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  • FELA FELLA
    started a topic The "Offensive Use" Doctrine

    The "Offensive Use" Doctrine

    WHEELING - U.S. Magistrate Judge James Seibert won't let Pittsburgh attorney Robert Peirce hide from CSX Transportation behind attorney client privilege.

    On May 29, Seibert ordered Peirce's firm to produce correspondence with client Earl Baylor, a former CSX worker who sued the railroad in state over asbestos exposure.

    "Simply put, a lawyer or law firm may not engage in fraudulent or criminal activity and then hide behind any privilege to protect the firm's or the individual lawyer's interest," Seibert wrote. "The Court believes that this is exactly what Defendant is attempting to do in this case.

    "These documents are central to CSX's contention that the defendants in this case have fabricated personal injury claims and evidence."

    He relied on a 1988 appellate court decision to hold that "lawyer misconduct may eviscerate both work product production and the attorney client privilege."

    He also applied an exception that the West Virginia Supreme Court of Appeals created in 2004 for crime and fraud.

    Seibert presides over preparation for trial on CSX's conspiracy claim against Peirce, the firm of Peirce, Raimond & Coulter, and radiologist Ray Harron of Bridgeport.

    CSX at first sought to challenge multiple suits that Peirce filed for CSX workers in West Virginia state courts, but Stamp allowed only a claim involving Baylor.

    CSX has turned Baylor into a reverse class representative, weaving his case into patterns that involve thousands of suits.

    After Seibert ordered Peirce to produce a questionnaire Baylor filled out, CSX lawyers found different handwriting on his symptoms than on the rest of the sheet.

    Peirce resisted further production and testified at a May 4 hearing that he intended all his communications with Baylor to be confidential.

    Seibert wrote that he didn't doubt the testimony. "However, this is not determinative as to the crime fraud and misconduct exception to the rule," he wrote.

    Seibert's order measured the height of the hurdle the railroad cleared.

    "The attorney client privilege exists to prevent compelled disclosure of confidential information between an attorney and a client," he wrote.

    "This confidential relationship is the backbone of our judiciary," he wrote.

    It protects verbal and written communication including electronic mail, he wrote.

    He balanced it against "In re Impounded Case," a 1988 opinion by Judge Seitz of the Third Circuit appeals court.

    "It is not apparent to us what interest is truly served by permitting an attorney to prevent this type of investigation of his own alleged criminal conduct by asserting an innocent client's privilege with respect to documents tending to show criminal activity by the lawyer," Seitz wrote, "On the contrary, the values implicated, particularly the search for the truth, weigh heavily in favor of denying the privilege in these circumstances."

    Seibert followed this excerpt by noting that, "Of course, this case is not in the criminal context."

    He wrote, "However, this Court believes the same principles laid out so eloquently by Judge Seitz apply here."

    He ordered Peirce to produce all blank preprinted diagnosis forms that the firm sent to Baylor and related correspondence.

    He ordered Peirce to produce "all correspondence relating to the non-privileged 'asbestos questionnaire' generated by the Peirce firm and completed by Baylor for the purposes of disclosure and settlement."

    He wrote that the documents "are necessary to impeach Peirce's claim that he had a good faith basis to believe Baylor was exposed to asbestosis as a CSX employee."

    He ordered Peirce to identify the date when the firm received a negative CT scan of Baylor, finding it necessary to impeach a claim that he wasn't aware of the scan.
    --------------------------------------
    FELA FELLA COMMENT: This piece of litigation is getting very nasty and, if the allegations are true, could result in loss of licensure and jail time for this, once Union Designated, counsel. This type of behavior, if true, is the exact stuff that gives a general bad taste in your mouth about personal injury lawyers. If it is true, I hope they stick him and the doctor under the jailhouse as it is not representative of the many hard working honest lawyers in the U.S. Another thing this litigation does is it takes the focus off of CSX which happens to have some of the meanest most manipulating "higher-ups" in the railway industry. CSX will stop at nothing to have an injured railroad worker not make a claim. The resort to intimidation tactics that have been taken to an art form!

