Law firm wants out-of-state asbestos claims heard in W.Va.

John O'Brien Dec. 17, 2008, 2:48pm


WASHINGTON (Legal Newsline) - A Pittsburgh firm is asking the U.S. Supreme Court to rule that West Virginia courts should open their doors for out-of-state visitors with asbestos claims.

Robert Peirce and Associates wants the Court to hear its appeal of a ruling from West Virginia that dismissed the asbestos cases of more than 1,000 railroad workers. The Peirce firm routinely files asbestos suits in Kanawha County, where cases from three other counties were consolidated in front of Circuit Judge Arthur Recht.

The Peirce firm says the U.S. Supreme Court has previously agreed with its argument.

"The privilege infringed upon under the statute is a non-resident's right to equal access to the courts of the State of West Virginia," its petition says.

"This privilege or right is fundamental. Although no court has attempted to compile an exhaustive list of those privileges considered 'fundamental' for the purposes of Privileges & Immunities Clause protection, this Court has repeatedly concluded that the right to 'institute and maintain actions of any kind in the courts of the state' is unquestionably among them."

In July, the West Virginia Supreme Court backed Recht, choosing not to apply a 2006 decision, Morris v. Crown Equipment, that granted West Virginia jurisdiction in a dispute from another state.

In Morris, they wrote, the roster of defendants included a West Virginia corporation. Without that connection, they decided, Morris did not apply to the asbestos suits.

The Peirce firm, however, claims that is not a substantial enough reason to discriminate against out-of-state plaintiffs.

"There is no evidence that the West Virginia court system is overburdened, at least not to the extent that would justify abandoning the principles of comity that underpin the Privileges & Immunities Clause," the firm wrote.

"To the extent that the West Virginia court system is subject to mass filings in asbestos cases, there is nothing that sets West Virginia apart in this regard, as this condition has been experienced by most, if not every, federal and state court system in this country."

The petition says West Virginia courts are doing a better job than its sister states in resolving asbestos cases in a timely manner.

"Further, even if West Virginia's court system was overburdened, the state would need to establish that
non-resident plaintiffs are a peculiar source of this problem in order to justify discriminating against
them," the petition says.

"It is not enough to merely declare that there are too many cases being filed and that some of them
are being filed by non-resident plaintiffs; rather it must actually be shown that the non-resident plaintiffs are a 'peculiar' cause of the overburdening."

According to numbers it recently filed in a federal court, 4,747 of the 5,325 individuals represented by Peirce firm who have filed suit against railroad company CSX in West Virginia have nothing to do with the state.

CSX filed a lawsuit in 2005 against the Peirce firm and Robert Gilkison, one of its employees. The complaint said two CSX employees came up with a plan to defraud the company by having an employee who already had been diagnosed with asbestosis show up for an X-ray screen for another employee with no signs of the illness. Dr. Ray Harron reviewed those X-rays for the Peirce firm, the suit states.

CSX says Gilkison, who was hired by the Peirce firm as a "runner" to round up former colleagues for lawsuits, suggested that CSX employee Ricky May get someone who previously tested positive to pretend to be him at a 2000 asbestos screening.

CSX claims May had Danny Jayne, a CSX worker who had been diagnosed with asbestosis in 1999, to impersonate him for the X-ray. The suit says Gilkison helped make this happen by letting May complete the paperwork and walking Jayne through the exam.

The Peirce Law Firm has acknowledged that scam, but says it wasn't behind it. The firm also says it didn't know about Gilkison's part in the plan and that, because he was a contractor, it isn't responsible for Gilkison's actions.

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