WHEELING – Pittsburgh asbestos lawyer Robert Peirce, facing civil fraud and racket claims from CSX Transportation, doesn't want the railroad contacting his former clients.
On April 6, his lawyer, Walter DeForest of Pittsburgh, asked U.S. Judge Frederick Stamp to prohibit further contacts and obtain a list of those CSX contacted.
"Allowing CSX to have uncounseled contact with Peirce Firm clients would totally undermine the firm's ongoing duties and obligations to its clients," DeForest wrote.
DeForest also represents Louis Raimond and Mark Coulter, both of Peirce's firm.
Stamp closed the case in 2009, but reopened it this year at the direction of Fourth Circuit appeals judges in Richmond, Va.
He stayed discovery in March, after Peirce expressed his intention to seek Supreme Court review of the Fourth Circuit decision.
CSX sued the lawyers and radiologist Ray Harron of Bridgeport in 2005, claiming they fabricated asbestos suits. CSX specified nine allegedly phony suits, and later sought to amend its complaint and add 11 more.
Stamp set trial, but called it off three weeks before it would have started. He found that a statute of limitations had run on eight of nine claims in the complaint and in all 11 that CSX wanted to add to the complaint.
He granted summary judgment on the only remaining case, involving Earl Baylor of Tennessee, finding no evidence that his lawyers knew he didn't have asbestosis.
If fraud occurred, Stamp ruled, it didn't harm CSX.
"CSX cannot produce evidence sufficient for a reasonable jury to find that CSX relied upon the defendants' alleged fraudulent act," he wrote.
CSX appealed, and Fourth Circuit judges in Richmond held last December that Stamp improperly started the statute of limitations at the filing of each suit.
They wrote that it wasn't clear when the alleged fraud commenced.
"It does not follow from the facts pled on the face of the complaint that CSX knew or should have known that the underlying asbestos lawsuits were fraudulently filed when they were filed," they wrote.
They reopened the Baylor claim, finding a dispute as to whether lawyers committed fraud in representing that he met the necessary element of occupational exposure.
They told Stamp to grant leave to amend the complaint.
Peirce asked for a hearing before all judges of the circuit, but he didn't get it.
After the case returned to Stamp, CSX claim handler Greg Howard contacted Donald Wiley, who filed one of the suits CSX planned to add to the complaint.
Wiley told Howard that Peirce still represented him, and the conversation ended.
Wiley reported the contact to Peirce, who asked Stamp to prohibit further contacts.
For CSX, Marc Williams of Huntington wrote that Wiley's claim and about 1,400 other Peirce claims were dismissed with prejudice last June.
"CSX had received no indication that the Peirce firm continued to represent Mr. Wiley -– or any other claimant subject to the June 11 mass dismissal -– in any capacity," he wrote.
He wrote that counsel told him the firm continues to represent certain claimants in asbestos claims against other entities.
"CSX has serious reservations as to whether Mr. Peirce or his law firm may properly represent the individuals at issue in the amended complaints in this matter, as is currently the case according to Mr. Peirce," he wrote.
At a conference on March 7, CSX lawyer Samuel Tarry of Richmond told Stamp he asked for a list of individuals with an attorney client relationship.
DeForest said there were probably thousands.
Peirce said, "Three thousand."
DeForest said, "That is a guess."
Williams said, "We have not and will not contact anybody who we have reason to believe is currently represented by counsel, the Peirce firm or otherwise."
He said, "As to prior clients of the Peirce firm, there are, from what Mr. DeForest has said, some that they represented in the past that they currently don't represent."
He said DeForest asked him to tell him who he wanted to talk to, and said he would tell him whether they have an attorney client relationship.
"That seems to me to be fundamentally unfair," he said.
DeForest said, "If I had filed a claim for someone and there later became an issue regarding that claim, even though that claim has been dismissed or settled, I still have an obligation to that client regarding that claim."
He said, "I as a lawyer would have a continuing obligation to prevent somebody for whom I filed a claim from just being thrown open to interrogation by the adverse party."
Stamp said, "You may or may not be right."
He asked for briefs and told CSX not to contact anyone until he reaches a decision.
On April 6, DeForest wrote, "To leave the clients in an uncounseled situation in which admissions related to the clients' past, present or future claims could be made would, we submit, be a dereliction of the Peirce Firm's duties and obligations to those clients."
He wrote that CSX must contact clients through the firm, rather than directly.
He wrote that "improper contacts in this case were initiated as part of an investigation with the intention of using the resulting information in litigation in a way which might be detrimental to the improperly contacted person."
He wrote, "Mr. Peirce's interests, and the interests of the other members of the Peirce firm, are not adverse to the interests of their clients."
He wrote that it was in the interest of Peirce and his clients "to defend the proposition that the plaintiffs in earlier claims against CSX had suffered legally cognizable asbestos injuries due to their employment with CSX."
Robert Lockhart of Charleston also represents Peirce, Raimond and Coulter.