Litscoop: Revolutionary New Litigation Tool Walter H. Boone Forman Perry Watkins Krutz & Tardy LLP

Transcription

1 Litscoop: Revolutionary New Litigation Tool Walter H. Boone Forman Perry Watkins Krutz & Tardy LLP Knowledge is power. Sir Francis Bacon Nowhere in the modern world is Sir Francis Bacon s quote more applicable than in the court room and in the litigation path leading there. In this modern age, the amount of information available to lawyers and clients has literally exploded. In the practice of law, and particularly in the areas of products liability, toxic and mass torts, and environmental law the result has been a tremendous increase in the amount we can know in the defense of lawsuits. But even with the increases in what we can know, some information seemed to be just beyond our grasp - until now. A revolutionary new tool, called Litscoop, is available to the defense bar, providing an insurmountable advantage in the defense of civil lawsuits. This paper describes Litscoop, the uses to which Litscoop has been applied, and the legal principles which support those uses. While this paper analyzes these subjects under Mississippi law, the applicable legal principles are quite common and should be readily transferable to many other jurisdictions. What is Litscoop? Litscoop is the largest collection of data on products and mass tort plaintiffs in the world. Currently, Litscoop contains more than 20,000,000 documents, 3,750,000 social security numbers, 3,500,000 individual names, in all fifty states all across the United States. Litscoop data stores include documents and data on more than 75,000 people in Texas, 50,000 in New York, 55,000 in Pennsylvania, and more than 150,000 in Mississippi, Alabama, and Louisiana combined. Litscoop s data stores are growing daily and include information from a wide variety of sources including: Discovery Responses in State and Federal Court Mass Tort Litigation State Court Docket Information for Mass Tort Filings Pharmaceutical Litigation Records Bankruptcy Trust Databases and Forms Silica MDL 1553 Documents and Materials, including Documents Produced by Mass Screening Company, N&M, Inc. Asbestos MDL 875 Documents and Materials, including Documents Produced by More Than 40 Screening Companies and Screening Doctors Third Party Settlement Processors Documents and Databases Active Asbestos and Silica Litigation Court Files Individual Defendant Claims Databases Each piece of data in the Litscoop database is linked to an actual document, providing not only the information needed but perhaps the potentially admissible evidence to prove it. Because

2 each piece of data contained in a document within Litscoop is coded separately, Litsccop searches can provide numerous links to information, by social security number, by screening or diagnosing doctor, by plaintiffs counsel, or any other data point of interest. A proprietary product of Forman, Perry, Watkins Krutz & Tardy LLP, Litscoop has been used by a wide variety of clientele, including other law firms, litigation defendants, insurers, and others. Litscoop is web accessible, and each Litscoop request generates a detailed report itemizing known and suspected connections to the request, and the availability of documents related to the request. Billing for Litscoop is flexible depending upon the need, including flat fees per search, monthly unlimited access charges, or per project charges, and the cost is infinitesimal compared to the potential savings Litscoop can deliver. What Can Litscoop Do? The only limitation on the use of Litscoop is defense counsel s imagination. So far, Litscoop has been used in the following areas. Fraud Detection. Beginning with the Silica MDL, Litscoop has proven to be a potent resource in the detection of outright fraud in mass tort products liability cases. In the Silica MDL 1553, U.S. District Judge Janis Jack presided over hundreds of newly filed cases by thousands of plaintiffs claiming exposure to silica and resulting injury. In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563 (S.D. Tex. 2005). The data gathered in the Silica MDL, together with more than twenty years of data in mass tort litigation, formed the basis for Litscoop, and provided, for the first time, the ability to compare data from the newly filed silica cases against prior asbestos cases. Based on the results generated by Litscoop, Judge Jack found that there were over 1,800 instances where Dr. Ray Harron (who had diagnosed almost 80% of the plaintiffs in the MDL) read an x-ray and diagnosed asbestosis for use in asbsestos litigation and then read a subsequent x-ray and diagnosed silicosis for use in silica litigation. Id. at 608. In his testimony before Judge Jack, when Dr. Harron questioned whether he was being accused of fabrication in connection with the reversals of diagnoses, both the Court and defense counsel confirmed that such an accusation was being made. The Court ended his testimony at that point in order to allow Dr. Harron to hire an attorney. Id. at 607. Dr. Ballard, another doctor who diagnosed 1,400 plaintiffs, was confronted with more than a dozen examples where he diagnosed asbestosis and then silicosis from the same x-ray. When he reviewed the x-ray for asbestos litigation, his findings were consistent with asbestosis, and when he reviewed the same x-ray for silica litigation, his findings were consistent with silicosis, and not asbestosis. Id. at 609. Dr. Levy, another diagnosing doctor, did not take occupational or medical histories, did not B read any x-rays, performed no physical exams, and did not speak to any of the plaintiffs, but managed to diagnose 1,200 plaintiffs with silicosis in less than 72 hours based entirely on the work of others. Id. at 611. These and other examples uncovered by Litscoop led Judge Jack to conclude these diagnoses were driven by neither health nor justice: they were manufactured for money. Id. at 635. Daubert Challenges to Expert Testimony. Listcoop has assisted in the crossexamination and ultimate exclusion of experts in a variety of cases, beginning again with In re

