THE SILICOSIS STORY: 

MASS TORT SCREENING AND 

THE PUBLIC HEALTH 

HEARINGS 

BEFORE THE 

SUBCOMMITTEE ON OVERSIGHT AND 

INVESTIGATIONS 

OF THE 

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED NINTH CONGRESS 

SECOND SESSION 

MARCH 8, MARCH 31, JUNE 6, AND JULY 26, 2006 

Serial No. 109-124 

Printed for the use of the Committee on Energy and Commerce 

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

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WASHINGTON : 2006 

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30-631PDF 
COMMITTEE ON ENERGY AND COMMERCE 

JOE BARTON, Texas, Chairman 

RALPH M. HALL, Texas 

MICHAEL BILIRAKIS, Florida 

 Vice Chairman 

FRED UPTON, Michigan 

CLIFF STEARNS, Florida 

PAUL E. GILLMOR, Ohio 

NATHAN DEAL, Georgia 

ED WHITFIELD, Kentucky 

CHARLIE NORWOOD, Georgia 

BARBARA CUBIN, Wyoming 

JOHN SHIMKUS, Illinois 

HEATHER WILSON, New Mexico 

JOHN B. SHADEGG, Arizona 

CHARLES W. “CHIP” PICKERING, Mississippi 

 Vice Chairman

VITO FOSSELLA, New York 

ROY BLUNT, Missouri

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

CHARLES F. BASS, New Hampshire 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE FERGUSON, New Jersey 

MIKE ROGERS, Michigan 

C.L. “BUTCH” OTTER, Idaho 

SUE MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

JOHN D. DINGELL, Michigan 

 Ranking Member 

HENRY A. WAXMAN, California 

EDWARD J. MARKEY, Massachusetts 

RICK BOUCHER, Virginia 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

SHERROD BROWN, Ohio 

BART GORDON, Tennessee 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

BART STUPAK, Michigan 

ELIOT L. ENGEL, New York 

ALBERT R. WYNN, Maryland 

GENE GREEN, Texas 

TED STRICKLAND, Ohio 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MIKE DOYLE, Pennsylvania 

TOM ALLEN, Maine 

JIM DAVIS, Florida 

JAN SCHAKOWSKY, Illinois 

HILDA L. SOLIS, California 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

BUD ALBRIGHT, Staff Director 

DAVID CAVICKE, General Counsel

REID P. F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 

ED WHITFIELD, Kentucky, Chairman 

CLIFF STEARNS, Florida 

CHARLES W. “CHIP” PICKERING, Mississippi 

CHARLES F. BASS, New Hampshire 

GREG WALDEN, Oregon 

MIKE FERGUSON, New Jersey 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

JOE BARTON, Texas 

 (EX OFFICIO)

BART STUPAK, Michigan 

 Ranking Member 

DIANA DEGETTE, Colorado 

JAN SCHAKOWSKY, Illinois 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

HENRY A. WAXMAN, California 

JOHN D. DINGELL, Michigan 

 (EX OFFICIO)

(II)
CONTENTS 

Page 

Hearings held: 

March 8, 2006..................................................................................................................... 1 

March 31, 2006.................................................................................................................... 158 

June 6, 2006......................................................................................................................... 209 

July 26, 2006 ....................................................................................................................... 363 

Testimony of: 

Sherman, Edward F., The Moise F. Steeg, Jr., Professor of Law, Tulane Law School ... 34 

Welch, Laura, M.D., Medical Director, Center to Protect Workers Rights ....................... 64 

Goff, Robert W., Director, Division of Radiological Health, Mississippi Department 

of Health......................................................................................................................... 218 

Morgan, Mallan G., M.D., Executive Director, Mississippi State Board of Medical 

Licensure ........................................................................................................................ 222 

Ratliff, Richard A., P.E., L.M.P., Radiation Control Officer, Division of Regulatory 

Services, Texas Department of State Health Services................................................... 231 

Patrick, Donald, M.D., J.D., Executive Director, Texas Medical Board ........................... 235 

Hilbun, Glyn, M.D. ............................................................................................................. 258 

Altmeyer, Robert, M.D. ...................................................................................................... 262 

Davis, Billy, Esq., Campbell, Cherry, Harrison, Davis & Dove ........................................ 379 

Manji, Abel K., Esq., The O’Quinn Law Firm................................................................... 385 

Gibson, Joseph V., Esq., Law Office of Joseph V. Gibson, P.C. ....................................... 389 

Luckey, Alwyn H., Esq., Luckey & Mullins PLLC ........................................................... 394 

Laminack, Richard N., Esq., Laminack, Pirtle and Martines ............................................. 404 

Additional material submitted for the record: 

Martindale, George, M.D., response for the record............................................................ 146 

Mason, Heath, Co-owner and Operator, N&M Inc., response for the record .................... 151 

(III) 

(1) 

THE SILICOSIS STORY: MASS TORT 

SCREENING AND THE PUBLIC HEALTH 

WEDNESDAY, MARCH 8, 2006 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON ENERGY AND COMMERCE, 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 2:05 p.m., in Room 

2123 of the Rayburn House Office Building, Hon. Ed Whitfield 

(Chairman) presiding. 

 Members present: Representatives Stearns, Bass, Walden, Burgess, 

Blackburn, Barton (ex officio), Stupak, DeGette, Schakowsky, Inslee, 

and Whitfield. 

 Staff present: Tony Cooke, Counsel; Mark Paoletta, Chief Counsel 

for Oversight and Investigations; Clayton Mattheson, Research Analyst; 

Jonathan Pettibon, Legislative Clerk; David Nelson, Minority 

Investigator and Economist; Jonathan Brater, Minority Staff Assistant; 

and Eric Gerhlach, Minority Staff Assistant. 

MR. WHITFIELD. Okay, I want to call this hearing to order this 

afternoon. This is the Subcommittee on Oversight and Investigations for 

the Energy and Commerce Committee. And the subject of today’s 

hearing is “The Silicosis Story: Mass Tort Screening and the Public 

Health.” 

 Now today we are going to have three panels of witnesses. On the 

first panel there will be two witnesses and I would ask them to come 

forward at this time. First, we have Professor Edward Sherman who is a 

Professor of Law at Tulane University Law School. So we would ask 

him to take a seat. And then we have Dr. Laura Welch who is the 

Medical Director of the Center to Protect Workers Rights from Silver 

Spring, Maryland. I want to welcome you all to this first panel. We 

genuinely appreciate your taking the time to be with us today on what we 

consider to be a particularly important hearing and we look forward to 

your testimony. 

 Of course at this time the members of the subcommittee will be 

giving their opening statements and I will start off and simply say that 

we consider this to be a particularly important hearing because some of 

the events that happened in the Federal Court in Texas with those 

silicosis claims many of us consider to be really a mockery of our justice 

system. 
2

 This is going to be the first of several hearings on important public 

health issues raised by the practice of mass tort screening. We are 

examining the manner in which doctors, plaintiff lawyers, and medical 

screening companies identify large numbers of claimants for personal 

injury lawsuits. This matter first came to our attention through a June 

2005 Federal Court opinion from the Southern District of Texas in a 

matter captioned “In re: Silica Product Liability Litigation.” U.S. 

District Judge Janis Graham Jack, a former nurse appointed by President 

Clinton in 1994 presided over a multi-district case involving some 

10,000 claimed diagnoses of silicosis, a largely incurable and often fatal 

pulmonary disease. 

 In managing this enormous personal injury matter, Judge Jack 

documented the fraudulent means by which plaintiff lawyers, doctors, 

and screening companies manufactured claims. She then made the 

determination that these diagnoses were about litigation rather than 

healthcare, and were driven neither by health nor justice, but were 

manufactured for money. 

 This is particularly troubling because it undermines our judicial 

system, but it also clearly shows the lack of attention or concern about 

the actual health and treatment of patients. This subcommittee, with the 

cooperation of our Democratic colleagues and staff and with the firm 

support of the Chairman of our full committee, Mr. Joe Barton, in an 

effort to understand the larger public health consequences of this alleged 

conduct, has sought to examine the relationships, the standards, and the 

practices that govern the manner in which the 10,000 plaintiffs of “In re: 

Silica” were identified, diagnosed, and joined in this massive tort 

lawsuit. 

 To that end, we have so far written to doctors, screening companies, 

and very recently law firms, State regulatory agencies, and State medical 

boards. While most parties have been cooperating with the 

subcommittee’s inquiry, four doctors have required subpoenas for their 

documents and several individuals here today have also required a 

subpoena to secure their appearance. And I would like to emphasize that 

the subcommittee will use all means at its disposal in its pursuit of the 

information and records required for this investigation. The “In re: 

Silica” matter provides a case study through which we are examining 

public health issues and mass tort screening. To be sure, screening is an 

important tool of public health. It provides broad access to care and vital 

monitoring and surveillance for many occupational and environmental 

health concerns. However, the type of screening used in this class action 

lawsuit simply generated claimants to obtain settlements for the benefit 

of certain plaintiff law firms. Dollars were the priority; patient health 

and wellbeing were afterthoughts. 
3

 Now I would like to say to appreciate the practices, the standards, 

and the ethics of this process, we want to briefly look at some examples 

of one of the treating physicians, Dr. Ray Harron, for example. Now I 

would point out to you that the presence of both diseases, silicosis and 

asbestosis, in one individual is extremely rare. And Dr. Harron, for 

example, performed an examination of the X-rays of one patient in 1996 

for the purpose of asbestos litigation and then later in 2002 again 

evaluated the same patient for the purposes of silicosis litigation. Now 

these two documents show the results of these examinations. The 

highlighted part of the form shows the lung damage observed by Dr. 

Harron. On the right, we can see that when he looked at a chest X-ray in 

the context of asbestos litigation, he found S and T type damage in the 

lungs which are classic for asbestos exposure. A few years later when 

Dr. Harron again looked at a chest X-ray of this same person, now in the 

context of silicosis litigation, he found P type damage in the lung classic 

of silicosis. So what happened to the S and T type damage caused by the 

asbestos? Dr. Harron, was this man’s asbestos injury cured? Why 

wasn’t it again seen in the second X-ray review? 

 And I would also point out that Judge Jack, in her decision, pointed 

out that when Dr. Harron first examined 1,807 plaintiff X-rays for 

asbestos litigation, he found them all to be consistent only with asbestos 

and not with silicosis. But upon reexamining those same 1,807 MDL 

plaintiff X-rays for silicosis litigation, Dr. Harron found evidence of 

silicosis in every case. Now this volume and high percentage of reversal, 

basically 100 percent, simply cannot be exampled as intra-reader 

variability which is often a reason given for a difference of opinion on 

these readings. 

 I would also point out that we will ask some of the same questions 

that I have just raised with Dr. Harron with Dr. Ballard. And here are his 

reports for a woman whom he diagnosed with asbestos in 2000, but later 

with silicosis in 2004 using the same October 1999 X-ray. Ray Harron’s 

son, Dr. Andrew Harron, when he did his diagnosis work, had secretaries 

take his marks on an X-ray form, draft the diagnosing report, stamp his 

signature, and then send out the report. Dr. Andrew Harron says he 

never saw, never read any of his more than 400 silicosis reports. And we 

would ask Dr. Harron, is this how he continues to practice in Wisconsin 

today? 

 There are further stunning examples of apparent disregard for 

reasonable medical standards, practices, and ethics such as Dr. 

Martindale’s purported diagnosis of 3,617 people with silicosis in 48 

days, an average of 75 reports per day. Yet we cannot lose sight of the 

fact that these numbers represent real people learning that they have a 

largely incurable and sometimes fatal disease, a fact I hear was missed 
4

by the doctors, lawyers, and screening companies here in their rush to 

bill what they call an inventory of clients. 

 This investigation has found little to date to demonstrate real regard 

or acceptance of responsibility in the mass tort screening process for the 

manner in which patients learn about the results of their screening, the 

way the significance and reliability of the tests performed are presented, 

or the way follow up and treatment options are discussed and pursued. 

The medical professions involved here have so far all disavowed any 

legal or ethical duty to the care of the patients that they have diagnosed. 

At the end of the day, I suppose the ultimate question we are 

presented with here is are the diagnoses generated by this process real or 

are they simply to facilitate litigation? On that point, while we have 

found no direct information, although Justice Jack made some very 

strong conclusions, we will look at some circumstantial data. According 

to the work of Dr. Laura Welch, who joins us here today, in a sample of 

9,605 metal workers with 20 years work experience, an ILO score of 1/0 

was found, and that is basically very little found, for approximately 12 

percent of the group. In the world of mass torts, this would be the 

positive diagnosis, the potential claimants. So 12 percent of the 9,605 

would be found positive. Today, I would like to compare those findings 

with those of a for profit screening venture N&M, the company of our 

witness, Heath Mason. While we have not yet found hard numbers for 

the rate at which this company’s overall generated positive diagnoses, I 

will ask Mr. Mason whether the screening N&M gave on February 15, 

2002, was typical for his business. On that day in Columbus, 

Mississippi, they found all 111 people screened to be positive for 

silicosis, and yet the average rate of silicosis found in Mississippi is 

around eight. So they looked at 111 people, they found 111 people, a 

rate of 100 percent, which is very good for Mr. Mason, considering that 

we understand two of his larger clients, the law firms of Campbell, 

Cherry, Harrison, Davis, and Dove and O’Quinn, Lamonick and Purdle 

typically paid him only for positive diagnosis, as much as $750 for each 

person tagged with a diagnosis of silicosis. Whether the success rate of 

February 15 was the exception or the norm for N&M will be a telling 

fact. 

 I want to thank Chairman Barton for his continued support of this 

important investigation, as well as my colleagues from across the aisle 

who have backed our efforts to gather the information and records 

needed to understand this issue and we look forward to the testimony of 

our witnesses. 

 [The prepared statement of Hon. Ed Whitfield follows:] 
5

PREPARED STATEMENT OF THE HON. ED WHITFIELD, CHAIRMAN, SUBCOMMITTEE ON 

OVERSIGHT AND INVESTIGATIONS

This afternoon we convene what I believe will be just the first of several hearings on 

certain important public health issues raised by the practice of mass tort screening. We 

are examining the manner in which doctors, lawyers, and medical screening companies 

seek to identify large numbers of potential claimants for personal injury lawsuits. We 

have been troubled, however, by the processes we have reviewed to date. We are 

concerned by the apparent lack of attention to the actual health and treatment of patients 

as well as the financial incentives geared to rewarding positive findings of disease. 

Ultimately, I am most concerned by the suggestion that, with respect to mass torts, there 

exists some alternate field of medicine, or pseudo-medicine, containing its own standards, 

practices, and ethics. 

This matter first came to our attention though a June 2005 federal court opinion 

from the Southern District of Texas. In a matter captioned In Re: Silica Product Liability 

Litigation, U.S. District Judge Janis Graham Jack, a former nurse appointed by President 

Clinton in 1994, presided over a multi district case involving some 10,000 claimed 

diagnoses of silicosis – a largely incurable and often fatal pulmonary disease. In 

managing this enormous personal injury matter, Judge Jack made the remarkable 

determination that, “these diagnoses were about litigation rather than health care” and 

“were driven by neither health nor justice [but] were manufactured for money.” This 

stunning conclusion was backed up in a dense 249 page opinion in which Judge Jack laid 

out her support for this finding in compelling detail. 

This Subcommittee, with the cooperation of our Democratic colleagues and staff, 

and with the firm support of the Chairman of our full Committee, Joe Barton, in an effort 

to understand the larger public health consequences of this alleged conduct, has sought to 

examine the relationships, standards, and practices that governed the manner in which the 

10,000 plaintiffs in In Re: Silica were identified, diagnosed and joined in this massive tort 

lawsuit. 

To that end, we have so far written to doctors, screening companies, and, very 

recently, to law firms, state regulatory agencies, and state medical boards. While most 

parties have been cooperating with the Subcommittee’s inquiry, 4 doctors have required 

subpoenas for their documents and several individuals here today have also required a 

subpoena to secure their appearance. For the avoidance of doubt, this Subcommittee will 

use all reasonable means at its disposal in its pursuit of the information and records 

required for this investigation. 

The In Re: Silica matter provides a case study through which we are examining 

public health issues in mass tort screening. To be sure, screening is an important tool of 

public health; it provides broad access to care and vital monitoring and surveillance for 

many occupational and environmental health concerns. Yet the type of screening at issue 

here appears to be a mechanism purely to generate grist for the mill of litigation. And 

what is more, the business practice of screening, seen here, seems to present almost 

insurmountable conflicts between profit and patient health. 

To appreciate the practices, standards, and ethics of this process, it is instructive to 

look at examples from some of the doctors joining us today. Let’s consider first the 

treatment of several patients by Dr. Ray Harron of Bridgeport, West Virginia. Dr. Harron 

performed an examination of the X-rays of one patient in 1996 for the purpose of 

asbestos litigation and then later, in 2002, again evaluated this same patient for the 

purpose of the silicosis litigation. [1] These two documents show the results of these 

examinations. The circled part of the form shows the lung damage observed by Dr. 

Harron. On the right we can see that when he looked at a chest X-ray in the context of 

asbestos litigation, he found “S and T” - type damage in the lungs - classic for asbestos 

exposure. A few years later when Dr. Harron again looked at a chest X-ray of this 

gentleman, now in the context of silicosis litigation, he found “P” – type damage in the 
6

lung – classic of silicosis. What happened to “S and T” – type damage caused by the 

asbestos? Dr. Harron, was this man’s asbestos injury cured? Why wasn’t it again seen in 

the second X-ray review? 

Let’s look at another patient. Dr. Harron evaluated the case of a 71 year-old man in 

2002 for asbestos based on a July 27, 2001 X-ray and concluded he had asbestosis, as the 

report reads. [2] When silicosis was the name of the game, again referring to the same 

July 27, 2001 X-ray, Dr. Harron determined that this 71 year-old man had silicosis. Are 

these anomalies? What about this 60 year-old man found to have first asbestos and then 

silicosis using the same July 27, 2001 X-ray? [3] Another 53 year-old man? [4] And 

another? [5] And another? [6] Dr. Harron, what are the medical standards and practices 

that account for such apparently miraculous cures? I hope to find out today. 

We will ask the same question of Dr. Ballard – here are his reports for a woman 

whom he diagnosed with asbestosis in 2000 but later with silicosis in 2004, using the 

same October 1999 X-ray. [7] 

Ray Harron’s son, Dr. Andrew Harron, when he did his diagnosis work, had 

secretaries take his marks on an X-ray form, draft the diagnosing report, stamp his 

signature, and then send out the report. Dr. Andrew Harron says he never saw or read 

any of his more than 400 silicosis reports. I will ask Dr. Harron if this is how he 

continues to practice in Kenosha, Wisconsin. 

There are further stunning examples of apparent disregard for reasonable medical 

standards, practices, and ethics such as Dr. Martindale’s purported diagnosis of 3,617 

people with silicosis in 48 days – an average of 75 reports per day. Yet we cannot lose 

sight of the fact that these numbers represent real people learning they have a largely 

incurable and sometimes fatal disease – a fact I fear was missed by the doctors, lawyers, 

and screening companies, here, in their rush to build what they call an “inventory” of 

clients. 

This investigation has found little, to date, to demonstrate real regard, or acceptance 

of responsibility, in the mass tort screening process for the manner in which patients learn 

about the results of their screening, the way the significance and reliability of the tests 

performed are presented, or the way follow-up and treatment options are discussed and 

pursued. The medical professionals involved here have, so far, all disavowed any legal 

or ethical duty to the care of the patients they have diagnosed. 

At the end of the day, the ultimate question we are presented with is: Are the 

diagnoses generated by this process for real? On that point, while we have found no 

direct information, we might look at some circumstantial data. According to the work of 

Dr. Laura Welch, who joins us here today [8] in a sample of 9,605 Sheet Metal Workers 

with 20 years work experience, an ILO score of 1/0 was found for approximately 12% of 

the group. In the world of mass torts, this would be the positive diagnoses – the potential 

claimants. Today, I would like to compare those findings with those of a “for profit” 

screening venture, N&M, the company of our witness Heath Mason. While we have not 

yet found hard numbers for the rate at which this company overall generated positives 

diagnoses, I will ask Mr. Mason whether the screening N&M gave on February 15, 2002 

was typical for his business – on that day in Columbus, Mississippi, they found all 111 

people screened to be positive for silicosis. [9] That’s a rate of 100%, which is very 

good for Mr. Mason considering that, we understand, two of his larger clients, the law 

firms of Campbell, Cherry, Harrison, Davis and Dove and O’Quinn, Laminack and Pirtle, 

typically paid him only for the positive diagnoses – as much as $750 for each person 

tagged with a diagnosis of silicosis. Whether the success rate of February 15 was the 

exception or the norm for N&M will be a telling fact. 

I want to thank Chairman Barton for his continued support of this important 

investigation as well as my colleagues from across the aisle who have backed our efforts 

to gather the information and records needed to understand this issue. I also want to 

welcome today’s witnesses, particularly Professor Edward Sherman from Tulane 
7

University and Dr. Laura Welch from the Center to Protect Workers’ Rights. I look 

forward to your testimony. 
8
9
10
11
12
13
14
15
16

 MR. WHITFIELD. And at this time, I recognize the Ranking Member 

from Michigan, Mr. Stupak. 

 MR. STUPAK. Thank you, Mr. Chairman. I wish to acknowledge 

your fairness in conducting this investigation. I would also support the 

procedural steps you have taken to obtain documents and testimony 

relevant to this inquiry. 

 The witnesses you have assembled on the first panel are likely to 

provide an objective assessment of the situation from a legal and medical 

perspective. My Democratic colleagues and I remain, however, 

unconvinced that this investigation will contribute much to the public 
17

health. As Dr. Welch will tell us, there are clearly better ways to screen 

for occupational diseases than the methods that were apparently 

employed at the direction of certain plaintiff attorneys in the silicosis 

litigation consolidated in the U.S. District Court for the Southern District 

of Texas as described in Judge Jack’s opinion issued last year in the case 

referred to “In re: Silica.” 

 It is truly disturbing that the individuals diagnosed as having silicosis 

were apparently not informed of their condition by the handful of 

physicians participating in the evaluations at the behest of the law firms 

seeking clients for lawsuits. It is also disturbing that there is some 

evidence that evaluations of chest X-rays, known as B reads, may not 

have been conducted up to the professional standards in that inaccurate 

diagnosis may, and I do say may, have led to the filing of some lawsuits 

that lacked merit. 

 Perhaps the single most disturbing event regarding public health 

issues uncovered in this inquiry is that the lawyers, rather than the 

physician, are provided reports of any acute condition such as TB or 

cancer identified in the screening. It is up to a person entirely lacking in 

medical training to convey a serious acute risk to the unfortunate 

individual. The problems, however, can and should be addressed outside 

of Congress. The courts have the power and it has been exercised in this 

case to remedy any misrepresentation made in the courtroom. Defense 

attorneys have the right to question evidence and experts to uncover any 

misrepresentations. There is no need for Congress to impose any 

additional burdens on the tort process that would only serve to 

discourage legitimate screening that uncovers occupational illness or 

deny workers their right to recover damages from companies that are 

responsible for their disease. 

 Finally, Mr. Chairman, I believe that there are many targets of this 

subcommittee’s attention that would have a far more positive impact on 

public health. I have sought repeatedly to have this subcommittee 

examine the problems associated with the heating oil price increases that 

directly threaten the health of my constituents. Many of them must 

literally decide between heat or medicine. We still have an open 

investigation into the failures of the Food and Drug Administration to 

ensure the safety of our Nation’s drug supply, including Accutane, which 

we have had approximately 100 deaths since the last hearing this 

subcommittee held in that issue. 

 Not a week goes by without some report in the press regarding yet 

another botched job by the FDA. Recently, members of the Advisory 

Committee on Drug Safety were told that the FDA has yet to get Pfizer 

to agree to studies that it believes are vital to determine a real risk of 

Celebrex to public health. It is well over a year since the subcommittee 
18

launched an investigation of the approval of the COX-2 pain treatments, 

including how FDA officials approved a label for Vioxx that understated 

the cardiovascular risk of that drug. Apparently higher officials in the 

Center for Drug Evaluation and Research overruled medical officers 

responsible for reviewing Vioxx, yet there has been no hearing on the 

FDA drug safety process that led the prescribing community to 

underestimate the risk associated with Vioxx. 

 Recently, we learned of a public health disaster in the making 

because some FDA bureaucrat operating well outside the public view 

decided to permit the agribusiness conglomerates to increase their profits 

by approving the use of carbon monoxide to make dangerously old and 

improperly stored meat appear fresh and appetizing. You have to 

wonder whether the current administration at FDA even understands that 

its role is to protect the public health, not the profits of companies that 

play Russian roulette with America’s health. 

 We also have not finished our work on the safety issues surrounding 

jockeys and exercise riders that you began so well in the fall. I am 

delighted that the National Institute of Occupational Safety and Health, 

NIOSH, has agreed to our joint request for a comprehensive assessment 

of safety conditions at race tracks around the country. However, there is 

still no legislation to give jockeys and exercise riders some input 

regarding the conditions under which they risk their lives daily. The 

National Labor Relations Board still refuses to extend legal protections 

to jockeys that seek to organize so that jockeys can have some control 

over their exceedingly hazardous working conditions. 

 I have supported you, Mr. Chairman, regarding the exercise of the 

committee’s prerogatives to obtain necessary and truthful information 

every time it has been requested, yet I believe that we were deliberately 

misled by testimony given by the representative of one of the tracks at 

our last hearing and again in written response we received to our 

questions. Of course, we still have not received all the documents that 

were the subject of our subpoena to Matrix Capital Corporation, the 

Gertmanian company that was a source of funds diverted from the 

Jockeys Guild. 

 Mr. Chairman, I look forward to hearing from the witnesses today 

that you have assembled. I applaud the fair manner in which you have 

conducted this inquiry today. I look forward to working with you to 

address some of the more pressing health issues that I have outlined 

above. I will be moving in and out because I will be on the floor today 

on food safety, as we do have that bill that benefits the agribusiness but 

jeopardizes America’s health, and I will be on the floor fighting that and 

Ms. DeGette will be here most of the day to take our functions so I will 
19

be moving in and out, Mr. Chairman, but with that, I thank you for your 

time. 

 [The prepared statement of Hon. Bart Stupak follows:] 

PREPARED STATEMENT OF THE HON. BART STUPAK, A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF MICHIGAN

Mr. Chairman, I join with Mr. Dingell in acknowledging the fairness with which you 

have conducted this investigation, and I also support the procedural steps you have taken 

to obtain documents and testimony relevant to this inquiry. The witnesses you have 

assembled on the first panel are likely to provide an objective assessment of the situation 

from a legal and medical prospective. 

My Democratic colleagues and myself remain unconvinced that this investigation 

will contribute much to the public health. As Dr. Welch will tell us, there are clearly 

better ways to screen for occupational diseases than were the methods apparently 

employed at the direction of certain plaintiff’s attorneys in the silicosis litigation 

consolidated in the US District Court for the Southern District of Texas, as described in 

Judge Jack’s opinion issued last year in the case referred to as: IN RE: SILICA. 

It is truly disturbing that the individuals diagnosed as having silicosis were 

apparently not informed of their condition by the handful of physicians participating in 

the evaluations at the behest of the law firms seeking clients for lawsuits. It is disturbing 

that there is some evidence that evaluations of chest X-rays known as “B reads” may not 

been conducted up to professional standards and that inaccurate diagnoses may, and I do 

say may, have led to the filing of some lawsuits that lacked merit. 

Perhaps the single most disturbing event regarding public health issues uncovered in 

this inquiry is that the lawyers rather than a physician are provided reports of any acute 

condition, such as TB or cancer, identified in the screening. It is then up to a person 

entirely lacking in medical training to convey a serious acute risk to the unfortunate 

individual. 

However, these problems can and should be addressed outside of Congress. The 

Courts have the power (and it has been exercised in this case) to remedy any 

misrepresentation made in the Courtroom. Defense attorneys have the right to question 

evidence and experts to uncover any misrepresentations. 

There is no need for Congress to impose any additional burdens on the tort process 

that would only serve to discourage legitimate screening that uncovers occupational 

illness or deny workers their right to recover damages from companies that are 

responsible for their disease. 

Finally Mr. Chairman, it seems to me that there are many targets of the 

Subcommittee’s attention that would be far more likely make a positive impact on the 

public health. I have sought repeatedly to have this Subcommittee examine the problems 

associated with the heating oil price increases that directly threaten the health of my 

constituents. Many of them must literally decide: heat or medicine. 

We still have an open investigation into the failures of the FDA to assure the safety 

of our nation’s drug supply, including Accutane. Not a week goes by when some expose 

or another is reported in the public press regarding yet another botched job by the FDA. 

Recently, Members of the Advisory Committee on Drug Safety were told that the FDA 

has yet to get Pfizer to agree to studies that it believes are vital to determine the real risk 

of Celebrex to public health. 

It is well over a year since the Subcommittee launched an investigation of the 

approval of the Cox-2 pain treatments including how FDA officials approved a label for 

Vioxx that understated the cardio-vascular risks of that drug. Apparently higher officials 

in CDER overruled medical officers charged with reviewing Vioxx. Yet there has been 
20

no hearing on the FDA drug safety process that led the prescribing community to 

underestimate the risks associated with Vioxx. 

Recently, we learned of a public health disaster in the making because some FDA 

bureaucrat, operating well outside the public view, decided to permit the agribusiness 

conglomerates to increase their profits by approving the use of carbon monoxide to make 

dangerously old and/or improperly stored meat appear fresh and appetizing. You have to 

wonder whether the current administration at FDA even understands that its role is to 

protect the public health not the profits of companies that play Russian roulette with 

Americans’ health. 

We also have not yet finished our work on the safety issues surrounding jockeys and 

exercise riders that you began so well in the fall. I am delighted that NIOSH has agreed 

to our joint request for a comprehensive assessment of safety conditions at racetracks 

around the country. However, there is still no legislation to give jockeys and exercise 

riders some input regarding the conditions under which they risk their lives daily. 

The NLRB still refuses to extend legal protections to jockeys that seek to organize 

so that jockeys can have some control over their working conditions that are exceedingly 

hazardous. 

I have supported you regarding the exercise of the Committee’s prerogatives to 

obtain necessary and truthful information every time it has been requested. Yet I believe 

that we were deliberately misled by testimony given by the representative of one of the 

tracks at our last hearing and again in a written response we received to our written 

questions. Of course, we still have not received all the documents that were the subject 

of our subpoena to Matrix Capital Corp., the Gertmanian company that was the source of 

funds diverted from the Jockey’s Guild. 

Mr. Chairman, I look forward to hearing the witnesses you have assembled for 

today’s hearing. I applaud the fair manner in which you have conducted this inquiry to 

date. 

I also look forward to working with you to address some of the more pressing public 

health issues that I have outlined above. 

 MR. WHITFIELD. Thank you, Mr. Stupak. 

 At this time, I recognize Mr. Bass for his opening statement. 

 MR. BASS. Thank you, Mr. Chairman for holding this hearing today. 

 And I also want to apologize for the fact that I have a 2:30 meeting 

and will try to get back after that. The reason I say so is that it is 

important that we all pay very close attention to what we are about to 

hear today. You can be in love with the mass tort system in this country. 

You can admire and respect billionaire trial lawyers who have collected 

money often at times at the expense of legitimate business activities in 

some cases, but you cannot defend doctors who provide analyses based 

on getting $750 a shot if they give a result that benefits the trial lawyer 

and nothing if they do not. That is not medicine. That is greed. You 

cannot come down on the side of these law firms that intentionally direct 

cases of asbestosis to silicosis because they see the potential for the issue 

being resolved to the benefit of their very clients in the asbestos side 

working its way through the Congress and the Senate and they need a 

new rainmaker for their business. 

 I would also commend to my friends who have any doubts about the 

perversion of the legal process in this case to take a few minutes to listen 
21

to the story that was carried for 20 minutes on National Public Radio the 

other day in which this very issue was explored from beginning to end. 

Now, NPR is not known for being a bastion of conservatism. And the 

information that was provided to the American people by that story was 

absolutely devastating. It is sad that the needs and the rights of 

individuals who have been hurt by occupational accidents or 

occupational issues should be perverted for such total greed and avarice 

on the part of individuals who are not seeking any kind of relief for their 

clients, but relief for themselves and the continuation of a gravy train that 

is providing them with billions of dollars and not helping the system of 

justice in this country. 

 So I want to thank my chairman for bringing this issue to the 

attention of the Congress. And I hope that regardless of where you stand 

on the issue of tort law reform, or the trial bar, or any other issue, that 

you understand that this goes far beyond the issues of justice that are 

contemplated in real policy regarding tort law in America and I will yield 

back. 

 MR. WHITFIELD. Thank you, Mr. Bass. 

 At this time, we will recognize the gentlelady from Colorado, Ms. 

DeGette for her opening statement. 

 MS. DEGETTE. Thank you, Mr. Chairman. 

 I would like to add my thanks for having this important hearing. 

And to say that I am sure that all of us, every single one of us condemns 

any and all fraudulent or illegal activity by attorneys, doctors, or others, 

and we believe that they should be prosecuted to the fullest extent of the 

law and that they should be sanctioned by the appropriate sanctioning 

authorities. 

 One thing I think, though, that we need to talk about is the very 

serious issue about what do we do about physician sanctions? Because 

while I think the legal system is often dealing with the lawyers who 

wrongfully file claims in this matter, the same may not be said for 

professional misconduct of the physicians. Now I know that the 

investigations of misconduct are ongoing, but certain circumstances in 

this case amply demonstrate the larger point that State medical licensing 

authorities are failing in their responsibilities to protect the public from 

negligent doctors. The doctors who made the diagnoses in most of these 

cases were licensed to practice medicine in six States. Last September, 

the general counsel for the American Medical Association, apparently 

motivated by news reports of this case, sent the opinion in the “In re: 

Silica” case to the medical licensing authorities in those six States. The 

AMA’s letter cites specific page number references to the judge’s finding 

regarding the conduct of specific doctors whose practice was regulated 

by these agencies. 
22

 Not one, not a single licensing authority, Mr. Chairman, even 

bothered to acknowledge the communication, much less to investigate 

the professional conduct of these physicians. So in my opinion, if there 

is a public health problem, it is the ongoing failure of State medical 

licensing authorities to police licensed physicians, a problem that we 

encounter along with lawyer misconduct in medical malpractice cases all 

the time. Now clearly, the individual plaintiffs in “In re: Silica” would 

have been better served if the screenings were conducted by our expert 

witness, Dr. Laura Welch, or any other number of qualified and 

conscientious physicians. However, using this case as justification for 

preventing mass health screenings is inappropriate. In many cases, mass 

screenings are the only instances in which serious health problems are 

identified and some are worthy of compensation. The true public health 

issue is how to improve mass screenings so that patients are properly 

screened and diagnosis of any health problem is made known to them 

and that is not even to discuss the fact of fraudulent screenings which, of 

course, is probably illegal. 

 Mr. Chairman, to the extent that this case exposes holes in our 

system where unfairness can creep in, it is the failure of medical 

regulators. It would be a mistake and a real danger to the public health if 

Congress were to fashion a remedy that either made the screening 

uneconomic or otherwise limited the medical treatment and redress of 

harm due to preventable occupational or environmental exposure to 

poisons. And that is certainly an area I would like to explore with our 

witnesses today: how we can improve these screenings to make sure that 

they are ethical, accurate, and that they help the patients. 

 Mr. Chairman, just one other public health issue. NIOSH, which is 

the National Institute of Occupational Safety and Health, certifies 

radiologists and other medical doctors who pass a rigorous test as socalled B readers. These B readers are qualified to read chest X-rays for 

evidence of occupational disease. The editorial page of the Wall Street 

Journal has been campaigning for NIOSH to take the responsibility of 

disciplining B readers who allegedly misdiagnose occupational disease. 

I think there are two problems with that approach. First of all, Congress 

specifically separated NIOSH from OSHA and the Labor Department in 

the OSHA Act so that researchers would not be regulators. NIOSH is 

predominately a research entity whose main role is to develop standards 

for exposure of various workplace contaminants using data collected at 

the workplaces. NIOSH has no regulatory experience and it does not 

have anywhere near the resources to undertake nationwide B reader 

discipline. So I do not think that it would really be appropriate to 

essentially create a new regulatory agency within NIOSH. 
23

 Now Mr. Chairman, silicosis is a horrible disease. We need to make 

sure that people who do get the disease have legal protections and we 

also need to make sure that they are not taken advantage of. I think we 

can work together. I think we can make it happen but we need to be 

sensible and thoughtful about how we do it. 

 MS. DEGETTE. And finally, Mr. Chairman, I would ask unanimous 

consent to submit Mr. Dingell’s statement for the record and also the 

statements of any other Members who wish to submit opening 

statements. 

 MR. WHITFIELD. Without objection, so ordered. 

 [The prepared statement of Hon. John D. Dingell follows:] 

PREPARED STATEMENT OF THE HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF MICHIGAN

This investigation into the public health implications of the U.S. District Court 

findings in the silicosis litigation raises issues of both process and substance. With 

regard to process, Mr. Chairman, thus far you and your staff have conducted this 

investigation in a manner that has been quite fair. You have apprised us of each step 

taken, and we have supported the use of your authority to subpoena both documents and 

testimony. I see no reason why your fairness, and our procedural support, will not 

continue. 

But the subject of this investigation requires going forward with great care. We will 

learn today that in this particular case, abuses have occurred that could have been avoided 

if the physicians, the screening companies, and the lawyers involved had insisted upon 

good medical practice in the identification of the health effects of occupational exposure 

to silica. Such exposures can and do result in the irreversible and fatal but preventable 

disease of silicosis. 

These apparent abuses are unsettling and worrisome. The question before us is 

whether they are being addressed. In this case, the District Court in Texas has formulated 

remedies to any false claims that may have been filed. Further, I understand that a 

Federal grand jury has been impaneled to review possible criminal behavior surrounding 

false statements that may have been made in connection with this case. I am not aware of 

allegations that the judicial and executive branches are falling down on the job. 

This Committee’s concern is with the public health. I note that only the courts and 

the State medical societies and bar associations can insure that workers with silicosis and 

other diseases found during mass screenings receive a timely diagnosis from a physician 

bound by the ethics of a traditional doctor/patient relationship. Any action by Congress 

that has the effect of directly or indirectly limiting the access of workers to diagnostic 

medical exams or redress in the courts for damage done by workplace exposure to silica 

or any other toxic substances can only have an extremely negative effect on the public 

health. I ask that this concern for the public health remain the Committee’s focus as the 

inquiry goes forward. 

 MR. WHITFIELD. I might say to the gentlelady that this 

subcommittee has sent letters to the regulating bodies of physicians in 20 

States on this issue just yesterday, and I do appreciate your raising that 

issue, I might also just-- 
24

 MS. DEGETTE. Mr. Chairman, I will look forward to hearing if they 

send us letters back. 

 MR. WHITFIELD. Okay. I would also just comment that in this 

particular case in Texas that of the over 9,000 plaintiffs who submitted 

the fact sheets, they were diagnosed by only 12 physicians. 

 MS. DEGETTE. Right. 

 MR. WHITFIELD. At this time, I recognize the Chairman of the 

Energy and Commerce Committee, Mr. Barton of Texas. 

 CHAIRMAN BARTON. Thank you, Mr. Chairman, for holding this 

hearing on the public health implications of mass tort screenings. 

 Today we are going to examine a troubling story that has emerged 

from a mass tort before the U.S. District Court for the Southern District 

of Texas related to the occupational disease of silicosis. 

 Federal health statistics suggest that silicosis, a largely incurable and 

often fatal lung disease, has been in decline, yet it is somewhat 

perplexing that in the great State of Mississippi, a State that 

epidemiology would suggest should experience perhaps eight new 

silicosis cases per year, the number of new silicosis lawsuits skyrocketed 

from 76 in 2001 to more than 10,500 in 2002. Why the enormous spike 

in the number of silicosis claims from one State? Was this as the District 

Court Judge from Texas, Janis Graham Jack noted an industrial disaster 

of unprecedented proportion or something entirely different? Like Judge 

Jack, I have some questions. This might be a story of medical heroes 

who identify and then treat and care for people with a deadly disease. 

More likely, it is a story of medical mercenaries who allege cases of 

disease for the sole purpose of legal action and great financial gain. 

 The processes that went into assembling these mass silica lawsuits 

are very troubling. The recruitment of potential clients by lawyers and 

the rush to judgment by doctors is remarkable. Particularly troubling is 

the prospect that thousands of people were handed bogus diagnoses of 

this horrible disease and in many instances made by medically 

unqualified lawyers, paralegals, or screening company employees. I also 

have a problem with doctors certified by the National Institute for 

Occupational Safety and Health alleging using their Government 

credentials to produce thousands of silicosis diagnoses for patients they 

never met and probably did not care about meeting. 

 Today we are joined by several individuals who can tell us what has 

really happened. I am told that some of these individuals refused to help 

and refused to testify because after they were confronted with the facts 

about what they have done, they have decided to assert their protection 

under the Fifth Amendment Right against self incrimination. 

Nevertheless, we have brought them here today to ask some questions 

that need asking and I hope that they choose to answer. I look forward to 
25

hearing how anybody can justify being paid thousands of dollars, and 

indeed in at least one case, millions of dollars, to diagnose people for 

whom they claim no ethical or legal responsibility. I can tell you that I 

would be very unhappy if a doctor I didn’t know, using standards and 

practices he would never use in his own medical office, took money to 

conclude that I had a disease that could kill me and then made no 

apparent effort to see that I was treated. We count on doctors to first do 

no harm, yet every callous slight diagnosis risk harms for the sake of 

money. It quickly became evident that some of you did very well 

financially, but apparently did very poorly in terms of actually helping 

people treat their medical diagnosis. 

 The questions that I have do not just involve the doctors. I am also 

looking for some answers from screening companies whose business 

model seems to be based solely on their ability to find large numbers of 

willing patients and then link them with doctors who had an uncanny 

ability to diagnose the very disease with the greatest potential for profit. 

Of course lawyers and law firms behind the silicosis litigation from the 

beginning also have some serious questions to answer. I look forward to 

hearing their testimony at a later hearing on this topic, but today we are 

going to focus on the medical professionals. 

 I want to emphasize it is not this committee’s intent to question in 

any way a person’s right to seek all legal compensation for a real injury. 

Indeed, I believe by calling out the bogus claims, we are preserving 

resources in assets for the truly injured men and women. I want to shine 

a bright light on questionable behavior and what it says about certain 

medical practices done in the name of law. 

 In closing, I want to acknowledge and give accolades to my fellow 

Texan, Judge Janis Graham Jack appointed by President Clinton, I might 

add, for her scrupulous inquiry into this matter that has help to eliminate 

the irrelevant issues for us, and I want to thank the subcommittee 

Chairman and the Ranking Member for their work to help keep us 

focused on this issue. I look forward to the testimony and yield back the 

balance of my time. 

 [The prepared statement of Hon. Joe Barton follows:] 

PREPARED STATEMENT OF THE HON. JOE BARTON, CHAIRMAN, COMMITTEE ON ENERGY 

AND COMMERCE

Thank you, Chairman Whitfield - and thank you for holding this hearing on the 

public health implications of mass tort screenings. Today, we’ll examine a troubling 

story that has emerged from a mass tort before the U.S. District Court of the Southern 

District of Texas related to the occupational disease of silicosis. 

Federal health statistics suggest silicosis, a largely incurable and often fatal lung 

disease, has been in decline. Yet all of a sudden, in the State of Mississippi, a state that 

epidemiology suggests would experience perhaps eight new silicosis cases a year, the 

number of new silicosis lawsuits skyrocketed from 76 in 2001 to more than 10,500 in 
26

2002. Why the enormous spike in the number of silicosis claims? Was this, as the 

District Court Judge from Texas, Janis Graham Jack, noted, “an industrial disaster of 

unprecedented proportion – or something else entirely”? 

Like Judge Jack, I have some questions. This might be a story of medical heroes 

who identify and then treat and care for people with a deadly disease. More likely, this is 

a story of medical mercenaries who allege cases of disease for the purpose of legal action 

and great financial gain. 

The processes that went into assembling these mass silica lawsuits are very 

troubling. The recruitment of potential clients by lawyers and the rush to judgment by 

doctors are remarkable. 

Particularly troubling is the prospect that thousands of people were handed bogus 

diagnoses of this horrible disease and, in many instances, by medically unqualified 

lawyers, paralegals, or screening company employees. I also have a problem with 

doctors certified by the National Institute for Occupational Safety and Health allegedly 

using their government credentials to produce thousands of silicosis diagnoses for 

patients they never met and maybe never even cared about. 

Today we are joined by several individuals who can tell us what happened. I am 

told that some will refuse to help because after they were confronted with the facts about 

their work, they may have decided to assert the protection of their Fifth Amendment right 

against self-incrimination. Nevertheless, we have brought them here today to ask some 

questions that need asking, and I hope that they choose to answer. I look forward to 

hearing how anyone can justify being paid thousands of dollars, and indeed in one case 

millions of dollars, to diagnose people for whom they claim no ethical or legal 

responsibility. 

I can tell you that I would be very unhappy if a doctor I didn’t know, using standards 

and practices he would never use in his own medical office, took money to conclude that 

I had a disease that could kill me and then made no apparent effort to see that I was 

treated. 

We count on doctors to first, do no harm, yet every callous, slide-show diagnosis 

risked harm for the sake of money. It quickly becomes evident that some of you did very 

well, but little good. 

The questions I have do not just involve doctors. I am also looking for answers 

from screening companies, whose business model seemed to be based solely on their 

ability to find large numbers of willing patients and then link them with doctors who had 

an uncanny ability to diagnose the very disease with the greatest potential for profit. 

Of course the lawyers and law firms behind the silicosis litigation from the 

beginning also have some serious questions to answer, and I look forward to hearing their 

testimony at a later hearing on this topic. But today, we hear from some of the medical 

professionals. 

In closing, I should emphasize that it is not this Committee’s intent to question, in 

any way, a person’s right to seek all legal compensation for a real injury. Indeed, I 

believe by culling out bogus claims, we are preserving resources and assets for the truly 

injured men and women. I want to shine a bright light on questionable behavior and what 

it says about certain medical practices done in the name of the law. 

Finally, I want to acknowledge my fellow Texan, Judge Janis Graham Jack, for her 

scrupulous inquiry into this matter that has helped illuminate the relevant issues for us, 

and I want to thank the Subcommittee Chairman once again for keeping focus on this 

issue. 

I look forward to the testimony and yield back the remainder of my time. 

 MR. WHITFIELD. Thank you, Mr. Chairman. 
27

 At this time, I recognize Ms. Schakowsky of Illinois for her opening 

statement. 

 MS. SCHAKOWSKY. Thank you, Mr. Chairman. 

 I appreciate the opportunity to make this statement but I have to be 

frank in saying that I do not really understand the purpose of this hearing. 

If we truly are concerned about inquiring into the public health 

consequences of occupational exposure to silicosis, why are we not 

looking at the causes of this disease? Judge Jack’s opinion and as the 

Chairman of this full committee said, she has scrupulously been looking 

into this issue. The document that stirred up this silicosis controversy 

states clearly, “Although OSHA currently has a permissible exposure 

limit for crystalline silica, more than 30 percent of OSHA collected 

samples from 1982 through 1991 exceeded this limit. Additional studies 

suggest”—this is still a quote—“additional studies suggest that the 

current OSHA standard is insufficient to protect against silicosis.” Judge 

Jack drew that quote from a May 14, 2001 report by OSHA published in 

the Federal Register. 

 So what we have here is an already inadequate standard that is 

violated in 30 percent of the workplaces that OSHA inspects. These are 

work sites where silica dust threatens the worker with a disease that is 

incurable and fatal. Judge Jack has raised serious public health issues. 

Why are we not focusing on those issues where Congress has 

responsibility and no one else is acting? Why are we not looking into the 

adequacy of screening programs and standards? Why are we instead 

holding a hearing on the behavior of a small number of trial lawyers 

whose actions are already being investigated by the courts and who no 

one here is justifying? If we are concerned that some workers may have 

been falsely diagnosed as having silicosis, why are we not also 

concerned that other workers who have been exposed are not being 

screened for the disease and given access to medical care if they are ill? 

If we are really concerned with the public health dimension of this 

problem, we should be hearing from OSHA, and the company doctors, 

and lobbyists that fight adequate standards and meaningful enforcement. 

I just do not see any individuals on the witness list. 

 I am concerned that the publicity surrounding this case will have the 

effect of minimizing the need for action to reduce workplace injuries and 

disease caused by exposure to toxic substances while encouraging 

restrictions on the rights of the injured to get adequate medical care and 

appropriate compensation for their suffering. Any such restrictions 

would be very bad public health policy. It would give employers 

immunity to maintain whatever toxic workplace environment maximizes 

their profits no matter what the healthcare consequences for their 

workers. If we are going to investigate the public health problems 
28

associated with the disease of silicosis, we ought to look at the whole 

problem, not just problems with specific cases that have already been 

identified and apparently are being dealt with by the courts. And I yield 

back the balance of my time. 

 Thank you, Mr. Chairman. 

 MR. WHITFIELD. Thank you. 

 At this time, I recognize Dr. Burgess of Texas for his opening. 

 MR. BURGESS. Thank you, Mr. Chairman. 

 In the interest of time, I will submit my statement for the record and 

we will go on to the witnesses. 

 [The prepared statement of Hon. Michael Burgess follows:] 

PREPARED STATEMENT OF THE HON. MICHAEL BURGESS, A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF TEXAS

Thank you Mr. Chairman, and thank you for having this important hearing. While 

today we are focusing on the public health issues related to the mass screening and 

diagnosis of silicosis, I strongly believe that it is the role and responsibility of this entire 

committee to address the imminent health care needs of our nation. Mr. Chairman, thank 

you for bringing yet another specific health related issue to not only this committee’s 

attention, but also to the public’s attention. 

As a physician for over twenty five years, I understand the importance and need for 

an efficient and effective medical screening process. Thousands upon thousands of lives 

have been saved due to medical screening processes that were able to detect illnesses and 

other serious maladies. This system relies upon trained physicians and other medical 

personnel to perform reliable diagnostic evaluations. Without this crucial element, the 

screening system falls apart, thus, jeopardizing the health and welfare of the public that 

was meant to be protected. 

The situation before us today exemplifies the harm that can occur when corruption 

and greed overtakes the system. On June 30, 2005, a Federal judge in South Texas, 

Judge Janis Graham Jack, issued an opinion regarding the deplorable situation before us 

today. While the case was ultimately dismissed and remanded in part due to lack of 

subject-matter jurisdiction, Judge Jack noted in her opinion serious allegations of fraud 

resulting from a mere12 doctors diagnosing over 10,000 cases of silicosis in Texas, 

Mississippi, Georgia, and Alabama. While OSHA reported that there has been a steady 

decline of silicosis, due to these few doctors’ diagnosis, Mississippi alone went from 40 

cases reported in one year to 6000 cases in the next. This would have been considered an 

occupational outbreak, yet not one single person contacted the CDC. Judge Jack summed 

it up best by concluding that “these diagnoses were about litigation rather than health 

care” and “were driven by neither health nor justice but were manufactured for money.” 

 Today, three of the twelve doctors will have the opportunity to present their side of 

the story to Congress. I sincerely hope that Dr. James Ballard, Dr. Andrew Harron, and 

Dr. Ray Harron will take this opportunity and explain to the nation how they were able to 

diagnosis so many patients with silicosis when 8,000 treating doctors involved in the 

actual treatment of the patients did not see this disease. 

Again, Mr. Chairman, I thank you for this hearing, and I look forward to working 

with you and the rest of the committee to achieve real results for the public health and 

welfare of this country. 

I yield back the remainder of my time. 
29

 MR. WHITFIELD. Thank you. 

 At this time, I recognize the gentleman from Washington, Mr. 

Inslee? 

 MR. INSLEE. Thank you, Mr. Chairman. 

 I just want to make two brief points. First, I am from Washington 

State and I have got my neighbors today working in the Puget Sound 

Naval Shipyard, the Washington State Ferry System about 300 yards 

from my house that are exposed to potential silicosis. And the 

projections are, I think I saw one estimate of 1,204 people projected to 

develop this disease in the next year. But instead of holding a hearing on 

how to protect my neighbors from silicosis, here we are talking about an 

issue that has been largely resolved by our judicial system. And I think 

the reason that we are holding this hearing is not because of silicosis, but 

because of lawyerosis, which is a disease that affects some people in the 

U.S. Congress to think that everything from the common cold to global 

warming is caused by trial lawyers. Now it sounds to me like in this 

particular case, there were some things that were not according to hoil. 

And apparently through this judge’s intensity found out that was not the 

case. But the judicial system under existing rules dealt with it. 

 I would hope that at some point we could hold a hearing on how to 

protect my neighbors and my constituents from developing this life 

threatening disease rather than just relating it to this one case. 

 Second, I want to note that I hope that we explore the responsibility 

of the medical community to police their own. We have had a lot of 

debates about litigation in this Congress and other legislative bodies. 

What is very important, I think, for the medical community to be 

sufficiently aggressive in policing their own. I am told that of three of 

the doctors whose alleged diagnoses they said they diagnosed this, and in 

fact, they had not on this terribly non-comprehensive review that were 

obviously scandalous behavior at least obvious to me from what I have 

heard to date. I am told the AMA wrote the Texas Licensing Authorities 

and nothing has been done about or the licensing of the effective State 

legislators, nothing has been done about the licenses of these physicians. 

And we ought to be examining why the medical community has not 

policed its own in this particular circumstance. 

 So I will hope that we have a discussion from some of the witnesses 

of how the medical community can help us solve the problem of medical 

negligence in this country by policing bad doctors and that is something 

that we need to take a look at. And I am a great admirer of the 

profession, by the way, who have done incredible things, but why these 

doctors have been not disciplined to date, we ought to have a serious 

examination of that. 

 Thank you. 
30

 MR. WHITFIELD. Thank you. 

 At this time I recognize the gentlelady from Tennessee, Mrs. 

Blackburn, for her opening statement. 

 MRS. BLACKBURN. Thank you, Mr. Chairman. And I really want to 

thank you and the staff for putting the attention on the issue and for the 

hearing we are having today. 

 And I think it is so appropriate that we enter some time on the 

examination of the lawsuit. It is timely for us as the Senate is looking at 

the asbestos trust fund, and we need to ensure that the Federal cases will 

compensate true victims when it comes to asbestosis and silicosis. We 

cannot allow trial lawyers to engage in deceptive tactics that intimidate 

both our large and our small companies, and intimidate them into 

capitulating to their demands for enormous amounts of money. And we 

need to be certain that those who are harmed by the diseases are the ones 

who are compensated for those diseases. This hearing is a good first step 

as we are looking into the issue. And I am looking forward to the 

hearing. I am looking forward to hearing from our witnesses and also to 

a time to be able to question our witnesses and continue working on this 

in the future. 

 Thank you. 

 MR. WHITFIELD. Thank you. 

 At this time, recognize the gentleman from Florida, Mr. Stearns. 

 MR. STEARNS. Thank you, Mr. Chairman. And let me just 

compliment you like my colleagues have for having this hearing. For 

those on the other side that are complaining about this, let me just say 

that the staff had advised me that they have contacted 13 law firms and 

over there in the discussion inviting them to come and so there will 

probably be another hearing for them. They are welcome to come when 

we have all the trial lawyers come and they can ask their questions then. 

Perhaps they do not think it is appropriate today but we will have another 

hearing for them to do that. 

 You know, in many ways, to a person who is a small business person 

before I came to Congress, this represented another jackpot for some of 

these trial attorneys. They looked at this and they thought, “Well, maybe 

this is the next mother of all jackpots like asbestos was, and like tobacco 

was” and the next big thing for these folks. And so, you know, it is a 

tribute obviously as Chairman Barton has said, that Judge Janis Graham 

Jack smelled a rat in her courtroom and when the numbers did not add 

up, she alerted everybody and that is why we are here today. 

 So this hearing is not about a class action suit or the tort system. 

Men and women exposed to silica and suffering from silicosis have 

every right to seek compensation and deserve their day in court. That is 

true. This is about exploitation of an occupational health system that 
31

otherwise serves to help workers injured on the job. And we have a 

structure, a chain of events and entities and public officials that all 

participate in identifying a pattern, collecting reporting data, locating 

diagnosis, and treating patients who are truly harmed. But it works well 

only if the integrity of the system is in place. Today we will hear from 

some of the individuals who unfortunately lack this integrity and put 

financial gain way ahead of everything else, subjecting about ten 

thousand workers in fields to these claims. 

 What is remarkable about the current system is that a Federal case 

involving some 9,000 plaintiffs could unravel when just a judge asks a 

few simple questions about the medical evidence and practices 

underlying the claim. I think for all of us on the committee it is just 

appalling that this would actually occur. So we need to understand how 

thousands of people could have perhaps been misdiagnosed with this 

terrible disease, and what is more, how insurance coverage or other such 

resources perhaps owed to sick and suffering men and women could 

have been potentially misappropriated by allegedly trumped up claims. 

Now those are the facts, and that is why we are here and I think it is 

important that we take the time to look at this, Mr. Chairman. And I 

think in the end, it would not hurt to have some of these lawyers from 

these other 13 law firms come in here and explain. 

 And lastly, I would indicate that for people who think this is not an 

important hearing, we are going to hear from witnesses who are going to 

take the Fifth Amendment, and so that means they do not want to testify, 

and they have every right to take the Fifth Amendment. But I would say 

the fact that people will not talk honestly about something is something 

that we should all be concerned about and ask the question of why won’t 

they testify, why won’t they tell us some of this information and I think it 

is a hard job to extricate this information out and bring it to the public’s 

attention. 

 So Mr. Chairman, I look forward to the hearing. 

 MR. WHITFIELD. Thank you, Mr. Stearns. 

 That concludes the opening statements and I want to welcome the 

witnesses on Panel I. I have already introduced you, but once again I 

would say Professor Edward Sherman of Tulane University Law School 

in New Orleans and Dr. Laura Welch who is the Medical Director at 

Center to Protect Workers Rights in Silver Spring, Maryland. So we 

welcome you. And as you are aware, this committee is holding an 

investigative hearing and when doing so we have had the practice of 

taking testimony under oath. The Chair would advise you that under the 

rules of the House and the rules of the Committee, you are entitled to be 

advised by legal counsel. Do you desire to be advised by legal counsel 

today? 
32

 MR. SHERMAN. No. 

 [Witnesses sworn.] 

 MR. WHITFIELD. Well you are now under oath and Professor 

Sherman, if you would give us your five minute opening statement. 

TESTIMONY OF EDWARD F. SHERMAN, THE MOISE F. 

STEEG, JR., PROFESSOR OF LAW, TULANE LAW 

SCHOOL; AND LAURA WELCH, M.D., MEDICAL 

DIRECTOR, CENTER TO PROTECT WORKERS RIGHTS 

MR. SHERMAN. Mr. Chairman. 

 MR. WHITFIELD. Turn your microphone on. 

 MR. SHERMAN. Okay, yes, thank you. 

 Mr. Chairman, I have been asked to address the problems with 

silicosis screening and evaluation that came to light in the Texas case; 

and similar problems were also addressed by the AVA Task Force on 

asbestos of which I was the reporter. And so I will refer also during my 

remarks to some of the recommendations that were made by the task 

force since very similar issues arise as to both asbestosis and silicosis. 

 Judge Jack was in an unusual position of being able to see the big 

picture that many judges don’t have because 10,000 cases were 

transferred to her. And during the course of determining a jurisdictional 

question, she took evidence and had discovery made and came to the 

conclusion that this was a phantom epidemic. The fact that huge 

numbers of cases were being reported out of Mississippi over a relatively 

short period of time of silicosis was really the result of manufacturing of 

cases done by screening companies, lawyers, and doctors. And most 

important, she pointed out the deficiencies and the manner in which the 

screening and diagnosis was done, and she said that the X-rays by a 

small number of doctors who did not personally examine the patients. 

She said medical histories, physical examinations, and other tests were 

non-existent or cursory. And this is very similar to what the ABA Task 

Force found about some asbestos screening as well, also done by 

screening vans and certain screening companies, that the screenings are 

done by non-medical personnel, that the doctors who actually do the 

diagnosis often do it on the basis of a single X-ray without having taken 

medical testimony and other tests. And so I think what we do know is 

that there are some very serious problems about the methodology and the 

standards that are being followed in screening and that is in asbestosis, as 

well as silicosis. 

 It does not mean that silicosis is not a serious problem. Judge Jack 

pointed out that more than a million American workers continue to be 

exposed to respirable silica most prevalent in occupations such as 
33

sandblasting, mining, quarrying, and rock drilling. But since the 1970’s 

when OSHA standards were adopted, the rate of silicosis has gone down 

considerably, not that, in fact, those standards might not be improved but 

in fact they have gone down and as she said, the phantom epidemic that 

we saw from Mississippi and those cases was really the result of a 

screening and diagnostic cabal as opposed to a real epidemic. 

 I think that the evidence and findings deduced by Judge Jack have an 

importance beyond the particular cases that were before her because 

those practices have to be examined in reference to systemic problems 

relating to silicosis cases, to asbestos cases, and indeed very possibly to 

other delayed manifestation of disease cases. And I want to mention 

three proposals that the AVA Task Force presented, and these have been 

given to the committee in writing, Mr. Chairman. 

 First, regarding standards, the task force proposed that screening 

should only be done by a qualified medical professional licensed to 

perform such tests in the State in which the test is performed and in 

compliance with local, State, and Federal laws and with professional 

standards for physicians and other qualified medical professions for the 

conduct of medical examinations. And then second, relating to 

diagnosis, propose that a physician or other qualified medical 

professional rendering a diagnosis based on screening should have 

personally examined the patient and should have considered all 

appropriate diagnostic tests and not merely X-rays, as well as the 

patient’s full medical history which that individual should have taken and 

any other available medical evidence. So what we are talking about are 

some much, much stricter standards in an area that has been essentially 

standardless up until this time. 

 I want to point out that the task force did point out that this does not 

mean that mass screening programs are necessarily bad. The task force 

said these standards would clearly not prevent the operation of screening 

programs by unions or community, health, or other non-profit 

organizations in order to monitor the health and conditions of the persons 

whom they serve. No interest legitimately served by medical screenings 

will be hindered by these measures. These standards will, however, 

substantially reduce the prospects of litigation abuse. So what we are 

talking about is reducing probably the number of cases that would be 

filed by the standards but also ensuring that as a public health matter 

mass screenings can be conducted if they are conducted according to 

these standards. 

 The second proposal of the AVA Task Force, Mr. Chairman, was 

that courts, both State and Federal courts that have asbestos cases before 

them, adopt a model case management order and that that case 

management order would require the provision at a relatively early stage 
34

in the litigation of setting out with particularity the facts and legal 

grounds for the claims and the medical condition and medical history. In 

fact, similar court case management orders have been used in California 

courts for several years, and have reduced the number of claims filed. 

And we believe that the courts would be well to do this, and we have 

attached to that report a lengthy case management order and appendices 

that would indicate that. 

 The third proposal of the AVA Task Force, Mr. Chairman, has to do 

with statute of limitations. I think we have to realize that sometimes 

lawsuits are filed because of fear of the running of the statute of 

limitations and fear and uncertainty, excuse me, of people who have been 

exposed to conditions that may result in asbestos or silicosis conditions. 

And one can imagine that a lawyer who is concerned about this might 

feel that if there has been a screening and there has been a diagnosis that 

the statute of limitations will now begin to run and they have to file the 

suit even though there is no present injury or no disability. The trouble is 

that in our States, the standards for when a statute of limitations begins to 

run are quite diverse. They vary from a discovery rule to an actual injury 

rule and the proposal of the task force is that a model statute of 

limitations rule be set in clear and bright line rules so that individuals 

would not have to file suits which may turn out to be meritless and clog 

the courts in order to keep the statute of limitations from running. 

 So those are three proposals that we feel would be relevant in both 

the silicosis, as well as the asbestos area and very possibly in the area of 

other delayed manifestation torts. 

 [The prepared statement of Edward F. Sherman follows:] 

PREPARED STATEMENT OF EDWARD F. SHERMAN, THE MOISE F. STEEG, JR., PROFESSOR OF 

LAW, TULANE LAW SCHOOL

Written Statement of Summary of Testimony to be Given by Professor Edward F. 

Sherman at the Hearing of the Oversight and Investigations Subcommittee, House 

Energy and Commerce Committee on “The Silicosis Story: Mass Tort Screening 

and the Public Health,” on March 8, 2006 

Good Morning, Chairman Whitfield, Congressman Stupak, Members of the 

Subcommittee. I am pleased to be here this morning. I am Edward F. Sherman a 

professor of law at Tulane University Law School in New Orleans, Louisiana. I was also 

the Dean of Tulane University Law School from 1996 to 2001. I previously taught at the 

University of Texas School of Law where I was the Edward A. Clark Centennial 

Professor of Law (1977-1996), at the University of Indiana School of Law (l969-l977) 

and as a Teaching Fellow at Harvard Law School (l967-l969). Upon graduation from 

Harvard Law School in l962, I clerked for a federal district judge in the Western District 

of Texas and practiced with a Texas law firm. My areas of teaching and research are 

Complex Litigation, Civil Procedure, and Alternative Dispute Resolution, and I have 

published casebooks on these subjects that are used in law schools around the country. I 

have been on the Members Consultative Group of the American Law Institute’s Complex 
35

Litigation and Transnational Civil Procedure Projects. I served as Chair and Reporter for 

the 2001-2003 American Bar Association’s Task Force on Class Action Litigation. I was 

the Reporter for the ABA’s Tort Trial and Insurance Practice Section’s Task Force on 

Asbestos Litigation 2003-2005, which submitted eight proposals that were adopted as 

ABA policy by the ABA House of Delegates. I appear in my capacity as a law professor, 

and not as a representative of the ABA, but will pass on to you three of the proposals 

made by the Task Force as they relate to the silicosis topic that were adopted by the ABA 

House of Delegates. 

I will discuss In re Silica Products Liability Litigation1

 and the significance of the 

opinion of Judge Janis Graham Jack.2

 Cases involving some 10,000 plaintiffs against 

some 250 corporate defendants alleging injuries from silica exposure (most having been 

removed to federal court from Mississippi courts) were transferred by the Judicial Panel 

on Multidistrict Litigation to Judge Jack’s federal district court in Texas for pretrial 

disposition. Judge Jack ordered discovery so that factual issues relating to whether there 

was subject matter jurisdiction could be determined. Defendants deposed Dr. George 

Martindale, a radiologist, who testified that he had not intended to diagnosis silicosis in 

the 3,617 plaintiffs that he had previously so diagnosed based solely on reading their Xrays. Hearings were held in February, 2005 concerning the nine doctors and two 

screening firms that accounted for 99% of diagnoses of silicosis. 

Judge Jack entered a lengthy opinion and order on June 30, 2005. She found that 

most of the silicosis claims “were essentially manufactured on an assembly line” through 

screening companies, doctors, and plaintiffs’ lawyers. She criticized the diagnoses based 

on readings of X-rays by a small number of doctors who did not personally examine the 

patients. “Medical histories, physical examinations and other tests were nonexistent or 

cursory.” The doctors “repeatedly testified that they were told to look for silicosis” and 

“did as they were told.” In thousands of the cases, individuals who had previously been 

diagnosed only with asbestosis were now diagnosed with silicosis, although the presence 

of both diseases in an individual is rare. Thus a “small cadre of non-treating physicians, 

finally beholden to lawyers and screening companies rather than to patients, managed to 

notice a disease missed by approximately 8,000 other physicians – most of whom had the 

significant advantage of speaking to, examining, and treating the Plaintiffs.” 

Judge Jack noted that “more than a million U.S. workers continue to be exposed to 

respirable silica ... most prevalent in occupations such as abrasive blasting (i.e., 

“sandblasting”), mining, quarrying, and rock drilling. This continued exposure is tragic, 

because while silicosis is incurable, it is also 100% preventable.” Beginning in the 

1970’s, OSHA implemented regulations requiring the use of respirators and other 

measures to reduce exposure, and additional measures adopted by employers and 

individuals have also been effective. The Centers for Disease Control has found that the 

number of U.S. workers exposed to silica dust declined steadily since 1970, and deaths 

from silicosis declined from 1157 in 1968 to 187 in 1999. Nevertheless statistical 

probability suggests that there might be 1204 new silicosis cases per year in the U.S. 

“However, in 2002, the number of new Mississippi silicosis claims skyrocketed to 

approximately 10,642,” with 7,228 in 2003 and 2,609 in 2004. Public health officials and 

medical experts “were unaware of any increase in silicosis cases in Mississippi.” Judge 

Jack attributed this “phantom epidemic” to screening and diagnosis practices. She 

proceeded to grant a motion for sanctions against a plaintiff law firm and to remand most 

of the cases to state court for further proceedings. 

Judge Jack was able to make the connection between the dramatic rise in silicosis 

claims and screening/diagnosis practices because such a large number of cases had been 

transferred to her. Silicosis cases are usually filed in state courts, where a single judge 

 

1

 No. MDL 1553, U.S. Dist. Ct. for S.D. Texas, Corpus Christi Div. 

2

 398 F.Supp.2d 563 (S.D. Tex. 2005). 
36

does not have a large enough sample to make such a connection. Also such cases would 

not normally be consolidated before a federal MDL judge because plaintiff’s lawyers 

typically structure them avoid removal to federal court. Because she possessed 

“jurisdiction to determine jurisdiction” as to the propriety of removal, she had the rare 

opportunity to see the big picture. 

The evidence and findings adduced by Judge Jack have an importance beyond the 

particular cases before her. The practices she identified reflect systemic problems which 

can exist in other silicosis cases, and indeed in the closely related asbestos cases and 

cases involving delayed manifestation of disease due to exposure to conditions or 

products. 

I would also like to comment on policies of the American Bar Association that I 

have attached to my statement. The ABA’s Tort Trial and Insurance Practice Section’s 

Task Force on Asbestos Litigation identified many of the same defects in the screening 

and diagnosing of asbestos claims by “screening vans” operated by for-profit companies. 

Composed of both plaintiff and defendants’ lawyers and representatives of businesses, 

insurers, and unions, the Task Force found the practices “of concern to reputable 

attorneys on both sides of the docket.” As indicated in its report, it concluded that the 

screening and diagnosis practices were generating cases where there is no clinical finding 

other than an X-ray said to be “consistent with an asbestos-related disease.” The result 

can be the filing of claims by persons based on questionable medical diagnoses and the 

settlement of such cases, deflecting funds from persons with serious conditions. 

ABA Proposal for Screening and Diagnosis Standards 

The ABA House of Delegates adopted as policy the proposal of the TIPS Task Force 

that “as authorized by an appropriate court rule, statute, or regulation, standards be 

established by the states and territories for the operation of screening vans or other forms 

of mass screening for asbestos-related conditions. These standards should be enforced, as 

appropriate, by federal, state and territorial governmental agencies; by the investigation 

and enforcement of bar professional ethics; by the investigation and enforcement of 

medical societies’ ethical standards; and by courts through evidentiary ruling, rulings on 

motions for summary judgment, and the issuance of other appropriate orders.” 

The standards recommended by the proposal include: 

- Screenings should only be done by a qualified medical professional licensed to 

perform such tests in the state in which the test is performed and in compliance with 

local, state and federal laws and with the professional standards for physicians and other 

qualified medical professions for the conduct of medical examinations. 

- A physician or other qualified medical professional rendering a diagnosis based on 

screening should have personally examined the patient and considered all appropriate 

diagnostic tests, as well as the patient’s full medical history and any other available 

medical evidence. 

- Medical diagnoses based on screening tests should conform to the applicable 

standard of diagnostic care that is regularly exercised in a doctor-patient relationship. 

 The TIPS Task Force report noted that screening programs are not suspect if proper 

standards are followed. The Task Force’s proposal stated: “These standards would 

clearly not prevent the operation of screening programs by unions or community, health, 

or other non-profit organizations in order to monitor the health and conditions of the 

persons whom they serve. No interest legitimately served by medical screenings will be 

hindered by these measures. The standards will, however, substantially reduce the 

prospects for litigation abuse.” The standards, if adopted and applied, would also assist 

the state and federal courts by sharply reducing the number of claims filed, substantially 

easing congested court dockets. 

 ABA Proposal for Model Case Management Orders
37

 A second important deterrent to the filing and prosecution of unmeritorious cases 

must be found in court procedures. This can be accomplished through a Case 

Management Order requiring early in the litigation a detailed written submission stating 

with great particularity the facts and legal grounds for each claim.3

 The ABA adopted as 

policy the TIPS Task Force proposal of a Model Case Management Order to be adopted 

by state and federal courts for asbestos cases.4 The approximately 175 pages of 

standardized discovery required by the Order would require extensive information about 

the medical condition of the plaintiff and evidentiary support for the claim and injury. I 

think this is an appropriate order. It was based on California practice, which has reduced 

the number of unmeritorious asbestos claims clogging the courts. Requiring a lawyer to 

investigate a case thoroughly in order to provide specific information serves to screen out 

meritless cases and deter the filing and bundling of multiple cases based on questionable 

screening diagnoses in hopes of a quick settlement. 

 ABA Proposal for Model Statute of Limitations

 Finally, the ABA adopted as policy the TIPS Task Force proposal that addressed the 

problem that law suits as to diseases that have a long latency period between exposure 

and manifestation (as from asbestos or silica exposure) may be filed on the basis of fear 

and uncertainty of mere exposure or a weak diagnosis in order to prevent the statute of 

limitations from running. Uncertainty in certain states as to when the statute of 

limitations begins to run, and, in states having a discovery standard, as to what 

information will be deemed to constitute notice of discovery, can warrant a prudent 

attorney to recommend filing suit even though there is no present disability. When some 

17,000 asbestos cases were filed en mass in the multidistrict litigation transferred to the 

U.S. District Court for the Eastern District of Pennsylvania, Judge Charles R. Weiner 

commented: 

[T]hat the screening cases have been filed without a doctor-patient medical report 

setting forth an asbestos related disease has not been refuted. The basis for each 

filing, according to the evidence of the moving parties, is a report to the attorney 

from the screening company which states that the potential plaintiff has an X-ray 

reading “consistent with” an asbestos related disease. Because this report may set 

in motion the running of any applicable statutes of limitations, a suit is then 

commenced without further verification. Oftentimes these suits are brought on 

behalf of individuals who are asymptomatic as to an asbestos-related illness and 

may not suffer any symptoms in the future. Filing fees are paid, service costs 

incurred, and defense files are opened and processed. Substantial transaction costs 

are expended and therefore unavailable for compensation to truly ascertained 

asbestos victims.5

 The overload of asbestos cases in the courts often resulting in serious cases not 

being reached, or not being subjected to serious settlement consideration, in a timely 

fashion has led a number of courts to create “pleural registries.” In the early 1990’s, 

 

3

 See Feliciano v. DuBois, 846 F. Supp. 1033 (D. Mass. 1994). Judge Jack derived important 

information concerning these cases by requiring the parties to submit “Fact Sheets” providing, for 

example, as to plaintiffs, specific information about when, where and how he or she was exposed to 

silica dust and detailed medical information concerning the alleged silica-related injury, and, as to 

defendants, information (including photographs) of each-silica-related product that defendant 

designed, manufactured, marketed, sold, or distributed. 

4

 See Appendices to the ABA Task Force Proposal for a Model Case Management Order, adopted by 

the ABA House of Delegates in January, 2006. 

5

 In re: Asbestos Products Liability Litigation (No. VI)(Civ. Ac. No. MDFL 875, E.D. Pa.), 

Administrative Order No. 8m o, 2 (Jan. 15, 2002). 
38

various courts issued orders giving priority to cancer claims or other serious conditions, 

deferring other cases for trial settings or dismissing them without prejudice. Some 

registries were voluntary, like the order of Judge Moss, of the Pa. Ct. of Com. Pis., in a 

1993 order creating a voluntary pleural registry under which claims of asympotomatic 

plaintiffs “are dismissed without prejudice, to be reopened on an expedited basis if the 

plaintiff develops asbestos-related cancers.”6

 Others were mandatory, moving such 

claims to an inactive list for a trial setting, or dismissing them without prejudice, with 

provisions that they could be moved onto a trial or active docket upon a motion meeting 

certain criteria as to actual manifestation of disease or injury and, in some courts, 

satisfying certain medical standards. 

Constitutional questions based on separation of powers, due process, equal 

protection, and access to courts have been raised regarding mandatory registries,7

 but 

there are no definitive precedents. The ABA adopted as policy the TIPS Task Force 

proposal for a Model Statute of Limitations for states that provides bright line tests for 

determining when the statute of limitations begins to run based on manifestation of 

disability or discovery of disability, whichever later occurs. It provides that the time for 

the commencement of an action shall be within two years after the later of “the date the 

plaintiff first suffered disability” or “the date the plaintiff either knew, or through the 

exercise of reasonable diligence should have known, that such disability was caused or 

contributed to by such exposure.” This proposal is based on the belief that, with greater 

certainty as to when the statute of limitations will commence, based on actual disability 

or discovery of it, there will not be an incentive for attorneys to undertake the costs and 

obligations of filing cases based solely on X-ray readings indicating only consistency 

with disease without manifestation of disability. 

 Like the ABA, I believe that the asbestos crisis requires multiple approaches 

directed at systemic conditions that have resulted in the too-loose screening and filing of 

cases, the clogging of courts by unmeritorious cases and cases filed to prevent the statute 

of limitations from running, and the pressures (and attractiveness) for defendants to settle 

questionable bundled cases cheaply, which can disadvantage a plaintiff who subsequently 

develops a serious disease. These principles should apply equally to silicosis. 

 I again want to thank you Mr. Chairman and members of the Subcommittee for 

inviting me here today and for your time. I would be happy to answer any questions you 

may have. 

 

6

 Judge Sandra Mazer Moss, “State-Federal and Interstate Cooperation, Case Management 

Techniques Move Complex Litigation, Hasten Disposition of Asbestos, Other Cases,” State-Federal 

Judicial Observer (Federal Judicial Center & National Center for Stare Courts), April 1993, at 3. 7

 See Professor Erwin Chemerinsky, “Statement of Opposition to Petition to Establish a Court Rule 

or Administrative Order Creating Statewide Inactive Asbestos Docketing System,” id. 
39

CURRICULUM VITAE 

EDWARD F. SHERMAN

Professor of Law 

Tulane Law School 

ADDRESS: 

Tulane Law School 

6329 Freret Street 

New Orleans, LA 70118-5670 

(504) 865-5979 

PERSONAL INFORMATION: 

 Born: July 5, 1937, El Paso, Texas 

 Family: Married, two children 

EDUCATION: 

 High School: El Paso High School, El Paso, Texas 

 College: Georgetown University, Washington, D.C. 

 A.B., Philosophy, 1959 

 Graduate: University of Texas at El Paso 

 M.A., History, 1962 

 M.A., English, 1967 

 Law School: Harvard Law School, Cambridge, Mass. 

 LL.B., 1962 

 S.J.D., 1981 

LEGAL AND ACADEMIC EXPERIENCE: 

Legal Aide to Governor of Nevada, 1962 (Ford Foundation Fellowship in State & 

Local Government) 

Law Clerk to U.S. District Judge for the Western District of Texas, Honorable R.E. 

