mutually responsible for the
representation of our silica clients.
Our firms, particularly over the past year, have been
particularly hard hit by the affects of Hurricane Katrina. The
Barton & Williams firm suffered a complete loss of two of their
three office buildings, and a partial loss of the third. They had
complete damage: the files, records, and computer systems. In
addition, lawyers and staff members from their firm left the area
after the hurricane. They are extremely short staffed in trying to
rebuild their law firm.
My law firm was not flooded like many of the areas on the
Gulf Coast, but we did have substantial damage to the roof of the
office. We lost files, damage to the computer system. In an almost
unbelievable event, in November my office caught fire as a result
of water leaks from the hurricane and we were without power for
an additional couple of weeks. We have tried our best to comply
with the committee's requests and believe we have done so to the
best of our abilities. I do think it is important to note that
documents and information that were provided to the MDL
proceeding probably only exist there at this point, as many of our
documents were lost in the storm.
On a personal note, I would like to thank the committee's staff
for giving Mr. Mullins and I the option for one or the other of us to
testify, in consideration of my wife's illness. She is doing well and
I am here today because of that. I appreciate the consideration.
As far as mass medical screenings for our firms are concerned,
the Barton & Williams firm primarily utilized the services of
Respiratory Testing Services. Our firm primarily used the services
of Occupational Diagnostics, a Mississippi company. It is our
belief that the only N&M Screening Company cases we had, or in
the case of Dr. Harron, were referred to us from other law firms
that we had no control over the screening of those cases.
Our firm had attorneys and staff present at all or almost all of
the medical screenings that were done by our firm. This was done
to ensure that our clients who were sent to be screened, in fact had
the proper work history and exposure to silica in order to qualify
for screening. We used a restrictive criteria for accepting cases, 5
years or more of exposure to occupational silica in a trade and at a
job site where silica was being used.
I am mindful of the committee's interest in notification and
follow-up to claimants who were diagnosed with a silica-related
disease at these screenings. In cases in our firm and the firm of
Barton & Williams, where the onsite physician at the medical
screening found a silica-related disease, the doctor at the screening
told the clients about his interpretation of their disease. In the
event of a diagnosis of silicosis, the clients should have been told
at least three times about their disease, in the event of a more
serious disease, lung cancer, schleroderma or what is known as
complicated silicosis, at least five times would either the medical
company or our firms have followed up with the clients. The
clients should have been told by the doctor on site. In the event of
a severe or complicated case, a medical report should have been
sent to them by certified mail by the screening company. If the
person was diagnosed with a silica related disease and chose to
hire our law firm or meet with our law firm to pursue a case, the
attorney at the screening would have reminded the client of the
disease he had been diagnosed with or found to have. Finally,
when the medical report was received at our office, we would have
mailed a letter with an additional copy of that medical report to the
client, urging them to see their family physician or a local
physician to check into the disease. And in the event of a serious
case, a similar letter, but one that utilized the doctor's language of
what the serious condition was about and again, enclosing the
doctor's report. In the event of a serious case, our firm also
followed up with those clients to be sure they had found medical
care or to recommend a place they could go in the event they had
not. In addition, during our normal course of representation, we
spoke to our clients many times, and frequently our staff knew
them by their names and we followed up with their case, as we
would anyone's lawsuit that we were handling.
It was natural that the Barton & Williams firm and my firm
were hired by many of these claimants. Our offices in Pascagoula,
Mississippi, and Ocean Springs, Mississippi, are very close to the
Northrop Grumman, formerly known as Ingall Shipyard, in
Pascagoula, Mississippi, one of the largest in the world. We are
additionally near New Orleans, with many shipbuilding and other
industries. These are our clients. These are local people who hired
our firm. In addition, due to our experience in representing clients
in industry, many cases were referred to us by other lawyers who
knew we had experience in these types of cases.
One of the unfortunate results of the criticism of doctors and
the medical screening practice has been that in some cases,
plaintiffs who don't even have a medical report from a doctor that
was questioned in Corpus Christi have been held up, and in the
case of some of our clients filed in Mississippi, possibly are not
able to go forward due to the criticism of the screening practices
and the doctors. This is an unfortunate result for otherwise
deserving claimants that, at this point, our firm and that of Mr.
Barton, have been unable to rectify due to certain complexities in
Mississippi law, but unfortunately, the pale that has been cast over
many of these clients due to the nature of their expert medical
reports.
[The prepared statement of Alwyn H. Luckey follows:]
PREPARED STATEMENT OF ALWYN H. LUCKEY, ESQ., LUCKEY &
MULINS PLLC
MR. WHITFIELD. Thank you very much. At this time, I
recognize Mr. Laminack for his opening statement.
MR. LAMINACK. Thank you, Chairman Whitfield, Ranking
Member Stupak, and members of the subcommittee.
My name is Richard Laminack. I am a principal member of
the law firm of Laminack, Pirtle, and Martines in Houston, Texas.
I want to especially thank the subcommittee for allowing me to
appear today by video from M.D. Anderson Cancer Center in
Houston. I am appearing by video because I have been diagnosed
with leukemia and am currently being treated by chemotherapy.
My doctors advise that I should not travel or appear in public
gatherings due to my treatment, so I want to especially thank the
committee for accommodating my condition.
The testimony I am providing today relates to my professional
responsibilities and duties at my former law firm, O'Quinn,
Laminack and Pirtle, and the administration and prosecution of
certain silica claims handled by the firm. I am here to voluntarily
and readily answer your questions.
I have been a trial attorney for 19 years and have exclusively
represented individuals and their families who have sustained
personal injury. The people who have and do suffer from silicosis
have had a profound impact on me. Their cases are that severe and
that troubling.
My first experience with silicosis was in the late '80s when I
represented a small group of 12 workers against their employer,
claiming that they had been exposed to silica on the job. It took a
number of years to bring those cases to final resolution. What
really bothered me about those cases is that the workers had been
seen by the company doctor and at no time did that physician tell
these workers that they had scarring or that their lungs--taking their
lungs or even if there had symptoms consistent with silicosis.
Every single one of them has since died of silicosis, and it upsets
me to this day.
I tell you this, Mr. Chairman, not because I am looking for
some kind of redemption, but rather, to let you know that I know
firsthand what silicosis can do to a person and to their family.
Because I know this, I would never knowingly bring a silicosis
claim on behalf of an individual that does not have the
fundamental proof of such a claim.
I would like to take this opportunity to share my views about
the O'Quinn firm's silicosis practices during my tenure. As I
stated earlier, I handled my first silicosis case almost 15 years ago.
For several years, that was our last substantial involvement in
silicosis. It was not until early 2000 that O'Quinn, Laminack and
Pirtle became more involved in silicosis cases again. Around that
time, other law firms began to approach our firm about referring
their silicosis cases. These inquiries were directed at us because of
our reputation for successfully handling complex toxic tort
litigation involving large numbers of plaintiffs and defendants.
Some of these silicosis cases, namely a class of cases called the
Alexander Class, that landed in Judge Jack's courtroom in Corpus
Christi as part of the MDL, caused the spotlight to be shown on the
O'Quinn firm, a spotlight that should have been extinguished when
Judge Jack ruled that she never had jurisdiction over the Alexander
Class to begin with. After Judge Jack decided that the Federal
courts lacked jurisdiction, the local court of proper jurisdiction
found that the O'Quinn firm had handled itself and the cases in
compliance with the law.
There are some basic elements that I would like the
subcommittee to keep in mind about how the O'Quinn firm
managed its silicosis cases. First, the O'Quinn firm and myself
personally have always taken our clients' health issues seriously.
Throughout the course of the O'Quinn firm's representation of its
clients, it had a policy of advising clients that any initial screenings
that they had participated in for the purposes of filing a legal claim
and protecting their legal rights, and that any and all medical issues
that may have arisen from any results of the screening process
should be addressed to the client's personal physician.
Second, because the overwhelming majority of the O'Quinn
firm's cases were referrals, we relied on screening companies,
screening physicians, B-readers, the referring attorney, and the
client when we moved forward with the case. While I was not
personally involved in any aspects of the screening process, I did
understand that most of O'Quinn's clients had already been
screened and diagnosed before the clients were referred. I was not
personally aware of any problems with screening diagnoses or B-
reads by doctors or screening companies of the O'Quinn clients
until one fateful day in Corpus Christi when Dr. Ray Harron
asserted his Fifth Amendment rights and refused to testify in Judge
Jack's courtroom. Had I or anyone else at the O'Quinn firm been
aware of problems with doctors or screening companies, we
wouldn't have used them and we would have brought in different
screeners and doctors, which is exactly how the O'Quinn firm
responded to the hearings and rulings by Judge Jack.
As I told Judge Jack during one of the several hearings in front
of her, that there are cases that don't belong here, then I don't want
them here either. Subsequent to the proceedings in Judge Jack's
court, the O'Quinn firm had every client in the Alexander Class
rescreened. The substantial majority retested positive for silicosis
and still have active claims today.
Finally, I think the committee needs to consider the role that
screening plays in silicosis and other mass tort litigation.
Screening is done at a very early stage, before a lawsuit is even
filed. It is intended to identify indications that a person may have
silicosis to allow lawyers to determine whether there is enough
evidence to proceed with further testing, and to file and pursue a
claim. Screening is never intended to determine how ill a person
is, what the person's medical treatment should be, or to provide a
thorough scientific basis for actually trying a claim. A positive
screening would justify a lawsuit, but also would always lead to
much more comprehensive medical testing and examinations. The
defendants that choose to settle these cases have always demanded
comprehensive medical proof of this type before they agree to pay
any person's claim. It is important to point out that our efforts as
attorneys were to protect people's legal rights. That was our
foremost objective as attorneys in this process.
In conclusion, I again want to thank the subcommittee for
accommodating my medical condition. Thank you.
[The prepared statement of Richard N. Laminack follows:]
PREPARED STATEMENT OF RICHARD N. LAMINACK, ESQ.,
LAMINACK, PIRTLE AND MARTINES
Chairman Whitfield, ranking member Stupak, and members of
the Subcommittee, my name is Richard Laminack, and I am
principal member of the law firm of Laminack, Pirtle and Martinez
in Houston, Texas. I want to thank the Subcommittee for allowing
me to appear today by video from M.D. Anderson Cancer Center
in Houston, Texas. I am appearing by videoconference because I
have been diagnosed with leukemia and am currently being treated
by chemotherapy. My doctor has advised that I should not travel
or appear in large, public gatherings due to my treatment. Again, I
want to thank the Subcommittee for accommodating my current
conditions.
The testimony I am providing today relates to my
responsibilities and duties at my former law firm, O'Quinn,
Laminack & Pirtle ("OLP") in the administration and prosecution
of certain silica claims handled by the firm. I am here voluntarily
and ready to answer your questions.