    The "Offensive Use Doctrine" is a legal doctrine that says that if a lawyer commites a crime, the lawyer cannot come back later and assert a privilege to forestall the production of documents.

    Steve Gordon
    Attorney Steven Gordon, Gordon & Elias, L.L.P., Houston, Texas
    Last edited by FELA FELLA; 06-05-2009, 01:09 AM.

  • FELA FELLA
    replied
    Fraud case will continue against asbestos firm

    LegalNewsline | Fraud case will continue against asbestos firm
    Fraud case will continue against asbestos firm
    BY JOHN O'BRIEN

    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."

    Leave a comment:


  • FELA FELLA
    replied
    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

    Harron

    Peirce
    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.

    Leave a comment:


  • FELA FELLA
    replied
    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 |

    Leave a comment:


  • jonnyseeandoh
    replied
    Me agrees and wonders how such contempt for justice is dealt with.

    Leave a comment:


  • FELA FELLA
    replied
    Peirce hasn't turned over documents to CSX

    Peirce hasn't turned over documents to CSX

    8/7/2009 8:10 AM
    By Steve Korris -Ohio Bureau

    Peirce

    Harron
    WHEELING - Asbestos lawyer Robert Peirce of Pittsburgh hasn't turned over vital documents to CSX Transportation for the railroad's fraud and conspiracy trial against Peirce's firm and radiologist Ray Harron of Bridgeport, according to CSX lawyers.

    On July 30, David Bolen of Huntington asked U.S. District Judge Frederick Stamp to clarify that an order he issued on June 5 requires production of the documents.

    The documents include at least eight pages of internal memoranda relating to Harron, Bolen wrote.

    "CSX believes these documents, as well as many others currently being withheld, could provide evidence in support of its fraud and conspiracy claims," he wrote.

    Stamp plans to start trial Sept. 15.

    He plans to start a smaller trial Aug. 11.

    The Aug. 11 trial will explore the role of Peirce's firm and his employee Robert Gilkison in substituting a CSX worker for another worker's X-ray.

    The first trial won't concern Harron, but the second trial will.

    In 2005, U.S. District Judge Janis Jack of Corpus Christi, Texas, exposed fabrication of about ten thousand X-rays by Harron and other radiologists.

    Since then Harron has invoked his Fifth Amendment right against self incrimination in civil suits and Congressional hearings.

    Last December, CSX served Harron with a request to produce documents. Harron resisted, and in February CSX moved to compel production.

    In March Peirce filed an emergency motion for a protective order to keep CSX from seeing its correspondence with Harron.

    At a hearing, Magistrate Judge James Seibert narrowed the dispute to production of the requests Peirce's firm sent to Harron for chart reviews.

    In May Seibert denied the protective order, ruling that Peirce and his firm lacked standing to file the motion.

    "The Peirce firm has totally and completely waived any attorney-client privilege or work product doctrine protection with respect to the documents in Dr. Harron's possession because it filed no responsive pleading and asserted no claim of attorney-client privilege or work product doctrine," Seibert wrote.

    Peirce asked Stamp to overturn the order, but in June Stamp adopted it in its entirety.

    Stamp held that Seibert "was not clearly erroneous in finding that the Peirce firm defendants failed to take reasonable steps to protect the alleged privileged documents in Dr. Harron's possession."

    He wrote that Peirce moved for a protective order almost three months after discovery was requested and two months after Harron responded.

    Still Peirce resisted, prompting Bolen to move for clarification.

    For Peirce, Walter DeForest of Pittsburgh responded on July 31 that the railroad misconstrued the record and Stamp's order.

    According to DeForest, Seibert split the request for documents into two categories and ruled on only one category.

    "The Peirce firm has asserted privilege and other objections to production of these documents and those objections have yet to be ruled upon by Judge Seibert or this court," he wrote to Stamp.

    Steve Gordon/FELA Fella Comment: I would be very surprised if these documents ever get fully produced.......

    FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident

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  • FELA FELLA
    replied
    It's Getting Hot In Here....