Thomason, 1963 

Law Practice: Mayfield, Broaddus, MacAyeal & Perrenot, El Paso, Texas, 1963-

1965 

U.S. Army, Captain, Military Police Corps, 1965-1967; U.S. Army Reserve, 

 Judge Advocate General’s Corps, 1968-l990 (to Lt. Colonel) 

Harvard Law School, Teaching Fellow, 1967-1969 

Indiana University School of Law, Bloomington, Indiana, Professor, 1969-1977 
40

 Fulbright Lectureship (in International and Constitutional Law), Trinity 

 College, Dublin, Ireland, 1973-1974 

 American Bar Foundation Fellowship in Legal History, 1975 

 University of Texas School of Law, Austin, Texas 

 Edward Clark Centennial Professor of Law, 1977-1996 

 University of London, Visiting Professor, l989 

 Krajowa Szkola Administracji Publicznej (School of Public Administration), 

 Warsaw, Poland, Visiting Professor, January-February 1995. 

Institute of Comparative Law, Chuo University School of Law, Tokyo, Japan, 

Visiting Professor, spring, 1995. 

 

Tulane Law School, Dean and Professor of Law, 1996-2001; Professor of Law, 

2001-present. 

University of New South Wales, Sydney, Australia, Visiting Professor, 2002. 

University of Maine School of Law, Godfrey Distinguished Visiting Professor of 

Law, fall, 2003. 

SUBJECTS TAUGHT: 

 Civil Procedure 

 Complex Litigation 

 Alternative Dispute Resolution 

 International Law, International Arbitration 

 Constitutional Law, Civil Rights, Government Liability 

 Law of War, Military Law, National Security Law 

 Jurisprudence, Law and Literature 

SELECTED ACTIVITIES: 

American Association of University Professors, General Counsel, 1986-1988 

American Bar Association 

 ABA Tort Trial & Insurance Practice Section 2004 Robert B. McKay Award 

Reporter, Task Force on Asbestos Reform (2003-2005) 

 Chair & Reporter, Task Force on Class Action Legislation (2001-2003) 

 Reporter, Task Force on Offer of Judgment Rule (1995)(TIPS). 

 

Reporter, Summit on Civil Justice System Improvements (l993). 

Section of Litigation, Co-chair, Task Force on Federal Rules (1996-99); Task Force 

on the Public Perception of the Litigation System (1999-2001); Task Force on State 

of Justice System & Federal Initiatives (l993-1996); Standing Committee on Pro 
41

Bono & Public Service (1998-2001); Subcommittee on Computerization, Committee 

on Discovery (l982-1983). 

Section of Dispute Resolution, Co-chair & member, Arbitration Committee, 1999-

present 

American Law Institute, l988-present 

 Complex Litigation Project, Members Consultative Group, l989-1995 

Transnational Civil Procedure, Members Consultative Group, 2001-present 

Arbitrator 

 

 Expedited Arbitration Panel, Aluminum Co. of America and United Steel Workers 

of America, 1984-1996 

 American Arbitration Association, Labor Law Panel, l989-1996 

 International Centers for Arbitration, International Arbitrator Panel, 

 l993-1996; director of training, 1993-1996. 

Association of American Law Schools 

Chair, Section on Litigation, 1999-2000 

 Chair, Section on Dispute Resolution, 1995-96 

 Board, Section on Civil Procedure, 1994-95 

 Committee on Clinical Education, 1999-present 

Expert Witness on Class Action Certification and Management (cases in state and federal 

courts) 

Law & Economics Center, summer program for law professors, 1981, advanced course, 

1991 

Louisiana Bar Foundation, Judicial Liason Committee, 1999-present 

Louisiana State Law Institute, 1996-2002 

Louisiana State Bar Association 

Board of Governors, 1997-99 

 Board, ADR Section, 1997-present 

 Committee on Codes of Lawyer and Judicial Conduct, 1999-present 

Mediator 

Basic Mediation Training Course, 1985; volunteer mediator, Travis County Dispute 

Resolution Center, 1985-1996; court-appointed mediator, Texas state & federal 

court cases, 1985-1996 

Professor, courses in mediation and arbitration, U. of Texas School of Law, 1986-

1996; Tulane Law School, 1996-present; Hamline Law School Summer Mediation 
42

Program, 1994; Tulane-Humboldt Universities Intercultural Negotiation/Mediation 

Summer Program, Berlin, Germany, 1999-2001. 

National Institute for Military Justice, Board of Directors (2000-present) 

Texas Bar Association 

 Chair, Committee on Pattern Jury Instructions (Vol. I), 1982-1994 

 Board & Member, Alternative Dispute Resolution Section, 1984-96 

Texas Center for Public Policy Dispute Resolution, Chair of Board, l993-1996. 

Texas Civil Liberties Union, General Counsel, 1992-1996 

Travis County Jail Litigation, Court-Appointed Attorney, U.S. District Court for the 

Western District of Texas, 1981-1990 

Travis County Dispute Resolution Center, Board and Vice-President, 1986-1988 

Texas Resource Center (for Post-Conviction Capital Representation), Board, 1988-1993, 

Chair of Board, 1993-1994. 

U.S. AID “Stars Project – Vietnam” on drafting new Vietnamese Code of Civil 

Procedure, 2003 

Who’s Who in: 

 America 

 American Education 

 American Law 

 South & Southwest 

 International 

SELECTED PUBLICATIONS: 

 BOOKS: 

Processes of Dispute Resolution: The Role of Lawyers (with Rau & Peppet)(Foundation 

Press 2002). 

Civil Procedure: A Modern Approach (with Marcus & Redish)(West Pub. Co. 1989, 4th 

ed. 2005). 

Rau, Sherman, and Shannon’s Texas ADR and Arbitration: Statutes and Commentary 

(with Rau & Shannon))(Shepard’s McGraw-Hill l994, West Group 3d ed. 2000). 

Complex Litigation: Cases and Materials on Advanced Civil Procedure (with 

Marcus)(West Pub. Co. l985, 4th ed. 2004) 

Processes of Dispute Resolution: The Role of Lawyers (with Murray & Rau)(Foundation 

Press 1989, 2d ed. 1996). 
43

Dispute Resolution: Materials for Continuing Legal Education (with Murray and 

Rau)(National Institute for Dispute Resolution l99l). 

Cases and Materials on Military Law: The Scope of Military Authority in a Democracy

(with Zillman & Blaustein)(Matthew Bender l978). 

Civil Procedure (Federal and Indiana) (Josephson’s Bar Review Center of America l977). 

 CHAPTERS IN BOOKS:

“Mediation Training: Career Opportunities and Skill Formation for Other Occupations,” 

20 ADR & The Law 69 (20th ed. 2006). 

“Sources and Bibliography for Alternative Dispute Resolution, in “Alternative Dispute 

Resolution Handbook 499 (State Bar of Texas 2003). 

“Class Actions,” in Oxford Companion to American Law 118 (2002). 

Volume 3 (Federal Rules 13 & 15), Moore’s Federal Practice (1997). 

“Applications of Dispute Resolution Processes in the Israeli-Palestinian Conflict,” in The 

Struggle for Peace: Israelis and Palestinians (ed. E. Fernea & M. Hocking l992) 

“Local Court Rules on ADR” and “ADR References,” in Handbook of Alternative 

Dispute Resolution, Chap 23, Appendix B (State Bar of Texas, A. Greenberg, ed.)(2d ed. 

l990). 

“In-Service Conscientious Objection,” in Selective Conscientious Objection: 

Accommodating Conscience and Security 117 (M. Noone, ed.)(Westview Press l989). 

“Texas Tort Claims Act” (Chap. 60), in Texas Torts and Remedies (H. Edgar & J. Sales, 

ed.)(Matthew Bender l987). 

“Military Law,” in Encyclopedia of the American Judicial System, Vol. l (McMillan Pub. 

Co. l987). 

“Contemporary Challenges to Traditional Limits on the Role of the Military in American 

Society,” in Rowe & Whelan, Military Intervention in Democratic Societies 216 (Croom 

Helm l985). 

“Responsiveness and Accountability in the Military,” in People Versus Government 

Power 226 (L. Rieselbach, ed.)(U. of Indiana Press l975). 

“Domestic Law and the Military Establishment,” in Modules in Security Studies (A. 

Williams & D. Tarr. ed.)(U. Press of Kansas l974). 

“Bertrand Russell and the Peace Movement: Liberal Consistency or Radical Change,” in 

Bertrand Russell’s Philosophy 253 (G. Nakhnikian, ed.)(Indiana U. Press l974). 

“Amnesty and the Military Offender,” in When Can I Come Home? A Debate on 

Amnesty for Exiles, Anti-War Prisoners and Others 92 (M. Polner, ed.)(Doubleday & Co. 

l972). 
44

“The Civilianization of Military Law,” in With Justice for Some 65 (B. Wasserstein & M. 

Green, ed.)(Beacon Press l97l). 

“Justice in the Military,” in Conscience and Command 21 (J. Finn, ed.)(Random House 

l97l). 

“Rights of Servicemen,” in The Rights of Americans 621 (N. Dorsen, ed.)(Random 

House Pantheon l97l). 

“Military Justice and Individual Liberty,” in A. Yarmolinsky, The Military 

Establishment: Its Impacts on American Society (A Twentieth Century Fund 

Study)(Harper & Row l97l). 

SELECTED ARTICLES

“Compensation under a Trust Fund Solution to Asbestos Claims: Is It Really Fair?,” 

(with Wallace) 34 The Brief (ABA TIPS Section)(2005). 

“Consumer Class Actions: Who Are the Real Winners?” (Godfrey Distinguished 

Professor Lecture), 56 Maine Law Review 223 (2004) 

 “Complex Litigation: Plagued by Concerns over Federalism, Jurisdiction, and Fairness” 

(Introduction to Symposium on Complex Litigation), 37 Akron Law Review 589 (2004). 

 “American Class Actions: Significant Features and Developing Alternatives in Foreign 

Legal Systems,” 215 Federal Rules Decisions 130 (2003). 

“Evolving Military Justice,” 67 Journal of Military History 999 (July 2003). 

“Courting Controversy: Class Action Practice in the United States,” 2 Legal Week Global 

(UK) 22 (April 2003). 

“Group Litigation Under Foreign Legal Systems: Variations and Alternatives to 

American Class Actions,” 52 DePaul Law Review 401 (2002). 

“The Disposition of Afgan War and Al Quaeda Prisoners,” Tulane Lawyer 8 (Fall/Winter 

2002). 

“Who, Where and How Should the Guantanamo Detainees Be Tried?,” New Orleans 

Times-Picayune, March 4, 2002. 

“Military Commissions Aren’t the Only Option,” New Orleans Times-Picayune, 

December 3, 2001. 

“Amendments to Rule 11 Have Cut Number of Sanction Motions,” (interview), 26 ABA 

Litigation News 8, July 2001. 

“Class Action Practice in the Gulf South,” 74 Tulane Law Review 1603 (2000). 

“Implications for the Future of Legal Education in Response to NAFTA and Growing 

Global Trade Relations,” 47 Louisiana Bar Journal 391 (2000). 

“Response to Professionalism,” 47 Louisiana Bar Journal 324 (2000). 
45

“The Evolution of American Civil Trial Process Towards Greater Congruence with 

Continental “Dossier Trial” Practice,” 7 Tulane J. of Int’l & Comparative Law 125 

(1999). 

“A Tribute to Professor Athanassios Yiannopoulos,” 73 Tulane Law Review 1017 

(1999). 

“From Loser Pays to Modified Offer of Judgment Rules: Reconciling Incentives to Settle 

with Access to Justice,” 76 Texas Law Review.1863 (1998). 

“Good Faith Participation in Mediation: Aspirational, Not Mandatory,” 4 Dispute 

Resolution Mag. (ABA Section of Dispute Resolution) 14 (Winter 1997). 

“Confidentiality in ADR Proceedings: Policy Issues Arising from the Texas Experience,” 

38 South Texas Law Review 541 (1997). 

“The Impact on Litigation Strategy of Integrating Alternative Dispute Resolution into the 

Pretrial Process, “ 15 Review of Litigation 503 (1996), reprinted, 168 Federal Rules 

Decisions 75 (1996). 

“Complex Litigation: Aggregating Related Cases for Unitary Disposition,” 30 

Comparative Law Review 57 (Institute of Comparative Law in Japan, Chuo University, 

Tokyo, 1996). 

“Antisuit Injunctions and Notice of Intervention and Preclusion: Complementary Devices 

to Prevent Duplicative Litigation,” in Symposium on the American Law Institute’s 

Complex Litigation Project, 1995 Brigham Young Law Review 925. 

“Standards of Professional Conduct in Alternative Dispute Resolution,” Symposium from 

AALS, 1995 Journal of Dispute Resolution 95. 

“Policy Issues for State Court ADR Reform,” Alternatives 142 (Nov. 1995). 

“Tradition and Innovation in International Arbitration Procedure” (with Rau), 30 Texas 

Int’l Law J. 89 (1995). 

“A Process Model and Agenda for Civil Justice Reforms in the States,” 46 Stanford Law 

Review, 1553 (July l994). 

“Managing Complex Litigation: Procedures and Strategies for Lawyers and Courts,” 57 

Texas Bar Journal l49 (Feb. l994)(Book Review). 

“Court-Mandated Alternative Dispute Resolution: What Form of Participation Should Be 

Required?” 46 S.M.U. Law Review 2079 (l993). 

“Judge Jerre Williams: A Worthy Academic Career,” 72 Texas Law Review ix (Nov. 

l993). 

“Aggregate Disposition of Related Cases: The Policy Issues,” l0 Review of Litigation 23l 

(l99l). 
46

“A Social Psychology of Citizens’ Obligations to Authority: A Review of Crimes of 

Obedience,” l7 American Journal of Criminal Law 287 (l990). 

“The Immigration Laws and the ‘Right to Hear’ Protected by Academic Freedom,” 66 

Texas Law Review l547 (l988). 

“Reshaping the Lawyer’s Skills for Court-Supervised Alternative Dispute Resolution,” 5l 

Texas Bar Journal 47 (l988). 

“The Role of Religion in School Curriculum and Textbooks,” 74 Academe l7 (l988). 

“Class Actions and Duplicative Litigation,” 62 Indiana Law Journal 507-559 

(Symposium on Class Actions)(l987). 

“Prisoners’ Rights” (Fifth Circuit Survey), l9 Tex. Tech Law Review 797 (l988), l8 Tex. 

Tech L. Rev. 655 (l987). 

“Implementing the New Preference for Broad Issues in Texas Special Issues Practice,” 4 

The Advocate 2 (Oct. l985). 

“Relationship Between Issues and Instructions in Texas Special Issues Practice,” Institute 

on Jury Submission (State Bar of Texas l985). 

“Restructuring the Trial Process in the Age of Complex Litigation,” 63 Texas Law 

Review 72l (l984). 

“The Role of the Judge in Discovery,” 3 Review of Litigation 89 (l982). 

“Federal Court Discovery in the 80’s - Making the Rules Work,” 2 Review of Litigation

9 (l98l), reprinted in 95 Federal Rules Decisions 245 (l982). 

“Evolution of the Laws of War,” ll0 USA Today 54 (May, l982). 

“Traditional and Developing Concepts of Governmental Liability,” Institute on Public 

Law Liability of Public Officials and Employees (State Bar of Texas l98l). 

“The Development, Discovery, and Use of Computer Support Systems in Achieving 

Efficiency in Litigation,” 79 Columbia Law Review 267 (l979). 

“Military Unions and the Soldier ‘Employee’,” Washington Post, March 4, l978, A.l7. 

“A Special Kind of Justice,” 84 Yale Law Journal 373 (l974). 

“Legal Inadequacies and Doctrinal Restraints in Controlling the Military,” 49 Indiana 

Law Journal 538 (l974). 

“After Sunningdale: Is Ireland on the Mend?,” The Nation 456 (April l3, l974). 

“Military Justice Without Military Control,” 82 Yale Law Journal l398 (l973). 

“The Military Courts and Servicemen’s First Amendment Rights,” 22 Hastings Law 

Journal 325 (l97l). 
47

“Congressional Proposals for Reform of Military Law,” l0 American Criminal Law 

Review 25 (l97l). 

New York Times Articles (Week in Review Section): 

“Exit Black: New Chance for Nixon to Push the Court to the Right,” Sept. l9, l97l, 

E.4. 

 “Critical Look at Military Prison System,” June 2l, l970, E.6. 

 “Military Justice is to Justice as Military Music is to Music,” (Book Review), 

 May 3, l970, BR.l. 

 “Duffy Case: Preview of the My Lai Trials?,” April 5, l970, E.2. 

 “My Lai: Army Blow the Lid on Its Own Cover-Up,” March 22, l970, E.l. 

 “Pretrial Jousting Over My Lai Massacre,” Feb. l, l970, E.3. 

 “My Lai: Some Knotty Legal Questions,” Dec. 7, l969, E.3. 

“The Civilianization of Military Law,” 22 Maine Law Review 3 (l970). 

“Judicial Review of Military Determinations and the Exhaustion of Remedies 

Requirement,” 55 Virginia Law Review 483 (l969), reprinted in 48 Military Law Review

9l (l970). 

“The Right to Representation by Out-of-State Attorneys in Civil Rights Cases,” 4 

Harvard Civil Rights-Civil Liberties Law Review 65 (Fall l968). 

“The Great Draft Debate, “ New Republic 36 (May l8, l968). 

“The Right to Competent Counsel in Special Courts Martial,” 54 American Bar Assoc. 

Journal 866 (Sept. l968). 

“Nevada Faces the End of the Casino Era,” Atlantic ll2 (Oct. l966). 

“The Use of Public Opinion Polls in Continuance and Venue Hearings,” 50 American 

Bar Association Journal 357 (April l964). 
48

RESOLUTION ADOPTED BY THE 

HOUSE OF DELEGATES 

OF THE 

AMERICAN BAR ASSOCIATION 

FEBRUARY 2005 

RESOLVED, That the American Bar Association recommends that states and 

territories establish by statute or regulation, standards for the operation of screening vans 

or other forms of mass screening for asbestos-related conditions. These standards should 

be enforced, as appropriate, by federal, state and territorial governmental agencies and 

judicial bodies; by the investigation and enforcement of bar professional ethics; and by 

the investigation and enforcement of medical societies’ ethical standards. The objective 

of screening standards should be to prevent medical screenings from being conducted 

inaccurately and being misused, but not to prevent legitimate monitoring of health. 

1. Such standards should require compliance with: 

a. Federal Food and Drug Administration and other local, territorial, state, and 

federal governmental laws and regulations governing the use of medical equipment and 

testing devices. 

b. Local, territorial, state, and federal laws and regulations. 

c. Professional standards for physicians and other qualified medical professionals 

concerning the conduct of medical examinations, screening tests (including X-rays and 

pulmonary function tests) and medical diagnoses such as those promulgated by the 

American Medical Association and the American Thoracic Society. 

d. Such standards should be technology-neutral and based on current medical 

technological advancements. 

2. The reading, evaluation and reporting of such tests should be performed by a 

physician or other medical professional qualified under professional and state licensing 

standards, recognizing that there may be multiple medical professionals carrying out 

certain functions in the chain from screening through diagnosis. 

3. The physician or other qualified and legally authorized medical professional 

rendering the diagnosis shall have examined the screened individual, either in person or 

through medically accepted telemedicine or electronic practices, following a complete 

history of all occupational exposures that might be relevant; and has considered the 

results of all diagnostic tests performed during the medical examination or screening, 

including but not limited to pulmonary function tests and X-rays; and has considered all 

other medical information concerning the patient relevant to the diagnosis that is 

available to such physician or qualified and legally authorized medical professional. 

 4. All pulmonary function test reports shall conform with any guidelines or 

standards adopted by such state or territory pursuant to paragraph 1.c above, and shall be 

accompanied by the original tracings, and all X-ray reports shall be accompanied by the 
49

original X-ray or X-rays, either in original form or as transmitted digitally or in a manner 

judged to be reliable by qualified medical technology experts. 

 5. All medical diagnoses shall be made in accordance with the applicable standard of 

diagnostic care, and such diagnoses must be communicated to the screened individual 

within a reasonable period of time by the physician or other qualified and legally 

authorized medical professional rendering the diagnosis. 
50

RESOLUTION ADOPTED BY THE 

HOUSE OF DELEGATES 

OF THE 

AMERICAN BAR ASSOCIATION 

AUGUST 2005 

RESOLVED, That the American Bar Association recommends that federal, state, 

and territorial courts without any existing Case Management Order governing asbestos 

litigation, or with an existing Case Management Order that has proven unworkable, 

utilize the Model Case Management Order, with referenced exhibits, dated August 2005. 
51

AMERICAN BAR ASSOCIATION 

TORT TRIAL & INSURANCE PRACTICE SECTION 

MODEL ASBESTOS PRE-TRIAL CASE MANAGEMENT ORDER

AUGUST 2005 

 

MODEL ASBESTOS PRE-TRIAL CASE MANAGEMENT ORDER

This Asbestos Pre-Trial Case Management Order is entered in conjunction with this 

Court’s Asbestos Inactive Docket Order dated _________. This Order sets forth the 

procedures to be followed when a plaintiff files an asbestos-related Complaint, whether 

or not said plaintiff previously has been registered on the Registry. This Order also 

governs certain aspects of discovery and pre-trial motions. 

This Order applies to all pending asbestos Complaints and to all asbestos 

Complaints filed after the date of this Order. 

As used herein, the term “plaintiff” also refers to plaintiff’s decedent, if applicable. 

IT IS HEREBY ORDERED as follows: 

1. Any Complaint alleging an asbestos-related injury must attach the following: 

A. A Preliminary Fact Sheet in the form attached hereto as Exhibit A, 

http://www.abanet.org/tips/atf/cmo/Exhibit A to CMO.pdf completed in 

full. 

B. A Physician’s Report signed by a pulmonologist, internist, occupational 

health physician, or pathologist which diagnoses one or more asbestosrelated disease(s). Said physician must be actively licensed to practice 

medicine and certified by the appropriate subspecialty board in his or her 

applicable subspecialty. The Physician’s Report must: 

i. Verify that the diagnosing doctor, or a medical professional 

employed by and under the direct supervision and control of the 

diagnosing doctor, has performed all examinations or tests referenced 

in the Report and conducted any referenced interviews of plaintiff or 

plaintiff’s representative. 

ii. Set forth a reliable history of exposure, as described in the “Diagnosis 

and Initial Management of Nonmalignant Disease Related to 

Asbestos” by the American Thoracic Society, Am. J. Respir. Crit. 

Care Med., Vol. 170, pp. 691-715, 2004. 

iii. Set forth a medical and smoking history that includes a review of the 

plaintiff’s relevant past and present medical problems. 

iv. Set forth all findings revealed by any hands-on physical examination 

of the plaintiff. 
52

v. Verify that an adequate latency has elapsed between plaintiff’s first 

exposure to asbestos and the time of diagnosis. 

vi. Verify that the doctor has diagnosed an asbestos-related disease to a 

reasonable degree of medical probability. A diagnosis of findings 

“consistent with” an asbestos-related disease is not sufficient under 

this Order. 

vii. Verify that any X-rays, CTs and/or Pulmonary Function Tests were 

administered in accordance with all applicable state health 

regulations and that any Pulmonary Function Tests were performed 

using equipment, methods of calibration and techniques that meet the 

criteria incorporated in the AMA Guides to the Evaluation of 

Permanent Impairment (5th Ed.) and reported as set forth in 20 CFR 

404, Subpt. P, App 1, Part (A), §3.00 (E) and (F), and the 

interpretative standards set forth in the Official Statement of the 

American Thoracic Society entitled “Lung Function Testing: 

Selection of Reference Values And Interpretative Strategies” as 

published in Am. Rev. Resp. Dis. 1991:144:1202-1218. 

viii. Attach copies of all reports interpreting Pulmonary Function Tests 

that have been administered (including flow volume loops), and all 

reports of X-ray and CT Scan reports, including B-reading forms 

when available. 

C. Authorizations in the form attached hereto as Exhibit B, 

http://www.abanet.org/tips/atf/cmo/Exhibit B to CMO.pdf executed by 

plaintiff or plaintiff’s representative, authorizing release of plaintiff’s 

social security, military, veterans, employment and medical records. 

D. Be accompanied by the current regular filing fee for each named plaintiff 

(after crediting any fee previously paid with plaintiff’s application to the 

Inactive Docket). 

2. Within thirty (30) days of the service of any Complaint hereunder, any 

Defendant may file an Objection to Complaint, which states any objections 

Defendant has as to whether the above requirements for filing an asbestosrelated complaint have been met. Plaintiff shall have the right to file a written 

response to the Objection within twenty (20) days after the date of the 

Objection. The Court may decide the issue on the papers so submitted, or 

schedule a hearing, in its discretion, and/or impose sanctions in accordance 

with applicable law if either side has filed a document under this paragraph 

without substantial justification. 

3. The Clerk shall create and maintain a public file, which shall contain Master 

Complaints and Master Answers (“Master Pleadings”). Attorneys representing 

parties in asbestos litigation may file a Master Complaint or Master Answer, 

and copies of such pleadings shall be served on all counsel who previously 

filed a Master Pleading. Thereafter, any party represented by counsel who has 

filed a Master Complaint or Master Answer may file and serve on any adverse 

party a Summary Pleading, and such Summary Pleading shall have the same 

force and effect as if the Master Pleading had been filed and served on the 

adverse party. A Summary Pleading filed pursuant to this General Order shall 

contain the following: 

i. The case caption, which shall include the names of the parties to the 

action, the case number, and the name(s) of the party(ies) on whose 

behalf the Summary Pleading is filed and against whom the Summary 

Pleading is asserted; 

ii. Notice that the Master Pleading is on file with the Clerk of the 

Superior Court and the date on which it was filed, that a copy of the 
53

Master Pleading and of this General Order may be obtained upon 

request from counsel filing the Summary Pleading, and that 

designated portions of the Master Pleading are incorporated by 

reference in the Summary Pleading. The Summary Pleading shall 

specify those claims or affirmative defenses contained in the Master 

Pleading, which are being asserted against the party being served. 

iii. Such case-specific information as may be necessary to satisfy 

applicable statutes, pleading requirements, and this Order. 

An amended Master Pleading shall not be deemed incorporated by reference into any 

previously filed Summary Pleading without further order of the court. This provision 

shall not limit the substantive rights of any party, nor limit the right of any party to 

challenge the sufficiency of any Master Pleading or Summary Pleading. 

4. Within sixty (60) days after filing a Complaint hereunder, plaintiff(s) shall 

A. Answer the Standard Interrogatories and Request for Documents attached 

to Exhibit C http://www.abanet.org/tips/atf/cmo/Exhibit C to CMO.pdf 

(sub-parts A (1-5) and B) hereto. Said answers shall be full and complete, 

and must be verified under penalty of perjury. 

B. Using the form attached hereto as Exhibit D, 

http://www.abanet.org/tips/atf/cmo/Exhibit D to CMO.pdf agree to deliver 

pathology in the parties’ possession (including attorneys and consultants) 

to Defendants’ Representative (defined below) within ten (10) days after 

said Representative is designated pursuant to paragraph 6, below, and 

noting whether plaintiff objects to destructive testing of said pathology. 

Any dispute over destructive testing of pathology will be resolved by the 

Court upon noticed motion. In the event there is no dispute, Defendants’ 

Representative shall return the pathology to plaintiff’s counsel within sixty 

(60) days of receipt. 

C. Using the form attached hereto as Exhibit E, 

http://www.abanet.org/tips/atf/cmo/Exhibit E to CMO.pdf offer plaintiff(s) 

for discovery depositions indicating each deponent’s availability on no 

less than three (3) dates (at least 30 and no more than ninety (90) days 

after the date of the offer). 

5. The court hereby adopts standard plaintiff interrogatories to defendants, 

attached to Exhibit C http://www.abanet.org/tips/atf/cmo/Exhibit C to 

CMO.pdf(subparts C (1-4)), to be answered by defendant under oath without 

objection except for the assertion of a claim of privilege or as provided below. 

A. Upon motion by any defendant made within seventy-five (75) days of the 

effective date of this order, the Court shall determine on a one-time basis 

the propriety of an objection by such defendant that providing answers to 

specific question(s) in the standard plaintiff interrogatories to defendants 

would impose on such defendant a particular burden which is not justified 

by the likelihood that such answers will provide or lead to the discovery of 

relevant and material evidence. When a new defendant is served in the 

litigation in this jurisdiction for the first time after the effective date of this 

order, that defendant shall have ninety (90) days following service of the 

complaint to move the court to review any claim of burden it may have on 

the same basis. 

B. Within one-hundred twenty (120) days of the effective date of this order, 

each defendant in any pending action served with a copy of this order shall 

serve upon all counsel who previously filed a Master Pleading its answers 

to the standard plaintiff interrogatories to defendants. These answers shall 

be deemed served in all pending cases, and thereafter it shall be deemed 

that the defendant has served the same answers in all other subsequently 
54

served cases. If at any time a defendant amends or provides further 

answers, in whole or in part, to the standard plaintiff interrogatories to 

defendants, it shall serve said amended and/or further answers on all 

counsel and said amended and/or further answers shall apply to all cases. 

C. The court hereby adopts plaintiffs’ standard case-specific interrogatories 

to defendants (attached to Exhibit C 

http://www.abanet.org/tips/atf/cmo/Exhibit C to CMO.pdf) and a notice of 

service of plaintiffs’ standard case-specific interrogatories to defendants 

(also attached to Exhibit C http://www.abanet.org/tips/atf/cmo/Exhibit C 

to CMO.pdf). Plaintiffs’ counsel may serve such Notice at any time after 

commencement of the action. Thereupon, unless excused from the 

obligation to answer by order of the Court, the defendant designated in the 

Notice shall be required to answer such interrogatories within sixty (60) 

days after service of the Notice, but no sooner than one-hundred twenty 

(120) days after service of the complaint upon that defendant. 

D. Nothing herein shall preclude any party from propounding additional nonduplicative discovery. 

E. On the annual anniversary of the date upon which it served its initial 

answers to Standard Plaintiff Interrogatories to Defendants, each 

defendant shall either (1) supplement its answers with information 

subsequently discovered, inadvertently omitted, or mistakenly stated in the 

initial interrogatory responses, or (2) serve a verified statement from 

defendant’s most knowledgeable agent(s), officer(s) or employee(s) 

stating that such individual(s) has reviewed defendant’s answers to such 

interrogatories and that the answers are still true and complete.” 

6. Defendants are required to cooperate with each other and with plaintiff’s 

counsel in order to coordinate the scheduling of depositions, testing of 

pathology materials, and scheduling of Defense Medical Examinations. Within 

fifteen (15) days after service of the materials specified in subpart 4, above, 

defendants shall notify plaintiffs’ counsel of the defense firm which shall act as 

Defendants’ Representative in said case, and plaintiffs’ counsel shall work with 

said Defendants’ Representative firm thereafter in connection with discovery, 

scheduling and pathology issues. If Defendants’ Representative’s firm 

subsequently ceases to represent any defendants in said case, the remaining 

defendants shall notify plaintiffs’ counsel within fifteen (15) days of a 

replacement firm as the Defendants’ Representative. The Court hereby 

recognizes the applicability of the joint defense privilege to work performed by 

Defendants’ Representative in this regard, and to communications among 

defendants concerning matters, which are the subject of this Order. 

7. Plaintiff’s depositions shall proceed as follows: 

A. The plaintiff’s deposition may be noticed only by the Defendants’ 

Representative or by the plaintiff. 

B. If the deposition is noticed by the Defendants’ Representative, defendants 

shall have 7 hours to depose the witness on the record, absent agreement 

of the parties or court order. 

C. If the plaintiff notices the deposition, the plaintiff may complete his or her 

direct testimony before cross-examination is conducted by defendants. If 

this procedure is used, the time for defendants’ cross-examination shall be 

either 7 hours on the record or three times the amount of time used by 

plaintiff to complete the direct examination, whichever is longer. 

Defendants are expected to allocate the available time among themselves 

and, in the event of inability to agree, shall make a timely motion for 

protective order before expiration of the time limit. 
55

D. In the event any defendant is served after completion of plaintiff’s 

deposition, such late-served defendant(s) may request that the Defendants’ 

Representative schedule and notice a further deposition of the plaintiff. 

Said deposition shall be limited to those matters not adequately covered in 

the initial deposition including liability issues pertaining to the newly 

served defendant. 

8. Cases governed by this Order may be challenged by expedited summary 

judgment motions, as follows: 

A. A motion for summary judgment on the ground that there is no evidence 

tending to show that the plaintiff was exposed to asbestos for which the 

defendant is responsible shall be deemed filed if a defendant timely files 

and serves a Notice of Intent to Request Expedited Summary Judgment. 

This procedure may be used solely with respect to product, site and 

contractor identification issues. The Notice of Intent to Request Expedited 

Summary Judgment need not be accompanied by any supporting papers 

except as required herein. 

B. A Notice of Intent to Request Expedited Summary Judgment may be 

served at any time after a trial date is set, or six months have elapsed since 

the commencement of the action, whichever occurs first, and no later than 

forty-five (45) days before the date set for Expedited Summary Judgment 

Hearing. Such Notice of Intent shall contain a certification by defendant’s 

counsel that: 

i. Such attorney has reviewed, or caused to be reviewed by another 

attorney or legal assistant working under the supervision of such 

attorney, all of the discovery, which has been exchanged between the 

plaintiff and the moving defendant in the action; 

ii. The moving defendant has provided plaintiff with all information in 

its possession, custody or control (other than expert discovery), 

which it is required to produce to plaintiff pursuant to proper 

discovery demand or court order in the action; and 

iii. Plaintiff’s responses to discovery in the action have not identified any 

competent evidence tending to show exposure to asbestos for which 

the defendant is responsible. 

C. Not later than fifteen (15) days before the hearing date, plaintiff shall file 

and serve a Response establishing that there is a triable issue of fact as to 

whether the plaintiff was exposed to asbestos for which the defendant is 

responsible. In the event that plaintiff fails timely to file a Response to a 

defendant’s Notice of Intent to Request Expedited Summary Judgment, 

the action shall be dismissed without prejudice. 

D. Not less than five (5) days before the hearing date, the moving defendant 

may file and serve a Reply to the plaintiff’s Response to Notice of Intent 

to Request Expedited Summary Judgment. 

E. The Court shall have the discretion to make a ruling based upon the 

submitted papers and without the need of a hearing, and in its discretion, 

impose sanctions in accordance with applicable law if either side has filed 

a document under this section without substantial justification. 

F. Nothing herein shall preclude any party from bringing a motion for 

summary judgment on any ground, in full compliance with the procedures 

and time limitations generally applicable to civil actions. 
56

EXHIBIT E 

TO PROTOTYPE ASBESTOR PRE-TRIAL 

CASE MANAGEMENT ORDER 

(See order dated ______________) 

REPORT 

 It is hard to see or hear the word “Asbestos” without the word “Crisis”. In this 

context, numbers abound. $145 Billion proposed for a federal trust fund, 600,000 

lawsuits filed, 10 to 20 million people exposed in industrial settings, 30,000 to 50,000 

new lawsuits filed a year and scores of bankruptcies. A single case may have thousands 

of plaintiffs and hundreds of defendants with a settlement value of $600,000,000.00. 

As a result, the media has been focused on the efforts of the asbestos stakeholders to 

resolve their differences and secure a federal solution to a problem besetting many state 

and territorial courts. A sample of that media attention has been included in this report so 

you may understand why the stakeholders represented on the TIPS Asbestos Task Force 

are not optimistic about a federal solution emerging, especially as long as the federal 

solution does not address stakeholder uncertainties with federal guarantees. 

Recognizing that there was little that the TIPS Asbestos Task Force could add to the 

negotiations over the amount and allocation of contributions, the TIPS Asbestos Task 

Force has spent the last twenty-four months developing a trilogy of recommendations to 

control the flood of claims that have and are inundating our courts. These 

recommendations provide a Model Case Management Order and extensive standard 

discovery to address claims already filed and a pair of recommendations approved by the 

HOD at the 2005 MYM to stem the filing of new claims with the courts. The first 

approved Recommendation addressed the use and “abuse” of screening vans, a critical 

factor in producing thousands of non-malignant and non-disabled plaintiffs for a single 

case filing. 

The second approved Recommendation offered a Model Statute of Limitations 

governing the accrual of actions for injury, illness or wrongful death based upon exposure 

to asbestos, to address the fear and uncertainty surrounding the running of a statute of 

limitations that may or may not have been triggered by the information communicated to 

a person, typically after an examination in a screening van, where there is no clinical 

finding other than an X-ray “consistent with” an asbestos related disease. 

Case Management Orders 

In an effort to address the large number of asbestos cases filed in their respective 

jurisdictions, many courts have issued case management orders (“CMO”) setting out 

detailed schedules and procedures for handling such matters as docketing, discovery, 

motions, case priorities, trial settings, settlement negotiations, and trial or disposition of 

asbestos cases. Many of these CMOs have led to the efficient and fair handling of 

asbestos litigation. On the other hand, there exist jurisdictions in which there are no 

CMOs, competing CMOs within a jurisdiction, outdated CMOs, or simply CMOs that for 

one reason or another no longer function as originally intended. The Asbestos Task Force 

of the Tort Trial & Insurance Practice Section (“TIPS”) believes that the existing 

litigation system can be made more efficient and fairer by the promulgation of and 

adherence to a comprehensive model CMO. 

 The TIPS Asbestos Task Force examined a large number of pre-trial orders and 

CMOs, from both federal and state courts and has attempted to distill the best features of 

these orders into a model CMO. The TIPS Asbestos Task Force does not intend this to be 

a replacement for existing CMOs that have been developed in various jurisdictions 

through the input of the courts and counsel, and which have proven effective. Rather, the 

goal is to adopt a model CMO that can be used to more effectively and fairly administer 
57

asbestos litigation in those jurisdictions that have not developed a CMO or in those 

jurisdictions in which an existing CMO no longer appears to be effective. TIPS submits 

this model CMO as suggested guidance in such jurisdictions. It is a resource designed by 

representatives of the plaintiff and defense bar and company defendants and their insurers 

to facilitate the management of asbestos litigation with the best practices drawn from 

various jurisdictions across the country. 

 Furthermore, the TIPS Asbestos Task Force also encourages the use of standard 

discovery requests by both plaintiffs and defendants, as envisioned in the model CMO, to 

expedite the timely discovery of the basic and necessary information for the assessment 

and handling of the asbestos case. Proposed standard discovery requests are referenced in 

the model CMO (see http://www.abanet.org/tips/atf/cmo/cmo_home.htm). While the 

TIPS Asbestos Task Force believes that these discovery requests will be effective, it is 

anticipated that individual jurisdictions may modify the requests based upon the 

jurisdiction’s statutes, rules, procedures, and practices. The Exhibits to the CMO and the 

standard discovery requests are voluminous (almost 200 pages): 

Case Specific Interrogatories to All Defendants - 

http://www.abanet.org/tips/atf/cmo/Case Specific Interrogatories to All Defendants.pdf 

Case Specific Interrogatories to Friction Defendants - 

http://www.abanet.org/tips/atf/cmo/Case Specific Interrogatories to Friction 

Defendants.pdf 

Friction Interrogatories - http://www.abanet.org/tips/atf/cmo/Friction Interrogatories.pdf 

Heir, Legal Rep Interrogatories - http://www.abanet.org/tips/atf/cmo/Heir, Legal Rep 

Interrogatories.pdf 

Loss of Consortium Interrogatories - http://www.abanet.org/tips/atf/cmo/Loss of 

Consortium Interrogatories.pdf 

Notice of Service - http://www.abanet.org/tips/atf/cmo/Notice of Service.pdf 

Personal Injury Interrogatory - http://www.abanet.org/tips/atf/cmo/Personal Injury 

Interrogatory.pdf 

Request for Production of Documents - http://www.abanet.org/tips/atf/cmo/Request for 

Production of Documents.pdf 

Standard Interrogatories to All Defendants - http://www.abanet.org/tips/atf/cmo/Standard 

Interrogatories to All Defendants.pdf 

Standard Interrogatories to Friction Defendants -

http://www.abanet.org/tips/atf/cmo/Standard Interrogatories to Friction Defendants.pdf 

Wrongful Death Interrogatories - http://www.abanet.org/tips/atf/cmo/Wrongful Death 

Interrogatories.pdf 

Exhibit A to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit A to CMO.pdf 

Exhibit B to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit B to CMO.pdf 

Exhibit C to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit C to CMO.pdf 

Exhibit D to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit D to CMO.pdf 

Exhibit E to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit E to CMO.pdf 

and can be reviewed on the ABA website at: 
58

http://www.abanet.org/tips/atf/cmo/cmo_home.htm 

 After a review of the case management orders and standard discovery requests 

adopted by various jurisdictions and a determination that there are jurisdictions without 

case management orders to control asbestos litigation or effective case management 

orders, it is clear that there remains an unmet need. The model CMO is intended to 

address this need. Adoption of the model CMO by the ABA will go far in accomplishing 

the goal of providing the courts with the best practices of various jurisdictions used to 

effectively manage asbestos litigation. 

Respectfully submitted 

James K. Carroll, Chair 

Tort Trial and Insurance Practice Section 

August 2005 

GENERAL INFORMATION FORM

Submitting Entity: Tort Trial & Insurance Practice Section 

 

Submitted By: James K. Carroll, Chair 

1. Summary of Recommendation(s). 

The Association recommends that federal, state, and territorial courts without any 

existing Case Management Order governing asbestos litigation, or with an existing 

Case Management Order that has proven unworkable, adopt the Model Case 

Management Order dated August 2005, designed by representatives of the plaintiff 

and defense bar and company defendants and their insurers to facilitate the 

management of asbestos litigation with the best practices drawn from various 

jurisdictions across the country. 

2. Approval by Submitting Entity. 

Approved by the Council of the Tort Trial & Insurance Practice Section on 

December 17, 2004. 

3. Has this or a similar recommendation been submitted to the House or Board 

previously?

 No 

4. What existing Association policies are relevant to this recommendation and how 

would they be affected by its adoption?

The medical criteria for asbestos claims adopted by the Association at the 2003 

MYM as predicates for filing asbestos related claims would be complimented by the 

case management orders in those jurisdictions adopting both. 
59

5. What urgency exists which requires action at this meeting of the House?

The 600,000 asbestos claim filings have significantly burdened, delayed and 

disrupted the operations of State, Federal and Territorial courts throughout the 

country. The resolution proposes a means for courts to gain control of their dockets 

and address the claims of the disabled claimants or their families on a priority basis, 

allowing the claims of the non-disabled or non-malignant cases to wait until 

disability or malignancy emerges. The case management orders (“CMO”) set out 

detailed schedules and procedures for handling such matters as docketing, discovery, 

motions, case priorities, trial settings, settlement negotiations, and trial or disposition 

of asbestos cases. These lead to the efficient and fair handling of asbestos litigation 

and make additional judicial resources available for other cases. 

 

The stakeholders are in accord that these changes are needed as soon as possible for 

the benefit of both the asbestos related claims of the disabled or those with 

malignancies and all other non-asbestos related claims. 

6. Status of Legislation. (If applicable.) 

 None 

7. Cost to the Association. (Both direct and indirect costs.) 

 None, except the indirect cost of any lobbying efforts by the Association 

. 

8. Disclosure of Interest. (If applicable.) 

The TIPS Asbestos Task Force is composed of members representing the various 

stakeholders in the discussion and negotiation of the federal solution to the asbestos 

crisis, including members who have participated directly and indirectly in the 

drafting of bills and testified before Congress. They represent diverse interests in the 

claims settlement crisis including general counsel and staff of insurance trade 

associations, attorneys for claimants, representative of the AFL-CIO, attorneys for 

defendants, and staff counsel. The members of the TIPS Council and leadership also 

represent diverse interests in the asbestos claims crisis as general counsel and staff 

attorneys of insurance companies and trade associations, attorneys for claimants, 

attorneys for defendants, and staff counsel. 

9. Referrals. 

Simultaneously with this submission, referral is being made to: All Sections and 

Divisions 

10. Contact Person. (Prior to the meeting.) 

 Hervey P. Levin 

 6918 Blue Mesa Drive, Suite 115 

 Dallas, Texas 75252 

 (972) 733-3242 

 (972) 733-3269 (Fax) 

 hervey@airmail.net 
60

11. Contact Person. (Who will present the report to the House.) 

 Hervey P. Levin 

 6918 Blue Mesa Drive, Suite 115 

 Dallas, Texas 75252 

 (972) 733-3242 

 (972) 733-3269 (Fax) 

 hervey@airmail.net 

12. Links to Case Management Order exhibits; 

Exhibit A to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit A to CMO.pdf 

Exhibit B to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit B to CMO.pdf 

Exhibit C to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit C to CMO.pdf 

Exhibit D to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit D to CMO.pdf 

Exhibit E to CMO - http://www.abanet.org/tips/atf/cmo/Exhibit E to CMO.pdf 

13. Exhibit C Discovery Request; 

 http://www.abanet.org/tips/atf/cmo/cmo_home.htm 
61

RESOLUTION ADOPTED BY THE 

HOUSE OF DELEGATES 

OF THE 

AMERICAN BAR ASSOCIATION 

FEBRUARY 2005 

 RESOLVED, That the American Bar Association recommends that the states and 

territories adopt the Model Statute of Limitations for Asbestos dated February 2005, 

governing the accrual of actions for injury, illness or wrongful death based upon exposure 

to asbestos. 

FURTHER RESOLVED, That the Model Statute of Limitations for Asbestos is a 

resource designed by representatives of the plaintiff and defense bar and company 

defendants to facilitate the management of asbestos litigation with the best practices 

drawn from various jurisdictions across the country. 
62

EXHIBIT E 

TO PROTOTYPE ASBESTOR PRE-TRIAL 

CASE MANAGEMENT ORDER 

(See order dated ______________) 

AMERICAN BAR ASSOCIATION 

TORT TRIAL & INSURANCE PRACTICE SECTION 

MODEL STATUTE OF LIMITATIONS

FOR ASBESTOS

(FEBRUARY 2005)

Exposure to Asbestos; Actions for injury, illness or wrongful death

(a) In any civil action for injury or illness based upon exposure to asbestos, the time for 

the commencement of the action shall be the later of the following: 

(1) Within two years after the date the plaintiff first suffered disability. 

(2) Within two years after the date the plaintiff either knew, or through the exercise of 

reasonable diligence should have known, that such disability was caused or contributed to 

by such exposure. 

(b) “Disability” as used in subdivision (a) means the loss of time from work, as a result of 

such exposure, which precludes the performance of the employee’s regular occupation, or 

if the plaintiff is not working, meeting the medical standards in the “ABA Standards for 

Non-Malignant Asbestos-Related Disease Claims” (dated February 2003). 

(c) In an action for the wrongful death of any plaintiff’s decedent, based upon exposure to 

asbestos, the time for commencement of an action shall be the later of the following: 

(1) Within two years from the date of the death of the plaintiff’s decedent. 

(2) Within two years from the date the plaintiff first knew, or through the exercise of 

reasonable diligence should have known, that the death was caused or contributed to by 

such exposure. 

 MR. WHITFIELD. Thank you, Professor Sherman. 

 And at this time, Dr. Welch, we will recognize you for five minutes 

for your opening statement. 

DR. WELCH. Thank you, Mr. Chairman and members of the 

committee, for inviting me to be here today. 

 I have heard a lot. People have mentioned a lot of the things I am 

going to touch on and I will try to be brief. I am a physician, as you 

know, and I have been in occupational medicine practice for over 25 

years, a lot of seeing people with asbestos related disease and some with 

silica. I have run a nationwide medical screening program for sheet 
63

metal workers for 20 years. We have examined over 18,000 people and I 

want to describe to you the basis for such a screening program and some 

of the parameters that really should exist for such screening programs. 

 Before I do, I want to reinforce what other people have said here 

though. There is excess exposure to silica going on. In the construction 

industry, where I have the most experience, more than 50 percent of the 

standards in 1999 exceeded the OSHA standard for example. And we do 

not really know how many cases of silicosis there are, but Dr. Rosenman 

at Michigan State did a really elegant analysis and estimated as many as 

7,000 new cases of silicosis each year in the United States. So we do 

need to focus attention on ongoing exposures and existing cases finding 

those people through appropriate screening and not, in a way, throw the 

baby out with the bath water. It may be that these 10,000 cases do not 

have silicosis, but there are probably 10,000 other people who do 

someplace else. So we need to not mix them up. So in terms of medical 

screening, the principal medical screening is to find previously 

unrecognized disease so that you can do something about it. 

Mammography is a perfect example to find breast cancer early, save 

lives, colon cancer screening. So there is a lot of screening that goes on 

in the medical arena for which there are standards and guidelines, criteria 

that the test has to be of a benefit that finding the disease early is a 

benefit. This is written in a lot of medical textbooks so I will not repeat 

it all for you, although some of it is outlined in my testimony. 

 And then occupational screening programs use those same 

principles, but also look at the whole population of people. So you can 

do a screening program if by identifying cases you are going to be able to 

identify occupations that have excess exposures, and identify workplaces 

where you need remediation. And then so let us apply those to silicosis 

in particular; why screen for silicosis? I want to point out that people 

who have silicosis are at risk for several other diseases. They are very 

high risk for getting tuberculosis and someone with silicosis and 

unrecognized tuberculosis could be a community source for tuberculosis, 

so finding those cases is very important. They need medical treatment 

and you can help by identifying the cases. You can help the treating 

doctors separate silicosis from congestive heart failure, or what might be 

the other diseases that the person has, plus identifying people that really 

need attention for smoking cessation. 

 So there are a lot of benefits that occur to the individual if you screen 

and diagnose that. So let me talk a little about these guiding principles. I 

wanted to point out that there is a national organization called the 

Association of Occupational Environmental Clinics that includes at least 

50 academic occupational health clinics around the country. And in 

2000, they set forth a set of criteria to address the question of asbestos 
64

screening and as Professor Sherman pointed out, the issues that are raised 

here and by Judge Jack’s opinion have been issues that people have been 

aware of through asbestos screening as well. These questions are not 

new questions to me and I do not think they are new to Professor 

Sherman either. 

 So what are the principles? That screening on the basis of chest Xray and work history alone identifies possible cases. It is a screening but 

does not provide enough information to make a firm diagnosis. And that 

is the principle in general to do a mammogram, you find something, then 

you are going to end up doing a biopsy. The mammogram does not 

make the diagnosis, so a screening is not a diagnostic test and there has 

been some mixing up of that in this discussion I think, so screening 

programs have to be followed with more detailed evaluation and then 

referral for appropriate medical care. 

 An appropriate screening program for lung disease is X-ray, 

exposure history, symptom review, spirometry, and physical 

examination. The screening programs have to include actions like 

smoking cessation programs, evaluation for cancers, and things in this 

case like tuberculosis. And very importantly, there has to be timely 

physician disclosure of the results to the patient, appropriate medical 

follow up, and patient education. There is no point in diagnosing or 

finding early signs of silicosis if you do not do anything about it. And 

that is, I mean, that is so basic, I do not really need to say it and I think 

you probably all agree with that. But so emission of those factors that 

look at what you do after you find that early diagnosis, that is why we do 

screening and so that is really important. And screening programs that 

do not include the notification, timely notification, follow up and 

investigation of how the exposures are occurring really do not meet the 

standards of care and ethical practice and occupational health. 

 There is a lot more in my testimony and I would be happy to answer 

any other questions that you have. 

 [The prepared statement of Laura Welch, M.D., follows:] 

PREPARED STATEMENT OF LAURA WELCH, M.D., MEDICAL DIRECTOR, CENTER TO 

PROTECT WORKERS RIGHTS

Summary of testimony by Laura S. Welch, MD, FACP, FACOEM on March 8, 2006 

Medical screening is the search for previously unrecognized disease, when finding 

the disease can lead to a benefit. Screening for silicosis or asbestosis has clear benefits, 

including (1) identification of occupations/industries where excess exposure occurs, so 

that exposure reduction can occur; (2) implementation of targeted smoking cessation 

programs; and (3) identification of individuals at heightened risk from other occupational 

exposures. 

In 2000, the Association of Occupational and Environmental Clinics (AOEC) 

developed criteria for medical screening programs for asbestos; these principles apply 
65

equally as well to screening for silicosis. Omission of these important preventive aspects 

in the clinical assessment of asbestos-related lung disease falls short of the standard of 

care and ethical practice in occupational health. 

 (1) Screening on the basis of chest X-ray and work history alone identifies possible 

cases but does not by itself provide sufficient information to make a firm diagnosis, to 

assess impairment or to guide patient management. 

(2) An appropriate screening program for asbestos-related lung disease includes 

properly chosen and interpreted chest films, reviewed within one week of screening; a 

complete exposure history; symptom review; standardized spirometry; and physical 

examination. 

(3) Programs should also include smoking cessation interventions, evaluation for 

other malignancies and evaluation for immunization against pneumococcal pneumonia. 

(4)Timely physician disclosure of results to the patient, appropriate medical 

follow-up and patient education are essential. 

Qualifications: I am a physician with board certification in both Occupational and 

Environmental Medicine and Internal Medicine. I received my medical degree from the 

State University of New York at Stony Brook, and have held faculty positions at the 

Schools of Medicine at Albert Einstein, Yale and George Washington Universities. 

Details of my education and training are set for in my curriculum vitae 

I have extensive experience in diagnosis and treatment of asbestos-related diseases 

and other occupational lung diseases. I have been in occupational medicine practice for 

over 20 years, and a substantial part of my practice has always been devoted to 

examination of workers exposed to respiratory hazards. 

In addition, I have many years of experience in medical surveillance programs for 

asbestos. Since 1987 I have been the medical advisor to the Sheet Metal Occupational 

Health Institute Trust, a joint labor-management organization within the sheet metal 

industry established to provide medical examinations for sheet metal workers exposed to 

asbestos and other respiratory hazards. To date, SMOHIT has provided medical 

examinations to over 30,000 sheet metal workers, and is now the largest epidemiological 

database of asbestos-exposed workers in the country. I also developed similar medical 

screening programs for the Laborers National Health and Safety Fund and other 

construction trades, in conjunction with the Occupational Health Foundation. I currently 

serve as medical director for a Department of Energy-funded medical screening program 

to provide medical examinations for former construction workers at a number of former 

atomic weapons production facilities. In each of these programs I have designed 

programs to detect asbestos-related disease, and designed algorithms for the examining 

physicians to use in interpretation of the results. I have been active in efforts to improve 

validity and reliability of X-ray reading to detect asbestos related disease in the United 

States; this work included publication of a paper on variability between readers’ 

classification of X-rays using the International Labour Organization Guide to 

Classification of Pneumoconiosis, based on an analysis of results from these screening 

programs. 

I currently am medical director at The Center to Protect Workers Rights, a research 

institute devoted to improving health and safety in the construction industry. Because of 

my expertise in medical programs for asbestos-exposed workers, I participated in a 

working group with representatives from labor, industry, and insurance companies to 

develop medical criteria for a bill to establish a national trust fund for compensation of 

asbestos related disease in the United States. I have also testified at hearings held by the 

Senate Judiciary Committee, at the committee’s request, on various aspects of asbestosrelated disease. 
66

Attached is copy of my current curriculum vitae, which sets forth my education, 

training, professional affiliations, research activities and publications. I am testifying 

here today as an individual, and not on behalf of any group or organization. 

Purpose of medical screening 

Medical screening is the search for previously unrecognized disease, when finding 

the disease can lead to a benefit. Mammography is a well-accepted screening test, for 

example, since it has been shown to improve life expectancy for breast cancer in those for 

whom a cancer is found early with screening; the same is true for colon cancer screening, 

skin cancer screening, and others. Occupational screening programs are designed to 

detect work-related disease at an early stage, when treatment or removal from exposure 

can improve the outcome of that disease. 

Screening is only one of the important steps in prevention of occupational disease. 

The first step, the primary prevention, is reduction or elimination of hazardous exposures. 

The second step, when hazardous exposures have not been eliminated, is screening; this 

is called secondary prevention. Tertiary prevention is essentially medical care and 

rehabilitation of disease, when it cannot be reversed after diagnosis. 

Some key principles should underlie all medical screening programs: 

3⁄4 The tests used should be selective, and chosen to identify a specific disease. 

3⁄4 There must be some effective action that can be taken if the screening test is 

positive, such as removal from exposure or medical treatment. In the 

occupational setting, screening may benefit a group of workers by detection of 

health effects of hazardous exposures, the benefit need not accrue only the 

worker being screened in this context. 

3⁄4 Adequate follow-up is critical, and further diagnostic tests must be available, 

accessible, and acceptable to the individual screened. In the occupational 

setting, follow-up also entails action to reduce or eliminate the hazard 

3⁄4 Individuals who have been screened should receive test reports and 

interpretation of those results. 

3⁄4 The screening tests used should have good reliability and validity. Reliability is 

a measure of the consistency of the test in repeated use. Validity is the ability 

of the test to identify correctly which individuals have the disease and which do 

not. 

3⁄4 The benefits of the screening program should outweigh the costs 

Asbestos and silica related disease 

 

Silicosis is still an important occupational lung disease. Rosenman recently estimated 

that there are between 3600 and 7300 newly recognized cases a year of silicosis in the 

United States 1

. At least 1.7 million U.S. workers are potentially exposed to respirable 

crystalline silica 2

. Hazardous exposures to silica, at levels likely to result in disease, 

continue to occur in a range of industries and occupations in the United States. 

It is also important to remember that thousands of workers have had, and will still 

develop, asbestos-related disease. In this country, from 1940 to 1979, at least 27.5 

million workers were occupationally exposed to asbestos in shipyards, manufacturing 

operations, construction work and a wide range of other industries and occupations; 18.8 

 

1

 Rosenman K, Reilly MJ, and Henneberger PK. 2003 Estimating The Total Number Of NewlyRecognized Silicosis Cases In The United States. Am J Ind Med 44:141-147 2

 DHHS/CDC/NIOSH. Health Effects of Occupational Exposure to Respirable Silica. 

DHHS(NIOSH) publication # 2002-129 Cincinnati, OH 
67

million of these had high levels of exposure3. In 1982 William Nicholson at Mt. Sinai 

projected that the occupational exposures that occurred between 1940 and 1979 would 

result in 8,200 – 9,700 asbestos related cancer deaths annually, peaking in 2000, and then 

declining but remaining substantial for another 3 decades. Overall, the Nicholson study 

projected that nearly 500,000 workers would die from asbestos related cancers between 

1967 and 2030; deaths from asbestosis are above and beyond this number. Because of 

the long lag between exposure to asbestos and the development of an asbestos related 

cancer or another asbestos disease, the asbestos disease epidemic is only now reaching a 

peak, and will be with us for decades to come. 

Role of screening in asbestos-related and silica-related disease 

Screening for asbestosis or silicosis has several clear public health and medical 

benefits: 

3⁄4 Identification of occupations and industries where excess exposure still occurs, 

so that exposure reduction can occur 

3⁄4 Implementation of smoking cessation programs. Evidence shows that smoking 

cessation programs that are integrated with assessment of toxic exposures at 

work are more effective than smoking cessation programs alone 4

3⁄4 Identification of individuals at heightened risk from other occupational 

exposures. For example, workers with significant lung impairment from 

asbestosis or silicosis should not be exposed to other occupational agents that 

will add injury to that lung disease. 

Elements of a good occupational lung disease screening program 

In 2000, the Association of Occupational and Environmental Clinics (AOEC) 

developed a set of criteria for medical screening programs for asbestos; the policy in 

reproduced here in its entirety. These principles apply as well to screening for silicosis. 

AOEC is a leading organization in the field of occupational medicine. 

The Association of Occupational and Environmental Clinics 

Policy Statement on Asbestos Screening 

The Association of Occupational and Environmental Clinics is concerned that 

medically inadequate screening tests are being conducted to identify cases of 

asbestos-related disease for legal action. These tests do not conform to the necessary 

standards for screening programs conducted for patient care and protection. Screening 

is only conducted as a preliminary step in determining the presence of asbestos-related 

disease. AOEC therefore supports the following statement: 

Screening on the basis of chest X-ray and work history alone identifies possible 

cases but does not by itself provide sufficient information to make a firm diagnosis, to 

assess impairment or to guide patient management. 

An appropriate screening program for asbestos-related lung disease includes 

properly chosen and interpreted chest films, reviewed within one week of screening; a 

 

3

 Nicholson WJ, Perkel G, Selikoff IJ. 1982. Occupational exposure to asbestos: population at risk 

and projected mortality -- 1980-2003. Am J Ind Med 3:259-311. Mr. Nicholson worked with Irving 

Selikoff, MD at the Mt. Sinai School of Medicine 

4

 Sorensen G. 2001 Worksite tobacco control programs: the role of occupational health. Respir 

Physiol. 2001 Oct;128(1):89-102; Sorensen G, Barbeau E, Hunt MK, Emmons K. 2004 Reducing 

social disparities in tobacco use: a social-contextual model for reducing tobacco use among bluecollar workers, Am J Public Health. Feb;94(2):230-9.
68

complete exposure history; symptom review; standardized spirometry; and physical 

examination. 

Programs should also include smoking cessation interventions, evaluation for other 

malignancies and evaluation for immunization against pneumococcal pneumonia. 

Timely physician disclosure of results to the patient, appropriate medical follow-up 

and patient education are essential. 

Omission of these important preventive aspects in the clinical assessment of 

asbestos-related lung disease falls short of the standard of care and ethical practice in 

occupational health. 

 

Who provides asbestos screening for exposed workers? 

Given the clear benefits of screening exposed workers for asbestos and silica-related 

disease, such programs should be available. Regular monitoring of workers with 

significant exposure to asbestos was recommended by the American Thoracic Society 

(ATS) in its recent statement on diagnosis and initial management of diseases related to 

asbestos. 5

 However, there has been no public health infrastructure, and no employermandated programs, to provide such screening. The Occupational Safety and Health 

Administration does require medical monitoring of workers who are exposed to asbestos, 

but this rule does not require monitoring after the worker leaves the place of employment 

where exposure occurred. Since asbestosis takes at least 20 years after first exposure to 

develop, screening programs should be also be directed at former employees. (The U.S. 

Navy does include formerly exposed workers in its medical surveillance program for 

asbestos, based on a recommendation from the examining doctor.) 

Some construction unions, in conjunction with employers, have developed programs 

for their members; these programs reach a very small proportion of the workers at risk. 

The largest such program in run by the Sheet Metal Occupational Health Institute Trust, 

which has provided medical examinations to over 20,000 sheet metal workers since 1998. 

This program follows the guidelines for screening programs outlined here, and can serve 

as a model for future programs 6

. In addition to finding cases of asbestos-related disease, 

this program has been effective in reducing exposures to sheet metal workers, and in 

reducing smoking in the group screened. 

In recognition of the lack of medical screening services for former workers, the U.S. 

Department of Energy initiated a medical screening program for former workers from the 

atomic weapons complex 7

. Universities and other public health organizations provide 

medical examinations to detect health effects of remote exposure, again following the 

guidelines for screening programs described above. 

As noted above, Nicholson estimated there were 18.8 million U.S. workers with 

high exposures to asbestos before 1982; many of these workers are still alive and could 

benefit from screening. These workers have seen co-workers and even family members 

die of asbestos-related diseases, and so they have taken opportunities afforded them to be 

screened for disease; anyone would. The challenge for those of us in public health is to 

assure that these programs meet the standards set by AOEC, ATS and other 

organizations. 

 

5

 American Thoracic Society Statement on Diagnosis and initial management of nonmalignant 

diseases related to asbestos. 2004. Am J Respir Crit Care Med 170:691-715 6

 Welch LS, Michaels D, and Zoloth S. Asbestos-Related Disease among Sheet Metal Workers. 

American Journal of Industrial Medicine 25:635-48, 1994 

7

 Dement J, Welch, L, Bingham E, Cameron B, Rice C, Quinn P, Ringen K. Surveillance Of 

Respiratory Diseases Among Construction And Trade Workers At Department Of Energy Nuclear 

Sites. Am J Ind Med. 2003 Jun;43(6):559-73
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 MR. WHITFIELD. Thank you very much for your testimony. We 

appreciate, as I said earlier, your being with us today. 

 And Dr. Welch, you are a physician, you are an expert on mass 

screenings, and I am assuming you are familiar with the decision 

rendered by Judge Jack in Texas in the case we are discussing today. 

What is it that bothers you the most about this screening process used in 

that particular case? 

 DR. WELCH. You know, when I give an opinion certainly under oath 

on anything, I actually like to have real information, and mostly what I 

know about that case is, in my mind, almost hearsay. It is somebody 

else’s opinion on something else so I-- 

 MR. WHITFIELD. Have you read her decision? 

 DR. WELCH. I have read her decision. And I actually think that she 

makes a very good case, her decision. 

 MR. WHITFIELD. But based on the decision that you read, assuming 

that the information in there is correct as she said, what is it about the 

screening process that would cause you the most concern? 

 DR. WELCH. It is my understanding that that timely notification to 

the individuals screened and assuring that there is the opportunity for 

ongoing medical care that just was not part of these screenings. Now if 

someone demonstrated to me that it was, I would certainly feel more 
99

comfortable, but the discussion and what came through in her opinion 

was that the information went back to the attorney. And so if there was 

silicosis even if there was a cancer, the screening program or the B 

reader or whomever would notify the attorney. We have not heard any 

testimony--I was not aware of any of what the attorney did with that, 

how long it took for the worker to find out, and what discussion went on 

with the worker about what to do. 

 MR. WHITFIELD. So the purpose of screening is to give you advance 

warning so that you can take the steps to receive the medical procedures 

that you need to address that and in this case they were determining that 

this is a person who may have silicosis but nothing was done about it? 

 DR. WELCH. That is my opinion. We may hear different testimony 

here today or from the-- 

 MR. WHITFIELD. Now if that is the case, that would be a real 

violation of medical ethics, would you not say? 

 DR. WELCH. Right, it is a screening program, but I would not put the 

word medical screening program in there. 

 MR. WHITFIELD. Right. 

 DR. WELCH. Because it is not providing any medical evaluation and 

treatment after the screening. 

 MR. WHITFIELD. Mr. Sherman, why couldn’t someone look at the 

Judge Jack opinion and call it an example as some people have today that 

the system is working, bad claims being tossed out. Why can’t we 

assume that this is only one example of bad behavior instead of an 

indicator of a systemic problem with our judicial system on class action 

lawsuits? 

 MR. SHERMAN. Well, what Judge Jack’s opinion pointed out is the 

lack of standards over screening and diagnosis in this area, and without 

standards, we could anticipate that these kinds of situations might arise in 

other places and at other times. It points up quickly it seems to me that 

systemic changes need to be made in establishing ground rules and 

standards for screening and diagnosis. 

 MR. WHITFIELD. Now, you know, prior to this silicosis litigation 

there was a lot of asbestos litigation and some of these same doctors 

were involved in that. So even during the asbestos litigation there was a 

total lack of any standards in making the proper determinations. Is that 

correct? 

 MR. SHERMAN. I think in asbestos litigation there were certainly 

many incidents in which screening and diagnosis was made without 

adequate standards. And what happened in the litigation system of 

course is the cases were bundled by lawyers and law firms, and then 

were taken to settlement negotiations with defendants. And defendants 

also shared a little bit of the blame because defendants were complicit in 
100

settling these bundled mass cases often at lower rates because they felt 

that they could strike a favorable settlement. The lower in that situation 

may be the individual whose case is settled at a relatively low settlement 

fee and then who develops later on a serious condition, and because of 

res judicata, would no longer be able to do this. So the system has taken 

on a life of its own. It involves lawyers on both sides. 

 MR. WHITFIELD. Now, you talked about some of the proposals of 

the American Bar Association. When did the American Bar Association 

become concerned enough about this issue to create a task force to try to 

develop some proposals? 

 MR. SHERMAN. The task force was created in 2003, but the 

American Bar Association in earlier times has focused on other aspects, 

particularly of the asbestos problem. But this particular one was 2003. 

 MR. WHITFIELD. And what precipitated that? 

 MR. SHERMAN. The task force was especially supposed to look at 

the pending legislation, the medical criteria versus the trust fund 

legislation. 

 MR. WHITFIELD. Okay. 

 MR. SHERMAN. But in the process of looking at that legislation, very 

interestingly, the task force became very concerned about a number of 

these conditions in the present litigation system. 

 MR. WHITFIELD. Well, could you compare the recommendations 

made by the American Bar Association in their February 2005 

recommendation with the observations of Judge Jack and her opinion as 

far as what should be done? Were they similar? I mean is she 

recommending the same thing they were recommending or do they have 

differences of opinion or-- 

 MR. SHERMAN. No, I think they track very closely. She was 

concerned about the fact that screening was being done without 

standards, very often by individuals who had minimal-- 

 MR. WHITFIELD. That is okay. 

 MR. SHERMAN. --if any, medical training. She was also worried 

about the fact that very possibly in these vans the X-ray equipment was 

not up to standards. But her key objections had to deal with the 

diagnosis part, that diagnoses were being made on the basis of a single 

X-ray, sometimes by a doctor who had not seen the patient, who did not 

take the medical history, did not determine whether additional tests 

should be made and did not make determinations as to whether there 

were alternative explanations for what was read on the X-ray. 

 MR. WHITFIELD. Now Judge Jack in this case allowed discovery of 

the diagnosing doctors, and I am sure there are many cases like this 

where the judge does not allow that at that particular time. Now had she 
101

not have permitted this discovery, how would this litigation have 

proceeded? 

 MR. SHERMAN. Well, in this case, it is an unusual case because, in 

fact, she ultimately found that most of these cases were improperly 

removed from state court to Federal court and she remanded them back 

to state court. But in making that remand and jurisdictional 

determination, she properly, I believe, felt that there had to be a factual 

inquiry, and it was that factual inquiry that led her to make that 

determination. One could imagine many judges, Federal judges, for 

example, looking at the jurisdictional issue and not being confronted 

with 10,000 cases as she was and a pattern that she identified of abuse 

and therefore simply remanding the case without going into the factual 

determination. 

 MR. WHITFIELD. Mr. Stupak, you are recognized for your 10 

minutes. 

 MR. STUPAK. Thanks. 

 Professor Sherman, this was an MDL, multi-district litigation, right? 

Did it ever evolve to a class action suit? 

 MR. SHERMAN. Yes, it was. 

 MR. STUPAK. There was a class action suit? 

 MR. SHERMAN. No, it was not a class action suit. 

 MR. STUPAK. Right. 

 MR. SHERMAN. These were individual cases transferred, 

consolidated for transfer under MDL. 

 MR. STUPAK. So that is, I guess, sort of the first thing I wanted to 

clear up, this was not a class action suit. 

 Secondly, the Chairman asked you about discovery and in an MDL, 

both sides get to discuss, or I should say discover, what the experts of the 

other side knows so they certainly would have had time to in the MDL, 

multi-district litigation, do the depositions of each other’s experts. 

Correct? 

 MR. SHERMAN. Yes, or had this case gone forward and not been 

remanded on the jurisdictional issue, there would have been opportunity 

for full discovery. 

 MR. STUPAK. Sure. And when we deal with MDLs, you look at 

MDLs because of the complexity of the issues involved, the sheer 

volume of the evidence and things like that when you do an MDL. 

Correct? 

 MR. SHERMAN. Yes. 

 MR. STUPAK. Okay. One of the points you made in your testimony 

and exhibit--in fact, both of you made this, both Dr. Welch and you. 

Professor, your testimony, in exhibits you have submitted, is that 

although many safety standards have been put in place to safeguard 
102

against worker’s exposure to asbestos and silica, many new cases of 

asbestos and silicosis are still rising, and those who have worked in 

manufacturing and construction for some time and we are just now 

seeing the peak of the epidemic. Could you expand a little bit on that for 

me? 

 MR. SHERMAN. Well, in the case of silicosis, it was first addressed 

in the ‘70s by OSHA regulations. There have since been various 

regulations and standards adopted, including industry standards and so 

forth, and there is no doubt that it has brought down the incidents of 

silicosis. But as Dr. Welch has indicated, there are many occupations in 

which the individuals are exposed to silica that may result in those 

injuries. And I am certainly not in a position to judge the adequacy of 

the present OSHA regulations or other regulations. That is another 

matter. 

 MR. STUPAK. And on the asbestos cases now that are pending yet, I 

just want to make sure the record is clear. There are some meritorious 

claims out there. These are not all bogus cases or cases where you have 

inadequate screening and plaintiffs’ lawyers just filing lawsuits. There 

are legitimate claims on asbestos. Is there not? 

 MR. SHERMAN. Oh, absolutely. Asbestosis, as we know, asbestosis 

is a condition in which a single asbestos fiber in the lungs will stay there. 

It can result in pleural thickening. The plural thickening may never 

result in serious disability, but the exposure period is 40 years, and 

therefore, the period from exposure to the disability may be very long 

and plenty of those are very serious. 

 MR. STUPAK. And the exposure in silicosis, is it the same, about 40 

years? 

 MR. SHERMAN. I am not sure about the length of time. 

 MR. STUPAK. Dr. Welch, could you answer? 

 DR. WELCH. It can be that long. I mean, the acute silicosis, which is 

the easiest thing to identify, and that is sometimes what the deaths are 

due to, occurs very quickly but the exposures are very high. But what we 

are dealing here with more would be a chronic silicosis, and take 20 or 

30 years, probably take 10 years of exposure, and then 20 or 30 years 

from first exposure. 

 In terms of the asbestosis cases, could I comment on that? 

 MR. STUPAK. Sure. 

 DR. WELCH. I mean, you are aware of SA 52 in the Senate. 

 MR. STUPAK. Right, because I was going to ask why are we trying 

to get Congress through a bailout of the asbestos industry, if you will, or 

this trust fund if there are no claims? 

 DR. WELCH. Right, and there were $100 billion worth-- 

 MR. STUPAK. Hundreds of them, right. 
103

 DR. WELCH. --of claims. Even when you have eliminated 

everybody with asbestosis that does not have severe impairment--and 

mostly the cancers are what is that cost and many people think it is not 

enough money. So there are certainly a lot of asbestos claims, not as 

many silica claims, the exposures were not as widespread, but it is still a 

medical problem we have to deal with. And OSHA is currently looking 

at reducing its permissible exposure limit. They are reevaluating that. 

 MR. STUPAK. I think you said we should not call this a medical 

screening that occurred in this case in the silica case, right? 

 DR. WELCH. It did not seem like there was a lot of medicine. It did 

not seem like, from my opinion it is legal case finding and so the 

diagnosis is a legal report rather than a medical diagnosis, was what it 

looks like to me. 

 MR. STUPAK. With screening and screening programs can be 

beneficial, can they not? 

 DR. WELCH. Absolutely. 

 MR. STUPAK. And could you explain some of the ways in which 

some medical benefit could be derived from screenings if properly 

conducted and reviewed? 

 DR. WELCH. Well, I could use the example of our sheet metal 

workers screening. 

 MR. STUPAK. Sure. 

 DR. WELCH. It started in 1986 and it is run by labor management 

trust. And people associated with it will say it has really changed the 

way sheet metal workers work because they are in buildings where there 

is asbestos in place, and by raising awareness through the program, 

identifying people who have disease and training those people about their 

hazards, it has changed the way they work. We also have really high rate 

of smoking cessation for people who go through the problem and are 

identified as having scarring. We get a 50 percent quit rate among those 

people in addition to the sort of more subtle benefits about diagnosis of 

treatment, but those are two pretty obvious ones. 

 MR. STUPAK. So cessation of smoking, maybe change of work 

environment, maybe change or alter the medical treatment you are 

currently receiving. 

 DR. WELCH. Right. 

 MR. STUPAK. Whether this would be for silicosis or asbestos, right? 

 DR. WELCH. Right. In addition to which identifying groups of 

people who are at risk and may need medical screening that we have not 

thought about before, because looking at groups in a screening setting 

allows you to better understand the pattern of disease and patterns of 

exposure. 
104

 MR. STUPAK. Okay. Doctor, you also set forth in your testimony 

goals of extensive screenings in occupational medicine. Are there any 

significant risks or dangers to a person undergoing untargeted mass 

screenings other than inconvenience? 

 DR. WELCH. Well, it is an issue of screening in general. If you 

make a diagnosis in somebody and they don’t have it, there are some 

downsides to that. The person is worried, they may get medical 

treatment that they do not need, they may change their job. If you give 

them an occupational diagnosis, they may retire early. I mean, there are 

a lot of implications of inappropriate diagnoses. It applies with, you 

know, even mammography, where screening has to be sensitive enough 

to find cases. So not all the positives are going to be really positive, that 

is why it is appropriate to have the right follow up and good testing that 

follows it. If you leave those potential cases out there without doing that 

second level of follow up, you can create a lot of worry and concern. 

 MR. STUPAK. Let me ask the question this way. It is not necessarily 

the screening itself may not be a health risk to the individual, but what 

happens with that screening when it is being read, if you will, that is 

when the harms that you spoke of occurs. 

 DR. WELCH. That is correct. 

 MR. STUPAK. Okay. Would an inexperienced screener performing 

basic spirometric pulmonary function tests pose a significant risk for 

those being screened? 

 DR. WELCH. The risk would be getting the answer wrong, you 

know, if-- 

 MR. STUPAK. Not the test, but again, it is reading these screens. 

 DR. WELCH. Right. 

 MR. STUPAK. Or the results. 

 DR. WELCH. Doing the test wrong is not going to hurt the person 

during the test, but if they are given a diagnosis that they do not have, or 

told they are normal when they are impaired, that could have an impact 

on them. 

 MR. STUPAK. One of the things I mentioned in my opening 

statement and I would ask you to elaborate on it. One of the things I 

found sort of appalling was it appeared that after these screenings the 

individuals, if they had something wrong with them that could be of a 

more serious nature, they usually received the news, the way I 

understood it, from the legal people, lawyers or paralegals, and not from 

medical personnel. And that was my reading of testimony in the case in 

Judge Jack’s opinion. Could you explain that a little bit more? What 

would be the downside of this from a medical point of view? 

 DR. WELCH. Well, one sort of apparent downside is that is going to 

take a long time by the time there is a screening that occurs and the X-
105

ray goes to somebody else and gets read, they do a report, they get it 

back to the lawyer, you could be talking about weeks and months. And 

if there was something that needed immediate treatment, there would 

definitely be a downside in that. Also my impression, and again, I have 

not done a lot of investigation, is what the worker would get would be 

just a, you know, your X-rays showed this--but no true, you are not 

meeting with a doctor that is going to tell them what it means for them 

and what they need to do. And so, you know, finding out that you have 

silicosis without any advice about what to do about that is not really any 

use to anybody in my opinion. 

 MR. STUPAK. Okay. Professor Sherman, if you could--and it may 

not be fair to ask this question, but let me ask it this way. I am sure that 

people are--was this case rather an exception to the normal tort claims 

being filed in this country under an MDL or was this sort of standard? 

This deceptive fraud that we sort of see that went on here. 

 MR. SHERMAN. I think the level of the fraudulent practices here was 

pretty extreme. I am not aware of anything as poignant as that in one 

area of asbestos. I think there have been abuses in asbestos screening, I 

think, and diagnosis. I think that cases have been, over the years, 

asbestos cases have been settled, bundled cases in which large numbers 

of people are not ill, and probably will never become ill, and therefore 

are getting a windfall. But I do not think we have quite the kind of 

totality of lawyers, doctors, and screening companies in fairly small 

numbers working together as we have in this case. 

