WEST VIRGINIA RECORD

CHARLESTON – A Pittsburgh-based law firm at the heart of the CSX asbestos fraud case says turning over certain information could lead to more legal woes.

That's why Peirce, Raimond & Coulter has asked the U.S. Federal Court for a protective order. By disclosing some information requested by CSX Transportation in a federal lawsuit in the Northern District of West Virginia federal lawsuit, the Peirce Firm says doing so could force the firm to break rules of conduct and the Health Information Portability and Accountability Act.

"Plaintiff (CSX) also seeks information that is protected by the attorney-client privilege and, therefore, exempt from disclosure," the Sept. 5 motion says. "Furthermore, certain information, if published or disseminated, could cause undue embarrassment to the Peirce Law Firm and could be detrimental to its business interests.

"Issuance of a protective order is needful and necessary to insulate the Peirce Law Firm from potential discipline or sanctions, and civil and/or criminal liability arising out of disclosure of such information."

CSX Transportation had asked for information in May, but the Peirce Law Firm still hasn't produced the requested documents in the federal case. CSX is suing the Peirce Firm and former CSX worker Robert Gilkison for alleged fraud in an asbestos case.

CSX, one of the nation's largest rail companies and a frequent target of asbestos claims, says Gilkison, who was hired by the Peirce firm as a "runner" to round up former colleagues for lawsuits, suggested that CSX employee Ricky May get someone who previously tested positive to pretend to be him at a 2000 asbestos screening.

CSX claims May had 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 Peirce Law Firm, which specializes in asbestosis claims, has acknowledged that scam, but says it wasn't behind it. 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.

In a related Marshall County case, Circuit Judge Arthur Recht is allowing CSX to dig deeper into suspected fraud in an asbestosis claim instead of simply dismissing the lawsuit for lack of merit.

On Aug. 29, Recht told CSX attorneys he would let the company investigate whether Rodney Chambers and his Peirce Firm attorneys committed fraud by submitting an X-ray certified by an apparently fictitious doctor.

Chambers was one of 44 CSX workers who filed suit in 2002 claiming they were exposed to asbestos on the job. Chambers' X-ray was certified by a Huntington physician named Oscar Frye.

In court documents, however, CSX says it "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.'"

Also, CSX attorneys learned the phone number Chambers listed for Frye's office 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 claims in court papers.

CSX also says the Peirce Law Firm has provided its plaintiffs with a "pre-printed form and diagnosis regarding their potential claim and its alleged cause."

"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."

In court documents, CSX also 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.