    Alleged asbestos fraud scheme started years ago
    BY Justin Anderson & Chris Dickerson


    PeirceHarronCHARLESTON - A Pittsburgh-based law firm and a West Virginia physician were part of an intricate web of deceit that led to big money for all, say their accusers in a civil fraud lawsuit.

    The Robert Peirce and Associates firm and Bridgeport radiologist Dr. Ray Harron face allegations in federal court leveled by CSX Transportation that the two conspired to create false asbestos exposure diagnoses for CSX employees.

    With a trial set to begin Aug. 11 at U.S. District Court in Wheeling, CSX seeks to recover the cost of defending and settling allegedly fraudulent asbestos claims.

    The Peirce firm and Harron deny being involved in fraud, according to court documents.

    The players

    It all begins with "The Mason Enterprise," according to court filings. And the alleged fraud wasn't just targeting CSX, but other industrial giants such as Owens Corning.

    Charlie Heath Mason, an Alabama resident, was co-owner and operator of a company called N&M -- the latest of at least four others that were in the same business of coordinating mass screenings of potential plaintiffs.

    The earliest of the "enterprise" was begun by Jewel "Jerry" Pitts, Mason's step-grandfather in 1989. The enterprise companies were called Pulmonary Advisory Services, Pulmonary Testing Services and Gulf Coast Pulmonary Laboratory. Jewel and his cousin, Glenn Pitts, together owned another company, Pulmonary Advisory Services of Louisiana.

    In the early 1990s, Glenn Pitts approached a former Mississippi chiropractor, Dr. Harry Netherland, asking if Netherland could perform x-rays for the Pitts' companies, court filings say.

    Netherland provided his wife, Molly Ruth Netherland, with the office space and equipment to perform the x-rays for the Pitts' businesses.

    Glenn Pitts got out of the business in 1992 and transferred the testing equipment to his cousin Jewel "Jerry" Pitts, who then started Pulmonary Testing Services. This company worked exclusively for asbestos injury law firms, the filings say.

    In 1993, Mason graduated high school and started working for his step-grandfather's company, doing clerical work, the filings say. He also directed potential claimants to law firms that paid PTS for its work.

    Harron came into the fray in late 1994 to replace two other doctors who had previously been reading the x-rays and diagnosing clients. Harron became the diagnosing physician and medical director of PTS in 1995, the filings say.

    Harron quit his practice in radiology and began exclusively evaluating the x-rays taken of potential asbestos litigation clients.

    The first rumblings of trouble came in 1996 when Owens Corning sued the Pitts cousins and a former doctor for violations of federal racketeering laws in U.S. District Court in New Orleans. The Pitts eventually settled with Owens Corning.

    Then PTS stopped performing the screenings.

    But that didn't stop Jerry Pitts. He and stepson Ted Broadus started Gulf Coast Pulmonary Laboratory. Molly Netherland continued to provide the company with x-rays through her business and Harron continued to read x-rays and give diagnoses for them.

    The Florida Attorney General in 1996 closed Gulf Coast for engaging in deceptive trade, court filings say.

    Mason continued the enterprise by starting N&M that same year, bringing Netherland and Harron along. From 1996 through 2005, the company worked almost exclusively for law firms, the filings say, screening more than 45,000 people in connection with asbestos personal injury litigation. The company grossed more than $25 million over that time, the filings say.

    N&M performed screenings for law firms in several states, including West Virginia, the filings say.

    By 2001, Mason hired Christopher Taylor to actively court law firms to use N&M in performing screenings in litigation. Business increased for N&M when Taylor came on board, filings say.

    Neither Mason nor Netherland was qualified to perform the type of work each was doing, the filings say, with Mason being blamed for playing "fast and loose with data" to ensure law firms got the results they wanted. Mason allegedly went as far as performing pulmonary function tests on people, though he was not qualified to do so, the court documents say.

    Harron, all the while, was allegedly "over reading" the x-rays provided to him to falsely report lung scarring caused by the inhalation of asbestos or silica dust, filings say. Harron's rate of positively diagnosing people with asbestos damage "far exceeded" actual occurrence, the court filings say.

    Harron's son, Andrew, later was brought in to take over for his aging father.

