WHEELING – CSX Transportation has asked U.S. District Judge Frederick Stamp to strike testimony of three doctors in the railroad's fraud trial against Pittsburgh asbestos lawyers Robert Peirce and Charles Raimond.
CSX lawyer David Bolen of Huntington wrote on July 6 that Peirce and Raimond improperly changed their reasons for calling the doctors.
Bolen wrote that in a motion for summary judgment they stated that the doctors would testify that former CSX worker Earl Baylor suffered from asbestosis.
In a more recent brief, Bolen wrote, they stated that they would not offer the opinions of the doctors for the truth of the matter.
"This bait and switch cannot be countenanced," Bolen wrote.
He described the opinions of doctors James Ballard, Roy Johnson and Henry Smith as irrelevant hearsay.
He urged Stamp to classify them as experts rather than treating physicians, subjecting them to greater disclosure with fewer privileges.
Neither Ballard nor Johnson examined Baylor or his X-ray, he wrote.
Smith disavowed any relationship with Baylor and stated at a deposition that he didn't have the slightest idea whether lawyers relayed his results to Baylor, Bolen wrote.
According to Bolen, Smith said, "It's not that clinically significant because it's only an X-ray finding."
CSX claims Peirce and Raimond fraudulently filed Baylor's suit in 2003.
Peirce and Raimond claim they filed it because they believed in good faith that Baylor suffered from an asbestos related disease.
Stamp has set trial to start Aug. 11.
As of July 9, CSX had not finished deposing another defendant, radiologist Ray Harron of Bridgeport.
Harron refused to answer questions at a deposition earlier this year, but in May Magistrate Judge James Seibert ordered him to answer.
Harron appealed to Stamp, who affirmed Seibert on July 7.
On July 9 Stamp ruled that CSX could finish deposing Peirce's personal physician, Richard Cassoff, about a mass screening session he ran for Peirce in South Carolina.
Stamp affirmed Seibert, who ruled in May that Peirce lacked standing to quash a subpoena on Cassoff.