Chapter

TRANSPARENCY AND EXPERT EVIDENCE IN MASS TORTS: INSIGHT FROM SILICA LITIGATION

Lloyd Dixon and Stephen Carroll

in Confidentiality, Transparency, and the U.S. Civil Justice System

Published in print May 2012 | ISBN: 9780199914333
Published online September 2012 | e-ISBN: 9780199980185 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199914333.003.0007
TRANSPARENCY AND EXPERT EVIDENCE IN MASS TORTS: INSIGHT FROM SILICA LITIGATION

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Reliable expert evidence is critical to the performance of the civil justice system. A major sea change in the treatment of expert evidence occurred with the Daubert decision in 1993. While research has suggested that the Daubert decision has increased the scrutiny of expert evidence, troubling examples continue to surface in which expert evidence appears to be of very low reliability. The recent silica litigation provides such an example. In the early 2000s, the number of people filing claims for silica-related injuries skyrocketed. In 2003, U.S. District Court Judge Janis Graham Jack (in the Southern District of Texas) was assigned to preside over a consolidated action that included over 10,000 silica claims, and in June 2005, she issued an order questioning the validity of virtually every claim. The court explicitly criticized the procedures used by the doctors who diagnosed the vast majority of the plaintiffs and concluded that thousands of silicosis claims had been manufactured for money. Judge Jack found that the testimony of experts raised “great red flags of fraud”. The findings of Judge Jack have been widely accepted, and as a result, both the number of pending silica cases and the number of new filings plummeted following the proceedings in her court. This chapter draws on the experience with silica litigation to explore the role that increased transparency can play in improving the quality of expert evidence in mass personal injury litigation. It identifies the key factors that contributed to, or hindered, the discovery of fraud in diagnosing injuries. It then explores how increased transparency might be able to create the conditions in other settings that work in favor of uncovering fraud and to limit the influence of factors that work against such outcomes.

Keywords: expert evidence; silica litigation; Judge Janis Graham jack; transparency

Chapter.  6482 words. 

Subjects: Constitutional and Administrative Law

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