398 F. Supp. 2d 563 (S.D. Tex. 2005)
Beg Date: 1/1/1983
End Date: 12/31/1984
Present? 0
Presently Employed — “0”=no “l”=yes
Contracted to:
Address:
Title/Trade: Laborer
Additional Duties:
Types of Products (check all manufacturers or models you remember using at this job)
Air Fed Hood
Air Sweeping Equip
Bag Sand
Bag/Baghouses
Blast Equip
Brick Cutter
Bulk Sand
Cartridge Respirator
Ceramic Equip
Compressors, Hoses, Nozzles
Cutting Saws, Cutting Equip
Disposable Dust Masks
Drills, Drill Bits
Jack Hammer
Grinders, Grinding Wheels, Grinding Pads
Mining Equip
Masonry Tile, Brick, Mortar
Non-Air Fed Hoods
Pots Paint Products, Fillers
Quarry Equip
Sandpaper
Refractory Products & Brick
Rock Drilling Equip
Sanders
Shakeout Equip
Sheetrock
Silica Flour
Other Products
List other activity for which you claim silica exposure
Activity:
Year of this activity:
Activity:
Year of this activity:
Activity:
Year of this activity:
Exhibit B
Medical Providers and Diagnosing Physicians
Please list the Diagnosing Physician, if any, and medical providers that your can remember seeing during the last 20 years. If you know, please provide the address, city, state and dates of treatment. Also, if you remember having a chest x-ray, please check the Chest x-ray box.
James W. Ballard, M.D.
X-RAY EVALUATION
February 23, 2002
Law Office of Jim Zadeh, P.C.
115 W. 2nd St., Suite 201
Ft. Worth, TX 76102
Re: Travis, Gordon
Chest radiograph(s) of the chest dated 01/18/02 is reviewed for the presence of and classification of pneumoconiosis according to the ILO 80 classification.
Film quality is grade I. Inspection of lung-parenchyma demonstrates interstitial changes in all six lung zones, consisting of small rounded and irregular opacities of size and shape XX/t, profusion 1/0.
There are no pleural plaques, pleural thickenings or pleural calcifications. No parenchymal infiltrates, nodules or masses are seen. The heart is of normal size and the mediastinal structures are unremarkable.
CONCLUSION: The above parenchymal changes are consistent with silicosis provided the subject’s exposure history and period of latency are appropriate.
James W. Ballard, M.D.
RAY A. HARRON, M.D.
Diplómate American Board of Radiology
Diplómate American Board of Nuclear Medicine
RE: Gordon Travis
DOB: 04/01/57
I certify that on 12/12/03, I examined the above client in Pascagoula, MS, and reviewed a reading of the chest x-ray dated 01/18/02.
The work history provided to me indicates that Mr. Travis had an occupational exposure to silica from 1973 to 2002, while working at various locations. My physical exam reveals there is no clubbing or cyanosis of the fingers. There is no ankle edema. There are no abnormal breath sounds. The client denies having cancer. The client denies having tuberculosis. The client denies having connective tissue disease. This individual reports smoking one-half pack of cigarettes per day for three years, and quit in 1993. The reading of the chest x-ray reveals bilateral interstitial fibrosis consistent with silicosis.
On the basis of this individual’s history of occupational exposure to silica and the reading of his chest x-ray by Dr. Ballard, within a reasonable degree of medical certainty, Gordon Travis has silicosis.
Since silica exposure is associated with an increased incident of cor pulmonale, progressive pulmonary fibrosis, spontaneous pneumothorax, autoimmune connective tissue disease such as scleroderma, rheumatoid arthritis, systemic lupus erythematosus and others, tuberculosis, renal complications and lung cancer, this person should be examined frequently by a physician for possible early detection and treatment of these processes.
Pulmonary Function: See attached.
Ray A. Harron, M.D.
Unless otherwise noted, the background information on silica and silicosis contained herein was gathered from the websites of the Centers for Disease Control (www.cdc.gov & www.cdc.gov/niosh/) and the World Health Organization (www.who.int).
See generally Martin Cherniak, THE HAWK’S NEST INCIDENT: AMERICA’S WORST INDUSTRIAL DISASTER (Yale Univ. Press 1986).
NIOSH has studied several abrasive agents that might be used as substitutes for silica sand during sandblasting. Some of the abrasives studied are steel grit, specular hematite, nickel slag, copper slag, crushed glass, garnet, staurolite, olivine, and coal slag. Most of these abrasives work as well as silica sand and cost about the same or even less. However, the use of a substitute may have other adverse effects. See generally http://www.cdc.gov/elcosh/docs/d0100/d000048/d000048.html.
The CDC estimates that this decline in silicosis mortality is due to (1) the loss of jobs in heavy industry, and (2) dust limits in the U.S., which have been increased steadily for approximately thirty years. (Feb. 18, 2005 Trans, at 226.)
See id.; Feb. 18, 2005 Trans, at 228. Alabama ranks 19th, with an age-adjusted mortality rate of 1.20 deaths per million, and Texas ranks 33rd, with an age-adjusted mortality rate of 0.83 deaths per million. See www.cdc.gov/niosh/docs/2003-111/pdfs/2003-111d.pdf.
(Feb. 18, 2005 Trans, at 229.) The researchers compared the number of silicosis deaths on death certificates with the number of silicosis cases reported by doctors, hospitals and worker’s compensation agencies in Michigan. (Feb. 18, 2005 Trans, at 231.) In Michigan, silicosis is "reportable”, meaning that any diagnosis must be reported to the appropriate agency by law. (By contrast, silicosis is not a reportable disease in Mississippi.) According to occupational medicine expert Dr. Gary Friedman, some experts feel the 6.44 multiplier is too high. (Feb. 18, 2005 Trans, at 231.) The issue is whether the multiplier accurately compensates for the likelihood that silicosis cases are sometimes missed or misdiagnosed by physicians. (Feb. 18, 2005 Trans, at 118.)
Dr. Howard William Ory, an epidemiologist who worked for the CDC for 23 years, estimated that based on data from NIOSH’s silicosis surveillance system (which actively solicits case reports from pulmonary and occupational medicine physicians and “B-readers” (discussed infra)) and from the Michigan study (referenced supra), there would be between 36 and 73 cases of silicosis diagnosed in Mississippi per year. (Ory Aff. at 3 (attached to MDL 03-1553 Docket Entry 1145).)
According to the CDC, Mississippi's silicosis mortality rate ranks 43rd out of the 50 states. See www.cdc.gov/niosh/docs/2003-111/pdfs/2003-111d.pdf. Outside of Mississippi, the majority of the remainder of Plaintiffs in this MDL reside in Alabama (which ranks 19th in silicosis mortality), Texas (which ranks 33rd), and Kentucky (which ranks 14th). The states with the highest silicosis mortality rates (West Virginia, Vermont, Colorado, Pennsylvania and New Mexico being the top five) are not represented. According to the most recent statistics from the CDC's Morbidity and Mortality Weekly Report, during the years of 1968-2002, "[b]y county, the greatest age-adjusted [silicosis] mortality rates were clustered in western states, northeastern states, and north Atlantic states.” http://www.cdc.gov/mmwr/pre-view/mmwrhtml/mm5416a2.htm.
There has been 27 SARS cases in the United States, 251 in Canada, and approximately 8,000 worldwide, mostly in Asia. (Feb. 18, 2005 Trans, at 235.)
Title 28 U.S.C. § 1407, the MDL statute, provides in relevant part: When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multidistrict litigation authorized by this section upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions. Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated .... 28 U.S.C. § 1407(a).
An additional action in this MDL was originally filed in this Court, Alexander v. Air Liquide America Corp., S.D. Tex. Cause No. 03-533.
The exact numbers of Plaintiffs and Defendants change on an almost daily basis. This is because claims are either subtracted from this MDL (usually via unopposed motions to dismiss occasioned by settlement or agreement of the parties) or added to this MDL (via conditional transfer orders from the Judicial Panel on Multidistrict Litigation).
