Statements On Introduced Bills And Joint Resolutions

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS -- (Senate - July 14, 2005)

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By Mr. CORNYN:

S. 1406. A bill to protect American workers and responders by ensuring the continued commercial availability of respirators and to establish rules governing product liability actions against manufacturers and sellers of respirators; to the Committee on the Judiciary.

Mr. CORNYN. Mr. President, I rise today to introduce the ``Respirator Access Assurance Act of 2005.'' This legislation is not a complex or lengthy proposal, but it is critically important for our men and women in uniform, our first responders, and the American public as we continue to wage the war on terror. It is designed to protect the companies that manufacture respirators from abusive litigation--the very respirators that we need for protection against life-threatening environmental hazards and contaminates.

Even as we continue today to debate important appropriations legislation for the Department of Homeland Security, the many American manufacturers and sellers of one of the types of equipment necessary in the war on terror and for our first responders generally--respirators--are being forced by misdirected litigation to decide whether to abandon that market.

Since the year 2000, American respirator manufacturers have experienced an avalanche of mass lawsuits in which thousands of plaintiffs claim they suffered lung damage from respirators because of defective designs and/or failure to provide adequate warnings. Between 2000 and 2004, well over 300,000 individual claims have been filed against major respirator manufacturers. Many of these people show no symptoms of illness.

Respirator manufacturers are included among dozens of defendants in these lawsuits, despite some very important facts. First, respirators don't cause lung disease--employers are legally responsible for providing the right respirator to an employee for the environment in which the employee will be working. Respirator manufacturers have no role in that decision. Second, respirators are 100 percent regulated by the U.S. Government. The National Institute for Occupational Safety and Health, or NIOSH, sets the design standards for respirators, tests every product in its own labs, approves all warning labels, and monitors the manufacturing process to be sure respirators meet the standards for which they were designed.

Perhaps most troubling is the extent to which these claims track very closely with the recent explosion of asbestos and silicosis claims. Recently, a number of ethical questions surrounding many of these claims have come to light.

In my home State of Texas, a Federal court in Corpus Christi under the watch of Judge Janis Graham Jack, has been trying to sort out a few thousand of these cases. That Multi-District Litigation has turned up evidence of fraud--in Judge Jack's words--``great red flags of fraud,'' and highlights attempts by some to recycle plaintiffs who have already recovered in asbestos litigation by claiming they also have silicosis, which is a virtual medical impossibility.

Just today, the Wall Street Journal ran an editorial highlighting this ``tort scam.'' As it points out, ``Judge Jack not only blasted nearly everyone of the 10,000 silicosis claims in front of her court, she documented the fraudulent means by which lawyers, doctors, and screening companies had manufactured the claims.'' She said, ``These diagnoses were about litigation rather than health care ..... these diagnoses were manufactured for money.''

I ask unanimous consent that the Wall Street Journal editorial be printed in the RECORD.

There being no objection, the editorial was ordered to be printed in the RECORD, as follows:
[From the Wall Street Journal, July 14, 2005]

The Silicosis Sheriff

If the criminal investigation of class-action titan Milberg Weiss is anything to go by, prosecutors may finally be starting to hold the trial bar accountable for its legal abuses. Another good sign is that a separate federal grand jury, this one in New York, is investigating the ringleaders of the latest tort scam, silicosis.

Much of the credit for pointing the grand jury toward this corruption goes to Texas federal Judge Janis Graham Jack, who last month put the brakes on the silicosis machine with an extraordinary 249-page decision. Judge Jack not only blasted nearly every one of the 10,000 silicosis claims in front of her court, she documented the fraudulent means by which lawyers, doctors and screening companies had manufactured the claims. ``These diagnoses were about litigation rather than health care,'' wrote Judge Jack. ``These diagnoses were manufactured for money.''

Perfectly said, and we only wish the fearless, judge had been around to render a similar verdict back when the asbestos blob got rolling. It was that juggernaut, largely blessed by the courts, that first allowed trial lawyers to co-opt doctors to create millions of phony claims and extort billions out of corporate defendants. Encouraged by this success, the trial bar revved up the same machinery for silicosis, an occupational lung disease that can be fatal but has been in decline for decades.

It was the fact of this decline that got Judge Jack's attention. A former nurse, she couldn't understand how a disease that causes on average fewer than 200 deaths annually in the U.S. had suddenly resulted in more than 20,000 claims from Mississippi and surrounding states. To get to the bottom of the suits against some 250 companies, the Clinton appointee held 20 months of pretrial proceedings. What she found was a gigantic attempted swindle.

Her first discovery was that, of the more than 9,000 plaintiffs who supplied more information about their ``disease,'' 99% had been diagnosed with silicosis by the same nine doctors. These physicians had been retained by law firms or by ``screening companies'' that do mass X-rays on behalf of law firms searching for plaintiffs. When these physicians were deposed, they all but admitted they took their orders from the lawyers and screening firms.

Which explains why none of them took a medical history, while others never even saw their patients. One doctor signed blank forms for the screening company and let his secretary fill out the diagnoses. Yet another performed 1,239 diagnostic evaluations in 72 hours--less than four minutes apiece. Dr. George Martindale, who diagnosed 3,617 patients with silicosis, admitted that he didn't even know the criteria for diagnosing the disease and had simply included in each of his reports a paragraph provided by the screening company.

Another shocker was that more than 65% of the silica plaintiffs had previously been plaintiffs in an asbestos suit, even though it is close to clinically impossible to have both asbestosis and silicosis. Digging deeper, the judge found that many of the same doctors had ginned up the same patients for both asbestos and silicosis cases. One doctor, Ray Harron, received nearly $5 million from 1996-2004 from a leading screening company, N&M, and has supplied thousands of silicosis diagnoses, and at least 52,000 asbestos-related diagnoses.