I have been a trial attorney for the last nineteen years and have
exclusively represented individuals and their families who have
sustained personal injury. The people who have and do suffer
from silicosis have had a profound impact on me - their cases are
that severe and that troubling. As this Subcommittee has heard
over the course of its investigation, silicosis is a lung disease
caused by inhaling silica dust, which in turn causes lung damage
and scarring. Silica dust is a byproduct of several industries,
including, but not limited to, sandblasting, manufacturing, and
construction. Silicosis exposure is more prevalent in the South due
primarily to active shipping, shipbuilding, and refining industries.
Silicosis is a deadly, incurable disease, and it can take decades for
the full effects of silicosis to show up in a person.
My first experience with silicosis was in the late 1980s when I
represented a small group of workers -- 12 I recall -- against their
employer claiming they had been exposed to silica on the job. It
took a number of years to bring those cases to final resolution.
What really bothered me about that case is that the workers had
been seeing the company doctor and at no time did that physician
tell these workers that they had scarring on their lungs even though
they had symptoms that were consistent with silicosis. Every
single one of them has since died of silicosis and it upsets me to
this day. I tell you this Mr. Chairman not because I am looking for
some kind of redemption, but rather I know first hand what
silicosis can do to a person and their family. Because I know this,
I would never knowingly bring a silicosis claim on behalf of an
individual that does not have the fundamental proof of such a
claim.
I would like to take this opportunity to share my views about
the O'Quinn law firm's silicosis practice during my tenure at the
firm.
As I stated earlier, I handled my first silicosis cases almost
fifteen years ago as young attorney with the O'Quinn law firm.
Silicosis cases are complex and require certain elements of proof
and require a commitment of resources that not all firms and
attorneys want to take on. Since the disposition of those early
cases the O'Quinn firm moved away from silicosis work and
concentrated its time and resources elsewhere for the better part of
the late 1980s and 1990s. This did not include asbestos work.
It was not until early 2000 that OLP became more involved in
silicosis cases again. Around that time, other law firms began
approaching OLP and offering to refer silicosis cases. These
inquiries were directed at O'Quinn because of our reputation for
successfully handling complex toxic tort litigation involving large
numbers of plaintiffs and defendants. What was not done at any
time, and I can't stress this enough, was the "re-treading" of old
asbestos cases into new silicosis cases. When I refer to "re-
treading" I mean the practice of taking any and all of your firm's
asbestos claims and converting them into new silicosis claims with
or without the benefit of new medical testing of the alleged
claimant. The O'Quinn firm never had an asbestos docket and
therefore could not and did not re-tread those cases. Rather, on a
referral basis the O'Quinn firm began taking on silicosis cases.
Some of these cases, namely a class of cases called the Alexander
class that landed in Judge Jack's court room in Corpus Chsti as part
of the federal MDL, caused the spotlight to be shown on the
O'Quinn firm. A spotlight that should have been extinguished
when Judge Jack ruled that she never had subject-matter
jurisdiction over the Alexander case to begin with. After Judge
Jack decided the Federal Courts lacked jurisdiction, a local court of
original jurisdiction found that the O'Quinn firm handled itself and
the cases in compliance with the law.
There are some basic elements that I would the Subcommittee
to keep in mind about how the O'Quinn firm managed its silicosis
cases.
First, the O'Quinn firm and myself personally have always
taken our clients' health issues seriously. Throughout the course
the O'Quinn firm's representation of its clients it had a policy of
advising clients that any initial screenings that they participated in
were for the purposes of filing a legal claim only, and that any and
all medical issues that may have arisen from any results of the
screening process should be addressed to clients' personal
physicians.
Second, because the overwhelming majority of the O'Quinn
firm's cases were referrals, we relied on screening companies,
screening physicians and B-readers, the referring attorney, and the
client when we moved forward with a case. While I was not
personally involved in any aspects of the screening process, I did
understand that most of O'Quinn's clients had already been
screened and diagnosed before the clients were referred. I was not
personally aware of any problems with screening diagnoses or B-
reads by doctors or screening companies for O'Quinn clients until
one fateful day in Corpus Christi when Dr. Ray Harron asserted his
5thAmendment rights and refused to testify in Judge Jack's
courtroom.
Had I or anyone else at the O'Quinn firm been aware of
problems with doctors or screening companies, we would not have
used them and would have brought in different screeners and
doctors, which is exactly how the O'Quinn firm responded to the
hearing held by Judge Jack. As I told Judge Jack during one of the
many hearings in front of her, if there are cases that don't belong
here then I don't want them here either. Subsequent to the
proceedings in Judge Jack's court, the O'Quinn firm had every
client in the Alexander class re-screened. The substantial majority
re-tested positive for silicosis and still have active silicosis claims
today.
Finally, I think the Committee needs to consider the role that
screening plays in silicosis and other mass tort litigation.
Screening is done at a very early stage, before a lawsuit is even
filed, and is intended to identify indications that a person may have
silicosis, to allow lawyers to determine whether there is enough
evidence to file and pursue a claim. Screening is never intended to
determine how ill a person may be, what the person's medical
treatment should be, or to provide a thorough scientific basis for
pursuing a claim. A positive screening would not only justify a
lawsuit, but also would always lead to much more comprehensive
medical testing and examinations. Believe me, the Defendants that
choose to settle the cases demand that comprehensive medical
proof before they agree to pay any money for a person's claim.
In conclusion, I again would like to thank the Subcommittee
for accommodating my medical condition today.
MR. WHITFIELD. Thank you very much for your testimony,
Mr. Laminack, and that concludes the opening statements. We
will go to questions now.
One of the concerns of this subcommittee was the fact that we
are talking about patients here, or clients who supposedly have
some rather significant diseases. As all of you have said in your
testimony or submission of documents, in this whole process you
use B-readers, you use diagnosing physicians, and as you say, you
are representing the clients and helping them to obtain a judgment
in the event that they suffer one of these illnesses.
It seems that this process, the way it works does not really pay
much attention to the individual receiving treatment from a
physician to take care of his long-term medical needs. I know
many of you said, well, that is the diagnosing physician's
responsibility, but I get the impression in these hearings that we
have had that these diagnosing physicians are really sort of
professional physicians who look at and sign documents to use in a
pleading in a lawsuit. I don't get the impression that many of them
are in the business of following up with these clients for their long-
term medical needs.
Would you agree that the system, the way it is operating now,
is that a problem or is that not a problem, just from the perspective
of the individual's long-term health needs? Does anybody have
any thoughts on that? You feel like the patient or your client's
long-term health needs are being taken care of within the system as
it is now? Is that correct? So none of you are concerned about
their long-term healthcare treatment at all? Mr. Luckey?
MR. LUCKEY. Speaking for our firm, obviously we are
concerned about our clients' health, present and long term. I may
not address your entire question, Mr. Chairman, but I will try to
address the part that struck me.
MR. WHITFIELD. What I am trying to get at here is you have
one avenue you go down to file a lawsuit and collect damages, and
the way the legal system seems to work with these B-readers and
diagnosing physicians, everything seems to be oriented in that
result. There doesn't seem to be any concern that I have seen for
the long-term healthcare of the patient and/or client.
MR. LUCKEY. I would disagree as far as our firms are
concerned. Concern over the client's health is something that we
have always had. It is something we have because we know our
clients personally.
In addition, I would like to say that as far as I know, every
screening which our firm participated in or sponsored had a doctor-
-was supposed to have a doctor on site who met with the people as
they were tested. That doctor would have explained their
condition to them. In the event of a serious or life-threatening
condition, would have suggested that that person see either their
family doctor, or in the absence of that, a place where they could
be seen. I know several clients were sent to the University
Medical Center in Jackson, Mississippi, where they could get free
care.
So yes, sir, that is a very important issue for us.
MR. WHITFIELD. And with that, do you have any comment on
that, Mr. Davis?
MR. DAVIS. We believe that every one of our clients was
advised by the diagnosing physician of his condition and the type
of diseases that could be developed based on silicosis, and they
were advised and acknowledged that they were advised to see their
treating physicians and follow up on their condition.
MR. WHITFIELD. Now, did you use N&M Screening
Company, your firm?
MR. DAVIS. Yes, sir.
MR. WHITFIELD. And were you aware that they were not
licensed to conduct heaving heart screen in Mississippi or in
Texas?
MR. DAVIS. I was not aware.
MR. WHITFIELD. Were you aware? Did you represent some
Mississippi clients as well as Texas clients?
MR. DAVIS. Our clients were primarily from Mississippi and
Alabama. We had no Texas clients.
MR. WHITFIELD. Okay. Were you aware that the Mississippi
State Department of Health cited N&M for conducting screening
programs without the Agency's approval?
MR. DAVIS. I have seen that document as a result of meeting
with majority counsel, and that was done subsequent to their
performing services for us.
MR. WHITFIELD. I was just curious, in the firm, when you
were sending out 18,000 to 20,000 letters to existing asbestosis
clients, and from the information that I have received and in
looking at some of the testimony and Judge Jack's decision, it is
extremely rare that someone would have asbestosis and silicosis.
Did you all have any discussion within your firm that you are now
sending out letters about silicosis to 18,000 to 20,000 people that
had asbestosis?
MR. DAVIS. We disagree that it is extremely rare. NIOSH
says that you can have exposure to both silica and asbestos at any
number of industries that we mentioned. Many of our clients
worked in these industries. We simply notified our clients that if
they felt like they had exposure to silica and if they wanted to get
tested for that, we simply provided them an avenue to do that.
MR. WHITFIELD. So you are saying that it is not rare to have
asbestosis and silicosis? Is that correct?
MR. DAVIS. I am saying that there is literature out there that
says it is not rare. One of the doctors that testified for the
defendants in Judge Jack's court 6 months later admitted that he
had made numerous diagnoses of people with both silicosis and
asbestosis.
MR. WHITFIELD. Who was that? Do you remember his name?
MR. DAVIS. Dr. Friedman, Dr. Gary Friedman. I also for years
in the asbestos litigation have seen these same defendants have
defended asbestos litigation by stating that these people, these
asbestos plaintiffs, were exposed to silica. That has been an
affirmative defense of many of the asbestos defendants.
So now when the silica claims get filed, they say they cannot
have asbestos and silicosis both. They can't have it both ways. I
am fearful that Judge Jack relied upon some information that was
incomplete.
MR. WHITFIELD. Now, what about the rest of you? Do you
agree with Mr. Davis's comment there on this asbestos/silicosis
issue or not? Mr. Zadeh, what do you think?
MR. ZADEH. I believe there is literature on both sides, Mr.
Chairman.
