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The "Offensive Use" Doctrine

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  • #16
    Jurors exonerate Peirce firm in phony X-ray trial!!

    Jurors exonerate Peirce firm in phony X-ray trial

    8/17/2009 5:33 PM
    By Steve Korris

    WHEELING - Robert Peirce's law firm in Pittsburgh bears no liability for a phony X-ray in an asbestos suit against CSX Transportation, a jury in federal court decided on Aug. 14.

    Jurors cleared former Peirce employee Robert Gilkison of blame in the substitution of a railroad worker for another worker's X-ray.

    The verdict in Gilkison's favor automatically exonerated the Peirce firm.

    Jurors chose not to rely on testimony of Ricky May, whose asbestos lawsuit against CSX depended on an X-ray of Daniel Jayne.

    May told jurors Gilkison proposed the scheme while they drank after a union meeting, but Gilkison said the idea came from May.

    Gilkison said he didn't report it to the firm because he didn't take it seriously.

    The firm battered May's credibility with sworn statements from CSX managers.

    Jurors learned that retired director of occupational disease litigation A.F. Bobersky described May in a deposition as "one who abused the system."

    Bobersky called Jayne a trouble maker and said, "I wouldn't trust him as far as I could throw him."

    Jurors learned that when Huntington division superintendent Ronald Close took a telephone call about the fraud and May's role, it didn't shock him.

    Close said in a deposition that he believed May was the type of person to be involved in a fraud like that.

    Jurors learned that labor relations manager John Thompson said in a deposition that he was never comfortable dealing with May.

    "Our jobs rely on a lot of trust and integrity, and I could never take anything at face value with Mr. May," Thompson said.

    U.S. District Judge Frederick Stamp presided. The trial lasted four days.

    CSX spokesman Bob Sullivan said the company was disappointed in the verdict.

    "We are reviewing the matter and will make a decision regarding an appeal," he said.

    Richie Heath, executive director of West Virginia Citizens Against Lawsuit Abuse, also expressed disappointment.

    "While it was an undisputed fact that a lawsuit was filed on the basis of fake medical evidence, this case now makes it unclear when a personal injury firm, and its employees, must report allegations of lawsuit fraud in West Virginia," Heath said.

    "If law firms may not have to actively disclose possible instances of fraud, job providers are again left guessing about the fairness of our state's legal system and the practicability of doing business in our state," he said.

    CSX will take the Peirce firm to trial again in Stamp's court starting Sept. 15, on a claim that the firm conspired with radiologist Ray Harron to fabricate a lawsuit.

    COMMENT: One down and one to go! If the Pierce Firm wins number 2, CSX had better expect a malicious prosecution claim

    Steve Gordon
    Alabama FELA Claims Attorney | Railroad Worker Injury Lawyer AL | Birmingham Mobile Huntsville |

    Steve Gordon
    Gordon, Elias & Seely, L.L.P.
    FELA Lawyer
    FELA Lawyer Blog
    Serving Injured Railroad Employees Nationwide
    Call for a FELA Lawyer 24/7/365


    • #17
      Harron wants to keep info from jurors

      Harron wants to keep info from jurors

      8/27/2009 9:00 AM
      By Steve Korris -Ohio Bureau


      WHEELING - Bridgeport radiologist Ray Harron doesn't want jurors in his federal civil fraud trial to learn that a Texas judge exposed his unreliable method, that he pleads the Fifth Amendment or that he lost his medical license in seven states.

      He doesn't think jurors should waste time looking at X-rays, either.

      He moved on Aug. 20 to preclude CSX Transportation from raising these topics in a trial that U.S. District Judge Frederick Stamp plans to start Sept. 15.

      CSX alleges that Harron conspired with Pittsburgh lawyers Robert Peirce and Louis Raimond to fabricate an asbestos lawsuit for CSX worker Earl Baylor of Kentucky.

      CSX believes jurors should examine Baylor's suit in a context of mass litigation, while Harron, Peirce and Raimond believe jurors should examine it with no context at all.

      Harron, Peirce and Raimond seek to shield jurors from an order that U.S. District Judge Janis Jack of Corpus Christi signed in 2005.

      Jack found that in thousands of cases radiologists acting as "B-readers" of chest X-rays reported silicosis and asbestosis on separate occasions for the same plaintiff.

      As a former nurse, Jack understood that silicosis and asbestosis don't happen together and that they show different signs.

      Among the radiologists she singled out was Harron, who had testified in her court, for the harshest criticism.

      When a Congressional subcommittee summoned Harron to explain, he invoked his constitutional right against self incrimination. He has also pleaded the Fifth Amendment in depositions for civil suits.

      Now his lawyer, Jerald Jones of Clarksburg, asks Stamp to keep Jack out of his trial.

      "The potential for unfair prejudice is increased by the fact that the alleged bad conduct was found by a judge," Jones wrote. "The conduct by Dr. Harron that the Texas district court found troubling is completely unrelated to any conduct at issue in this case.

      "Dr. Harron was not a party to that proceeding, could not offer evidence or argue to the court, and could not appeal the decision."

      Sections of the order relating to other doctors, lawyers, X-ray companies, witnesses, attorney sanctions and jurisdiction do not concern Harron, he wrote.

      He wrote that CSX seeks to support an inference that because a court rejected Harron's diagnoses in unrelated litigation, his B-read on Baylor was fraudulent.

