CSX asbestos suit drawing national focus

CHARLESTON – A lawsuit involving CSX, alleged asbestos screening fraud and a well-known asbestos reader is drawing national attention.

CSX, one of the nation's largest rail companies and a frequent target of asbestos claims, recently filed a lawsuit in Wheeling federal court against a Pittsburgh law firm, one of its employees and others.

The suit, filed by CSX attorneys Mark Williams and David Bolen, both of Huddleston Bolen LLC in Huntington, paints the picture of an elaborate scheme to concoct bogus X-rays that show asbestos in the lungs of a CSX employee.

In 2000, CSX employee Ricky May learned that the Pittsburgh-based plaintiffs law firm Peirce, Raimond & Coulter, which is known for filing railway asbestos suits and has brought thousands against CSX, was to conduct an asbestos screening in Huntington on June 13, 2000. At a previous mass screening, May had tested negative for asbestosis.

The suit says former CSX employee Robert Gilkison, who the suit says was hired by the Peirce firm as a "runner" to round up former colleagues for lawsuits, suggested May get someone who previously tested positive to pretend to be him at the upcoming exam.

"Defendant Gilkison suggested to Mr. May that he should get someone who had previously tested positive for asbestosis to set for his exam and thus be eligible to file a claim against CSXT," the lawsuit reads.

May, the suit claims, then got Danny Jayne, a CSX worker who had been diagnosed with asbestosis in 1999, to impersonate him for the X-ray. The suit says Gilkison helped make this happen by letting May complete the paperwork and walking Jayne through the exam.

The X-rays were sent to Harron July 23, 2000. The Bridgeport doctor said the lung images showed signs of asbestosis.

Jayne had received a $7,000 settlement from CSX, while May got $8,000.

CSX then did some investigating and had a doctor verify that the May and Jayne X-rays were of the same man. CSX filed suit last year against both of them, and they confessed to taking part in the scheme. May agreed to pay back his settlement; Jayne agreed to offer testimony. Gilkison has denied any wrongdoing.

The Peirce law firm was known to frequently use Bridgeport radiologist Ray Harron, a physician singled out in a landmark Texas federal court opinion last year for having "manufactured" silicosis diagnoses. And Jayne's 1999 X-ray was examined by Harron, according to the suit.

The current suit filed by CSX focuses on how much the Peirce firm knew about the X-ray scheme. CSX claims that May was hesitant after the screening and talked to Gilkison about dismissing his case. It also claims Gilkison talked to the law firm about the deception but the lawsuit remained. CSX also says Peirce maintains records of its positive and negative screenings and knew May already was screened and that the X-ray was not of him.

In court filings, Peirce acknowledges the scam but says it wasn't behind it.

"The Peirce Law Firm had no knowledge whatever that May and Jayne had agreed to commit or had committed this deception," the firm's answer reads.

The firm also says it didn't know about Gilkison's part in the plan and that, because he was a contractor, it isn't responsible for Gilkison's actions.

"'Runner' has a highly pejorative connotation," the firm's answer says. "Gilkison was not a 'runner.' He was a person who 'was to facilitate the screening process.'"

Also, the firm says that it didn't keep records of its negative screenings until 2000.

The case has drawn the attention of the national media and of national and state groups interested in judicial reform.

"If the Milberg Weiss indictments are anything to go by, federal prosecutors are finally getting serious about tort lawyer corruption," a Wall Street Journal editorial of June 2 began. "So let's hope they've also noticed a federal lawsuit in West Virginia that describes some of the most sordid asbestos fraud to date."

The editorial goes on to mention how West Virginia long has been "a favorite dumping ground for asbestos suits because of its reputation for jackpot justice" and how the state's court system responded by consolidating suits into mass litigation and how that "became an invitation for tort lawyers to generate as many claims as possible."

"As more cases of silicosis and asbestosis fraud come to light, courts have slowly changed course and allowed defense teams more leeway to investigate individual claims," the editorial states. "This is a great first step toward getting the tens of thousands of bogus suits dismissed, while getting legitimate claims heard more quickly."

The Journal piece also points out that a New York federal grand jury and Congress both are looking at silicosis fraud. It also says many of the "corrupt practices rampant in silicosis suits got their start in asbestos."

"If the Justice Department really wants to clean up the trial bar, asbestos-lawsuit fraud is the mother lode," the Journal editorial concludes.

The American Tort Reform Association, which annually has ranked West Virginia among the worst "judicial hellholes" in the nation, also has taken notice.

ATRA spokesman Darren McKinney said such fraud is part of an ever-growing "cottage industry" in the world of asbestos and silica lawsuits

"That which is alleged to have occurred -- the fraudulent creation of medical records -- is, unfortunately, is commonplace in the asbestos litigation industry," said McKinney, who once was a reporter for WSAZ-TV in its Charleston bureau. "Ninety percent of asbestos claims in the last decade were made on behalf of people who show no symptoms. Yet, they get a chest x-ray someplace, ginned up at one of these mills like one in Texas where you have one doctor signing off on 982 cases in a single day."

"We'd like to think that is an extreme case, but it happens elsewhere. And if it's happening anywhere, it's bad for justice in America."

Steve Cohen, executive director of West Virginia Citizens Against Lawsuit Abuse, agrees and says the case highlights the state's abusive legal climate.

"Not only is the state home to some of the most sordid asbestos fraud to date … but it has also earned a reputation as a dumping ground for lawsuits that only serve the purpose of lining the pockets of some personal injury lawyers," he said.

He said it's just one part of the state's "broken" judicial system, mentioning Attorney General Darrell McGraw's hiring of "personal injury lawyer campaign contributors to file abusive lawsuits on behalf of the state to build up a personal slush fund of settlement money."

"It's examples like these that show West Virginia is ripe for reform," Cohen said. "To make the state open to jobs that will provide opportunities to West Virginia families, the state needs to tackle its out-of-control legal system and reform the ethics of its officials."

McKinney said he hopes the CSX case is a sign that West Virginia is beginning to understand what's at stake in asbestos litigation.

"We are hopeful this case, and others, will bring a stop to the massive fraud and nonsense that has gone on for over a few decades now" he said. "Many of us in the legal reform community -- those who believe that trial lawyers have gotten away with far too much for far too long -- are hopeful that this CSX case may be a tidal shift beginning. Maybe it's the beginning of a new reality in West Virginia.

"I am encouraged to see this case going forward and I hope that it will mean better times for West Virginians and their civil justice system."