MR. WHITFIELD. Okay. Mr. Luckey?
MR. LUCKEY. I understand there is literature on both sides
too,--
MR. WHITFIELD. Okay.
MR. LUCKEY. --Mr. Chairman, but we rely on the medical
profession for that.
MR. WHITFIELD. Okay. Now, Mr. Davis, did your firm pay
N&M only for positive silicosis screenings?
MR. DAVIS. We paid N&M--once a person went to N&M and
once he satisfied the exposure criteria of 2 years, prior to 1980, and
if he received a positive X-ray finding and we obtained a physical
exam and a medical history, and a diagnosis, and if that person
then asked us to represent them and we accepted them as a client,
then we advanced their medical screening costs to N&M.
If a person went through that entire process and didn't ask us to
represent them or we refused to represent them, we paid no fee to
anyone. We reimbursed no one's medical expense.
MR. WHITFIELD. You used Dr. Harron some as a diagnosing
physician, didn't you?
MR. DAVIS. He was--yes.
MR. WHITFIELD. And so you were quite surprised, I guess,
when he decided to make the comment that he did not mean to be
diagnosing anyone?
MR. DAVIS. I don't believe Dr. Harron made that comment. In
fact, I believe Dr. Harron stated, at least as to our plaintiffs, that he
stood behind every diagnosis that he made.
MR. WHITFIELD. Did he say diagnosis or B-reads?
MR. DAVIS. Diagnosis.
MR. WHITFIELD. Diagnosis.
Mr. Laminack, I think maybe you have the exhibit book with
you on the table there. Evidently, you do not have it, but I am
referring to Exhibit 18, Footnote 3, which describes statements that
you made during a hearing on August 22, 2005, and what reasons
did you have to doubt the legitimacy of the prior asbestos
diagnoses and claims?
MR. LAMINACK. I am very familiar with what you are talking
about, Mr. Chairman. The situation in the courtroom that day was
we were trying to persuade the judge that a group of our plaintiffs,
the Alexander Group, had legitimate, provable silicosis cases. The
defendants took the position that you couldn't have both asbestos
and silicosis, and they further took the position that almost all of
the Alexander plaintiffs had previously been diagnosed with
asbestos. Judge Jack then directed a question to me to which my
response was I doubt what the defendants are saying is true. I
doubt that they made asbestos claims. I doubt that they had an
asbestos diagnosis. So my statement was directed at the silicosis
defendants who were trying to persuade Judge Jack that all these
people had asbestos diagnoses, and that is what I was referring to.
We had researched, at Judge Jack's request, and determined
that a small number of the Alexander plaintiffs had asbestos, but
we never found any proof or any evidence that what the defendants
were saying was true. So my statement was directed to the
defendants, and I said I doubt that the asbestos diagnoses are real.
MR. WHITFIELD. My time is expired, but were you aware that
Dr. Harron, who did virtually all of the silicosis diagnoses in the
Alexander case, also did several of the suspect asbestos diagnoses?
MR. LAMINACK. I subsequently became aware, yes.
MR. WHITFIELD. Okay.
Mr. Stupak.
MR. STUPAK. Well, thank you.
Mr. Luckey, if I could, I want to ask a question. You
mentioned--you are from Mississippi, right?
MR. LUCKEY. Yes, sir, I am.
MR. STUPAK. And the Mississippi cases in Judge Jack--in
Mississippi, your statute of limitations or your statute of limitations
tolls when the person first learns of the injury, not when there is a
definite diagnosis. Is that right?
MR. LUCKEY. I believe it is knew or should have known they
had the disease.
MR. STUPAK. Okay. What is that period of time when you
knew or should have known? How much time do they have to file
a claim?
MR. LUCKEY. Three years currently.
MR. STUPAK. Three years, okay. So would it be--not
necessarily in this case, but in cases in Mississippi, do you file
cases before you have a definite diagnosis?
MR. LUCKEY. Speaking from our firm, the Mississippi law and
Code of Ethics requires that lawyers have to have a good faith
belief in their client's claim before a case is filed. We did not file a
claim without a written medical report. I can't think of an
exception.
MR. STUPAK. Okay. Does Mississippi have a requirement that
you have a specialist in the area that you are making a claim under
certify your claim or anything like that?
MR. LUCKEY. Not at the time these cases were filed. I believe
a very current medical malpractice amendment may call for that
now.
MR. STUPAK. Okay. So would it be, let us say medical
malpractice in certain cases if you wait for a definite diagnosis of
silicosis before filing a claim?
MR. LUCKEY. I am sorry?
MR. STUPAK. Would it be malpractice on the part of the
lawyer in certain cases for you to wait until there is a definite
diagnosis of silicosis before filing a claim?
MR. LUCKEY. In the event evidence that the client knew or
should have known he had the disease was present and 3 years
passed, then yes, the lawyer would have failed to file his client's
case on time.
MR. STUPAK. Are you aware of a medical doctor employed by
defense counsel in the silica cases that refuses to acknowledge X-
ray evidence on silicosis?
MR. LUCKEY. I am aware of many defense experts who have
never agreed that a client had silicosis or perhaps never agreed that
the case was as severe.
MR. STUPAK. How do you diagnose it then if they don't
believe the X-rays?
MR. LUCKEY. How do the defense experts diagnose it?
MR. STUPAK. Right.
MR. LUCKEY. Well, in my experience they attribute the disease
to another cause.
MR. STUPAK. Okay. Is there a doctor or two that will only
accept--defense doctor that only accepts biopsy is the only way to
diagnose silicosis?
MR. LUCKEY. I have heard of that anecdotally. I don't know
that he has appeared in any of my cases.
MR. STUPAK. Okay.
MR. LUCKEY. But you know, in general it is common, if not
the rule, that experts on either side of the case disagree completely.
MR. STUPAK. True. That is for the trier of fact to determine,
then.
MR. LUCKEY. That is for the jury to decide.
MR. STUPAK. In your cases--or for anyone, are the defense
doctors pretty much the same? Do you see them in the same cases,
much like we see Dr. Harron and some of these others on the
plaintiff sides?
MR. LUCKEY. Certainly. Different lawyers seem to prefer
different defense experts, and we see them regularly.
MR. STUPAK. Let me ask all of you, if I can, this question.
Much has been made of the quality of the B-readers and lack of
responsibility of medical doctors in the mass screening process.
We have heard little or nothing about the quality of the B-readers
by doctors paid by the defense and the responsibility that company
doctors owe to their patients.
So I would like to ask each of you the following questions, if I
may. I will start with you, Mr. Davis. During the course of your
practice, have you ever become aware of B-readers or other
radiologists employed by defense lawyers that seldom, if ever,
acknowledge health problems of the victims of exposure to
asbestosis, to silica, or other toxic materials in the workplace or the
environment?
MR. DAVIS. Congressman, this was our initial entry into the
silicosis litigation, and because of the delays that we experienced
in the MDL, we never got to the point of deposing or having
discovery with any of the defendant experts.
MR. STUPAK. Okay. Mr. Manji?
MR. MANJI. Congressman, in my practice I come across
defense doctors who absolutely categorically state that they have
seen 200,000 X-rays in their lifetime of workers and have never
seen one case of silicosis, so yes, that is true.
MR. STUPAK. Mr. Gibson?
MR. GIBSON. The same for me, Congressman. I can recall
taking a deposition of a Dr. Harrison, who made the statement that
as a B-reader retained by the defendants, in five cases that we were
working toward trial, he made the statement that he had reviewed
over 200,000 films while working as a B-reader, and that during
the entire time that he had been in Mississippi he had never seen a
single silicosis case.
MR. STUPAK. Mr. Zadeh?
MR. ZADEH. Same answer.
MR. STUPAK. Same. Mr. Fabry.
MR. FABRY. It has been my universal experience that the
doctors employed by the companies that my clients work for and
the doctors hired by the defendants do not see silicosis or other
lung disease.
MR. STUPAK. Mr. Mullins or Mr. Luckey, do either want to
comment to that?
MR. LUCKEY. I would stand on my previous answer.
MR. STUPAK. Okay.
In your testimony, and I had mentioned in my opening
statement from Dr. Welch challenging the adequacy of the OSHA
protection of workers exposed to silica, the Agency itself
acknowledged their silica standard is too weak; that the
measurement criteria are outdated, and that many workplaces do
not even meet the inadequate standard. Please tell us what you
have learned from your practice regarding the extent to which
workers are currently being protected from fatal diseases
occasioned by the exposure of silica. Mr. Davis?
MR. DAVIS. Most of the time there is no protection offered at
all, and I believe OSHA has stated that even at permissible levels,
a worker exposed will develop silicosis. I believe the CDC said
back in the '70s that the only way to get rid of silicosis is to get rid
of silica in the workplace.
MR. STUPAK. Mr. Manji?
MR. MANJI. Congressman, the requirements by OSHA are not
binding on the employers, which means that when the workers are
exposed to silica on the jobs, they eventually will develop silicosis.
There is a real simple way to get rid of silicosis, and that is to
replace silica with an alternate abrasive, which was proposed in the
early 1970s but was never carried through by OSHA or NIOSH or
anyone else.
MR. STUPAK. Let me ask this question then. It seems to me
there are some of these patients that had to be exposed for at least 2
years. Is that sort of when you started seeing problems, after 2
years? It seems like that was a minimum exposure time.
MR. MANJI. That is not exactly correct. You could have an
exposure, a very specific high exposure for a very short period of
time, as little as 3 or 4 weeks, even 5 weeks, which could develop
into serious acute silicosis.
MR. STUPAK. Okay. Mr. Gibson.
MR. GIBSON. My answers are consistent with theirs. One
thing I would say that it seems like as time had gone on, some
companies have done a better job of protection. It could always be
better. I could tell you I worked on a case with one unfortunate
guy who is in his early 30s diagnosed with acute silicosis and his
exposure started in the late '80s, so it seems like removing silica
from the workplace is the ultimate answer.
MR. STUPAK. Mr. Zadeh.
MR. ZADEH. The workers were heavily exposed, especially
back in the '60s and '70s. There was less protection then.
MR. STUPAK. Mr. Fabry.
MR. FABRY. From everything I have read, significant silica
exposures continue to occur in the workplace.
MR. STUPAK. Mr. Luckey, anything you want to add to that, or
Mr. Mullins?
MR. MULLINS. Throughout all the, I would say hundreds of
depositions that I have taken regarding workers, I think we have
found evidence of one OSHA investigation which the individual
being deposed indicated they knew in advance and the problems
were resolved. I am aware of another case that is currently
pending that there may have been some OSHA involvement or
some NIOSH involvement with a particular foundry where at least
from the workers' perspective they believe that the facility was
shut down and I believe maybe moved to Mexico. But for the
most part, particularly in Mississippi and the rural areas, worker
safety is dependent upon a benevolent employer. It is just not a
staffing situation or I think someone has testified about that before,
but that is not OSHA and NIOSH enforced. It is not a real viable
threat to have an employer protect worker safety in these areas.
