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Silicosis Slowdown

By Megan Kinneyn | Jul. 2, 2007

Law Office Management

Jul. 2, 2007

Silicosis Slowdown

An adverse Texas court ruling has put a drag on plaintiffs suits in California that allege health damage from silica dust. By Eamon Kircher-Allen

By Eamon Kircher-Allen
      Edited by Jeanette Borzo
      California plaintiffs contend with a legacy of out-of-state misfilings.
      A few years ago, california looked to be the next big venue for silicosis litigation. Mass plaintiff lawsuits for people with the potentially lethal lung ailment, caused by inhaling silica dust, had increased dramatically in Texas and Mississippi. Plaintiffs attorneys?many of them from Texas?were saddling up to ride into California.
      But in 2005 a U.S. district judge in Texas, in a scathingly critical order, all but discredited the techniques that had been used to diagnose more than 10,000 plaintiffs. (The diagnoses had been obtained through mass X-ray screenings, and in most cases plaintiffs never met with the doctors who determined they had silicosis.) Around the same time, California courts dismissed a number of silicosis suits brought by Texas lawyers because they had been filed incorrectly as consolidated, multi-plaintiff complaints. Those suits had to be individually refiled for each plaintiff?and the Texas lawyers abandoned the cases.
      Lawyers in California had been filing silicosis suits locally since at least 2000. But according to Cheryl L. White, managing attorney at Brent Coon & Associates in San Francisco, which represents 66 of 68 Bay Area plaintiffs, her firm's cases have been stymied by adverse rulings in Alameda County Superior Court. In April 2006, White says, Judge Robert Freedman adopted one-way rules requiring plaintiffs to respond to defendants' discovery requests without a corresponding duty for the defense. Then in August 2006 Judge Freedman stayed the statutory requirement for defendants to answer the silicosis complaints. White says those rulings effectively put the cases in limbo.
      Judge Freedman lifted the stay in January 2007, ruling that the complaints had to be answered within 30 days. He then ordered hearings in a pilot group of ten cases, with reciprocal discovery rules for plaintiffs and defendants; three are set for trial in 2008.
      Brent Coon helped clean up some of the earlier Texas litigation, White says, accepting cases from McCurdy & McCurdy of Arlington, Texas, which had filed claims on behalf of nearly 1,000 plaintiffs, and from Oakland's Gwilliam, Ivary, Chiosso, Cavalli & Brewer, which had worked with Texas lawyers on other suits.
      White, who has eleven years of experience in asbestos litigation, says she took on only silicosis cases supported by strong evidence. But she admits that dealing with baggage from the failed Texas suits is exasperating. The multi-plaintiff filing gaffe, she says, "made it very problematic for people in California who do have [legitimate] claims."
      White's clients also are suffering from discovery difficulties in other states, she complains. "There has been a concerted effort to lump my clients into a group of plaintiffs in other jurisdictions who are purportedly unimpaired," she claims. "The defense lawyers are flying in attorneys from other states to speak about the evils of silicosis plaintiffs everywhere."
      White says that Judge Freedman gave no reason for the orders that kept her cases on hold. But defense attorneys claim the holdup now is that plaintiffs have failed to specify which of a manufacturer's products are responsible for the alleged harm to a complainant. In single-plaintiff cases, they say, multiple defendants have been named, including manufacturers of sandblasting equipment and of respiratory devices.
      Gary J. Nevolo, a San Francisco lawyer representing defendants in 65 of the Bay Area cases, says that plaintiff depositions and written discovery are under way, and that discovery will extend to assessing medical conditions. All the cases, including the ten pilot cases, were identified through medical screening for silicosis, Nevolo says. He adds, "We don't know if the [diagnosing] doctors had personal interaction with the plaintiffs. And none of the screeners was a [plaintiff's] regular physician. So that raises the index of suspicion."
      White maintains that her clients are indeed sick. But the shadow of doubt from the Texas debacle may prove too much for California plaintiffs to overcome. The ten pilot cases moving slowly through the Alameda County courts should eventually signal whether silicosis suits are a boon or a bust for the plaintiffs bar.

Megan Kinneyn

Daily Journal Staff Writer

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