RAND Institute for Civil Justice Report on the Abuse of Medical Diagnostic Practices in Mass Tort Litigation: Lessons Learned from the "Phantom" Silica Epidemic That May Deter Litigation Screening Abuse

By Behrens, Mark A.; Schaecher, Corey | Albany Law Review, Winter 2010 | Go to article overview

RAND Institute for Civil Justice Report on the Abuse of Medical Diagnostic Practices in Mass Tort Litigation: Lessons Learned from the "Phantom" Silica Epidemic That May Deter Litigation Screening Abuse


Behrens, Mark A., Schaecher, Corey, Albany Law Review


In June 2005, United States District Court Judge Janis Graham Jack of the Southern District of Texas issued a landmark opinion declaring that all but one of ten thousand cases aggregated for pretrial purposes under Multidistrict Litigation ("MDL") 1553 were based on "fatally unreliable" diagnoses. (1) Judge Jack found that the claims "were driven by neither health nor justice: they were manufactured for money." (2) The broad media reporting of Judge Jack's findings sparked criminal and congressional inquiries in which the suspect doctors "took the Fifth." (3)

The RAND Institute for Civil Justice recently issued a report that carefully examines the MDL 1553 litigation to identify lessons that can be learned about the civil justice system's ability to detect and address abusive medical diagnostic practices in mass personal injury litigation. (4)

I. SILICA LITIGATION: BACKGROUND AND MDL 1553

A. Knowledge and Regulation

Silica--quartz in its most common form--is a ubiquitous mineral that covers beaches and fills children's sandboxes. (5) In its natural form, silica is not especially harmful. When fragmented into tiny particles, however, silica can be dangerous if inhaled in excess of certain levels for a prolonged period. Plaintiffs in silica cases assert that they suffer from a disease--primarily silicosis, or scarring of the lungs--as a result of exposure to silica dust through their occupations in various industries. RAND notes: "Workers in many industries, including mining, quarrying, construction, glass, cement, abrasives, ceramics, and iron and steel mills, can be exposed to silica." (6)

The risks of silica exposure have been well-known for a long time. For instance, as far back as 1949, the United States Supreme Court noted: "It is a matter of common knowledge that it is injurious to the lungs and dangerous to the health to work in silica dust." (7)

The Federal Occupational Safety & Health Administration ("OSHA") has regulated workplace silica exposure since the early 1970s. (8) Today, OSHA provides detailed regulations requiring employers to protect employees from overexposure to silica through the enforcement of permissible exposure limits ("PELs") for occupational exposure to airborne silica (9) and the OSHA Hazard Communications Standard. (10) States also have acted to protect workers from overexposure. For instance, many states set threshold levels for silica dust in the workplace, (11) prohibit minors from working with silica refractory products, (12) and offer other worker protections. (13)

The Centers for Disease Control & Prevention ("CDC") and the National Institute for Occupational Safety & Health ("NIOSH") have reported that nationwide silicosis deaths declined sharply, from 1,157 in 1968, to 448 in 1980, to 308 in 1990, to 187 in 1999, to 148 in 2002--a 93% decline in overall mortality. (14) Similarly, a 2005 study by OSHA staff found "a downward trend in the airborne silica exposure levels" from 1988-2003. (15) RAND found that "[b]etween 1995 and 2004, silicosis-related deaths were generally stable or decreasing in all states." (16)

For years, silica litigation generally reflected this public health success. The litigation was stable with only a low number of people pursuing silica claims in any given year. (17)

B. A Spike in Silica Claims

"[P]laintiffs' lawyers filed an unprecedented number of silica cases from 2002 to 2004--a total of 20,479 cases in Mississippi alone--an amount 'five times greater than one would expect over the same period in the entire United States." (18) The drastic rise in claims against U.S. Silica, a leading supplier, exemplified this surge. In 1998, U.S. Silica was named in 198 silicosis claims; the number of claims jumped to 1,356 in 2001 before soaring to 5,277 in 2002 and skyrocketing to 19,865 in 2003. (19) Nearly two-thirds of the claims filed against U.S. Silica between 2001 and 2003 were filed in Mississippi state courts; most of the other cases were filed in Texas state courts. …

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RAND Institute for Civil Justice Report on the Abuse of Medical Diagnostic Practices in Mass Tort Litigation: Lessons Learned from the "Phantom" Silica Epidemic That May Deter Litigation Screening Abuse
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