CSX questions addition to asbestos form

By Steve Korris | May 12, 2009


WHEELING – Someone added six words to a questionnaire that former CSX Transportation employee Earl Baylor filled out for asbestos lawyers in Pittsburgh, and owners of the railroad want to know how it happened.

On May 8, CSX lawyer David Bolen of Huntington asked U.S. Magistrate Judge James Seibert of Wheeling for permission to dig deeper.

Bolen wrote that the line "appears to be in different handwriting than the remainder of the document." He attached a copy of the questionnaire that left no doubt.

On a section for "claimed exposure," Baylor wrote: "Asbestos hard to breath at time pulmonary hypertension restrictive lung disease sleep apnea hypexie."

A different hand wrote, "Asbestos rope, cement, asbestos valve packing."

Bolen wrote that the line may have been inserted without Baylor's permission.

CSX obtained the questionnaire through a lawsuit seeking to recover its costs in defending and settling asbestos claims.

CSX sued Peirce, Raimond & Coulter of Pittsburgh in 2005, claiming its lawyers conspired with West Virginia radiologist Ray Harron to fabricate evidence.

In the course of the suit CSX established that a client of the Peirce firm forged a signature of a fictitious doctor and that a client sat for another client's X-ray.

Next, CSX sought Baylor's questionnaire, a letter from firm leader Robert Peirce to Baylor, a sample questionnaire and other documents.

The firm yielded Baylor's questionnaire but refused to hand over the rest.

Now CSX offers Baylor's questionnaire as proof that it needs to see the rest.

"Defendants have repeatedly cited Baylor's work history as part of their purported good faith basis for filing suit," Bolen wrote.

"CSX must be permitted to discover and evaluate the extent to which the lawyer defendants may have attempted to influence or misrepresent Baylor's actual work history and claimed exposures to asbestos, or the lack thereof," he wrote.

The top of the questionnaire showed Baylor's name, his birth date in 1941, his South Carolina address and his married status, all in type.

Baylor wrote by hand the names of his wife and two daughters and their ages.

In type, the questionnaire showed employment as machine operator with Seaboard Coastline from 1973 to 1980 and CSX from 1980 to 2001.

In a little box it showed in type that he smoked two packs of cigarettes a day from 1961 to 1973.

In the same box he wrote that he smoked a pack a day for ten years.

Bolen submitted the questionnaire in response to Seibert's May 1 instruction for both sides to wrap up their arguments.

For Peirce, Walter DeForest of Pittsburgh continued arguing that the work product doctrine and attorney client privilege protected the documents.

He wrote on May 8 that no one waived the privilege of the letter to Baylor.

"There is no evidence here that failure to require production of the letter would constitute a fraud upon the parties and the court," he wrote.

Seibert must decide this and two other pending motions on evidence as he sets the stage for an Aug. 11 trial before District Judge Frederick Stamp.

In the second motion, CSX seeks further evidence from Harron. In the third, Peirce seeks to limit a deposition of physician Richard Cassoff.

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