“Are most decent law firms shutting down their screening programs for silicosis? I think the answer is yes.”

“It's probably a function of [the fact that] there are not enough resources out there to handle any more cases in a large way,” said Mr. Lubel, who won the largest Texas verdict for a silica-related case in 2001. “There does not appear to be enough money out there to compensate any real increase in cases.”

“I'm not saying that if 10, 50 or 100 good cases walked into my office tomorrow [that] I wouldn't take them,” he said adding, however, that he wasn't about to “spend a bunch of money to go screen people all across Texas” to build up an inventory.

“There are already 15,000 or 20,000 cases on file right now. I wouldn't say that we're going to bankrupt all these companies, but I just think we're at a point where we're near the end,” he said.

Tort reformists who speculate that this is the next asbestos are “dead wrong,” he said. “I'd put good money on that bet,” he added, countering theories based on the fact that 600,000 asbestos cases once numbered only 20,000.

What explains the surge in cases in the past two years? “Tort reform,” Mr. Lubel said, before the question was finished.

People think that asbestos lawyers have seen a rash of bankruptcies, and they're looking for income replacement in silica cases. “I don't think that's what it's about. I think this was primarily motivated by the tort reform movement and the speed with which it was on us,” said Mr. Lubel, who works on both asbestos and silica cases. Reforms moved so fast that some firms probably didn't do the due diligence they would have done on some cases had they had time, he said.

Mr. Lubel said his firm also filed more cases in the last two years. “But we are small fish,” he said, putting the total between 1,000 and 1,300 cases, out of 5,000-7,000 that his firm could have screened.

What about the theory that lawyers took asbestos inventories and turned them into silica cases?

“I'll be the first one to tell you that lawyers have looked through their existing inventory of asbestos cases good lawyers to see if people with [chronic obstructive pulmonary disease], or emphysema, or kidney disease, or autoimmune diseases” had exposure to silica. He added that “some of the firms have looked specifically for sandblasters in their inventory to see if their X-rays had been read for silicosis,” he said.

“But it has not been abused. Every asbestos case hasn't been turned into a silica case,” he noted.

How will the cases already on file be resolved?

“I'm still trying to figure that out myself,” said Mr. Lubel, although he noted that reports he's heard out of a silicosis multidistrict litigation set up in Houston last year suggest that “fairly serious settlement discussions” are underway. (In an MDL setup, cases are moved to one court, where a single judge oversees them.)

Mr. Lubel is not directly involved in the MDL since none of his cases have been transferred, but he is on a tort claimants committee that refers questions to him.

Based on his outsider knowledge of events, he said he believes that 90 percent of the defendants were ordered to produce documents by the MDL judge and that they “cut a deal with plaintiffs lawyers” to seal those records as the parties work through settlement discussions.

Reproduced from National Underwriter Edition, May 28, 2004. Copyright 2004 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.