The four current MDL cases filed outside of Mississippi are: Alexander v. Air Liquide America Corp., S.D. Tex. Cause No. 03-533 (filed originally in this Court on the basis of diversity jurisdiction); Kirkland v. 3M, S.D. Tex. Cause No. 04-639 (filed originally in Georgia state court and subsequently removed to the Northern District of Georgia, where it was assigned cause number 1:04-2152); Covey v. Union Pacific R.R., S.D. Tex. Cause No. 05-93 (filed originally in Missouri state court and removed to the Eastern District of Missouri, where it was assigned cause number 4:03-1686); and, Adams v. Pulmosan Safety Equip. Corp., S.D. Tex. Cause No. 05-183 (filed originally in Kentucky state court and removed to the Western District of Kentucky, where it was assigned cause number 5:04-123).
In many cases, the number of Defendants bear no apparent relationship to the number of Plaintiffs. Instead, the number of Defendants (and the identity of the Defendants) seem to be contingent on the identity of the Plaintiffs’ law firms rather than the identity of the Plaintiffs. For instance, O’Quinn, Laminack & Pirtle is Plaintiffs' counsel in 18 MDL cases, 16 of which are brought against the same 73 Defendants, despite the fact that the Plaintiffs in those 16 cases range in number from 9 to 410. Likewise, Campbell, Cherry, Harrison, Davis & Dove is Plaintiffs’ counsel in two MDL cases, one with 247 Plaintiffs and one with 4,280 Plaintiffs, but both against the same 134 Defendants.
At the time of removal, Defendants also argued that federal bankruptcy jurisdiction existed due to the fact that some Plaintiffs had filed bankruptcy. Defendants asserted that "[s]ome or all of the claims in this action are core proceedings or are related to the above-referenced bankruptcy cases, and are within the Court’s original jurisdiction.” (See, e.g., Notice of Removal, Sullivan v. Aearo, 03-369, ¶ 12.) Defendants did not specify which Plaintiffs had filed for bankruptcy protection or when, instead stating in the removal notices that "defendants cannot without remand-related discovery identify every plaintiff with a bankruptcy case.” (Id. ¶ 10.) However, this argument was quickly abandoned by Defendants and has not been reasserted. Since the removing party bears the burden of showing that removal was proper, see Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002), and since Defendants have failed to even attempt to make this showing, the Court will not dwell on the issue of bankruptcy jurisdiction.
As discussed infra, fraudulent misjoinder is a doctrine relevant to a federal court's subject-matter jurisdiction — specifically, diversity jurisdiction.
Order No. 4 provides, in relevant part: 19. The Parties have two weeks to create an affidavit that can be used to develop the factual basis for the claims of each Plaintiff. At a minimum, the Plaintiffs must disclose where they believe they were exposed to silica including the date and location, state their particularized claims against each Defendant, provide medical release authorization, and provide IRS release authorization. The Parties have two weeks to agree on a definition of “silica-related products” that will govern the products claims in this litigation. If an agreement can not be reached on these matters, the Parties are instructed to contact the Court's case manager and a hearing will be held on Thursday, February 5, 2004 at 8:30 a.m. 20. Initial Disclosures must be made by April 5, 2004. Plaintiffs must provide completed affidavits of the factual basis of their claims. In all later transferred cases, Plaintiffs’ affidavits must be disclosed within 60 days from the date of transfer by the Judicial Panel on Multidistrict Litigation. Defendants must disclose all silica-related products they manufactured or distributed from the year 1930 forward and include the relevant time frame of production/distribution for each product, pursuant to the agreed definition of “silica-related products.” (Order No. 4, ¶¶ 19-20.) This Court entered these Orders, as well as those discussed infra, as an exercise of its "wide discretion” over the management of pretrial discovery, especially when “handling the complex issues and potential burdens on defendants and the court in mass tort litigation.” Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir.2000) ("[T]here are approximately one thousand six hundred plaintiffs suing over one hundred defendants for a range of injuries occurring over a span of up to forty years. Neither the defendants nor the court was on notice from plaintiffs’ pleadings as to how many instances of which diseases were being claimed as injuries or which facilities were alleged to have caused those injuries. It was within the court’s discretion to take steps to manage the complex and potentially very burdensome discovery that the cases would require.”) (citing Landry v. Air Line Pilots Ass’n Int’l AFL-CIO, 901 F.2d 404, 436 (5th Cir.1990); Fournier v. Textron, Inc., 776 F.2d 532, 534 (5th Cir.1985) (noting district court's authority to manage and develop complex litigation discovery)). In Acuna, the Fifth Circuit affirmed the district court’s dismissal of plaintiffs’ claims prior to the commencement of discovery when plaintiffs failed to obey district court’s order requiring plaintiffs to submit expert affidavits that "had to specify, for each plaintiff, the injuries or illnesses suffered by the plaintiff that were caused by the alleged uranium exposure, the materials or substances causing the injury and the facility thought to be their source, the dates or circumstances and means of exposure to the injurious materials, and the scientific and medical bases for the expert’s opinions.” Acuna, 200 F.3d at 338, 340.
Certain portions of the Fact Sheets have been omitted from these Exhibits. Specifically, the signed authorizations to release medical and financial records have been omitted, as well as all Social Security earnings statements.
More specifically, Plaintiffs have repeatedly argued that in order to aid Plaintiffs in narrowing their claims, they need (1) photos of each silica-related product manufactured, sold or distributed by each Defendant, and (2) sales receipts showing the ultimate destinations of each Defendant's silica-related products.
The saying is attributed to William Gladstone. See http://bartle-by.school.aol.com/73/954.html.
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under Daubert and its progeny, the trial court makes a "preliminary assessment of whether the reasoning or methodology underlying the [expert] testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts at issue.” Id. at 592-93, 113 S.Ct. 2786.
Many of the Plaintiffs simply failed to obey the Court's repeated orders to submit Fact Sheets. These Plaintiffs will be addressed, infra.
The twelve doctors are: Dr. Robert Altmeyer, Dr. James Ballard, Dr. Kevin Cooper, Dr. Todd Coulter, Dr. Andrew Harron, Dr. Ray Harron, Dr. Glynn Hilbun, Dr. Richard Levine, Dr. Barry Levy, Dr. George Martindale, Dr. W. Allen Oaks, and Dr. Jay Segarra. 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. Throughout this Order, the Court refers to these physicians as the "diagnosing doctors.” This is not meant to imply that any of the physicians are fact witnesses. Plaintiffs have made no such claim; instead, Plaintiffs have consistently maintained that the "diagnosing doctors” are "experts” (although, as discussed infra, they have intimated that some of the doctors may be non-testifying experts).
Approximately 85 percent of the Plaintiffs who submitted Fact Sheets reported having a treating physician. (Feb. 18, 2005 Trans, at 243.) As a general matter, these Plaintiffs do not appear to be indigent individuals who do not otherwise have access to health care.
The nine doctors are: Dr. Robert Altmeyer, Dr. James Ballard, Dr. Kevin Cooper, Dr. Todd Coulter, Dr. Glynn Hilbun, Dr. Richard Levine, Dr. Barry Levy, Dr. George Martindale and Dr. Jay Segarra. The three screening companies are: N & M Inc., RTS Inc., and Innervisions Inc.
The Court selected this Plaintiff’s report at random from a large number of similar choices. The selection of this Plaintiff, or of any other Plaintiff specifically named in this Order or named in an exhibit attached to this Order, should not be interpreted as a finding that the named Plaintiff does not have silicosis or is a malingerer. The social security number which originally appeared on Exhibit 1 has been redacted. Likewise, all social security numbers on all other Exhibits attached to this Order have been redacted.
A "B-reading” is a physician's report of findings from a patient’s chest radiograph (i.e., an “x-ray”). This report is entered on a standardized form using a classification system devised by the International Labour Office ("ILO”). NIOSH issues "B-reader” certifications for physicians in the United States. There are approximately 500-700 certified B-readers currently practicing in the United States. (Feb. 18, 2005 Trans, at 76-77.)
See also Martindale Dep. at 65-66 ("[M]y interpretation of the whole process was that a physician was taking a good occupational history, a medical history, performing a physical exam, and either he or someone else was overseeing the pulmonary function tests, and there was an interpretation of the chest x-ray at the time all of this was done, and these patients were screened for people who appeared as if they had clinical diagnoses of asbestosis or silicosis and the chest x-ray supported that diagnosis.”); 102 ("I assumed that the physician who did the physical, did the history, took the occupational exposure would be making the diagnosis.”).
A copy of this abbreviated "physical and history” is attached as Exhibit 2. A copy of a pre-printed ILO form is attached as Exhibit 3.
