Commentary by yaofenji


									LexisNexis MEALEY’S LITIGATION REPORT: Silica                                                  Vol. 4, #5 January 2006


In The Wake Of Silica MDL 1553
Fred Krutz
Jennifer R. Devery

[Editor’s Note: Fred Krutz is a partner with the law           Judge Jack’s decision to conduct the three-day hearing
office of Forman, Perry, Watkins, Krutz & Tardy, LLP.            in large part resulted from the deposition testimony
Mr. Krutz has many years of experience in defending            of one of the plaintiffs’ principal “diagnosing” physi-
thousands of mass tort and multiple plaintiff cases in          cians, Dr. George Martindale. He testified that, con-
state and federal courts, including silica, asbestos, noise-   trary to the medical reports submitted on behalf of
induced hearing loss, personal injuries from alleged pol-      approximately 3,000 plaintiffs, he had not intended
lution of air and surface waters, and consumer finance          to diagnose any plaintiff with a silica-related disease.4
cases. Mr. Krutz also served as chairman of the Defen-
dants’ Steering Committee in the silica MDL 1553 in            Subsequently, in addition to Dr. Martindale, a num-
Corpus Christi, Texas. Jennifer R. Devery is a counsel at      ber of the other physicians involved — Drs. Kevin
Crowell & Moring LLP in Washington, D.C. Her prac-             Cooper, Glyn Hillburn, and Richard Levine — ex-
tice includes defending and counseling insurance carriers      plicitly withdrew their diagnoses. Ultimately, Judge
and defendants on cases involving mass torts, consumer         Jack determined that the methodology of a number of
products litigation, and insurance coverage. Copyright         other doctors — Ray Harron, Andrew Harron, James
2006 by the authors. Replies to this commentary are            Ballard, Todd Coulter, Barry Levy, and Allen Oaks
welcome.]                                                      — was not sufficiently reliable to be admissible under
                                                               Daubert v. Merrell Dow Pharms., Inc. (509 U.S. 579
On June 30, 2005, United States District Court Judge           [1993]).5 While Judge Jack eventually determined
Janis Graham Jack for the Southern District of Texas,          that the federal MDL court lacked subject matter
issued a 249-page Order regarding the 111 silica cases         jurisdiction over the bulk of the cases, in remanding
— totaling over 10,000 individual plaintiffs — before           the cases back to state court, she stated:
her in the federal multi-district silica litigation.1 That
opinion (commonly referred to as “Order No. 29”),                    In spite of this, the Court has included
followed three days of testimony from the handful of                 its findings concerning all of the testi-
doctors who purportedly “diagnosed” thousands of                     mony it received, in hopes that the state
those plaintiffs with silicosis. Judge Jack condemned                 courts that ultimately must shepherd
the mass screening process used to generate the silica               these cases to their conclusion will not
claims and found that virtually every plaintiff’s diag-               have to re-hear Daubert-type challenges
nosis had been “manufactured for money.”2 Judge                      to these doctors and their diagnoses.6
Jack ultimately concluded that the methodology used
to diagnose the plaintiffs was “not sufficiently reli-            Since the issuance of Order No. 29, Judge Jack’s find-
able,” describing the process as “assembly line diag-          ings have been raised in numerous cases pending in
nosing” and “an ingenious method of grossly inflating           state courts throughout the country by defendants,
the number of positive diagnoses.”3                            not only in silica cases, but also in litigation involving