    Eventually, several courts began to ban any screenings that originated from N&M.

    How it worked

    According to the CSX lawsuit, N&M spent more than $1 million in wooing law firms and lawyers. The company sent solicitation letters and brochures to targeted firms, representing itself as a group of "qualified professionals."

    When the law firms were on the hook, N&M went to the media to generate claimants, court filings say. The company promised free screenings, but the cost was deducted from any settlements reached with the defendant companies.

    Sometimes the law firms would participate in drumming up customers, filings say.

    Once customers were found, the company would hold mass screenings in places such as motels, union halls and parking lots, filings say. The process allegedly would be tailored to whichever law firm had hired N&M.

    When the x-rays were collected, they were sent to the Harrons.

    According to the filings, the normal rate of lung scarring in a population of exposed individuals was 15 percent.

    With the Harrons on board, some law firms saw rates of 90 percent, filings say.

    Harron also is accused of finding a great number of people positive for both asbestos and silica poisoning. One set of results would be sent to a law firm engaged in asbestos litigation and the other sent to a firm engaged in silica litigation.

    According to the filings, it is rare for a person to be affected by both asbestos and silica poisoning.

    Once the positive diagnoses were achieved, N&M would advise those who did not yet have lawyers that if they went with a specific firm (one that hired N&M), they would not be charged for their screening and that a lawyer was waiting to talk to them nearby.

    Should a law firm ask that the X-rays be read by a doctor other than Harron, N&M would send the X-rays on to another doctor who worked for N&M, according to the lawsuit. If that doctor found the X-rays negative, N&M would shop the X-rays around until a doctor got a positive read, filings say.

    Some law firms would request this to hide the involvement of Harron in the X-ray readings, the lawsuit contends.

    One allegation involving the Peirce firm and Harron says that the firm obtained a former CSX employee's X-ray from the Veterans Administration. Harron positively diagnosed the man. But the firm "invented" a diagnosing doctor in Huntington to allegedly hide Harron's involvement, the suit claims.

    In the end, armed with the positive results, the law firms would flood courts with lawsuits. Instead of fighting each individual case, many companies simply settled, filings say.

    Last month, a federal judge in Wheeling ruled that the Peirce firm must produce correspondence with Harron. U.S. District Judge Frederick Stamp affirmed Magistrate Judge James Seibert, who ruled in May that CSX could see correspondence between Harron and the Peirce firm.

    Stamp's order allows CSX to see all communications between the firm and Harron since 1999, including consulting agreements and other contracts. It allows CSX to see any documents relating to expenses Harron or the firm created or retained in connection with Harron's review of X-rays. And, subject to a confidentiality order, it allows CSX to see the firm's internal correspondence concerning selection and retention of consulting physicians.

    More on Harron

    Harron reportedly has been paid millions by lawyers to diagnose potential asbestos victims. He sometimes did it at the rate of one patient per minute, reports say. The New York Times has reported that Harron made 75,000 diagnoses since the mid-1990s, commonly reading as many as 150 x-rays per day, at a rate of $125 each.

    "In the eyes of defense lawyers fighting some of those claims, Dr. Harron was not a professional rendering an independent opinion, but a vital cog in a multibillion-dollar lawsuit machine," The New York Times said of Harron. "They contend that Dr. Harron's X-ray evaluations are unreliable at best, fraudulent at worst."

    The Times also said that in 2005, Federal Judge Janis Graham Jack found that Harron "failed to write, read, or personally sign" reports supporting 6,350 claims by people saying they had inhaled silica, another potentially dangerous material.

    Testifying before Jack in Texas, Harron admitted to making diagnoses from X-rays taken by a screening company using mobile machines in parking lots. There were no doctors supervising the X-rays. The owners of the screening company said they were working for lawyers.

    Harron said he did not physically examine the patients. He also testified that secretaries interpreted his X-ray readings into diagnoses letters that were rubber-stamped with his signature and mailed without his final read.

    He also testified to making silicosis diagnoses in the same patients he had once diagnosed with asbestosis.

