WHEELING – Radiologist Ray Harron of Bridgeport has asked U.S. District Judge Frederick Stamp to dismiss a claim that he conspired to fabricate asbestos lawsuits against CSX Transportation in West Virginia state courts.
Harron's lawyer, Jerald Jones of Clarksburg, argued in a Jan. 12 motion that CSX can't pursue a federal suit because the amount in controversy is less than $75,000.
Jones wrote that CSX connected Harron to a single lawsuit in the alleged conspiracy. He added that CSX has not made any payment to that plaintiff, Earl Baylor.
"CSX does not request a specific amount of damages from Dr. Harron," Jones wrote.
CSX seeks the amount it spent to defend and settle fabricated claims, he wrote, and it seeks punitive damages.
"These claims cannot as a matter of law satisfy the amount in controversy requirement and thus subject matter is lacking," he wrote.
According to CSX's complaint, he wrote, CSX generally settled asbestosis claims for less than $15,000.
He wrote that "it is very unlikely it would now spend over $75,000 to defend a single claim brought by Mr. Baylor."
CSX had access to Baylor's medical records and could have easily defeated his claim and cut costs by proving he did not have asbestosis, Jones wrote.
"It certainly should not have exhaustively and expensively litigated or investigated the validity of Mr. Baylor's claim in both the state court litigation and in this action," he wrote.
"A high amount of legal fees charged to defend or investigate a case CSX already knew to be fraudulent is questionable in light of its duty to mitigate damages," he wrote.
Harron provided X-ray reports for the Pittsburgh firm of Peirce, Raimond and Coulter.
CSX sued the Peirce firm in 2005, alleging a conspiracy to fabricate suits. CSX later added Harron to the suit.
Last April, Stamp dismissed some claims because statutes of limitations had run.
He granted a motion to dismiss a claim against Harron under federal racketeering law, but he denied a motion to dismiss a West Virginia civil conspiracy claim.
Stamp also denied a motion to dismiss a claim against Harron for punitive damages.
He found enough evidence to plead an underlying fraud and sham.
"CSX alleges that the personal injury claim filed on behalf of Earl Baylor was objectively baseless and that the defendants knew that no good faith basis existed for the claim," he wrote.
Stamp has set trial to start on Aug. 11.