PHILADELPHIA – Radiologist Jay Segarra, fighting a contempt motion in national asbestos litigation, blames Hurricane Katrina for washing away his X-ray reports.
But Union Carbide lawyer Marcy Croft of Jackson, Miss., doesn't swallow the excuse.
"This 'The Hurricane Ate My Documents' claim is completely discredited by prior statements and testimony of Dr. Segarra," Croft wrote on March 20.
She asked U.S. Magistrate David Strawbridge to rule on her contempt motion before dismissing seven cases on a motion from Houston lawyer Gregory Jones.
Strawbridge assists District Judge Eduardo Robreno in managing asbestos claims from federal courts around the nation.
Croft seeks sanctions against Jones, Segarra, and Segarra's lawyer, Matthew Mestayer of Biloxi, Miss.
"It would be an injustice if Dr. Segarra's defiant disregard of court orders and this defendant's proper discovery requests for over four years went without any consequence," Croft wrote. "Plaintiffs' counsel unnecessarily delayed seeking a voluntary dismissal of these cases for years knowing full well that he would seek dismissal before ever allowing any production by Dr. Segarra.
"No doubt, much more to this story exists but the court and defendant will never hear it from plaintiffs' counsel or counsel for Dr. Segarra."
For Segarra, Mestayer answered on March 24 that Robreno can't punish him or his client because they weren't parties to the cases.
"Plaintiffs' decision to dismiss, and any underlying motive therefore, cannot be imputed to Dr. Segarra or Matthew Mestayer," Mestayer wrote. "Dr. Segarra is merely a witness, and Matthew Mestayer his personal attorney."
Though seven cases hardly matter on the vast asbestos docket, a decision on the dispute would matter to other lawyers who paid Segarra.
Robreno ruled last year that all Segarra's records related to the litigation before him, whether or not Segarra's patients were parties before him.
Two big plaintiff firms protested that if Segarra produced records of their clients, he would violate his consulting expert privilege.
Motley Rice of Mount Pleasant, S.C., and Provost Umphrey of Beaumont, Texas, filed an emergency motion that didn't identify the clients they represented.
Croft demanded names, arguing some might fall beyond the purview of the privilege.
She wrote that they might have filed Segarra based claims in other courts. She wrote that they might have submitted his diagnoses to bankruptcy trusts. She wrote that he might have found them once negative and later positive.
She wrote that X-rays might have been shuffled from doctor to doctor in order to find one that would declare it positive. She wrote that close to 10,000 individuals might assert the privilege.
Last July, Jones wrote to Croft that Katrina "resulted in significant damage to Dr. Segarra's home and office."
He wrote, "Dr. Segarra is lucky to have any records to produce."
In August, Croft moved for civil contempt.
"Notably, neither Segarra nor his counsel asserted, at the time of the service of the subpoena or in their initial objections, that any documents or materials subject to the subpoena had been destroyed by Hurricane Katrina," she wrote.
She claimed documents were destroyed by office personnel or corrupted electronically.
She wrote that at a deposition in June, Segarra said yes when asked if he complied with the subpoena or it was withdrawn.
She wrote that in 2006 he reported a loss of books and reference materials from the storm but reported no loss of documents in 26 other categories.
"Union Carbide does not seek to punish but rather to coerce Segarra's compliance with the subpoena and the subsequent court order," she wrote. "The proposed coercive sanction of incarceration has been approved by the Supreme Court."
Alternatively, she proposed a $5,000 daily fine.
In response, Jones magnified the storm story.
He wrote that Union Carbide served a subpoena "when the Mississippi Gulf Coast was still in shambles and its residents were in a collective state of shock."
"It was, to say the least, highly insensitive to demand that Dr. Segarra respond to a cumbersome and oppressive subpoena at a time when not only he but his attorneys were attempting to put their lives in order," Jones wrote. "Dr. Segarra and his family suffered greatly during Hurricane Katrina.
"Dr. Segarra and his wife (along with their two cats) spent approximately eight hours on their roof on August 29, 2005, to avoid the water that suddenly surged into their house. While they huddled on their roof, the storm raged around them.
"They witnessed the roof of a neighbor's home being torn from the house and watched as a tornado lifted another neighbor's bedroom straight into the air. When the storm finally ended, the devastation was beyond imagination.
"While the Mississippi Gulf Coast was still trying to restore electricity and rebuild roads (and fight with insurers who denied coverage), Union Carbide and its attorneys served its oppressive and overly broad subpoena on Dr. Segarra."
This February, Croft notified former employees of Segarra that she would depose them.
Jones moved to quash the depositions.
On March 4, Strawbridge set hearing on the motion to quash and on Croft's contempt motion for March 15, at 5 p.m.
Hours before the hearing, Jones moved to dismiss all claims against Union Carbide and five other defendants.
"Plaintiff no longer desires to prosecute this case and claims as to any party and each party shall bear its own court costs," he wrote.
The last part bothered Croft, who answered that Union Carbide should be made whole.
"Defendant seeks an award of fees and costs to fully compensate defendant for reasonable expenses incurred before dismissal and for the purpose of deterring the vexatious litigation which has been exemplified here," she wrote.
She wrote that Segarra caused various defendants to spend millions on litigation.
"While plaintiffs can seek to dismiss their cases with prejudice and this alone is often sufficient to protect a defendant's interest, it is not in these cases," she wrote.
The next day she aimed at a bigger target, sending Strawbridge a list of 282 Motley Rice plaintiffs and writing that Motley Rice will identify those who plan to dismiss claims.