Most discovery against non-testifying experts is prohibited by Federal Rule of Civil Procedure 26(b)(4)(B).
Instead of affirmatively stating that the doctors have been retained as non-testifying experts, Plaintiffs only vaguely asserted: "Plaintiffs ... object to the extent that Dr. Cooper is a consulting-only expert for any of the 10,000 [Plaintiffs].” (Mot. Quash Cooper Subpoena, MDL 03-1553 Docket Entry 1084, at 3 (emphasis added) (each of the motions to quash contained the same language).) But as set out above, Plaintiffs did affirmatively state in each motion to quash that each doctor was a "Plaintiffs' expert.” (See, e.g., Mot. Quash Cooper Subpoena, MDL 03-1553 Docket Entry 1084, at 1.)
For ease of reference, hereinafter the Court will refer to the "Daubert hearings/Court depositions” as simply, ”Daubert hearings.”
Specifically, the Defendants had charged that all of Dr. Martindale's diagnoses were "fraudulent”, while Plaintiffs intimated that the Defendants exerted some type of improper influence in order to "flip” Dr. Martindale.
Rule 706 provides, in part: The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. Fed.R.Evid. 706(a).
In this motion, and at other times during the MDL proceedings, Defendants have argued that Mississippi law does not recognize a cause of action for fear of contracting a disease or illness in the future, no matter how reasonable the fear. However, it is worth noting that the pronouncements from the Mississippi Supreme Court have not been so clear. Most recently, the Court stated: We have before found that emotional distress inflicted either negligently or intentionally is compensable. However, emotional distress based on the fear of a future illness must await a manifestation of that illness or be supported by substantial exposure to the danger, and be supported by medical or scientific evidence so that there is a rational basis for the emotional fear. We do not harm and, in fact, preserve a recovery for emotional distress when the same is based on such a foundation. S. Cent. Reg’l Med. Ctr. v. Pickering, 749 So.2d 95, 99 (Miss.1999) (emphasis added) (quoting Leaf River Forest Prods., Inc. v. Ferguson, 662 So.2d 648, 650 (Miss.1995)); see also Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 414 (5th Cir.1986) ("Jackson’s claim is not merely that he might get cancer, or that there is a remote possibility that he will. Jackson has established that there is a greater than fifty percent chance that he will get cancer. Who can gainsay that this knowledge causes him anguish, or that this anguish is reasonable? Certainly not this court and, in our view, not the Mississippi Supreme Court.”) (emphasis in original) (citation omitted). Thus, it appears that a claim for fear of a future illness may be compensable in the absence of manifestation of that illness, so long as the claim is "supported by substantial exposure to the danger, and ... supported by medical or scientific evidence so that there is a rational basis for the emotional fear.” S. Cent. Reg’l Med. Ctr., 749 So.2d at 99.
In addition, at least according to Defendant 3M, whether the Plaintiffs have sustained an injury is relevant to the issue of whether the jurisdictional amount-in-controversy requirement has been met. As alleged in the Complaint and the Fact Sheets, Plaintiffs’ claims' of injuries largely hinge on the experts’ diagnoses of silica-related disease. In light of Dr. Martindale’s deposition, the validity of at least 3,617 Plaintiffs' diagnoses was in question.
These reports are not mentioned on Plaintiffs’ Fact Sheets. Instead, according to the Fact Sheets, all of the Plaintiffs who were examined by Dr. Hilbun or Dr. Cooper were diagnosed with silicosis by Dr. Martindale.
Dr. Levy stated that a physical examination is not necessary to diagnose silicosis. (Feb. 16, 2005 Trans, at 23.) However, Dr. Levy has previously testified in another silicosis case that the taking of a physical, as well as a history, are "standard methodologies” in diagnosing silicosis. Specifically, he testified: The methodologies I've used [in diagnosing plaintiff with silicosis], including differential diagnosis, including reviewing the soundness of the X-rays and the literature, as well as the body of the literature as a whole, including use of Bradford Hill principles, all of those methodologies, the methodologies I've used in reviewing his past medical history, taking a history from him, performing a physical examination, all of those are standard methodologies used by physicians and by epidemiologists. (Feb. 16, 2005 Trans, at 155.)
PFTs, which will be discussed infra, are a broad range of physiological tests that measure how well the lungs take in and exhale air and how efficiently they transfer oxygen into the blood.
Moreover, Dr. Segarra testified that on the rare times he has relied upon another doctor’s B-read, he refuses to make a final diagnosis until he sees the patient’s x-ray himself. (Feb. 16, 2005 Trans, at 360-61.) And on one of those occasions, when he looked at the film, he changed his diagnosis. (Id.)
"Pneumoconiosis” is the general term for a disease of the lungs, such as asbestosis or silicosis, caused by long-continued inhalation of dusts or fibers or other extrinsic materials.
The discussion of the ILO classification system contained herein, see infra, is based on the ILO Guidelines (1980 and 2000 Editions), from testimony during the Daubert hearing, see Feb. 16, 2005 Trans. at 333, 340 & Feb. 18, 2005 Trans. at 44, and from the testimony of Dr. Laura Welch and Dr. David Weill before the Senate Judiciary Committee on February 2-3, 2005, see 2005 WLNR 2777131.
"P”, "Q” and "R” mean that rounded opacities are present, with "P” representing diameters up to 1.5 mm, “Q” diameters from 1.5 mm to 3 mm, and "R” diameters from 3 mm to 10 mm. (Opacities over 10 mm are described as large opacities in box “2C.” of the ILO form.) Small irregular/linear opacities in the same size ranges are classified as "S”, "T” and "U”.
See International Labour Office, Guidelines for the Use of the ILO International Classification of Radiographs of Pneumoconioses at 2 (2000).
Reader variability is most likely to occur on profusions (i.e., "1/0” versus "0/1”) rather than in zones or opacity sizes and shapes. (Feb. 18, 2005 Trans, at 137-38.)
Dr. Parker explained: To reach a medical diagnosis certainly requires more than just shadows on a chest x-ray. Because those shadows can be caused by any number of disease processes. You would be quite interested whether the individual, if the shadows were consistent with silicosis, you would be quite interested in their workplace exposures over their lifetime .... [In making t]he differential diagnosis, you're interested in their [occupational and exposure] history, their review of systems, their past medical history. There are drugs that can cause shadows on x-rays, or pharmaceutical preparations that can injure lung and cause shadows on the x-ray. There are organic dust exposures and inorganic dust exposures that can cause shadows on the x-ray. There are collagen vascular diseases such as rheumatoid arthritis, lupus, that can cause shadows on the x-ray. There's this unusual disorder, sarcoidosis, that can cause shadows on the x-ray, and congestive heart failure can cause shadows on the x-ray. Obese patients, as well as patients who take a shallow breath or other technical quality abnormalities with the film may lead to shadows on the x-ray that may be misleading and thought to be abnormal. But if the film is repeated with better technique, may appear more normal. (Feb. 18, 2005 Trans. at 91-93.) Similarly, Dr. Friedman testified about the "infections and [the] host of different diseases” that can look like silicosis on an x-ray, again highlighting the need for a differential diagnosis. (Feb. 18, 2005 Trans. at 229.)
For example, if the patient had traveled in, or previously lived in, certain areas of California and Arizona, then coccidioidomycosis would need to be ruled out as a cause of the x-ray findings prior to making a diagnosis of silicosis. (Feb. 16, 2005 Trans. at 101-02.)
As Dr. Todd Coulter, one of Plaintiffs’ diagnosing physicians, testified: A: [T]here's more to this than meets the eye. The history has to be expansive but it also has to be guided, if you will, by what the patient tells you.... We ask about social history. We ask about family history. I ask about smoking history. Where I live on the Gulf Coast of Mississippi I want to know about their military history. We’ve got a lot of people who have traveled all over the world. I want to know about their — their public health history, such as, inoculations and immunizations.... Q: So in reviewing the ... information that the patient has given you, you then sit down with a patient and flush that out for more information, that you consider important? A: History, history, history, yes, sir. (Feb. 17, 2005 Trans, at 43-47.)
Similarly, Dr. Gary Friedman, whose testimony will be discussed infra, testified that he usually spends between an hour and an hour and a half with the patient. (Feb. 18, 2005 Trans. at 253.) He continued: "And then after that, I read the x-rays, go over pulmonary function tests, review the medical records, frequently contact the treating doctor. So the total time [to diagnose] is longer." (Feb. 18, 2005 Trans. at 253.)