Vol. 4, #5 January 2006                                             LexisNexis MEALEY’S LITIGATION REPORT: Silica

asbestos, welding rods, and other mass tort litigation,       This answer, however, is no answer. The fact of the
where medical screenings are being used to generate           matter is that there is simply no satisfactory explana-
claims. Not surprisingly, many plaintiffs’ lawyers have        tion for a process that Judge Jack recognized was gen-
attempted to distinguish their cases from those in the        erating lawsuits that should not have been filed.
federal silica MDL by indicating that their plaintiffs
were not screened, or were not screened in the same           II.     Plaintiffs Argue That
manner as those that were the focus of Order No. 29.                  Judge Jack Improperly
At least some plaintiffs’ lawyers have also gone fur-                  Relied On The “Gitlin Study.”
ther and attempted to discredit or otherwise distance         Plaintiffs’ attorneys have assailed Judge Jack’s Order
themselves from the force of Order No. 29.                    on the basis that she improperly relied on what is
                                                              often referred to as the Gitlin Study, a peer-reviewed
This article summarizes several of the “arguments”            article that appeared last year in Academic Radiology.
silica plaintiffs have advanced to minimize the impact         That study by researchers at Johns Hopkins Univer-
of Judge Jack’s Order.                                        sity compared the x-ray interpretations of B-readers
                                                              employed by asbestos plaintiffs’ counsel with the
I.       Plaintiffs Argue That Their                          subsequent interpretations of six independent B-
         Silicosis Claims Are Valid And                       readers who had no knowledge of the x-rays’ origin.11
         That Their Previous Asbestosis                       The study found that for a group of 492 plaintiffs,
         Claims Were Improper                                 the B-readers hired by plaintiffs found asbestos-re-
One of the most remarkable statistics presented to            lated lung abnormalities on the x-rays 95.9% of the
Judge Jack was that over 6,000 of the 10,000 plaintiffs        time, whereas the independent B-readers found such
in the federal MDL had also filed asbestos-related             abnormalities on the same x-rays only 4.5% of the
claims against the Manville Personal Injury Settle-           time.12 The study concluded that the magnitude of
ment Trust created to handle claims for exposures to          that difference was “too great to be attributed to inter-
Johns Manville asbestos production.7 According to             observer variability.”13
the numerous medical experts who testified, the num-
ber of silica plaintiffs in the federal MDL who also           Counsel for silica plaintiffs have filed motions in
had made an asbestos-related claim was “stunning and          several different courts criticizing Judge Jack’s Order
not scientifically plausible.”8 Judge Jack ultimately          for its purported reliance on this study.14 In doing
concluded that “a golfer is more likely to hit a hole-in-     so, plaintiffs’ counsel somehow failed to recognize
one than an occupational medicine specialist is to find        that Judge Jack mentioned the study only once in her
a single case of both silicosis and asbestosis.”9             249-page opinion. When explaining that the results
                                                              of the silica plaintiffs’ B-reads were “stunning and not
Unable to dispute the statistical improbability of de-        scientifically plausible,” she noted that her conclu-
veloping both asbestos and silica-related diseases or         sions matched earlier “evidence of the unreliability
that the majority of the silica plaintiffs in the MDL          of B-reads in asbestos litigation” as established by the
were “re-treaded” asbestos plaintiffs, one plaintiffs’          Gitlin study.15 However, she then explicitly declined
counsel presented to the court an alternative theory          to base any part of her ruling on the Gitlin findings,
regarding the improperly asserted silicosis claims: the       as the “[Gitlin] asbestosis study was irrelevant to this
silicosis claims are valid, and the asbestos claims should    MDL.”16 Rather, as plaintiffs are well aware, Judge
not have been filed. More specifically, when con-               Jack’s findings were based on days of deposition and
fronted with the fact that 60 of the 82 plaintiffs that        in-court testimony from the very doctors and B-read-
he represented for their alleged silica-related illness had   ers who, in truth, never accurately diagnosed the silica
previously filed claims for asbestosis, attorney Richard       plaintiffs with silicosis.
Laminack stated that, although his firm “never, never
represented an asbestosis claimant and then turned            Of course, the fact that Judge Jack’s Order did not rely
around and ‘retreaded’ as a silicosis claimant,” he           on the Gitlin study does not detract from the impor-
doubted the diagnoses underlying his clients’ previous        tance or validity of the study’s conclusions. The study
asbestos claims: “I think the explanation in a lot of the     confirmed long-held suspicions regarding the reliabil-
cases is that the asbestos diagnosis is wrong.”10             ity of B-readers involved in mass x-ray screenings. In

