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The Case of Silica

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The Case of Silica THE ARTS This PDF document was made available from www.rand.org as a public CHILD POLICY service of the RAND Corporation. CIVIL JUSTICE EDUCATION ENERGY AND ENVIRONMENT Jump down to document6 HEALTH AND HEALTH CARE INTERNATIONAL AFFAIRS NATIONAL SECURITY The RAND Corporation is a nonprofit research POPULATION AND AGING organization providing objective analysis and effective PUBLIC SAFETY solutions that address the challenges facing the public SCIENCE AND TECHNOLOGY and private sectors around the world. SUBSTANCE ABUSE TERRORISM AND HOMELAND SECURITY TRANSPORTATION AND INFRASTRUCTURE WORKFORCE AND WORKPLACE Support RAND Purchase this document Browse Books & Publications Make a charitable contribution For More Information Visit RAND at www.rand.org Explore the RAND Institute for Civil Justice View document details Limited Electronic Distribution Rights This document and trademark(s) contained herein are protected by law as indicated in a notice appearing later in this work. This electronic representation of RAND intellectual property is provided for non-commercial use only. Unauthorized posting of RAND PDFs to a non-RAND Web site is prohibited. RAND PDFs are protected under copyright law. Permission is required from RAND to reproduce, or reuse in another form, any of our research documents for commercial use. For information on reprint and linking permissions, please see RAND Permissions. This product is part of the RAND Corporation technical report series. Reports may include research findings on a specific topic that is limited in scope; present discus- sions of the methodology employed in research; provide literature reviews, survey instruments, modeling exercises, guidelines for practitioners and research profes- sionals, and supporting documentation; or deliver preliminary findings. All RAND reports undergo rigorous peer review to ensure that they meet high standards for re- search quality and objectivity. The Abuse of Medical Diagnostic Practices in Mass Litigation The Case of Silica Stephen J. Carroll, Lloyd Dixon, James M. Anderson, Thor Hogan, Elizabeth M. Sloss INSTITUTE FOR CIVIL JUSTICE The research described in this report was conducted by the RAND Institute of Civil Justice, a unit of the RAND Corporation. This research was supported by the National Industrial Sand Association, the U.S. Chamber of Commerce Institute for Legal Reform, and the Coalition for Litigation Justice. Library of Congress Cataloging-in-Publication Data The abuse of medical diagnostic practices in mass litigation : the case of silica / Stephen J. Carroll, Lloyd Dixon, James M. Anderson, Thor Hogan, Elizabeth M. Sloss. p. cm. “This research was supported by the RAND Institute for Civil Justice, the National Industrial Sand Association, the U.S. Chamber of Commerce Institute for Legal Reform, and the Coalition for Litigation Justice.” Includes bibliographical references. ISBN 978-0-8330-4912-4 (pbk. : alk. paper) 1. Industrial safety—Law and legislation—United States. 2. Silicosis—Law and legislation—United States. 3. Class actions (Civil procedure)—United States—Corrupt practices. 4. Evidence, Expert—United States— Corrupt practices. 5. Medical jurisprudence—United States—Corrupt practices. I. Carroll, Stephen J., 1940– II. Institute for Civil Justice (U.S.) KF3570.A72 2009 344.7304'65—dc22 2009045739 The RAND Corporation is a nonprofit research organization providing objective analysis and effective solutions that address the challenges facing the public and private sectors around the world. RAND’s publications do not necessarily reflect the opinions of its research clients and sponsors. R® is a registered trademark. © Copyright 2009 RAND Corporation Permission is given to duplicate this document for personal use only, as long as it is unaltered and complete. Copies may not be duplicated for commercial purposes. Unauthorized posting of RAND documents to a non-RAND Web site is prohibited. RAND documents are protected under copyright law. For information on reprint and linking permissions, please visit the RAND permissions page (http://www.rand.org/publications/ permissions.html). Published 2009 by the RAND Corporation 1776 Main Street, P.O. Box 2138, Santa Monica, CA 90407-2138 1200 South Hayes Street, Arlington, VA 22202-5050 4570 Fifth Avenue, Suite 600, Pittsburgh, PA 15213-2665 RAND URL: http://www.rand.org To order RAND documents or to obtain additional information, contact Distribution Services: Telephone: (310) 451-7002; Fax: (310) 451-6915; Email: [email protected] Preface Litigation over injuries due to the inhalation of respirable silica dust in the workplace skyrocketed beginning in 2001, raising concerns that silica litigation would become a mass tort with similarities