WHEELING – Asbestos lawyer Robert Peirce of Pittsburgh hasn't turned over vital documents to CSX Transportation for the railroad's fraud and conspiracy trial against Peirce's firm and radiologist Ray Harron of Bridgeport, according to CSX lawyers.
On July 30, David Bolen of Huntington asked U.S. District Judge Frederick Stamp to clarify that an order he issued on June 5 requires production of the documents.
The documents include at least eight pages of internal memoranda relating to Harron, Bolen wrote.
"CSX believes these documents, as well as many others currently being withheld, could provide evidence in support of its fraud and conspiracy claims," he wrote.
Stamp plans to start trial Sept. 15.
He plans to start a smaller trial Aug. 11.
The Aug. 11 trial will explore the role of Peirce's firm and his employee Robert Gilkison in substituting a CSX worker for another worker's X-ray.
The first trial won't concern Harron, but the second trial will.
In 2005, U.S. District Judge Janis Jack of Corpus Christi, Texas, exposed fabrication of about ten thousand X-rays by Harron and other radiologists.
Since then Harron has invoked his Fifth Amendment right against self incrimination in civil suits and Congressional hearings.
Last December, CSX served Harron with a request to produce documents. Harron resisted, and in February CSX moved to compel production.
In March Peirce filed an emergency motion for a protective order to keep CSX from seeing its correspondence with Harron.
At a hearing, Magistrate Judge James Seibert narrowed the dispute to production of the requests Peirce's firm sent to Harron for chart reviews.
In May Seibert denied the protective order, ruling that Peirce and his firm lacked standing to file the motion.
"The Peirce firm has totally and completely waived any attorney-client privilege or work product doctrine protection with respect to the documents in Dr. Harron's possession because it filed no responsive pleading and asserted no claim of attorney-client privilege or work product doctrine," Seibert wrote.
Peirce asked Stamp to overturn the order, but in June Stamp adopted it in its entirety.
Stamp held that Seibert "was not clearly erroneous in finding that the Peirce firm defendants failed to take reasonable steps to protect the alleged privileged documents in Dr. Harron's possession."
He wrote that Peirce moved for a protective order almost three months after discovery was requested and two months after Harron responded.
Still Peirce resisted, prompting Bolen to move for clarification.
For Peirce, Walter DeForest of Pittsburgh responded on July 31 that the railroad misconstrued the record and Stamp's order.
According to DeForest, Seibert split the request for documents into two categories and ruled on only one category.
"The Peirce firm has asserted privilege and other objections to production of these documents and those objections have yet to be ruled upon by Judge Seibert or this court," he wrote to Stamp.