3 Silica Prods. Liab. Litig., 398 F. Supp. 2d 563 (MDL Docket No ). As Judge Jack and many other courts have held, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct (1993) provides the analytical framework for determining whether expert testimony is admissible under Rule 702 of the Federal Rules of Evidence. See Burleson v. Texas Dep t of Criminal Justice, 393 F.3d 577, 583 (5th Cir. 2004). Under Daubert, trial courts act as gate-keepers overseeing the admission of scientific and non-scientific expert testimony. Id. (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 143 L. Ed. 2d 238, 119 S. Ct (1999)). Under Daubert, trial courts must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. The information Litscoop can provide, and has provided, is perfectly suited to the Daubert inquiry. Although Judge Jack ultimately concluded that she lacked subject matter jurisdiction over the bulk of the claims in the MDL, she rendered a scathing analysis of the reliability of plaintiffs expert testimony on each of the necessary criteria for an appropriate diagnosis. As to the sufficiency of the exposure histories purportedly supporting the diagnoses, the court concluded the histories are so deficient as to not even merit the label. In re Silica Prod. Lit., 398 F. Supp. 2d at 624. With respect to the criteria of x-ray findings consistent with silicosis, Judge Jack noted the undisputed fact (proven by Litscoop) that 6,000 plaintiffs in the silica MDL also had prior diagnoses of asbestosis. Id. at 628. Yet, according to the overwhelming weight of scientific and medical authorities, [e]ven a single case of asbestosis and silicosis in the same individual is extremely rare. Id. Finally, Judge Jack found no reliable evidence whatsoever of a differential diagnosis ruling out other causes, and concluded that the medical histories, physical examinations and other tests [which should have been undertaken by the challenged experts] were either nonexistent or cursory. Id. at 632. Since the Silica MDL, Litscoop data has been used in similar efforts to challenge expert testimony, including challenges to black listed doctors in the bankruptcy trust, and other cases nationwide. Statute of Limitations. Listcoop has also been used to establish a statute of limitations defense, particularly in mass tort cases. The existence of a previously unknown medical diagnosis, claim, or even lawsuit can many times satisfy even the most liberal discovery rule exceptions to the statute of limitations. In many jurisdictions, the courts or legislatures have established a discovery rule (particularly in latent injury cases), which toll the statute of limitations until the plaintiff knew or should have known of the existence of her claim. In Mississippi, the discovery rule was adopted by statute, and applied by the courts. Miss. Code Ann provides, in part: (2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