It is worth noting that because Dr. Segarra only diagnosed a single Plaintiff in this MDL, the Defendants suggested that he not be required to testify at the hearing. However, the Plaintiffs insisted that Dr. Segarra be permitted to testify, and the Court granted Plaintiffs' request. (Feb. 16, 2005 Trans. at 357-58.) Defendants have not challenged Dr. Segarra’s testimony under Daubert.
The information presented in this section comparing silicosis and asbestosis was derived from "Asbestosis and Silicosis,” 349 The Lancet 1311, 1997 WL 9330702 (May 3, 1997).
Dr. Parker did testify that he has seen pathologic evidence (i.e., after an autopsy or biopsy) of both diseases being present. (Feb. 18, 2005 Trans. at 89.) But he called such pathologic findings “distinctly unusual.” (Feb. 18, 2005 Trans. at 90.)
Mr. Mason has attended a three-day course in administering Pulmonary Function Tests. (Feb. 17, 2005 Trans. at 272, 300.)
For instance, sometimes another B-reader would read the x-ray, while Dr. Harron would perform the physical examination and make the diagnosis. (Feb. 17, 2005 Trans. at 283.)
Throughout this Order, Dr. Ray Harron will be referred to either as “Dr. Harron” or "Dr. Ray Harron,” while his son will always be referred to as “Dr. Andrew Harron.”
A photo of a screening truck used by RTS is attached as Exhibit 14.
A photo of a screening van used by N & M is attached as Exhibit 15, and a photo of a screening truck used by RTS is attached as Exhibit 14.
An example of a form used in an N & M screening is attached as Exhibit 16. (Feb. 17, 2005 Trans. at 291-92, 306-07.) The client did not fill out the form between "Doctor Comments:” and "Pulmonary Function Test Results:”.
Campbell Cherry represents approximately 4,256 Plaintiffs in this MDL.
The most common PFTs are spirometry (often repeated after the administration of a bronchodilator such as albuterol), flow-volume loops, single breathing diffusing capacity (known as "DLCO”), helium dilution lung volumes, arterial blood gas analysis, pulse oximetry and sputum induction. See generally http://www.hopkinsmedicine.org/pftlab/pftests.html.
Spirometry is a measurement of forced expiration. The patient inhales maximally, filling his or her lungs to "Total Lung Capacity,” and then exhales forcefully into a device called a spirometer. The spirometer measures the volume and time of expiration, which allows the calculation of a number of parameters of lung functioning. See http://www.hopkinsmedicine.org/pftlab/pftests.html.
A copy of an ILO form is attached as Exhibit 18. A copy of the "A-sheet” is attached as Exhibit 16. (Feb. 17, 2005 Trans. at 319.) As is apparent by the "Doctor Comments” section of the A-sheet, the physical examination was very circumscribed and very brief. (Feb. 17, 2005 Trans. at 323.) For instance, the patient did not change into a gown or lie down. (Feb. 17, 2005 Trans. at 321-22.) The notation "© 1/0” at the bottom of Exhibit 16 indicates Dr. Harron's profusion level reading. (Feb. 17, 2005 Trans. at 319-20.)
In some of these cases, the initial silicosis B-reader also had read that Plaintiff’s x-ray as consistent with asbestosis for asbestos litigation. (Feb. 17, 2005 Trans. at 331-33, N & M Ex. 17.)
These reports were produced for the O’Quinn firm, which, in most instances, took the work histories of the clients. N & M, according to Mr. Mason, "would just verify that information with the client.” (Feb. 17, 2005 Trans. at 400.)
All of the silicosis reports were addressed to the O'Quinn firm at 440 Louisiana Ave. in Houston, while all of the asbestosis reports were addressed to Foster & Harssema, also at 440 Louisiana Ave. in Houston. Mr. Mason explained that the same law firm "had two sets of lawyers ... for this particular thing— one to handle their silica exposure, one to handle their asbestos exposure." (Feb. 17, 2005 Trans. at 400.)
See generally http://www.mantrust.org.
Dr. Harron is correct that it is a legal standard. The Mississippi Supreme Court has stated that "[a] medical expert need not testify with absolute certainty.” Stratton v. Webb, 513 So.2d 587, 590 (Miss.1987). In Stratton, the defendants argued that the plaintiff had not provided the appropriate medical expert testimony to satisfy causation requirements because the medical expert had testified that he could not positively state the cause of the plaintiff's medical condition. See id. at 589. However, the expert testified that the plaintiff had back problems following her accident and felt the injury was related to the accident. See id. at 590. In finding that there was sufficient causation evidence to sustain the verdict, the court stated that the expert's "testimony, taken as a whole, sufficiently established a reasonable medical certainty that the accident caused the injuries.” Id.; see also Blake v. Clein, 903 So.2d 710, 731 (Miss.2005) (same).
Unfortunately, Mr. Connell’s A-sheet was missing. Dr. Harron repeatedly was constrained in answering questions about his diagnoses because he kept no records for his litigation work. All of the materials he used and produced were sent to N & M. (Feb. 16, 2005 Trans. at 299, 318.) N & M and/or the Plaintiffs’ lawyers involved only produced a handful of the A-sheets for the 6,350 Plaintiffs that Dr. Harron diagnosed in this MDL. (Feb. 16, 2005 Trans. at 300.)
Based upon the initials at the bottom of the diagnosing reports, the typist was not Dr. Harron's long-time secretary or the former x-ray technician on his staff, but he supposed it was ”translate[d]” by an unidentified member of "a stable of ... secretarial help [on the second floor of his office building] ... that is always looking for extra work.” (Feb. 16, 2005 Trans. at 289-90, 322.)
Dr. Friedman was hired by the Defendants to testify at the Daubert hearings. However, it is worth noting that in the 23 years Dr. Friedman has consulted in medical/legal matters, 90-95 percent of his work has been for plaintiffs' lawyers. (Feb. 18, 2005 Trans. at 216-17.) Indeed, Dr. Friedman is currently employed in other cases by many of the Plaintiffs' lawyers in this MDL. (Feb. 18, 2005 Trans. at 216-17.)
After Dr. Martindale withdrew his 3,617 diagnoses, Plaintiffs proposed to substitute each of Dr. Martindale's diagnoses with one from Dr. Harron. (Feb. 16, 2005 Trans. at 317.) Whether these were cases where Dr. Harron had already produced diagnosing reports which just had not been used, or whether Plaintiffs were proposing that Dr. Harron would perform the diagnoses anew, was not made clear.
As discussed supra, "S” and "T" opacities are linear or irregular opacities. See generally Exhibit 9, attached hereto.
As discussed supra, “intra-reader variability” is the phenomenon of the same reader reading the same film differently on different occasions. (Feb. 16, 2005 Trans. at 334.)
Dr. Harron testified that he does not supervise the protocol for shooting the x-rays, so he does not know how any of the x-rays were shot. (Feb. 16, 2005 Trans. at 341.)
Unfortunately, since the x-rays had not been produced, the x-rays could not be examined.
Most of Dr. Harron's "consistent with silicosis” B-reads (i.e., finding "P”, "Q” or "R" as the primary and/or secondary opacity), contain a primary or secondary opacity reading which may also be consistent with asbestosis (i.e., an "S”, "T” or "U" reading). However, none of his silicosis reports mention asbestosis.
Most of Dr. Harron’s "consistent with silicosis” B-reads (i.e., finding "P”, "Q" or "R" as the primary and/or secondary opacity), contain a primary or secondary opacity reading which may also be consistent with asbestosis (i.e., an "S", "T" or "U” reading). Therefore, because it is possible that some of Dr. Harron's B-reads for this silicosis litigation may have been consistent with both silicosis and asbestosis, some of these B-reads may have not been complete reversals, or, "about as wide[] [a] variance as you can get” (Feb. 16, 2005 Trans. at 343), but they are nonetheless major reversals; this is because, in the words of Dr. Segarra, "you’re crossing over on the ... small opacity from an irregular to a rounded one.” (Feb. 17, 2005 Trans. at 13.) Moreover, none of his silicosis reports mention asbestosis.