Representatives from N&M admitted in court that they had no medical training and that their company has never had a medical director. They confirmed that law firms often set the criteria for the silicosis screening process, and that the screening companies were paid by the volume of people who ultimately joined a lawsuit. As N&M owner Heath Mason testified, his business depended on doing ``large numbers.''

Judge Jack reserved her most severe criticism for the lawyers, noting that statistics alone should have shown that their case defied ``all medical knowledge and logic,'' and that by bringing it regardless they had exhibited a ``reckless disregard of the duty owed to the court.'' She required the Houston firm of O'Quinn, Laminack & Pirtle to pay the defendants' $825,000 in legal fees, and ordered sanctions. She also made clear she was on to the tort bar's tactics, noting that the ``clear motivation'' was ``to inflate the number of plaintiffs and overwhelm the defendants and the judicial system.''

Judge Jack did not shy away from the word ``fraud'' in her courtroom, and clearly someone at the Justice Department has been paying attention. A Manhattan grand jury is now investigating at least one of the screening companies, and subpoenas have gone out to at least two of the doctors involved.

Which shows how large a public service Judge Jack has performed. She could easily have followed other judges and accepted these mass claims at face value. Instead, she dug into the individual claims and found the corruption underneath. In doing so, she has not only stalled the entire silicosis scam, she's opened the door to probing millions of asbestos claims that have come before. The lawyers could attempt to retry their dismissed claims in state court, though amid a grand jury probe they might prefer that this whole issue go away.

Over the years, too many judges have allowed tort lawyers to hijack their courtrooms to perpetrate legal fraud. Judge Jack is showing what good comes when judges truly care about justice.

This level of fraud must be brought to the attention of the American people. The extent to which this type of behavior is the norm rather than the exception is troubling, to say the least. And the breadth of this abuse extends so far now that it endangers the manufacturing of masks for the American people--and people through the world for that matter--who need to protect themselves from airborne contaminants. Thousands of lawsuits have been directed toward these manufacturers--largely indiscriminately.

Many of these cases might someday be dismissed or settled for a few hundred dollars to avoid protracted litigation, but the costs of getting to that point are enormous. Respirator companies have already incurred millions of dollars in litigation and settlement costs, and even after years of arguing in multiple State and local courts they still face hundreds of thousands of individual claims. The costs of this litigation burden are both unjustified and destructive.

Most of the net income these companies receive from respirator sales is being eaten up in litigation costs. Some respirator companies have already decided it is not worth it and have stopped selling in the commercial market, and others are contemplating the same thing. If U.S. manufacturers drop out of the market, those who need respirators will have to use imports, which may be of lower quality and less reliable, or use nothing at all. In either case we are letting this unfounded litigation burden pose additional risk to millions of Americans who need these devices to do their jobs and protect themselves, and all of us, from untold harm.

That is why I am introducing this legislation today. The Act provides respirator manufacturers with protection from the legal costs associated with defending claims for which the manufacturers should bear no liability. It provides that a respirator manufacturer may not be subject to any claim for defective design or warning relating to a respirator or any claim based on such an allegation if the respirator has received NIOSH approval, and the respirator complied with the NIOSH-approved design and labeling in effect on the date of manufacture. This protection would continue notwithstanding a subsequent action by NIOSH to modify, supercede, or withdraw the approval. In addition, we have taken extra measures to clarify that there are exceptions in the Act that would permit liability to be imposed if the initial approval was obtained through fraud, misrepresentation, or bribery.

This is a simple bill that will not cost the government a penny, will not deprive any deserving plaintiff of the right to sue those who may have caused him or her harm, and will assure that this vital industry continues to be an American industry for a long time to come.

I look forward to working with my colleagues to move this proposal forward.

Mr. President, I ask unanimous consent that an article from the Houston Chronicle be printed in the RECORD.

There being no objection, the article was ordered to be printed in the RECORD, as follows:

[From the Houston Chronicle, July 1, 2005]

Federal Judge Throws Out Thousands of Silica Diagnoses

Corpus Christi.--A federal judge has recommended throwing out all but one of about 10,000 diagnoses of the lung ailment silicosis that were used in lawsuits against industrial companies, ruling that doctors ``manufactured'' findings of the disease in hundreds of cases.

U.S. District Judge Janis Graham Jack's scathing 249-page opinion, signed Thursday, finds that the diagnoses are inadmissible in court. The bulk of the cases originate in Mississippi, and Jack sent them back to the state courts along with her report. She threw out the approximately 100 Texas cases that she felt she had jurisdiction over.

Jack's ruling also orders sanctions against Houston law firm O'Quinn, Laminack & Pirtle, which brought roughly 2,000 of the suits. Lawyers from the firm did not immediately return a call for comment today.

A doctor testifying before Jack in December withdrew thousands of his diagnoses, saying he only briefly scanned X-rays to give what he thought was a second opinion on the degenerative diseases caused by inhaling quartz dust.

His withdrawal, made during consolidated pretrial proceedings for lawsuits from several states, prompted Jack to order every doctor and ``screening company'' to back up the diagnoses in the lawsuits. More doctors withdrew their diagnoses, and after hearings in February Jack said she sensed ``red flags of fraud'' in the way plaintiffs were recruited. ``These diagnoses were driven by neither health nor justice,'' Jack wrote in her opinion Thursday. ``They were manufactured for money.''

Danny Mulholland, a Mississippi-based defense attorney for Ingersoll-Rand Co. and other companies, said the opinion was ``historic'' in an age where law firms recruit plaintiffs with billboards and television ads.

``I think the way litigation has been done, and particularly mass tort litigation, changed with the February hearings which culminated in this order,'' he said. ``We'll have to go back in state court and win there, but we expect to, based on what Judge Jack has found.''

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