LexisNexis MEALEY’S LITIGATION REPORT: Silica                                              Vol. 4, #5 January 2006

fact, distinguished medical scholars have deemed the        III.     Plaintiffs Argue That There Really
Gitlin study “[w]ell-researched and statistically ana-               Is A Silicosis Epidemic Sweeping
lyzed,” noting that it “contains data that is disquieting            Mississippi And The United States.
as it is startling.”17                                      While the voluminous evidence compiled by state
                                                            and federal health agencies actually indicates a steady
Further, the Gitlin study simply confirms similar find-       30-year decline in silicosis rates and mortality, the
ings with regard to the screening practices employed        trend in lawsuits has had the opposite trajectory.24
to generate asbestos claims.18 Judge Weiner, who
presided over the federal asbestos MDL, previously          According to the National Institute for Occupational
determined “that the filing of mass screening cases          Safety and Health (“NIOSH”), the number of silico-
is tantamount to a race to the courthouse and has           sis-related deaths has fallen consistently for decades:
the effect of depleting funds, some already stretched        from 1,157 deaths in 1968 to 187 in 1999. At the
to the limit, which would otherwise be available for        same time, the number of silicosis claims in the Unit-
compensation to deserving Plaintiffs,” and admin-            ed States has increased exponentially. In Mississippi
istratively dismissed without prejudice “[a]ll non-         alone, the number of claims rose from 40 in 2000, to
malignant asbestos-related personal-injury cases . . .      76 in 2001, to more than 10,000 in 2002.25 Between
initiated through a mass screening.”19 Another court        2002 and 2004, over 20,000 plaintiffs filed silicosis
cited an audit performed in 1998 by the Manville            claims in the state of Mississippi. These numbers are
Settlement Trust which determined that 59% of x-ray         particularly anomalous considering that Judge Jack
readings relied upon by plaintiffs’ counsel to show          estimated there should be approximately eight new
asbestos-related abnormalities were inaccurate.20           cases of silicosis diagnosed per year in Mississippi.26
                                                            Moreover, Mississippi lacks significant foundry and
More recently, the Claims Resolution Management             quarry operations, and recently ranked thirty-eighth
Corporation, which manages the Manville Personal            in the nation for the number of silicosis deaths
Injury Trust, stated that it would no longer accept         — with only 13 deaths from 1990 to 1999.
reports prepared by the doctors and screening facili-
ties that were the subject of Judge Jack’s opinion. The     To account for this phenomenon, plaintiffs’ counsel
Eagle-Picher Personal Injury Settlement Trust and the       have tried to argue that Mississippi — and indeed, the
Celotex Asbestos Settlement Trust have since followed       entire United States — may be facing a silicosis out-
the Manville Trust example.21                               break such that the world has never seen.27 Toward
                                                            this end, plaintiffs have proffered a statistical analysis
Additionally, even critics of the Gitlin study agree that   based on CDC/NIOSH estimates of silica-related
“classification based on a single radiograph is subject      worker exposure and have argued that there may be
to observer variability, and should not be used as          as many as 17,000 potential silicosis victims in the U.S.
the only criterion for a diagnosis of asbestos-related      at some point in time.28 These projections however,
disease. It is important for the physician diagnosing       do not reflect the number of workers that actually
asbestosis not to rely on chest radiographs alone, and      have silicosis. And whether or not there may be silica
in fact the Association of Occupational and Environ-        claims at some point in the future does not justify the
mental Clinics has stated that such an act is unethical.    filing of tens of thousands of claims now on behalf
There are additional and medically necessary steps to       of claimants who clearly do not have silicosis. 29 As
reach a diagnosis of asbestosis.”22                         stated previously, the available evidence consistently
                                                            confirms that the incidence of actual silica-related
But more to the point, there is nothing inconsistent        impairment in the United States has been declining
about the Gitlin study findings and Judge Jack’s con-        for decades.30
clusion in the federal silica MDL. The mass screen-
ing process employed by certain plaintiff’s counsel          Plaintiffs’ counsel cannot provide any reliable medical
in the silica litigation mirrored that employed by          explanation to account for the over-inflated number
certain counsel in the asbestos litigation. In both         of silica claims filed in Mississippi between 2002
situations, the screening process was found to be           and 2004. Moreover, plaintiffs’ counsel can in no
unreliable.23                                               way explain why, in the face of a supposedly unprec-

