WHEELING – Like boxers throwing punches before the referee reaches the ring, CSX Transportation and asbestos lawyers from Pittsburgh sue each other without permission from their judge.
CSX posted an amended complaint against Robert Peirce, Louis Raimond and Mark Coulter on July 14, and the attorneys posted answers and a counterclaim against CSX on July 28.
Though both sides asked U.S. District Judge Frederick Stamp for leave to file the documents, Stamp hadn't granted it as of Aug. 4.
Stamp presides over CSX's claims that Peirce, Raimond, Coulter and radiologist Ray Harron of Bridgeport ran a racket that fabricated thousands of asbestos suits.
Stamp granted summary judgment in favor of Peirce, Raimond, Coulter and Harron in 2009, but Fourth Circuit appellate judges in Richmond reversed him last December.
They ruled that he improperly denied CSX leave to amend its complaint.
After a conference this March, Stamp wrote that CSX's new complaint "would offer a concise summary of the remaining claims, but would not add new claims."
He wrote that CSX would provide a copy to defendants.
"If the parties agree to the changes made in the third amended complaint, they shall submit it to the court by stipulation or an agreed order," he wrote.
Months passed without agreement, so CSX acted on its own.
Its new complaint repeated earlier charges that defendants orchestrated mass X-ray screenings to maximize the likelihood of positive readings.
"The lawyer defendants knew and expected that over time the fraudulent doctors they utilized would eventually assign positive scores to virtually all screening attendees regardless of whether those individuals actually exhibited signs of asbestos related disease," Marc Williams and Robert Massie of Huntington wrote.
"The lawyer defendants deliberately filed these claims in mass lawsuits in an overburdened court system in an effort to conceal fraudulent claims and to leverage higher settlements based on the threat of mass trials."
They wrote that defendants used Harron "because of his willingness to intentionally misrepresent or recklessly disregard the contents of the X-rays he reviewed."
They wrote that in 2005, U.S. District Judge Janis Jack of Texas described Harron's method as "distressing and disgraceful."
They wrote that in almost 2,000 cases, Harron first diagnosed asbestosis and later diagnosed silicosis.
They wrote that seven states disciplined Harron, and that he invoked Fifth Amendment privilege against self incrimination in several forums.
They wrote that Peirce's firm hired former CSX workers to recruit litigants and concealed their compensation so they remained eligible for retirement benefits.
They wrote that Robert Gilkison, an original defendant in the case, paid the United States $200,000 to settle civil claims that he wrongfully collected benefits.
They wrote that Peirce dismissed about 1,400 suits because he failed to provide Circuit Judge Arthur Recht with declarations that clients intended to pursue their claims.
Peirce, Raimond and Coulter answered that contrary to CSX's representations, the new complaint contained at least 17 paragraphs of new allegations.
Walter DeForest of Pittsburgh wrote that Stamp didn't admit allegations about the civil action against Gilkison while he was a defendant.
He wrote that sanctions against Harron involved silicosis rather than asbestosis.
He wrote that CSX speculated about reasons for dismissing 1,400 suits.
He asked for leave to file a counterclaim accusing CSX of fraud and misrepresentation in the case of Earl Baylor.
He wrote that before the Peirce firm sued CSX for Baylor, CSX paid Baylor $7,500 to settle an asbestosis claim in Kanawha County circuit court.
"CSX, therefore, had no reasonable basis for spending money to defend against Mr. Baylor's claim," he wrote.
He wrote that the Peirce firm didn't know about the previous case but that CSX knew or should have known.
He wrote that Raimond retired in 2003, and Coulter left the Peirce firm in 2005.
Stamp has not set a hearing on the motions for leave to file.
Nor has he set a hearing on a motion from the lawyers to keep CSX from contacting their former clients.
Harron has not taken any action in the case since it returned to Stamp.