[Congressional Record Volume 151, Number 95 (Thursday, July 14, 2005)]
[Senate]
[Pages S8320-S8321]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORNYN:
  S. 1406. A bill to protect American workers and responders by 
ensuring the continued commercial availability of respirators and to 
establish rules governing product liability actions against 
manufacturers and sellers of respirators; to the Committee on the 
Judiciary.
  Mr. CORNYN. Mr. President, I rise today to introduce the ``Respirator 
Access Assurance Act of 2005.'' This legislation is not a complex or 
lengthy proposal, but it is critically important for our men and women 
in uniform, our first responders, and the American public as we 
continue to wage the war on terror. It is designed to protect the 
companies that manufacture respirators from abusive litigation--the 
very respirators that we need for protection against life-threatening 
environmental hazards and contaminates.
  Even as we continue today to debate important appropriations 
legislation for the Department of Homeland Security, the many American 
manufacturers and sellers of one of the types of equipment necessary in 
the war on terror and for our first responders generally--respirators--
are being forced by misdirected litigation to decide whether to abandon 
that market.
  Since the year 2000, American respirator manufacturers have 
experienced an avalanche of mass lawsuits in which thousands of 
plaintiffs claim they suffered lung damage from respirators because of 
defective designs and/or failure to provide adequate warnings. Between 
2000 and 2004, well over 300,000 individual claims have been filed 
against major respirator manufacturers. Many of these people show no 
symptoms of illness.
  Respirator manufacturers are included among dozens of defendants in 
these lawsuits, despite some very important facts. First, respirators 
don't cause lung disease--employers are legally responsible for 
providing the right respirator to an employee for the environment in 
which the employee will be working. Respirator manufacturers have no 
role in that decision. Second, respirators are 100 percent regulated by 
the U.S. Government. The National Institute for Occupational Safety and 
Health, or NIOSH, sets the design standards for respirators, tests 
every product in its own labs, approves all warning labels, and 
monitors the manufacturing process to be sure respirators meet the 
standards for which they were designed.
  Perhaps most troubling is the extent to which these claims track very 
closely with the recent explosion of asbestos and silicosis claims. 
Recently, a number of ethical questions surrounding many of these 
claims have come to light.
  In my home State of Texas, a Federal court in Corpus Christi under 
the watch of Judge Janis Graham Jack, has been trying to sort out a few 
thousand of these cases. That Multi-District Litigation has turned up 
evidence of fraud--in Judge Jack's words--``great red flags of fraud,'' 
and highlights attempts by some to recycle plaintiffs who have already 
recovered in asbestos litigation by claiming they also have silicosis, 
which is a virtual medical impossibility.
  Just today, the Wall Street Journal ran an editorial highlighting 
this ``tort scam.'' As it points out, ``Judge Jack not only blasted 
nearly everyone of the 10,000 silicosis claims in front of her court, 
she documented the fraudulent means by which lawyers, doctors, and 
screening companies had manufactured the claims.'' She said, ``These 
diagnoses were about litigation rather than health care . . . these 
diagnoses were manufactured for money.''
  I ask unanimous consent that the Wall Street Journal editorial be 
printed in the Record.
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, July 14, 2005]

