CSX seeks fees, punitives in Harron case
Steve Korris Feb. 5, 2009, 1:45am
WHEELING –- CSX Transportation expects a big punitive damages award on its claim that Bridgeport radiologist Ray Harron falsified X-ray readings to help asbestos lawyers file bogus suits.
"The actions of Dr. Harron were intentional, premeditated and criminal," CSX attorney Marc Williams wrote in a Jan. 29 brief for U.S. District Judge Frederick Stamp.
CSX claims Harron conspired with asbestos lawyers Robert Gilkison, Robert Peirce, Louis Raimond and Mark Coulter to file suits with false X-ray readings.
Harron moved to dismiss on Jan. 12, claiming CSX couldn't tie enough legal fees to his activity to meet a $75,000 minimum for federal jurisdiction.
He argued that his activity related to a single case, involving Earl Baylor, but Williams connected Baylor's case to others.
"Harron ignores the unique circumstances of Baylor's asbestosis claim that caused CSX to incur the fees it did," wrote Williams, who works for the Huntington law firm of Huddleston Bolen. "Specifically, the lawyer defendants filed Baylor's claim as part of a mass lawsuit involving approximately 250 other plaintiffs.
"Neither Baylor nor the overwhelming majority of the other plaintiffs were West Virginia residents, making venue improper."
Circuit Judge Arthur Recht dismissed the suits and the West Virginia Supreme Court of Appeals affirmed the decision.
The asbestos lawyers appealed to the U.S. Supreme Court, where a decision remains pending.
"Thus, it is defendant's conduct in bringing Baylor's case as a mass lawsuit and then continuing to appeal despite the groundlessness of their position that has caused CSX's legal fees in Baylor's underlying case," Williams wrote. "Harron further understood that the purpose of his diagnoses was to mislead CSX and cause it to settle objectively baseless claims.
"West Virginia law recognizes that defendants who commit a common fraud are jointly liable to the plaintiff for such conduct.
"Harron's actions are inherently fraudulent and part of the larger Baylor scheme to defraud CSX. In fact, without Harron's participation in the scheme there would have been no fraud."
CSX has spent about $76,000 on the Baylor claim and about $68,000 in pursuing the claim against the lawyers and Harron, Williams wrote.
"All of the claimed fees are reasonable as it has taken significant time and effort to uncover the fraud perpetrated by Dr. Harron," he wrote.
Then he changed the subject.
"In any event, punitive damages alone may exceed the jurisdictional amount," he wrote.
He wrote that courts must consider the degree of reprehensibility of a defendant's misconduct as a factor in setting limits on punitive damages.
For Harron, he wrote, "a large punitive damages award is appropriate."
He wrote that Harron intended to injure CSX financially for his monetary benefit.
"Harron's conduct showed willful disregard of the rights of those truly suffering from asbestos related injuries and seeking recovery because he lessened the resources potentially available to those persons by fraudulently allowing disease free individuals to pursue claims," Williams wrote. "Harron created and allowed the lawyer defendants to file documents with the state court that he knew were false."