Specifically, Dr. Segarra testified that acceptable intra-reader variability is having the same reader read the same film identically 75-80 percent of the time. (Feb. 17, 2005 Trans. at 14.) And "of the 20 to 25 percent that are different most of the changes should be minor. You can have a couple that are totally different, that happens because medicine is not an exact science and people are human, but they shouldn’t all be complete changes from irregular to rounded or rounded to irregular.” (Feb. 17, 2005 Trans. at 14.) Meanwhile, Dr. Friedman testified that a 10 percent intra-reader variability rate can be expected. (Feb. 18, 2005 Trans. at 298.)
Although Dr. Ballard was not licensed to practice medicine in Mississippi, he traveled with RTS to Mississippi and read x-rays in the course of screens. (Feb. 18, 2005 Trans. at 37-38.) The issue of whether Dr. Ballard's or RTS’s activities constituted the unauthorized practice of medicine for the purpose of the State of Mississippi is not before this Court. However, upon remand, if Plaintiffs persist in basing their silicosis claims on diagnoses founded on Dr. Ballard’s B-reads, then this issue may be relevant. (See generally Feb. 18, 2005 Trans. at 37-43.)
Thus, for the B-reads Dr. Ballard performed for cases in this MDL, he was paid approximately $66,000. He testified that in 2002 and 2001, he was paid approximately $1 million for performing B-reads in asbestos litigation. (Feb. 18, 2005 Trans. at 33.)
Dr. Ballard found her pleural thickening to be the most extensive category on the ILO form — a category “3”, meaning the pleural plaques were visible on more than half of the length of the chest. (Feb. 18, 2005 Trans. at 45-46.)
For the past 18 years, Dr. Levy has not been a treating physician, but instead earns his income through consulting in litigation on behalf of plaintiffs. (Feb. 16, 2005 Trans. at 37, 41-42, 52.) His standard billing rate is $600 per hour, and he has the option of charging $900 per hour for weekend and after-hours work. (Feb. 16, 2005 Trans. at 42-43.) For example, excluding his travel time, Dr. Levy billed approximately $34,000 simply to prepare for his testimony at the Daubert hearings. (Feb. 16, 2005 Trans. at 49-51.)
Dr. Levy is not a B-reader and did not see any of the Plaintiffs’ x-rays. (Feb. 16, 2005 Trans. at 38, 71.) Of Dr. Levy’s approximately 1,389 diagnoses, Dr. Ballard performed the B-read on 950 and Dr. Allen Oaks (whose testimony is discussed infra) performed the B-read on 145, and numerous other physicians performed the remainder of B-reads. (Feb. 16, 2005 Trans. at 176.)
As was the case with Dr. Ballard, the Court need not delve into the issue of whether Dr. Levy's diagnosing of Plaintiffs who were examined in Mississippi, Texas and Alabama constitutes the unlicensed practice of medicine in those states. It is worth noting that Dr. Levy has considered the issue, and his "conclusion was that I was not practicing medicine, that I was providing diagnostic information in the context of medical/legal consultation.” (Feb. 16, 2005 Trans. at 56-57.)
Dr. Levy testified that excluding the 379 people who did not have a sufficient exposure to silica (and therefore could be evaluated quickly), he spent an average of about five minutes on his diagnostic evaluations. (Feb. 16, 2005 Trans. at 67-69.) By comparison. Dr. Segarra and Dr. Friedman each testified that they spend in excess of an hour to diagnose a patient with silicosis. (Feb. 16, 2005 Trans. at 366; Feb. 18, 2005 Trans. at 253.)
The information contained in Exhibit 28 represents all of the information Dr. Levy had when he made his diagnosis. (Feb. 16, 2005 Trans. at 111.)
According to Dr. Levy’s writings: The occupational history has five key parts: (A) description of all the patient’s pertinent jobs, both past and present; (B) a review of exposures based by the patient in these jobs; (C) information on the timing of symptoms in relation to work; (D) data on similar problems among coal workers; and (E) information on non-work factors such as smoking and hobbies that may cause or contribute to disease or injury. (Feb. 16, 2005 Trans. at 134-35.) Dr. Levy has also explained that in taking an occupational history, '‘[t]he number of hours per day and days per year [of exposure to silica] is an important piece of information.” (Feb. 16, 2005 Trans. at 144.) Moreover, an occupational history is important not only to determine the exposure of an individual to silica, but also to attempt to determine the dose. "Exposure" means to be in close proximity or contact with a hazardous substance, whereas “dose” means the amount of that hazardous substance — in this case, silica — that gets into the body. (Feb. 16, 2005 Trans. at 146.) If a worker is exposed to silica, but does not get any silica into his or her body, then it is not a hazardous situation. (Feb. 16, 2005 Trans. at 146.) Hence, questions about dosage are also important. As Dr. Levy has written: Equally pertinent, when asking about exposures ..., the physician should ask questions such as: Does the ventilation system always work adequately? Is it usually turned off, especially in the winter? Do workers follow instructions when performing certain work tasks or when using personal protective equipment? Some physicians might be surprised at how aware workers are of such matters. (Feb. 16, 2005 Trans. at 145-46.)
In response to these and other quotations from his writings about the importance of taking a history, Dr. Levy responded that "[i]t is impossible to obtain a detailed occupational history on every patient seen.” (Feb. 16, 2005 Trans. at 130.) While that statement may be true, that does not mean it is reasonable medical practice to not even attempt to take a detailed history from a patient who is available and willing to give one.
One notable exception is Roosevelt Sykes, the Plaintiff diagnosed by Dr. Segarra.
Some of the people Dr. Coulter diagnosed are not Plaintiffs in this MDL, but are plaintiffs in cases pending in state court.
He currently averages 40-45 patients a day in his clinic. (Feb. 17, 2005 Trans. at 69.)
These purportedly thorough histories have never been produced, despite the Court’s admonition to Plaintiffs’ counsel that if Plaintiffs wished to rely on those histories, they needed to be produced. (Feb. 17, 2005 Trans. at 107-09,117-19.)
Dr. Coulter is not a B-reader, and did not complete an ILO form for any of the Plaintiffs.
According to Dr. Coulter, in laymen's terms, this means that ”[t]he lungs sounded rather junky.” (Feb. 17, 2005 Trans. at 136.) More specifically, ”[r]honchi are sounds that resemble snoring. They are produced when air movement through the large airways is obstructed or turbulent.” See www.nlm.nih.gov/medlineplus/ency/article/003323.htm. By contrast, "[r]ales (crackles or crepitations) are small clicking, bubbling, or rattling sounds in the lung. They are believed to occur when air opens closed alveoli (air spaces).” Id.
As was the case with most of the other diagnosing doctors, Dr. Oaks did not consider the Plaintiffs his patients. (Feb. 17, 2005 Trans. at 186-87.)
If the disease advances to the lower lobes, it will also remain evidence in the upper- and midlobes.
See Defendants’ Motion to Exclude Plaintiffs’ Experts, MDL 03-1553 Docket Entry 1149; and, Defendant 3M Co.'s Mot. for Appointment of a Technical Advisory Panel and Joinder in Defs.’ Mot. to Exclude Pis.’ Experts' Testimony, MDL 03-1553 Docket Entry 1145.
All three of these steps may be bypassed with a biopsy of the patient's lung tissue which shows silicosis. Except for Plaintiff Clark Kirkland, discussed infra, no Plaintiff alleges a biopsy diagnosis.
Although Dr. Levy is not the worst offender among these screening company doctors, because of his sterling credentials and voluminous scholarly works, his participation in this enterprise is perhaps the most disappointing.
As noted supra, while Dr. Friedman was hired by the Defendants to testify at the Daubert hearings, in the 23 years Dr. Friedman has consulted in medical/legal matters, 90-95 percent of his work has been for plaintiffs’ lawyers. (Feb. 18, 2005 Trans. at 216-17.) Indeed, Dr. Friedman is currently employed in other cases by many of the Plaintiffs' lawyers in this MDL. (Feb. 18, 2005 Trans. at 216-17.)
The challenged doctors are: Dr. Ballard, Dr. Cooper, Dr. Coulter, Dr. Andrew Harron, Dr. Ray Harron, Dr. Hilbun, Dr. Levy, Dr. Martindale, and Dr. Oaks.
Coal workers' pneumoconiosis and silicosis are different diseases.