to the asbestos litigation that had occurred in the previous 30 years. However, the silica litigation collapsed soon after the discovery of numerous abuses in the procedures used to diagnose the injuries. The uncovering of grossly inadequate diagnostic practices was a significant suc- cess for the tort system in handling a mass tort. However, there is no guarantee that similar practices would be uncovered should they be used in the future. This report reviews the court proceedings that led to the uncovering of abusive diagnostic prac- tices in silica litigation. The insights are then used to identify several areas in which changes in litigation practices and procedures could increase the likelihood that simi- lar diagnostic practices would be uncovered in the future or prevented from occurring in the first place. This report should be of interest to federal and state policy makers, lawyers, judges, and litigants concerned about the reliability of medical diagnoses and other expert evi- dence in mass personal-injury litigation. The changes suggested in this study might be used as a starting point for discussions among stakeholders on how to improve the tort system. This research was supported by the RAND Institute for Civil Justice, the National Industrial Sand Association, the U.S. Chamber of Commerce Institute for Legal Reform, and the Coalition for Litigation Justice. The views in the report are those of the authors and do not necessarily reflect those of the research sponsors. The RAND Institute for Civil Justice The mission of the RAND Institute for Civil Justice (ICJ) is to improve private and public decisionmaking on civil legal issues by supplying policymakers and the public with the results of objective, empirically based, analytic research. ICJ facilitates change in the civil justice system by analyzing trends and outcomes, identifying and evaluat- ing policy options, and bringing together representatives of different interests to debate iii iv The Abuse of Medical Diagnostic Practices in Mass Litigation: The Case of Silica alternative solutions to policy problems. ICJ builds on a long tradition of RAND research characterized by an interdisciplinary, empirical approach to public policy issues and rigorous standards of quality, objectivity, and independence. ICJ research is supported by pooled grants from corporations, trade and profes- sional associations, and individuals; by government grants and contracts; and by pri- vate foundations. ICJ disseminates its work widely to the legal, business, and research communities and to the general public. In accordance with RAND policy, all ICJ research products are subject to peer review before publication. ICJ publications do not necessarily reflect the opinions or policies of the research sponsors or of the ICJ Board of Overseers. Information about ICJ is available online (http://www.rand.org/icj/). Inquiries about research projects should be sent to the following address: James Dertouzos, Director RAND Institute for Civil Justice 1776 Main Street P.O. Box 2138 Santa Monica, CA 90407-2138 310-393–0411 x7476 Fax: 310-451-6979 [email protected] Questions and comments about this report should be sent to Lloyd Dixon ([email protected]). Contents Preface ................................................................................................. iii Figures ................................................................................................ vii Summary .............................................................................................. ix Acknowledgments ................................................................................. xvii Abbreviations ....................................................................................... xix CHAPTER ONE Introduction .......................................................................................... 1 Health Effects of Silica Exposure ................................................................... 2 The Rise and Fall of Silica Litigation ............................................................... 3 Research Approach .................................................................................... 4 Organization of This Report ......................................................................... 6 CHAPTER TWO The Exposure of Diagnostic Abuses in Silica Litigation ..................................... 7 In re Silica Products Liability Litigation ............................................................. 7 Fact Sheets ........................................................................................... 7 The Doctors’ Depositions .......................................................................... 8 The Daubert Hearings ............................................................................
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