Judge calls asbestos litigation against CSX 'bizarre'

Steve Korris Jun. 7, 2010, 7:00am


WHEELING, W.Va. (Legal Newsline) - As Ohio County Circuit Judge Arthur Recht looked back over six years of asbestos litigation against CSX Transportation, the picture disturbed him.

"I don't think, in my years of practice both as a lawyer and as a trial judge, that I have seen the machinations that have occurred," he marveled at a May 17 hearing in Wheeling, W.Va.

When a lawyer new to the litigation said Recht's rules startled him, Recht told him he hadn't seen "some of the bizarre, and that's the only word I can use, events that have occurred in the development of these cases."

He said it ranged from phantom doctors to "a doctor who has an imagination beyond description in reading certain X-rays."

In the phantom case, plaintiff Rodney Chambers forged a diagnosis with a signature from fictitious physician Oscar Frye of Huntington.

In the case of the X-ray reader, Recht meant radiologist Ray Harron.

He said, "I think a little bit of ink in the milk bottle is what the guy from Bridgeport -- what the hell is his name?"

Robert Daley of Robert Peirce's firm in Pittsburgh, said, "Doctor Harron."

Recht said, "That guy has created so much mischief."

He said a district court judge "just blew Harron out of the water."

In 2005, Judge Janis Jack of Texas found that Harron routinely diagnosed asbestos and silicosis on the same X-ray.

At the hearing, Recht dismissed about 1,400 asbestos suits that the Peirce firm filed against CSX Transportation.

The firm failed to obtain client signatures on statements that they understood their claims and intended to pursue them.

Daley had moved to dismiss the suits without prejudice, but he told Recht that with two exceptions he didn't object to CSX's motion to dismiss with prejudice.

The firm continues pursuing 62 cancer claims, and CSX wants a management order setting the same rules for cancer cases as those that applied to non malignant cases.

The firm engaged Avrum Levicoff, from a different Pittsburgh firm, to plead with Recht to relax the rules.

Levicoff told Recht his background was in typical civil litigation, not mass torts.

He said CSX's management proposal was a process of trying to get rid of cases. He said he found its provisions startling.

Recht said, "We have case management orders in every mass litigation case, and typically what they do is set up the manner in which the cases will proceed, but because of the history of these cases, it requires something different."

Levicoff said, "In order to make any of these what I would call startling provisions make any sense at all, there would have to be something not only unique, but there would have to be something involved here that would uniquely make this sort of thing

He said the Oscar Frye forgery would have been revealed at an early stage under typical disclosure and discovery.

"Strange things happen," he said.

He said there was no rational reason to treat malignant cases the same as non malignant.

"I could understand, you know, the fourteen hundred cases," he said.

"As it turns out, there wasn't much there," he said.

For CSX, Daniel Donahoe of Pittsburgh said, "To hear in this court that after six years of litigation on the nonmalignant cases, that there wasn't much there is rather upsetting."

He said, "Those non malignants, of which we have now determined there isn't much there, have gone up to the Supreme Court twice."

He said, "We have fought venue, forum, for years, and now plaintiff is conceding on all these cases and walking away from the litigation."

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