4 In Mississippi, at least, the discovery rule has greatly expanded over time. PPG Architectural Finishes, Inc. v. Lowery, 909 So. 2d (Miss. 2005). In fact, the Mississippi Supreme Court described the evolution of the standard in latent injury cases as follows: A review of this Court's prior rulings also provides insight into the statute's interpretation. The term "latent injury" while seemingly vague does have definitive boundaries. For an injury to be latent it must be undiscoverable by reasonable methods. Donald v. Amoco Prod. Co., 735 So. 2d 161, 168 (Miss. 1999). For instance this Court has noted that some plaintiffs may require access to medical records to discover the injury. Sarris v. Smith, 782 So. 2d 721, 725 (Miss. 2001). While others might gain enough actual knowledge through personal observation or experience. Robinson v. Singing River Hosp., 732 So. 2d 204, 208 (Miss. 1999). Some injuries may be indiscernible until a medical expert notifies the plaintiff of possible negligence. Barnes v. Singing River Hosp. Sys., 733 So. 2d at 206. Because there is no bright line rule, the specific facts of the case will determine whether the plaintiff knew or reasonable should have known that an injury existed. Sweeney v. Preston, 642 So. 2d at 336. Lowery, at 14. Many other jurisdictions have similar rules which historically have hindered the application of the statute of limitations defense to product exposure. Texas, for example, allows for the tolling of the limitations period until "a plaintiff discovers a specific cause of action against a specific defendant." Vaught v. Showa Denko K.K., 107 F.3d 1137, 1142 (5th Cir. 1997) (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 357 n.9 (Tex. 1990). The question presented is not "whether a plaintiff has actual knowledge of the particulars of a cause of action...; rather, it is whether the plaintiff has knowledge of facts which would cause a reasonable person to diligently make inquiry to determine his or her legal rights." 107 F.3d at (quoting Bell v. Showa Denko K.K., 899 S.W.2d 749, 754 (Tex.Ct.App. 1995)). With the advent of Litscoop, there is now a way to demonstrate with documentary evidence the existence of a prior injury. The existence of a prior diagnosis, medical record, or even lawsuit for a particular injury can be powerful and dispositive evidence that the plaintiff knew or should have known of the existence of her injury or claim. Jury Selection. Jury selection, particularly in jurisdictions where mass torts have been prevalent, is another area where Litscoop has been used with great success. For example, in one case tried in Claiborne County, Mississippi (formerly labeled as a judicial hellhole by the American Tort Reform Association), a mistrial was ordered because three sitting jurors had falsely answered jury questionnaires seeking information about their relationship with asbestos litigants and claimants. The jury questionnaire asked whether the potential juror, or any member of his immediate family, had previously filed any type of claim or lawsuit. After the three jurors answered no and were seated, Litscoop uncovered that two of the jurors themselves had

5 claims while a third was living with a family member who had a claim. The court ordered a mistrial because the exclusion of those three jurors left the panel with less than twelve members. Of course, the venire member s false answer to a question posed either in voir dire or in a jury questionnaire is a classic ground for exclusion. The general rule in Mississippi was established in Odom v. State, 355 So. 2d 1381, 1383 (Miss. 1978), which held: [W]here, as here, a prospective juror in a criminal case fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for a new trial, determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court's determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror's failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered. Id. That same test has been routinely applied in civil suits as well. Mariner Health Care, Inc. v. Estate of Edwards, 964 So. 2d 1138, 1147 (Miss. 2007). Mississippi law provides that a juror is "disqualified" within the meaning of Mississippi Code Annotated (1972) where on voir dire examination he or she has withheld information or misrepresented material facts. Myers v. State, 565 So. 2d 554, 558 (Miss. 1990). The Claiborne County, Mississippi example, and others like it, has led trial judges in several of these jurisdictions to require completion of a detailed questionnaire and to exclude potential jurors with any connection to prior mass tort litigation. See Phillips 66 Co. v. Lofton, 94 So. 3d (Miss. 2012) (trial judge dismissed all venire members who expressed that they personally had been involved in an asbestos case, and dismissed all venire members who had family members currently receiving benefits from an asbestos claim). In June, 2010, in neighboring Jefferson County, Mississippi (also named a judicial hellhole by ATRA), the Court ordered the panel to complete jury questionnaires including identifying information about family members and the last four digits of their social security numbers. Once the entire panel was run through Litscoop, the defendants demonstrated that 40% of the venire was related to mass tort lawsuits or screenings for mass tort lawsuits. After weeding those biased venire members out, the jury rendered a unanimous defense verdict the first of its kind in an asbestos case in that county. While this approach has been successfully applied in mass tort cases, there is no limit to its application in other kinds of tort cases. For example, the false response to a jury questionnaire regarding involvement in prior litigation would be relevant in virtually every