The latest version of the Guidelines state that the ILO Classification System "does not imply legal definitions of pneumoconioses for compensation purposes and does not set or imply a level at which compensation is payable.” International Labour Office, Guidelines for the Use of the ILO International Classification of Radiographs of Pneumoconioses at 1 (2000).
The American College of Occupational and Environmental Medicine did state that it would support the use of a B-read for the diagnosis of pneumoconiosis in epidemiological studies, an application which is not relevant to this MDL. (Feb. 18, 2005 Trans. at 299.)
NIOSH calls this “blinding readers”— i.e., hiding the work history of the person who was x-rayed. According to NIOSH's website: [o]verall bias can occur when readers know the nature of the workplace exposure of the radiographs being classified. Knowledge of exposures can bias readers to recording more or fewer abnormalities or preferentially selecting certain types of abnormality (e.g., rounded opacities for silica-exposed workers versus irregular , for asbestos-exposed workers). See http://www.cdc.gov/niosh/topics/chestradiography/interpretation.html.
Dr. Friedman gave an example of how screenings can be helpful: [U]nder OSHA, the requirement for asbestos is a yearly chest x-ray over age 40, with exposure ten years prior. And if you have contractors who go from employer to employer, none of the employers want to perform the yearly chest x-ray, because ... the employee ... may only be there for a limited number of months. And so they kind of fall through the cracks, and so they get the screening through their union. And it is those trades, like boilermakers, pipe fitters, insulators, that have recognizable levels of exposure, I think it’s appropriate for their unions to provide the screening. If that's done with the aid of lawyers and that’s the way it’s done, I see no problem with that. Personally, I have more of a problem with the mass media advertising to the general public, where you're not targeting known exposed trades. (Feb. 18, 2005 Trans. at 303.) Even the mass screenings conducted in this litigation had some tangential benefits. Dr. Harron and Dr. Coulter each testified that one benefit of these mass screenings was that on a couple of occasions, the doctor examining the x-ray found evidence of cancer or an enlarged heart. (Feb. 16, 2005 Trans. at 264; Feb. 17, 2005 Trans. at 58.) Also, two of the people Dr. Coulter first saw during a screening became patients at his clinic, although not for treatment related to silicosis. (Feb. 17, 2005 Trans. at 56, 61.)
Dr. Parker elaborated: So to give someone a batch of 100 films, it’s ideal to spike that set with some known positives and some known negatives as a quality control on your readers, to see how successful they are at identifying the absence of abnormality or the presence of abnormality on those films. (Feb. 18, 2005 Trans. at 132.)
More specifically, Campbell Cherry paid N & M $750 for each of the firm's 4,256 Plaintiffs in this MDL, and nothing for anyone who did have a positive diagnosis or did not engage the firm. (Feb. 17, 2005 Trans. at 301-03, 325, 363.)
Specifically, Dr. Coulter testified that "I looked up something in the textbook of Internal Medicine on silicosis and found some basic information and said, well, it doesn’t seem like it would be that difficult and that's why I consented [to perform the screenings].” (Feb. 17, 2005 Trans. at 72.)
See Gitlin, et al., Comparison of "B" Readers' Interpretations of Chest Radio-graphs for Asbestos Related Changes, 11 Acad. Radiol. 843 (Aug.2004). Prior to the Daubert Hearing, the Court granted a motion to quash the deposition subpoenas that Plaintiffs had issued to the authors of this study. Among the reasons the Court quashed the subpoenas was that all parties stipulated that this asbestosis study was irrelevant to this MDL. After the Daubert hearings, while the Court finds the results of this study to be unsurprising, the Court will not rely upon the study in making any Daubert rulings.
For instance, Dr. Segarra testified that "ruling out the other diseases ... can often be done by history. The physical exam plays usually a small role in that regard. The history is more important." (Feb. 16, 2005 Trans. at 353-54.)
As Dr. Todd Coulter, one of Plaintiffs’ diagnosing doctors, testified: A: [T]here's more to this than meets the eye. The history has to be expansive but it also has to be guided, if you will, by what the patient tells you.... We ask about social history. We ask about family history. I ask about smoking history. Where I live on the Gulf Coast of Mississippi I want to know about their military history. We've got a lot of people who have traveled all over the world. I want to know about their — their public health history, such as, inoculations and immunizations.... Q: So in reviewing the ... information that the patient has given you, you then sit down with a patient and flush that out for more information that you consider important? A: History, history, history, yes, sir. (Feb. 17, 2005 Trans. at 43-44.)
This is not to say that the challenged physicians did not willingly abdicate their role in the usual physician-patient relationship.
The attorney was arguing that he should not be required to place in the MDL document depository the silicosis B-reads of his non-MDL state-court clients. (Feb. 18, 2005 Trans. at 9-11.)
The Court is mindful of the following advice, stated in a different context by the court in Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777, 785 (3d Cir.1996): "We have not required that when medical experts give their opinion, they recite the talismanic phrase that their opinion is given to 'a reasonable degree of medical certainty,’ because care must be taken to see that the incantation does not become a semantic trap.... ”
The challenged doctors are: Dr. Ballard, Dr. Cooper, Dr. Coulter, Dr, Andrew Harron, Dr. Ray Harron, Dr. Hilbun, Dr. Levy, Dr. Martindale, and Dr. Oaks.
The Mississippi Supreme Court has adopted the Federal Rule 702/Daubert standard for determining the admissibility of expert testimony. See Mississippi Transp. Comm'n v. McLemore, 863 So.2d 31, 39 (Miss. 2003) ("[T]his Court today adopts the federal standards and applies our amended Rule 702 for assessing the reliability and admissibility of expert testimony.”). Hence, the legal standards discussed herein should be applicable in Mississippi state courts.
Six of the Plaintiffs submitted diagnoses from both Dr. Harron and Dr. Levy.
Dr. Levy explained: "I don’t know anything about the screening that the plaintiffs had. I recognize that people had the B-readings and so forth. I'm not familiar with what actually took place." (Feb. 16, 2005 Trans. at 148.)
Another area where Dr. Levy fails to "employe] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field," Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167, is illustrated by the following exchange: DR. LEVY: Here's a gentleman like many other people who have both silicosis and asbestosis.... Q: If he had both, why didn’t you diagnose him with both? DR. LEVY: My job was not to make diagnoses of asbestosis. Q: Okay. THE COURT: [Your] job is not to make diagnosis of anything other than silicosis. DR. LEVY: Well, yes. (Feb. 16, 2005 Trans. at 213.) In contrast to Dr. Levy’s litigation reports, ''[a] treating physician, of course, would have noted all potential abnormalities on the first report.” Dr. David Weill, Senate Judiciary Committee Testimony, Fed. Doc’t Clearinghouse at 8 (Feb. 3, 2005).
The deadline for the designation of experts has past.
The Court makes no finding as to the extent of Mr. Kirkland's injury, or whether it was caused in whole or in part by the inhalation of silica.
Mr. Kirkland and his wife are the only Plaintiffs in Kirkland v. 3M Company, cause number 04-639.
Mr. Kirkland was a plaintiff in a suit filed in Georgia state court on April 11, 2003, and then voluntarily dismissed on April 17.2003. On. January 28, 2004, the same case was refiled in a different Georgia state court by Scott C. Monge as lead counsel. This subsequent action was removed to federal court and, on November 24, 2004, the case was conditionally transferred to this MDL. Mr. Kirkland alleges that he has developed silicosis as a result of exposure to silica dust while a rock driller for the U.S. Army in the 1970's. (Kirkland Dep. at 18.)
The specifics of Mr. Kirkland's allegations are matters for another forum.