 MR. STUPAK. And in those other cases, I think you said--and even in 

this case--that both the plaintiffs’ attorneys and the defense attorneys 

both bear some responsibility here for this outcome. 

 MR. SHERMAN. Yes, they do. That is part of the way that the system 

is worked. 

 MR. STUPAK. Thank you both for your time. 

 MR. BURGESS. [Presiding] We have a series of four votes on and 

we are going to take a brief recess to allow that to happen. In fact, we 

have got less than two minutes to make it over to the Capitol so the 

committee is going to stand in recess until after votes. 

 [Recess.] 

 MR. WHITFIELD. [Presiding] The subcommittee will come to order. 

I know that some of the Members had some additional questions for 

Professor Sherman and Dr. Welch and then we will move onto the 

second panel. And I certainly appreciate your patience. 

 At this time, I will recognize Dr. Burgess for his 10 minutes of 

questioning. 

 MR. BURGESS. Mr. Chairman. 
106

 Professor Sherman, let me just ask you a question, if I could. We 

heard comments on the other side during opening statements how the 

Texas State Board of Medical Examiners had not properly chastised, 

punished, investigated the doctors in question in Corpus Christi, but it is 

my understanding, at least the individuals who are on the witness list 

today, none of those individuals are licensed in the State of Texas. So it 

would be virtually impossible then for the Texas State Board of Medical 

Examiners to issue any type of sanction against those individuals since 

they are not licensees of the State. Is that correct? 

 MR. SHERMAN. That seems correct to me, yes. 

 MR. BURGESS. And even the comments to the extent that the 

American Medical Association should be involved, that is actually a 

professional advocacy organization and really not one that is charged 

with oversight and punishment of doctors. I mean, there are a lot of us 

who perhaps in the field of expert witnesses feel that maybe that would 

be a good idea if the AMA could do that, but to the best of my 

understanding that is not one of their core functions. Is that correct? 

 MR. SHERMAN. I think that is correct. 

 MR. BURGESS. Dr. Welch, do you agree with that? 

 DR. WELCH. Well, they do set standards for professional practice, so 

I think that there are some AMA guidelines that can be used to say is this 

appropriate practice and some of them are quite useful. So they do not 

necessarily enforce the practice, but it does provide a measure of the 

standard. 

 MR. BURGESS. The--and I do not remember which one of you, one 

of you did testify to the fact that one of the problems was lack of 

standards between the screening and the diagnostics of this particular 

issue. And I think it is important to point out that individuals who have 

an abnormal chest X-ray with a history of occupational exposure of socalled industrial or occupational pneumoconiosis may be suspected, but 

the actual definitive diagnosis of asbestosis or silicosis really is going to 

require further investigation. Is that not correct? 

 DR. WELCH. The American Thoracic Society actually recently 

published a guideline to the diagnosis of asbestosis, and the same would 

apply for silicosis. You need evidence of structural change, you need 

appropriate history, and you need to rule out more likely causes of the 

findings. So you certainly need more than an X-ray and pulmonary 

function tests, because you need all the detailed medical history, medical 

testing, if necessary. 

 MR. BURGESS. How common would it be for someone to have both 

diagnoses simultaneously? 

 DR. WELCH. Actually, we had hearings about that particular 

question with SA 52, and most of the people that testified, including 
107

myself, said it is uncommon for people to have both asbestosis and 

silicosis. If you do have heavy exposures to both things you usually end 

up with something called a mixed dust pneumoconiosis, which looks like 

a mixed picture. 

 MR. BURGESS. How many have you encountered during your 

professional career? 

 DR. WELCH. I have not seen anybody that I would say had both 

asbestosis and silicosis. I have seen a mixed dust disease-- 

 MR. BURGESS. Okay. 

 DR. WELCH. --but not sort of classic silicosis plus classic asbestosis, 

no. 

 MR. BURGESS. And just for our general knowledge, what would be 

required if you had someone with the abnormal chest X-ray and the 

history of exposure to both? What would be required to make the 

diagnosis of concomitant asbestosis and silicosis or the mixed dust 

phenomenon? 

 DR. WELCH. Well, the mixed dust what you would have then is you 

would have a diagnosis of a pneumoconiosis based on chest X-ray 

findings, you know, that there is some abnormal scarring and what the 

zones are and what the size and shape are can in mixed dust can be 

mixed. Then you need an occupational history to tell you what the dusts 

were and then you can end up--sufficient, you know, you still have to 

evaluate that to see if that kind of exposure, the work the person did, the 

job they did, the kind of exposures they had sufficient to cause this injury 

that I am seeing when I look at his X-ray. So it is really-- 

 MR. BURGESS. So you would not require a pleural biopsy to make--

for that type of diagnosis? 

 DR. WELCH. No. Actually, you know, for occupational lung disease 

biopsies are almost unheard of. You can use CAT scans, and those are 

helpful, but you never really need a biopsy. 

 MR. BURGESS. On the issue of what, I think, Mr. Stupak was asking, 

what harm can come to someone from the screening tests themselves and 

you testified as to a number of things. And one of the other issues of 

damage would be the inability to become insured in the future. I would 

imagine that a prior diagnosis of silicosis as a preexisting condition is 

going to make it terribly difficult for someone to obtain health insurance 

in the future, is it not? 

 DR. WELCH. Well, maybe life insurance more than health. 

 MR. BURGESS. Or life insurance or employment. 

 DR. WELCH. I have heard, you know, stories of that. It has never 

been really documented but it is reasonable to presume that would occur. 

 MR. BURGESS. But it certainly could be one of the unintended 

consequences of a misdiagnosis of silicosis or asbestosis? 
108

 DR. WELCH. Certainly. 

 MR. BURGESS. And certainly that information should be disclosed to 

the individual who was either diagnosed or misdiagnosed. 

 DR. WELCH. That they have it, yes. 

 MR. BURGESS. Yes. 

 DR. WELCH. What the findings were, yes, absolutely. 

 MR. BURGESS. And I guess that is one of the things that bothers me 

throughout this is the lack of disclosure to the patient. Now in your 

work, Dr. Welch, with the sheet metal screenings, I mean, would that 

ever happen that you would screen someone for sheet metal disease and 

not tell them of the findings, either positively or negatively? 

 DR. WELCH. No, because there is a standard protocol that everybody 

follows. We identify a local doctor to do the screenings, so it is usually 

at a local hospital or a clinic and they tell the person when they are there. 

They send them a letter and then they have a meeting a few weeks later 

to go over results again, so there are three opportunities to give the 

results to the individuals. 

 MR. BURGESS. So in general, your standard practice in your 

industrial medicine practice would differ from what you have seen 

described as standard practice in these cases? 

 DR. WELCH. Yes, but I think I tried to kind of qualify my answer to 

that because I do not know. I don’t really know exactly what went on in 

these cases. I mean, I do not know who ordered the X-rays or where the 

results went or, you know, if the attorneys got results, what they did with 

them. It is not the same focus as our sheet metal program but there is--I 

do not know all the details. 

 MR. BURGESS. Yes, apparently we do not know, either, who ordered 

the tests and where the results went. Maybe we can get that information 

with one of the subsequent panels. Do you have the evidence books with 

you? Let me ask you to go to, do I have Tab 14? 

 DR. WELCH. Yes. 

 MR. BURGESS. The section of the AMA’s guidelines E10.03, 

Patient-Physician Relationship in the Context of Work-Related and 

Independent Medical Examinations, “when a physician is responsible for 

performing an isolated assessment of an individual’s health or disability 

for an employer, business, or insurer, if limited patient-physician 

relationship should be considered to exist:” can you comment on what 

patient-physician relationship is created in the context of the screenings 

that you administer? 

 DR. WELCH. Yes, I do not know if I would even call it limited, but 

the screenings that we run through the sheet-metal program, we expect 

the doctors to tell the individuals what is wrong with them, arrange for 

follow-up medical care, provide urgent medical care, if it is necessary--
109

say if somebody has really high blood pressure or if they have something 

that looks like a lung cancer that needs urgent action--and provide 

appropriate education. So they may not be the person treating the lung 

cancer, but they have a responsibility to the patient, the individual, to act 

when they get any medical information that needs urgent action. 

 MR. BURGESS. Then, do you have a feeling as to the claims made by 

the doctors associated with the multidistrict litigation that they were 

acting as consultants for the screening companies, and they were not 

bound by any ethical obligations or relationships with the plaintiffs? 

 DR. WELCH. Well, I had read this statement before; I think it is 

pretty good. And I think it really should apply to screening programs 

that even if it is a limited physician-patient relationship, there is a 

responsibility for doctors acquiring medical information to make sure 

that the individual knows what that is and has the responsibility to act on 

it. In addition, this outlines how sometimes there is a potential conflict 

of interest if a doctor is working for a company; it can be perceived 

conflict of interest when the worker comes for an exam. We would like 

to have hoped that that would not be the case, and the doctor would be 

acting as a doctor; but this one also outlines the responsibilities of the 

doctors to state if there is a conflict of interest and how they are handling 

it. 

 MR. BURGESS. Thank you, Dr. Welch, and Professor Sherman, 

thank you for your time. 

 Mr. Chairman, I will yield back 38 seconds to do with as you wish. 

 MR. WHITFIELD. Thank you, Dr. Burgess. And at this time, I 

recognize Ms. DeGette for ten minutes. 

 MS. DEGETTE. Thank you very much, Mr. Chairman. 

 Dr. Welch, you testified as to the appropriate standards of care and 

ethical practice in cases like this. I wanted to talk about that for a 

minute. I think we are pretty clear--and Professor Sherman also talked 

about this--that a diagnosis should never be made by a physician without 

personally examining the patient. Is that correct? 

 DR. WELCH. Well, there are always variations of it. I mean 

certainly a pathologist makes a diagnosis of a disease. 

 MS. DEGETTE. Right. 

 DR. WELCH. But it is part of the context of the treatment and the 

treating doctor-- 

 MS. DEGETTE. Right. 

 DR. WELCH. --so that certainly, if they are part of a team, one of the 

team has a personal relationship with the doctor if you are making a 

medical diagnosis. 
110

 MS. DEGETTE. But then part of that, too, is their needs to be some 

kind of physician-patient relationship so that the physician can work with 

the patient to determine treatment and all of that. Correct? 

 DR. WELCH. Right. 

 MS. DEGETTE. What would the purpose be for having the doctors or 

the people who are screening these individuals for silicosis then working 

with the doctors and the doctors meeting with the patient in terms of 

early detection? 

 DR. WELCH. Well, if they are screening for it, and you find a 

disease, then, when you start a screening program, you need to know 

what you are going to do when you find something. 

 MS. DEGETTE. Right. 

 DR. WELCH. And what the actions are going to be, and what 

recommendations you would make to the individual, their employer, or-- 

 MS. DEGETTE. I mean that is reason you would have that 

relationship so that they could get treatment. Correct? 

 DR. WELCH. Right, absolutely. 

 MS. DEGETTE. In this case, without particularly commenting on the 

facts of the case which you do not know, but assuming that what Judge 

Jack said is correct, that these kinds of screenings were going on without 

that essential physician-client relationship, do you think that some of the 

issues the judge related could have been cured by adequate medical 

screening and treatment? 

 DR. WELCH. Yes. 

 MS. DEGETTE. Now should physicians who order and supervise 

these screenings also, then, assume a doctor-patient relationship with the 

individuals who are the subjects in the screening? 

 DR. WELCH. Yes, I think the physician that is ordering the X-rays or 

pulmonary function tests has a responsibility to the patient, the 

individual, to give them the results and tell them what to do about it. 

 MS. DEGETTE. Is any physician who discovers an acute, dangerous 

condition during a screening procedure ethically obligated to notify the 

individual or that person’s individual physician? 

 DR. WELCH. Yes, in my opinion, yes. 

 MS. DEGETTE. That would be under medical ethics? 

 DR. WELCH. Yes. 

 MS. DEGETTE. And my next question, because you have had years 

of experience in this area: if a physician did not follow those standards, 

wouldn’t you think that that would be appropriate for a complaint to 

whatever governing medical board was there? 

 DR. WELCH. It could be. I mean I think that in these screenings you 

have physicians at different levels interacting with the individual. I think 
111

the person who is running the screening program and doing the X-rays, if 

X-rays are being taken, they should be looked at right away-- 

 MS. DEGETTE. Right. 

 DR. WELCH. --because there could be an acute event. I would not 

necessarily apply the same standard to a B reader who is reading it two 

weeks later in a different context, but that there has to be a physician 

there-- 

 MS. DEGETTE. Right. 

 DR. WELCH. --to accept responsibility. And that person, if they are 

not doing that, then they are not following standards. 

 MS. DEGETTE. And that is because then they are not following 

through on their physician responsibilities to their patient. Correct? 

 DR. WELCH. Correct. 

 MS. DEGETTE. I mean I think about if I went in for some kind of 

cancer screening, and the radiologist did their work, and the physician 

just never bothered to follow up with me, and then I died of cancer-- 

 DR. WELCH. That is malpractice. 

 MS. DEGETTE. That would be correct. And not only would that be 

subject for a lawsuit, but it would also be subject to sanction by the 

appropriate medical governing board. Correct? 

 DR. WELCH. Correct. 

 MS. DEGETTE. And I wanted to ask you, Professor Sherman, 

because I am a reformed lawyer myself, and I was looking at this ABA 

resolution of February 2005 on asbestos standards, which you were 

talking about vis-à-vis this situation, and what it says is that the standards 

should be enforced by Federal, State, and territorial government agencies 

and judicial bodies. So my question is do you think that we should have 

a Federal statute that codifies these standards? I guess I am still trying to 

figure out why we are having this hearing, frankly. 

 MR. SHERMAN. Well, traditionally the regulation of medicine and 

the professions has been a matter for the States. 

 MS. DEGETTE. That is correct. 

 MR. SHERMAN. And I think that probably one starts with the 

presumption that that is where it ought to be. This gets into an 

interesting constitutional question, I guess, and a political question as to 

whether the Federal government, in certain situations, should step in. 

The proposed asbestos litigation over recent years, having to do with a 

medical criteria bill and now a trust fund, is a suggestion that that 

litigation is so mammoth and so affecting interstate commerce that 

Federal legislation is needed. 

 MS. DEGETTE. Right. I understand that, but I am specifically 

talking about these standards for screening that the ABA was talking 

about in this resolution, and I would assume this would be in silicosis 
112

cases. I really am with you. I think that if the Federal government made 

a statute on this particular issue, it would be a fish out of water in a way 

because the States, really, are the entities that govern tort litigation. 

Correct? 

 MR. SHERMAN. And I think the ABA proposal you speak of, it 

mentioned all three local, State, and Federal. 

 MS. DEGETTE. Right. 

 MR. SHERMAN. But I think the recognition was that currently we are 

talking primarily about State regulation. 

 MS. DEGETTE. Now, have any States actually passed laws that 

would require these kinds of standards? The States also regulate medical 

boards, too. Right? 

 MR. SHERMAN. Yes. 

 MS. DEGETTE. So have any States adopted this particular regulation 

that you know of? 

 MR. SHERMAN. Not that I am aware of. We have not done a 

comprehensive survey to find what, if any, State regulation of mobile 

screening events, for example, or mass screening is done, but I am not 

aware of any. 

 MS. DEGETTE. Do you think that from what you know, that it would 

be possible to have oversight over the legal malpractice and the medical 

malpractice under existing laws? I mean if a lawyer is fraudulently filing 

a lawsuit, it would seem to be not only would they be subject to criminal 

prosecution, but also by enforcement by State Bar Associations and 

essentially the same with the parallel medical oversight groups. 

 MR. SHERMAN. Well, certainly, both professions are primarily 

regulated by the States. 

 MS. DEGETTE. But under current law of the States-- 

 MR. SHERMAN. Under current law-- 

 MS. DEGETTE. --if people filed lawsuits like this, they could be 

again regulated by their State entities as well as potentially criminally 

prosecuted. 

 MR. SHERMAN. Yes. 

 MS. DEGETTE. Now, Dr. Welch, I wanted to ask you what you 

thought about the idea of Congress making standards for workers being 

screened for exposure to silica or other kinds of toxins on the job. Do 

you think it is Congress’s job to legislate medical screening criteria that 

must be met before a toxic tort claim can be made in court? It is sort of a 

variation of the same question. 

 DR. WELCH. Right, I mean I actually think that there are standards 

for medical practice that exist that would guide screenings in particular. 

And that I do not see a need to write more legislation. As you said in the 

beginning, I think the appropriate thing is to enforce existing standards. 
113

And in some cases, by just bringing light to certain practices, the 

practices will stop. I am not an expert on Federal legislation, but I don’t 

see how it would really add much. If what we do is we have existing 

standards that are not being enforced, adding additional legislation is not 

going to help that problem. 

 MS. DEGETTE. Right, and I mean what struck me in reading the 

summaries of the silicosis opinion and then seeing some of the media, is 

exactly the light that is being shown on this issue by the media and by 

this Congressional hearing. I will guarantee you there is not a defense 

lawyer in this country that is going to settle a silicosis case now without 

doing due diligence because the light has been shined on this issue, and I 

think that, combined with tough enforcement, is really the way to go. 

 Thank you both. 

 MR. WHITFIELD. Mr. Inslee, you are recognized for ten minutes. 

 MR. INSLEE. Thank you. 

 I have a series of letters from the American Medical Association of 

September 2005 that are directed to the medical examining boards of 

several States: West Virginia, Wisconsin, Massachusetts, Alabama, and 

Mississippi. And these letters basically alert the medical licensing 

boards of the participation in the case that brings us here today, which 

basically recite the judge’s findings that several physicians had submitted 

certifications without examining the plaintiffs, that they simply had not 

complied with normally expected medical practice in this case. That 

involved, I believe, nine physicians. Do you know whether the medical 

licensing authorities of any of these States have taken actions to sanction 

any of the physicians involved in this situation? 

 DR. WELCH. I do not know. 

 MR. SHERMAN. I am not aware of any. 

 MR. INSLEE. Would it be fair to say that you think it would be 

healthy, if physicians did not act in accordance with their own 

professional standards, that the licensing authorities get off the dime and 

sanction these physicians if in fact they have not acted in accordance 

with their own professional expectations? 

 DR. WELCH. I think that is appropriate if people have violated 

professional standards. I agree. 

 MR. INSLEE. The reason I bring this up is that there is a lot of talk 

about litigation and medical negligence contacts in this country, and one 

of the problems that some foresee is there has not been vigorous 

aggressive pursuit of that thankfully small number of physicians who do 

not comply with their professional obligations. Now, in this instance as 

far as I can tell, there is at least nine of them that a Federal judge was 

quite directly critical of and from my little knowledge of this situation 

would indicate they violated their license. And for those who have 
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convened this hearing that want this issue to be investigated, I think we 

need to investigate whether or not there has been a compliance with the 

physician disciplinary system here. And if anyone else has knowledge at 

this hearing to provide this information, I would be particularly 

interested. 

 Dr. Welch, I wanted to ask you. I am concerned. I look at this 

situation is it looks to me like a lawsuit was initiated; it was thrown out 

of court by a judge. The judicial system dealt with this issue. It found 

that the medical evidence was not up to the standards that exist today in 

our judicial system, and that is why the lawsuit was by and large tossed 

out of court. The judicial system worked. What has not worked is 

reducing that 30 to 50 percent working environments that Dr. Welch told 

us about that still violate existing standards for being exposed to silicates 

that can cause silicosis. And what I am interested in today is how do I 

protect my constituents from silicosis from--I have seen estimates of 30 

to 50 percent--of workplaces that violate existing health standards. Dr. 

Welch, do you have some suggestions of what we could do to try to 

protect our constituents in that regard? 

 DR. WELCH. Well, we could make OSHA an effective organization, 

instead of requiring that everything that OSHA do be voluntary. I 

thought they were a legislative agency. But making OHSA effective 

would go a long way toward that. I mean if OSHA could go and sample 

workplaces where there is silica exposure occurring, and then require 

effective action, it would reduce the exposures. And there are many 

ways to reduce hazardous exposures, but OSHA enforcement is a very 

important part of that. 

 MR. INSLEE. And why is that not happening now in your estimation? 

That is something to me would be a no brainer that OSHA would be 

doing today on behalf of the Federal government. I do not understand 

that. 

 DR. WELCH. Well OSHA does not have enough staff. It just simply 

has never had enough staff to enforce the laws that it is authorized to 

enforce. In addition, new standards setting under OSHA is almost 

impossible. There has not been a new health standard--well, there was 

actually the chromium standard just this last week, but that was because 

they were sued by public citizens. And without a lawsuit from an outside 

agency, OSHA has not issued a new health standard in 20 years. There 

is a lot to say about OSHA and how it is hampered from doing its 

legislative job. But a lot of it has to do with staffing and generally the 

bureaucratic nature, and I think that in some ways the rest of the 

Government does not support OSHA completely in its mission. 

 MR. INSLEE. This case, which certainly has an odor about it from 

what little I know about it, is there anything in this case that should 
115

reduce our concern with these findings that 30 or 50 percent of these 

workplace environments expose our citizens to excess silicate that should 

remove our concern about that? 

 DR. WELCH. No. I mean what my concern was, and I think I said it 

in the beginning, was in some ways it is a distraction because there are 

people who are overexposed and there may be thousands of new cases of 

silicosis each year that are appearing without even active screening, and 

this is a distraction in that it can lead some people to believe that there is 

not silicosis. And the more we focus on the fact that if you believe that 

the lawyers and doctors were manufacturing cases that do not exist, the 

implication that follows is there are not any cases, But that is not true; 

there are cases. There are overexposures. There are cases occurring 

from prior exposures that were much higher, but for silica, there might be 

a possibility that current exposures are going to cause future silicosis. 

And so it is really two different questions, but if you put all your effort 

on one, then you are not spending much time on the other. I mean I think 

the fact that there are current cases of silicosis does not excuse any bad 

legal/medical practices at all. You kind of need to address both of them. 

But my concern is that somehow the implication is that anybody who 

files a claim is a fraudulent case. 

 MR. INSLEE. Professor Sherman, I wanted to ask you about these 

affidavits or certifications filed by the doctors in this case. I used to 

practice trial law and did a lot of cases involving people who had been 

injured, and I have to tell you from what little I know about this 

particular case, it is not something that I would have ever felt 

comfortable with because going into court with such scanty medical 

evidence in the courts that I participated in, frankly, would get tossed 

right away because they were superficial at best. Under existing 

standards of law, under existing standards of evidence, under existing 

rules of summary judgment, under existing rules of directed verdicts, 

under this whole existing regime, this case, from what I know about it, 

would have been thrown out in any court I ever practiced in based on 

superficial evidence under existing rules. And I guess the question I ask 

is, under every court situation I am involved in, a case like this would 

have been thrown out, why do we need new rules? This did get thrown 

out under existing rules. The court acted and largely dismissed these 

cases brought this to our attention. Why aren’t the existing rules 

sufficient? We have judges to apply them. 

 MR. SHERMAN. Well, I think you are absolutely right that this 

evidence should not stand up under scrutiny in a court. I think some of 

the expectation of the parties involved in this was that if you can get a 

whole inventory of a large number of cases, and you can join them and 

file them amass, that there will be an impetus to settle those as a group 
116

without individual scrutiny of each one and this is what I was talking 

about earlier, the settlement process in which both plaintiffs’ and 

defendants’ lawyers at times have been complicit. The reason these 

cases were not really thrown out, what happened, I think, is that a 

number of them were dismissed after Judge Jack brought this to light, 

and there were voluntary dismissals on the recognition that they would 

not stand up, and that was a courageous judge who, on a jurisdictional 

issue, was able really to bring about the demise of those cases. I think 

that is possible again, and one of the problems I do see, though, is the 

large inventory of a large number of cases, asbestos cases, are typical of 

that, in which the huge number of cases are pending. Our courts are 

incapable of trying those cases individually. It would take a hundred 

years to try all those cases individually, and so there is an impetus to 

settle them for one reason or another. And there is the hope, I think, of 

certain plaintiffs’ lawyers in those situations, that they won’t have to do 

any more than that. 

 One of the grounds that was given for the ABA proposal for an early 

fact sheet, or in the case management order in which lawyers have to 

come forward with detailed evidence as to both exposure and as to 

medical condition, is, I think that lawyers can’t get an inventory of cases 

simply by paying a screening company to take an X-ray and then getting 

a bogus diagnosis and never have to do anything more, and then it is 

almost a green mail, take those cases, and settle them en masse without 

having to do anything more. And that seems to be one value of 

appropriate case management order in which you have got to present 

detailed individualized evidence early on is telling the lawyer that the 

lawyer is going to have to invest some time and some money. The 

lawyer will not do that if it is a case that is so questionable if it is a one 

slat case, many lawyers recognize that they are not prepared to do that. 

They are prepared to do it if they can just bundle those cases and settle 

10,000 of them at a time, but if they know that there is going to be this 

kind of individual requirement, even if they are joined cases, there is 

going to be that requirement early on, and they are going to have to 

spend some time and effort, that, seems to me, is a weeding process. 

Good lawyers will not pursue those cases in recognition that it is good 

money passed down the drain. 

 MR. INSLEE. And some day we will have a hearing about the 

defense lawyers that somewhere in this great land have filed a defense 

that was not entirely appropriate as well. 

 Thank you very much. 

 MR. WHITFIELD. Dr. Welch, I would say that I respectfully disagree 

with your assertion that this hearing is a distraction. And I think, when 

you take the facts of this case, and when you have fraudulent practices 
117

and diagnoses being made without examining witness, examining 

patients, or interviewing patients, and you have these kinds of classaction lawsuits with this number of people, it has a direct impact on 

public health, and this committee does have jurisdiction over public 

health, and so I think it is important that we shine the light on it. 

Unfortunately, our Oversight and Investigation Subcommittee does not 

have the authority to legislate, but we do have the authority to 

recommend legislation we think that is necessary. 

 So with that, I would recognize the gentlelady from Tennessee, Mrs. 

Blackburn. 

 MRS. BLACKBURN. Thank you, Mr. Chairman. 

 And thank you all for being here and allowing us to talk with you 

and work through this. 

 Dr. Welch, I want to go back to your testimony. As we left for our 

series of votes, you were talking about basically the provisions on page 4 

of your testimony which is screening and the difference in screening and 

medical screening. And your comment basically was that a physician 

has to conduct a diagnosis that would include a medical screening in 

order to ID possible cases of silicosis. And then you went on to state that 

that was step number one. Is that correct? 

 DR. WELCH. The screening really is the first step in-- 

 MRS. BLACKBURN. Right. 

 DR. WELCH. --reaching a diagnosis, right. 

 MRS. BLACKBURN. Okay. And then, if you will, you very quickly 

listed two or three things that would be additional tests, and then on page 

five of your testimony, you said the test used should be selective and 

chosen to identify a specific disease, so what I would like for you to do is 

let us go back to that part of your testimony if you will and give me what 

you would consider to be the other tests that would be necessary to 

supplement a screening, a medical screening, an X-ray which would be a 

screening, a first screening, a first identification and give me what those 

other exams and tests would be. 

 DR. WELCH. It does vary by an individual, but generally, if you are 

looking for an occupational lung disease, you need an occupational 

history. Now sometimes the screening it takes a general occupational 

history. How many years have you been in this trade? How and what 

kind of tasks did you do? But a more detailed evaluation would get more 

detail on that-- 

 MRS. BLACKBURN. Okay. 

 DR. WELCH. --because determining that a disease is related to 

exposure, you need some detail on it. 

 MRS. BLACKBURN. You would have to have the history and the 

length of that exposure. 
118

 DR. WELCH. Right, I mean depending on the exposure and 

depending on the work someone did, you need more or less detail. If you 

know someone was an asbestos installer for 30 years, that is about all 

you need to know. 

 MRS. BLACKBURN. Sure. 

 DR. WELCH. But other jobs you would have to get a lot more 

information-- 

 MRS. BLACKBURN. Okay. 

 DR. WELCH. --so depending on what you see on the X-ray, the Xray may stand alone or you may want some additional tests, other views, 

or a CAT scan. That very much depends on what is on the X-ray. 

Generally a more additional evaluation will include pulmonary function 

tests. You do not absolutely need those for a diagnosis, but you need 

them to determine how much impairment there is and what kind of 

treatment is needed. And you need a detailed medical history to see if 

there are other likely explanations of the findings. Let us say somebody 

has an abnormal X-ray and they have asbestos exposure, but they also 

have a bad heart. Well, maybe the findings on the X-ray are caused by 

heart failure rather than asbestos exposure. You cannot get that level of 

detail on an individual on a screening, but you can get it when there is a 

further diagnostic evaluation. 

 So that is how I see the purpose of the screenings. A lot of the 

people who have gone to our sheet metal screening do not have other 

serious medical conditions. And the additional evaluation is pretty 

straightforward, but you get down to the individual level. 

 MRS. BLACKBURN. Okay. 

 DR. WELCH. You find out all you need to know about the individual. 

 MRS. BLACKBURN. So in other words what you are saying--and this 

is I think tying back into what you were speaking of as we left--was that 

it would be very difficult to determine whether someone had asbestosis 

or silicosis simply from an X-ray without doing the additional tests. And 

part of your concern was that the X-ray results went to the attorney, but 

then there did not seem to be a trail of medical information that was 

given from the attorney back to the individual. 

 DR. WELCH. Right. Now to be fair, we have not asked the attorney 

what they did with that. And I would prefer not to have an attorney in 

the middle if I am running the program because it is medical information, 

give it to the person’s doctor and assure that they act on it. 

 MRS. BLACKBURN. Okay. Would there be any other factors that you 

would add to that list that would determine if a person had silicosis? 

 DR. WELCH. Well that is really the basics you would use. 

 MRS. BLACKBURN. That is the basics. So you can do pretty well 

with those? 
119

 DR. WELCH. Yes. 

 MRS. BLACKBURN. That you have listed. 

 DR. WELCH. Sometimes you can get that information from the 

screening evaluation, but usually you will get more information, 

particularly about the other medical histories and other medical 

conditions with a detailed evaluation. 

 MRS. BLACKBURN. All right, great. 

 Professor Sherman I have got a question that I want to ask you. And 

I am trying to be considerate of the time here because you all have been 

incredibly patient with us. In your testimony, somewhere, you 

mentioned inter-reader variability and a concept known as inter-reader 

variability, and if you would, could you talk with me for just a moment 

about how that applies to trying to prove fraud in X-ray readings. 

 MR. SHERMAN. Well, the concept of inter-reader variability is that if 

the X-rays are read by different individuals or at different times, 

sometimes in good faith, the readings could come out slightly different. 

Is that what you were referring to? 

 MRS. BLACKBURN. Yes. So in essence, then, in your mind it would 

take additional tests and supporting information such as Dr. Welch has 

articulated in order to give certainty to the validity or the dependability 

of a group of readings. 

 MR. SHERMAN. Yes. Dr. Welch can answer this better than I can, 

but it seems to me that if you had a reading of no asbestosis, and then six 

months later a reading of consistence with asbestosis, you would not 

necessarily want to take the second one as most recent in time. It seems 

to me it would raise a question of what is at work with those two 

readings of variance and require further inquiry. 

 MRS. BLACKBURN. Okay. You mentioned the ABA’s 

recommendations on asbestosis and their discovery in management 

procedures and orders. Of the recommendations that are codified in the 

ABA standards and conduct for lawyers, is there anything there that you 

would recommend? Are they what they should be? Is there anything 

you would recommend for use as we look at the silicosis situation? 

 MR. SHERMAN. Well, I think all of the three proposals that I have 

mentioned today are transferable to the silicosis situation, and that is 

standards for screening and diagnosis, a case management order that 

requires an early revelation as to specific facts as to medical history, 

exposure, and so forth, and finally, a provision that would provide for a 

clear line as to the statute of limitations so that lawyers would not feel 

that they had, the diligent lawyers would not feel-- 

 MRS. BLACKBURN. You mentioned that in your testimony. 

 MR. SHERMAN. --that they had to file suit to clog the courts with 

cases that may not go. 
120

 MRS. BLACKBURN. Okay, thank you. I yield back. 

 MR. WHITFIELD. Thank you, Mrs. Blackburn. At this point, if there 

are no additional questions then-- 

 MR. STUPAK. Mr. Chairman, if I might, could we have Dr. Welch--

you asked her a question about distraction, and I think she should be 

given an opportunity to explain to the committee and to the Chairman 

what she was talking about. 

 MR. WHITFIELD. Okay. 

 MR. STUPAK. I thought she was talking more about the questionable 

lawsuits and not necessarily this hearing; although, I would agree. I do 

not see a lot of public health in this aspect of the hearing to date. 

 DR. WELCH. I appreciate the opportunity. I was not trying to say 

that the hearing is necessarily a distraction. I was concerned about the 

broader public image of whether people really are sick from occupational 

lung diseases. And if there is a lot of attention on this case, but no 

attention on the fact that there are people who are sick and dying, it 

leaves the impression that there is no one sick from silicosis. That is not 

something you can do anything about. It is maybe something I can do 

something about by talking about the people who are sick, but that is my 

concern about the distraction. 

 MR. WHITFIELD. Well thank you for clarifying. 

 Professor Sherman, Dr. Welch, thank you very much for taking your 

time today. We are sorry you were here all afternoon but you are 

dismissed now and we will call the second panel. 

 On the second panel, we have Dr. James Ballard of Birmingham, 

Alabama. We have Dr. Andrew Harron of Kenosha, Wisconsin. And we 

have Dr. Ray Harron of Bridgeport, West Virginia, and we want to thank 

you gentlemen for being here today. Okay, would someone get these 

name plates in the right place? 

 Okay, you gentlemen are aware that the committee is holding an 

investigative hearing, and when doing so we have the practice of taking 

testimony under oath. Do you have any objection to testifying under 

oath? 

 DR. BALLARD. No. 

 DR. RAY HARRON. No. 

 DR. ANDREW HARRON. No. 

 MR. WHITFIELD. The Chair advises you that under the rules of the 

House and the rules of the committee you are entitled to be advised by 

legal counsel. Do you desire to be advised by counsel during your 

testimony today? 

 DR. BALLARD. Yes. 

 DR. RAY HARRON. Yes. 

 DR. ANDREW HARRON. Yes. 
121

 MR. WHITFIELD. Okay. I would ask that at this time you please 

identify your counsel for the record so that Dr. R. Harron, who would be 

your legal counsel? 

 DR. RAY HARRON. Larry Goldman of New York City. 

 MR. WHITFIELD. Mr. Goldman of New York City, okay. You may 

move forward and sit at the table with your client, Mr. Goldman. And 

Mr. Goldman, will you be giving testimony today? 

 MR. GOLDMAN. Dr. Harron will assert his privilege. 

 MR. WHITFIELD. Okay. Dr. A. Harron who is your legal counsel 

today? 

 DR. ANDREW HARRON. Mr. Judd Stone. 

 MR. STONE. Good afternoon, Chairman. Judd Stone on behalf of 

Andy Harron. 

 MR. WHITFIELD. Okay, thank you. You may move forward and sit 

there as well. 

 MR. STONE. Thank you. 

 MR. WHITFIELD. And Dr. Ballard, who is your legal counsel? 

 MR. HAFETZ. Frederick P. Hafetz, H-a-f-e-t-z. 

 MR. WHITFIELD. Okay. 

 MR. HAFETZ. And I am going to sit right next to Dr. Ballard. 

 MR. WHITFIELD. Thank you. Now, I would like to swear the three 

of you in. Do you have any objections to being sworn in at this time? 

 [Witnesses sworn.] 

 MR. WHITFIELD. Thank you. All right, each of you is now under 

oath, and you may give your five-minute opening statement, and we will 

begin with you, Dr. Harron, for your opening statement. 

TESTIMONY OF DR. JAMES BALLARD, M.D.; DR. ANDREW 

W. HARRON, D.O.; AND DR RAY A. HARRON, M.D. 

DR. RAY HARRON. I do not have anything to say, sir. 

 MR. WHITFIELD. You do not have an opening statement, okay. Dr. 

A. Harron? 

 DR. ANDREW HARRON. Respectfully, on the advice of my counsel, I 

decline to answer questions on the basis of constitutional privilege. 

 MR. WHITFIELD. And Dr. Ballard? 

 DR. BALLARD. I do not have an opening statement. 

 MR. WHITFIELD. Okay. Now, this is for Dr. Ray Harron. Dr. 

Harron, in my opening statement, I made some references to diagnoses 

that you made in the silica multidistrict litigation for people that you had 

previously diagnosed with asbestosis and those diagnoses are in the 

binder in front of you at tabs three through seven. And I would ask you 

today will you certify that each of these diagnoses and all others that you 
122

made in this litigation are accurate and made pursuant to all medical 

practices, standards, and ethics? 

 DR. RAY HARRON. Mr. Chairman, with all due respect on the advice 

of counsel, I invoke my constitutional privilege under the Fifth 

Amendment and decline to answer the questions, sir. 

 MR. WHITFIELD. Now are you refusing to answer all of your 

questions based on the right against self-incrimination afforded to you 

under the Fifth Amendment of the U.S. Constitution? 

 DR. RAY HARRON. Yes, sir. 

 MR. WHITFIELD. And is it your intention to assert this right in 

response to all questions that may be asked you today? 

 DR. RAY HARRON. Yes, Mr. Chairman. 

 MR. WHITFIELD. Given that if there are no further questions from 

the members, I will dismiss you at this time subject to the right of the 

subcommittee to recall you if necessary and at this time you are excused. 

 DR. RAY HARRON. Thank you, sir. 

 MR. WHITFIELD. Now Dr. Andrew Harron, you have heard the 

opening statements today, and you have heard me specifically describe 

your practice in making diagnoses for some of the silica matters in which 

you essentially handed X-ray interpretation notes to a secretary to 

prepare the report, stamp your signature, and send it out. Dr. Harron, 

will you certify that each of these diagnoses are accurate and made 

pursuant to all medical practices, standards, and ethics? 

 DR. ANDREW HARRON. Sir, respectfully, on the advice of my 

counsel, I decline to answer questions on the basis of constitutional 

privilege. 

 MR. WHITFIELD. Okay. So you are refusing to answer all of the 

questions based on the right against self-incrimination afforded to you 

under the Fifth Amendment of the U.S. Constitution? 

 DR. ANDREW HARRON. Yes, sir. 

 MR. WHITFIELD. And it is your intention to assert that right in 

response to all questions that may be asked today? 

 DR. ANDREW HARRON. Yes, sir. 

 MR. WHITFIELD. If there are no other questions from the members, 

then I will dismiss you at this time subject to the right of the 

subcommittee to recall you if necessary and at this time you are excused. 

 DR. ANDREW HARRON. Thank you, sir. 

 MR. STONE. Thank you, Mr. Chairman. 

 MR. WHITFIELD. Dr. Ballard, in my opening statement, I made 

references to one diagnosis that you made in the silica multidistrict 

litigation for a person that you had previously diagnosed with asbestosis. 

This diagnosis is in the binder in front of you in Tab 8. And Dr. Ballard, 

will you certify that this and each of the diagnosis that you made in this 
123

litigation are accurate and made pursuant to all medical practices, 

standards, and ethics? 

 DR. BALLARD. On the advice of my attorney, I refuse to answer on 

the grounds of my constitutional privilege against self-incrimination. 

 MR. WHITFIELD. So you are refusing to answer all of our questions 

based on the right against self-incrimination afforded to you under the 

Fifth Amendment of the U.S. Constitution? 

 DR. BALLARD. Yes. 

 MR. WHITFIELD. And it is your intention to assert that right on any 

and all questions that we might ask you today? 

 DR. BALLARD. Yes. 

 MR. WHITFIELD. If there are no further questions from the members, 

then, I would dismiss you at this time subject to the right of the 

subcommittee to recall you if necessary and at this time you are excused. 

 At this time, I would like to call the third panel of witnesses and we 

have two members on that panel. First of all, we have Dr. George 

Martindale of Mobile, Alabama, and we have Mr. Heath Mason who is 

the co-owner and operator of N&M, Inc. of Moss Point, Mississippi. I 

want to thank you gentlemen for being with us today and as you are 

aware that the committee is holding an investigative hearing and when 

doing so we have the practice of taking testimony under oath. Do you 

have any objection testifying under oath today? 

 DR. MARTINDALE. No, sir. 

 MR. MASON. No, sir. 

 MR. WHITFIELD. Okay. The chair would advise you that under the 

rules of the House and the rules of the Committee, you are entitled to be 

advised by legal counsel. Do you desire to be advised by legal counsel 

during your testimony today? 

 MR. MASON. Yes, sir. I am represented by Mr. Luke Dove from 

Jackson, Mississippi. 

 MR. WHITFIELD. Mr. Luke Dove, okay, thank you, Mr. Dove. And 

Dr. Martindale? 

 DR. MARTINDALE. My legal counsel is with me, Mr. Doug Jones 

from Birmingham. 

 MR. WHITFIELD. Mr. Doug Jones of Birmingham. And do any of 

the, do any of the legal counsels intend to testify today-- 

 MR. DOVE. No, sir. 

 MR. WHITFIELD. --other than give advice. Okay. Well in that case, 

Mr. Mason if you and Dr. Martindale would stand up I would like to 

swear you in. 

 [Witnesses sworn.] 
124

 MR. WHITFIELD. Thank you. At this time, both of you are sworn in 

and I would ask you do you have an opening statement that you would 

like to give? 

TESTIMONY OF DR. GEORGE MARTINDALE, M.D.; AND 

HEATH MASON, CO-OWNER AND OPERATOR, N&M, 

INC. 

MR. MASON. No, sir, I will waive my opening statement. 

 MR. WHITFIELD. Dr. Martindale? 

DR. MARTINDALE. I have no formal opening statement. I would just 

like to say before any questions that during my experience with this 

whole process beginning to end, I have maintained that I was involved 

only as a B reader. I was never involved as a diagnosing physician. I 

wanted to make that quite clear. I am a practicing diagnostic radiologist 

who received certification from NIOSH to be a B reader, and I 

considered my activities in that very narrow spectrum. I have attempted 

at every turn to cooperate throughout this whole process, and I have 

never invoked Fifth Amendment rights and have been voluntary in my 

appearance whenever needed. 

 I would just like to note that in Dr. Welch’s testimony, I think she 

did draw a distinction between B readers and diagnosing physicians in 

that she did not hold B readers to the same standard as far as--let me 

consult my notes. I believe she said that the physician that ordered the 

chest X-rays, and the pulmonary function tests, and did the history, and 

physical, should be responsible for communicating the results of those 

tests, any additional follow-up exams, and the overall care of the 

individual examined, she specifically stated, I do not believe I would 

hold a B reader who has seen the X-ray say two or three weeks later to 

the same standard. 

 MR. WHITFIELD. Okay. Well, Dr. Martindale, thank you very much 

and for stating your position and I would like to ask you a question. On 

October 29, 2004, you were deposed by attorneys representing the 

defendants in the “In Re: Silica” matter, and in the deposition an attorney 

read to you the impression section of your report that I believe you have 

which is Tab 12, if you have it there. In the impression section of that 

report which states on the basis of the medical history review which is 

inclusive of a significant exposure to silica dust, physical exam, and the 

chest radiograph, the diagnosis of silicosis is established within a 

reasonable degree of medical certainty. After that, he asks, now, doctor 

that is simply inaccurate, isn’t it? And at this time, I would like to listen 

to your response in that deposition, if you would play that. 

 [Video]. 
125

 MR. WHITFIELD. That is sufficient, thank you. 

 Well I think you reiterated in that deposition what you have said 

today that it was never your intent to make a diagnosis. Is that correct? 

 DR. MARTINDALE. Yes, sir. 

 MR. WHITFIELD. And actually when you did that, you in effect 

tossed out one third of the 10,000 claims in the multidistrict litigation. 

Now, tell me how did that happen? 

 DR. MARTINDALE. Well, you have to go back to when I approved 

the wording in that specific paragraph, and I had been a B reader with a 

verbal contract with N&M Testing for--I do not remember precisely 

when this happened--but some two to three months. Mr. Mason called 

me, and I had been dictating reports with an impression, in my own 

words that I typically used on my reports in private practice, typically 

saying that this would be consistent with a clinical diagnosis of 

asbestosis or silicosis. He proposed this change and wanted to fax it to 

me for my viewing and to see if I would be willing to accept it. So he 

did, and he called later. I said I had read it, and that I did not really 

believe that it changed basically what I was doing and the essence of 

what I was trying to say. You have to understand that for the four years 

of my residency and the, at that time, about 12 years of private practice, I 

had never filled the role of a diagnosing physician on any X-rays that I 

undertook to interpret. I was a radiographic consultant. I would dictate a 

report; that report would then be sent to the physician who did the history 

and physical, the whole clinical work up, maybe the hospital kept a copy. 

I did not keep a copy, and the physician who was in charge of the clinical 

workup related the findings and also correlated with any clinical history 

and physical findings. And so I had never been put into this position; I 

never represented myself as having been trained in, nor having any, 

clinical expertise in the diagnosis of pulmonary diseases outside of their 

radiographic manifestations, ever. I want to make that very clear. I had 

never represented myself in that fashion. 

 MR. WHITFIELD. No, I am sorry. Go ahead. 

 DR. MARTINDALE. Add to that, that I knew, and I had been told by 

Mr. Mason, Dr. Ray Harron traveled with his screening company, and 

had for some time, years. He was conducting histories and physicals on 

all of these patients. He was overseeing the pulmonary function studies. 

He was interpreting the chest X-ray, and I was to be the second reading 

on the chest X-ray. Maybe I had tunnel vision, but I never had any 

reason to believe that I could possibly be the diagnosing physician. I was 

basically a consultant on films as a second reading even so that when I 

read this paragraph. 
126

 MR. WHITFIELD. So Mr. Mason had led you to believe that there 

was another doctor that was really examining the patient, taking the 

medical-- 

 DR. MARTINDALE. Well, he had told me that, yes. 

 MR. WHITFIELD. Okay. And Dr. Mason, I mean, Mr. Mason what 

do you have to say about that? 

 MR. MASON. I agree with Dr. Martindale on the portion that we had 

a doctor that saw the client before it got to him. 

 MR. WHITFIELD. And who was that doctor? 

 MR. MASON. In most instances I would say it was Dr. Harron. Over 

all the instances, I probably could not say; but I would say in the 

majority of the cases that Dr. Martindale saw, Dr. Harron had performed 

some type of physical on those people. 

 MR. WHITFIELD. So why did you need Dr. Martindale? 

 MR. MASON. I particularly did not need him at all, sir. From our 

standpoint, the lawyers contacted us and said that they needed another 

doctor to diagnose these clients for them. So that-- 

 MR. WHITFIELD. Why could they not use Dr. Harron? 

 MR. MASON. They just told me they had to have another doctor. No 

reason as to why it was. They just said they had to have another doctor 

to have, to diagnose these clients. 

 MR. WHITFIELD. Let me ask you some other questions, Mr. Mason. 

Over the past several years, if I am correct, you have supplied screening 

services in the following States: Ohio, Texas, Louisiana, West Virginia, 

Alabama, California, Mississippi, Florida, Missouri, Wisconsin, 

Kentucky, Hawaii, Virgin Islands, Arkansas, Illinois, and Pennsylvania. 

How do you ensure that you are conducting your operations, including 

the administration of chest X-rays, on perhaps dozens of people per day 

in accordance with the State medical and radiological laws? 

 MR. MASON. I guess I would have to go back, number one, to all the 

States that you just rendered off. I do not know that, honestly, I did work 

in all of those places. I would have to see that. But from a standpoint of 

what did we do to ensure that we were able to do chest X-rays in a State, 

you always had to contact the State and let them know that you were 

coming, where you were coming to. You had to provide them who was 

doing those chest X-rays for you, and you had to provide a license that 

they had in that State, and those are the things that we did. 

 MR. WHITFIELD. Who in your company was responsible for 

ensuring compliance with those rules? 

 MR. MASON. You know, when you are the owner, you are as 

responsible as anybody I would say, so I guess I would not say there was 

one responsible or the other; but Molly Nolan did do a good portion of 
127

our X-ray stuff for us, but overall when you are an owner you are as 

responsible as the other party. 

 MR. WHITFIELD. And you were retained by these law firms, certain 

law firms to do these mass screenings. Is that correct? 

 MR. MASON. Yes, sir. We were contacted by different law firms to 

do a screen in different areas, yes, sir. 

 MR. WHITFIELD. Could you give us the name of a couple of those 

law firms or-- 

 MR. MASON. Oh, Lord, sir, it was a lot. 

 MR. WHITFIELD. Okay. One other question, and then my time has 

expired. But who was prescribing the X-rays in each of your screenings? 

 MR. MASON. It was different. It is according to the State that you 

are in. Did the State have a priority, have a-- 

 MR. WHITFIELD. For the ones that Dr. Martindale looked at. 

 MR. MASON. There, again, I do not know. I do not remember 

exactly the ones that Dr. Martindale has read and from where we did 

them. But as far as a prescription for a chest X-ray goes, if a State did 

not have the procedure set up for what they called a healing arch screen, 

then, if we were there for the lawyers, they would provide us with an Xray prescription from whatever doctor it is that they had agreed would 

prescribe the X-rays, for us to take the X-rays for them and provide them 

with those X-rays. 

 MR. WHITFIELD. So the lawyers would provide that to you? 

 MR. MASON. Yes, sir. 

 MR. WHITFIELD. Okay. My time has expired. I will recognize the 

gentleman from Michigan. 

 MR. STUPAK. Thank you. 

 Mr. Mason so it is your testimony that the patients would come with 

a prescription then from a doctor? 

 MR. MASON. Sir, I am sorry. I was looking for you. 

 MR. STUPAK. Okay. Is it your testimony then that a patient would 

come to be screened by you or by your company? They would have a 

prescription from a doctor? 

 MR. MASON. If they were not in a State where we qualified for a 

healing art screen. 

 MR. STUPAK. Okay. If they did not? 

 MR. MASON. Yes, sir. 

 MR. STUPAK. Okay. And when you took these X-rays in the State, 

you had to be or the person taking the chest X-ray had to be licensed by 

that State? 

 MR. MASON. Yes, sir. 

 MR. STUPAK. Okay. So would you usually get someone from that 

State? Let us say you are up in Pennsylvania. Would you get someone 
128

from Pennsylvania to come and work for your company then to take 

these X-rays? 

 MR. MASON. No, sir. We tried to keep the same X-ray techs 

because the technique for these films were particular. It was not in a 

hospital setting. 

 MR. STUPAK. Okay. 

 MR. MASON. So what we did was we would have them go take the 

exam or receive the exam from the State that we were trying to go to 

previously, and let them take that exam ahead of time. 

 MR. STUPAK. So there is no question here that your X-ray 

screenings, whatever you want to call them, were taken according to the 

standards of the State in which they were conducted? 

 MR. MASON. Yes, sir. 

 MR. STUPAK. Okay. Dr. Martindale if I may. I am looking at Tab 

11 in the book there which is your letter, I believe to Billy Davis. 

 DR. MARTINDALE. Yes, sir. 

 MR. STUPAK. I am at the second paragraph. It says in 2001, 2002, 

one year, you were hired by N&M, Inc., an industrial testing company to 

review X-rays of workers “who I was told had been clinically 

diagnosed.” Who told you that, sir? 

 DR. MARTINDALE. Heath Mason. 

 MR. STUPAK. Okay. And then goes on to say, next sentence, “I was 

told that Dr. Harron.” Again, who told you that? Mr. Mason? 

 DR. MARTINDALE. Mr. Mason. 

 MR. STUPAK. Okay. It says “I was told that Dr. Harron was a 

specialist in the field and that he performed a medical and occupational 

history, physical exam, pulmonary function tests, and chest X-ray on 

each patient, and that each case I would be asked to review involved a 

positive diagnosis by him.” Did you have Dr. Harron’s reports for any of 

these when you made-- 

 DR. MARTINDALE. I was mailed the X-rays. 

 MR. STUPAK. Correct. 

 DR. MARTINDALE. Chest X-rays. 

 MR. STUPAK. Correct. 

 DR. MARTINDALE. And initially, that was all I was mailed, the chest 

X-ray which came in a jacket, but the outside of the jacket had Dr. 

Harron’s handwritten-- 

 MR. STUPAK. Notes. 

 DR. MARTINDALE. --which is in the aisle of shorthand that was 

essentially chest X-ray interpretation. 

 MR. STUPAK. Okay. So you really did not have any of these other 

tests to look at then like a physical, the occupational history. You did not 

have the physical exam, the pulmonary function test in front of you? 
129

 DR. MARTINDALE. At the start of my reading for them? 

 MR. STUPAK. Right, correct. 

 DR. MARTINDALE. No, sir. 

 MR. STUPAK. Okay. 

 DR. MARTINDALE. That came a little bit later. 

 MR. STUPAK. That came later. Okay, it goes on, “It was explained 

to me that the B reader was needed to validate the finding of the 

examining physician. It was explained to me again by Mr. Mason.” Is 

that yes? 

 DR. MARTINDALE. Yes, sir. 

 MR. STUPAK. Okay. I am going down to the next paragraph, third 

paragraph: “A portion of my reads were reported as negative, but most 

were consistent with the diagnosis. I was not made aware of any 

individual who had also been diagnosed with a similar lung disease, 

either asbestosis or silicosis.” You were not informed that, but did you 

ask these patients. Or you never saw a patient? 

 DR. MARTINDALE. I never had any contact at all with the patients. 

If I could just make one point-- 

 MR. STUPAK. Sure. 

 DR. MARTINDALE. --about the clip that was shown. This is why in 

that impression, when I looked at it and approved it, I want you to 

understand the perspective of which I was viewing the paragraph, never 

having any contact with any of these people, having the whole workup 

done by someone else, I had been told I was the second interpretation of 

a chest X-ray. When I read that the diagnosis of silicosis is established, I 

had been told a diagnosis existed, and I assumed that the diagnosis was 

Dr. Harron’s diagnosis. 

 MR. STUPAK. Sure. So if you were told that Dr. Harron had already 

diagnosed them as silicosis, you were there to validate it, and you 

validated it through reading this X-ray, if you will? 

 DR. MARTINDALE. Right. I really felt I was more validating his 

chest X-ray findings and then linking those to his diagnosis. 

 MR. STUPAK. So anything else that Dr. Harron may have concluded 

from that patient, you were not really concerned about; you were just to 

read this X-ray. 

 DR. MARTINDALE. Yes, sir. 

 MR. STUPAK. Okay. Could the examining physician make his 

diagnosis without your reading? 

 DR. MARTINDALE. Yes, sir. I do not believe that he required a 

second read. As it was explained to me when I began reading these 

films, the second read really was, in instances, becoming more prevalent, 

that for settlement of cases they were requiring a second opinion on the 

chest X-ray-- 
130

 MR. STUPAK. Okay. 

 DR. MARTINDALE. --not on the diagnosis. 

 MR. STUPAK. Okay. Were you hired by Mr. Mason’s company 

then? 

 DR. MARTINDALE. Mr. Mason. I had a verbal contract with Mr. 

Mason, yes, sir. 

 MR. STUPAK. Okay. And is there an examination or certification 

you have to take to be a B reader? 

 DR. MARTINDALE. Yes, I believe that someone on the committee 

referred to the NIOSH exam-- 

 MR. STUPAK. Right. 

 DR. MARTINDALE. --as being very rigorous. It is. I am here to tell 

you very rigorous, and I think I have referenced in my letter that it is so 

difficult that people such as myself, after four years of medical school, 

four years of residency, and variable years of training, two thirds in many 

years do not even pass the test, and it only takes a 50 percent to pass the 

test. 

 MR. STUPAK. This NIOSH test, once you take it, do you have to get 

re-licensed every-- 

 DR. MARTINDALE. You are licensed, initially, for four years. At the 

end of that period of time, you can go back and get another 

recertification for four years. 

 MR. STUPAK. Have you ever gone for recertification? 

 DR. MARTINDALE. No, sir, my entire experience in B-reading films 

was from April of 2001 to June of 2002. I read only films for N&M; I 

did not read anyone else’s films. 

 MR. STUPAK. Well, as you sit here today, do you have any reason to 

believe that if you look back at these same films, the results differ 

significantly from what you reported? 

 DR. MARTINDALE. No, sir. I do not believe the results of my 

interpretation of the chest X-ray would. 

 MR. STUPAK. Okay. When you were given these B reads or these 

films to read were you under the impression that each of the X-rays came 

from an individual who had been given an initial clinical diagnosis of 

silicosis? 

 DR. MARTINDALE. Yes, sir. 

 MR. STUPAK. Okay. Do you think that, despite the fact that you, 

personally, did not have a doctor-patient relationship with individuals 

whose X-rays you were receiving, an individual found to have possibly a 

serious pulmonary disease, such as silicosis, asbestosis, or fibrosis or 

cancer, would receive a certified letter from a healthcare professional 

indicating this to the patient? 
131

 DR. MARTINDALE. What I was told initially when I first verbally 

contracted, and we were discussing some of the ramifications of it, since 

asbestosis does have a significant increase incident of having carcinoma 

and things-- 

 MR. STUPAK. Correct. 

 DR. MARTINDALE. --if my ILO form and my report included 

anything referencing the possibility of cancer or, i.e., any other 

significant life threatening illness, that individual would receive from 

N&M Testing a certified letter notifying them of that. That is what I was 

told by Mr. Mason. 

 MR. STUPAK. Okay. Let me ask you this, did you know if Mr. 

Mason ever had a stack of blank medical forms pre-signed by Dr. 

Harron? 

 DR. MARTINDALE. No, sir, I would not know. 

 MR. STUPAK. Okay. If a physical examination and B read indicated 

a good possibility of silicosis or other pulmonary disease, was anyone 

responsible for providing this information to the people being screened? 

I mean other than the certified letter, did you have any responsibility to 

pick up a phone and call someone? Maybe not the patient, but Mr. 

Mason or someone? 

 DR. MARTINDALE. I would just answer that by saying that every 

report went back to Mr. Mason, and Mr. Mason processed every report. 

I would also just go back and reference Dr. Welch again when she said 

that she felt the physician who ordered the chest X-ray, the pulmonary 

function test, had done the history and physical on the individual, they 

bore the responsibility of notifying the patient of any significant disease 

and the results of those tests. 

 MR. STUPAK. Okay. So you did not? 

 DR. MARTINDALE. So, no, sir, I felt no obligation. I would only add 

to that that again in my professional career and private practice-- 

 MR. STUPAK. Sure. 

 DR. MARTINDALE. When I interpret X-rays, I do not inform the 

patient either. There are times I do biopsies. I know the patient has 

cancer before they leave the room, but it is not my position to do that, not 

my place to do that. 

 MR. STUPAK. Sure, I understand that. I just sort of got the 

impression sitting here all afternoon that there are sort of these tight 

groups here of people working together and maybe different ones are 

doing it. Did you have any reason to doubt the diagnosis of Dr. Harron? 

 DR. MARTINDALE. No. 

 MR. STUPAK. Okay. Did you receive a lesser payment or no 

payment if a B read you made was not positive? Did you get a different 

fee for positive or negative? 
132

 DR. MARTINDALE. No, sir, I got $35 whether it was positive or 

whether it was negative. 

 MR. STUPAK. Okay. Did you have any reason to believe or suspect 

that Mr. Mason or his firm was not acting in good faith? 

 DR. MARTINDALE. No, sir. 

 MR. STUPAK. The time is up. Mr. Chairman, thank you. 

 MR. WHITFIELD. At this time, I recognize Dr. Burgess. 

 MR. BURGESS. Thank you, Mr. Chairman. 

 Mr. Mason, if I am reading this right in the evidence book that we 

have under Tab 1 on the sign-in sheet from February 15 of 2002, there 

were 111 people screened that day. Is that correct? 

 MR. MASON. If we are looking at the, this is Tab 1, you mean? 

 MR. BURGESS. Yes. 

 MR. MASON. This is not a sign-in sheet, sir. This is a report for the 

lawyers at the end of the day on who is positive and who is negative. 

This is not a total of who was screened and who was not screened. 

 MR. BURGESS. Okay. So everyone on this sheet was reported 

positive? 

 MR. MASON. Yes, sir. This is a list of people that were positive that 

day, but there might have been 160 people that came through the door, 

and they are just not listed. The rest of these people are not listed on the 

sheet. 

 MR. BURGESS. And it was reported elsewhere--I think on NPR--that 

there were days that there were 90-plus positives on these sheets. Is that 

unusual? 

 MR. MASON. No, sir. 

 MR. BURGESS. Well, after someone would test as or screen as 

positive, what was your role then? Did you help them find legal 

representation or had that already been prearranged? 

 MR. MASON. We are going to have to be much more specific 

because there are 50 different ways that that can come about. I mean you 

will have to be specific to a client and tell me exactly how he contacted 

me or did the lawyer send him to me. I mean there are numbers of 

different ways to answer that question all according to the client. 

 MR. BURGESS. Well, generally, how would the screenings be set up? 

Who would bring the patients to you? 

 MR. MASON. Generally, there was a number of different ways that 

that happened as well. 

 MR. BURGESS. Would you just set up in a Wal-Mart parking lot and 

say come be screened? 

 MR. MASON. Well, I would not particularly say a Wal-Mart parking 

lot, no, sir. But, you know, again, you are asking me to be way too broad 
133

on exactly how we set up our screens when there were too many 

numbers of ways we did. 

 MR. BURGESS. Well, would patients ever be sent to you by someone 

to be screened? Let us say Dr. Harron would send you patients to be 

screened? 

 MR. MASON. No. 

 MR. BURGESS. Well, how would N&M initially help a firm select 

potential silicosis plaintiffs? 

 MR. MASON. There, again, there is numbers of different ways that 

that can happen. It is according to what law firm you are asking me 

about. 

 MR. BURGESS. Say Campbell Cherry. 

 MR. MASON. Campbell Cherry would want us to initiate their work 

history information. They would give us a criteria of what they wanted 

or what they would accept as reasonable exposure to silica. They would 

give us, basically, the years that they wanted, like they had to start by 

1978 and have at least two years of exposure and they would have to be 

signed to their exposure and say hey, I have been exposed to silica, and 

this is where I was exposed, and I was exposed there for this amount of 

years. That was the criteria from Campbell Cherry, basically. 

 MR. BURGESS. What were your company’s goals for organizing 

those screenings, like the number of people attending? 

 MR. MASON. We did not really have any. I mean there, again, it is 

according to what screen we are trying to do. I mean, basically, it is just 

hard to say; it is according to the screen. 

 MR. BURGESS. Well, what kind of strategy would you follow for 

organizing a screening? I mean do you-- 

 MR. MASON. From whom? 

 MR. BURGESS. Just from say Campbell Cherry. 

 MR. MASON. What we would do is we would accept the calls from 

people that they thought were exposed to silica. We would screen those 

people over the telephone. We would see if they met the criteria that 

Campbell Cherry had passed down to us. If they did, especially in silica, 

we had to forward that information to Campbell Cherry. They had to 

approve the list of people that we thought were exposed, and then we 

would set those screens up for them by contacting the client and telling 

them this is where the screen is going to be; this is when you need to be 

there. And it was our responsibility to make sure the person was there 

and that we had took the best work history that we could get from the 

client. 

 MR. BURGESS. Okay. So you took a work history. Did you take a 

medical history as well? 
134

 MR. MASON. No, sir. Basically, we asked them whether they 

smoked cigarettes or not. Over the years, I would have to have what we 

consider our A sheet to tell you exactly what it was that we did. Dr. 

Harron basically took their brief medical history when he talked to them. 

 MR. BURGESS. So if a medical history was taken it was taken by a 

physician, not by one of your employees? 

 MR. MASON. All we did, basically, from our staff’s standpoint was, 

ask them whether they smoked cigarettes or not, mainly their history, 

their address. And basically Dr. Harron spoke with them about the 

medical things that he thought was important for the case. 

 MR. BURGESS. Did you retain files on the patients that you screened 

for the asbestos litigation? 

 MR. MASON. Yes, sir. We have deposited all of those into Corpus 

Christi. I assume it is called the depository. 

 MR. BURGESS. Okay. And the same for the silicosis litigation? 

 MR. MASON. Yes, sir. Basically, I voluntarily sent every file that 

we ever did in our life to Corpus Christi when I was in front of Judge 

Jack. 

 MR. BURGESS. Now, do you yourself have any specific medical 

background or training? 

 MR. MASON. No, sir. 

 MR. BURGESS. Has your company, N&M, ever had a medical 

director or been under the supervision of a licensed physician? 

 MR. MASON. No, sir. 

 MR. BURGESS. Now your staff asks screening questions in order to 

determine which patients were most likely to have an occupational 

exposure to silica, and only those patients were X-rayed. Who drafted 

the questions that were used in the screening process? 

 MR. MASON. You know, by the time that silica got there, we were 

fairly well adept to how to ask people about their exposure. I mean we 

had been in the asbestos field as well. So in the beginning, silica was 

new for us, so we sort of went by the client saying that he was exposed to 

silica and where he was exposed at, and pretty much there was not a 

question list. That was pretty much it. 

 MR. BURGESS. Well, did you ever had a law firm review the 

questions that you asked the patients during the screening process? 

 MR. MASON. I am sorry? 

 MR. BURGESS. Did you ever have a law firm review the questions 

that you ask during the screening process? 

 MR. MASON. No, sir. 

 MR. BURGESS. What type of dollars are we talking about for one of 

these mass screenings? And would you make money doing this? 
135

 MR. MASON. Well, sir, I was a businessman. I hope to make 

money, yes, sir. 

 MR. BURGESS. So can you give me an idea of what kind of money? 

 MR. MASON. It is according to what we are talking about. When? 

How? I mean there are numbers of different ways to make money. 

 MR. BURGESS. Do we have available any of the financials for 

N&M? Would we have access to that information? 

 MR. MASON. Yes, I am sure you could have access to it. I do not 

know that we have produced it in other depositions that we have been in 

or other court cases. There is numbers of-- 

 MR. BURGESS. Well, you pay taxes? 

 MR. MASON. Oh, no, sir, I do not have any problems with that. 

 MR. BURGESS. So did you make a million dollars that year or-- 

 MR. MASON. No, sir, I never made a million dollars. 

 MR. BURGESS. A hundred thousand dollars? 

 MR. MASON. Yes, sir, I am sure I made $100,000. 

 MR. BURGESS. Okay, so we have narrowed it down. 

 MR. MASON. Yes, sir. I made between one hundred and a million. 

 MR. BURGESS. Were you paid regardless of the diagnosis regardless 

of the findings? 

 MR. MASON. Sir? 

 MR. BURGESS. Were you paid regardless of the findings? Were 

you-- 

 MR. MASON. In what application? 

 MR. BURGESS. Dr. Martindale testified that he was paid $35 for 

reading the film whether it was positive or negative. 

 MR. MASON. I mean you are going to have to be more specific on 

what screen we are talking about. 

 MR. BURGESS. Did Campbell Cherry Law Firm only pay you for 

positives? 

 MR. MASON. Yes, sir. 

 MR. BURGESS. How much did they pay you? 

 MR. MASON. It was different amounts. So you are going to have to 

be specific on when. 

 MR. BURGESS. For a positive test in January of 2001. 

 MR. MASON. I have no idea. 

 MR. BURGESS. Okay. Were there any firms that paid you only for 

positives and not for negatives? 

 MR. MASON. Yes. 

 MR. BURGESS. Which specifically? 

 MR. MASON. Which firms? 

 MR. BURGESS. Yes, which firms? 
136

 MR. MASON. Lord, I have no idea. I mean, there is a lot, and there 

is also firms that paid me for both. 

 MR. BURGESS. Well, what about the O’Quinn Firm? Does that ring 

a bell to you? 

 MR. MASON. Yes, I am very familiar with the O’Quinn firm. Yes, 

sir. 

 MR. BURGESS. Would they pay you for positives? 

 MR. MASON. Here, again, we are not in the same scenario. O’Quinn 

would hire us to come in to do their chest X-rays, which means we got 

paid for every chest X-ray we did. Then, O’Quinn would hire us to come 

in and do their pulmonary functions and physicals, and we got paid for 

every pulmonary function and physical that we did. 

 MR. BURGESS. Was the payment different if the chest X-ray, 

pulmonary function, and physical were consistent with a diagnosis of 

either asbestosis or silicosis? 

 MR. MASON. No, sir. 

 MR. BURGESS. Mr. Chairman, I see my time has expired. I will 

yield back. 

 MR. WHITFIELD. Okay, at this time recognize Ms. DeGette. 

 MS. DEGETTE. Thank you, Mr. Chairman 

 Dr. Martindale, you are a trained physician. Is that correct? 

 DR. MARTINDALE. Yes. 

 MS. DEGETTE. And can you tell me what kind of education and 

medical training that requires? Where did you go to college? Where did 

you go to medical school? Where did you do your residency and 

internship? 

 DR. MARTINDALE. Yes, I went to undergraduate school to college at 

the University of Tennessee in Knoxville. 

 MS. DEGETTE. Great. 

 DR. MARTINDALE. And medical school at the University of-- 

 MS. DEGETTE. That is four years, right? 

 DR. MARTINDALE. Four years, of medical school at the University 

of Tennessee in Memphis, the Health Sciences, and four years of 

diagnostic radiology training at the University of Virginia in 

Charlottesville, Virginia. 

 MS. DEGETTE. And you are a radiologist by trade? 

 DR. MARTINDALE. I am a diagnostic radiologist. 

 MS. DEGETTE. And how long have you been practicing? 

 DR. MARTINDALE. Sixteen-and-a-half years. 

 MS. DEGETTE. Sixteen-and-a-half years. And in your 16-1/2 years 

in practice, the vast majority of the diagnostic radiology that you do is 

for physicians who refer your patients to you and then you give the 

reports back. Correct? 
137

 DR. MARTINDALE. Virtually 100 percent, yes. 

 MS. DEGETTE. And in fact, the only time that you did not have that 

type of relationship was in the situation we are talking about now? 

Correct? 

 DR. MARTINDALE. Correct. I would only qualify that in that I 

considered Ray Harron to be a diagnosing physician. 

 MS. DEGETTE. Right, but you were not hired by him. 

 DR. MARTINDALE. Right, correct. 

 MS. DEGETTE. You were hired by Mr. Mason’s private company-- 

 DR. MARTINDALE. Correct. 

 MS. DEGETTE. --which is not a physician, correct? 

 DR. MARTINDALE. Correct. 

 MS. DEGETTE. And you were hired to perform a review of these Xrays. Correct? 

 DR. MARTINDALE. Correct. 

 MS. DEGETTE. And you send your results back to Mr. Mason, 

correct? 

 DR. MARTINDALE. Correct. 

 MS. DEGETTE. And Mr. Mason was he the one, or his company the 

one, that provided you with the language that you included in each one of 

your 3,617 reports as to the diagnosis? 

 DR. MARTINDALE. Yes. 

 MS. DEGETTE. Okay. So he gave you that language to sign, 

correct? 

 DR. MARTINDALE. Yes. 

 MS. DEGETTE. Now, you testified earlier today and also in your 

deposition that, really, you felt that it was your job to give a second 

opinion. You said, “I did not see my role in making a diagnosis of 

silicosis. I see my role as interpreting the chest X-ray, producing and 

ILO based on the chest X-ray.” Correct? 

 DR. MARTINDALE. Yes. 

 MS. DEGETTE. But Dr. Martindale, on 3,617 forms you stated, and 

you signed “on the basis of the medical history review which is inclusive 

of a significant occupational exposure to silica dust physical exam and 

the chest radiograph, the diagnosis of silicosis is established within a 

reasonable degree of medical certainty.” Correct? 

 DR. MARTINDALE. Yes. 

 MS. DEGETTE. Now, Doctor, you said before today, when you 

agreed to do that, you did not understand what it meant. Is that right? 

 DR. MARTINDALE. No, I said that when I read that paragraph, I had 

never been in that position. 

 MS. DEGETTE. Okay. 

 DR. MARTINDALE. Yes, ma’am. But it was-- 
138

 MS. DEGETTE. But did you understand that in that paragraph you 

are signing something that says that you are confirming a diagnosis of 

silicosis. Did you understand that part? 

 DR. MARTINDALE. What-- 

 MS. DEGETTE. Because that is what it says? 

 DR. MARTINDALE. Well, what I understood from my perspective 

was I was told when I signed off on that paragraph that this language was 

needed to better link my chest X-ray reading with the diagnosis. 

 MS. DEGETTE. Okay. But you are a physician, right? 

 DR. MARTINDALE. Yes, ma’am. 

 MS. DEGETTE. You know what it means to make a diagnosis of 

something. Correct? 

 DR. MARTINDALE. Yes, ma’am. 

 MS. DEGETTE. In fact, I assume you have diagnosed problems 

before, right? 

 DR. MARTINDALE. Yes. 

 MS. DEGETTE. But this does not say I am confirming the chest Xray. 

 DR. MARTINDALE. Not a clinical diagnosis. 

 MS. DEGETTE. It says the “diagnosis of silicosis is established 

within.” You are certifying; you are establishing a diagnosis of silicosis. 

Correct? Doesn’t it-- 

 DR. MARTINDALE. What I was trying-- 

 MS. DEGETTE. Go ahead. 

 DR. MARTINDALE. What I believe that paragraph to say, and my 

intent, was the diagnosis I was not interpreting taking on as my diagnosis 

or a diagnosis. The films came with a diagnosis. I was told a diagnosis 

already existed, and I was saying these findings would be consistent or in 

keeping within a reasonable degree of medical certainty the diagnosis of 

Dr. Harron is the way that I was interpreting it. 

 MS. DEGETTE. Okay. It does not say that does it in that statement 

that you signed 3,617 forms does it? 

 DR. MARTINDALE. No, ma’am, and-- 

 MS. DEGETTE. No. Now, Mr. Mason, let me ask you did you write 

that language that you gave to Dr. Martindale? 

 MR. MASON. No, ma’am. 

 MS. DEGETTE. Who wrote that language? 

 MR. MASON. That came to me from the Campbell Cherry Law Firm. 

 MS. DEGETTE. The lawyers wrote that language? 

 MR. MASON. Yes, ma’am. 

 MS. DEGETTE. And did you tell Dr. Martindale he had to include 

that in the forms? 
139

 MR. MASON. No, ma’am, I sent it there for his approval. I did not 

say it had to be there. I said this is what the lawyers are saying they have 

to have-- 

 MS. DEGETTE. And is that true, Dr. Martindale? Did you feel like 

you had an option to maybe put the words I am confirming Dr. Harron’s 

review of the X-rays or something like that? Did you feel like you had 

leeway to edit that up? 

 DR. MARTINDALE. I do not think we ever discussed editing it. 

When I read that from my perspective, I did not see that it was putting 

the diagnosis on me. I believe from my perspective, and my intent was, 

that it was describing Dr. Harron’s. I understand now in retrospect in 

having the-- 

 MS. DEGETTE. Okay. Let me ask you a question from my 

perspective. Let us say I was a lawyer, and let us say I was practicing 

personal injury law, and let us say Dr. Harron gave me a diagnosis of 

silicosis. What I need, as a lawyer, is I need a second opinion from a 

trained medical doctor confirming the diagnosis. This is what you did. 

Correct? You confirmed; you gave a second opinion; and you said this is 

inclusive of a significant occupational exposure to silica dust, physical 

exam, and the chest radiograph, the diagnosis of silicosis is established 

within a reasonable degree of medical certainty. 

 DR. MARTINDALE. Ms. DeGette-- 

 MS. DEGETTE. It does not say anything about Dr. Harron. 

 DR. MARTINDALE. Ms. DeGette, I was told that this was a 

paragraph. I was told it was from attorneys that they needed for better 

legal wording, legalese, to link my chest X-ray findings with the 

diagnosis. But I never was told, I never was aware, that I was would be 

changing my role from a B reader, which I had already agreed to the 

diagnosing physician. It was never discussed ever and I would-- 

 MS. DEGETTE. Well, let me ask you this. Do you think this 

language is consistent with a B reader now? Now do you think that? 

 DR. MARTINDALE. I think that in retrospect, I can understand how 

you can read that and have a different perspective on it than I did. And if 

I had my choice, I would not word it the same way today. 

 MS. DEGETTE. Well, I bet that is true. 

 DR. MARTINDALE. All I can do is emphasize that I did not have that 

perspective or that intent at the time that I reviewed it. 

 MS. DEGETTE. Now did you ever, on these 3,617 reviews that you 

did, find a finding that was inconsistent with Dr. Harron’s diagnosis? 

 DR. MARTINDALE. Yes. 

 MS. DEGETTE. How many times? 

 DR. MARTINDALE. I could estimate it would be a guess. 

 MS. DEGETTE. Okay. 
140

 DR. MARTINDALE. Maybe over 400 probably. 

 MS. DEGETTE. Okay, over 400. And you sent those back to Mr. 

Mason as well? 

 DR. MARTINDALE. Yes. 

 MS. DEGETTE. Now, Mr. Mason, let me ask you this: Dr. Harron 

was hired by you. Is that correct? 

 MR. MASON. Yes, ma’am. 

 MS. DEGETTE. And did Dr. Harron perform actual physicals on all 

of these patients? 

 MR. MASON. Not on all of them, no, ma’am. 

 MS. DEGETTE. How many of the patients did he perform physicians 

on? 

 MR. MASON. I am sorry from my end, from the MDL, standpoint I 

would not know. 

 MS. DEGETTE. Okay. So basically what happened is the lawyers 

hired you to have a diagnosis made. Correct? Did the lawyers give you 

the names of the patients? 

 MR. MASON. No, ma’am. I mean there is-- 

 MS. DEGETTE. Tell me how it worked. 

 MR. MASON. There is numbers of different events that we are 

talking about. Sometimes it would not be on our part at all for a doctor 

to make a diagnosis, it would just be our portion to come there and do 

our chest X-rays. The lawyers had their chest X-rays and they were 

diagnosed by-- 

 MS. DEGETTE. No, yes, I am talking about these cases, the silicosis 

cases. 

 MR. MASON. So am I. 

 MS. DEGETTE. Okay. So sometimes they came from all different 

sources? 

 MR. MASON. Yes, ma’am. 

 MS. DEGETTE. Okay. And then you sent them to Dr. Harron? 

 MR. MASON. No, ma’am. 

 MS. DEGETTE. Okay. 

 MR. MASON. I mean again, there are numbers of different ways that 

different law firms that we had agreed with different law firms. I mean if 

we just did a chest X-ray on someone, we sent it to the law firm. The 

law firm picked whatever doctor they wanted to use and I do not know 

that that was Dr. Harron that they used for that. 

 MS. DEGETTE. So you would have no idea if once you got these 

results back from Dr. Harron, Dr. Martindale-- 

 MR. MASON. We did not get the results. 

 MS. DEGETTE. Let me finish my question, 

 MR. MASON. I am sorry. 
141

 MS. DEGETTE. Oh, you did not get the results? Where did the 

results go, directly to the lawyers? 

 MR. MASON. Yes, ma’am. 

 MS. DEGETTE. So when Dr. Martindale did his little certification, 

when he reviewed the X-rays and did his certifications, he did not send 

that information back to you? 

 MR. MASON. Okay, that is a totally different subject we are talking 

about now; that is a different scenario. If we were using Dr. Martindale, 

then the X-rays came from me. But in other lawyer situations, Dr. 

