CHARLESTON – CSX has moved to have a plaintiff dismissed from his asbestosis case against the railroad giant because of fraud it uncovered during discovery.
In short, CSX Transportation Inc. says Rodney Chambers of Huntington fabricated a doctor who he claimed had treated him for asbestosis.
"Without faking this type of medical evidence, plaintiff Chambers would not have been able to allege a proper cause of action against CSXT," CSX claims.
CSX also says a Pittsburgh-based law firm that specializes in asbestosis claims has provided its plaintiffs with a "pre-printed form and diagnosis regarding their potential claim and its alleged cause."
CSX filed the motion to dismiss Chambers on July 10.
Because of what it says is a likelihood that others cooperated with Chambers' fraud, CSX asks to conduct depositions and other discovery to learn if others were involved. It also asks for full discovery for each of the other plaintiffs' claims and limited discovery involving Robert Peirce & Associates, the Pittsburgh-based firm that was representing Chambers and others in the mass case.
In a motion to dismiss dated July 14, attorney Robert F. Daley of the Peirce Firm's Pittsburgh office says Chambers asks for the voluntary dismissal of his claim.
After the Peirce Firm received CSX's motion to dismiss, Daley writes that the firm informed Chambers about the allegations.
"After consultation, plaintiff's counsel informed Mr. Chambers that because of irreconcilable differences it could no longer represent Mr. Chambers in the prosecution of his claims against the defendant," that motion states.
Motion granted, others reset
On Wednesday, Marshall Circuit Judge Arthur Recht granted the motion to withdraw that Peirce filed and reset CSX's motion to dismiss Chambers' claim and motions for additional discovery for Aug. 29.
Chambers, who turned 56 earlier this month, filed his asbestosis complaint against CSX in Marshall 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.
In its motion to dismiss, CSX says 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,'" CSX writes.
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.
A 'concocted,' 'fictitious' doctor
"That it is clear, based on this investigation, that 'Dr. Frye' does not exist and that the plaintiff Chambers has simply concocted a physician to provide the needed medical evidence and support for his asbestosis claims against CSXT," the motion states. "That without faking this type of medical evidence, plaintiff Chambers would not have been able to allege a proper cause of action against CSXT for occupationally caused asbestosis."
In supporting documents, CSX calls Frye "a fictitious, make believe doctor who does not exist" and that Chambers' medical report is "a complete and utter fabrication."
CSX's motion goes on to say this is another example of the type of fraudulent claims that have arisen out of asbestosis screenings operated and supervised by the Peirce Firm, noting another case it filed U.S. District Court in Wheeling against the firm, one of its employees and others.
That suit paints the picture of an elaborate scheme to concoct bogus X-rays that show asbestos in the lungs of a CSX employee. In court papers, the Peirce Firm acknowledged the scheme but denied knowledge of it.
"CSXT has repeatedly, in this civil action and other mass filings, objected to this type of mass approach to litigation pointing to the very examples of fraud and deceit arising from mass screenings, mass diagnosis and mass filings that have recently come to light and that inevitably result from such suspect practices," CSX's motion in the Chambers case states. "The Peirce Firm, without regard to the possible implications of simply sending a form diagnosis to its various plaintiffs, has either wittingly or unwittingly created a situation ripe for fraud."
A footnote spells it out in simpler terms.
"What is most disturbing about this form diagnosis is that it allows for the very occurrence of what plaintiff Chambers has done in this matter in an attempt to secure either a fraudulent settlement from CSXT or to present fraudulent medical evidence at trial," it states.
Later in its motion, CSX submits Chambers' questionnaire and those of other plaintiffs as exhibits.
"What is most interesting about this questionnaire is the portion dealing with the impressions and diagnosis of the plaintiff's physician," another footnote in the motion states. "When compared with other questionnaires submitted by the Peirce Firm, the 'Impression' portion of each questionnaire is exactly the same for each of the plaintiffs. It appears that this questionnaire, especially the portion entitled 'Impression,' is nothing more than a form provided by the Peirce Firm to its clients to have a physician fill in the plaintiff's name and rubber stamp a diagnosis."
In supporting documents, CSX, through attorney Marc Williams of the Huntington law firm of Huddleston Bolen, wonders if similar instances have happened and made it through the legal system.
"While CSXT believes it defied the odds by catching the plaintiff Chambers' fraud, other instances of fraud are likely to go unseen and, without normal litigation discovery, forever uncovered," a memorandum states.
CSX says it has a right to know how this form was developed and if the Peirce Firm "took any steps to ascertain if the information it was being provided was genuine."
It also says the court must make sure the claims are genuine and "not manufactured through a flawed occupational screening program or through fraud."
"CSXT will be severely prejudiced in this matter as it will be unable to determine if additional fraudulent conduct has occurred or possess the information necessary to authenticate the claims presented in these matters," the motion states.
Explaining the forms
In its motion, the Peirce Firm sheds some light on its use of the preprinted forms.
In most asbestos-related cases, now-bankrupt companies are sued by plaintiffs. The Peirce Firm says some bankruptcy claims processing facilities require a physician's diagnosis of asbestosis.
"One of the ways Movant (the party in a lawsuit or other legal proceeding who makes a motion, the Peirce Firm here) obtained diagnoses of asbestos for bankruptcy claimants was to send a copy of the preprinted form," its motion states. "Movant asked its clients to give the form to their family physicians for review, and if appropriate completion."
The Peirce Firm says these completed forms then were submitted as part of the claims process.
"Bankruptcy trusts have relied upon these forms in hundreds of cases and have never raised an issued with the forms because they were preprinted," the motion states.
The Peirce Firm says that process was followed in Chambers' case.
"At no time did any attorney employed by Movant or any employee of Movant have any knowledge that Dr. Frye might not be an actual physician," the motion states.
The Peirce Firm also says CSX's request for more discovery is not necessary.
"At this point, it is not necessary to depose each plaintiff, each treating physician and each of the physicians who signed diagnosis forms in order to determine whether each plaintiff has presented genuine and authentic material," Chambers' answer states.
Chambers began working for CSX in 1979 as a trainman and yard conductor. Court documents show that the Peirce Firm obtained chest x-rays from Chambers and his medical records from the Veterans Administration Medical Center in Huntington.
The x-rays then were forwarded to Dr. Ray Harron, a Bridgeport radiologist singled out in a landmark Texas federal court opinion last year for having "manufactured" silicosis diagnoses.
Harron determined Chambers' chest x-ray did show changes consistent with asbestosis, a diagnosis later supported by Dr. Robert Mazey, who like Harron, is a certified B-reader.
A state judicial watchdog group spoke out about the Chambers case.
"It looks like greedy personal injury lawyers have abused the system again," Steve Cohen, executive director of West Virginia Citizens Against Lawsuit Abuse, said. "The real tragedy here is that those who are truly injured victims who deserve to be compensated lose out while others game the system.
"Meanwhile, this will only further West Virginia's reputation as a Judicial Hellhole."