    Jack wrote that the diagnoses relied on X-rays and on medical histories taken by screening companies or law firms, not on physical examinations, as the reports under his name claimed.

    "When Dr. Harron first examined 1,807 plaintiffs' X-rays for asbestos litigation," Jack wrote, "he found them all to be consistent only with asbestosis and not with silicosis." But after re-examining X-rays of the same 1,807 people "for silica litigation, Dr. Harron found evidence of silicosis in every case," she wrote.

    Now retired, Harron is a B-reader, which is a doctor certified by the national Institute for Occupational Safety and Health to detect abnormalities such as black lung disease, asbestosis and silicosis in chest X-rays.

    A fake doctor

    In a high-profile case involving CSX, the Peirce firm and Harron, the railroad giant unearthed another scandal when plaintiff Rodney Chambers of Huntington fabricated a doctor who he claimed had treated him for asbestosis.

    Chambers filed his asbestosis complaint against CSX in Marshall (West Virginia) Circuit Court on April 9, 2002. The Peirce firm filed a motion to refer Chambers and several hundred other consolidated cases to mediation. That process was similar to other trial plans that CSX says forced it to rely upon limited information provided by the Peirce Firm, including x-rays taken at its occupational asbestosis screenings, for settlement negotiations.

    CSX said Chambers provided the name of a Dr. Oscar Frye in Huntington as the physician who treated him for his asbestosis. But through its investigation, CSX "determined that there has never been a physician, chiropractor, podiatrist, physician's assistant or osteopath licensed to practice in the State of West Virginia by any licensing board or agency with the name 'Oscar Frye.'"

    Upon further investigation, the phone number Chambers listed for Dr. Frye has belonged to a Huntington woman for 12 years, and the address he listed for Frye's office does not exist in Huntington and hasn't since at least 1954.

    "Without faking this type of medical evidence, plaintiff Chambers would not have been able to allege a proper cause of action against CSXT," CSX claimed.

    CSX also says the Peirce firm that specializes in asbestosis claims provided its plaintiffs with a "pre-printed form and diagnosis regarding their potential claim and its alleged cause."

    CSX sued the Peirce firm in 2005, alleging a conspiracy to fabricate suits. CSX later added Harron to the suit.

    COMMENT: This, if all true, is going to be quite the free for all starting on August 11th. This Judge has showed a "no nonsense" approach all through this case. If CSX, in its case-in-chief, makes this case, I would not want to be the defense lawyer. In most states, a judge is not permitted to "comment" on the evidence, but, this NOT the case in federal court. Often times, a federal judge stops the questioning and actually questions the witness. My sense is that this judge, at least from what I can tell from his discovery rulings, senses that there may be some veracity to CSX's claims. It will not be pretty if CSX connects the dots.

    Steve Gordon
    FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident

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  • FELA FELLA
    replied
    CSX wants judge to strike doctors' testimony

    7/10/2009 8:00 AM
    By Steve Korris -Ohio Bureau

    Harron
    WHEELING - CSX Transportation has asked U.S. District Judge Frederick Stamp to strike testimony of three doctors in the railroad's fraud trial against Pittsburgh asbestos lawyers Robert Peirce and Charles Raimond.

    CSX lawyer David Bolen of Huntington wrote on July 6 that Peirce and Raimond improperly changed their reasons for calling the doctors.

    Bolen wrote that in a motion for summary judgment they stated that the doctors would testify that former CSX worker Earl Baylor suffered from asbestosis.

    In a more recent brief, Bolen wrote, they stated that they would not offer the opinions of the doctors for the truth of the matter.

    "This bait and switch cannot be countenanced," Bolen wrote.

    He described the opinions of doctors James Ballard, Roy Johnson and Henry Smith as irrelevant hearsay.

    He urged Stamp to classify them as experts rather than treating physicians, subjecting them to greater disclosure with fewer privileges.

    Neither Ballard nor Johnson examined Baylor or his X-ray, he wrote.

    Smith disavowed any relationship with Baylor and stated at a deposition that he didn't have the slightest idea whether lawyers relayed his results to Baylor, Bolen wrote.