MR. STUPAK. In the MDL, Judge Jack ordered the cases
removed from the MDL and returned to the original jurisdiction.
Some States, such as Mississippi, required the cases be refiled.
Can you tell this panel here whether or not the MDL caused the
statute to make it impossible to try the cases, regardless of the
individual merit?
Mr. Davis, you said you did some discovery but you never had
a chance to try it. After they were dismissed in MDL, did you lose
your right to file in district court?
MR. DAVIS. Because of procedural changes in Mississippi law
that occurred between the time that we filed the cases in 2002 and
the time that Judge Jack sent them back in 2005--many of our
plaintiffs were out of State plaintiffs. Those people's cases were
required to be dismissed, so they have no cause of action on their
silica claims.
MR. STUPAK. So out of State, out of Mississippi, you mean?
Other than Mississippi?
MR. DAVIS. Other than Mississippi.
MR. STUPAK. Okay. Mr. Manji.
MR. MANJI. Same answer.
MR. STUPAK. Same. Mr. Gibson?
MR. GIBSON. Same answer.
MR. ZADEH. Same.
MR. STUPAK. Mr. Fabry.
MR. FABRY. My five clients who participated in the MDL
were from Missouri, and although there was a significant delay in
their cases while they were sitting in the MDL and while Judge
Jack was conducting her investigation of the ongoings in
Mississippi, they have been transferred back to Missouri and I am
continuing to pursue actions on behalf of those five.
MR. STUPAK. Mr. Mullins or Mr. Luckey?
MR. LUCKEY. I alluded to this earlier. My firm represents a
fair number of very serious cases that have residents and exposure
in Alabama. Due to changes in Mississippi law, those claimants
are out of court in Mississippi, and in the event they still have a
viable case in Alabama, which is very questionable, we have still
been unable to find Alabama counsel willing to take them on due
to the criticism of the doctors in the testing.
MR. STUPAK. Thank you, Mr. Chairman. It looks like my time
is up.
MR. WHITFIELD. Mrs. Blackburn, you are recognized for 10
minutes.
MRS. BLACKBURN. Thank you, Mr. Chairman.
Mr. Davis, I think I would like to come to you first, if I may,
please, sir.
Following back up on the Chairman's questions, or kind of
coming in behind it, I want to be sure that I am following basically
the timeline that I was hearing you say of how you went about
securing your clients.
First of all, you had inquiries from clients, and then B would be
you sent a letter to current and former clients about silicosis. C,
you had N&M test the clients. D, if that individual had a silica
injury, then the firm accepted the representation of that client, and
then after that you would advance the cost, that client's cost for
testing to N&M. Am I correct in that timeline?
MR. DAVIS. Yes.
MRS. BLACKBURN. Okay. Is there any addition that you would
make to that timeline?
MR. DAVIS. Well, that probably doesn't give every detail of
every thing that happened, but that is a decent synopsis or timeline.
MRS. BLACKBURN. Okay, great.
Now let me ask you this. Did you refer any of your former
clients to N&M for medical screenings?
MR. DAVIS. We sent three or 400 clients. We notified N&M
of about 300 or 400 clients that said they wanted to be tested, and
we asked N&M to follow up and see if they could get them
scheduled.
MRS. BLACKBURN. Okay, so 300 or 400 out of how many did
you mail to? What was the size of the universe you mailed to?
MR. DAVIS. We mailed approximately 17,000, 18,000 letters.
MRS. BLACKBURN. Okay, so 17,000 to 18,000 letters, that is
your universe. All right.
Did you refuse to represent anybody? Were there any reasons
that you refused to represent anybody that had--you said you
chose--you made a statement in answering the Chairman that you
would choose to represent people. So did you refuse to represent
any people?
MR. DAVIS. I would anticipate that we did.
MRS. BLACKBURN. Could you verify that for us? You can do
that in writing if you would like for the sake of time.
MR. DAVIS. If we refused to accept them, then they never got
on any part of our system. They never became a client, so if that
happened, it happened probably at the time the client came and
asked us to represent them. So we would not have any record of
who we refused or anything like that.
MRS. BLACKBURN. Okay. So you would have no record of the
number of people that you declined to represent, or the reasons?
MR. DAVIS. I believe that is correct.
MRS. BLACKBURN. So you couldn't verify to us that you
refused to represent any people?
MR. DAVIS. I can't furnish you any written evidence of that.
MRS. BLACKBURN. Okay. All right.
I want to go back to this use of the term "understanding" in
your testimony, because you said in the testimony that you only
paid N&M for people who were diagnosed with silicosis and
accepted your representation, and you can't substantiate that you
refused to represent anybody. And in your testimony, you also
said that it was your "understanding" that N&M paid its physicians
the same dollar amount paid for every X-ray read. So here is my
problem. How can N&M pay this if they were only screening your
clients at a particular location and they didn't get compensated for
negative readings, only for positive ones? So talk to me about this
"understanding" and kind of how you walked through that.
MR. DAVIS. Every one of the doctors testified that they were
paid for every either physical exam they made or every X-ray they
made, whether it was positive or negative, and they were paid by
N&M. So it is my understanding as based upon their testimony
before Judge Jack in her court.
MRS. BLACKBURN. So then their total number of people tested-
-okay. So maybe we could go to them and get the number that you
refused to represent.
Let me move on. You stated in your testimony that a qualified
physician on site would take a medical history and perform a target
physical exam. Were you or any of your staff aware of any times
that that did not occur, that there was not a qualified physician on
site or that they did not perform a target physical exam?
MR. DAVIS. No, we believe that in every instance the
physician was there on site and did the physical exam.
MRS. BLACKBURN. Okay. What documentation did N&M
furnish to you that this physician was on site and that the physician
performed the exam?
MR. DAVIS. The doctor's report--
MRS. BLACKBURN. Okay.
MR. DAVIS. --which State that he met with the client and--he
would give a report that was a result of those meetings.
MRS. BLACKBURN. And you are talking about a physician's
report and not the B-reader?
MR. DAVIS. That is correct.
MRS. BLACKBURN. Okay. So in your opinion, a B-reader
never made the diagnosis--
MR. DAVIS. No, that is not--
MRS. BLACKBURN. --or any of your clients that you chose to
represent?
MR. DAVIS. No, that is not correct.
MRS. BLACKBURN. That is not correct? So there were times
the B-reader made the diagnosis?
MR. DAVIS. In every instance a B-reader made the diagnosis.
MRS. BLACKBURN. Okay.
MR. DAVIS. The B-reader may have also been the physical
exam attorney or they may have been more than one doctor at the
screening.
MRS. BLACKBURN. Okay. Thank you.
Mr. Gibson.
MR. GIBSON. Yes, Congresswoman.
MRS. BLACKBURN. Okay. I want to ask you just a couple of
quick things.
You say that you were given the title of lead counsel for the
plaintiffs' firms?
MR. GIBSON. Correct.
MRS. BLACKBURN. Okay, and who gave you that title?
MR. GIBSON. Initially when the MDL was set up, the different
plaintiffs' firms that had cases in the MDL met and we determined
to create a steering committee out of those firms and then the
steering committee selected me as lead.
MRS. BLACKBURN. Okay. But in your opinion, that term of
lead counsel is strictly for administrative work and not for
litigation?
MR. GIBSON. I would say that my role was more of a
coordinating role. I guess what I am saying is I wasn't lead
attorney or trial counsel on any of these cases.
MRS. BLACKBURN. Okay. So it was a coordinator? Is that the
general understanding to most attorneys and judges of what a lead
counsel would be?
MR. GIBSON. Well, initially I guess I would consider it more
of a liaison role, and we hired local counsel in Corpus Christi and
they took the designation of liaison, and I took the designation of
lead, but I would say that they were similar roles.
MRS. BLACKBURN. Similar roles, okay.
We have had a series of hearings, and we have had doctors and
in some instances they were also lawyers that agreed with
academic and legal scholar articles that claimed that the way mass
tort screenings are used violate medical ethics and the model rules
of professional conduct. I would like to know your opinion on
that. We have had an article we have looked at a couple times,
read a couple times, Lester Brickman from Academic Radiology.
Are you familiar with the article?
MR. DAVIS. I am not.
MRS. BLACKBURN. You are not. Well, then tell me what your
opinion is on the issue.
MR. DAVIS. I am sorry, I guess I don't understand the question
exactly.
MRS. BLACKBURN. Well, looking at the violation of medical
ethics and your rules of professional conduct with how some of
these mass tort screenings are carried out with the questions that
come up, both from the medical end and the legal end, the lack of
substantiation, the unusual occurrences, I guess you will, of the
number of cases that seem to appear. Does that not cause you any
angst?
MR. DAVIS. My opinion has always been that medical
screenings are a good thing. They do a lot of good, and in this
instance or in other instances, the screenings that we followed and
that other attorneys followed have been traditionally accepted.
MRS. BLACKBURN. Does anyone else from the panel have
anything they would like to add for that before my time is up, that
question? No one? Mr. Chairman, I yield back.
MR. WHITFIELD. Thank you.
Ms. DeGette, you are recognized for 10 minutes.
MS. DEGETTE. Thank you very much, Mr. Chairman.
In sitting here thinking about your role here today and the
committee's role, I have some specific questions about the conduct
of this particular silicosis litigation, but I think there is an overall
question I would like each one of you to answer, because we have
heard about the role of the physicians here, we have heard the role
about the screening physicians. I know myself and some of you all
testified about what defense physicians, screening physicians do
and how they always come up with an opinion. In my practice,
they always came up with an opinion that there was no negligence
involved.
And so the question that some scholars are asking, and Griffin
Bell, of course, has posited this, is the question about is there some
better way we can do screening of victims in these mass tort cases,
and is there something that State and Federal courts can be doing
to better ensure reliability of medical screening? And so the
question is should State and Federal courts consider the use of
neutral physician panels to ensure the reliability of medical
evidence in mass tort lawsuits? And I am sure each one of you, as
an experienced professional on the plaintiff's side, has given some
thought to whether or not this would improve the mass tort system,
and I am wondering if you could just each tell me your opinion,
starting with Mr. Davis.
MR. DAVIS. If you are able to obtain the truly independent or
the acceptable to both sides then yes, I think that would be a
mechanism to at least gett the medical issue of the case resolved.
So you then go on to who is involved and what are the damages.
MS. DEGETTE. Mr. Manji.
