Silicosis Judge Erupts in Fury In Case of the Missing X-Rays

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Evidence key to ongoing investigations of alleged fraud in silicosis-related litigation has gone missing from a repository in Texas, fueling a bitter row between a federal judge and the state’s attorney general.

Judge Janis Jack excoriated the office of Texas’s top lawman, Greg Abbott, for sending four armed agents to seize thousands of X-rays last month from a private company in Corpus Christi holding the records on behalf of the federal court, The New York Sun has learned.

“The arrogance of taking those documents from a federal court-supervised depository is astounding,” an audibly seething Judge Jack said during a conference call last Friday with lawyers involved in the case. “The attorney general of the state of Texas has exhibited a total disregard for the rule of law by doing this.”

Last year, Judge Jack drew national attention when she issued an opinion saying the vast majority of the more than 10,000 silicosis lawsuits consolidated before her were “manufactured for money.” She noted that the same dozen doctors diagnosed 9,000 cases of the serious lung ailment. In many cases, the physicians had not seen the patients and relied solely on reading X-rays. Trial lawyers had hoped that silicosis cases would yield billion-dollar paydays like those in asbestos litigation.

The judge’s findings triggered investigations by a congressional committee, federal prosecutors in New York, and the Texas attorney general.

According to court records, Mr. Abbott’s aides appeared at the Corpus Christi depository on June 23 and used a grand jury subpoena to seize all of the original X-rays gathered by Judge Jack’s court.

“I was informed by the lead investigator that if the original X-rays were not turned over immediately that I could be arrested,” the custodian of the records, Gary Cosgrove, said in a an affidavit.

According to court records, Judge Jack learned of the seizure on July 5 and ordered the attorney general’s office to return the records by noon the following day. The state officials brought about 40 boxes back, but Mr. Cosgrove told Judge Jack last week that 152 X-rays had disappeared.

“All I can say is I can vouch to the court that this office does not have those X-rays,” an attorney for the state, Lance Kutnick, told the judge.

“Well, I imagine you don’t, but in the meantime, because of what you’ve done, they’re gone,” Judge Jack said, according to an audio recording of the session. “These are people’s personal X-rays that are absolutely vital to investigations of this case, vital to the people involved in this case, and because of the attorney general of the State of Texas’s malfeasance, they’re gone.”

Judge Jack acknowledged that she was aware of the state probe, but she said no one told her about plans to seize records. She said Mr. Abbott’s aim was “clearly to get an oar in the water” in a matter already under investigation by federal law enforcement and the Congress.

A spokeswoman for Mr. Abbott, Angela Hale, said he was not available for an interview yesterday. She reiterated the claims that the records were returned intact.

Judge Jack was not satisfied with the explanations and ordered that the Justice Department and the appropriate lawmakers be informed about the episode. “It may be a criminal matter,” she said.

Mr. Kutnick told Judge Jack that he had concerns about seizing the records but that the decision to do so “was made way above my level.” He said he did not know precisely who made the decision.

A law professor at New York University, Stephen Gillers, said the Texas officials’ action was an act of defiance toward the federal courts. “It’s unprecedented in my experience or memory because no one would think to do something like it. It gives whole new meaning to the phrase, ‘Wild West,'” he said.

Mr. Gillers said it is a basic principle of American law that federal courts have “supremacy” over state government actions. “Texas is still a state, not a country, and it’s not an independent nation anymore,” he said.

The NYU professor said the fact that the X-rays were kept by a private firm was immaterial. “There’s no difference between files kept under the authority of the court wherever they are located and those in the judge’s desk drawer. They belong to her unless and until appropriate process is made to secure them, which this is not,” he said.

It is unclear what prompted Mr. Abbott’s personnel to seize the records without notice to the court. However, a lawyer for defendants in the case, James McCullough II, indicated in an affidavit that the Texas officials were opposed to an order Judge Jack had issued calling for the X-rays to be moved from Texas to Jackson, Miss. to be closer to most of the plaintiffs and their lawyers. That move was about to get underway when the Texas authorities stepped in.

The X-rays are critical to the claims of fraud because some of the doctors diagnosed the same individuals with both silicosis, a disease caused by exposure to airborne particles of finely ground sand, and asbestosis, a malady stemming from exposure to asbestos fibers. Judge Jack and some of the companies named as defendants contend that the so-called dual diagnoses are evidence of fraud, because the conditions are rarely found together. Plaintiffs’ lawyers contend that many of the dual diagnoses could be legitimate.

At a House hearing on the matter earlier this year, three doctors involved in the case refused to testify, citing the Fifth Amendment.

An attorney for one of those physicians said yesterday that the actions by officials in the Lone Star State were startling. “I guess that’s why they call them Texas cowboys,” the defense lawyer, Lawrence Goldman, said.

The Justice Department investigation into the allegedly fraudulent lawsuits is being led by prosecutors at the U.S. Attorney’s Office for the Southern District of New York. The tie to Manhattan is murky, but the New York Times has reported that the connection involves the Manville Trust, a fund set up to pay asbestos claims brought against the Johns-Manville Corp.

A spokeswoman for the federal prosecutors did not respond to a call seeking comment for this article.

Judge Jack, who worked as a registered nurse before graduating from law school, was appointed to the bench by President Clinton in 1994.

Mr. Abbott, a Republican, served as a justice of the Texas Supreme Court from 1995 to 2001. He was elected attorney general in 2002 and is up for reelection this fall.


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