    According to Bolen, Smith said, "It's not that clinically significant because it's only an X-ray finding."

    CSX claims Peirce and Raimond fraudulently filed Baylor's suit in 2003.

    Peirce and Raimond claim they filed it because they believed in good faith that Baylor suffered from an asbestos related disease.

    Stamp has set trial to start Aug. 11.

    As of July 9, CSX had not finished deposing another defendant, radiologist Ray Harron of Bridgeport.

    Harron refused to answer questions at a deposition earlier this year, but in May Magistrate Judge James Seibert ordered him to answer.

    Harron appealed to Stamp, who affirmed Seibert on July 7.

    On July 9 Stamp ruled that CSX could finish deposing Peirce's personal physician, Richard Cassoff, about a mass screening session he ran for Peirce in South Carolina.

    Stamp affirmed Seibert, who ruled in May that Peirce lacked standing to quash a subpoena on Cassoff.

    Steve Gordon
    Railroad Worker Unions | Non-Union-Designated Injury Lawyer | FELA Attorney Illinois Houston California

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  • jonnyseeandoh
    replied
    ....and it really has nothing has to do with free pizza, honest! And we surely don't make visitors stand out in the cold! Or hot for that matter.

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  • ghostrider
    replied
    Well I for one have told my wife to shop around, DLC's are lawyers, non designated are lawyers...When you need a lawyer you better check for the best. I know I have a law firm working for us in a lawsuit and they are the best we could afford, will it pay off no one knows how the judge will rule. But I for one will not limit my options to one that was chosen for me, when they will not allow others to be DLC's because of the good ol boy syndrome. We need more firms and we need better assistance at a fair price. I say shop for the best firm.

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  • FELA FELLA
    replied
    As some say Nowadays: " I feel ya"

    Dear jonnyseeandoh!-

    Thank you for recognizing the hard work I am putting in here. I am doing it day in and day out and I plan on continuing to do so. Yes...it would be nice to be able to walk into a Union hall and speak with you. I literally had to stand out in the freezing cold outside a Union Hall in New Mexico because I was not DLC to speak on FELA topics. Our firm has gone hundreds of miles to just feed gangs all over the U.S. because there we can explain who we are and what we can do. It is hard to get the name out but we have been doing it for years that way and everyone we have represented has a smile on their face at the end [so far!].

    Jonny- Its not just Gordon & Elias...there are others too that are not "anointed' with a DLC from the one's at the top. To me, if a Union President or Vice-President was really thinking correctly, they would have (1) a written test on FELA administered to every lawyer in the firm; (2) they would invite ALL wanna be DLC to be "annointed" once they passed the test; and (3) they would require that a portion of the fee be given to a charitable organization such as the YFBF. The more the merrier I say. The injured railroader should be able to choose from as many qualified firms as possible.

    But, as my Grandad always said, "Wish in one hand and [poop] in the other and see which one fills up first!"

    Have a good and safe week.

    Steve Gordon
    FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident

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  • jonnyseeandoh
    replied
    I suppose it boils down to the fact that I am quite biased, and have two firms in mind that I do trust, for I know their work, and I know their people. I was hoping that firms got DLC status at least in part for their excellence in parsing FELA. ( And all too aware there's more to it than that.) And I wish any firm not DLC that nevertheless can do the work, would make themselves known to us anyway. Some states don't permit attorneys to claim a specialty, yet one's professional history is one's resume to be sure. And where I come from; talking to us right here, as you do, and our local jurists visiting regularly helps us learn who's who, and engenders the trust which really is so necessary. I should be scared to death to find myself in a state of immediate need, and not know who I might call.