Martindale was not used in those situations, so that-- 

 MS. DEGETTE. Well I am talking about in Dr. Martindale’s 

situation. 

 MR. MASON. Okay. In Dr. Martindale’s situation, you asked me. 

What you are trying to get from me? 

 MS. DEGETTE. Yes. You hired Dr. Martindale to review Dr. 

Harron’s findings. Correct? 

 MR. MASON. Right, yes, ma’am. 

 MS. DEGETTE. He then filled out the certification. He sent it back to 

you. Correct? 

 MR. MASON. Yes, ma’am. 

 MS. DEGETTE. And you sent it to the lawyers. Correct? 

 MR. MASON. Yes, ma’am. 

 MS. DEGETTE. You would have no idea if those results, or Dr. 

Harron’s results, ever made it to the patient. Is that correct? 

 MR. MASON. The only thing that I would know about the patients 

would be if Dr. Martindale said that he had possible cancer, we would 

send them a certified letter in the mail, and let them know immediately 

when we got the results back. 

 MS. DEGETTE. What if it said as they all, as 3,600 and some said 

that they had a diagnosis of silicosis? Did you send the patient a certified 

letter at that point? 

 MR. MASON. We did not have to. Dr. Harron had told them the 

same day that we were there that they had silicosis. There was no delay. 

 MS. DEGETTE. And did you see Dr. Harron tell them that? 

 MR. MASON. No, ma’am. I mean that was not my job. 

 MS. DEGETTE. Right. 

 MR. MASON. But I mean we told them the same day, because we 

had to tell them that they had something so that they would go to the 

lawyers. 

 MS. DEGETTE. Mr. Chairman, I have a lot more questions, but we 

have got a vote on. You have been very generous. 
142

 MR. WHITFIELD. Well, we do have a series of votes, so we are not 

going to be coming back, but I wanted to just ask a couple more 

questions. 

 Mr. Mason what percent of your revenue was generated from doing 

work for law firms? 

 MR. MASON. Ninety-nine percent. 

 MR. WHITFIELD. So basically that was your business, doing for law 

firms? 

 MR. MASON. Yes, sir. 

 MR. WHITFIELD. And there was not anyone in your business that 

had any legal training, per se. You did not have legal training? 

 MR. MASON. No, sir. 

 MR. WHITFIELD. Referring to the case in Texas before Judge Jack--I 

think there was the law firm of Campbell Cherry--there was the Quinn 

firm involved in that as well. In those cases, did they contact you, and 

did you ever have any law firms contact you and say we want you. We 

want to give you information regarding people who have, or who are 

diagnosed with asbestosis, and we want to see now if they have silicosis? 

 MR. MASON. Yes, sir. 

 MR. WHITFIELD. Which law firms were those? 

 MR. MASON. Campbell Cherry sent us their inventory. They sent 

out a letter to their entire inventory with our 800-number on it, and asked 

us if we would ask the clients that they had if they ever had exposure to 

silica as well. 

 MR. WHITFIELD. Okay. 

 MR. MASON. And that is what we did. 

 MR. WHITFIELD. So these were people that they had already 

recovered money for asbestosis. 

 MR. MASON. I really do not know. I just know that they sent us an 

inventory. 

 MR. WHITFIELD. Now were you aware that it is extremely rare that 

someone would have both of these diseases? 

 MR. MASON. I had no knowledge of that. 

 MR. WHITFIELD. Okay. That was not of interest to you. But when 

you contracted with the Cherry firm, the O’Quinn firm, you were 

reimbursed only for positives or for positives and negatives from those 

two firms? 

 MR. MASON. I was on the O’Quinn side; we were paid for every 

client. 

 MR. WHITFIELD. Every client? 

 MR. MASON. In most instances because of the fact that they started 

with the chest X-ray, and we got paid for every chest X-ray. 

 MR. WHITFIELD. Okay. 
143

 MR. MASON. They got their results. 

 MR. WHITFIELD. Okay. 

 MR. MASON. Then we come back and did their breathing tests and 

their physicals, and we got paid for every one of those. So from the 

O’Quinn side on the majority end of it, we got paid for everybody the 

same fee whether they were positive or negative. We did not know 

whether they were positive or negative. From the Campbell end of it, 

you only got paid for the people that were positive. 

 MR. WHITFIELD. Okay. And did both firms tell you which doctor to 

use as your primary physician? 

 MR. MASON. No, sir, they never told us which one to use, but they 

always wanted to approve the doctor that you were using. 

 MR. WHITFIELD. So you would select the doctor? 

 MR. MASON. I would find a doctor that met their qualifications and 

they would approve whatever doctor they wanted me to use. 

 MR. WHITFIELD. And what were the qualifications on the Campbell 

firm or the Cherry firm and the O’Quinn firm? 

 MR. MASON. Just about every firm had the same qualification 

basically. You had to be a NIOSH B reader. That was basically the 

thing. There was not very many so it was-- 

 MR. WHITFIELD. So just like Mr. Martindale here; he is a NIOSH B 

reader, but he does not do diagnosis per se. How were you introduced to 

Dr. Harron? 

 MR. MASON. Dr. Harron worked for another testing group which I 

was affiliated with before I owned the testing group that I am with now. 

 MR. WHITFIELD. And so he had good reviews from them and so you 

asked him if he would do some diagnosing for you? 

 MR. MASON. Yes, sir. Dr. Harron had a very good reputation. 

 MR. WHITFIELD. In what way? 

 MR. MASON. Just in the business period. 

 MR. WHITFIELD. In what business? 

 MR. MASON. In the business of asbestos. 

 MR. WHITFIELD. A good reputation in what way? 

 MR. MASON. I mean just as far as the people go. As far as he had a 

reputation as far as nobody had a problem with him being your B reader. 

 MR. WHITFIELD. Among what groups of people? 

 MR. MASON. Any. 

 MR. WHITFIELD. And then you said 99 percent of your revenues 

came from law firms so are we talking about he had a good reputation 

with law firms? 

 MR. MASON. No, I am talking about in general. I mean I did not 

work with people I did not think had a good reputation just as a good 

person. We are not talking about-- 
144

 MR. WHITFIELD. But obviously the law firms were paying you. 

Correct? 

 MR. MASON. Sure. 

 MR. WHITFIELD. And so I am assuming that if they did not feel 

comfortable with him, then, they would have probably have said 

something to you about that. 

 MR. MASON. I will say again the lawyers had to approve every 

doctor that you use. 

 MR. WHITFIELD. Okay, okay, okay, well yes, Mr. Stupak. 

 MR. STUPAK. Let me make because this is going to bother me. The 

only public health aspect I have heard in this hearing is notification of 

patients after these X-rays. Dr. Martindale, you indicated there were 

about 400 patients you saw negative readings on? 

 DR. MARTINDALE. Yes, sir. 

 MR. STUPAK. But they were referred to as being a positive reading. 

Correct? When you had to do the read they were indicated that-- 

 DR. MARTINDALE. Yes, they had been read previously as positive, 

yes. 

 MR. STUPAK. As positive. Who would have notified those patients 

in that in fact that your reading was negative? 

 DR. MARTINDALE. I assume Mr. Mason. That is where the reports 

went back to. 

 MR. STUPAK. Would you have done that then Mr. Mason, reported 

to those 400 or would they go back to the law firms? 

 MR. MASON. No, we would not. 

 MR. STUPAK. And so if anyone did it, would it have been the law 

firms? 

 MR. MASON. Yes, sir. 

 MR. STUPAK. And we do not know to this day if those people were 

ever notified that after being told they were positive that they are now 

negative? 

 MR. MASON. No, sir, we would not know that. 

 MR. STUPAK. Nothing further. 

 Thank you, Mr. Chairman, we have got limited time before we have 

to go vote here. 

 MR. WHITFIELD. All right, Dr. Martindale, do you know the criteria 

for diagnosing silicosis? 

 DR. MARTINDALE. The clinical criteria for diagnosing? 

 MR. WHITFIELD. Yes. 

 DR. MARTINDALE. No, sir, and I was very forthright in my 

deposition that as saying that I did not think I needed to in support of 

my-- 

 MR. WHITFIELD. Did you tell Mr. Mason that when he retained you? 
145

 MR. MASON. I never felt like I was being placed in the position of 

diagnosing asbestosis or silicosis. I was only doing what I had been 

certified by NIOSH to do. 

 MR. WHITFIELD. So Mr. Mason, what did you think Dr. Martindale 

was doing? Was he diagnosing? You hired him; what was he doing? 

 MR. MASON. In the silica aspect or the asbestos aspect? 

 MR. WHITFIELD. The silica aspect. 

 MR. MASON. In the silica aspect, once I contacted Dr. Martindale to 

review the diagnosing paragraph, is what we called it, we assumed that 

he was diagnosing those people. 

 MR. WHITFIELD. So you assumed he was diagnosing, and he was 

assuming he was not diagnosing? 

 MR. MASON. Apparently, yes, sir. 

 MR. WHITFIELD. Did you ever talk to him about that or-- 

 MR. MASON. I did not feel as I needed to. He reviewed the 

paragraph, and he okayed the paragraph. 

 MR. WHITFIELD. Okay. Well, that concludes this hearing. We have 

a number of votes. I want to thank all of you for being here. We will 

keep the record open for an appropriate number of days for any 

additional exhibits or information in our opening statements. In addition 

to that, we will, may very well be back in contact with some of you for 

additional information but thank you for being here today and thank you 

for your presence and this hearing is adjourned. 

 [Whereupon, at 6:09 p.m., the Subcommittee was adjourned.] 
146

RESPONSE FOR THE RECORD OF GEORGE MARTINDALE, M.D. 
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RESPONSE FOR THE RECORD OF HEATH MASON, CO-OWNER AND OPERATOR,

N&M, INC. 
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158

THE SILICOSIS STORY: MASS TORT 

SCREENING AND THE PUBLIC HEALTH 

FRIDAY, MARCH 31, 2006 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON ENERGY AND COMMERCE, 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 10:07 a.m., in Room 

2123 of the Rayburn House Office Building, Hon. Ed Whitfield 

[Chairman] presiding. 

Members present: Representatives Whitfield, Ferguson, Burgess, 

Blackburn, Barton (ex officio), Stupak, and Inslee. 

Staff Present: Mark Paoletta, Chief Counsel for Oversight and 

Investigations; Alan Slobodin, Deputy Chief Counsel for Oversight and 

Investigations; Anthony Cooke, Counsel; Peter Spencer, Professional 

Staff Member; Michael Abraham, Legislative Clerk; David Nelson, 

Minority Investigator and Economist; Jessica McNiece, Minority 

Research Analyst; and Jonathan Brater, Minority Staff Assistant. 

MR. WHITFIELD. I will call this hearing to order. 

This is an ongoing hearing regarding the Silicosis Story: Mass Tort 

Screening and the Public Health. 

This morning, we convene the second day of hearings on the 

important public issues raised by the practice of mass tort screening. 

Today we have with us representatives from two law firms that have 

refused to respond to our requests for records and information on 

furtherance of this important investigation. These firms are the law 

offices of Jim Zadeh of Forth Worth, Texas, and the Williams Bailey 

Law Firm of Houston, Texas. 

Fortunately, of the 13 law firms to which we have sent requests 

letters, these two have been the only ones so far that have refused to 

respond and cooperate with the investigation. This hearing today, among 

other things, will emphasize how serious the committee takes this 

investigation. What is more, this hearing demonstrates the resolve of the 

committee to protect its prerogatives to investigate fully the matters in its 

jurisdiction. 

Accordingly, I would like to thank certainly the Chairman of the full 

committee, Mr. Joe Barton, our colleagues in the Minority, particularly 

John Dingell and Mr. Stupak, for their support. We all share this 
159

common ground on matters of Congress’s rights and fundamental 

obligations to investigate, ask questions, and gather evidence to inform 

our legislative considerations. 

Let me start today by giving at least one example of why we sent 

letters to law firms in this investigation. Last week, Republican and 

Democratic committee staff had the opportunity to speak with some 

plaintiffs in the silicosis lawsuits at issue here. Now, while none of the 

plaintiffs we spoke to were represented by the two firms appearing 

before us today, their stories plainly demonstrate one of the particularly 

troubling aspects of the silicosis class action process. The first is the 

story of a 72-year-old man from Mississippi who was a plaintiff in the 

Federal lawsuit in Texas. This man became involved in the legal process 

after responding to a newspaper advertisement, and also one he saw on 

television, and he reported to a local hotel to receive a chest X-ray. 

According to this man, he was first diagnosed with asbestosis by Dr. 

Ray Harron, and then at a later time, received a letter from a lawyer 

telling him he also had silicosis. And we know that it is extremely rare 

that anyone would have both asbestosis and silicosis. But the diagnosing 

doctor for the silicosis also was the same doctor, Dr. Ray Harron. 

Now, I would remind you that Dr. Ray Harron appeared before this 

committee several weeks ago; and when asked whether his silicosis 

diagnoses were accurate and made pursuant to all medical practices 

standards and ethics, he took the Fifth Amendment, protection against 

self-incrimination. And then the Mississippi man recalled that the letter 

from the lawyer informing him that he had silicosis included no 

information about the illness or where he might find treatment or any 

offer of assistance. 

Is this the practice of your law firm as well? And I might say that 

this 72-year-old man’s story gets worse, because at the time our staff 

spoke to him last week, he did not know that there was any question 

about his diagnosis of silicosis. If on March 8, Dr. Harron pled the Fifth 

Amendment when asked about that diagnosis, why has this 72-year-old 

man not been informed of it? Why is he still living in fear of this 

disease? And what is more, let us not forget that this man also believes 

he has asbestosis based on the diagnosis from the same doctor. 

Now, we want further investigation to fully understand the 

information given to us in these brief interviews with the plaintiffs I 

mentioned today. These stories are the reasons we have included law 

firms in this inquiry, because we want to find out the process that is 

being used in manufacturing these lawsuits. Our investigation must 

know all sides, or we are left with a remarkably troubling picture. 

For example, we would like to know from Mr. Zadeh and the 

Williams Bailey Law Firm how they treat matters of diagnosis in their 
160

firms? How do they identify potential claimants in their law firms? 

How are medical patients and the public health protected in their law 

firm? 

But among the most troubling aspects of this whole investigation has 

been the degree to which it appears that lawyers seem to manufacture the 

class action lawsuits. The lawyers find the doctors, the lawyers find the 

patients, the lawyers act as intermediaries in coordinating diagnosis and 

presentation of vital health information to clients. 

You might ask then, who are the doctors? Some have suggested to 

us that doctors do not even regard the work that they do for these lawyers 

as the practice of medicine. 

Now, turning to the matter that sparked this inquiry, the Texas 

multi-district litigation. The disturbing conduct of the doctors and 

lawyers is shown in very stark terms. Mr. Zadeh, for example, who 

appears today before this committee, represented to the Federal court in 

this case that a doctor, Richard Levine, was the doctor that diagnosed 

many of his clients with the disease of silicosis. The positive diagnosis 

of that physician was the reason his client appeared before the court 

seeking relief. Our staff talked to Dr. Levine and his lawyer, and we 

have an e-mail and we will speak with Mr. Zadeh about this from an 

attorney for Dr. Levine, which seems to suggest that Dr. Levine never 

intended his diagnosis, or his work, to be treated as a diagnosis. In fact, 

he said, I didn’t diagnose anyone. 

You might recall that this was the same testimony of Dr. George 

Martindale, who claims he never diagnosed anyone with silicosis. 

Indeed, he did not know the criteria for diagnosing silicosis, and yet was 

represented to the Federal court as being the diagnosing doctor for 

thousands of plaintiffs in the action. 

What were these doctors actually doing? How were these lawyers 

representing the work of these doctors to the court and, more 

importantly, to their clients? That is at the heart of this investigation, and 

the reason we have asked the attorneys involved in the “In Re: Silica” 

MDL, to give us information and records to get a clear understanding of 

the way this process works. That, gentlemen, is why you are here today, 

and that is the kind of information that we are seeking from you. 

At this time, I recognize the gentleman from Michigan, Mr. Stupak. 

[The prepared statement of Hon. Ed Whitfield follows:] 
161

PREPARED STATEMENT OF THE HON. ED WHITFIELD, CHAIRMAN, SUBCOMMITTEE ON 

OVERSIGHT AND INVESTIGATIONS

This morning we convene the second day of hearings on the important public health 

issues raised by the practice of mass tort screening. 

Today we have with us representatives from two law firms that have refused to 

respond to our requests for records and information in furtherance of this important 

investigation. These firms are the Law Offices of Jim Zedah, of Fort Worth, Texas, and 

the Williams Bailey Firm, of Houston, Texas. Fortunately, of the 13 law firms to which 

we sent such request letters, these two have been the only ones, so far, that have refused 

to respond and cooperate with this investigation. 

This hearing today, among other things, will emphasize how serious this Committee 

takes this investigation. What is more, this hearing demonstrates the resolve of this 

Committee to protect its prerogatives to investigate fully the matters in its jurisdiction. 

Accordingly, I would like to thank my colleagues in the Minority, particularly Mr. 

Dingell and Mr. Stupak, for their support and guidance on such matters. While we may 

have different perspectives on some matters of policy – I believe we share broad common 

ground on matters of Congress’s rights and fundamental obligations to investigate, ask 

questions, and gather evidence to inform our legislative considerations. 

Let me start today by giving a couple examples of why we sent letters to law firms 

in this investigation. 

Last week, Republican and Democratic Committee staff had the opportunity to 

speak with some plaintiffs in the silicosis law suits at issue here. While none of the 

plaintiffs we spoke with were represented by the two firms appearing before us today, 

their stories plainly demonstrate the reasons for this inquiry – in very stark and troubling 

terms. 

The first is the story of a 72 year-old man from Mississippi who was a plaintiff in 

the federal lawsuit in Texas. This man became involved in this legal process after 

responding to an advertisement he saw on television and reporting to a local hotel to 

receive a chest X-ray. According to this man, he was first diagnosed with asbestosis by 

Dr. Ray Harron and, then at some time later, received a letter from a lawyer telling him 

he also had silicosis. The diagnosing doctor again - Ray Harron. Now recall that Dr. Ray 

Harron appeared before this Committee several weeks ago and, when asked whether his 

silicosis diagnoses were accurate and made pursuant to all medical practices, standards 

and ethics – he took advantage of his Fifth Amendment protections against selfincrimination. 

The Mississippi man recalled that the letter from the lawyer informing him that he 

had silicosis, included no specific information about the illnesses or where he might find 

treatment in his area. I want to ask Mr. Zedah and Mr. Fabry today: Why would this man 

learn about a diagnosis of a potentially deadly disease from a lawyer? Is this the practice 

of your firms as well? But this 72 year-old man’s story gets worse: as of the time our 

staff spoke to him last week, he did not know that there was any question about his 

diagnosis of silicosis. If on March 8, Dr. Harron pled the Fifth Amendment when asked 

about his silicosis diagnoses – why has this 72 year-old man been living in fear of having 

this disease? What is more, let us not forget that this man also believes he has asbestosis 

based on a diagnosis from Dr. Harron. 

And as another example, consider the story of a 54 year-old sandblaster from 

Mississippi who was told in a letter from a lawyer several years ago that he had a 

diagnosis of silicosis. Again, from Dr. Ray Harron. And again, the lawyer offered no 

information about the disease or even doctors in his area where he might seek treatment. 

Not surprisingly, this man had also been told some time earlier that he also had asbestosis 

(again thanks to Dr. Harron). This Mississippi man has never sought treatment for either 

of these diseases. Perhaps it’s a good thing that he has not received any additional 
162

medical procedures for his silicosis because he says he has recently received another 

letter telling him that there was now a question about his diagnosis and that he should 

follow up with his doctor. But, unfortunately, this 54 year-old laborer does not have a 

doctor or the money to pay for follow-up. The lawyers were apparently ready with a free 

exam and diagnosis in the first instance, when there was a potential lawsuit to be made. 

I think this man has a right to ask: where are the lawyers now? The lawyers told 

him in a letter that a doctor diagnosed him with a potentially deadly disease but now 

these lawyers seem to have abandoned him. I would point out that this is why, in the real 

world of medicine, doctors – not lawyers - give diagnoses. And finally, again, I would 

ask what should this man know about the asbestosis diagnosis he had also received from 

Dr. Ray Harron? 

Among the information uncovered in the course of our inquiry, these stories present 

the human face, and perhaps human tragedy, of the matters we are addressing. Further 

investigation is needed to understand fully the information given to us in the brief 

interviews with the plaintiffs I mention today. These stories are the reason we have 

included law firms in this inquiry. These stories are the reason we will not accept 

dismissive refusals by these parties to answer questions. Our investigation must know all 

sides or we are left with a remarkably troubling picture. For example, I would like to 

know from Mr. Zedah and the Williams Bailey firm how they treat matters of diagnoses 

in their firms. How do they identify potential claimants? How are medicine, patients, 

and the public health protected? 

To Mr. Zedah, Mr. Fabry, and all the people at your respective firms, this is why we 

sent you and 11 other law firms letters on February 17. I hope today you can help us 

better understand what is happening here. I look forward to your testimony. 

MR. STUPAK. Mr. Chairman, once again, the Democrats are called 

upon to support you and our Majority colleagues in protecting the 

integrity of the investigatory process of the subcommittee. The 

witnesses subpoenaed before this subcommittee today have challenged 

the committee by withholding their cooperation. The Democratic 

leadership of this committee believe that it is completely proper to force 

subpoenas to have been issued in this instance. When defending the 

committee’s prerogatives, you have our support. 

However, Mr. Chairman, we believe that the prerogatives should be 

defended whenever they are challenged. If we are subpoenaing a witness 

because they defy our request for documents and testimony being 

necessary to carry out our oversight responsibilities, then all persons that 

defy the committee’s legitimate request should be compelled to respond. 

I raise again the behavior of Rosemary Williams, the general 

manager of Mountaineer Racetrack. Last November, she testified before 

this subcommittee. I believe that she clearly gave misleading testimony. 

Further, I believe her response to certain of our written follow-up 

questions were equally disingenuous. Her counsel has informed us that 

she will not extend any further voluntary cooperation to this committee. 

Yet another case is the apparent willful withholding of documents 

responsive to a committee subpoena by Wayne Gertmenian, the former 

self-styled CEO of the Jockeys Guild. 
163

The new management is cooperating fully with the documents 

subpoenaed to the Guild itself; however, Mr. Gertmenian remains in 

defiance of this subcommittee’s subpoenas of documents relating to his 

personal consulting firm Matrix Capital. 

As you know, the Secretary of Health and Human Services has been 

withholding documents critical in the investigation into major 

misbehavior at one of the National Institutes of Health. Mr. Dingell and 

I joined you and Chairman Barton requesting information regarding this 

matter last June. While just this week, it appears that sufficient 

documents may have been produced to allow our inquiry to proceed, the 

Department is still obstructing our inquiry regarding employee 

interviews. Contrary to an agreement reached by the Department and the 

Majority two years ago, HHS is insisting on sitting in with at least one 

key witness. 

Mr. Chairman, we understand responsibilities of the Chair, and the 

Chair should, could and, can, and that title permits you a great deal of 

latitude in deciding how to protect the integrity of our process. However, 

we Democrats supported you in the inquiries into the problems at NIH 

and the very serious problems surrounding the health care for the jockeys 

and exercise riders at race tracks. We merely ask that you approach the 

defiance we have encountered at HHS and Mountaineer with the same 

determination you have shown in the silicosis matter. 

Finally, as I said in my statement at the first silicosis hearing earlier 

this month, I believe that the problems identified in these silicosis 

hearings are best addressed by the courts. The courts have the power and 

it has been exercised in this case to remedy any misrepresentations made 

in the courtroom. States can and should investigate improper legal 

conduct and take appropriate action when improper conduct is found, for 

it is the State who licenses these professionals, not the United States 

Congress. 

Mr. Chairman, with all due respect, you mentioned the lawyers. I 

would submit lawyers are doing their job, even if you may not agree with 

how the lawyers did their job. And I would, once again, remind this 

subcommittee that for the last 5 years, we have been trying to do further 

follow-up work on Accutane, which we have had 250 more suicides 

since our last -- initial inquiry, I should say. That is one a week, and yet 

we continue to do nothing about it. 

So what I am asking for, we are willing to stand with you and protect 

the integrity and the investigative process of this committee, but if we are 

going to do this, then we have to do it evenhandedly for all matters that 

come before this committee. And, with that, I would yield back the 

balance of my time. 
164

MR. WHITFIELD. Thank you, Mr. Stupak. And at this time, I 

recognize the Chairman of the full committee, Mr. Barton of Texas. 

CHAIRMAN BARTON. Thank you, Mr. Chairman. Are Mr. Zadeh 

and Mr. Fabry in the room? Which one is Mr. Zadeh? And who is Mr. 

Fabry? Thank you. You all can sit down. You didn’t have to stand up. 

I want you all to listen to this before we get started, because we 

might, or we can, save everybody a lot of trouble. 

This hearing today in the subcommittee is very similar to a situation 

that we had 8 years ago when I was subcommittee Chairman. The 

situation then dealt with a real estate project in Washington called the 

Portals, and there was a disagreement about the means used to get the 

contract with the Government, the FCC, for that project. 

Your counsel, Mr. Stan Brand, represented a gentleman named 

Franklin Haney, and your counsel counseled Mr. Haney to defy 

subpoena of this subcommittee, and Mr. Haney did. And he did until we 

were preparing to take the contempt citation to the floor of the House, 

and Mr. Haney did finally comply with the document request. The 

Minority then strongly disagreed with the policies and the reasons for the 

investigation, but they supported the Majority in the procedure to get the 

documents and to get the information. 

Now, we may have a similar situation here. I don’t know yet 

whether the Minority disagrees with the policy implications, but I do 

know that the Minority agrees with the Majority about the procedures. 

And that is what this hearing today is about, is the procedures. 

I want to read a statement that was made back in 1998 by a member 

of the subcommittee, Chris Cox, who is now the Chairman of the 

Securities and Exchange Commission. This is what Mr. Cox had to say 

then. I quote: “Having myself sat through the last meeting of the 

subcommittee and listening to Mr. Haney’s lawyer talk, Mr. Stan Brand, 

it is very clear to me, at least, that the purpose of the legal approach that 

he is taking is to delay and to stall and to obstruct. The legal arguments 

that have been raised against producing lawfully requested documents 

are extraordinarily specious, and it was made plain to the committee that 

if Mr. Brand could think of a stratagem to avoid production, he would 

use it.” 

Mr. Brand lost that fight. And if he encourages you two gentlemen 

to take the same kind of a fight today, he and you are going to lose today. 

It is that simple. 

I don’t know what your law firms have to gain by this strategy. We 

had 13 law firms that we subpoenaed documents from; 11 of them have 

complied, and most of those had much more involvement in the case 

than the plaintiffs that you represent today. We have got the cameras 
165

here, we have got the microphones here, you are about to be sworn in 

and give testimony under oath. 

You will answer the questions of the committee today, or you are 

going to return next week on April the 4th at 4:00 p.m. at another hearing 

that we have already scheduled just for you two to consider a motion to 

hold you in contempt of Congress. I don’t see any sense in that. I think 

you ought to cooperate today, whatever the documents are, whatever the 

facts are, you know, put them on the table, and then we will have an 

honest policy debate and investigation about where those facts lead us. 

It is kind of strange to me to even be having this type of a hearing 

because you are both attorneys, and I think I am correct that you are both 

attorneys from the same State that I live in, the great State of Texas. I 

think you have got one final opportunity to cooperate with the committee 

in our investigation. Any challenges to the prerogatives of this 

committee and the Congress will be met with decisive action. Your 

counsel today seems to specialize in enjoying putting his clients on the 

brink of contempt. I don’t know why that is, but I can tell you this: The 

Energy and Commerce Committee, for over 200 years, has always won 

the procedural battle to get documents that it requests in these types of 

investigations, and it is going to win this one. So you can do it the easy 

way or the hard way. It is up to you folks. 

You have got full rights under the Constitution to use all the 

privileges that the Constitution confers on citizens of the United States of 

America, but that does not mean that you can hold yourself above the 

Congress of the United States when we are conducting an investigation. 

With that, I yield back. 

[The prepared statement of Hon. Joe Barton follows:] 

PREPARED STATEMENT OF THE HON. JOE BARTON, CHAIRMAN, COMMITTEE ON ENERGY 

AND COMMERCE

 Thank you, Chairman Whitfield - and thank you for holding this second day of 

hearings on the public health implications of mass tort screenings. 

 On February 17, 2006, I joined Mr. Whitfield on a letter to 13 law firms involved 

in the federal silicosis matter in Corpus Christi, Texas seeking important records and 

information for our investigation. These 13 letters are in addition to more than 40 

other letters to doctors, screening companies, State regulators and State medical boards 

gathering other relevant material. A total of 55 requests for information have been sent 

since August 2, 2005 pursuant to this investigation, and only two groups have refused 

to respond and cooperate. The first consisted of the three doctors who appeared before 

the Committee recently and asserted their 5th Amendment rights against selfincrimination. The second group of reluctant witnesses comes before us today: the 

Houston, Texas law firm of Williams Bailey; and the Fort Worth, Texas, law firm of 

Jim Zedah. 

 Response to a letter sent by this Committee is voluntary. Parties have the right to 

say no, but sometimes they have a responsibility to say yes. In this case we are 

investigating the mass diagnoses of men and women who are said to be suffering from 
166

a potentially lethal and largely incurable disease, with little apparent care for their 

medical well-being by the doctors, screening companies and lawyers who said they 

were sick. The doctors, screeners and lawyers only concern seems to have been 

achieving the high profit that a positive diagnosis might generate. An honest diagnosis 

of silicosis is a matter of life and death, not profit and loss. And we, the Committee on 

Energy and Commerce, have an obvious responsibility not to take “No” for an answer 

from people who don’t seem to recognize the difference. Such is the case today, and 

the law firms of Williams Bailey and Jim Zedah do not appear here willingly or happy 

to explain themselves, but under subpoena. 

 I have not heard anyone stand up to defend the callous conduct of the doctors, 

screeners and lawyers that was explored in the June 2005 opinion of Judge Janis 

Graham Jack. I expect that the Williams Bailey and Zedah law firms don’t think that it 

is something worth a second thought, much less something Congress should be 

investigating. I, however, am eager to hear how Williams Bailey and the Zedah firm 

will defend and explain the conduct at issue in the Judge Jack opinion. 

 All of us have been very disturbed by the way men and woman were drawn into 

the silicosis lawsuits, and by the consistent disregard for them as fellow human beings. 

I hope to learn more today about why and how that happened, and I promise that our 

Committee will continue to pursue this matter wherever it leads. 

 I look forward to the testimony and yield back the remainder of my time. 

MR. WHITFIELD. Thank you, Mr. Chairman. And at this time, I 

recognize the gentleman from Washington, Mr. Inslee. 

MR. INSLEE. I think that there is strong bipartisan support for 

supporting the ability of Congress to conduct investigations and 

oversight, and we think it is a very, very important part of American 

democracy, and I think you will see that exhibited today in this 

committee. But I want to say something that is parallel to that, and that 

is that the U.S. Congress has done a pathetic, ineffective, incompetent 

job of its oversight responsibilities of some other things going on in this 

country, including massive abuses of democracy by the Executive 

Branch of the United States. 

We are here arguing about this subpoena, and it will be supported 

today on a bipartisan basis; but at the same time, we have had a total lack 

of oversight over the Executive Branch, including the Executive Branch 

that started a war based on information that turned out to be false. And 

yesterday, I was reading about a memo that was apparently given to the 

President advising him that the aluminum tubes that he based a war on, 

in fact, were meant for conventional weapons, not for atomic weapons, 

and he didn’t tell us the truth about this according to the information. 

We ought to issue some subpoenas to those folks. We ought to be 

talking on a bipartisan basis about having subpoenas for Mr. Rove to 

come down here and explain to us what information was given to the 

President of the United States before this war started, about whether, in 

fact, he leveled with us about the intelligence information that has led to 

the death of 2,500 people. And then let us have some bipartisan support 
167

for the investigatory and oversight authority of the Congress of the 

United States. 

And I say this because I think it is important for Congress to be an 

effective member of checks and balances in this society, and we are not 

doing it right now. So I want to speak forcefully for the ability of 

Congress to be an effective investigatory group. We are going to do this 

today; I wish we would do it tomorrow involving the Executive Branch 

of the United States. 

I do want to ask one question, Mr. Chairman, if I can, a procedural 

issue. 

MR. WHITFIELD. Yes, sir. 

MR. INSLEE. Do we have some mechanism for protecting the 

attorney/client privilege in this situation? Is there any possibility? I 

don’t think we should intrude on attorney/client privilege information. 

Will that be protected in some sense? 

MR. WHITFIELD. Well, I feel quite confident that that will be 

protected. Both witnesses today are also represented by legal counsel, 

and can certainly invoke any legal objections that they may have. 

MR. INSLEE. But I am referring to the relationship between the 

lawyer, the law firm, and their client of that information. Will that be 

subject to an attorney/client protection? 

MR. WHITFIELD. Yes, it will. 

MR. INSLEE. Thank you. I appreciate that. I want to yield to Mr. 

Stupak. 

MR. STUPAK. I thank the gentleman for yielding. As I said in my 

opening, we will stand with you on the process and procedure, but I feel 

compelled to say a few things about the Portals case because I painfully 

sat through those hearings for some time, myself, and Mr. Klink. And 

true, Mr. Haney was a witness and true, Mr. Haney, we had to take a 

little extra effort to get him to comply, but they did comply. Mr. 

Haney’s attorney actually, I thought, did a wonderful job for him as the 

whole so-called investigation fizzled out, because the investigation was 

based not on policy matters, it was based strictly on politics. In fact, if 

you go back and look at the hearing, I probably referred to the hearings 

as a kangaroo court, because it was based on politics, and not on policy 

that affected this country. 

There was a lot of publicity back then when the then-majority put out 

the so-called smoking gun to infer then the Vice President, Mr. Al Gore, 

had done something wrong. And when we had the hearings, there never 

was a smoking gun. There was nothing there. And when we put out 

things like that before a hearing, it certainly turns a hearing that should 

be based on policy into politics. 
168

So let’s put the politics aside. Let’s do the committee’s prerogative. 

These people are here, they have exercised all their legal rights, and I 

expect them to fully utilize their legal rights when they appear before this 

committee, and we should not cast aspersions upon them because they 

may be exercising their legal rights or they don’t respond as soon as they 

want them to. That is their right as Americans. We should respect it, we 

should protect it. And let’s move forward with the policy issues before 

this committee. Thank you. 

MR. WHITFIELD. Dr. Burgess, you are recognized for your opening 

statement. 

MR. BURGESS. Mr. Chairman, in the interest of time, I will submit 

for the record but waive the opening statement. 

MR. WHITFIELD. Mr. Ferguson, you are recognized. 

MR. FERGUSON. Thank you, Mr. Chairman. I will also submit for 

the record. But I will just note that I am fully supportive of your 

comments, the comments of the full committee Chairman. And the 

suggestion that this hearing may end up like some past situation that may 

or may not have been characterized by some as a kangaroo court I think 

does take away from the fact that these are very serious questions that 

have been raised. The only reason that we are having this hearing today 

is because we have not received the cooperation that we have requested 

as others have cooperated as they have been requested. And the reason 

that a hearing is scheduled next week is to have some assurance that we 

will get the cooperation that we have asked for today. 

So we should not seek to -- we may or may not agree with the 

substance of this case, and I am pleased that this is a bipartisan effort to 

exercise the jurisdiction of this committee and the subcommittee. But we 

should not for a second suggest that we would be here today except for 

the fact that we were not getting the cooperation that we have sought. 

And, with that, I would yield back. 

MR. WHITFIELD. Thank you. At this time the gentlelady from 

Tennessee, Ms. Blackburn, is recognized. 

MRS. BLACKBURN. I will submit mine for the record. Thank you, 

Mr. Chairman. 

[Additional statements received for the record follow:] 
169

PREPARED STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN CONGRESS FROM 

THE STATE OF FLORIDA

Thank you Chairman Whitfield for holding this hearing and shining a light on the 

unscrupulous practices perpetuated by some rogue physicians and medical screening 

companies. It imperative that we gather all the information on these practices in order to 

craft oversight procedures to ensure that patients undergoing medical screenings get 

accurate diagnoses, and it is our duty as members of the Oversight and Investigations 

subcommittee to exercise our mandate to protect the public’s interests. 

I was appalled by the information we learned in the hearing we held on this issue on 

March 7th. Thanks to the diligent efforts of Judge Janis Graham Jack, medical evidence 

gathered by these dubious screening companies was discovered lacking in any medical 

basis of reliability. For the 10,000 plaintiffs involved in the “In Re: Silica” matter, only 

12 doctors were responsible for almost all of the silicosis diagnoses. In almost every 

case, none of these doctors treated, met, or physically examined the patients. While these 

12 doctors made all 10,000 silicosis diagnoses involved in the case, there were some 

8,000 treating doctors involved in the actual treatment of the patients, who subsequently 

did not see this disease! Dr. Martindale conducted all 3,617 of his reviews in 48 days, 

averaging 75 reports per day. To put this rate into context, one doctor, for a silicosis 

diagnosis in a single-plaintiff lawsuit, apart from the Multi-District Litigation, took 17.6 

hours on top of his assistant’s 46 hours. Dr. Ray Harron, who was involved in the 

diagnosis of approximately 6,350 plaintiffs in “In Re: Silica,” diagnosed more than 1,800 

patients with silicosis whom he had—coincidentally-- previously diagnosed with 

asbestosis. Dr. Harron was also the diagnosing doctor for 53,724 of the 499,766 claims 

before the John Mansville asbestos trust, for which there was physician information. He 

also provided supporting medical reports in another 22,500 claims before the trust. These 

examples barely scratch the surface of the questionable nature of the diagnoses in this 

suit. 

Today, our panel includes attorneys from two of the thirteen law firms involved in 

the mass tort screenings that were employed in the federal case of In Re: Silica Products 

Liability Litigation, MDL Docket No. 1553 (S.D. Texas). In hopes of learning more 

about the medical screening process involved in this case, the committee has subpoenaed 

these firms to gather specific information regarding the manner in which these firms 

identified people as potential claimants in the silicosis lawsuits and how they addressed 

clients’ health matters. I hope that these witnesses will join the other thirteen law firms 

in compliance with this request and cooperate fully with this committee. Particularly, I 

will be interested in hearing from the panel what role their firms played in selecting the 

doctors who issued the diagnoses, and the criteria, if any, they used in these diagnoses. I 

believe it will also be enlightening to discuss what prior business relationship, if any, 

existed between the law firms, the doctors and/or the screening companies. 

I look forward to hearing from the witnesses on these important issues. 

Thank you. 

MR. WHITFIELD. Thank you. I think that concludes the opening 

statements. So at this time I would call Mr. Zadeh and Mr. Fabry to the 

witness stand, please. 

Now, you gentlemen are aware that the committee is holding an 

investigative hearing, and when doing so we do take testimony under 

oath. Do you have any objection to testifying under oath this morning? 

MR. ZEDAH. No, sir. 

MR. FABRY. No. 
170

MR. WHITFIELD. The Chair would also advise you that, under the 

rules of the House and the rules of the committee, you are entitled to be 

advised by counsel about your constitutional rights. Do you desire to be 

advised by counsel during your testimony today? 

MR. FABRY. Yes, I do. 

MR. ZEDAH. Yes. 

MR. WHITFIELD. In that case, Mr. Fabry, would you please identify 

your legal counsel. 

MR. FABRY. Mr. Brand. 

MR. WHITFIELD. What is his full name? 

MR. FABRY. Stan Brand. 

MR. WHITFIELD. And which one is Mr. Brand? Thank you. And 

Mr. Zadeh, who is your legal counsel? 

MR. ZEDAH. Mr. Stan Brand. 

MR. WHITFIELD. So both of you are represented by Mr. Brand? 

MR. ZEDAH. Yes. 

MR. WHITFIELD. Okay. All right. Then if you two gentlemen 

would stand up, I would like to swear you in. 

[Witnesses sworn.] 

MR. WHITFIELD. Thank you very much. Each of you are now under 

oath, and if you have any opening statement that you would like to give, 

I would recognize you for that purpose. Mr. Zedah. 

MR. ZEDAH. None. 

MR. WHITFIELD. Mr. Fabry. 

MR. FABRY. No. But thank you for the opportunity. 

MR. WHITFIELD. Okay. I would ask both of you, Mr. Zadeh and 

Mr. Fabry, you were subpoenaed to come today with the records from 

your respective firms as set forth in the attachment to the March 23rd, 

2006 subpoena. We were advised that the subpoena issued to you would 

be applied to all the records in the custody and control of your respective 

firms. Have you come today with the records subpoenaed? 

MR. ZEDAH. No, Your Honor -- no, Mr. Chairman, I have not. We 

are in the process of gathering those records, though, and we do intend 

on producing those records to the committee subject to any privileges, 

such as the privilege that Mr. Inslee had brought forward. 

MR. WHITFIELD. Mr. Fabry? 

MR. FABRY. For the record, it’s pronounced Fabry. And I did bring 

all the records that we were able to locate since receiving the subpoena. 

MR. WHITFIELD. You did bring all the records? 

MR. FABRY. Yes, sir. 

MR. WHITFIELD. And have you presented them to the -- you all 

presented them? Okay. 
171

I would say that the underlying record requests were transmitted to 

your respective firms in our letter of February 17, 2006, a full 6 weeks 

ago. And you are in the process of gathering all the material, and do you 

expect to deliver that by April the 4th, Mr. Zadeh? 

MR. ZEDAH. I don’t know if we can do it by April 4th. It is a very 

big project that you have all asked. 

MR. WHITFIELD. Okay. Well, I want to thank you for providing the 

information that you have provided, Mr. Fabry. And, Mr. Zadeh, we 

look forward to getting your testimony. And I would like to now go on 

and ask some specific questions to both of you. 

First of all, I would like to begin by asking you both a broad question 

about the matters discussed by Judge Janice Graham Jack in her June 

2005 opinion. 

Mr. Fabry, I understand the William Bailey firm joined the Federal 

lawsuit late and was not specifically included in the conduct described in 

the opinion, but I would still like for you to comment. Can either of you 

direct me to any part of the Judge Janice Graham Jack opinion that is 

wrong on its facts? 

MR. FABRY. It is a very long opinion that covers a wide range of 

issues. I would be very uncomfortable trying to discuss that off the top 

of my head. I have read the opinion; I have not memorized it. If there is 

a specific area of concern of the Chairman, I would be happy to address 

that. 

MR. WHITFIELD. But you have read the opinion. And was there 

anything in the opinion that jumped out at you as being wrong in any -- 

you know, you read opinions, legal opinions or memos; and if there is 

something that is -- you have been involved in this case, and you are 

quite familiar with all the procedures and the facts of the case. Was there 

anything about the opinion that jumped out to you glaringly that 

appeared to be wrong? 

MR. FABRY. I don’t have any personal information factually about 

the issues addressed there. As you said, we were a latecomer; our case 

was brought in late. In fact, the one case was subject to a stay order 

while Judge Jack was conducting her investigation. So from a 

perspective of personal knowledge, factual information, I have no basis 

to comment one way or the other. 

MR. WHITFIELD. Okay. 

Mr. Zadeh, I want to show you an e-mail exchange that you had with 

an attorney representing Dr. Levine, and ask you to comment on that, if 

you would. I think it is the second exhibit in your binder. But on 

December 9, 2004, Dr. Levine’s attorney wrote to you and said: What is 

important for your plaintiffs is that their diagnosis are not based on Dr. 

Levine’s B reads; rather, that the reads are merely an indicator that can 
172

only be verified by a full examination conducted by and for the doctor 

who will testify. 

It seems to me that, based on what his lawyer wrote here, Dr. Levine 

did not intend to give a diagnosis to your clients. And we do have a 

document from the court file in which it looks like that Dr. Levine, in the 

Maxine Woods case, was listed as the diagnosing physician for a number 

of those plaintiffs. I was wondering if you would be able to explain that 

apparent conflict to us. 

MR. ZEDAH. Sure, Mr. Chairman. Dr. Levine is my B reader, or one 

of my B readers. He goes ahead and looks at the X-rays and gives an 

indication as to whether they are negative or whether they are consistent 

with silicosis. 

At that point, we then have the client go see another doctor for a full 

pulmonary examination. That doctor then does the diagnosis of silicosis. 

In the situation of the MDL, we were told to put down the doctors that 

had examined or had anything to do with silicosis with respect to those 

plaintiffs, and we went ahead and put Maxine or put the people in 

Maxine Woods down as doctors who had looked at X-rays for that 

particular plaintiff. 

MR. WHITFIELD. Now, is a B read a diagnosis? 

MR. ZEDAH. I am not a physician; but my understanding is that a B 

read is not a complete diagnosis, but a portion of the diagnosis. 

MR. WHITFIELD. But in this e-mail that you had sent to Bruce Thrau 

on December 7, 2004, it says that Dr. Levine is listed as a diagnosing 

physician on 12 of the plaintiffs. 

MR. ZEDAH. He is a portion of the diagnosis. And so when Judge 

Jack tells me to put down every doctor, I would err on the side of putting 

the doctor in the disclosure as opposed to not, because then it would look 

like I was hiding something. 

MR. WHITFIELD. But the truth of the matter is that Dr. Levine is not 

a diagnosing physician for this matter. Is that correct? 

MR. ZEDAH. That is correct, Mr. Chairman. 

MR. WHITFIELD. Now, in the State of Mississippi, your original 

lawsuit, was it filed in Mississippi or was it another State? 

MR. ZEDAH. It was filed in Washington County, Mississippi. 

MR. WHITFIELD. In Mississippi. In Mississippi, is it true that a B 

read alone does present a cause of action, a positive B read? 

MR. ZEDAH. I think that is a matter of opinion right now. I don’t 

think that there is an answer. There is one side of the argument that 

somebody who has a positive B read has some sort of injury to their 

lung; and, because they have some sort of injury to their lung, even 

though it is not considered to be silicosis, that is considered to be a cause 

of action. 
173

The other line of thought is that a B read alone is not enough to 

constitute silicosis, and therefore it is not a cause of action. So there is 

are two lines of thought on that. 

MR. WHITFIELD. The plaintiffs that you represented, they came to 

you through advertisements in the newspaper or radio, I assume? 

MR. ZEDAH. Are we talking about the plaintiffs in the MDL? 

MR. WHITFIELD. Yes. 

MR. ZEDAH. Okay. Those plaintiffs came to me, if I recall 

correctly, from three sources. One source is word of mouth, existing 

clients are referring clients to me; a second source would be from 

referring attorneys, attorneys who have existing cases and want me to 

handle those cases; and then the third would be through advertisements. 

MR. WHITFIELD. And what about your firm, Mr. Fabry? 

MR. FABRY. Essentially the same. We get cases by referral, by 

word of mouth, referral from other attorneys, referrals from prior clients. 

I think very little from actually any advertising. 

MR. WHITFIELD. Now, then would you refer clients to a particular 

location for an X-ray? And is that what you would normally do? Is that 

your normal practice? 

MR. FABRY. It would depend on the individual, sir. Some people 

call me specifically because they have had a diagnosis, and it wouldn’t 

require a further examination. Some people are referred to me by an 

attorney who has already begun the process; perhaps there is a B read 

that indicates silicosis. Another possibility would be someone who is 

contacting me because they have a long history of exposure and are 

concerned. 

MR. WHITFIELD. And how many plaintiffs did you have in the MDL 

lawsuit? 

MR. FABRY. Five. 

MR. WHITFIELD. And you had? 

MR. ZEDAH. Approximately 20. 

MR. WHITFIELD. 20. So compared to the other firms, you all are 

relatively small firm compared to the thousands that were involved. 

When a B read came back, did your firms have a policy of paying the B 

readers, whether it was positive or negative? Did you pay them just for 

their service, or did you pay only for positive readings? 

MR. FABRY. The payments were always for service provided. It was 

not a contingent payment on results, if that’s the question. 

MR. ZEDAH. That’s the same answer for me. 

MR. WHITFIELD. So it is for the service, and it was not based on a 

positive or negative reading, either one. 

MR. FABRY. That’s correct, sir. 

MR. ZEDAH. That’s correct, Mr. Chairman. 
174

MR. WHITFIELD. Now, let me ask this question. Mr. Zadeh, would 

you briefly describe your understanding of the status of the MDL lawsuit 

today? 

MR. ZEDAH. I had what I understand to be the last case that was 

removed from State court to Judge Jack’s court; and then I believe about 

two months ago it was remanded back for lack of jurisdiction. My 

understanding is Judge Jack has no pending cases in front of her right 

now. But that is just my understanding. 

MR. WHITFIELD. But your case was remanded? 

MR. ZEDAH. The one case I did have was remanded back to State 

court. Yes. 

MR. WHITFIELD. And what is the posture now that it has been 

remanded? 

MR. ZEDAH. I don’t mean to laugh. The Mississippi Supreme Court 

seems to come down with a new opinion every month as to how we 

handle these cases. There is a new decision that came out called 

Canadian National in which, if they are in the improper venue, are 

dismissed. At that point, they have a year to refile. I am not sure 

whether that case has been formally dismissed or not, but I believe that’s 

the process. 

MR. WHITFIELD. Okay. Well, my time is expiring. But before I 

conclude my questions, Mr. Zadeh, you are going to make every effort to 

present these documents to us by April the 4th; and we will maintain 

contact with either you or your attorney, Mr. Brand, to make sure we do 

that. And then you basically have provided the information that we 

requested, and our legal counsel is working with you now. Is that right, 

Mr. Fabry? 

MR. FABRY. That’s correct. And if we find any additional 

responsive documents, we will produce those. 

MR. WHITFIELD. Thank you very much. Mr. Stupak. 

MR. STUPAK. Thank you. 

Gentlemen, if you can explain to the panel of the committee what an 

MDL is, it might be helpful. The last hearing when I was referring to it 

as class actions, and I think we got that corrected, it was an MDL. Can 

you explain what an MDL, multi-district litigation, is, Mr. Zadeh? 

MR. ZEDAH. Multi-district litigation, there is both Federal and State. 

There is both Federal and State MDLs. But an MDL, in essence, is -- 

there’s a panel called The Joint Panel on Multi-District Litigation who 

gets a motion from typically the defendants to consolidate all Federal 

cases throughout the country. And then if the JPMDL grants that 

motion, they then choose a court to send all these cases to in one 

consolidated proceeding. And so there is that for the Federal. And then 
175

some States, including the great State of Texas, has a State MDL in 

which it is a similar procedure with State court cases. 

MR. STUPAK. In this case here, this was a Federal multi-district 

litigation MDL. Correct? 

MR. ZEDAH. Yes. 

MR. STUPAK. And it was assigned to Judge Jack? 

MR. ZEDAH. Yes. 

MR. STUPAK. And Judge Jack has dismissed these cases? 

MR. ZEDAH. She has remanded the cases back to State court. They 

are not dismissed, they are remanded. 

MR. STUPAK. In the remand, before Judge Jack remanded it, was 

there any kind of finding by the court of any possible liability? 

MR. ZEDAH. Possible liability against the defendants? 

MR. STUPAK. Just that there is a question of liability here that should 

be tried before the proper court. Some cases, I understand, were outright 

dismissed, but there are others, I take it like your case pending before the 

State court, there is a question of at least there’s enough evidence to go 

to a jury or fact-finder as to liability. 

MR. ZEDAH. Judge Jack did not make any such decision. The main 

decision is she didn’t have jurisdiction, so she didn’t have the power to 

make any decisions. 

MR. STUPAK. So the question of liability or possible liability still 

has not been determined? Judge Jack based hers strictly on procedural 

grounds or legal limitations that she did not have jurisdiction over these 

cases? 

MR. ZEDAH. Yes. 

MR. STUPAK. Okay. Do either one of you witnesses here today, 

have you ever made a medical decision in these cases, in your cases that 

you are personally handling, a medical decision? 

MR. FABRY. No. 

MR. ZEDAH. I don’t have a medical license, so, no. 

MR. STUPAK. And the license for doctors are done by a Federal or 

State agencies? 

MR. ZEDAH. I believe so. I don’t know. 

MR. FABRY. To the best of my knowledge. Yes, sir. 

MR. STUPAK. How about for attorneys? Who licenses the attorneys, 

the Federal government, or the State in which you are admitted to 

practice law? 

MR. FABRY. I have been licensed by the State of South Carolina, the 

bar there, and the State of Texas, the bar there. 

MR. STUPAK. Mr. Zedah. 

MR. ZEDAH. The State of Texas and the State of Mississippi for me. 
176

MR. STUPAK. There has been discussions in these hearings, our 

second hearing here now, about B readers. Did either one of you select 

the B readers in these MDL cases? Mr. Zadeh? 

MR. ZEDAH. In the 20 MDL cases? In my 20 plaintiffs? 

MR. STUPAK. In your 20 plaintiffs. 

MR. ZEDAH. I don’t know if “select” is the word. I was told that 

these B readers were B readers that would accept these cases, and then 

they would read them and send them back. I don’t know if that means I 

selected them or not. 

MR. STUPAK. So B readers were already being used in the silicosis 

cases before your cases came in? Because the Chairman said you were 

both late into these matters. Cases had already been filed before you 

filed your cases. Is that correct? 

MR. ZEDAH. That’s correct. 

MR. STUPAK. Mr. Fabry, I think you said you had five cases. Was it 

the same circumstances, those B readers were already being used in other 

cases related to the silicosis issue? 

MR. FABRY. I guess that is a maybe a two-part answer. As to the 

five cases, the five individual plaintiffs in the Federal silica MDL, I am 

not actually sure of the status of the B reader. Those individuals had full 

pulmonary examinations by a pulmonologist, which, in my mind, 

diminishes the importance of the B reader. So I am not sure. B readers 

are routinely used in silicosis and other occupational disease litigation. 

MR. STUPAK. I guess what I am trying to get at here is there has 

been inferences that the B readers were selected by legal firms to do the 

B reading because they would get a favorable reading, and there was 

some suggestion that if you got a favorable reading you got extra 

compensation. So I guess my question was to just simply -- I heard you 

say through the testimony thus far that these cases were going before 

your 15 cases were presented, Mr. Zadeh, and before your five cases 

were presented. So I want to know if you helped to select these so-called 

B readers, or did you use the B readers that were already being used in 

the other cases pending before this MDL? That is what I am trying to 

ask. 

MR. ZEDAH. In my case, they had already been used by other 

attorneys in the past. 

MR. STUPAK. Mr. Fabry? 

MR. FABRY. I am still not sure I understood the question completely. 

My clients from Missouri, the five who ended up in the MDL, had a full 

diagnosis, and had met with a pulmonary doctor before those cases were 

ever transferred to the MDL. Does that answer your question? 

MR. STUPAK. Yes. 

MR. FABRY. Thank you. 
177

MR. STUPAK. Mr. Zadeh, I think you might have said. You need 

two doctors before you made a determination of silicosis or asbestosis? 

MR. ZEDAH. Some people use the same doctor. Our policy is not to 

use the -- 

MR. STUPAK. By your policy, your law firm’s policy? 

MR. ZEDAH. My law firm’s policy is that one person do the B read, 

and then later, have another person do a full pulmonary examination. I 

am not -- I believe that’s -- in these 20 cases, I believe that happened, 

and that’s typically our policy. 

MR. STUPAK. Okay. A similar policy, Mr. Fabry? Or do you have a 

different policy in your law firm? 

MR. FABRY. I wouldn’t say we have a policy. I view these from an 

evidentiary perspective. And the evidence that I need to prove the case 

at trial, in my opinion, is a full pulmonary examination, whether or not a 

B read actually occurs. One of the doctors that I have used probably on 

the majority of my cases is Dr. Gary Friedman, who is not currently a B 

reader, and therefore would not be able to, although he is familiar with 

the standards, wouldn’t be able to fill out the form as a B reader, but does 

make the diagnosis. 

MR. STUPAK. And then, Mr. Fabry, in your cases, then did you have 

a pulmonary examination for your five cases, these five individuals? 

MR. FABRY. Yes, sir. 

MR. STUPAK. Let me ask you each this question. If one B reader 

gave you a result that did not indicate an occupational disease, would 

you ever send the same X-ray to another B reader? Mr. Zadeh? Or I 

should say in these 15 cases that you are -- 

MR. ZEDAH. I couldn’t tell you if we did it in these cases or not. 

MR. STUPAK. Mr. Fabry? 

MR. FABRY. I don’t think so. 

MR. STUPAK. Okay. 

MR. FABRY. I don’t know of instances like that. 

MR. STUPAK. I have no further questions, Mr. Chairman. 

MR. WHITFIELD. At this time, I recognize the full committee 

Chairman, Mr. Barton. 

CHAIRMAN BARTON. Thank you. First of all, I want to thank you 

two gentlemen for being here, and I want to thank you for testifying that 

you are going to comply with the subpoena. 

The subpoena that each of you received last week indicated that we 

wanted you to be here in person this morning. You have done that. And 

the second thing, we wanted each of you to produce the things identified 

in the attached schedule touching on matters of inquiry committed to the 

committee or subcommittee, and you are not to depart from it without 

leave of said subcommittee or committee. Now, it is my understanding 
178

that, Mr. Fabry, that the envelope of documents that you turned over, you 

are saying is the complete document file for the matters under 

investigation. Is that correct? 

MR. FABRY. Complete as to what we could find since receiving the 

subpoena. Yes, sir. 

CHAIRMAN BARTON. I want to -- 

MR. FABRY. And, in fairness, I do believe that, if it is not complete, 

it is close to complete. 

CHAIRMAN BARTON. I want to read what the attachment to the 

subpoena says. Now, the attachment to the subpoena is identical to a 

letter that your law firms received back in February. And in terms of 

documents to comply with the subpoena: Produce all records related to 

any services, analysis, reviews, consulting, or diagnosis involving in any 

way the issue of silicosis and related to any of the following persons or 

entities: Heath Mason, N&M; Charlie Foster, RTS; Jeffrey Guise, 

Occupational Diagnostics; David M. Miller, Inner Visions; Robert 

Altmire, MD; James Ballard, MD; Kevin Cooper, MD, MPH; Todd 

Colter, MD; Andrew W. Harron, DO; Ray A. Harron, MD; Glenn 

Hillburn, MD; Richard B. Levine, MD; Barry S. Levy, MD MPH PC; 

George Martindale, MD; W. Allen Oaks, MD; or J.T. Segara, MD; 

produce all written policies and procedures of your firm related to the 

information regularly given by your firm to a client or prospective client 

on the meaning or reliability of any tests or findings indicating that they 

have silicosis. 

So, Mr. Fabry, you are saying that you have either fully complied or 

to the best of your knowledge almost fully complied with this. Is that 

correct? 

MR. FABRY. Yes, sir. 

CHAIRMAN BARTON. And Mr. Zadeh, you are saying that you have 

not complied but you intend to comply. Is that correct? 

MR. ZEDAH. Yes, sir. 

CHAIRMAN BARTON. Could you instruct me and the rest of the 

committee when you intend to comply? 

MR. ZEDAH. With all respect, sir, here is the issue we have. As part 

of my job as a lawyer, I’ve collected a lot of information over a lot of 

time with respect to silica, including transcripts from the MDL, and 

briefing from the MDL. As broad as this subpoena reads, I need to look 

through all of that information. That is 250 gigabytes of information. 

When we convert it, that is over a conversion that we did using 

something on the Internet, is around 16 million pages. I personally 

haven’t even looked through all those pages. This is a congressional 

subpoena, which I take very seriously. 

CHAIRMAN BARTON. I take it very seriously, too. I signed it. 
179

MR. ZEDAH. Yes, sir. And if I miss something and that is 

determined to be in my possession, that complies with the subpoena, I 

am in contempt of that subpoena. And so I have to look through 16 

million pages of documents to make sure that I fully comply. 

CHAIRMAN BARTON. Well, my guess is, and it is a guess, that there 

are probably, at most, a couple hundred that are truly relevant, and I bet 

you know where they are. I have a feeling that you have subtitles and set 

subtitles of files that it would be fairly easy to get your hand on the most 

pertinent documents. 

MR. ZEDAH. Yes, sir. It is the 80/20 rule. 80 percent of them I can 

get to you, and am working on getting to you. 

CHAIRMAN BARTON. Why don’t we get that 80 percent. And then I 

bet, with good-faith effort on your part, the staff on both sides can work 

on the other 15,999,000 pages, probably work something out that will 

say you are complying. 

MR. ZEDAH. That would be great. 

CHAIRMAN BARTON. What is your game plan to get with the staff to 

make arrangements to get those 80 percent of the documents that you 

think you can get? You are going to do that today? 

MR. ZEDAH. I will rely on counsel, and I will work with the 

committee. 

CHAIRMAN BARTON. Well, I’ve instructed the staff that -- I agree 

with what Mr. Stupak said, you got the right to every constitutional 

guarantee under law. We are not trying to prevent you from exercising 

your constitutional rights. But we also have an obligation to the 

Constitution as an investigatory committee empowered to protect the 

people of the United States to move forward. And I want to hear from 

the staff today what the true deadline is for you complying to the best of 

your ability, and I want it to be fairly soon. Do you think you could have 

some documents by next Tuesday? 

MR. ZEDAH. Three days? 

CHAIRMAN BARTON. Yes, sir. Because if you can’t, you are going 

to have to come back here and testify under oath again why you haven’t 

found them. 

MR. ZEDAH. Sure. No, as long as I have an understanding that I 

don’t have to look through 16 million pages by Monday. 

CHAIRMAN BARTON. You know, we’re reasonable. I wouldn’t want 

to spend my weekend looking through 16 million pages, either. I 

understand that. 

MR. ZEDAH. I just don’t want to be seen as being incomplete, and on 

Tuesday, if I don’t give you something on Tuesday, you come back and 

hold me in contempt. 
180

CHAIRMAN BARTON. Well, so far the record is, you have 16 million 

pages, the committee staff has zero. That’s a little unbalanced. And I 

am not a silicosis lawyer, I am not even a lawyer, so I can’t make a value 

judgment on how many documents would be reasonable. Mr. Zadeh, it 

looked to me like Mr. Fabry turned over looked to me like several dozen 

documents. It didn’t look to me to even be a hundred pages. So you got 

the first letter back in February; it’s now March 31st. I just don’t want to 

belabor this, but I would strongly encourage you to let the Minority and 

Majority staff know at the end of this hearing what your intention is in 

terms of volume of documents before next Tuesday. And if it is zero, 

you will have to come back here and tell us why it is zero. 

MR. ZEDAH. That is not my intention. 

CHAIRMAN BARTON. If it is not zero, and it looks like it’s 

reasonable, hopefully you won’t have to come back again and we can do 

it, just read the documents, and then do whatever we need to do in terms 

of correspondence. And there’s some other questions in the letters that 

we would like for you to give some written responses to. I don’t think 

that will be a problem. Do you? Just questions in the letter that you are 

supposed to reply in writing to? 

MR. ZEDAH. I am available here to answer any questions that you 

have. 

CHAIRMAN BARTON. Okay. Well, my general question to both of 

you is how your law firms became involved in these particular cases in 

the beginning, just generically. Do you all specialize in these types of 

cases? Did you have plaintiffs that came to you? Did you seek them 

out? Did other lawyers doing these cases seek your firms out? How did 

you get involved? Mr. Zedah. 

MR. ZEDAH. We had three groups that were in this. One group was 

referrals from existing clients, one is referrals from attorneys, and one 

group was through advertisement. 

CHAIRMAN BARTON. Does your firm specialize in this type of a 

case? 

MR. ZEDAH. I do other types of work, but this is the majority of my 

work. 

CHAIRMAN BARTON. Mr. Fabry? 

MR. FABRY. I can’t answer for how the Williams Bailey firm first 

began handling silicosis cases. I began handling silicosis cases for the 

firm in 2001, and took over responsibility for existing cases at that time. 

CHAIRMAN BARTON. So you don’t have any knowledge how the 

firm got involved in the beginning? 

MR. FABRY. No, sir, I don’t. 

CHAIRMAN BARTON. What’s the status of your clients now in these 

cases? Are these active cases? Have you all suspended the case given 
181

what happened in the court? Or are you all trying to move forward with 

them? 

MR. ZEDAH. Four of the people that I represented out of the 20 are 

dead. They died waiting for it to get back. It is in the position right now 

where they have to be dismissed based on that Canadian National order 

that I referred to that the Supreme Court of Mississippi came up with last 

month, and then have 1 year to refile. 

CHAIRMAN BARTON. Mr. Fabry, are you referring specifically to the 

five plaintiffs. 

MR. FABRY. Yes. Those cases were transferred by Judge Jack back 

to the Eastern District of Missouri, and the court there transferred the 

cases to the Western District of Missouri. I believe we received a 

scheduling order from that court within the last couple of weeks. 

CHAIRMAN BARTON. So it is an active case. 

MR. FABRY. Yes, sir, it is. 

CHAIRMAN BARTON. Last question. My time has expired. Did any 

one of you gentlemen ever meet in person any of the plaintiffs? 

MR. FABRY. Yes, every one of them. 

CHAIRMAN BARTON. You did. 

MR. ZEDAH. I have met with some of them. 

CHAIRMAN BARTON. Thank you, Mr. Chairman. 

MR. WHITFIELD. Thank you. At this time I recognize Dr. Burgess 

for 5 minutes. 

MR. BURGESS. Thank you, Mr. Chairman. I don’t know that I will 

use all my time. I would just like to know -- and I do appreciate the 

delivery of records this morning. I think that is an important step in 

solving this problem. 

MR. ZEDAH. Mr. Burgess, I don’t mean to interrupt. I don’t know 

that -- I have met several of my plaintiffs, but I don’t know whether I 

have met the 20 plaintiffs that Mr. Barton was talking about, and I’m 

under oath and I want to make sure that that’s completely clear. I 

apologize. 

MR. BURGESS. Very well. 

Can I ask both of you if one of your doctors reading X-rays comes 

across a diagnosis that is not silicosis and not an industrial 

pneumoconiosis, but perhaps something else -- tuberculosis, chest mass 

-- what happens then? Would that doctor call the patient up, would that 

doctor tell you that there was an abnormality found on a chest X-ray that 

wasn’t asbestosis or silicosis, or was the patient just simply uninformed 

about that? 

MR. ZEDAH. In some of the cases -- let me answer your question 

direct. For example, Doctor Levine would sometimes put a reference to 
182

a mass in his B read result and would say something to the effect of refer 

it to his personal physician as soon as possible. 

At that point generally, I’m not going to get into specific 

attorney-client communications, but generally I would pick up the phone 

personally and contact that person. 

MR. BURGESS. So the committee can be comfortable that there is no 

one that you are aware of that would be out there with an undiagnosed 

chest condition that was picked up on a B read by one of your doctors. 

MR. ZEDAH. We make every effort to make sure that doesn’t 

happen. 

MR. BURGESS. To close the loop then, if you didn’t get a letter back 

from their primary physician saying oh, my gosh, thank you for bringing 

this to my attention and we have taken care of it, if you didn’t get such a 

letter, what time frame might elapse, or when would you make that call 

back to make sure that that patient had in fact been taken care of? 

MR. ZEDAH. We do send the report to the client. In addition, after 

the B read we do have a pulmonary examination. So at that point they 

have a consultation with the doctor. 

MR. BURGESS. So none of the patients that came through your office 

would just simply receive the diagnosis of silicosis with no further 

instruction or therapy. 

MR. ZEDAH. Of the 20 plaintiffs that we had in litigation, generally 

that is true. What I’m thinking in my mind is we had some people that 

had lung cancer that may have passed away before they got a full 

pulmonary exam, but they had treating physicians. 

MR. BURGESS. In the entire multi-district litigation in Corpus 

Christi, how many plaintiffs were involved in that litigation? 

MR. ZEDAH. Approximately 10,000, but I don’t know for sure. 

MR. BURGESS. Of that, your representation was of 20 of those 

individuals? 

MR. ZEDAH. Yes, sir. 

MR. BURGESS. The last screening advertisement that we saw, how 

many people do you think you evaluated, to guess, to those 20 that you 

eventually took as clients? 

MR. ZEDAH. As I said, some of them were word-of-mouth referrals, 

some of them were referrals from other sources, and then some were 

through advisement. I have no idea how to answer that. 

MR. BURGESS. Will that appear in the information that you provide 

the Chairman, how many patients went through those screening days that 

you held? Is there any way to know that? Did you have a sign-in sheet? 

MR. ZEDAH. I did not, no. 

MR. BURGESS. Just for the record, do you remember the screening 

companies that you used? 
183

MR. ZEDAH. The ones that my law firm personally used, there was 

Gulf Coast Marketing and UM Mobile X-Ray is the ones that I know of. 

There may have been others, but I don’t know. 

If I may, the screening company, are you talking about people that 

originally took the X-rays? 

MR. BURGESS. Correct. 

MR. ZEDAH. Yes. 

MR. BURGESS. Mr. Fabry, can I ask you along the same lines, what 

would have happened if a patient had an unexpected finding on a chest 

X-ray or B read, what procedures did your office have to follow up for 

that patient? 

MR. FABRY. I want to be very sensitive to attorney-client privilege 

and answer unequivocally that information is always provided to the 

individuals. 

MR. BURGESS. Okay. Would your office undertake to deliver that 

information personally, or would it go back to the radiologist who read 

the film? What sort of path did that travel? 

MR. FABRY. Again, being very sensitive to attorney-client privilege, 

if we receive medical information, the medical information is given to 

the individuals. Good or bad. Let me add, for many of these folks, when 

you’re talking about someone who is actually having an examination, the 

doctor would communicate that directly at the time of the examination. 

MR. BURGESS. So the doctor would communicate that. So the 

doctor would be involved in the transmission of the information? 

MR. FABRY. The doctor is doing the examination, full pulmonary 

examination, and I’m not there in the room, but my understanding from 

the doctors and the testimony that has been given by my clients at their 

depositions, and based on the reports written by the doctors, all give me 

great comfort that whatever the findings are, those are communicated by 

the doctor to the individual. 

MR. BURGESS. So let me ask both of you this question -- we’ll stay 

with you Mr. Fabry, but I want to get Mr. Zadeh’s response -- at no time 

did anyone in your firms look at a film and render a diagnosis and 

communicate that to a patient? 

MR. FABRY. We rendered no diagnosis within our office. No 

lawyers. I do not. 

MR. ZEDAH. I don’t have a radiologist in my office. We don’t look 

at films in my office. 

MR. BURGESS. So there would be no reason for this committee to be 

worried that the law offices were acting as a conduit for information 

between the radiologist and the patients. The law firms were not in any 

way interposing themselves between the patient and the radiologist. 
184

MR. FABRY. That is a very different question. We’re certainly not 

interposing ourselves. If medical information is provided to me, again, 

being very careful about how that’s communicated, if there is a report, 

the report is given to the client. Because of attorney-client privilege I 

don’t want to discuss what sort of commentary might go along with that. 

MR. BURGESS. Mr. Fabry, we saw an advertisement for -- I think 

you have as one of your documents there the newspaper ad for screening. 

Does your firm engage in that practice as well? That would be this 

asbestos and silica dust screening, Exhibit No. 3. 

MR. FABRY. Again, a difficult question. I don’t recall advertising 

for screenings. It’s not something that I have personally been involved 

in. To say that we’ve never advertised or never advertised the 

availability to represent people with silicosis, I don’t think I could go that 

far. 

MR. BURGESS. If your firm paid for an X-ray study to be done and B 

read, would it have paid a different rate depending upon the diagnosis? 

Would you have paid more for a positive diagnosis or less for a negative 

diagnosis? 

MR. FABRY. Absolutely not. 

MR. BURGESS. Mr. Zadeh, let me ask you the question along the 

same lines. You stated that there were two companies that you did use. 

Without violating attorney-client privilege, can you tell us the contractual 

arrangement with those firms? Was it a flat rate? 

MR. ZEDAH. Flat. 

MR. BURGESS. And at no time would additional moneys have been 

paid for a positive diagnosis. 

MR. ZEDAH. That’s correct. 

MR. BURGESS. Mr. Fabry, at the risk of being repetitious, did you 

ever pay for a positive diagnosis from any of the screening companies 

that you may have used? 

MR. FABRY. I’m not sure I understand the question. 

MR. BURGESS. Would there have been a situation where a screening 

company was paid for a positive diagnosis but not paid for a negative 

diagnosis? 

MR. FABRY. I understand. I believe that’s the same question asked a 

minute ago. All providers are paid for the service provided. It is not 

contingent upon results. Does that answer the question? 

MR. BURGESS. Yes. Thank you both. 

Thank you, Mr. Chairman. 

MR. WHITFIELD. At this time I recognize Mrs. Blackburn from 

Tennessee. 

MRS. BLACKBURN. Thank you, Mr. Chairman, and I want to thank 

the two of you for being here and for talking with us about this, because I 
185

think it is something that deserves our attention, and is an item that 

should be of concern to us. 

I want to stay on the same train of thought that Dr. Burgess was just 

moving along with and look at the ways that your law firms identify and 

find people. We have had another hearing, we have talked about the B 

readers, we’ve talked about the physicians, and the diagnosis process. 

And, Mr. Fabry, I want to come to you. I am not a lawyer, I am not a 

physician, I am pretty much what you would call an average consumer. 

When I see these things that have the tinge of abuse, sometimes it just 

kind makes you a little angry and causes great concern, especially when 

you think there may be people that have been preyed upon or have been 

dealt with unfairly. I guess part of that is being a mom and part of that is 

having great concern for the people that I represent. 

I went to your Web site, Mr. Fabry, and pulled down a client profile 

of a client of yours that is on that Web site. I found it so interesting. 

This client profile is of a Mr. and Mrs. Howell. Are you familiar with 

that? 

MR. FABRY. Yes. 

MRS. BLACKBURN. Great. Now, Mr. Howell is called Sonny to his 

friends, right? And it seems that he worked for 45 years for a company 

and in ‘94 he was diagnosed with silicosis. So why don’t you describe 

for me how your law firm became involved with Mr. Howell and this 

diagnosis, and how the Howells came to the attention of your law firm. 

MR. FABRY. I believe that Mr. Howell and his case is one of the 

cases I assumed responsibility for in 2001. 

MRS. BLACKBURN. So you assumed responsibility for that case. 

MR. FABRY. Yes. 

MRS. BLACKBURN. How many total cases do you have? 

MR. FABRY. Currently? I represent 29 individuals. 

MRS. BLACKBURN. Twenty-nine. At the height of pursuing this, 

how many did you have? 

MR. FABRY. What do you mean by the “height of pursuing this”? 

MRS. BLACKBURN. Well, seems like you aggressively pursued, went 

after this business. It says on here, WB continues to pursue silicosis 

cases all over the U.S. How many, total, did you or your firm have? 

MR. FABRY. You have got a number of different parts there. I’m 

still not sure I’m following your question. 

MRS. BLACKBURN. I speak pretty plain English. How many cases 

have you got? 

MR. FABRY. Nine lawsuits, 29 plaintiffs. 

MRS. BLACKBURN. Go ahead and tell me how the Howells came to 

your attention. 
186

MR. FABRY. Again, I believe that the Howells were clients of the 

firm when I began working on silicosis cases for the firm in 2001. 

MRS. BLACKBURN. Okay. So they were already there. 

MR. FABRY. That is the best of my recollection, yes. 

MRS. BLACKBURN. Now, why don’t you talk a little bit about how 

you pursue these cases; since you say you pursue them all over the U.S., 

how do you pursue them? Do you primarily use advertising in different 

States, do you use different methods, do you work with physicians in 

some States, do you work with B readers in some States, do you just do 

advertisements such as the one that Dr. Burgess saw, do you go on TV, 

do you go on radio? Exactly how do you pursue these? 

MR. FABRY. Respectfully, I think you have a misunderstanding of 

how the word “pursue” is used. When we file a case, we actively pursue 

the case for the client. I believe that is what’s intended. 

MRS. BLACKBURN. Okay. Then how do you find your people? 

MR. FABRY. Some people find us, sometimes other lawyers. 

MRS. BLACKBURN. How does that link take place? 

MR. FABRY. They may visit our Web site. Mr. Howell may run into 

one of his friends, hypothetically, and say “you might want to call Mr. 

Fabry.” Another lawyer -- 

MRS. BLACKBURN. So you’re saying primarily it’s word of mouth. 

MR. FABRY. Primarily, yes. 

MRS. BLACKBURN. Thank you. I yield back. 

MR. WHITFIELD. Thank you. I would ask each of you, do either of 

you or your firms, do either of your firms have or have you had clients 

who have been diagnosed specifically with silicosis by Drs. Ray Harron 

or James Ballard? 

MR. FABRY. Not to my knowledge. 

MR. ZEDAH. Dr. Ballard is a B reader. Whether or not you call that 

a diagnosis or not; we had the discussion in the beginning. 

MR. WHITFIELD. Then as a B reader. Have you used him as a B 

reader? 

MR. ZEDAH. I have used him and I have used Dr. Harron. 

MR. WHITFIELD. Let me ask, Mr. Fabry, we have your documents 

here, which we appreciate you presenting. You had indicated, I believe, 

in replying to Chairman Barton’s comments, that this represents 

95 percent of the documents. Is that the case, or do you expect that there 

will be more documents coming? Are you still looking? 

MR. FABRY. I don’t believe I said they were 90 or 95 percent. I said 

that I am comfortable that that represents the majority of what would be 

responsive to the subpoena. There may be other areas and we’re 

continuing to look. But simply looking at the subpoena and based on my 
187

memories of doctors we worked with, we were able to target those 

documents. 

MR. WHITFIELD. We appreciate that. Speaking for both of you, I 

would ask you to make a concerted effort by 5 o’clock Monday to get the 

documents to us -- our attorneys will be discussing this with your 

attorneys -- a good-faith effort, because, as you know, we do have your 

return under this subpoena and we have a scheduled date for you to 

return on April 4th at 4:00 p.m. And in the discussion that you have had 

with me, Mr. Zadeh, and the Chairman, we recognize the material that 

you have is quite a lot of material. As the Chairman also stressed, it is 

usually known that most of this material can be found rather quickly for 

the areas that we want. We would ask that your attorney and our 

attorney continue to discuss about this, and we are going to have you 

scheduled to return on Tuesday, April 4th, assuming that there will be 

some documents coming before then and that won’t be necessary. 

Also, I would ask you that with respect to any documents withheld, 

that you provide a privilege log for those documents that are going to be 

withheld. 

Of course I want to move, and, without objection this document book 

here will be placed into the record and we will keep the record open 

pending the reception of these additional materials that we expect. 

[The information follows:] 
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206

MR. WHITFIELD. Like I said, Mr. Zadeh, we expect you to be back 

here Tuesday, April 4th at 4:00 p.m. under the subpoena, but anticipate 

that documents will be coming in before then. So with that -- 

MR. STUPAK. Mr. Chairman, before you adjourn this hearing, a 

question or two, if I may. 

MR. WHITFIELD. Yes. 

MR. STUPAK. Thank you. 

Our jurisdiction in this matter here is really public policy and it’s the 

health concerns we have, and I think Mr. Burgess certainly is doing a 

good job of bringing out our jurisdiction here on the public policy issue; 

because the concern was by the members of the committee is if there was 

-- when you testified a B reader saw a mass and how were patients 

notified -- and I think, Mr. Zadeh, you indicated that an attorney would 

pick up a phone and inform the client to contact his personal physician or 

a report was sent to that client and later there was a full pulmonary 

examination. 