MR. MANJI. Congresswoman, I believe that there are adequate
checks and balances in place today with State regulations and
Federal regulations which oversee and regulate things like X-ray
screenings and other types of screenings where the worker is
protected. Now, in terms of an independent medical board, yes,
but my concern would be again, at some point they may not be as
neutral or as independent as one would hope them to be.
MS. DEGETTE. Mr. Gibson.
MR. GIBSON. My answer is largely the same, and I would have
the same concerns as Mr. Manji, but I can tell you, it is already in
the process, but the one thing I have noticed lately, a lot of the
cases that are being diagnosed positive by plaintiffs, at least in
Texas, some of the cases being diagnosed as positive by the
plaintiff expert are being confirmed by the defense expert where
we didn't see that as much in the past.
MS. DEGETTE. Well, and if you had an independent board,
chances are the same would happen, I would think.
MR. GIBSON. If it was truly independent and I would be in
favor of it, sure.
MS. DEGETTE. Mr. Zadeh.
MR. ZADEH. Same answer. The independence is the issue.
MS. DEGETTE. Mr. Fabry.
MR. FABRY. Although I believe independence is--if you can
find someone truly independent that would be good. I am also a
firm believer in the power of judges to initially evaluate credibility
of expert witnesses who appear in their courts and exclude
testimony that is not credible or reliable, and I am also a firm
believer in the jury system and the ability of juries to discern when
a doctor and his opinions are not credible and reliable.
MS. DEGETTE. Mr. Luckey.
MR. LUCKEY. The committee may be aware that in the MDL
certain plaintiffs, in fact, suggested an impartial panel, and
speaking from my firm, we have in the past agreed with defendants
to send disputed cases to an impartial panel. Obviously, the devil
is in the details on who comprises the panel.
MS. DEGETTE. Right, and I mean, you can do it in some ways
you do it now when you send cases to arbitration or mediation.
You might pick an expert, the other side picks one, and they jointly
pick a third one, correct?
MR. LUCKEY. That has been done by our firm, yes.
MS. DEGETTE. Mr. Laminack.
MR. LAMINACK. I certainly agree with Mr. Luckey's comment.
We did suggest to Judge Jack that a court-appointed or agreed
upon experts to look at the X-rays. I do have a little bit different
take than most people on your question, though. In an industry
that exposes people to silica and asbestos for years and years and
years without protection, I think it is an absolute shame that the
first time anybody ever offers a screening for those diseases to a
citizen be from a lawyer. I think the companies have abdicated
their responsibilities. I think the employers have abdicated their
responsibilities. I think the healthcare system has abdicated its
responsibility. I do think it is a shame that the first time a 20-year
sandblaster ever did screen for silicosis is when some lawyer
comes along interested in protecting his legal rights. I think that is
a crime.
MS. DEGETTE. Well, you make a really good point, Mr.
Laminack, because we had Dr. Laura Welch who came and
testified before this committee, and one of the great concerns that
she articulated is by the focus on this litigation, what it did was it
moved our focus--and as I said, in my opinion, and you probably
all disagree with me in some ways, but you know the details of this
case better than I do. In my opinion, this case was dealt with by
the legal system and when Judge Jack found there were problems,
she remanded the case and so on. I mean, I think that end worked,
from my perspective, and I think that what happened was our focus
on the details of the litigation took our focus off of the fact that
silicosis is really a problem for a lot of these workers and we need
to figure out ways to eliminate silicosis from the workplace. That
is really where I think we should be putting our attention. So thank
you for adding that.
Mr. Davis, I want to ask you a question as to why your law
firm contacted former clients to suggest that they be medically
examined for silicosis.
MR. DAVIS. We had received calls from clients asking about it,
and we knew that many of our clients had worked in the industries
that were affected. So we were giving them an opportunity to
determine if, in fact, they had the disease or had the exposure and
then find out if they had the disease, with no obligation at all that
they hire us as the attorney; simply let them be aware of the
screening and give them the opportunity to go have themselves
tested.
MS. DEGETTE. So it was really basically because you were
contacted by former clients and asked to look at this, or did you
have some other medical evidence or some other reason why you
contacted?
MR. DAVIS. We had numerous clients contacting us asking us
if we were going to be involved in silica litigation, and our letters
and responses stemmed from those inquiries.
MS. DEGETTE. Mr. Luckey, how did your firm obtain the
clients for the silicosis claims that you pursued?
MR. LUCKEY. As I mentioned earlier, our firms are located
near sites where there was heavy silica exposure. We obtained
many of our clients from the local area because we had been
involved in occupational disease cases for many years. We also
had referrals from other attorneys who were perhaps not as
experienced or did not want to focus on a certain type of case.
MS. DEGETTE. So your firm did not actually go out and solicit
clients?
MR. LUCKEY. We certainly send newsletters, for lack of a
better term, to all of our clients, and undoubtedly we mentioned
that if you were exposed to silica and you believe you may have a
disease, call us. I suppose that is a form of solicitation. We
probably did that.
MS. DEGETTE. So you also send out newsletters to former
clients?
MR. LUCKEY. I firmly believe that communicating with your
clients as frequently as possible makes for a much happier
relationship.
MS. DEGETTE. Mr. Manji, I wanted to ask you, in your
prepared testimony you said--and you might have answered this
and I didn't catch it--that you had the clients examined by
screening companies and readers that were questioned in Judge
Jack's opinion, reexamined by other people. What was the result
of those reexaminations?
MR. MANJI. We are still in the process of reevaluating those
X-rays that Judge Jack had in the repository. She didn't allow us
access to the repository until December of 2005, at which time we
started having all the X-rays reexamined. A substantial number of
those came out positive, again, by a re-reader. The only statistics,
hard statistics I have are on the Alexander group of 101 plaintiffs,
which is what the case was for, in a court of regional jurisdiction,
and out of those we had all of the X-rays re-read. We had all the
plaintiffs reexamined by a new set of doctors. I think there were
87 of those that came out positive again with silicosis.
MS. DEGETTE. How many cases did your firm have total
involved in the multi-district litigation?
MR. MANJI. I think we had approximately 2,000.
MS. DEGETTE. And those are all being reexamined now?
MR. MANJI. They are all being re-read as we speak.
MS. DEGETTE. Thank you. Thank you, Mr. Chairman.
MR. WHITFIELD. Mr. Walden, you are recognized for 10
minutes.
MR. WALDEN. Thank you, Mr. Chairman.
I want to follow up on that point, Mr. Manji and Mr. Laminack,
because you said, Mr. Manji, that 87 of the Alexander plaintiffs
had--were rediagnosed, right?
MR. MANJI. Correct.
MR. WALDEN. And then I believe Mr. Laminack, before the
Judge, you said the same thing?
MR. LAMINACK. Correct.
MR. WALDEN. All right.
MR. LAMINACK. That is correct.
MR. WALDEN. That those were solid proved diagnoses of
silicosis, they have got it? Those, I think, are your words.
MR. LAMINACK. Those are my exact words.
MR. WALDEN. And then Judge Jack said "Some 70 percent of
those also had apparently solid proved asbestosis diagnoses. Did
you print off the document for them?" And you said "I doubt that"
and the Judge said "Pardon?" And you said "I doubt that is true."
And the judge asked about the asbestosis, and you said yes. And
then the Judge said "Mr. Laminack, can you speak on behalf of
your clients about that?" Do you remember what you told the
Judge then?
MR. LAMINACK. I do.
MR. WALDEN. Can you share that with us, or would you like
me to--
MR. LAMINACK. You can go ahead and read it. I don't have
the document in front of me. This is an issue I addressed a
moment ago to the previous question.
MR. WALDEN. I will quote you here, according to the text.
"As I say, Your Honor, I doubt that. I doubt the numbers and I
doubt the diagnoses." And the judge asked "You doubt that they
had claims or you doubt that they actually had asbestosis?" And
you said "Both." I think that was a little different than I thought I
had with the response to the Chairman earlier.
MR. LAMINACK. No, Your Honor. The silica defendants had
represented to the Judge that 70 percent of the Alexander plaintiffs
had been diagnosed with asbestos. Our investigation indicated that
that was not true, and the defendants could never offer us proof
that that was true. We did uncover the fact that several of the
Alexander plaintiffs had asbestos. Indeed, in our rescreening and
reexamination, the doctors found that asbestos, but it was nowhere
near like 70 percent. And so my comment was I don't believe the
defendants when they are telling you 70 percent of these people
have been diagnosed with asbestos.
MR. WALDEN. Okay.
MR. LAMINACK. And to this day, I don't believe that.
MR. WALDEN. You don't believe they had asbestosis?
MR. LAMINACK. I don't believe--
MR. WALDEN. Pardon me?
MR. LAMINACK. Pardon me?
MR. WALDEN. I am sorry, you--
MR. LAMINACK. I don't believe they were ever diagnosed with
asbestos.
MR. WALDEN. You don't believe they had asbestosis?
MR. LAMINACK. Correct.
MR. WALDEN. Okay, all right. But weren't you party to
representing these people in those cases?
MR. LAMINACK. In the asbestos cases?
MR. WALDEN. Yeah.
MR. LAMINACK. No, no. I never represented anybody in an
asbestos case.
MR. WALDEN. Do you have the exhibit book with you, or you
didn't get that?
MR. LAMINACK. I have some exhibits. I am not sure what I
have, Congressman.
MR. WALDEN. Okay. In our exhibit book, Exhibits 11 and 12,
although these letters are undated, it appears that in each instance
Dr. Harron is diagnosing the same individual with asbestosis and
silicosis, based upon the same X-ray. Why are all the asbestos
letters going to Foster and Harcima firm while all the silicosis
letters are going to O'Quinn?
MR. LAMINACK. I don't know the answer, I can guess, and my
guess is I had given instruction to our staff if during the screening
process it is ever determined that a client or potential client has
both asbestos and silicosis or only asbestos, then the asbestos part
of the case or the asbestos case is to be referred to the law firm of
Foster and Harcima.
MR. WALDEN. And is that because you had a joint venture
agreement with them?
MR. LAMINACK. Well, we certainly had a referral arrangement
with them, and the O'Quinn firm initially financed the startup of
that law firm several years ago.
MR. WALDEN. So can you explain why the asbestos letters
don't mention silicosis, and vice versa? Isn't that a fairly
significant fact to leave out of a diagnosis letter?
MR. LAMINACK. Well, with all due respect, Congressman,
what you are looking at is a partial document. The letter you are
looking at was attached to a package of four documents that
included the exact findings from the B-read and the exact medical
history, and in the case where there was dual diagnosis, that
information was clearly stated in the B-read information and in the
medical history. So if the implication is somebody was trying to
hide the fact, that is simply not true. That letter contained in the
package contained all the details of the dual diagnosis.
