In recent weeks, a plaintiff's welding rod expert was attacked on cross examination, leading to a defense verdict, and a $10.1 billion verdict against Philip Morris was overturned in Illinois.  Clients of Bates & Carey LLP can finally ask "Is the tide turning in mass tort suits?"

Welding Rods

On November 8, 2005, Chicago neurologist, Paul Nausieda, M.D., took the stand as an expert witness for the plaintiff in the Boren welding rod trial in Madison County, Illinois.  Nausieda had conducted mass screenings of Louisiana shipyard workers in 2001.  He testified that there is an increasing number of patients with manganese toxicity (allegedly caused by welding fumes), which causes Parkinson's Disease.  The cross examination of Nausieda focused on contradictions in his testimony, the refusal of some journals to print his research, and his $10,000 fee for appearing on the stand.  At one point, the exchange between witness and examiner became so heated that the judge called a recess to speak to counsel in chambers.

A few weeks later, on December 1, 2005, after only two hours of deliberations, the jury returned a verdict in favor of the defense.  Boren had been seeking approximately $7 million in damages from various defendants involved in the welding industry, including Praxair, Viacom, Union Carbide, The BOC Group, Sandvik Inc, and Lincoln Electric.  This verdict stands in contrast to a 2003 Madison County jury that awarded Larry Elam $1 million for his claim that his Parkinson's disease was caused by welding fumes.

Mass Screenings Attacked

The method of mass screening used by plaintiffs' counsel to recruit clients has recently come under scrutiny in a welding rod case in U.S. District Court in Cleveland involving approximately 1,100 plaintiffs.  In that matter, defense counsel have taken to sending questionnaires to the plaintiffs to find suspicious claims.  Defense counsel believe that 40% of the plaintiffs who have claimed neurological damage due to welding rods were also plaintiffs in unrelated silica or asbestos cases.  Plaintiff's counsel has claimed that it is the silica cases that are suspicious and not the welding rod claims. 

While it remains to be seen whether the welding claims are dubious, 2005 saw at least one court lean in that direction with regard to silica claims.  In the multi-district litigation, In Re: Silica Products Liability Litigation, pending in the Southern District of Texas, the mass screening process came under fire when one doctor came forward and stated that his cursory review of thousands of x-rays was never intended to serve as a clinical diagnosis of silicosis, as had been argued by plaintiff's counsel.   

This dispute eventually led to an Order on June 30, 2005, in which the court found that there was "simply no rational medical explanation for the number of alleged  diagnosis of silicosis in this MDL."  In remanding claims to state court, the court explained that, of the 10,000 alleged claimants in the suit, 99% had been diagnosed by the same nine doctors, and many of the doctors had instructed clerks to take patient histories, and even fill out diagnosis sheets on blank forms to be filled in later with the patients' names.  The court blasted the plaintiffs for submitting diagnoses from one doctor who has allegedly analyzed 1,239 patients in 72 hours.

The trend in questioning the methods of mass screenings continued on October 24, 2005, in a federal bankruptcy case in Delaware involving asbestos claims against WR Grace.  In that matter, the Court allowed defense counsel to question 118,000 claimants about their knowledge of the ties between their lawyers and the doctors who submitted the diagnoses of asbestosis. 

The government gets involved

The recent trend of defendants attacking the mass screening methods used by plaintiffs has even received the attention of  a federal grand jury in the Southern District of New York.  The grand jury is sending subpoenas to the doctors and screening companies involved in many of the silicosis and asbestosis matters.   Even Congress has begun its own investigation of mass screenings by authorizing subpoenas to be served on at least four doctors.  The investigation of the fraudulent nature of so many of the mass tort suits may also derail Congressional efforts to pass a new asbestos trust fund in the near future.

$10.1 billion verdict overturned 

In the most recent example of defense victories against mass tort claims, on December 15, 2005, the Illinois Supreme Court overturned a trial court's $10.1 billion verdict in a class action that accused Philip Morris of tricking smokers into believing light cigarettes are less harmful than regular ones. 

The Court found that the Federal Trade Commission had specifically authorized advertising for "light" cigarettes, and therefore it was improper to find liability against the defendant based upon this marketing.   The case arose from a class of 1,140,000 plaintiffs that had been certified in Madison County, Illinois.  After trial in 2003, the Court ruled in  favor of the class and calculated their damages at $7,100,500,000, awarding more than $6,000 per plaintiff.  The court added $3 billion in punitive damages to be awarded to the State of Illinois, and had also directed a quarter of the award--$1,775,125,000--to class counsel.

Conclusion 

Even as defendants are finding their way to greater success in mass tort claims, it is undeniable that insurers with a duty to defend are not escaping millions of dollars in costs that these cases can generate each month.  Therefore, while one eye of the insurance industry monitors the attacks on mass screenings in order to limit the insured's liability, the other eye must carefully monitor the reasonableness of defense costs, how they are being allocated, and the numerous other issues that will follow the newly developing defense tactics addressed above.  For questions on coverage issues involving mass tort claims, please contact Bates & Carey through Afleischer@BatesCarey.com.