Only 1 percent of plaintiffs offer evidence in Texas silica MDL

John O'Brien Jul. 20, 2010, 7:00am


HOUSTON (Legal Newsline) - Only 54 plaintiffs out of more than 5,000 in a silicosis multidistrict litigation court responded to a request for information that would have satisfied medical requirements and allowed their lawsuits to proceed.

Attorneys for U.S. Silica Company recently told Harris County Court Judge Joseph Halbach that legislation changing the rules of silicosis lawsuits is working, while plaintiffs attorneys feel amendments should be made. Halbach is tasked with preparing a report on the effectiveness of rules changes made by the Texas Legislature in 2005.

Halbach oversees the MDL court that houses silica claims and asked for opinions from both sides.

The Legislature felt the reform would bring an efficient system for actually injured plaintiffs while "preventing scarce judicial and litigant resources from being misdirected by the claims of individuals who have been exposed to... silica but have no functional or physical impairment... from silica-related disease."

It aimed to do so by requiring claimants to serve detailed expert reports, consolidating the cases in an MDL court and requiring claimants to show that minimum level of impairment.

Steven Russell, an attorney for U.S. Silica from Russell & Wright in Dallas, said the results have been positive. Halbach had asked plaintiffs attorneys in April for detailed information on their clients.

"Roughly 99 percent of the exposed persons in this MDL did not serve medical reports," Russell wrote, estimating that there are between 5,122-5,831 individuals with claims in the MDL.

"(O)nly 54 exposed persons served medical reports in attempts to comply."

And of those 54, only 21 plaintiffs met the medical requirements.

Russell wrote that there are several reasons that could possibly explain the lack of replies. He says many plaintiffs may have filed claims based solely on a screening X-ray and were never examined by a physician and the opinions of some physicians may have been determined unreliable in a previous case.

Also, some claimants were diagnosed with a type of lung disease caused by both asbestos and silica and had already filed asbestos claims, Russell says.

"(V)arious law firms representing plaintiffs in this MDL proferred other reasons for failure to serve Section 90.004 medical reports. A recurring theme among those various submissions is a financial decision not to spend any more money pursuing claims given the expected return on that 'investment.'"

Russell included quotes from four law firms explaining their decisions not to proceed with cases.

The O'Quinn Law Firm of Houston wrote, "Settlement with a number of defendants render pursuing cases against remaining defendants impractical based on cost to prosecute and anticipated recovery."

Heard Robins Cloud & Black of Houston wrote, "The expenses associated with a new medical examination, the preparation of the verified fact sheets and further discovery exceeds the amount of potential or likely settlements with the defendants remaining in the case."

Provost Umphrey of Beaumont wrote, "(M)any defendants initially involved in these cases have settled and the cost of pursuing litigation against the remaining defendants is not practical given the settlement history of those defendants and a likely verdict amount."

Lastly, Bruegger & McCullough of Dallas wrote, "Expense of obtaining and filing Ch. 90 report likely greater than remaining claim's value."

Russell says that part of the reason it is not financially sound for plaintiffs firms to continue with those cases is because of the rule that requires each plaintiff to pursue his or her case individually instead of being grouped with others.

The 2005 law created the same process for asbestos claims. Judge Mark Davidson, like Halbach, must submit his report to Gov. Rick Perry, Lt. Gov. David Dewhurst and House Speaker Joe Straus by Sept. 1.

Included in Halbach's report, the Heard firm feels, should be a suggestion that allows for the "orderly dismissal of cases while protecting the substantive rights of claimants whose cases were filed prior to the 2003 law change."

Current rules prevent the court from dismissing any cases for not meeting medical criteria and reporting requirements. Instead, those cases have been put in a so-called "parking lot."

The cutoff for claims held to the new standard regarding third parties responsible for alleged exposure is July 1, 2003, and the cutoff for claims held to the new standard regarding proportionate responsibility and joint and several liability is Sept. 1, 2003.

Black says he and defense attorneys have been attempting to come up with a procedure to dismiss cases while allowing pre-cutoff claimants to keep those rights.

"I propose that the court advise the legislature to amend section 90.008 to allow a plaintiff to voluntarily dismiss his or her case such that if a voluntarily dismissed plaintiff later becomes compliant under Chapter 90 and re-files his (or her) case, the substantive law in effect as to do the date of the original filing would govern that plaintiff's claim," wrote John Black, of the Heard firm.

Black also wrote that some medical requirements should be changed.

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