[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-ï¿½-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 rï¿½les, 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-ï¿½ 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. 
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  Nicholson WJ, Perkel G, Selikoff IJ. 1982. Occupational exposure to asbestos: population at risk 
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Physiol. 2001 Oct;128(1):89-102;  Sorensen G, Barbeau E, Hunt MK, Emmons K. 2004 Reducing 
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
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Respiratory Diseases Among Construction And Trade Workers At Department Of Energy Nuclear 
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