MR. WALDEN. I understand those are the diagnosis letters, is
that correct?
MR. LAMINACK. Yes.
MR. WALDEN. And didn't Dr. Harron insist on separating the
asbestosis and silicosis?
MR. LAMINACK. In the cover letter that went with the package
he separated them.
MR. WALDEN. Why?
MR. LAMINACK. Frankly, we insisted that it be separate too
because our firm doesn't handle asbestos cases, so if a person had
a dual diagnosis, then the asbestos part of the case would go to one
firm, the silica part of the case would go to another firm, would go
to our firm.
MR. WALDEN. Okay, so if a patient had both an asbestosis
diagnosis, and a silicosis diagnosis, you referred the asbestosis
claim to the Foster firm and you kept the silicosis claim, correct?
Am I understanding that correctly?
MR. LAMINACK. Yes, you are.
MR. WALDEN. And you had some sort of joint venture referral
agreement with the other firm?
MR. LAMINACK. Correct.
MR. WALDEN. Was there remuneration in that agreement?
MR. LAMINACK. We got paid a referral fee, if that is what you
are asking.
MR. WALDEN. That is what I am asking.
MR. LAMINACK. If the case was successful.
MR. WALDEN. If the case is successful you got a referral fee
paid to you?
MR. LAMINACK. Sure.
MR. WALDEN. And are you an officer or director, or have you
ever been at the Foster law firm?
MR. LAMINACK. Well, when it was originally set up, it was set
up to have three managers. I was designated, along with Mr.
O'Quinn, as a non-member manager. My understanding is that
was done primarily to ensure--since Mr. O'Quinn had provided the
money for the startup of that firm, that Mr. Foster couldn't spend
or borrow money without Mr. O'Quinn's approval, if you will, so I
got elected to be one of the managers to ensure that the vote was
always 2 to 1.
MR. WALDEN. So you had a fiduciary responsibility over that
firm?
MR. LAMINACK. Yes--
MR. WALDEN. I mean, you were director?
MR. LAMINACK. I wasn't a director, it was kind of a manager
under Texas law--
MR. WALDEN. Well, then why on the Texas franchise tax
public information report did they list you as the director? It says
"yes" under director.
MR. LAMINACK. I have never seen a document that lists me as
a director.
MR. WALDEN. Well--
MR. LAMINACK. My understanding is that it was manager.
MR. WALDEN. Well, it details you as, at one point, a non-
member manager, but then also says you are director, so in 2005 it
is checked yes. Did you get a fee for being manager, I mean, on
the board?
MR. LAMINACK. No.
MR. WALDEN. No. So you did that pro bono?
MR. LAMINACK. I guess you could say I did.
MR. WALDEN. All right.
Mr. Davis, can you turn to Exhibit #7, please? And I would
ask you, what is the date of this letter and why did you need Dr.
Harron to include the physical exam language in the diagnosing
letters?
MR. DAVIS. Dr. Harron had made a physical exam and it was
omitted from a few, maybe 200 or 300, I think, of his examining
reports, and since he made the physical exam we asked him to put
that in the report.
MR. WALDEN. But are you aware that Dr. Harron testified
during the Dobbert hearing that he did not agree with the language
about him relying on the results of the physical exam in making his
diagnosis, but N&M asked him to include it and he "capitulated"?
MR. DAVIS. I do not recall that.
MR. WALDEN. So you are not aware that he testified to that?
MR. DAVIS. I don't recall that he testified to that.
MR. WALDEN. And this wasn't language that was required by
a particular bankruptcy trustee?
MR. DAVIS. On silica, no, and this is, as far as I am aware,
there is not any silica bankruptcy trustees.
MR. WALDEN. Okay. Did Campbell & Cherry also provide a
reasonable degree of medical certainty language to N&M?
MR. DAVIS. Yes.
MR. WALDEN. Why?
MR. DAVIS. Because under the Mississippi standard, a
diagnosis is not given probated effect, not allowed in the
courtroom unless a diagnosis is made within a reasonable degree of
medical certainty.
MR. WALDEN. And is that something Dr. Harron--why
wouldn't he have included that to begin with?
MR. DAVIS. He probably was unaware that that was a legal
standard instead of a medical standard.
MR. WALDEN. All right. That is my time.
MR. WHITFIELD. The gentleman from Texas is recognized for
10 minutes.
MR. BURGESS. Thank you, Mr. Chairman.
Mr. Davis, do you have the evidence book that has been
provided to us?
MR. DAVIS. I do.
MR. BURGESS. On Exhibit 8, the documents relate to
asbestosis diagnosis for a particular individual back in 1997. For
reasons related to privacy, we have redacted the name, but the
committee staff recently informed your counsel as to this person's
name. Do you know whether this individual was an asbestos client
of Campbell Cherry?
MR. DAVIS. If this relates to Mr. Pierce, yes, he was an
asbestos client.
MR. BURGESS. On the next page--the last page of this exhibit,
Dr. Harron's signature is on the page but it is on the letterhead of a
Leo Castilioni--I think I have pronounced that name right. Is there
a reason that Dr. Harron would have signed Dr. Castilioni's--
MR. DAVIS. I have no idea.
MR. BURGESS. --report? Okay. Going forward, then, one
exhibit to Exhibit 9, and this is the same individual 5 years later.
The first exam was done in August of '97, the second exam was
done January of 2002. And this time, 5 years later, 1997 he was
diagnosed with asbestosis and in 2002 he is diagnosed with
silicosis. On pages two and three are Xeroxes of the B-reads done
by Ray and Andrew Harron, respectively. On these B-reads by the
Drs. Harron show a film quality of 1 and a profusion of 1/0. Pages
four and five are B-read by Dr. Martindale of the same X-ray
which showed a film quality of 3 and a profusion of 0/1, which
would be a lower probability that this individual had silicosis. In
other words, the reader thought the likelihood was 0, but it could
be read as a 1. Then the last two pages appear to be a diagnosis
and a B-read by a Dr. Allen Oaks. Now, in testimony that you
provided to us, you state that Campbell Cherry had a conservative
practice of having two diagnoses for each client before filing suit.
This didn't include going from doctor to doctor until you got the
diagnosis you required?
MR. DAVIS. It did not.
MR. BURGESS. Did Campbell Cherry have Dr. Oaks do an
additional B-read because Dr. Martindale failed to diagnose the
client with silicosis?
MR. DAVIS. To the best of my knowledge, we never received
the information here from Dr. Martindale.
MR. BURGESS. So Dr. Martindale's B-read, that was not done
for your law firm?
MR. DAVIS. I am not sure who it was done for. I am just
telling you this is the first time I have been made aware that Dr.
Martindale reviewed anything on Mr. Pierce.
MR. BURGESS. Just out of curiosity, did Dr. Martindale
diagnose for your firm?
MR. DAVIS. Yes.
MR. BURGESS. Approximately what number?
MR. DAVIS. About 3,700 people.
MR. BURGESS. Okay. I might not remember if there were
3,700. That is a significant amount.
Going back to Exhibit 6 in the book, and staying with Dr.
Martindale for just a moment. Exhibit 6 is Dr. Martindale's letter
of March 25 of '05. In this letter, Dr. Martindale states that he
never intended to be a diagnosing physician in any lawsuits and
that he was merely asked to review X-rays and confirm the
diagnosis of the examining physician, usually Dr. Ray Harron.
Why then did Campbell Cherry elect to list Dr. Martindale as
diagnosing physician for so many of its plaintiffs?
MR. DAVIS. He issued a diagnosing report.
MR. BURGESS. Of those 3,700 that you just mentioned, what
percentage of those do you think, in your recollection, did he issue
a diagnosing report?
MR. DAVIS. We have diagnosing reports on 3,700 people from
Dr. Martindale.
MR. BURGESS. The diagnosis is a fairly crucial element of the
lawsuit. Did Campbell Cherry have any discussions with Dr.
Martindale about what it needed for the litigation and what he was
willing to provide?
MR. DAVIS. No.
MR. BURGESS. In this letter, Dr. Martindale complains that he
was never made aware that some of the individuals that he
diagnosed with silicosis had previously been diagnosed with
asbestosis. Do you know why that important factor was not
disclosed to the doctor, Dr. Martindale?
MR. DAVIS. I don't know who would have had that
information.
MR. BURGESS. On the second page of the same letter, Dr.
Martindale quotes you as saying "I certainly would hate to hear
you say that at your deposition." Were you trying to get him to
change his testimony that he would give before the deposition?
MR. DAVIS. No, sir. I was finding it difficult to believe that 2
years after he issued diagnosing reports on 3,700 people that he
was now saying he did not intend to do that, 2 years after we filed
lawsuits based on his diagnoses.
MR. BURGESS. Of these 3,700 people, because of the status of
the litigation in Corpus Christi, out of those 3,700 people, have any
of them received any compensation for their alleged injury?
MR. DAVIS. Yes.
MR. BURGESS. Has there been a payout? What has been the
average payout per patient?
MR. DAVIS. I don't know. It has not been much. The silica
litigation did not go very far.
MR. BURGESS. Just--and we probably asked Dr. Martindale the
same question, but I honestly can't remember his answer to it.
How much did Dr. Martindale receive in compensation for each of
these 3,700 films that he read?
MR. DAVIS. My memory on what he testified to was he
received $140,000 or $170,000 total, somewhere in that range, for
the work that he did.
MR. BURGESS. Mr. Chairman, it has been a long day for all of
us. I am going to yield back my time.
MR. WHITFIELD. Thank you. I want to ask one other question
here. We have heard a lot of testimony throughout all these
hearings that the plaintiff physicians will generally come up with
well, asbestos is there, silicosis is there, so there is a positive
reading. The defense physicians say well, I have never seen a
silicosis case or asbestosis case. So you fellows are all
experienced in the trial law and you do a lot of cases and try a lot
of cases. Would you support the use of a neutral physician's panel
to ensure the reliability of medical evidence in these mass tort
lawsuits?
MR. DAVIS. I believe Congresswoman DeGette asked us that.
I believe pretty unanimously we thought that if truly independent
panel we thought would be a productive thing.
MR. WHITFIELD. So all of you would agree with that? Is there
anyone that would disagree with it?
I agree with Diana DeGette that I think it would improve our
judicial system because plaintiffs have their doctors and defendants
have their doctors, and then you go to a jury and they have got to
try and figure it out some way. It would be a great improvement, I
believe, if we did have a neutral physician panel. So I appreciate
all of your comments on that.
Mr. Stupak, do you have anything else?
MR. STUPAK. That is why we have the jury system, Mr.
Chairman, to make the determination of fact. We shouldn't leave
it to Congress. God help us if we do.
