WEST VIRGINIA RECORD

PHILADELPHIA -- A prominent national asbestos law Motley Rice law firm implores U.S. District Judge Eduardo Robreno not to turn asbestos litigation into an investigation of false X-ray reports.

In a March 19 brief, John Herrick of the Motley Rice law firm complained that businesses defending themselves against asbestos claims seek to turn Robreno's court into a grand jury.

"After all, defendants are defendants in these cases -- not plaintiffs," he wrote.

He wrote that their true aim is mass dismissal of cases.

He urged Robreno to distinguish "Fifth Amendment doctors" from other doctors who signed X-ray reports for asbestos plaintiffs.

Since 2005 many doctors have invoked their right against self incrimination in depositions and other sworn testimony about X-ray reports.

The doctors retreated behind the Fifth Amendment shield after U.S. District Judge Janis Jack of Texas exposed falsification of about 10,000 X-ray reports.

She turned the tide of asbestos litigation.

Companies that had settled asbestos claims by dozens or hundreds at a time without seeing any evidence suddenly started asking for evidence.

Now responsibility for X-ray integrity rests on Robreno, who presides over about 90,000 cases by assignment of the U.S. Judicial Panel on Multi District Litigation.

In February, Robreno ordered radiologist Jay Segarra and two other doctors to produce all reports pertaining to cases in his court.

His decision didn't satisfy either side.

Defendants moved for reconsideration, arguing that in order to examine patterns and practices they need reports on individuals who don't have claims before Robreno.

Plaintiffs moved for reconsideration, arguing that Robreno should protect the doctors from production by granting them privilege as consulting experts.

Herrick wrote in his brief that, "The issue in any individual plaintiff's case in the MDL is whether that individual has been harmed by asbestos -- not whether defendants may successfully prosecute fraud claims."

He wrote, "Counsel for certain defendants has yet to be appointed special prosecutor to investigate and charge these physicians with criminal wrongdoing."

He wrote that defendants lost sight of how the expert witness process functions.

He wrote that they lost sight of the overall goal of the litigation.

"The reason for this for this may be that NSI Inc., a member of the cartel that is certain defendants, filed suit against Dr. Segarra, among many other physicians and entities, in the United States district court for the Southern District of Mississippi," he wrote.

He wrote that NSI alleged violations of racketeering law.

He wrote that NSI filed a separate suit in Mississippi state court.

He attached both complaints to his brief.

"The statistics that certain defendants clamor about, specifically the positive diagnosis rate, are really probative of credibility - not reliability," he wrote. "The credibility of a witness is for the jury to determine."

By that logic, Robreno lacks any authority to consider the reports, for his jurisdiction extends only to pretrial proceedings.

For trial, a case returns to the court where it began.

Marcy Croft of Jackson, Miss., who filed both civil suits in Mississippi, answered Herrick's brief on March 20.

She wrote that Robreno denied the consulting expert privilege to the doctors.

She wrote that the doctors were essentially fact witnesses.

She wrote that she needed complete records to examine "a pattern and practice of flawed methodology and/or potential fraud."

Without the records, she wrote, defendants would face fraudulent and baseless claims.

Court resources would be usurped by claims that should be dismissed, she wrote.

"Dr. Segarra has issued at least 38,447 positive asbestos related diagnoses, for which he has admittedly charged over $10 million," she wrote.

What defendants have already learned contradicts his testimony, she wrote.

"It is clear that over the span of his screening career, Dr. Segarra has abandoned medical methodology for expediency, legitimacy for lawlessness, and sincerity for prosperity," she wrote.

Herrick responded on March 23 that lawyers retained the doctors to examine plaintiffs or their records.

"This is the classic role of a consulting expert and this exercise does not transform the physician into a fact witness," he wrote.

"There is a distinction between performing a hands on physical exam with the taking of a complete history and the diagnosis associated with reading a chest X-ray," he wrote.