Vol. 4, #5 January 2006                                            LexisNexis MEALEY’S LITIGATION REPORT: Silica

edented silicosis epidemic, neither OSHA, the CDC,           discovery, including the naming of trial experts, was
NIOSH or the American Medical Association have               rendered unnecessary.
demonstrated the slightest bit of concern. The recent
onslaught of silica litigation is, as Judge Jack correctly   Notably, while plaintiffs’ counsel complained of the
described, created by lawyers playing doctor and doc-        doctors’ inability to spend more time with plaintiffs in
tors playing lawyer.31                                       the MDL, the early scheduling of the Daubert hear-
                                                             ings could only have affected the doctors’ evaluation
IV.      Plaintiffs Argue That Judge Jack’s                  and diagnoses of plaintiffs if counsel filed plaintiffs’
         Reliance On The Daubert Hearings                    claims before the diagnoses were made. There is no
         Was Unfair, Because The Hearings                    basis for plaintiffs suggestion that the very doctors
         Were Held Prior To The Deadline                     who supposedly made the “diagnoses” on which
         For Expert Designation.                             plaintiffs’ actions were based should not be subject to
Plaintiffs’ counsel have attacked Judge Jack’s Or-           the Court’s scrutiny.
der on the basis that the alleged scheduling of the
Daubert hearings several months prior to the dead-           V.      Plaintiffs Argue That Judge Jack’s
line for expert designation — but more than two                      Order Is Not Binding Upon Remand
years after the cases were originally filed — forced         Plaintiffs’ counsel have argued that because the federal
the premature testimony of doctors who were                  MDL court lacked subject matter jurisdiction over
never supposed to testify as experts about plain-            the vast majority of the cases, the remanded plaintiffs
tiffs’ claims.32 Counsel for plaintiffs also contend         are not bound by Judge Jack’s Order. Specifically,
that by scheduling the Daubert hearings, plain-              counsel for plaintiffs assert that portions of the Or-
tiffs’ doctors were forced to rush through their             der requiring plaintiffs to describe and support their
diagnoses, and prevented them from spending an               claims, as well as the court’s factual findings that the
extensive amount of time with the thousands of               silicosis diagnoses were unreliable, should be given no
plaintiffs in the MDL.33 Apparently, plaintiffs’             effect upon remand to the state courts. But that argu-
counsel believe that they could file claims on the           ment is wrong for at least two reasons: (1) the proce-
basis of a faulty diagnosis and then force defen-            dural orders and factual findings of a court addressing
dants to defend the cases until some point late in           jurisdictional issues remain binding on the parties
the game when expert discovery commenced and                 who participated in the proceedings, even if the court
new doctors would then presumably try to come                ultimately determines that it lacks jurisdiction, and
up with new “diagnoses” for at least some number             (2) plaintiffs assured the court that its rulings and
of the claimants.                                            findings would continue to apply in the cases even if
                                                             remanded to state court, and are thus estopped from
In making this argument, plaintiffs’ counsel fails to         taking a contrary position.
appreciate that no plaintiff’s claim should have been
filed until that plaintiff was reliably diagnosed with         First, regardless of whether the cases have been re-
a silica-related injury. Counsel selected doctors to         manded to the state courts, they are still the same
diagnose plaintiffs, and presumably relied on their           cases. As a result all rulings rendered in an earlier
diagnoses to commence the actions against defen-             phase of the case remain valid unless and until those
dants. Through the Daubert hearings, Judge Jack              rulings are vacated for good cause. Case law is clear
made a factual determination that the methodol-              that the orders of a federal court are presumptively
ogy employed in the diagnosing of silica plaintiffs           valid even after a case is remanded to state court.34
was improper, and that an overwhelming majority              The fact that the federal MDL court ultimately
of doctors testifying at the hearings were categori-         determined it lacked subject matter jurisdiction
cally unqualified to render a diagnosis of silicosis.         over the bulk of the cases is immaterial. Plaintiffs
Thus, the actions were brought without any reason-           were afforded the opportunity to participate in the
able medical basis that the plaintiffs suffered from           proceedings that addressed the issues in dispute,
a silica-related illness or injury. Absent any basis         and are therefore bound by the court’s rulings and
for commencing their claims, plaintiffs’ cases could          factual findings in connection with the jurisdictional
not remain before the court and any further expert           questions.35

