The Saturday edition of the Wall Street Journal contained an article on the rise and fall of silica litigation. WSJ writer Kimberly Strassel credits U.S. Silica CEO (and former attorney) John Ulizio with single-handedly exposing silica litigation as a fraud. The truth is more complicated and a lot different.
Plaintiffs began filing silica cases in Mississippi in approximately late 2001. By 2003, there were hundreds of cases on file in Mississippi involving thousands of plaintiffs. Mississippi’s jackpot justice era was dying by this time, but mass tort plaintiff lawyers did not yet know it.
In the typical silica cases many plaintiffs sued many defendants under Mississippi’s formerly liberal joinder rules. At its height, there were in the neighborhood of fifty defendants sued in most silica cases, from national manufacturers to local paint and hardware stores. Many depositions were held where there were thirty or more defense lawyers appearing, all representing a different client. Even more lawyers attended MDL hearings in Corpus Christi, Texas, where the courtroom was packed with lawyers. Most of the lawyers were from Mississippi, since it was where the majority of the cases were filed.
Keeping the numerous clients and attorneys on the same page was like herding cats. The law firms that appeared to take the lead in this difficult task were (in no particular order): Forman Perry, Brunini, Bradley Arant and Dogan and Wilkinson. There was a defense steering committee with five attorneys on it. I can’t recall who they all were, but they all made significant contributions. The one lawyer who I saw doing the most to organize defense meetings where cooperation and coordination was discussed was Cheri Green at Brunini.
U.S. Silica’s Mississippi counsel was Watkins Eager. I never saw them organizing or presiding over joint defense meetings, boisterously urging joint defense positions, or otherwise trying to keep all the defendants on the same page. I’ve never heard of John Ulizio. When I bounced his name off a lawyer who was more involved in silica litigation than me, he hadn’t either.
To be fair, Mr. Ulizio deflected credit in the article, but Strasell inferred that he was being modest. Unfortunately, Strasell either confused honesty with modesty or the entire piece was a disguised promotional piece. Here are some of the story’s hilights, along with my response:
Mr. Ulizio is a humble guy, and gruffly waves off suggestions that he or his company played any special role in this victory. He ascribes the Texas success to all the defendants equally, as well as the willingness of insurers to join the battle, and to enlist top-notch attorneys. But that is to ignore the knowledge and the backbone Mr. Ulizio and U.S. Silica brought to this fight.
Response: Sorry Ms. Strassel, Ulizio is being honest–not modest. While it might be an over-simplification to equally credit all defendants, the defense success would not have been possible without most of the defendants mostly agreeing on major defense issues. U.S. Silica was not the driving force behind these decisions. There was no one driving force, and whatever role that U.S. Silica played, it was not the lead role in the litigation.
Another of Mr. Ulizio’s rules was “to treat cases like real cases,” a tactic that would prove important in the later Texas litigation. “There is temptation amongst defendants to treat these as a claims process. We tried not to do that, even in cases we settled. We tried to treat each as a real case, where you take depositions, you have people who know what they are doing asking the questions, you demand real medical evidence,” he says.
Response: This passage infers that Ulizio and U.S. Silica took the lead in deposing the doctors who diagnosed the plaintiffs with silicosis. I don’t believe that is true. I did not attend those depositions, but it’s my understanding that Fred Krutz and Danny Mulholland at Forman Perry took the lead in the depositions. I don’t believe those guys would have let another firm’s client tell them what to do. I also note that Ulizio admited that U.S. Silica settled some cases. Many defendants never paid a penny, including my clients.
He didn’t settle: He went public. Private companies tend not to air their litigation laundry, but the silica CEO talked to the media, detailed his lawsuit figures, ginned up coverage of the lawyers’ tactics. The growing story emboldened other defendants to fight back. U.S. Silica also pushed hard, behind the scenes, to depose, investigate and fight.
Response: I’m not sure where Ulizio “went public.” I didn’t see U.S. Silica pushing other defendants behind the scenes and I do not believe that they were. Nothing U.S. Silica did emboldened other defendants. Everything that happened in the litigation would have happened if U.S. Silica was never a party.
Mr. Ulizio nonetheless credits a lot of the victory to luck, and mistakes by the other side. “The real advantage was simply that asbestos had preceded us, and the plaintiffs’ side overreached. They had asbestos plaintiffs who were diagnosed with asbestosis but not silicosis, rediagnosed with silicosis but not asbestosis, by the same doctor, with the same X-ray. They laid the seeds for their own destruction.”
Response: Luck didn’t have that much to do with it. It was hundreds of weak cases, good lawyering on the defense side and many defendants having a back bone at the same time. The insurance companies that I represented decided to reject the plaintiffs’ mass nuisance value settlement demand. Other corporate defendants and insurance companies reached similar decisions on their own. No one from U.S. Silica called us and encouraged our decision. A few defendants settled and some (or at least their lawyers) appeared to be cooperating with the plaintiffs’ attorneys.
The defendants had already made one bold move, receiving permission to aggregate the suits in front of Judge Jack. It raised the stakes, but in retrospect it was what also allowed defendants to connect the nefarious doctor-lawyer dots. “It was very important to the effort, because it allowed us to see the pattern, and present that pattern to the judge,” he says.
Response: Filing the motion to create the MDL was initially controversial and second guessed. Some attorneys hoped that the MDL would would be assigned to a Mississippi judge, since that is where the most cases were pending. I’m not sure how the case came to be assigned to Judge Jack, but it was a big surprise and she was an unknown commodity. Defendants were not initially thrilled with the assignment and probably initially regretted the MDL. The Jackson lawyer who I heard pushed the idea hardest at the beginning was at Forman Perry and I’m pretty sure he did not represent U.S. Silica. As the litigation progressed, Judge Jack grew on the Defendants. Judge Jack was smart, quick witted and had a sharp tongue in hearings that often evoked laugher at the expense of an unlucky attorney. Fred Krutz was often on the receiving end, but he took it with humor and that appeared to make Judge Jack like him.
Even with all that, Mr. Ulizio feared they’d lose. “There was no reason to believe Judge Jack would be as good as she was before she was as good as she was,” he says. “One of the dirty little secrets of this litigation is that it didn’t have to turn out the way it did. All’s well that end’s well is the cliché, right? First it’s got to end well.”
Response: Ulizio is on the money here. Early in the MDL defense lawyers didn’t like Judge Jack and the plaintiff lawyers did. That changed in a big way, but the defendants were scared of her for a while.
Conclusion: Lawyers have a tendecy to over emphasize their role in determining the outcome of a case, but here a reporter did it. Don’t get me wrong, lawyers can and do win and lose cases. But lawyers are playing the hand (case facts) that they are dealt. The facts of the case almost always have more to do with the outcome than the lawyers. Silica litigation failed because a small fraction of the thousands of silica plaintiffs actually suffered from silicosis. There was great lawyering on the defense side by counsel representing many courageous clients. But to the extent that there was a hero in the litigation, it was clearly Judge Jack.
Judge Jack took an active roll in the litigation to the point of ordering depositions to take place in her courtroom with her presiding. This is an unusual approach for a United States District Judge. Judge Jack issued a 250 page opinion that exposed the litigation. It was Judge Jack who wrote:
But it is apparent that truth and justice had very little to do with these diagnoses–-otherwise more effort would have been devoted to ensuring they were accurate. Instead, these diagnoses were driven by neither health nor justice: they were manufactured for money. The record does not reveal who originally devised this scheme, but it is clear that the lawyers, doctors and screening companies were all willing participants.
It is Judge Jack’s story that should be told in the Wall Street Journal.