                         The Silicosis Sheriff

       If the criminal investigation of class-action titan Milberg 
     Weiss is anything to go by, prosecutors may finally be 
     starting to hold the trial bar accountable for its legal 
     abuses. Another good sign is that a separate federal grand 
     jury, this one in New York, is investigating the ringleaders 
     of the latest tort scam, silicosis.
       Much of the credit for pointing the grand jury toward this 
     corruption goes to Texas federal Judge Janis Graham Jack, who 
     last month put the brakes on the silicosis machine with an 
     extraordinary 249-page decision. Judge Jack not only blasted 
     nearly every one of the 10,000 silicosis claims in front of 
     her court, she documented the fraudulent means by which 
     lawyers, doctors and screening companies had manufactured the 
     claims. ``These diagnoses were about litigation rather than 
     health care,'' wrote Judge Jack. ``These diagnoses were 
     manufactured for money.''
       Perfectly said, and we only wish the fearless, judge had 
     been around to render a similar verdict back when the 
     asbestos blob got rolling. It was that juggernaut, largely 
     blessed by the courts, that first allowed trial lawyers to 
     co-opt doctors to create millions of phony claims and extort 
     billions out of corporate defendants. Encouraged by this 
     success, the trial bar revved up the same machinery for 
     silicosis, an occupational lung disease that can be fatal but 
     has been in decline for decades.
       It was the fact of this decline that got Judge Jack's 
     attention. A former nurse, she couldn't understand how a 
     disease that causes on average fewer than 200 deaths annually 
     in the U.S. had suddenly resulted in more than 20,000 claims 
     from Mississippi and surrounding states. To get to the bottom 
     of the suits against some 250 companies, the Clinton 
     appointee held 20 months of pretrial proceedings. What she 
     found was a gigantic attempted swindle.
       Her first discovery was that, of the more than 9,000 
     plaintiffs who supplied more information about their 
     ``disease,'' 99% had been diagnosed with silicosis by the 
     same nine doctors. These physicians had been retained by law 
     firms or by ``screening companies'' that do mass X-rays on 
     behalf of law firms searching for plaintiffs. When these 
     physicians were deposed, they all but admitted they took 
     their orders from the lawyers and screening firms.
       Which explains why none of them took a medical history, 
     while others never even saw their patients. One doctor signed 
     blank forms for the screening company and let his secretary 
     fill out the diagnoses. Yet another performed 1,239 
     diagnostic evaluations in 72 hours--less than four minutes 
     apiece. Dr. George Martindale, who diagnosed 3,617 patients 
     with silicosis, admitted that he didn't even know the 
     criteria for diagnosing the disease and had simply included 
     in each of his reports a paragraph provided by the screening 
     company.
       Another shocker was that more than 65% of the silica 
     plaintiffs had previously been plaintiffs in an asbestos 
     suit, even though it is close to clinically impossible to 
     have both asbestosis and silicosis. Digging deeper, the judge 
     found that many of the same doctors had ginned up the same 
     patients for both asbestos and silicosis cases. One doctor, 
     Ray Harron, received nearly $5 million from 1996-2004 from a 
     leading screening company, N&M, and has supplied thousands of 
     silicosis diagnoses, and at least 52,000 asbestos-related 
     diagnoses.
       Representatives from N&M admitted in court that they had no 
     medical training and that their company has never had a 
     medical director. They confirmed that law firms often set the 
     criteria for the silicosis screening process, and that the 
     screening companies were paid by the volume of people who 
     ultimately joined a lawsuit. As N&M owner Heath Mason 
     testified, his business depended on doing ``large numbers.''
       Judge Jack reserved her most severe criticism for the 
     lawyers, noting that statistics alone should have shown that 
     their case defied ``all medical knowledge and logic,'' and 
     that by bringing it regardless they had exhibited a 
     ``reckless disregard of the duty owed to the court.'' She 
     required the Houston firm of O'Quinn, Laminack & Pirtle to 
     pay the defendants' $825,000 in legal fees, and ordered 
     sanctions. She also made clear she was on to the tort bar's 
     tactics, noting that the ``clear motivation'' was ``to 
     inflate the

[[Page S8321]]

     number of plaintiffs and overwhelm the defendants and the 
     judicial system.''
       Judge Jack did not shy away from the word ``fraud'' in her 
     courtroom, and clearly someone at the Justice Department has 
     been paying attention. A Manhattan grand jury is now 
     investigating at least one of the screening companies, and 
     subpoenas have gone out to at least two of the doctors 
     involved.
       Which shows how large a public service Judge Jack has 
     performed. She could easily have followed other judges and 
     accepted these mass claims at face value. Instead, she dug 
     into the individual claims and found the corruption 
     underneath. In doing so, she has not only stalled the entire 
     silicosis scam, she's opened the door to probing millions of 
     asbestos claims that have come before. The lawyers could 
     attempt to retry their dismissed claims in state court, 
     though amid a grand jury probe they might prefer that this 
     whole issue go away.
       Over the years, too many judges have allowed tort lawyers 
     to hijack their courtrooms to perpetrate legal fraud. Judge 
     Jack is showing what good comes when judges truly care about 
     justice.