LexisNexis MEALEY’S LITIGATION REPORT: Silica                                               Vol. 4, #5 January 2006

Second, plaintiffs are estopped from denying the             Endnotes
continuing validity of the federal MDL court’s
findings and rulings. While before Judge Jack,               1.   In re Silica Prods. Liab. Litig., __ F. Supp. 2d
plaintiffs’ counsel urged the court to consider all               __, 2005 WL 1593936 (S.D. Tex. June 20, 2005)
pre-trial issues, arguing that even if the cases were            (hereinafter “Order No. 29”).
later remanded to state court for lack of subject
matter jurisdiction, the federal court’s rulings            2.   Order No. 29 at 150.
would follow the cases. In fact, one plaintiffs’ brief
explicitly states: “The case law supports the con-          3.   Order No. 29 at 146.
clusion that this Court’s pretrial rulings would be
applicable to the cases even if they are ultimately         4.   Order No. 29 at 32-38; see also Eddie Curran, Law-
remanded to state court under the ‘law of the case’              yers Seek Dismissal of Claims After Doctor’s Testimony,
doctrine. . . . These cases, even after remand back              MOBILE REGISTER, December 5, 2004; Jonathan D.
to state court, are still the same cases, with the               Glater, Companies Get Weapon In Injury Suits; Many
same parties and the same pre-trial rulings control-             Silica-Damage Plaintiffs Also Filed Claims Over
ling them.”36 After making these assurances to the               Asbestos, N.Y. TIMES, Feb. 2, 2005, at C1, available
court, Judge Jack was persuaded to retain the cases              at 2005 WLNR 1415209; Roger Parloff, Silicosis,
for conducting discovery and entertaining other                  Diagnosing for Dollars, FORTUNE, May 31, 2005, at
pre-trial matters, even though questions remained                96.
about the federal court’s jurisdiction.
                                                            5.   Order No. 29 at 116-161.
Because of their assurances to the federal MDL court,
plaintiffs’ counsel cannot now deny the binding ef-          6.   Order No. 29 at 154.
fect of the court’s findings of fact and conclusions of
law.37                                                      7.   See David Hechler, Silica Plaintiffs Suffer Setbacks:
                                                                 Broad Effects Seen in Fraud Allegations, Nat’l L.J.,
It is well-established that where a party “successfully,         Feb. 28, 2005, at 18.
unequivocally and repeatedly” asserts a position to
a federal court in furtherance of remand, the party         8.   See Order No. 29 at 135 (quoting Dr. John Park-
is then precluded from taking an inconsistent or                 er, former administrator of NIOSH’s B-reader
contradictory position once returned to the state                program); see also id. (“[I]n the cases that I’ve had
court.38                                                         pathology to evaluate, I have never seen cases in
                                                                 which there was both silicosis and asbestosis in
After successfully convincing the Judge to consider all          the same patient.”) (quoting Dr. Hammar); id.
pre-trial issues on the basis that they would respect her        (“Even in China, where I saw workers with jobs
rulings and findings, plaintiffs’ counsel may not now              involving high exposure to asbestos and silica . . .
attempt to avoid the binding effect of Order No. 29               , I did not see anyone or review chest radiographs
simply because its contents are unfavorable to their             of anyone who had both silicosis and asbesto-
claims.                                                          sis.”) (quoting Dr. David Weill, Senate Judiciary
                                                                 Committee Testimony, Fed. Doc. Clearinghouse
Conclusion                                                       at 4 (Feb. 3, 2005)); id. (“Among the thousands
It is not surprising that plaintiffs’ counsel in ongoing          of chest x-rays which I reviewed in asbestos and
silica litigation have attempted to deflect attention             silica exposed individuals, I cannot remember a
from Judge Jack’s Order. However, their arguments                single chest x-ray which showed clear-cut findings
do not obscure the significance of Judge Jack’s find-              of both asbestos exposure and silica exposure.”)
ings. Other courts facing mass screenings should                 (quoting Dr. Theodore Rodman, Senate Judiciary
take heed from these findings and consider a similar              Committee Testimony, Fed. Doc. Clearinghouse
evaluation process, perhaps implementing their own               at 2 (Feb. 2, 2005)).
fact-finding techniques, in order to determine the
validity of the pending claims.                             9.   Order No. 29 at 80.