6 type of civil litigation, and prejudice should be no more difficult to establish than in mass tort cases. Consequently, several defense firms have used Litscoop in jury selection in all civil cases, including cases involving lead paint, silica, asbestos, and other kinds of civil cases. More importantly, the use of Litscoop in jury selection is not limited to Mississippi. As described above, Litscoop data stores include documents and data on more than 75,000 people in Texas, 50,000 in New York, 55,000 in Pennsylvania, and more than 150,000 in Mississippi, Alabama, and Louisiana combined. Litscoop also contains data on more than 20,000 people in California and Michigan, 44,000 in Ohio, and millions of others across the country. Because Litscoop data has historically been populated from mass tort data stores and mass torts have historically been filed in the most dangerous jurisdictions across the country, Litscoop s value in jury selection in those dangerous jurisdictions is even greater than in other parts of the country. Sanctions of Plaintiffs Counsel. Litscoop has also provided the factual basis to seek, and obtain, sanctions from plaintiffs counsel. Applying 28 U.S.C which provides for sanctions against an attorney who so multiplies the proceedings in any case unreasonably and vexatiously, Judge Jack held that the O Quinn, Laminack & Pirtle, L.L.P. firm had done just that. The O Quinn firm crossed the rubicon established by 1927 when it insisted that its fraudulent diagnoses would be proven legitimate at the Daubert hearings. In re Silica Prod. Lit., 398 F. Supp. 2d at 675. Judge Jack concluded: The Court finds that filing and then persisting in the prosecution of silicosis claims while recklessly disregarding the fact that there is no reliable basis for believing that every Plaintiff has silicosis constitutes an unreasonable multiplication of the proceedings. When factoring in the obvious motivation-- overwhelming the system to prevent examination of each individual claim and to extract mass settlements--the behavior becomes vexatious as well. Id. at 676. Although Judge Jack imposed sanctions pursuant to 28 U.S.C. 1927, there are many other avenues for potential sanctions available. In Mississippi, there is a statute governing litigation accountability, which provides an avenue for sanctions for meritless claims or unnecessary expansion of litigation. Miss. Code Ann provides: the court shall award... reasonable attorney's fees and costs against any party or attorney if the court... finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct... Following Judge Jack s ruling in the Silica MDL, that statute was used (unsuccessfully) as a basis for sanctions. Choctaw, Inc. v. Campbell-Cherry-Harrison-Davis & Dove, 965 So. 2d 1041 (Miss. 2007).

7 Settlement Negotiations. When a global leader in the coal industry faced claims from residents near its coke manufacturing facility for alleged personal injuries resulting from air emissions allegedly from that facility, the company used Litscoop to assist in settlement negotiations with plaintiffs counsel. A Litscoop search of the 1,100 nearby residents/plaintiffs revealed that 150, or 13%, of the plaintiffs had previously filed asbestos claims. Almost 30 of those plaintiffs were represented by the same plaintiffs counsel in both their asbestos claims, and their claims against the company. Another 400 plaintiffs against the company were likely plaintiffs in other mass tort claims, but further confirmation was needed. That explosive information cast doubt on causation of the alleged injuries (i.e., whether such injuries were the result of exposure to asbestos, air emissions, both or neither), provided fodder for statute of limitations arguments because the asbestos claims were filed years before, and introduced plaintiffs counsel s own knowledge of these problems as an issue in the case. Armed with the Litscoop data, the company and its lawyers went to mediation, and got the cases settled. Conclusion. The advent of Litscoop is unprecedented, and its potential use without limit. Litscoop has broken new ground in virtually every way in which it has been used. From fraud detection to statute of limitations to jury selection, Litscoop has revolutionized the information available to defense counsel, and opened doors previously closed.