Could you tell me, and the question that is still bothering some of us: 

Was there delay, did it move fairly quickly? What is your responsibility 

if there is notification that there is something else or there may be a more 

serious disease discovered through these B readers. How would you 

handle that? And give me, if you can, a general time frame. I know each 

case is different. 

MR. ZEDAH. We would typically get a B read result back -- again, 

I’m generally speaking, they are different -- but get it back in 2 to 

3 weeks. We would review them, typically, the day they came in, and I 

would make those phone calls, typically, if I was in the office that day. 

MR. STUPAK. Would there have been any patients -- and I think you 

indicated earlier you had one or two who passed away -- but if anything 

came in -- this was your primary responsibility, these cases in your law 

firm? 

MR. ZEDAH. Yes, sir. 

MR. STUPAK. So there was no delay between you getting that 

information to a client? 

MR. ZEDAH. No, that was my priority. My priority was if that came 

in, I wanted that highlighted and I wanted that on my desk. 

MR. STUPAK. Mr. Fabry, same procedure, B reader. If you’d see 

anything, what was your procedure, how would you notify clients, and 

what was the time frame? 

MR. FABRY. Fortunately, I have never been faced with a situation in 

a silicosis case where a B read came in with a mass. I agree with Mr. 

Zadeh’s policy; I would make a phone call if such an event occurred. 

We have a general policy that no more than 3 days will pass from the 

arrival of a report in the office to forwarding that report to the client. 
207

MR. STUPAK. Okay. No further questions, Mr. Chairman. 

MR. WHITFIELD. Mr. Burgess. 

MR. BURGESS. Thank you, Mr. Chairman. If I could just take a 

minute or two of the committee’s time before we finish up. I resisted the 

urge to pontificate, but I really can’t help myself at this point. These are 

patients who by their very nature are very high-risk patients, so the 

presence of a chest mass, whether it be from a smoking-related disease or 

other industrial pneumoconiosis, this is a real possibility, not just an 

abstract line of questioning. I suspect that there was concomitant or 

unexpected disease found in a number of these patients, and I hope they 

were informed in a timely fashion. 

I am concerned because I guess the status of the multi-district 

litigation now is Judge Jack threw the case out; is that correct? 

MR. ZEDAH. No, that is not correct. She stated she did not have 

jurisdiction, which means she had no power to make any ruling over the 

cases at all, so she sent them back to the Mississippi State courts or 

Federal courts. 

MR. BURGESS. Silicosis is a serious disease and results in serious 

disability for those who have it. And the unintended consequence of 

what has happened with this case is that people with a legitimate claim 

and legitimate disease who have suffered, whose families have suffered, 

now are likely not to be able to get the redress that they sought. Several 

cases are likely to leave us before this case is eventually had. We have 

added probably years to the process of getting any type of help or 

compensation to the people who have actually been injured, and I think 

that’s a travesty. 

I was extremely uncomfortable here, 2 weeks, when we heard Dr. 

Martindale’s deposition. Here’s an individual that from all appearances 

is well trained, well spoken, well credentialed. Had I been interviewing 

him on my hospital credentials committee I would have probably hired 

him, he was so well versed in his subject; and his career, of course, is in 

shambles and the 36 people he read films for are likely not to be able to 

get compensation if they deserve it, or industry was unjustly penalized 

because he misread the films and admitted under oath here in this 

committee that he didn’t know what the diagnostic criteria for silicosis 

was. 

I’m just absolutely astounded by the behavior of two of this 

country’s great professions in this litigation. And who gets hurt in the 

process is the patient. The patients who had legitimate disease, who 

sought legitimate redress of their grievances through the legal system, 

who sought help for their health-related problem through the medical 

system. I couldn’t leave this committee room, and, Mr. Chairman, I 

thank you for giving me the time, without getting that off my chest. 
208

This really points out the worst of both of our professions and I hope 

this committee will get to the bottom of this and get this straightened out, 

but it is just unconscionable this type of activity would have occurred. 

I’ll yield back. 

MR. WHITFIELD. Thank you, Dr. Burgess. 

We’ll now bring the hearing to a conclusion, but I want to remind 

Mr. Zadeh and Mr. Fabry they remain under subpoena for the records 

requested, and you are commanded to appear at another hearing of this 

subcommittee next Tuesday, April 4th, to make production pursuant to 

the subpoena. We recognize, Mr. Fabry, that you have already presented 

some documents and you’re going to continue to look; and, Mr. Zadeh, 

you’re going to continue to make some productions, and our attorneys 

will remain in touch with you. But both of you remain under subpoena. 

And with that, this hearing will recommence on Tuesday. 

[Whereupon, at 11:30 a.m., the subcommittee was adjourned.] 
209

THE SILICOSIS STORY: MASS TORT 

SCREENING AND THE PUBLIC HEALTH 

TUESDAY, JUNE 6, 2006 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON ENERGY AND COMMERCE, 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, 

Washington, DC. 

The committee met, pursuant to notice at 2:05 p.m., in Room 2123 of 

the Rayburn House Office Building, Hon. Ed Whitfield (Chairman) 

presiding. 

 Members present: Representatives Pickering, Burgess, Blackburn, 

Stupak, and Whitfield. 

Staff present: Tony Cooke, Counsel; Andrew Snowdon, Counsel; 

Mark Paoletta, Chief Counsel for Oversight and Investigations; Clayton 

Mattheson, Research Analyst; Jonathan Pettibon, Legislative Clerk; 

David Nelson, Minority Investigator/Economist; Jonathan Brater, 

Minority Staff Assistant; and Jessica McNiece, Minority Research 

Assistant. 

MR. WHITFIELD. I would like to call the hearing to order this 

afternoon. The subject matter is the silicosis story, mass tort screening 

and the public health, and it is our third day of hearings on this subject 

matter. I might add that this investigation began as a result of a decision 

made by Federal Judge Jack on June 30, 2005, in a district court in Texas 

regarding multi-district litigation involving silicone, and in her decision, 

she spent a lot of time talking about law firms, medical screening firms, 

and physicians and their working together to generate these lawsuits. In 

that situation they generated diagnoses of 10,000 patients regarding 

silicosis, but I think we need to be reminded on what Judge Jack 

concluded as a result of the evidence that she heard and listened to in that 

case. She concluded that these diagnoses were about litigation and not 

healthcare. They were driven by neither health nor justice but were 

manufactured for money. And we continue to gather and review 

documents and information from the 55 letters sent to doctors, screening 

companies, State medical boards, law firms, and State health departments 

involved in this matter. 

 To date we have held two hearings where we have heard remarkable 

testimony. We heard one doctor credited with 3,600 diagnoses of 

silicosis explain that he never meant to diagnose anyone, and in fact, did 
210

not know the criteria for diagnosing silicosis. We heard one screening 

company tell us that they were paid only when they produced a positive 

diagnosis of silicosis for one law firm, but they didn’t receive anything 

when they had a negative. We also heard three doctors credited with a 

combined total of over 1,800 diagnoses of silicosis take advantage of 

their Fifth Amendment rights when asked if their diagnoses were 

accurate and made pursuant to medical practices, standards, and ethics. 

 Today promises to be an equally illuminating day in the committee’s 

inquiry. Today we will examine a fundamental question: Where were 

the regulatory and medical protections and safeguards for the public 

health in this process of mass tort screening? To that end, we are joined 

this afternoon by the medical boards and State radiation regulators of 

Mississippi and Texas. We are also joined by three screening 

companies: N&M of Moss Point, Mississippi; RTS, Inc., of Mobile, 

Alabama; and Occupational Diagnostics of Ocean Springs, Mississippi. 

Appearing today with each of these three screening companies, 

respectively, is also one doctor who worked with them. 

 Among the most basic responsibilities of a government in terms of 

public health are to protect citizens from unnecessary dangers in the 

practice of medicine and further to make certain that citizens receive care 

under a set of medical standards and ethics that ensure good medicine 

and accountability. 

 These are two basic standards that we should apply today as we 

examine mass tort screening practices. First, let us keep consideration of 

the public from unnecessary risk or dangers in medicine. Radiation in 

the form of diagnostic testing such as X-rays is an important medical 

tool, but it comes with real dangers. Most States, such as Mississippi and 

Texas, have strict rules to make certain that exposure to radiation occurs 

only for sound medical reasons and under the supervision of certain 

licensed medical professionals. 

We will hear today from these States about their regulations 

establishing these important health safeguards and we will also hear from 

N&M, RTS, and Occupational Diagnostics, the screening companies, 

about what steps, if any, they took to be certain that they operated in a 

proper procedure. I would repeat that thousands of men’s and women’s 

X-rays must meet these rules and we must ensure that proper medical 

supervision was used to oversee this important yet dangerous diagnostic 

tool. 

 Second, with respect to safeguards ensured through medical 

standards and ethics, we will speak to witnesses from the medical boards 

of Mississippi and Texas. In particular, we will learn about what 

constitutes the practice of medicine in those States, what establishes the 

vital doctor-patient relationships, and what duties and obligations doctors 
211

have to patients as a result of that relationship. We must not forget the 

protection of public health is built upon ethical and legal frameworks in 

medicine that set forth standards and practices, ensure accountability by 

healthcare providers and, if necessary, assign liability. If 10,000 people 

involved in lawsuits in Texas have been told that a doctor has found they 

have silicosis, those patients must be confident of that opinion and they 

must be confident that it was not offered lightly or without some 

accountability for its accuracy. These are all vital public health questions 

and I want to welcome all of our witnesses today, particularly those from 

the Mississippi Department of Health and Texas Department of State 

Health Services. We look forward to your testimony. At this time I 

would like to recognize the gentleman from Michigan, Mr. Stupak. 

 [The prepared statement of the Hon. Ed Whitfield follows:] 

PREPARED STATEMENT OF THE HON. ED WHITFIELD, CHAIRMAN, SUBCOMMITTEE ON 

OVERSIGHT AND INVESTIGATIONS

This afternoon we convene the third day of hearings on the important public health 

issues raised by the practice of mass tort screening. 

Our investigation, begun in August 2005, continues to gather and review documents 

and information from the 55 letters sent to doctors, screening companies, state medical 

boards, law firms and state health departments involved in this matter. To date, we have 

also held two hearings where we have heard some remarkable testimony: we heard one 

doctor, credited with 3600 diagnoses of silicosis, explain that he never meant to diagnose 

anyone and, in fact, did not know the criteria for diagnosing silicosis; we heard one 

screening company tell us that they were paid only when they produced positive 

diagnoses of silicosis for one law firm, but nothing for a negative; and we also heard 

three doctors, credited with a combined total of over 1800 diagnoses of silicosis, take 

advantage of their Fifth Amendment rights when asked if their diagnoses were accurate 

and made pursuant to medical practices, standards, and ethics. Today promises to be an 

equally illuminating day in the Committee’s inquiry. 

Today we will examine a fundamental question: Where were the regulatory and 

medical protections and safeguards for the public health in this process of mass tort 

screening? 

To that end, we are joined this afternoon by the medical boards and state radiation 

regulators of Mississippi and Texas. We are also joined by three screening companies: 

N&M, of Moss Point, Mississippi; RTS, Inc. of Mobile, Alabama; and Occupational 

Diagnostics of Ocean Springs, Mississippi. And appearing today with each of these 

screening companies, respectively, is also one doctor who worked with them. 

Among the most basic responsibilities of a government, in terms of public health, 

are to protect citizens from unnecessary dangers in the practice of medicine and, further, 

to make certain that citizens receive care under a set of medical standards and ethics that 

ensure good medicine and accountability. These are two basic standards that we should 

apply today as we examine certain mass tort screening practices. 

First, let us consider the protection of the public from unnecessary risks or dangers 

in medicine. Radiation, in the form of diagnostic testing such as x-rays, is an important 

medical tool – but it comes with some real dangers. Most states, such as Mississippi and 

Texas, have strict rules to make certain that exposure to radiation occurs only for sound 

medical reasons and under the supervision of certain licensed medical professionals. We 

will hear today from these States about their regulations establishing these important 
212

health safeguards – and we will also learn from N&M, RTS, and Occupational 

Diagnostics about the steps and procedures they took to be certain that the manner in 

which they exposed thousands – and I repeat, thousands – of men and women to x-rays 

met these rules and ensured that proper medical supervision oversaw the use of this 

important, yet dangerous, diagnostic tool. 

Second, with respect to safeguards ensured through medical standards and ethics, we 

will speak to witnesses from the medical boards of Mississippi and Texas. In particular, 

we will learn about what constitutes the practice of medicine in those States, what 

establishes the vital doctor-patient relationship, and what duties and obligations doctors 

have to patients as a result of this relationship. We must not forget the protection of 

public health is built upon ethical and legal frameworks in medicine that set forth 

standards and practices, ensure accountability by health care providers, and, if necessary, 

assign liability. If 10,000 people involved in lawsuits in Texas have been told that a 

doctor has found they have silicosis, these patients must be confident this opinion was not 

offered lightly or without some accountability for its accuracy. 

These are all vital public health questions. 

I want to welcome each of our witnesses and particularly those from the Mississippi 

Department of Health and Texas Department of State Health Services. I look forward to 

your testimony. 

 MR. STUPAK. Thank you, Mr. Chairman. 

 This is now our third hearing to explore the issues involved in the 

litigation of silicosis cases. While I acknowledge the fairness in which 

you have conducted this investigation, my Democratic colleagues and I 

remain unconvinced that this investigation will lead to any legislative 

effort by this committee that would contribute to public health. 

Nevertheless, this hearing raises questions about whether State oversight 

of the medical profession and X-ray operators adequately protects the 

silicosis victims. I expect today’s testimony to be enlightening. 

 The medical profession is primarily regulated at the State level and is 

primarily regulated by boards made up of their peers. However, bad 

doctors rarely seem to lose their license to practice medicine. This 

hearing will examine medical board systems and how they handle 

doctors. Last September the American Medical Association took the 

unusual step of referring doctors named in the silica case to nine State 

medical societies for examination. Today we will have testimony of the 

medical board in Mississippi. I hope to learn what, if any, disciplinary 

action or investigation these two boards undertook to respond to the 

AMA referral. We will also have an opportunity to examine the 

regulation of the screening company in Mississippi. I want to know if 

the States have devoted sufficient resources and implemented sufficient 

deterrent penalties to assure that proper procedures to protect patients are 

adhered to by these for-hire mobile X-ray operators. 

 Mr. Chairman, I must say a word regarding the future of these 

hearings. To date virtually no issue raised by these hearings is amenable 

to Congressional remedy. The responsibility rests with either the State 

regulatory agencies or the courts to assist the patients identified in the 
213

mass screenings receive the appropriate care. I understand that this 

committee will hear from lawyers in the coming weeks. However, as I 

have said numerous times, I don’t believe this hearing is necessary as the 

courts and State bar associations exist to address the improprieties such 

as those suggested by Judge Jack in the silica proceedings. 

 Again, Mr. Chairman, it seems to me that there are many targets of 

the subcommittee’s attention that would be far more likely to make a 

positive impact on public health. We still have an open investigation 

into the fairness of the FDA to assure the safety of our Nation’s 

prescription drug supply including, but not limited to, Accutane. 

 In fact, Mr. Chairman, if I may, let me read an e-mail I received 

yesterday. Unfortunately, I receive too many of these e-mails. It is dated 

Sunday, June 4: “Congressman Stupak, we just buried my son, 17 years 

old, this past Friday, June 2. On May 18, 2006, my daughter and I came 

home in the evening to find a note on the kitchen table telling us that he 

was dead and in heaven. My daughter, who is 15, found the note, and 

before I had to chance to react, she was already running to her brother’s 

room where she found him shot in the face. He had taken my husband’s 

shotgun and shot himself. He was not depressed and he did not drink or 

take drugs. This was very out of character for him. He was put on 

Accutane by a dermatologist which is 70 miles away from where we live. 

The doctor told us on March 27, 2006, the very first time he had ever met 

my son, that he was a candidate for Accutane. He did not try anything 

else first and he assured us that Accutane was safe. I had never heard 

anything about this medication before that day. I did not have any reason 

to disagree with him. He was only on the medication for six weeks. All 

of his friends are in shock right now because this was not like him. He 

was a very loving and giving son. It just grieves us to know that you 

tried to take the medicine off the market but to no avail. My son died 

May 29, 2006, at 2:50 p.m. A friend of ours found a lot of things on the 

website about Accutane. This is where we found your name. My son 

will never be brought back to us but I do not want another family to go 

through the last two weeks that we have been through.” 

 As you know, Mr. Chairman, I have tried numerous times to release 

the committee report that was done in May of 2003 on Accutane, yet this 

committee continues to suppress the information that should be made 

public. Yet we have hearings like today that really I can’t find any 

public health issue in it but other than maybe to try to embarrass the trial 

bar. For over 2 years now I have asked the Chairman and the Chairman 

has assured me there would be hearings and still none comes forth. The 

American people certainly have a right to know about our hearings on 

Accutane. The Accutane report of May 2003 should be released because 
214

there is public information that could help people like this so we don’t 

receive e-mails like this. 

 Mr. Chairman, we also should examine a GAO report recently 

published on the quality of CMS’s communications on Part D benefit. 

Posing as seniors and individuals helping a senior, investigators for the 

Government Accountability Office placed 500 calls to a 1-800 Medicare 

number and found that about one-third resulted in faulty information or 

none at all. When asked what drug plans were most appropriate and least 

expensive for an individual, customer service representatives got the 

answer right 41 percent of the time. The committee’s resources would 

be better served investigating issues such as these, as the lack of accurate 

information for our seniors grappling with this confusing new program. 

 The available hearing days left in this Congress are few. I suggest 

that it is well past the time we focus on our issues that are the priority for 

the health and welfare of the American people. 

 With that, Mr. Chairman, I would yield back the balance of my time. 

 MR. WHITFIELD. Thank you very much, Mr. Stupak. 

 [Additional statements submitted for the record follows:] 

PREPARED STATEMENT OF THE HON. JOE BARTON, CHAIRMAN, COMMITTEE ON ENERGY 

AND COMMERCE

Thank you, Chairman Whitfield, and let me thank you and Mr. Stupak for pursuing 

this important investigation into the public health implications of mass tort screenings. 

One of the bottom-line questions for me in this inquiry has always been this one: 

How on earth can 10,000 people have been possibly misdiagnosed with an often fatal and 

largely incurable disease? What do you suppose would be happening if the tables were 

turned and plaintiffs’ lawyers were not involved in generating all these diagnoses? I 

suspect that we might be looking at thousands of lawsuits screaming medical negligence, 

malpractice, and emotional distress. 

But the plaintiffs’ bar was involved, so we’ve had to sort this situation out ourselves. 

Today the Committee will ask where, in all these mass screenings, were the 

regulatory and medical protections for patients? Where were the safeguards that protect 

people from being exposed to doses of radiation without appropriate medical 

supervision? And where were the medical ethics that create doctor-patient relationships 

and dictate the responsibilities of doctors to the patients they diagnose? 

When we dug into the facts, we found doctors, screening companies and lawyers all 

standing in a circle, each one pointing to the next as the responsible party. It appears 

everyone here wanted to take advantage of the litigation value of a so-called “diagnosis,” 

but no one wanted to be accountable for the medical significance of the diagnosis. As 

Judge Jack wrote in her opinion, “By dividing the diagnosing process among multiple 

people, most of whom had no medical training and none of whom had full knowledge of 

the entire process, no one was able to take full responsibility over the accuracy of the 

process.” 

This Committee’s investigation is beginning to corroborate the Judge’s opinion on 

that point. However, what concerns me is whether these divisions in the diagnosing 

process were not an accident but rather a matter of the right hand being willfully ignorant 

of what the left was doing. That is to say, were the doctors, the screeners, and lawyers 

purposefully turning a blind eye to possible lapses in medical standards, practices, and 
215

ethics so they could not be held accountable? Let me just give one brief example of this 

blind eye. 

A common theme emerging in this Committee’s investigation is that, with minor 

exceptions, there seems to have been an apparent “misunderstanding” between the 

doctors, lawyers, and screeners about whether the doctors’ opinions in this case were 

actual medical diagnoses. Where there was pretty straightforward diagnosing language in 

two sets of reports, the doctors have claimed that someone apparently slipped the 

language into the reports and they were too busy to notice it when they were signed. 

What’s going on here? 

This is not a misunderstanding about some minor point in a report. It’s a 

misunderstanding about whether a person does, or does not have, a deadly disease. This 

is stunning and remarkable. Between the doctors who have taken the Fifth before this 

Committee and the doctors who now claim they never meant to diagnose anyone, I count 

as many as 5,000 people whose diagnosis is now questionable or unsupported. Can this 

be right? How can this happen? Chairman Whitfield, this matter alone underscores the 

importance of this investigation. 

I want to again thank Chairman Whitfield for his work on this issue and for holding 

this third day of hearings. I look forward to the testimony and yield back the remainder 

of my time. 

PREPARED STATEMENT OF THE HON. MICHAEL BURGESS, A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF TEXAS

Thank you Mr. Chairman, and thank you for your continued leadership into the 

investigation of this important public health issue. While today we continue to address 

the potential problems associated with mass screening and the diagnosis of illnesses, I 

strongly believe that it is the role and responsibility of this entire committee to address 

the imminent health care needs of our nation. We must not abdicate our responsibility to 

the American public to actively pursue public health concerns. Thank you, Mr. Chairman 

for recognizing this vital role of our committee and investigating such a serious issue. 

I have been licensed to practice medicine in the State of Texas since 1977. Through 

my over twenty years in medical practice, I learned to fully appreciate the importance and 

need for an efficient and effective medical screening process. Thousands upon thousands 

of lives have been saved due to medical screening processes that were able to detect 

illnesses and other serious maladies. This system relies upon trained physicians and other 

medical personnel to perform reliable diagnostic evaluations. Without this crucial 

element, the screening system falls apart, thus, jeopardizing the health and welfare of the 

public that was meant to be protected. The medical community, including physicians and 

medical boards, must recognize this essential function. 

One of the first lessons that a medical student learns is that the doctor/patient 

relationship is sacred. For a doctor to truly help the patient, the patient must have full 

faith and trust in the doctor. Once the relationship has been established, the doctor owes 

a fiduciary duty to the patient, and must exercise a high standard of care towards the 

patient. This relationship is a cornerstone of the medical community, and cannot be 

easily disregarded. The situation before us today exemplifies the harm that can occur 

when patients believe that the relationship has been established but the doctor abandons 

his duty. 

Today, I look forward to examining my homestate’s rules and regulations involving 

mass health screenings in Texas. I would like to especially welcome Mr. Richard Ratliff 

of the Texas Department of State Health Services, and Dr. Donald Patrick of the Texas 

Medical Board. Gentlemen, thank you for traveling from Austin today to address this 

important issue. I look forward to entering into a lively discussion with each of you. 
216

While I am appreciative of these witnesses coming before us today, I would also like 

to take a moment to express my extreme dissatisfaction regarding the absence of two 

witnesses on the second panel—Mr. Heath Mason of N&M, Inc., and Dr. Todd Coulter. 

While they chose not to appear before Congress today, I have full faith that the Chairman 

will continue to explore all legal means to obtain their testimony. 

 Again, Mr. Chairman, I thank you for this hearing, and I look forward to working 

with you and the rest of the committee to achieve real results for the public health and 

welfare of this country. 

I yield back the remainder of my time. 

 MR. WHITFIELD. At this time I would like to call the first panel up to 

the witness table, please. On the first panel we have Mr. Robert Goff, 

who is the Director of Division of Radiological Health, the Mississippi 

Department of Health. We have Dr. Mallan Morgan, who is Executive 

Director of the Mississippi State Board of Medical Licensure. We have 

Mr. Richard Ratliff, who is the Radiation Control Officer for the 

Division of Regulatory Services, the Texas Department of State Health 

Services; and we have Dr. Donald Patrick, Executive Director of the 

Texas Medical Board, who also happens to be a lawyer as well. I want 

to welcome the four of you gentlemen and we appreciate very much your 

being here. 

 You are aware that the committee is holding an investigative hearing 

and when doing so we have the practice of taking testimony under oath. 

Do any of you have any objection to testifying under oath today? As you 

may or may not know, under the rules of the House and the rules of the 

committee, you are entitled to be advised by legal counsel. Do any of 

you desire to be advised by legal counsel this afternoon. Yes, sir? 

 DR. PATRICK. This is Mari Robinson sitting behind me. 

 MR. WHITFIELD. Would you identify your counsel again? I didn’t 

catch the name. 

 DR. PATRICK. Mari, M-a-r-i, Robinson. 

 MR. WHITFIELD. Mari Robinson? 

 DR. PATRICK. Correct. 

 MR. WHITFIELD. And Mari, is that you? Okay. Thank you. Now, 

she will not be testifying but is here to give you advice. Okay. 

 [Witnesses sworn] 

 MR. WHITFIELD. Thank you. You are now under oath. You may sit 

down and give your 5 minute opening statement. Mr. Goff, we can just 

start with you, so you are recognized for 5 minutes. 
217

STATEMENTS OF ROBERT W. GOFF, DIRECTOR, DIVISION 

OF RADIOLOGICAL HEALTH, MISSISSIPPI 

DEPARTMENT OF HEALTH; MALLAN G. MORGAN, M.D., 

EXECUTIVE DIRECTOR, MISSISSIPPI STATE BOARD OF 

MEDICAL LICENSURE; RICHARD A. RATLIFF, P.E., 

L.M.P., RADIATION CONTROL OFFICER, DIVISION OF 

REGULATORY SERVICES, TEXAS DEPARTMENT OF 

STATE HEALTH SERVICES; AND DONALD PATRICK, 

M.D., J.D., EXECUTIVE DIRECTOR, TEXAS MEDICAL 

BOARD 

MR. GOFF. Good afternoon, Congressman Whitfield. 

 MR. WHITFIELD. Be sure and turn your microphone on as well. 

 MR. GOFF. Good afternoon, Congressman Whitfield and members 

of the committee. The Mississippi regulations for-- 

 MR. WHITFIELD. If you could hold just one minute. I am sorry. We 

still seem to be having a little difficulty. 

 MR. GOFF. Good afternoon. The Mississippi regulations for control 

of radiation have provisions which address healing arts screening. These 

provisions were adopted from the Suggested State Regs, which were 

developed by the Conference of Radiation Control Program Directors, 

which is a professional organization made up of radiation programs. 

Many States use the very same regulations. 

 The purpose of the healing arts screening is to allow screening of 

individuals for certain health indications without the requirement that the 

physician write a specific and individual order for each person. The 

screening program must be conducted under the authorization of a 

physician licensed in accordance with the Mississippi statutes. During 

the past few years we cited and we have investigated four companies 

with mobile X-ray units that were conducting healing screenings without 

the agency’s approval. Other information from other sources has 

indicated that other companies may have also entered the State without 

our knowledge. 

 Currently, there are only two screening programs approved in 

Mississippi at two universities for bone density studies. There are no 

programs approved for silicosis. The Mississippi Department has 

identified areas in our review process of applications for healing arts 

screening that need to be improved as well as revisions of the regulations 

for clarification of screening programs. I would be more than happy to 

answer any questions you have today. 

 [The prepared statement of Robert W. Goff follows:] 
218

PREPARED STATEMENT OF ROBERT W. GOFF, DIRECTOR, DIVISION OF RADIOLOGICAL 

HEALTH, MISSISSIPPI DEPARTMENT OF HEALTH

The Mississippi Radiation Law of 1976, Sections 45-14-1 thru 45-14-69 of the 

Mississippi Code of 1972, annotated established the Mississippi Department of Health as 

the state agency to administer a state-wide radiation program and to promulgate 

regulations for the use of sources of radiation, Sections 45-58-1 through 41-58-5, of the 

Mississippi Code of 1972 and the Mississippi Department of Health’s “Regulations 

Governing Registration of Medical Radiation Technologists”, established the 

requirements for radiological technologists in 1997. 

The Mississippi Regulations for Control of Radiation (MRCR) has provisions which 

address healing arts screening. These specific provisions were adopted from the 

Suggested State Regulations, which were developed by the Conference of Radiation 

Control Program Directors, Inc. to promote uniform radiation protection regulations 

among the states. 

The purpose of healing arts screening was to allow screening of individuals for 

certain health indications without the requirement that the physician write a specific and 

individual order for each person. However, a screening program must still be conducted 

under the authorization of a physician licensed in accordance with the Mississippi 

statutes. 

In order to conduct a health screening program, a company must submit the required 

information as listed in Appendix B of Section F of the Mississippi Regulations for 

Control of Radiation in letter form requesting approval, signed by an officer of the 

company or management given the authority to do so. A health screening program must 

not be initiated without approval of the Agency. 

A review of the records indicates that the Mississippi Department of Health has 

conducted four investigations of companies with mobile x-ray units for conducting health 

screening without the Agency’s approval. All companies were cited for failure to comply 

with the regulations. Three of the four companies terminated their activities within the 

state of Mississippi. The fourth company submitted a screening program which was later 

approved. 

With the exception of two health screening programs approved for bone density 

studies at two universities, no health screening programs using sources of radiation are 

currently approved . 

The Mississippi Department of Health has implemented certain procedural changes 

in the review of applications and issuing registrations for screening programs. The 

Division Director reviews all applications for health screening programs in consultation 

with the medical members of the Radiation Advisory Council. Only those applications 

associated with a medical or educational institution and conducting a specific medical 

study will be considered. All applications will require, in addition to an officer or 

management signature, the medical director’s signature. 

The registration for screening programs will contain specific conditions that 

identifies the program has been approved under the medical director and that the 

registrant must notify the Agency if any information becomes invalid or outdated. In 

addition to placing specific conditions on registrations approved for health screening, all 

mobile x-rays units registrations will have a condition that clearly states that the 

registrant is not authorized for healing arts screening and that the unit must be used only 

under the authorization of a physician licensed in accordance with Mississippi statutes. 

The staff is currently working on revising Section F, “X-rays in the Healing Arts” 

of the Mississippi regulations to clarify the healing arts screening requirements. The 

CRCPD Healing Arts Working Group is also revising the Suggest State Regulations on 

healing arts screening. 
219

Although, the steps taken above will certainly improved the regulation of screening 

programs in Mississippi, there will still be those companies that will conduct illegal 

health screening programs without the knowledge of Mississippi Department of Health . 

 MR. WHITFIELD. Thank you, Mr. Goff. At this time Dr. Morgan, 

who is the executive director of the Mississippi State Board of Medical 

Licensure, you may give your opening statement, Dr. Morgan. 

DR. MORGAN. Congressman Whitfield, the Mississippi State Board 

of Medical Licensure would like to thank you for the invitation and 

opportunity to testify before this subcommittee on the matter of silicosis 

screening that took place in several States, including Mississippi. 

 By way of background, through both statutory and regulatory 

enactments, the board licenses physicians, osteopaths, and podiatrists in 

the State of Mississippi. As with any regulatory agency, regulations are 

adopted from time to time to address certain needs implementing the 

Board’s overall policy to protect the public and ensure the administration 

of proper medical care. During 2002 the Board received a number of 

inquires from various entities offering unreferred diagnostic screening in 

the State of Mississippi. Unreferred screens are those performed without 

a physician’s order. Mobile diagnostic laboratories operated by forprofit entities were traveling throughout the State and offering a number 

of diagnostic modalities including sonograms and in some cases X-rays. 

The Board was not aware at the time of any mobile screening being 

conducted for the identification of plaintiffs in mass tort litigation. In 

response, the Board adopted a policy on July 18, 2002, subsequently 

amended on January 15, 2003, thus advising the public as to the Board’s 

position as to unreferred diagnostic screening tests. The policy reads as 

follows: “It is the opinion of the Mississippi State Board of Medical 

Licensure that any medical act that results in a written or documented 

medical opinion, order, or recommendation that potentially effects the 

subsequent diagnosis or treatment of a patient constitutes the practice of 

medicine in this State. Further, any physician who renders such a 

medical opinion, order, or recommendation assumes a doctor/patient 

relationship with the patient and is responsible for continuity of care with 

that patient. Failure to provide this continuity of care will be deemed to 

be unprofessional conduct. The obligation to ensure continuity of care 

does not apply in those instances where the physician rendering the 

medical opinion, order, or recommendation has been called in by another 

treating physician solely for consultative purposes.” 

 During the Board’s inquiry, it was determined that patients were 

being solicited through various advertisements to seek without a prior 

doctor’s order diagnostic modalities in order to determine if any disease 

or abnormalities were present. The results of the screens were 

transmitted to out-of-state physicians who rendered diagnoses. The 
220

Board was concerned as to whether or not, one, proper medical and 

family histories were being taken to rule out contraindications including 

but not limited to the overexposure of radiation due to frequent 

utilization of X-rays; two, the manner in which the abnormalities were 

being communicated to the patient; three, assurances that patients with 

abnormal screenings were being referred for timely and proper medical 

intervention; four, whether or not the physicians rendering the diagnoses 

were properly trained and/or credentialed; and number five, the method 

by which the Board could hold accountable those physicians rendering 

such diagnoses. 

 By virtue of the adoption of this policy on unreferred diagnostic 

screening tests, the Board requires all out-of-State physicians to be 

licensed in the State of Mississippi, thus accountable to our Board. 

Further, the Board determined that in those cases where X-rays were part 

of the modality offered, an individual or standing order for such an X-ray 

must be made by a Mississippi-licensed physician. Where the result 

resulted in the identification of an abnormality, the mobile facility must 

make reasonable efforts in writing to communicate with the patient and 

see that the patient is properly referred to a treating physician for needed 

medical care. 

 Subsequent to adoption of the above policy, the Board has been 

advised that certain members of the Plaintiffs’ Bar have employed the 

services of physicians to conduct diagnostic screening for the purpose of 

identifying potential plaintiffs in silicosis and other mass tort reform--

excuse me--tort litigation. On August 29, 2005, the Board was contacted 

by the Mississippi State Medical Association advising the Board that 

four Mississippi physicians had been subpoenaed to appear before the 

Energy and Commerce Committee. The Board of Trustees of the AMA 

requested that this Board investigate the involvement of the four named 

physicians. On September 8, 2005, the Executive Committee of the 

Board discussed the request and elected to defer any investigation until 

the Federal investigation had been completed. The Board, being not only 

a licensure agency but also a law enforcement agency under the 

Mississippi Uniform Controlled Substances Act, has in the past been 

requested by both Federal and State law enforcement agencies to assist 

the investigation of certain licensees. In this context, Federal and State 

authorities have expressed preference that the Board not conduct 

independent investigations or hearings until after their investigation has 

been completed. Such requests for abeyance are based on the language 

set forth in Mississippi Code Annotated 73-25-27, in part: “At such 

hearing, Licentiate may appear by counsel and personally in his own 

behalf. Any person sworn and examined as a witness in such hearings 

shall not be held to answer criminally nor shall any papers or documents 
221

produced by such witness be competent evidence and any criminal 

proceedings against such witness other than for perjury in delivering his 

evidence.” 

 It was the opinion of our Attorney General’s office that any hearings 

conducted by the Board, wherein the physician may testify or introduce 

papers on his or her behalf, could not be used against that physician in 

the State or Federal case. In response, the Board placed such matters in 

abeyance. 

 We point out the above facts, not by way of excuse but to explain the 

background for the Board’s December 8, 2005, decision not to pursue the 

independent investigation of the four physicians until conclusion of the 

Federal inquiry. Based on our discussions with Mr. Cooke, Counsel for 

House of Representatives, Committee on Energy and Commerce, we 

now have a greater understanding of the nature of the Federal inquiry, in 

other words, not criminal. The Board fully intends to continue to 

conduct an exhaustive investigation in response to the information from 

the AMA and MSMA. This includes evidentiary use of the opinion 

rendered by The Honorable Janis Graham Jack, depositions of all the 

Mississippi licensees and the numerous patient history and diagnoses 

forms bearing the signatures of Mississippi licenses. In so doing, we 

may be calling upon you and the Committee staff for assistance and/or 

further information. 

 The Board takes its responsibility to protect the public very seriously 

and fully intends to conduct the investigation as expeditiously as 

possible. In this regard, we are advised by our complaint counsel that 

any testimony before this committee will be that of the undersigned only 

and does not represent nor should be construed by the committee and 

others as expressing any opinion as to the guilt or innocence of the four 

named physicians. A license to practice medicine is a valuable property 

right. It cannot be denied or revoked without adequate due process of 

law, in other words, notice of charges and an opportunity for a hearing 

before an objective and non-biased decision maker. 

 Again, we thank you for your assistance. 

 [The prepared statement of Mallan G. Morgan, M.D. follows:] 
222

PREPARED STATEMENT OF MALLAN G. MORGAN, M.D., EXECUTIVE DIRECTOR, MISSISSIPPI 

STATE BOARD OF MEDICAL LICENSURE
223
224
225
226
227
228
229
230

 MR. WHITFIELD. Thank you, Dr. Morgan. At this time I would 

recognize Mr. Richard Ratliff, who is the Radiation Control Officer for 

the Texas Department of State Health Services. You are recognized, Mr. 

Ratliff. 

 MR. RATLIFF. Good afternoon, Congressman Whitfield and 

members of the subcommittee. I am Richard Ratliff. I am with the 

Department of State Health Services. 

 MR. WHITFIELD. Do you have your microphone on? 

 MR. RATLIFF. It shows that it is on. Yes, there we go. 

 I am Richard Ratliff with the Department of State Health Services. 

In Texas we have a State statute that allows the department to regulate all 

sources of radiation which includes radioactive material, X-rays, and 

lasers. We have specific rules and require that physicians prescribe each 

X-ray procedure. We have developed rules specifically for several types 
231

of screening and they are similar to Mississippi, only for bone 

densitometry, which is a fairly simply process, for mammography, which 

is real popular, and for heart CT. In each case, the radiation applicant for 

the X-ray registration must submit specific requirements so they have a 

physician on staff, what procedures they will follow, and how they will 

complete the diagnosis. 

 We have never authorized screening in our terminology for silicosis, 

and as we started through, in 1999 one of our State representatives had 

contacted us and had multiple newspaper articles advertising free X-rays 

so our inspector and--in Texas we have like 11 health regions. They 

went to the specific sites and we did find five separate companies that 

were doing X-ray screening and they were not authorized and so we have 

at that point advised them they could not continue. One of them had to 

paid a $10,000 penalty. Three others paid smaller penalties and had 

notices of violation. All the companies have gone out of Texas now. 

 After looking at what has happened here, you know, we have 16,000 

X-ray registrars in Texas. We have five companies, and so we look at 

risk, but still if they are not following the rules, they would now go 

forward with even stricter and severe penalties. We then have 

determined that we will not allow any company to do any out-of-State Xray unless they notify us every time they come into the State. 

Historically, they had a condition on their registration that we could 

request and within 24 hours they would bring their records to the State 

but this has brought the fact that we really need to have a condition that 

any time they come to the State they have to notify us and give us an 

opportunity to inspect them. 

 Like I said, none of the companies are continuing in business in 

Texas. They have all ceased. Two of the ones that were doing screening 

were medical facilities but somehow got connected with separate law 

firms. Once they realized what they were doing was screening, they 

stopped and they are just doing their regular practice of medicine now. I 

would be willing to answer any questions. 

 [The prepared statement of Richard A. Ratliff follows:] 

PREPARED STATEMENT OF RICHARD A. RATLIFF, P.E., L.M.P., RADIATION CONTROL 

OFFICER, DIVISION OF REGULATORY SERVICES, TEXAS DEPARTMENT OF STATE HEALTH 

SERVICES

Good afternoon, Congressman Whitfield and members of the Subcommittee. I am 

pleased to be here today to discuss the radiation regulatory requirements for medical xray users in Texas and answer your questions on specific findings concerning x-ray 

screening investigations conducted by the Texas Department of State Health Services 

(DSHS). 

Texas Health and Safety Code, Title 2, Subtitle D, Chapter 401 (Texas Radiation 

Control Act) provides for regulation of sources of radiation to ensure protection of the 

occupational and public health and safety and the environment. The Texas Radiation 
232

Control Act mandates that a person may not use a source of radiation unless that person 

has a registration from DSHS and it directs DSHS to adopt rules and guidelines that 

provide for registration of sources of radiation. 

DSHS has adopted rules specific to healing arts screening in Title 25, Texas 

Administrative Code (TAC), §§289.226 and 227. The rules define healing arts screening, 

require persons performing healing arts screening to be registered with DSHS prior to 

initiating the screening program, and requires specific information to be submitted with 

an application for healing arts screening. 

These DSHS rules define healing arts screening as “The testing of asymptomatic 

human beings using radiation machines for the detection or evaluation of health 

indications when such tests are not specifically and individually ordered by a licensed 

practitioner of the healing arts legally authorized to prescribe such x-ray tests for the 

purpose of diagnosis or treatment.” 

Specific application information includes the diseases or conditions for which the xray examinations are to be used in diagnoses, a detailed description of the x-ray 

examinations proposed in the screening program, a description of the population to be 

examined in the screening program (age, sex, physical condition) and an evaluation of 

any known alternate methods not involving ionizing radiation that could achieve the 

goals of the screening program and why these methods are not used instead.

An application for healing arts shall be signed by a licensed practitioner. The 

application must also be signed by the radiation safety officer. Additionally, the 

qualifications of the individual who will be supervising the operations and the name and 

address of the practitioner who will interpret the radiographs must be submitted with the 

application. A condition is added to the certificate that ties the registrant to commitments 

made in the application. 

A licensed practitioner of the healing arts, licensed in Texas, is required to 

direct/oversee the operation of radiation machines. Individuals who operate radiation 

equipment must meet the appropriate credentialing requirements in accordance with the 

Medical Technologist Certification Act, Texas Occupations Code, Chapter 601. 

DSHS does not require a licensed practitioner to be present/on site when a company 

conducts healing arts screening. However, a practitioner licensed to practice in Texas 

must be designated to direct and oversee the operation of the radiation machines and to 

interpret all x-ray films. 

An application for authorization to conduct healing arts screening must include the 

submission of procedures to be used in advising the individuals screened, and their 

private practitioners of the healing arts, of the results of screening procedures and any 

further medical needs indicated. 

DSHS to date has only authorized healing arts screening for three diagnostic x-ray 

procedures: mammography, bone densitometry, and heart computed tomography (CT). 

In 1999 DSHS began investigations into complaints concerning unauthorized x-ray 

healing arts screening of individuals for possible illness due to asbestos or silicosis. The 

DSHS investigators revealed that seven entities had x-rayed individuals after 

interviewing them for exposure to silica in the workplace. Only one of the seven 

companies had licensed physicians providing each person x-rayed with an individual 

prescription and thus was not performing screening x-rays as defined by rule. Five of the 

other six companies were not authorized to perform x-ray screening procedures. 

One company had submitted an application for registration, which was denied after 

it failed to submit verification that a physician would oversee the operation of the x-ray 

registration and provide each person x-rayed an individual prescription for the x-ray. 

Five of the companies were from outside the state of Texas. One company paid a 

$10,000.00 administrative penalty for violations of DSHS rules and three others were 

issued notices of violation. 
233

Currently none of the seven companies are performing x-ray screening in Texas. 

Only two medical facilities are still performing x-ray procedures in Texas. The following 

table summarizes the Texas DSHS’ investigations. All future out of state x-ray registrants 

will be required to notify the Texas Department of State Health Services each time they 

do x-ray exams in Texas to assure compliance with all regulatory requirements. Thank 

you for requesting my testimony on this issue today. I will be happy to answer any 

questions. 

 MR. WHITFIELD. Thank you, Mr. Ratliff. At this time Dr. Patrick, 

who is the Executive Director of the Texas Medical Board, we welcome 

your testimony. 

DR. PATRICK. Mr. Chairman and Congressmen, thank you very 

much for allowing us to be here today. 
234

 I am Donald Patrick. I am the executive director of the Texas 

Medical Board. I represent the State agency that licenses and regulates 

Texas physicians. Currently more than 55,000 physicians hold Texas 

licenses. We investigate complaints and the Board takes disciplinary 

action when appropriate. This last year we had over 500 disciplinary 

hearings, took 304 disciplinary actions including 70 actions against 

physicians who are no longer practicing because of that action. 

 I would like to comment on several broad issues that are being 

considered by your committee. The first is the definition of the practice 

of medicine. The Texas Medical Practice Act defines the practice of 

medicine as “the diagnosis, treatment or offer to treat a disease, disorder, 

deformity, or injury by any method by a person who either publicly 

professes to be a physician or who charges for their services.” It is 

151.002(a)(13) of the Texas Occupations Code. 

 Diagnosing a disease is clearly within the definition of the practice of 

medicine. The Medical Practice Act requires anyone who practices 

medicine in Texas or on patients in Texas to be licensed by the Texas 

Medical Board. The legislature has deemed that practicing medicine 

without a license in Texas is a felony, so whenever we hear of an 

individual practicing medicine without a license, we refer them to law 

enforcement activity either locally or statewide. 

 The second issue I want to address is diagnosis. What constitutes a 

diagnosis? The commonly understood definition of diagnosis is stated in 

medical dictionaries. It is a determination of the nature of a disease and 

the art of distinguishing between one disease and another. I suggest that 

diagnosis is properly made after considering a patient’s history, 

performing a physical examination, and reviewing imaging studies and 

other diagnostic tests. 

 The history may be either oral or written and the physician 

commonly uses a form for past history and occupational history as a 

questionnaire completed by the patient or a trained office assistant. 

Ideally, the physician personally takes the present illness and review of 

systems history information and family history. The delegation of this 

responsibility to others does create risk of error that every physician 

recognizes. 

 The physical examination may be complete or focused. For any lung 

ailment, a physical examination should include vital signs, observation of 

the patient’s breathing, palpation of the chest wall for abnormal 

adventitious rubs and symmetrical chest rising and falling, percussion to 

detect increased or decreased resonance, listening to the heart and lungs 

for equality of volume, and character of sounds including rales, rhonchi, 

and wheezes. Also, clubbing of the fingers and cyanosis is also noted. 
235

The next step is to get a chest X-ray and pulmonary function tests as 

indicated. 

 Based on all this information, the physician arrives at a diagnosis. 

This is the proper procedure for making a diagnosis. It does not mean, 

however, that making a diagnosis with less than the history, physical 

examination, and imaging and diagnostic studies, if indicated, is not 

failing to make a diagnosis. It is just doing it poorly. The determination 

of the nature of a disease by reviewing only an X-ray may be a medically 

incomplete diagnosis but it is a diagnosis, nevertheless. 

 Another issue raised in your committee’s inquiry is the doctorpatient relationship. More specific to your inquiry is the question: What 

duty does a physician have to inform a patient of a diagnosis? We 

believe that a physician has a duty to inform patients of diagnoses 

reached by that physician unless there is a clear, signed release by that 

patient that explicitly states that the patient acknowledges that there is no 

doctor-patient relationship established. Such a release is common for 

independent reviews in workers’ compensation cases. These releases are 

also common in cases in which an expert witness examines a plaintiff for 

an attorney in a medical malpractice case. The doctor-patient 

relationship is implied unless there is an express disclaimer signed by the 

patient. 

 I will be glad to respond to any questions that you may have, Mr. 

Chairman and Congressmen. 

 [The prepared statement of Donald Patrick, M.D., J.D., follows:] 

PREPARED STATEMENT OF DONALD PATRICK, EXECUTIVE DIRECTOR, TEXAS MEDICAL 

BOARD

EXECUTIVE SUMMARY 

• The practice of medicine is the diagnosis, treatment or offer to treat a disease, 

disorder, deformity, or injury by any method by a person who either publicly 

professes to be a physician or who charges for the services. 

• Diagnosis is the determination of the nature of a disease -- the art of 

distinguishing one disease from another 

• A diagnosis is properly made after considering a patient’s history, performing a 

physical examination, and reviewing imaging studies and other diagnostic tests. 

• The determination of the nature of a disease by reviewing only an X-ray may be 

a medically incomplete diagnosis, but it is a diagnosis, nonetheless. 

I am Dr. Donald Patrick, and as Executive Director of the Texas Medical Board, I 

represent the state agency that licenses and regulates Texas physicians. Currently, more 

than 55,000 physicians hold Texas licenses. We investigate complaints and the board 

takes disciplinary actions when appropriate. Last year, the Texas Medical Board took 304 

disciplinary actions against licensed Texas physicians. 
236

I would like to comment on several broad issues that are being considered by your 

committee. The first is the definition of the practice of medicine. The Texas Medical 

Practice Act defines the practice of medicine as the diagnosis, treatment, or offer to treat 

a disease, disorder, deformity, or injury by any method by a person who either publicly 

professes to be a physician or who charges for the services. [see §151.002(a)(13), Texas 

Occupations Code] 

Diagnosing a disease is clearly within the definition of the practice of medicine. The 

Medical Practice Act requires anyone who practices medicine in Texas or on patients in 

Texas to be licensed by the Texas Medical Board. 

This raises the second issue that I want to address: What constitutes a diagnosis? 

The commonly understood definition of diagnosis, as stated in medical dictionaries, is the 

determination of the nature of a disease and the art of distinguishing one disease from 

another [see Stedman’s Medical Dictionary and Dorland’s Illustrated Medical 

Dictionary]. I suggest that diagnosis is properly made after considering a patient’s 

history, performing a physical examination, and reviewing imaging studies and other 

diagnostic tests. 

The history may be either oral or written and physicians commonly use a form for 

past history and occupational history as a questionnaire completed by the patient or a 

trained office assistant. Ideally, the physician personally takes the present illnesses and 

review of systems history information. The delegation of this responsibility creates risks 

of error that every physician recognizes (or should recognize). 

The physical examination may be complete or focused. For any lung ailment, a 

physical examination should include vital signs; observation of the patient’s breathing; 

palpation of the chest wall for abnormal adventious rubs and symmetrical chest rising and 

falling; percussion to detect increased or decreased resonance; and listening to the heart 

and lungs for equality of volume and character of sounds, including râles, rhonchi, or 

wheezes. 

The next step is to get a chest X-ray and pulmonary function tests, as indicated. 

Based on all of this information, the physician arrives at a diagnosis. This is the 

proper procedure for making a diagnosis. It does not mean, however, that making a 

diagnosis with less than the history, physical examination, and imaging and diagnostic 

studies, if indicated, is not failing to make a diagnosis – it is just doing it improperly. 

The determination of the nature of a disease by reviewing only an X-ray may be a 

medically incomplete diagnosis, but it is a diagnosis, nonetheless. 

Another issue raised in your committee’s inquiry is the doctor-patient relationship. 

More specific to your inquiry is the question: What duty does a physician have to inform 

a patient of a diagnosis? We believe that a physician has a duty to inform patients of 

diagnoses reached by that physician unless there is a clear, signed release by the patient 

that explicitly states that the patient acknowledges there is no doctor-patient relationship. 

Such a release is common for “independent reviews” in workers’ compensation cases. 

These releases are also common in cases in which an expert witness examines a plaintiff 

for an attorney in a medical malpractice case. The doctor-patient relationship is implied 

unless there is an express disclaimer signed by the patient. 

I will be glad to try to respond to any questions you may have. 

 MR. WHITFIELD. Dr. Patrick, thank you very much, and I thank all 

of you for your testimony. I would like to ask this first series of 

questions to Mr. Goff and Mr. Ratliff to get your responses, please. To 

make sure I understand this correctly, there are a number of steps that 

have to be in place before legal X-rays can be taken in Mississippi and 
237

Texas. First you have to have an X-ray machine that is properly 

registered or licensed. Is that correct? 

 MR. GOFF. That is correct. 

 MR. WHITFIELD. All right. Then you have to have a technician that 

is licensed to operate the machine. Is that correct? 

 MR. GOFF. That is correct. 

 MR. RATLIFF. Correct. 

 MR. WHITFIELD. Now, once you have those two things, an X-ray 

can be legally taken of a person in both States in only one of two ways. 

First, a medical practitioner who is licensed in your State can specifically 

and individually order the X-ray for a patient, so that is one way, correct? 

 MR. GOFF. Yes. 

 MR. WHITFIELD. All right. The second way is under this healing 

arts screening application and approval, then they can do it that way as 

well. Is that correct? 

 MR. GOFF. That is correct. 

 MR. RATLIFF. Yes. In Texas, like I said, it is really limited to just a 

few procedures. 

 MR. WHITFIELD. And in Texas, you have never had a healing arts 

application approved for silica? 

 MR. RATLIFF. No. In fact, we had one that come through that we 

actually denied because they would never submit physician qualifications 

and physician oversight documents. 

 MR. WHITFIELD. Now, what about in Mississippi? Have you had a 

healing arts process approved in Mississippi? 

 MR. GOFF. Yes, we have. 

 MR. WHITFIELD. And who submitted that application? Do you 

remember? 

 MR. GOFF. N&M I believe submitted one and-- 

 MR. WHITFIELD. N&M, and did you approve that? 

 MR. GOFF. Yes, that was approved. Initially they were conducting it 

without one and they were later approved in January of 2003. 

 MR. WHITFIELD. Now, I would ask both of you, have either one of 

you administered a penalty for anyone conducting a screening without 

the proper license for screening arts? 

 MR. GOFF. No, we haven’t. We don’t have civil penalties in the 

State of Mississippi. We have criminal penalties. We have to prove 

willful violation. 

 MR. WHITFIELD. Okay. So you only have criminal penalties in 

Mississippi? 

 MR. GOFF. That is correct. We do have administrative penalties that 

we can have for cost of investigation and that sort of thing. We have the 

opportunity to deny or revoke a registration. 
238

 MR. WHITFIELD. Okay. But in Texas, you have civil penalties? 

 MR. RATLIFF. Yes, Congressman. We have civil and administrative. 

In one case, a company, U.S. X-ray from Chesapeake, Ohio, we ordered 

them to cease and desist operations when we found them operating and 

assessed a $10,000 administrative penalty, which they paid. 

 MR. WHITFIELD. Okay. Now, as we conducted our hearings, one of 

the things that we discovered, for example, RTS from Mobile, Alabama, 

wrote to our committee and they said specifically we were never told by 

anyone that an individual could not request their own X-ray; throughout 

our years of conducting business, we believed that an individual could 

request their own X-ray for silicosis screenings. Is that true in 

Mississippi? Can an individual request the X-ray? 

 MR. GOFF. The X-ray has to be conducted under a physician’s order 

or either under a screening program authorized by a physician. 

 MR. WHITFIELD. Okay. And what about Texas? 

 MR. RATLIFF. Yes, Congressman, you have to have a physician 

prescription. In fact, we had a company, Respiratory Testing Services, if 

that is the same one, the one that applied for a registration for screening, 

which was denied and they were told up front that they could not do 

screening for silicosis. They had to have a process where a physician 

looked at each person and wrote a specific prescription. 

 MR. WHITFIELD. So it is a little surprising to me that companies who 

are involved in this business would think that these could be selfprescribed, and I take it you would agree with that? 

 MR. RATLIFF. I would agree. 

 MR. WHITFIELD. Now, on Tab 9, do you all have an exhibit book on 

your table there? If you all wouldn’t mind looking at Tab 9 in your 

binder, and I just wanted to ask you this question. In Tab 9, there is a 

document which is signed by Dr. Jay Segara, M.D., who practices in 

Ocean Springs, Mississippi, and in that document, he writes a standing 

order for prescription for X-rays to be taken in Texas, Alabama, 

Louisiana, and Mississippi. I would ask both of you, is this type of 

blanket prescription allowed in either of your States? 

 MR. GOFF. No. In our regulations it says specifically individually 

ordered, and in my opinion, this would not be individually ordered. 

 MR. RATLIFF. And I agree. This appears that it is a blanket 

authorization and the technologist is actually writing the prescription, 

filling in the data, so it wouldn’t be valid. 

 MR. WHITFIELD. Now, I would like to order that this exhibit book 

be placed into the record--I think you all have copies of it--since you are 

testifying from that. Okay. So blanket orders are not allowed either. So 

if there is a doctor’s order, must there be a writing made or note taken of 

who the doctor is that is responsible for the X-ray such as in the instance 
239

of a doctor in a large hospital who calls the X-ray department and says I 

am sending down a patient, take this type of X-ray. There is a note in the 

chart that reflects the ordering physician. Is that correct? 

 MR. RATLIFF. Yes, in Texas it is. In fact, the doctor can do a 

standing order for the technician to take the X-rays but there is an 

individual prescription for the X-ray. 

 MR. WHITFIELD. But those recordkeeping requirements are also 

applicable to mobile X-ray screening? 

 MR. GOFF. Our regulations don’t specifically say that. 

 MR. WHITFIELD. Does not? 

 MR. GOFF. No. 

 MR. WHITFIELD. So it would be possible that they could do it the 

way Mr. Ratliff said they couldn’t do it in Texas? 

 MR. GOFF. Which is? Clarify, please. 

 MR. WHITFIELD. Well, if a doctor just says I am sending down a 

patient, take this type of X-ray, he just makes a phone call down to the 

mobile unit and says this X-ray, is that allowable? 

 MR. GOFF. He should have some record where he wrote a specific 

order for that. 

 MR. WHITFIELD. Okay. All right. Now, Mr. Ratliff, I just want to 

just ask you a few questions about two companies with us here today: 

N&M Screening Company and RTS Screening Company. According to 

the information we have, N&M did 6,757 diagnoses in Texas and RTS, 

1,444 diagnoses in Texas. First of all, I would like to ask you, has your 

State ever approved a healing arts screening application by N&M or 

RTS? 

 MR. RATLIFF. No. 

 MR. WHITFIELD. Okay. Now, if you would look at Tab 3 in your 

binder, and at Tab 3, did RTS ever have a license to operate an X-ray 

machine in the State of Texas? 

 MR. RATLIFF. They had a certificate of registration but it did not 

allow screening. 

 MR. WHITFIELD. They had a certificate of registration? 

 MR. RATLIFF. Right. 

 MR. WHITFIELD. Now, what does that mean? 

 MR. RATLIFF. That is equivalent to a license. In X-ray, we have 

registration and we license radioactive materials. 

 MR. WHITFIELD. But they never had a license? 

 MR. RATLIFF. Never had a license and their permit expired by 

failure to pay their fee this past year. 

 MR. WHITFIELD. Now, in Tab 3 around page 4, you do have to have 

a license a Texas doctor signed as a supervising physician on these 

applications as the one who would be responsible for it, correct? 
240

 MR. RATLIFF. Yes, Congressman. 

 MR. WHITFIELD. And on page 6 in Tab 3 in a fax, RTS leaves the 

impression in this fax to me to say that the supervising doctor will be Dr. 

Robert Altmeyer. Down toward the bottom of the page, it says--it is sort 

of difficult to read it but--well, first off on paragraph 11 of page 1, in the 

petition it says, “As a licensed practitioner, I do hereby affirm that I am 

associated with this applicant and provide supervision to nonpractitioners administering radiation to human beings or animals” and of 

course no one signed that so there is no licensed physician, but on page 6 

they appear to be saying that a Dr. Robert Altmeyer would be the one 

that would be responsible for these X-rays. It is my understanding from 

discussion with people in your office and others that Dr. Robert 

Altmeyer has never been licensed in the State of Texas. Do you know if 

that is true or not? Dr. Patrick. 

 DR. PATRICK. I am sorry. I wasn’t asked to--but we can-- 

 MR. WHITFIELD. Okay. Mr. Ratliff? 

 MR. RATLIFF. Didn’t know and in fact we questioned that and then 

we never got a response and that is why the application then was denied. 

 MR. WHITFIELD. Okay. So you did question it and you never had a 

response so you denied it? 

 MR. RATLIFF. Right. 

 MR. WHITFIELD. Now, in your testimony, I believe you talked about 

five or six screening companies operating in Texas, actually taking Xrays, never had a license to do so. Is that correct? 

 MR. RATLIFF. Yes, Congressman. 

 MR. WHITFIELD. And would you be able to name those five or six 

that never had a license to operate in Texas? 

 MR. RATLIFF. Yes. The ones we have are RGL Medical Services 

from Park City, Utah, but they were found by our inspectors and issued a 

notice of violation and they left the State, and sent a letter 

acknowledging they were in violation. And then we had a Respiratory 

Testing Services, Mobile, Alabama, had applied. We never found them 

doing it but their registration was denied because they wouldn’t provide 

the data. Then U.S. X-ray from Chesapeake, Ohio, was found multiple 

times doing X-ray. One inspector found them in one part of the State 

and the next day another inspector. They were issued a cease-and-desist 

order and then they paid a $10,000 penalty. And then N&M Testing 

from Moss Point, Mississippi, had their registration expire. We had an 

attorney from one of the law firms when our investigation was doing 

some investigations in Dallas sent us their brochure showing they were 

doing screening and the inspector never could catch them. They left the 

site. 
241

 MR. WHITFIELD. Well, I see my time has expired so Mr. Stupak, I 

will recognize you for your time. 

 MR. STUPAK. Thank you. Mr. Ratliff, if I may, if we can just go to 

Exhibit #3 that the chairman was asking you about and on page 1 there 

he indicated on part--this is Exhibit 3, page 1, number 11 was unsigned 

and then he goes to page 6 and mentions a Dr. Altmeyer. Because Dr. 

Altmeyer’s signature appeared on that form, does that mean Dr. 

Altmeyer was in Texas practicing medicine? 

 MR. RATLIFF. No, our X-ray registration staff would have checked 

to see was he licensed to do business in Texas. Then when we did the 

inspection we would have verified that he was actually supervising. 

When we asked these questions, we never got a response. 

 MR. STUPAK. And he could have signed that in Mississippi or any 

other State? 

 MR. RATLIFF. He has to be a physician licensed in Texas. 

 MR. STUPAK. Sure, but he could be licensed in Michigan, 

Washington, D.C., he could still sign this form, right? 

 MR. RATLIFF. Yes, if he was licensed in Texas, yes. 

 MR. STUPAK. That violation comes in if a patient takes this form or 

an X-ray company takes this form and goes to Texas and then tries to 

take the X-ray, correct? 

 MR. RATLIFF. Yes, and what happened here, they never got a 

registration so they weren’t authorized to do it anyway. 

 MR. STUPAK. Sure. Okay. Dr. Morgan, if I may, last September a 

Michael Mavis, the Executive Vice President and CEO of the American 

Medical Association, referred to the Mississippi State Board of Medical 

Licensure the names of Dr. Glyn Hilbun, Dr. Todd Coulter, and Dr. 

Kevin Cooper for investigation based on the findings of Judge Jack. Did 

the Board receive the AMA letter? 

 DR. MORGAN. Yes, they did. 

 MR. STUPAK. Has investigation or any action been taken based on 

that letter? 

 DR. MORGAN. A minimal investigation. As I mentioned earlier, the 

Board in Mississippi has been under the impression in the past that not 

only the State authorities but also Federal have asked us that when they 

have an ongoing criminal investigation, to hold off on our investigation 

until there is a result thereof. We thought there was going to be an 

investigation judging by Judge Jack’s opinion and we were never told 

anything any different until Mr. Cooke came along and we got this 

information that apparently there is no Federal investigation. We 

thought there was one. So we have obviously stepped up our 

investigations. It is of interest to know perhaps that there has been a 

food-basket turnover in the Mississippi Board. We were approved for 
242

seven investigators last summer. We had three which included the chief 

investigator and two investigators. I myself have been at the Board only 

six months now so I was not there during the September meeting. I can 

only go by what the record shows. 

 MR. STUPAK. So as far as we know, no investigation has been 

undertaken of these three individuals that-- 

 DR. MORGAN. No, that is not true. An investigation is undergoing 

and-- 

 MR. STUPAK. It is now undergoing? 

 DR. MORGAN. Is now undergoing. An investigation of some of 

these individuals has taken place already but not a full-fledged 

investigation. None of them have been called before the Board at this 

point. 

 MR. STUPAK. When you thought there was going to be other 

investigation, did your Board communicate to the AMA that you were 

going to defer your inquiry until these other investigations, State or 

Federal, were complete? 

 DR. MORGAN. I note that it is in our minutes that we were going to 

delay any in-depth investigation until the Federal investigation was 

completed, but now whether or not they communicated that to the AMA, 

I don’t know. 

 MR. STUPAK. In your testimony, a statement by the Mississippi 

State Board of Medical Licensure that, and I quote now: “Any medical 

act that results in a written or documented medical opinion, order, or 

recommendation that potentially effects the subsequent diagnosis or 

treatment of a patient constitutes the practice of medicine.” Would you 

consider a B reader diagnosing silicosis on the basis of an X-ray that as 

being the practice of medicine under this definition? 

 DR. MORGAN. Under that definition, yes. 

 MR. STUPAK. What if the B reader does not have any other relevant 

information such as occupational history and is under the impression that 

he is only confirming another doctor’s diagnosis? Would such an 

activity accompanied by a statement such as, and I quote again, “This 

patient’s X-ray shows symptoms consistent with a positive diagnosis of 

silicosis,” would that constitute the practice of medicine in Mississippi? 

 DR. MORGAN. In my opinion, yes. 

 MR. STUPAK. The statement goes on to state that a physician who 

issues a medical opinion as defined above “assumes a doctor-patient 

relationship with the patient and is responsible for continuity of care of 

that patient” and that failure to do so would constitute “unprofessional 

conduct.” In the event that a physician looked at hundreds of these Xrays and issued diagnosis without ensuring the continuity of care of these 
243

patients, could this constitute instances--more than one obviously--of 

unprofessional conduct then? 

 DR. MORGAN. Obviously it is for my Board to make that decision. 

However, in my opinion, yes, definitely. 

 MR. STUPAK. Based upon the scenario I laid out, what action could 

your Board take? 

 DR. MORGAN. The only action that--we do not have any criminal 

authority--so all we can do is either suspend or revoke their license, or 

perhaps just bring them in for a reprimand if it was something less 

obvious. 

 MR. STUPAK. Sure. Now, in Texas you could take the license, right, 

if you found it would be--you could take their license plus you have 

criminal authority, Dr. Patrick? 

 DR. PATRICK. Yes, sir. If they were licensed in the State of Texas, 

then we would have jurisdiction over them and we could have a wide 

range of sanctions that we could take against them. Most likely what 

would be more than administrative penalty would be more serious than 

that, I would guess, but again, I am not the Board making that decision. 

 MR. STUPAK. If we go to--if you could take a look at, Dr. Patrick, 

number three, Exhibit #3 that the Chairman had pointed you, and let us 

say this is Dr. Altmeyer, which was Exhibit #3, page 6 where he signed 

his form, and let us say he was licensed in the State of Michigan and he 

gave this form to one of these X-ray technician companies or one of 

these X-rays companies and they came to Texas and took chest X-rays 

looking for silicosis. You would have no action against that doctor 

because he is licensed in Michigan. You can only take action if they are 

licensed or actually physically practice medicine in the State of Texas, 

right? 

 DR. PATRICK. It would just refer him to law enforcement but your 

assumption is right that we have no jurisdiction over him. 

 MR. STUPAK. Refer him to law enforcement in Michigan or in Texas 

then? 

 DR. PATRICK. In Texas. 

 MR. STUPAK. But if he never practiced or was never physically 

present in Texas or signed these forms in Texas, what would be the 

grounds of a criminal referral then? 

 DR. PATRICK. Well, without his signature on this document 

authorizing X-rays to be taken in Texas, those X-rays could not have 

been taken in Texas. 

 MR. STUPAK. But would your action be against the X-ray company 

that took the X-ray or would it be some doctor in Michigan who 

happened to sign a form that was then utilized in Texas? 
244

 DR. PATRICK. I admit that it has ramifications that I haven’t thought 

through. 

 MR. STUPAK. Well, I am just trying to think this out here a little bit. 

That is all. Like I said, we have had three hearings on this and everyone 

is a little different so I am trying to tie it all together if I can. Would you 

say that most doctors who consider providing a diagnosis on an X-ray 

would consider that practicing medicine? 

 DR. PATRICK. Yes. 

 MR. STUPAK. Are you familiar with what we call B readers? 

 DR. PATRICK. Yes. 

 MR. STUPAK. Do you think B readers take that same advice or 

would reach that same conclusion? 

 DR. PATRICK. They are providing a diagnosis. 

 MR. STUPAK. You indicated that the Texas Medical Board took 

action I think on 300 and some cases. 

 DR. PATRICK. This last year, yes. 

 MR. STUPAK. Against Texas physicians. What were they? Were 

they for things like this or were they for much more serious things? I am 

not trying to get anyone’s--I don’t want any names or anything. I am just 

trying to get some understanding of the depth of the action that would be 

taken like in Texas. 

 DR. PATRICK. Wide range of actions all the way from not doing 

their continuing medical education, which would be an administrative 

thing, all the way up to multiple episodes of violation of standard of care 

and harming patients, in which we would revoke their license. 

 MR. STUPAK. How about criminal action? Any criminal action 

then? 

 DR. PATRICK. We have no criminal action capability but we would 

refer it-- 

 MR. STUPAK. Refer it. 

 DR. PATRICK. --to the appropriate-- 

 MR. STUPAK. Of these 300 and some, were some referred to law 

enforcement for further-- 

 DR. PATRICK. Yes. 

 MR. STUPAK. Would you say that a company doctor evaluating an 

employee is subject to the same regulatory professional and ethical 

standard that the Board’s policy specifies as a physician doing consulting 

work for a screening company? 

 DR. PATRICK. I think it depends on the facts, and I don’t have 

enough fact from what you just said to me to come up with a conclusion. 

If he is seeing a patient for the purpose of a diagnosis, treatment, or an 

offer to treat, then it is clear under our statute that he is practicing 

medicine. 
245

 MR. STUPAK. The reason why I asked the question, some of these 

hearings we have had, we have had company doctors look at the medical 

evidence and say there is no silicosis here. Then you have these B 

readers or something and they say well, yes, there is. So I am trying to 

figure out how the ethics and the professional standards in the practice of 

medicine should be the same whether you are a company doctor or a B 

reader, right? 

 DR. PATRICK. Oh, I didn’t understand your question. 

 MR. STUPAK. Maybe my explanation is better now. That is what I 

am trying to drive at. 

 DR. PATRICK. So we have someone who is operating for the 

defense, on the side of the defense in a silicosis-type tort litigation and he 

looks at the same X-ray and says there is no silicosis here, therefore 

making a diagnosis that there is not silicosis. I think that is a diagnosis 

that is not silicosis. 

 MR. STUPAK. But the same professional, legal, and ethical standards 

would apply to both those cases though? 

 DR. PATRICK. I have not run into that particular scenario and I can 

see where it has some subtleties to it but I also see where that is applying 

a form of a diagnosis. If you say yes or no, sometimes there is more 

leeway if you are saying no rather than making a diagnosis but if you say 

yes and make a diagnosis, then that clearly is silicosis. You say no, there 

is no silicosis, that is a diagnosis. 

 MR. STUPAK. I know my time is over, but if I say based upon the 

evidence I can’t make a determination, that is not a diagnosis? That is 

not practicing medicine? 

 DR. PATRICK. Well, that is-- 

 MR. STUPAK. You don’t get yourself in a pickle. 

 DR. PATRICK. --borderline. 

 MR. STUPAK. Thanks. Thank you, Mr. Chairman. 

 MR. WHITFIELD. Thank you. At this time I recognize Mrs. 

Blackburn from Tennessee. 

 MRS. BLACKBURN. Thank you, Mr. Chairman, and I want to thank 

each of you for taking the time to be here and talk with us today. 

 As some of my colleagues have said and mentioned, this is not the 

first hearing that we have had on this and we are continuing to work 

through the issue. We do recognize, certainly recognize that if the 

licensure boards and the ethics committees were pursuing an aggressive 

approach to cracking down on the behavior that surfaced in Judge Jack’s 

case that we would not be here having this hearing today and we would 

not be having this discussion, and since the situation is substantially 

impacting interstate commerce and if the State boards are not going to 

perform their oversight duties, then Congress may have to step in to 
246

solve the problem through adoption of some Federal uniform diagnostic 

procedures so that leads us to trying to figure out exactly what the best 

course or the better course of action will be. 

 Dr. Morgan, I want to start with you for my questions, please, sir, 

and I am going to the letter, the May 30 letter that you sent to Chairman 

Whitfield, and on page 2 of that letter you go into talking about a Board 

policy and in this you are--and I am quoting from your letter: “It is the 

opinion of the Mississippi State Board of Medical Licensure that any 

medical act that results in a written or documented medical opinion, 

order, or recommendation that potentially effects a subsequent diagnosis 

or treatment of a patient constitutes the practice of medicine in this 

State.” What I would like for you to do, if you will, please, sir, is to 

provide us with a definition of a medical opinion, of an order and then of 

a recommendation and how you separate these three. 

 DR. MORGAN. Well, starting with a medical order, it would simply 

be either a written order on a chart at a hospital or on a prescription pad 

requesting a chest X-ray, for instance. That would be the order. It is 

signed by the physician. In the case of a screening company, I think the 

Board will allow the screening company to do chest X-rays if a physician 

has taken the authority and the responsibility for that screening 

company’s X-rays and readings, generally a radiologist. It would be 

assumed that that individual would be on site or be immediately 

available, readily available in case there was any problem, and would 

then be reading the X-rays. Now, the diagnosis would be depending on 

the language. If you have the language saying diagnosis silicosis, then 

obviously that is a diagnosis. If the reading says something along the 

lines of this chest X-ray is consistent with silicosis, that may be a 

different legal question, but if you say, as I think most of these did, a 

reasonable degree of medical certainty, I think was the wording they 

used, if they use that particular phrase then they are making a diagnosis 

that that is what that chest X-ray showed. And then from there the 

appropriate steps should have been that, number one, they should refer 

the patient to their treating physician, their family physician. They 

should probably have notified the Department of Health, which to my 

knowledge neither of these things took place. But that would be the 

proper thing unless of course the ordering physician was the family 

physician for that particular patient in which case he should undertake 

the treatment of whatever diagnosis he made. 

 MRS. BLACKBURN. Okay. So I heard you use the words “assume” 

and “assumption” a couple of times. It doesn’t mean that-- 

 DR. MORGAN. Yeah, I know what that means. 

 MRS. BLACKBURN. --the physician was present but I thank you for 

that. Okay. So then taking that as being your definition, the Board’s 
247

definition of medical opinion, order, or recommendation, then if a 

medical professional subjects an individual to an invasive or potentially 

dangerous medical procedure or procedures but lacks the knowledge 

about the patient’s condition or does not have a medical opinion, order, 

or recommendation to conduct the procedure, do you think that that 

would violate medical ethics? 

 DR. MORGAN. That was rather complicated actually depending on 

which portion of that question. Could I have it in pieces, please, ma’am? 

 MRS. BLACKBURN. You can break it up however you want it. 

 DR. MORGAN. Well, I don’t have it written down in front of me so I 

would have to ask you to repeat it. 

 MRS. BLACKBURN. All right. We will go at it again. If a medical 

professional subjects a patient, an individual to an invasive or potentially 

dangerous medical procedure or procedures, but lacks knowledge about 

the patient’s condition, let us say you have got some acting on 

assumption, as you said, or does not have a medical opinion, order, or 

recommendation to conduct that procedure, then would that violate 

medical ethics? 

 DR. MORGAN. It would probably be considered malpractice. 

 MRS. BLACKBURN. Okay. 

 DR. MORGAN. It would for sure be, in my estimation, it would be 

unethical. But the second part of the question would be a different story 

because that individual could actually order the test himself if he was a 

physician licensed in Mississippi or whatever State where he was 

ordering or delivering the test so he could be licensed to do that but once 

he renders a diagnosis or subjects somebody to a potentially dangerous 

procedure, then it is expected that he know something about the patient, 

enough to be sure that he is being safe in his treatment of the patient. 

 MRS. BLACKBURN. All right. Dr. Patrick, I want to come to you if I 

may, please, sir. I know that you are also an attorney, and if a doctor 

knows that he or she will be giving a patient an incomplete medical 

diagnosis of a disease but could perform a simple, routine exam to 

confirm it and does not do so, are they guilty of medical malpractice in 

your opinion? 

 DR. PATRICK. Well, I think there probably is a presumption that 

activity could result in a malpractice action and probably a judgment 

against the physician, yes. 

 MRS. BLACKBURN. There are some great articles that have dealt 

with some of this and as we have dug into this issue, I have enjoyed 

reading a couple of things out of Academic Radiology and the 

Pepperdine Law Review and I am sure you are familiar with some of 

these, and they have stated that the use of just an X-ray for diagnosis 
248

constitutes unreliable expert testimony since the diagnosis is inherently 

unreliable. Would you agree with that? 

 DR. PATRICK. There may be certain isolated situations where a 

particular X-ray finding could be so pathonomonic of that particular 

disease that nothing else could be it but right now I can’t raise one up in 

my brain to give you an example of that. 

 MRS. BLACKBURN. Okay. You know, those articles that I 

mentioned, also they claim that the way these mass tort screenings are 

used like the ones in Judge Jack’s case violate medical ethics and the 

model rules of professional conduct. Would you agree with that? 

 DR. PATRICK. I am sorry. Would you-- 

 MRS. BLACKBURN. I am talking about the articles that I had 

referenced. They claim that the way the mass tort screenings are used 

like the ones in the case that we are here discussing today, that those 

actions violate medical ethics and the model rules of professional 

conduct and I am just asking if you would agree or disagree with that. 

 DR. PATRICK. There were many instances of professional conduct 

that I read in Judge Jack’s opinion that appeared to mirror just exactly 

what you are saying. 

 MRS. BLACKBURN. Okay. Thank you. I yield back, Mr. Chairman. 

 MR. WHITFIELD. Thank you, Mrs. Blackburn. Mr. Pickering, you 

may recognize Mr. Goff and Dr. Morgan since you are from Mississippi 

but you are recognized for your question. 

 MR. PICKERING. Mr. Chairman, thank you. Dr. Morgan, Mr. Goff, 

welcome to Washington. I wish it was a different subject but I do 

appreciate you coming today. I just have a few questions so that I can--

as we understand right, appropriate, and ethical medical practices. But in 

this particular case in trying to determine whether a physician has a 

responsibility in a case where a screening company appears to have 

committed fraud, then the physician is not responsible for the medical 

care if there has been fraud in the underlying assignments are then in the 

documents that describe the physicals. My point is this: If we are 

looking at physician responsibility and a physician is assigned simply to 

do physicals, nothing else, but then later it appears that somehow those 

general physicals were then turned into some type of diagnosis or 

verification of silicosis without his knowledge, then that physician 

should not be responsible for the continuing care of a verification or of, 

in this case, a fraudulent case of silicosis assignment. I wish I had asked 

that more clearly and succinctly, but do you understand my question? 

 DR. MORGAN. Which one of us are you asking? 

 MR. PICKERING. Let me start with you, Dr. Morgan. 
249

 DR. MORGAN. I was afraid that is what you would say. It is a rather 

complicated situation. If the physician just does a history and physical 

and records that without any impression, without any diagnosis-- 

 MR. PICKERING. Without any responsibility of--not being asked to 

give the diagnosis of silicosis, just being assigned the responsibility of a 

general physical. 

