Court says no to lame claim

By The West Virginia Record | Feb 4, 2011

"The dog ate my homework." "I got stuck in traffic." "Looks like we've run out of gas."

Teachers, bosses and pretty girls all hear their share of excuses. But nobody hears as many as a judge, and some are real whoppers.

Like the young man on trial for murdering his parents who begs the judge to show mercy to an orphan. Or the drunk accused of falling asleep with a lit cigarette and burning down an apartment building who insists the bed was already on fire when he lay down in it.

And how about the plaintiffs' attorney accused of fraud who invokes the statute of limitations, arguing that the defendants took too long to figure out that evidence may have been fabricated?

That last stretcher is, in simple terms, the real-life, honest-to-goodness excuse of Pittsburgh asbestos attorney Robert Peirce.

Last June, Circuit Court Judge Arthur Recht dismissed, with prejudice, more than 1,400 asbestos claims filed in Kanawha Circuit Court by Peirce's firm. Unwilling or unable to comply with Recht's demand for certification of client awareness and claim substantiation, Peirce's firm moved to dismiss all but 64 claims.

Then, at the very end of 2010, the U.S. Fourth Circuit Court of Appeals in Richmond, Va., reinstated a fraud case filed against his firm by CSX Transportation. That suit, dismissed by a lower court misapplying the statute of limitations, alleges Peirce's firm conspired with radiologist Ray Harron to fabricate asbestos claims.

Peirce's request for a rehearing was denied last week. The Court agreed with CSX that the time allotted for recourse in the statute of limitations began to expire only after the company discovered the fraud. Peirce had argued that the clock should have started the moment the fraud was perpetrated, which carried to its conclusion would mean the court should reward a hustler cunning enough to avoid detection for a long enough time.

The judges didn't buy it, but Peirce's excuse will inspire chuckles for years to come.

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