MR. WHITFIELD. All right. Mr. Walden, do you have anything
else?
MR. WALDEN. I do, Mr. Chairman. Thank you, Mr.
Chairman.
I have a couple of questions for Mr. Zadeh and Mr. Fabry.
Both of you required subpoenas from this committee to produce
responsive documents, and both of you have produced privilege
laws that are wholly inadequate to permit the committee to make
determinations to whether you are asserting privilege in an overly
broad fashion.
Mr. Zadeh, please turn to Exhibit 19. Do you have that in front
of you there? The July 19 cover letter and the attached privilege
law are rather confusing. Do you or do you not have specific
responsive documents that you are refusing to turn over to the
committee, based upon claims privilege?
MR. ZADEH. Yes, I have attorney/client documents that I am
not turning over on the basis of privilege.
MR. WALDEN. Can you tell us how many?
MR. ZADEH. Numerous.
MR. WALDEN. Okay. Is that 50, 100, 1,000?
MR. ZADEH. Thousands.
MR. WALDEN. Thousands of documents?
MR. ZADEH. That I communicate with my clients, yes. I have
lots of communications with my clients, notes, all kinds of things.
MR. WALDEN. Specific to what we are requesting? I don't
mean every client you have ever had, but relative to the work of
this subcommittee?
MR. ZADEH. The subpoena was pretty broad and so with the
broadness of the subpoena it could arguably come under it.
MR. WALDEN. Other firms with far more clients in the MDL
have been able to review and produce their responsive documents.
Why is it such a burden for you?
MR. ZADEH. I addressed that with Chairman Barton at the last
hearing.
MR. WALDEN. Well, I couldn't be at the last hearing. Could
you address it for me, too, please?
MR. ZADEH. Sure. I have a lot of documents on silicosis. We
figured out it was about 16 million documents.
MR. WALDEN. How many?
MR. ZADEH. Sixteen million.
MR. WALDEN. Okay.
MR. ZADEH. I collected documents from the MDL, I have all
the depositions, I have all the information, and so that is why.
MR. WALDEN. And how many clients do you have in the
MDL?
MR. ZADEH. Twenty.
MR. WALDEN. Sixteen million documents on 20 clients?
MR. ZADEH. I have State court clients as well.
MR. WALDEN. I'm sorry?
MR. ZADEH. I have State court clients as well.
MR. WALDEN. Explain to me what that means.
MR. ZADEH. I have cases that aren't in the MDL.
MR. WALDEN. I see, that relate to silicosis?
MR. ZADEH. Yes, sir.
MR. WALDEN. All right.
Mr. Fabry, please turn to Exhibit 20. Can you explain why you
declined to produce the specific documents listed in the privilege
log pursuant to the committee's subpoena?
MR. FABRY. First, Mr. Walden, let me respectfully disagree
with your characterization of our privilege log is inadequate. The--
MR. WALDEN. Could you get a little closer to the microphone,
please?
MR. FABRY. The log is in the format specifically requested by
the committee, and when we asserted privilege initially, we were
advised by the committee that the format was not what the
committee was looking for, and when I subsequently revised the
privilege log and put it in exactly the format that the committee
requested, and I have not heard anything since questioning the
quality of the privilege log until this very minute.
MR. WALDEN. Can either of you provide legal justification for
your position that a congressional committee is bound by judicially
created privilege?
MR. ZADEH. You agreed to it last time.
MR. WALDEN. I am advised by our staff that we temporarily
agreed to take a privileged log of the first cut.
MR. FABRY. Your subpoena specifically identifies privilege
and the privilege log and acknowledges the existence of the
privilege. Setting that aside, this privilege is the world to my
clients. It is my obligation to assert those privileges on their
behalf. It is not for me to give it away.
MR. WALDEN. You asked your clients if they are willing to
waive privilege?
MR. FABRY. No, sir, I have not.
MR. WALDEN. Mr. Zadeh.
MR. ZADEH. No, sir.
MR. STUPAK. Mr. Chairman, if I may, it seems like Mr.
Walden is--Mr. Walden, invoking a privileged log that he says is
temporary, I think that is for the determination of the committee
and not just one member. I think we are getting a little far astray
here of where we should be going. If there is an objection as to
what these gentlemen provided this committee, the committee as a
whole should take it up, not an individual member who is trying to
push forth the subcommittee's position. Now, if this subcommittee
has a problem as a whole with what Mr. Fabry and Mr. Zadeh put
forth, then we should discuss it as a committee.
MR. WALDEN. Mr. Chairman, with all due respect, I believe
the time is mine and I didn't yield.
MR. STUPAK. I would be happy to give you any time that I
may consume.
MR. WALDEN. I don't--
MR. STUPAK. It is the position of this committee that no one
member can go out and start asking for things that may or may not
be privileged, either from the witness--
MR. WALDEN. Chairman--
MR. STUPAK. --or that may be in the documents of this
committee.
MR. WHITFIELD. Okay. Mr. Stupak, you have made your
point, and Mr. Walden does have the time. We do have a well-
documented procedure when we come to questions of privilege,
and you are right, the committee will have to make a decision as a
whole on whether or not the documents have been produced that
we requested and whether or not the attorney/client privilege is
relevant or not relevant. But Mr. Walden does have the time and I
will allow him to continue his questions.
MR. WALDEN. Thank you, Mr. Chairman. I appreciate that
because clearly, I think I have every right to ask these questions,
and they have every right to respond. They can respond as they
have, and so that is for the committee to decide.
MR. STUPAK. When there is a procedure that the subcommittee
follows, I wish we would follow the procedure.
MR. WHITFIELD. I am allowing the gentleman to continue his
questions, and then we have had long discussions with Chairman
Dingell about this issue of client privilege, and the committee has
its views on it. But Mr. Walden, you may continue your questions.
MR. STUPAK. Well, Mr. Chairman, the same courtesy will be
extended to me--
MR. WALDEN. Mr. Chairman--
MR. STUPAK. --in the investigation.
MR. WALDEN. Mr. Chairman, if I might--
MR. WHITFIELD. Would you hold just one minute?
Mr. Stupak, you know I have not been the one that has been a
difficulty on this Accutane hearing, and--
MR. STUPAK. Oh, I agree. That is on the jurisdiction of this
subcommittee. So if we have one standard for one hearing, that
standard has to apply to all the hearings. We don't pick and
choose--
MR. WHITFIELD. I am not aware--
MR. STUPAK. --what regulations--
MR. WHITFIELD. I am not aware of the privilege client issue on
the Accutane hearing because I just haven't been involved in that
aspect of it. I know that Chairman Barton has taken a particular
interest in that issue--
MR. STUPAK. Then you know I have, too, so I am very
familiar with the rules we have been using. So all I am saying is to
go down the slalom, but do it at each hearing, which is the proper
jurisdiction of this subcommittee. If it is okay for Mr. Walden to
ask those questions, then it be okay for me to ask those questions at
the subcommittees when I feel appropriate.
MR. WHITFIELD. At this time, Mr. Walden, you may continue
your questions.
MR. WALDEN. Thank you, Mr. Chairman. I would just say
that I don't recall a time in my time on this subcommittee when
anybody, any member was precluded from asking a question of a
witness. That is all I have done today. I don't recall a time when I
have crashed in on your time, Mr. Stupak, when you aggressively
ask witnesses questions, even if I may have disagreed with your
line of questioning.
MR. STUPAK. Well, let me aggressively crash in again.
MR. WALDEN. Mr. Chairman--
MR. STUPAK. As the Minority's side, I think it is our right--
MR. WALDEN. Can we have regular order?
MR. STUPAK. --that if the procedure of the committee has not
been followed, it is our right as the Minority side to certainly bring
it forward.
MR. WHITFIELD. I have made the determination, and Mr.
Walden may continue to ask questions because I think he has every
right to do so. Mr. Walden, you may continue.
MR. WALDEN. Actually, Mr. Chairman, I am going to yield
back the time.
MR. WHITFIELD. Mr. Walden yields back time. We have
concluded the--Mr. Inslee, do you have questions?
MR. INSLEE. Thank you. I just want to make sure Mr. Walden
has had adequate time. I would yield some to him if he wanted
any. Mr. Walden?
MR. WHITFIELD. Mr. Walden yielded back his time.
MR. WALDEN. I yielded back my time, Mr. Inslee, but I thank
you for your deep courtesy on that.
MR. INSLEE. I think Mr. Fabry said that the subpoena makes
reference to some privileges, and I wanted to make sure that the
committee is on the straight arrow about this. The only thing I saw
in the subpoena that made reference to a privilege was information
regarding the medical information. I didn't see anything that
would have protected an attorney/client privilege in this subpoena.
Am I missing something, or--
MR. FABRY. I believe, Mr. Inslee, if you look at the listing of
what should be done in the event of any documents are not
produced in response to the subpoena, you will find a specific item
that says that we should create a privilege log. And in my mind,
that is an acknowledgment in the subpoena of the privilege. And
as well as I believe you or the member who asked the question of
Chairman Whitfield the first time I was here--
MR. INSLEE. Right.
MR. FABRY. --and it confirmed acknowledgment of privileges
by this committee.
MR. INSLEE. I see that. That is #9 on the list. I appreciate that,
because I just want to make sure that we follow some legitimate
process here so that the privilege is recognized and respected to the
extent it should. And I think it should be. I think the
attorney/client privilege is an important thing in a congressional
context, as well as a civil litigation context, as I do private health
information. I think they are both legitimate privileges that should
be respected. At some point, we apparently have to have further
discussion on how to handle that. It sounds to me, from what I
have heard, there is some apparent view by at least some on this
committee that the claim of the privilege has been excessive by
one or more of the respondents. I just ask the Chair, is that a
concern the Chair has at the moment? If so, I guess I just ask the
question how we intend to resolve that?
MR. WHITFIELD. The committee obviously treads carefully
with respect to any matter of privilege and confidentiality. And
when there is a common law privilege, such as the attorney/client
privilege, when that comes into conflict with Congress's inherent
Constitutional prerogative to investigate, the precedents of the
House establish that the acceptance of a claim of privilege rests in
the discretion of the committee.
Now historically, this committee has only recognized certain
Constitutionally based privileges, such as the Fifth Amendment,
and this practice has been consistent, and I have had discussions
with Mr. Dingell about that, who has been one of the staunchest
defenders of the practice, and the committee will make a decision
about the--it is at the discretion of the committee on this privilege.
But Mr. Walden had every right, in my view, to ask questions
about this as to why a party did not or did provide information, and
if they did not, what was the basis of their privilege--of advocating
attorney/client privilege.
MR. INSLEE. Thank you, Mr. Chairman.