 DR. MORGAN. If he is asked to just do a history and a physical and 

report his findings without any diagnosis and he does not make any 

diagnosis, then I would not think that he would be responsible for 

continuation of care. I mean, we do this all the time for young people for 

athletic physicals at the schools and that sort of thing and we don’t 

assume care for those people. We do a history and physical and 

generally without making a diagnosis. If something shows up, we sent 

that kid on to their family doctor. So that would be a situation where you 

do a physical and take a history but not be responsible for anything 

beyond just--past that point. If you find something, you send them to 

somebody who can take care of them. 

 MR. PICKERING. So whoever made the diagnosis would be 

responsible for the continuing care responsibility or whoever 

fraudulently doctored reports would be criminally responsible. Is that-- 

 DR. MORGAN. In my opinion. 

 MR. PICKERING. In your opinion? 

 DR. MORGAN. I don’t know how the Board would vote on that but 

in my opinion, that is correct. 

 MR. PICKERING. Thank you, Dr. Morgan. Dr. Goff, do you have 

anything else you would like to add? 

 MR. GOFF. No. 

 MR. PICKERING. Thank you. Mr. Chairman, that is all. 

 MR. WHITFIELD. Thank you, Mr. Pickering. At this time I will 

recognize I guess the only physician we have on our committee, Dr. 

Burgess of Texas. 

 MR. BURGESS. Thank you, Mr. Chairman. Thank you for holding 

this hearing. Can I ask unanimous consent that my opening statement be 

made part of the record? 

 MR. WHITFIELD. Without objection-- 

 MR. BURGESS. Because it was a good opening statement and I hate 

it that I wasn’t here to give it, and I do want to welcome Dr. Patrick and 

Mr. Ratliff to our hearing from my home State of Texas. Dr. Patrick, and 

for the benefit of the gentleman from Michigan, you have done a great 

job as head of the Texas State Board of Medical Examiners to put a lot of 

information up online and make it very transparent to Texas consumers 

and for that I thank you. 
250

 But in your oversight of thousands of doctors in Texas, how did this 

occur? Is this something that the Texas State Board of Medical 

Examiners should have picked up at some point along the line? 

 DR. PATRICK. Our statute assigns us to work on the basis of 

complaints. We are a complaint-based organization. If a complaint 

comes in, then we investigate it. If it does not, then we do not. 

 MR. BURGESS. I guess, Mr. Ratliff, a similar question to you. Do 

you think your regulatory agency in Texas did a good job as far as 

protecting patients from what appears to be a fairly predatory, if not a 

fraudulent practice? 

 MR. RATLIFF. I think so, because once we found each of these 

companies we either ordered them to cease and desist operations or on 

the one case we thought were possibly legal but if they were doing 

screening we said they had to stop and so we stopped the practice. 

 MR. BURGESS. Now, in Texas, would it fall to the Texas Department 

of Health--would someone have to report--I mean, a diagnosis of 

silicosis is fairly rare in and of itself even with all the dust we have out in 

west Texas so would someone be required to report that? Is that a 

reportable illness? The gentleman from Mississippi indicated it would be 

in his State. Is it in Texas? 

 MR. RATLIFF. Not that I know of because my group just does the 

radiation aspect of it, but we would regulate the companies who would 

do the X-rays to make the findings. 

 MR. BURGESS. Let me pick up on some stuff that the gentleman 

from Michigan was asking about the B reader rendering a diagnosis. Dr. 

Patrick, how is this different from someone rendering, say, a second 

opinion for an insurance company? If someone was to come to me 

saying my doctor has recommended a surgery, I am coming to you to see 

if you concur with that, would that establish a doctor-patient relationship 

between myself and that patient or was I simply there to say yes or no to 

the other doctor’s diagnosis and then we both part company and go on 

about our business? 

 DR. PATRICK. At that point you typically give that patient your 

opinion about what you think should be done so you have established a 

doctor-patient relationship. You have done the history, the physical 

examination, seen the films, and you have given an opinion to the patient 

and then the patient can take your opinion and do what they wish with it. 

They may say well, if you think surgery shouldn’t be done, I won’t have 

it done; if you think it should be done, perhaps I will have it done by 

somebody else other than the person that sent it or whatever. So there 

are many ramifications of that relationship but typically your 

responsibility to that the patient is to tell them what your diagnosis is 

somewhere typically right away. That is normally what you would do. 
251

 MR. BURGESS. And is your concern with what we are dealing with 

here is that patients were not informed of their diagnoses? 

 DR. PATRICK. Right. 

 MR. BURGESS. Just along the same lines of the Texas Medical 

Practice Act and you referenced that someone would be in violation of 

that if they were from another State, does that same hold true to, say, a 

medical director? If I tell a patient they need surgery, in order to get that 

cleared by the insurance company I have got to dial 1-800 Minnesota, 

talk to a medical director, say she doesn’t meet our criteria for that 

surgery, surgery is denied. Is that person practicing medicine outside of 

the--do they need a Texas license to be able to deny that surgery? 

 DR. PATRICK. That is our position. 

 MR. BURGESS. And do you enforce that? 

 DR. PATRICK. We are in the process of working through the rules on 

that but you can imagine the stakeholders that we have involved in that 

and the bloodletting in those discussions. 

 MR. BURGESS. I can’t even begin to imagine. Well, that is 

interesting. I didn’t realize that. The other question I would ask is, of 

course this all came to light--a Federal judge saying oh, my gosh, there is 

a virtual epidemic of silicosis cases in this country, it almost seems like a 

sand bomb must have been dropped somewhere. Why is it that a federal 

judge had to come to that conclusion and say whoa, wait a minute, this 

isn’t right; we are seeing thousands of diagnoses that we never see under 

the normal circumstance. It seems to me that someone in the medical 

community should have caught that and that the medical community 

should have been on top of this. Am I just being too harsh on Texas 

doctors? 

 DR. PATRICK. Well, as I understand it, these--the X-rays were they 

come into a Texas doctor, they would come in in bulk to his office, who 

would look at them and give a diagnosis, send them back. If there was a 

screening unit that came in, my understanding is that it is a tractor-trailer, 

18-wheeler with all the accoutrements of an X-ray machine and perhaps 

a doctor’s office, they go to Wal-Mart. They don’t go to the hospital. 

And why nobody saw that and reported that to us, I don’t know, but we 

didn’t get a whiff of it. 

 MR. BURGESS. Do you feel in general that would be a good way to 

deliver medical care, diagnostic or therapeutic? 

 DR. PATRICK. No, I don’t. 

 MR. BURGESS. Are there other instances where that is happening in 

our State? 

 DR. PATRICK. There are, for example, other prescription medical 

devices such as Dopplers, sonograms. Those are two I can think of right 

now where they are screening in our State and we are in the process of 
252

developing rules for that. Again, it is the same very complicated sort of 

interaction trying to come up with the right rules. 

 MR. BURGESS. Again, I just have to say, you have done such a great 

job of bringing the regulation of Texas medicine to the people and I just 

wonder if there is a place for some type of public services announcement 

or advertisement about this type of practice because I think you and I 

would agree, this is unusual, it is odd, it doesn’t seem to lend itself to 

credible diagnosis and treatment, and you would have to ask yourself if 

the patients of Texas are being well served by that type of activity. I 

don’t know, just a thought. The fact that this had to come to light by a 

Federal judge when it was happening under our noses collectively in 

Texas is to be distasteful and I am glad the judge caught it, but I would 

feel much better about this whole investigation if Texas doctors had 

taken the lead on this. I guess the only other question I want to ask is, if-

-you made reference to a batch of X-rays that might come to a physician. 

Now, if that physician is in another State, pick West Virginia, for 

example, and those X-rays have been taken all over the country, now, 

that doctor is still practicing medicine in West Virginia where 

presumably he or she is licensed so that is not a violation of any statute, 

is it, if they are asked to render an opinion on an X-ray that happens to 

have been taken at Fort Worth and then brought to their office in West 

Virginia to read? 

 DR. PATRICK. In Texas we have a telemedicine license that you have 

to apply for. It costs the same as a regular license and there is a whole 

list of qualifications and things that you can do, and if you do have a 

telemedicine license from another State, then you can review X-rays 

from Texas and render an opinion. 

 MR. BURGESS. In my mind, though, telemedicine implies a real time 

sort of event. This patient is in the office, they are having an X-ray 

made, that film then is digitally transferred to West Virginia and read, 

but if a law firm, for example, has a thousand patients that they want to 

pursue this multidistrict litigation, the X-rays have been taken all over 

the country and they take a packet of those X-rays up to a doctor in 

another State. Is that doctor prevented from reading those X-rays 

because they have not been taken in his home State? 

 DR. PATRICK. It is the rendering of an opinion to a Texas patient is 

the problem, as I see it. 

 MR. BURGESS. Well, I must say in this case, in our review of this 

case, I have never known radiologists to be a group of people who will 

take a definitive stand. Usually their reports are full of all types of 

subjective tenses and “might be” and “could relate.” I have never known 

a radiologist to be so forthright and say this X-ray shows silicosis. 

Perhaps during my practice lifetime I wasn’t blessed with radiologists 
253

who are so self-assured. Well, I thank you for taking the trip all the way 

up here to Washington and being part of this panel today. I think you 

have been enormously helpful. 

 MR. WHITFIELD. Dr. Burgess, thank you very much. I would like to 

ask a couple of additional questions to Dr. Patrick. Dr. Patrick, on page 

10 of the exhibit book on Tab 10, there is an asbestosis medical 

examination under the name of Robert Altmeyer, M.D., pulmonary 

medicine, and under the history--do you have it there? 

 DR. PATRICK. Yes, sir, I do. 

 MR. WHITFIELD. Under the history it says, “This patient is a male 

whom I examined in Texas on June 23, 2003, at the request of the law 

firm of--” so and so and so and so. And then on the under impressions 

on page 2, he says, “Based on the above data, it is my opinion with a 

reasonable degree of medical certainty that this man has simple 

silicosis.” Now, if you look at that, I mean, that phrase “with a 

reasonable degree of medical certainty” would certainly appear to be a 

diagnosis if a physician said that, correct? 

 DR. PATRICK. Yes. 

 MR. WHITFIELD. And the fact that the person was examined in 

Texas, if you are not licensed in Texas, then that would be practicing 

without a license. Is that correct? 

 DR. PATRICK. This might fall under the periodic examination 

statutes that we have. I am looking for it. She is going to find that for 

me. 

 MR. WHITFIELD. Okay. Well, I will tell you, while we are waiting 

for her-- 

 DR. PATRICK. It is an unusual little crack. 

 MR. WHITFIELD. You do have an exemption for a periodic? 

 DR. PATRICK. Yes. 

 MR. WHITFIELD. Okay. We can talk about that in a minute. Mr. 

Ratliff, in your testimony you specifically say that Respiratory Testing 

Services of Mobile, Alabama, that their request to obtain a license to 

operate in Texas was denied, primarily because they didn’t have a 

verification that a physician would provide each individual with a 

prescription for an X-ray. 

 MR. RATLIFF. Yes. 

 MR. WHITFIELD. If you would look under Tab 13 in the same book, 

there is an invoice from Respiratory Testing Services dated June 23, 

2003, which was just a few months after they made their application and 

this is an invoice to the law firm of Provost and Umphrey in Beaumont, 

Texas. In this invoice which is in the amount of $50,000, it gives three 

days in which they made X-rays in Tyler, Texas. Now, if they are doing 
254

that without a license to operate, then that would be a violation of your 

rules and regulations. Is that correct? 

 MR. RATLIFF. Yes, and in fact, they were specifically told in writing 

they couldn’t do any screening unless they made all these requirements 

so they were on notice by us. 

 MR. WHITFIELD. So would you have the authority to fine them 

based on this invoice showing that they were doing this in Texas on 

those days? 

 MR. RATLIFF. We would refer it to our general counsel but I think 

this would be something that they could look at, and if so, we could 

proceed. 

 MR. WHITFIELD. But they would have to be in Texas in order to be 

fined or do you have authority to-- 

 MR. RATLIFF. Just in Texas. We have authority in Texas. 

 MR. WHITFIELD. Okay. 

 MR. RATLIFF. We denied their registration application so we didn’t 

give them permission to do anything, so now there is no permission but I 

have to check with our attorneys just to see--I don’t think we have any 

jurisdiction outside the State. 

 MR. WHITFIELD. But you have civil and criminal penalties? 

 MR. RATLIFF. Civil, criminal, yes. 

 MR. WHITFIELD. Okay. Thank you. Dr. Patrick? 

 DR. PATRICK. The episodic consultation is intended for a Texas 

physician like one who lives in Texarkana to take care of a patient in 

Arkansas. It is not intended for someone in another State to come into 

Texas. So I had episodic consultation on my brain but I had the facts 

reversed. 

 MR. WHITFIELD. Okay. So it would not apply in this situation? 

 DR. PATRICK. That is correct. 

 MR. WHITFIELD. Now, one other question, Dr. Morgan, I would like 

to ask you if I can find it here. This committee in investigating this had a 

number of encounters, I will say, with Dr. H. Todd Coulter of Ocean 

Springs, Mississippi. Are you aware of Dr. H. Todd Coulter of Ocean 

Springs, Mississippi? 

 DR. MORGAN. I know Dr. Coulter. 

 MR. WHITFIELD. Well, we wrote to medical boards in 21 States in 

March of this year about issues that we are discussing here today and 

while not all the States felt they could release all information they had 

about individual doctors and disciplinary matters, Dr. Coulter from 

Ocean Springs by far had the most extensive personal file that we have 

received, and after reviewing the documentation from your office files as 

best we could understand the files. It seems that Dr. Coulter was the 

subject of numerous complaints for professional misconduct between 
255

1999 to 2005 including a DEA investigator in 1999 reported that Dr. 

Coulter was prescribing known drug abusers large quantities of 

controlled substances. In 2001, your agency and the MS Bureau of 

Narcotics visited Dr. Coulter’s office investigating reports that patients 

were getting prescriptions filled at multiple pharmacies, several on the 

same day, and getting new prescriptions when they already had 

prescriptions. In 2002, the Board of Pharmacy was concerned that Dr. 

Coulter was writing notes on his prescriptions directing patients to 

specific pharmacies. In 2002, Ocean Springs Hospital reported that the 

hospital administration was concerned about Dr. Coulter prescribing 

OxyContin to a patient with a history for drug abuse and no real medical 

justification other than headaches, and I could go on and on but I guess 

my question is, is he subject to any disciplinary hearings at this time with 

your State licensure board? 

 DR. MORGAN. I am not sure how to answer that. I was told not to 

say anything about impending actions against any one of our physicians. 

 MR. WHITFIELD. Okay. 

 DR. MORGAN. I am not going to take the Fifth. I can tell you that 

you probably got that information probably from one of our files, which 

would suggest that he is under investigation at the present time, and your 

question is the same question--as I mentioned before, I have only been 

there for six months on the Board so your question is the same question 

that I asked our investigator and I can tell you that I was told by him that 

the investigation is underway. 

 MR. WHITFIELD. Well, you know he has been one of the physicians 

involved in contracts with these screening firms and so forth and I 

appreciate your remarks about that. Anyone else have anything? Well, 

in that case, I want to thank you very much for your testimony today. 

We genuinely appreciate your time coming up here and we thank you for 

your cooperation, and with that--yes, sir, Dr. Morgan? 

 DR. MORGAN. Could I ask one question, please, sir? 

 MR. WHITFIELD. Yes, sir. 

 DR. MORGAN. Well, actually two questions. Number one, will we 

be given a summary of what takes place on this committee so we will 

know what you all come up with? And the other question would be, I 

have not heard about--we will discipline those physicians who we can 

prove did something that they should not do. My question is, going back 

through history we see the history of asbestosis. Some of these patients 

were diagnosed as asbestosis and then again as silicosis. We see PhenPhen and we see Propulcid and now some of the NSAIDs, the 

nonsteroidal anti-inflammatory drugs. It seems like the legal profession 

has gone crazy by continuously filing new suits where they involve 

admittedly what appear to be some bad doctors, and my question really 
256

is, are we doing anything to investigate the attorneys and those who seem 

to be involved in these questionable suits? 

 MR. WHITFIELD. Well, I can tell you that this Committee on 

Oversight and Investigations has had representatives of some of the law 

firms with us. We are going to have another hearing in which we are just 

going to be dealing with them. As you know, there has been a lot of 

legislation, some of which has passed the House on tort reform and 

malpractice reform. As you also probably know, the Department of 

Justice is now filing charges against one of the largest class-action law 

firms in New York City and I think has indicted two of their main 

partners because they were allegedly paying money for people to sign on 

as plaintiffs in those class-action lawsuits, and as Mrs. Blackburn 

mentioned in her remarks, we are also looking at the possibility of 

whether or not there needs to be some Federal standard or not relating to 

mass medical screenings, and we do have a website that you could have 

access to that almost on a daily basis says what the committee is doing, 

but as you well know, it is a very complicated process and we are 

exploring all avenues to address this issue in every way that we can. 

 DR. MORGAN. Thank you. 

 MR. WHITFIELD. Thank you. The first panel is dismissed. Now, at 

this time I would like to call up the second panel, and on the second 

panel we have Heath Mason with N&M, Inc.; Dr. Glyn Hilbun from 

Moss Point, Mississippi; Charles Foster and Charlie Brooke Brazell with 

RTS, Inc. of Mobile, Alabama; Dr. Robert Altmeyer of Wheeling, West 

Virginia; Jeffery Guice with Occupational Diagnostics out of Ocean 

Springs, Mississippi; and Dr. Todd Coulter of Ocean Springs, 

Mississippi. Now, if everyone on that panel would come forward. 

 Before we proceed any further, I would like to note the absence of 

Health Mason of N&M, Inc. from Moss Point, Mississippi, and Dr. Todd 

Coulter from Ocean Springs, Mississippi. The committee had invited 

these two witnesses to testify today but both refused, citing other 

obligations. The committee did subsequently issue subpoenas to 

command their attendance and although both men are represented by 

counsel, with whom our staff has been speaking to at some length, 

neither Mr. Mason nor Dr. Coulter authorized their counsel to accept 

service of the subpoena. The U.S. Marshal Service has sought to make 

personal service on these two individuals but has been unsuccessful. Dr. 

Coulter’s conduct unfortunately is not new to the committee. When this 

investigation began with a letter in August 2005, Dr. Coulter refused to 

speak with our staff, he hung up the phone on staff, and in one 

particularly remarkable exchange, said that the way things were done in 

Mississippi was through subpoenas. Accordingly, we tried to 

accommodate him with a subpoena for his records on November 3, 2005, 
257

and served him with a subpoena through the U.S. Marshal Service. 

Nevertheless, when staff contacted Dr. Coulter on November 21, 2005, 

about his overdue response to the subpoena, he responded that he did not 

even look at it. Ultimately the committee received a one-page response 

from Dr. Coulter stating that he had no records for the almost 237 people 

that he diagnosed with silicosis. We also issued a subpoena for Dr. 

Coulter’s attendance here today, but as I noted, his attorney was not 

authorized to accept service on his behalf. Dr. Coulter has truly 

distinguished himself before the committee in his disregard for the legal 

process and I would like to state that we do intend to continue our pursuit 

of Dr. Coulter and we do intend to have him testify before this committee 

at some point in time. 

 Now, with that, I want to thank all of you for being here today to 

assist us in this investigation. At this time I would like to call all of you 

before the Chair and you recognize that we are holding an investigatory 

hearing and when doing so it is the practice of this committee to take 

testimony under oath. Do any of you have any difficulty testifying under 

oath today? Okay. The Chair then advises you that under the rules of 

the House and the rules of the committee, you are entitled to be advised 

by legal counsel. Do any of you desire to be advised by counsel during 

your testimony today? Mr. Guice? 

 MR. GUICE. Yes. 

 MR. WHITFIELD. And who is your legal counsel? 

 MR. GUICE. Mark Shamwell. 

 MR. WHITFIELD. Mark Shamwell. Okay. Thank you. And Mr. 

Foster? 

 MR. FOSTER. Don Foster. 

 MR. WHITFIELD. Don Foster? Okay. So Don Foster will be legal 

counsel for Mr. Foster. Anyone else here wanting to have legal counsel 

today? Okay. 

 [Witnesses sworn] 

 MR. WHITFIELD. Thanks very much. You are now under oath, and 

Dr. Hilbun, I will recognize you for your 5 minute opening statement. 

STATEMENTS OF GLYN HILBUN, M.D.; CHARLES E. 

FOSTER, RTS, INC.; CHARLIE BROOKE BRAZELL, RTS, 

INC.; JEFFERY GUICE, d/b/a OCCUPATIONAL 

DIAGNOSTICS; AND ROBERT ALTMEYER, M.D. 

 DR. HILBUN. Good afternoon, Chairman Whitfield, and members of 

the committee. My name is Dr. Glyn R. Hilbun. I have been a 

practicing physician for the past 40 years on the Mississippi Gulf Coast. 
258

 Before I begin my formal remarks, I would like to make a brief 

comment regarding the recent disaster on the Gulf Coast. As a resident 

of Jackson County, Mississippi, who sustained major property damage 

from Hurricane Katrina, I would like to thank the members of the Energy 

and Commerce Committee for their efforts on behalf of everyone from 

the Gulf Coast. We have begun a long process of rebuilding and will 

continue to need support of Congress. We will build back better than 

before. 

 Now I would like to make a brief statement regarding the matter 

before this committee. Approximately 4 years ago I was hired by N&M 

Incorporated to do physical examinations on patients that were suspected 

of testing positive for silicosis. I traveled to Columbus, Mississippi, to a 

location designated by the testing company where I spent approximately 

5 days performing these examinations. I performed a short physical 

examination and signed the forms that were provided by the company. I 

never gave an opinion nor rendered a diagnosis on any of these patients. 

I saw no pulmonary function studies, no X-ray reports. I only performed 

a physical examination and signed each form and immediately returned 

to my private practice in general surgery. I was compensated $5,000 per 

day plus lodging. Approximately one month later I was in surgery when 

my office manager called stating that someone from N&M, Incorporated 

wanted the typed physical examinations that I had previously performed 

to be re-signed. My response was that my office manager stamped them, 

that I had previously signed them. I assumed they had retyped the 

original ones I had signed. To my dismay, someone had typed in three 

sentences without my knowledge which indicated that I had made the 

diagnosis of silicosis. This was brought to my attention after being asked 

to give a deposition in this matter. The original forms that I had signed 

had no such wording and I testified to this in my deposition. 

 In conclusion, I want to state to this committee that in my 40 years of 

practice, I have never made a diagnosis of silicosis, never tested anyone 

for silicosis, and I never owned or had access to any equipment used in 

testing of silicosis. 

 Thank you, and I would be happy to answer any of your questions. 

 [The prepared statement of Glyn Hilbun, M.D. follows:] 

PREPARED STATEMENT OF GLYN HILBUN, M.D. 

Good afternoon Chairman Whitfield, and members of the Committee. My name is 

Glyn R. Hilbun, M.D. I have been a practicing physician for the past forty years on the 

Mississippi Gulf Coast. Before I begin my formal remarks, I would like to make a brief 

comment regarding the recent disaster on the Gulf Coast. As a resident of Jackson 

County, Mississippi, who sustained major property damages from Hurricane Katrina, I 

want to thank the Members of the Energy and Commerce Committee for their efforts on 
259

behalf of everyone from the Gulf Coast. We have begun the long process of rebuilding 

and with the continued support of Congress, we will build back better than before. 

Now I would like to make a brief statement regarding the matter before this 

Committee. Approximately two years ago, I was hired by N&M Incorporated to do 

physical examinations on patients that were suspected of testing positive for silicosis. I 

traveled to Columbus, Mississippi to a location designated by the testing company where 

I spent approximately five days performing the examinations. I performed a short 

physical examination and signed the forms that were provided by the company. I never 

gave an opinion or rendered a diagnosis on any of the patients. I saw no pulmonary 

function studies or x-ray reports. I only performed a physical examination and signed 

each form, and immediately returned to my private practice of general surgery. I was 

compensated five thousand dollars ($5.000.00) per day plus lodging. 

Approximately one month later, I was in surgery when my office manager called 

stating that someone from N&M Incorporated wanted the "typed" physical exams that I 

had previously performed to be resigned. My response was for my office manager to 

stamp them as I had previously signed them. I assumed that they had retyped the 

originals. To my dismay, someone had typed in three sentences without my knowledge 

which indicated that I had made the diagnosis of silicosis. This was first brought to my 

attention after being asked to give a deposition in this matter. The original forms that I 

had signed had no such wording and I testified to this in my deposition. 

In conclusion, I want to state to this Committee that in my forty years of practice, I 

have never made a diagnosis of silicosis, never tested anybody for silicosis, and have 

never owned or had access to any equipment used in testing of silicosis. 

Thank you and I will be happy to answer any questions that you may have. 

 MR. WHITFIELD. Thank you, Dr. Hilbun. Mr. Foster, do you have 

an opening statement? 

 MR. FOSTER. No, sir. 

 MR. WHITFIELD. Ms. Brazell, do you have an opening statement? 

 MS. BRAZELL. Hello. I am Charlie Brook Brazell. On behalf of 

myself, I would like to thank you for allowing me the opportunity to 

address your issues of concern today. 

 I have worked in the capacity of road manager since the latter part of 

2002 at Respiratory Testing Services and have enjoyed that position 

while meeting the backbone of America. I am not nor have I ever been in 

a position of ownership with regards to RTS but I do believe, however, 

that RTS has offered a valuable service to a people who would have 

otherwise never received its type of service. We rest assured knowing 

that RTS has always been topnotch with regards to its employees and 

procedures. RTS has always had highly qualified and certified doctors 

which can be verified by the resumes that have been submitted. With 

regards to the technicians for X-ray and PFT, they are properly certified 

as well. 

 I firmly believe that RTS has always been above the standard with 

regards to the screening industry. I feel that we certainly measure 

exceptionally well next to other screening companies. 

 Again, I appreciate the chance of allowing me to address your 

concerns. 
260

 MR. WHITFIELD. Thank you, Ms. Brazell. Mr. Guice, do you have 

an opening statement? 

 MR. GUICE. I have no statement. 

 MR. WHITFIELD. Dr. Altmeyer? 

 DR. ALTMEYER. Yes, sir. 

 MR. WHITFIELD. You are recognized. 

DR. ALTMEYER. Mr. Chairman and members of the committee, my 

name is Robert Altmeyer. I am a pulmonologist from West Virginia. I 

have been invited by you to appear here today. 

 By way of introduction, I have been practicing pulmonary medicine 

in West Virginia for 25 years. I am certified by the American Board of 

Internal Medicine in internal medicine and pulmonary medicine and I am 

certified by the National Institute for Occupational Safety and Health as 

a B reader. My practice is limited to pulmonary medicine. On a daily 

basis I see patients in local hospitals and in my office with occupationrelated and non-occupation-related lung diseases. I am currently the only 

lung specialist in my area in West Virginia who sees patients for free if 

they have no insurance or other method of payment. For the past several 

years I have been listed in “Best Doctors” in the United States as 

outlined on my CV. For the past 25 years I have also been involved in 

the medicolegal aspects of occupationally related lung disease. I have 

served as a consultant both for plaintiff attorneys and for defense 

attorneys. The vast majority of my time, however, is spent in the active 

practice of clinical pulmonary medicine in West Virginia. 

 I would now like to comment on the steps necessary to make a 

diagnosis of silicosis. First and most important is the fact that a 

diagnosis of silicosis cannot be made on the basis of a chest X-ray alone. 

In my 25 years of practice in pulmonary medicine, to my knowledge I 

have not diagnosed silicosis on the basis of a chest X-ray alone. The 

diagnosis of silicosis requires knowledge of silica dust exposure coupled 

with a physical examination and a medical history that excludes other 

more likely causes of the densities on the X-rays. Infectious diseases, 

cancer, sarcoidosis, and many other illnesses can mimic silicosis on an 

X-ray. A chest X-ray consistent with silicosis is not a partial diagnosis 

but rather one of the components that when combined with an 

appropriate history and physical leads to an actual diagnosis of silicosis. 

 According to NIOSH protocol, if a chest X-ray shows sufficient 

changes to be consistent with occupational pneumoconiosis, then on the 

B reading report form, box 2A is checked. This box does not indicate 

that the findings are diagnostic of pneumoconiosis but rather are 

consistent with pneumoconiosis. This is an important distinction. 

Apparently there may be some confusion regarding this point among 

some attorneys. 
261

 I would now like to outline my connection with the Federal Silica 

MDL in Corpus Christi, Texas. In about the year 2002, I was requested 

by a law firm to review chest X-rays as a B reader. I reviewed these Xrays, approximately 250 of them, in my office over an approximately 4-

month period of time in West Virginia. I felt that of the approximately 

250, that 50 were consistent with silicosis. Of these, approximately 35 

were in the Texas MDL. I did not make diagnoses of silicosis. My 

office staff can find only B readings on these individuals and not 

examinations. However, for a number of these B readings, apparently I 

was listed as the silicosis diagnosing physician. This is not correct. In 

my reports I clearly stated that the X-rays were consistent with silicosis. 

I know of no complete examinations with diagnoses of silicosis that I 

authored in this MDL. However, we were unable to find two charts so 

there is some slight hesitation. We just can’t find two of them. 

 I was not requested to appear in any hearings in the Texas Silica 

MDL. I was not asked to appear at the Daubert hearings before Judge 

Jack. In her order she stated, “The diagnoses and underlying 

methodology of Dr. Altmeyer and Dr. Levine are not discussed in this 

Order. By agreement of the parties (because of the relatively small 

number of diagnoses Dr. Altmeyer and Dr. Levine issued), neither doctor 

testified at the Daubert hearings/Court depositions.” Again, to the best 

of my knowledge I only performed B readings and did not make 

diagnoses of silicosis on any of the individuals in the MDL. I was not 

criticized by Judge Jack and I believe I have not engaged in any of the 

activities like the ones that she was critical of in her order. 

 Over the years when performing a B reading, if I saw anything 

potentially dangerous to a patient such as masses or nodules, this was 

noted very clearly on my narrative report of the B reading and also on the 

B reading form in the comment section. My office staff would contact 

the law firm or ordering physician by phone to let them know of the 

abnormality so that the individual could have follow-up in a timely 

fashion. This protocol provided a triple check to ensure that the person 

had appropriate follow-up by his treating physician. 

 I have been involved in on-site screening for silicosis. When present 

at screenings and if I felt a chest X-ray was consistent with silicosis, then 

I would examine the patient. The examination consisted of confirming 

the occupational and medical history. I would accomplish this by 

actually dictating the patient’s report on a small tape recorder in the 

patient’s presence at the time of the exam so that he or she could make 

any additions, corrections, or deletions. This methodology was to obtain 

the most accurate information possible. Then a physical examination 

directed at the cardiopulmonary system was done. This included 

auscultation, or listening to the lungs, inspection of the chest, percussion 
262

of the chest, listening to the heart, looking for clubbing and cyanosis of 

the fingers, looking for supraclavicular adenopathy, or lymph nodes 

above the breast bones, and checking for edema as well as a general 

inspection of the patient. 

 Therefore, the individual would know precisely what was in his 

report. If there was any concern about a nodule, for example, on the Xray, I would show this to the patient myself. It was my practice not only 

to tell the patient of any significant abnormalities but also to give written 

notification to the patient at that time. Often after the dictation, the 

individual would ask me about his report and I would answer fully. My 

concern is and always has been to make sure that the individual 

understands the results of his testing so that he can have follow-up by his 

own doctor. Whenever I made a diagnosis of significant lung disease, I 

informed the individual and advised follow-up by the personal treating 

physician. It has been my understanding that without making specific 

recommendations regarding treatment or prescribing medications that a 

doctor-patient relationship was not established by this procedure and I 

was acting more as a consultant, not a treating physician. Nonetheless, I 

have always strove to protect the patient’s health in these screenings. I 

believe that my B readings are accurate as are any of the diagnoses 

which I have made. Because of my understanding of a lack of doctorpatient relationship, I believe that I was able to perform examinations in 

States in which I didn’t have a license. It subsequently several years ago 

came to my attention that this was probably not accurate. As soon as I 

realized that there was any potential problem with performing these 

examinations in a State in which I did not have a license, I stopped doing 

them. 

 Thank you. 

 [The prepared statement of Robert Altmeyer, M.D. follows:] 

PREPARED STATEMENT OF ROBERT ALTMEYER, M.D. 

My name is Robert Altmeyer. I am a pulmonologist from West Virginia. I have 

been invited by the chairman, Mr. Whitfield to appear here today. By way of 

introduction, I have been practicing pulmonary medicine in West Virginia for the past 25 

years. I am certified by the American Board of Internal Medicine in Internal Medicine 

and Pulmonary Medicine and am certified by the National Institute for Occupational 

Safety and Health as a B Reader. My practice is limited to pulmonary medicine. On a 

daily basis, I see patients in local hospitals and in my office with occupationally related 

and non-occupationally related lung diseases. I am currently the only lung specialist in 

my area in West Virginia who sees patients for free if they have no insurance or other 

method of payment. For the past several years I had been listed in “Best Doctors” in the 

United States, as outlined on my curriculum vitae. 

Over the past 25 years I have been also involved in the medico legal aspects of 

occupationally related lung disease. I have served as a consultant both for plaintiff 
263

attorneys and for defense attorneys. The vast majority of my time, however, is spent in 

the active practice of clinical pulmonary medicine in West Virginia. 

I would now like to comment on the steps necessary to make a diagnosis of silicosis. 

First and most important is the fact that a diagnosis of silicosis cannot be made on the 

basis of a chest x-ray alone. In my twenty five years of practicing Pulmonary Medicine, 

to my knowledge, I have not diagnosed silicosis on the basis of a chest x-ray alone. The 

diagnosis of silicosis requires knowledge of silica dust exposure, coupled with a physical 

examination and medical history that excludes other more likely causes of the densities 

found by chest x-ray. Infectious diseases, cancer, sarcoidosis, drugs and other factors can 

mimic silicosis on a chest x-ray. A chest x-ray consistent with silicosis is not a partial 

diagnosis, but rather one of the components, that when combined with an appropriate 

history and physical, leads to an actual diagnosis of silicosis. 

According to NIOSH protocol, if a chest x-ray shows sufficient changes to be 

consistent with occupational pneumoconiosis, then box 2A is checked. This box does not 

indicate that the findings are diagnostic of pneumoconiosis but rather are consistent with 

pneumoconiosis. This is an important distinction. Apparently there may be some 

confusion regarding this point among some attorneys. However, if they are 

sophisticated enough to request a B reading, it is my opinion they should be aware of this 

fact. 

I now would like to outline my connection with the Federal Silica MDL in Corpus 

Christi, Texas. I was requested by a law firm to review chest x-rays as a B reader. Of 

several hundred chest x-rays, I felt that approximately 50 were consistent with silicosis. 

Of these, approximately 35 were in this MDL. I did not make diagnoses of silicosis. My 

office staff can find only B readings on these individuals and not examinations. However, 

for a number of these B Readings, apparently I was listed as the silicosis diagnosing 

physician. This is not correct. In my reports, I clearly stated that the x-ray was consistent 

with silicosis. I know of no complete examinations with diagnoses of silicosis, that I 

authored, in this MDL. However, there are two records we cannot locate. 

I was not requested to appear in any hearings in the Texas Silica MDL. I was not 

asked to appear at the Daubert hearings before Judge Jack. In her order she stated that 

“The diagnoses and and underlying methodology of Dr. Altmeyer and Dr. Levine are not 

discussed in this Order. By agreement of the parties (because of the relatively small 

number of diagnoses Dr. Altmeyer and Dr. Levine issued), neither doctor testified at the 

Daubert hearings/Court depositions.” Again, I would point out that I performed B 

readings and did not make silicosis diagnoses, to my knowledge, on any of these 

individuals in the MDL. I was not criticized by Judge Jack and I have not engaged in any 

activities like the ones described by Judge Jack. 

Over the years, when performing a B Reading, if I saw anything potentially 

dangerous to the patient such as masses or nodules, this was noted very clearly on my 

narrative report of the B reading and also in the “ comment “ section of the actual B 

Reading form.. My office would contact the law firm or ordering entity telephonically to 

let them know of the abnormality so that the individual could have follow-up in a timely 

fashion. This protocol provided a triple check to ensure that the person had appropriate 

follow up by his treating physician. 

I have been involved in on-site screening for silicosis. When present at screenings, 

and if I felt that a chest x-ray was consistent with silicosis, then I would examine the 

person. This examination consisted of confirming the occupational and medical history. 

I would accomplish this by dictating the individual’s report in his or her presence so that 

he or she could make any additions, corrections or deletions. This methodology was to 

obtain the most accurate information possible. Then a physical examination directed at 

the cardiopulmonary system was done. This included auscultation or listening to the 

lungs, inspection of the chest, percussion of the chest, auscultation the heart, inspection 

for clubbing and cyanosis of the digits, checking for supraclavicular adenopathy (lymph 
264

nodes above the collar bones), checking for peripheral edema (swelling of the legs) and a 

general assessment by inspection of the person. 

Therefore, the individual would know precisely what was in his report. If there was 

any concern about a nodule, for example, on the x-ray, I would show this to him. It was 

my practice not only to tell the person of any significant abnormalities, but also to give a 

written notification to the patient. Often, after the dictation, the individual would ask me 

questions about his report, which I would answer fully. My concern is and always has 

been to make sure that the individual understands the results of his testing so that he can 

have follow-up by his personal physician. Whenever I made a diagnosis of any 

significant lung disease, I informed the individual and advised followup by the personal 

treating physician. It has been my understanding that without making specific 

recommendations regarding treatment or prescribing medications, that a doctor-patient 

relationship was not established by this procedure and that, I was acting more as as a 

consultant and not a treating physician. Nonetheless, I have always strove to protect the 

patients’ health in these screenings. I believe my B Readings are accurate as are any 

diagnoses which I have made. I would be glad to answer any questions you have. 

Robert B. Altmeyer, M.D. 

 MR. WHITFIELD. Thank you, Dr. Altmeyer. Mr. Foster, you are the 

owner and operator of Respiratory Testing Services, Inc., RTS as we 

have referred to it today. Can you tell me with certainty that your 

company in each of the States where it conducted screenings complied 

with applicable Federal, State, and local law and regulation concerning 

the administration of diagnostic tests such as X-rays? 

 MR. FOSTER. With all due respect, sir, to this honorable 

subcommittee, on the advice of counsel I decline to answer the questions 

and assert my Fifth Amendment privileges against self-incrimination. 

 MR. WHITFIELD. Now, Mr. Foster, are you refusing to answer all of 

our questions based on the right against self-incrimination offered to you 

under the Fifth Amendment of the U.S. Constitution? 

 MR. FOSTER. Yes, sir. 

 MR. WHITFIELD. And it is your intention to assert this right in 

response to every further question that we might have today? 

 MR. FOSTER. Yes, sir. 

 MR. WHITFIELD. Well, given that, if there are no further questions 

from the members, I will dismiss you at this time subject to the right of 

the Chair to recall you and remind you that you remain under the 

subpoena, so at this time you are excused. 

 MR. FOSTER. Thank you, sir. 

 MR. WHITFIELD. Mr. Guice, as the owner and operator of 

Occupational Diagnostics, Inc., can you tell me with certainty that your 

company in each of the States where it conducted screenings complied 

with applicable Federal, State, and local law and regulation concerning 

the administration of diagnostic tests such as X-rays? 

 MR. GUICE. On the advice of counsel, I invoke my Fifth 

Amendment privilege against self-incrimination. 
265

 MR. WHITFIELD. So you are refusing to answer all of our questions 

based on this right against self-incrimination afforded to you under the 

Fifth Amendment of the U.S. Constitution? 

 MR. GUICE. Yes. 

 MR. WHITFIELD. And it is your intention to assert that right for any 

questions we may have today? 

 MR. GUICE. Yes. 

 MR. WHITFIELD. Given that, if there are no further questions from 

the committee, I will dismiss you at this time subject to the right of recall 

by the Chair and remind that you remain under our subpoena subject to 

the subpoena, and at this time you are excused. 

 MR. GUICE. Thank you. 

 MR. WHITFIELD. Now, Ms. Brazell--is it Brazell? 

 MS. BRAZELL. Yes, sir, it is Brazell. 

 MR. WHITFIELD. What is your title at RTS? 

 MS. BRAZELL. I was road manager. 

 MR. WHITFIELD. Road manager? 

 MS. BRAZELL. Yes, sir. 

 MR. WHITFIELD. And what is your position today? 

 MS. BRAZELL. Well, RTS is no longer really in business. 

 MR. WHITFIELD. Oh, you are no longer in business? 

 MS. BRAZELL. We are not conducting business. 

 MR. WHITFIELD. When did you go out of business? 

 MS. BRAZELL. It would be 2005. 

 MR. WHITFIELD. Were you with them at that time? 

 MS. BRAZELL. Yes, sir. 

 MR. WHITFIELD. Now, at that time you were contracting with law 

firms to do screenings and provide names to the law firm of those who 

had positive screenings. Is that correct? 

 MS. BRAZELL. I am sorry. Can you say that again? 

 MR. WHITFIELD. I said, it was your contract with law firms or 

agreement with law firms that you would do screenings and provide 

names to the law firms of those people who had positive readings for 

silicosis? 

 MS. BRAZELL. Yes. 

 MR. WHITFIELD. Is that correct? 

 MS. BRAZELL. That is correct, sir. 

 MR. WHITFIELD. And how many doctors were hired by your firm to 

help with this project? 

 MS. BRAZELL. I can’t answer that accurately. There were several. 

 MR. WHITFIELD. Was Dr. Altmeyer one of your physicians? 

 MS. BRAZELL. Yes, sir. 
266

 MR. WHITFIELD. Okay. And when you hired these physicians, what 

did you ask them to do? 

 MS. BRAZELL. I did not hire the physicians. 

 MR. WHITFIELD. Well, what was your understanding as to why they 

were hired? 

 MS. BRAZELL. To read X-rays. 

 MR. WHITFIELD. And to-- 

 MS. BRAZELL. See the patient if needed. 

 MR. WHITFIELD. Did you expect them to give diagnoses? 

 MS. BRAZELL. Yes, sir. 

 MR. WHITFIELD. And so when they were retained, that was 

understood. Is that correct? 

 MS. BRAZELL. Yes, sir. 

 MR. WHITFIELD. Now, Dr. Altmeyer, you have indicated in your 

testimony that that was not your understanding, that you were simply a B 

reader. Is that true? 

 DR. ALTMEYER. No, at times I would read X-rays as a B reader. I 

was on site at some silicosis readings in which if the X-ray was 

consistent with silicosis, then RTS would perform a pulmonary function 

test, a chest X-ray. I mean perform pulmonary function studies and then 

I would examine the patient and perform a history, a physical 

examination, interpretation of the pulmonary function test and a B 

reading and issue a report. If the X-ray was negative in terms that it was 

not consistent with silicosis, then that would be it. It would just be the 

end of my report. 

 MR. WHITFIELD. So in some instances you were diagnosing silicosis 

and in other instances you were not? 

 DR. ALTMEYER. That is correct. 

 MR. WHITFIELD. Now, you may have heard earlier when I was 

discussing with the first panel that you were in Texas on behalf of RTS 

examining patients in the State of Texas on June 23, 24, and 25 of 2003. 

Were you licensed to practice medicine in Texas? 

 DR. ALTMEYER. No, sir. 

 MR. WHITFIELD. And did you consider what you were doing there 

on those three days to be the practice of medicine? 

 DR. ALTMEYER. I didn’t feel that it was the practice of medicine. 

The reason in my thinking was at that point in time was I didn’t believe 

that there was a doctor-patient relationship and I couldn’t understand 

how you could be practicing medicine without a doctor-patient 

relationship. Now, maybe I would think different of that now because 

now I know more than I did then at that point in time. When I learned 

that this may be the practice of medicine, I stopped it. 
267

 MR. WHITFIELD. So what you were actually doing in Texas? I 

mean, were you examining these patients? Were you taking medical 

histories? 

 DR. ALTMEYER. What I would do, if the X-ray was consistent with 

pneumoconiosis, then a pulmonary function test was performed and then 

I would do a history and physical examination on the patient and 

combine that with the chest X-ray and the pulmonary function test into a 

report. 

 MR. WHITFIELD. And you would submit that report to RTS? 

 DR. ALTMEYER. Yes. 

 MR. WHITFIELD. And in that report did you have some diagnosis? 

 DR. ALTMEYER. Yes. If the X-ray was negative, then my report 

would say not consistent with pneumoconiosis. If the X-ray was 

positive--or consistent with and that led to the performance of a history 

and physical examination and after that history and physical examination 

I believed that the densities on the X-rays were due to silicosis or 

asbestosis, then I would so state. 

 MR. WHITFIELD. Well, you know, in the forms that you submitted to 

RTS, it does use the phrase “with reasonable medical certainty I do 

believe that this patient has silicosis” and at least Dr. Morgan and Dr. 

Patrick, as head of the medical licensure in Mississippi and Texas, both 

stated, that if you are using those terms, that that is a diagnosis and that 

certainly is the practice of medicine. 

 DR. ALTMEYER. I know that now. 

 MR. WHITFIELD. Well, Dr. Hilbun, in your testimony you had 

indicated that you frequently were quite busy and that they would call 

and ask for these reports and that you had examined many, many patients 

but that you were not aware that you were making a diagnosis of any of 

those patients. Is that correct? 

 DR. HILBUN. I never made a diagnosis of silicosis. 

 MR. WHITFIELD. So that was never your intent to do that? 

 DR. HILBUN. No, I was just hired to do a physical. I never 

expressed any opinion. 

 MR. WHITFIELD. All right. And you were hired by N&M Screening 

Company? 

 DR. HILBUN. Yes, sir. 

 MR. WHITFIELD. And is that Mr. Heath, is he the President of that 

group, or do you know? 

 DR. HILBUN. It was Mason. 

 MR. WHITFIELD. Yex, Heath Mason. 

 DR. HILBUN. I don’t know if he was the President or not but he was 

one of them. 
268

 MR. WHITFIELD. He is the one that you worked with. But if you 

look at Tab 7, this is a form with your name on it and it talks about--we 

have redacted information, the names of the patients and so forth--but in 

the summary it says, “On the basis of this client’s history of occupational 

exposure to silica and a B reading of the client’s chest X-rays, then 

within a reasonable degree of medical certainty, this person has 

silicosis,” and it has your signature on the bottom, but your position is 

that you did not understand that that was there or maybe you didn’t sign 

this or what happened? 

 DR. HILBUN. That is correct. Those three sentences are not even in 

my vocabulary. I have never heard of them. I hand-signed the physical 

examination. These are stamped, which is my stamp, and I didn’t read it, 

but I did not place those three sentences in there and then sign it. 

 MR. WHITFIELD. So Ms. Brazell, I don’t think Dr. Hilbun worked 

with you all but did you as a matter of practice change these documents 

submitted to you by the physicians? 

 MS. BRAZELL. Absolutely not. 

 MR. WHITFIELD. I see my time has expired. Mr. Stupak. 

 DR. ALTMEYER. Mr. Whitfield, I just want to maybe correct 

something that didn’t--to clarify it. I made diagnoses of silicosis in some 

cases but to my knowledge, not in this specific MDL. 

 MR. WHITFIELD. Okay. Thank you. 

 MR. STUPAK. Dr. Hilbun, let us pick up where the Chairman left off 

on Exhibit 7. You are saying the last three lines there--do you have that 

book there? You have a book there. You can take a look at Exhibit #7. 

 DR. HILBUN. This one? 

 MR. STUPAK. Yes. Go to #7 there, Exhibit 7. So those last three 

lines where it says “summary,” you are saying that is not your statement? 

 DR. HILBUN. No, sir. That is not my statement. 

 MR. STUPAK. How about the rest of the stuff on the form? Is that 

your statement? Like the history there that the individual smoked one or 

two cigars-- 

 DR. HILBUN. Most of the history was already on the little form I had 

when I signed it. 

 MR. STUPAK. Okay. 

 DR. HILBUN. You know, I was presented with that. 

 MR. STUPAK. But that is your signature on the bottom? 

 DR. HILBUN. Right. That is a stamped signature, yes, sir. 

 MR. STUPAK. So you didn’t sign it? 

 DR. HILBUN. No, sir. 

 MR. STUPAK. You stamped it? 

 DR. HILBUN. Stamped it. 
269

 MR. STUPAK. Before you stamped, was there anything under 

“summary”? 

 DR. HILBUN. There was no such wording as “summary” on the 

original physical that I signed. 

 MR. STUPAK. So where would this form stop then? After X-ray? 

 DR. HILBUN. Sir? 

 MR. STUPAK. Well, where would the form stop before you put your 

stamp on there? Under X-ray? 

 DR. HILBUN. Right. No, I didn’t even do the X-ray. I don’t even 

know a thing about X-ray. 

 MR. STUPAK. What did you stamp then with your stamp? 

 DR. HILBUN. It says, “Breath sounds normal, no ankle edema, 

clubbing, yes, cyanosis, no, cancer”--that is a history--”enlarged heart, 

no.” That’s the physical examination. 

 MR. STUPAK. Okay. 

 DR. HILBUN. That is what I signed. 

 MR. STUPAK. So all you did was--so you only signed a form that 

just had examination on it? It didn’t have X-ray on it, didn’t have the 

summary on it? 

 DR. HILBUN. I never saw an X-ray. I couldn’t put down X-ray. No, 

I didn’t see one. 

 MR. STUPAK. Okay. But did the report that you stamped have X-ray 

on it? The report that you stamped, did it have summary on it? 

 DR. HILBUN. No. 

 MR. STUPAK. How did this stuff magically appear then? Any idea? 

I mean, it is all lined up pretty good. I mean, everything seems pretty 

consistent there. 

 DR. HILBUN. All I can say is, this is not the form that I originally 

signed when I did the physical. 

 MR. STUPAK. Okay. You said you gave no medical opinion, you 

just examined, right? 

 DR. HILBUN. Right. 

 MR. STUPAK. What was the purpose of the exam? 

 DR. HILBUN. I was hired to do a physical examination. 

 MR. STUPAK. When you do a physical examination as a medical 

doctor, don’t you come to some opinions as to that patient? 

 DR. HILBUN. No. It is like a football physical or Army physical. 

 MR. STUPAK. No, I don’t know. Explain to me. 

 DR. HILBUN. Well, I am not there to give a diagnosis: I am there to 

do a physical examination. 

 MR. STUPAK. But based upon your examination, your physical 

examination, someone must rely upon that examination, right? I mean, 

you just didn’t volunteer in Mississippi one day to go down and do some 
270

examinations. Someone asked you to do examinations for a reason, 

right? 

 DR. HILBUN. Well, I knew why I was going to-- 

 MR. STUPAK. What was your understanding of why you were going 

there? 

 DR. HILBUN. It was silicosis testing. They were testing for silicosis. 

 MR. STUPAK. And then based upon your examination, physical 

examination, someone was going to make some determination whether 

this person had silicosis or not, right? 

 DR. HILBUN. I don’t know of any way you can make a diagnosis of 

silicosis on a physical examination. 

 MR. STUPAK. Okay. You indicated in your testimony, you said that 

“approximately a month later I was in surgery when my office manager 

called stating someone from N&M, Incorporated wanted the typed 

physical exams I had previously performed to be re-signed.” Do you 

remember that? 

 DR. HILBUN. Yes. 

 MR. STUPAK. “So my response was for my office manager to stamp 

them as I had previously signed them. I assumed that they had retyped 

the originals.” So in other words, you did sign originals? 

 DR. HILBUN. I signed the original one. 

 MR. STUPAK. Okay. 

 DR. HILBUN. Okay. 

 MR. STUPAK. And then to your dismay, “someone had typed in the 

three sentences without my knowledge.” 

 DR. HILBUN. Right. 

 MR. STUPAK. Okay. And that was brought to your attention during 

a deposition. Did you ever learn who typed in these three lines? 

 DR. HILBUN. No, sir. 

 MR. STUPAK. Did you make any discovery or make any attempt to 

discover who typed them in? 

 DR. HILBUN. No, sir. 

 MR. STUPAK. Had this ever happened to you before as a medical 

doctor? 

 DR. HILBUN. No, sir. 

 MR. STUPAK. Wouldn’t you be concerned that people are typing in-- 

 DR. HILBUN. Yes, sir. 

 MR. STUPAK. So what have you done about it? 

 DR. HILBUN. That is why I am here. 

 MR. STUPAK. That is why you are here? 

 DR. HILBUN. Yes, sir. 

 MR. STUPAK. To clear the record, or what? 

 DR. HILBUN. Yes, sir. 
271

 MR. STUPAK. Well, I would think if someone rendered a legal 

opinion for me being an attorney or for you as a medical doctor, you 

would try to find out who did it. Who paid you for all this work? N&M, 

Incorporated? 

 DR. HILBUN. That was the company that paid me, yes, sir. 

 MR. STUPAK. Did you ever ask N&M what happened, how come 

you got three more lines on your report that-- 

 DR. HILBUN. I never had any more contact with N&M after the 

litigation started, and that is when I found out that these lines had been 

added. 

 MR. STUPAK. So you never contacted N&M? You have to answer 

yes or no, sir. 

 DR. HILBUN. Didn’t know anything about it. 

 MR. STUPAK. You stated in your testimony that your office manager 

stamped the physical exams at your order and that it wasn’t until you 

went to your deposition you found out that they were changed. How 

about your medical office manager there? Do they have any medical 

training? 

 DR. HILBUN. Just mostly from years of experience. 

 MR. STUPAK. Pardon? 

 DR. HILBUN. Just OJT. 

 MR. STUPAK. Okay. Would he or she have been qualified to notice 

any changes of a medical significance on a report? 

 DR. HILBUN. Probably so, yes, sir. 

 MR. STUPAK. Well, did they say anything to you? 

 DR. HILBUN. No. 

 MR. STUPAK. All right. I am sure glad you came and cleared this 

up. Dr. Altmeyer, if I may, on form 10 there--do you want to look at Tab 

10 there? This is a form that the Chairman had referred to earlier. This 

is the asbestos medical examination. Did you find it there? 

 DR. ALTMEYER. Yes. 

 MR. STUPAK. So you said you were surprised to learn that you were 

listed as the examining doctor? 

 DR. ALTMEYER. Not on this one. 

 MR. STUPAK. Okay. 

 DR. ALTMEYER. What happened was, there is a list of silica 

diagnosing doctors and B reading doctors from the Texas MDL, and 

what I did was, I went down the list and tried to find my name anywhere 

that it was listed as what they call it on the list, the S doctor. I assume 

that meant the silicosis diagnosing doctor, and we tried to find all reports 

that we could on those and we found about, I believe, 35. 

 MR. STUPAK. Would this be one of the 35 because on page 2 under 

impression “based on the above opinion it is my opinion with a 
272

reasonable degree of medical certainty that this man has simple 

silicosis.” Would this be one of those S files? 

 DR. ALTMEYER. I don’t know without knowing the name of the 

individual. 

 MR. STUPAK. Well, is this a report you would have done then? 

Would you have given an opinion with a reasonable degree of medical 

certainty as to whether a patient had or did not have silicosis? 

 DR. ALTMEYER. Yes. 

 MR. STUPAK. And that rendering a medical opinion, that is 

practicing medicine, right? 

 DR. ALTMEYER. That is what I understand now in the State of 

Texas. At the time I didn’t think so. 

 MR. STUPAK. Well, even if you were in West Virginia, if you were 

going to give an opinion with a reasonable degree of medical certainty-- 

 DR. ALTMEYER. I am sorry. I think I misunderstood. Could you 

repeat your question? 

 MR. STUPAK. Sure. When you put on this report here “with a 

reasonable degree of medical certainty” that this man has simple 

silicosis, that is a medical opinion, right? 

 DR. ALTMEYER. That is 

 MR. STUPAK. And you don’t dispute the originality of this report, do 

you, this three-page report? 

 DR. ALTMEYER. No, I don’t. 

 MR. STUPAK. And of the 50 cases or so, 35 of them had silicosis, 

you thought? 

 DR. ALTMEYER. They were chest X-rays consistent with-- 

 MR. STUPAK. Silicosis? 

 DR. ALTMEYER. Silicosis. 

 MR. STUPAK. But once you got the chest X-ray, then you went and-- 

 DR. ALTMEYER. Many times I have seen patients who have chest Xrays that look like occupational pneumoconiosis. 

 MR. STUPAK. Sure. 

 DR. ALTMEYER. And then after I examine them, I find out they have 

rheumatoid arthritis, for example, which can cause changes on an X-ray 

very similar to pneumoconiosis, asbestosis, for example. I saw 

somebody-- 

 MR. STUPAK. Sure, but you wouldn’t just take a look at the X-ray, 

you would also--if you thought it was silicosis, you would get 

occupational history, smoking history, medical history? 

 DR. ALTMEYER. Of course. 

 MR. STUPAK. Okay. So it sounds like a pretty thorough exam then. 
273

 DR. ALTMEYER. What I try to do before a diagnosis of occupational 

pneumoconiosis is in my mind confirm that they have had occupational 

exposure to a dust of sufficient-- 

 MR. STUPAK. To reinforce your diagnosis? 

 DR. ALTMEYER. --quality and quantity and then I make a physical 

examination. Sometimes the physical examination puts the diagnosis 

into doubt. 

 MR. STUPAK. Sure. 

 DR. ALTMEYER. I had a lady who had metastatic thyroid cancer to 

her lungs with multiple small nodules that looked just like silicosis but it 

wasn’t silicosis but you wouldn’t know that without doing a-- 

 MR. STUPAK. Well, this individual here with a simple case of 

silicosis, after you saw this person, did you ever follow up with them, 

urging them to get treatment or anything like this or would you just 

follow up with the law firms? 

 DR. ALTMEYER. In my report, I indicated I advised him to have 

periodic X-rays and follow-up examination by his personal physician. 

 MR. STUPAK. Was he referred to you by his personal physician? 

 DR. ALTMEYER. No. 

 MR. STUPAK. My time has expired. Thank you, Mr. Chairman. 

 MR. WHITFIELD. Thank you, Mr. Stupak. At this time I recognize 

the gentleman from Mississippi, Mr. Pickering. 

 MR. PICKERING. Dr. Altmeyer, you are a pulmonologist? 

 DR. ALTMEYER. Yes, sir. 

 MR. PICKERING. So your specialty, you would be qualified, you 

would have an expertise, you would have experience in diagnosing 

silicosis. Is that correct? 

 DR. ALTMEYER. Occupational pneumoconiosis has been a large part 

of my professional life going back to 1978 when I started training. 

Where I trained, the emphasis of research was on occupational 

pneumoconiosis and that is how I got into this whole part of medicine to 

begin with. 

 MR. PICKERING. Thank you, Dr. Altmeyer. For the gentleman from 

Michigan, if I can help clarify, I know that from his earlier questions he 

was unsure if he had a clear understanding--let me if I can try to bring 

some clarity. You have I think in these types of cases, you would have a 

radiologist who would take the X-rays, you would have a pulmonologist 

like Dr. Altmeyer who could make a diagnosis through his qualifications 

and experience. The screening company went to Dr. Hilbun to simply 

ask for the physical examination to give general physical health 

characteristics. They did not ask him to take the X-ray, examine the Xray, or to make a diagnosis of silicosis. He was simply given very--with 

his background as a general surgeon who has never had any expertise or 
274

experience in silicosis, he was not expected to nor was he asked to make 

any diagnosis nor would he be qualified to give a diagnosis of silicosis. 

But with his general practice he is very qualified to give a physical and 

that is what he was asked to do. That is what he did, and I think it is 

significant to remember that there were two other folks today that 

avoided subpoenas. We have had two people take the Fifth Amendment 

today. Dr. Hilbun traveled all the way from the coast after losing his 

home on the coast, having serious illnesses in his family, to testify on a 

voluntary basis. So I think it is very significant that Dr. Hilbun in both 

his deposition and in the hearing today tried to expose what really 

happened and the fraud that took place. And so let me just clarify for the 

record for Dr. Hilbun. Thank you very much. 

 MR. WHITFIELD. Thank you. At this time I recognize Dr. Burgess 

for his 10 minutes. 

 MR. BURGESS. Well, Dr. Hilbun, then if I may ask you, do you feel 

that you have been the victim of some type of fraud by the N&M 

Company? 

 DR. HILBUN. Yes, sir. 

 MR. BURGESS. Just so I understand it correctly and completely, you 

had sort of a check-off sheet that you did as you did the physical exam? 

 DR. HILBUN. Correct. 

 MR. BURGESS. And then someone came to your office with a stack 

of typed reports which is why they look so nice and regular and all lined 

up as was pointed out previously. You were not in the office and simply 

directed someone to sign those charts in your absence? 

 DR. HILBUN. That is correct. I assumed they were the same as the 

originals. 

 MR. BURGESS. Yeah, I don’t think you will ever do that again, will 

you? 

 DR. HILBUN. Well, it is just what you get in the habit of doing. 

 MR. BURGESS. And I understand that. You said you were paid 

$5,000 a day when you were doing these exams? 

 DR. HILBUN. Yes, sir. 

 MR. BURGESS. And how many exams would you do during the 

course of the day? 

 DR. HILBUN. I would say--I didn’t count them but I would say 80, 

maybe 100. I mean, I don’t know. I would say around 80. 

 MR. BURGESS. So you would see a lot of people? 

 DR. HILBUN. Oh, they would just run through like, you know-- 

 MR. BURGESS. Dr. Altmeyer, let me ask you just a couple of 

questions, and we may not take the whole time today. Everything that 

you present to us, your written testimony, and I thank you for that, it was 

succinct, it was to the point, it was very complete. It was much more 
275

careful than most of the things that I write, quite honestly, and yet you 

didn’t realize that doing a physical exam or rendering a diagnosis in 

Texas when you didn’t have a license was outside the scope and practice 

of Texas medicine? I guess like Mr. Stupak, I do ask for a yes or no. I 

am sorry. 

 DR. ALTMEYER. At the time that I was doing it, honestly I didn’t 

think I was practicing medicine, and after what I have heard today, the 

testimony today and over the past couple years when I tried to gain more 

knowledge about what is a doctor-patient relationship, what is the 

responsibility of a doctor, et cetera. Then I have come to learn that that 

is in Texas practicing medicine if you make a diagnosis. Now, I never 

advised any treatment. See, I always thought if you didn’t advise 

treatment other than follow-up by your own doctor, get chest X-rays by 

your own doctor, I often would tell them to stop smoking and I didn’t 

give any medicine, I thought that was not practicing medicine. And that 

is why I did it. Of course, if I would have known, if I would have in my 

heart thought that that was the practice of medicine back when I was 

doing it, there is no way I would have done it. 

 MR. BURGESS. Well, what was it specifically what Dr. Patrick or Dr. 

Morgan testified to today that made you realize that this was in fact the 

practice of medicine? 

 DR. ALTMEYER. Well, I think he said if you make a diagnosis, if you 

actually make a diagnosis. If you, say, make a diagnosis of silicosis even 

if you don’t give medicine or recommend treatment or something else, 

that apparently is enough to trigger. 

 MR. BURGESS. Yes, I would think so. I mean, if when I was 

practicing, if someone had asked me to sit down and write down the 

definition, I don’t know that I could have done that, but just like Justice 

Potter Stewart, I would have known it if I had seen it, and this looks like 

an awful lot like practicing even from that vantage point. Under the 

smoking history on this physical exam report we have under Tab 10, you 

report “has never smoked tobacco.” If the patient had smoked tobacco, 

what would your line there have looked like? 

 DR. ALTMEYER. If the patient had-- 

 MR. BURGESS. This is under the asbestosis medical exam on Tab 10. 

 DR. ALTMEYER. If he had smoked tobacco, what would it have said 

under smoking history? 

 MR. BURGESS. Well, yeah. How would that line have read? 

 DR. ALTMEYER. What I try to do is, I try to as accurately as I can 

calculate pack-years, which is the number of packs per day times the 

number of years, and if I can get the history, I would like to know when 

they started and when they stopped because the risk of developing lung 

cancer from smoking does go down after one stops smoking so if there is 
276

any question about cancer or something, one can use what is known 

about the effect of smoking cessation on decreasing the risk of lung 

cancer. So in other words, if somebody has 30 pack-years and they are 

still smoking-- 

 MR. BURGESS. Right. You would have attempted to quantify it? 

 DR. ALTMEYER. Yes, certainly. 

 MR. BURGESS. Now, under the occupational history, the line is there 

“from 1994 until 2003, worked as an assembler with direct exposure to 

asbestos transite, cloth, gloves, gaskets and valve packing, and fire 

brick,” so that is a fairly substantial exposure, nine-year exposure to 

asbestos. The next line though, “He also worked around sandblasting,” 

and yet the primary diagnosis is silicosis. I guess I am just a little bit 

troubled that you didn’t try to quantify the silica exposure as well as you 

would have the tobacco exposure or even the asbestos exposure. 

 DR. ALTMEYER. I would prefer also to have more-extensive history 

and the reason why though the diagnosis was silicosis was because the 

type of opacities were consistent radiographically with silicosis and not 

asbestosis. They were Q/Q, which are small, rounded opacities whereas 

asbestosis typically causes irregular line-line opacities at least starting in 

the lower lung bases. 

 MR. BURGESS. But based on what you have recorded here, I mean, 

the silica exposure could have been as transient as walking by the 

sandblasting booth once a week versus immersed in it for his total 

employment time. 

 DR. ALTMEYER. Although I don’t have a specific silica exposure, I 

doubt that because in all of these things I try to put in my mind when I 

am talking to somebody. Does this person have enough exposure to 

cause the diagnosis that I am subsequently going to make? 

 MR. BURGESS. And I guess when I was reading this, that was my 

question too. Everything else you have been so careful and so 

painstakingly consistent about things and yet the one key element of the 

patient’s history-- 

 DR. ALTMEYER. Yeah, I agree with you. I wish it was more 

extensive but I can say that at the time I was doing this that I had to 

convince myself in my own mind’s eye that there was enough silica 

exposure to have caused small, rounded opacities on a chest X-ray. 

Now, would it have been better to write more down? Yes. 

 MR. BURGESS. But at no time did any of the law firms involved ask 

you to try to make the diagnosis of silicosis? 

 DR. ALTMEYER. No. If a law firm ever tried to convince me or 

coerce me to make a diagnosis of occupational pneumoconiosis, I would 

have been out the door in a heartbeat. 
277

 MR. BURGESS. Let me just ask one last general question of both our 

physicians because one of the things as a doctor sitting up here that kind 

of bugs me is, it is like no one is taking responsibility for the patients that 

were involved here, and there may have been some things that were 

added to reports or there may have been some things that were done 

erroneously whether it was intentional or not, do you know, are you 

aware of any efforts that have been made to contact the patients involved 

and set the record straight as to the fact that you were in fact their 

treating physician at that point or set the record straight that there has 

been now a report generated that is different from the report that you 

would have signed the day they left the clinic in Mississippi? Dr. 

Hilbun, I will go to you first but I do want an answer from both doctors. 

 DR. HILBUN. I really don’t have any way of just performing a 

physical examination, I didn’t feel there was a doctor-patient 

relationship. 

 MR. BURGESS. Right. I don’t meant to interrupt but my time is 

short, but now you see that a report has been generated over your 

signature under a patient’s name and that person is going to have a hard 

time getting life insurance. They may not be employable. Are you 

aware of any efforts made to contact these individuals and set the record 

straight on your behalf or on their behalf? 

 DR. HILBUN. No, sir. I don’t have any records of any of the 

patients, you know. 

 MR. BURGESS. So it would be your opinion that it would be the law 

firm that would be involved that would be--or N&M, the screening 

company, that would be responsible for that? 

 DR. HILBUN. Yes, sir. 

 MR. BURGESS. What about you, Dr. Altmeyer? Have any efforts to 

go back and correct the record on behalf of the patients? 

 DR. ALTMEYER. I believe that my B readings are accurate on 

anybody I have done B readings. I believe strongly that the diagnoses of 

this disease which I have made through the whole process are accurate. 

To my knowledge, I have never told anybody that they had silicosis that I 

didn’t believe had it. I believe that my diagnoses when I did make them 

are accurate. 

 MR. BURGESS. So this patient that we have here under Tab 10, the 

report would read the same had they come into your office in West 

Virginia? 

 DR. ALTMEYER. Absolutely. The same methodology that I use in 

my office is what I use when I see people. I ask them the same questions 

over and over and over again. If somebody comes into my office for a 

non-occupational reason, they have something, I may not get into the 

occupational history as deeply as if they are coming in because they may 
278

have occupational asthma or they think they have silicosis or asbestosis. 

But my way of examining them--the questions, the smoking history, the 

pertinent review of systems--is the same that I have always done. 

 MR. BURGESS. But if this had been a West Virginia patient that we 

are reading about under Tab 10, you would have a way of knowing 

whether or not they did those things that you recommended for follow-up 

as far as going to see their personal physician for routine X-rays? There 

would be some method to ensure that your orders or requests were 

complied with. If the patient is in Texas and you don’t ever go back, it is 

virtually impossible to know whether or not those recommendations 

were complied with. 

 DR. ALTMEYER. Even in West Virginia, if somebody comes in to 

see me for asthma and I find that they--I see a skin lesion or something 

like that, I tell them, that could be skin cancer on your shoulder, you 

need to see your own doctor, don’t blow me off, take it seriously. Now, 

that patient may never come back to see me again and honestly, you are a 

doctor -- 

 MR. BURGESS. Yeah, but if you saw a big, bad, black mole on 

someone, you would say let me help you make that decision, let me help 

you make that appointment-- 

 DR. ALTMEYER. And we often do make an appointment. It is almost 

a matter of degree. If it is a big black one up there and I am the lung 

doctor. We spend a lot of time in my office trying to get family doctors 

for patients, dermatologists. It takes three months to see a dermatologist-- 

 MR. BURGESS. But would you have done that in Texas being there 

for three days? 

 DR. ALTMEYER. If I saw something on a patient’s shoulder that 

looked like cancer, I certainly would have told them that they have 

cancer and I also would give written notification of that, which I did 

routinely, to take to their own doctor. 

 MR. BURGESS. Let me just ask one more time to get it on the record. 

Did any law firm ever give you specific exposure criteria that you were 

to record? 

 DR. ALTMEYER. No. 

 MR. BURGESS. Thank you, Mr. Chairman. You have been generous. 

 MR. WHITFIELD. Thank you. I just have a couple more brief 

questions. Dr. Hilbun, when you were employed by N&M or under 

contract with N&M, did you ever prescribe the X-rays for the people 

who came in to have the X-rays? 

 DR. HILBUN. No, sir. 

 MR. WHITFIELD. And Dr. Altmeyer, did you ever prescribe the Xrays for the people who came in while you were working with RTS? 
279

 DR. ALTMEYER. Up until today, I would have said no but there is 

this one form in here that looks like I did and there may have been one 

time when I did. 

 MR. WHITFIELD. Which form was that? 

 DR. ALTMEYER. I think that is number--it was something at the 

beginning you were asking. I don’t recognize it but-- 

 MR. WHITFIELD. Number 5? You don’t remember that? 

 DR. ALTMEYER. I really don’t recall that but that is my signature 

and so there may have been one time when I did it. 

 MR. WHITFIELD. Okay. But you were not aware that that was 

something you normally did? 

 DR. ALTMEYER. I don’t normally do that and I am very surprised to 

see that. 

 MR. WHITFIELD. Okay. Were you ever asked to prescribe by RTS 

and refused to do so? 

 DR. ALTMEYER. Yes. 

 MR. WHITFIELD. Now, Ms. Brazell, you have heard and we have 

heard the testimony of the gentleman from the Texas regulatory body 

that a license was never issued to RTS to conduct these X-rays in Texas, 

and yet you probably also saw the invoice that RTS submitted to the law 

firm of Provost and Umphrey in Beaumont, Texas, in the amount of 

$50,150 for the days of June 23, 24, and 25, which was like two and a 

half months after you had submitted an application to be approved to 

take X-rays in Texas. 

 MS. BRAZELL. Where is that invoice? 

 MR. WHITFIELD. Tab 13. But, it looks very clear that you all were 

never licensed to do this in Texas. It was a violation of Texas rules and 

regulations and you all ignored that. Is that your conclusion that you 

come from having looked at this invoice that was sent out for tests in 

June 23, 24, and 25? 

 MS. BRAZELL. By the invoice, it looks like we were in Texas. 

 MR. WHITFIELD. Were you the road manager at that time? 

 MS. BRAZELL. I can’t specifically say that yes or no. 

 MR. WHITFIELD. Were you ever in Texas yourself taking X-rays 

with RTS? 

 MS. BRAZELL. I would say yes. 

 MR. WHITFIELD. And did you know that you were not licensed to do 

so? 

 MS. BRAZELL. No, sir. 

 MR. WHITFIELD. And who would have known that? 

 MS. BRAZELL. In order to take X-rays, that would-- 

 MR. WHITFIELD. Yes, I mean who is the head of the company? 
280

 MS. BRAZELL. Well, in order to know if we were licensed to take Xrays in a particular State, that would have been our X-ray technician to 

know if we were licensed or not. 

 MR. WHITFIELD. Well, I would think the president of the company 

would probably want to know that. 

 MS. BRAZELL. I can’t answer for him. 

 MR. WHITFIELD. Well, I think it is quite obvious you were not 

licensed to do so, you were doing so, you had a contract with law firms 

and you were paid to provide them with positive readings. 

I would also note that we want to keep this record open for 30 days. 

We want to move into the record the binder of documents from our 

March 8, 2006, hearing, and we would also like to include into the record 

the opening statements from anyone for today. 

 MR. BURGESS. Mr. Chairman, if I may just ask one follow-up 

question of Ms. Brazell on the issue of the licensing of the X-ray 

equipment. In Texas, it is my understanding that you do have to have a 

designated radiation safety officer in order to have that license so I 

assume you did not have that radiation safety officer as part of your road 

trip? 

 MS. BRAZELL. I am not aware of anything of that title. 

 MR. BURGESS. Was there a physician involved in the taking of the 

X-rays or was there a physician involved in the site? 

 MS. BRAZELL. Yes, sir. We always traveled with a physician. 

 MR. BURGESS. My understanding is that the physician involved can-

-in fact, that would be reason for loss of licensure. We could ask our 

friend from Texas if that is correct, but I know when we got radiology 

equipment in our office, we very much had to comply with those things. 

So that is again another reason why it is important that these State 

jurisdictions be followed because there are rules that are in place for a 

very good reason. 

 MS. BRAZELL. Yes, sir. 

 MR. BURGESS. Dr. Altmeyer, let me ask you one other question. In 

your regular practice you said it would be unusual for you to see a patient 

with silicosis? Did I understand that correctly? 

 DR. ALTMEYER. No, I do see patients with silicosis. I am in the area 

of the country where we have coal mines, foundries, steel mills, et cetera. 

I would say that the number of silicosis cases which I have seen since I 

went in practice in just purely pulmonary medicine in 1981 is decreasing 

and not only that, the profusion or the number of densities by the B 

reading scale has gone down, I think. I think any of the new patients 

which I may be seeing tend to have milder disease than patients who I 

saw when I first went into practice. 
281

 MR. BURGESS. Well, then did it strike you as odd that you had 50 

cases in Texas where we don’t have the same kind of mining activity? 

We strip-mine in Texas, we don’t go down into the ground. 

 DR. ALTMEYER. Well, of the cases in this MDL, those were B 

readings. They may subsequently turn out to be silicosis or not turn out 

to be silicosis. I mean, like I have tried to emphasize, you can’t make a 

diagnosis of silicosis. 

 MR. BURGESS. I am just concerned that no one, besides Judge Jack, 

ever blew the whistle that there was an epidemic of silicosis. Thank you, 

Mr. Chairman. 

 MR. WHITFIELD. Thank you. And so without objection, the record 

will be open for 30 days. The March 8, 2006, documents from that 

hearing will be inserted and the binder from this hearing and the opening 

statement, and with that, the hearing is concluded. Thank you. 

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 [Whereupon, at 4:35 p.m., the subcommittee was adjourned.] 
363

THE SILICOSIS STORY: MASS TORT 

SCREENING AND THE PUBLIC HEALTH 

WEDNESDAY, JULY 26, 2006 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON ENERGY AND COMMERCE, 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, 

Washington, DC. 

The subcommittee met, pursuant to call, at 2:06 p.m., in Room 2123 

of the Rayburn House Office Building, Hon. Ed Whitfield (Chairman) 

presiding. 

 Members present: Representatives Pickering, Bass, Walden, 

Burgess, Blackburn, Barton (ex officio), Stupak, DeGette, and Inslee. 

 Staff present: Mark Paoletta, Chief Counsel for Oversight and 

Investigations; Alan Slobodin, Deputy Chief Counsel for Oversight and 

Investigations; Andrew Snowdon, Counsel; Clayton Matheson, Research 

Assistant; John Halliwell, Policy Coordinator; Ryan Ambrose, 

Legislative Clerk; David Nelson, Minority Investigator/Economist; and 

Jonathan Brater, Minority Staff Assistant. 

 MR. WHITFIELD. This hearing will come to order. I want to thank 

all the witnesses for being with us today. This afternoon we convene the 

fourth day of hearings on public health issues raised by the practices of 

mass tort screenings. Today’s hearing will focus of the role and conduct 

of various law firms in the Federal silicosis multi-district litigation 

entitled “In re: Silica Products Liability Litigation.” 

 The evidence gathered by the committee in the form of records, 

interviews, and sworn testimony reveals that law firms, including at least 

some of those today appearing before us, orchestrated mass silicosis 

screenings largely because the asbestos well was running dry. These 

screenings were much less about medical care than they were about 

finding grist for the litigation mill. 

 Campbell, Cherry, for instance, sent letters to 18,000 to 20,000 of its 

existing asbestos clients, inviting them to be screened for silicosis, even 

though most experts agree that it would be rare for one individual to have 

both diseases. 

 The suspect nature of these mass tort claims can be seen in the 

comments of the lawyers themselves. Remarkably, when asked during a 

hearing in the silicosis MDL last year, why such a high percentage of his 

silicosis clients also had prior asbestos diagnoses, Richard Laminack of 
364

the O’Quinn firm responded that he doubted the validity of the prior 

asbestos claims. “I think the explanation on a lot of these cases is the 

asbestosis diagnosis is wrong.” Unfortunately for Mr. Laminack, at least 

several of these dubious asbestos diagnoses were issued by Dr. Ray 

Harron, the same doctor who issued the silicosis diagnosis. I wonder 

what Mr. Laminack would say about these silicosis diagnoses a few 

years down the road when they somehow conflicted with the newest 

mass tort disease. 

 To quote Judge Jack’s scathing opinion in the silicosis MDL, “And if 

the lawyers turned a blind eye to the mechanics of the scheme, each 

lawyer had to know that Mississippi was not experiencing the worst 

outbreak of silicosis in recorded history.” Each lawyer had to know that 

he or she was filing at least some claims that falsely alleged silicosis. 

And yet, once the lawyers got the ball rolling they abdicated 

responsibility for the health and welfare of those being tested. The 

lawyers did very little to ensure that the screening companies or doctors 

were properly licensed, and as we heard during our last hearing, a large 

number of screenings conducted by N&M and RTS, two of the major 

players in the silicosis MDL, violated State laws and regulations. 

Moreover, most of the lawyers apparently made little, if any, effort to 

follow up with their clients, many of whom were relatively uneducated 

and had limited access to doctors, to ensure that they were getting 

appropriate medical care. One of the real tragedies of litigation based on 

mass tort screenings is that those who are truly sick can get lost in the 

shuffle. 