When considering the issue of federal subject-matter jurisdiction, the Court will apply the law of the Fifth Circuit. See In re Temporomandibular Joint Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir.1996) ("When analyzing questions of federal law, the [MDL] transferee court should apply the law of the circuit in which it is located.") (citing In re Korean Air Lines Disaster, 829 F.2d 1171, 1176 (D.C.Cir.1987), aff'd, 490 U.S. 122, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989)); see also Murphy v. F.D.I.C., 208 F.3d 959, 965-66 (11th Cir.2000) (same); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir.1993) (same). Jurisdiction is "arguably the area where the need for uniformity in federal law is most compelling.” In re StarLink Corn Prods. Liab. Litig., 211 F.Supp.2d 1060, 1063-64 (D.C.Ill.2002). "The diversity jurisdiction law of the [MDL] transferee court should be applied because 'applying the law of the transferor circuit could yield a situation where we would find federal jurisdiction exists over claims from some parts of the country, but not from others. This is an untenable result.' ” In re Mastercard Int’l, Inc. Internet Gambling Litig., 2004 WL 287344, *2 (E.D.La. Feb. 12, 2004) (quoting In re StarLink Corn Prods. Liab. Litig., 211 F.Supp.2d at 1063-64); see also In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 256 F.Supp.2d 884, 888 (S.D.Ind.2003) (same); In re Diet Drugs Prods. Liab. Litig., 220 F.Supp.2d 414, 423 (E.D.Pa.2002) ("As an MDL Court sitting within the Third Circuit, we must apply our Court of Appeals' fraudulent joinder standard.”).
Unless specifically referenced infra, the following discussion of the Court’s subject-matter jurisdiction applies to the removed cases listed in "Appendix A,” attached hereto.
The federal removal statute, 28 U.S.C. § 1441(a), allows for the removal of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction.”
As previously discussed, at the time of removal, Defendants also argued that the Court possessed bankruptcy jurisdiction due to the fact that some Plaintiffs had filed bankruptcy. However, this argument has been abandoned. See footnote 16, supra.
"The Supreme Court has long interpreted § 1332's phrase ‘matter in controversy’ not to allow multiple plaintiffs to add together separate and distinct demands, united for convenience and economy in a single suit, to meet the requisite jurisdictional level." Allen, 63 F.3d at 1330 (“The general rule is that each plaintiff who invokes diversity of citizenship jurisdiction must allege damages that meet the dollar requirement of § 1332.”) (quotation and citations omitted).
As discussed infra, Alexander was originally filed in this Court.
In Gebbia, the Fifth Circuit held that it was "facially apparent” that the following allegations made a claim for damages in excess of $75,000: Plaintiff alleged in her original state court petition that she sustained injuries to her right wrist, left knee and patella, and upper and lower back. Plaintiff alleged damages for medical expenses, physical pain and suffering, mental anguish and suffering, loss of enjoyment of life, loss of wages and earning capacity, and permanent disability and disfigurement. Gebbia, 233 F.3d at 883.
In its Motion to Remand, 3M argues that the evidence presented during the Daubert hearings constitutes "summary judgment-type evidence” showing that most Plaintiffs do not satisfy the amount-in-controversy requirement. However, in the Fifth Circuit, a court looks to "summary judgment-type evidence” only if it is not "facially apparent" that the claims exceed the jurisdictional minimum. See St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253-54 (5th Cir.1998) ("The district court must first examine the complaint to determine whether it is 'facially apparent' that the claims exceed the jurisdictional amount. If it is not thus apparent, the court may rely on 'summary judgment-type' evidence to ascertain the amount in controversy.”) (emphasis added); cf. H & D Tire and Automotive-Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326, 329 (5th Cir.2000) ("Because it is not facially apparent from the complaint that the jurisdictional amount is satisfied, we will look elsewhere in the record to determine the amount in controversy.”) (emphasis added); Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir.1995) (“In situations where the facially apparent test is not met, the district court can then require parties to submit summary-judgment-type evidence, relevant to the amount in controversy at the time of removal.”) (emphasis added). In a footnote, the Allen court continued: "The efficient procedure is to not require such 'summary judgment’ proof until after the initial consideration of the face of the complaint.” Allen, 63 F.3d at 1336 n. 16. Therefore, in these MDL cases, because it is "facially apparent” from the Complaints that the amount-in-controversy requirement is satisfied, the evidence adduced at the Daubert Hearings may not be used to subsequently show that the amount-in-controversy requirement is not satisfied.
The requirement that a Defendant be “properly joined” is discussed infra.
The pertinent allegations in all of the Notices of Removal are identical.
The term, "improper joinder,” was recently adopted by the Fifth Circuit. See Smallwood, 385 F.3d at 571 n. 1 ("We adopt the term 'improper joinder' as being more consistent with the statutory language than the term 'fraudulent joinder,' which has been used in the past. Although there is no substantive difference between the two terms, 'improper joinder' is preferred.”).
For example, in all but one of the MDL cases, the Defendants who manufacture air compressors have argued that, as a matter of law, they had no duty to warn Plaintiffs of the health hazards associated with respirable silica and abrasive blasting. (See MDL 03-1553 Docket Entries 1107 & 1108; see also Barnes v. Alabama Carbonates LP, S.D. Tex. Cause No. 03-511, Docket Entry 86.)
In the Rezulin Products MDL, the court stated: Although misjoinder is a ground for dismissal or severance of an improperly joined party, the vast majority of courts confronting the issue on remand motions have found that misjoinder of a party with a unique claim against a non-diverse adversary is not alone a basis for remand. One treatise suggests that this is because improper joinder does not defeat the possibility of a claim against the misjoined party, as is required to satisfy the traditional standard for fraudulent joinder in discounting the citizenship of non-diverse parties. Thus, courts considering the issue generally have looked for the additional element of a bad faith attempt to defeat diversity, defining misjoinder of this type as a third species of fraudulent joinder. In re Rezulin Prods. Liab. Litig., 168 F.Supp.2d at 146-47 (citing inter alia, Tapscott, 77 F.3d at 1360).
As discussed more fully infra, following the lead of the Eleventh Circuit in Tapscott, this Court will apply Federal Rule of Civil Procedure 20, rather than an analogous state-law joinder rule, in determining the jurisdictional issue of "egregious misjoinder.” See Tapscott, 77 F.3d at 1360; see also Edwards v. E.I. Du Pont De Nemours & Co., 183 F.2d 165, 168 (5th Cir.1950) ("[I]n procedural matters we are controlled by the Federal Rules of Civil Procedure, 28 U.S.C.A.... [W]e look to the federal statutes as construed by ... federal decisions to determine whether the case is removable in whole or in part, all questions of joinder, non-joinder, and misjoinder being for the federal court.”) (citations omitted). Moreover, as discussed infra, in these cases, the result would be no different if the Court analyzed the “egregious misjoinder” issue using Mississippi Rule of Civil Procedure 20.
Prince, with 4,280 Plaintiffs, and Clark, with 1,566 Plaintiffs, are the largest cases in this MDL. Because of this, the egregiousness of the misjoinder of the Plaintiffs in those cases seems especially pronounced. But even as to the other cases which purport to join lesser numbers of Plaintiffs, each with disparate work and exposure histories, this “egregious misjoinder” discussion is applicable. The are, however, two notable exceptions: Kirkland v. 3M Co., S.D. Tex. Cause No. 04-639 and Gatlin v. Ash Grove Cement Co., S.D. Tex. Cause No. 04-638. Kirkland (a case with only two Plaintiffs, husband and wife) will be addressed separately, infra. Gatlin is a single-Plaintiff case with 6 Defendants. The portion of this Order addressing the joinder of Plaintiffs is not applicable to Gatlin. The case nonetheless has been included with the other cases listed on "Appendix A” because the discussion related to the "Appendix A” cases in the other jurisdictional portions of this Order are applicable to Gatlin.
Certain portions of the Fact Sheets have been omitted from these Exhibits. Specifically, the signed authorizations to release medical and financial records have been omitted, as well as all Social Security earnings statements.
Rudder was initially filed in Alabama state court by three plaintiffs, two of which were Alabama residents, and one of which was a resident of Michigan. The sole defendant was Kmart Corporation, a resident of Michigan. The suit was based on the alleged fraudulent sale by Kmart of used auto batteries as new batteries. The Michigan plaintiff purchased batteries at Kmart stores in Michigan and Alabama. However, the Alabama purchase occurred after he initiated suit against Kmart. The Alabama plaintiffs purchased their batteries at Kmart stores in Alabama. Kmart removed the case to Alabama federal court on the jurisdictional basis of diversity of citizenship. Kmart alleged that the Michigan plaintiff was fraudulently misjoined to destroy diversity of citizenship jurisdiction. Finding that the Michigan plaintiff was fraudulently misjoined under Rule 20, the Rudder court held: Clearly, McGuire [the Michigan Plaintiff] and the other plaintiffs do not “assert a right to relief arising out of the same transaction or occurrence, or series of transactions or occurrences.” McGuire’s Alabama purchase — assuming arguendo that it could possibly form the predicate for a valid cause of action — occurred in complete factual, temporal and geographic isolation from Rudder’s and Soleman's [the Alabama plaintiffs]. The record contains no evidence of any connection whatsoever between the plaintiffs or their respective transactions. Indeed, McGuire testifies in essence that he has never spoken to either William Rudder or Cissy Soleman. The record reflects no reason why the joinder of McGuire, a Michigan resident, to the other two plaintiffs, Alabama residents, would serve any legitimate purpose of fairness or judicial efficiency. In short, the claims of McGuire, and Rudder and Soleman, are not claims that a reasonable person would normally expect to be tried together. Rudder, 1997 WL 907916 at *5 (citations and footnotes omitted).