Just a quick question. We would examine the use by plaintiffs'
counsel of medical examiners extensively, and we have not done
investigation of use by defense lawyers of medical professionals.
This is just a general question to any or all of you. Have you
encountered situations where, through your observations, defense
counsel has engaged the services of medical practitioners who
come close to 100 percent conclusions that nobody ever got hurt
by anything, no matter how much hemorrhaging, fractures, disaster
were encountered. Have you ever run across that with certain
physicians? Anybody can volunteer to answer that.
MR. LUCKEY. Congressman, I believe I touched on that earlier.
It is very common in our law practice to find certain defense
experts who never agree with a diagnosis of our plaintiff, or at
least find it was caused by other means, or much less severe.
MR. INSLEE. I think someday if we continue looking at these
issues, I think that would be useful for the committee to look and
see whether there is abuse on the other side of the coin, and
frankly, I think there are. I practiced law for some period of time,
and every town has a special physician that is always there for the
insurance industry. I don't think that is unique to the town I used
to practice law in. It might be helpful for us to look in that issue as
well, because I think the legal system is imperfect, as most mortal
systems are on both sides of the fence, on occasion, and I think it
would do well if we looked at both sides of the fence in this regard.
Mr. Mullins?
MR. MULLINS. The committee is concerned, obviously, with
certain medical testimony that has occurred in these cases, and I
think it is important to--and I know you recognize as we have an
adversarial system. One of the first things we learned in law
school is that experts come in pairs. There is one that you can say
is this and one that says something else. But I think that when you
talk about creating a panel of independent physicians to review
this, I think that the courts inherently have that power in most
States as it is, that a judge can appoint an expert, and they do it in a
lot of situations. In Mississippi and I think in Federal court they
have that power. I don't think there is any need for any legislation
in that event. I think the judiciary already has that ability and the
power if they deem necessary to have court-appointed experts, and
it is done all the time in various aspects of litigation, although it
has not been done a lot in the past in mass tort system.
MR. INSLEE. Thank you very much.
MR. WHITFIELD. Mr. Inslee, I might say, before you came in I
think it was stipulated defendants have their physicians, plaintiffs
have their physicians, and we did have a discussion twice about the
importance of neutral physician panels. So you were the third
person to raise this issue about plaintiffs, defendants, and their
physicians.
Are there any other questions for this panel?
MR. BURGESS. Mr. Chairman, you let me sit here too long.
MR. WHITFIELD. I am sorry.
MR. BURGESS. I would like to ask one follow-up question, if I
could, of Mr. Gibson.
Just looking through the evidence book here, looking at Exhibit
16, page three of that document from your firm talks about
assigning a traditional value for the case that would be a 1/0, that is
the B-reader read it as 1, the lowest severity of disease, the 0
means that it could have been no evidence of disease as well. That
is there recorded as $50,000 for a case that was read a 1/0. Is that
correct that those cases were worth $50,000 each? Might as well
let that run, it has got about five or six of those to give us.
MR. GIBSON. Okay.
MR. BURGESS. Please proceed.
MR. GIBSON. Okay. It is probably a range around there.
There were a lot of discussions with defense lawyers and amongst
ourselves, and there is no easy answer to that.
MR. BURGESS. Better wait on this one. Now proceed.
MR. GIBSON. I think there is a general agreement that that is
probably a good average.
MR. BURGESS. On the next exhibit that we go to, which gets us
from Steve Bryant Associates to you on the--I guess it is page two
of that. They come down with--they do a lot of calculations on
those first two pages, then it says for $900 million you can settle
every case in the multi-district litigation. This comes to an average
settlement of $100,000 a piece. This is the historical value for 1/0,
at least, that is what Jason Gibson has averaged. So we doubled
the amount. Is that just to be on the safe side?
MR. GIBSON. Jason Gibson is not me, obviously. I am not
familiar with his cases or what his values are, so I don't really
know how to respond to that.
MR. BURGESS. Just the computations on these two pages, I
don't know, Mr. Chairman, I just find them--and maybe it is
because I haven't had that much experience with this type of math,
but $900 million for the cases in multi-district litigation--there
were 9,000 depositions, plaintiffs only, average time of 5 hours
each, $78,750,000 for one insured. If 50 attorneys show up, the
cost for the attorneys will be $393,850,000. My math is not that
good, but that is right under half of the $900 million for every case
in the multi-district litigation.
When looking at the motions, pleadings, and filings for the
silicosis, paragraph 37, they are talking about a Dr. Ballard who
apparently was one of the B-readers. Dr. Ballard's consistency is
remarkable because it is in the area of profusion, that is that 1/0,
which normally is the area where reader variability is most likely
to occur. Dr. Parker, the former administrator of NIOSH's B-
reader program, had this to say on the subject of the consistency of
profusion. "What I find most stunning about the information I
have seen in the last yesterday afternoon and this morning is the
lack of reader variability, because the consistency with which these
films are read as 1/0 defies all statistical logic and all medical and
scientific evidence of what happens to the lung when it is exposed
to workplace dust. What again is stunning to me is the lack of
variability. This lack of variability suggests to me that the readers
are not being intellectually and scientifically honest in their
calculations." I mean, I don't know whether that is true or not, but
if there is $100,000 payoff at the end, I guess I could see a motive
if one were so inclined.
Again, Mr. Gibson.
MR. GIBSON. The only thing I wanted to point out is Mr.
Bryant is a defense lawyer in the litigation, and the only purpose of
this memo, I understand that he put together some calculations for
what the cost of litigation would cost to follow along with the track
that Judge Jack set, and I asked if he would share that information
with me and he did.
MR. BURGESS. Mr. Chairman, I will yield back. Thanks very
much for everyone's time today.
MR. WHITFIELD. The first panel is released.
At this time, I would like to call the second panel, and that is
Dr. H. Todd Coulter, a medical doctor from Ocean Spring,
Mississippi. Dr. Coulter, thank you for being here, and you
understand that this is an Oversight and Investigations hearing, and
we do take testimony under oath. Do you have any objection to
testifying under oath?
[Witness sworn]
MR. WHITFIELD. And are you represented by legal counsel, Dr.
Coulter?
DR. COULTER. I am, Congressman, Mr. William Michael
Kulick, Attorney at Law in the State of Mississippi.
MR. WHITFIELD. Mr. William Michael Kulick?
DR. COULTER. Kulick.
MR. WHITFIELD. Okay, thank you.
Dr. Coulter, do you have an opening statement?
DR. COULTER. No opening statement.
MR. WHITFIELD. Okay. Then I would like to ask you a
question.
In Exhibit 29 in the binder in front of you, contains two letters
signed by you, each of which reveals a specific diagnosis of
silicosis, and according to the testimony before this subcommittee
back in June, the Mississippi Board of Medical Licensure adopted
a policy with regards to public screenings on July 18, 2002, which
reads in relative part, "It is the opinion of the Mississippi State
Board of Medical Licensure that any medical act that results in a
written or documented medical opinion, order, or recommendation
that potentially affects the subsequent diagnosis or treatment of a
patient constitutes the practice of medicine in this State. Further,
any physician who renders such a medical opinion, order, or
recommendation assumes a doctor/patient relationship with the
patient and is responsible for continuity of care with that patient."
Dr. Coulter, what efforts did you make to ensure a continuity
of care with each of the individuals that you diagnosed with
silicosis?
DR. COULTER. With greatest respect, Mr. Chairman and
members of the committee, upon the advice of counsel I must elect
to invoke my Fifth Amendment rights to remain silent, as any
answer I give may incriminate me.
MR. WHITFIELD. So you are refusing to answer this question
and any other questions that we may have, based on your right
against self-incrimination afforded to you under the Fifth
Amendment of the Constitution. Is that correct?
DR. COULTER. That is correct, Congressman.
MR. WHITFIELD. Okay.
Are there any further questions from any of the other
members?
Based on your invoking your Fifth Amendment right, we are
going to dismiss you at this time, subject to the right of the
subcommittee to recall you if necessary, and at this time, Dr.
Coulter, you are excused.
DR. COULTER. Thank you, Congressman.
MR. WHITFIELD. I would like to, without objection, introduce
into the record this hearing binder with exhibits, and without
anything else, that concludes this hearing.
[The information follows:]
[Whereupon, at 4:46 p.m., the subcommittee was adjourned.]
No. MDL 1553, U.S. Dist. Ct. for S.D. Texas, Corpus Christi Div.
398 F.Supp.2d 563 (S.D. Tex. 2005).
See Feliciano v. DuBois, 846 F. Supp. 1033 (D. Mass. 1994). Judge Jack derived important
information concerning these cases by requiring the parties to submit "Fact Sheets" providing, for
example, as to plaintiffs, specific information about when, where and how he or she was exposed to
silica dust and detailed medical information concerning the alleged silica-related injury, and, as to
defendants, information (including photographs) of each-silica-related product that defendant
designed, manufactured, marketed, sold, or distributed.
See Appendices to the ABA Task Force Proposal for a Model Case Management Order, adopted by
the ABA House of Delegates in January, 2006.
In re: Asbestos Products Liability Litigation (No. VI)(Civ. Ac. No. MDFL 875, E.D. Pa.),
Administrative Order No. 8m o, 2 (Jan. 15, 2002).
Judge Sandra Mazer Moss, "State-Federal and Interstate Cooperation, Case Management
Techniques Move Complex Litigation, Hasten Disposition of Asbestos, Other Cases," State-Federal
Judicial Observer (Federal Judicial Center & National Center for Stare Courts), April 1993, at 3.
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or Administrative Order Creating Statewide Inactive Asbestos Docketing System," id.
Rosenman K, Reilly MJ, and Henneberger PK. 2003 Estimating The Total Number Of Newly-
Recognized Silicosis Cases In The United States. Am J Ind Med 44:141-147
DHHS/CDC/NIOSH. Health Effects of Occupational Exposure to Respirable Silica.
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and projected mortality -- 1980-2003. Am J Ind Med 3:259-311. Mr. Nicholson worked with Irving
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Sorensen G. 2001 Worksite tobacco control programs: the role of occupational health. Respir
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social disparities in tobacco use: a social-contextual model for reducing tobacco use among blue-
collar workers, Am J Public Health. Feb;94(2):230-9.
American Thoracic Society Statement on Diagnosis and initial management of nonmalignant
diseases related to asbestos. 2004. Am J Respir Crit Care Med 170:691-715
Welch LS, Michaels D, and Zoloth S. Asbestos-Related Disease among Sheet Metal Workers.
American Journal of Industrial Medicine 25:635-48, 1994
Dement J, Welch, L, Bingham E, Cameron B, Rice C, Quinn P, Ringen K. Surveillance Of
Respiratory Diseases Among Construction And Trade Workers At Department Of Energy Nuclear
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