Vol. 4, #5 January 2006                                              LexisNexis MEALEY’S LITIGATION REPORT: Silica

10.   Editorial, Jack the Ripper, WALL ST. J., August 31,            Executive Director of the Celotex Asbestos Settle-
      2005.                                                          ment Trust (October 20, 2005) (available at http://
11.   See Joseph N. Gitlin, et al. , Comparison of “B” Read-
      ers’ Interpretations of Chest Radiographs for Asbestos   22.   See L. Christine Oliver, et al. Letter to the Editor:
      Related Changes, 11 ACAD. RADIOLOGY 843 (Aug.                  Regarding Comparison of B Readers’ Interpretations
      2004).                                                         of Chest Radiographs for Asbestos Related Changes,
                                                                     ACAD. RADIOLOGY, 2 (2004).
12.   Id. at 855.
                                                               23.   Prompted by Judge Jack’s opinion, on November
13.   Id. at 852, 843.                                               17, 2005, NIOSH requested commentary on its
                                                                     proposed “Ethical Considerations For B Readers,”
14.   See Heard, Robins, Cloud & Lubel, Pl.’s Mem. Opp’n             which includes a code of ethics for all B Readers. See
      Def.’s Proposed Case Mgmt. Orders, (hereinafter, the           Federal Register, Vol. 70 No. 221, at 69765 (2005).
      “HRC Brief ”) at 3, (filed S.C. Ct. Common Pleas,               Federal authorities in New York are also investigating
      York Cty, Aug. 18, 2005); Def. 3M Co.’s Resp. to               the possibility fraud in connection with the federal
      Pl.’s Special Appearance & Mot. to Dismiss Def.’s              silica MDL. See Jerry Mitchell, Doctors’ Silicosis Re-
      Pet. (hereinafter “3M Brief ”) at 5, (filed Miss. Su-           cords Sought; Federal Grand Jury Subpoenas Diagnoses
      preme Ct., No. 2005-M-01356, Sept. 7, 2005).                   Called “Manufactured”, CLARION-LEDGER, July 18,
15.   Order No. 29 at 135-136.
                                                               24.   See Mark A. Behrens, et al., Silica: An Overview of
16.   Id. at 137 n. 111.                                             Exposure in the United States, 20:2 Mealey’s Litig.
                                                                     Rep.: Asbestos 33 (Feb. 21, 2005).
17.   See, e.g., Murray L. Janower & Leonard Berlin,
      B Readers’ Radiographic Interpretations in Asbestos      25.   See Jonathan D. Glater, The Tort Wars, at a Turning
      Litigation: Is Something Rotten in the Courtroom?, 11          Point, N.Y. TIMES, Oct. 9, 2005, at C1, available at
      ACAD. RADIOLOGY, 842 (Aug. 2004).                              2005 WLNR 16361092.