 Intent on generating hundreds, if not thousands of plaintiffs, 

screening doctors and lawyers often do not give adequate attention to 

those that need it the most. While some firms, such as Luckey and 

Mullins, seem to have demonstrated genuine concern for those they were 

representing, this appears to have been the exception rather than the rule. 

 This investigation has utilized the silicosis MDL in the Southern 

District of Texas as a case study; however, the problems of mass tort 

screenings are by no means limited to one case or one State, or even one 

disease. Even after Judge Jack’s opinion and the committee’s 

investigation, silicosis cases continued to proliferate, many even 

involving the same doctors and screening companies whose conduct had 

been so thoroughly discredited. 

 I am familiar with several cases, for example, in Illinois and West 

Virginia, and I would like to read a passage from a report prepared 

several years ago by former U.S. Attorney General Griffin Bell. “Many 

cases supported only with X-ray interpretations are generated through 

mass litigation screenings and mobile X-ray vans. The purpose of these 

screenings often is to generate lawsuits, not to provide screened 
365

claimants with medical treatment or advice. These mass screenings often 

are not attended or supervised by a physician, nor do the physicians 

typically prescribe the X-rays for claimants or report the screening 

results to the claimant. Many screened workers never even speak with a 

doctor, much less meet one in person, or benefit from a physical 

examination.” While Judge Bell was actually referring to conduct in 

asbestos litigation, he does parallel with what went on in this silicosis 

MDL. As with asbestosis, silicosis litigation will ultimately run its 

course. But unless some meaningful changes are made, we will 

undoubtedly be confronted down the road with the same abuses in the 

context of a different disease. 

 One proposal put forth by Judge Bell that I would like to explore 

today is the use of neutral independent physician panels to review X-rays 

and make proper medical diagnoses. Such panels would go a long way 

toward producing accurate diagnoses, weeding out frivolous claims, and 

preventing mass tort litigation from devolving into a battle of experts. 

 I want to thank all of the witnesses here today, particularly Mr. 

Laminack, who is making a valiant effort to participate by video 

teleconferencing under difficult circumstances. I also want to emphasize 

that this committee has unfinished business with Heath Mason and he is 

sorely mistaken if he thinks he can continue to avoid service. 

 [The prepared statement of Hon. Ed Whitfield follows:] 

PREPARED STATEMENT OF THE HON. ED WHITFIELD, CHAIRMAN, SUBCOMMITTEE ON 

OVERSIGHT AND INVESTIGATIONS

This afternoon we convene the fourth day of hearings on the important public health 

issues raised by the practice of mass tort screening. Today’s hearing will focus on the 

role and conduct of several law firms in the federal silicosis multi-district litigation, 

entitled In Re: Silica Products Liability Litigation. 

The evidence gathered by this Committee, in the form of records, interviews, and 

sworn testimony, reveals that law firms, including at least some of those before us today, 

orchestrated mass silicosis screenings largely because the asbestos well was running dry. 

These screenings were much less about medical care than they were about finding grist 

for the litigation mill. 

Campbell Cherry, for instance, sent letters to 18,000 to 20,000 of its existing 

asbestos clients inviting them to be screened for silicosis, even though most experts agree 

that it would be rare for one individual to have both diseases. 

The suspect nature of these mass tort claims can be seen in the comments of the 

lawyers themselves. Remarkably, when asked during a hearing in the silicosis MDL last 

year why such a high percentage of his silicosis clients also had prior asbestos diagnoses, 

Richard Laminack of the O’Quinn firm responded that he doubted the validity of the 

prior asbestos claims: “I think the explanation on a lot of these cases is the asbestosis 

diagnosis is wrong.” Unfortunately for Mr. Laminack, at least several of these dubious 

asbestos diagnoses were issued by Dr. Ray Harron -- the same doctor who issued the 

silicosis diagnoses. I wonder what Mr. Laminack would say about these silicosis 

diagnoses a few years down the road if they somehow conflicted with the newest mass 

tort disease? 
366

To quote Judge Jack’s scathing opinion in the silicosis MDL: “And if the lawyers 

turned a blind eye to the mechanics of the scheme, each lawyer had to know that 

Mississippi was not experiencing the worst outbreak of silicosis in recorded history. Each 

lawyer had to know that he or she was filing at least some claims that falsely alleged 

silicosis.” 

And yet once the lawyers got the proverbial ball rolling, they abdicated 

responsibility for the health and welfare of those being tested. The lawyers did very 

little to ensure that the screening companies or doctors were properly licensed, and, as we 

heard during our last hearing, a large number of screenings conducted by N&M and RTS 

-- two of the major players in the silicosis MDL -- violated various state laws and 

regulations. 

Moreover, most of the lawyers apparently made little, if any, effort to follow up with 

their clients -- many of whom were relatively uneducated and had limited access to 

doctors -- to ensure that they were getting appropriate medical care. One of the real 

tragedies of litigation based on mass tort screenings is that those who are truly sick can 

get lost in the shuffle. Intent on generating hundreds, if not thousands, of plaintiffs, 

screening doctors and lawyers often don’t give adequate attention to those who need it 

the most. While some firms, such as Luckey & Mullins, seem to have demonstrated 

genuine concern for those they were representing, this appears to have been the exception 

rather than the rule. 

This investigation has utilized the silicosis MDL in the Southern District of Texas as 

a case study. However, the problems of mass tort screenings are by no means limited to 

one case, or one state, or even one disease. Even after Judge Jack’s opinion and the 

Committee’s investigation, silicosis cases continue to proliferate, many even involving 

the same doctors and screening companies whose conduct has been so thoroughly 

discredited. I am particularly familiar with several cases in Illinois and West Virginia. 

I would like to read a passage from a report prepared several years ago by former 

United States Attorney General Griffin Bell: 

Many [ ] cases supported only with X-ray interpretations are generated through 

mass litigation screenings in mobile x-ray vans. The purpose of these screenings 

often is to generate lawsuits, not to provide screened claimants with medical 

treatment or advice. These mass screenings often are not attended or supervised by 

a physician, nor do the physicians typically prescribe the X-rays for claimants or 

report the screening results to the claimant. Many screened workers never even 

speak with a doctor, much less meet one in person or benefit from a physical 

examination.” 

While Judge Bell was actually referring to conduct in asbestos litigation, the 

parallels to what went on in the silicosis MDL are striking. As with asbestos, silicosis 

litigation will ultimately run its course, but unless some meaningful changes are made, 

we will undoubtedly be confronted down the road with the same abuses in the context of 

a different disease. At the very least, I hope that Judge Jack’s opinion, and this 

Committee’s investigation, will encourage other judges around the country, both state 

and federal, to give their mass tort dockets greater scrutiny. 

One proposal put forth by Judge Bell that I would like to explore today is the use of 

neutral, independent physician panels to review x-rays and make proper medical 

diagnoses. Such panels would go a long way towards producing accurate diagnoses, 

weeding out frivolous claims, and preventing mass tort litigation from devolving into a 

battle of experts. 

I would like to thank all of the witnesses here today, particularly Mr. Laminack, 

who is making a valiant effort to participate via video teleconference under difficult 

circumstances. I also want to emphasize that this Committee has some unfinished 
367

business with Heath Mason, and if he thinks that he can continue to avoid service, he is 

sorely mistaken. 

With that, I yield to the Ranking Member of this Subcommittee, Mr. Stupak. 

 MR. WHITFIELD. With that, I would like to yield to the Ranking 

Member of the subcommittee, Mr. Stupak of Michigan. 

 MR. STUPAK. Thank you, Mr. Chairman, and first of all, I would 

like to enter into the record the statement of the Honorable John Dingell. 

 MR. WHITFIELD. Without objection. 

 [The prepared statement of Hon. John D. Dingell follows:] 

PREPARED STATEMENT OF THE HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF MICHIGAN

 This Subcommittee has spent much time on this narrow public health issue, yet other 

major public health issues also require our attention. So I join the rest of my Democratic 

colleagues in questioning whether this investigation is the best use of the Subcommittee’s 

limited time and resources. You, however, have conducted this inquiry with fairness and 

we have supported each of the procedural steps that you and Chairman Barton have taken 

to acquire the documents and testimony necessary to this investigation. 

 It is the responsibility of the Chair to protect the rights of the Congress to acquire the 

information necessary to promulgation of just and effective laws and the oversight of 

their proper administration. With that, responsibility comes a certain amount of 

discretion regarding the conduct of inquires such as the one we are engaged in today. If 

documents are needed, then the Committee should have them. 

 Among the prerogatives of the Chair is the discretion to decide what documents and 

testimony are necessary. This discretion includes whether or not to honor a claim of 

attorney/client privilege, a privilege that may apply in courts of law but not automatically 

in Congress. 

 If the subjects of our inquiries find our requests are truly burdensome or problematic 

then those concerns should be addressed. However, making overly imaginative claims of 

privilege, refusing to discuss those claims, providing inadequate privilege logs and/or 

failing to conduct adequate searches suggests that someone is choosing to pick a fight. 

 Mr. Chairman, you have the discretion as to how you and Chairman Barton want to 

proceed. And you will have my support in upholding the right of the Committee obtain 

information needed to conduct a proper inquiry. 

 MR. STUPAK. Thank you, Mr. Chairman. Thankfully and hopefully 

this will be our last hearing on the silicosis issue. I understand that we 

still have a person dodging our subpoena and I am sure we will deal with 

that in due time. 

 As this series of hearings draws to a close, I have four observations I 

believe my fellow Democrats share. The first is that this inquiry has 

been conducted fairly, as is your usual practice, Mr. Chairman. 

Accordingly, you have had our support on all procedural issues. 

 The second is that these hearings were unnecessary and consumed a 

lot of time and resources that would have been better expended on the 

issues that trouble Americans and that lend themselves to a legislative 

solution. I will return to this point shortly. 
368

 Thirdly, whereas this investigation was conducted fairly, that does 

not mean it was unbiased. While the problems with the silica litigation 

uncovered by Judge Jack spoke to possible mischief on the plaintiff’s 

side, her opinion in this investigation ignored equally troubling behavior 

on the defense bar, the expert B readers used by the defendants, breaches 

in both legal and medical ethics by professionals in the pay of the 

insurance companies, and producers of asbestosis and silica products. 

 Finally, and perhaps most importantly, this inquiry into the public 

health consequences of silica litigation has never attempted to look at the 

human health costs of occupational exposure to silica dust. This inquiry, 

the jurisdictional basis of which is the impact on public health, has never 

even been raised or ever raised a question of the toxic effects of silica 

exposure, much less examine whether silica exposure is adequately 

regulated. 

 Mr. Chairman, you mentioned the Honorable Griffin Bell, former 

Judge and Attorney General of the United States. Let me also quote 

from Judge Bell. “And who writes for a legal think tank dominated by 

corporate lawyers has acknowledged that the Courts retained the power 

to correct any procedural injustices in mass torts litigation.” Judge Bell 

is incorrect in his dismissal of the usefulness of mass tort screening. Dr. 

Laura Welch, in our first hearing, one of our first witnesses, told us how 

mass medical screenings ought to be done. None of the problems that 

Judge Jack discovered and that have been laid out in these hearings 

would have occurred if the silica screeners had employed the testing 

model Dr. Welch employed while overseeing the testing of 115,000 sheet 

metal workers. Judge Bell also notes, and I quote, “The risk of 

exaggerated claims of asbestos disease by plaintiff physicians or 

understated claims of disease by defendant physicians have been 

sufficiently documented in the Manvel and Attire Workers Medical 

Audits to warn concern about the objectivity of paid medical experts in 

asbestos litigation.” Judge Bell argues that if the courts were truly 

interested in dealing with the problematic testimony given in cases like 

asbestos, they would make use of neutral physician panels to review the 

X-rays and make proper medical diagnoses. 

 Mr. Chairman, we have heard no testimony, nor has the Majority 

made any request for documents relating to the B readers of defense 

experts. We have taken the plaintiff’s bar to task for doctors that do not 

feel an obligation to the patients that they test for litigation purposes; 

however, no one from the defense bar has been called to account for the 

failure of their experts to acknowledge disease where it is, in fact, 

present. Nor has the Majority inquired of the company’s doctors that 

report findings to the company but not to the workers, their patients. Of 

course, if medical doctors make diagnoses based on personal financial 
369

interest rather than the well-being of patients, the State Medical Boards 

should take appropriate disciplinary action. 

 Mr. Chairman, I ask that the portion of OSHA’s current regulatory 

agenda relating to silica exposure be placed in the record. This is the 

Administration’s analysis of occupational exposure to silica, and here is 

what the Bush Administration says, and I quote, “The seriousness of the 

health hazards associated with silica exposure is demonstrated by the 

fatalities and disabling illnesses that continue to occur. Between 1990 

and 1996, 200 to 300 deaths per year are known to have occurred where 

silicosis was identified on death certificates as the underlying or 

contributing cause of death. It is likely that many more cases have 

occurred where silicosis went undetected.” The Administration goes on 

to assert that silica has been responsible for increased risk of TB, cancer, 

renal and autoimmune disease, as well as non-malignant respiratory 

diseases, i.e., silicosis, and that workers continue to be exposed to a level 

of silica far in excess of current exposure limits. 

 After noting the inadequacy of the current standard in measurement 

techniques, the Bush Administration goes on to make a preliminary 

determination that “Workers are exposed to significant risk of silicosis 

and other serious disease, and that rulemaking is needed to substantially 

reduce that risk.” Yet, the Administration has let 5-1⁄2 years pass without 

undertaking any rulemaking, just as this committee has had four days of 

hearings into public health problems associated with silica litigation, but 

has chosen not to explore the public health risks associated with actual 

exposure of people to silica. 

 Mr. Chairman, I repeat my annoyance with these silicosis hearings. I 

believe it is past time to move beyond this issue. There are many targets 

of this subcommittee’s attention that would be far more likely to make a 

positive impact on public health. 

 Thank you, Mr. Chairman. 

 MR. WHITFIELD. Thank you, Mr. Stupak. 

 At this time, I recognize Mrs. Blackburn of Tennessee. 

 MRS. BLACKBURN. Thank you, Mr. Chairman. I want to thank you 

for your continuing work on the hearings, and I want to thank all of our 

witnesses for being here with us today. 

 As you can see, we are all learning a good bit about silicosis and 

asbestosis through this series of hearings, and from the information that I 

have heard at some of these hearings, I believe that we, unfortunately, 

have some lawyers and some doctors who are or have chosen to engage 

in some unethical and possibly liable behavior through conducting the 

type of mass tort screenings that this committee has been examining. 

 It is the type of actions that I have just mentioned that are driving up 

the cost of medical malpractice insurance and healthcare, and many of 
370

the doctors in my State and across this Nation are very concerned about 

how this impacts their professions and their businesses. We have 

constituents who are quite concerned about how it impacts their access to 

healthcare and the delivery of healthcare in their areas. 

 Today’s witnesses are going to testify to their conduct in the silicosis 

litigation, and I am looking forward to hearing the responses and then 

how they are going to address the situation, and the questions that we 

have for each of you. 

 But I found some very disconcerting circumstances in the MDL case. 

First, it appears that one law firm only paid for positive diagnoses and 

expected the medical screening company to pay the doctors for negative 

test results. This looks a lot like an incentive to create litigation, and that 

is of concern. 

 Second, from the testimony given to this committee, many lawyers 

that are appearing before the committee state, and I am quoting, 

“understandings” between them and the medical screening companies on 

use of qualified physicians. I want to know how the lawyers came to 

these, and again I quote, “understandings.” 

 Also, I want the lawyers to expound to this committee on the rules of 

professional conduct. The rule for misconduct seems to apply to many 

of the attorneys in this case, especially in the use of unreliable testimony 

to deceive the court and their clients. The doctors who testified before 

this committee in June said that many of the doctors involved in the 

MDL case violated medical ethics and that there is significant evidence 

for malpractice. Some of them were also lawyers, and stated that the 

procedures in the cases violated the attorney ethics rules. I want to know 

what the witnesses think of these testimonies, and how it affects these 

cases. 

 Mr. Chairman, again, I thank you for your diligence. I thank the 

staff for their work on the issue. I thank you for the hearing today, and I 

am going to yield back the balance of my time so that we can move to 

the witnesses. 

 MR. WHITFIELD. Thank you, Mrs. Blackburn. 

 At this time, I recognize the gentleman from Washington, Mr. Inslee. 

 MR. INSLEE. Just briefly, I would just say that it has been my 

experience that this Congress typically is just interested in one side of the 

story, and I think that has been the case in this series of hearings in the 

respect that our litigation system is not perfect, but I think it would be 

interesting to look at some of the issues regarding some of the defense 

practices associated with some of these mass torts, as well as on the 

plaintiff’s side. I think we would find interesting issues on both sides, 

but that is not the way this Congress works. 
371

 I also note that there may be two things, health and money, and we 

are talking about money here rather than health, which is also the way 

this Congress works, which is instead of having hearings about increased 

neurological effects of mercury caused by coming out of the use of coal, 

particulate matter coming out of the use of diesels, silicosis caused by 

exposure to silicon, instead of trying to deal with issues that actually help 

Americans’ health, that is not the way this Congress works. We will deal 

with other issues. I think it is very regrettable, because we have a 

situation right now, it is not just workers exposed to silicosis, it is 

workers and non-workers and retired people exposed to all types of 

toxins. The way this Congress works is to expose Americans to more 

toxins: more arsenic in our water, more silt in our air, more mercury in 

our fish, because the way this Congress works is it deals with money, not 

health. These hearings in part are a continuation of that tradition. And 

while I think there are some legitimate issues that need inquiry in this 

situation involving mass tort litigation, I also believe it is a dereliction of 

our committee’s responsibilities not to deal with the defense aspects of 

how to handle these cases where there are all kinds of legitimate issues, 

nor to deal with the health ramifications of the toxins that are being put 

in our air because the way this Congress works is to protect the industries 

that are putting them in the air. 

 So as always, I look forward to this hearing, and the chair has always 

acted fairly to both sides during these hearings, and I commend his work 

in that regard, but I think it is disappointing that we have not taken the 

other part of our responsibilities seriously. Thank you. 

 MR. WHITFIELD. Thank you. 

 At this time, I recognize the Chairman of Energy and Commerce 

Committee, Mr. Barton of Texas. 

 CHAIRMAN BARTON. Thank you, Mr. Chairman. I appreciate you 

holding this hearing. Although the subject matter is serious and 

somewhat complicated, I welcome our witnesses, most of whom come 

from my home State of Texas, and one of whom comes from the town I 

was born in, Waco, Texas, Mr. Davis. We welcome you before the 

committee. 

 This is our fourth hearing on the public health implications of mass 

tort screenings. Today, we are finally going to get to examine the role of 

a key set of players in this issue, the attorneys who orchestrated the Xray screenings of tens of thousands of people, apparently in their search 

for profitable clients to fuel a silicosis litigation machine. I look forward 

to hearing what they have to say, especially what, if anything, they have 

done to actually help the people who they searched out to become 

diagnosed with a fatal disease through these screenings that they 

sponsored. I am very interested to hear if the firms have done anything 
372

to help their clients, many of whom are not highly educated and have 

limited access to regular medical care, to get any kind of follow-up care 

at all once they were diagnosed as having silicosis, which is a very 

serious disease. I fear the answer is going to be they haven’t done 

anything. If they have, we have not been able to determine that in our 

staff investigation. It sure appears that once the clients signed on to the 

bottom line, they became just a part of that particular lawsuit’s inventory. 

That is really a shame if that is realy what has happened. 

 I want to mention an issue that gives me great concern, in addition to 

what I just said. We had hoped to have a number of individuals here 

today who actually have been diagnosed through these screening 

processes as having silicosis. We wanted to hear from them firsthand 

what they experienced, what they were told, how they felt about it, what 

is being done to help them in the present. Unfortunately, the law firms 

before us that represent most of those folks haven’t been real helpful in 

making that happen. They have refused repeated requests from the staff 

for interviews with the plaintiffs on the grounds of attorney/client 

privilege. To be fair, one of the law firms, the O’Quinn firm, did make 

some effort to facilitate a few interviews, but the rest of the law firms 

have not. The firms declined to even ask their clients if they would be 

willing to talk to us and perhaps waive attorney/client privilege. We 

have made it clear at the staff level that there are numerous questions 

which would be posed without treading on any privileged information. 

An example of a question that we would hope to ask some of the 

plaintiffs was, was there really a doctor present at the screening? Who 

took your work history? How did you first learn that you might have 

silicosis? Did anyone present discuss with you where and how to obtain 

follow-up medical treatment? Those aren’t privileged information, those 

are just basic questions. These questions are critical for understanding 

how the process unfolds, and whether patient interests were put first. 

 The law firms before us don’t want their clients to answer questions 

like that, so they have invoked an attorney/client privilege, which is their 

right under the Constitution. It sure looks like a smokescreen to me, 

though. I find the prospect particularly repugnant given that this is a 

public health issue and because so many others with knowledge of these 

practices in this investigation have asserted their Fifth Amendment right 

against self-incrimination and declined to testify. Using a highly, in my 

opinion, dubious application of attorney/client privilege to hide the truth 

doesn’t serve the client’s interest, and it certainly doesn’t serve the 

public’s interest to know. 

 Mr. Chairman, at the end of the day, we have been seeking to ensure 

that the patients’ interests are put back at the center of the mass screening 

process. Silicosis is a dangerous disease. People that really have the 
373

disease deserve to be treated in a compassionate and humane fashion. 

This is not only a matter of protecting public health, it is a matter of 

fairness to those with a pressing need for medical care, as well as those 

with legitimate claims for redress of their grievances in court. It doesn’t 

appear to me that the law firms before us today have served that purpose 

very well. 

 With that, Mr. Chairman, I yield back. 

 [The prepared statement of Hon. Joe Barton follows:] 

PREPARED STATEMENT OF THE HON. JOE BARTON, CHAIRMAN, COMMITTEE ON ENERGY 

AND COMMERCE

Thank you, Chairman Whitfield for this fourth hearing on the public health 

implications of mass tort screenings. Today we will finally examine the role of a key set 

of players in this troubling case study: the attorneys who orchestrated x-ray screenings of 

tens of thousands of people in their search for profitable clients to fuel the silicosis 

litigation machine. 

I look forward to learning what these law firms did to help those people who had 

been diagnosed with a fatal disease through screenings that they sponsored. Specifically, 

I want to hear what the firms did to ensure that their clients -- many of whom were not 

highly educated and had limited access to regular medical care -- received appropriate 

follow-up care. I fear that the answer is that they did nothing. It looks like once clients 

signed on the bottom line, they stopped being sick people and became just part of the 

firm’s “inventory.” That’s the ultimate shame in a business that invented ways to be 

shameful. 

I would also like to mention an issue in this investigation that gives me great 

concern. We had hoped to have several individuals here today who actually went 

through the screening process so that we could hear first-hand what they experienced, 

what they were told, and how they felt about it. Unfortunately, the law firms representing 

these folks must have thought that wasn’t helpful to their cause. They refused repeated 

requests from the staff for interviews with the plaintiffs on the grounds of attorney-client 

privilege. To be fair, the O’Quinn firm did make some effort to facilitate a few such 

interviews, but Campbell Cherry and others did not. 

 These firms declined even to ask their clients if they would be willing to waive 

attorney-client privilege. Furthermore, we made it clear that there were numerous 

relevant questions that could be posed without treading on privileged information, such 

as: (1) “was a doctor present at the screening?” (2) “who took your work history?” (3) 

“how did you first learn that you might have silicosis?” and (4) “did anyone discuss with 

you where and how to obtain follow-up medical treatment?” These questions are critical 

for understanding how this process unfolded and whether patient interests were put first. 

Evidently, the law firms don’t want their clients to talk. 

These firms are misusing the attorney-client privilege as a smokescreen to protect 

themselves. I find this prospect particularly repugnant given the public health issues 

involved here and because so many others with knowledge of these practices have 

asserted their Fifth Amendment rights against self-incrimination and declined to testify. 

Using a highly dubious application of attorney-client privilege to hide an ugly truth 

doesn’t serve the clients’ interests, and certainly does not serve the public interest. 

 Mr. Chairman, at the end of the day, we have been seeking to ensure that patients’ 

interests are put back at the center of the mass screening process. This not only is a 

matter of protecting public health, it is also a matter of fairness to those who have a 
374

pressing need for medical care, as well as those with legitimate claims for redress of their 

grievances in court. 

 MR. WHITFIELD. Thank you, Mr. Chairman. 

 At this time, I recognize Ms. DeGette of Colorado. 

 MS. DEGETTE. Thank you, Mr. Chairman. I share Mr. Stupak’s 

confusion about exactly why this committee has spent so many hours on 

this issue of the silicosis suits. I, too, think it is a terrible thing what 

happened in these cases, and the thing I worry the most about is some of 

these patients who had a positive diagnosis, and at least according to our 

prior hearings on this issue, had no follow-up to let them know that there 

was a diagnosis that they had a fatal disease. I would be interested to 

hear about that from the panel. 

 The thing that perplexes me is--and I think this was sort of a low 

point in a profession that I called myself a proud member of for 15 years 

when I practiced law in Denver. I clearly, like everyone else on this 

panel, do not think people should be ginning up lawsuits just for 

litigation. I don’t think doctors should be screening patients without 

actually ever seeing them or knowing their health history. I don’t think 

lawyers should be filing lawsuits and then not following up with their 

clients. The thing that perplexes me is it seems to me that the judicial 

process worked in this case because Judge Jack was able to take a look at 

these approximately 10,000 claims and say that really there was no 

bonafide lawsuit here. So I think that the system worked, and I am not 

really sure what kind of public policy reason there would be to have all 

of these hearings. I don’t see the Oversight and Investigations 

Committee of the U.S. Congress as the uber legal or medical ethics 

panel, and I think these issues will be and are being resolved in other 

venues. 

 So as I say, it was a sad day for the legal system and for the patients. 

I think it is a shame on the medical profession for some of these doctors 

who were making these diagnoses in the way they were, and I think a lot 

of people abrogated their duties to their clients and to their patients. But 

having said that, I really don’t know what the long-term impact of these 

hearings will be. 

 And at that, I will yield back. 

 MR. WHITFIELD. Thank you, Ms. DeGette. 

 At this time, I recognize Dr. Burgess of Texas. 

 MR. BURGESS. Thank you, Mr. Chairman. I appreciate the 

continued hearings into what I consider a very important matter. The 

Chairman already has alluded to it. This is the most troubling aspect; 

this is the very human aspect, the failure to follow-up, the failure to 

ensure continuity of care. Well, today we continue to address the serious 

allegations concerning silicosis and the mass tort screenings. Our past 
375

hearings have focused on doctors and mass screening companies. Today, 

we will look at the attorneys that were involved. It was Judge Jack who 

mentioned, and I quote, “These diagnoses were about litigation rather 

than healthcare.” She further went on to say “They were driven by 

neither health nor justice, but were manufactured for money.” 

 While the legal cases were about money, let me remind you that you, 

the plaintiffs attorneys, you are supposed to be looking out for the little 

guy. That is what we always hear. That is whose side you are on. Let 

us talk for just a minute on what true silicosis medical cases are all about. 

Silicosis is a serious occupational hazard. The most recent edition of 

Harrison’s Principles of Internal Medicine describes the disease as one 

which may become rapidly fatal in less than 2 years. 

 This isn’t just about taking a snapshot and getting an X-ray that has 

an abnormality that we can then walk away from. What happens to these 

abnormalities over time? Well, recall from our previous testimony from 

the doctors, the chest X-ray is taken and it may show some rather typical 

calcifications of hyler nodes, but then Harrison’s goes on to say this 

nodular fibrosis may be progressive in the absence of further exposure. 

That is, the guy doesn’t work in the sandblasting factory anymore. You 

don’t tell that he has got the disease. He is not working there anymore. 

He thinks it is over, because after all, he had an X-ray, someone looked 

at it, and didn’t recommend any further therapy. Harrison’s goes on to 

say “These masses can become quite large and are characteristic of 

progressive passive fibrosis. Significant functional impairment with both 

restrictive and obstructive components may be associated with this form 

of silicosis. In the late stages of the disease, ventilatory failure may 

develop.” I think we would all agree, that is a serious projectory that 

some of these patients may have been set upon, and I will again ask the 

questions that were asked by our Chairman. Were these patients referred 

to a specialist? Were they referred back to their primary doctor? Were 

they followed in any way? How were they treated? 

 Well, we have a panel of lawyers here today, and counselors, I think 

you understand that silicosis is a very serious and real ailment. To fund 

the mass screenings and the diagnoses of cases without any follow-up for 

these patients is the personification of unethical behavior. As an 

attorney, you have a fiduciary duty to your client, and surely, this 

extends to ensuring that your clients that were diagnosed in these mass 

tort screenings are seeking appropriate medical treatment. 

 Many of you are from my home State of Texas. In Texas, you took 

an oath of office when you began your practice of law, and when you 

took that oath to practice in Texas, you solemnly swore to discharge your 

duties to your clients to the best of your abilities. How can this not 
376

include making certain that your clients were getting treatment for such a 

serious disease, a disease that you paid to diagnose for them? 

 Mr. Chairman, I look forward to hearing the answers to these serious 

questions. Once again, thank you for holding this hearing. In the interest 

of time, I will yield back. 

 MR. WHITFIELD. Thank you, Dr. Burgess. 

 I think that concludes the opening statements, so at this point, I 

would like to introduce the first panel. On the first panel, we have Mr. 

Billy Davis with Campbell, Cherry, Harrison, Davis, & Dove Law Firm 

out of Waco, Texas; we have Mr. Abel Manji with the O’Quinn Law 

Firm in Houston, Texas; we have Mr. Joseph Gibson, the Law Office of 

Joseph Gibson in Houston, Texas; we have Mr. Jim Zadeh with the 

Zadeh Law Firm in Fort Worth, Texas; we have Mr. John Fabry with the 

Williams Bailey Law Firm in Houston, Texas; we have Mr. Steven 

Mullins with Luckey and Mullins in Ocean Spring, Mississippi; and then 

we have Mr. Alwyn Luckey with Luckey and Mullins in Ocean Springs, 

Mississippi; and then we have Mr. Richard Laminack with Laminack, 

Pirtle, and Martines of Houston, Texas, who is with us by video 

teleconference. As I stated in my opening statement, Dr. Laminack, we 

genuinely appreciate your being with us today and realize that you are at 

a health center at M.D. Anderson, I believe. 

 So as you know, this is an Oversight and Investigations 

Subcommittee hearing, and it is our policy to take testimony under oath. 

I would ask any of you if you have any objection or difficulty testifying 

under oath. You also, under the Rules of the House and rules of this 

committee are entitled to legal counsel. Do any of you have legal 

counsel with you today? Okay. Mr. Davis, would you introduce your 

legal counsel? 

 MR. DAVIS. Mr. Brown. 

 MR. WHITFIELD. Mr. Brown, thank you. And Mr. Gibson, did you-- 

 MR. GIBSON. Mr. Steve Gordon. 

 MR. WHITFIELD. Mr. Steve Gordon, thank you. Mr. Manji, did you? 

 MR. MANJI. Yes, I have Patrick Bonz. 

 MR. WHITFIELD. Pat Bonz, okay. Thank you. Mr. Zadeh? 

 MR. ZADEH. Stan Brown and Andy Herman. 

 MR. WHITFIELD. Stan Brown, okay. Mr. Fabry? 

 MR. FABRY. Stanley Brown and Andrew Herman, and for the 

record, my name is pronounced Fabry, Mr. Chairman. 

 MR. WHITFIELD. Thank you. I always have difficulty with names. 

Thank you. 

 MR. FABRY. Thank you. 

 MR. WHITFIELD. Mr. Mullins? 

 MR. MULLINS. No. 
377

 MR. WHITFIELD. Mr. Luckey? 

 MR. LUCKEY. No, we are not represented by counsel. 

 MR. WHITFIELD. All right. And Mr. Laminack, I am assuming that 

you do not have legal counsel either. Is that correct? 

 MR. LAMINACK. It is not correct. I am represented by Pat Bonz, Mr. 

Chairman. 

 MR. WHITFIELD. Pat Bonz, okay. 

 Well, at this time I would ask the members of the panel, the ones 

who will be giving the openings statements if you would rise and raise 

your right hand. I would like to swear you in. 

 [Witnesses sworn] 

 MR. WHITFIELD. Thank you very much. All of you are under oath 

now, and so at this time I would recognize Mr. Davis for his opening 

statement. 

TESTIMONIES OF BILLY DAVIS, ESQ., CAMPBELL, CHERRY, 

HARRISON, DAVIS & DOVE; ABEL K. MANJI, ESQ., THE 

O’QUINN LAW FIRM; JOSEPH V. GIBSON, ESQ., LAW 

OFFICE OF JOSEPH V. GIBSON, P.C.; ALWYN H. 

LUCKEY, ESQ., LUCKEY & MULLINS PLLC; AND 

RICHARD N. LAMINACK, LAMINACK, PIRTLE, AND 

MARTINES 

MR. DAVIS. Good afternoon, Chairman Whitfield, Ranking Member 

Stupak, and members of this subcommittee. My name is Billy Davis and 

I am a shareholder in the law firm of Campbell, Cherry, Harrison, Davis, 

& Dove, and I am here today testifying on behalf of their firm. 

 In 2000 and 2001, some of our firm’s previous and current clients, 

including asbestos clients, began contacting our firm, asking if we were 

representing individuals in silica litigation. In response to inquiries from 

many of our clients, the firm sent a letter to many of its current and 

former clients concerning silica exposure and silicosis. The firm notified 

its clients to call N&M, an experienced Mississippi medical screening 

company, to set up a medical screening if they felt like they had a silica 

claim. It was up to the individual to determine if he had been exposed to 

silica and wanted to be tested. If so, that individual would engage N&M 

to perform the medical screening. It was then up to the doctors hired by 

N&M to determine if the individual had a silica-related injury. Generally 

only after that happened did our firm accept representation of the 

individual for a silica claim and advance that client’s costs to N&M for 

the medical screen. 

 For substantially all of our firm’s clients, our firm had a reasonable 

basis for believing that its plaintiffs had a bonafide claim for silicosis 
378

before it ever accepted them as silica clients, and before suit was filed on 

their behalf. 

 First, our firm required that its potential clients have at least 2 years 

of occupational exposure prior to 1980. N&M established that the firm’s 

potential clients met this exposure even before they came to the medical 

screen, and then again at the medical screen. 

 Second, after the requisite silica exposure history was verified, 

N&M’s qualified technicians performed a new chest X-ray on each 

potential client. The X-ray was then read onsite by a NIOSH-certified Breader physician hired by N&M to determine if the X-ray showed 

radiographic changes consistent with silicosis. 

 Third, if the NIOSH-certified B-reader physician found the X-ray 

showed radiographic changes consistent with silicosis, a qualified 

physician onsite, hired by N&M, would take a medical history and 

perform a target physical examination. Based on the exposure history, 

the X-ray findings, the medical history, and the physical exam, the 

NIOSH-certified B-reader physician hired by N&M would make a 

diagnosis. If the diagnosis was silicosis, the doctor would communicate 

that to the potential client in person at the screen. 

 Fourth, potential clients diagnosed with silicosis were sent to 

perform pulmonary function tests administered by N&M’s qualified 

technicians. 

 Generally, all of these steps occurred before the potential client ever 

met with any representative of our firm and before they became a silica 

client of our firm. As a general rule, the firm did not file suit for these 

clients until our firm had received a second positive X-ray finding and a 

second diagnosis of silicosis for the potential client. For substantially all 

of the firm’s silicosis clients, the firm required N&M to obtain a second 

positive X-ray reading from a NIOSH-certified B-reader physician and a 

second diagnosis of silicosis by a second qualified physician. This 

conservative practice of having two diagnoses for each client before 

filing suit has been used by our firm in its asbestos litigation long before 

it started representing silica complainants. 

 Medical experts recognize that individuals may contract both 

asbestosis and silicosis. Some of the industries that NIOSH has 

recognized as having both asbestos and silica exposure include abrasive 

blasting, foundry work, drywall hanging, automotive repair, construction, 

and pottery. Many of our firm’s asbestos clients worked in industries in 

which they were exposed to both silica and asbestos, or worked in 

different industries in which they were exposed to asbestos in one 

industry and silica in another. Less than one out of five of our firm’s 

asbestos clients were diagnosed with silicosis, but those individuals were 

diagnosed by two separate doctors. 
379

 This fact in no way supports an inference that these clients do not 

have silicosis or that our firm’s representation of these individuals is 

improper. We believe that our firm required and relied upon more 

extensive criteria to screen for silicosis than did others. For substantially 

all of our firm’s silica plaintiffs, prior to the filing of silica claims, the 

firm had evidence of at least 2 years occupational exposure to silica, 

current X-rays read positive as consistent with silicosis by two NIOSHcertified B-reader physicians, medical history and physical exam taken 

by qualified physician, diagnosis of silicosis by two qualified physicians, 

and an onsite communication of the diagnosis to the client by one of the 

diagnosing physicians. Every diagnosing doctor relied upon by our firm 

has testified that they stand behind their silicosis diagnosis of our firm’s 

silica plaintiffs, except for Dr. George Martindale; however, Dr. 

Martindale has testified before you that he stands behind his X-ray 

readings of our silica plaintiffs that show radiographic changes consistent 

with silicosis. 

 The firm’s reliance on the screening company and the X-ray 

readings, physical exams, and diagnoses of silicosis by the qualified 

physicians hired by the screening company was and continues to be 

reasonable. The firm believes that the silicosis diagnoses of its clients 

are real, and that the claims that it brought on behalf of the silica clients 

are valid, legal claims. 

 Thank you. 

 [The prepared statement of Billy Davis follows:] 

PREPARED STATEMENT OF BILLY DAVIS, ESQ., CAMPBELL, CHERRY, HARRISON, DAVIS &

DOVE

1. For substantially all of the firm’s silica plaintiffs, the following criteria was satisfied 

prior to each plaintiff becoming a silica client of the firm and prior to such plaintiff’s case 

being filed: 

A. Evidence of occupational exposure to silica for at least 2 years prior to 

1980 was provided by the plaintiff; 

B. Current chest x-rays taken of the plaintiff; 

C. Positive x-ray finding consistent with silicosis by a NIOSH certified Breader; 

D. Medical history taken and physical exam of the plaintiff by a qualified 

physician; 

E. Diagnosis of silicosis by a qualified physician communicated in person to 

the plaintiff; 

F. A pulmonary function test on the plaintiff to determine degree of lung 

impairment; 

G. Second positive x-ray finding consistent with silicosis by a second 

NIOSH certified B-reader; and 

H. Second diagnosis of silicosis by a second qualified physician. 

2. The firm advanced the testing costs only for individuals satisfying this criteria and that 

the law firm accepted as a client. 
380

3. Many of the firm’s clients worked in industries recognized by the government as 

having both asbestos and silica exposure. Less than 1 out of 5 of the firm’s asbestos 

clients were diagnosed with silicosis and represented by the firm. These clients had 2 

diagnoses of silicosis. Asbestosis and silicosis are not mutually exclusive. 

4. Physicians relied upon by the firm that diagnosed the firm’s silica plaintiffs stand 

behind their diagnoses except for Dr. George Martindale who still stands behind his x-ray 

readings that show radiographic findings consistent with silicosis. 

5. Silicosis diagnoses of the firm’s silica plaintiffs are real, and the plaintiffs’ claims are 

valid, legal claims. 

I. Background. 

 Good morning, Chairman Whitfield, Congressman Stupak, Members of the 

Subcommittee. My name is Billy H. Davis, Jr. and I am a shareholder in the law firm of 

Campbell~Cherry~ Harrison~Davis~Dove, P. C. (“CCHDD”). The firm consists of 

seven lawyers and 27 staff members, with offices in Waco, Texas and Jackson, 

Mississippi. The firm engages primarily in a plaintiff's civil practice with a focus in the 

area of personal injury law. 

The attorneys and staff of the firm are dedicated to providing quality legal services 

to individuals and businesses needlessly harmed by the conduct of others. We are 

committed to the preservation of the right of every citizen to a trial by jury, as guaranteed 

by the Seventh Amendment to the United States Constitution. We believe that every 

citizen should have equal access to the courts of our judicial system. 

I am testifying here today on behalf of the firm. 

II. CCHDD’s Entry into Silica Litigation. 

The firm has represented Plaintiffs in various types of personal injury litigation 

including injuries caused by asbestosis, silicosis, pharmaceutical products, automotive 

products, and trucking and automobile accidents. 

In 2000 and 2001, some of the firm’s previous and current clients, including 

asbestos clients, began contacting the firm asking if the firm was representing individuals 

in silica litigation. At that time the firm was not, but it was aware of the increase in silica 

litigation that had begun earlier and knew that many of its asbestos clients had worked in 

trades and industries in which they may have also been exposed to silica. In response to 

inquiries from many of its clients, the firm sent a letter to many of its current and former 

clients concerning silica exposure and silicosis. The firm notified its clients to call N&M, 

Inc., an experienced Mississippi medical screening company, to set up a medical 

screening if they felt they had a silica claim. The firm understood that N&M would test 

anyone, including our clients, who called them and had appropriate silica exposure. It 

was up to the individual to determine if he had been exposed to silica and wanted to be 

tested. If so, that individual would engage N&M to perform the medical screening. It 

was then up to the doctors to determine if the individual had a silica related injury. 

Generally, only after that happened, did our firm accept the representation of the 

individual for a silica claim, and advance that client’s cost to N&M for the medical 

screening. 

The law firm filed two actions in Noxubee County, Mississippi in 2002. These 

actions were filed in Mississippi because the overwhelming majority of the firm’s silica 

Plaintiffs was located in the southeastern United States and the Mississippi joinder and 

procedural rules applicable at that time made Mississippi an attractive forum in which to 

file these actions. Since that time, due to changes in Mississippi procedural law, applied 

retroactively by the courts, many of the Plaintiffs claims in these actions have been 

voluntarily dismissed. Their dismissals have nothing to do with the merits of their 
381

claims, but rather, are based on a retroactive change in Mississippi procedural rules 

making Mississippi an improper forum for these Plaintiffs to bring suit. 

 The firm exercised due diligence in filing and prosecuting silica claims and believes 

that the silicosis claims it filed are valid, legal claims. 

III. The Silicosis Claims Filed By CCHDD Are Valid. 

A. Prior to filing suit, CCHDD established criteria to ensure that its clients 

had bona fide claims for silicosis. CCHDD was reasonable in relying on 

that process. 

For substantially all of its silica clients, the firm had a reasonable basis for believing 

that its plaintiffs had a bona fide claim for silicosis before it ever accepted them as silica 

clients and before suit was filed on their behalf. Specifically, the firm established 

conservative criteria to screen persons it might represent. The conservative criteria were 

to ensure that individuals had bona fide diagnoses of silicosis before the firm accepted 

them as silica clients. 

 The conservative criteria defined by the firm included the following: 

 First, the firm required that its potential clients have at least two years of 

occupational exposure to silica prior to 1980. N&M established that the firm’s potential 

clients met such exposure criteria even before they came to the medical screening, and 

then again at the medical screening. This initial screening for exposure helped eliminate 

from the medical screening process individuals who could not have been diagnosed with 

silicosis due to a lack of silica exposure. 

 Second, after the requisite silica exposure history was verified, N&M’s qualified 

technicians performed a chest x-ray on each potential client. The x-ray was then read on 

site by a NIOSH certified B-reader physician, hired by N&M, to determine if the x-ray 

showed radiographic changes consistent with silicosis. 

 Third, if the NIOSH certified B-reader physician found the x-ray showed 

radiographic changes consistent with silicosis, a qualified physician on site, hired by 

N&M, would take a medical history and perform a target physical examination. Based 

on the exposure history, x-ray findings, medical history and physical exam, the NIOSH 

certified B-reader physician hired by N&M, Inc. would make a diagnosis. If the 

diagnosis was silicosis, the doctor would communicate that to the potential client, in 

person, at the screening. 

 Fourth, potential clients diagnosed with silicosis were sent to perform pulmonary 

function tests administered by N&M’s qualified technicians. These tests helped to 

determine the degree of lung impairment for each potential client. 

 Generally, all of the above mentioned steps occurred before the potential client ever 

met with any representative of the firm, and before they became a silica client of the firm. 

 Following this screening process performed by N&M, and the physicians hired by 

N&M, if a potential client had a positive silicosis diagnosis, and satisfied all of the above 

criteria and requested the law firm to represent him or her, the potential client signed a 

contract of representation with the firm. However, as a general rule, the firm did not file 

suit until receiving a second positive x-ray finding and a second diagnosis of silicosis for 

the potential client. For substantially all of the firm’s silicosis clients, the firm required 

N&M to obtain a second positive x-ray reading from a NIOSH certified B-reader 

physician, and a second diagnosis of silicosis by a second qualified physician. This was 

generally done within 4-6 weeks after the initial diagnosis and prior to the filing of a 

silica case on behalf of the client. This conservative practice of having two diagnoses for 

each client before filing suit had been used by the firm in its asbestos litigation long 

before it began representing silica plaintiffs. 
382

B. CCHDD was diligent in utilizing the screening company. 

The company that tested the firm’s clients was an experienced Mississippi medical 

screening company. In addition, N&M’s testing equipment was inspected and certified 

by the State of Mississippi. Moreover, the on-site physicians and technicians on our 

firm’s cases, who were selected, hired and paid by N&M to screen potential clients for 

silicosis were licensed by the State of Mississippi. The firm had used N&M before, and 

reasonably relied upon the medical screening performed by N&M for potential clients. 

C. CCHDD was diligent in relying on the screening company doctors’ silicosis 

diagnoses. 

 The firm was also reasonable in relying on the medical doctors hired by N&M for xray reads, physical exams, and silicosis diagnoses. Importantly, all of the firm’s clients 

were diagnosed with silicosis by NIOSH certified physicians. While the firm advanced 

medical screening costs to N&M only for testing of individuals diagnosed with silicosis 

who satisfied the above criteria and that the firm accepted as a client, it was and is the 

firm’s understanding that N&M paid its physicians the same dollar amount for every xray read, and for every physical exam performed, and for every diagnosis made, 

regardless of whether the individuals were diagnosed with silicosis whether or not they 

became clients of the firm. Accordingly, the physicians who read the x-rays, or 

performed the physical exams or who ultimately made the silicosis diagnoses for all of 

the firm’s clients were not biased by the firm’s method of compensation to N&M. 

IV. Asbestosis and Silicosis are not Mutually Exclusive and there are many 

Industries in which there is Both Silica and Asbestos Exposure. 

 Medical experts recognize that individuals may contract both asbestosis and 

silicosis. Some of the industries that the government (NIOSH) has recognized as having 

both asbestos and silica exposure include: (1) abrasive blasting; (2) foundry work; (3) dry 

wall hanging; (4) automotive repair; (5) construction; and (6) pottery. Many of the 

firm’s clients diagnosed with both silicosis and asbestosis worked in one or more of these 

industries. 

Notably, only a small percentage of the firm’s asbestos clients were ultimately 

diagnosed with silicosis. Specifically, out of approximately 20,000 firm asbestos clients, 

only approximately 3,500 were subsequently diagnosed with silicosis and represented by 

the firm. Moreover, approximately 700 of the firm’s silica clients were not asbestos 

clients of the firm. Many of the firm’s asbestos clients worked in industries in which 

they were exposed to both silica and asbestos or worked in different industries in which 

they were exposed to asbestos in one industry and silica in another. Less than 1 out of 5 

of the firm’s asbestos clients was diagnosed with silicosis, and by 2 separate doctors. 

This fact in no way supports an inference that these clients do not have silicosis or that 

the firm’s representation of these individuals is improper. 

V . Summary. 

We believe that our firm required and relied upon more extensive criteria to screen 

for silicosis than did others. For substantially all of its silica plaintiffs, prior to the filing 

of silica claims, the firm had evidence of at least 2 years occupational exposure to silica, 

current x-rays read positive as consistent with silicosis by two NIOSH certified B-reader 

physicians, medical history and physical exam taken by a qualified physician, diagnosis 

of silicosis by two qualified physicians, and an on-site communication of the diagnosis to 

the client by one of the diagnosing physicians. Every diagnosing doctor relied upon by 

the firm has testified that they stand behind their silicosis diagnoses of our firm’s silica 

plaintiffs, except for Dr. George Martindale. However, Dr. Martindale has testified 

before you that he stands behind his x-ray readings of our silica plaintiffs that show 

radiographic changes consistent with silicosis. The firm’s reliance on the screening 
383

company and the x-ray readings, physical exams, and diagnoses of silicosis by the 

qualified physicians hired by the screening company was and continues to be reasonable. 

The firm believes that the silicosis diagnoses of its clients are real and that the claims it 

brought on behalf of its silica plaintiffs are valid, legal claims. 

 MR. WHITFIELD. Thank you. Mr. Manji, you are recognized for 5 

minutes. 

MR. MANJI. Chairman Whitfield, Ranking Member Stupak, and 

members of the subcommittee, my name is Abel Manji and I am 

currently an attorney with The O’Quinn Law Firm located in Houston, 

Texas, formerly known as O’Quinn, Laminack, and Pirtle. I am 

testifying today as a representative of The O’Quinn Law Firm. I must 

state at the outset that while I am here on behalf of the O’Quinn firm, my 

direct and personal knowledge of a number of the issues raised in the 

subcommittee’s investigation is limited, as I first joined the firm in May 

of 2005, one month prior to Judge Janis Jack’s 2005 opinion and order. 

It was at that time I took over the firm’s silica cases. 

 With that said, I am, however, familiar with the documents produced 

to the subcommittee. With these constraints, I will certainly attempt to 

answer your questions to the best of my ability and knowledge. 

 Mr. Chairman, prior to addressing some of the public health issues 

that the subcommittee has raised regarding silicosis, I would like to thank 

you and the subcommittee staff for its continued cooperation in 

accommodating the O’Quinn firm. As a result of the sheer volume and 

logistical challenges connected with reviewing hundreds of separate case 

files, the subcommittee agreed that it made sense for our firm to provide 

copies of a representative sample of 30 randomly selected client files 

equally drawn from its Mississippi and Texas silicosis case portfolios, all 

the while respecting accepted categories of privilege. Again, we 

appreciate these accommodations. 

 Additionally, Mr. Chairman, I would like to briefly give the 

subcommittee an overview of my professional experience. I have been 

an attorney for the past 13 years. In that time period, I have handled 

hundreds of cases, both criminal and civil litigation. I have represented 

defendants as well as plaintiffs. 

 I think it is important to remember that silicosis is a devastating and 

incurable disease and that accurate exposure statistics are not available, 

as the Federal agency charged with compiling that data, OSHA, has not 

reevaluated the silica exposure standards in over a decade. This is 

striking, and from my experience, handling workers’ injury claims due to 

silica exposure, I am confident that such exposure is more widespread 

than people think. Silicosis is a real disease that has killed and will 

continue to kill hundreds, if not thousands, of hardworking men and 

women for years to come. 
384

 I understand that the subcommittee has focused extensively on Judge 

Jack’s opinion and the concerns raised about screening companies, 

doctors, and lawyers. It is important to note, however, the O’Quinn firm 

responded to Judge Jack’s opinion by no longer using the screening 

companies and B-readers questioned by the court and had its clients Xrays reevaluated by different doctors. 

 At this point, Mr. Chairman, I would like to briefly discuss a few 

very important points as they relate to The O’Quinn Law Firm and its 

silicosis practice. First, to the best of my knowledge and at no time since 

I arrived at The O’Quinn Law Firm, did it engage in the practice of 

rethreading old asbestos cases into new silicosis cases. In fact, the 

O’Quinn firm did not have an asbestos docket. When an asbestos case 

did come to the firm, these cases were immediately referred to another 

law firm that handled asbestos claims. 

 Second, the overwhelming majority, as much as 98 percent, of the 

O’Quinn firm’s silicosis cases came to it by referrals from other law 

firms. Between its seasoned litigators and experience at handling 

complex toxic tort litigations, smaller firms often referred such cases to 

O’Quinn for prosecution. 

 Third, because so many of its silicosis cases were referred from other 

law firms, the O’Quinn firm relied heavily upon the informational 

gathering process that occurred before the referral. This process is done 

to determine if the individual has a legal claim of silicosis or mixed stats, 

not to obtain medical treatment. To that end, it is important to remember 

that this process was never intended to substitute for a more in-depth 

medical evaluation or treatment; rather, the primary purpose of this early 

detection process is to protect the legal rights of persons whose ability to 

obtain relief can be completely shut out by statutes of limitations. 

 Fourth, pursuant to testimony already received by the subcommittee, 

the O’Quinn firm paid for all services rendered to it, regardless of 

whether the results were positive or negative. 

 Fifth, the O’Quinn firm has a policy of notifying and reminding all 

of its clients about the importance of consulting their personal physicians 

if the client was found to have positive medical readings for silicosis and 

other ailments. These communications were done in letters and phone 

calls. 

 Sixth, in its silicosis cases, as in all cases, the O’Quinn firm relies on 

the representations of all parties with whom it is engaged, including the 

screening companies, the physicians, referring attorneys, and clients that 

the O’Quinn firm represented and currently represents. 

 With that, I would like to thank you for your consideration and I look 

forward to answering any questions the members of the subcommittee 

may have. 
385

 [The prepared statement of Abel K. Manji follows:] 

PREPARED STATEMENT OF ABEL K. MANJI, ESQ., THE O’QUINN LAW FIRM

Chairman Whitfield, Ranking Member Stupak, and Members of the 

Subcommittee, my name is Abel Manji and I am currently an attorney with the 

O'Quinn Law Firm located in Houston, Texas formerly known as O'QuinnLaminack and 

Pirtle. I am testifllng today as a representative of the O'Quinn Law Firm. However, it is 

important that I state at the outset, that while I am here representing the O'Quinn firm, my 

direct and personal knowledge of a number of the issues raised by the Subcommittee in 

its investigation is limited, as I first joined O'Quinn, Laminack, and Pirtle in May of 2005 

- one month prior to Judge Janis Jack's June 2005 Opinion and Order. It was at that time 

I took over the Firm's remaining silica cases. With that said, I am, however, familiar with 

the documents produced to the Subcommittee, almost all of which precede my arrival and 

subsequent practice at the Firm. With these constraints, I will certainly attempt to answer 

your questions to the best of my ability and knowledge. 

Mr. Chairman, prior to addressing some of the public health issues that the 

Subcommittee has raised regarding silicosis and the findings and actions of Judge Jack, 

I'd like to thank you and the Subcommittee staff for its continued cooperation in 

accommodating the O'Quinn firm. As a result of the sheer volume and logistical 

challenges connected with reviewing over three thousand one hundred separate case files 

in connection with the Subcommittee's inquiry, the Subcommittee agreed that it made 

sense for our firm to provide copies of a representative sample of thirty (30) randomlyselected client files, equally drawn from its Mississippi and Texas silicosis case portfolios 

- all the while respecting accepted categories of privilege. The O'Quinn firm cooperated 

with the Subcommittee in providing these case files and other documents. Again, we 

appreciate these accommodations. 

Additionally Mr. Chairman, I would like to briefly give the Subcommittee an 

overview of my trial experience. I have been a trial attorney for the last 13 years. In that 

time period I have litigated hundreds of cases to successful conclusion. I am experienced 

in both criminal and civil litigation, and I have represented defendants as well as 

plaintiffs. My experience also includes personal injury and toxic tort litigation. 

I think it is important to remember that silicosis is a devastating and incurable 

disease, and that accurate exposure statistics are not available as the federal agency 

charged with compiling that data, the Occupational Health and Safety Administration, 

has not reevaluated its silica exposure standards in over decade. This is striking, and 

from my experience in handling workers injury claims due to silica exposure, I am 

confident that such exposure is much more widespread than people think. In fact, I 

believe the Department of Labor in the 1990s suggested that silicosis is one of the most 

underreported and diagnosed occupational diseases in the United States. Silicosis is a 

real disease that has killed and will continue to kill hundreds, if not thousands of 

hardworking men and women for years to come, and as an attorney it is my job to help 

those men and women, should they choose, to seek a measure of justice for an illness that 

is 100% preventable. 

I understand that the Subcommittee has focused extensively on Judge Jack's opinion 

in the multidistrict litigation that was pending in the Federal District Court in Corpus 

Christi, Texas, and especially the concerns raised in that opinion about screening 

companies, doctors, and lawyers. I think it is important to point out that the O'Quinn firm 

responded to Judge Jack's opinion by no longer using those screening companies and B 

readers, and by having clients re-examined by different doctors. As a result, many of 

those clients still have active, pending silicosis claims today. 
386

At this point Mr. Chairman, I would like to use the remainder of my statement to 

briefly discuss and convey a few very important points as they relate to the O'Quinn law 

firm and its silicosis practice. 

First - to the best of my knowledge, and at no time since I arrived at the O'Quinn law 

firm, did it engage in the practice of "re-treading" old asbestos cases into new silicosis 

cases. In fact, the O'Quinn firm never had an asbestos docket. Rather, when an asbestos 

case did come to the Firm, these cases were immediately referred to another law firm that 

handled asbestos claims. While I cannot speak for other law firms, the O'Quinn firm did 

not knowingly engage in re-treading any asbestos cases. 

Second - the overwhelming majority, as much as 98% of the O'Quinn firm's silicosis 

cases - came to it by referrals from other law firms. The O'Quinn firm does not advertise 

to attract silicosis cases, nor does the O'Quinn firm "hunt" for silicosis cases. Rather, the 

O'Quinn firm has, and continues to be, recognized as one of the premier plaintiff trial 

firms in the country. Between its seasoned litigators and experience in handling complex 

toxic tort litigation, smaller firms often refer such cases to O'Quinn for prosecution. This 

is how the O'Quinn firm became involved in the silicosis cases that were before Judge 

Jack. 

Third - because so many of its silicosis cases were referred from other law firms, the 

O'Quinn firm relied heavily upon the referring attorney(s) and the initial screening 

process that occurred before the referral. The "screening process" is done to determine if 

an individual has a "legal" claim of silicosis or mixed dust, not to obtain medical 

treatment for clients. The Subcommittee has heard testimony regarding this distinction 

and I look forward to answering any questions you may have about it. 

To that end, it is important to remember that the screening process was never 

intended to substitute for a more in-depth medical evaluations or treatment, and that one 

of the primary purposes of doing early screenings is to protect the rights of persons 

suffering from an occupational disease - ordinary people whose ability to obtain relief 

can be completely shut out by statutes of limitation. 

Fourth - pursuant to testimony already received by the Subcommittee, the O'Quinn 

firm paid for all services rendered to it regardless of result. This is a direct reference to 

the Subcommittee's inquiry regarding the "screening process" and the payment of law 

firms to screening companies for positive screening results only. I can't speak to what 

other law firms may have done, but the O'Quinn firm paid the same fees to screening 

companies, regardless of whether the results were negative or positive. 

Fifth - the O'Quinn firm has a policy of notifying and reminding all of its clients 

about the importance of consulting their personal physicians if the client was found to 

have positive medical readings for silicosis or other aliments. These communications 

were done in letters and phone calls. Some of those letters were provided to the 

Subcommittee in the documents the O'Quinn firm submitted to the Subcommittee. 

Sixth - at all times, the O'Quinn firm relies on the representations of all parties with 

whom it communicates about these silicosis cases. This includes the screening 

companies, physicians, referring attorneys, and clients that the O'Quinn firm represented 

and currently represents. My understanding is that the O'Quinn firm was not aware of the 

concerns raised in Judge Jack's opinion until the hearing in her courtroom. I was 

personally involved in making sure that all of Judge Jack's concerns were addressed; and 

I firmly believe that we have done that to the best of our ability. 

The O'Quinn firm is very interested in securing recovery for people who suffer from 

occupational diseases like silicosis, but like this Subcommittee and Judge Jack, the Firm 

has no interest in pursuing claims that have no merit, or claims that fail to meet whatever 

standards are set by the courts or the government. 

With that, I would like to thank you for your consideration; and I look forward to 

answering any questions you and Members of the Subcommittee may have. 
387

 MR. WHITFIELD. Thank you very much. Mr. Gibson, you are 

recognized for 5 minutes. 

MR. GIBSON. Thank you. Mr. Chairman, members of the 

subcommittee, ladies and gentlemen, my name is Joseph Gibson and I 

am an attorney in private practice in Houston, Texas. I was previously 

employed at the law firm of O’Quinn, Laminack, and Pirtle, one of the 

law firms in the silicosis litigation that is the subject of the hearing today. 

 I appreciate the opportunity to appear before this committee today to 

address as best I can questions surrounding the silicosis litigation, 

including my involvement and that of my former employer. 

 First, I would like to say that silicosis is a real and terrible disease. 

Litigation related to silicosis is not new. It has been around since the 

mid-1980s in Texas. The litigation has resulted in millions of dollars 

being paid in settlement to people suffering from silicosis, many of 

whom are very sick. There are a number of other people who suffer 

from this disease as a result of overexposure to silica on their jobs and 

who deserve compensation. Dr. Laura Welch, one of the initial 

witnesses before the subcommittee, pointed out that silicosis is a real 

public health problem, and there may be thousands of new cases of 

silicosis that appear each year, even without active screening. 

 I am 35 years old. I graduated from law school in 1998. I spent a 

year at a law firm in Houston and then joined the O’Quinn firm. I was 

initially hired as a staff attorney and subsequently became an associate at 

the firm. I have never been a partner and my compensation was not tied 

to the money that was made on the cases I handled. As a lawyer with the 

O’Quinn firm, I was assigned to work on the silicosis cases being 

handled by the firm. I was pleased to represent the people I thought 

deserved help, and I have no interest in manufacturing claims for 

undeserving persons. 

 I reported to two partners in the firm, Rick Laminack and Tom Pirtle. 

The two of them, primarily Mr. Laminack, were in charge of everything I 

worked on, including the firm’s silicosis docket. My role was to assist 

them and manage the cases on a daily basis. This was entirely 

appropriate, given my status as a junior attorney at the firm. 

 At the time I worked at the O’Quinn firm, I had no trial experience 

of my own. My responsibilities included getting silicosis cases set for 

trial, getting case management orders in place, drafting and sending 

discovery requests, gathering documents and preparing outlines and 

exhibits for depositions of defense witnesses, and taking some 

depositions. Part of my duties also included coordinating 

communications among the principal law firms involved in the silicosis 

litigation and between those firms in the MDL court, hence my title as 
388

lead counsel for the plaintiff’s firms. These communications were 

primarily administrative and logistical in nature. 

 While I was pleased to be assigned with this responsibility and to 

play this role, my title did not signify that I was in charge of the 

plaintiff’s side of the litigation. As you can see, each principal plaintiff’s 

firms were responsible for the prosecution of their claims. 

 An issue has arisen about the competence or integrity about the 

diagnoses made by certain of the doctors whom the plaintiffs’ firms 

employed in these cases. They were part of the MDL litigation before 

Judge Jack. Some of these doctors, such as Dr. George Martindale, were 

never employed by the O’Quinn firm. 

 The O’Quinn firm used several different doctors in connection with 

its cases. The work of some of them was not questioned by Judge Jack. 

Substantial questions were raised by Judge Jack about the work of one 

doctor, Dr. Ray Harron, who had the X-rays and/or made diagnoses in 

many of the cases handled not only by the O’Quinn firm, but also by 

other plaintiffs’ firms, both inside and outside of the MDL. 

 I was not involved in the original selection of Dr. Harron, and as far 

as I know, nobody else from the O’Quinn firm was either. Instead, we 

inherited Dr. Harron with a number of the cases that were additionally 

referred to the firm. Evidently, Dr. Harron was brought into the cases 

through the screening company N&M, Inc., that was employed by the 

referring law firm. Dr. Harron had the requisite credentials to perform 

the X-ray diagnostic work. He had been a certified B-reader for many 

years. I met him on a number of occasions and he appeared to be 

competent in his work. He also had a great deal of litigation experience 

and he had testified on a number of occasions, which also appeared to be 

an asset. 

 Shortly before the February 2005 court hearing before Judge Jack, I 

learned that Dr. Harron had been engaged by another firm to review over 

4,000 of its X-rays from its previous asbestosis cases and had diagnosed 

the presence of silicosis as well. This caused me significant concern and 

I promptly reported this to Richard Laminack. He directed me to bring 

Dr. Harron in for a face-to-face meeting. I did so and Mr. Laminack 

spoke to Dr. Harron at length. Dr. Harron assured us that he stood by the 

results of all of his work. At the end of the meeting, Mr. Laminack 

decided that we could go forward with him. 

 I was very surprised and upset by Dr. Harron’s testimony at the 

hearing, where it developed that his very large number of dual diagnoses 

of asbestosis and silicosis in the same individuals was highly 

questionable and gave the appearance that his diagnosis changed to suit 

the convenience of the case. This testimony made me wish we had dug 
389

deeper. We would have never knowingly trusted the fate of our clients 

and our cases to what now appear to be unreliable diagnoses. 

 Finally, I would note that many of the silicosis cases before Judge 

Jack came from Mississippi and were remanded by her to the Mississippi 

State courts. After being remanded, 12 of the 73 defendants in the case 

sought to have sanctions imposed on the O’Quinn firm for having filed 

these cases in the first place. The Mississippi court refused to impose 

sanctions. It found that the O’Quinn firm had relied in good faith on 

accepted patient screening practices for mass tort cases to locate potential 

plaintiffs and develop the silicosis litigation. 

 At this point, I am prepared to answer, to the best of my ability, any 

questions the subcommittee may have. 

 [The prepared statement of Joseph V. Gibson follows:] 

PREPARED STATEMENT OF JOSEPH V. GIBSON, ESQ., LAW OFFICE OF JOSEPH V. GIBSON,

P.C. 

Mr. Chairman, Members of the Committee, Ladies and Gentlemen: 

Good morning. My name is Joseph Gibson, and I am an attorney in private practice 

in Houston, Texas. I was previously employed at the law firm of O'Quinn, Laminack & 

Pirtle, one of the law firms in the silicosis litigation that is subject of the hearings today. 

I appreciate the opportunity to appear before the Committee today to address, as best 

I can, questions surrounding the silicosis litigation, including my involvement and that of 

my former employer. 

First, I'd like to say that silicosis is a real and terrible disease. Litigation related to 

silicosis is not new; it's been around since the mid-1980s in Texas. This litigation has 

resulted in millions of dollars being paid in settlement to people suffering from silicosis, 

many of whom are very sick. 

There are a number of other people who suffer from this disease as a result of 

overexposure to silica on their jobs and who deserve compensation. Dr. Laura Welch, 

one of the initial witnesses before this Subcommittee, pointed out that silicosis is a real 

public health problem and there may be thousands of new cases of silicosis that appear 

each year even without active screening. 

I am 35 years old. I graduated from law school in 1998. I spent a year at another 

law firm in Houston and then joined the firm of O'Quinn, Laminack & Pirtle (the 

"O'Quinn firm"). I was hired as a staff attorney and subsequently became an associate at 

the firm. I was never a partner. My compensation was not tied to the money that was 

made on the cases I handled. 

As a young lawyer with the O'Quinn firm, I was assigned to work on the silicosis 

cases being handled by the firm. I was pleased to represent people I thought deserved 

help. I had no interest in manufacturing claims for undeserving persons. 

I reported to two of the partners in the firm, Rick Laminack and Tom Pirtle. The 

two of them, primarily Mr. Laminack, were in charge of everything I worked on, 

including the firm's silicosis docket. My role was to assist them and manage the cases on 

a day-to-day basis. This was entirely appropriate given my status as a junior attorney in 

the firm. At the time I was working at the O'Quinn firm, I had no trial experience of my 

own. 

My responsibilities included getting silicosis cases set for trial, getting case 

management orders in place, drafting and sending discovery requests, gathering 

documents and preparing outlines and exhibits for depositions of defense witnesses and 
390

taking some depositions. I primarily took secondary depositions and helped prepare Tom 

Pirtle for primary depositions, such as corporate representatives. I also negotiated 

settlements in some of the cases. 

Part of my duties included coordinating communications among the principal law 

firms involved in the silicosis litigation and between those firms and the multi-district 

litigation ("MDL") court, hence my title as "lead counsel" for the plaintiffs' firms. These 

communications were primarily administrative and logistical in nature. While I was 

pleased to be assigned this responsibility and to play this role, my title certainly did not 

signify that I was in charge of the plaintiffs' side of the litigation. Each of the principal 

plaintiffs' firms was responsible for the prosecution of its claims. 

An issue has arisen about competence and/or integrity of the diagnoses made by 

certain of the doctors whom the plaintiffs' firms employed in the cases that were part of 

the MDL litigation before Judge Jack. Some of these doctors, such as Dr. George 

Martindale, were never employed by the O'Quinn firm. 

The O'Quinn firm used several different doctors in connection with its cases. The 

work of some of them was not questioned by Judge Jack. Substantial questions were 

raised by Judge Jack about the work of one doctor, Dr. Ray Harron, who read the x-rays 

and/or made diagnoses in many of the cases handled not only by the O'Quinn firm but 

also by other plaintiffs' law firms both inside and outside of the MDL. 

I was not involved in the original selection of Dr. Harron and, so far as I know, 

neither was anyone else at the O'Quinn firm. Instead, we inherited Dr. Harron with a 

number of the cases that were referred to the firm. Evidently, Dr. Harron was brought 

into the cases through a screening company, N & M, Inc., that was employed by the 

referring law firm. Dr. Harron had the requisite credentials to perform the x-ray 

diagnostic work – he had been a certified B-reader for many years. I met him on a 

number of occasions and he appeared to me to be competent at his work. He also had a 

great deal of litigation experience and had testified on a number of occasions, which also 

appeared to be an asset. 

Shortly before the February 2005 court hearing before Judge Jack, I learned that Dr. 

Harron had been engaged by another firm to review over 4,000 of the x-rays from its 

previous asbestosis cases and had diagnosed the presence of silicosis as well. This 

caused me significant concern and I promptly reported this development to Rick 

Laminack. He directed me to bring in Dr. Harron for a face-to-face meeting. I did so and 

Mr. Laminack spoke to Dr. Harron at some length. Dr. Harron assured us that he stood 

by the results of all his work. At the end of the meeting, Mr. Laminack decided that he 

was satisfied with Dr. Harron's answers and that we should go forward with him. 

I was very surprised and upset by Dr. Harron's testimony at the hearing, where it 

developed that his very large number of dual diagnoses of asbestosis and silicosis in the 

same individuals was highly questionable and gave the appearance that his diagnoses 

changed to suit the convenience of the case. This testimony made me wish that we had 

dug deeper and discovered these problems before the hearing. We would never have 

knowingly trusted the fate of our clients and our cases to what now appear to be 

unreliable diagnoses. 

Finally, I note that many of the silicosis cases before Judge Jack came from 

Mississippi and were remanded by her to the Mississippi state courts. After being 

remanded, 12 of the 73 defendants sought to have sanctions imposed on the O'Quinn firm 

for having filed these cases in the first place. The Mississippi court refused to impose 

sanctions. It found that the O'Quinn firm had relied in good faith on accepted patient 

screening practices for mass tort cases to locate potential plaintiffs and develop the 

silicosis litigation. 

At this point, I am prepared to answer, to the best of my ability, any questions the 

Subcommittee may have. 
391

 MR. WHITFIELD. Thank you very much. Mr. Zadeh, you are 

recognized for 5 minutes. 

 MR. ZADEH. No opening statement, Mr. Chairman. 

 MR. WHITFIELD. Mr. Fabry. 

 MR. FABRY. No opening statement, thank you. 

 MR. WHITFIELD. Mr. Mullins. 

 MR. MULLINS. Mr. Luckey will be making our opening statement. 

 MR. WHITFIELD. Mr. Luckey. 

 MR. LUCKEY. Thank you, Mr. Chairman. My name is Alwyn 

Luckey. I am here on behalf of the law firm of Luckey and Mullins. 

This is my law partner, Mr. Steve Mullins. I am also here on behalf of 

the firm of Barton and Williams of Pascagoula, Mississippi. Together, 

we joint ventured representation of silica clients. Each of our firms are 

mutually responsible for the representation of our silica clients. 

 Our firms, particularly over the past year, have been particularly hard 

hit by the affects of Hurricane Katrina. The Barton & Williams firm 

suffered a complete loss of two of their three office buildings, and a 

partial loss of the third. They had complete damage: the files, records, 

and computer systems. In addition, lawyers and staff members from 

their firm left the area after the hurricane. They are extremely short 

staffed in trying to rebuild their law firm. 

 My law firm was not flooded like many of the areas on the Gulf 

Coast, but we did have substantial damage to the roof of the office. We 

lost files, damage to the computer system. In an almost unbelievable 

event, in November my office caught fire as a result of water leaks from 

the hurricane and we were without power for an additional couple of 

weeks. We have tried our best to comply with the committee’s requests 

and believe we have done so to the best of our abilities. I do think it is 

important to note that documents and information that were provided to 

the MDL proceeding probably only exist there at this point, as many of 

our documents were lost in the storm. 

 On a personal note, I would like to thank the committee’s staff for 

giving Mr. Mullins and I the option for one or the other of us to testify, in 

consideration of my wife’s illness. She is doing well and I am here today 

because of that. I appreciate the consideration. 

 As far as mass medical screenings for our firms are concerned, the 

Barton & Williams firm primarily utilized the services of Respiratory 

Testing Services. Our firm primarily used the services of Occupational 

Diagnostics, a Mississippi company. It is our belief that the only N&M 

Screening Company cases we had, or in the case of Dr. Harron, were 

referred to us from other law firms that we had no control over the 

screening of those cases. 
392

 Our firm had attorneys and staff present at all or almost all of the 

medical screenings that were done by our firm. This was done to ensure 

that our clients who were sent to be screened, in fact had the proper work 

history and exposure to silica in order to qualify for screening. We used 

a restrictive criteria for accepting cases, 5 years or more of exposure to 

occupational silica in a trade and at a job site where silica was being 

used. 

 I am mindful of the committee’s interest in notification and followup to claimants who were diagnosed with a silica-related disease at these 

screenings. In cases in our firm and the firm of Barton & Williams, 

where the onsite physician at the medical screening found a silica-related 

disease, the doctor at the screening told the clients about his 

interpretation of their disease. In the event of a diagnosis of silicosis, the 

clients should have been told at least three times about their disease, in 

the event of a more serious disease, lung cancer, schleroderma or what is 

known as complicated silicosis, at least five times would either the 

medical company or our firms have followed up with the clients. The 

clients should have been told by the doctor on site. In the event of a 

severe or complicated case, a medical report should have been sent to 

them by certified mail by the screening company. If the person was 

diagnosed with a silica related disease and chose to hire our law firm or 

meet with our law firm to pursue a case, the attorney at the screening 

would have reminded the client of the disease he had been diagnosed 

with or found to have. Finally, when the medical report was received at 

our office, we would have mailed a letter with an additional copy of that 

medical report to the client, urging them to see their family physician or 

a local physician to check into the disease. And in the event of a serious 

case, a similar letter, but one that utilized the doctor’s language of what 

the serious condition was about and again, enclosing the doctor’s report. 

In the event of a serious case, our firm also followed up with those 

clients to be sure they had found medical care or to recommend a place 

they could go in the event they had not. In addition, during our normal 

course of representation, we spoke to our clients many times, and 

frequently our staff knew them by their names and we followed up with 

their case, as we would anyone’s lawsuit that we were handling. 

 It was natural that the Barton & Williams firm and my firm were 

hired by many of these claimants. Our offices in Pascagoula, 

Mississippi, and Ocean Springs, Mississippi, are very close to the 

Northrop Grumman, formerly known as Ingall Shipyard, in Pascagoula, 

Mississippi, one of the largest in the world. We are additionally near 

New Orleans, with many shipbuilding and other industries. These are 

our clients. These are local people who hired our firm. In addition, due 

to our experience in representing clients in industry, many cases were 
393

referred to us by other lawyers who knew we had experience in these 

types of cases. 

 One of the unfortunate results of the criticism of doctors and the 

medical screening practice has been that in some cases, plaintiffs who 

don’t even have a medical report from a doctor that was questioned in 

Corpus Christi have been held up, and in the case of some of our clients 

filed in Mississippi, possibly are not able to go forward due to the 

criticism of the screening practices and the doctors. This is an 

unfortunate result for otherwise deserving claimants that, at this point, 

our firm and that of Mr. Barton, have been unable to rectify due to 

certain complexities in Mississippi law, but unfortunately, the pale that 

has been cast over many of these clients due to the nature of their expert 

medical reports. 

 [The prepared statement of Alwyn H. Luckey follows:] 
394

PREPARED STATEMENT OF ALWYN H. LUCKEY, ESQ., LUCKEY & MULINS PLLC 
395
396
397
398
399
400
401

 MR. WHITFIELD. Thank you very much. At this time, I recognize 

Mr. Laminack for his opening statement. 
402

 MR. LAMINACK. Thank you, Chairman Whitfield, Ranking Member 

Stupak, and members of the subcommittee. 

 My name is Richard Laminack. I am a principal member of the law 

firm of Laminack, Pirtle, and Martines in Houston, Texas. I want to 

especially thank the subcommittee for allowing me to appear today by 

video from M.D. Anderson Cancer Center in Houston. I am appearing 

by video because I have been diagnosed with leukemia and am currently 

being treated by chemotherapy. My doctors advise that I should not 

travel or appear in public gatherings due to my treatment, so I want to 

especially thank the committee for accommodating my condition. 

 The testimony I am providing today relates to my professional 

responsibilities and duties at my former law firm, O’Quinn, Laminack 

and Pirtle, and the administration and prosecution of certain silica claims 

handled by the firm. I am here to voluntarily and readily answer your 

questions. 

 I have been a trial attorney for 19 years and have exclusively 

represented individuals and their families who have sustained personal 

injury. The people who have and do suffer from silicosis have had a 

profound impact on me. Their cases are that severe and that troubling. 

 My first experience with silicosis was in the late ‘80s when I 

represented a small group of 12 workers against their employer, claiming 

that they had been exposed to silica on the job. It took a number of years 

to bring those cases to final resolution. What really bothered me about 

those cases is that the workers had been seen by the company doctor and 

at no time did that physician tell these workers that they had scarring or 

that their lungs--taking their lungs or even if there had symptoms 

consistent with silicosis. Every single one of them has since died of 

silicosis, and it upsets me to this day. 

 I tell you this, Mr. Chairman, not because I am looking for some 

kind of redemption, but rather, to let you know that I know firsthand 

what silicosis can do to a person and to their family. Because I know 

this, I would never knowingly bring a silicosis claim on behalf of an 

individual that does not have the fundamental proof of such a claim. 

 I would like to take this opportunity to share my views about the 

O’Quinn firm’s silicosis practices during my tenure. As I stated earlier, I 

handled my first silicosis case almost 15 years ago. For several years, 

that was our last substantial involvement in silicosis. It was not until 

early 2000 that O’Quinn, Laminack and Pirtle became more involved in 

silicosis cases again. Around that time, other law firms began to 

approach our firm about referring their silicosis cases. These inquiries 

were directed at us because of our reputation for successfully handling 

complex toxic tort litigation involving large numbers of plaintiffs and 

defendants. 
403

 Some of these silicosis cases, namely a class of cases called the 

Alexander Class, that landed in Judge Jack’s courtroom in Corpus Christi 

as part of the MDL, caused the spotlight to be shown on the O’Quinn 

firm, a spotlight that should have been extinguished when Judge Jack 

ruled that she never had jurisdiction over the Alexander Class to begin 

with. After Judge Jack decided that the Federal courts lacked 

jurisdiction, the local court of proper jurisdiction found that the O’Quinn 

firm had handled itself and the cases in compliance with the law. 