  This level of fraud must be brought to the attention of the American 
people. The extent to which this type of behavior is the norm rather 
than the exception is troubling, to say the least. And the breadth of 
this abuse extends so far now that it endangers the manufacturing of 
masks for the American people--and people through the world for that 
matter--who need to protect themselves from airborne contaminants. 
Thousands of lawsuits have been directed toward these manufacturers--
largely indiscriminately.
  Many of these cases might someday be dismissed or settled for a few 
hundred dollars to avoid protracted litigation, but the costs of 
getting to that point are enormous. Respirator companies have already 
incurred millions of dollars in litigation and settlement costs, and 
even after years of arguing in multiple State and local courts they 
still face hundreds of thousands of individual claims. The costs of 
this litigation burden are both unjustified and destructive.
  Most of the net income these companies receive from respirator sales 
is being eaten up in litigation costs. Some respirator companies have 
already decided it is not worth it and have stopped selling in the 
commercial market, and others are contemplating the same thing. If U.S. 
manufacturers drop out of the market, those who need respirators will 
have to use imports, which may be of lower quality and less reliable, 
or use nothing at all. In either case we are letting this unfounded 
litigation burden pose additional risk to millions of Americans who 
need these devices to do their jobs and protect themselves, and all of 
us, from untold harm.
  That is why I am introducing this legislation today. The Act provides 
respirator manufacturers with protection from the legal costs 
associated with defending claims for which the manufacturers should 
bear no liability. It provides that a respirator manufacturer may not 
be subject to any claim for defective design or warning relating to a 
respirator or any claim based on such an allegation if the respirator 
has received NIOSH approval, and the respirator complied with the 
NIOSH-approved design and labeling in effect on the date of 
manufacture. This protection would continue notwithstanding a 
subsequent action by NIOSH to modify, supercede, or withdraw the 
approval. In addition, we have taken extra measures to clarify that 
there are exceptions in the Act that would permit liability to be 
imposed if the initial approval was obtained through fraud, 
misrepresentation, or bribery.
  This is a simple bill that will not cost the government a penny, will 
not deprive any deserving plaintiff of the right to sue those who may 
have caused him or her harm, and will assure that this vital industry 
continues to be an American industry for a long time to come.
  I look forward to working with my colleagues to move this proposal 
forward.
  Mr. President, I ask unanimous consent that an article from the 
Houston Chronicle be printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Houston Chronicle, July 1, 2005]

         Federal Judge Throws Out Thousands of Silica Diagnoses

       Corpus Christi.--A federal judge has recommended throwing 
     out all but one of about 10,000 diagnoses of the lung ailment 
     silicosis that were used in lawsuits against industrial 
     companies, ruling that doctors ``manufactured'' findings of 
     the disease in hundreds of cases.
       U.S. District Judge Janis Graham Jack's scathing 249-page 
     opinion, signed Thursday, finds that the diagnoses are 
     inadmissible in court. The bulk of the cases originate in 
     Mississippi, and Jack sent them back to the state courts 
     along with her report. She threw out the approximately 100 
     Texas cases that she felt she had jurisdiction over.
       Jack's ruling also orders sanctions against Houston law 
     firm O'Quinn, Laminack & Pirtle, which brought roughly 2,000 
     of the suits. Lawyers from the firm did not immediately 
     return a call for comment today.
       A doctor testifying before Jack in December withdrew 
     thousands of his diagnoses, saying he only briefly scanned X-
     rays to give what he thought was a second opinion on the 
     degenerative diseases caused by inhaling quartz dust.
       His withdrawal, made during consolidated pretrial 
     proceedings for lawsuits from several states, prompted Jack 
     to order every doctor and ``screening company'' to back up 
     the diagnoses in the lawsuits. More doctors withdrew their 
     diagnoses, and after hearings in February Jack said she 
     sensed ``red flags of fraud'' in the way plaintiffs were 
     recruited. ``These diagnoses were driven by neither health 
     nor justice,'' Jack wrote in her opinion Thursday. ``They 
     were manufactured for money.''
       Danny Mulholland, a Mississippi-based defense attorney for 
     Ingersoll-Rand Co. and other companies, said the opinion was 
     ``historic'' in an age where law firms recruit plaintiffs 
     with billboards and television ads.
       ``I think the way litigation has been done, and 
     particularly mass tort litigation, changed with the February 
     hearings which culminated in this order,'' he said. ``We'll 
     have to go back in state court and win there, but we expect 
     to, based on what Judge Jack has found.''
                                 ______