      He declared Harron ready for "an extensive side trial" challenging Jack's decision.

      He wrote that if jurors hear about dual diagnoses, Harron will produce evidence about causes and development of both diseases and their relationship to one another.

      "Considerable trial time would thus be devoted to educating the jury on a complicated yet completely secondary medical issue," Jones wrote. "In order to properly evaluate any allegedly fraudulent dual diagnosis, the jury would likely have to evaluate not only Dr. Harron's reports and B-reads, but the underlying X-rays and scientific evidence regarding the incidence of silicosis."

      Jones moved separately to preclude B-reads of anyone but Baylor.

      "Introducing unsupported and unrelated B-reads in this way will most likely lead to jury confusion and waste of time," he wrote.

      Next he moved to preclude disciplinary proceedings that followed Jack's action.

      "Dr. Harron will have to spend trial time and produce evidence explaining how the conduct at issue in those proceedings differs from the conduct alleged here," he wrote.

      He attached a finding of fraud and negligence from a New York administrative review board, calling it particularly prejudicial.

      The New York board stated, "The record demonstrates that the respondent used his medical license to engage in an ongoing fraud on the courts."

      Jones also moved to preclude evidence that Harron pleaded the Fifth Amendment.

      Peirce and Raimond, echoing Harron's concerns about Judge Jack, moved on Aug. 20 to preclude evidence about silicosis litigation.

      Their lawyer, Walter DeForest of Pittsburgh, called Jack's order inadmissible hearsay.

      He wrote that it "could improperly influence the jury because the opinion comes from a sister judge."

      In a dark corner of the case, DeForest asked Stamp to exclude evidence about illegal payments from Peirce to candidates in union elections.

      Jones, expecting evidence along that line, asked Stamp to keep CSX from using it against Harron.

      Also on Aug. 20, Harron and the lawyers moved to exclude testimony from Yeshiva University law professor Lester Brickman about mass asbestos litigation.

      "Professor Brickman's testimony does not explain anything the jury cannot comprehend on its own," Jones wrote for Harron.

      DeForest identified Brickman as an advocate for tort reform and wrote that he would base his testimony on "speculative guilt by association" with Harron.

      If Stamp's jurors find in favor of CSX, they won't have to worry about calculating the railroad's damages.

      On Aug. 20 all lawyers agreed that if jurors find a fraud conspiracy, a separate trial on damages will follow.
      Steve Gordon
      Gordon, Elias & Seely, L.L.P.
      FELA Lawyer
      FELA Lawyer Blog
      Serving Injured Railroad Employees Nationwide
      Call for a FELA Lawyer 24/7/365


      • #18
        Fraud case will continue against asbestos firm

        LegalNewsline | Fraud case will continue against asbestos firm
        Fraud case will continue against asbestos firm

        WHEELING, W.Va. (Legal Newsline) - The third amended complaint in CSX Transportation's long-running racketeering case against a Pittsburgh asbestos firm has survived a motion to dismiss.

        Thursday, U.S. District Judge Frederick Stamp denied the motion to dismiss filed by the firm Peirce, Raimond & Coulter, which is being accused by CSX of teaming with radiologist Ray Harron to fabricate asbestos claims against the company. CSX filed its first complaint in the case seven years ago.

        The Peirce firm made five arguments in support of dismissal of the lawsuit. It said CSX failed to properly state any racketeering claims.

        "With regard to relatedness, this court's analysis hinges upon whether the predicate acts are defined as only the 11 fraudulent asbestosis claims or whether the mass suits themselves are considered predicate acts," Stamp wrote.

        "As both parties acknowledge, the 11 fraudulent claims represent a small percentage of the total number of claims included within the mass lawsuits discussed in the third amended complaint. The lawyer defendants argue that this isolated conduct, a mere 0.2 percent of the asbestosis claims filed by the Peirce firm against CSXT, does not create a pattern of racketeering activity.

        "But this court finds that the predicate acts alleged in the third amended complaint arguably encompass more than just the 11 fraudulent claims."

        CSX is accusing the firm of filing a massive amount of lawsuits in overburdened courts to prevent the company from any meaningful discovery, which concealed fraudulent claims and leveraged higher settlements.

        Stamp granted summary judgment to the defendants in 2009, finding a statute of limitations had run out.

        In late 2010, judges of the U.S. Court of Appeals for the Fourth Circuit in Richmond remanded the case to Stamp with instructions to let CSX amend the complaint.

        CSX amended the complaint in 2011. The Peirce firm filed counterclaims, which have also survived a motion to dismiss.

        In 2005, federal court judge Janis Graham Jack made national headlines when she uncovered duplicate and fraudulent silica diagnoses in her Texas courtroom. Many of those diagnoses were made by Harron and were made on plaintiffs who had already brought asbestos claims.

        In Jack's opinion dismissing the claims, she said "These diagnoses were driven by neither health nor justice - they were manufactured for money."

        Following Harron's admission that he did not even make the diagnoses of the patients whose x-rays he read, Jack noted that most of "these diagnoses are more the creation of lawyers than doctors."
        Steve Gordon
        Gordon, Elias & Seely, L.L.P.
        FELA Lawyer
        FELA Lawyer Blog
        Serving Injured Railroad Employees Nationwide
        Call for a FELA Lawyer 24/7/365