After holding that the joinder of the plaintiffs' claims were improper, the court remanded the case for severance of all plaintiffs' claims and “also instructed] the trial court to transfer the severed cases to those jurisdictions in which each plaintiff could have brought his or her claims without reliance on another of the improperly joined plaintiffs.” Janssen, 866 So.2d at 1102; see also Dillard’s, Inc. v. Scott, 908 So.2d 93, 98 (Miss.2005) (“[T]he out-of-state plaintiffs with no connection to Mississippi and whose causes of action accrued out of state shall be dismissed without prejudice and all remaining cases without an independent basis for venue in Hinds County shall be severed and transferred to the appropriate jurisdiction where each plaintiff could have brought his or her claim without reliance on an improperly joined plaintiff.”). Although this Court makes no finding on this issue of state-court procedure, the holdings of Janssen and Dillard's appear to be applicable to these MDL cases.
The alternative, apparently, is for one plaintiff to be forced to maintain separate actions against each defendant he claims caused his alleged illness. Hence, under this alternative, if a plaintiff claims 20 defendants’ products combined to cause his silicosis, he would be forced to prosecute 20 separate actions (some in state court and some in federal court), which ultimately could culminate in 20 separate jury trials.
To be fair, the impetus for Defendants’ unorthodox suggestion was a comment made by this Court during the December 17, 2005 Status Conference: “Well it could be that I don't have to sever each Plaintiff from each case, but that I can just look at it as each Plaintiff having a separate cause of action against each Defendant for diversity purposes.” (Dec. 17, 2004 Status Conf. Trans, at 16.)
While the Court has (at Defendants’ urging) applied Federal Rule 20 in the improper joinder analysis, it is worth noting that the Mississippi Supreme Court’s latest decision on the issue indicates that under Mississippi Rule 20, each Plaintiff's joinder of the Defendants (or at least different classes of Defendants) was improper: [T]he plaintiffs sued multiple defendants based on multiple theories of causation. These defendants were required to defend themselves alongside unrelated defendants. From 3M's perspective, it was the only defendant in the suit which did not manufacture or distribute a product containing asbestos. Therefore, not only were the plaintiffs' claims lacking in a similar transaction or occurrence, but the defendants were improperly joined as well pursuant to Miss. R. Civ. P. 20(a). 3M Co. v. Johnson, 895 So.2d 151, 158-59 (Miss.2005). But even if this Court were applying Mississippi Rule 20, the Court would not find "egregious” misjoinder.
Section 1446(b) of the removal statute states, in relevant part: The petition for removal of a civil action ... shall be filed within thirty days after the receipt by the defendant ... of a copy of the initial pleading setting forth the claim for relief upon which such action ... is based. 28 U.S.C. § 1446(b).
The Fifth Circuit in Jernigan explained: [A]s a general rule, removal requires the consent of all co-defendants. In cases involving alleged improper or fraudulent joinder of parties, however, application of this requirement to improperly or fraudulently joined parties would be nonsensical, as removal in those cases is based on the contention that no other proper defendant exists. Jernigan, 989 F.2d at 815.
The removal statute provides: "Any [diversity] action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b).
In September 2004, after this MDL had been pending for a year, the Fifth Circuit issued its en banc Smallwood decision. Among other things, the decision states: "We emphasize that any piercing of the pleadings should not entail substantial hearings. Discovery by the parties should not be allowed except on a tight judicial tether, sharply tailored to the question at hand, and only after a showing of its necessity.” Smallwood, 385 F.3d at 574. At the time the opinion was issued, discovery had been permitted for approximately five months, and continued to be available during and after the briefing process on subject-matter jurisdiction. Indeed, on June 1, 2005, the Court conducted a phone conference on a discovery dispute in this MDL. Although Smallwood and a host of other cases establish without equivocation that a court’s initial inquiry must be determining its own subject-matter jurisdiction, see id. at 576, this Court was also mindful of its role as an MDL transferee court, a role designed "to avoid duplication of discovery, prevent inconsistent or repetitive pretrial rulings, and conserve the resources of the parties, their counsel and the judiciary.” In re Silica Prods. Liab. Litig., 280 F.Supp.2d 1381, 1383 (Jud.Pan.Mult.Lit.2003). From the outset, the Court ordered the Plaintiffs’ and Defendants’ Fact Sheets, which were directly related to jurisdiction. But in simultaneously allowing other discovery, the Court almost certainly moved beyond the "sharply tailored” discovery envisioned by Smallwood.
Other than 3M, Defendant ITW Vortec moved for remand on the basis of lack of subject-matter jurisdiction. (See Clark v. Air Liquide Am, Corp., S.D. Tex. Cause No. 03-376, Docket Entry 293.) Also, Defendant Bacou-Dalloz Safety, Inc. joined in and adopted 3M’s Motion to Remand. (See MDL 03-1553, Docket Entry 1631.) In addition, a large number of Defendants did not join in the removals and have not filed anything in support of or in opposition to federal jurisdiction. Throughout the discussion of subject-matter jurisdiction contained herein, general references to "Defendants” or "the removing Defendants” refers only to those Defendants who actively advocated federal jurisdiction during the final briefing in February and March 2005.
In addition, the Defendants were required, inter alia, to list (and include photos if possible) of "all silica-related products they manufactured or distributed from the year 1930 forward and include the relevant time frame of production/distribution for each product.” (Order No. 4, ¶ 19.) Plaintiffs argued that this information was necessary for them to determine precisely against which Defendants each Plaintiff had a claim.
Under certain circumstances, when the party bearing the burden of establishing jurisdiction initially fails to adequately allege complete diversity, a court may allow that party to amend its allegations. Specifically, "a party shall be allowed to amend its complaint in order to make a complete statement of the basis for federal diversity jurisdiction where diversity jurisdiction was not questioned by the parties and there is no suggestion in the record that it does not in fact exist." Stafford, 945 F.2d at 806 (emphasis added) (citing Leigh v. Nat’l Aeronautics & Space Admin., 860 F.2d 652, 653 (5th Cir.1988); 28 U.S.C. § 1653). However, in these cases, jurisdiction has been questioned and there is a suggestion in the record that diversity does not exist. Moreover, Defendants have failed to even request the opportunity to amend any of their jurisdictional submissions (ranging from the notices of removal, which began in 2002, to their final jurisdictional submission in 2005).
As was the case with their proposed case management plan, Defendants do not posit a timetable for completing the deposition process. Instead, it is a process with no apparent end.
Mississippi Rules of Civil Procedure 8, 9, and 10 govern the rules and form of pleading. Mississippi Rule of Civil Procedure 11 provides in part: (a) Signature Required. Every pleading or motion of a party represented by an attorney shall be signed by at least one attorney of record.... The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.... (b) Sanctions. If a pleading or motion is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the pleading or motion had not been served. For wilful violation of this rule an attorney may be subjected to appropriate disciplinary action.... If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys' fees. Miss. R. Civ. P. 11. In addition to referencing Rule 11 sanctions, the Mangialardi court decried the plaintiffs’ failure to meet the requirements of Mississippi’s joinder rule (Mississippi Rule 20), and then stated: [Plaintiffs] don’t appear to know when they were exposed [to asbestos], where they were exposed, by whom they were exposed, or even if they were exposed. Presumably, when they learn this information, plaintiffs’ counsel intends to dismiss those who should not have been joined. This is a perversion of the judicial system unknown prior to the filing of mass-tort cases. Mangialardi, 889 So.2d at 495.
Although this issue has not been fully briefed, the parties have noted in passing that, in the absence of a tolling agreement, the dismissal of these claims without prejudice would have the effect of a dismissal with prejudice.