PORT GIBSON and LAUREL, Miss. (Legal Newsline) - Last decade's flood of mass silicosis suits into Mississippi courts dried up in the heat of scandal, but new silicosis suits are steadily streaming into the same sympathetic courts.
The new suits, like thousands that federal judge Janis Jack reviewed in 2005, depend on little evidence beyond X-ray reports of a well paid expert.
In a dramatic turn of events, the expert behind the new suits once joined Jack in ripping the experts behind the old suits.
Pulmonologist Steven Haber of Houston, who now testifies at $450 an hour for depositions and $5,000 a day for trials, once echoed Jack's opinion that doctors manufactured reports for the lawyers who paid them.
Those doctors lost reputations and licenses, and avoided prosecution by invoking Fifth Amendment privilege against self incrimination.
Haber has found success employed as an expert for attorneys Allen Smith of Ridgeland, and Timothy Porter, Patrick Malouf and John Givens of Jackson, who run a constant cycle of trials around the state.
At a wrongful death trial in September in Port Gibson (Claiborne County), defense attorney Walter Johnson of Watkins & Eager in Jackson confronted Haber with an affidavit he had produced for purposes of the WR Grace bankruptcy. In it, Haber was critical of B-readers, or readers of X-rays.
Haber testified that he never met the deceased claimant Lawrence Armstrong and that the only information he had reviewed - medical records and a co-worker's statement - had come from the plaintiff's lawyer.
Johnson: "You described these doctors, that their practices are not only questionable but are almost criminal, correct?"
Haber: "I don't know about that but there were methodological issues with certain physicians that I discussed."
Johnson read from Haber's affidavit: "Knowing the X-rays are from a plaintiff's lawyer could also introduce bias."
Johnson: "In this particular case, where did you get this X-ray from?"
Haber: "They were sent by the plaintiff's lawyer."
Johnson asked if he looked at social security records to see where Armstrong worked, and Haber said no.
Johnson: "It's really irrelevant if any of that stuff is verified or corroborated, is it?"
Haber: "In this case it was not necessary."
Johnson asked if he had any information about Armstrong's proximity to silica.
Haber: "He worked around it and I had history that he was, so that would be proximity."
Johnson: "Was he 10 feet, 20 feet, 200 feet, 200 yards? Do you have any information to tell you that?"
Haber: "I don't remember that."
Johnson: "You don't know duration, proximity or frequency of exposure to silica or any other dust on any yard that he worked on. Is that true or false?"
Haber: "I don't know specifically."
On Sept. 11, jurors ruled for Johnson's client, American Optical - a company that made dust masks prior to 1990 - by a vote of 12-0, having heard nothing specific from anyone about the proximity, frequency or duration of Armstrong's exposure.
Jurors also heard that Armstrong's medical records showed he smoked crack cocaine twice a week.
Circuit Judge Lamar Pickard originally excluded evidence about the crack, but near the end of trial Johnson persuaded him that jurors needed to hear it.
Jurors also learned that Armstrong collected proceeds from an asbestos settlement and received Social Security disability payments for asbestosis.
Pickard entered judgment on the unanimous verdict on Sept. 16, but on Sept. 30, Porter moved for judgment notwithstanding the verdict or a new trial. Pickard has not yet ruled.
In a phone interview Wednesday, Haber said his report to the WR Grace bankruptcy critical of B-reading was aimed at the methodologies of a small number of specific radiologists, not the practice of B-reading.
He said he was critical of B-readers with "a reading rate beyond comprehension."
Haber said he also does work for defense. He said he is sought out by both sides because "they know I will give them fair" readings.
"I call them as I see them," he said.
Wherever Smith and the Porter firm files suit, a legacy of mass lung litigation complicates the selection of a jury. Defendants routinely ask prospective jurors if they or their families have litigated asbestos or silica claims, but they don't always get straight answers.
In 2008, Pickard declared a mistrial on the third day of a trial after defendants discovered prior lung claims of two jurors.
Pickard now allows defendants to see the last four digits of the Social Security number for everyone in a jury pool, with 24 hours to search their data bases for matches.
For a recent trial in his court, defendants found 23 matches in the pool.
In Jones County, where 10 of 45 citizens in a jury pool four years ago concealed prior involvement, Circuit Judge Billy Joe Landrum is still unconvinced that defendants deserve to see the last four digits of those in the pool.
Clark Sand Company asked for that protection in March, reminding Landrum that he once handled a suit with 2,100 plaintiffs and another with 560.
"Thousands of Jones County residents have been screened for and/or filed silica and asbestos claims, many of which have been multi plaintiff mass cases," Christine Crockett White, of Forman Perry in Jackson, wrote for Clark Sand.
"These overwhelming numbers highlight the community's connection to silica litigation and demonstrate that a juror questionnaire is necessary to help ensure that Clark and the other defendants are afforded their constitutional right to a fair and impartial jury," she wrote.
At trial before Landrum in 2009, eight potential jurors revealed that their families had filed an asbestos suit or were receiving settlement checks, White wrote.
"Defendants were given the lunch hour to use certain proprietary Forman Perry data bases and search tools to determine any other possible connections between the venire and asbestos claimants.
"Interestingly, upon input of this critical information into the Forman Perry system, it was revealed that in fact twenty, as opposed to the eight identified during voir dire, of the eighteen jurors' family members had an asbestos related suit."
Other defendants joined the motion for four digit disclosure, which Landrum denied.
At voir dire two days later, lawyer Gene Harlow of Laurel asked prospective jurors about asbestos on behalf of former sand supplier Dependable Abrasives.
Three prospects described experiences with it, and Harlow said, "Anybody else?"
A woman said her father-in-law got some compensation from the Masonite settlement.
Harlow: "Was he found to have asbestosis?"
Prospective juror: "I don't recall them actually using that term."
Harlow: "Anyone else?"
The next reaction came from the judge.
"Gene, hold on just a minute," Landrum said. "Just hold on a minute. There's no way we're going to ever be able to, or a possibility we'll be able to use those jurors over there. I mean we're going to sit twelve people. We're not going to need it so let's just discontinue those people over there."
Although a transcript of the proceedings doesn't indicate whether Landrum directed it to one person or the whole room, he said, "You don't have to answer on that."
"Let the record reflect that the court has taken, it looks like at least 60, 70 people here, since we're just not going to need that many jurors," he said.
Harlow said to those who remained, "I assume from what I have heard so far that no one here has a relative or friend that has been diagnosed with silicosis.
"Or did we forget to ask that question? Let me make sure. Is there anyone here that has a friend or relative that has been diagnosed with silicosis?"
No one said a word.
As it turned out, any biases the jurors brought into court didn't hurt the defense. In April, 11 of them ruled against plaintiff Richard Pierce.
Landrum has ordered a new trial.