Of 900 W.Va. asbestos plaintiffs, two from the state

Chris Dickerson Apr. 15, 2009, 8:45pm


CHARLESTON, W.Va. (Legal Newsline) - Of all the plaintiffs in 900 asbestos cases filed in Kanawha Circuit Court on a single day by one attorney, only two are West Virginia residents.

On Oct. 29, Pittsburgh attorney Robert Daley filed those 900 cases, which also included six wrongful death complaints, on behalf of former employees of CSX and Norfolk Southern. Most -- 760 -- of the suits were filed against CSX, including the six wrongful death suits.

Only two of the plaintiffs -- Robert Lee Adkins Jr. of Lenore and Joe C. Mooney of Beaver -- live in the Mountain State. The rest of the plaintiffs primarily are from the southeastern United States, many from Kentucky, Georgia and Florida.

Both the Adkins and Mooney cases are against CSX.

According to Daley's complaints, the plaintiffs were exposed to and caused to inhale asbestos fibers, fibrosis-inducing materials and carcinogenic materials. He claims the defendants failed to protect its employees from the dangers of asbestos and asbestos-containing products.

Many of the 900 plaintiffs have developed asbestosis, asbestos-related pleural disease, cancer, and increased risk of cancer, as well as other serious and severe respiratory diseases, including mesothelioma, bronchogenic carcinoma or other cancerous conditions, according to the filings.

Some plaintiffs have suffered difficulty breathing, and some have died as a result of their condition, it is alleged.

Daley's 900 cases actually are re-filings of cases that had been dismissed earlier.

Daley had wanted the Supreme Court to reverse Circuit Judge Arthur Recht, who dismissed 1,000 asbestos suits that Daley filed in West Virginia. Recht handles all asbestos suits under special assignment from the Court.

The Justices later affirmed Recht's dismissals. Recht had relied on a 2003 law that restricts access to state courts.

These 900 new cases actually are re-filings of most of those 1,000 dismissed cases. It is likely Daley refiled these to avoid possible statute of limitations issues.

Still, the 900 filings equaled $130,500 in filing fees that day.

Daley and his firm, the Pittsburgh-based firm of Robert Peirce & Associates, are no strangers to West Virginia courts or headlines.

CSX previously has alleged that the Pittsburgh-based firm that specializes in asbestos claims was involved a claim ripe with fraud.

In a case filed by the firm in 2002 in Marshall County, a former CSX employee provided the name of doctor who doesn't exist "to provide the needed medical evidence and support for his asbestosis claims."

In another case in U.S. District Court in Wheeling, CSX said the firm was involved in a scheme to concoct bogus X-rays that showed asbestos in the lungs of a CSX employee.

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

In court papers, the Peirce Firm acknowledged the scheme but denied knowledge of it.

And also last year, Daley argued to the state Supreme Court that every American enjoys a constitutional right to sue any other American in a West Virginia court. That was when he was asking the Court to reverse Recht's dismissals.

In recent weeks, CSX has asked Recht to impose a 30-day deadline for the Peirce firm to separate baseless claims of asbestos exposure from legitimate claims, citing the firm's "unreliable practices in the generation and prosecution of asbestos claims."

In the motion, CSX lawyer Robert Massie said Peirce plaintiffs should sign notarized statements to keep their cases open. For starters, plaintiffs would have to declare their awareness that they sued CSX.

A day earlier in a related suit at federal court in Wheeling, CSX lawyer Marc Williams claimed that some Peirce plaintiffs don't know they sued CSX.

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