18.   See Judyth Pendell, Regulatory Attorney-Funded Mass      26.   See Order No. 29 at 11-12.
      Medical Screenings: A Public Health Imperative?,
      (AEI-Brookings Joint Center for Regulatory Stud-         27.   See HRC Brief at 8; Alwyn Luckey Pl.’s Resp. to
      ies, Sept. 2005), available at http://www.brookings.           Def.’s Pet. For Extraordinary Relief (hereinafter
      org/public.abstract.php?pid=993.                               “Luckey Brief ”) at 13 (filed Miss. Supreme Ct. Aug.
                                                                     15, 2005).
19.   In re Asbestos Prods. Liab. Litig. (No. VI), MDL
      875, Admin. Order No. 8, 2002 WL 32151574                28.   This number is based on an estimated 1.7 million
      (E.D. Pa. Jan. 16, 2002).                                      workers, who during a 40-45 year working lifetime,
                                                                     may possibly be exposed to respirable crystalline
20.   In re Joint E. & So. Dists. Asbestos Litig., 237 F.            silica at the OSHA permissible limit, and therefore
      Supp. 2d 297, 309 (E.D.N.Y. 2002).                             may have a 1% chance of developing radiographic
21.   See Memorandum from David Austern, President
      of the Claims Resolution Management Corporation          29.   Indeed, in what would appear to be a tacit admis-
      (September 12, 2005) (on file with author). See also            sion that plaintiffs suffered from no silica-related
      Letter from William B. Nurre, Executive Director               bodily injury or illness at the time they instituted
      Eagle-Picher Personal Injury Settlement Trust, to              these actions, certain silica plaintiffs’ attorneys asked
      Claimants’ Counsel (October 19, 2005) (on file                  the Mississippi Supreme court to certify a plaintiff
      with author); Notice of Trust Policy Regarding Ac-             class for medical monitoring — presumably in the
      ceptance of Medical Reports from John L. Mekus,                event that plaintiffs later become afflicted with a

LexisNexis MEALEY’S LITIGATION REPORT: Silica                                                      Vol. 4, #5 January 2006

      silica-related illness or injury. See Certain Pl.’s Pet.         the parties in state court.”); United States v. United
      To Adopt Class Action Rules In Order To Certify Pl.              Mine Workers of Am., 330 U.S. 258, 292 n.57
      Class For Medical Monitoring (filed Miss. Supreme                 (1947) (if made in determining jurisdiction, federal
      Ct. July 29, 2005).                                              court’s findings of facts are binding on subsequent
30.   See Victor E. Schwartz & Leah Lorber, A Letter to
      the Trial Judges of America: Help the True Victims of      36.   See Pl.’s Mem. Resp. to Issues Regarding Ct.’s Juris-
      Silica Injuries and Avoid Another Litigation Crisis, 28          diction Raised By Def.’s at 3, filed January 12, 2004
      Am. J. of Trial Advoc. 296 (2004).                               in MDL No. 1553.

31.   See Order No. 29 at 148.                                   37.   As one court has explained: “Judicial estoppel pre-
                                                                       cludes a party from asserting a position, benefiting
32.   See Luckey Brief at 15.                                          from that position, and then, when it becomes
                                                                       more convenient or profitable, retreating from that
33.   Id. at 16.                                                       position later in the litigation. . . Because of judicial
                                                                       estoppel, a party cannot assume a position at one
34.   El Chico Restaurants, Inc. v. Transportation Ins.                state of a proceeding and then take a contrary stand
      Co., 509 S.E.2d 681 (Ga. 1998) (orders of fed-                   later in the same litigation.” Richardson v. Cornes,
      eral court remain valid in cases remanded to state               903 So. 2d 51, 56 (Miss. 2005) (quoting Dockins v.
      court).                                                          Allred, 849 So. 2d 151, 155 (Miss. 2003)).

35.   See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,          38.   See Rankin v. American Gen. Fin, Inc., No. 2003-
      585-586 (1999) (“assuming a fair airing of the issue             CA-02615-SCT, 2005 WL 487465, at *4 (Miss.
      in federal court, that court’s ruling. . . may bind              Mar. 3, 2005). ■


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