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  • FELA FELLA
    replied
    Generalities Are No Good When It Cmes to Professional Choices

    Originally posted by jonnyseeandoh! View Post
    I'll take yer word on Messrs Pierce and his ilk. And I do remember what happened with the other union and some of their DLC's and officers. I surely didn't mean to imply that DLC's are without graft. Yet how do I take an outsider's word for their skill in this area? DLC's near to my terminal come to visit my union division often and talk with us on all manner of things. With that we are confident that we know where to turn. They are honest about the realities we face, what our responsibilities are, and what they realistically can do for us. When time is of the essence I am quite sure a railroad man is safest to look inside first.
    Dear jonnyseeandoh!-

    I am so glad you replied back because I kept looking at my answer and re-reading it and re-reading it. I was doing so because it is your absolute right to believe that a DLC law firm is your best bet to choose as your horse. And, if you truly believe that they are, I certainly DO NOT want to try to persuade you otherwise. Because, in the final analysis, YOU have to trust your lawyer because he/she may be working on a case that will affect you and your family's life forever.

    Having said that, I know that there are good lawyers and there are bad lawyers and then you got the ones in between. Some DLC are good or great lawyers and some are very bad lawyers and then....you've got the one's in between. I will tell you, without any equivocation, that there are lawyers who are not DLC that, on any given day, could spin circles in the courtroom around MOST DLC.

    FELA is not rocket science. In fact, other than the quirks or nuances related to the crafts, equipment and lingo, it is legally a hell of alot simpler than an esoteric products liability claim, medical malpractice claim, legal malpractice claim and, even in some quircky factual situations, a car accident claim. What is most important is the lawyer...not the law firm. Is the lawyer going to push your case like it was his/her only case? Is the lawyer going to stay up at night strategizing how he is going to gut the deponent the next day? Does the lawyer spend WHATEVER is necessary to hire the best experts necessary? Is the paralegal assigned to your case going to pick-up the phone when you call with what some might think is a silly question? Is the law firm going to, if necessary and if ethically permitted to do so, advance you money to pay for your family's needs while the case is pending so you don't lose your house? Is the lawyer going to personally meet with your treating doctor way way before his/her deposition takes place to make sure that he/she will "stand-up" and say the things necessary to get you the testimony you need to maximize your future earnings claim? (and, if that doctor is not going to step-up for his client, then ever so gently get the client to a competent doctor who will so "stand-up"). Is the lawyer that you actually hire going to be the one that actually does the work on the case or, is it going to be handled by a 5 year associate (or even less)?, etc.........

    As you can see, the question of who you choose is huge and if you think being DLC gets you there for you, I urge you to keep that thought process.

    I hope you never need a FELA lawyer...but if you do, I hope you choose one that you would want in a foxhole with you!

    Steve

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  • jonnyseeandoh
    replied
    Originally posted by FELA FELLA View Post
    Dear jonnyseeandoh!

    I think that there is more to becoming DLC than meets the eye. It is true that DLC know FELA law because the bulk of their business is FELA. But it is truly the misinformed that believe that FELA DLC are the only great FELA lawyers available. Additionally, though I am sure that there is no graft nor corruption in Railroad unions of today, it was just a few years ago that people were actually conivicted in the FELA DLC/Union arena.

    Steve Gordon
    http:FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident

    ps-. It was either mr. Pierce himself and/or some of his partners that were DLC in the past......I think if my research is correct. You may want to check on that.
    I'll take yer word on Messrs Pierce and his ilk. And I do remember what happened with the other union and some of their DLC's and officers. I surely didn't mean to imply that DLC's are without graft. Yet how do I take an outsider's word for their skill in this area? DLC's near to my terminal come to visit my union division often and talk with us on all manner of things. With that we are confident that we know where to turn. They are honest about the realities we face, what our responsibilities are, and what they realistically can do for us. When time is of the essence I am quite sure a railroad man is safest to look inside first.

    Leave a comment:


  • FELA FELLA
    replied
    Chicanery Abounds

    Dear jonnyseeandoh!

    I think that there is more to becoming DLC than meets the eye. It is true that DLC know FELA law because the bulk of their business is FELA. But it is truly the misinformed that believe that FELA DLC are the only great FELA lawyers available. Additionally, though I am sure that there is no graft nor corruption in Railroad unions of today, it was just a few years ago that people were actually conivicted in the FELA DLC/Union arena.

    Steve Gordon
    http:FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident

    ps-. It was either mr. Pierce himself and/or some of his partners that were DLC in the past......I think if my research is correct. You may want to check on that.

    Leave a comment:

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