 There are some basic elements that I would like the subcommittee to 

keep in mind about how the O’Quinn firm managed its silicosis cases. 

First, the O’Quinn firm and myself personally have always taken our 

clients’ health issues seriously. Throughout the course of the O’Quinn 

firm’s representation of its clients, it had a policy of advising clients that 

any initial screenings that they had participated in for the purposes of 

filing a legal claim and protecting their legal rights, and that any and all 

medical issues that may have arisen from any results of the screening 

process should be addressed to the client’s personal physician. 

 Second, because the overwhelming majority of the O’Quinn firm’s 

cases were referrals, we relied on screening companies, screening 

physicians, B-readers, the referring attorney, and the client when we 

moved forward with the case. While I was not personally involved in 

any aspects of the screening process, I did understand that most of 

O’Quinn’s clients had already been screened and diagnosed before the 

clients were referred. I was not personally aware of any problems with 

screening diagnoses or B-reads by doctors or screening companies of the 

O’Quinn clients until one fateful day in Corpus Christi when Dr. Ray 

Harron asserted his Fifth Amendment rights and refused to testify in 

Judge Jack’s courtroom. Had I or anyone else at the O’Quinn firm been 

aware of problems with doctors or screening companies, we wouldn’t 

have used them and we would have brought in different screeners and 

doctors, which is exactly how the O’Quinn firm responded to the 

hearings and rulings by Judge Jack. 

 As I told Judge Jack during one of the several hearings in front of 

her, that there are cases that don’t belong here, then I don’t want them 

here either. Subsequent to the proceedings in Judge Jack’s court, the 

O’Quinn firm had every client in the Alexander Class rescreened. The 

substantial majority retested positive for silicosis and still have active 

claims today. 

 Finally, I think the committee needs to consider the role that 

screening plays in silicosis and other mass tort litigation. Screening is 

done at a very early stage, before a lawsuit is even filed. It is intended to 

identify indications that a person may have silicosis to allow lawyers to 

determine whether there is enough evidence to proceed with further 
404

testing, and to file and pursue a claim. Screening is never intended to 

determine how ill a person is, what the person’s medical treatment 

should be, or to provide a thorough scientific basis for actually trying a 

claim. A positive screening would justify a lawsuit, but also would 

always lead to much more comprehensive medical testing and 

examinations. The defendants that choose to settle these cases have 

always demanded comprehensive medical proof of this type before they 

agree to pay any person’s claim. It is important to point out that our 

efforts as attorneys were to protect people’s legal rights. That was our 

foremost objective as attorneys in this process. 

 In conclusion, I again want to thank the subcommittee for 

accommodating my medical condition. Thank you. 

 [The prepared statement of Richard N. Laminack follows:] 

PREPARED STATEMENT OF RICHARD N. LAMINACK, ESQ., LAMINACK, PIRTLE AND 

MARTINES

Chairman Whitfield, ranking member Stupak, and members of the Subcommittee, 

my name is Richard Laminack, and I am principal member of the law firm of Laminack, 

Pirtle and Martinez in Houston, Texas. I want to thank the Subcommittee for allowing 

me to appear today by video from M.D. Anderson Cancer Center in Houston, Texas. I 

am appearing by videoconference because I have been diagnosed with leukemia and am 

currently being treated by chemotherapy. My doctor has advised that I should not travel 

or appear in large, public gatherings due to my treatment. Again, I want to thank the 

Subcommittee for accommodating my current conditions. 

The testimony I am providing today relates to my responsibilities and duties at my 

former law firm, O'Quinn, Laminack & Pirtle ("OLP") in the administration and 

prosecution of certain silica claims handled by the firm. I am here voluntarily and ready 

to answer your questions. 

I have been a trial attorney for the last nineteen years and have exclusively 

represented individuals and their families who have sustained personal injury. The 

people who have and do suffer from silicosis have had a profound impact on me - their 

cases are that severe and that troubling. As this Subcommittee has heard over the course 

of its investigation, silicosis is a lung disease caused by inhaling silica dust, which in turn 

causes lung damage and scarring. Silica dust is a byproduct of several industries, 

including, but not limited to, sandblasting, manufacturing, and construction. Silicosis 

exposure is more prevalent in the South due primarily to active shipping, shipbuilding, 

and refining industries. Silicosis is a deadly, incurable disease, and it can take decades 

for the full effects of silicosis to show up in a person. 

My first experience with silicosis was in the late 1980s when I represented a small 

group of workers -- 12 I recall -- against their employer claiming they had been exposed 

to silica on the job. It took a number of years to bring those cases to final resolution. 

What really bothered me about that case is that the workers had been seeing the company 

doctor and at no time did that physician tell these workers that they had scarring on their 

lungs even though they had symptoms that were consistent with silicosis. Every single 

one of them has since died of silicosis and it upsets me to this day. I tell you this Mr. 

Chairman not because I am looking for some kind of redemption, but rather I know first 

hand what silicosis can do to a person and their family. Because I know this, I would 

never knowingly bring a silicosis claim on behalf of an individual that does not have the 

fundamental proof of such a claim. 
405

I would like to take this opportunity to share my views about the O'Quinn law firm's 

silicosis practice during my tenure at the firm. 

As I stated earlier, I handled my first silicosis cases almost fifteen years ago as 

young attorney with the O'Quinn law firm. Silicosis cases are complex and require 

certain elements of proof and require a commitment of resources that not all firms and 

attorneys want to take on. Since the disposition of those early cases the O'Quinn firm 

moved away from silicosis work and concentrated its time and resources elsewhere for 

the better part of the late 1980s and 1990s. This did not include asbestos work. 

It was not until early 2000 that OLP became more involved in silicosis cases again. 

Around that time, other law firms began approaching OLP and offering to refer silicosis 

cases. These inquiries were directed at O'Quinn because of our reputation for 

successfully handling complex toxic tort litigation involving large numbers of plaintiffs 

and defendants. What was not done at any time, and I can't stress this enough, was the 

"re-treading" of old asbestos cases into new silicosis cases. When I refer to "re-treading" 

I mean the practice of taking any and all of your firm's asbestos claims and converting 

them into new silicosis claims with or without the benefit of new medical testing of the 

alleged claimant. The O'Quinn firm never had an asbestos docket and therefore could not 

and did not re-tread those cases. Rather, on a referral basis the O'Quinn firm began 

taking on silicosis cases. Some of these cases, namely a class of cases called the 

Alexander class that landed in Judge Jack's court room in Corpus Chsti as part of the 

federal MDL, caused the spotlight to be shown on the O'Quinn firm. A spotlight that 

should have been extinguished when Judge Jack ruled that she never had subject-matter 

jurisdiction over the Alexander case to begin with. After Judge Jack decided the Federal 

Courts lacked jurisdiction, a local court of original jurisdiction found that the O'Quinn 

firm handled itself and the cases in compliance with the law. 

There are some basic elements that I would the Subcommittee to keep in mind about 

how the O'Quinn firm managed its silicosis cases. 

First, the O'Quinn firm and myself personally have always taken our clients' health 

issues seriously. Throughout the course the O'Quinn firm's representation of its clients it 

had a policy of advising clients that any initial screenings that they participated in were 

for the purposes of filing a legal claim only, and that any and all medical issues that may 

have arisen from any results of the screening process should be addressed to clients' 

personal physicians. 

Second, because the overwhelming majority of the O'Quinn firm's cases were 

referrals, we relied on screening companies, screening physicians and B-readers, the 

referring attorney, and the client when we moved forward with a case. While I was not 

personally involved in any aspects of the screening process, I did understand that most of 

O'Quinn's clients had already been screened and diagnosed before the clients were 

referred. I was not personally aware of any problems with screening diagnoses or Breads by doctors or screening companies for O'Quinn clients until one fateful day in 

Corpus Christi when Dr. Ray Harron asserted his 5thAmendment rights and refused to 

testify in Judge Jack's courtroom. 

Had I or anyone else at the O'Quinn firm been aware of problems with doctors or 

screening companies, we would not have used them and would have brought in different 

screeners and doctors, which is exactly how the O'Quinn firm responded to the hearing 

held by Judge Jack. As I told Judge Jack during one of the many hearings in front of her, 

if there are cases that don't belong here then I don't want them here either. Subsequent to 

the proceedings in Judge Jack's court, the O'Quinn firm had every client in the Alexander

class re-screened. The substantial majority re-tested positive for silicosis and still have 

active silicosis claims today. 

Finally, I think the Committee needs to consider the role that screening plays in 

silicosis and other mass tort litigation. Screening is done at a very early stage, before a 

lawsuit is even filed, and is intended to identify indications that a person may have 
406

silicosis, to allow lawyers to determine whether there is enough evidence to file and 

pursue a claim. Screening is never intended to determine how ill a person may be, what 

the person's medical treatment should be, or to provide a thorough scientific basis for 

pursuing a claim. A positive screening would not only justify a lawsuit, but also would 

always lead to much more comprehensive medical testing and examinations. Believe me, 

the Defendants that choose to settle the cases demand that comprehensive medical proof 

before they agree to pay any money for a person's claim. 

In conclusion, I again would like to thank the Subcommittee for accommodating my 

medical condition today. 

 MR. WHITFIELD. Thank you very much for your testimony, Mr. 

Laminack, and that concludes the opening statements. We will go to 

questions now. 

 One of the concerns of this subcommittee was the fact that we are 

talking about patients here, or clients who supposedly have some rather 

significant diseases. As all of you have said in your testimony or 

submission of documents, in this whole process you use B-readers, you 

use diagnosing physicians, and as you say, you are representing the 

clients and helping them to obtain a judgment in the event that they 

suffer one of these illnesses. 

 It seems that this process, the way it works does not really pay much 

attention to the individual receiving treatment from a physician to take 

care of his long-term medical needs. I know many of you said, well, that 

is the diagnosing physician’s responsibility, but I get the impression in 

these hearings that we have had that these diagnosing physicians are 

really sort of professional physicians who look at and sign documents to 

use in a pleading in a lawsuit. I don’t get the impression that many of 

them are in the business of following up with these clients for their longterm medical needs. 

 Would you agree that the system, the way it is operating now, is that 

a problem or is that not a problem, just from the perspective of the 

individual’s long-term health needs? Does anybody have any thoughts 

on that? You feel like the patient or your client’s long-term health needs 

are being taken care of within the system as it is now? Is that correct? 

So none of you are concerned about their long-term healthcare treatment 

at all? Mr. Luckey? 

 MR. LUCKEY. Speaking for our firm, obviously we are concerned 

about our clients’ health, present and long term. I may not address your 

entire question, Mr. Chairman, but I will try to address the part that 

struck me. 

 MR. WHITFIELD. What I am trying to get at here is you have one 

avenue you go down to file a lawsuit and collect damages, and the way 

the legal system seems to work with these B-readers and diagnosing 

physicians, everything seems to be oriented in that result. There doesn’t 
407

seem to be any concern that I have seen for the long-term healthcare of 

the patient and/or client. 

 MR. LUCKEY. I would disagree as far as our firms are concerned. 

Concern over the client’s health is something that we have always had. 

It is something we have because we know our clients personally. 

 In addition, I would like to say that as far as I know, every screening 

which our firm participated in or sponsored had a doctor--was supposed 

to have a doctor on site who met with the people as they were tested. 

That doctor would have explained their condition to them. In the event 

of a serious or life-threatening condition, would have suggested that that 

person see either their family doctor, or in the absence of that, a place 

where they could be seen. I know several clients were sent to the 

University Medical Center in Jackson, Mississippi, where they could get 

free care. 

 So yes, sir, that is a very important issue for us. 

 MR. WHITFIELD. And with that, do you have any comment on that, 

Mr. Davis? 

 MR. DAVIS. We believe that every one of our clients was advised by 

the diagnosing physician of his condition and the type of diseases that 

could be developed based on silicosis, and they were advised and 

acknowledged that they were advised to see their treating physicians and 

follow up on their condition. 

 MR. WHITFIELD. Now, did you use N&M Screening Company, your 

firm? 

 MR. DAVIS. Yes, sir. 

 MR. WHITFIELD. And were you aware that they were not licensed to 

conduct heaving heart screen in Mississippi or in Texas? 

 MR. DAVIS. I was not aware. 

 MR. WHITFIELD. Were you aware? Did you represent some 

Mississippi clients as well as Texas clients? 

 MR. DAVIS. Our clients were primarily from Mississippi and 

Alabama. We had no Texas clients. 

 MR. WHITFIELD. Okay. Were you aware that the Mississippi State 

Department of Health cited N&M for conducting screening programs 

without the Agency’s approval? 

 MR. DAVIS. I have seen that document as a result of meeting with 

majority counsel, and that was done subsequent to their performing 

services for us. 

 MR. WHITFIELD. I was just curious, in the firm, when you were 

sending out 18,000 to 20,000 letters to existing asbestosis clients, and 

from the information that I have received and in looking at some of the 

testimony and Judge Jack’s decision, it is extremely rare that someone 

would have asbestosis and silicosis. Did you all have any discussion 
408

within your firm that you are now sending out letters about silicosis to 

18,000 to 20,000 people that had asbestosis? 

 MR. DAVIS. We disagree that it is extremely rare. NIOSH says that 

you can have exposure to both silica and asbestos at any number of 

industries that we mentioned. Many of our clients worked in these 

industries. We simply notified our clients that if they felt like they had 

exposure to silica and if they wanted to get tested for that, we simply 

provided them an avenue to do that. 

 MR. WHITFIELD. So you are saying that it is not rare to have 

asbestosis and silicosis? Is that correct? 

 MR. DAVIS. I am saying that there is literature out there that says it 

is not rare. One of the doctors that testified for the defendants in Judge 

Jack’s court 6 months later admitted that he had made numerous 

diagnoses of people with both silicosis and asbestosis. 

 MR. WHITFIELD. Who was that? Do you remember his name? 

 MR. DAVIS. Dr. Friedman, Dr. Gary Friedman. I also for years in 

the asbestos litigation have seen these same defendants have defended 

asbestos litigation by stating that these people, these asbestos plaintiffs, 

were exposed to silica. That has been an affirmative defense of many of 

the asbestos defendants. 

 So now when the silica claims get filed, they say they cannot have 

asbestos and silicosis both. They can’t have it both ways. I am fearful 

that Judge Jack relied upon some information that was incomplete. 

 MR. WHITFIELD. Now, what about the rest of you? Do you agree 

with Mr. Davis’s comment there on this asbestos/silicosis issue or not? 

Mr. Zadeh, what do you think? 

 MR. ZADEH. I believe there is literature on both sides, Mr. 

Chairman. 

 MR. WHITFIELD. Okay. Mr. Luckey? 

 MR. LUCKEY. I understand there is literature on both sides too,-- 

 MR. WHITFIELD. Okay. 

 MR. LUCKEY. --Mr. Chairman, but we rely on the medical profession 

for that. 

 MR. WHITFIELD. Okay. Now, Mr. Davis, did your firm pay N&M 

only for positive silicosis screenings? 

 MR. DAVIS. We paid N&M--once a person went to N&M and once 

he satisfied the exposure criteria of 2 years, prior to 1980, and if he 

received a positive X-ray finding and we obtained a physical exam and a 

medical history, and a diagnosis, and if that person then asked us to 

represent them and we accepted them as a client, then we advanced their 

medical screening costs to N&M. 
409

 If a person went through that entire process and didn’t ask us to 

represent them or we refused to represent them, we paid no fee to 

anyone. We reimbursed no one’s medical expense. 

 MR. WHITFIELD. You used Dr. Harron some as a diagnosing 

physician, didn’t you? 

 MR. DAVIS. He was--yes. 

 MR. WHITFIELD. And so you were quite surprised, I guess, when he 

decided to make the comment that he did not mean to be diagnosing 

anyone? 

 MR. DAVIS. I don’t believe Dr. Harron made that comment. In fact, 

I believe Dr. Harron stated, at least as to our plaintiffs, that he stood 

behind every diagnosis that he made. 

 MR. WHITFIELD. Did he say diagnosis or B-reads? 

 MR. DAVIS. Diagnosis. 

 MR. WHITFIELD. Diagnosis. 

 Mr. Laminack, I think maybe you have the exhibit book with you on 

the table there. Evidently, you do not have it, but I am referring to 

Exhibit 18, Footnote 3, which describes statements that you made during 

a hearing on August 22, 2005, and what reasons did you have to doubt 

the legitimacy of the prior asbestos diagnoses and claims? 

 MR. LAMINACK. I am very familiar with what you are talking about, 

Mr. Chairman. The situation in the courtroom that day was we were 

trying to persuade the judge that a group of our plaintiffs, the Alexander 

Group, had legitimate, provable silicosis cases. The defendants took the 

position that you couldn’t have both asbestos and silicosis, and they 

further took the position that almost all of the Alexander plaintiffs had 

previously been diagnosed with asbestos. Judge Jack then directed a 

question to me to which my response was I doubt what the defendants 

are saying is true. I doubt that they made asbestos claims. I doubt that 

they had an asbestos diagnosis. So my statement was directed at the 

silicosis defendants who were trying to persuade Judge Jack that all these 

people had asbestos diagnoses, and that is what I was referring to. 

 We had researched, at Judge Jack’s request, and determined that a 

small number of the Alexander plaintiffs had asbestos, but we never 

found any proof or any evidence that what the defendants were saying 

was true. So my statement was directed to the defendants, and I said I 

doubt that the asbestos diagnoses are real. 

 MR. WHITFIELD. My time is expired, but were you aware that Dr. 

Harron, who did virtually all of the silicosis diagnoses in the Alexander 

case, also did several of the suspect asbestos diagnoses? 

 MR. LAMINACK. I subsequently became aware, yes. 

 MR. WHITFIELD. Okay. 

 Mr. Stupak. 
410

 MR. STUPAK. Well, thank you. 

 Mr. Luckey, if I could, I want to ask a question. You mentioned--

you are from Mississippi, right? 

 MR. LUCKEY. Yes, sir, I am. 

 MR. STUPAK. And the Mississippi cases in Judge Jack--in 

Mississippi, your statute of limitations or your statute of limitations tolls 

when the person first learns of the injury, not when there is a definite 

diagnosis. Is that right? 

 MR. LUCKEY. I believe it is knew or should have known they had 

the disease. 

 MR. STUPAK. Okay. What is that period of time when you knew or 

should have known? How much time do they have to file a claim? 

 MR. LUCKEY. Three years currently. 

 MR. STUPAK. Three years, okay. So would it be--not necessarily in 

this case, but in cases in Mississippi, do you file cases before you have a 

definite diagnosis? 

 MR. LUCKEY. Speaking from our firm, the Mississippi law and Code 

of Ethics requires that lawyers have to have a good faith belief in their 

client’s claim before a case is filed. We did not file a claim without a 

written medical report. I can’t think of an exception. 

 MR. STUPAK. Okay. Does Mississippi have a requirement that you 

have a specialist in the area that you are making a claim under certify 

your claim or anything like that? 

 MR. LUCKEY. Not at the time these cases were filed. I believe a 

very current medical malpractice amendment may call for that now. 

 MR. STUPAK. Okay. So would it be, let us say medical malpractice 

in certain cases if you wait for a definite diagnosis of silicosis before 

filing a claim? 

 MR. LUCKEY. I am sorry? 

 MR. STUPAK. Would it be malpractice on the part of the lawyer in 

certain cases for you to wait until there is a definite diagnosis of silicosis 

before filing a claim? 

 MR. LUCKEY. In the event evidence that the client knew or should 

have known he had the disease was present and 3 years passed, then yes, 

the lawyer would have failed to file his client’s case on time. 

 MR. STUPAK. Are you aware of a medical doctor employed by 

defense counsel in the silica cases that refuses to acknowledge X-ray 

evidence on silicosis? 

 MR. LUCKEY. I am aware of many defense experts who have never 

agreed that a client had silicosis or perhaps never agreed that the case 

was as severe. 

 MR. STUPAK. How do you diagnose it then if they don’t believe the 

X-rays? 
411

 MR. LUCKEY. How do the defense experts diagnose it? 

 MR. STUPAK. Right. 

 MR. LUCKEY. Well, in my experience they attribute the disease to 

another cause. 

 MR. STUPAK. Okay. Is there a doctor or two that will only accept--

defense doctor that only accepts biopsy is the only way to diagnose 

silicosis? 

 MR. LUCKEY. I have heard of that anecdotally. I don’t know that he 

has appeared in any of my cases. 

 MR. STUPAK. Okay. 

 MR. LUCKEY. But you know, in general it is common, if not the 

rule, that experts on either side of the case disagree completely. 

 MR. STUPAK. True. That is for the trier of fact to determine, then. 

 MR. LUCKEY. That is for the jury to decide. 

 MR. STUPAK. In your cases--or for anyone, are the defense doctors 

pretty much the same? Do you see them in the same cases, much like we 

see Dr. Harron and some of these others on the plaintiff sides? 

 MR. LUCKEY. Certainly. Different lawyers seem to prefer different 

defense experts, and we see them regularly. 

 MR. STUPAK. Let me ask all of you, if I can, this question. Much 

has been made of the quality of the B-readers and lack of responsibility 

of medical doctors in the mass screening process. We have heard little or 

nothing about the quality of the B-readers by doctors paid by the defense 

and the responsibility that company doctors owe to their patients. 

 So I would like to ask each of you the following questions, if I may. 

I will start with you, Mr. Davis. During the course of your practice, have 

you ever become aware of B-readers or other radiologists employed by 

defense lawyers that seldom, if ever, acknowledge health problems of the 

victims of exposure to asbestosis, to silica, or other toxic materials in the 

workplace or the environment? 

 MR. DAVIS. Congressman, this was our initial entry into the silicosis 

litigation, and because of the delays that we experienced in the MDL, we 

never got to the point of deposing or having discovery with any of the 

defendant experts. 

 MR. STUPAK. Okay. Mr. Manji? 

 MR. MANJI. Congressman, in my practice I come across defense 

doctors who absolutely categorically state that they have seen 200,000 

X-rays in their lifetime of workers and have never seen one case of 

silicosis, so yes, that is true. 

 MR. STUPAK. Mr. Gibson? 

 MR. GIBSON. The same for me, Congressman. I can recall taking a 

deposition of a Dr. Harrison, who made the statement that as a B-reader 

retained by the defendants, in five cases that we were working toward 
412

trial, he made the statement that he had reviewed over 200,000 films 

while working as a B-reader, and that during the entire time that he had 

been in Mississippi he had never seen a single silicosis case. 

 MR. STUPAK. Mr. Zadeh? 

 MR. ZADEH. Same answer. 

 MR. STUPAK. Same. Mr. Fabry. 

 MR. FABRY. It has been my universal experience that the doctors 

employed by the companies that my clients work for and the doctors 

hired by the defendants do not see silicosis or other lung disease. 

 MR. STUPAK. Mr. Mullins or Mr. Luckey, do either want to 

comment to that? 

 MR. LUCKEY. I would stand on my previous answer. 

 MR. STUPAK. Okay. 

 In your testimony, and I had mentioned in my opening statement 

from Dr. Welch challenging the adequacy of the OSHA protection of 

workers exposed to silica, the Agency itself acknowledged their silica 

standard is too weak; that the measurement criteria are outdated, and that 

many workplaces do not even meet the inadequate standard. Please tell 

us what you have learned from your practice regarding the extent to 

which workers are currently being protected from fatal diseases 

occasioned by the exposure of silica. Mr. Davis? 

 MR. DAVIS. Most of the time there is no protection offered at all, 

and I believe OSHA has stated that even at permissible levels, a worker 

exposed will develop silicosis. I believe the CDC said back in the ‘70s 

that the only way to get rid of silicosis is to get rid of silica in the 

workplace. 

 MR. STUPAK. Mr. Manji? 

 MR. MANJI. Congressman, the requirements by OSHA are not 

binding on the employers, which means that when the workers are 

exposed to silica on the jobs, they eventually will develop silicosis. 

There is a real simple way to get rid of silicosis, and that is to replace 

silica with an alternate abrasive, which was proposed in the early 1970s 

but was never carried through by OSHA or NIOSH or anyone else. 

 MR. STUPAK. Let me ask this question then. It seems to me there 

are some of these patients that had to be exposed for at least 2 years. Is 

that sort of when you started seeing problems, after 2 years? It seems 

like that was a minimum exposure time. 

 MR. MANJI. That is not exactly correct. You could have an 

exposure, a very specific high exposure for a very short period of time, 

as little as 3 or 4 weeks, even 5 weeks, which could develop into serious 

acute silicosis. 

 MR. STUPAK. Okay. Mr. Gibson. 
413

 MR. GIBSON. My answers are consistent with theirs. One thing I 

would say that it seems like as time had gone on, some companies have 

done a better job of protection. It could always be better. I could tell 

you I worked on a case with one unfortunate guy who is in his early 30s 

diagnosed with acute silicosis and his exposure started in the late ‘80s, so 

it seems like removing silica from the workplace is the ultimate answer. 

 MR. STUPAK. Mr. Zadeh. 

 MR. ZADEH. The workers were heavily exposed, especially back in 

the ‘60s and ‘70s. There was less protection then. 

 MR. STUPAK. Mr. Fabry. 

 MR. FABRY. From everything I have read, significant silica 

exposures continue to occur in the workplace. 

 MR. STUPAK. Mr. Luckey, anything you want to add to that, or Mr. 

Mullins? 

 MR. MULLINS. Throughout all the, I would say hundreds of 

depositions that I have taken regarding workers, I think we have found 

evidence of one OSHA investigation which the individual being deposed 

indicated they knew in advance and the problems were resolved. I am 

aware of another case that is currently pending that there may have been 

some OSHA involvement or some NIOSH involvement with a particular 

foundry where at least from the workers’ perspective they believe that 

the facility was shut down and I believe maybe moved to Mexico. But 

for the most part, particularly in Mississippi and the rural areas, worker 

safety is dependent upon a benevolent employer. It is just not a staffing 

situation or I think someone has testified about that before, but that is not 

OSHA and NIOSH enforced. It is not a real viable threat to have an 

employer protect worker safety in these areas. 

 MR. STUPAK. In the MDL, Judge Jack ordered the cases removed 

from the MDL and returned to the original jurisdiction. Some States, 

such as Mississippi, required the cases be refiled. Can you tell this panel 

here whether or not the MDL caused the statute to make it impossible to 

try the cases, regardless of the individual merit? 

 Mr. Davis, you said you did some discovery but you never had a 

chance to try it. After they were dismissed in MDL, did you lose your 

right to file in district court? 

 MR. DAVIS. Because of procedural changes in Mississippi law that 

occurred between the time that we filed the cases in 2002 and the time 

that Judge Jack sent them back in 2005--many of our plaintiffs were out 

of State plaintiffs. Those people’s cases were required to be dismissed, 

so they have no cause of action on their silica claims. 

 MR. STUPAK. So out of State, out of Mississippi, you mean? Other 

than Mississippi? 

 MR. DAVIS. Other than Mississippi. 
414

 MR. STUPAK. Okay. Mr. Manji. 

 MR. MANJI. Same answer. 

 MR. STUPAK. Same. Mr. Gibson? 

 MR. GIBSON. Same answer. 

 MR. ZADEH. Same. 

 MR. STUPAK. Mr. Fabry. 

 MR. FABRY. My five clients who participated in the MDL were 

from Missouri, and although there was a significant delay in their cases 

while they were sitting in the MDL and while Judge Jack was conducting 

her investigation of the ongoings in Mississippi, they have been 

transferred back to Missouri and I am continuing to pursue actions on 

behalf of those five. 

 MR. STUPAK. Mr. Mullins or Mr. Luckey? 

 MR. LUCKEY. I alluded to this earlier. My firm represents a fair 

number of very serious cases that have residents and exposure in 

Alabama. Due to changes in Mississippi law, those claimants are out of 

court in Mississippi, and in the event they still have a viable case in 

Alabama, which is very questionable, we have still been unable to find 

Alabama counsel willing to take them on due to the criticism of the 

doctors in the testing. 

 MR. STUPAK. Thank you, Mr. Chairman. It looks like my time is 

up. 

 MR. WHITFIELD. Mrs. Blackburn, you are recognized for 10 

minutes. 

 MRS. BLACKBURN. Thank you, Mr. Chairman. 

 Mr. Davis, I think I would like to come to you first, if I may, please, 

sir. 

 Following back up on the Chairman’s questions, or kind of coming 

in behind it, I want to be sure that I am following basically the timeline 

that I was hearing you say of how you went about securing your clients. 

 First of all, you had inquiries from clients, and then B would be you 

sent a letter to current and former clients about silicosis. C, you had 

N&M test the clients. D, if that individual had a silica injury, then the 

firm accepted the representation of that client, and then after that you 

would advance the cost, that client’s cost for testing to N&M. Am I 

correct in that timeline? 

 MR. DAVIS. Yes. 

 MRS. BLACKBURN. Okay. Is there any addition that you would 

make to that timeline? 

 MR. DAVIS. Well, that probably doesn’t give every detail of every 

thing that happened, but that is a decent synopsis or timeline. 

 MRS. BLACKBURN. Okay, great. 
415

 Now let me ask you this. Did you refer any of your former clients to 

N&M for medical screenings? 

 MR. DAVIS. We sent three or 400 clients. We notified N&M of 

about 300 or 400 clients that said they wanted to be tested, and we asked 

N&M to follow up and see if they could get them scheduled. 

 MRS. BLACKBURN. Okay, so 300 or 400 out of how many did you 

mail to? What was the size of the universe you mailed to? 

 MR. DAVIS. We mailed approximately 17,000, 18,000 letters. 

 MRS. BLACKBURN. Okay, so 17,000 to 18,000 letters, that is your 

universe. All right. 

 Did you refuse to represent anybody? Were there any reasons that 

you refused to represent anybody that had--you said you chose--you 

made a statement in answering the Chairman that you would choose to 

represent people. So did you refuse to represent any people? 

 MR. DAVIS. I would anticipate that we did. 

 MRS. BLACKBURN. Could you verify that for us? You can do that in 

writing if you would like for the sake of time. 

 MR. DAVIS. If we refused to accept them, then they never got on any 

part of our system. They never became a client, so if that happened, it 

happened probably at the time the client came and asked us to represent 

them. So we would not have any record of who we refused or anything 

like that. 

 MRS. BLACKBURN. Okay. So you would have no record of the 

number of people that you declined to represent, or the reasons? 

 MR. DAVIS. I believe that is correct. 

 MRS. BLACKBURN. So you couldn’t verify to us that you refused to 

represent any people? 

 MR. DAVIS. I can’t furnish you any written evidence of that. 

 MRS. BLACKBURN. Okay. All right. 

 I want to go back to this use of the term “understanding” in your 

testimony, because you said in the testimony that you only paid N&M 

for people who were diagnosed with silicosis and accepted your 

representation, and you can’t substantiate that you refused to represent 

anybody. And in your testimony, you also said that it was your 

“understanding” that N&M paid its physicians the same dollar amount 

paid for every X-ray read. So here is my problem. How can N&M pay 

this if they were only screening your clients at a particular location and 

they didn’t get compensated for negative readings, only for positive 

ones? So talk to me about this “understanding” and kind of how you 

walked through that. 

 MR. DAVIS. Every one of the doctors testified that they were paid 

for every either physical exam they made or every X-ray they made, 

whether it was positive or negative, and they were paid by N&M. So it 
416

is my understanding as based upon their testimony before Judge Jack in 

her court. 

 MRS. BLACKBURN. So then their total number of people tested--

okay. So maybe we could go to them and get the number that you 

refused to represent. 

 Let me move on. You stated in your testimony that a qualified 

physician on site would take a medical history and perform a target 

physical exam. Were you or any of your staff aware of any times that 

that did not occur, that there was not a qualified physician on site or that 

they did not perform a target physical exam? 

 MR. DAVIS. No, we believe that in every instance the physician was 

there on site and did the physical exam. 

 MRS. BLACKBURN. Okay. What documentation did N&M furnish to 

you that this physician was on site and that the physician performed the 

exam? 

 MR. DAVIS. The doctor’s report-- 

 MRS. BLACKBURN. Okay. 

 MR. DAVIS. --which State that he met with the client and--he would 

give a report that was a result of those meetings. 

 MRS. BLACKBURN. And you are talking about a physician’s report 

and not the B-reader? 

 MR. DAVIS. That is correct. 

 MRS. BLACKBURN. Okay. So in your opinion, a B-reader never 

made the diagnosis-- 

 MR. DAVIS. No, that is not-- 

 MRS. BLACKBURN. --or any of your clients that you chose to 

represent? 

 MR. DAVIS. No, that is not correct. 

 MRS. BLACKBURN. That is not correct? So there were times the Breader made the diagnosis? 

 MR. DAVIS. In every instance a B-reader made the diagnosis. 

 MRS. BLACKBURN. Okay. 

 MR. DAVIS. The B-reader may have also been the physical exam 

attorney or they may have been more than one doctor at the screening. 

 MRS. BLACKBURN. Okay. Thank you. 

 Mr. Gibson. 

 MR. GIBSON. Yes, Congresswoman. 

 MRS. BLACKBURN. Okay. I want to ask you just a couple of quick 

things. 

 You say that you were given the title of lead counsel for the 

plaintiffs’ firms? 

 MR. GIBSON. Correct. 

 MRS. BLACKBURN. Okay, and who gave you that title? 
417

 MR. GIBSON. Initially when the MDL was set up, the different 

plaintiffs’ firms that had cases in the MDL met and we determined to 

create a steering committee out of those firms and then the steering 

committee selected me as lead. 

 MRS. BLACKBURN. Okay. But in your opinion, that term of lead 

counsel is strictly for administrative work and not for litigation? 

 MR. GIBSON. I would say that my role was more of a coordinating 

role. I guess what I am saying is I wasn’t lead attorney or trial counsel 

on any of these cases. 

 MRS. BLACKBURN. Okay. So it was a coordinator? Is that the 

general understanding to most attorneys and judges of what a lead 

counsel would be? 

 MR. GIBSON. Well, initially I guess I would consider it more of a 

liaison role, and we hired local counsel in Corpus Christi and they took 

the designation of liaison, and I took the designation of lead, but I would 

say that they were similar roles. 

 MRS. BLACKBURN. Similar roles, okay. 

 We have had a series of hearings, and we have had doctors and in 

some instances they were also lawyers that agreed with academic and 

legal scholar articles that claimed that the way mass tort screenings are 

used violate medical ethics and the model rules of professional conduct. 

I would like to know your opinion on that. We have had an article we 

have looked at a couple times, read a couple times, Lester Brickman 

from Academic Radiology. Are you familiar with the article? 

 MR. DAVIS. I am not. 

 MRS. BLACKBURN. You are not. Well, then tell me what your 

opinion is on the issue. 

 MR. DAVIS. I am sorry, I guess I don’t understand the question 

exactly. 

 MRS. BLACKBURN. Well, looking at the violation of medical ethics 

and your rules of professional conduct with how some of these mass tort 

screenings are carried out with the questions that come up, both from the 

medical end and the legal end, the lack of substantiation, the unusual 

occurrences, I guess you will, of the number of cases that seem to appear. 

Does that not cause you any angst? 

 MR. DAVIS. My opinion has always been that medical screenings 

are a good thing. They do a lot of good, and in this instance or in other 

instances, the screenings that we followed and that other attorneys 

followed have been traditionally accepted. 

 MRS. BLACKBURN. Does anyone else from the panel have anything 

they would like to add for that before my time is up, that question? No 

one? Mr. Chairman, I yield back. 

 MR. WHITFIELD. Thank you. 
418

 Ms. DeGette, you are recognized for 10 minutes. 

 MS. DEGETTE. Thank you very much, Mr. Chairman. 

 In sitting here thinking about your role here today and the 

committee’s role, I have some specific questions about the conduct of 

this particular silicosis litigation, but I think there is an overall question I 

would like each one of you to answer, because we have heard about the 

role of the physicians here, we have heard the role about the screening 

physicians. I know myself and some of you all testified about what 

defense physicians, screening physicians do and how they always come 

up with an opinion. In my practice, they always came up with an opinion 

that there was no negligence involved. 

 And so the question that some scholars are asking, and Griffin Bell, 

of course, has posited this, is the question about is there some better way 

we can do screening of victims in these mass tort cases, and is there 

something that State and Federal courts can be doing to better ensure 

reliability of medical screening? And so the question is should State and 

Federal courts consider the use of neutral physician panels to ensure the 

reliability of medical evidence in mass tort lawsuits? And I am sure each 

one of you, as an experienced professional on the plaintiff’s side, has 

given some thought to whether or not this would improve the mass tort 

system, and I am wondering if you could just each tell me your opinion, 

starting with Mr. Davis. 

 MR. DAVIS. If you are able to obtain the truly independent or the 

acceptable to both sides then yes, I think that would be a mechanism to at 

least gett the medical issue of the case resolved. So you then go on to 

who is involved and what are the damages. 

 MS. DEGETTE. Mr. Manji. 

 MR. MANJI. Congresswoman, I believe that there are adequate 

checks and balances in place today with State regulations and Federal 

regulations which oversee and regulate things like X-ray screenings and 

other types of screenings where the worker is protected. Now, in terms 

of an independent medical board, yes, but my concern would be again, at 

some point they may not be as neutral or as independent as one would 

hope them to be. 

 MS. DEGETTE. Mr. Gibson. 

 MR. GIBSON. My answer is largely the same, and I would have the 

same concerns as Mr. Manji, but I can tell you, it is already in the 

process, but the one thing I have noticed lately, a lot of the cases that are 

being diagnosed positive by plaintiffs, at least in Texas, some of the 

cases being diagnosed as positive by the plaintiff expert are being 

confirmed by the defense expert where we didn’t see that as much in the 

past. 
419

 MS. DEGETTE. Well, and if you had an independent board, chances 

are the same would happen, I would think. 

 MR. GIBSON. If it was truly independent and I would be in favor of 

it, sure. 

 MS. DEGETTE. Mr. Zadeh. 

 MR. ZADEH. Same answer. The independence is the issue. 

 MS. DEGETTE. Mr. Fabry. 

 MR. FABRY. Although I believe independence is--if you can find 

someone truly independent that would be good. I am also a firm believer 

in the power of judges to initially evaluate credibility of expert witnesses 

who appear in their courts and exclude testimony that is not credible or 

reliable, and I am also a firm believer in the jury system and the ability of 

juries to discern when a doctor and his opinions are not credible and 

reliable. 

 MS. DEGETTE. Mr. Luckey. 

 MR. LUCKEY. The committee may be aware that in the MDL certain 

plaintiffs, in fact, suggested an impartial panel, and speaking from my 

firm, we have in the past agreed with defendants to send disputed cases 

to an impartial panel. Obviously, the devil is in the details on who 

comprises the panel. 

 MS. DEGETTE. Right, and I mean, you can do it in some ways you 

do it now when you send cases to arbitration or mediation. You might 

pick an expert, the other side picks one, and they jointly pick a third one, 

correct? 

 MR. LUCKEY. That has been done by our firm, yes. 

 MS. DEGETTE. Mr. Laminack. 

 MR. LAMINACK. I certainly agree with Mr. Luckey’s comment. We 

did suggest to Judge Jack that a court-appointed or agreed upon experts 

to look at the X-rays. I do have a little bit different take than most 

people on your question, though. In an industry that exposes people to 

silica and asbestos for years and years and years without protection, I 

think it is an absolute shame that the first time anybody ever offers a 

screening for those diseases to a citizen be from a lawyer. I think the 

companies have abdicated their responsibilities. I think the employers 

have abdicated their responsibilities. I think the healthcare system has 

abdicated its responsibility. I do think it is a shame that the first time a 

20-year sandblaster ever did screen for silicosis is when some lawyer 

comes along interested in protecting his legal rights. I think that is a 

crime. 

 MS. DEGETTE. Well, you make a really good point, Mr. Laminack, 

because we had Dr. Laura Welch who came and testified before this 

committee, and one of the great concerns that she articulated is by the 

focus on this litigation, what it did was it moved our focus--and as I said, 
420

in my opinion, and you probably all disagree with me in some ways, but 

you know the details of this case better than I do. In my opinion, this 

case was dealt with by the legal system and when Judge Jack found there 

were problems, she remanded the case and so on. I mean, I think that 

end worked, from my perspective, and I think that what happened was 

our focus on the details of the litigation took our focus off of the fact that 

silicosis is really a problem for a lot of these workers and we need to 

figure out ways to eliminate silicosis from the workplace. That is really 

where I think we should be putting our attention. So thank you for 

adding that. 

 Mr. Davis, I want to ask you a question as to why your law firm 

contacted former clients to suggest that they be medically examined for 

silicosis. 

 MR. DAVIS. We had received calls from clients asking about it, and 

we knew that many of our clients had worked in the industries that were 

affected. So we were giving them an opportunity to determine if, in fact, 

they had the disease or had the exposure and then find out if they had the 

disease, with no obligation at all that they hire us as the attorney; simply 

let them be aware of the screening and give them the opportunity to go 

have themselves tested. 

 MS. DEGETTE. So it was really basically because you were 

contacted by former clients and asked to look at this, or did you have 

some other medical evidence or some other reason why you contacted? 

 MR. DAVIS. We had numerous clients contacting us asking us if we 

were going to be involved in silica litigation, and our letters and 

responses stemmed from those inquiries. 

 MS. DEGETTE. Mr. Luckey, how did your firm obtain the clients for 

the silicosis claims that you pursued? 

 MR. LUCKEY. As I mentioned earlier, our firms are located near 

sites where there was heavy silica exposure. We obtained many of our 

clients from the local area because we had been involved in occupational 

disease cases for many years. We also had referrals from other attorneys 

who were perhaps not as experienced or did not want to focus on a 

certain type of case. 

 MS. DEGETTE. So your firm did not actually go out and solicit 

clients? 

 MR. LUCKEY. We certainly send newsletters, for lack of a better 

term, to all of our clients, and undoubtedly we mentioned that if you 

were exposed to silica and you believe you may have a disease, call us. I 

suppose that is a form of solicitation. We probably did that. 

 MS. DEGETTE. So you also send out newsletters to former clients? 

 MR. LUCKEY. I firmly believe that communicating with your clients 

as frequently as possible makes for a much happier relationship. 
421

 MS. DEGETTE. Mr. Manji, I wanted to ask you, in your prepared 

testimony you said--and you might have answered this and I didn’t catch 

it--that you had the clients examined by screening companies and readers 

that were questioned in Judge Jack’s opinion, reexamined by other 

people. What was the result of those reexaminations? 

 MR. MANJI. We are still in the process of reevaluating those X-rays 

that Judge Jack had in the repository. She didn’t allow us access to the 

repository until December of 2005, at which time we started having all 

the X-rays reexamined. A substantial number of those came out positive, 

again, by a re-reader. The only statistics, hard statistics I have are on the 

Alexander group of 101 plaintiffs, which is what the case was for, in a 

court of regional jurisdiction, and out of those we had all of the X-rays 

re-read. We had all the plaintiffs reexamined by a new set of doctors. I 

think there were 87 of those that came out positive again with silicosis. 

 MS. DEGETTE. How many cases did your firm have total involved in 

the multi-district litigation? 

 MR. MANJI. I think we had approximately 2,000. 

 MS. DEGETTE. And those are all being reexamined now? 

 MR. MANJI. They are all being re-read as we speak. 

 MS. DEGETTE. Thank you. Thank you, Mr. Chairman. 

 MR. WHITFIELD. Mr. Walden, you are recognized for 10 minutes. 

 MR. WALDEN. Thank you, Mr. Chairman. 

 I want to follow up on that point, Mr. Manji and Mr. Laminack, 

because you said, Mr. Manji, that 87 of the Alexander plaintiffs had--

were rediagnosed, right? 

 MR. MANJI. Correct. 

 MR. WALDEN. And then I believe Mr. Laminack, before the Judge, 

you said the same thing? 

 MR. LAMINACK. Correct. 

 MR. WALDEN. All right. 

 MR. LAMINACK. That is correct. 

 MR. WALDEN. That those were solid proved diagnoses of silicosis, 

they have got it? Those, I think, are your words. 

 MR. LAMINACK. Those are my exact words. 

 MR. WALDEN. And then Judge Jack said “Some 70 percent of those 

also had apparently solid proved asbestosis diagnoses. Did you print off 

the document for them?” And you said “I doubt that” and the Judge said 

“Pardon?” And you said “I doubt that is true.” And the judge asked 

about the asbestosis, and you said yes. And then the Judge said “Mr. 

Laminack, can you speak on behalf of your clients about that?” Do you 

remember what you told the Judge then? 

 MR. LAMINACK. I do. 

 MR. WALDEN. Can you share that with us, or would you like me to-- 
422

 MR. LAMINACK. You can go ahead and read it. I don’t have the 

document in front of me. This is an issue I addressed a moment ago to 

the previous question. 

 MR. WALDEN. I will quote you here, according to the text. “As I 

say, Your Honor, I doubt that. I doubt the numbers and I doubt the 

diagnoses.” And the judge asked “You doubt that they had claims or you 

doubt that they actually had asbestosis?” And you said “Both.” I think 

that was a little different than I thought I had with the response to the 

Chairman earlier. 

 MR. LAMINACK. No, Your Honor. The silica defendants had 

represented to the Judge that 70 percent of the Alexander plaintiffs had 

been diagnosed with asbestos. Our investigation indicated that that was 

not true, and the defendants could never offer us proof that that was true. 

We did uncover the fact that several of the Alexander plaintiffs had 

asbestos. Indeed, in our rescreening and reexamination, the doctors 

found that asbestos, but it was nowhere near like 70 percent. And so my 

comment was I don’t believe the defendants when they are telling you 70 

percent of these people have been diagnosed with asbestos. 

 MR. WALDEN. Okay. 

 MR. LAMINACK. And to this day, I don’t believe that. 

 MR. WALDEN. You don’t believe they had asbestosis? 

 MR. LAMINACK. I don’t believe-- 

 MR. WALDEN. Pardon me? 

 MR. LAMINACK. Pardon me? 

 MR. WALDEN. I am sorry, you-- 

 MR. LAMINACK. I don’t believe they were ever diagnosed with 

asbestos. 

 MR. WALDEN. You don’t believe they had asbestosis? 

 MR. LAMINACK. Correct. 

 MR. WALDEN. Okay, all right. But weren’t you party to 

representing these people in those cases? 

 MR. LAMINACK. In the asbestos cases? 

 MR. WALDEN. Yeah. 

 MR. LAMINACK. No, no. I never represented anybody in an asbestos 

case. 

 MR. WALDEN. Do you have the exhibit book with you, or you didn’t 

get that? 

 MR. LAMINACK. I have some exhibits. I am not sure what I have, 

Congressman. 

 MR. WALDEN. Okay. In our exhibit book, Exhibits 11 and 12, 

although these letters are undated, it appears that in each instance Dr. 

Harron is diagnosing the same individual with asbestosis and silicosis, 

based upon the same X-ray. Why are all the asbestos letters going to 
423

Foster and Harcima firm while all the silicosis letters are going to 

O’Quinn? 

 MR. LAMINACK. I don’t know the answer, I can guess, and my guess 

is I had given instruction to our staff if during the screening process it is 

ever determined that a client or potential client has both asbestos and 

silicosis or only asbestos, then the asbestos part of the case or the 

asbestos case is to be referred to the law firm of Foster and Harcima. 

 MR. WALDEN. And is that because you had a joint venture 

agreement with them? 

 MR. LAMINACK. Well, we certainly had a referral arrangement with 

them, and the O’Quinn firm initially financed the startup of that law firm 

several years ago. 

 MR. WALDEN. So can you explain why the asbestos letters don’t 

mention silicosis, and vice versa? Isn’t that a fairly significant fact to 

leave out of a diagnosis letter? 

 MR. LAMINACK. Well, with all due respect, Congressman, what you 

are looking at is a partial document. The letter you are looking at was 

attached to a package of four documents that included the exact findings 

from the B-read and the exact medical history, and in the case where 

there was dual diagnosis, that information was clearly stated in the Bread information and in the medical history. So if the implication is 

somebody was trying to hide the fact, that is simply not true. That letter 

contained in the package contained all the details of the dual diagnosis. 

 MR. WALDEN. I understand those are the diagnosis letters, is that 

correct? 

 MR. LAMINACK. Yes. 

 MR. WALDEN. And didn’t Dr. Harron insist on separating the 

asbestosis and silicosis? 

 MR. LAMINACK. In the cover letter that went with the package he 

separated them. 

 MR. WALDEN. Why? 

 MR. LAMINACK. Frankly, we insisted that it be separate too because 

our firm doesn’t handle asbestos cases, so if a person had a dual 

diagnosis, then the asbestos part of the case would go to one firm, the 

silica part of the case would go to another firm, would go to our firm. 

 MR. WALDEN. Okay, so if a patient had both an asbestosis 

diagnosis, and a silicosis diagnosis, you referred the asbestosis claim to 

the Foster firm and you kept the silicosis claim, correct? Am I 

understanding that correctly? 

 MR. LAMINACK. Yes, you are. 

 MR. WALDEN. And you had some sort of joint venture referral 

agreement with the other firm? 

 MR. LAMINACK. Correct. 
424

 MR. WALDEN. Was there remuneration in that agreement? 

 MR. LAMINACK. We got paid a referral fee, if that is what you are 

asking. 

 MR. WALDEN. That is what I am asking. 

 MR. LAMINACK. If the case was successful. 

 MR. WALDEN. If the case is successful you got a referral fee paid to 

you? 

 MR. LAMINACK. Sure. 

 MR. WALDEN. And are you an officer or director, or have you ever 

been at the Foster law firm? 

 MR. LAMINACK. Well, when it was originally set up, it was set up to 

have three managers. I was designated, along with Mr. O’Quinn, as a 

non-member manager. My understanding is that was done primarily to 

ensure--since Mr. O’Quinn had provided the money for the startup of 

that firm, that Mr. Foster couldn’t spend or borrow money without Mr. 

O’Quinn’s approval, if you will, so I got elected to be one of the 

managers to ensure that the vote was always 2 to 1. 

 MR. WALDEN. So you had a fiduciary responsibility over that firm? 

 MR. LAMINACK. Yes-- 

 MR. WALDEN. I mean, you were director? 

 MR. LAMINACK. I wasn’t a director, it was kind of a manager under 

Texas law-- 

 MR. WALDEN. Well, then why on the Texas franchise tax public 

information report did they list you as the director? It says “yes” under 

director. 

 MR. LAMINACK. I have never seen a document that lists me as a 

director. 

 MR. WALDEN. Well-- 

 MR. LAMINACK. My understanding is that it was manager. 

 MR. WALDEN. Well, it details you as, at one point, a non-member 

manager, but then also says you are director, so in 2005 it is checked yes. 

Did you get a fee for being manager, I mean, on the board? 

 MR. LAMINACK. No. 

 MR. WALDEN. No. So you did that pro bono? 

 MR. LAMINACK. I guess you could say I did. 

 MR. WALDEN. All right. 

 Mr. Davis, can you turn to Exhibit #7, please? And I would ask you, 

what is the date of this letter and why did you need Dr. Harron to include 

the physical exam language in the diagnosing letters? 

 MR. DAVIS. Dr. Harron had made a physical exam and it was 

omitted from a few, maybe 200 or 300, I think, of his examining reports, 

and since he made the physical exam we asked him to put that in the 

report. 
425

 MR. WALDEN. But are you aware that Dr. Harron testified during 

the Dobbert hearing that he did not agree with the language about him 

relying on the results of the physical exam in making his diagnosis, but 

N&M asked him to include it and he “capitulated”? 

 MR. DAVIS. I do not recall that. 

 MR. WALDEN. So you are not aware that he testified to that? 

 MR. DAVIS. I don’t recall that he testified to that. 

 MR. WALDEN. And this wasn’t language that was required by a 

particular bankruptcy trustee? 

 MR. DAVIS. On silica, no, and this is, as far as I am aware, there is 

not any silica bankruptcy trustees. 

 MR. WALDEN. Okay. Did Campbell & Cherry also provide a 

reasonable degree of medical certainty language to N&M? 

 MR. DAVIS. Yes. 

 MR. WALDEN. Why? 

 MR. DAVIS. Because under the Mississippi standard, a diagnosis is 

not given probated effect, not allowed in the courtroom unless a 

diagnosis is made within a reasonable degree of medical certainty. 

 MR. WALDEN. And is that something Dr. Harron--why wouldn’t he 

have included that to begin with? 

 MR. DAVIS. He probably was unaware that that was a legal standard 

instead of a medical standard. 

 MR. WALDEN. All right. That is my time. 

 MR. WHITFIELD. The gentleman from Texas is recognized for 10 

minutes. 

 MR. BURGESS. Thank you, Mr. Chairman. 

 Mr. Davis, do you have the evidence book that has been provided to 

us? 

 MR. DAVIS. I do. 

 MR. BURGESS. On Exhibit 8, the documents relate to asbestosis 

diagnosis for a particular individual back in 1997. For reasons related to 

privacy, we have redacted the name, but the committee staff recently 

informed your counsel as to this person’s name. Do you know whether 

this individual was an asbestos client of Campbell Cherry? 

 MR. DAVIS. If this relates to Mr. Pierce, yes, he was an asbestos 

client. 

 MR. BURGESS. On the next page--the last page of this exhibit, Dr. 

Harron’s signature is on the page but it is on the letterhead of a Leo 

Castilioni--I think I have pronounced that name right. Is there a reason 

that Dr. Harron would have signed Dr. Castilioni’s-- 

 MR. DAVIS. I have no idea. 

 MR. BURGESS. --report? Okay. Going forward, then, one exhibit to 

Exhibit 9, and this is the same individual 5 years later. The first exam 
426

was done in August of ‘97, the second exam was done January of 2002. 

And this time, 5 years later, 1997 he was diagnosed with asbestosis and 

in 2002 he is diagnosed with silicosis. On pages two and three are 

Xeroxes of the B-reads done by Ray and Andrew Harron, respectively. 

On these B-reads by the Drs. Harron show a film quality of 1 and a 

profusion of 1/0. Pages four and five are B-read by Dr. Martindale of the 

same X-ray which showed a film quality of 3 and a profusion of 0/1, 

which would be a lower probability that this individual had silicosis. In 

other words, the reader thought the likelihood was 0, but it could be read 

as a 1. Then the last two pages appear to be a diagnosis and a B-read by 

a Dr. Allen Oaks. Now, in testimony that you provided to us, you state 

that Campbell Cherry had a conservative practice of having two 

diagnoses for each client before filing suit. This didn’t include going 

from doctor to doctor until you got the diagnosis you required? 

 MR. DAVIS. It did not. 

 MR. BURGESS. Did Campbell Cherry have Dr. Oaks do an additional 

B-read because Dr. Martindale failed to diagnose the client with 

silicosis? 

 MR. DAVIS. To the best of my knowledge, we never received the 

information here from Dr. Martindale. 

 MR. BURGESS. So Dr. Martindale’s B-read, that was not done for 

your law firm? 

 MR. DAVIS. I am not sure who it was done for. I am just telling you 

this is the first time I have been made aware that Dr. Martindale 

reviewed anything on Mr. Pierce. 

 MR. BURGESS. Just out of curiosity, did Dr. Martindale diagnose for 

your firm? 

 MR. DAVIS. Yes. 

 MR. BURGESS. Approximately what number? 

 MR. DAVIS. About 3,700 people. 

 MR. BURGESS. Okay. I might not remember if there were 3,700. 

That is a significant amount. 

 Going back to Exhibit 6 in the book, and staying with Dr. Martindale 

for just a moment. Exhibit 6 is Dr. Martindale’s letter of March 25 of 

‘05. In this letter, Dr. Martindale states that he never intended to be a 

diagnosing physician in any lawsuits and that he was merely asked to 

review X-rays and confirm the diagnosis of the examining physician, 

usually Dr. Ray Harron. Why then did Campbell Cherry elect to list Dr. 

Martindale as diagnosing physician for so many of its plaintiffs? 

 MR. DAVIS. He issued a diagnosing report. 

 MR. BURGESS. Of those 3,700 that you just mentioned, what 

percentage of those do you think, in your recollection, did he issue a 

diagnosing report? 
427

 MR. DAVIS. We have diagnosing reports on 3,700 people from Dr. 

Martindale. 

 MR. BURGESS. The diagnosis is a fairly crucial element of the 

lawsuit. Did Campbell Cherry have any discussions with Dr. Martindale 

about what it needed for the litigation and what he was willing to 

provide? 

 MR. DAVIS. No. 

 MR. BURGESS. In this letter, Dr. Martindale complains that he was 

never made aware that some of the individuals that he diagnosed with 

silicosis had previously been diagnosed with asbestosis. Do you know 

why that important factor was not disclosed to the doctor, Dr. 

Martindale? 

 MR. DAVIS. I don’t know who would have had that information. 

 MR. BURGESS. On the second page of the same letter, Dr. 

Martindale quotes you as saying “I certainly would hate to hear you say 

that at your deposition.” Were you trying to get him to change his 

testimony that he would give before the deposition? 

 MR. DAVIS. No, sir. I was finding it difficult to believe that 2 years 

after he issued diagnosing reports on 3,700 people that he was now 

saying he did not intend to do that, 2 years after we filed lawsuits based 

on his diagnoses. 

 MR. BURGESS. Of these 3,700 people, because of the status of the 

litigation in Corpus Christi, out of those 3,700 people, have any of them 

received any compensation for their alleged injury? 

 MR. DAVIS. Yes. 

 MR. BURGESS. Has there been a payout? What has been the average 

payout per patient? 

 MR. DAVIS. I don’t know. It has not been much. The silica 

litigation did not go very far. 

 MR. BURGESS. Just--and we probably asked Dr. Martindale the 

same question, but I honestly can’t remember his answer to it. How 

much did Dr. Martindale receive in compensation for each of these 3,700 

films that he read? 

 MR. DAVIS. My memory on what he testified to was he received 

$140,000 or $170,000 total, somewhere in that range, for the work that 

he did. 

 MR. BURGESS. Mr. Chairman, it has been a long day for all of us. I 

am going to yield back my time. 

 MR. WHITFIELD. Thank you. I want to ask one other question here. 

We have heard a lot of testimony throughout all these hearings that the 

plaintiff physicians will generally come up with well, asbestos is there, 

silicosis is there, so there is a positive reading. The defense physicians 

say well, I have never seen a silicosis case or asbestosis case. So you 
428

fellows are all experienced in the trial law and you do a lot of cases and 

try a lot of cases. Would you support the use of a neutral physician’s 

panel to ensure the reliability of medical evidence in these mass tort 

lawsuits? 

 MR. DAVIS. I believe Congresswoman DeGette asked us that. I 

believe pretty unanimously we thought that if truly independent panel we 

thought would be a productive thing. 

 MR. WHITFIELD. So all of you would agree with that? Is there 

anyone that would disagree with it? 

 I agree with Diana DeGette that I think it would improve our judicial 

system because plaintiffs have their doctors and defendants have their 

doctors, and then you go to a jury and they have got to try and figure it 

out some way. It would be a great improvement, I believe, if we did 

have a neutral physician panel. So I appreciate all of your comments on 

that. 

 Mr. Stupak, do you have anything else? 

 MR. STUPAK. That is why we have the jury system, Mr. Chairman, 

to make the determination of fact. We shouldn’t leave it to Congress. 

God help us if we do. 

 MR. WHITFIELD. All right. Mr. Walden, do you have anything else? 

 MR. WALDEN. I do, Mr. Chairman. Thank you, Mr. Chairman. 

 I have a couple of questions for Mr. Zadeh and Mr. Fabry. Both of 

you required subpoenas from this committee to produce responsive 

documents, and both of you have produced privilege laws that are wholly 

inadequate to permit the committee to make determinations to whether 

you are asserting privilege in an overly broad fashion. 

 Mr. Zadeh, please turn to Exhibit 19. Do you have that in front of 

you there? The July 19 cover letter and the attached privilege law are 

rather confusing. Do you or do you not have specific responsive 

documents that you are refusing to turn over to the committee, based 

upon claims privilege? 

 MR. ZADEH. Yes, I have attorney/client documents that I am not 

turning over on the basis of privilege. 

 MR. WALDEN. Can you tell us how many? 

 MR. ZADEH. Numerous. 

 MR. WALDEN. Okay. Is that 50, 100, 1,000? 

 MR. ZADEH. Thousands. 

 MR. WALDEN. Thousands of documents? 

 MR. ZADEH. That I communicate with my clients, yes. I have lots 

of communications with my clients, notes, all kinds of things. 

 MR. WALDEN. Specific to what we are requesting? I don’t mean 

every client you have ever had, but relative to the work of this 

subcommittee? 
429

 MR. ZADEH. The subpoena was pretty broad and so with the 

broadness of the subpoena it could arguably come under it. 

 MR. WALDEN. Other firms with far more clients in the MDL have 

been able to review and produce their responsive documents. Why is it 

such a burden for you? 

 MR. ZADEH. I addressed that with Chairman Barton at the last 

hearing. 

 MR. WALDEN. Well, I couldn’t be at the last hearing. Could you 

address it for me, too, please? 

 MR. ZADEH. Sure. I have a lot of documents on silicosis. We 

figured out it was about 16 million documents. 

 MR. WALDEN. How many? 

 MR. ZADEH. Sixteen million. 

 MR. WALDEN. Okay. 

 MR. ZADEH. I collected documents from the MDL, I have all the 

depositions, I have all the information, and so that is why. 

 MR. WALDEN. And how many clients do you have in the MDL? 

 MR. ZADEH. Twenty. 

 MR. WALDEN. Sixteen million documents on 20 clients? 

 MR. ZADEH. I have State court clients as well. 

 MR. WALDEN. I’m sorry? 

 MR. ZADEH. I have State court clients as well. 

 MR. WALDEN. Explain to me what that means. 

 MR. ZADEH. I have cases that aren’t in the MDL. 

 MR. WALDEN. I see, that relate to silicosis? 

 MR. ZADEH. Yes, sir. 

 MR. WALDEN. All right. 

 Mr. Fabry, please turn to Exhibit 20. Can you explain why you 

declined to produce the specific documents listed in the privilege log 

pursuant to the committee’s subpoena? 

 MR. FABRY. First, Mr. Walden, let me respectfully disagree with 

your characterization of our privilege log is inadequate. The-- 

 MR. WALDEN. Could you get a little closer to the microphone, 

please? 

 MR. FABRY. The log is in the format specifically requested by the 

committee, and when we asserted privilege initially, we were advised by 

the committee that the format was not what the committee was looking 

for, and when I subsequently revised the privilege log and put it in 

exactly the format that the committee requested, and I have not heard 

anything since questioning the quality of the privilege log until this very 

minute. 
430

 MR. WALDEN. Can either of you provide legal justification for your 

position that a congressional committee is bound by judicially created 

privilege? 

 MR. ZADEH. You agreed to it last time. 

 MR. WALDEN. I am advised by our staff that we temporarily agreed 

to take a privileged log of the first cut. 

 MR. FABRY. Your subpoena specifically identifies privilege and the 

privilege log and acknowledges the existence of the privilege. Setting 

that aside, this privilege is the world to my clients. It is my obligation to 

assert those privileges on their behalf. It is not for me to give it away. 

 MR. WALDEN. You asked your clients if they are willing to waive 

privilege? 

 MR. FABRY. No, sir, I have not. 

 MR. WALDEN. Mr. Zadeh. 

 MR. ZADEH. No, sir. 

 MR. STUPAK. Mr. Chairman, if I may, it seems like Mr. Walden is--

Mr. Walden, invoking a privileged log that he says is temporary, I think 

that is for the determination of the committee and not just one member. I 

think we are getting a little far astray here of where we should be going. 

If there is an objection as to what these gentlemen provided this 

committee, the committee as a whole should take it up, not an individual 

member who is trying to push forth the subcommittee’s position. Now, 

if this subcommittee has a problem as a whole with what Mr. Fabry and 

Mr. Zadeh put forth, then we should discuss it as a committee. 

 MR. WALDEN. Mr. Chairman, with all due respect, I believe the time 

is mine and I didn’t yield. 

 MR. STUPAK. I would be happy to give you any time that I may 

consume. 

 MR. WALDEN. I don’t-- 

 MR. STUPAK. It is the position of this committee that no one 

member can go out and start asking for things that may or may not be 

privileged, either from the witness-- 

 MR. WALDEN. Chairman-- 

 MR. STUPAK. --or that may be in the documents of this committee. 

 MR. WHITFIELD. Okay. Mr. Stupak, you have made your point, and 

Mr. Walden does have the time. We do have a well-documented 

procedure when we come to questions of privilege, and you are right, the 

committee will have to make a decision as a whole on whether or not the 

documents have been produced that we requested and whether or not the 

attorney/client privilege is relevant or not relevant. But Mr. Walden does 

have the time and I will allow him to continue his questions. 

 MR. WALDEN. Thank you, Mr. Chairman. I appreciate that because 

clearly, I think I have every right to ask these questions, and they have 
431

every right to respond. They can respond as they have, and so that is for 

the committee to decide. 

 MR. STUPAK. When there is a procedure that the subcommittee 

follows, I wish we would follow the procedure. 

 MR. WHITFIELD. I am allowing the gentleman to continue his 

questions, and then we have had long discussions with Chairman Dingell 

about this issue of client privilege, and the committee has its views on it. 

But Mr. Walden, you may continue your questions. 

 MR. STUPAK. Well, Mr. Chairman, the same courtesy will be 

extended to me-- 

 MR. WALDEN. Mr. Chairman-- 

 MR. STUPAK. --in the investigation. 

 MR. WALDEN. Mr. Chairman, if I might-- 

 MR. WHITFIELD. Would you hold just one minute? 

 Mr. Stupak, you know I have not been the one that has been a 

difficulty on this Accutane hearing, and-- 

 MR. STUPAK. Oh, I agree. That is on the jurisdiction of this 

subcommittee. So if we have one standard for one hearing, that standard 

has to apply to all the hearings. We don’t pick and choose-- 

 MR. WHITFIELD. I am not aware-- 

 MR. STUPAK. --what regulations-- 

 MR. WHITFIELD. I am not aware of the privilege client issue on the 

Accutane hearing because I just haven’t been involved in that aspect of 

it. I know that Chairman Barton has taken a particular interest in that 

issue-- 

 MR. STUPAK. Then you know I have, too, so I am very familiar with 

the rules we have been using. So all I am saying is to go down the 

slalom, but do it at each hearing, which is the proper jurisdiction of this 

subcommittee. If it is okay for Mr. Walden to ask those questions, then 

it be okay for me to ask those questions at the subcommittees when I feel 

appropriate. 

 MR. WHITFIELD. At this time, Mr. Walden, you may continue your 

questions. 

 MR. WALDEN. Thank you, Mr. Chairman. I would just say that I 

don’t recall a time in my time on this subcommittee when anybody, any 

member was precluded from asking a question of a witness. That is all I 

have done today. I don’t recall a time when I have crashed in on your 

time, Mr. Stupak, when you aggressively ask witnesses questions, even if 

I may have disagreed with your line of questioning. 

 MR. STUPAK. Well, let me aggressively crash in again. 

 MR. WALDEN. Mr. Chairman-- 

 MR. STUPAK. As the Minority’s side, I think it is our right-- 

 MR. WALDEN. Can we have regular order? 
432

 MR. STUPAK. --that if the procedure of the committee has not been 

followed, it is our right as the Minority side to certainly bring it forward. 

 MR. WHITFIELD. I have made the determination, and Mr. Walden 

may continue to ask questions because I think he has every right to do so. 

Mr. Walden, you may continue. 

 MR. WALDEN. Actually, Mr. Chairman, I am going to yield back the 

time. 

 MR. WHITFIELD. Mr. Walden yields back time. We have concluded 

the--Mr. Inslee, do you have questions? 

 MR. INSLEE. Thank you. I just want to make sure Mr. Walden has 

had adequate time. I would yield some to him if he wanted any. Mr. 

Walden? 

 MR. WHITFIELD. Mr. Walden yielded back his time. 

 MR. WALDEN. I yielded back my time, Mr. Inslee, but I thank you 

for your deep courtesy on that. 

 MR. INSLEE. I think Mr. Fabry said that the subpoena makes 

reference to some privileges, and I wanted to make sure that the 

committee is on the straight arrow about this. The only thing I saw in the 

subpoena that made reference to a privilege was information regarding 

the medical information. I didn’t see anything that would have protected 

an attorney/client privilege in this subpoena. Am I missing something, 

or-- 

 MR. FABRY. I believe, Mr. Inslee, if you look at the listing of what 

should be done in the event of any documents are not produced in 

response to the subpoena, you will find a specific item that says that we 

should create a privilege log. And in my mind, that is an 

acknowledgment in the subpoena of the privilege. And as well as I 

believe you or the member who asked the question of Chairman 

Whitfield the first time I was here-- 

 MR. INSLEE. Right. 

 MR. FABRY. --and it confirmed acknowledgment of privileges by 

this committee. 

 MR. INSLEE. I see that. That is #9 on the list. I appreciate that, 

because I just want to make sure that we follow some legitimate process 

here so that the privilege is recognized and respected to the extent it 

should. And I think it should be. I think the attorney/client privilege is 

an important thing in a congressional context, as well as a civil litigation 

context, as I do private health information. I think they are both 

legitimate privileges that should be respected. At some point, we 

apparently have to have further discussion on how to handle that. It 

sounds to me, from what I have heard, there is some apparent view by at 

least some on this committee that the claim of the privilege has been 

excessive by one or more of the respondents. I just ask the Chair, is that 
433

a concern the Chair has at the moment? If so, I guess I just ask the 

question how we intend to resolve that? 

 MR. WHITFIELD. The committee obviously treads carefully with 

respect to any matter of privilege and confidentiality. And when there is 

a common law privilege, such as the attorney/client privilege, when that 

comes into conflict with Congress’s inherent Constitutional prerogative 

to investigate, the precedents of the House establish that the acceptance 

of a claim of privilege rests in the discretion of the committee. 

 Now historically, this committee has only recognized certain 

Constitutionally based privileges, such as the Fifth Amendment, and this 

practice has been consistent, and I have had discussions with Mr. Dingell 

about that, who has been one of the staunchest defenders of the practice, 

and the committee will make a decision about the--it is at the discretion 

of the committee on this privilege. But Mr. Walden had every right, in 

my view, to ask questions about this as to why a party did not or did 

provide information, and if they did not, what was the basis of their 

privilege--of advocating attorney/client privilege. 

 MR. INSLEE. Thank you, Mr. Chairman. 

 Just a quick question. We would examine the use by plaintiffs’ 

counsel of medical examiners extensively, and we have not done 

investigation of use by defense lawyers of medical professionals. 

 This is just a general question to any or all of you. Have you 

encountered situations where, through your observations, defense 

counsel has engaged the services of medical practitioners who come 

close to 100 percent conclusions that nobody ever got hurt by anything, 

no matter how much hemorrhaging, fractures, disaster were encountered. 

Have you ever run across that with certain physicians? Anybody can 

volunteer to answer that. 

 MR. LUCKEY. Congressman, I believe I touched on that earlier. It is 

very common in our law practice to find certain defense experts who 

never agree with a diagnosis of our plaintiff, or at least find it was caused 

by other means, or much less severe. 

 MR. INSLEE. I think someday if we continue looking at these issues, 

I think that would be useful for the committee to look and see whether 

there is abuse on the other side of the coin, and frankly, I think there are. 

I practiced law for some period of time, and every town has a special 

physician that is always there for the insurance industry. I don’t think 

that is unique to the town I used to practice law in. It might be helpful 

for us to look in that issue as well, because I think the legal system is 

imperfect, as most mortal systems are on both sides of the fence, on 

occasion, and I think it would do well if we looked at both sides of the 

fence in this regard. Mr. Mullins? 
434

 MR. MULLINS. The committee is concerned, obviously, with certain 

medical testimony that has occurred in these cases, and I think it is 

important to--and I know you recognize as we have an adversarial 

system. One of the first things we learned in law school is that experts 

come in pairs. There is one that you can say is this and one that says 

something else. But I think that when you talk about creating a panel of 

independent physicians to review this, I think that the courts inherently 

have that power in most States as it is, that a judge can appoint an expert, 

and they do it in a lot of situations. In Mississippi and I think in Federal 

court they have that power. I don’t think there is any need for any 

legislation in that event. I think the judiciary already has that ability and 

the power if they deem necessary to have court-appointed experts, and it 

is done all the time in various aspects of litigation, although it has not 

been done a lot in the past in mass tort system. 

 MR. INSLEE. Thank you very much. 

 MR. WHITFIELD. Mr. Inslee, I might say, before you came in I think 

it was stipulated defendants have their physicians, plaintiffs have their 

physicians, and we did have a discussion twice about the importance of 

neutral physician panels. So you were the third person to raise this issue 

about plaintiffs, defendants, and their physicians. 

 Are there any other questions for this panel? 

 MR. BURGESS. Mr. Chairman, you let me sit here too long. 

 MR. WHITFIELD. I am sorry. 

 MR. BURGESS. I would like to ask one follow-up question, if I 

could, of Mr. Gibson. 

 Just looking through the evidence book here, looking at Exhibit 16, 

page three of that document from your firm talks about assigning a 

traditional value for the case that would be a 1/0, that is the B-reader read 

it as 1, the lowest severity of disease, the 0 means that it could have been 

no evidence of disease as well. That is there recorded as $50,000 for a 

case that was read a 1/0. Is that correct that those cases were worth 

$50,000 each? Might as well let that run, it has got about five or six of 

those to give us. 

 MR. GIBSON. Okay. 

 MR. BURGESS. Please proceed. 

 MR. GIBSON. Okay. It is probably a range around there. There were 

a lot of discussions with defense lawyers and amongst ourselves, and 

there is no easy answer to that. 

 MR. BURGESS. Better wait on this one. Now proceed. 

 MR. GIBSON. I think there is a general agreement that that is 

probably a good average. 

 MR. BURGESS. On the next exhibit that we go to, which gets us from 

Steve Bryant Associates to you on the--I guess it is page two of that. 
435

They come down with--they do a lot of calculations on those first two 

pages, then it says for $900 million you can settle every case in the 

multi-district litigation. This comes to an average settlement of $100,000 

a piece. This is the historical value for 1/0, at least, that is what Jason 

Gibson has averaged. So we doubled the amount. Is that just to be on 

the safe side? 

 MR. GIBSON. Jason Gibson is not me, obviously. I am not familiar 

with his cases or what his values are, so I don’t really know how to 

respond to that. 

 MR. BURGESS. Just the computations on these two pages, I don’t 

know, Mr. Chairman, I just find them--and maybe it is because I haven’t 

had that much experience with this type of math, but $900 million for the 

cases in multi-district litigation--there were 9,000 depositions, plaintiffs 

only, average time of 5 hours each, $78,750,000 for one insured. If 50 

attorneys show up, the cost for the attorneys will be $393,850,000. My 

math is not that good, but that is right under half of the $900 million for 

every case in the multi-district litigation. 

 When looking at the motions, pleadings, and filings for the silicosis, 

paragraph 37, they are talking about a Dr. Ballard who apparently was 

one of the B-readers. Dr. Ballard’s consistency is remarkable because it 

is in the area of profusion, that is that 1/0, which normally is the area 

where reader variability is most likely to occur. Dr. Parker, the former 

administrator of NIOSH’s B-reader program, had this to say on the 

subject of the consistency of profusion. “What I find most stunning 

about the information I have seen in the last yesterday afternoon and this 

morning is the lack of reader variability, because the consistency with 

which these films are read as 1/0 defies all statistical logic and all 

medical and scientific evidence of what happens to the lung when it is 

exposed to workplace dust. What again is stunning to me is the lack of 

variability. This lack of variability suggests to me that the readers are 

not being intellectually and scientifically honest in their calculations.” I 

mean, I don’t know whether that is true or not, but if there is $100,000 

payoff at the end, I guess I could see a motive if one were so inclined. 

 Again, Mr. Gibson. 

 MR. GIBSON. The only thing I wanted to point out is Mr. Bryant is a 

defense lawyer in the litigation, and the only purpose of this memo, I 

understand that he put together some calculations for what the cost of 

litigation would cost to follow along with the track that Judge Jack set, 

and I asked if he would share that information with me and he did. 

 MR. BURGESS. Mr. Chairman, I will yield back. Thanks very much 

for everyone’s time today. 

 MR. WHITFIELD. The first panel is released. 
436

 At this time, I would like to call the second panel, and that is Dr. H. 

Todd Coulter, a medical doctor from Ocean Spring, Mississippi. Dr. 

Coulter, thank you for being here, and you understand that this is an 

Oversight and Investigations hearing, and we do take testimony under 

oath. Do you have any objection to testifying under oath? 

 [Witness sworn] 

 MR. WHITFIELD. And are you represented by legal counsel, Dr. 

Coulter? 

 DR. COULTER. I am, Congressman, Mr. William Michael Kulick, 

Attorney at Law in the State of Mississippi. 

 MR. WHITFIELD. Mr. William Michael Kulick? 

 DR. COULTER. Kulick. 

 MR. WHITFIELD. Okay, thank you. 

 Dr. Coulter, do you have an opening statement? 

 DR. COULTER. No opening statement. 

 MR. WHITFIELD. Okay. Then I would like to ask you a question. 

 In Exhibit 29 in the binder in front of you, contains two letters signed 

by you, each of which reveals a specific diagnosis of silicosis, and 

according to the testimony before this subcommittee back in June, the 

Mississippi Board of Medical Licensure adopted a policy with regards to 

public screenings on July 18, 2002, which reads in relative part, “It is the 

opinion of the Mississippi State Board of Medical Licensure that any 

medical act that results in a written or documented medical opinion, 

order, or recommendation that potentially affects the subsequent 

diagnosis or treatment of a patient constitutes the practice of medicine in 

this State. Further, any physician who renders such a medical opinion, 

order, or recommendation assumes a doctor/patient relationship with the 

patient and is responsible for continuity of care with that patient.” 

 Dr. Coulter, what efforts did you make to ensure a continuity of care 

with each of the individuals that you diagnosed with silicosis? 

 DR. COULTER. With greatest respect, Mr. Chairman and members of 

the committee, upon the advice of counsel I must elect to invoke my 

Fifth Amendment rights to remain silent, as any answer I give may 

incriminate me. 

 MR. WHITFIELD. So you are refusing to answer this question and 

any other questions that we may have, based on your right against selfincrimination afforded to you under the Fifth Amendment of the 

Constitution. Is that correct? 

 DR. COULTER. That is correct, Congressman. 

 MR. WHITFIELD. Okay. 

 Are there any further questions from any of the other members? 
437

 Based on your invoking your Fifth Amendment right, we are going 

to dismiss you at this time, subject to the right of the subcommittee to 

recall you if necessary, and at this time, Dr. Coulter, you are excused. 

 DR. COULTER. Thank you, Congressman. 

 MR. WHITFIELD. I would like to, without objection, introduce into 

the record this hearing binder with exhibits, and without anything else, 

that concludes this hearing. 

 [The information follows:] 
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 [Whereupon, at 4:46 p.m., the subcommittee was adjourned.] 

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